New Zealand Parole Board -

Parole Hearing

Under section 21(2) of the Parole Act 2002

Benjamin Todd WHITCOMBE

Hearing: 15 April 2021

at Rolleston Prison

via AVL from New Zealand Parole Board Head Office

Members of the Board: Judge G F Ellis – Panel Convenor

Sir K Workman

Ms F Pimm

Counsel:                                        Mr A Bailey

Attendees: (withheld) – Case Manager

(withheld) – Reintegration Coordinator

DECISION OF THE BOARD

1. Benjamin Todd Whitcombe is aged 24.  He is serving a sentence of three years’ imprisonment for making, possessing, importing and exporting objectionable material (child exploitation material).  His sentence commencement date was 5 September 2018, he reached parole eligibility on 16 June 2019 and his sentence expiry date is 14 June 2021, just two months hence.
2. He has a history with a prior conviction from 2015 for similar offending for which he was sentenced to home detention and some of the current offending was committed while on that sentence.
3. His underlying risk factors were identified as offence-related sexual arousal, substance abuse, offending‑supportive attitudes and entitlement and unstable lifestyle.
4. He was last before the Board on 11 February 2021.  He had completed the child sex offender treatment program at Kia Marama, he was in the graduates group but he did not then have an approved address.
5. The Parole Assessment Report before us advises that he has been identified for an extended supervision order but as yet no timeframe had been set.  He has graduated from the child sex offender treatment programme, has prepared a safety plan, has been working outside the wire in the (withheld) where he has been making good progress.  He has done other educational skills and tikanga courses.  No alcohol and/or drug treatment was recommended in prison but will be followed up in the community.
6. Mr Whitcombe has a relatively low assessed risk (RoC*Rol 0.35035).  He is on a low security classification, there have been no incidents or misconducts in the reporting period, and he remains IDU free.
7. An updated PAR for this hearing confirms that he has been accepted by (withheld) for housing.  He has been advised that the National Commissioner is proceeding with an application to the court for an extended supervision order but no dates have been given as yet.  There have been no other significant changes since the February PAR report, his behaviour has remained positive with no incidents or misconducts.
8. We talked with Mr Whitcombe and with the attendant Case Manager and reintegration co‑ordinator regarding the (withheld) accommodation available.  We are told that it is a shared accommodation where Mr Whitcombe will have his own bedroom but will share kitchen and bathroom facilities with others, many if not all of whom are likely to be former Kia Marama inmates.
9. Mr Whitcombe was supported by Mr Bailey as counsel.  Mr Bailey opened by confirming the availability of the (withheld) address from 13 May 2021.  He noted that that is not an approved release date but he asked us, in the circumstances of Mr Whitcombe's imminent sentence expiry date, to find that there were exceptional circumstances justifying a release on 13 May.
10. He also addressed the proposed conditions, in particular the proposed curfew and restriction on access to the Internet.  In relation to the curfew, Mr Bailey submitted that there was no causal link between curfew hours and Mr Whitcombe's offending, all of which was essentially computer-based.  In relation to the Internet, while acknowledging the causal connection between access to the Internet and the offending history, Mr Bailey pointed to the fact that Mr Whitcombe will be on restrictive conditions for a relatively short period and he suggested that it would be sufficient for him simply to be required to produce any Internet‑capable device for regular monitoring by his Probation Officer.
11. We have carefully considered each of those matters.  We are not satisfied that the happenstance of a placement available on a Thursday is an exceptional circumstance justifying a departure from the usual release date rules.  We are satisfied that it is appropriate for Mr Whitcombe to be released and the date of release will thus be 17 May 2021.
12. Secondly, we have considered the submission with regard to the curfew.  As the Case Manager confirmed, the proposal for a curfew for a limited period is not intended directly to relate to risk but is intended as a transitional re-integrative measure to assist the offender’s transition from the highly structured environment of prison to the less structured environment of a placement in the community.
13. We are satisfied nevertheless that some reduction in the curfew requirement is justified.  There will be a curfew provision but it is to apply for three months only from the date of release and the curfew hours are to be from 10.00 p.m. until 6.00 a.m.
14. In relation to the Internet, we do note that Mr Whitcombe, despite his relatively young age, is a repeat offender following a similar pattern, all of which was Internet‑based.  In those circumstances we have no hesitation in finding that the proposed conditions regarding both access to the Internet and the monitoring of Internet‑capable devices are entirely appropriate conditions directly relevant to the mitigation of his risk and to assist in his reintegration.
15. As noted above with these conditions clarified, having regard to the work that he has undertaken, his successful steps on a re-integrative path with work outside the wire and now the confirmation of this placement, Mr Whitcombe no longer poses an undue risk if released on conditions such as have now been clarified.
16. The date of release is confirmed as 17 May and the conditions will be now as set out below.  Both standard and special conditions are to continue for six months past sentence expiry date.
17. The Standard Conditions as set out in section 14 of the Parole Act 2002 are imposed.
18. The following Special Conditions are imposed:

(1) To reside at (withheld) Dunedin, 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) To comply with any tenancy agreement or rules issued by the provider of your approved accommodation, as approved by your probation officer.

(3) Until 16 August 2021, to be at your approved address between the hours of 10:00pm and 6:00am daily unless you have the prior written approval of a Probation Officer.

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

(5) To attend an assessment for a departmental programme/maintenance group, and attend, participate in and adhere to the rules of the programme/maintenance group as directed by a Probation Officer.

(6) To attend an alcohol and drug assessment, and attend, participate in and complete any treatment or counselling directed by a Probation Officer.

(7) Not to possess, use, or consume alcohol, controlled drugs or psychoactive substances except controlled drugs prescribed for you by a health professional.

(8) Not to use or possess any device capable of accessing the internet, not to capture, store, access or distribute images through the use of any camera or electronic device, unless you are under the direct supervision of an adult approved in writing by a Probation Officer, or unless you have the prior written approval of a Probation Officer.

(9) 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.

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

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

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

(13) Not to have contact or otherwise associate, with a person under the age of 16 years, directly or indirectly unless you have the prior written approval of a Probation Officer, or unless you are under the supervision and in the presence of an adult approved in writing by a Probation Officer.

“Please note: you may be required to undergo a drug or alcohol test and or submit to drug or alcohol monitoring.”