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WILSON - Stewart Murray - 25/02/2016

Application to consider the setting of special conditions for Extended Supervision Order

Under section 107K(1) of the Parole Act 2002

between

[Withheld]
Probation Officer
Applicant

and

Stewart Murray WILSON
Respondent

Hearing: 25 February 2016 at [Withheld] Via Video Link To NZ Parole Board Office

Members of the Board:

Mr N Trendle – Panel Convenor

Mr B McMurray

Ms G Hughes

Counsel:

[Withheld]

In Attendance:

[Withheld]

[Withheld]

DECISION OF THE BOARD

1. Stewart Murray Wilson is the subject of an extended supervision order made in the Christchurch High Court on 13 July 2012.  The order comes into force on his statutory release date, which is 1 March 2016, and remains in force for 10 years.

2. Application has been made by his probation officer, [Withheld], for the Board to impose the special conditions of the order.  That application was accompanied by a  memorandum from [Withheld] setting out the reasons for each of the special conditions sought, and a psychological report.

3. Mr Wilson is presently the subject of release conditions that were imposed for a period expiring six months after his statutory release date.  The special conditions proposed in the application filed by [Withheld] are generally in line with those to which Mr Wilson is presently subject.

4. Mr Wilson was represented by his counsel, [Withheld], and the Department by [Withheld] and his service manager, [Withheld].

5. The application was supported by a detailed psychological assessment.  Mr Wilson effectively declined to participate in that assessment.  The report refers to his history of offending and contains updated information on Mr Wilson’s progress since his release some 11 months ago.  The psychologist also provides detailed comments on the matters required by statute. No objection to the content of the assessment was made by his counsel.  The Board notes that Mr Wilson is assessed as being at very high risk of committing a relevant sexual offence within 10 years of his release. In his recommendations, the very experienced assessing psychologist expressed the opinion that:

“the present restrictions and the imposed level of monitoring, supervision and support are significant, and appropriately adequate to mitigate Mr Wilson’s risk of further sexual offending.  It is emphasised that in the writer’s view Mr Wilson requires the maintenance of the present regime for the foreseeable future.  External controls are considered necessary to adequately mitigate his risks to the community because Mr Wilson himself cannot be relied upon to maintain appropriate behavioural controls or make necessary decisions about his living situation.  If he were to reject supervision (actively or passively) that view would immediately alter and it may be that further restrictions and a strengthening of oversight would be required.”

6. Whilst it is the Board’s responsibility to assess whether the special conditions proposed in [Withheld]’s report should be imposed, we make that assessment with the benefit of the contents of [Withheld]’s report and in the context of the progress made with Mr Wilson’s reintegration on his present conditions having spent around 20 years in prison.

7. [Withheld] made submissions in respect of several of the special conditions proposed in [Withheld]’s report.  At the outset, he made a general submission that the Board was required to consider the issue of risk in the context of the extended supervision order made by the High Court.  The order was made on the basis of Mr Wilson’s risk to children under the age of 16.  Accordingly, [Withheld] submitted, the Board should only be concerned with conditions directed to that risk and not with respect to the risk of sexual re-offending against persons above that age, or for any other offending.  Counsel submitted that this distinguished the conditions from those to which Mr Wilson was presently subject as he had been convicted of offending against victims, both under and over the age of 16, so his parole conditions reflected that.  In contrast, the extended supervision order was applied for and made solely on the basis of his risk to persons under the age of 16.

8. [Withheld] made submissions to the contrary.  He submitted that Mr Wilson’s risk was not confined to those under the age of 16 and that his index offending reflected a link between adult and child victims.  Mr Wilson used his adult victims to effectively access his child victims.

9. The Board is of the view that the special conditions of Mr Wilson’s extended supervision order should not be confined to the risks associated with persons under the age of 16.  In terms of section 102K of the Parole Act 2002 the Board may impose any special condition that can be imposed under section 15 of the Act.  Section 15 is not confined to special conditions of a particular type.  The Board may impose any special condition so long as it is designed to reduce the risk of re-offending, facilitate or promote rehabilitation and reintegration, or provide for the reasonable concerns of victims of the offender.

10. In our view, the special conditions should address Mr Wilson’s risk to the safety of the community, which is principally his risk to the safety of women and girls under and over the age of 16 years, and we have proceeded accordingly.

11. [Withheld]’s principal objection to the proposed special conditions related to the condition that Mr Wilson undertake, engage in and complete a reintegration programme administered by a programme provider.  [Withheld] submitted that Mr Wilson should not be subject to such a condition.  He reminded the Board of the criticisms of Young J in Wilson v New Zealand Parole Board [2012] NZHC 2247 where the Judge held that the plan compiled for Mr Wilson was not, in fact, a reintegration programme as contemplated by the Parole Act; it consisted of a series of things that Mr Wilson must or must not do and contained a de facto detention regime that could not be allowed. The Board has kept in mind the criticisms of the High Court with respect to the proposed reintegration programme, which was annexed to [Withheld]’s application.

12. [Withheld] argued that the reintegration plan was objectionable for much the same reasons as found by the High Court; that Mr Wilson was not free to come and go as he pleased from his address; that he had very limited exposure – at present up to 27 hours per week – of contact with people from the outside world; and that there should be no restriction on the persons who could accompany Mr Wilson into the community as there would be other suitable people who could perform that role and allow Mr Wilson greater freedom.

13. So far as the proposed condition itself is concerned, there can be no objection to it as the ability to impose a condition with respect to a reintegration programme is clear from sections 15 and 16 of the Parole Act.  With respect to the plan itself the Board notes that it is not confined to a series of rules that were criticised by the High Court, but it does attempt to provide a framework, including rules, to assist with Mr Wilson’s reintegration.

14. We note that the programme may include conditions designed to reduce the risk of further offending and the Board is satisfied that the approach taken by the plan that was annexed to [Withheld]’s report does not appear to suffer from the deficiencies identified in Wilson v New Zealand Parole Board and is not inconsistent with the Act.

15. [Withheld] was critical of the progress made with respect to Mr Wilson’s reintegration in terms of the present reintegration plan.  In particular, he was critical of the refusal of Corrections to allow him to visit [Withheld].  This was an issue referred to in the Board’s decision of 11 November 2015 where it was recommended that progress be made in allowing Mr Wilson to visit [Withheld].

16. Mr Wilson’s probation officer had suggested that at least an initial meeting could occur by way of audio visual link, but Mr Wilson rejected that.  He told us, in the course of the hearing, that [Withheld] did not want it.  [Withheld].  Moreover, Mr Wilson said that he telephoned [Withheld] regularly and a meeting by way of AVL would do little to enhance his present communication [Withheld] when both of them wanted a face-to-face meeting.

17. [Withheld] submitted that the Board should take the opportunity to impose a special condition that required Community Corrections to facilitate such a meeting.  [Withheld] indicated that this matter remained under consideration within Corrections.

18. The Board does not accept Counsel’s invitation.  The special conditions under an extended supervision order are imposed in respect of the offender, not Corrections.  Moreover, the special condition imposing a geographic restriction on Mr Wilson’s movement allows for his Probation Officer to approve the request.  It is not the Board’s function to go further and to direct Mr Wilson’s Probation Officer by way of a special condition how an offender is to be managed.

19. We do nevertheless note from [Withheld]’s response that approval for Mr Wilson [Withheld]  is a live issue that would be receiving further attention. The Board simply reiterates the comments made in its last decision and observes that travel outside the Whanganui region, though subject to approval by Mr Wilson’s probation officer, is nevertheless to be viewed in the broader context of his reintegration.

20. Another criticism of the reintegration plan was that Mr Wilson was not free to leave his address whenever he wanted to, to visit Whanganui.  In [Withheld]’s submission Corrections should make available persons to accompany Mr Wilson should he reasonably request to go to Whanganui.  The Board notes that Mr Wilson’s reintegration is the subject of a weekly plan.  [Withheld] advised the Board there is a degree of flexibility within the plan to progress Mr Wilson’s reintegration as well as to allow for appropriate support and accommodate his interest in fishing.

21. The Board does not accept the submission that the framework provided by present arrangements unreasonably restricts Mr Wilson freedom to travel within the Whanganui District.  Nor do we accept the proposition that Mr Wilson should be free to travel to the Whanganui district whenever he wishes and for the necessary escorts to be made available to accompany him.  As an alternative, Counsel suggested that Mr Wilson could be accompanied by other appropriate and supportive members of the community.

22. In response, [Withheld] submitted that Mr Wilson needs to be accompanied by trained people who are fully aware of the risks and what to look for in a community setting.  He should not be supervised by untrained people, whatever their standing in the community.  [Withheld] also submitted that the reintegration plan can be amended on a week-by-week basis to accommodate Mr Wilson’s progress.  As an example, he referred to the provisions with respect to Mr Wilson’s attendance at a weekly Mass.

23. Having regard to the level and nature of Mr Wilson’s risk, we do not accept the proposal that other persons, such as a Justice of the Peace, would provide an adequate substitute.  The reintegration plan may properly include provisions that are intended to reduce the risk of reoffending, and whilst we accept that Mr Wilson is subject to significant restriction in his movements, we note first, that it provides a measure of flexibility to accommodate Mr Wilson’s progress in his reintegration, and secondly, that progress, albeit slow, has been made over the last 11 months in assisting Mr Wilson’s reintroduction into the community.

24. In his submission opposing a special condition that required Mr Wilson to engage in a reintegration plan, [Withheld]’s expressed concern that the condition would remain in force for 10 years without being reviewed.  In the course of the hearing [Withheld] responsibly conceded that the Board could impose that condition for a shorter period to allow for Mr Wilson’s progress on reintegration to be reassessed and for the need for an ongoing reintegration plan to be further considered by the Board.  The Board has concluded that an appropriate period is three years. If, at that point, Mr Wilson’s Probation Officer is of the view that such a programme remains necessary, an application for a variation of his special conditions should be made.

25. Counsel objected to the proposed condition that Mr Wilson attend sessions with a departmental psychologist “as may be directed by the Probation Officer” on the ground that this imposed compulsory medical treatment.

26. We note that Mr Wilson has participated in sessions with a Psychologist since his release from prison.  Whilst there may be arguments around whether he is, or is likely to engage in “treatment” given his ongoing denial of responsibility for his offending, there is nothing in this point.  The present arrangements appear directed to facilitating Mr Wilson’s reintegration; there is no suggestion by Counsel that they are occurring without Mr Wilson’s agreement; and equally there is nothing before us to suggest that if Mr Wilson declined to continue to participate, he would be required to do in the face of a refusal.

27. [Withheld]’s also criticised the condition that Mr Wilson not possess or drive a motor vehicle.  At present, Mr Wilson is accompanied, when he leaves his approved address, by personnel in a Corrections owned vehicle.  [Withheld] submitted that Mr Wilson should have the right to own a vehicle, to have it at his address and to drive it, though he would accept that he ought to be accompanied when he did so.

28. [Withheld] submitted that that would expose the persons who accompanied Mr Wilson to health and safety issues over which they could have very limited control if Mr Wilson were to drive the vehicle.  In closing, [Withheld] moderated this submission by conceding that Mr Wilson would surrender the keys to the persons accompanying him and let them drive the vehicle.  That could be achieved by the Board amending the proposed special condition.

29. We accept the point that Mr Wilson’s owning a vehicle, in itself, does not raise issues of concern. There are obvious implications if he were permitted to drive it, even accompanied, and also whether it is appropriate for someone else to drive him in his own vehicle.  Those matters, and the present arrangements, are appropriately left to the continuing oversight of his Probation Officer.  With minor amendment allowing ownership, we conclude the proposed condition should be imposed on the ground that it is necessary to reduce the risk of Mr Wilson’s reoffending.

30. [Withheld] criticised the proposed conditions with respect to restrictions on Mr Wilson advertising in any printed or digital media; on his engagement with clubs or churches; and with his possession of internet-capable devices.  In each case his Probation Officer may give approval in respect of the relevant condition and we understand that to date, Mr Wilson has not sought approval in respect of similar conditions.  We conclude that for similar reasons to those set out in the decision in Wilson v New Zealand Parole Board, the three conditions should be imposed.

31. On standing back and considering the proposed conditions, the supporting reasons, and the criticisms made of them, we are satisfied that with the minor amendments made to their wording, the conditions are appropriate and should be imposed.  All conditions, with the exception of the condition requiring Mr Wilson to undertake and engage in a reintegration programme, will be in force for the term of the order.  That condition will remain in force for a term of three years from 1 March 2016.

32. Finally, the Board records that it became aware during the hearing that an application has been made to the Court for a new extended supervision order.  The Board’s understanding is that step has been taken so that the Department can request the Court to impose a special condition relating to Mr Wilson’s intensive supervision.  Such a condition could not form part of the special conditions of the present order.  The Board simply notes this development.  We are solely concerned with the conditions with respect to the present extended supervision order.

33. The special conditions of that order are as follows:

(1) To reside at [Withheld] and not to move from that address without the prior written approval of your Probation Officer.
(2) To undertake, engage in and complete a reintegration programme administered by a Programme Provider, approved by your Probation Officer and abide by the rules of the programme to the satisfaction of the Probation Officer.
(3) To submit to electronic monitoring by way of GPS monitoring as directed by your Probation Officer in order to monitor your compliance with conditions relating to your whereabouts, and if issued with a mobile device by the Department to carry and keep it charged at all times for the purposes of communicating with the Probation Officer.
(4) To comply with the requirements of electronic monitoring and, as directed by your Probation Officer, provide access to your approved residence to a Probation Officer, and representatives of the monitoring company for the purpose of maintaining the electronic monitoring equipment.
(5) Not to have any female present at your approved address at any time unless you have the prior written approval of your Probation Officer.
(6) Not to leave the district of Whanganui without the prior written approval of your Probation Officer. The district of Whanganui is defined as the district boundary of the Whanganui District Council.
(7) Not to place any advertisement, or reference in any printed or digital publication (including the internet), and not to respond to such advertisement by any person, without the prior written approval of your Probation Officer.
(8) Not to engage in any clubs, groups, association or churches without the prior written approval of your Probation Officer.
(9) Not to use or possess any electronic device capable of accessing the internet, unless supervised at all times by an informed adult who has the prior written approval of your Probation Officer.  To immediately Inform your Probation Officer, or his or her agent, of any electronic device in your possession or control, and upon direction, give access for the purposes of checking the internet capability of the device and your compliance with this condition.
(10) Not to possess or consume alcohol or illicit drugs.
(11) If directed by your Probation Officer, to attend sessions with a departmental psychologist.
(12) Not to drive a motor vehicle without the prior written approval of your Probation Officer.
(13) Not to engage in any employment paid or unpaid without the prior written approval of your Probation Officer.

Mr N Trendle
Panel Convenor