Chief Executive, Department of Corrections v P

• Jurisdiction: New Zealand
• Judge: Mallon J
• Judgment Date: 10 February 2017
• Neutral Citation: [2017] NZHC 135
• Docket Number: CRI 2015-485-69
• Court: High Court
• Date: 10 February 2017

BETWEEN

Chief Executive, Department Of Corrections

Applicant

and

P

Respondent

[2017] NZHC 135

CRI 2015-485-69

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

Application by the Chief Executive, Department of Corrections for an Extended Supervision Order (ESO) in respect of the respondent — application by the respondent for name suppression under s200 Criminal Procedure Act 2011 — the Chief Executive neither consented to nor opposed the name suppression application — the respondent had been found guilty following trial of numerous sexual offending charges — he was sentenced to 13 years imprisonment — the parties had agreed a five year ESO with stringent conditions — the respondent argued that publication of his name could result in negative reactions and intimidation with which the respondent would have significant difficulty in coping and which would affect his chances of rehabilitation — whether an ESO should be imposed for five years or longer — whether the prospect that vigilante action would endanger the respondent's rehabilitation met the extreme hardship requirement for name suppression, and outweighed the open justice considerations.

Appearances:

J O'Sullivan (6 July 2016) and S Carter (10 February 2017) for the applicant

M Bott for the respondent

JUDGMENT OF Mallon J

Introduction

1 In 2003 P pleaded guilty to and was convicted of dishonesty offences. 1 He was found guilty following trial and convicted of stupefying (x2), 2 stupefying with intent to facilitate the commission of a crime (x6), 3 kidnapping (x3), 4 sexual violation by unlawful sexual connection (x4), 5 indecent assault (x4); 6 and burglary

(x1). 7 His sentence was 13 years imprisonment. 8 No minimum period of imprisonment was imposed

2 In April 2015 P was released from prison. His standard release conditions expired on 21 October 2015, and his special release conditions expired on 24 October 2015.

3 On 22 October 2015 P was made subject to an Interim Supervision Order pending determination of the Chief Executive's application for an Extended Supervision Order (ESO). He was also granted interim name suppression.

4 The matter came back before the Court on a number of occasions, most recently, prior to today's hearing, on 6 July 2016 when the hearing on the Chief Executive's opposed application for an ESO was required to be adjourned part- heard. For various reasons the adjourned hearing was not able to resume until this morning. By this morning the position had been reached whereby the parties consented to an ESO as follows:

• (a) An ESO is made for a period of five years commencing 10 February 2017.

• (b) The ESO is subject to the following special conditions:

  • (i) If directed, to attend a psychological assessment and attend and complete any treatment/counselling as recommended by the psychological assessment to the satisfaction of your Probation Officer and treatment provider.

  • (ii) To reside at an address approved by the Probation Officer and not to move from that address without the prior written approval of a Probation Officer.

  • (iii) To remain at your approved address between the hours of 9 pm and 6 am and to comply with all the requirements of partial residential restrictions.

  • (iv) Not to undertake any form of vocational training or employment, paid or unpaid, without the prior written approval of the Probation Officer.

  • (v) Not to possess or consume alcohol, illicit drugs or prescription drugs without the written approval of a Probation Officer.

  • (vi) To not own, possess or drive any motor vehicle without the prior written approval of a Probation Officer.

  • (vii) Not to enter any public libraries, pharmacies, tourist information centres, backpackers or any other place identified in writing by a Probation Officer without the prior written approval of a Probation Officer.

  • (viii) To comply with the requirements of electronic monitoring, and provide access to the approved residence to the Probation Officer and representatives of the monitoring company, for the purpose of maintaining the electronic monitoring equipment as directed by the Probation Officer.

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

  • (x) Not to access the internet and social media, including but not limited to Facebook, Twitter and NZ Dating without the prior written approval of your Probation Officer.

  • (xi) Not to use or possess any cell phone or device capable of accessing the internet without the prior written approval of a Probation Officer and to surrender any device or cell phone in your possession to a Probation Officer or their agent if directed to do so by a Probation Officer.

  • (xii) Not to enter into an intimate relationship without the prior written approval of a Probation Officer.

• (c) These special conditions apply for three months from 10 February 2017 or, if an application is made to the Parole Board within three months, until the Parole Board determines the application.

5 I was satisfied an ESO on those terms was appropriate. At the conclusion of the hearing I made an order accordingly. I set out my reasons below.

6 Name suppression in relation to this proceeding was also sought. The Chief Executive neither consented to nor opposed the application. A member of the media was present but did not wish to advance submissions on the matter. I advised the parties I was sympathetic to the application and therefore likely to grant it, but needed to consider the matter before I could determine this issue. Having considered the matter further I am satisfied it is appropriate to order name suppression in relation to this proceeding. I set out below my reasons for this decision.

The offending

7 P befriended a number of Asian women, for whom English was their second language, who were holidaying or studying English in New Zealand. He gained their trust in various ways and then P put Diazepam in their drinks. Eight women were drugged in this way. P then stole their ATM bank cards, withdrew substantial amounts of money from their bank accounts, and then indecently assaulted or sexually violated them. The offending occurred between October 2001 and April 2002. It was escalating at the end of that period.

8 P was sentenced in the High Court on 14 April 2003. An appeal against conviction and sentence was heard in the Court of Appeal on 17 September 2003 and that court's decision was given on 9 October 2003. 9 On 15 July 2004 the Supreme Court refused to grant leave to hear the appeal.

Personal circumstances

9 P is 50 years old. He was born and raised in Iran. He fled Iran and arrived in New Zealand in the early 1990s. He achieved refugee status in this country and subsequently gained permanent residency. He has no family in New Zealand and no close ties with the local Iranian community. He had no previous convictions prior to this offending. Enquiries were made to determine whether P had convictions in Australia or Iran. He has no recorded convictions in either of those countries.

10 P's behaviour in prison was unremarkable. He does not appear to have been the subject of incident reports or charged with misconduct. He constructively engaged in a variety of employment roles and achieved a number of unit standards in horticulture. P continues to deny the sexual offending. He has not engaged in any rehabilitative treatment for it.

11 For the purposes of the ESO application Michelle Proctor, a clinical psychologist, interviewed P and assessed him on using actuarial tools and clinical judgment. On the ASRS P was in the medium-low category, on the STABLE-2007 he was in the high risk group, on the VRS-SO he was in the high risk category, on the PCL:SV and PDS he was above average. Ms Proctor's overall conclusion was that there is a high risk of P committing a further relevant offence while in the community. She considered he would have difficulty with ongoing mitigation of his risk of re-offending without external support and a robust safety plan.

12 David Riley, a clinical psychologist instructed on behalf of P, reviewed Ms Proctor's assessment. He agreed with the medium-low assessment on the ASRS but considers P's risk was moderate, rather than high, on the STABLE-2007. He

considered on these two assessments that overall P's risk was moderate-low. He considered it was unnecessary to use the further tools employed by Ms Proctor but did not disagree with her scores, nor the interpretations and inferences she had drawn from them. He considered P's behaviour in prison and his age were factors in his favour. He considered that if an ESO were to be imposed it would be necessary to manage him using support and...