Turner v Chief Executive of the Department of Corrections [2010] NZCA 482 (22 October 2010)

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Turner v Chief Executive of the Department of Corrections [2010] NZCA 482 (22 October 2010)

Last Updated: 26 October 2010

IN THE COURT OF APPEAL OF NEW ZEALAND

CA353/2010 [2010] NZCA 482

BETWEEN PHILIP JOHN TURNER
Appellant

AND THE CHIEF EXECUTIVE OF THE DEPARTMENT OF CORRECTIONS
Respondent

Hearing: 12 October 2010

Court: Chambers, Ronald Young and Keane JJ

Counsel: J Wiles for Appellant
S B Edwards for Respondent

Judgment: 22 October 2010 at 12.30 pm

JUDGMENT OF THE COURT

The case is remitted to the District Court for further consideration of the respondent’s application for an extended supervision order in light of the reasons for judgment herein.

REASONS OF THE COURT

(Given by Chambers J)

[1] On 11 May this year, Judge Hubble made an extended supervision order (ESO) against Philip Turner, the appellant, under s 107I of the Parole Act 2002.[1] The Judge fixed the duration of the order at the maximum permitted under the legislation, namely ten years.[2] Mr Turner appealed against that order.
[2] By the time we heard the appeal, the parties were effectively agreed that the case should be remitted to the District Court for reconsideration.[3]
[3] The parties’ uneasiness, which we share, stems from four factors which, taken together, give rise to a real possibility that justice may have miscarried.
[4] The first factor is the contracted nature of the hearing in the District Court. Counsel had sought a full day’s hearing, as departmental and defence experts were to be cross-examined on their reports. In the end, the hearing had to be squeezed into two hours. It did not begin until 2.15 pm. The Judge could not sit beyond 4.30 pm.[4] According to Mr Wiles, for Mr Turner, this led to truncated cross-examinations of the experts. There was no realistic prospect of getting Mr Turner’s expert, Associate Professor Sandy Simpson, back, as he was migrating to Vancouver to take up an academic appointment two days later. Associate Professor Simpson and the Department’s expert, Ms Samantha Patel, had reached different conclusions as to the likelihood of Mr Turner committing further sexual offences against adolescents. Cross-examination was accordingly important in this case.
[5] Secondly, Ms Edwards, who appeared for the Department on this appeal, advised us that, in the course of preparing her submissions, she concluded “there may be an issue with the appellant’s Automated Sexual Recidivism Scale (ASRS) score of “medium high” referred to by Ms Patel in her report...and confirmed in her oral evidence”. Ms Edwards enquired into this further and discovered that the Department had indeed given Ms Patel an erroneous score from which to work. The Department’s electronic coding form showed Mr Turner with a score of 3, placing him in the “medium high” category. He should have had an ASRS score of 2, placing him in the “medium low” risk category.
[6] We cannot discount the possibility that this error may have affected Judge Hubble’s assessment. In her oral evidence, Ms Patel gave the recidivism rates for released child sex offenders (reoffending against children). With respect to those in the ASRS “medium high” risk category, the recidivism rate was seven per cent after five years and 16 per cent after ten years. The corresponding rates for the “medium low” risk category are five per cent and 11 per cent.[5]
[7] Ms Edwards in her submissions explained that the error, “while obviously unfortunate”, did not necessarily “in itself” warrant the appeal being allowed. She gave reasons for that submission. There is force in those reasons, but ultimately what concerns us is that that error does not stand alone. We commend Ms Edwards for diligently getting to the bottom of this error and for alerting us to it. Her actions in that regard were in the best tradition of the Crown Law Office.
[8] Thirdly, Mr Wiles sought to introduce significant new evidence which, if accepted, would throw doubt on some of the factual assumptions upon which Ms Patel proceeded in forming her conclusions. Ms Edwards did not accept we should consider this new evidence, on the basis that it could have been introduced in the District Court. There is merit in that submission, but at the end of the day this is a further factor leading to our uneasiness about what happened leading up to and at the District Court hearing.
[9] Finally, we are concerned about the way in which Judge Hubble dealt with the length of the order. His sole comment was this:

[38] I am satisfied that there is a medium to high risk that Mr Turner is likely to offend and this is a continuing risk throughout a period of ten years as assessed by [Ms] Patel. There will, therefore, be an order sought for the ten year period.

[10] This Court said in Peta:

[61] It is also necessary for a Judge to consider the term of an ESO in a separate exercise against the statutory criteria in s 107I(5). This was not done by Judge Dawson. In particular, the seriousness of the harm to likely future victims and its relationship to the other s 107I(5) factors was not considered explicitly. The Judge went immediately from his finding that “static risks remain in place for at least ten years” (see at [55] above) to the imposition of the ten year term.

[11] With respect, it is strongly arguable that the Judge here made a similar error. In any event, Judge Hubble’s assessment, such as it was, appears to have been based exclusively on Ms Patel’s assessment of Mr Turner being “a medium to high risk”, whereas, for reasons already given, it is possible she would have assessed that risk differently if she had been given the correct ASRS score by the Department.
[12] In all these circumstances, we consider the safest and fairest course is to remit the case to the District Court for reconsideration. This power to remit was not available when this Court decided Peta, which explains why this Court in that case felt it had no alternative but to reconsider the application itself once it had determined Judge Dawson’s reasons for the imposition of an ESO were inadequate.[6] The law has since been amended.[7]
[13] The rehearing may be before Judge Hubble, but does not have to be. The Judge may consider the evidence already before the District Court. It is obvious that the Department will need to call further evidence, whether from Ms Patel or from some other expert, in light of the erroneous ASRS score. Mr Turner should be able to call further evidence as to relevant facts. It will be up to him whether a new expert is retained, given Associate Professor Simpson’s relocation to Canada. Alternatively, Associate Professor Simpson may be available for further cross-examination by video link. These are matters for the parties.
[14] Obviously the Judge who rehears the application should, if he or she decides an ESO is warranted, consider separately what the term of the ESO should be, as referred to above.
[15] The parties are agreed that, in the event of our deciding to remit, Mr Turner remains on the terms of his ESO until the rehearing takes place.

Solicitors:
Crown Law Office, Wellington, for Respondent

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[1] The Chief Executive of the Department of Corrections v Turner DC Auckland CRI-2009-004-8026, 11 May 2010.
[2] Parole Act, s 107I(4).

[3] The power to remit comes from s 385(3) of the Crimes Act 1961. That provision applies to appeals against extended supervision orders pursuant to s 107R of the Parole Act.
[4] There was, in between, a 15 minute afternoon adjournment.
[5] R v Peta [2007] NZCA 28, [2007] 2 NZLR 627 at [25].
[6] Peta at [2].
[7] The power to remit was conferred by s 13 of the Crimes Amendment Act (No 2) 2008.