New Zealand Parole Board -

Parole Hearing

Under section 21(2) of the Parole Act 2002

David Robert Gilmour ROSS

Hearing: 6 June 2019

at Rimutaka Prison

Members of the Board:

• Mr N Trendle – Panel Convenor
• Mr S Perry
• Mr A Hackney

Counsel:                                          

• Mr M Bott

DECISION OF THE BOARD

1. David Robert Gilmour Ross is serving a sentence totalling ten years and ten months imprisonment for fraud-related offending.  The seriousness of his offending was marked by the imposition of a minimum period of imprisonment totalling five years and five months, which was completed in January this year. Over 700 victims lost around $115 million as a result of his offending.
2. Mr Ross initially appeared before the Board on 20 March 2019.  The Board’s decision on that occasion was the subject of a successful review application, which resulted in Mr Ross appearing before us today for what is effectively his first consideration of parole.
3. He was represented by Mr Bott who provided the Board with written submissions of a preliminary nature.  In essence, counsel submitted that apart from the issue of Mr Ross’s proposed accommodation when he left prison, the combination of a number of factors supported his submission that Mr Ross’s release would not pose an undue risk to the safety of the community.
4. First, Mr Bott pointed to the psychologist’s assessment that Mr Ross presented with a low risk of re-offending; secondly, he had fully co-operated with the authorities; thirdly, he was unable to access other people’s monies in the future; fourthly, the Board could set special release conditions to undergird the restrictions on his ability to re-offend and finally, the public notoriety of his prosecution and sentencing also served to mitigate risk.
5. The psychological report before the Board dated 18 December 2018 referred to a reluctance on the part of Mr Ross to openly discuss what brought him to offend.  It was evident he wanted to control the nature of the psychologist’s assessment process. The psychologist recorded that he became defensive when asked questions regarding his offending.  He was also recorded as questioning the psychologist’s ability to assess his offending given the psychologist’s disclosure of limited financial expertise.
6. In his opening Mr Bott referred to Mr Ross’s reluctance to disclose information to the psychologist and explained that it was due to his concern that it could be used in unjustified civil litigation against him in the future. Counsel conceded that he was unaware of any proceedings having been commenced.
7. At the conclusion of the report, the psychologist noted that Mr Ross had not provided a sufficiently detailed account of his offending behaviour, but indicated that he would provide that direct to the Board at the hearing.  Accordingly, the Board directed questions to Mr Ross as to why he offended in the way he did.   He began by explaining that his offending occurred after a “mistake was made”.  Thereafter, the business “turned into” a Ponzi scheme.  That was a consequence of the operation of the business.  He accepted he made a grave mistake as he did not own up to what occurred.  He said at the time he was misguided and deluded, and thought he could correct the position.  He conceded to a feeling of over-confidence that he could correct the error.
8. He went on to explain why he felt unable to engage with the psychologist with respect to his discussion of the background to his offending and his approach to engaging in psychometric testing.   Mr Ross told us that he was offered the opportunity to participate in that testing but told that he did not have to.  He acknowledged, however, that in the future he would reconsider that decision if the opportunity was made available to him.
9. In responding to the Board’s endeavour to understand the thinking that led him to offend, Mr Ross kept returning to the scenario presented to the psychologist that the fraudulent Ponzi scheme for which he accepted responsibility began in 2006.  He studiously refused, at least initially, to acknowledge criminal offending prior to that date notwithstanding the basis on which the Judge sentenced him and indeed, his own guilty plea to a summary of facts that referred to offending extending from 2000 to 2012.
10. We are obliged to record that we found Mr Ross’s responses to our questions to be evasive and self-serving.  He kept returning to his concern that he may face unjustified civil proceedings based on his disclosures, though he was unable to articulate any rational basis for that concern.
11. We accept Mr Bott’s submissions with respect to the strong support that Mr Ross can rely on when he is released.  Although presently he has no approved accommodation, that should not pose a problem.  We do not, however, for the reasons that follow, accept that Mr Ross’s risk to the community can be managed on release conditions.
12. First, he has been quite unable to engage with either the psychologist or the Board in an open discussion about the extent of his offending.   The psychologist concluded that even though he has admitted his offending, by failing to give an open and honest account of events, he is yet to take full responsibility for his offending.  We note also, that at the time of the psychological assessment, more than four years after he was sentenced, he had not been prepared or able to explain his offending to a close family member, who was also a victim. Further, when he had the opportunity to assist the Board to understand how and why he offended, he chose to minimise his own responsibility and engage in cognitive distortion.
13. Secondly, when it comes to assessing his risk, the Board has, on the one hand, the version of events that was before the court, which resulted in his conviction for offending that began at least as early as 2000.  On the other, we have a reframing of those events by Mr Ross that presents his offending in a significantly less serious light by acknowledging his engaging in a Ponzi scheme from 2006. We note that the liquidator’s analysis, which appears to be consistent with the basis on which he was sentenced, was dismissed by Mr Ross at the hearing as simply an “opinion”.  That leads us to the view that when considering the issue of undue risk in terms of section 5(3) of the Parole Act 2002, his risk is significantly greater than Mr Ross is prepared to concede.
14. Thirdly, though he had the opportunity to do so, Mr Ross declined to participate in psychometric testing with the psychologist.  He repeated his position when later approached by the principal psychologist.  The Board often finds the result of those tests, including the psychopathy checklist, as helpful when assessing risk.  We are of the view that Mr Ross’s disinclination to participate in testing was a further indication of his attempt to control the psychological assessment for his own purposes.
15. Fourthly, Mr Ross’s approach to the psychologist’s assessment, his insistence on viewing his offending on his own terms and his apparent lack of transparency with the Board gives us little confidence that he will be open and honest with his probation officer with respect to his compliance with parole conditions when he is released, or with his support network.
16. Fifthly, Mr Ross appeared to show little insight of the consequences of his offending.  Whilst he acknowledged that in future, he should not handle other people’s money, one of the activities he proposed on release was to provide business advice or mentoring to others, including students.  Further, his reluctance to candidly engage with the Board on the basis that he was simply preserving his legal rights against unjustified civil actions appeared to us to be incongruent with his expressions of remorse and reflecting limited insight into the position of his 700 victims.
17. Finally, we are not satisfied that the safety plan that Mr Ross developed in the context of his own analysis of his offending provides an adequate framework for managing his risk when he returns to the community.
18. We accept that Mr Ross does not meet the criteria for a group-based rehabilitation programme.  The seriousness of his offending and his approach to taking responsibility for it to date led us to the view that Mr Ross should have the opportunity to engage with a psychologist in individual treatment to confront and address the issues that lay behind his fraudulent offending.  Until that work was completed, it seemed to us that it would be unlikely his position would change to the extent that the Board could be satisfied that he met the statutory criteria for parole.
19. We have, however, reflected on Mr Bott’s submission at the close of the hearing that Mr Ross was now prepared to openly engage in a further psychological assessment that would also involve him reconsidering his position with respect to psychometric testing.  We see that as an appropriate next step, noting also that Mr Bott may seek to commission a privately retained psychological report.
20. Parole today is declined.  To allow sufficient time for these matters to progress, Mr Ross will be scheduled to be seen again in six months, by 20 December 2019.
21. For that hearing the Board would be assisted by a psychological addendum reassessing risk and making recommendations as to any treatment or reintegration needs in light of Mr Ross’s apparent willingness to openly engage in the process.