New Zealand Parole Board -

Parole Hearing
Under section 21(2) of the Parole Act 2002

Arthur William TAYLOR

Hearing: 7 March 2017 at [Withheld]

Members of the Board:

• Ms K Snook – Panel Convenor
• Assoc. Prof P Brinded
• Mr J Thomson

Counsel:

• [Withheld]

Support People:

• [Withheld]
• [Withheld]
• [Withheld]

Observer:

• [Withheld]

DECISION OF THE BOARD

1. Arthur William Taylor, 60, appeared for a further consideration of parole in relation to a total effective sentence of 17 years and six months imprisonment.  As noted by the last Board, Mr Taylor’s offending comprises firearms and other offences in 2007 (eight years), escaping and kidnapping in 2005 (four years), and methamphetamine dealing in 2007 (five years six months).

2. Mr Taylor has a RoC*RoI of 0.77585, is on a low/medium prison security classification, and has a sentence expiry date which is still around five years and seven months away, namely 12 October 2022.

3. The background to this hearing is clearly set out in the last decision of the Board dated 9 November 2016 and it is not necessary to repeat all of that information in this decision.

4. [Withheld] appeared today for Mr Taylor.  While [Withheld] was not here when the hearing began she arrived shortly afterwards and was given the opportunity to make oral submissions during the hearing.  Mr Taylor told the Board that he was happy to begin the hearing without [Withheld].

5. In short Mr Taylor sought a release on parole today.

6. In support of that Mr Taylor and [Withheld] clearly articulated Mr Taylor’s case both via written material and in person today.

7. Mr Taylor filed a substantial number of documents in support of his bid for parole including:
(1) detailed submissions dated 3 March 2017 and 6 March 2017 as well as documents in support of those submissions dated 6 March 2017;
(2) a release plan dated 4 March 2017, which includes a relapse prevention plan, post-release timetable, risk factors and early warning signs.  This documentation has been updated from the last plan which was presented to the Board at the November 2016 hearing;
(3) an  email in support of his release from [Withheld] dated 1 March 2017;
(4) a letter of support from [Withheld]  dated 16 February 2017; and
(5) a letter of support from [Withheld] dated 21 February 2017.

8. This is in addition to the other material on Mr Taylor’s file from previous hearings which we have also read.  This includes letters of support from [Withheld] Marae and [Withheld] as well as the psychological treatment report prepared by Mr Taylor’s treating psychologist [Withheld] dated 27 July 2015 (“the Psychological Treatment Report”).
“Testing” the psychological risk assessment

9. The Board has now received the updated psychological assessment of Mr Taylor’s risk that was referred to by the Board in its last decision (“the Psychological Risk Assessment”).  That assessment is dated 12 December 2016 and was prepared by [Withheld]  Principal Psychologist.

10. The Psychological Risk Assessment was sought in line with the decision of Justice Ellis in Mr Taylor’s successful judicial review of the Department’s decision to require him to transfer first to a low medium security unit before transferring to [Withheld]  prison to complete the STURP.

11. In her decision Justice Ellis says at [76]:

“In my view what now needs to occur is for Mr Taylor’s participation in the STURP to be considered afresh, in light of this (and my previous judgment), and updated advice about an appropriate pathway from Dr [Withheld] or some other suitably qualified person.  I say no more than that.”

12. In his written submissions of 3 March 2017 Mr Taylor asked the Board to require [Withheld] to appear and explain inconsistencies between the Psychological Risk Assessment and the Psychological Treatment Report prepared by Dr [Withheld].  Mr Taylor refers to concerns that a lot of the material in the Psychological Risk Assessment appears to be historical and to take no account of his 27 treatment sessions with Dr [Withheld]  despite [Withheld]’s claim to be providing an “updated assessment of risk”.  Mr Taylor also refers to factual errors and omissions in [Withheld]’s assessment.

13. Mr Taylor acknowledged that the granting of such a request is at the discretion of the Board.  Section 49 of the Parole Act 2002 (“Act”) provides, among other things, that the Board may:

“…conduct the hearing as it thinks appropriate and, subject to this section, has the following powers:
(a) to determine who may attend;
(b) to determine who may speak.”

14. We have also had regard to section 117(1) of the Act which provides that the Board may receive and take into account whatever information it thinks fit.  We note that section 117(2) goes on to say that:
“Information received by the Board may be in a form other than writing, but only if the Board is satisfied that-
(a) the information adds significantly to the written information available to it”.

15. At the beginning of hearing we indicated to Mr Taylor that we did not need [Withheld] to attend the hearing.  Mr Taylor has filed information which supports his view that the Psychological Risk Assessment may contain errors and inconsistencies.  This was sufficient in our view to enable us to assess all of the information before us.

16. At least one factual error which Mr Taylor refers to, namely the allegation (which he disputes) that he poured hot drink over another prisoner, has not been settled one way or the other.  As we understand it that misconduct remains pending.  Mr Taylor has requested CCTV footage from the prison which has yet to be provided.  However we accept that it is likely that the misconduct will be dismissed given the time that has elapsed since the allegation.

17. It is difficult to see what light [Withheld] would be able to shed on that matter or indeed any of the other factual errors claimed by Mr Taylor such as those relating to his involvement in heated discussions in the unit which required de-escalation.

18. Mr Taylor was also concerned to “test” other conclusions reached by [Withheld] such as that at paragraph 18 of the Psychological Risk Assessment. In our view, [Withheld] makes it very clear, including at paragraphs 18 and 23, why it is her view that Mr Taylor’s transition and reintegration needs to initially be in prison rather than in the community. She reaches this view despite acknowledging (at paragraph 36) that Mr Taylor has “built a pro-social support network around him who will continue supporting him upon release.”

19. Accordingly we determined that we did not need to speak to [Withheld] in order to conduct the hearing today.  Mr Taylor was clear in his written and oral submissions about issues he had with [Withheld]’s assessment.  He filed supporting evidence which we read.  We are required to weigh up disputed written evidence on a regular basis and we reached the view that we were able to do so in this case without speaking to [Withheld].  The Court has previously held that the weight to be given to the information before it is a matter for the Board (Ericson v NZPB [2013] NZHC 1790).

20. For completeness we note too that there was some suggestion in Mr Taylor’s submission that “the Board” has the power to summons witnesses.  Section 118A (1) of the Act provides that the “chairperson or a panel convenor” (rather than the Board) may issue a summons to a person to give evidence.

21. However section 118A (2) provides that the chairperson or panel convenor may not exercise the power conferred by subsection (1) on the basis of an application or request “but may do so only on his or her own initiative”.  That being the case no “summons” of [Withheld] could be issued in this case unless on the initiative of the panel convenor which did not occur (again for the reasons set out above).

Mr Taylor’s submissions

22. Mr Taylor’s grounds for seeing a release on parole are usefully summarised by him at paragraph 110 of his 6 March 2017 submissions. It is not necessary to repeat those submissions here but clearly Mr Taylor has made considerable progress over the past few years, largely it seems as a result of his individual psychological treatment sessions with Dr [Withheld] and his ongoing involvement in legal work in prison.

23. In his oral submissions Mr Taylor emphasised his vastly improved behaviour in prison.  Since February 2015 Mr Taylor has maintained a low/medium prison security classification (down from maximum).  In addition there have been no proven misconducts since Mr Taylor moved to A Unit in October 2014.  This is in stark contrast to the 90 proven misconducts on Mr Taylor’s record in the preceding two year period.

24. Mr Taylor’s accepts that he has what he calls an “appalling criminal history”.  However in his view the STURP is not an appropriate programme for him.  His reasons for saying this are set out in his submissions and in particular at paragraphs 69 to 92.

25. In short Mr Taylor does not think that his completion of the STURP will be of any use to him.  He says that “what the majority would be learning” on the STURP he already understands and applies every day.

26. Mr Taylor told the Board does not see himself as a violent man although he accepted that he has been involved with others in violence and that his victims may perceive him as a violent person.

27. Mr Taylor told the Board however that his offending stemmed from an overwhelming desire to help people.  He said he now sees the work he does as a legal advocate for others, as well as for himself, as fulfilling his need to help people but in a pro-social way.

28. Mr Taylor also says that he would obtain more benefit from the “therapeutic” effect of being released into the “bosom” of his family and other support people rather than the therapeutic community of the STURP.

Discussion

29. We accept all of the positives in Mr Taylor’s case.  These include his more recent institutional conduct, his successful transition to the low/medium security unit, the routine and structure provided by his legal successes and his ongoing legal work.

30. We also note what has been described as Mr Taylor’s focussed and engaged involvement in 27 sessions, one-to-one, with Dr [Withheld] between 28 January 2014 and 3 June 2015.  It is clear there were treatment gains.

31. We accept too that there is a resulting insight by Mr Taylor into his own personality profile.

32. It is also clear that Mr Taylor has a good release proposal.  We met with several of Mr Taylor’s supporters today including [Withheld].

33. The release proposal involves a release to live in [Withheld]  accommodation while [Withheld] sources a suitable address where [Withheld].  Work is available including assisting [Withheld] who was also at the Board and talked about the recent positive experience he has had working with a person he described as a “career” Mongrel Mob member.

34. We note, however, that all of these matters are referred to in [Withheld]’s recent risk assessment.

35. Despite all of this [Withheld] concludes that Mr Taylor remains at moderate risk of future violent offending and at high risk of general offending.  Mr Taylor says that this means that “the common psychological evidence appears to be that if I did reoffend it would not be violent” (emphasis added).

36. In fact all that can be said as a result of this overall assessment of risk is that Mr Taylor is more likely to reoffend in a general way (i.e. he is at high risk of committing this sort of offending). However there is still a moderate risk that any reoffending could be violent.  In the Psychological Treatment Report Dr [Withheld]  puts it like this:

“In terms of violent offending risk for Mr Taylor this is a less risk scenario.  If Mr Taylor was to commit a violent offence this would be reactive and unplanned in response to a perceived threat to himself or to his family… Mr Taylor’s risk of violence would be increased if he is placed in threatening environments in which his already pervasive anxiety becomes unduly elevated and he believes himself powerless to manage his risk.”

37. The key recommendation from the Psychological Risk Assessment is that Mr Taylor complete the STURP Programme.  We note that this recommendation was also the one made by Dr [Withheld]  in his Psychological Treatment Report.  While Mr Taylor told the Board today that he thinks that if Dr [Withheld]  was asked today he would not make that recommendation that is pure speculation.

38. The Parole Assessment Report refers to the fact that Mr Taylor did not commence the February intake of STURP as he was seeking his own independent psychological report.  Mr Taylor told the Board today that although he obtained a report he was not using it as it contained numerous factual errors and could not be relied upon.

39. It is certainly clear that Mr Taylor’s position on participating in the STURP has altered even in the recent past. He successfully pursued legal action against the Department for requiring him to transfer through a low medium unit before commencing the STURP.  At the time he took that action (April 2016) Mr Taylor appeared motivated to attend the STURP but claimed that the Department was unlawfully denying him access to it.

40. In order to advance that case it appears that Mr Taylor relied on the view of both Dr [Withheld]  in the Psychological Treatment Report and the Parole Board that he needed to attend the STURP before any release could be considered.  As such the Judge noted at [32] that Mr Taylor contended that:

“the effective failure to permit him to participate in the STURP constituted an arbitrary detention contrary to the New Zealand Bill of Rights Act 1990.”

41. As a result of his successful legal action against the Department Mr Taylor is able to access the programme directly from his current unit.  However he was, at best, ambivalent about whether he will attend the programme if denied parole today.  While initially Mr Taylor told the Board that he would undertake the STURP Programme, he later said that as he is focussed on his legal work he is concerned that the STURP Programme will get in the way of that.  He is also concerned about his access to the IT and other materials that he needs to maintain his legal practice while on the programme.

Decision

42. As noted by the last Board we must maintain our focus on the statutory test for release on parole.

43. As Mr Taylor is well aware the Board cannot release a person on parole unless we are satisfied on reasonable grounds that the offender, if released on parole, will not pose an undue risk to the safety of the community, having regard to the support and supervision available to the offender and the public interest in the reintegration of the offender into society as a law-abiding citizen.

44. We note too that section 7(1) provides that the paramount consideration for the Board in every case is the safety of the community.

45. In considering whether an offender poses an “undue risk” we must consider both-

(a) the likelihood of further offending; and
(b) the nature and seriousness of any likely subsequent offending.

46. It is not the function of any other party, be it psychologists, probation officers, supporters, or report writers to make the assessment of undue risk.  It is the sole function of the Board.

47. Against this legislative framework, at this time, we conclude that Mr Taylor does not meet the statutory test for release on parole.  This is despite the many positives referred to above and detailed in Mr Taylor’s submissions.

48. In that regard we note, as does Mr Taylor in his submissions, the decision of the High Court in Edmonds v New Zealand Parole Board where it was noted at [34] that:

“Each application for parole must be considered in light of all factors which may be relevant to that person’s risk of offending.  While an offender might be “low risk” based on an actuarial calculation, their personal circumstances may still point to the risk to the community being “undue” because the Board is not satisfied that that particular applicant has demonstrated his or her risk of reoffending can be appropriately managed.”

49. Mr Taylor is not assessed as “low” risk.  In fact he is assessed as being at high risk of general reoffending and moderate risk of violent reoffending.  In our view Mr Taylor’s risk remains undue because we are not satisfied that he has demonstrated that this risk of both general and violent reoffending can be appropriately managed for the period of time remaining on his sentence.  This is despite Mr Taylor’s submission that appropriate conditions, including GPS monitoring, would satisfactorily mitigate risk.

50. We have reached this view for reasons which include the following:
(1) the clear advice of both the Psychological Treatment Report and the Psychological Risk Assessment that Mr Taylor needs to complete further treatment in prison (namely the STURP Programme) given his offending history and risk of reoffending; and
(2) the length of time remaining on Mr Taylor’s sentence (currently around five years, seven months) taking account of Mr Taylor’s lengthy history of serious offending and his inability in the past to remain in the community without committing further offences.  Mr Taylor told the Board that the longest period of time he has spent in the community without a conviction is around two years.

51. In addition [Withheld] notes that Mr Taylor has spent a significant portion of his life at [Withheld]  prison and more specifically in [Withheld]. As such:
“It would be beneficial for Mr Taylor to transition to an environment with less supervision and structure, and where he would be considered equal to his peers.  This is considered important learning and development for Mr Taylor and should form part of his rehabilitative pathway, given there may be elements of institutionalisation present.”

52. We agree. We note too that both psychological reports indicate that Mr Taylor will require one to one psychological assistance to aid any transition to STURP given his anxiety.

53. Of course whether Mr Taylor ultimately participates in the STURP programme is up to others including, in particular, Mr Taylor himself.

54. Parole today is declined. The Board will see Mr Taylor again for the further consideration of parole in March 2018 and no later than the end of that month.

55. We ask for an updated psychological risk assessment for that next Board.  We note that when the Psychopathy Checklist Screening Version (PCL:SV) was last administered in 2001 Mr Taylor was found to have a higher score on factor 1 which indicates a higher probability of committing serious violent offences within two years of release into the community. As that was some time ago we ask that Mr Taylor be assessed again using the PCL: SV as part of the updated psychological risk assessment for the next Board.

Ms K Snook
Panel Convenor