New Zealand Parole Board -

Parole Hearing

Under section 21(2) of the Parole Act 2002

Neil Graham PITCEATHLY

Hearing: 2 December 2019

at Whanganui Prison

via AVL from New Zealand Parole Board, Wellington

Date of decision: 9 December 2019

Members of the Board:

• Mr N Trendle (Panel Convenor)
• Mr P Elenio
• Mr D Hauraki

Counsel:                                           

• Ms A Brosnahan

Support Persons:

• [withheld]

DECISION OF THE BOARD

1. Neil Graham Pitceathly, who is 77 years of age, was sentenced on 21 August 2009 to a term of 20 years’ imprisonment (reduced on appeal to 18 years’ imprisonment) with a minimum period of imprisonment of seven years, nine months and a reparation order of $50,000.  His sentencing followed a trial on 60 charges of stupefying [withheld] with intent to facilitate sexual violation, 74 counts of sexual violation by unlawful sexual connection, 17 counts of sexual violation by rape and 61 counts of possessing intimate visual recordings without reasonable excuse.  Some of the charges were representative.
2. Additionally, he pleaded guilty prior to trial to one representative charge of possessing an objectionable publication, namely video clips depicting acts of bestiality.
3. Mr Pitceathly’s statutory release date is 26 May 2027.  He holds a minimum security classification.   He works in the joinery factory and is regarded as maintaining a high work ethic.  There are no issues with his conduct or compliance in the prison environment.
4. Mr Pitceathly completed the Adult Sex Offender Treatment Programme in May of this year.  Initially he was assessed as not taking full responsibility for his offending, with cognitive distortions around the role of the victim of his offending.  That changed in the course of the programme following group discussion regarding consent.  In the course of the programme, Mr Pitceathly completed a safety plan which has been revised.  Prior to his attendance at the programme, he had undertaken a series of treatment sessions with a privately retained psychologist.
5. The psychologist who provided the Board with a report dated 29 July 2019, assessed him as posing a medium to high risk of further sexual re-offending though the risk needed to be considered in the context of his offending occurring in a relationship that had become dysfunctional.  The psychologist noted Mr Pitceathly’s age and his strongly stated aversion to being in prison as potentially future risk‑mitigating factors.
6. As with all offenders, the Board is required to assess whether his release would pose an undue risk to the safety of the community or any person or class of person in the community.  Following the Court of Appeal decision in Pitceathly v New Zealand Parole Board [2019] 2 NZLR 613, the Board rejected a submission that his risk should be assessed as only extending to Mr Pitceathly’s current wife with whom he lived with for about two years prior to sentencing.  In practical terms, the Board needs to assess his risk to the victim of his offending, his current partner and any potential future partners.
7. Ms Brosnahan appeared as counsel and made written submissions in support of Mr Pitceathly’s release on parole, supplemented orally at the hearing.  Counsel referred to his completion of the Adult Sex Offender Treatment Programme, his compliance and positive engagement within the prison environment and that the psychological report before the Board referred to Mr Pitceathly’s demonstrated understanding of his safety plan.  His release plan was assessed as having a low reintegrative risk.  Counsel submitted that his medium/high risk of further sexual offending was unlikely to change, but that the risk was addressed by his safety plan and the context of risk which was confined to an adult female partner with whom he has a dysfunctional relationship.  Counsel submitted that his current relationship did not have that feature.
8. Ms Brosnahan submitted that Mr Pitceathly’s release proposal was supported by his current wife.  Although the parole assessment report before the Board did not support Mr Pitceathly’s release to live with [withheld], she submitted that the release proposal had been earlier assessed as suitable.
9. In its last decision in September of this year, the Board was not satisfied that Mr Pitceathly’s release, in terms of the proposal before it, would not pose an undue risk to the safety of the community.  It expressed the view that it was worth exploring the possibility of guided releases to allow Mr Pitceathly and his wife to engage in relationship counselling in which an independent person could speak separately and together with the parties.  The Board supported that counselling occurring.
10. Ms Brosnahan submitted that counselling had occurred and she annexed a report from the counsellor outlining the process and progress made.  Ms Brosnahan submitted that Mr Pitceathly had looked at other options for accommodation, but none was available.  She annexed a copy of Mr Pitceathly’s safety plan updated following the relationship counselling.
11. In considering Mr Pitceathly’s release on parole, the Board is required to give due weight to the concerns of his victim.  Prior to the hearing the Board met with her and understandably she still remains concerned for her safety should Mr Pitceathly be released.  The Board has reached the view that those concerns can be met by release conditions supplemented always by Mr Pitceathly’s liability for recall until the end of his sentence in 2027 should he post a risk to her safety.
12. A second category of victim is any person Mr Pitceathly may engage in a future relationship.  At present, that seems an unlikely possibility, but one that can be managed on release conditions.
13. Finally, the Board has given close consideration to the position of Mr Pitceathly’s current wife. She has been consistent in her support.  She has not perceived any risk to herself and was somewhat defensive when it was suggested that Mr Pitceathly should consider living elsewhere upon release to allow their relationship to re-establish itself.  [withheld].  As the Board noted in its last decision, ultimately it is for us to form an independent view as to the risk to her safety.
14. We have taken time to reflect on this matter as we find it finely balanced.  Our obligation is clear.  Until we are satisfied that Mr Pitceathly’s release would not pose an undue risk to the safety of the community or any class or person in it, we cannot direct his release.  Once we are so satisfied however, we must direct his release.
15. We have reached the view that having regard to all the material before us, Mr Pitceathly’s risk can be managed on parole conditions.  In reaching that conclusion, we have been mindful of a number of factors.
16. First, although the release address was not assessed as suitable by Community Corrections, the Board is in receipt of additional information with respect to the counselling undertaken [withheld].
17. Secondly, we have considered whether Mr Pitceathly’s release to an alternative release address would provide a safer transition to the community and to his current relationship.  We note that although [withheld] supported accommodation is not available, that situation may change in the New Year.  After reflecting on that point, we have concluded that though desirable, such a step would not materially impact on risk issues in light of the counselling that has been undertaken.
18. Thirdly, there has been a concern about Mr Pitceathly’s earlier relationships.  The Board has more than once raised with him the suggestion that prior to his current victim, there had been similar conduct with respect to an earlier partner.  Mr Pitceathly vehemently denied that.  The Board has not been in a position to take that matter further.
19. We also note the observation of the relationship counsellor engaged by Mr Pitceathly and his wife, [withheld].  The counsellor observed that when Mr Pitceathly joined for the couples counselling, the dynamic changed markedly.  That drew the comment that the counsellor was of the view that the observation reflected Mr Pitceathly’s personality.
20. Finally, we note the suggestion made in the course of the counselling, that Mr Pitceathly’s wife should develop her own safety plan should issues arise in their relationship that gave her cause for concern.  That seemed to us to be a sensible, practical consideration but on raising it with Mr Pitceathly in the course of the hearing, he pointed out that after discussion, he and his wife had agreed that the issue should be covered in his safety plan.  That, in the Board’s view, is a somewhat unorthodox approach to the matter when in the past Mr Pitceathly’s victim was quite unable to disentangle herself from the relationship to complain about his offending.
21. We have reflected on the apparent dominance of Mr Pithceathy’s views as to how he will keep himself and others safe in the community in light of his release plan and the absence of a wider support base that will provide the type of challenge he experienced on the Adult Sex Offender Treatment Programme.   Ultimately, we have concluded that for the balance of his sentence, the risk posed by Mr Pitceathly to the safety of others in the community, can be managed with the supervision and support of his probation officer and psychologist together with his adherence to appropriately focused release conditions.  We have taken into account the ongoing authority of his Probation Officer under section 14(1)(f) of the Parole Act to direct that Mr Pitceathly is to no longer reside at the address occupied by his wife, should the need arise.
22. Accordingly, we direct his release on parole on 13 January 2020.   We have selected that date to allow for prompt access to psychological resources in terms of the recommendations in the psychological report of 29 July 2019.  Thereafter, he will be subject to standard conditions and to the special conditions set out below for a period of two years.
23. We have included a condition that Mr Pitceathly is not to enter the Bay of Plenty area in that time although counsel invited us to more narrowly define that area.  We are of the view that the Board’s concern for his victim requires a significant exclusion zone and that the whereabouts condition should be electronically monitored.  We have considered, particularly with respect to victim concerns, whether that condition should extend beyond the two years but have concluded it is unnecessary having regard to Mr Pitceathly’s awareness as to the consequences of any contact with her, or action that may implicate his victim’s safety.
24. We have imposed conditions placing limitations on Mr Pitceathly’s unsupervised access to the internet.  We do so to mitigate future risk following his conviction for possessing objectionable material.
25. The Board has also imposed a condition that Mr Pitceathly is to attend a monitoring hearing in June 2020.  For that hearing the Board requests a report from his probation officer as to Mr Pitceathly’s compliance with release conditions and generally his progress on parole.  We impose that condition having regard to the seriousness of Mr Pitceathly’s offending, the length of time remaining on his sentence and the importance attached by the Board to the need for release conditions to adequately address issues of risk.
26. Release accordingly.  Special conditions as follows:

    (1) To reside at [withheld] or any other address approved in writing by a Probation Officer, and not move from that address unless you have the prior written approval of a Probation Officer.

    (2) Not to possess or use any electronic device capable of accessing the internet, other than a device that has been identified by you and approved in writing by a Probation Officer.

    (3) Upon request, to make available to a Probation Officer, or his or her agent, any electronic device capable of accessing the internet that is used by you, or is in your possession or control, for the purpose of monitoring your use of the device

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

    (5) To attend, participate in and complete any psychological treatment directed by a Probation Officer.

    (6) To obtain the written approval of a Probation Officer before starting or changing your position or place of employment (including voluntary and unpaid work). To notify a Probation Officer if you leave your position of employment.

    (7) Not to enter Bay of Plenty region as defined by a probation officer in writing unless you have the prior written approval of a probation officer.

    (8) To submit to electronic monitoring as directed by a probation officer in order to monitor your compliance with any conditions relating to your whereabouts.

    (9) To comply with the requirements of electronic monitoring and provide unimpeded access to your approved residence by a probation officer or representatives of the monitoring company for the purpose of maintaining the electronic monitoring equipment as directed by a probation officer.

    (10) To disclose to a Probation Officer, at the earliest opportunity, details of any intimate relationship which commences, resumes, or terminates.

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