Chief Executive, Department of Corrections v Van Der Plaat [2016] NZHC 3186 (21 December 2016)

Last Updated: 10 April 2017

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2016-404-000145 [2016] NZHC 3186

UNDER	Section 107F of the Parole Act 2002
BETWEEN	CHIEF EXECUTIVE, DEPARTMENT OF CORRECTIONS Applicant
AND	RONALD VAN DER PLAAT Respondent

Hearing:	8 December 2016
Counsel:	B D Tantrum and J M Blythe for Applicant M R Bott for Respondent
Judgment:	21 December 2016

_{JUDGMENT OF DOWNS J}

This judgment was delivered by me on Wednesday, 21 December 2016 at 2 pm pursuant to r 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Solicitors/Counsel:

Meredith Connell, Auckland.

M R Bott, Upper Hutt.

CHIEF EXECUTIVE, DEPARTMENT OF CORRECTIONS v VAN DER PLAAT [2016] NZHC 3186 [21

December 2016]

The issue

[1] The Chief Executive of the Department of Corrections seeks an extended supervision order in relation to Mr van der Plaat on the basis he has a pervasive pattern of serious sexual offending and poses a high risk of committing further sexual offences. Mr van der Plaat is 82 years old, and suffers dementia. He contends the statutory criteria are not met and an order will merely “set him up to fail”. Mr van der Plaat is subject to an interim supervision order.

Background

[2] On 28 November 2000 Randerson J sentenced Mr van der Plaat to a term of

14 years’ imprisonment in relation to sexual offending against his daughter, X.¹

Mr van der Plaat was convicted of: (a) Two charges of rape.

(b) One charge of indecent assault.

(c) Three charges of sexual violation by unlawful sexual connection. All charges were representative. Conviction followed trial.

[3] The offending began in Vanuatu. X was then nine years old. Mr van der Plaat was 36. The offending continued when she and Mr van der Plaat returned to New Zealand in 1983. X was then 22. It ended only when X left home at the age of 32. The Vanuatu offending did not attract any convictions for obvious jurisdictional reasons.

[4] Randerson J described the offending at sentencing. I cannot improve

His Honour’s summary:²

The sexual abuse which you perpetrated on your daughter was continuous and frequently repeated throughout the period of nearly 10 years when you lived in New Zealand. It was not ordinary sexual abuse but was bizarre in

¹ _{R v van der Plaat HC Auckland T000615, 28 November 2000.}

² At [6]–[11].

the extreme and can only be described as depraved. In the early years, in Vanuatu particularly, you visited violence on your daughter to such an extent that she was too frightened to leave you, even in the adult years once you arrived in New Zealand. The sexual acts involved intercourse, digital penetration, oral sex, and the insertion of objects which your daughter described as particularly painful. These included bottles or any objects which came to hand.

You tied her up in acts of bondage during some of the sexual activity. In one particularly cruel and degrading incident you tied her by the ankles to the ceiling while she was naked and then performed upon her acts of indescribable cruelty. As well, you fastened items such as small bulldog clips to her nipples and private parts during the carrying out of your sexual fantasies. These matters, as well as others, form the basis for the indecent assault charges. At times you also gave her alcohol and drugs so that you could further your sexual activities with her. In effect you made her your sexual play thing, to do with her as you pleased. In doing so you took sadistic pleasure in the pain you caused. You so dominated her life and whole existence, that she has effectively been deprived of the years of her youth and young adulthood.

Throughout the whole period you took numerous photographs of her while she was naked. Some of these photographs can only be described as disgusting. You kept them in your house and they were found by the police upon your arrest, along with pornographic drawings which you had made your daughter carry out.

Near the end of the relationship your daughter became pregnant but she miscarried. It was at that point that she was finally able to leave and has since married and lived overseas. It was not until some years later that she felt sufficiently confident to make a complaint to the police.

When you were arrested in June last year you denied the offending, and have consistently denied ever since that any sexual activity occurred at all. Even now you continue to claim your innocence and have expressed no remorse at all for your conduct, except to say that you are sorry about the photographs. I have to say that your denial of the offending displays breathtaking arrogance given the overwhelming evidence against you. The jury’s verdict was fully justified and you will be sentenced accordingly.

There was also clear evidence during the trial, which I accept, that you attempted to dissuade a key Crown witness from coming to New Zealand to give evidence. Fortunately she was not dissuaded and gave compelling evidence against you.

[5] The Judge described the physical, emotion and psychological effects of the

abuse as “devastating”.³ And His Honour recorded X as saying Mr van der Plaat continued to pursue her even after she left home and had married.

³ R v van der Plaat, above n 1, at [12].

[6] On 10 February 2010 Mr van der Plaat was released on parole. The Parole Board imposed a number of special conditions. Mr van der Plaat was not to associate with, or otherwise have contact with, any person under the age of 16 years, unless under the direct supervision of an informed adult approved by a probation officer. He was also not to spend a night away from an approved parole address without prior approval of a probation officer. Mr van der Plaat sought to remove the first condition. That application was declined.

[7] On 2 September 2012 Mr van der Plaat was seen at the museum holding hands with a four-year-old girl, Y. It was later established he had been breaching parole conditions since either February or March 2012. In particular, Mr van der Plaat had:

(a) Commenced a relationship with Y’s mother, and so been in frequent

contact with Y.

(b) Sole care of Y the day he had taken her to the museum (from

12.30 pm until 5.30 pm).

(c) Taken Y and her mother away on three or four occasions overnight.

(d) Twice photographed Y while she was naked during an overnight trip to Wellington on 12 August 2012. More about this later.

[8] Mr van der Plaat told the pre-sentence report writer he was not given any documentation about his parole conditions when released from prison. He said he did not know he was breaching parole. In relation to the photography of Y, Mr van der Plaat said he gave all the photographs to her mother and did not keep copies. He also said he did not believe his actions were inappropriate. Mr van der Plaat said he saw no point in rehabilitative programmes as he was innocent of all offending. Mr van der Plaat was then considered to pose a high risk of re-offending.

[9] Mr van der Plaat pleaded guilty to three charges of breaching conditions of parole and one charge of making an intimate visual recording.⁴

[10] Judge Sinclair found Mr van der Plaat had groomed both Y and her mother. The Judge also found:⁵

There was repeated deception to your probation officer. You had regular meetings with the probation officer and you failed to disclose any pastimes or activities involving the victim. The fact that you did not mention your ongoing association with the victim and her mother indicates to me that you knew you were breaching your parole conditions.

[11] Her Honour imposed a cumulative term of 22 months’ imprisonment.

The evidence

[12] Mr van der Plaat has been assessed by three experienced health assessors: Dr Juanita Smith, Ms Hannah Cleland,⁶ and Ms Anja Isaacson. Ms Isaacson is retained by Mr van der Plaat. There is a good deal of agreement between the experts, but also significant disagreement. Each advances opinion evidence based on actuarial measures and clinical judgment. Most disagreement arises in relation to the latter.

Dr Smith

[13] Dr Smith is a registered clinical psychologist of substantial experience. She interviewed Mr van der Plaat on 14 September 2016. As with the other experts, Dr Smith employed two psychometric instruments: the Automated Sexual Recidivism Scale (ASRS), and the Violence Risk Scale Sexual Offender version (VRSSO). The former is a screening instrument designed to estimate the likelihood of further sexual offending. It is based solely on static factors. The latter is a tool developed specifically for use with sexual offenders. It considers dynamic factors,

_{meaning those which change, and static factors.}

⁴ _{Crimes Act 1961, s 216.}

⁵ _{R v van der Plaat DC Waitakere CRI-2012-090-6143, 3 May 2013 at [12].}

⁶ Ms Cleland was overseas at the time of the hearing. Mr Bott took no objection to her evidence forming part of the record on the basis he was able to cross-examine Dr Smith, whose opinion married that of Ms Cleland.

[14] Using the ASRS tool, Dr Smith assessed Mr van der Plaat as being in the medium-high risk category of re-offending. Thirty percent of those in this category commit a further sexual offence within 10 years (as against an overall sexual recidivism rate of 16 percent). Dr Smith assessed Mr van der Plaat as being in the high risk category through application of the VRSSO. 21.1 percent of those within this group commit further offences within five years; 32 percent within 10 years.

[15] Overall, Dr Smith considers there is a high risk Mr van der Plaat will engage in further relevant sexual offending.

[16] It is common ground many sexual offenders pose less risk when they reach “advanced age”. However, a small group of these offenders continue to pose risk. Dr Smith believes Mr van der Plaat falls within this group. Here, the most significant risk factor is sexual deviance. Dr Smith considers Mr van der Plaat’s offending exhibits this characteristic.

[17] Dr Smith considers Mr van der Plaat’s risk may be aggravated by dementia, because cognitive impairment may further erode his “poor personal boundaries”. Dr Smith cites an example from her interview of Mr van der Plaat. During it, Mr van der Plaat leant out of his chair and grabbed her thigh firmly for several seconds. Dr Smith said Mr van der Plaat apparently did so to emphasise a point. But she felt “quite shocked”. Nothing of this nature has happened to Dr Smith before.

[18] Dr Smith also considers Mr van der Plaat’s unwavering “categorical denial”

of any sexual offending aggravates his risk level.

[19] Dr Smith was troubled by a number of Mr van der Plaat’s responses during the interview. She considered he made repetitive statements “that seem almost scripted in quality”. Other answers she considered fabrications.

Ms Cleland

[20] Ms Cleland, a registered clinical psychologist, reached similar conclusions to Dr Smith. She placed Mr van der Plaat in the medium-high risk category on the ASRS scale, and in the high category on the VRSSO scale.⁷

[21] Ms Cleland considers there is a high risk Mr van der Plaat will commit further sexual offences within 10 years. As with Dr Smith, Ms Cleland does not believe Mr van der Plaat’s advanced age, dementia or decreasing physical capability diminish this risk level.

[22] Ms Cleland places weight upon Mr van der Plaat’s offending while on parole (at the age of 78). She notes a “component of cognitive impairment as a reduction in capacity to inhibit behaviour and an increase in cognitive rigidity”. The latter may affect Mr van der Plaat’s ability to manage risk through increased inability to process others’ responses.

Ms Isaacson

[23] Ms Isaacson is also an experienced registered clinical psychologist. She used one measure Dr Smith and Ms Cleland did not: the Static 2002R, which Ms Isaacson said had the advantage of being age-weighted. On this measure, Ms Isaacson considered Mr van der Plaat to present a low risk of re-offending. However, Ms Isaacson accepted she omitted to include the fact of a second victim (Y), which if included would increase the risk level to moderate-low.

[24] Using the ASRS instrument, Ms Isaacson concluded Mr van der Plaat fell within the medium-high risk group. However, Ms Isaacson considers this tool fails to account for Mr van der Plaat’s advanced age and other factors (such as his support

_network).

⁷ Ms Cleland also applied the Psychopathy Checklist Screening Version. She considers Mr van der Plaat demonstrates psychopathic tendencies, in turn aggravating risk. I placed no weight on this aspect of Ms Cleland’s evidence as Dr Smith testified cognitive impairment such as that suffered by Mr van der Plaat can affect the reliability of the Psychopathy Checklist.

[25] As will be recalled, Dr Smith’s and Ms Cleland’s VRSSO assessments placed Mr van der Plaat in the high risk category. Ms Isaacson’s use of this measure resulted in a moderate to high risk categorisation.

[26] Unlike Dr Smith and Ms Cleland, Ms Isaacson considers three factors mitigate Mr van der Plaat’s overall level of risk to “moderate”:⁸ age, cognitive decline (in consequence of dementia) and his “fundamentally pro-social and Christian attitudes”. To elaborate, Ms Isaacson considers Mr van der Plaat is in a sui generis category of sexual offenders, for whom actuarial tools and conventional risk assessment have limited applicability. In part this reflects Mr van der Plaat’s age and dementia. But another factor is at play: Ms Isaacson considers Mr van der Plaat’s sexual offending should be seen as confined to his daughter.

More particularly, Ms Isaacson believes:

(a) Mr van der Plaat’s offending on parole should not be regarded as sexual offending.

(b) Mr van der Plaat has demonstrated he is capable of not committing sexual offences for prolonged periods. She cites the seven year period when X left home until Mr van der Plaat’s arrest, and the absence of any offending while Mr van der Plaat was in prison. Or as she put it, “Considering all the information that I had available to me, it was significant that there was nothing that had generalised either in community or prison.”

[27] To recapitulate, the experts reach similar conclusions in relation to Mr van der Plaat’s risk-level through actuarial measures. But, they disagree on his overall risk-level by reference to clinical judgment. Age and dementia partially explain this division. However, the experts also interpret events differently. Dr Smith and Ms Cleland consider Mr van der Plaat’s record demonstrates a pattern of sexual offending, in part because they regard his parole offending as sexual in

_{nature. But whereas Ms Isaacson sees long periods of offence-free behaviour,}

⁸ Notes of evidence, p 51.

Ms Cleland tend to focus on his offending and related behaviours, including what

Dr Smith regards as Mr van der Plaat’s grooming of Y and her mother.

[28] This division also extends to whether Mr van der Plaat has: (a) An intense drive to commit a relevant sexual offence. (b) A predilection for serious sexual offending.

(c) Limited self-regulatory capacity.

[29] Dr Smith and Ms Cleland consider these criteria met. Ms Isaacson does not, again, for the reasons above.

The photographs

[30] Before addressing this conflict, it is necessary to say something about the two photographs Mr van der Plaat took of Y while on parole. None of the experts had seen the photographs before the hearing. Ms Isaacson has since seen them. On behalf of Mr van der Plaat, Mr Bott seeks leave to provide what he contends is expert opinion evidence in relation to them. As will be recalled, the photographs were taken while Mr van der Plaat was in a relationship with Y’s mother, and while he, Y and her mother were in Wellington for a night—all unbeknown to the probation service. Y was then four-years-old.

[31] Both photographs were placed in evidence by consent. Mr van der Plaat took a number of other photographs of Y, but these were described as “holiday-type” pictures, and of no significance beyond the fact they were taken while Mr van der Plaat was precluded from associating with children.

[32] Photograph 1 shows Y standing on a bed. The top of the photograph cuts off everything above her eyes. Y is naked. She is slightly to the right of the centre of the picture. Y’s genitalia are more or less in the middle of the picture. Y is expressionless. Mr van der Plaat told the Police Y had been jumping on the bed having fun when he took this photograph. The photograph does not record that.

[33] In my view, photograph 1 is composed. Y’s stance and position are unnatural. Her lack of expression is odd. I consider the photograph is sexual in nature. In this respect, the image is largely self-executing.

[34] Photograph 2 shows the complainant sitting in a bath with a bowl or dish over her genitalia. She is otherwise naked. As with photograph 1, the complainant in photograph 2 appears to expressionless. Her arms are by her sides. The complainant appears to be sitting still, as if invited to do so. Mr van der Plaat told the Police she had been playing in the bath, which was her first. She is not playing in the photograph. Unlike photograph 1, photograph 2 is not self-evidently sexual in nature, but it is an unusual picture. And unlike a photograph taken of a toddler in the bath by a parent, Y was not a toddler. Nor is Mr van der Plaat her parent.

[35] Ms Isaacson reaches different conclusions in relation to the photographs. She describes them in this way:

Both photographs are of a naked pre-pubescent female child who appears to be of Asian descent and under the age of six-years. Both photographs are of poor quality with grainy exposure and bad lighting. One photograph depicts a young girl sitting in shallow water in a bathtub with what appears to be a stainless-steel bowl in her lap; very little of her torso and no genitalia are visible. Another photograph is of the same young girl standing impassively with her arms at her sides on what appears to be an unmade bed; her naked body is exposed with the top of her head not in shot and the bedding covering her feet.

The young girl is not sexually posed and genitalia is not explicitly exposed. The young girl’s facial expression appears relaxed. Although the photographs are not considered “typical family photos” they do not suggest a quality that might satisfy sexual deviance. Both photographs appear to capture a detached event (i.e., girl in bath and girl jumping on bed) rather than being sexually suggestive (i.e., child sexually posed or genitalia clearly visible or magnified) or emotionally meaningful (e.g., expressed fear, happiness, excitement, etc.). It is considered that neither photograph would be typical of pornography or indecent images collected by child sex offenders. It is also considered that neither photograph is of the controversial art style of David Hamilton. Typically, child sex offenders tend to favour images of children where a clear suggestion of sexuality and latent eroticisim is evident.

...

Furthermore, for an avid photographer with reported past awards for photography of primitive pacific tribes, it is significant that the quality of the photographs is so poor. It is possible that this combined with his poor judgement were likely signs of some failing cognitive ability.

[36] I decline to receive this evidence, save for Ms Isaacson’s opinion neither photograph is typical of images collected by child sexual offenders. Ms Isaacson has no expertise in relation to what the photographs show, and her evidence is not substantially helpful.⁹

[37] The decision of the High Court of Australia in Honeysett v R illustrates the importance of identifying what an expert’s specialised body of knowledge is, and then inquiring whether his or her opinion is within that body of knowledge.¹⁰ Or in short, ensuring opinion evidence is given in accordance with applicable expertise. In that case, an expert witness said a person who appeared in CCTV footage of a robbery had characteristics consistent with the defendant. Both the trial Judge and the New South Wales Court of Appeal accepted the expert’s specialised knowledge was based on his study of anatomy and experience in viewing CCTV images. The

High Court of Australia disagreed, holding the opinion regarding each of the characteristics of the offender was based on the expert’s subjective impression of what he saw when he looked at the images.¹¹

[38] Ms Isaacson’s opinion is not grounded in clinical psychology, save as observed, on the question of whether the photographs are typical of the type possessed by a paedophile. Here, Ms Isaacson may be correct. But that does not change the sexual nature of photograph 1, or the fact it and photograph 2 were taken in the context of parole breaches. Furthermore, her evidence as to what the photographs show is not substantially helpful as it is lay opinion evidence, clothed in expert language, on a matter which is largely self-evident. And, had I admitted Ms Isaacson’s opinion into evidence, I would have rejected its material aspects for the reason I disagree as to what the photographs show.

[39] For completeness, Ms Isaacson’s report refers to Y’s mother being present

when the photographs were taken. The summary of facts is silent on this point, other than observing the mother told Mr van der Plaat to stop taking photographs of her

⁹ _{Evidence Act 2006, s 25.}

¹⁰ _{Honeysett v R [2014] HCA 29, (2014) 253 CLR 122.}

¹¹ New Zealand law has reached a different conclusion in relation to expert opinion evidence as to facial mapping: Shepherd v R [2011] NZCA 666, [2012] 2 NZLR 609. However, Honeysett’s importance lies in its insistence upon requisite expertise; not its conclusion on the particular facts.

daughter and he had no permission to do so. Judge Sinclair referred to the victim impact report as recording Y’s mother felt betrayed after she found out about these incidents.¹² So, whether Y’s mother was present is not clear. However, the summary of facts implies she was troubled by what occurred. All of this suggests a different context from that assumed by Ms Isaacson.

Extended supervision orders generally

[40] An extended supervision order may be imposed on an eligible offender¹³ when the Court is satisfied the offender has, or has had, a pervasive pattern of serious sexual offending and there is a high risk the offender will commit a relevant sexual offence.¹⁴ The Court must have regard to at least one health assessor’s report which “should not ... be rubberstamped”.¹⁵

[41] The Court must also be satisfied of the matters set out in s 107IAA of the

Parole Act 2002:

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.

¹² _{R v van der Plaat, above n 5, at [6].}

¹³ _{It is common ground Mr van der Plaat is an eligible offender within s 107C of the Parole Act.}

¹⁴ _{As defined in s 107B of the Parole Act.}

¹⁵ R v Peta [2007] NZCA 28, [2007] 2 NZLR 627 at [56].

[42] “Satisfied” in this context is synonymous with the approach in relation to the sentence of preventive detention. The Court must make up its mind; the term does not import notions of a burden or standard of proof.¹⁶

Does Mr van der Plaat have, or has he had, a pervasive pattern of serious sexual offending?

[43] The Act does not define “serious sexual offending”. In Holland v Chief Executive of the Department of Corrections the Court of Appeal held the phrase conveyed its ordinary meaning, noting “serious” means “important, grave; having (potentially) important, esp. undesired, consequences; giving cause for concern; of

significant degree or amount, worthy of consideration”.¹⁷

[44] Mr Holland’s more recent offending involved the importation and possession of sexualised photographs of children. He contended the concept of serious sexual offending did not extend to offending of that nature. The Court accepted not every case of possession and creation of objectionable material would necessarily be regarded as serious sexual offending. However, it rejected what it described as “an arbitrary distinction drawn between offences that involve direct physical contact and

those that do not”.¹⁸ It follows objectionable material offences or cognate offences

may constitute serious sexual offending, subject to circumstance.

[45] The section requires the offender to have, or have had, a pervasive pattern of serious sexual offending. So, the offender’s pattern of serious sexual offending must permeate or spread across his or her background. While this concept is also fact dependent, two offences committed nine years apart,¹⁹ and two counts of rape committed two weeks apart,²⁰ have each been treated as a pervasive pattern of

_{serious sexual offending.}

¹⁶ _{McDonnell v Chief Executive of the Department of Corrections [2009] NZCA 352 at [75].}

¹⁷ _{Holland v Chief Executive of the Department of Corrections [2016] NZCA 504 at [44].}

¹⁸ _{Holland v Chief Executive of the Department of Corrections, above n 17, at [48].}

¹⁹ _{Chief Executive of the Department of Corrections v Martin [2016] NZHC 1060.}

²⁰ Chief Executive of the Department of Corrections v Skudder [2016] NZHC 1717.

[46] None of the experts commented directly on this issue. Mr Bott submitted Mr van der Plaat did not have, and has not had, a pervasive pattern of serious sexual offending. I disagree:

(a) Mr van der Plaat’s offending in relation to X, his daughter, was committed from 1983 into 1992—at least in New Zealand. But as Randerson J noted, the offending began years earlier in Vanuatu (from

1969).

(b) As His Honour also observed, that offending “cannot be regarded as anything other than at the very upper level of seriousness in terms of cases of sustained abuse to come before the Court.²¹ The term of imprisonment imposed by the Judge (14 years’) speaks for itself as to the gravity of the offending.

(c) To this pattern must be added Mr van der Plaat’s photography of Y, and more particularly, his taking of at least photograph 1. It is clear from Holland conduct of this nature can constitute serious sexual offending. I consider photograph 1 falls into this category given the nature of the image, the fact it was composed, and associated circumstance. Mr van der Plaat was on parole in relation to offending committed on X. He ought not to have been with Y, still less with her and her mother in Wellington. Probation was ignorant of what was occurring. And that was because Mr van der Plaat deliberately refrained from telling his probation officer about his relationship with Y’s mother, Y, his contact with Y, and related overnight trips. The mix is troubling.

Does Mr van der Plaat display an intense drive, desire or urge to commit a relevant sexual offence?

[47] Dr Smith and Ms Cleland consider Mr van der Plaat does. Both experts place weight upon Mr van der Plaat’s offending in relation to his daughter, which Dr Smith

describes as “enslavement”. And both place weight on Mr van der Plaat’s offending

in relation to Y.

[48] Ms Isaacson is somewhat equivocal. She considers Mr van der Plaat’s

offence-free period in prison important. Ms Isaacson also observes:

Age related feebleness, high public profile and an intense desire to avoid prison serve as mitigating for Mr van der Plaat and that within positive, age- specific supported independent living, Mr van der Plaat is likely able to appropriately manage his sexual urges. Within the situation he should not have access to young or vulnerable adult females.

I assume Ms Isaacson’s reservation Mr van der Plaat should not have access to young or vulnerable adult females leaves open the possibility of the requisite sexual urge.

[49] The statutory provision uses the present tense. In Department of Corrections v Alinizi the Court of Appeal considered the criterion:²²

... is likely to be satisfied ... where there is nothing to suggest that such a trait formerly present no longer subsists. A court will very likely come to such a conclusion where, as here, an offender categorically denies the sexual offending for which he was convicted and as a consequence has been unwilling to undertake treatment to discuss sexual offending.

The observation is apt. Mr van der Plaat’s urge to commit relevant sexual offences has not abated. In reaching this conclusion, I place weight on Mr van der Plaat’s record and his unwavering stance he has never committed a sexual offence. I also place weight on Dr Smith’s testimony Mr van der Plaat is in a small category of older offenders who continue to exhibit risk, and her opinion Mr van der Plaat is sexually deviant. The latter captures his offending in relation to his daughter, and admittedly to much lesser extent, his photography of Y on the bed. The obvious should be stated: most people do not compose and retain a sexualised image of a young child, particularly while subject to sentence conditions attaching to earlier sexual offending.

Does Mr van der Plaat have a predilection or proclivity for serious sexual offending?

[50] Dr Smith and Ms Cleland consider Mr van der Plaat has a predilection or proclivity for serious sexual offending, largely by reference to his offending in relation to X.

[51] Ms Isaacson is more guarded. She considers Mr van der Plaat’s offending “did not generalise to multiple victims or indicate a predilection for prepubescent children”. However, Ms Isaacson also observes Mr van der Plaat’s “careless attitude towards disinhibition, nudity and sexual matters in the context of age and cognitive decline, may result in further offences depending on his access to victims”. This observation tends to undermine the antecedent proposition the offending should be seen as confined.

[52] I am satisfied this criterion is met. Mr van der Plaat’s criminal record itself demonstrates a predilection or proclivity for serious sexual offending. This holds true even if one puts to aside the more recent offending in relation to Y. Its addition buttresses the conclusion.

Does Mr van der Plaat have limited self-regulatory capacity?

[53] Dr Smith and Ms Cleland believe so. Again, these two experts refer to Mr van der Plaat’s record. Dr Smith also refers to Mr van der Plaat’s cognitive decline as possibly diminishing capacity for self-regulation. She cites the leg- touching incident as an example, and “minor agitation when [Mr van der Plaat was] confronted about his diminished self-care capacity”.

[54] Ms Isaacson is circumspect. She accepts Mr van der Plaat has “somewhat constricted self-control”, and appears to accept “this is vulnerable to become compromised with probable progressive cognitive decline”. However, Ms Isaacson says Mr van der Plaat has sufficient self-regulatory capacity. She did not elaborate.

[55] Mr van der Plaat’s offending implies he lacks the ability to self-regulate. The offence period in relation to X, his offending in relation to Y while on parole and the

parole breaches more generally support this conclusion. Ms Isaacson’s acknowledgement dementia may affect Mr van der Plaat’s self-regulation capacity is a responsible concession. As Dr Smith observes, dementia can disinhibit.

[56] I am satisfied Mr van der Plaat has limited self-regulatory capacity.

Does Mr van der Plaat display a lack of acceptance or responsibility?

[57] The statutory criterion is a little broader. The Court must be satisfied the offender displays a lack of responsibility or remorse for past offending, or has an absence of understanding for or concern about the impact of his or her sexual offending on actual or potential victims.

[58] Here, all the experts agree both limbs are satisfied. For example, Ms Isaacson observes Mr van der Plaat’s denial “has entrenched over time to a point where it is apparent that he has convinced himself that the index sexual offending against his daughter did not occur”. Dr Smith considers Mr van der Plaat “has consistently failed to accept responsibility or express remorse for his ... offending”, and she notes he has instead accused X of fabrication. And Ms Cleland is of the opinion, as are the other experts, Mr van der Plaat does not have an understanding of or concern for his victims. Plainly, this criterion is met.

Does Mr van der Plaat pose a high risk of committing a relevant sexual offence?

[59] This issue is central. The experts reach similar conclusions in relation to Mr van der Plaat’s level of risk through actuarial measures. But they disagree on his overall risk-level by reference to clinical judgment. As observed, age, dementia and interpretation of Mr Mr van der Plaat’s record drive this division of opinion.

[60] I consider the analysis advanced by Dr Smith and Ms Cleland is correct whereas that of Ms Isaacson is problematical. The latter first:

(a) With the exception of the Static 2002R measure, Ms Isaacson’s

actuarial tool use resulted in a moderate to high or high risk level

classification. Of course this does not mean Ms Isaacson’s clinical

judgment is wrong, but it does highlight its subjectivity.

(b) There is a difficulty in treating the seven-period between when X left the home and Mr van der Plaat’s arrest as a clean end to the offending, because Mr van der Plaat attempted to pursue X, a matter remarked on by Randerson J at sentencing.

(c) There is also a difficulty in viewing Mr van der Plaat’s incarceration as evidence of reform or offence confinement, and hence a platform for sui generis risk treatment. This is because Mr van der Plaat’s offending is characterised by a very high level of victim control, a matter that could not be readily recreated in a prison environment, even one with female staff. Absence of opportunity is not synonymous with absence of offending.

(d) It is also awkward to compartmentalise Mr van der Plaat’s offending given the order of its seriousness, duration and victim impact. Indeed, this is the elephant in the room.

(e) In any event, Mr van der Plaat’s parole offending in relation to Y is sexual in nature. Photograph 1 demonstrates that. So too context. While Ms Isaacson does not interpret these events in this way, Dr Smith and Ms Cleland do. Judge Sinclair too. Her Honour concluded Mr van der Plaat groomed Y and her mother. And given Mr van der Plaat’s convictions for offending against his daughter, the Judge had “concerns regarding the comments and references you made to the victim sitting on your lap, that she liked sitting on your

lap”.²³ The Judge also endorsed the Crown’s sentencing submission

Mr van der Plaat’s previous sexual offending aggravated his offending

_{in relation to Y.}²⁴

²³ _{R v van der Plaat, above n 5, at [12].}

²⁴ At [13].

(f) Ms Isaacson considers Mr van der Plaat has capacity to self-regulate and demonstrated some evidence of reform, citing for example, his Christian beliefs and Police cooperation in relation to Y. And yet Ms Isaacson also concludes Mr van der Plaat should not be in the company of children or vulnerable women. This tension is not easily resolved.

[61] Conversely, the analysis of Dr Smith and Ms Cleland is consistent with Mr van der Plaat’s record, the sexual deviance exhibited in relation to his daughter and to much lesser extent, Y. Or in short, what is known about Mr van der Plaat and his offending. Their analysis also better treats age and dementia. Mr van der Plaat presents as an individual for whom old age does not tell decisively against further offending. And, his dementia may further inhibit self-regulation. This view is

orthodox.²⁵

[62] Dr Smith considers Mr van der Plaat may re-offend by committing “any of a range of sexual offences”, and his likely victim would be “a female child of a vulnerable solo mother whom he befriends through offering financial, practical or other assistance and assumes a caregiving role ...”. This opinion fits the circumstances in connection with Y and her mother while Mr van der Plaat was on parole.

[63] Consequently, I accept Dr Smith’s and Ms Cleland’s expert opinion evidence there is a high risk Mr van der Plaat will commit further (relevant) sexual offending. In reaching this conclusion, I am mindful of Mr Bott’s submission denial in relation to sexual offending does not necessarily exacerbate risk. But as Dr Smith

observed:²⁶

A ... So if someone does deny categorically their offending there are other behaviours that become problematic that follow from that and do relate to risk. For example if we think of Mr Van Der Plaat’s case categorical denial means for him that he hasn’t engaged in treatment to address risk factors that might reduce his risk. That a categorical denial means that

²⁵ _{W v R [2016] NZCA 33.}

²⁶ Mr Bott also submitted Mr van der Plaat had commenced a form of psychological treatment.

Dr Smith said having seen the notes in relation to that treatment; it did not address offending related needs, particularly as Mr van der Plaat would not discuss sexual offending. The point dovetails with that above.

you cannot fully co-operate with Probation Service in terms of monitoring your risk and changes of that over time. It means that you are very unlikely to identify and avoid a high risk situation, and it means that you are still not experiencing an empathy for a victim that may be something you used to prevent further offending. And it means that you don’t inform networks around you about how to keep your safe. Those factors are relevant to risk and do come into risk assessment measures.

[64] Mr van der Plaat’s behaviour to date underscores the conclusion he is a risk to the public. Mr van der Plaat is a recidivist sexual offender.

Should I exercise the discretion not to make an order?

[65] Satisfaction of the statutory criteria does not mandate an order.²⁷ Mr Bott submitted an order should not be made against Mr van der Plaat as it would merely “set him up to fail” given his age and dementia. He contended Mr Van der Plaat may become confused and breach the conditions of the order, in turn exposing him to a cycle of criminal jeopardy.²⁸

[66] The argument has force. However, it confuses the propriety of an order with its enforcement. The primary purpose of an extended supervision order is public protection. Given the risk posed by Mr van der Plaat, an order is necessary. However, it does not follow any breach of the terms of the order, without more, will necessarily result in a prosecution or related sanction. Prosecutorial discretion exists

for good reason. And, it must be exercised in a principled fashion.²⁹

[67] Moreover, if Mr van der Plaat breaches the terms of the order and is prosecuted, he will enjoy all of the rights afforded to a defendant accused of a criminal charge. If doubt attaches to whether Mr van der Plaat is fit to be tried, there is a curial process to deal with that. Provision also exists for variation of conditions

_{of an extended supervision order,}³⁰ _{or an order’s cancellation.}³¹

²⁷ _{Parole Act 2002, s 107I(2).}

²⁸ _{Parole Act 2002, s 107T.}

²⁹ _{Crown Law Solicitor-General’s Prosecution Guidelines (1 July 2013).}

³⁰ _{Parole Act 2002, s 107O.}

³¹ Parole Act 2002, s 107M.

How long should the order be?

[68] Section 107I(5) provides:

107I Sentencing court may make extended supervision order

...

(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; and

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

(c) the likely duration of the risk

[69] The Chief Executive contends the order should be for a period of 10 years. It relies on the high level of risk posed by Mr van der Plaat, the seriousness of harm he may cause and the likely duration of the risk. As will be recalled, high risk offenders on the VRSSO instrument have a sexual recidivism rate of 21.1 percent within five years, and 32 percent within 10 years. Ms Cleland considers there is a high risk Mr van der Plaat will engage in sexual offending within 10 years of release. Ms Isaacson, however, considers Mr van der Plaat’s risk will decline with age and dementia.

[70] But for Mr van der Plaat’s age and dementia, I would have concluded a

10 year period would be the minimum necessary to protect the public. However, Mr van der Plaat is 82 years old. He will turn 83 within a matter of days. In these circumstances a 10 year term would be excessive—and blunt. No one knows how Mr van der Plaat’s dementia will affect his risk level. It may aggravate risk. Or ultimately mitigate it. Moreover, there is precedent for a defendant’s age to be treated as a relevant consideration in determining the duration of an extended

supervision order.³² In these circumstances, I settle upon a lesser term of five years

_{for a period commencing today.}³³

32. Chief Executive of the Department of Corrections v Rimene [2015] NZHC 2721 at [43]. See also Chief Executive of the Department of Corrections v Broderick HC Whangarei CRI-2005-

_{454-12, 13 December 2006.}

³³ Parole Act 2002, s 107L(1)(c)(i).

Special conditions of the order

[71] The Chief Executive seeks interim special conditions mirroring those of the interim supervision order on the basis the Parole Board will not have time to set special conditions before the order comes into force.³⁴ This is appropriate in the circumstances, particularly given the time of year.

Result

[72] Mr van der Plaat is subject to an extended supervision order for a period of five years commencing today, governed by the interim special conditions set out in the schedule to this judgment.

...................................

_{Downs J}

³⁴ Parole Act 2002, s 107IA.

_Schedule

Interim special conditions

(a) To attend and complete any programmes, treatment or counselling to the satisfaction of your Probation Officer and programme provider(s). Details of the appropriate programme to be determined by your Probation Officer.

(b) Not to undertake or attend culture, craft and creative development programmes, classes, clubs and/or such activities, without the prior written approval of your Probation Officer.

(c) To continue to live at the current address and not to move from that address, or any subsequent approved address, without the prior written approval of a Probation officer.

(d) Not to be found away from your approved residence between 10 pm and

6 am daily without the prior written approval of your Probation Officer.

(e) Not to start, terminate or change your paid or unpaid, temporary or voluntary work without the prior written approval of your Probation officer.

(f) Not to have in your possession or use any device capable of taking photos or recording images.

(g) Not to approach, enter or remain, in any area that children under 16 years of age are likely to congregate including any children’s park, school, kindergarten, beach (an area adjacent to a seashore), museum, child care centre, library, or any other areas defined by your Probation Officer unless with the prior written consent of your Probation Officer.

(h) To comply with any Health Service/General Practitioner directions including attending medical appointments and, with your consent, taking prescribed medication.

(i) To comply with the requirements of electronic monitoring and provide access to your approved residence to the Probation officer and representative of the monitoring company for the purpose of maintaining the electronic monitoring equipment as directed by the Probation Officer.

(j) To submit to electronic monitoring in the form of Global Positioning System (GPS) technology as directed by a Probation Officer in order to monitor your compliance with any condition(s) relating to your whereabouts.

(k) To notify your Probation officer upon establishing, developing or maintaining a friendship/relationship with a person who has care of children under the age of 16 years old.