Chief Executive, Department of Corrections v Dennis [2018] NZHC 712 (18 April 2018)

Last Updated: 24 May 2018

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE

CRI-2017-409-110 [2018] NZHC 712

THE CHIEF EXECUTIVE DEPARTMENT OF CORRECTIONS

v

MICHAEL PATRICK DENNIS

Hearing:	18 April 2018
Appearances:	P A Currie for the Applicant N Wham for the Respondent
Judgment:	18 April 2018

JUDGMENT OF DUNNINGHAM J

Introduction

[1] In March 2013 Mr Dennis was convicted of indecently assaulting a female under 12 years and of unlawful sexual connection with a female under 12 years. He was sentenced to six years’ imprisonment with a minimum period of four years’ imprisonment. On 19 December 2017, in accordance with s 107FA of the Parole Act 2002 (the Act), Mander J imposed an interim supervision order until a full hearing for an extended supervision order (ESO) could be heard.¹

¹ Chief Executive of the Department of Corrections v Dennis [2017] NZHC 3205.

THE CHIEF EXECUTIVE v MICHAEL PATRICK DENNIS [2018] NZHC 712 [18 April 2018]

[2] The Crown now applies for that full extended supervision order (ESO) for a period of 10 years commencing today on the grounds that Mr Dennis has, or has had, a pervasive pattern of serious sexual offending, and that there is a high risk that he will, in future, commit a relevant sexual offence. The Crown also seeks that special conditions are imposed, on an interim basis, pursuant to s 1071A to take effect from the date the ESO is made until the Parole Board determines what, if any, special conditions are to be imposed. The interim special conditions sought are the same as those imposed under the order that was made on 19 December 2017.

[3] While Mr Dennis initially opposed this application, he now consents to it. Notwithstanding his consent, I must still explain whether I am satisfied that the statutory criteria for making an order have been met.

Background facts

[4] Mr Dennis is now 53. In May 2012, he visited a woman he had known at school and began a sexual relationship with her. During a five-day visit to her home, he touched her six-year-old daughter’s vagina on multiple occasions. On at least one occasion, he kissed the victim on her mouth and placed his finger inside her vagina, having to force her crossed legs apart to do so.

[5] At sentencing, Woodhouse J considered preventive detention, but recognised that Mr Dennis was yet to complete intensive offence-focussed treatment. He therefore imposed a finite sentence of six years’ imprisonment.

[6] In 1998 Mr Dennis was also convicted of 30 serious sexual offences against children in Victoria, Australia. These comprise sexual penetration of a child under the age of 10 years (23 convictions) and committing an indecent act with a child under the age of 16 years (7 convictions). These sexual assaults were against a sole female victim who lived next door and they took place over two and a half years, while the victim was between seven and nine years old and Mr Dennis between 31 and 34 years old.

[7] I do not intend to outline the offending suffice to say that the offending escalated to the point where Mr Dennis was raping the child on a weekly basis. He
reported that he occasionally showed her adult pornography, trying to normalise his sexual assaults, and to encourage her to participate in his sexual offending.

[8] In December 1998 Mr Dennis was sentenced to 12 years’ imprisonment for this offence. He served nine years and five months’ before being deported to New Zealand in 2008.

Law

[9] Under s 107F(1)(a) of the Act, the Chief Executive of the Department of Corrections may apply for an ESO in respect of an eligible offender where the offender is subject to a sentence of imprisonment, at any time before the later of the sentence expiry date or the date on which the offender ceases to be subject to any release conditions.

[10] For an ESO to be made, Mr Dennis must be an “eligible offender” under s 107C of the Act. As he has been sentenced to imprisonment for a relevant offence,² is not subject to an indeterminate sentence, and has not ceased to be subject to release conditions, he fulfils the s 107C criteria. As required by s 107F(2), the application made for an ESO was accompanied by a report by a health assessor, namely Ms Katrina Beach.

[11] The purpose of an ESO is to protect members of the community from offenders who, following receipt of a determinate sentence, pose a real and ongoing risk of committing serious sexual or violent offences. A sentencing court may make an ESO if the court is satisfied that Mr Dennis has, or has had, a pervasive pattern of serious sexual offending, and there is a high risk that he will in future commit a relevant sexual offence. The term of the order must be the minimum period required for the purposes of the safety of the community in light of the level of risk posed by Mr Dennis, the seriousness of the harm that might be caused to victims, and the likely duration of the risk. The term of the order must not exceed 10 years.

² Under s 107B(2).

[12] Section 107IAA provides that the court may determine that there is a high risk that Mr Dennis will commit a relevant sexual offence only if it is satisfied that he:

(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: or

(ii) An absence of understanding for or concern about the impact of his sexual offending on actual or potential victims.

[13] When deciding whether to impose an ESO, the court is entitled to take into account any evidence or information that it thinks fit for the purpose of determining the application, whether or not that would be admissible in a court of law.³

Health Assessor’s report

[14] The material which the Court has in relation to these matters is largely drawn from the report of Ms Beach, a psychologist. She notes that Mr Dennis recognises that he has a problem with sexual attraction to prepubescent girls and that he used the Australian victim for his own sexual gratification, however, she says that he did so in a “rote and somewhat reluctant manner”. In relation to the offending at hand, Mr Dennis demonstrated what she described as an “overarching self-focus and absence of empathic consideration for others in the face of sexual opportunity”.

[15] Ms Beach notes that Mr Dennis was “apparently unaware of his victims’ distress and was not deterred by their opposition or possible detection and instead he

³ Section 107H.

was solely focussed on his own sexual gratification... His only concern about the offending, during the period when the offending occurred on both occasions, was about the negative effects upon himself, should the offending be discovered. This strongly suggests an entrenched self-focus and limited willingness or ability to understand interpersonal harm between adults and children”.

[16] Mr Dennis has received three periods of treatment from three sources: prison psychologists in Australia in 2001 and 2002, the Kia Marama Special Treatment Unit in 2015; and a Departmental psychologist from the Christchurch Psychologists’ Office in 2017. Ms Beach records that while Mr Dennis cooperated with treatment, he did not engage fully. He completed the Kia Marama programme but was removed from the graduates’ programme as he was considered not to be using the programme to work on his goals. Once he was removed, he appeared to take on a ‘victim’ stance and appeared unable to accept constructive feedback. In the most recent sessions with a psychologist, Mr Dennis acknowledged that he was still attracted to prepubescent girls but that his insight into potentially risky scenarios is still limited.

[17] Ms Beach ultimately considers that Mr Dennis poses a high risk of further offending against prepubescent girls within 10 years of release. Although Mr Dennis has actively sought treatment, it is possible that this is motivated more by his wish to avoid the negative consequences of offending for himself, rather than being primarily driven by any concern for future victims. She notes that he has little personal and community support, he has enduring problems with dealing with stress and other negative emotional states, and there are no realistic plans for his future employment and accommodation. Ms Beach considers that Mr Dennis requires informed and assertive external support to develop and maintain a sexually safe lifestyle.

[18] I accept, and the respondent does not contest, those conclusions.

Interim supervision order

[19] As I said, in December 2017, Mander J made an interim supervision order until the substantive hearing. In his decision issued on that date he stepped through the considerations in s 107IAA, and he considered that Mr Dennis fulfilled each criterion. At that time, counsel for Mr Dennis conceded that he was an eligible offender with a
high risk of committing a relevant sexual offence in future, but disputed that electronic monitoring which was sought in conjunction with the interim supervision order, was necessary.

[20] However, Mander J considered that, on a provisional basis, the applicant had made out that Mr Dennis demonstrated a pervasive pattern of serious sexual offending and that there was a high risk of sexual reoffending within 10 years of release. So he held that the statutory grounds for an ESO had been provisionally made out, and granted an interim supervision order with a number of conditions including electronic monitoring. Electronic monitoring was thought necessary in light of the primacy which needs to be given to the safety of the community, and in light of the nature of the risk that Mr Dennis, at least provisionally, presented.⁴

[21] Since the interim supervision order was made, Mr Dennis, having obtained his own health assessor’s report, now consents to the imposition of an ESO along with further interim special conditions reflecting those that were imposed under the interim order made on 19 December 2017.

Analysis

[22] In light of the conclusions of Ms Beach, and following Mander J’s reasoning,⁵ I accept that each matter in s 107(IAA) is satisfied. I therefore consider that it is appropriate to impose an ESO, along with continuing interim special conditions which are the same as those imposed on 19 December 2017.

[23] Essentially, no new material has been introduced which would displace or call into question, the provisional findings of Mander J. I also consider that in light of the identified lack of self-regulatory capacity and the need for “external oversight and contingencies” to reduce Mr Dennis’s risk of re-offending, the interim special conditions, including electronic monitoring, should continue at least until the Parole Board is able to consider what special conditions should be imposed in the long term.

⁴ At [46].

⁵ At [39]-[45].

Conclusion

[24] In conclusion, given Mr Dennis has, or has had, a pervasive pattern of serious sexual offending and there is a high risk that he will, in future, commit a relevant sexual offence, I grant an ESO, as sought, for a period of 10 years commencing today. I also impose, pursuant to s 107IA, the same interim special conditions as were imposed on 19 December 2017.

Solicitors:

Raymond Donnelly & Co., Christchurch N Wham, Barrister, Christchurch