SMITH - Phillip John - 23/11/2015
Under section 21(1) of the Parole Act 2002
Hearing for Postponement Order
Under section 27 of the Parole Act 2002
Phillip John SMITH
Hearing: 23 November 2015
Members of the Board:
Alan Ritchie – Panel Convenor
Assoc. Prof P Brinded
Mr B McMurray
Mr J Thomson
Ms S Pakura
Lawyer: Dr T Ellis
In attendance: (withheld)
DECISION OF THE BOARD
1. References in this decision to the Act or to sections are (unless otherwise stated) references to the Parole Act 2002 or to sections of that Act.
2. This decision is issued on 2 December 2015. It was reserved from a hearing on 23 November 2015 for which Phillip John Smith, 41, waived his entitlement to appear for the consideration of parole on his life sentence for murder committed in 1995. The victim was the father of a boy earlier indecently assaulted by Mr Smith over a period of years.
3. We note that Mr Smith’s criminal record discloses convictions for fraud committed in prison between 2006 and 2010. There is also a varied and extensive history of offending before the murder, including fraud, extortion, attempted arson and escape from police custody.
4. Mr Smith was represented at this hearing by counsel, Dr Ellis.
DISQUALIFICATION OF BOARD MEMBERS
5. In his written submissions Dr Ellis urged the disqualification (from hearings involving Mr Smith) of the three members of the panel of the Board which considered parole for Mr Smith on 27 March 2015. Dr Ellis said the disqualification should continue at least until active charges against Mr Smith (of escaping from lawful custody and an offence against the Passports Act 1992) are resolved.
6. Two of the members of today’s panel, Ms Pakura and Mr McMurray, were on the 27 March 2015 panel.
7. Dr Ellis based his request on a passage in the 27 March 2015 decision which read:
“In the intervening periods a significant development occurred. Mr Smith absconded/escaped by failing to return to prison when afforded the privilege of temporary leave granted by the prison. It is well publicised that he fled overseas to escape from the consequences of his life sentence.
8. Dr Ellis has asserted that this passage amounts to a finding (contrary to a presumption of innocence) that Mr Smith escaped, which is the subject of one of the active charges and on which Mr Smith is yet to be tried.
9. The Board has considered Dr Ellis’ submissions by reference to section 118.
“The chairperson must, if he or she becomes aware that a member has, or may be perceived as having, bias for or against an offender, require the member to excuse himself or herself from further-
(i) participating in a panel that considers an application by or relating to the offender; and
(ii) making, or participating in making, any other decision under this Act that relates to the offender.”
10. As it happens, the Panel Convenor for this hearing held an appointment (pursuant to section 113(4)) as acting chairperson between 16 November 2015 and 24 November 2015. In his view there was no justification for the exercise of the provisions of section 118(2).
11. There can be no dispute over Mr Smith’s entitlement to the presumption of innocence on a charge before a court. But, there is an abundant distinction between that and the view expressed by the panel on 27 March 2015.
12. Whatever might be the niceties of proof in a court, the Board (pursuant to section 117) may take into consideration whatever information it thinks fit, whether or not the information would be admissible as evidence in a court of law.
13. The Board’s observation that Mr Smith failed to return to prison from temporary leave by absconding or escaping seems incontrovertible and not a basis for any suggestion of bias or predetermination on the part of Ms Pakura or Mr McMurray for the purposes of this hearing.
14. In reaching that view reference is made to the test often employed by courts when matters of disqualification by Judges are being considered i.e. that Judges should disqualify themselves in circumstances where a fair-minded, properly informed lay observer would have a reasonable apprehension that the Judge might not bring an impartial mind to the resolution of the question the Judge is required to decide. The standard is one of real and not remote possibility, rather than probability.
15. For completeness, we note Dr Ellis’ assertion that Mr McMurray’s past dealing with Mr Smith, as part of his work with the Department of Corrections, should also lead to disqualification. We do not accept that. Mr McMurray advised the hearing that effectively he had not worked in prisons since 1996 and would have had little or nothing to do with Mr Smith. In any event, Dr Ellis conceded he had only imperfect instructions from Mr Smith on this point.
16. Dr Ellis has advised that Mr Smith opposes the making of a postponement order.
17. A notification of intention to consider the making of a postponement order was signed by the Board’s chairperson on 1 October 2015 and served on Mr Smith on 6 October 2015.
18. In his submission, Dr Ellis says that a notification under the hand of the chairperson does not amount to a decision of the Parole Board. It is a notice by the chairperson not by the Board, he says. He calls in aid section 27(3) referring to notice by the Board and section 112 which sets out the functions of the chairperson.
19. We do not accept Dr Ellis’ submissions. First, it is tolerably clear from the Board’s decision of 27 March 2015 that the Board at least had in mind the prospect of a postponement order being considered at this hearing when it said that if postponement were to be considered, Mr Smith would be given formal notice of that possibility.
20. We do not accept that the notification by the chairperson is defective.
21. “Board” is defined in section 4 as meaning:
“….the New Zealand Parole Board established under section 108, and includes a Panel of the Board, a panel convenor, and the chairperson acting within their respective jurisdictions.”
22. Under section 112(2) the primary function of the chairperson is to ensure the Board carries out its functions in accordance with the Act in an efficient and effective manner.
23. Dr Ellis refers to the various functions of the chairperson as set out in section 112(3) and concludes that the chairperson would be acting ultra vires in giving notice “off his own bat.”
24. That, it seems to us, does not take account of section 112(3) which provides that the articulation of specific functions does not limit the function described in section 112(2).
25. We are satisfied that the Board on 27 March 2015 adequately indicated a decision that postponement be considered at this hearing and, even if that is not correct, we are satisfied that notification by the chairperson is sufficient.
26. Dr Ellis has made strong submissions that Mr Smith, having served his minimum non-parole period, is now detained solely for the protection of the public. If that is so, asked Dr Ellis, then why is Mr Smith being held in punitive conditions which are a barrier to rehabilitation.
27. Dr Ellis referred at length to issues of dignity, respect and hope and made the point that the Board should take a position on arbitrary detention rather than just ignoring it.
28. There is no need for us to analyse Dr Ellis’ submissions on these points. It is not our role to manage Mr Smith in the particular circumstances. Our role must be limited to suggestions and recommendations or support for certain courses of action and we will return to that later in this decision.
THE QUESTION OF PAROLE
29. Dr Ellis says that while having no expectation of parole, Mr Smith is obliged to seek it to enable him “to pursue his domestic remedies in the higher Courts and international tribunals.”
30. As always, the Board’s paramount consideration must be for the safety of the community. That is the effect of section 7. We are required by section 28(1AA) to bear in mind that Mr Smith has no entitlement to be released on parole.
31. And, under section 28(2), we can give a direction for release on parole only if we are satisfied on reasonable grounds that Mr Smith would not pose an undue risk to community safety within the term of his sentence which in this case, of course, is for life.
32. In considering a direction for release we must have regard, amongst other things, to the support and supervision available to Mr Smith. In this regard we have gathered from the parole assessment report that there is no approved accommodation and no plans for employment. The report also says that Mr Smith did not wish to provide contact details for his support network. He is quoted as saying it was not necessary at this stage and as being realistic that parole was not a likely outcome of this hearing.
33. Those are all matters relevant to our assessment of risk.
34. Also relevant is the question of whether Mr Smith has received appropriate rehabilitative and reintegrative intervention.
35. The psychological assessment report of 18 June 2015 rates Mr Smith’s overall risk of general and violent re-offending as high and of child sexual re-offending as medium/high. It recommends that once the active charges are resolved that Mr Smith’s motivation to engage in specialist treatment be assessed.
36. Dr Ellis says that Mr Smith accepts he needs specialist treatment to address violence but said it should have been provided before his first hearing for the consideration of parole and not so belatedly.
37. Furthermore, Dr Ellis disputes the accuracy of risk assessments including those made by the writer of the psychological report of 18 June 2015.
38. Dr Ellis adds that compounding the absence of proper and timely treatment should not be made worse by “denying parole by postponing an application for years to come.”
39. Dr Ellis says there is insufficient evidence to conclude Mr Smith is a danger and a risk to the public. He could, Dr Ellis says, be released and “required to do the Serious Violence Treatment whilst on electronic monitoring.”
40. On the question of reintegration, we acknowledge that Mr Smith appeared to have been on some appropriate pathway. It is ironic, however, that the privilege was squandered through his own actions.
41. We are required by section 7(2)(c) to make our decisions on the basis of all of the relevant information available to us. The Courts have held that the weight to be given to the available information is a matter for the Board.
42. In this case we have no doubt that risk is undue and parole is declined.
THE QUESTION OF WHEN MR SMITH WILL BE SEEN AGAIN FOR THE CONSIDERATION OF PAROLE
43. We are not making a postponement order. We note Mr Smith’s acceptance that he needs intervention to address causes of his offending. We are not satisfied in terms of section 27(1)(b).
44. We are supportive of the intervention being provided in a timely way and that the effectiveness of it be assessed and advised to the Board in a full psychological report which we are requesting for the next hearing.
45. We are also supportive of Mr Smith, at an appropriate time, being returned to reintegrative activity in accordance with departmental policies.
46. We are scheduling Mr Smith to be seen again for the consideration of parole in September 2017 and, in any event, by no later than the end of that month.
47. During the hearing, Dr Ellis asked that our decision record his objection to the absence of a written Board decision to exclude media from this hearing. There was no application by Mr Smith for media attendance. The decision by the Panel Convenor not to allow media access was taken in accordance with sections 49 and 117A. In this connection we have particularly noted Dr Ellis’ own concern over media issues which he expressed by reference to the 1995 Court of Appeal case, R v Coghill 3 NZLR.