Risky Business: Predicting Recidivism

Abstract Society has become more and more preoccupied with both the ascertainment and avoidance of risk. This preoccupation has permeated the criminal justice system and courts are increasingly being required to evaluate the risk of reoffending, when considering the imposition of sentences and other control measures, particularly in regard to crimes of violence and sexual offending. This has resulted in the need for reliable risk assessment tools and expert evidence to assist judges in their task. While health professionals have willingly provided such assistance, it is apparent that even the current generation of risk assessment tools are not without their limitations. This has led to some commentators suggesting that such tools merely provide a veil of science over what really are moral and ethical questions as to which offenders pose an unacceptable danger to society. While not subscribing to that view, this article emphasises the need for experts to convey the limitations of such instruments clearly to the courts. It also suggests that any tools used must be aligned with the statutory criteria and that such tools must be used in combination with an individualised assessment of risk for each offender. The reasoning process must be transparent and set out clearly for the court. As sentences based on risk have the potential to place major restrictions on the rights of offenders, courts must have as much assistance as possible in the task of balancing the human rights of offenders with the risk to public safety posed by such offenders. R v Peta [2007] 2 NZLR 627 (CA) is used as a case study to illustrate both what can go wrong, as well as an example of best practice in this often precarious balancing exercise. Key words: expert evidencehealth assessors' reportsrisk assessment toolsrisk of recidivism Notes 1. This paper was presented at the conference of the Australian Psychological Society College of Forensic Psychologists "Advancing Forensic Psychology", held in Melbourne from 25–28 February 2009. I acknowledge the invaluable assistance of the Court of Appeal law clerks, Jane Standage and Natasha Caldwell, in the research for and writing of this paper. Any errors remain my own and the views expressed are my own and are not to be taken as the views of the Court of Appeal or the New Zealand judiciary. 2. E Beecher-Monas, Evaluating Scientific Evidence: An Interdisciplinary Framework for Intellectual Due Process (Cambridge University Press, Cambridge 2007) 155–56. Public concern is often aroused by high profile tragic cases of reoffending which appear to have been preventable had a number of people addressed what are seen to have been known risks. One suspects that in many of these cases hindsight bias exaggerates the foreseeability of events, but this does not make the fears any less real. 3. These tools join a large body of other risk assessment tools. A Google search undertaken at the end of November 2008 showed a wide variety of such tools. The first tool for assessing the risk of serious and violent sexual offending was number 22 on the list. Those earlier on the list included a US Federal Aviation Administration tool to assess flight risks. Bioprotection New Zealand contributed a number of weed risk assessment tools. There was an ecological risk assessment tool used by the United States Department of Energy. The Federal Deposit Insurance Corporation had a tool relating to information security. New Zealand Aid had a conflict risk tool for use in development aid decisions. There was a risk assessment tool for estimating the ten year risk of having a heart attack and finally a tool to assess the risk of fusarium mycotoxin (associated with fungal infection in cereal crops) in the United Kingdom. 4. K McMaster and A Wells, 'From Uncertainty to Certainty – is it Possible?' in K. McMaster and L. Bakker (eds), Will They Do It Again?: Assessing and Managing Risk (Hall McMaster and Associates, Christchurch 2006) 7 at 11; B McSherry, P Keyzer and A Freiberg, Preventive Detention for 'Dangerous' Offenders in Australia: A Critical Analysis and Proposals for Policy Development Report to the Criminology Research Council (December 2006) at [1.2]; D Riley, 'From Mysticism to Science: An Overview of Risk Prediction', in K. McMaster and L. Bakker (eds), Will They Do It Again? Assessing and Managing Risk (Hall McMaster and Associates, Christchurch 2006) 24 at 35. 5. [2007] 2 NZLR 627. 6. See BE Harcourt, Against Prediction: Profiling Policing and Punishing in an Actuarial Age (University of Chicago Press, Chicago 2007) for a criticism of the use of actuarial methods in the criminal justice system, including with regard to policing. 7. For example, s 7 of the Parole Act 2002 (NZ) provides that the paramount consideration for the Parole Board is the safety of the community. Accordingly, the Court of Appeal has emphasised that the safety of the community, rather than aims of deterrence, should be the paramount consideration for the Parole Board when considering applications for release on parole or home detention. See Reid v The New Zealand Parole Board (2006) 22 CRNZ 743 at [38]. 8. The assessment of risk of offending is also relevant in certain civil contexts – for example in parenting decisions. 9. Although, if remand time before trial is likely to be long then this may be a matter that may need rethinking. This is particularly the case as conditions on remand (in some New Zealand prisons at least) may not be ideal, with long lock-down periods and no access to programmes. 10. Section 7 of the Bail Act 2000 (NZ) provides that a defendant is entitled to bail as of right when: charged with an offence that is not punishable by imprisonment; charged with an offence for which the maximum punishment is less than three years imprisonment, unless that offence relates to assault on a child or by a male on a female; charged with an offence under a number of listed provisions in the Crimes Act 1961. 11. Section 7(5) Bail Act 2000 (NZ). 12. Note the threshold of mere "risk" was introduced pursuant to the Bail Amendment Act 2008 (NZ), which was introduced and passed under urgency under the National-led government on 9 December 2008. The provision was amended from the higher threshold of a "real and significant risk", a provision introduced by the previous Labour-led government. 13. See s 8(1) of the Bail Act 2000 (NZ). There are a number of other matters, such as the seriousness of the offence and the likelihood of conviction, that, under s 8(2)(5) the court may take into account. There are also more restrictive provisions relating to bail in certain circumstances where higher risk categories of offenders, such as repeat violent offenders, are concerned – see ss 9–12 of the Bail Act 2000 (NZ). 14. See generally Australian Institute of Criminology, Review of Bail Legislation, http://www.aic.gov.au/publications/rpp/23/ch3.pdf> accessed 16 February 2009. 15. Bail Act 1992 (ACT) s 22 (1)(c)(ii); Bail Act 1978 (NSW) s 32 (1)(b)(iv); Bail Act 1982 (NT) s 24(1)(c)(iii); Bail Act 1980 (Qld) s 16 (1)(a)(ii)(A); Bail Act 1985 (SA) s 10 (1)(b)(ii). 16. See the High Court of Australia decision in Veen v The Queen (No 2) (1988) 164 CLR 465 at 472–475. For more detail see B McSherry, P Keyzer, and A Freiberg, above n 4 at [2.1]–[2.24]. For the New Zealand position see R v Ward [1976] 1 NZLR 588 (CA), s 7(1)(g) of the Sentencing Act 2002 and the discussion in Hall's Sentencing at I.3.4. 17. See B McSherry, P Keyzer and A Freiberg, ibid at [2.3.2]. 18. See s 87(2) of the Sentencing Act 2002 (NZ). On 1 July 2002 the Sentencing Act 2002 (NZ) replaced the Criminal Justice Act 1985 (NZ), which had previously governed preventive detention in New Zealand. The Sentencing Act 2002 made significant changes by increasing the number of qualifying sexual and violent offences, lowering the age of eligibility from 21 years to 18 years at the time of the offence, and removing the requirement that an offender must have previously been convicted of a specific offence. 19. These provisions can include some measure of detention. Under s 16(h) of Victoria's Serious Sex Offenders Monitoring Act 2005, amended in 2008 also to include sex offenders with adult victims, there a condition, equivalent to a home detention option, that the offender be electronically monitored. 20. For more detail on these regimes and a discussion of the Queensland case law highlighting issues with the regime see B McSherry, P Keyzer and A Freiberg (n 4) at [4.3]–[4.5] and [6.3]–[6.4]. One of the main issues seems to have been inadequate access to treatment and lack of coordinated implementation of plans for rehabilitation. There have also been concerns about procedural fairness aspects with insufficient time for prisoners to prepare for hearings, and concerns about the availability and funding of legal representation and expert witnesses. In New Zealand, personal information about child sex offenders can be provided by the Department of Corrections to the Ministry of Social Development, the New Zealand Police, Housing New Zealand Corporation, and the Department of Child, Youth and Family Services pursuant to s 182A-E Corrections Act 2004 (NZ).There is currently no public register of sexual offenders in New Zealand. However, in both 1996 and 2004, former Act MP Deborah Coddington published a Paedophile and Sex Offender Index for New Zealand, and the Sensible Sentencing Trust has established a paedophile and sex offender database. Significantly, in Brown v Attorney General [2006] DCR 630 (NZ), the District Court ordered a $25,000 award of damages to a convicted sex offender after finding that the publication and distribution of a flyer, publishing both a photograph and the address of the offender, amounted to an invasion of his privacy. 21. See s 107I(1) of the Parole Act 2002 (NZ). 22. See s 107I(2) and s 107F(2) of the Parole Act 2002 (NZ) for the factors that must be considered. See also Grieve v Chief Executive of the Department of Corrections (2005) 22 CRNZ 20 (CA) at [14] and [25]. 23. See Belcher v Chief Executive of the Department of Corrections [2007] 1 NZLR 507 (CA) [11]. 24. See ss 107I(4) and (5) of the Parole Act 2002 (NZ). 25. Belcher (n 23) at [108]. The New Zealand Parole Board is responsible for imposing appropriate restrictions on the offenders who are subject to ESOs. At their most draconian, the conditions can amount to home detention and a requirement that the offender be accompanied and monitored for up to 24 hours a day by a person approved by the Chief Executive of the Department of Corrections can be imposed under the legislation. This requirement can, however, only apply within the first 12 months of the orders. See s 107J(1)(b), s 107K(2) of the Parole Act 2000 (NZ) and see s 107K(3)(b) of the Parole Act 2000 (NZ). 26. J Vess, 'Preparing Practitioners for Assessing and Managing Risk' in K. McMaster and L. Bakker (eds) Will They Do At again? (n 4) 173. 27. International Covenant of Civil and Political Rights 1966. 28. It must be emphasised that under the statutory provisions, rights can be limited in certain circumstances. Section 5 of the New Zealand Bill of Rights Act 1990 provides that the rights and freedoms contained in the Bill of Rights may be subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society. Both s 7(2) of the Charter of Human Rights and Responsibilities Act 2006(Vic) and s 28(1) Human Rights Act 2004 (ACT) provide that a human right may be subject under law only to such reasonable limits as can be demonstrably justified in a free and democratic society. 29. See New Zealand Bill of Rights Act 1990. See also s 22(1) Human Rights Act 2004 (ACT); s 25(1) Charter of Human Rights and Responsibilities Act 2006 (Vic). 30. McSherry, Keyzer and Freiberg (n 4) [7.2.1]. The principle, aside from being a fundamental common law principle, is also enshrined in Art 14(1) of the ICCPR, and more particularly for our purposes, in 21(1) of the Human Rights Act 2004 (ACT); s 24(1) of the Charter of Human Rights and Responsibilities Act 2006 (Vic) and s 25(a) of the New Zealand Bill of Rights Act 1990. 31. This is the principle that sentencing must be proportional to the offence of which the person has been convicted. McSherry, Keyzer and Freiberg (n 4) [7.2.2]. Orders such as supervision orders are more flexible than detention measures and can be tailored to be more consistent with proportionality. For instance, a convicted sex offender may be prevented from having employment in an environment with children, but not prevented from working in other areas. 32. McSherry, Keyzer and Freiberg (n 4) [7.2.3]. 33. Article 14(7) of the ICCPR states that no one shall be liable to be tried or punished again for an offence for which he or she has already been convicted in accordance with the law. 34. See s 25(d) New Zealand Bill of Rights Act 1990; s 22(2) Human Rights Act 2004 (ACT); s 25(2)(k) Charter of Human Rights and Responsibilities Act 2006 (Vic); Art 14(3)(g) ICCPR. 35. See s 19 New Zealand Bill of Rights Act 1990; s 8 Human Rights Act 2004 (ACT); s 8 Charter of Human Rights and Responsibilities Act 2006 (Vic); Art 26 ICCPR. There also exists a range of federal anti-discrimination statutes in Australia. See generally Age Discrimination Act 2004 (Aus); Racial Discrimination Act 1975 (Aus); Sex Discrimination Act 1984 (Aus); Disability Discrimination Act 1992 (Aus). 36. P Marshall, 'An Analysis of Preventive Detention for Serious Offenders' (2007) 13 Auckland U L Rev 116, 127. See generally C Slobogin, Minding Justice (Harvard University Press, Cambridge Massachusetts 2006) 103; N Morris, 'Incapacitation Within Limits' in A. von Hirsch and A. Ashworth (eds), Principled Sentencing (2nd edn, Hart Publishing, Oxford 1998) 107. 37. For discussion of general international human rights obligations see M Freeman and G Van Ert, International Human Rights Law (Irwin Law, Toronto 2004) 24–85. See also International Law Commission Draft Articles on State Responsibility <http://www.javier-leon-diaz.com/humanitarianIssues/State_Resp.pdf> accessed 24 February 2009. For a discussion of state responsibility with regards to torture see: Advisory Council of Jurists of the Asia Pacific Forum of National Human Rights Institutions, Reference on Torture: Final Report (2005) 169–72 <http://www.asiapacificforum.net/acj/references/acj-references-torture/downloads/reference-on-torture/acj-torture-report.pdf> accessed 25 February 2009. 38. (1988) 164 CLR 465. 39. The Australian High Court is Australia's court of final appeal. In New Zealand, the High Court is the equivalent of the state Supreme Courts in Australia. The New Zealand Court of Appeal is the intermediate appellate court, with the Supreme Court as the highest New Zealand court, replacing the Privy Council in 2004. 40. Veen (n 38) 486. For discussion of the decision see B McSherry, 'Indefinite and Preventative Detention Legislation: From Caution to Open Door' (2005) 29 Crim L.J 94, 96. 41. (1996) 189 CLR 51. 42. Ibid 97 and 121–22 respectively. Here, the judges were referring to the power to impose an indefinite sentence at the time a crime had been committed. However, Toohey, Gaudron, McHugh and Gummow JJ, all delivering majority judgments, held that s 5 of the Community Protection Act 1994 (NSW), which enabled the Supreme Court of New South Wales to provide for the preventative detention of an offender post sentence compromised the integrity of the judicial system because it obliged the Supreme Court of New South Wales to exercise a non-judicial function. 43. R v D [2003] 1 NZLR 41 (CA) at [26]–[31]. Emphasis was placed on the legislative history surrounding the enactment of the Sentencing Act 2002, the fact that the consistency of the sentence of preventative detention with the ICCPR was considered in the Select Committee process, and that the Justice and Electoral Committee was satisfied the provisions complied with the ICCPR. 44. HRC, Communication No 1090/2002, UN Doc CCPR/C/79/D/1090/2002 (15 December 2003). 45. Ibid 7.3. Note, however, there were a variety of differing opinions delivered in the Communication. 46. (2004) 223 CLR 575. 47. Ibid [24], [109], [217]–[219]. 48. Ibid [97], [225]. 49. Belcher (n 23). 50. Ibid [49]. It must be noted, however, that the Court declined to consider whether such a breach could be justified under s 5 of the Act, which, as noted above at n 28, provides that the rights and freedoms contained in the Bill of Rights may be subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society. See ibid [59]. 51. Section 4 of the New Zealand Bill of Rights Act 1990 provides that no court shall hold any enactment to be impliedly repealed or revoked, or decline to apply any provision of the enactment by reason of the fact that it is with the New Zealand Bill of Rights 1990. For the statutory of the provisions in the Act see R v [2007] NZLR 1 For example the Offenders Act 2006 s 7 and a high of Under the Sentencing Act s the court must be satisfied to a high of that the offender is a serious danger to the community. Under the Sentencing Act indefinite sentences should be to cases and there must be evidence that the is a danger to the community. The Act s 13 states that the court must be satisfied to a high of that there is an unacceptable risk that the a serious sexual offence if or if or if without a supervision The High Court of Australia in (n emphasised the of the statutory requirement for and evidence that was provided by the See (n The Sentencing Act 2002, s (NZ) provides that when imposing a sentence of preventative detention the court must be satisfied that the person is likely to qualifying sexual or violent offence. The Court of Appeal in R v NZLR at held that the also used in the previous for the exercise of by the sentencing court, and that it was to of a of and of a such as reasonable into the Under s 107I(2) Parole Act 2002 a sentencing court is to make an supervision if satisfied that the offender is likely to any of the relevant In Chief Executive of the Department of Corrections v at J for the High Court noted that the must reasonable that, the and potential on the of the subject that with the imposition of an the is and to the risk This has not been by the Court of Appeal or Supreme but the decision is currently under to the New Zealand Court of As is by M and J Serious Sex Offenders Monitoring Act for the of Sex Offender Risk (2006) and Law (n 2) McSherry, Keyzer, and Freiberg (n 4) J The of Department of and Human Psychological for the A for and Press, New 2007) suggests that these may be high as may the of were clearly than at McMaster and (n 4) 12. (n and P the of Risk and in the of for Offenders' (2007) Public 1 accessed 19 February 2009. (n See I and Evidence: Law, and edn, See and (n As noted in D and G in (2nd in the United where had been as being under the Risk of these on to as to only in the of of In one study of or high risk on to in violence of as risk a violent offence. Report into the Parole in and See also and Risk in to and Criminal Justice Publishing, 2007) Peta (n and J and the Preventive Detention of Sex Offenders in Australia and the United (2007) International of Law and and (n 4. Peta (n Ibid and (n Peta (n (n 2) and (n and (n referring to B and G of at Civil to the of A of Research and and (n (n and in A Ashworth and M (eds), of Sentencing Press, Oxford 1998) and (n (n 27. McSherry, Keyzer and Freiberg (n 4) and D the of Risk A to and 32 Law See for example D of Offenders and the of in in Corrections for Institute of Criminology, and L and D of A 41 Crim The of the in New Zealand, as at n was established by it to all offenders from in New Zealand after a sentence for a sexual offence in the years and of and in of sex offender See generally A D Riley, D Wales and J Vess, Risk for Offenders in New Development and of a Risk (2006) 12 of and (n Ibid The was from from a and information from research in and the United both factors that to but over and factors that may be for a of time and which also to sexual offending. For a list of the and factors to be under see Peta (n at and (n (n 4) 33. McMaster and (n 4) 12. (n Act 2006 (NZ) s R v D [2003] 1 NZLR 41 The case was concerned with s of the Amendment Act (No 2) 1980 (NZ) in to s of the current See on Criminal Law – Australian states have legislative provisions surrounding the of made to a health See generally A Australian New South Wales McSherry, Keyzer, and Freiberg (n 4) (n 14. J of Risk and (2006) Note the case of where an expert that many risk including his the sentence was set aside in the at Supreme Court (n as to that criminal is the only risk for violence that and the only one that should in McSherry, Keyzer and Freiberg (n 4) (n 4) 29. McSherry, Keyzer and Freiberg (n 4) For instance, the Serious Sex Offenders Monitoring Act (Vic) out a list of crimes that are to be These include of of child where the are under 18 They not include the crimes on a who is over 18. The tools used may however, make the of See generally and (n This often to sexual offending. For the violence as or sexual with a person who is or to and sexual violence in a limited which not include On the other see and (n referring to Risk on (n Ibid 50. v The Queen CLR at McSherry, Keyzer and Freiberg (n 4) 96. R v Peta [2007] 2 NZLR 627 at (n 2) (n 4) 30. See and (n and K of Sex Offenders Research (2007) Sentencing Advisory Council 4. See (n in (n – see generally A von of in von Hirsch and Ashworth (n See D to the of and Law and McSherry, Keyzer and Freiberg (n 4) McSherry, Keyzer and Freiberg (n 4) at Section Parole Act 2002 (NZ) provides that an for an must be accompanied by a by a health s Sentencing Act 2002 (NZ) provides that a sentence of preventative detention must not be imposed unless the court has considered from at appropriate health about the likelihood of the offender a qualifying sexual or violent offence. The requirement for the courts to on evidence is also in a variety of Australian a s Sentencing Act (Vic) provides that the court in an of indefinite sentence must consider and other relevant Section of the Offenders (Qld) provides that when the court is a sentence of preventative detention that it must have regard to and other ss of the Serious Sex Offenders Monitoring Act (Vic) provides that an for an must be accompanied by an assessment by a or health See discussion above n in other judges have been to be as in as the general see C J and on the (2007) L. Review For a discussion see Corporation v [2007] at 107. Peta (n and (n Peta (n and also v Chief Executive of Department of Corrections 20 November 2006 at and (n (n 2) 4. and of for about 32 Law (n 2) 4. (n L 24 L. Rev I P and Australian on Evidence: An Institute of Administration The was however, the was only to judges with trial who had their judicial in the appellate courts were the was and ibid 3. The other of expert evidence that were of concern

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