Department of Corrections v Ross [2012] NZHC 325 (29 February 2012)

High Court of New Zealand

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Department of Corrections v Ross [2012] NZHC 325 (29 February 2012)

Last Updated: 17 April 2012

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

CRI-2011-409-000125 [2012] NZHC 325

DEPARTMENT OF CORRECTIONS

Applicant

v

WALTER JAMES ROSS

Respondent

Hearing: 29 February 2012

Appearances: SCC Carter for Applicant

P D Watts for Respondent

Judgment: 29 February 2012

_{ORAL JUDGMENT OF CHISHOLM J}

[1] This is an application by the Chief Executive of the Department of

Corrections for an extended supervision order pursuant to s 107 of the Parole Act

2002. The order is sought for a period of 10 years. It is opposed by Mr Ross. When the application was first called it was adjourned until today so that Mr Ross could obtain legal representation. I am grateful to Mr Watts for the representation that he has provided.

[2] On 15 July 2005 Mr Ross was sentenced to seven years imprisonment on the following charges: three counts of sexual violation by way of unlawful sexual connection (digital); one charge of sexual violation by unlawful sexual connection

_{(oral); two charges of indecent assault on a girl under the age of 12 years; three}

DEPARTMENT OF CORRECTIONS V ROSS HC CHCH CRI-2011-409-000125 [29 February 2012]

charges of doing an indecent act under the age of 12 years; and one charge of indecent assault on a girl under 12 years.

[3] The offending extended over a period of approximately five years between

2000 and 2005. It involved five separate children. There were also charges involving indecency with animals. At the time of that sentencing Mr Ross was

30 years of age. He is now 37.

[4] When Mr Ross was sentenced in 2005 he had nine previous convictions, including a 1997 conviction for indecently assaulting a boy. The offending giving rise to that conviction had occurred in 1995 and Mr Ross had been sentenced to two years imprisonment.

[5] Mr Joughin, a clinical psychologist, provided a report to the Chief Executive on 8 August 2011. Not surprisingly it is a comprehensive report traversing, amongst other things, the matters referred to in s 107F(2) of the Parole Act.

[6] It was reported that Mr Ross had acknowledged a raft of undetected offending involving up to 20 victims in respect of which he had not been charged. The report continues:

During the health assessment he acknowledged a sexual interest in (particularly) male children dating back to when he was aged 17 years, and that his typical offence process would involve cultivating close relationships with single mothers, often with the sole purpose of obtaining access to their children. Mr Ross reported during the current health assessment that he could not provide an accurate estimate of the number of offences he had committed in his life, but provided examples of his offence process openly to the writer.

A similar modus operandi appears to have been involved in the offending for which

Mr Ross was sentenced in 2005.

[7] As to the potential for Mr Ross to reoffend, Mr Joughin formed the view that Mr Ross’ most recent release in 2010 had demonstrated a number of risk factors: contact with pre-pubescent children; cannabis abuse; mood collapse; and poor co- operation with his supervisor.

[8] I pause at this stage to record that in 2010 Mr Ross was paroled subject to conditions. Some months into that parole he became involved with a woman who had children. He says he was not in a relationship with her. Nevertheless there was a breach of his release conditions (although no charges were laid) and he was recalled to prison where he remained until November 2011 when he was again released.

[9] It was the psychologist’s view that the breach of conditions in 2010 indicated that despite intensive treatment Mr Ross had failed to implement the strategies he had developed to manage his risk to the community. It was also noted that he had displayed several dynamic factors that research indicates elevate the risk of sexual re-offending. The intensive treatment that Mr Joughin was referring to was the Kia Marama programme attended by Mr Ross when he was serving his prison sentence and the follow up programme after release.

[10] Using the ASRS and Stable 2007 ratings model Mr Joughin arrived at a moderate to high risk of further sexual offending. However, once the additional clinical risk factors (long history of sexual offending and objectively assessed evidence of deviant sexual arousal) were taken into account Mr Joughin concluded that the risk was high.

[11] Each of the risk issues specified in s 107F(2) of the Act were considered by the psychologist:

(a) As to the nature of any likely further sexual offending it was the psychologist’s view that this would involve male pre-pubescent children and that it was likely to follow the previous pattern.

(b) With reference to Mr Ross’s ability to control his sexual impulses, the psychologist answered that there was a “low” ability. This reflected the poor compliance with what he had been taught.

(c) The third factor is the offender’s predilection and proclivity for sexual offending. Mr Joughin answered that there was a clearly established

pattern of deviant sexual arousal and a history of acting on arousal by way of sexual offending.

(d) As to the offender’s acceptance of responsibility and remorse for past offending, it was accepted by the psychologist that Mr Ross had acknowledged responsibility for his offending. However, the psychologist questioned whether this demonstrated genuine remorse.

(e) Finally, in response to other relevant factors, Mr Joughin commented on Mr Ross’ personal focus and belief that he did not need to adhere to fundamental safety principles.

[12] It was recommended that the general manager make application for a 10 year extended supervision order. Mr Joughin considered that Mr Ross posed a “high risk of further relevant sexual offending against children with the potential victims most likely to be males with whom he has cultivated a close relationship”. The possibility of offending against females was also mentioned. Mr Joughin said that the prolific nature of Mr Ross’ sexual offending history, his pervasive sexual arousal to particularly male children, and his rapid return to high risk behaviours following his release, indicated that the level of risk had not been significantly moderated by the completion of intensive offence specific intervention.

[13] For Mr Ross, Mr Watts provided helpful written and oral submissions. There is no issue about the jurisdiction of the Court to make an order. However, Mr Ross does not feel that an order is necessary and he disagrees with many of the conclusions reached by the psychologist.

[14] Mr Ross is now living with his mother and considers that this is a safe environment and that he is able to exist in the community without the necessity for a supervision order. He has now moved on, has insight into his offending, is remorseful, and having been a victim himself knows the effects of such offending. He is determined not to go back to jail and emphasises that he has not been involved in sexual offending since release. In short, he disputes that he is at high risk of

reoffending in any relevant way. Mr Ross’ position is that if an extended supervision

order is to be imposed, it should be for no more than one year.

[15] Mr Ross believes that he has been punished enough and considers that an extended supervision order would effectively be an extension of the prison sentence. It would also be an impediment to his employment prospects and would fail to take into account the safe environment provided by his mother.

[16] Under s 107I(2) there is power to make an extended supervision order if:

...the court is satisfied, having considered the matters addressed in the health assessor’s report as set out in section 107F(2), that the offender is likely to commit any of the relevant offences referred to in s 107B(2) on ceasing to be an eligible offender.

It will probably come as no surprise to Mr Ross that I am satisfied that the prerequisites for the making of an order pursuant to this provision have been made out.

[17] The evidence is overwhelming. This reflects the history of the earlier offending for which he was sentenced to imprisonment, offending in respect of which there has been no court action, and events following his release from prison which indicate that the Kia Marama training was not completely successful. To make matters worse, Mr Ross still does not seem to recognise the risk that exists. There will therefore be an extended supervision order.

[18] The next issue is the term. Section 107I(5) provides:

(5) The term of the order must be the minimum period required for the purposes of the safety of the community in light of –

(a) the level of risk posed by the offender;

(b) the seriousness of the harm that might be caused to victims;

and

(c) the likely duration of the risk.

Those issues were carefully assessed by the psychologist when he arrived at his recommendation that the order be for a duration of 10 years. While I can understand

that Mr Ross might not be happy about that, I am satisfied that a period of 10 years is the minimum required for the purposes of the safety of the community in light of the specified matters.

[19] There will therefore be an extended supervision order for 10 years.

[20] Mr Ross this provides an opportunity to get your past behind you. You might feel at the moment that the system is trying to extend your punishment, but I can assure you that that is not the purpose at all. The purpose is to protect the community from any further offending on your part. That is not only in the interests of the community, it is also in your interests. I am sure you do not want to land back in prison.

[21] What you need to do is to accept that you are going to be subject to this extended supervision order. Comply with it and whatever you do, do not stumble in the way you did when you were released from prison in 2010. That stumble indicates that you have not taken all the Kia Marama training on board. You must use it. Good luck.

Solicitors:

Raymond Donnelly, P O Box 533, Christchurch 8140, [e-mail]

P D Watts, 12 Doyles Road, Loburn, RD 2 Rangiora, [e-mail]