New Zealand Parole Board -

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

Dean Hugh Te Kahu William WICKLIFFE
Respondent

Hearing: 12 April 2018

at Waikeria Prison by AVL from New Zealand Parole Board

Reserved Decision: Issued on 30 April 2018

Members of the Board:

• Alan Ritchie (Panel Convenor)
• Mr S Perry
• Ms S Pakura

Counsel:

• Mr J Holmes (For Respondent)
• Mr M Dillon (For Applicant)

In Attendance:

• [withheld]

RESERVED DECISION OF THE BOARD

1. The Board has considered an application for Dean Hugh Te Kahu William Wickliffe, 69, to be recalled from parole to prison to continue serving his life sentence for manslaughter committed in 1972.  The life sentence remained in place after the Court of Appeal substituted the manslaughter conviction for a conviction for murder.
2. The manslaughter was committed in 1972.  It followed on from earlier convictions for burglary, aggravated robbery and other offending.  In 1976 there was an escape from custody.
3. Mr Wickliffe was first released in 1987.  Later that year he committed an aggravated robbery for which he received a prison term of seven years, six months.
4. He has been recalled five times.  His most recent release was on 24 May 2017 with standard conditions for life and special conditions for five years.
5. On 9 November 2017 Mr Wickliffe survived a recall on an application where no interim recall order had been made.  Notably, however, the Board said (in relation to alcohol impaired driving):

   “When analysing the circumstances of his offending the EBA in itself involved driver fault, he had a high breath alcohol level, he drove in breach of his release conditions, he minimised his responsibility for his offending and that there were alternatives available to him and in relation to the breach of release conditions he deliberately consumed alcohol knowingly in defiance of his special conditions.”

   and:

   “Mr Wickliffe acknowledged his offending, accepts full responsibility and apologised for his conduct. Although it may have taken some time he has reflected on the circumstances of his offending and has given a commitment that there would be no future similar conduct.”

   and:

   “The Board is of the view that this application for recall has been properly brought and because Mr Wickliffe did drive a motor vehicle under the influence of alcohol and in breach of his special conditions that raises issues of public safety.  The Board however, is of the view that after today’s hearing with the greater insight that has been gained, knowing Mr Wickliffe appreciates his responsibilities regarding compliance, and placing himself in non-risk situations, being more conscious of his high profile and the close attention that he will attract and be scrutinised with, that his risk can be managed with the existing standard and special conditions. A final non-interim recall order will not be made.”

6. This application has been made by [withheld] on behalf of the Chief Executive.  Probation Officers, [withheld] were in attendance at this hearing along with Mr Dillon prosecuting.
7. Mr Wickliffe was represented by Mr Holmes.
8. The ground relied on is undue risk.  In an affidavit in support, [withheld] deposed to Mr Wickliffe having been stopped at a checkpoint on 14 March 2018 and found with excessive breath alcohol.  That was confirmed by a subsequent blood test.
9. Mr Wickliffe was quoted by [withheld] as saying he thought he should be free to drink as he did not plan on driving but he and his sister had an argument and he decided to leave her address and drive home.
10. He was charged with alcohol-impaired driving, disqualified driving and breach. Mr Holmes has told us that guilty pleas have been entered and that he will be appearing on 29 May 2018 for sentencing. He has been remanded on bail in the meantime with the only condition beyond his parole conditions being that he is not to drive.
11. As noted in the narration for the interim order for recall made on 15 March 2018, it seems as though Mr Wickliffe chose to put community safety at risk by alcohol-impaired driving within a short time of a recall application arising in similar circumstances.  This Board’s immediate response must be that it is hard to understand how he could do that given the very clear views expressed by the Board on 9 November 2017.
12. For the Department, Mr Dillon said that Mr Wickliffe has presented a risk to the community in general and road users in particular.  It was apparent from the circumstances that he took it upon himself to drive when he was under no special duress to do so.  He did it, in Mr Dillon’s view, because it was what he wanted to do.
13. Mr Dillon pointed to the criminal history with its various instances of alcohol-impaired and disqualified driving and the focus on substance abuse and offending including with cannabis and methamphetamine.  Indeed, Mr Wickliffe had received a seven year sentence for supplying and manufacturing methamphetamine committed in 2011.
14. We have had the benefit of written and oral submissions from Mr Holmes who said that Mr Wickliffe’s book, “A Lifetime Behind Bars,” demonstrated, significantly, that he had a very good insight into his previous offending history and his current situation.  Mr Wickliffe had said to Mr Holmes that he should be given greater freedom of movement and a relaxation on the prohibition of consumption of alcohol.
15. Mr Holmes referred to lengthy submissions made to us by Mr Wickliffe himself.  In Mr Holmes’ view those submissions presented a great deal of insight, information and background to the present situation.
16. Mr Holmes noted the offending history and said, while not attempting to shy away from their serious nature, the current driving offences did not involve dishonesty, violence or drugs.
17. Mr Holmes said that the effluxion of time since 1996 (which was when the previous alcohol impaired driving offence occurred aside from October 2017), was sufficient to establish that the risk of re-offending could be considered to be at a low level.
18. Mr Holmes urged on us that while technically meeting the requirements of section 61 of the Parole Act, Mr Wickliffe’s actions were not of such severity that a final recall order should be made.  He said Mr Wickliffe should return to parole and await his sentencing on the active charges.
19. The Board has heard from counsel on the question of any nexus of the circumstances leading to this application with the manslaughter conviction.  In Mr Dillon’s view the position was not entirely clear but there were two key points.  The first was that had Mr Wickliffe crashed while driving, the consequences could very well have included a charge of manslaughter.  Secondly, certain of the instances of previous recall involved drugs and there was a common theme of substance abuse.
20. Mr Holmes’ view was that there was no relationship to the other aspects of the offending history and the Board should not be drawing any link.
21. In reserving this decision, the Board offered counsel for both the applicant and the respondent the opportunity to make closing submissions in writing. The Crown has chosen to file nothing further. By a supplementary submission of 23 April 2018, Mr Holmes says he has not found appropriate case law on the categorisation of risk. He did, however, forward a further set of submissions from Mr Wickliffe himself dated 18 April 2018 which we have taken into account. Mr Wickliffe has sought to clarify issues surrounding drug use and drug offending.
22. In this instance, of course, alcohol is the issue, In the Board’s opinion it is one thing for Mr Wickliffe to be breaching the condition relating to the consumption of alcohol.  It is entirely another matter in terms of risk to community safety for him to be putting innocent lives in jeopardy by driving under the influence.
23. It is particularly hard to understand given the messages from the Board and Mr Wickliffe himself in November 2017.
24. We have added into the mix that it appears there is no actual approved address as far as the Department is concerned despite Mr Wickliffe’s own views on the matter.
25. There is no question but that grounds are made out for this application, notably breach of conditions and the commission of an offence punishable by imprisonment.
26. That being so we must move to the second step in the process, namely the question of our discretion whether or not to make a final recall order.  In our opinion risk to the community’s safety is undue. In response to Mr Holmes’ assertion that risk is actually low (which is distinctly debatable as far as we are concerned), we note Court authority for the proposition that low risk does not necessarily mean that risk is not undue (Edmonds v New Zealand Parole Board [2015] NZHC 386).
27. We have also noted a relevant test for the exercise by the Board of the discretion to make a final recall order which has been expressed as follows:

    “If the Board… is of the view that further detention of the offender is not required for the purposes of public safety of the community (cf s7(2)(a)) and is satisfied that the offender can remain in the community without posing an undue risk to public safety (cf s28(2)), the discretion to recall should not be exercised.”

28. That is the test in Miller & Carroll v New Zealand Parole Board and the Attorney-General [2010] NZCA 600.
29. Given the particular circumstances we are satisfied that risk to community safety is undue and that a final recall order must be made.
30. We will be scheduling Mr Wickliffe to be seen for the further consideration of parole in August 2018.  That, we expect, will be before an extended Board.