WILSON V PAROLE BOARD HC CHCH CRI-2009-409-000047 [2009] NZHC 600 (21 May 2009)

IN THE HIGH COURT OF NEW ZEALAND
CHRISTCHURCH REGISTRY
                                                                  CRI-2009-409-000047



                           STEWART MURRAY WILSON



                                            v



                        
         PAROLE BOARD



Hearing:       30 April 2009

Appearances: A McKenzie for Appellant
             A Powell for Respondent

Judgment:      21 May 2009


            RESERVED JUDGMENT OF HON. JUSTICE FRENCH


Introduction

[1]    This is an appeal against
an order of the Parole Board that the appellant not
be released after serving two thirds of his sentence but remain in prison until
the
applicable release date.


[2]    Section 107(3) of the Parole Act 2002 provides that the Board must make
such an order if:

       ...it is satisfied that the offender would, if released before the applicable
       release date, be likely to commit a specified
offence between the date of
       release and the applicable release date.




WILSON V PAROLE BOARD HC CHCH CRI-2009-409-000047
21 May 2009
[3]    The key issue on appeal is whether the Board correctly formulated and
applied the test under s107(3) in assessing
the likelihood of re-offending.


Factual background


[4]    On 15 March 1996, the appellant was sentenced in the High Court to
a term
of imprisonment of 21 years for offending extending over a 25 year period against
women and young girls. The sentence, which
was one of the longest finite sentences
ever imposed in this country, was comprised of:

       ·     10 years' imprisonment in respect
of his post-1986 offending which
             included convictions for sexual violation by rape (x4), attempted sexual
         
   violation by rape, and indecent assault (x5).

       ·     Eight years for his pre-1986 offending which included three rape

            convictions; and,

       ·     A further 3-year term for his wilful ill-treatment of a child.

[5]    The appellant
completed two thirds of his sentence on 2 December 2008. His
sentence expires on 1 December 2015.


[6]    S107 of the Parole Act
states:

       107       Order that offender not be released

       (1)       This section applies to an offender who is subject
to a
                 determinate pre-cd sentence for a specified offence (as defined
                 in subsection (9)).

    
  (2)       The chief executive may apply to the Board at any time before
                 the offender's final release date for
an order that the offender
                 not be released before the applicable release date (as defined in
                 subsection
(9)).

       (3)       The Board must make the order if it is satisfied that the
                 offender would, if released before
the applicable release date,
                 be likely to commit a specified offence between the date of
                 release
and the applicable release date.

       (4)       A copy of the application under subsection (2), and a copy of
               
 any report submitted to the Board, must be given to the
                 offender at least 14 days before the application is to
be
                 considered, and the offender must be given an opportunity to
               appear before the Board and state
his or her case in person or
               by counsel.

       (5)     If the Board makes an order, it must state its reasons in
writing
               and give a copy of the order and the reasons to the offender or
               to his or her counsel.

  
    (6)     An order made under this section must be reviewed by the
               Board at least once in every 6 months following
the making of
               the order, and subsection (4) applies to every review, with all
               necessary modifications.

       (7)     On a review, the Board must revoke the order if it is no longer
               satisfied that the test in subsection
(3) is met; and if it revokes
               the order, the Board must determine the release conditions that
               will apply to the offender on release.

       (8)    
An order made under this section expires on the applicable
               release date, unless revoked earlier under subsection (7).

       (9)     In this section,--

               applicable release date means,--

               (a)    in the case of an offender
subject to a pre-cd sentence
                      imposed for a specified offence, the date that is 3
                      months
before the sentence expiry date:

               (b)    in the case of an offender who is subject to more than 1
               
      pre-cd sentence imposed for a specified offence, the
                      date that is 3 months before the sentence expiry
date of
                      the sentence with the latest sentence expiry date

              ....

[7]    For the purposes of s107(1),
the appellant is serving "a pre-cd sentence",
meaning one which was imposed before the commencement of the current Parole
Act on
30 June 2002. It is also common ground that the offences committed by the
appellant (with the exception of the offence of wilful
ill-treatment of a child) qualify
as "specified offences" within the meaning of s107.


[8]    Prior to the appellant's final release
date, the Chief Executive of the
Corrections Department filed an application under s107(2) for an order the appellant
not be released
before "the applicable release date".
[9]     The "applicable release date" in the case of the appellant is 1 September
2012.


[10]    The application was duly heard before the Parole Board on 18 December
2008.


[11]    At the hearing, the Department called
evidence from a clinical psychologist,
Mr Stenhouse. In its decision, the Parole Board summarised Mr Stenhouse's
evidence as follows:

        [10]   As Mr Wilson refused to consent to a formal assessment, Mr
        Stenhouse's report was primarily based on an assessment
of file information.

        [11]     Using a combination of actuarial risk prediction instruments and
        clinical assessment
of dynamic risk factors Mr Stenhouse concluded that Mr
        Wilson's risk of serious sexual or violent recidivism before his applicable
        release date is high.

        [12]    The actuarial assessment tools Mr Stenhouse used to reach this
        conclusion
were the RoC*Rol, the automated sexual recidivism scale
        (ASRS) and the psychopathy checklist : screening version (PCL:SV)

        [13]     Mr Wilson's score on the RoC*Rol placed him in the low moderate
        risk category. However, as this test has
not been shown to be particularly
        reliable in relation to sexual offenders, Mr Stenhouse preferred to place
        greater
weight on the results of the ASRS, on which Mr Wilson achieved a
        high score. He noted that New Zealand male sex offenders
who have such a
        score have been found to have a 46% likelihood of being reconvicted of a
        further sexual offence within
a five year period.

        [14]    In addition, he noted that on the PCL:SV assessment Mr Wilson
        displayed a number of
high risk personality traits that international and
        specific New Zealand research has linked to rapid violent recidivism
        following release. He said that Mr Wilson's pattern of sexual deviance, as
        indicated by his offence history, together
with his psychopathic traits,
        produces a multiplicative effect that further increases his assessed risk of
        specific
sexual recidivism.

        [15]     The dynamic risk factors which Mr Stenhouse took into account
        included the fact that
Mr Wilson has continued to deny all aspects relating to
        his sexual offending and has refused to engage in any form of offence
related
        treatment in prison. In his view, Mr Wilson has not demonstrated any
        capacity to take responsibility for
his offending and continues to project
        frustration, anger and bitterness towards a range of staff and victims in a
        manner suggesting perseveration and
a lack on insight or personal
        responsibility.

        [16]    He said that for there to be any prospect of reduction in
the assessed
        risk of re-offending, Mr Wilson must show willingness to engage in the
        assessment process and to undertake
an appropriate offence specific
       treatment programme ­ ideally, group based, and preferably, he thought, the
       adult
sex offender treatment programme rather than Kia Marama.

[12]   One of the arguments raised at the hearing was that an order could
only be
made if the Board was satisfied the appellant's risk of re-offending was significantly
greater than the risk of re-offending
ordinarily attaching to an offender with exactly
the same criminal background as the appellant. The Board however rejected that
approach
as unduly restrictive and contrary to authority. It considered the correct
approach was to compare the appellant's risk of re-offending
with the risk of re-
offending by offenders with convictions for the specified kind of offences generally
(as opposed to exactly
the same convictions as the appellant).


[13]   The Board considered such an approach was consistent with the decision in
Secretary
for Justice v M  (1990) 6 CRNZ 57 where it was said of the equivalent
provision under the Criminal Justice Act 1985:

       The applicant must satisfy the board that
there is a real or substantial risk of
       reoffending of the specified kind within the specified period if an order is not
 
     made, and that such risk is significantly greater than the risk of recidivism
       ordinarily attaching to such offending;
...

[14]   The Board went on to find that the test had been met in the case of the
appellant and accordingly granted the application.
In coming to that conclusion, the
Board said it had been influenced by the following factors:


               (a) the nature and
duration of the offending involving as it did a
                   significant number of victims, taken into the appellant's home
on
                   the pretext of friendship and then subjected to cruel and degrading
                   treatment, indecently
assaulted and often raped. The appellant
                   took control of their lives to an extraordinary degree with
        
          compliance being obtained by force or threats of force.


               (b) The fact the sentencing judge saw the appellant
as posing a risk of
                   re-offending and would have imposed preventive detention had he
                   been able
to do so.
               (c) The fact that since then psychologists have consistently assessed
                   the appellant
as posing a high risk of re-offending.


               (d) Mr Stenhouse's assessment based on the combination of actuarial
    
              and dynamic factors that there is a high risk of the appellant
                   committing a serious sexual offence
if released before his
                   applicable release date (or the end sentence date).


               (e) The appellant's
denial of his sexual offending and refusal to
                   accept treatment meant the Board could have no confidence that

                  given the slightest opportunity the offending will not happen
                   again.


               (f) The
inadequacy of the proposed release plan. Without a high level
                   of support and oversight, the safety of the public
would be in
                   jeopardy.


[15]   The appellant sought a review of the Parole Board decision under s67 of the
Parole
Act. The review confirmed the earlier decision and the appellant then filed an
appeal to this Court.


Nature of appeal to this Court


[16]   The principles applying to appeals under s68 have been usefully summarised
in Ratima v New Zealand Parole Board HC Christchurch
CRI-2003-409-000111, 5
February 2004, Panckhurst J at [14] as follows

       The important points are these:

               [a]
    although a general appeal by way of rehearing is ordained,
               an onus remains upon the appellant to satisfy this
court that the
               decision of the Board was wrong,

               [b]     where the appeal is properly to be categorised
as one against
               the exercise of a judicial discretion (as in postponement and final
               recall orders) the
appellant must establish that the Board proceeded
               on a wrong principle, failed to recognise a relevant matter or brought
               to account an irrelevant one, or that its decision was clearly wrong,
               [c]     where a s107 continued
detention order is challenged, the
               appellant must show that the finding of likelihood to commit a
               specified
offence if released was not something of which the Board
               could be satisfied, since there is no residual discretion
not to make a
               continued detention order following such a finding of fact; and

               [d]     regard should
be had to the specialist function of parole
               boards, which on account of their composition, expertise and
        
      experience are in an advantaged position by comparison to an
               appellate court, the more so where credibility assessments and the
               opportunity
to observe the offender at the hearing are material to the
               decision which was reached.

[17]   It was common ground
that although Ratima was decided before the Supreme
Court decision in Austin Nichols & Co Ltd v Stichting Lodestar [2008] 2 NZLR
141,
the last paragraph quoted above remains good law in so far as appeals against the
exercise of a discretion are concerned.


Grounds of appeal and competing arguments


[18]   The grounds of the appeal are that the Board erred in its formulation and
application
of the statutory test under s107(3) and further that there was insufficient
evidence before it capable of satisfying the test correctly
formulated.


[19]   Counsel for the appellant, Mr McKenzie, submitted that the test formulated in
Secretary for Justice v M was
a two limb test. First, the Board had to be satisfied
there was a high risk of the appellant re-offending. However, that in itself
was not
enough. The second limb meant the Board also had to be satisfied the appellant
posed a greater risk than the risk of recidivism
ordinarily attaching to such offending.
That required the Board to undertake a comparative exercise between the appellant
and a control
group. However, in Mr McKenzie's submission, the Board identified
the wrong control group and in any event, while paying lip service
to Secretary for
Justice v M, never actually undertook any comparative exercise. The only evidence
before it related to the appellant
having a high risk of re-offending but not how that
risk compared with anyone else. Likewise, the factors which the Board said had
influenced it were all factors bearing only on the first limb of the test (the likelihood
of the appellant re-offending) not the
second limb namely how his risk of recidivism
compared with another control group.
[20]    As regards identifying the correct control
group, Mr McKenzie submitted it
was unclear from the authorities what the appropriate control group should be. He
identified three
possibilities:


                    (i) offenders with exactly the same offending history as the
                        appellant
(ie his clone) - Mr McKenzie's preferred option,
                        relying on the words "such offending" in Secretary for Justice
                        v M.


                    (ii) offenders with convictions for specified offences ­ the view of
        
               the Parole Board.


                    (iii)the general prison population ­ the view which Mr McKenzie
         
              submitted Panckhurst J had adopted in Curran v Parole Board
                        HC Christchurch CRI-2003-409-000110,
5 February 2004, at
                        [16].


[21]    I pause here to note that offenders with an identical criminal record
to the
appellant would of necessity receive the same score as him under risk assessment
tests such as RoC*Rol and ASRS which consider
static risk factors alone.


[22]    For its part, the Crown submits that the appellant's interpretation of s107 is
based on semantics
and simply wrong. The Crown accepts that for the purposes of
s107 the mere fact an offender has committed sex offences in the past
cannot of itself
be sufficient to establish a likelihood they will do so again if released prior to the end
of the sentence. However,
it says the correct approach is that once the Board is
satisfied there are characteristics that take the prisoner beyond the ordinary
risk of
recidivism, it is irrelevant how many other offenders share those characteristics. The
sole question, on the authority of
Belcher v Chief Executive of the Department of
Corrections  [2007] 1 NZLR 507, is whether the prisoner constitutes a real and
ongoing risk that cannot sensibly be ignored having regard to the nature and gravity
of the likely re-offending.


Discussion
[23]   On the face of it, s107(3) says only that the Board must be satisfied the
offender
would be likely to commit a specified offence. It does not say anything
about there needing to be a significantly greater risk. The
latter is a gloss which the
Courts have imposed from logical necessity. Otherwise, orders would be made in
every case involving sex
offenders because all sex offenders are at high risk of re-
offending. Had Parliament intended all sex offenders to be the subject
of an order, it
would have said so. Therefore, there has to be an elevated risk; a risk that is greater
than the risk of re-offending
arising simply from the fact the prisoner has been
convicted of sexual offending in the first place. Whether or not the test postulated
in
Belcher in relation to extended supervision orders is different from the Secretary for
Justice v M test or replaces it, as suggested
by the Crown, must in my view await
further guidance from the Court of Appeal.


[24]   In my view, the Parole Board was correct
when it stated that under the
Secretary for Justice test, the risk of recidivism relates to the risk of re-offending by
offenders
with convictions for the specified kind of offences and not offenders who
are exact clones of the appellant.


[25]   The Parole
Board's formulation is consistent with the underlying policy of
s107 which is to protect the public. In contrast, the interpretation
advanced by the
appellant is unduly restrictive and would in my view defeat Parliament's intention.
Not only would a clone test undermine
public safety, it would create significant
practical difficulties. It would prevent the Board from being able to assess risk on
any
sensible basis when confronted for example with a situation of unique offending
or for that matter with a situation where the nature
of the offending was particularly
appalling as in the case at issue. In short, I am satisfied the test postulated by the
appellant
is wrong and should be rejected.


[26]   For completeness, I should add I do not consider Curran is authority for the
proposition
that the substantially greater risk is only to be assessed in relation to the
general prison population as opposed to the cohort
of sex offenders. The comments
made by Panckhurst J at [16] must be seen in context. It follows I agree the Board
were correct when
they stated in their decision that it would be wrong to rely upon
the RoC*Rol test alone as that test is based on the general criminal
population rather
than sex offenders.


[27]    In my view, there was ample evidence before the Board on which it could
find the
appellant posed a real and ongoing risk in terms of Belcher or a significantly
greater risk than that which arises from the fact
of a conviction for sexual offending.
The assessments, the particular features of the appellant's offending, his absence of
remorse,
and his refusal to engage in treatment were all relevant matters which in my
view the Board was clearly entitled to take into account.
As pointed out by Mr
Powell, it is clear from the sentencing notes that the appellant was beyond the
normal risk at the time and
because of his refusal to engage in treatment, the only
thing that has changed in the intervening period is that the appellant has
got older.


[28]    It follows from all of the above that the appellant has failed to satisfy me the
decision of the Parole Board
was wrong.


[29]    The appeal is accordingly dismissed and the order of the Parole Board
confirmed.




Solicitors:
S B Law, Christchurch
(Counsel: A McKenzie, Christchurch)
Crown Law, Wellington