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OCTOBER - Michael Wayne - 03/10/2018

Application for recall

Under section 60(1) of the Parole Act 2002

between

[withheld]
Delegate for the Chief Executive of the Department of Corrections
Applicant

and

Michael Wayne OCTOBER
Respondent

Hearing: 3 October 2018

at Christchurch Men’s Prison by AVL from New Zealand Parole Board, Wellington

Members of the Board:

  • Alan Ritchie (Panel Convenor)
  • Ms S Driver
  • Ms G Hughes

Counsel:

  • Mr K Cook for Respondent
  • Mrs P Currie for Applicant

In Attendance:

  • [withheld]

DECISION OF THE BOARD

  1. The Board has considered an application for Michael Wayne October (aka Mikaere Oketopa) 49, to be recalled from parole to prison to continue serving his life sentence for murder and rape committed in 1994 but which he has consistently denied (saying he was asleep in an associate’s vehicle at the time).
  2. He was first released in 2005 but recalled in 2010, after serious violent offending against a partner.  He was released again on 26 August 2014, with standard with standard conditions for life and special conditions for five years from the date of release.
  3. This application has been made by [withheld].  It is supported by an affidavit from probation officer [withheld] who attended for the Department along with Mrs Currie prosecuting.
  4. Mr October was represented by Mr Cook.
  5. The grounds relied on were undue risk and breach of conditions.
  6. In her affidavit in support [withheld] has deposed to the Department, on 7 August 2018, receiving information from Mr October that another offender had accused him of using cannabis, which he denied.  A further allegation was made on 21 August 2018 by a second person alleging that Mr October was using drugs, possibly methamphetamine.  An application for Mr October to be drug-tested was made in response.
  7. Before the test was conducted there was concern raised by [withheld] about behaviour in that Mr October had been telephoning his place of employment during the early hours of the morning, to make seemingly non-urgent enquiries into his roster.
  8. Upon being requested to undertake testing, Mr October is said to have become angry and was initially uncooperative and refused to be tested.  He refused to engage in conversation about any possible substance use and then denied any use.  His co-operation with supervision during the testing period was strained and he was negative towards the Department and the need to be tested.  It seemed as though he was holding a strong sense of injustice and accused the Department of not having the right to undertake such testing.
  9. On 4 September 2018 the results from the alcohol and drug test were returned with a positive result for cannabis which, of course, is a breach of conditions.  We have the results of the test attached to the file.
  10. We have heard constructive submissions from both Mrs Currie and Mr Cook.  Mrs Currie very fairly emphasised that there had been good compliance in the past but the Department had to be concerned about substance abuse and matters flowing from that.
  11. The net result for Mr October was that he was now without employment but [withheld] remains in support of Mr October and is able to offer accommodation at [withheld].  We were advised that the flats may well be sold at some stage in the relatively near future and if Mr October did return there it would be on the basis of having to commence, immediately, a search for alternative accommodation.
  12. For Mr October, Mr Cook confirmed that information about the accommodation.  He advised us that Mr October had been very recently convicted and discharged on the charge of breach of conditions relating to the cannabis.
  13. Mr Cook told us that Mr October would be more than willing to have strengthened conditions.  That could include a residential programme at [withheld] but Mr Cook did point out a possibility that Mr October may not reach the necessary criteria.
  14. Mr Cook advised that there were some other addresses and if Mr October were released again the search for alternative accommodation would commence straight away.
  15. We have heard at some length from Mr October himself.  He spoke with apparent emotion and sincerity which in itself really places into stark contrast in a way which is something of a concern to us the behaviour described in [probation officer]’s affidavit when he was under pressure in relation to the allegations of drug-taking.
  16. In contrast today Mr October was totally open in admitting the use of cannabis but he was steadfast in his denial of the use of methamphetamine.
  17. He attributes his lapse to stress caused through a process which is ongoing in relation to appeal against convictions for the murder and rape offences.  Mr Cook told us that the burden on Mr October has been relieved by tasks being assigned to a law student.
  18. In her closing submissions, Mrs Currie simply queried the appropriateness of a release given the lack of permanency of the [withheld] address and whether it might be more appropriate for time for further consideration of options and for assessment for an appropriate programme.
  19. Mrs Currie also noted that the appeal process was ongoing and that might be a factor for the Board notwithstanding the law student’s recently arranged participation.
  20. In his final submissions Mr Cook emphasised that the addition of the student had removed a large amount of stress from the appeal process.  He emphasised there was a level of permanence in the accommodation and that the [withheld] would be offering assistance in finding alternatives.
  21. We have very carefully considered the information in front of us.  The behaviour exhibited by Mr October leading to the drug test including his denial of any breach is a matter of fundamental concern for us.  It is surprising that Mr October placed himself in that position given his experience throughout his whole incarceration process.  On the other hand, in terms of our assessment of the level of risk, we are satisfied that it is not undue and can be managed with appropriate conditions.
  22. The net result is that we find a ground made out namely breach but in the exercise of our discretion we have decided against making a final recall order.
  23. Mr October will be subject to the standard conditions set out in section 14 of the Parole Act.  Those conditions will continue for life.
  24. He will also be subject to certain special conditions with all conditions continuing for a period of two years from 3 October 2018.
  25. One of the special conditions will relate to alcohol and drugs and we are advising Mr October of his obligation to submit to the testing or monitoring of compliance with that condition when directed by an authorised person.
  26. The special conditions are:

    (1) To be assessed and, if directed, attend and complete alcohol and drug counselling, treatment or programme (including if assessed as meeting its criteria the residential programme at [withheld]), to the satisfaction of your Probation Officer and Programme Provider.

    (2) To attend a psychological assessment and attend and complete any treatment/counselling as recommended by the assessment to the satisfaction of your Probation Officer and treatment provider.

    (3) To reside at [withheld] and not to move from that or any other approved address without the written approval of your Probation Officer.

    (4) To notify your Probation Officer before starting, terminating or changing your position or place of employment.

    (5) Not to have contact or otherwise associate with any victim of your offending, directly or indirectly, unless you have the prior written consent of your Probation Officer.

    (6) Not to possess or consume alcohol or possess or use controlled drugs or psychoactive substance.

Alan Ritchie
Panel Convenor