New Zealand Parole Board -

Parole Hearing

Under section 21(2) of the Parole Act 2002

David Robert Gilmour ROSS

Hearing: 5 December 2019

at Rimutaka Prison by AVL from New Zealand Parole Board, Wellington

Date of Decision: 13 December 2019

Members of the Board:

• Ms M Coleman (Panel Convenor)
• Ms S Driver
• Ms W Taumaunu

Counsel:                                          

• Mr M Bott

In Attendance:

• Mr T Graham (NZPB)
• Ms C Norman (TVNZ)

RESERVED DECISION OF THE BOARD

1. David Ross, who is 69, appeared before the Board for further consideration of parole on a 10 year, 10 month sentence for fraud‑related offending.
2. Mr Ross was subject to a five year, five month non‑parole period and reached parole eligibility on 27 January 2019.  His statutory release date is 28 June 2024.
3. Mr Ross was last before the Board in June 2019.
4. Mr Ross told the last Board that his offending occurred after a “mistake” was made which led to the business being turned into a Ponzi scheme.  He conceded that he was over‑confident he could correct the error of the over‑valuation of the portfolios and acknowledged that he was misguided in doing so.  He further explained to the Board that he felt unable to engage with the psychologist in terms of psychometric testing and the background to his offending, but acknowledged that he would reconsider that decision if another opportunity was made available to him.  The last Board said that it found Mr Ross’ responses to be evasive and self‑serving.  It recorded that he kept returning to a concern that he may face civil proceedings, although he was unable to articulate any rational basis for that concern.
5. The Board accepted Mr Ross did not meet the criteria for group‑based rehabilitation.  Nevertheless, it was of the view that Mr Ross should be given the opportunity to engage with a psychologist in individual treatment.  It reflected on counsel’s submission that Mr Ross was now prepared to openly engage in a further psychological assessment, which would also involve him reconsidering his position with respect to psychometric testing, and agreed that that was an appropriate way forward.  Mr Ross was scheduled to be seen again with an addendum psychological risk assessment.
6. Mr Ross was represented again at this hearing by Mr Bott.  Mr Bott said at the outset that the fly in the ointment was the difficulty in securing accommodation in the immediate future.  He has been in touch with [withheld] and, while they are prepared to accept him, at present there is no vacancy.
7. Mr Bott also said that the Board now had the benefit of the further psychological assessment from [departmental psychologist] Ms Watson, which in very many respects was congruent with that obtained privately from [R] which had been provided prior to the hearing.
8. Ms Watson’s assessment indicates that Mr Ross scored below average on the Psychopathy Checklist.  The measures on which Mr Ross scored more highly revealed that any further future risk management should be focused on Mr Ross’ past manipulative behaviour, his willingness to deceive others and portray himself in a consistently positive light, and his willingness to over‑estimate his own abilities and self‑worth.  Ms Watson went on to say that protective factors were considered to provide balance to the current assessment.  Ms Watson also said that Mr Ross was able to clearly discuss the impact of his fraudulent behaviour on future plans.
9. Overall, Ms Watson’s structured assessment of Mr Ross’ risk of re‑offending, based on static, dynamic and protective factors, was that he presents with a low risk of re‑offending.  Should he reoffend, Ms Watson believes it would most likely be through manipulation and breaches of imposed conditions around his release.  Ms Watson further said that given the level of publicity and oversight around Mr Ross’ prolific fraudulent behaviour, it is considered unlikely that he would engage in further accounting or financial brokering services.  Over the longer term, Ms Watson believes it will be important for him to openly discuss his offending so that personal and professional supports are able to appropriately challenge him.
10. Ms Watson made a number of recommendations.  The first of these was that he be offered brief time‑limited work with a departmental psychologist to review his safety plan and develop a risk management plan.  Ms Watson’s view was that it would be equally beneficial to do this in the community as in prison.  Prior to release, Ms Watson also recommends that his case manager work with him to address and unpack the specific level of support he will have in the community.  Ideally this would include a series of planning meetings where Community Corrections would work with Mr Ross and his case manager.
11. As Mr Bott submitted, Ms Watson’s assessment is not dissimilar to that provided by [R].  [R] assesses his overall risk of future offending as very low.  [R] assesses Mr Ross to pose no risk of theft in the ordinary sense of the word.
12. The Board had a lengthy discussion with Mr Ross about his insight into his offending.  Mr Ross said that at the time of his offending he enjoyed the admiration and respect that he received from his clients and the wider community.  He said that unfortunately when realised the portfolios were overvalued he did not have “the guts” to own up to his clients about that and kept it to himself.  He said he put a false front and misled them to believe that things were going well because he did not want to lose the respect and admiration of others.  Mr Ross also said that initially he was over‑confident that he could put things right and didn’t confide in anybody at the time.  He said that he went to his lawyers twice but when he got there he didn’t discuss the reasons why he had come.  He said that he found it hard to accept that he had made such a big mistake and had too much pride to advise his clients of that.
13. Mr Ross also said that when he saw a departmental psychologist for the second time he was able to be more open with her and learned a lot about himself as a result of going through the various assessment tools.  He acknowledged that he was wrong and foolish when things started to go wrong not to be honest with everybody.  He said that since being arrested he had done everything that he could to put things right and had ensured that all his personal assets, including that held in trusts, were handed over to the receivers.  He acknowledges that some of his victims believe that he has stashed money away but said the report from the receiver, PWC, makes it clear that all monies have been handed over for the benefit of the investors.
14. At the hearing, Mr Ross displayed a deep and sincere remorse for his offending.  He acknowledges that it has had a very material impact on his victims and said he is deeply sorry that he is unable to put things right.
15. Mr Ross’ support network remains strong.  Key amongst his supporters are [withheld].  His plan initially is to be released to reside in [withheld] and then to look for cheaper accommodation in a small centre.  The reason for moving away is that it will enable him to live off his pension and be away from the cocktail circuit lifestyle that he used to be part of.
16. In summarising matters in support of Mr Ross’ release on parole, Mr Bott said that he had unequivocally accepted responsibility for his offending and his risk of reoffending was low or very low.  Mr Ross had done all he could since his arrest to put matters right, had not kept back any of his own property at all and had a strong support network.
17. Mr Ross appears to have reflected on the concerns expressed by the last Board about his preparedness to discuss his offending, both with the Board and with the psychologist.  The outcome of that, as Mr Bott submitted, is that the two most recent psychological reports indicate that Mr Ross’ low (or very low) risk of re‑offending can be managed appropriately in the community on conditions.
18. There is some further work that Mr Ross needs to do in terms of reviewing his safety plan and developing a risk management plan.  While Ms Watson indicated this could be done in the community, given the seriousness of his offending the Board considers it should be done in prison prior to release.  There is also further work needed to strengthen the role that his support network will play.  The recommendation is that this be undertaken in the first instance with his case manager.
19. This work has started.  A meeting was held last month with [withheld] along with his probation officer and case manager.  His safety plan, including warning signs and strategies for managing high risk situations, was discussed.
20. The Board has reached the position that Mr Bott opened with in his submissions, which is that the fly in the ointment is the issue of accommodation.  While it is something of a chicken and egg situation, the Board is reasonably confident (as was the last Board) that the issue of accommodation can be sorted out given the support he will have from [withheld].
21. In the circumstances, therefore, it is prepared to direct his release on parole on 24 February 2020.  He will be released to [withheld] or any other address approved in writing by his probation officer.   The intervening period between now and then should be sufficient for accommodation to be found.  If for any reason it is not, this grant of parole will need to be revoked.
22. The delay in his release until 24 February 2020 will provide sufficient time for him to have completed the time‑limited work referred to by Ms Watson in her report.  Once all of that work is complete, the Board envisages that there will be a further whānau hui held, where he will present his revised safety plan prior to leaving prison.  One of the important aspects of the further work and the whānau hui is the importance over the longer term of Mr Ross being able to openly discuss his offending so that personal and professional supports are able to appropriately challenge him.
23. Mr Ross will be subject to standard and special conditions for two years from his release date.  Given the change of location from [withheld] to somewhere in a smaller community, the Board considers that it is appropriate to monitor Mr Ross’ progress on parole to ensure that he is managing that transition.  It may well be that further or changed conditions need to be put in place.  This hearing will take place in August 2020.
24. One of the conditions is to ensure that he does not hold roles with any businesses or providing any kind of financial advice or participation in the management of the finances of any person or any entity.  He will need to seek approval before he engages in any employment, which includes voluntary or unpaid work, to ensure that it is appropriate given the nature of his offending and the extent to which any residual risk remains.
25. Mr Ross is not to have any contact with any victim of his offending, directly or indirectly, of which there are hundreds.  Understandably, many of his victims feel angry and hopeless given the destruction of their economic wellbeing brought about by his offending.  Some of Mr Ross’ victims are family.  He will need to discuss all victim contact issues carefully with his probation officer.  Given that condition, it may be wise for him not to make media comments or otherwise post comments on social media which victims could have access to.
26. Mr Ross will also need to attend a psychological assessment and attend and participate and complete any recommended treatment as directed.
27. The special conditions are as follows:

    (1) Not to hold any advisory or governance roles within any business, trust, company or other entity, unless you have the prior written approval of a Probation Officer.

    (2) Not to be involved in or provide financial/business advice or participate in the management of financial accounts or transactions, of any person or entity, unless you have the prior written approval of a Probation Officer

    (3) Not to engage in any employment (including voluntary or unpaid work) or have any role in the affairs of any business, trust, company or other entity, unless you have the prior written approval of a Probation Officer.

    (4) Not to have contact or otherwise associate, with any victim of your offending, directly or indirectly, unless you have the prior written approval of a Probation Officer.

    (5) To reside at an address approved in writing by a Probation Officer, and not move from that address or any subsequent approved address, unless you have the prior written approval of a Probation Officer.

    (6) To attend a psychological assessment and attend, participate in and complete any recommended treatment as directed by a Probation Officer.

    (7) To attend a reintegration meeting as directed by a Probation Officer.

    (8) To comply with any direction made under section 29B(2)(b) of the Parole Act 2002 to attend a hearing in August 2020 at a time and place to be notified to you.