Wilson v New Zealand Parole Board
[2012] NZHC 1474
•27 June 2012
IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY
CIV-2011-485-002690 [2012] NZHC 1474
IN THE MATTER OF an application for judicial review
BETWEEN STUART MURRAY WILSON Applicant
ANDNEW ZEALAND PAROLE BOARD Respondent
Hearing: 27 June 2012
Counsel: A J McKenzie for Applicant (Applicant present via videolink) F Sinclair and R Hoare for Respondent
Judgment: 27 June 2012
ORAL JUDGMENT OF COLLINS J
Introduction
[1] Mr Wilson seeks to judicially review a decision of the Parole Board made on
17 October 2011. In that decision the Parole Board reviewed an order made under s 107 of the Parole Act 2002 and determined that the orders affecting Mr Wilson should remain in place.
[2] Mr Wilson was represented today by Mr McKenzie who, in the best traditions of the legal profession acted for Mr Wilson on a pro bono basis. Mr Wilson challenges the decision of the Parole Board on two grounds. He submits:
(1)That there was insufficient evidence before the Parole Board to justify the continuation of the s 107 order.
WILSON V NEW ZEALAND PAROLE BOARD HC WN CIV-2011-485-002690 [27 June 2012]
(2)That the Parole Board failed to take into account a relevant consideration, namely the decrease in the window of opportunity for him to reoffend if he is granted parole prior to his release date.
[3] It is necessary to briefly traverse the background to fully appreciate
Mr Wilson’s submissions.
Background
[4] In March 1996 Mr Wilson was convicted of 19 serious offences. He was sentenced to an effective term of 21 years’ imprisonment. This sentence comprised cumulative terms of eight years and ten years’ imprisonment for sexual offending, which included:
(1) seven counts of rape in respect of five different victims; (2) two counts of stupefication;
(3) four counts of indecent assault and
(4) bestiality.
A further three years’ imprisonment was imposed in relation to two counts of wilful ill-treatment of a child.
[5] Mr Wilson’s sentence commenced on 15 March 1996.
[6] Under the Criminal Justice Act 1985, as amended in 1993, Mr Wilson became eligible to be considered for parole on 2 December 2007.
[7] A parole hearing was held on 7 September 2007. In a decision delivered on
10 September 2007 the Parole Board declined to grant parole to Mr Wilson. Thereafter, the Chief Executive of the Department of Corrections applied for an order under s 107 of the Parole Act 2002 that Mr Wilson not be released before the end of his sentence.
[8] An order under s 107 of the Parole Act 2002 requires the prisoner to remain in prison until they have served the sentence they are serving for certain specified offences. An order is made under s 107 when the Parole Board is satisfied that the prisoner is likely to commit further specified offences if released on parole before the end of their sentence.
[9] The Parole Board issued its decision under s 107 of the Parole Act 2002 on
16 December 2008. In its decision the Parole Board explained that it was satisfied the criteria for making a s 107 order had been established. As a consequence Mr Wilson is not to be released from prison until 1 September 2012. However, once an order has been made under s 107 of the Parole Act 2002 it must be reviewed every six months. On review the s 107 order must be quashed unless the Parole Board remains satisfied that the prisoner is likely to commit a further specified offence between the date of the review and the applicable release date (in this case 1 September 2012). If the Parole Board is no longer satisfied the prisoner is likely to commit a further specified offence, it must settle upon release conditions and direct that the prisoner be released on parole.
[10] Reviews of Mr Wilson’s case have been regularly undertaken by the
Parole Board pursuant to s 107 of the Parole Act 2002. Those reviews occurred on:
11 March 2009;
15 December 2009;
11 May 2010;
23 November 2010;
29 April 2011;
17 October 2011; and
30 March 2012.
At each review the Parole Board determined that the criteria for continuing the s 107 order were established.
[11] Mr Wilson unsuccessfully attempted to appeal the Parole Board’s
16 December 2008 decision. That appeal was dismissed:
(1) By a District Court Judge on 11 March 2009 under s 67 of the Parole
Act 2002.1
(2) By a High Court Judge on 21 May 2009.2
(3)By the Court of Appeal when it determined there was no jurisdiction to enable an appeal to be heard by that Court.3
[12] Mr Wilson attempted to judicially review the s 107 review decision made by the Parole Board on 23 November 2010. That application for judicial review was dismissed by the High Court on 20 May 2011.4
[13] The current application for judicial review is confined to the penultimate s 107 review decision, which was delivered on 17 October 2011 even though the effect of that decision has been confirmed by the final s 107 review of 30 March
2012. The 30 March 2012 review decision is likely to be the final s 107 review decision because Mr Wilson must be released from prison on 1 September 2012.
First ground of review
[14] The test which the Parole Board must apply when considering a review under s 107 of the Parole Act 2002 was confirmed in the following terms by the Court of Appeal in Wilson v Parole Board:5
The applicant must satisfy the board that there is a real or substantial risk of reoffending of the specified kind within the specified period if an order is not
1 Wilson v New Zealand Parole Board , Rolleston Prison, 11 March 2009.
2 Wilson v Parole Board HC Christchurch CRI-2009-409-47, 21 May 2009.
3 Wilson v Parole Board [2010] NZCA 269, [2010] 3 NZLR 399.
4 Wilson v New Zealand Parole Board HC Christchurch CIV-2010-409-2933, 20 May 2011.
5 Wilson v Parole Board [2010] NZCA 269, [2010] 3 NZLR 399 at [60] and [74].
made, and that such risk is significantly greater than the risk of recidivism ordinarily attaching to such offending.
[15] In the present case the Parole Board set out this test6 and then proceeded to apply that test to the evidence before it.
[16] The evidence before the Parole Board comprised:
(1)A full psychological report of 23 July 2008 and six supplementary psychological reports dated:
(a) 24 March 2009; (b) 21 October 2009; (c) 6 April 2010;
(d) 7 October 2010; (e) 7 April 2011; and (f) 6 September 2011.
(2) A parole assessment report of 14 September 2011; (3) Oral evidence from Ms Waugh (psychologist).
In addition, the Parole Board had the benefit of submissions from the Community
Probation Service and Mr Wilson.
[17] The psychological reports before the Parole Board confirmed Mr Wilson poses a high risk of sexual reoffending. The 6 September 2011 supplementary psychological report confirmed the following key concerns contained in earlier
reports:
6 Amended decision of New Zealand Parole Board, 17 October 2011 at [9].
(1)On the Automated Sexual Recidivism Scale (ASRS),7 Mr Wilson is assessed as being in the high risk category. ASRS high category offenders sexually reoffend at a rate which is approximately four times that of the average rate.8
(2)On the Psychopathy Checklist Screening Version assessment tool (PCL:SV)9 Mr Wilson was assessed as having “... a high level of superficiality, grandiosity, deceitfulness together with a lack of empathy, remorse, or any ability to take responsibility for his actions”.10 The report noted “Mr Wilson has also been found to have a significant pattern of sexual deviance (as indicated by his offence history), which when considered with high scores on the PCL:SV produce a multiplicative effect that in international research has been associated with rapid and high rates of sexual recidivism”.11
(3)That application of the STABLE 200712 assessment tool placed Mr Wilson in the high risk category. The following factors were some of those identified as being problematic for Mr Wilson:13
(a) “deviant sexual preference”;
(b) “sexual drive/sexual preoccupation”; (c) “negative emotionality”;
(d) “poor problem solving skills”;
7 The ASRS is a brief actuarial screening instrument designed to estimate the likelihood of further convictions for sexual offences among offenders who have already been sentenced for a sexual offence.
8 Psychological Addendum Report to the New Zealand Parole Board, 6 September 2011 at [16].
9 The Psychopathy Checklist Screening Version is a structured assessment instrument that
provides an estimate of risk of serious reoffending which is supported by published international and New Zealand research.
10 Psychological Addendum Report to the New Zealand Parole Board, 6 September 2011 at [17].
11 Psychological Addendum Report to the New Zealand Parole Board, 6 September 2011 at [18].
12 The STABLE 2007 assesses STABLE dynamic factors (i.e. factors amenable to change which tend to persevere for months or years). These factors have been shown to increase or decrease the likelihood of sexual recidivism.
13 Psychological Addendum Report to the New Zealand Parole Board, 6 September 2011 at [19].
(e) “lack of concern for others”; and
(f) “hostility towards women”.
(4)The ACUTE 200714 tool, a methodology used to identify risk factors that predict short term sexual recidivism, could not be administered. However, “Mr Wilson demonstrated a number of factors that indicate the presence of acute risk should he be released”.15
(5)The application of international research suggested persons in Mr Wilson’s circumstances are “... at significantly greater risk of reoffending within 45 days of release than those in the low and moderate risk groups” and are “approximately four times more likely to engage in any reoffending than the low priority offenders”.16 I note, however, that during the course of the Parole Board hearing held on 30 March 2012 Ms Waugh appears to have revised her estimate of the likelihood of Mr Wilson reoffending within the first
12 months of his release.
(6)That although risk of sexual offending typically declines with advancing age, features of Mr Wilson’s offending history and his reported behaviour in prison suggest his case may be outside the general trend.17
[18] This evidence was more than sufficient to support the Parole Board’s conclusion that Mr Wilson, if released, was likely to commit a specified offence prior to his applicable release date. The evidence available to the Parole Board was
cogent, highly relevant and persuasive.
14 The ACUTE 2007 tool assesses ACUTE dynamic factors that research has shown have the ability to predict sexual recidivism in the short term.
15 Psychological Addendum Report to the New Zealand Parole Board, 6 September 2011 at [20].
16 Psychological Addendum Report to the New Zealand Parole Board, 6 September 2011 at [21].
17 Psychological Addendum Report to the New Zealand Parole Board, 6 September 2011 at [22]- [23].
[19] On the basis of this evidence it is little wonder that the Parole Board concluded:18
that the test in section 107(3) continues to be met. In the Board’s view, the risk of Mr Wilson committing a specified offence before his applicable release date, remains a real and substantial one and that, by an appreciable margin, it is greater than the risk of recidivism which ordinarily arises in relation to such offending. (emphasis added)
[20] There was more than sufficient evidence before the Parole Board to justify the continuation of the s 107 order. Accordingly, the first ground of review fails.
Second ground of review
[21] In reaching its penultimate review decision the Parole Board had to consider the likelihood of Mr Wilson reoffending between the date of the review (17 October
2011) and his release date (1 September 2012).
[22] The evidence before the Parole Board contained in the 6 September 2011 supplementary psychological report included the following key points:
(1)An acknowledgement that the period in question was “just under one year from the current Board date”.19
(2)The psychologist’s concern that Mr Wilson posed a high risk of sexual recidivism were expressly linked to a high risk in the short term.20
(3) The report concluded that Mr Wilson:21
continues to be assessed as a high risk of sexual risk of recidivism in the next ten years, a period including the remainder of his applicable sentence, were he to be released to the community”. (emphasis added)
18 Amended Decision of the New Zealand Parole Board, 17 October 2011 at [32].
19 Psychological Addendum Report to the New Zealand Parole Board, 6 September 2011 at [8].
20 Psychological Addendum Report to the New Zealand Parole Board, 6 September 2011 at [17]- [18], [21] and [26].
21 Psychological Addendum Report to the New Zealand Parole Board, 6 September 2011 at
[30 (a)].
[23] In its decision of 17 October 2011 the Parole Board:
(1) correctly stated the test in terms of the relevant period;22
(2) correctly identified the relevant period;23
(3) considered the impact that the shorter period until the applicable
release date might have on Mr Wilson’s risk of reoffending;24 and
(4) expressed its conclusion in terms of the risk posed by Mr Wilson
“before his applicable release date”.25
[24] Mr Wilson’s submission that the Parole Board failed to properly take account of the narrowing window of opportunity for him to reoffend is misconceived. In light of the compelling evidence that Mr Wilson presented a high risk of sexual recidivism, including the indication that his risk of sexual recidivism persisted despite his advancing years, it is not surprising that the Parole Board was persuaded that the decreasing window of opportunity for reoffending before the applicable release date was not a sufficient reason to quash the s 107 order that was subject to review.
[25] The Parole Board clearly considered the significance of the time between its decision and Mr Wilson’s release date. In these circumstances the second ground for review fails.
Conclusion
[26] Both grounds advanced by Mr Wilson in support of his application for judicial review are dismissed.
22 Amended Decision of New Zealand Parole Board at [4] and [9].
23 Amended Decision of New Zealand Parole Board at [5] and [8].
24 Amended Decision of New Zealand Parole Board at [27].
25 Amended Decision of New Zealand Parole Board at [32] (see [19] above).
D B Collins J
Solicitors:
Crown Law Office, Wellington for Respondent
0