MONK - Leister Walter - 30/06/15
Under section 21(1) of the Parole Act 2002
MONK, Leister Walter
Hearing: Tuesday 30 June 2015
Members of the Board:
Judge R Callander (Panel Convenor)
Mr A Shaw
Ms S Pakura
Support People: (withheld)
DECISION OF THE BOARD
1. The primary function of this Board is to decide whether Mr Monk should be granted an early release from prison to continue serving the sentence in the community under the supervision of a probation officer. Mr Monk asks that we grant him such a release.
2. We make our decision pursuant to the provisions of the Parole Act 2002. We are bound to comply with what Parliament directs in that Act and have no powers beyond those set out therein. We must, as best we can, make our decisions in accordance with the principles and purposes defined for us in the Act.
3. The relevant part of Section 7 of the Act is:
"When making decisions about, or in any way relating to, the release of an offender, the paramount consideration for the Board in every case is the safety of the community."
4. Offenders must not be detained any longer than is consistent with the safety of the community, and they must not be subject to release conditions or detention conditions that are more onerous, or last longer, than is consistent with the safety of the community.
5. In assessing whether an offender poses an "undue risk", we must consider: the likelihood of further offending; and the nature and seriousness of any likely further offending
6. Section 28 of the Act says that we may give a direction to release an offender on parole only if we are satisfied on reasonable grounds that the offender, if released, "will not pose an undue risk to the safety of the community or any person or class of persons within the term of the sentence, having regard to the following:
• The support and supervision available to the offender following release.
• The public interest in the reintegration of the offender into society as a law-abiding citizen.
• Decisions must be made on the basis of all the relevant information that is available to the Board at the time
• The rights of victims are to be upheld, and victims' submissions and any restorative justice outcomes are to be given due weight.
S 28 (1AA) emphasises that there is no entitlement to parole:
In deciding whether or not to release an offender on parole, the Board must bear in mind that the offender has no entitlement to be released on parole and, in particular, that neither the offender's eligibility for release on parole nor anything else in this Act or any other enactment confers such an entitlement.
7. Each parole decision differs because the circumstances of each offender differ. The application of these principles will vary just as each offender differs as to:
• Personal history and character
• The nature and gravity of the crime or crimes committed
• The impact of those crimes on society in general or victims in particular available community resources and support
• The perceived likely response of the offender to rehabilitative and reintegrative proposals.
8. In assessing the future risk presented by a criminal offender to the safety of the community there are no absolute certainties. Predictions are not certainties. Human behaviour is often unpredictable, erratic and profoundly influenced by future emotional and environmental pressures. Members of the NZ Parole Board use four basic approaches to the assessment of prisoner risk:
(a) Statistically based and structured, objective, validated risk assessment tools that focus on:
Stable risk factors such as:
• whether he has pro-social peers
• his attitudes towards authority
• his ability to control his impulses
• whether he can sensibly solve problems
• whether he has a sense of entitlement
• attachment with others
Acute risk factors such as:
• substance abuse
• anger or hostility
• exposure to high risk situations
• negative mood
• interpersonal relationships
• living Situation
Protective factors such as whether he:
• responds well to good advice
• identifies with pro-social or anti-social attitudes
• supporters have high or low expectations of his future success
• sees a pro-social or criminal lifestyle as most rewarding
• has pro-social support networks
• is influenced by pro-social rule systems
(b)The assessment and clinical opinions of psychologists and psychiatrists sometimes based on empirical research findings. In this case we had the assistance of a psychological assessment by (withheld).
(c) Actuarial risk assessment such at the RoC*RoI - a New Zealand measure based on static predictors (factors unchangeable by individual effort) from criminal history information. Mr Monk’s RoC*RoI is identified as being very low.
(d) A subjective assessment by Board Members using a combination of record information and interview
9. Overseas and local studies show that the best by far of these four approaches is the structured, objective, validated risk-assessment instrument. It is a much more reliable risk assessment tool than interview evaluations by Board members or psychologists/psychiatrists. Often these clinicians and board members, if relying simply on interview, are little better than anyone else at making a reliable assessment of future risk. We can all be hoodwinked by the personal charm of a deceitful offender or may unfairly judge them negatively because we are disturbed by personality characteristics or criminal behavior we find abhorrent.
10. In assessing Mr Monk we rely predominantly on the structured risk assessment model with reliance upon the ROC*ROI and the other models we have mentioned.
11. On our analysis of Mr Monk’s stable risk factors we see him as having a potential problem with his somewhat narcissistic view of the world. His demeanour at the hearing still suggested a glib belief in his own superior intelligence, academic achievements, eminent friends and associates, and ability to live a simple life without the need for affluence. He presents as a man who, despite his time in prison, has an inflated sense of self-worth. We believe him to exhibit shallow affect and we could see that he uses his undoubted charm to manipulate others.
12. The majority of the board doubted his credibility, felt he was not genuine in his protestations of remorse, and that his intensive counselling may well not have changed his thinking. He uses the right words, and uses them very well, but they doubt his sincerity. There is a suggestion of indifference to others. They doubt that he really understands the consequences of his criminal behaviour. While we always hope that rehabilitation programmes in prison will effect permanent change, we must be realistic when assessing a man who has spent a lifetime deceiving others.
13. He does not present with significant acute risk factors. There is no history of problematic alcohol use. He does not consume drugs. There is no evidence of anger, hostility, depression or mental ill health. His relationships with others are stable and, given that he is 75 years old, we do not see employment issues as of relevance. Our only concern was the possibility of regressing to his old gambling addiction, but with the lengthy and professional gambling counselling he has undergone we do not see that as an undue risk.
14. Against the stable and acute risk factors we have weighed several pro-social protective factors in his favour. He is seemingly accepting of sensible guidance from prison staff and professes to have put his former life of crime behind him, has sound community support with several pro-social friends and associates providing supportive testimonial as to expectations that he will succeed in the community. There is little to suggest any current anti-social attitudes or beliefs.
15. The psychological report dated 13 May 2015 was requested by the last Board. (withheld) report was informative and helpful, not just for the assessment of future risk, but for the insight he provided as to Mr Monk’s lifetime of fraudulent criminality, his current functioning, and his potential to reoffend.
16. At para 24 of his report (withheld) observed:
Mr Monk appears to have developed pervasive, longstanding characteristics and behaviours that have enabled him to offend over a 50 year period, placing very little, if any, value on the rights and needs of others. He presents as having an over-inflated sense of his own self worth that in part likely contributed to his development of self entitled beliefs, judgemental tendencies and a callous disregard for others; but also fuelled his pursuit of a "hedonistic lifestyle" that he considered befitting of his ''gifted" self. His apparent desire to mix in social settings with well-known and educated people possibly fuelled his difficulties with gambling … Mr Monk’s ability to manipulate, deceive and con others for personal gain, the absence of empathy and remorse for his actions, as well as his reported gambling addiction have all served to maintain his offending behaviour.”
17. One member of the Board took the view that at age 75 Mr Monk was unlikely to offend again, and for that principal reason might no longer be considered an undue risk to the safety of the community. However, at para 28 of his report (withheld) addressed that issue:
“Age was another factor considered in assessment of Mr Monk’s risk of recidivism. Typically advancement in age can be considered to have a mitigating effect on an individual’s risk of recidivism. However, in Mr Monk’s case his index offending continued until his arrest in 2011, aged 71 years, ruling out the possibility that age can be considered mitigating in his case.”
The majority of the Board therefore discounted his age as a meaningful protective factor.
18. The Board accepts the observation of (withheld) that the protective factors evidenced by Mr Monk’s intellectual understanding, his triggers to offending, and his strategies to manage his risk and ability to articulate high-risk situations and personal insight are “reliant on the genuineness of his commitment and motivation to change and his history of deceit and manipulation means his assertions need to be viewed with caution.”
19. We have exercised that caution by declining him parole at this time. Because he has been in prison his actual ability to manage his risk remains untested.
20. Mr Monk submits that his low RoC*RoI of .11179 is a strong indicator that he is not an undue risk to the safety of the community. The RoC*RoI measure was developed for the New Zealand Department of Corrections to assist in the accurate prediction of an offender’s risk of conviction and likelihood of re-imprisonment. The measure, based on an inventory of the complete case histories of more than 133,000 New Zealand offenders, focuses on static predictors (factors unchangeable by individual effort) from criminal history information. The tool measures a combination of two risk models. RoC refers to Risk of re-Conviction, while RoI is the Risk of re-Imprisonment. These two risk models derive from the mathematical relationship between basic social and demographic variables, criminal history variables, and future offending.
21. The RoC*RoI measure, therefore, is an expression of the likelihood that a person will be both reconvicted in the future and be sentenced to a term of imprisonment for that offence. The measure analyses the mathematical relationship between sixteen predictor variables. A lengthy time frame between convictions greatly reduces the RoC*RoI score. Frequency of convictions and time spent in prison and at large are taken into account. The fact that Mr Monk had 21 years at large without conviction before his index sentence is the main reason his calculation is so low. It arises because he is now 75 years old.
22. He has over 100 convictions for dishonesty. Given his long life, the convictions extend over a long time frame of fifty years. He was first imprisoned in 1961 (for 3 months) on a theft conviction, followed by a term of corrective training the following year, 1962. It was then a decade before his next sentence of imprisonment in 1972 to 15 months imprisonment on 48 charges of false pretences and one of deception. He was next sentenced in 1975 to 4 years imprisonment for false pretences. In 1988 he was sentenced to 2 years imprisonment on a variety of fraud related charges.
23. The current index offending commenced in 1990 (not long after his release from imprisonment for the 1988 sentence) and went on without detection until his arrest in 2011 when he was 71. As mentioned, It is the 21 year period without conviction that reduced his RoC*RoI to such a low figure. However, for the Board, an enhanced risk factor arises from the actual continued serious offending during those two decades. He was fortunate that his persistent offending went undetected.
24. At sentencing, Judge Moses said this in paragraph 7 of his decision:
“This offending was sustained offending. Mr Monk used charm and his intelligence to lull unsuspecting victims into various fraudulent schemes [leaving] behind a trail of despair, anger and hurt that time may never heal.”…
“Having heard from you today I can see what the victims have said, that you are an arfticulate, intelligent and persuasive person. They are all potentially good qualities, Mr Monk, but you have chosen to use those qualities in a dishonest and criminal way.”
25. We are aware that after the Board gave its decision on 4 August 2014 Mr Monk took it to review. The Reviewer, in his decision of 22 September 2014 considered the issues raised by Mr Monk in his review application but rejected them as unsustainable. He wrote:
“In assessing Mr Monk’s risk to the safety of the community for the balance of his sentence, the Board’s decision reflects its consideration of the progress Mr Monk had made in prison, has commitment to recovery from his gambling addiction, and to his support network and resources available to him in the community. Against that, it considered his long history of dishonesty offending and his equally lengthy gambling addiction. Having also seen Mr Monk, the boards scepticism of change was an assessment that was open to it on the basis of the information before it.”
26. That summary remains valid.
The six main points raised by Mr Monk in that application were raised again by him at his hearing before us, namely:
(a) His stated attempts to positively change his way of life.
(b) The intensive therapy he has received for his gambling addiction from (withheld).
(c) The support he has from eminent members of the academic and legal community in Auckland. This was supported by the presence at the parole board hearing of (withheld).
(d) That he has been a model prisoner, supportive of present staff, compliant and helpful.
(e) That the board was wrong in suggesting that his positive and constructive efforts in prison were not genuine but merely indicative of a manipulative personality.
(f) His low RoC*RoI 0.1189.
We have considered all these matters and by a majority decision the Board declines parole because of:
(a) the undue risk still posed to the safety of the community; and
(b) the likelihood that he will further offend while on parole and that such likely further offending will be serious.
(c) that his attitudes towards crime have not changed and blending him back into society would not be in the public interest at this time.
27. The majority of the Board are sceptical of whether there has been real change in Mr Monk’s core beliefs. They are dubious about his protestations of transformation. The proof will be in the pudding once he has been released from prison. The indisputable fact, as he himself acknowledges, is that he is a serious recidivist fraudster from whom the public needs protection. The majority are unconvinced from his demeanour at the hearing, or the fact that he has been compliant and had thorough gambling counselling, that he has changed his core belief and is no longer an undue risk to the safety of the community.
28. In rejecting his submissions, we acknowledge the statutory injunction that offenders must not be detained any longer than is consistent with the safety of the community. The safety of the community remains the critical consideration.
29. We emphasise that there are essentially two rationales for a system of parole in New Zealand and are borne in mind when parole decisions are made. First, that a release on parole helps to reduce the social and financial costs of lengthy prison sentences. Second, as s.7 of the Act makes clear, parole acts as a corrective mechanism to manage sentences, instil discipline, and manage risk in prison, with the aim of reducing the risk of recidivism. The prospect of early release gives an incentive for offenders to participate in rehabilitation programs while in prison. However, participation in counselling – even successful participation – is not always enough to meaningfully establish the bona fides of an offender and satisfy us that he should be released early. We will see Mr Monk again in twelve months.
30. (withheld) says that provision of further intervention to address his low/moderate-offending risk is deemed unnecessary. Consideration may need to be given to his involvement in work related activities that progress him outside the prison wall. Given his age, release to work is unlikely to be an option for Mr Monk.
Judge J R Callander