WILSON - Stewart Murray - 30/03/2012
Under section 107(6) of the Parole Act 2002
Stewart Murray WILSON
30 March 2012
at (withheld) Prison
Members of the Board:
Judge P D Mahony (Panel Convenor)
Ms J Donaldson
Ms L Campbell
Mr A McKenzie for Respondent
Ms P Currie for Applicant
(Withheld) (Departmental Psychologist)
Mr A Dudding (Sunday Star Times)
Ms S de Friez (NZPB Communications Manager)
DECISION OF THE BOARD
- This is the eighth and final review of a section 107 order made on 16 December 2008 following the most recent review held on 17 October last.
- Mr Wilson while sentenced to 21 years imprisonment on 15 March 1996 and his applicable release date calculated under the Parole Act 2002 is 1 September of this year. Therefore five months of his sentence remain.
- He was sentenced for gross sexual offending over a 25-year period including rape, stupefaction, indecent assaults, bestiality and wilful ill-treatment of a child.
- The Department was represented at this hearing by Ms Currie and counsel had also filed comprehensive written submissions in advance of the hearing. Mr A McKenzie appeared for Mr Wilson having represented him on a number of earlier occasions as well.
- The Board has before it a parole assessment report prepared by Mr Wilson’s Case Manager and an addendum psychological report dated 13 January 2012 prepared by (Withheld), a Registered Clinical Psychologist who had prepared a number of earlier psychological assessments as well. She was present at the hearing for cross-examination by Mr McKenzie.
- The test for making an order that an offender not be released before the applicable release date is set out in section 107(3). It states that:
“The Board must make the order if it is satisfied that the offender would, if released before the applicable release date, be likely to commit a specified offence between the date of release and the applicable release date.”
- On review the Board must revoke the order if it is no longer satisfied that the test in subsection 3 is met (see section 107(7)). In applying that test the Board must be satisfied:
“… that there is a real and substantial risk of reoffending of the specified kind within the specified period if an order is not made, and that such risk is significantly greater than the risk of recidivism ordinarily attaching to such offending.”
Wilson v Parole Board  3 NZLR 399 at ,  and .
- As Mallon J observed in Wilson v New Zealand Parole Board, 30 May 3011, CIV 2010-409-002933, Christchurch Registry:
“Because an order is in place (so the Board was satisfied when the order was made that the test was met), the Board’s focus on a review will be on whether there has been any change in the risks.”
- The parole assessment report referred to Mr Wilson’s refusal to participate in the preparation of the report and in particular his refusal to provide any information about his release proposals other than that he was working with Prisoners Aid and Rehabilitation Trust to find accommodation. He refused to indicate in what part of the country he intended to reside. The Case Manager in indicating that there had been no progress in assisting Mr Wilson with a release proposal also said that efforts to do so would continue. The report also refers to Mr Wilson’s current low security rating with a further review in March 2012. It referred to his observance of day-to-day prison rules and it referred to his motivation and work ethic in his employment in the Unit’s garden.
- The report also referred to Mr Wilson’s continued denial of responsibility for his offending and his refusal to engage in any programmes which could assist him in addressing his offending and assisting with his reintegration. The tenor of the report makes it clear that Mr Wilson has been positively obstructive of efforts to help him and that this has been his attitude throughout.
- (Withheld)’s report refers to initial contact made with Mr Wilson and some engagement with him although he refused to speak with her in any formal sense.
- Her report is referred to as an “addendum report” to be read in conjunction with prior reports.
- At paragraph 16 she referred to previous assessments of Mr Wilson as falling within the group that poses a high risk of sexual recidivism. She went on to say that no information had been identified over the six months preceding the current addendum report which could lead to a change to the previous assessments. She did note nevertheless that recent interactions may indicate a greater willingness from Mr Wilson to engage with Departmental staff.
- Counsel for the Department asked (Withheld) if a “fresh set of eyes” assessed Mr Wilson’s case, a different assessment might emerge.
- By way of response she referred to the number of psychologists involved over the years and the system of peer review and checks undertaken to ensure that objectivity was maintained.
- Mr McKenzie raised with her the narrow window of opportunity for reoffending in the five-month period remaining. There was a discussion about offending rates as depicted on a graph drawn from ASRS statistics. There was a very significant difference in rapid offending rates between high and medium-high bands. We did not find that discussion which was based on a statistical analysis relating to a population of offenders of particular assistance in this case. We agree with (Withheld)’s evidence that in assessing the likelihood of further offending the Board should consider the range of static and acute factors presented by Mr Wilson and the impact which the acute factors have on the underlying static factors.
- Following the evidence from (Withheld), Mr Wilson made a statement to the Board indicating that a ruling made by the Department in 1997 had made a difference to the possibility of individual counselling over subsequent years. He also said that if he had been asked to undertake a programme instead of demanding that he do so there would have been a different outcome.
- Ms Currie confirmed what had been set out in the written submissions, in particular noting that the section 107 threshold was still met and that nothing had changed since the last review confirming the order. She referred to the factors set out in paragraph 19 of the submissions and submitted that there was no change which would justify the Board saying that the test was no longer met.
- Mr McKenzie submitted that we could not predict offending within the six months between now and 1 December. He reminded the Board that we were dealing with a penal order which was an exception to the general rule. He did not accept that nothing had changed, referring to the narrower window of opportunity which must result in a lower level of risk in the face of an analysis of reoffending rates taken over a five to 10-year period. He said that predicting reoffending was nothing more than a guess.
- He referred to a further factor impacting upon risk – that was the ability for the Board to recall Mr Wilson if he breached any of his conditions of parole.
- In our view, it would be quite unsafe to apply the test in Section 107 by reference only to statistical data drawn from bands of offenders.
- We do not accept the submission of counsel that in the face of the reduced window of opportunity (to use counsel’s expression) applying the test involves an exercise in mere guess work.
- In our view, the personal factors uniquely applying to this offender point to the strong likelihood of further similar sexually deviant behaviour occurring as soon as he has the opportunity to engage in it.
- We refer in particular to the impact of identified and obvious dynamic factors on underlying passive factors. These are referred to in the various paragraphs of the psychological report dated 6 September 2011 in paragraphs 14-27 under the heading “potential to re-offend”.
- In the result we are satisfied that Mr Wilson continues to meet the threshold test set out in section 107. We take into account in particular the nature and extent of his offending and his ability to avoid detection together with his denial of responsibility for his offending, his unwillingness to engage in any treatment for his offending and his unwillingness to disclose his release plans or cooperate in developing any protective measures.
- We think particularly ominous his comment reported by (Withheld) when he was asked about contact with children under the age of 16, saying “I don’t give a stuff about that”. Accordingly we confirm the order.