Chief Executive Department of Corrections v Roper [2016] NZHC 103 (5 February 2016)

High Court of New Zealand

[Index] [Search] [Download] [Help]

---

Chief Executive Department of Corrections v Roper [2016] NZHC 103 (5 February 2016)

Last Updated: 9 February 2016

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

CRI-2015-409-000117 [2016] NZHC 103

THE CHIEF EXECUTIVE DEPARTMENT OF CORRECTIONS

v

_{KARL BRIAN ROPER}

Hearing:	3 February 2016
Appearances:	P A Currie for the Applicant M Starling for the Respondent
Judgment:	5 February 2016

_{JUDGMENT OF NATION J}

Background

[1] On 15 August 2012, Mr Roper was sentenced in the New Plymouth High Court to a total of four years’ imprisonment with regard to charges of indecent assault and doing an indecent act upon three young boys.¹ He is due for release on those sentences on 27 May 2016. The Department of Corrections has applied for an extended supervision order.

[2] The application was first called in this Court on 15 December 2015. Mr Roper appeared in person. There was some indication that he might consent to the application but wanted the opportunity to consult with legal counsel before taking a formal position. The application was adjourned to 3 February 2016 to give him this

_opportunity.

¹ R v Roper [2012] NZHC 2048.

[3] On 3 February 2016, the application was called before me. Mr Roper was present in Court but was also represented by Mr Starling. Mr Starling confirmed that he had discussed the basis on which the application was being made and the consequences of an extended supervision order carefully with Mr Roper. He confirmed that Mr Roper was consenting to the making of the order and agreed that the order should be for a term of 10 years.

[4] Prior to the hearing, I had read and considered the information on which the Department was relying in making the application. I considered the orders as sought and consented to were appropriate. I accordingly made orders in Court in the presence of Mr Roper so that he could be served and acknowledge receipt of the orders that had been made. I indicated that I would give a brief judgment dealing with my reasons for the making of the orders and now do so.

Statutory prerequisites

[5] For me to be able to make an extended supervision order, I must first be satisfied that Mr Roper has been sentenced to imprisonment for a relevant offence under s 107B of the Parole Act 2002 (the Act). All the charges for which Mr Roper was sentenced in 2012 (noted above in [1]) are relevant sexual offences under s

107B(2).

[6] An order can be made in respect of an eligible offender. Mr Roper is an eligible offender within the meaning of s 107(1)(a) of the Parole Act because:

• he was sentenced to four years’ imprisonment in respect of the above offending. That offending has not been quashed or otherwise set aside;

• he has not ceased, since his last conviction for a relevant offence, to be subject to a sentence of imprisonment; and

• he is not subject to an indeterminate sentence.

[7] This application has been made within the required time. Having regard to s

107F(1), his sentence expiry date is 27 May 2016. He is not subject to release conditions. The application was filed on 25 November 2015.

[8] The application has been made in the required form, accompanied by a health assessor’s report prepared by Sarah Head, registered clinical psychologist. That report considered the matters prescribed to be considered pursuant to s 107F(2) of the Act and, in particular, with reference to s 107IAA:

• the offender’s demonstration of an intense drive, desire or urge to

commit a relevant sexual offence;

• the offender’s predilection or proclivity for serious sexual offending;

• the offender’s self-regulatory capacity;

• the offender’s acceptance of responsibility or remorse for past offending;

and

• the offender’s understanding for or concern about the impact of his or her

sexual offending on actual or potential victims.

The s 107I(2) threshold

[9] I may make an extended supervision order if, following the hearing of the application, I am satisfied that Mr Roper has, or has had, a pervasive pattern of serious sexual offending and there is a high risk that he will in future commit a relevant sexual offence.²

[10] Having considered the matters in Ms Head’s report, I am satisfied of the first limb of s 107I(2) – Mr Roper has had a pervasive pattern of serious sexual offending. I now address these matters in relation to Mr Roper’s high risk assessment.

Demonstration of intense drive, desire or urge to commit a relevant sexual offence

[11] The report writer spoke to Mr Roper in an interview lasting some three hours and 45 minutes. To his credit, Mr Roper was reported as having been cooperative and forthcoming in the interview. Mr Roper described to the report writer a history of high sexual preoccupation over a long period with a particular interest in young males. While the report referred to progress he had made in reducing that level of

_{sexual preoccupation as a result of his engagement in prison treatment programmes,}

² Parole Act 2002, s 107I(2).

the report noted that this progress has not been tested outside the prison environment.

Predilection or proclivity for serious sexual offending

[12] As to his predilection or proclivity for serious sexual offending, Mr Roper has a total of seven sexual convictions across three separate sentencing occasions against seven victims over a five year period. He has reported further undetected sexual offending against eight pre-pubescent males. His previous offending is consistent with the report writer’s assessment that Mr Roper’s deviant preference for sexual offending involving pre-pubescent males is well established and has been strongly reinforced over many years. His offence history and his self-report indicates that he did continue to sexually offend in spite of previous sanctions and treatment that he has received, at times even while having access to age appropriate partners.

[13] I have also considered the particular circumstances and nature of the offending for which he was most recently sentenced. That offending was consistent with the report writer’s assessment as to the degree of Mr Roper’s predilection or proclivity for serious sexual offending. The offending was such that the sentencing Judge seriously considered whether it would be appropriate to impose a sentence of preventive detention. He did not do so, in part because of the potential for reducing the risk which Mr Roper might pose with regard to serious offending through prison- based treatment programmes and through the potential availability of an extended

supervision order.³

The offender’s self-regulatory capacity

[14] I agree that Mr Roper’s behavioural and offending history, including conduct in prison while he was within the constraints of the prison environment and with a high likelihood of detection, indicates that he does have longstanding difficulties with self-regulation. He is to be commended for the improvement that has been shown in his self-regulation within the prison environment but this has been achieved in an environment that supports his self-management to a large degree by

consistent monitoring and feedback. I agree that this is likely to be tested upon Mr Roper’s release where the support, monitoring and constraints of the prison environment are no longer present.

The offender’s acceptance of responsibility and remorse

[15] It is apparent from the report that Mr Roper has willingly engaged in an intensive programme targeting his sexual offending. This does indicate that he has accepted a degree of responsibility for his offending but there continue to be some concerns in this regard given his initial views, as expressed to the report writer, as to his offending with one of his older victims as being consensual.

The offender’s understanding for or concern about the impact of his offending on

victims

[16] It appears from the report that Mr Roper has made progress in developing an understanding and concern as to the impact of his sexual offending on actual or potential victims. The report suggests that, through treatment, he has developed an intellectual awareness of his offence process and appears to have a general emotional response when reflecting on this. It is to be hoped that he can continue to develop an insight in this way. His life and offending is, of itself, an illustration of how sexual abuse can severely damage the victims of it. It is however significant that the reports as to this progress have occurred relatively recently, within a treatment setting and within the prison environment.

Conclusion

[17] The information provided in the report, coupled with the nature and extent of Mr Roper’s previous offending, as apart from his criminal record, and also from his further self-reports while in prison, satisfies me that the report writer was correct to conclude that there is a high risk that Mr Roper will engage in relevant offending within 10 years of his release, if he fails to manage his dynamic risk factors as outlined in his relapse prevention plan. His history and entrenched predilection for certain offending indicates that, if there is further offending, it is likely to involve, but not necessarily be limited to, indecent assault of pre-pubescent or pubescent males that he can gain unsupervised access to. His earlier offending suggests that

those at risk may include young people in the community who he may happen to come upon by chance and find attractive as well as those who he may have contact with through normal social contact. An extended supervision order is necessary to ensure that, on his release, conditions and supervision can be put in place to remove the risk of such reoffending.

[18] On the information that is before the Court, it is submitted for the Department of Corrections that the risk Mr Roper poses to the community, as a result of all these factors, is likely to remain at a high level over the long term and for at least a 10 year period. I accept that submission. In this regard, it is also important that Mr Roper accepts that the extension shall be for a term of 10 years. I accept that, for the protection of the community, it is appropriate that the extended supervision order be for the maximum period available under the legislation.

[19] The progress Mr Roper has made as a result of treatment within the prison environment is to his credit. It is also to his credit that he has acknowledged the extent to which he himself and potential victims are at risk as a result of the potential for him to reoffend. This insight into the nature of his offending and the potential risks has resulted in Mr Roper’s consent to the making of an extended supervision order for a period of 10 years.

[20] It is for all these reasons that I made the extended supervision order for a term of 10 years as from 27 May 2016. A copy of this judgment is to be delivered to Mr Roper, the Chief of Corrections and the Police.

Solicitors:

Raymond Donnelly & Co., Christchurch

M Starling, Barrister, Christchurch. Copy to: Mr K B Roper

Chief Executive, Department of Corrections

New Zealand Police.