New Zealand Parole Board -

 

Parole hearing

Under section 21(2) of the Parole Act 2002

Gareth Lawrence SMITHER

Hearing: 27 April 2016 via AVL from NZPB Head Office, Wellington to [withheld]

Members of the Board: 
      Hon. MA Frater – Panel Convenor
      Dr J Skipworth
      Dr P Taylor

Counsel:  
       [withheld]

In attendance:  
      [withheld]
      [withheld]
      [withheld]
      [withheld]
      [withheld]

Support People:  
      [withheld]
      [withheld]

DECISION OF THE BOARD

1. Forty-four year old Gareth Lawrence Smither is serving a life sentence of imprisonment for murder.

2. He committed this crime on 3 July 1997 and was sentenced on 5 December of that year.  On 20 November 2007 he transferred from [withheld] to [withheld] under the provisions of the Mental Health (Compulsory Assessment and Treatment) Act 1992.

3. Since then he has been discharged from  [withheld], returned to prison, relapsed and been sent back to hospital a number of times.  The most recent period of compulsory treatment has been the longest.  He transferred to [withheld], the medium secure forensic unit at [withheld], on 15 June 2011. He is currently housed in [withheld].  However, he is no longer a special patient subject to a Compulsory Treatment Order. He was discharged from that status several weeks ago but remains in hospital as a voluntary patient under s46 of the Mental Health Act.

4. Mr Smither’s last substantive parole hearing was on 30 April 2014.  The decision of that date records two incidents which impacted on his rehabilitation – his use, in June 2013, of synthetic cannabis and later endeavours to avoid detection by using another patient’s urine for a drug sample, and an incident, later in 2013, when he broke the hospital rules by smoking outside the unit in a non-smoking area.  The Board expressed concern that notwithstanding the years of treatment he had received, Mr Smither continued to exhibit the type of deceitful and dishonest behaviour which he displayed at the time of his index offending.  Given that, and the work needed to address the newly acknowledged sexual aspects of his offending as well as the violence involved, and the time that this would necessarily take, the Board gave him notice that the issue of postponement only would be considered in three months time.

5. At that hearing, on 7 August 2014, a two year postponement order was made from the date of the previous parole decision.

6. During the past two years Mr Smither has worked hard to recover lost ground.  In particular, he has continued to work intensively with consultant clinical psychologist, [withheld], in weekly individual sessions and, between March and June last year he attended 22 weekly one hour sessions with the social cognition and interaction training group.

7. Importantly, Mr Smither has admitted planning to kill his victim after accepting that their relationship had finally ended. He has also admitted taking weapons to the scene. He is said to have made a “significant shift” in his thinking over the past 18 months. Specifically “there has been more genuine expression of empathy towards the victim”.  He has also acknowledged “the severity of his previous convictions, including the sexual offending and his resistance at these times” and has undergone treatment to address that offending and his stalking behaviour.

8. While this therapy has continued, [withheld] and Mr Smither’s responsible clinician, [withheld], have reviewed his symptoms and his diagnosis.

9. Mr Smither has accrued a significant number of diagnoses since he first came into contact with Mental Health Services.  They have included [withheld] .

10. The primary diagnosis for Mr Smither has been revised to [withheld].  He also has historical cannabis and alcohol use disorders and is nicotine dependent.

11. Following the change in diagnostic formulation, Mr Smither’s previously prescribed [withheld] medication has been reduced, and, in one case, stopped.

12. After the episode of synthetic cannabinoid use in May 2013 Mr Smither’s special patient leave was gradually reintroduced to the point where he was enjoying escorted ground leave of up to four hours daily, together with unescorted ground leave for up to two hours daily and staff escorted community leave of up to eight hours daily within Christchurch for rehabilitation, exercise, community integration and family contact purposes.  There have been no incidents on escorted or unescorted leave, and all his drug test results since the last hearing have been negative.

13. Mr Smither is currently at a cross-roads.

14. Forensic Services take the view that reintegration via health-based supported accommodation is no longer a feasible way forward.  We are told that,
“It would be difficult for both a Director of Area Mental Health Services or the Director of Mental Health to approve further special patient leave categories for Mr Smither to progress him out of hospital in a timely fashion.  Even if the category of unescorted community leave was granted in 2016, overnight leave is unlikely to be considered for many years.”

15. Concern is expressed that the hospital system does not have sufficient monitoring and support systems to support Mr Smither’s progression.

16. It was therefore recommended that Mr Smither be released to Corrections’ supervised accommodation, with the programme run by the [withheld], coupled with support from Forensic Mental Health Services, the best fit for him.

17. However, there is a difficulty. The writer of the latest psychological assessment report for the Board, [withheld], has expressed the opinion that,
“Mr Smither’s risk of violent and sexual recidivism is insufficiently high as to warrant inclusion at [withheld].”

18. In [withheld]’s view, Mr Smither poses a moderate risk of both violent and sexual re-offending.

19. Mr Smither’s risk is not to strangers. His potential victims are people with whom he experiences challenges within an interpersonal relationship, including, but not limited to, an intimate relationship.  However, as is evident from his index offending, the consequences for his victim could be fatal.  We, therefore, query the risk assessment and the decision to exclude Mr Smither from the [withheld] pathway.  It seems to us that, given his history and his risk, he needs the intensive supervision and gradual reintegration that that special programme can provide.  We know of no other which would be as well suited to his particular needs.  Whether he accesses it under the leave provisions of the mental health legislation or on leave from Corrections, is for others to decide.

20. What we are clear about is that a decision cannot be made on Mr Smither’s safe release until he has been tested over time and in a variety of situations.  Without that, he poses an undue risk to the safety of the community.

21. Accordingly, parole must be declined. 

22. How he is best managed from now on is unclear. Various potential pathways have been discussed:
   (a) He could return to prison and reintegrate back into the community at an appropriate time under the primary control of the Department of Corrections, but with input from Forensic Services. 
   (b) Alternatively, he could remain under the mental health umbrella and reintegrate back into the community under the primary control of the Director of Mental Health (via section 52 of the Mental Health Act), but with support from the Department of Corrections psychology team.

23. In either case a collaborative arrangement between the Department of Corrections and Forensic Services is suggested, and a supported accommodation provider such as [withheld] would appear ideal.  Obviously Mr Smither’s reintegration will take some considerable time. At least two years.

24. Mr Smither’s next hearing will therefore be in or before April 2018 and, in any event, before the 27th of that month.

25. An updated psychological report is required for that hearing, reassessing his risk and the appropriateness of his release plan, and making recommendations for future treatment and interventions, whether in custody or the community.

 

Hon. MA Frater
Panel Convenor