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High Court of New Zealand Decisions |
Last Updated: 3 August 2018
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ORDER PROHIBITING PUBLICATION OF NAMES, ADDRESSES OR IDENTIFYING
PARTICULARS OF THE COMPLAINANTS.
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IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY
I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE
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CRI-2018-485-28
[2018] NZHC 1821 |
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THE CHIEF EXECUTIVE OF THE DEPARTMENT OF
CORRECTIONS
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v
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SCOTT SIMEON THOMPSON
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Hearing:
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6 and 18 July 2018
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Appearances:
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S C Carter for the Crown
J M Robertson and J Bonifant for the Defendant
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Judgment:
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18 July 2018
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ORAL JUDGMENT OF GRICE J
[1] The Chief Executive of the Department of Corrections applies for an extended supervision order against Mr Thompson. The maximum that can be sought is 10 years.1
[2] Mr Thompson is presently in prison as he was sentenced on 2 December 2003 to a total of 14.5 years’ imprisonment with a minimum non-parole period 9.5 years.2 Mr Thompson’s release date is 1 August 2018.
1 As per s 107A(c) of the Parole Act 2002, the order may last for not more than 10 years at a time.
2 R v Thompson HC Hamilton T.025644, 2 December 2003.
THE CHIEF EXECUTIVE OF THE DEPARTMENT OF CORRECTIONS v THOMPSON [2018] NZHC 1821 [18 July 2018]
[3] The mother of the complainant from the 2002 offending made oral submissions at the hearing. She read out a statement.3 She opposes Mr Thompson being released without an extended supervision order.
Mr Thompson’s relevant sexual offending
[4] Mr Thompson’s first instance of sexual offending occurred in 1997 (the 1997 offending). He was convicted of two charges of sexual violation, both pertaining to a woman he had a sexual relationship with at that time.
[5] The first conviction for sexual violation by unlawful sexual connection related to an incident when, following consensual intercourse, Mr Thompson inflicted injuries on the complainant causing significant lacerations to the victim’s vagina requiring hospitalisation and surgery.
[6] His second conviction for sexual violation by rape involved an incident that was more serious in nature as it involved prolonged abuse, threats of violence and forced anal intercourse. The complainant collapsed and was taken to hospital unconscious. At his sentencing, the Judge referred to Mr Thompson’s “dominating and arrogant” conduct in general through the period in question.4 As a mitigating factor, Mr Thompson submitted his partner had provoked him through what he regarded as inappropriate conduct with two people he knew. He was sentenced to nine years imprisonment for those charges, as well as two charges of male assaults female.
[7] In 1998 when Mr Thompson was still a serving prisoner for the above offending, he commenced a relationship with his new partner which lasted until eight months after his release in February 2002. During the course of that relationship, Mr Thompson subjected his new partner to significant violence on a number of occasions, mainly triggered by domestic incidents (for instance, the children’s untidy bedroom or her refusal to buy him a car).
4 R v Thompson HC Rotorua T.88/96, 4 June 1997 at 2.
[8] Mr Thompson was also convicted of two charges for sexual offending against his new partner’s 7-year-old daughter. Mr Thompson’s conviction for indecent assault on a female under 12 involved him touching her genitals when she was in bed with her mother and Mr Thompson. The charge of sexual violation by unlawful sexual connection occurred immediately after the offending discussed above, when Mr Thompson left the room with the complainant and forced the her to suck and rub his penis. The offending stopped when the child’s mother came out of the bedroom. Mr Thompson told the child not to tell her mother or else he would give her a hiding.
He gave the child money and bought her lollies. The sentencing judge said:5
h) You are assessed as being at a high risk of re-offending. Your motivation and readiness to change is assessed as low as you have re- offended while on parole. You have, to a large degree misrepresented yourself to your parole supervising probation officer and you have not taken responsibility for any of the current matters. You were reluctant to be involved in the interview process.
[9] Preventative detention on the 2002 offences was considered but not imposed in 2003.
Eligible offender
[10] There is no dispute that Mr Thompson is an “eligible offender” with convictions for “relevant sexual offences”.6
[11] Mr Thompson has convictions for four “relevant offences”; three convictions for sexual violation (two by way of unlawful sexual connection and one by rape) and one conviction for indecent assault with a female under 12.7 Mr Thompson is also presently serving a sentence of imprisonment. Therefore, he is an “eligible offender”.8
The legislative framework
[12] The Chief Executive of Corrections may apply for an extended supervision order before the expiry of a defendant’s sentence or the lapsing of a previous order.9
5 R v Thompson above n 2, at [6(h)].
6 Parole Act 2002, ss107B(2) and 107C.
7 Section 107B.
8 Section 107C.
9 Section 107F; Chief Executive of the Department of Corrections v Martin [2016] NZHC 1060 at
The application must be accompanied by a report from a health assessor addressing specified matters.10 The Court cannot “rubber stamp” health assessor’s reports.11 The Court must explain why the evidence is accepted and make a conclusion based on an individualised assessment, taking into account all of the relevant factors.12
[13] An extended supervision order allows the imposition of a penalty to restrict an individual’s freedom because of what a court considers they might do in the future. It is not a penalty for past offending.13
[14] The order may be varied in certain circumstances by the Parole Board and it may be cancelled by the Court at any time on the grounds that the offender does not pose a high risk of sexual offending within the remaining term of the order.14
[15] The legislation also provides for the standard terms of an order and allows the imposition of intensive monitoring conditions.15 The Parole Board may impose special conditions on an offender.16 These include residential restrictions or intensive monitoring within the first 12 months of the order, a requirement to participate in rehabilitation programmes, restrictions on the use of drugs and alcohol and electronic monitoring.
[16] The Parole Board must review any “high impact” condition of an extended supervision order.17 The Court must also review an extended supervision order after 15 years of consecutive orders and every five years after that date.18
[17] An order places considerable restrictions on the freedom of the offender. I must be satisfied there is jurisdiction to make the order, and if there is, that an order is warranted on the basis of the evidence.19
[18].
10 Section 107F.
11 Barr v Chief Executive of the Department of Corrections CA60/06, 20 November 2006 at [32].
12 R v Peta [2007] NZCA 28, [2007] 2 NZLR 627 at [7].
14 Parole Act 2002, ss 107M and 107O.
15 Section 107IAC.
16 Sections 107K and 107IA.
17 Section 107RB.
18 Section 107RA.
19 Chief Executive of the Department of Corrections v Martin, above n 9, at [23].
[18] The Court of Appeal in Alinizi set out a three-step process in its consideration of the imposition of an order:20
(a) The Court must determine whether the offender has, or has had a pervasive pattern of sexual or violent offending;
(b) The Court must make a specific finding as to whether the offender meets the qualifying criteria set out in s 107IAA;
(c) If those criteria are met, the Court must make a determination about the risk of the offender committing a relevant sexual or violent offence.
[19] The Court of Appeal in McDonnell noted that there is no burden of proof involved in an application for an order but rather the Court must be “satisfied” for the purposes of s 107I(2).21 A Court simply “makes up its mind” as it does in preventative detention applications.22
The arguments
[20] The Department makes an application for an extended order in relation to Mr Thompson on the basis that he “has or has had a pervasive pattern of serious sexual offending” and that “there is a high risk that the offender will in future commit a relevant sexual offence”.23 The Department argues that he meets the four mandatory and conjunctive requirements set out in s 107IAA(1)(a) to (d), and is at a high risk of reoffending.
[21] Mr Thompson says the statutory requirements for the imposition of an extended supervision order are not met in the following respects:
20 Chief Executive of the Department of Corrections v Alinizi [2016] NZCA 468 at [13].
22 At [72].
23 Parole Act 2002, ss 107I(2)(a) and 107I(2)(b).
(a) The fundamental threshold has not been met because the Court cannot be satisfied, as required, that Mr Thompson has or has had a pervasive pattern of serious sexual offending;24 and/or
(b) That the four mandatory and conjunctive factors in s 107IAA, of which the Court must be satisfied before it can go on to determine there is a high risk of reoffending, are not met.
Does Mr Thompson have or has had a pervasive pattern of serious sexual offending?
[22] The first issue this Court must consider before it is able to impose an extended supervision order is whether the offender has, or has had, a “pervasive pattern of serious sexual or violent offending”.25 There is no evidential burden in terms of the pre-requisites upon which I must be satisfied under that section. I must come to a judicial decision on the evidence.26
[23] In Martin, Wylie J noted that this question should be read in light of s 107I, which notes the purpose of an extended supervision order is to “...protect members of the community from those who, following receipt of a determinative sentence, pose a real and ongoing risk of committing serious sexual ... offences”. 27
[24] The Department brings this application on the basis that Mr Thompson had a pervasive pattern of serious sexual, rather than violent, offending. At the outset of the hearing the Department sought to extend the ambit of its application by submitting that Mr Thompson’s offending indicated there was a pervasive pattern of violent offending. However following submissions on behalf of Mr Thompson, it conceded that relying on the “violent offending” alternative was outside the scope of the application as filed. It therefore withdrew its submission.
24 Section 107I(2)(a).
26 Holland v Chief Executive of the Department of Corrections [2016] NZCA 504 at [12].
[25] I have already summarised Mr Thompson’s relevant sexual offending. He has been found guilty of four relevant sexual offences arising from three separate incidents. The first two were committed in 1997 and involved considerable sexual violence inflicted on his adult partner. The second two were committed in 2003 and involved sexual activity with a seven-year-old child in a domestic setting, with a threat by Mr Thompson to hurt her if she told her mother, his new partner.
[26] When Mr Thompson was sentenced for his 2002 offending, the Judge commented that Mr Thompson lacked any remorse in relation to the previous 1997 sexual offending and that he was assessed at high risk of re-offending. His readiness to change was classified as low.28 The Judge specifically noted Mr Thompson refused to cooperate with the two psychiatrists who had been commissioned to provide reports to the Judge for sentencing in view of the option of preventative detention.29 The Judge in consideration of preventative detention due to that lack of cooperation. The Judge said he was not assisted in assessing future risk of either sexual or violent offending through these reports. Despite this, he concluded there was no discernible pattern in the qualifying sexual offending at that point. Nevertheless, he considered there was a clear indication of a tendency by Mr Thompson to commit violent, violent sexual or non-violent sexual offending insofar as the reports were concerned. The exact nature and circumstances of the offending was, however, a matter of conjecture.
[27] Mr Thompson had, by the time of that sentencing, completed a number of programmes without any apparent change to his behaviour or otherwise. He continued to regard himself as a victim and tried to shift the blame for the offending to the victim and others.30 The Judge said:31
j) The conclusion is that these offences collectively (and to some extent severally), represent a sinister pattern of physical and psychological abuse by you against your then partner, and that the sexual offending against the infant complainant further exacerbates your already precarious position. You understand that the Court was looking at preventive detention. Overall you impressed the Probation Officer as manipulative and lacking any insight into your own propensity to damage and negatively impact the lives of others. The
28 R v Thompson, above n 2, at [6(n)].
29 At [28].
30 At [6(i)].
31 At [6(j)].
recommendation by the probation officer was, not surprisingly, imprisonment.
[28] The two incidents in 1997 were seen as connected. They showed an indifference to whether or not the victim his partner consented and the effect of the offending on her. In addition, Mr Thompson blamed her and acted in a dominating and arrogant manner toward the victim generally.32
[29] The 2002 offending was against a backdrop of domestic violence, although that violence had been committed against the child’s mother. This is not an application based on violent offending, nevertheless this background remains relevant. His new partner had been left with injuries ranging from black and swollen lips to broken fingers and a broken rib. At least one assault happened in front of one of the children. On another occasion, an outbreak of violence by Mr Thompson was precipitated by the children’s toys being untidy. Another substantial beating of his partner was triggered by her refusal to buy him a car. In the midst of administering this beating Mr Thompson took a child to work and came home extremely angry because of what he thought the mother had told the child. In that incident Mr Thompson broke the child’s mother’s ribs and threatened to kill her and the children.
[30] In the 2002 sexual offending Mr Thompson chose a child victim who was under his domestic control. He was indifferent to her age and inability to consent. He did not consider the emotional impact of the offending on the child. The sentencing notes disclose subsequent disturbing changes in her behaviour. Mr Thompson still refuses to discuss the offending against that child. To that extent the health assessors in this case face similar problems to that of the psychiatrist at the sentencing in 2003. Nevertheless, the present health assessor’s reports by Mr Fourie contain far more than information than was obviously able to be gleaned from that of the psychiatrist engaged before Mr Thompson’s 2003 sentencing. I have had the benefit of more thorough and extensive information than was before the sentencing Judge. I had three reports from two health assessors before me. Mr Fourie’s initial report was dated November 2017 and was updated in June 2018. Mr Riley’s report was requested by Mr Thompson and is dated May 2018. The health assessors are appropriately qualified
32 R v Thompson, above n 4, at 2.
psychologists in terms of the legislation. No issue has been taken with either of their qualification to provide the reports.
[31] In his 9 November 2017 report, Mr Fourie says:
Mr Thompson’s offending history highlights the indiscriminate nature of potential future victims of sexual re-offending. Future victims of sexual offending could be an adult female intimately known to him or against a female child familiar to him or for whom he has parental responsibilities. The absence of more detailed information about the child sexual offence provides a challenge to formulate a detailed offence pathway and to provide a likely re- offence scenario. The following statement should therefore be considered tentative. It is likely that a future sexual offence against a child could be committed as a means for instant sexual gratification in order to satisfy his sexual needs against a vulnerable victim.
[32] The Court is entitled to consider all of the evidence it has before it.33 The offending occurred in domestic situations, using threats of violence,34 and in situations where Mr Thompson was in a position of dominance and control over the victim.
[33] In CJW, Venning J said:35
I am satisfied that there is evidence that Mr W has an intense drive or urge to commit violent assaults against others. Whether that urge or drive is unleashed will depend on the situations that Mr W finds himself in.
[34] Although these comments were made in the context of considering whether the offender displayed an intense urge or drive to commit the relevant offences, it applies equally here to confirm that the relevant offending cannot be divorced from the circumstances. Here, Mr Thompson’s sexual offending cannot be seen in isolation from the domestic circumstances in which it is likely to occur. I have set out those circumstances above. I am satisfied that Mr Thompson has or has had a pervasive pattern of serious sexual offending.
33 Parole Act 2002, s 107H(2).
34 R v Thompson, above n 4, at 2; R v Thompson, above n 2, at [5(j)].
35 Chief Executive of the Department of Corrections v CJW [2016] NZHC 1082 at [35].
Are the criteria in s 107IAA(1) of the Parole Act 2002 met?
[35] In order to impose an extended supervision order, I must be satisfied of each of the mandatory prerequisites set out in s 107IAA(1) of the Parole Act 2002 are met. Section 107IAA(1) provides:
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.
[36] These are in effect jurisdictional conditions that must be present before finding Mr Thompson poses a high risk of committing a relevant sexual offence.
Does Mr Thompson display an intense drive, desire or urge to commit a relevant sexual offence?
[37] Under s 107IAA(1)(a), I must be satisfied Mr Thompson “displays an intense drive, desire or urge to commit a relevant sexual offence”.
[38] This section requires a demonstration of an intense drive, desire or urge to be present now, rather than previously.36 The assessment must be undertaken as at the date of the hearing, confirmed by what has occurred in the past, in an endeavour to anticipate what might happen in the future.
36 Chief Executive of the Department of Corrections v Martin, above n 9, at [38].
[39] The Court of Appeal in Alinizi confirmed that the word “displays” (as it applies to aspects of a person’s personality traits and behavioural characteristics in the context of an extended supervision order) requires that the relevant traits or behaviour characteristics to be present, but does not require that they are externally manifested at the time of the application.37
[40] Mr Thompson argued that his sexual offending never came from a place of drive, desire or urge to commit sexual offences – it rather came from a drive to be vindictive, humiliate and impose his will through dominance. Mr Thompson also points to Mr Fourie’s comments that the evidence of an intense drive, desire or urge to commit the relevant sexual offence is mixed – he was unable to state with confidence that Mr Thompson did have an intense drive to commit relevant sexual offences.
[41] Again I refer to Mr Fourie’s comments in his November 2017 report:
That Future victims of sexual offending could be an adult female intimately known to him or against a female child familiar to him or for whom he has parental responsibilities.
In the absence of more detailed information about the child sexual it is difficult to assess the likely circumstances, but Mr Fourie said it could be sexual gratification. It is likely that a future sexual offence against a child could be committed as a means for instant sexual gratification in order to satisfy his sexual needs against a vulnerable victim.
[42] He went on to say:
The historical sexual offending against his then partner was perpetrated in the context of intimate partner violence, likely precipitated by his reliance on control through violence and retribution for perceived wrongdoing. It is not considered to have been due to an intense sexual drive but rather a vindictive drive to humiliate and to impose his will through dominance. The writer conceptualised the nature of his historical sexual offence as an extension of Mr Thompson’s personality traits triggered by mistrust
37 Chief Executive of the Department of Corrections v Alinizi, above n 20, at [27].
and his need to control and dominate. The index violence victim offence elicited similar emotional reactions in Mr Thompson without him resorting to sexual violence against her. However, during the index offending period Mr Thompson sexually offended against one child victim on one occasion. Overall, in the writer’s opinion there is mixed evidence for the presence of an intense drive, desire, or urge to commit a relevant sexual offence. The writer is therefore unable to state with confidence that Mr Thompson has an intense drive to commit a relevant sexual offence.
[43] It appears that the nature of Mr Thompson’s sexual offending is an extension of his personality traits which are triggered by mistrust and a need to control and dominate. Section 107IAA(1)(a) does not assess motivation, rather the Court is to assess the offenders present drive, urge or desire to commit relevant sexual offences. Therefore, while his motivation to offend may be related to a vindictive drive to humiliate and to impose his will through dominance over vulnerable victims in a domestic situation, this does not diminish or change the fact that he may have urge or drive to commit relevant sexual offences. There are many motivations that trigger sexual offending. Domination and control are common motivations for such offending.
[44] In Mr Riley’s May 2018 report, he noted that Mr Thompson was not willing to discuss matters relating to the sexual aspect of his most recent offending. He said:
... He made it clear that he was not willing to discuss matters pertaining to the sexual aspect of his most recent offending, which he has maintained to other professionals who attempted to engage him in the assessment process. He provided his reason for this as concerns which he had about the process of his trial, and particularly matters to do with the prosecution’s failure to disclose certain matters, which he considered disadvantaged him. He has made comment to others that he has taken the opportunity to raise this matter with other counsel and they have indicated to him that his contention is not without merit. Notwithstanding Mr Thompson’s decision to refrain from any discussion of his sexual offending, he appeared to answer my questions directly, and his answers were consistent with information documented on his file, and I did not feel that he was making significant efforts to portray himself in a positive light, nor to excuse any aspects of his behaviour which have been documented on institutional files.
[45] Mr Thompson gave the reason for his failure to discuss the child sexual offending to concerns he had about the process of the trial and matters to do with the prosecution’s failure to disclose certain matters which he considered disadvantaged him. This is consistent with the reasons outlined by Mr Fourie in his report.
Mr Thompson also reported to Mr Riley that he had disclosed at a group therapy session and that the same information that had been taken out of the session. It resulted in an incident which he had to defend himself against a violent attack from a fellow prisoner. He said that was why he would not engage in the group counselling sessions which were offered to him. I take into account these reasons, but do not consider they are sufficient to restrict my ability to consider Mr Thompson’s lack of cooperation with the preparation of the reports insofar as his failure to discuss child sex offending.
[46] The Court of Appeal in Alinizi commented on the difficulties faced by a Judge when an offender would not cooperate with the report writers.38 The Court of Appeal acknowledged that health assessor reports are key when looking at whether an offender has an intense drive to commit the relevant sexual offence.39 This is because the psychologist relies on self-reporting and subsequent behaviour to establish if an intense drive is still present and offenders that deny their offending are unlikely to self- report. They haven’t had an opportunity, being in prison, to display an intense drive to reoffend. If there has been a lack of compliance with the assessment process then it is easy to ‘fool’ a court.
[47] Under s 107H(3) of the Parole Act 2002, I am able to consider an offenders lack of co-operation with the preparation of the health assessors report. I must take into account any reasons given for the refusal to cooperate with the preparation of the health assessor’s report.40 I have dealt with these above.
[48] Mr Thompson has refused to acknowledge his sexual offending against his adult victim. He refuses to acknowledge, although does not deny, his offending against the child. This refusal to discuss his offending, particularly when it comes to assessing his urge, desire or drive to relevantly sexually offend, presents difficulties for the Court. However, Mr Thompson has four convictions for three separate instances of sexual offending. This supports the inference that Mr Thompson has an urge or desire to sexually offend. He has failed to acknowledge his offending, he has failed to seek treatment specifically for his sexual offending and therefore he still is likely possesses
38 At [23] - [28].
39 Chief Executive of the Department of Corrections v Alinizi, above n 8, at [23] – [28].
40 Parole Act 2002, s 107H(3).
the characteristics that he had when he originally committed the offences. Mr Thompson, through his refusal to discuss his sexual offending, has been unable to show the Court that he does not still have a drive, desire or urge to relevantly sexually offend.
[49] Further, Heath J in Wrigley noted that “past behaviour is the best predictor of future behaviour. The nature, extent and duration of the offending that occurred in the period between 1997 and 2002 evidences a pattern of behaviour that is indicative of an urge or desire to offend in that way.”41 A matter of months after getting out of prison in 2002 for sexual offending, Mr Thompson sexually offended again. As in Wrigley, this supports that Mr Thompson presently has a drive, urge or desire to commit relevant sexual offences.
[50] I acknowledge that is difficult for Mr Thompson to demonstrate the skills and insights gained through the one to one counselling he has received, as he has not been able to demonstrate its effects in the circumstances in which his offending occurs. However, this difficulty has been amplified by his refusal to discuss his offending.
[51] The situation remains that Mr Thompson continues to display the intense drive, desire or urge to commit a relevant sexual offence. This drive is not externally manifested, in part due to the of lack of opportunity Mr Thompson has had to show his ability to cope as he has refused to co-operate with the report writers and is presently in prison. For the reasons given above I am satisfied that this prerequisite has been met.
Does Mr Thompson show a predilection or proclivity for serious sexual offending
[52] Under s 107IAA(1)(b), I must be satisfied Mr Thompson “has a predilection or proclivity for serious sexual offending”.
[53] “Proclivity” for serious sexual offending has been interpreted to encompass the concept of a pattern.42 The offending must be serious and at the higher end of the
41 Chief Executive of the Department of Corrections v Wrigley [2015] NZHC 1712 at [40].
42 Holland v Chief Executive of the Department of Corrections, above n 26, at [41].
range in order to justify an order.43 A “predilection” is more akin to something like a preference or particular liking and proclivity is “...an inclination towards something considered morally wrong, such as sexual offending...”.44
[54] I put to one side Mr Thompson’s earlier offending, which was for driving offences and other minor offending. Mr Thompson argued that these offences indicate he does not have a predilection for serious sexual offending as most of his offending has been non-sexual. I note that an offender can have more than one predilection in terms of offending, and therefore the fact that he has been convicted of other types of offending does not detract from the fact that he may have a predilection for serious sexual offending.
[55] Mr Fourie reached the conclusion that Mr Thompson showed the requisite proclivity. He said:
Mr Thompson’s overall history does not suggest a clear preference for serious sexual offending. Although restricted by long periods of incarceration he has been able to form and maintain age appropriate sexual relationships and reported a preference for such sexual relationships. The rapid rate of sexual re-offending after being released on parole against a different victim type could indicate an inclination to commit a serious sexual offence. Mr Thompson’s unwillingness to discuss his behaviours and cognitions leading up to and during the child sexual offending and denial of the adult sexual offences did not pose a challenge during the assessment. However, the writer is of the opinion that the versatility in victim type and the rapid rate of sexual re-offending following release does provide evidence of proclivity for serious sexual offending.
[56] I am satisfied that Mr Thompson meets the prerequisite of showing a predilection or proclivity for serious sexual offending. The rapidity of his sexual offending upon his release from prison for the 1997 sexual offending shows a clear inclination toward serious sexual offending.
Does Mr Thompson have limited self-regulatory capacity?
[57] Under s 107IAA(1)(c), I must be satisfied Mr Thompson “has limited self- regulatory capacity”.
43 At [44].
44 Chief Executive of the Department of Corrections v Wrigley, above n 40, at [44].
[58] Mr Thompson had attended 32 sessions with a psychologist since May 2017 and has had 8 treatment sessions with a senior psychologist since November 2017. Treatment appears to be helping him, but it was not yet complete at the time Mr Fourie interviewed him in June 2018. There are indications that Mr Thompson has become better at self-regulation and his behaviour in custody has significantly improved over his behaviour in earlier years. Mr Thompson is showing improvement in his accommodation in the self-care units which involves living in a flatting situation, his cooperation with other offenders and his work ethic are also improving. This has been recognised by prison staff and in his work place. He travels into the community everyday by bus and associates with others at his work place.
[59] Nevertheless, Mr Fourie was of the view that despite Mr Thompson’s level of self-regulatory capacity improving, it remained insufficient. The difficulty is that it is hard to assess Mr Thompson’s self-regulatory capacity in relation to sexual offending when he is not faced with the circumstances that have triggered his offending in the past.
[60] All of Mr Thompsons previous sexual offending has occurred within the context of a domestic setting. While he has shown improvement in his ability to control his life overall and in how he interacts with others, the last time he was released he reoffended quickly. The difficulty also remains that Mr Thompson does not want to discuss his child sex offending, making an assessment of Mr Thompsons self- regulation limited in this respect. No questions have been answered about why he engaged in the offending and under what circumstances it might occur again.
[61] Based on the evidence before me, I am satisfied that Mr Thompson continues to have a limited self-regulatory capacity.
Does Mr Thompson accept responsibility, show remorse, concern or understanding of the impact of his offending on victims?
[62] Under s 107IAA(1)(d), I must be satisfied Mr Thompson displays both or either “a lack of acceptance of responsibility or remorse for past offending” and/or “an absence of understanding for or concern about the impact of his or her sexual offending on actual or potential victims”.
[63] Mr Thompson does not accept that he sexually offended against the child. Mr Fourie noted that he also has limited understanding of the harm he has caused to his victims. Mr Thompson does not deny this is the case. Mr Riley noted that it was difficult for Mr Thompson to show empathy to victims because of his own early experiences.
[64] In the circumstances, I am satisfied that he does not accept responsibility or nor does show remorse, concern or understanding of the impact of his offending on his victims.
Is there a high risk that Mr Thompson will in the future commit a relevant sexual offence?
[65] The final limb of the assessment is whether the Court is satisfied that there is a high risk that Mr Thompson will, in the future, commit a relevant sexual offence.
[66] The Department refers to Mr Fourie’s key findings in relation to the risk assessments. In Mr Fourie’s November 2017 report, he noted that Mr Thompson had completed an earlier psychological assessment, in which the Millon Clinical Multiaxal Inventory – third edition (MCM-III) was completed.. Mr Fourie noted the measure was not re-administered in Mr Thompson’s most recent assessment as personality traits are considered to be enduring and therefore the results were considered valid for the present purposes. The results indicated that Mr Thompson’s scores pointed to highly clinically significant personality features relating to avoidance, sadistic (aggressive) masochistic (self-defeating) and paranoid personality traits. These personality traits may present as pervasive suspiciousness and a tendency to attribute hostile motives to others above what the evidence warrants. This, Mr Fourie said, may lead to pre-emptive actions in which they inflict hostile punishment in response to a perceived threat. Mr Fourie considered these personality descriptions were consistent with Mr Thompson’s presentation during the assessment, his self-report, custodial behaviour and offending history.
[67] The RoC*RoI actuarial risk measurement was also administered. This is a static risk measurement, meaning it relies on factors that are unchangeable by individual effort (such as criminal history). It indicated Mr Thompson was at a
low/moderate risk of imprisonment within five years of release. However, that risk measure did not incorporate Mr Thompson’s Australian conviction history and Mr Fourie considered it under represented risk level and therefore was not considered an accurate tool for this assessment.45
[68] The STATIC-99R tool was also administered to measure the static risk of sexual recidivism. It relies on demographic and criminal history information. Mr Thompson’s score on this measure placed him in the above average risk category for being charged or convicted of another sexual offence.
[69] A further measure used was the Violence Risk Scale, Sexual Offender Version and (VR:SO) in which Mr Thompson was assessed overall as being in the high-risk category.
[70] Both the STATIC-99R and the VRS:SO measures take into account Mr Thompson’s age. Mr Thompson will be 50 next year. The estimated sexual recidivism rate for the high-risk group with the same total VRS:SO score as Mr Thompson after five years was 19.5 per cent and at ten years was 30 per cent. Mr Fourie in his evidence confirmed that given Mr Thompson’s age, the risk of his sexual reoffending, as indicated by the research, would decrease over the ages of 50 to 59. He said the risk at two to three years beyond the age of 50 was very high but there remained a high risk for up to five years after reaching 50.
[71] A further risk assessment that was used to assess Mr Thompson’s risk of intimate partner (domestic) violence recidivism, was the Ontario Domestic Result Risk Assessment (ODARA). On this measure Mr Thompson was assessed as being in the highest risk category.
[72] Mr Fourie summarised his views based on the multi method assessment of Mr Thompson’s risk of further relevant reoffending and clinical indications as follows:
45 Mr Riley challenged this view, as he says the incorporation of the Australian convictions might not have the level of impact on the statistical model as assumed. However, he commented that it was “true to a degree”.
SO ratings, ODARA, and noted clinical factors in particular his personality profile, it is considered that there is a high risk of Mr Thompson committing a further relevant sexual and/or violent offence while in the community. However, due to Mr Thompson’s high level of suspiciousness and a tendency to attribute hostile motives onto others his risk could increase to Very-High in an intimate relationship low on trust. Such a situation could lead to a desire to control and exert his dominance through violence or to inflict physical punishment in the face of perceived wrongdoing.
[73] In Mr Fourie’s June 2018 updating report he notes that Mr Thompson had, by that stage, received eight additional treatment sessions with a senior psychologist since the November report. In total Mr Thompson received 32 treatment sessions since he commenced the psychological treatment in May 2017. The report that Mr Fourie received from Mr Vasbenter, the psychologist delivering the treatment sessions, was positive. However, Mr Fourie said that Mr Thompson’s denial of culpability for the historical sexual offences and his unwillingness to either deny or acknowledge the child sex offences precluded the treating psychologist from addressing some of the sex offending specific dynamic risk factors in treatment. He said:
... Mr Vasbenter formulated the historical adult sexual offence as an extension of intimate partner violence rather than primarily motivated by deviant preference. The focus and treatment has therefore been on an emotion
regulation, relationship and interpersonal skills. Mr Vasbenter described treatment as not yet completed and recommends treatment to continue in the community following release. Mr Thompson said he was willing to continue with treatment and could see the benefit of doing so.
[74] Mr Fourie noted:
(a) Mr Thompson had continued with a trajectory of improved behaviour in less restrictive environments such as the selfcare unit and the associated activity such as shopping and working in the community.
(b) Mr Thompson’s treatment and the associated behavioural improvements indicate some progression on following dynamic risk factors in relation to the violent risk scale bracket (VRS).
[75] Mr Fourie concluded:
[76] Therefore, Mr Fourie did not alter his views as expressed in his November report including those relating to Mr Thompson’s risk measures relevant to the matters that he was required to report on under s 107IAA.
[77] While Mr Riley, the other health assessor, had some criticism of Mr Fourie’s assessment of Mr Thompson according to the VRS:SO measure used, he noted that it was an entirely appropriate instrument for use in such cases. He also commented there was a level of unknown ambiguity and until such time as Mr Thompson cooperates with such the process, regarded the measure as at best, tentative.
[78] Mr Riley also emphasised that an issue that required consideration in making an assessment of Mr Thompson’s risk is his advancing age. Consistent findings in criminology is that criminal behaviour decreases as an offender ages and sexual recidivism is no exception. While the assessment tools were the subject of criticism by Mr Riley he did not suggest the measures used were inappropriate.
[79] Mr Riley notes that it was hard to assess Mr Thompson’s future risk of offending as he had declined to enter into a detailed assessment which involved an examination of his feelings and impulses associated with the area of his sexual offending and violence. This constrained his report.
[80] Mr Thompson will not discuss with psychologists on the sexual offending with the child. It means that the risk assessment is based on incomplete information. The reason that Mr Thompson advances for not providing the information is that he wishes to preserve his position in relation to some future, unspecified legal attack on his 2003 conviction. Mr Thompson claims he is looking at the possibility of taking further court action in relation his offending. It is not clear what further steps he will be taking in this regard. He exhausted his appeals against conviction through the Court of Appeal as well as the Supreme Court.46
[81] The health assessors have made assumptions given Mr Thompson’s failure to co-operate. Those assumptions must be made and relied upon in reaching the conclusions in this decision. It will be clear from the judgment I have relied to a large extent, although not exclusively on Mr Fourie’s report.
[82] I agree with the Department, I am satisfied there is a high risk that Mr Thompson will commit a relevant sexual offence.
Conclusion as to imposition of extended supervision order
[83] I am satisfied that grounds are made out for the imposition of an order on the evidence currently before me.
46 R v T [2006] 2 NZLR 577 (CA); Thompson v R [2006] NZSC 3.
How long should the order last?
[84] Section 107I(5) of the Parole Act 2002 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; and
(b) the seriousness of the harm that might be caused to victims; and
(c) the likely duration of the risk.
[85] The order must be made “for the minimum period required to achieve protection of vulnerable members of the community”.47 The maximum period of an extended supervision order is ten years.
[86] The Court is not concerned with ensuring the duration of an order is proportionate to the offences that have already been committed, but rather look to ensure the order is proportionate to the risk posed by the offender. The Court said in R v Peta:48
- [10] ... While the statement is correct as far as it goes, proportionality in relation to likely future offending is a relevant factor in setting the term of an ESO in the same way that there is an element of proportionality in deciding whether or not an ESO should be imposed: see the test enunciated above at [8]. This follows from the reference in s 107I(5)(b) to the seriousness of the harm that might be caused to victims. The more serious the likely future offences, the more serious the harm would usually be to victims. We also note that the likely seriousness of future offences is usually best predicted by reference to past behaviour (as discussed below at [45]).
[11] That said, the main focus in setting the term of any ESO must be on the safety of the community and, in particular, that of children and young persons, in light of the factors set out in s 107I(5). ...
[87] In this case Mr Thompson has denied the sexual offending. The previous offending is serious. The Court of Appeal in Alinizi said:49
47 Belcher v Chief Executive of the Department of Corrections (CA) [2006] NZCA 262; [2007] 1 NZLR 507, (2006) 22 CRNZ 787 at [108] citing Chief Executive of the Department of Corrections v McIntosh HC Christchurch CRI 2004-409-162, 8 December 2004 at [27].
48 R v Peta, above n 12, at [10] – [11] .
49 Chief Executive of the Department of Corrections v Alinizi, above n 20, at [38].
Where an offender categorically denies previous offending and consequently is unwilling to undertake treatment directed to the sexual offending, it would be open to a court to direct an ESO of the full ten year period.
[88] In that case an ESO, six years was considered sufficient for the development of a safety plan with protective factors which would safe guard the community as well as providing sufficient time for the offender’s behaviour to be monitored and assessed.50
[89] In this case, the Department submits that Mr Thompson should be subject to an order for a period of five years. I am guided by the risk assessment carried out by Mr Fourie. Mr Fourie commented that the highest risk period for Mr Thompson will probably within the first two to three years from when he is released in prison, but will remain high for up to five years. After five years there is a significant reduction in the re-offending rate for the high-risk group to which Mr Thompson belongs.
[90] I also note that the reduction in the risk of reoffending does not suddenly occur at age 50 or decrease in a staged fashion, but rather the reduction is demonstrated gradually through the age group of 50 to 59 years. In view of Mr Fourie’s evidence, which was supported by Mr Riley’s comments, the re-offending risk remains high from the ages of 50 to 55 years.
[91] In the circumstances, as Mr Thompson has shown considerable progress with his counselling, and before I considered whether this supported an order being made for less than five years.
[92] A further factor which is of concern is Mr Thompson’s continued denial of the child sex offending. Both health assessors noted the limitations this introduced both in assessing risk but also in appropriate treatment.
[93] For these reasons, I am of the view the order should be for five years. That will give sufficient time for further counselling and other therapy to be provided. It will also provide a better assessment of Mr Thompson’s ability to apply the skills and
50 At [40].
insights that he has demonstrated and outlined in the psychologists reports in a community setting.
[94] Mr Riley noted the need for collaborative and supportive assistance for Mr Thompson in his reintegration into the community. Mr Riley anticipated that Mr Thompson would experience significant difficulties on the way but cautioned against the implementation of an inflexible, restrictive management regime.
[95] Mr Thompson will automatically be subject to the standard conditions set out in s 107JA of the Act. Special conditions will be imposed by the Parole Board in due course.
Result
[96] I make an extended supervision order on the standard terms, proposed by the Department.51
[97] The extended supervision order shall come into force upon Mr Thompson’s release for a period of five years.
[98] If there are any further matters relating to his release or otherwise, leave is reserved for the matter to be brought back before me.
Grice J
Solicitors:
Crown Law Office, Wellington for Applicant Quay Legal, Wellington for Respondent
51 Parole Act 2002, ss 107J and 107JA.
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URL: http://www.nzlii.org/nz/cases/NZHC/2018/1821.html