IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI 2013-404-86 [2013] NZHC 766

BETWEEN	JASON WILLIAM OTENE Appellant

AND	DEPARTMENT OF CORRECTIONS Respondent

Hearing:	15 April 2013

Counsel:	N G Cooke for Appellant
W N Fotherby for Respondent

Judgment:	15 April 2013

(ORAL) JUDGMENT OF HEATH J

Solicitors:
Crown Solicitor, PO Box 2213, Auckland
Counsel:
N G Cooke, 101/100 Parnell Road, Parnell, Auckland

OTENE V DEPARTMENT OF CORRECTIONS HC AK CRI 2013-404-86 [15 April 2013]

[1]       Mr Otene appeals against a sentence of six months imprisonment imposed on a single charge of breaching the conditions of an extended supervision order.  The sentence was imposed in the District Court at Manukau on 8 March 2013, by Judge Simpson.

[2]       Mr Otene was made the subject of an extended supervision order on 12 June

2006.  The order was made following convictions that had resulted from incidents of a sexual nature that had occurred between 16 March 1990 and 5 April 2004.  The most serious of those charges was one of attempted rape of a female under the age of
12 years.

[3]       The order was imposed after Mr Otene was released from a sentence for the

2004 offending.  He had breached conditions of his release from prison.  Since the order was imposed, Mr Otene has breached the extended supervision order on seven prior occasions, between 22 July 2008 and 31 January 2012.   On two of those occasions, 10 September 2010 and 14 September 2010, periods of three months imprisonment were imposed to respond to the breaches.

[4]       The present charge arose out of an incident that occurred on 7 February 2013. Mr Otene, following an alarm being sounded on a mobile GPS device which (under his conditions) he is required to carry, was found riding a bicycle.  He seemed to be unstable on it.  He was stopped by his supervising probation officer and found to be under the influence of alcohol.  In the summary of facts, Mr Otene is described as having been “aggressive towards his probation officer and spoke incoherently”.  It is also said that his eyes were “bloodshot and he smelled of alcohol”.

[5]       Mr Otene was aware that a condition of his extended supervision order was not to consume alcohol while subject to it.  The condition not to consume alcohol had  been  imposed  on  an  application  to  vary  the  conditions  of  the  extended supervision order.  That was done by a decision of the Parole Board of 5 May 2011.
The Board said:

8.         Mr Otene has advised his Probation Officer that he is drinking most days, often with homeless people and is frequently in public parks.

9.         Against this background, the Community Protection Services seek to vary the conditions in the Extended Supervision Order so as to mitigate his risk of offending and risk of harm to others.   The variations sought are that Mr Otene is not to possess or consume alcohol and drugs and not to enter premises or parks or recreational grounds or such other places that children under the age of 16 are likely to gather.

10.       Mr Otene has been served with the application and has indicated that he does not wish to appear in respect to it.

11.        Given the matters outlined in relation to this application, the Board is willing to grant this application but does have reservations as to the width that is sought as to an exclusion of Mr Otene from any other places that children under the age of 16 are likely to gather.

12.       The Board is quite happy to include a condition that Mr Otene must not frequent or be found in any public sports ground, local or public reserve, public park or children’s play area but is unable to include “any such other place”.  This could include malls, public car parks and other areas.   If the Community Probation Services wished to extend this variation to cover such other areas, then they should specifically define such areas so that they can be considered by the Board and included in any variation.

13.       Accordingly,  the  special  conditions  in  relation  to  Mr  Otene’s
Extended Supervision Order with effect from 5 May are as follows:

(1)        Not to possess or consume alcohol or drugs for the duration of the Extended Supervision Order.

(2)        Not to frequent or be found in any public sports ground, any local or public reserve, any public park or any play area where children under the age of sixteen are likely to gather.

...

[6]       In  considering  whether  a  term  of  six  months  imprisonment  was  clearly excessive, it is necessary to focus on the purpose of an extended supervision order. In R v Peta the Court of Appeal considered that question.  It said:

...

[5] The [extended supervision order] regime came into force on 7 July 2004. It is designed to protect the public from those who pose a real and ongoing risk of committing sexual offences against children or young persons (see s

107I(1) of the Act). In order to be eligible for the imposition of an ESO, an offender must have committed and been sentenced to imprisonment for a “relevant offence” as specified in s 107B, which effectively includes all sexual offences committed in respect of persons under the age of 16 years. Application for an ESO must be made while the offender is still in prison (whether or not the latest sentence expiry date was for the relevant offence) or is subject to release or detention conditions (see s 107F(1)).

[6]   Before imposing an ESO, the Court has to be satisfied, after considering a health assessor’s report, that the offender is likely to commit any of the relevant offences in the future (see s 107I(2) of the Act). Section 107F(2) sets out the factors that a health assessor’s report must address – preferably directly, but it may do so by inference (see Grieve v Chief Executive of the Department of Corrections (2005) 22 CRNZ 20 at paras [14] and [25]). The s 107F(2) factors are:

(a) the nature of any likely future sexual offending by the offender, including the age and sex of likely victims;

(b) the offender’s ability to control his or her sexual impulses;

(c) the offender’s predilection and proclivity for sexual offending;

(d)  the  offender’s  acceptance  of  responsibility  and  remorse  for  past
offending; and

(e) any other relevant factors.

...

[11]      ..., 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). In Belcher at para [108], this Court approved the comments of the Full Court of the High Court in Chief Executive of the Department of Corrections v McIntosh (High Court, Christchurch, CRI 2004-409-162, 8 December 2004) at para [27] that orders are not to be made for the minimum period required to facilitate treatment, but rather for the minimum period required to achieve protection of vulnerable members of the community.

....  (emphasis added)

[7]       The point made by the Court of Appeal that the order is required to achieve protection of vulnerable members of the community,  demonstrates the seriousness of this offending.

[8]       While it is fair to say as Mr Cooke, for Mr Otene did, that an offender such as him is not easy for the criminal justice system to accommodate, the primary purpose of the order is to ensure compliance with conditions imposed by the Court (or the

Parole  Board)  so  that  the  community  can  be  protected  in  relation  to  possible offences.  The conditions are imposed as a form of risk management.  That being so, it cannot be said that the offending of this type can be treated as relatively minor, even given the nature of it.

[9]       Also added to the mix is the need to take into account the prior convictions for breaching the extended supervision order.

[10]     A period of six months imprisonment is within the range available to a Court responding to offending of this type.   I refer, by way of example, to McGreevy v Department of Corrections, a decision of Panckhurst J, in which he dismissed a similar appeal  against  a sentence of six  months  imprisonment  for breach  of an extended supervision order.

[11]     There being no basis on which it can be said that the sentence was manifestly excessive, the appeal is dismissed.

[12]     I add a postscript.

[13]     As a result of discussions in the course of argument, it became clear that the better way of approaching the risk management issue was for Mr Otene to make an application to the Parole Board to vary his conditions.  Given that he has not been represented by counsel before, benefit may be obtained from an exploration of the issue on an application of that type.

[14]     Even if the application were not successful initially, a framework might be established to deal with his situation.  It is in the interests of both Mr Otene and the public at large that the measures put in place to rehabilitate him can succeed before
he is free from the term of the extended supervision order in June 2016.

P R Heath J