New Zealand Parole Board -

Parole Hearing

Under section 21(2) of the Parole Act 2002

Fernando DO NASCIMENTO BARBOSA

Hearing: 16 April 2021

at Otago Corrections Facility via AVL from

NZPB, Wellington

Members of the Board: Alan Ritchie – Panel Convenor

Ms M Dodd

Ms S Driver

Counsel:                                        Ms S Saunderson-Warner

DECISION OF THE BOARD

1. Fernando Do Nascimento Barbosa, 33, has appeared for the further consideration of parole on his sentence of three years four months for the rape of a female over the age of 16.
2. There is no other recorded offending in New Zealand nor, apparently, elsewhere.
3. The prison security classification is low/medium, the RoC*RoI .13215 and the sentence expiry date is 26 December 2022.
4. On 15 October 2020, the Board expressed concern about minimisation on Mr Barbosa’s part.  It requested a psychological assessment report and said that if the psychologist did not recommend treatment then it would, nevertheless, be appropriate for Mr Barbosa to be assisted with a safety plan.
5. The Board noted, as we do, concern expressed by the victim over risk to others in the community to which Mr Barbosa is released.
6. We are aware of a deportation order and our understanding is that on release Mr Barbosa would be deported to Brazil.
7. In her submissions to us, Ms Saunderson-Warner has noted difficulties over deportation and she has advanced the proposition that there could be release into the New Zealand community.  Two possible addresses had been proposed but they have not yet been canvassed by the Department.  Ms Saunderson-Warner has acknowledged that given that the parole assessment report has been prepared with a view to deportation the appropriate course may be to have this hearing adjourned for the preparation of an updating parole assessment report. There is an addendum report but that does not provide sufficient information.
8. We have noted a psychological assessment report of 23 February 2021 which rates risk as low for sexual re-offending and says that Mr Barbosa does not meet criteria for automatic placement in an Adult Sex Offender Treatment Programme and an assessment for placement has not been recommended.  Nor, says the psychologist, does Mr Barbosa meet criteria for individual psychological intervention.  However, he was approved to complete a safety plan and we are aware that that has been done.
9. On the face of the material in front of us, there is at least some basis for an assessment that there would be sufficient protective factors in place in Brazil on deportation including through family support and the prospect of employment.  The situation as far as New Zealand is concerned is somewhat different.  Our understanding is that Mr Barbosa could have difficulty in terms of employment and in terms of any social welfare assistance. Victim issues would also need to be addressed.
10. (withheld)
11. We are taking a pragmatic course.  At least on the face of the material in front of us, there are protective factors in Brazil.  On the other hand we have no assurance about protective factors in New Zealand.
12. We have decided to direct a release on parole on 30 September 2021.  That is on the clear basis that if flights are able to be arranged by an earlier date then such earlier date must be taken as the date we have specified as the date for release.  If the release proceeds at or before 30 September 2021 then standard conditions as set out in section 14 of the Parole Act will apply but we are also setting some special conditions which will be incompatible with the standard conditions.  We are therefore suspending the standard conditions.  That is in accordance with section 29AA(4) of the Parole Act.
13. If it turns out that flights will not be available at or before 30 September 2021 the Department is expected to make an application for revocation of this direction for release ahead of 30 September 2021.
14. If the release proceeds the special condition will be:

(1) To be released into the custody of the New Zealand Police or Immigration authorities for the purpose of immediate deportation from New Zealand.

(2) Not to return to New Zealand.

15. Those conditions will continue until the statutory release date.
16. We are adding a qualification to that direction.  We will be scheduling Mr Barbosa to be seen for the further consideration of parole in June 2021.  That will be for the consideration of a release into the New Zealand community.  The Board would need significant further information for it to be satisfied in terms of undue risk to community safety.  Obviously, there would have to be departmental approval of an accommodation proposal.  There would have to be departmental identification of other usual protective factors such as support, employment and so on.  Victim interest would need to be covered in its further parole assessment report the Department would need to provide clear-cut information that a release to New Zealand would be consistent with the expectations of Immigration authorities given the deportation order.  No assurances whatsoever could be offered to Mr Barbosa about the outcome of that hearing in June 2021.