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WILSON - Stewart Murray - 11/12/2012

WILSON - Stewart Murray - 11/12/2012

 

 

Progress hearing
Under section 29B (2) (b) of the Parole Act 2002

 

 

Stewart Murray WILSON

 

 

Hearing and Decision: 
11 December 2012

at Whanganui Prison

 

Reasons for Decision:
24 December 2012     

 

Members of the Board:                  

Hon M Frater (Panel Convenor)

Mr A Ritchie

Ms K Snook

 

Counsel:                                          

(withheld)

                                                          

Observers:                                      

B Ensor (Dominion Post)

T Graham (Radio NZ) 

 

In attendance:                                 

(withheld)

 

Reasons for decision of the Board

 

Introduction

1.                  On 11 December 2012 we saw Mr Wilson to monitor his compliance with his release conditions. In the course of the hearing we considered, but dismissed, applications under section 56 of the Parole Act 2002 to vary and discharge some of those conditions.

Background

2.                  Mr Wilson was sentenced on 15 March 1996 to 21 year’s imprisonment for serious sexual and violent offending against women and girls.  He was also sentenced on stupefying and bestiality charges.  His sentence ends on 1 December 2015.

3.                  In October 2008 the Chief Executive of the Department of Corrections applied to the Board for an order under section 107 that Mr Wilson not be released before his applicable release date of 1 September 2012.  That order was made on 16 December 2008 and extended at six-monthly reviews until he was eventually released on parole on 28 August 2012.

4.                  Mr Wilson was released subject to the standard conditions set out in section 14 of the Parole Act 2002 and 17 special conditions.  The conditions continue in force, unless varied, until 1 September 2015 when the Extended Supervision Order made by Laing J on 13 July 2012, comes into effect. 

5.                  The Department originally proposed some 21 special conditions. After a defended hearing, the Board, on 7 August 2012, imposed 17, including a condition requiring Mr Wilson to comply with a reintegration programme administered by a programme provider approved by his Probation Officer. 

6.                  Mr Wilson brought judicial review proceedings challenging the validity of that and a number of other special conditions.  The case was heard before Ronald Young J who dismissed most of Mr Wilson’s applications, except for his challenge to the Department’s interpretation of the condition relating to reintegration programme, which he referred back to the Board for further consideration.

7.                  In the event the Board was not prepared to accede to Mr McKenzie’s application to discharge the condition altogether, but it did amend the condition so that it now reads:

“To engage in, abide by the provisions of, and complete to the satisfaction of your Probation Officer and programme provider, a reintegration programme administered by the Probation Officer or by a provider or providers approved by the Probation Officer.  The details of this programme are to be determined by the Probation Officer having regard to the programme’s reintegrative purposes and the need for consistency with other release conditions.”

8.                  The focus of the hearing before us was on the implementation of this provision. 

Applications to vary and discharge release conditions

9.                  Prior to the hearing, Mr Wilson’s Probation Officer applied for an order varying Mr Wilson’s special conditions to include a condition requiring him to:

“To provide consent to the Ministry of Social Development for weekly payments of $100.00 to be automatically made from your superannuation to the Department of Corrections, to cover rent and power costs.”

10.              Mr Wilson, through his counsel, Mr McKenzie, opposed that application and countered with an oral application to discharge the condition:

“Not to possess or drive a motor vehicle without the prior written approval of the Probation Officer.”

Progress on Parole

11.              For a short time following release, Mr Wilson lived in a former Self Care Unit outside the wire of Whanganui Prison.  From 17 October he has been living in his own unit, again, outside the wire, but still within the grounds of the Prison. 

12.              Although he is subject to GPS monitoring, in practice he is unable to leave his home unaccompanied. 

13.              However, during the past three months, his exposure to the outside world has increased.  Initially, all contact between Mr Wilson and the Department of Corrections staff occurred at Mr Wilson’s home.  Within a matter of weeks, he began reporting to his Probation Officers at the Community Probation Service Office in Whanganui.  Currently he reports there twice a week but continues to have regular home visits from Probation Officers.  He has also begun meeting with a psychologist to work on a safety plan. 

14.              Whenever Mr Wilson has left his home, he has been accompanied by two staff members from Prisoners Aid and Rehabilitation Trust (PART).  As well as visits to Community Probation they have taken him to appointments and, according to the progress report, “assisted him to have a relatively smooth transition back into the community.”  With them he has gone shopping and engaged in recreational activities such as walking and fishing. 

15.              He has had some other approved visitors to his home and he has communicated with people in the community, including his (withheld) and people who have offered their support to him, by telephone and letters.

16.              But, as Mr McKenzie noted, there is no opportunity for spontaneity in any of Mr Wilson’s forays into the community.  They are all carefully planned the week before. 

Discussion

17.              Mr Wilson is frustrated. He wants more freedom to leave his house. He wants to be able to go out with people other than his (withheld) ‘minders’ – for example, with his lawyer or some of his supporters. He wants to be able to engage in a greater variety of activities. His requests to attend a concert at the Whanganui opera house, and midnight mass, have both been declined and Mr McKenzie complained that Mr Wilson hasn’t been allowed to go shopping for clothes – although it was unclear whether a specific request to do so has been made. He also wants to spend more time away from the house. Mr McKenzie said that apart from the three hours or so per day that he is with (withheld) staff, he is effectively detained under house arrest.

18.              Mr McKenzie submitted that, now that Mr Wilson has regained his drivers licence, he should be able to own a motor vehicle and drive himself into town.  He therefore sought to have the special condition prohibiting this without leave, discharged. While he conceded that there may be some concerns about Mr Wilson driving a car, he suggested that they could be met if he rode a scooter, and was prohibited from carrying passengers.

19.              We declined the discharge application.

20.              Mr Wilson was in custody for 18 years. Apart from medical visits and possibly visits to Court in connection with his various review applications, he has not spent time in the community on temporary release. He has consistently been assessed as posing a high risk of sexual recidivism. He continues to deny most of his offending and does not accept that he poses any risk.  He has only recently begun psychological counselling - which he declined to do in custody - and he has not formulated an approved or realistic safety plan. The plan which he produced to the Board has not been discussed with the psychologist. It is brief. It does not identify or adequality address his high risk situations.

21.              At this early stage following release, Mr Wilson needs careful support and supervision. He has a lot to learn about living in the community. The extent of any change or learning needs to be evaluated before he engages in new activities. Given his past, risks cannot be taken.  While he seems to be complying with all his release conditions at the moment, we accept his Probation Officer’s view that this is because of the level of supervision he is subject to.

22.              We are however mindful that at some time in the future, after rehabilitative and reintegration processes have progressed further, it may be appropriate for Mr Wilson to ride or drive some sort of motor vehicle to get about. However there is no need to vary or discharge the existing condition to enable that to happen.  The condition is flexible. It allows his Probation Officer to give consent. If and when that consent is given, and on what terms, is properly a matter for that person to determine.

23.              Similarly, we are satisfied that the question of payment of rental by Mr Wilson for his accommodation is best left for negotiation with his Probation Officer.

24.              We note that the Board which imposed the original release conditions was asked, but declined, to compel Mr Wilson to sign a license agreement in respect of his house.

25.              We also note, and concur with, the comment of the last Board that :

“It is not part of the Board’s function to become involved in the ways and means of implementing release conditions imposed by it”

26.              Having said that, we are equally clear that Mr Wilson should pay the reasonable costs of his accommodation. Community Probation seeks $100.00 per week - $87.00 for accommodation and $13 for power.

27.              Mr Wilson has been released from custody. He has to live somewhere. At present he does not have an alternative proposal for consideration. He is able to pay.  He receives government superannuation. His reintegration plan includes provision for budgeting. Discussion about appropriate rates for rental and power should occur in that context.

28.              For these reasons we also declined the Department’s variation application.

The way forward

29.              Mr Wilson’s progress on parole needs to continue to be monitored. We will see him again in March 2013 and his special conditions will be amended accordingly.

30.              Although, in his letter to the Board, Mr Wilson says that he will

“.. use common sense and avoid crowds or large gatherings where problems could occur”

and that he will

“..listen and act upon the good advice of the Probation Office who want a positive outcome for a brighter future free of any wrong doing”

the nature and extent of his offending, his failure to accept responsibility for that offending, and his history of non compliance with rehabitivive interventions in custody, justifies taking a cautious approach.

31.              Obviously an updated report from Mr Wilson’s Probation Officer is required for the next hearing. This should include updates on the rental issue, the circle of support mentioned by Mr Wilson, and progress on broadening the nature and extent of community interventions. It should also clarify whether Mr Wilson has signed the six month reintegration plan submitted to the Board.

32.              It would also be helpful to receive a brief update from the psychologist working with Mr Wilson, outlining the matters covered in their counselling sessions, identifying progress made in addressing his risk of re-offending, whether in the course of their interactions or generally, and making recommendations for further treatment. Obviously Mr Wilson’s consent will be necessary for the disclosure of this information.

33.              Finally we ask that any further applications by Mr Wilson for variation or discharge of his release conditions be made in writing prior to the next progress hearing.

Conditions

34.              Mr Wilson will continue to be subject to both standard and special conditions until 1 September 2015 when the Extended Supervision Order comes into force.

35.              The standard conditions are set out in section 14 of the Parole Act 2002.

36.              The special conditions, as amended, are:

(1)               Not to associate or otherwise have contact with any person under 16 years of age unless another adult over the age of 20 years, who has previously been informed and approved in writing by your Probation Officer, is present.

(2)               Not to attend any addiction support groups, such as Alcoholics Anonymous or Narcotics Anonymous, without the prior written approval of the Probation Officer.

(3)               Not to engage in any clubs, groups, associations or churches unless with the prior written approval of the Probation Officer.

(4)               Not to engage in any employment (paid or unpaid) without the prior written approval of the Probation Officer.

(5)               Not to have any female present at your address at any time, unless given prior written approval by the Probation Officer.

(6)               Not to have contact or otherwise associate with the victims of your offending, directly or indirectly.

(7)               Not to leave the district of Whanganui without the prior written approval of the Probation Officer. The district of Whanganui is defined as the district boundary of the Whanganui District Council.

(8)               Not to place any advertisement or reference in any printed publication (or similar, including internet publications) and not to respond to any such advertisement by another person without the prior written approval of the Probation Officer.

(9)               Not to possess or consume alcohol or illicit drugs.

(10)           Not to possess or drive a motor vehicle without the prior written approval of the Probation Officer.

(11)           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 the Probation Officer. To give your Probation Officer or their agent access to any electronic device in your possession or control, for the purposes of checking the internet capability of the device and your compliance with this condition.

(12)           To attend for a monitoring and compliance hearing before the New Zealand Parole Board in March 2013 at a time, date and venue to be notified to you in writing by the New Zealand Parole Board.

(13)           To attend sessions with a Departmental Psychologist for the purpose of developing a safety plan, as may be directed by the Probation Officer in consultation with the psychologist.

(14)           To comply with the requirements of electronic monitoring, and provide access to the approved residence for this purpose to Department of Corrections staff and representatives of the monitoring company, as directed by the Probation Officer.

(15)           To engage in, abide by the provisions of, and complete to the satisfaction of your Probation Officer and programme provider, a reintegration programme administered by the Probation Officer or by a provider or providers approved by the probation officer. The details of this programme are to be determined by the Probation Officer having regard to the programmes reintegrative purposes and the need for consistency with other release conditions.

(16)           To reside at (withheld) and not to move from that address, without the prior written approval of a Probation Officer.

(17)           To submit to, and comply with the requirements of, electronic monitoring as directed by the Probation Officer, to monitor compliance with conditions relating

to your whereabouts.

 

Hon. Marion Frater

 

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.