DEPARTMENT OF CORRECTIONS V YORKE HC AK CRI 2009-404-24 [2009] NZHC 524 (11 May 2009)

IN THE HIGH COURT OF NEW ZEALAND
AUCKLAND REGISTRY
                                                                             
CRI 2009-404-24



  THE CHIEF EXECUTIVE OF THE DEPARTMENT OF CORRECTIONS
                          Applicant



               
                                  v



                                JONATHAN PAUL YORKE
                                     
Respondent



Hearing:         7 May 2009

Appearances: M A Woolford for Crown
             Respondent in person

Judgment:     
  11 May 2009


                                 JUDGMENT OF ALLAN J

In accordance with r 11.5 I direct that the Registrar endorse
this judgment
with the delivery time of 3.00 pm on Monday 11 May 2009



Solicitors:
Crown Solicitor Auckland
J P Yorke, Te Piriti
Unit, Auckland Prison, Private Bag 50124 Albany 0752




DEPARTMENT OF CORRECTIONS V YORKE HC AK CRI 2009-404-24 11 May 2009
[1]
   This is an application for an extended supervision order (ESO), made under
s 107F of the Parole Act 2002 (the Act).


[2]    On
8 October 2004 Mr Yorke was sentenced to five years imprisonment
(comprising two cumulative sentences of two and a half years imprisonment
each)
on two charges of indecent assault on girls aged between 12 and 16 years contrary to
s 134(2)(a) of the Crimes Act 1961.


[3]    Mr Yorke is shortly to be released. The applicant considers that he presents a
sufficient on-going risk to justify the making
of an ESO.


The Court's jurisdiction


[4]    The Court's jurisdiction to impose an ESO is intended to protect the public
from those
who pose a real and on-going risk of committing sexual offences against
children or young persons: s 107I(1). Eligibility for an
ESO arises where an
offender has been sentenced to imprisonment for a "relevant offence" as specified in
s 107B, which effectively
includes all sexual offences committed in respect of
persons under the age of 16 years. Application for an ESO must be made while
the
offender is still in prison (whether or not the latest sentence expiry date was for the
relevant offence), or is subject to release
or detention conditions: s 107F(1).


[5]    The Court may make an order only where it is satisfied that the offender is
likely to
commit any of the relevant offences in the future: s 107I(2). Before
making any such order, the Court must consider a health assessor's
report which
must address the factors set out in s 107F(2). Those factors are:


       a)      The nature of any likely future sexual
offending by the offender,
               including the age and sex of likely victims;


       b)      The offender's ability to
control his or her sexual impulses;


       c)      The offender's predilection and proclivity for sexual offending;
       d)
     The offender's acceptance of responsibility and remorse for past
               offending;


       e)      Any other relevant
factors.


[6]    The factors may be addressed by the health assessor concerned either directly
or by inference: Grieve v Chief Executive
of the Department of Corrections  (2005)
22 CRNZ 20.


[7]    A decision to impose an ESO must be made on the basis of the s 107I(2) test
after consideration of the factors set out in
s 107F(2). The ultimate decision must be
that of the Judge concerned, not of the health assessor, although no doubt in many
cases
the assessor's opinion will be significantly influential: Barr v Chief Executive
of the Department of Corrections CA60/06 20 November
2006 at [32].


[8]    In Belcher v Chief Executive of the Department of Corrections  [2007] 1
NZLR 507 at [11], the Court of Appeal observed that:

       An ESO will be justified where the risk of relevant offending is both real,

      on-going, and one that cannot sensibly be ignored, having regard to the
       nature and gravity of the likely re-offending.

[9]    The term of an ESO must be the minimum period required for the safety of
the community in light of the level of risk imposed
by an offender, the seriousness of
the harm that might be caused to victims, and the likely duration of the risk:
s 107I(5). But
the term cannot exceed 10 years: s 107I(4). The focus must be on
management of the risk of future offending, not upon the seriousness
of the offences
that have already been committed, when the Court is determining the term of an
ESO: R v Brown (Ruka)  (2005) 22 CRNZ 233. Having said that, the Court of
Appeal in R v Peta  [2007] 2 NZLR 627 at [10] noted that the likely seriousness of
future offences is usually best predicted by reference to past behaviour.


[10]   The
Court's central focus in setting the term of an ESO will be on the safety
of the community, and in particular that of children and
young persons. Orders are
not to be made for the minimum period required to facilitate treatment, but rather for
the minimum period
required to achieve protection for vulnerable members of the
community: Belcher at [108].


Mr Yorke's position


[11]   Mr Yorke's
statutory release date is 27 June 2009. The applicant seeks an
ESO for a period of ten years, being the maximum period available
under the Act.


[12]   When this application was called for mention some months ago, Mr Yorke
appeared and advised the Court that
he proposed to represent himself. At the hearing
before me Mr Yorke handed up written submissions that demonstrated a degree of
thoughtfulness
and insight that had perhaps been less evident at an earlier stage.
Although by no means unco-operative, he had been reluctant to
participate fully in
the preparation of the psychologist's report, on which the applicant relies.


[13]   The flavour of Mr Yorke's
response to the application is perhaps captured in
the following extract from his written submissions:

       2.1     Mr Yorke would
like to make clear to the Court that he has taken
               into consideration the application of the ESO and looked at all
areas
               regarding who will benefit and what can be done to keep Mr Yorke
               offence free in the future.

       2.2     This includes Mr Yorke living with his mother Jennifer Yorke and
               stepfather Peter Kelly at 21 Ogle
Crescent, Kamo, Whangarei, where
               this will be the best place for Mr Yorke as Mr Yorke's main
               supporters
are living there.

       2.3     Mr Yorke's primary goal is to keep the community and himself safe
               and to lower the
risk of sexual offending so it will never happen
               again in the future and this is the utmost importance in Mr Yorke's
               life.

       2.4     Mr Yorke understands that the effects on the victims and their family
               as well
as his own is unacceptable and he understands that it will be
               a lifelong healing for the victims who have lost trust
in people and
               feel uncomfortable going about doing their daily things as they have
               a right to feel
safe in their own towns. Mr Yorke believes the only
               thing he can do to gain back people's trust is to create no more
               victims and this is his utmost priority in Mr Yorke's life.

       2.5     Mr Yorke is not denying the fact that
yes there is a risk that
               Mr Yorke will re-offend in the near future without the on going
               support of
supervision how ever.
       2.6     Mr Yorke points out that he needs help in these areas upon release
               (1) counselling,
so that this will help Mr Yorke with continuing
               working on empathy skills so he can continue to place himself in

              another's shoes, and also to lower his sexual preference towards pre-
               teens and teenagers, (2) to learn
skill to boost up his self confidence
               and self respect, (3) to work on problem solving skills so he can
         
     make right choices in the future, (4) to learn communication skills
               that will help Mr Yorke fully open up to
people, (5) to learn more
               about the consequences and effects crime has on people.

[14]   I am satisfied that Mr Yorke
understands the legislative purposes
underpinning the ESO regime and that he is genuine in his desire to avoid future
offending,
both in his own interests and those of the community.


[15]   Mr Yorke does not oppose the making of an order, but suggests that
a period
of seven years would be more appropriate than the maximum period sought by the
applicant. He also asks that the ESO be reviewed every six months, but as was
explained to him
during the hearing, there is no need for such a structured review
plan since, if an order is made, Mr Yorke will be under the on-going
oversight of a
probation officer and there is provision in the Act for variation or cancellation of an
order if circumstances warrant.


[16]   The primary point of difference between Mr Yorke and the applicant is the
period for which the order should remain in force.
In order to resolve that aspect of
the application it is necessary to consider both the history of Mr Yorke's offending
and the contents
of the psychologist's report, upon which the applicant relies.


Past offending


[17]   Mr Yorke was sentenced for his present offending
by Randerson J in the
High Court at Whangarei on 8 October 2004.                  On that occasion the Judge
summarised Mr Yorke's
prior offending:

       [15] Dealing with your prior history, the psychologists' report notes that the
       first official record
shows that you physically assaulted a ten year old girl in
       April 1994 when you would have been 13 years of age, and that you
       assaulted another boy later the same year. Your first recorded sexual assault
       was around the same time when you indecently
assaulted a 12 year old girl.
       The next recorded sexual incident was in January 1995 when you visited a
       91 year old
woman and are reported to have masturbated in front of her.
       [16] Six months later, in July 1995, you physically assaulted
an eight year
       old female for which you were charged and convicted of assault with intent
       to injure. Three months later
in October 1995, you committed a further
       violent offence when you physically assaulted a 15 year old female, resulting
  
    in your conviction on a charge of assault with intent to rob. You later
       disclosed that this last offence, along with the
prior incident in April 1994,
       was sexually motivated.

       [17] Your first conviction for sexual offending was a charge
of indecent
       assault committed in May 1996 on a 12 year old female. You were dealt with
       in the Youth Court and placed
in a specialist group home for adolescent
       sexual offenders. The purpose of that programme was to enable you to
       undergo
treatment at the STOP Adolescent Programme. It was while you
       were participating in this programme that you sexually violated
a 15 year old
       male resident. It was that conviction that resulted in your sentence for four
       and a half years which
you completed in March 2002.

[18]   Mr Yorke was sentenced by Randerson J for two quite separate offences.
The first was committed
on 1 August 2002, when he indecently assaulted a 12 year
old girl with whom he was acquainted.           She was in her grandmother's
house.
Mr Yorke came up behind her without warning and started fondling her breasts. He
desisted when kicked in the shins by the
victim. He was then spoken to by the
police, made partial admission and expressed his remorse. That offence occurred
within a few
months of his release from prison in March 2002.


[19]   A second incident occurred about two years later on 23 June 2004, and
involved
a 15 year old school girl who was a stranger to Mr Yorke. As she was
walking through a carpark he grabbed both her breasts and pulled
her towards him.
She managed to break free and to run off. When spoken to by the police Mr Yorke
admitted the incident and explained
that he was stressed and agitated, and that when
he got into a state like that he was attracted to adolescent girls. There were guilty
pleas to each of the charges then before the Court.


[20]   The Judge noted that Mr Yorke was then aged 23 years (he is now 28),
and
that he had already accumulated an unenviable list of sexual offences.                  The
possibility of a sentence of preventive
detention was extensively canvassed before
Randerson J, and the necessary reports were placed before the Court for that
purpose. The Judge was satisfied
that there was a real risk of re-offending in the
future, but that a lengthy determinate sentence was preferable to a sentence of
preventive detention. He carefully set out his reasons for determining that a finite
sentence should be imposed:

       [38] These
are, first, that at the age of 23, you have yet to gain full maturity.
       Secondly, as was the case in Bailey, although your
offending has been
       persistent and serious, the kinds of offences you have committed have not
       progressed since your
release from prison to the most serious types of sexual
       offending. Thirdly, I am of the view that a sentence of preventive
detention
       would be disproportionately severe given the nature of the offences for
       which you appear before the Court.
Fourthly, I consider that the community
       can be adequately protected by a finite sentence which is longer than normal
    
  but which would not unduly distort current sentencing patterns for similar
       offending. Fifthly, and this is an important
factor in my consideration, there
       is now provision, as I have mentioned, under s107I of the Parole Act 2002
       for the
Court to make an extended supervision order in the case of offenders
       who pose a real and ongoing risk of committing sexual
offences against
       children or young persons. An extended supervision order may be made on
       the application of the Chief
Executive of the Department for Corrections
       before the expiry of your sentence. An extended supervision order may be
    
  made for a term of up to ten years and may include both standard release
       conditions and special conditions imposed by the
Parole Board.

       [39] The advantage of an extended supervision order is that it may be made
       upon the application of the
Chief Executive and considered in the light of
       your circumstances at the time the application is made towards the end of

      your sentence. By that time, you will have been involved in therapeutic
       programmes while in prison and your response
to them can be assessed at
       that time. If you are released at that point, your release into the community
       can be monitored
and your case supervised much more closely and over an
       extended period of time. By that means, the community will have a greater
       degree of confidence that you will not re-offend in the future.

       [40] It is, of course, for the Chief Executive to
decide whether an application
       for an extended supervision order will be made in the future. That is
       something over
which this Court does not have any direct control. However,
       I will take steps to ensure that my sentencing remarks are made
available to
       the Parole Board so that the Board is aware of my reasons for imposing a
       finite sentence rather than a
sentence of preventive detention.

[21]   It is to be observed that a principal factor in Randerson J's decision to impose
a finite
sentence was the potential availability of an ESO at the expiration of the
sentence.


Discussion


[22]   The applicant relies on
a psychological report prepared by Mr D T Jones,
who is a registered clinical psychologist. As required by the Act, Mr Jones has
addressed the factors set out in s 107F(2). The first of those factors is the nature of
any likely further sexual offending by the
offender, including the age and sex of
likely victims. As to this, Mr Jones says that, given the scope and scale of his
previous
offending, involving both male and female victims ranging in age from
eight to 91 years, Mr Yorke could offend against a wide range
of potential victims.
However, he is most likely to offend against female children or adolescents, whether
strangers or not.


[23]
  The second question requiring consideration is the offender's ability to
control his or her sexual impulses. Mr Jones believes that Mr Yorke may have some
ability to control his sexual impulses,
at least within a controlled environment, but
observes that his offending history suggests that Mr Yorke may quickly lose the
ability
to control his impulses when under significant stress or while intoxicated.


[24]   The next factor is "the offender's predilection
and proclivity for sexual
offending". Mr Jones considers that the wide range of Mr Yorke's victims tends to
suggest high levels of
sexual preoccupation and preparedness on his part to meet his
sexual needs without regard to socially acceptable boundaries.


[25]
  The next factor is "the offender's acceptance of responsibility and remorse
for past offending". Here Mr Jones notes that Mr Yorke
pleaded guilty in 2004 and
observes that from departmental files, there may be some suggestion that Mr Yorke
does not entirely accept
the significance of his actions. He further notes that a
sentence plan in 2005 evidenced a degree of remorse on Mr Yorke's part,
and an
ability to express the effects of his actions on his victims.


[26]   Finally, the report is required to take into account
"any other relevant
factors". Mr Jones notes that Mr Yorke is assessed as having a medium-high rating
on static risk factors, using
the ASRS tool, and that an assessment using the
STABLE 2007, a measure of dynamic risk, indicates a high risk of sexual
recidivism.


[27]   Mr Jones summarises the degree of risk posed by Mr Yorke in the following
way:
       It is considered that there is a
high probability that Mr Yorke will engage in
       relevant sexual offending involving sexual assault within five years of
   
   release if the following identified risk factors remain present: deviant sexual
       interests, impulsivity, lack of cooperation
with supervision, poor problem
       solving skills, the absence of a strong support network, the absence of a long
       term
intimate partner, sexual preoccupation, the use of sexual behaviour as a
       coping strategy, a sense of social rejection, lack
of concern for others and
       negative emotionality. His serious sexual re-offending is most likely to
       place female children
and adolescents, either known to him or strangers, at
       risk of indecent assault or rape. However, his pattern of indiscriminate
       offending suggests that he could also offend against males or older females.
       His reported history of fantasising to
themes of rape and murder suggests the
       possibility that his offending could escalate in severity.

[28]   Mr Yorke has been
involved in a number of significant initiatives aimed at
curbing his offending. Randerson J summarised earlier initiatives in this
way:

       [20] The psychologists' report also describes the programmes for sexual
       offenders which you have undergone from
1996 onwards. This has included
       the STOP programme for sexual offenders in 1996 and 1997 over a 14
       month period; individual
therapy over 24 treatment sessions in 1998 and
       1999; a full 33 week Kia Marama Programme in the year 2000; a further 21
 
     individual sessions of therapy with a Kia Marama psychologist in 2001; and
       six referrals to Psychological Services for
individual therapy during your
       parole period in 2002.

[29]   More recently Mr Yorke has been involved in the Te Piriti programme,
which
it is to be hoped, will further assist him. But to date, despite all of these initiatives,
Mr Yorke has been unable to avoid
further offending.


[30]   Mr Jones expresses a degree of concern that, following completion of the Te
Piriti programme, Mr Yorke
will not be supervised in the community between
treatment completion and the sentence expiry date. There are therefore issues as
to
his reintegration into the community. To some degree that will be alleviated if an
ESO order is made.


Decision


[31]   There
is no doubt that an ESO ought to be made. Mr Yorke himself accepts
it is desirable to do so. I have considered his suggestion that the order ought not be
made for the ten year
period sought by the applicant, but I am satisfied that a ten year
period is essential. The risk is simply too great to justify anything
less.
[32]   As was pointed out to Mr Yorke at the hearing, there is provision in the Act
for an application to be made for variation
or cancellation of an ESO should
circumstances warrant that course. But in my view ten years is the minimum period
required at this
stage to achieve protection for vulnerable members of the
community.


[33]   There will be an ESO for a period of ten years to commence
upon
Mr Yorke's statutory release date.




C J Allan J