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MACDONALD - Ewen Kerry - 11/12/2012

MACDONALD - Ewen Kerry - 11/12/2012

 

Parole hearing
Under section 21 (1) of the Parole Act 2002

Ewen Kerry MACDONALD

Hearing
11 December 2012
at (withheld) Prison

Members of the Board
Hon. Justice Gendall (Panel Convenor)
Ms R Pritchard
Mr N Trendle

Also present
Mr A Spierling New Zealand Parole Board
Ms J Turner New Zealand Parole Board
S Bradwell (media)
J Ellingham (media)

Support person
(withheld)

 

Decision of the board

1.                  Ewen Kerry Macdonald was sentenced to an effective cumulative term of five years imprisonment in the High Court of Palmerston North, on 14 September 2012.  He had pleaded guilty to three charges of intentional damage, two charges of arson and one charge of theft.  Because of the lengthy time he spent on remand before sentence, his parole eligibility date is 7 December 2012 and he is before the Board today for the first time for consideration of parole.  His sentence end date is 6 April 2016.

2.                  Mr Macdonald’s offending occurred over a two-year period from December 2006 until the end of January 2009, apart from the charge of theft in December 2006, which involved the killing of a trophy stag animal.  The other crimes could be described as acts of vengeance and revenge.  They are described in the Sentencing Notes of Simon France J. dated 14 September 2012.  They involved three separate groups of victims.  In summary they involved destruction of 1,600 litres of milk of one victim and the killing of 18 calves of a separate victim on the night of 9 August 2007.  They were acts in retaliation for what Mr Macdonald perceived were wrongs done to him, that is there was knowledge in the community that he had infringed against others, which of course was correct.  A further act of retribution was to follow seven months later when Mr Macdonald, with an associate, burnt to the ground a 110 year old whare, a treasured possession of the family of one of his first victims.  The Sentencing Judge said that the acts of Mr Macdonald were, amongst other things, nasty, cruel and senseless.

3.                  Further offending involved different victims, namely, members of his family, his brother-in-law and sister-in-law.  In a premeditated attack, he and his co-offender, set fire to a house being the property of the farm of the family of his brother-in-law and sister-in-law, and transport trailer on which it sat.  The loss through that arson was approximately $650,000.  Later, he and his associate in another premeditated attack, dreadfully damaged a house being built for his brother-in-law and sister-in-law wantonly smashing walls, windows, plumbing and fittings and leaving offensive intimidatory graffiti, which he painted on the outside of the house, directed at his sister-in-law.  Simon France J. in his sentencing said:-

           “It was a targeted, cruel act, motivated as with earlier acts of damage, by the desire to hurt.  On this occasion it was exacerbated by the horrible insults he painted on the walls, directed at Mrs Guy.” 

4.                  The Probation Officer’s report to the High Court prior to sentencing refers to Mr Macdonald believing that he thought that the retribution to his victims (other than his in-laws), was “justified”.  It refers to him as endeavouring to shift some blame on to his co-offender and presenting as “unemotional” throughout the interview.  The Probation Officer described Mr Macdonald as being of medium risk of re-offending but should he continue to “engage in illegal activity in order to relieve his stress and seek retribution, his risk will likely increase”.

5.                  Viewed overall the crimes to which Mr Macdonald pleaded guilty displayed premeditated, brutal and callous actions undertaken under cover of darkness.  His responsibility only came to light eventually when in April 2011 he was left with no option but to admit them when faced with overwhelming evidence of admissions made by the young man who assisted in the crimes.

6.                  The Board advised Mr Macdonald in general terms that his registered victim does not support his release and opposes it.

7.                  The Board had before it, a Parole Assessment Report, a psychologist’s report, the Probation Officer’s Pre-sentence Report, the Sentencing Notes of Justice France and Summary of Facts, and has had access to the record of Mr Macdonald’s interview with the police (given in evidence at another trial) in which he eventually came to admit these crimes.

8.                  The Board has also had the opportunity of hearing from Mr Macdonald and assessed some of his responses to questions put to him.

9.                  The test for the granting of parole is well-known.  It is not a right but a privilege.  It is provided by statute.  It can only be granted in circumstances where the Board assesses that the inmate would not pose undue risk to the safety of the community or any person in it.  The paramount consideration as provided in s.7(1) of the Parole Act 2002, is in every case “the safety of the community”.

10.              The Board is also guided by the principle that an inmate must not be detained any longer than is consistent with the safety of the community.

11.              Determining the issue of future risk is undertaken through a structured decision making process and not intuitively.

12.              During his time in prison Mr Macdonald has been described as a model prisoner but has not had opportunity of undertaking any programmes.  For much of the time he has been on remand and in accordance with the Departmental assessment, does not meet the Corrections criteria for group treatment.  But the present Psychological Report suggests that Mr Macdonald does not see treatment as necessary other than in order to appease the Board, or satisfy the public.  The report says that Mr Macdonald sees any “recommendation of suggested interventions being to a need for the Parole Board to appease the public rather than a need for him to re-engage in rehabilitative interventions”.  We make it clear to him that the Board’s task as required by law, is to release those who are eligible for parole only if they are no longer an undue risk to the community.  It has nothing to do with “appeasing the public”.

13.              In Mr Macdonald’s presentation to the Board today, there were some features which have left us with concerns.  Whilst he admitted to the index offences and said in his letter that he was ashamed and disgusted with himself, he was still inclined to diminish his responsibility and pass it on or share that with his much younger co-offender.  Whilst he has shown signs of reform and said he was committed to leading a law abiding life, more often he described his actions as “stupid” rather than wrong.  He showed a limited grasp of, and identified a limited range of moral principles that would guide his behaviour in the future.  From his account to the Board, he identified his motives for each offence but demonstrated little insight into the underlying causes of his offending.  He presented with a narrow emotional range and repeated his wish to look ahead rather than to the past, which raises questions in the Board’s mind about how seriously he views his offending and its impact.  The Board was left with considerable concern about his pattern of offending having been planned and repeated over a period in excess of two years; calculated and malicious, destructive, hidden through actions and lies, and denied.  He gained satisfaction from and put effort into inflicting harm on those who he perceived had offended him and over a lengthy period took steps to avoid discovery.

14.              This impression was mirrored in the Psychological Report which described Mr Macdonald as displaying narcissistic traits.  A psychometric personality test had been administered and revealed ‘a marked tendency to portray himself as having socially desirable qualities’ and ‘can be self-involved and over value his self worth’.  On another measure Mr Macdonald revealed ‘an over-controlled personality that relies excessively on denial and repression to cope with and avoid anger’.

15.              The Board is not qualified to make any diagnosis and does not purport to do so, but is required to be concerned with risk which needs a careful assessment of Mr Macdonald’s personality.  The Board’s conclusion is that he does not meet the required statutory test for release without significant intervention and treatment, at least comprising intensive one to one psychological counselling.  We are not satisfied that presently Mr Macdonald would not pose an undue risk to the community or any person in it with whom he should feel umbrage.  Because of the Board’s concern over this risk, it requires that Mr Macdonald, apart from undertaking one to one psychological counselling, be the subject of a full forensic psychiatric assessment from a professional in a different field who may deal with opinion on matters such as Mr Macdonald’s personality, present psychological makeup, risk factors and PCL-R personality traits which might impact upon his future risk.

16.              Accordingly parole is declined and Mr Macdonald will be seen again in accordance with the statutory cycle.

Hon. J Gendall
Panel Convenor

Review

 You may apply for a review of the Board’s decision under section 67(1).  The only grounds under which you may make an application for review are that the Board, in making its decision:

a)     Failed to comply with procedures in the Parole Act 2002; or

b)     Made an error of law; or

c)     Failed to comply with Board policy resulting in unfairness to the offender; or

d)     Based its decision on erroneous or irrelevant information that was material to the decision reached; or

e)     Acted without jurisdiction.

To apply for a review you must write to the Board within 28 days of its decision stating which of the above ground(s) you consider to be relevant in your case and giving reasons why you believe that ground(s) applies.

Reviews are considered on the papers only.  There is no hearing in respect of your Review Application.