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LETELE - Offender seeks early parole consideration - 27/10/16

Parole Hearing
Under section 25 of the Parole Act 2002

Offender seeking early parole consideration VR Letele

Hearing: 27 October 2016

DECISION OF HON J W GENDALL QC – CHAIRPERSON

  1. (withheld) was sentenced on 16 March 2016 to three years and two months imprisonment having been found guilty by a jury of ten charges of dishonestly using a document, which resulted in her receiving over $500,000, which amount was reduced however, by an accomplice.  The type of criminal activity is known as “hydraulic mortgage” fraud through dishonest escalation.
  2. Her parole eligibility date is 6 April 2017 and her sentence end date is 15 May 2019.
  3. Through her counsel, (withheld), she has applied, pursuant to s25 of the Parole Act 2002, seeking what he says is:
    “… an urgent hearing before the NZ Parole Board to apply for a release on compassionate grounds so that she can return to her home to be with her partner … and three children aged 19, 6 and 3”.
  4. The application is based upon the fact that (withheld) has been diagnosed with metastatic cancer, which has spread, and her illness is terminal with a prognosis of less than six months to live.  Over that time she is to undergo intensive chemotherapy.
  5. (withheld) has submitted letters from (withheld), the several clinicians attending to (withheld) together with a letter from the hospital social worker.  All of which “support release to a home environment where she can be supported by family and carers”.
  6. Section 25(1) of the Parole Act 2002 provides:
    “The chairperson may, in exceptional circumstances, refer an offender who has not yet reached his or her parole eligibility date for consideration by the Board for parole.”
  7. If such referral is made, then the Board conducts a hearing.  There can be release on parole only if the Board is satisfied beyond reasonable grounds that the offender will not pose an undue risk to the safety of the community, but further, the Board is of the opinion the interests of justice require the offender be released before his/her parole eligibility date.
  8. As is obvious from the use of the words “exceptional circumstances” this is a section very infrequently used.  “Exceptional” means something out of the ordinary and this must be the case given that the Chair’s discretion exercised under this section subverts the statutory scheme for parole eligibility, which is dependent on the Sentencing Act and also the exercise of the Sentencing Judge’s judicial function when fixing a particular term of imprisonment.
  9. The requirement in s25(6)(b) that there be a wider “policy based” interests of justice justifying release makes it clear that absence of “undue risk” is not the only precondition to release before a parole eligibility date.
  10. Of course, the “interests of justice” may, depending on the circumstances, comprise “exceptional circumstances” under s25(1), but that is not the case here, where the application is based upon “compassionate” considerations.
  11. It is a sad fact, but not unusual, that prisoners may suffer serious illness, physical or mental, or injury, whilst serving their sentence.  It would rarely fall within the “exceptional circumstances” requirement especially when later parole still requires “the interests of justice” test to be met.  I am not able to conclude that (withheld) terminal illness meets the “exceptional circumstance” test.
  12. My view is that the request is rather more an application for release on compassionate grounds under s41.  I am prepared to deal with it on that basis.  It provides that, upon referral by the Board’s Chair, it may direct that an offender be released on compassionate release where:
    “An offender has given birth to a child” – not applicable in this case;
    or
    “The offender is seriously ill and unlikely to recover.”
  13. An offender who is released on compassionate release may not be considered for parole by the Board, but is subject to recall as if on parole.
  14. Where an application for compassionate release is made the procedure adopted is that a report is obtained from the prison management as to the ability of the prison health team to be able to manage the inmate’s condition.  It is not the case that compassionate release referral is granted simply because an inmate is seriously ill.
  15. It is quite often the case that prisoners contract or are diagnosed with serious illness but they can be adequately treated and managed in prison, and death is not imminent (within days so as to require hospice care) that compassionate release is not appropriate.  It is not the case that family and others may reasonably believe that the prisoner should be in the care of his/her family at such difficult times.  Usually, compassionate release is made on condition that the prisoner reside in a hospice to receive the end of life palliative care.
  16. In this case the Health Centre Manager at Auckland Region Women’s Corrections Facility has reported that:
    “- On 10 October 2016, in consultation with the oncology nurse specialist at the (withheld) was discharged from hospital back to the custody of Auckland Region Women’s Corrections Facility.
    - She has had an operation to remove a tumour but the diagnosis of gastric cancer is terminal and her prognosis has been estimated at six months since the date of this operation.  She is being cared for by the Health Team Leader and others and the wider medical team and custodial staff are updated on a daily basis with other external services including hospice palliative care nurse, counsellor, (withheld) and other agencies at (withheld) and the prison doctor.”
  17. The advice that has been received is that with the ARWCF medical team in collaboration with the hospice team regularly reviewing her management it can be at present satisfactorily undertaken but she has commenced oral chemotherapy, her specific dietary needs are being met, pain management medication is administered regularly and a nurse is available from 10pm to 6.30am to supplement the ARWCF nursing staff’s availability during the day.
  18. The time will inevitably come when (withheld) condition deteriorates to the extent that she requires hospice care, and, at that time, compassionate release would be appropriate.  But at the moment that is not the case given the very careful management of her condition by the health team that is being undertaken in prison.  The opinion of (withheld) that “a correctional facility is unlikely to be able to provide adequate access to the health care and support she requires” is not accepted by the Department of Corrections, which does not support compassionate release to (withheld) family at present.
  19. So, if this were to be an application for compassionate release, I would not make the required referral under s41.
  20. Likewise, in terms of s25 I am not satisfied the circumstances are “exceptional”.  It is not uncommon for prisoners to become very ill and yet to have their health needs adequately met whilst in a Corrections facility.
  21. As I have indicated, the circumstances may alter and further application for compassionate release may be made at that time.
  22. The application is declined.

Hon J W Gendall QC
Chairperson
New Zealand Parole Board