New Zealand Parole Board -

 

Application for recall

Under section 60(2) of the Parole Act 2002

between

 

[withheld]
Applicant

and

Leith Rex RAY

Hearing: 12 April 2016  At [withheld] by AVL to [withheld]
 
Members of the Board: 
      Ms K Snook – Panel Convenor
      Dr S Davis
      Mr R Crotty

Counsel: 

      [withheld] – for applicant
 
In Attendance: 

      [withheld] – Probation Officer

DECISION OF THE BOARD

1. The Board has considered an application to recall Leith Rex Ray, 41, from parole to prison to continue serving his life sentence for a double homicide committed over 20 years ago.

2. Mr Ray was released on parole on 8 February 2016 with standard conditions for life and special conditions for five years following the date of his release (i.e. until 7 February 2021).

3. The application was made by [withheld], Corrections Services, Central Region, Department of Corrections, under the delegated authority of the Chief Executive of the Department of Corrections.

4. My Ray’s probation officer, [withheld], attended the hearing today along with [withheld]  as legal counsel for the Department.

5. Mr Ray acted for himself at the hearing.  In advance of the hearing however the Board had received written submissions from his counsel, [withheld], dated 11 April 2016.  Attached to [withheld]’s submissions were the following documents:
   a.  a signed statement by Mr Ray setting out his version of the events which led to the recall and saying that he was comfortable acting for himself at the actual hearing; and
   b.  a letter from [withheld], consultant psychiatrist, in relation the possibility that there was a false positive test in relation to methamphetamine in this case.

6. The initial ground for recall was that Mr Ray poses an undue risk to community safety.  Prior to the hearing [withheld] `also filed an additional affidavit dated 8 April 2016 (‘additional affidavit”).  In that additional affidavit [withheld] adds a second ground for the recall application namely that, by consuming methamphetamine, Mr Ray has breached his release condition not to possess or consume illegal drugs. 

7. Both grounds for recall are based on the fact that Mr Ray contacted [withheld] on 11 March 2016 to advise him that he had failed a pre employment drug test earlier on that same day.  The test was a screening test and it indicated Mr Ray had used methamphetamine.

8. [withheld] asked Mr Ray if he had used methamphetamine.  Mr Ray denied that.  Mr Ray’s explanation, at that time, was that he may have unknowingly consumed methamphetamine in an associate’s drink bottle.

9. [withheld] attached a copy of his IOMS entry case note dated 11 March 2016 to his affidavit in support of the recall application.

10. That note states that at the time [withheld] found Mr Ray’s explanation, “unconvincing.” 

11. The drug test was for pre-approval for a job.  As a result of the test Mr Ray was not offered the job.

12. The additional affidavit by [withheld] refers to a subsequent analytical test undertaken by the [withheld]  District Health Board on 14 March 2016 (“the second test”).  The results of the second test were received by [withheld] on 8 April 2016.  The second test confirmed the positive test for methamphetamine. A copy of that second test result was attached to the additional affidavit of [withheld].

13. [withheld]’s submitted that the fact that there has been both a screening test and then a positive analytical test rules out the possibility that there has been a false positive test as claimed by [withheld] in his submissions on behalf of Mr Ray.

14. In making that submission, [withheld] referred to [withheld]’s letter.  In that letter he says that in order to discount a false positive test a further test using additional analytical methods, including gas chromatography-mass spectrometry, should be undertaken. 

15. [withheld]’s submission was that the second test which, she says, included gas chromatography-mass spectrometry, has now been completed and is positive for methamphetamine.

16. In her submission the possibility of a false positive test in Mr Ray’s case has now been discounted. 

17. In [withheld]’s submission the result of the two tests means that there is strong evidence that Mr Ray has breached the condition that he not possess or consume illicit drugs.  She also submitted that as a result of that breach the second ground, that risk is undue, is also established, having regard to the nature of the breach and the fact that it occurred so quickly after Mr Ray’s release from prison.

18. [withheld] noted that given the very serious offending for which Mr Ray was convicted his ability to comply with his conditions of parole is critical.  The fact that he has been unable to do so, so quickly on release, is of concern and must be seen to indicate heightened risk and an inability for that risk to be mitigated via parole conditions.

19. For his part Mr Ray confirmed to the Board that he was happy proceeding with the hearing based on [withheld]’s submissions but without his lawyer present.

20. Mr Ray told the Board that it was upsetting that he is seen as high-risk although he appreciates that given his very serious offending, that must be the case.  He told the Board that he is conscious of what he must do to ensure that he never offends again.

21. Mr Ray now accepted that the positive test cannot have come from his inadvertent drinking of methamphetamine from his flatmate’s drink bottle. 

22. For the record we found this explanation highly implausible.  This view was confirmed by the information contained in the formal statement from Detective [withheld]  which was attached to [withheld]’s second affidavit.

23. Despite this Mr Ray continued to deny ever using methamphetamine on parole.  He says that the only thing he can think of is that there must have been a false reading from his use of medication, including nasal sprays or antihistamine.

24. We talked to Mr Ray about his accommodation at [withheld].  He said that while his flatmates did not use drugs or drink alcohol in the flat, he had suspicions that one of them was using drugs and drinking outside the flatting environment.

25. Mr Ray accepts now that this is the sort of risk that he should have told his probation officer about.  He said that he needs to unlearn the strategies he learnt in prison to keep himself safe which included not discussing the activities of others with third parties.

26. [withheld] said that GPS monitoring had indicated no issues with Mr Ray’s compliance.  [withheld] did refer however to some concerns about some of the associates Mr Ray had been seeing.

27. Mr Ray told the Board that he has only really been associating with other people from [withheld] as well as [withheld].  He said [withheld] remains in support but it has been difficult to maintain contact with them as he has spent quite a bit of time in the At Risk Unit since returning to prison.

28. The Board, having considered all the information in front of it and having heard the submissions from [withheld]  and Mr Ray, is satisfied on reasonable grounds that Mr Ray used methamphetamine on parole.  We have seen no evidence that supports a contention that there was a false positive result in this case.

29. In fact we now have evidence that there have been two tests which confirm that methamphetamine was in Mr Ray’s system. No plausible alternative explanation for the presence of the methamphetamine in his system has been advanced.

30. The ground of breach by Mr Ray of his special condition not to possess or consume illegal drugs is therefore made out.

31. Turning to the second ground of undue risk we agree with [withheld]’s submission that concern about Mr Ray’s use of methamphetamine is heightened given that this use occurred very quickly following release.  At a minimum this indicates once more poor decision making on Mr Ray’s behalf as well as a lack of consequential thinking.  It also indicates early poor compliance with conditions of parole.

32. This is the sort of behaviour that was referred to being of leading to risk in Mr Ray’s case in the latest psychological report we have seen dated 22 October 2015.  Possible areas of concern identified in Mr Ray’s release plan included “exposure to destabilisers, personal support, ability to deal with stressors, and alcohol and drug abuse”.

33. At paragraph 20 of that report, the psychologist says that:
“If Mr Ray should engage in further violence, this will likely occur in the context of substance abuse, peer pressure from criminal associates and a desire for material gain.  Violence may involve the use of weapons and the likely harm to any victims would be severe and could include death.” (Emphasis added).

34. This is relevant to our determination of “undue risk”.  In assessing undue risk we are required to consider both the likelihood of further offending and the nature and seriousness of any likely subsequent offending.  Mr Ray has committed two murders and his risk of committing further “severe” violence is assessed as increasing with substance abuse. 

35. We are therefore satisfied on reasonable grounds that Mr Ray poses an undue risk to community safety given the established use of methamphetamine, very quickly following release, in the context of an assessed increased risk of re offending arising from substance use.

36. As one of the grounds that has been established is that of undue risk the Board must necessarily be satisfied that the further detention of Mr Ray is required to ensure public safety.

37. We must therefore exercise our discretion in favour of making a final recall order in accordance with the decision in Miller and Carroll v New Zealand Parole Board and the Attorney – General 2010 NZCA 600.  A final recall order is therefore made.

38. In accordance with Board policy the extended Board will see Mr Ray in August 2016 and no later than 31 August 2016 for the further consideration of parole.

39. We note while in the community Mr Ray had begun the psychological intervention which is referred to in the recommendations of the 22 October 2015 psychological report. 

40. It may be that now that Mr Ray is back in prison this psychological work can continue and the outcomes of that treatment can be built into Mr Ray’s safety plan.  It may also be that given the reason for the recall further work is required by Mr Ray in relation to his use of drugs and alcohol.

 

Ms K Snook
Panel Convenor