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High Court of New Zealand Decisions |
Last Updated: 15 June 2016
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
CRI-2015-404-000285 [2016] NZHC 1060
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BETWEEN
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THE CHIEF EXECUTIVE,
DEPARTMENT OF CORRECTIONS Applicant
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AND
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JAMES TIMI MARTIN Respondent
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Hearing:
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9 and 10 May 2016
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Appearances:
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D Dufty for Applicant
A Prasad and J Grainger for Respondent
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Judgment:
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20 May 2016
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JUDGMENT OF WYLIE J
This judgment was delivered by Justice Wylie on 20 May 2016 at 9.30am
Pursuant to r 11.5 of the High Court Rules
Registrar/Deputy Registrar
Date:..............................
Solicitors:
Crown Solicitor, Auckland
Public Defence Service, Auckland
THE CHIEF EXECUTIVE, DEPARTMENT OF CORRECTIONS v MARTIN [2016] NZHC 1060 [20 May
2016]
Introduction
[1] On 15 September 2015, the Chief Executive of the
Department of Corrections applied for an extended supervision
order against
the respondent, Mr Martin, pursuant to s 107F of the Parole Act
2002.
[2] The application was advanced on the grounds that Mr Martin is an eligible offender and that there is a high risk that he will commit a relevant sexual offence in the future. The order was sought for a period of five years. As required by s
107F(2), the application was supported by a report from a health assessor, a
Mr
Anton van Dyk, who is a registered psychologist.
[3] Mr Martin had been released from prison on 26 August 2015. He was subject to various post release conditions. Those conditions were due to expire on 28
February 2016.
[4] Mr Martin opposed the application and the Court initially directed
that it would be heard on 10 December 2015, well
before the post release
conditions expired.
[5] In the event, on 11 November 2015, Mr Martin’s then counsel
sought and was granted leave to withdraw. Ms Prasad was
appointed to act in his
stead. She applied to adjourn the hearing because she wished to obtain
a further health assessor’s
report on Mr Martin.
[6] The fixture was vacated on 18 November 2015, and, as a result, the
Chief Executive promptly sought an interim supervision
order, pursuant to s
107FA of the Act.
[7] A hearing in relation to this latter application was held on 16 February 2016 and an interim supervision order was made by Davison J in a reserved judgment dated 25 February 2016.1 As Davison J noted, the interim supervision order was a short term arrangement, intended to remain in effect until full consideration could be given to the extended supervision order application.
Factual Background
[8] Mr Martin has a lengthy criminal history. Most of his convictions
have been for dishonesty related offending. Relevantly
he has been convicted
of five sexual offences.
[9] In 1974 Mr Martin was convicted of indecent assault of a
female aged between 12 to 16 years. Mr Martin was
aged 14 at the
time.
[10] Some 18 years later, in 1992, Mr Martin was convicted of one count
of rape and two counts of unlawful sexual connection.
The offending had
occurred in August 1991. Mr Martin was sentenced to 10 years’
imprisonment for this offending.
He was released on parole in
1998.
[11] In 2001, Mr Martin was convicted of a rape that he had
committed in November 1999 and he was sentenced to 16
years’
imprisonment. He was released on parole on 30 July 2010 but was recalled to
prison on 2 June 2011. His sentence expiry
date was 29 November 2015, but, as I
have already noted, he was released from prison, subject to post release
conditions, on 26 August
2015.
Extended Supervision Orders
[12] The purpose of an extended supervision order is to protect members
of the community from those who, following receipt of
a determinate sentence,
pose a real and ongoing risk of committing serious sexual offences or violent
offences.2 The jurisdiction to impose an extended supervision
order arises where the risk of the relevant offending is both real and ongoing,
and one that cannot sensibly be ignored having regard to the nature and gravity
of the likely offending.3
[13] The jurisdiction to make an extended supervision order is contained
in s 107I
of the Act. Relevantly it provides as follows:
107I Sentencing court may make extended supervision order
(1) ...
2 Parole Act 2002, s 107I.
3 Belcher v Chief Executive of the Department of Corrections [2006] NZCA 262; [2007] 1 NZLR 507 (CA) at [11].
(2) A sentencing court may make an extended supervision order, if,
following the hearing of an application made under section
107F, the court is
satisfied, having considered the matters addressed in the health
assessor’s report as set out in section
107F(2A), that-
(a) the offender has, or has had, a pervasive pattern of serious
sexual ... offending; and
(b) either or both of the following apply:
(i) there is a high risk that the offender will in future commit a
relevant sexual offence.
...
...
[14] In considering the risk posed, the Court is required to consider the
various matters set out in s 107IAA. In relation to
sexual offending it
provides as follows:
107IAA Matters court must be satisfied of when assessing risk
(1) A court may determine that there is a high risk that an eligible
offender will commit a relevant sexual offence only if
it is satisfied that the
offender—
(a) displays an intense drive, desire, or urge to commit a relevant
sexual offence; and
(b) has a predilection or proclivity for serious sexual offending;
and
(c) has limited self-regulatory capacity; and
(d) displays either or both of the following:
(i) a lack of acceptance of responsibility or remorse for past
offending:
(ii) an absence of understanding for or concern about the impact of his
or her sexual offending on actual or potential victims.
[15] Section 107IAA was added to the statutory scheme in 2014.4 The four criteria set out in s 107IAA(1) are mandatory considerations. They are conjunctive. The Court must be satisfied that the offender meets each criterion before it can go on
to determine that an offender poses a high risk of committing a relevant
sexual offence.
[16] The Court of Appeal has held that the word “satisfied” used in s 107I(2) has the same meaning as it does in relation to the imposition of a sentence of preventive detention – in other words, it requires the court to exercise its judgment.5 It is inappropriate to import notions of the burden of proof, or of setting a particular standard, for example, beyond reasonable doubt. The word “satisfied” simply requires the court considering the application to make up its mind, and, on the
evidence, to come to a judicial decision.
[17] It seems to me that the word “satisfied” used in the
more recent s 107IAA(1) must bear the same meaning. Further,
I consider that
the word should be read in light of s 107I(1), which details the purpose of an
extended supervision order.6
[18] The risk an offender poses must be assessed on an individual basis
taking into account all relevant factors.7 A health
assessor’s report should not merely be rubber
stamped.8
[19] The effect of an extended supervision order is that an offender in respect of whom an order is imposed will be subject to the standard conditions contained in s
107JA of the Act. Further, the Parole Board can specify special conditions pursuant to s 107K to meet an offender’s particular risk management needs. The type of supervision envisaged under the statutory regime includes frequent contact with a probation officer and conditions designed to manage known high-risk situations, such as unsupervised contact with children or engagement in substance abuse. A
special condition can require an offender to submit to electronic
monitoring.9
5 McDonnell v Chief Executive of the Department of Corrections [2009] NZCA 352 (CA) at [71]- [75], adopting the reasoning in R v Leitch [1998] 1 NZLR 420 (CA) at 428; and see Chief Executive of the Department of Corrections v Robertson [2014] NZHC 218.
6 See also Belcher, above n 3 at [11]; McDonnell, above n 5, at [76].
7 R v Peta [2007] NZCA 28, [2007] 2 NZLR 627 at [52] and [59].
8 At [56].
9 Parole Act, ss 107K(1) and 15(3)(f).
[20] The imposition of an extended supervision order is a penalty.10
An order is likely to result in significant restrictions being imposed on
an offender in response to his or her anticipated criminal
behaviour. This
amounts to a form of punishment.11
[21] An offender subject to an extended supervision order is not liable
to recall, but may be charged with breaching his or her
conditions, with a
maximum penalty of two years’ imprisonment.12
[22] The evolution of the extended supervision order legislation, and its passage through Parliament, has been considered by the Court of Appeal.13 It has been contended by counsel before that Court that the legislation is inconsistent with the New Zealand Bill of Rights Act 1990, that it constitutes an encroachment on civil liberties and that it places offenders at risk of double jeopardy. There has also been criticism that the legislation is retrospective. The Court of Appeal has, to date, declined to make a declaration of inconsistency. As far as I am aware, no one has yet sought such a declaration in the appropriate way, and the various contentions made
have not been the subject of either evidence or full argument. No
declaration of inconsistency was sought in the present case and
I have proceeded
on the legislation as it currently stands.
[23] I accept the argument made by Ms Prasad that the making of an extended supervision order would place major restrictions on the freedom of movement and association of Mr Martin. Caution is clearly needed and there is an obligation on me to carefully consider the evidence which has been adduced.14 In particular I must be satisfied there is jurisdiction to make an order, and, if there is jurisdiction, that an
order is warranted on the basis of the
evidence.15
10 Belcher, above n 3, at [30]-[56].
11 R v Peta, above n 7.
12 Parole Act 2002, s 107T.
13 Belcher, above n 3, at [30]-[56]; Belcher v Chief Executive of the Department of Corrections
(Belcher No 2) [2007] NZCA 174; McDonnell, above n 5, at [114]-[131].
14 Peta, above n 7, at [56]-[57].
15 See Peta, above n 7, at [57]; Chief Executive of the Department of Corrections v Miki HC Auckland CRI-2005-404-124 11 March 2010; Chief Executive of the Department of Corrections v Peterson HC Auckland CRI-2007-404-398, 24 April 2008.
[24] In my view, the legislation, as it stands, calls for a stepped
approach to a complying and properly served applications.16
In this case, the following are relevant:
(a) is Mr Martin an eligible offender? – ss 1071(1) and
107C;
(b) does Mr Martin have, or has he had, a pervasive pattern of serious sexual
or violent offending? – s 1071(2)(a);
(c) are each of the criteria set out in s 1071AA(1)(a)-(d) met?;
(d) is there a high risk that Mr Martin will in the future commit a relevant
sexual offence? – s 1071(2)(b)(i);
(e) should the Court exercise its discretion to make an extended
supervision order? – s 107(2);
(f) what term should attach to any extended supervision order?
–
s 1071(5); and
(g) should the Court impose any special conditions on the extended
supervision order? – s 1071A
[25] I proceed to consider these matters, insofar as I need to do so in
this case.
Analysis
Is Mr Martin an eligible offender?
[26] The meaning of the words “eligible offender” is set out in s 107C of the Act. Inter alia an eligible offender is an offender who is not subject to an indeterminate sentence but who has been sentenced to imprisonment for a relevant offence, and has not ceased, since or her latest conviction for a relevant offence, to be subject to a sentence of imprisonment and/or release conditions, and/or an extended supervision
order.
16 See Peta, above n 7, at [61]; McDonnell, above n 5, at [96].
[27] Inter alia relevant offences include sexual violation (s 128B(1) of
the Crimes
Act 1961) and indecent assault (s 135 of the Crimes Act).
[28] It is conceded that, at the time the application was made, Mr Martin
was an eligible offender. A Court can impose an extended
supervision order as
long as, at the time the application was lodged, the offender was an eligible
offender.17
Does Mr Martin have, or has he had, a pervasive pattern of serious sexual
offending
[29] I have summarised above at [8] – [11] Mr Martin’s sexual
offending history, and noted that he has been found
guilty of five sexual
offences in the past, arising from three different incidents.
[30] The first incident was a Youth Court notation for indecent assault in 1974. Mr Martin told the psychologists who have assessed him that this offending arose when he pushed a young girl who was riding her bicycle into a bush. He was only
14 years old at the time. He denies that there was a sexual element to the
offending. There was no summary of facts available in relation
to this
conviction and, in any event, given Mr Martin’s age at the relevant time,
I do not consider that there is much assistance
to be gleaned from
it.
[31] The second incident, resulting in two convictions for unlawful sexual connection and a conviction for rape in 1992, arose from events in 1990. It is directly relevant. I have been provided with a copy of the judgment of the Court of Appeal in relation to that offending.18 A young woman was set upon, severely beaten and robbed of her jewellery in the small hours of the morning of 9 August
1990. Mr Martin appeared shortly thereafter. He initially assisted the woman and said that he would take her to the police. She got into his vehicle. As they drove off, he drew her attention to the fact that he had a knife in the vehicle. He did not take her to the police, but rather to a deserted carpark. He then pulled her out of the vehicle, and subjected her to a brutal and sustained sexual attack. He sodomised her, put his penis in her mouth and raped her. He threatened her with the knife he had in the vehicle. She was thrown to the ground and beaten about the head. She was
bruised and cut and caused great pain. Mr Martin was convicted of two counts
of sexual violation by unlawful sexual connection and
one of sexual violation by
rape. The Court of Appeal described it as “... a truly wicked crime: a
gross abuse of the trust
a distressed and helpless woman had placed in [Mr
Martin] at his own invitation”.19 Mr Martin was initially
sentenced to 12 years’ imprisonment. That sentence was reduced to 10
years’ imprisonment on
appeal.
[32] Mr Martin initially denied but now accepts this offending. He
acknowledges that there was a rape. He says however that
the victim was his
mistress, and that she had been pressuring him to leave his pregnant partner.
He says that the offending arose
out of anger that he had towards the
victim.
[33] The third incident resulted in another conviction for rape. It occurred in 1999 when Mr Martin was 40 years old. I have been provided with a copy of the summary of facts and of Potter J’s sentencing notes.20 The victim had been socialising in a bar. She was approached by Mr Martin and he began talking to her. They remained at the bar until closing time. The victim then decided to go home. She went outside to catch a taxi. She was followed by Mr Martin, who invited
himself back to her place. The victim reluctantly agreed. When they entered the victim’s house, she gave Mr Martin a bottle of beer and was about to turn on a tape deck when Mr Martin grabbed her from behind, forcing her over a kitchen table. Mr Martin began kissing her. He then grabbed her breasts. The victim made it clear to Mr Martin that she was not interested. He then forced the victim out of the kitchen into a bedroom area, where he pushed her over a bed, so she was half on the floor. He parted her legs. The victim tried to kick and punch Mr Martin, and to resist what was happening. He raped her. During intercourse, he started kissing the victim on her breasts. The victim managed to push Mr Martin off before he ejaculated. She told him to leave. She rang a taxi. A short time later she went back into her lounge to find Mr Martin attempting to steal her television and video. She then went outside to wait for a taxi. She then discovered that Mr Martin had taken her vehicle and a Māori carving. Potter J imposed a sentence of 16 years’ imprisonment. She cautioned Mr Martin that were he to come before the Court again for serious violent
or sexual offending, that he would almost certainly be at risk of a sentence
of preventive detention.
[34] Mr Martin continues to deny this offending. He says that he had a
reasonable belief that the victim consented, and that
the charge was only
maintained because the victim was angry at him for stealing her
belongings.
[35] Ms Prasad conceded, albeit somewhat hesitantly, that these latter two incidents of serious sexual offending over a period of nine years do suffice to show a pervasive pattern of serious sexual offending by Mr Martin. In my view that concession was properly made. I note that in the context of the propensity rule, a
single previous conviction can, in some situations, show propensity.21
Two incidents
resulting in convictions for rape and sexual offending, both showing a
disregard for or an indifference to issues of consent, are
sufficient. I am
satisfied that Mr Martin has or has had a pervasive pattern of serious sexual
offending.
Are the criteria set out in s 107IAA(1) met?
[36] I have set out the section above – para [14]. As I have
noted, before I can determine that Mr Martin poses a high
risk of committing a
relevant sexual offence, I must first be satisfied of each of the mandatory
criteria set out in s 107IAA(1).
They are in effect jurisdictional conditions
precedent to the Court finding that an offender poses a high risk of committing
a relevant
sexual offence.
[37] Pursuant to s 107IAA(1)(a), I am required to be satisfied that Mr
Martin
“displays an intense drive, desire or urge to commit a relevant sexual
offence”.
[38] The sub-section uses the present tense – “displays”. What is required is an assessment as at the date of the hearing for the extended supervision order, informed by what has occurred in the past, in an endeavour to anticipate what might happen in the future. The statutory language – “intense drive, desire or urge” – is strong. It
conveys a sense of immediacy. What is in issue is whether or not the
offender
displays an intense drive, desire or urge as at the date
of the hearing, and not what drive, desire or urge he or she displayed in
the
past.22
[39] Turning to Mr Martin, it was clear from the reports which have been
made available to the Court that there have been three
particular matters which
are relevant when considering this first criterion.
[40] First, the 1990 and the 1999 offending was committed when Mr Martin
was a chapter president in the Black Power gang. Mr
Martin has reported that he
engaged in non-consensual sex within the prevailing gang culture. Mr Martin was
assaulted while he was
in custody. He was stabbed. This caused him to leave the
Black Power gang. As a result, he has put the negative links associated
with
gang culture behind him. Both Ms McFadden, who is a consultant psychologist
retained by Ms Prasad to assess Mr Martin, and
a Ms Biswell, who is a registered
psychologist with the Department of Corrections, have expressed the view that Mr
Martin has since
shown insight into his sense of entitlement and lack of
understanding of the issue of consent when he was in the Black Power gang,
as
well as of other factors that may have limited the womens’ ability to
refuse sex or withdraw consent.
[41] Secondly, Mr Martin has successfully completed the Adult Sex
Offender Treatment programme course offered by the Department
of Corrections.
Mr Martin began the preparatory phase for the programme in June 2012, and
commenced the core treatment programme
in August of that year. He completed the
core programme in April 2013. It appears that his engagement in the programme
has changed
his thinking towards sex, and the associated issue of
consent.
[42] Following his completion of the Adult Sexual Offender Treatment programme, Mr Martin was referred for individual psychological treatment. The purpose of that treatment was to review the skills he had learnt on the programme. Mr Martin engaged in approximately 15 sessions between 29 April 2014 and 7
December 2015. In addition to individual treatment, he also
attended group
maintenance sessions.
22 cf s 1071(2)(a) – “... has, or has had, ...”
[43] On 9 March 2016, a Ms Biswell, prepared a final treatment progress
report for Mr Martin. It was made available to me.23 That report
recorded that Mr Martin had engaged well in the sessions, that rapport had been
readily re-established and that Mr Martin
presented as being motivated and well
prepared. All homework was completed to a high standard. Gains were observed
in a number
of areas. It was noted as follows:
(a) Mr Martin had worked diligently on treatment targets,
(b) Mr Martin had demonstrated an ability to deal with stressors in
prison in pro-social and productive ways;
(c) Mr Martin had increased his skills in interacting with adult
females;
(d) Mr Martin was less self-focused in his conversations with others
and less intense and demanding;
(e) Mr Martin had developed a clear process for considering issues of
consent in sexual relationships. Mr Martin had also
developed the necessary
skills to act assertively should he be invited to engage in casual sexual
encounters;
(f) Mr Martin had acknowledged the difficulties that occurred when he
was on parole in 2010 and 2011. He had developed improved
and assertive
communication skills;
(g) Mr Martin had maintained the skills of rational and consequential
thinking learnt in the programme. This had been verified
across a range of
interpersonal interactions; and
(h) Mr Martin had updated his safety plan prior to his release from
prison.
[44] Thirdly, when he was released from custody, Mr Martin went
on to participate in the Landmark Forum and the Man
Up programme. In the
Landmark
programme, Mr Martin shared his
life history with other participants. This involved him talking in front of
approximately 150 people.
One of the support persons who observed Mr
Martin’s speech noted that many people were moved and inspired by the
things he
shared.
[45] Mr Martin has been further assessed now that he is back in the
community. He appears to have put into practice the skills
he had learnt in
treatment both over time and across different contexts – including
in a potentially difficult family
context. He has been encouraged to
continue to utilise his support network to mitigate high risk situations, and to
seek guidance
as necessary. He has also been encouraged to continue to develop
the skills he has learned to minimise the risk of reoffending and
to assist him
to achieve his goals in remaining offence-free. It seems that he has done so.
Mr Martin has re-established links
with his support people. He has disclosed
his criminal record when appropriate. He has obtained regular employment and
he was
still employed as at the date of the hearing. Ms McFadden spoke to
various of the support persons familiar with Mr Martin. All
spoke favourably
of their interactions with him since his release.
[46] All of these matters bear on the issue of whether or not Mr Martin
currently displays an intense drive, desire or urge
to commit a
relevant sexual offence. Further, I received evidence from three
psychologists. Two of them, Mr van Dyk and Ms
McFadden interviewed Mr Martin at
length. The other, Ms Ludbrook, who is a clinical psychologist with the
Department of Corrections,
had reviewed Mr van Dyk’s report.
[47] Mr van Dyk’s report was prepared in May/June 2015 and it is
dated 31 July
2015. He interviewed Mr Martin at some length, and reviewed a
number of materials relevant to any assessment of him.
In relation to whether
or not Mr Martin displays an intense drive, desire or urge to commit a relevant
sexual offence, Mr van Dyk
observed as follows:
During his approximately 41 year criminal history, Mr Martin has five detected sexual offences against three victims. Sexual compulsivity has been identified as a risk factor due to Mr Martin’s repeated offences of similar nature and his demonstrated preoccupation with pursuing sexual gratification in the past. He has also reoffended within a short time frame following release from prison for prior sexual offending.
In summary, despite having a sexual pre-occupation or elevated sex drive in
the past that included promiscuity, there is not sufficient
evidence to indicate
that Mr Martin has demonstrated an intense drive or urge to commit a further
sexual offence or that such an
urge has persisted over recent time. He has also
not yet had the opportunity to demonstrate generalisation of his skills (and
consequential
thinking) into a community setting since his recall.
[48] Ms McFadden’s report is much more recent. She interviewed Mr
Martin in February and March of 2016, and her report
is dated 4 April 2016. In
relation to the criterion set out in s 107IAA(1)(a) she commented as
follows:
On the basis of the data gathered within the current assessment there was not
sufficient evidence of Mr Martin currently presenting
with an intense drive,
desire or urge to commit a relevant sexual offence.
Mr Martin is a diverse offender. He has five convictions for sexual
offences. His sexual offending is low frequency relative to his
other offending
behaviour. As part of this assessment Mr Martin disclosed a pattern of non-
convicted sexual behaviour that he now
views as harmful. This behaviour largely
occurred within the context if his role as a senior member of a gang and was
likely viewed
as normative within this context. As a result of treatment Mr
Martin has insight to the potentially harmful nature of this behaviour
and his
failure to understand or account for issues of consent. His understanding of
these issues and the associated cognitions
and behaviours is a primary area of
treatment gain.
Although his sexual drive may have been high historically there is no current
evidence to support the presence of sexual preoccupation
and/or an elevated
sexual drive. He was incarcerated for 16 years and since his release on parole
he has not relapse[d] to historical
patterns of behaviour. Mr Martin had a
stable relationship in 2010/11 while on parole. There is no evidence of him
engaging in harmful
sexual behaviour within this relationship.
[49] Ms Ludbrook peer-reviewed Mr van Dyk’s report. She prepared
a brief report dated 4 May 2016. She had not assessed
Mr Martin personally.
However it was her opinion that Mr van Dyk’s report contained “mixed
evidence” in relation
to Mr Martin’s drive, desires and urges. She
stated as follows:
If the focus in responding to this question is more short term and immediate, then it is agreed that Mr Martin has engaged appropriately in intensive therapeutic intervention (within a prison context), that there has been an absence of offence paralleling behaviours while incarcerated, and his transition and reintegration into the community has progressed appropriately to date (over the past seven months). However, if one responds to this question from a lifespan perspective (i.e. across time and context), then there is clear evidence of a pattern of intense drive, desire and urge to commit a relevant offence across Mr Martin’s lifespan.
[50] All three witnesses were cross examined on their respective views.
Mr van Dyk stated that he had made reasonable efforts
to update himself
regarding Mr Martin’s circumstances, and that he remained of the
view that there was not sufficient
evidence to show that Mr Martin displays
an intense drive, desire or urge to commit a relevant sexual
offence.
[51] Ms McFadden was asked whether she disagreed with Ms Ludbrook’s
assessment. She confirmed that she did. She accepted
that Mr Martin previously
engaged in inappropriate sexual encounters, but observed that her comments were
based upon relevant sexual
offending, and not encounters. She noted that there
were only two incidents for serious sexual offending. She continued to hold
to
the view that she expressed in her evidence in chief.
[52] Ms Ludbrook also stuck by her comments. She accepted that she had
not assessed Mr Martin herself, and that she had simply
reviewed Mr van
Dyk’s report. She nevertheless maintained her view that there was mixed
evidence. She reiterated that if you
were looking at the criterion “...
from a more immediate short term perspective ... then you may suggest that that
item isn’t
present ...”, but that incorporating both a short term
perspective and a lifespan perspective, weighting could be placed on
the whole
picture, leading to a conclusion that the criterion had been shown to be present
over Mr Martin’s life span. In
cross examination however, she accepted as
follows:
Q. Now when you talk about – I believe the statement in your
report was evidence of a pattern of intense drive, desire
or urge. When you
talk about a pattern, you’re essentially looking back in the past,
aren’t you?
A. Correct.
Q. So it’s sort of a retrospective assessment?
A. I would – I don’t know how you’d frame it but I’d just refer to it as a
lifespan pattern.
Q. Now so what you’re saying is that Mr Martin may have
demonstrated such an intent, drive, desire or urge, is that correct?
A. Demonstrated a pattern over time.
Q. Okay, so it’s demonstrated rather than demonstrates?
A. Correct.
When she was cross examined about the difference between her view and that of
Mr van Dyk, she accepted that they both had different
clinical opinions and
neither she nor Mr van Dyk had done a follow up report on Mr Martin. She said
that she had raised her concerns
about what she regarded as mixed evidence with
Mr van Dyk at the time his report was prepared, and she accepted that he had
declined
to change his report as a consequence. She accepted that that was
acceptable, and that Mr van Dyk, as a health assessor, would
have his own
clinical opinion.
[53] In addition to the above, I record that I have also read all of the various reports made available to me in their totality. I note that Mr van Dyk considers that Mr Martin poses a high risk of committing a relevant sexual offence while in the community. Ms McFadden considers that Mr Martin poses a moderate to high risk within five years of his release. She also expresses the opinion that there is reliable and valid evidence to support the conclusion that Mr Martin has been able to reduce his risk of sexual re-offending as a result of the treatment he has engaged in since
2013. She notes that since his release in August 2015, Mr Martin has
maintained an offence-free lifestyle.
[54] Ultimately I must make my own finding, albeit assisted by
the views expressed by the expert health assessors.
[55] Having considered all of the materials available to me, I am not
satisfied that Mr Martin currently displays an intense drive,
desire or urge to
commit a relevant sexual offence. Mr Martin is 56 years old. It seems to me
that he has made every endeavour
to turn his life around. Indeed, I consider
that there is little more that he could have done.
[56] Having reached that conclusion, I do not need to go on to consider the other criteria set out in s 107IAA(1)(b) – (d). Nor can I go on to consider whether or not Mr Martin poses a high risk of committing a relevant sexual offence. My finding in relation to the matters set out in s 107IAA(1)(a) precludes me from doing so.
[57] The Chief Executive’s application for an extended
supervision order in respect of Mr Martin is declined.
The interim
supervision order currently in place is vacated.
Costs
[58] The Costs in Criminal Cases Act 1967 applies, with
all necessary modifications to proceedings brought under Part 1A of the Parole
Act.24
[59] I anticipate that counsel will be able to agree on costs. If there
is any difficulty, then I make the following directions:
(a) any memorandum by Mr Martin seeking costs is to be filed within 10
working days of the date of this judgment;
(b) within a further 10 working days, any memorandum in reply is to be
filed on behalf of the Chief Executive of the Department
of Corrections.
[60] I will then deal with the issue of costs on the papers, unless I
require the assistance of
counsel.
Wylie J
24 Parole Act, s 107G(11).
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URL: http://www.nzlii.org/nz/cases/NZHC/2016/1060.html