New Zealand Parole Board -

Parole hearing

Under section 21(2) of the Parole Act 2002

Neil Graham PITCEATHLY

Hearing: 6 December 2018

at Spring Hill Corrections Facility

via AVL from New Zealand Parole Board, Wellington

Members of the Board:

• Sir Ron Young – Chairperson
• Ms G Hughes
• Ms W Taumaunu

Counsel:

• Ms S Hughes QC – for the applicant, by video conference from New Plymouth

Supporter:

• [withheld]

DECISION OF THE BOARD

1. Neil Graham Pitceathly was sentenced to 18 years imprisonment on a large number of offences committed over many years against [withheld].  The offences included rape, unlawful sexual connection, stupefying and possession of intimate photographs.  There were over 150 charges.  He had a minimum non-parole period of seven years and nine months.  He was sentenced on 21 August 2009.  He has a final release date of 26 May 2027.
2. At the previous Parole Board hearing in 2017, the Board refused parole.  Extensive reasons were then given.  An application to review the decision, pursuant to section 67 of the Parole Act 2002, was made but was unsuccessful.  Judicial review proceedings were filed and heard in the High Court.  The application for review was refused.  Mr Pitceathly appealed to the Court of Appeal.  The appeal was allowed.  The Court of Appeal set aside the Board’s decision of 2017 and invited the Board to reconsider Mr Pitceathly’s parole in view of their judgment.
3. The Court of Appeal judgment focused on the meaning of section 28(2) of the Parole Act 2002.  In its assessment of risk, section 28(2) recognises three categories of potential victims that may be relevant to the assessment of undue risk.  They are: an individual, a class of persons and the community.
4. In its decision of 2017, the Board’s focus on the question of undue risk was on community risk.  The Court of Appeal said this was inappropriate given the particular facts of this case.
5. It is with that background therefore that this Board further considered parole for Mr Pitceathly.
6. Mr Pitceathly’s sexual offending against his then wife occurred between 1999 and 2007 while he and his then wife lived at an orchard at Katikati.  The offending was extremely serious and is reflected in the sentence imposed.  Beyond that offending, Mr Pitceathly had no other convictions.
7. We had the advantage of an updated parole assessment report, a psychiatric report from 2016, a report from [withheld], psychologist, who had been treating Mr Pitceathly in prison, submissions from Mr Pitceathly, a significant amount of background information, together with submissions written and oral from his counsel Ms Hughes QC.  Finally, we were able to talk with Mr Pitceathly. His current wife [withheld] filed an affidavit.
8. The first issue that we must resolve is who we should focus on when we assess the question of undue risk pursuant to section 28(2) of the Parole Act 2002.  Section 28(2) provides as follows:

   “The Board may give a direction under subsection (1) only if it is satisfied on reasonable grounds that the offender, if released on parole, will not pose an undue risk to the safety of the community or any person or class of persons within the term of the sentence, having regard to –

   (a) the support and supervision available to the offender following release; and

   (b) the public interest in the reintegration of the offender into society as a law-abiding citizen.”

9. Ms Hughes submitted that we should consider whether or not Mr Pitceathly posed an undue risk to the safety of his current wife [withheld] and no other person.  She submitted that should be our sole focus.  She said that considering any other persons was simply speculative and that it would not be right to consider the interests of a group who might be vulnerable adult female victims of Mr Pitceathly.  She said that considering risk with respect to those persons was speculative and so vague as to be unhelpful.
10. We disagree.  We consider we should assess undue risk to the safety of a class of persons that class being those whom Mr Pitceathly is or might be in an intimate relationship with, including [withheld].  We do not consider therefore that we should assess undue risk solely with regard to the risk to [withheld], Mr Pitceathly’s current wife.
11. Our reasons for doing so are as follows.
12. Mr Pitceathly’s previous offending over some eight years was against his then-wife.  As he identified, initially, their relationship had been satisfactory but deteriorated over a period of time until the offending began.  They had been married for about six years before the offending began.  The offending as we have noted, involved gross sexual offending, stupefying his then-wife, the participation of a co-offender and occurred over a significant period of time.
13. Ms Hughes made the point that the only such person currently particularly identified in this category is his wife.  We accept that.  But we do not think it answers the broader question about other women who may come in contact with Mr Pitceathly in the future and are in the category identified.  Self-evidently it is not possible today to identify such persons individually.  But the Parole Act does not require us to do so in assessing risk.
14. We found the psychological report of 23 December 2016 convincing.  We do not propose to quote extensively from this report in this decision.  However, we think the section summarising risk and risk management properly conveys Mr Pitceathly’s risk.  It said:

    “In summary, based on the static, dynamic and protective factors outlined above, Mr Pitceathly is considered to be at medium-high risk of further sexual offending. Should future offending occur, it will most likely involve premeditated and surreptitious sexual offending against a well-known, vulnerable, adult female victim.  Violent offending is most likely to occur in the service of sexual offending, although may occur in a reactive context.  Given the duration that his index offending remained undetected, Mr Pitceathly’s deeply mistrustful and guarded personality traits, as well as indications of deceptive practices within his current relationship, future offending has the potential to remain undetected over an extended period of time.”

15. This summary identifies potential victims of Mr Pitceathly.  We are satisfied therefore that the question of undue risk should be assessed against that group of persons that he may come in contact with who are vulnerable adult female and are or become well-known to him.  As we have noted this includes [withheld].
16. As to risk we accept that the current Mrs Pitceathly [withheld] does not believe she is vulnerable.  However, we are concerned especially with Mr Pitceathly’s risk to her. [withheld] made the point that they had a relationship of two years before Mr Pitceathly was imprisoned without any offending against her.  We note Mr Pitceathly was living with and then married to his victim for about six years before his offending began.
17. Mr Pitceathly made the claim that his offending only began because of his dysfunctional marriage and his wife’s addiction to sleeping pills.  Even accepting the accuracy of this claim underlying the claim is a worrying aspect.  If his victim was addicted then Mr Pitceathly’s response appears to have been to supply even more drugs to his victim rather than assist in her rehabilitation.  Further, as his marriage deteriorated and Mr Pitceathly was not apparently having his needs met he turned to stupefying his victim and sexually abusing her.  This follows the worrying pattern of a marriage which functions for a period, difficulties arise which results in Mr Pitceathly not getting his needs met and a resort to abusive control.  This conduct could apply in the future to [withheld] and other women with whom Mr Pitceathly may have an intimate relationship.
18. Our discussions with Mr Pitceathly confirmed the position that Mr Pitceathly remains of the view that some of the fault in his sexual offending against his previous wife was hers.  For example, in replies to us, in assessing the fault in his marriage and the fault in the offending, which led to his imprisonment, he accepted that much of the fault was his but stressed constantly the dysfunctional relationship and the fact that his ex-wife and victim had been a Benzodiazepine addict.  Mr Pitceathly also stressed that he had a healthy relationship with his current wife, in that, they had been together for some 13 years without difficulty.  Mr Pitceathly lived with his current wife prior to their marriage for a period of two years.  It was only after he was imprisoned that they were married and so they have not had a domestic relationship for 13 years but only for two years.  Further, as we have noted, his offending with respect to his victim began some years after their marriage.  We do not therefore think that by itself the fact that Mr Pitceathly’s current relationship has lasted 13 years is necessarily evidence that he would not be an undue risk to others in an intimate relationship with him.  Nor do we think Mr Pitceathly’s age so reduces his risk that we could conclude it is otherwise than undue.  His last offending occurred some 11 years ago.  He is now 76 years of age.  We accept his current age does reduce risk somewhat.  However, his offending was not driven exclusively by sexual disappointment.  It had a disturbing control aspect that is unlikely to have been significantly diminished by age.
19. There are two reports from [withheld psychologist].  The full report was 2 December 2016.  As to risk assessment [withheld psychologist] said:

    “The current offences took place within his marriage.  There is no indication of offending outside of the marriage.  The offending occurred within a dysfunctional marriage, alongside his wife’s apparent dependence on prescription medication and Mr Pitceathly.s inability to reflect on his behaviour, consider issues of consent, power imbalance and control.  At the time of the offending he lacked the psychological capacity to leave the relationship despite knowing it was toxic.”

20. [withheld psychologist] noted that with treatment Mr Pitceathly had gone a long way toward reducing his chance of offending.  He noted [withheld] appeared to have made an informed decision to continue their relationship.  [withheld psychologist] did not particularly consider the vulnerability of other potential women in intimate relationships with Mr Pitceathly.
21. Mr Pitceathly in his response to the Departmental psychologist’s report stressed again that his offending occurred within the context of a dysfunctional and unhappy relationship.  In his description of the offending to the psychologist Mr Pitceathly continued to claim significant consent by his victim and rationalising some of the more offensive conduct.  As the psychologist noted his claim of his victim’s lack of interest in sex seemed to be in conflict with his claim that his victim had consented to a wide range of sexual activity.  This attitude to his victim and the circumstances of his offending did not suggest to us his treatment to date had enabled him to fully accept responsibility for his offending.  This conclusion is in turn relevant to assessment of risk.
22. Mr Pitceathly is currently undertaking the Adult Sex Offender Treatment Programme (ASOTP).  He advised us that the programme has essentially only just begun with attendees getting to know each other.  The more difficult rehabilitative work is yet to begin.  Mr Pitceathly said to us that in his view he would not have much to learn from the current programme given the one on one sessions he had undertaken with his psychologist.  Mr Pitceathly’s privately hired psychologist saw Mr Pitceathly on 33 occasions.  We take this into account.  However, we are satisfied that the extensive report by the psychologist from December 2016 accurately sets out Mr Pitceathly’s risk without successful rehabilitative treatment.  Detailed analysis has been done of Mr Pitceathly’s personality as well as an analysis of the risk of his further offending in the circumstances described.  We accept he remains medium-high risk while untreated to the class of persons identified.
23. Are there special conditions that could reduce risk?  The successful completion of the Adult Sex Offender Treatment Programme (ASOTP) will potentially significantly reduce Mr Pitceathly’s risk.  The other potential condition would relate to a form of relationship prohibition or monitoring.  At its most severe a condition could prohibit Mr Pitceathly from living in a domestic relationship with any adult woman.  We do not think such a condition could realistically be imposed with respect to his current wife.  As to monitoring his relationship with his wife we do not consider such a condition in fact is likely to be protective of risk.  Part of the concern about Mr Pitceathly’s conduct in the past was his capacity to dominate and overwhelm the will of his then-wife.
24. It may be that a prohibition against any other relationship would provide some protection.  However, on its own, without the completion of a rehabilitative programme focused on the causes of offending, we do not consider it reduces the risk below undue.
25. We think it essential that Mr Pitceathly complete the ASOTP.  His attitudes are yet to be challenged in a group context.  We are concerned that until Mr Pitceathly understands the potential risk to others that he might form intimate relationships with rather than compartmentalising his offending solely in relation to a particular person, he will remain an undue risk.  Once he completes the programme then we hope his risk will be reduced and he can plan for his reintegration and safe return to the community.
26. For those reasons therefore, we are satisfied he is an undue risk to a class of persons as we have identified them.  We do not think that any of Mr Pitceathly’s proposed special conditions or his safety plan is sufficient to reduce that risk below undue.  The safety plan and the conditions are all predicated on Mr Pitceathly’s view that the only person he is a risk to is his current wife.  We have rejected that approach.  Parole is therefore refused.
27. After Mr Pitceathly completes the ASOTP then we ask for an updated psychological report which re-evaluates risk and Mr Pitceathly’s commitment to the programme.  Mr Pitceathly in the meantime will need to update his safety plan, release plan and reintegration plan.  We will see him again by the end of September 2019.

Sir Ron Young
Chairperson