Wilson v New Zealand Parole Board HC Christchurch CIV 2010-409-002933
[2011] NZHC 1477
•20 May 2011
IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY
CIV 2010-409-002933
IN THE MATTER OF The Judicature Amendment Act 1972
BETWEEN STEWART MURRAY WILSON Applicant
ANDTHE NEW ZEALAND PAROLE BOARD Respondent
Hearing: 12 May 2011
(Heard at Wellington)
Counsel: Mr A McKenzie for the Plaintiff
Mr A Powell for the Defendant
Judgment: 20 May 2011 at 4:30 PM
JUDGMENT OF MALLON J
Contents
Introduction ....................................................................................................................................... [1] Background........................................................................................................................................ [3] November 2011 Parole Board hearing ............................................................................................. [8]
The hearing .................................................................................................................................... [8]
The decision.................................................................................................................................. [11]
Predetermination............................................................................................................................. [12] Unreasonableness ............................................................................................................................ [25]
Result ................................................................................................................................................ [37]
WILSON v THE NEW ZEALAND PAROLE BOARD HC CHCH CIV 2010-409-002933 20 May 2011
Introduction
[1] Mr Wilson is currently serving a sentence of imprisonment of 21 years. He is subject to an order made under s 107 of the Parole Act 2002. The effect of that order is that Mr Wilson cannot be released from prison before 1 September 2012. That order is subject to reviews which must be carried out at least once in every 6 months following the making of the order. One such review was carried out by the Parole Board on 23 November 2010. At this review the Parole Board was satisfied that the order should continue. Before me is Mr Wilson’s application for judicial review of the Parole Board’s decision on that review.
[2] Mr Wilson contends that the Parole Board pre-determined its decision and thereby breached natural justice. On this ground Mr Wilson seeks declaratory relief. Mr Wilson also contends that the Parole Board’s decision was irrational and unreasonable in the sense that no reasonable decision maker, properly directed, could have affirmed the non-release order. On this ground Mr Wilson seeks an order releasing him on parole.
Background
[3] Mr Wilson’s sentence is for offending which occurred over a 25 year period. The offending included at least five counts of rape or sexual violation by rape in respect of five different victims, two counts of stupefaction, and counts of indecent assaults, bestiality and wilful ill-treatment of a child. He was convicted on this offending following a jury trial and was sentenced in March 1996.
[4] Under the applicable legislation Mr Wilson would have been entitled to release from prison after he had completed two-thirds of his sentence. However s
107 of the Parole Act gives the Parole Board the power to make an order that a person serve the whole of their sentence (less three months) (this then becomes the “applicable release date”). Such an order is made if the Board “is satisfied that the
offender would, if released before the applicable release date, be likely to commit a
specified offence between the date of release and the applicable release date”.1
[5] On 16 December 2008 the Parole Board made such an order. It was satisfied that if released Mr Wilson would be likely to commit a specified offence before the applicable release date (which for Mr Wilson would be 1 September 2012) because of five factors: (1) the nature of the offending; (2) the sentencing Judge’s assessment of Mr Wilson’s risk of re-offending (the Judge would have imposed a minimum period of imprisonment and preventive detention had those orders been available); (3) since then the psychologists’ assessment was that Mr Wilson posed a high risk of re-offending; (4) Mr Wilson had done nothing to ameliorate his risk (he had continued to deny the offending and refused to engage in any treatment); and (5) Mr Wilson’s release plan was completely inadequate.
[6] The Parole Board’s decision was upheld by the High Court.2 The matter was appealed to the Court of Appeal. The Court of Appeal held that there was no jurisdiction to hear the appeal but observed that it was plain that the Board could be satisfied that the s 107 test was met.3
[7] The Board is required to review an order made under s 107 at least once every 6 months following the making of the order.4 At any such review “the offender must be given an opportunity to appear before the Board and state his or her case in person or by counsel.”5 On a review “the Board must revoke the order if it is no longer satisfied that the test” for the making of an order under s 107 is met.6 The Parole Board has conducted these reviews and on each occasion has continued the order. Mr Wilson has challenged a number of these without success.7 The challenge
that is now made relates to the review which took place on 23 November 2011.
1 Section 107(3).
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 Section 107(6).
5 Section 107(4).
6 Section 107(7).
7 Wilson v Chief Executive of the Department of Corrections HC Christchurch CIV 2009-409-
002896, 9 December 2009; Wilson v Parole Board HC Christchurch CIV 2010-409-000459, 22
April 2010; Wilson v Parole Board HC Christchurch CIV 2010-409-002039, 19 October 2010.
Since then a further review took place in April 2011. At the April review the Board confirmed that the s 107 order should continue.
November 2011 Parole Board hearing
The hearing
[8] Mr Wilson attended the November hearing of the Parole Board with his counsel (Mr McKenzie). After the introductions, the following exchange took place between Judge Kendall (one of the three members of the Parole Board convened to conduct the review) and Mr McKenzie:
JK:Mr McKenzie, Mr Wilson a preliminary matter is this. Mr Wilson made a request through the Parole Board’s administrator for the attendance of Ms Waugh and Mr Tane for the purpose of wishing to ask them questions. At that time as Panel Convenor I ruled that he may do so. Having subsequently read all of the papers I now revoke that ruling and the reason is simple. Mr Wilson refused to participate in the interview process with the psychologist and also the sentence planner and I ruled that it’s not appropriate that he can ask questions having not been willing to participate in the process that is required to complete a full and informed report and so that’s the ruling that I make. It likewise follows in my view, and we’ ve discussed this as a Board, that Mr Wilson is not in a position to oppose the continuation of the section 107 order for the very same reasons. If he does not participate then he is not in a position to be able to query what is said in the reports and it ’s the ruling as well. The section 107 order will continue.
PC: As the Board pleases.
AM: As the Board pleases Sir can I be heard on those matters? JK: I beg your pardon?
AM: Can I be heard on those matters? JK: You can if you wish Mr McKenzie.
AK: The first point I’d like to make Sir is that although Mr Wilson didn’t participate in the report, the report in itself is one tool which the Board has in its inventory for the purpose of assessing whether the test under section 107 is met so in my submission even if one can somehow ring fence the report and say – you didn’t participate in the report therefore that report stands there and you can’t criticise it, the report, I suggest or I submit that just one part of the equation. I wouldn’t accept that if the report says that the 107 should continue therefore the Board’s hands are essentially tied – that would be my
first point Sir because obviously a point that His Honour Judge MacDonald made at the last hearing is the decrease in the window of potential for reoffending in the sense that the test is that he will commit or likely to commit a specified offence between essentially today and his release date on 1 September 2012. As that window narrows through the passing of time then my submission is so that the risk of offending, to take an extreme example if the window was one week I would submit that obviously to be able to conclude that Mr Wilson will commit a specified offence in the following week is a lot to ...
JK:Can I just stop you there please Mr McKenzie and indicate that in essence the Board’s hands are tied whichever way. You see if you want to talk about other tools the Board hasn’t got any simply because as a follow-up if we are going to talk about this man being able to have release because he is now not meeting the threshold of section 107 he has to have immediate release. He has no plan of release. He refused to participate in the necessary corollary. If I am to be regarded as of no risk then I have to have a plan about where and what’s going to happen to me upon release. He’s refused to do anything about that. Bring them together then it has to follow that (a) he is untreated; (b) he has no plan for release so put 107 aside the psychologist’s [decision] he has done nothing to satisfy the Board that his risk whatever it is can be managed.
AK: I would suggest Sir if I may that the test is whether he will commit a specified offence. We’re not dealing with the traditional undue risk to the community test. We’re dealing with the 107 test. Does 107 test still met? If it is the order continues. If it isn’t it’s certainly a conditions on release so ...
JK:Alright. Put the report aside and point to me then independently of the 107 – what evidence is there that he will not commit a specified offence?
AM: Well I would suggest Sir that the question should be the other way.
What is the evidence that he should commit a specified offence?
JK:But if you look at the law – section 107 says that it’s now no longer necessary. It is the other way around – that Mr Wilson needs to satisfy the Board that he is below that threshold.
AM: And the threshold being the likelihood of committing a serious, a specified offence. I woul dn’t see the onus reversing like that Your Honour. The test, as I understand it, and one which is very relevant to the current ... to Mr Wilson, being the Court of Appea l’s deci sion in his case, particularly with the test is ... requires a focus on the risk of reoffending being a real risk and one significantly greater than the ordinary statistical risk. So, that risk is within this window. As time ticks on the window gets shorter and on that basis I would have thought that every six months one’s getting closer to the 1st of September 2012 therefore the window within which the Board needs to remain satisfied that Mr Wilson will commit a specified offence is narrower. We have an ASRS, I think, score of 46% chance in the next five years that he would commit a specified offence; accepting
that that’s just one layout of the psychological tools but really what the Board needs to consider is whether he will commit a specified offence in the next 21 months until September 2012, 21 ½, possibly close to 22 months served. So, I’m saying, and I took it that that was a factor that His Honour Judge MacDonald took from the previous hearing because you’ll note in the current report that there is a mention of these matters being raised by Judge MacDonald and also the psychologist actually introducing those points because they were raised. There was the issue about his advancing age and a reduction in the risk or not that that would pose and there is an issue regarding the reduction in risk Sir from age and there is an issue of the shortening window.
JK: Still a significant window – 22 months nearly.
AM: It is a significant window in the sense that it is some time but you will also note that Mr Wilson’s offending did occur over a 25-year period and did involve the collusion of his wife who was married to him for a number of years Sir. She was also involved in one might call grooming the victims and the like and the point that would be made is that Mr Wilson being released wouldn’t be going back to that environment. With respect to Your Honour’s point about no release plan Mr Wilson ... it is not a statutory pre-condition. I accept it is a factor that the Board can take into account but there is no requirement that he gives an address. He has 72 hours to give an
addr ess and if he doesn’t have an addr ess t hen he’ ll be i n br each of
parole and very likely recalled to prison Sir so I’m saying it’s not a statutory pre-condition but I’m also, in light of Your Honour’s comments and the strength of them I don’t want t o neces sar il y argue matters if the decision has been made Sir.
JK: Thank you. I t hi nk i t ’s appr opri at e t hat we start ed t he sa y we di d.
It ’s appr opr iat e t hat you have t he opportunity to address points of view that the Board has expressed and I think that it would be inappropriate for the Board to consider the initial indication in the
l i ght of t he s ubmi ssi ons t hat you’ ve made and ...
AM: Would it be helpful Sir for me to outline some of the intended questions for Ms Waugh or is that a matter which perhaps is not as ...
JK: It seems to me you might want to do that. (Emphasis added.)
[9] Mr McKenzie then outlined the matters on which he wished to question Ms Waugh (a psychologist) and Mr Tane (a sentence planner from Corrections). The Parole Board permitted Mr McKenzie to question Ms Waugh on the matters he had identified. Mr McKenzie was not permitted to question Mr Tane because the “simple fact of the matter is that Mr Wilson refused to engage”.
[10] Ms Waugh was then questioned by Mr McKenzie. Opposing counsel asked questions of Ms Waugh arising out of Mr McKenzie’s question of her. The Parole
Board then deliberated for a short period (counsel’s estimate is that it was for a few minutes and less than 10 minutes) and then gave its decision concluding that Mr Wilson’s release was not appropriate.
The decision
[11] The Parole Board’s decision was as follows:
1.Stewart Wilson is the subject of an order under section 107 of the Parole Act 2002 that he not be released before his applicable release date which occurs on 1 September 2012. The order was made on
16 December 2008. This is now the fourth occasion on which the order is subject to review. The Board must revoke the order if the test
under section 107 is no longer met. The issue is that if Mr Wilson is
released prior to his applicable release date does he remain likely to commit a specified violent sexual offence between the date of his
release and his applicable release date? That now involves a period of
approximately 22 months.
2.As was mentioned in the prior decision the Board is looking for some change in Mr Wilson’s risk since the order was made. The Board notes that Mr Wilson is six months closer to his release date and his counsel has submitted that with a shorter period the more difficult it is to conclude that the test continues to be met. There is also the question whether or not with advancing age there is a decline in his risk of recidivism.
3.The Board notes that Mr Wilson declined to be interviewed for a full parole assessment report and as well declined to be interviewed for the purpose of the preparation of the present psychological report which is dated 7 October 2010. The Board concludes from that that nothing has changed. It notes that he continues to be an untreated sex offender and has not worked towards a constructive and structured release proposal.
4.As was the occasion of the last review Mr McKenzie appeared for Mr Wilson although the Board did not have notice that he intended to appear.
5.Mr Wilson cross-examined Ms Waugh, the report writer, on two essential issues in the report, namely the likely reduction of risk because of “the narrowing window” between the present and date of release which must occur on 1 September 2012. He also cross- examined her on the question of risk of recidivism as a result of the offender’s advancing age. These are matters which Mr McKenzie had raised with Ms Waugh at the earlier review. Ms Waugh today likewise conceded that the shorter the period to the applicable release date the risk would reduce and there would likely be a decline in the risk of recidivism with advancing age. She, however, expressed the opinion that notwithstanding those two factors Mr Wilson continued to meet
the threshold required by section 107. She emphasised that the dynamic part of risk factors for Mr Wilson referred to in her report were such that advancing age was not likely to impact on his risk, thereby reducing it below the threshold required under section 107.
6.The Board also records that it declined to allow the sentence planner to be questioned for the reason that to do so would be abusive given that Mr Wilson declined to engage in any constructive discussion or proposal around release. The Board also noted that Mr Wilson declined to constructively engage with the psychological report writer and it was only because he had counsel appearing for him today that it permitted questions to be put to Ms Waugh, the report writer.
7.On the information that the Board has and having regard to the lack of any progress is relation to treatment the Board reaches the clear view that the matter is not one which persuades it that it can resolve in favour of Mr Wilson.
8.Accordingly, the section 107 review has taken place and confirms that release at this stage is neither applicable nor appropriate.
Predetermination
[12] Predetermination occurs when the decision maker closes its mind before it has applied itself to the task at hand.8 Philip Joseph9 refers to predetermination as a “particular form of apparent bias” which would indicate that the “fair minded observer” is the appropriate test to apply here. Wade & Forsyth10 describes the appearance of bias and predetermination as “distinct concepts” and comments that “where the question is whether the decision-maker has closed his [or her] mind and slipped from predisposition to predetermination it seems unnecessarily complicated to involve the fair-minded observer.”
[13] Counsel for Mr Wilson does not discuss the legal principles. He simply submits that the Board had predetermined the matter at the outset and the question is whether the Board cured this by what followed. He submits that they did not. He submits that in considering this the Court should bear in mind that the issue arose in the context of a penal statute which affects the liberty of a person. He submits that
the Board permitted only limited opportunity to ask some questions of the
8 Sir William Wade and Christopher Forsyth Administrative Law (10th ed, Oxford University
Press, Oxford, 2009) at 391.
9 Philip A Joseph Constitutional and Administrative Law in New Zealand (3rd ed, Thomson
Brookers, Wellington, 2007) at [29.5.4(6)].
10 Wade & Forsyth at 389 and 391.
psychologist, that the Board retired immediately after the questions (without hearing submissions from counsel) and a short time later proceeded with its original (predetermined) decision.
[14] The respondent submits that the fair-minded observer test is an appropriate test to apply here. It submits that had matters been left with the Parole Board refusing to hear from Mr Wilson’s counsel there would have been a breach of natural justice. It submits, however, that the matter was rectified by what then occurred. It submits that it would have been plain to the fair minded observer that the Board had retraced its steps.
[15] My assessment is this. It was permissible for the Board to come to the hearing with a view on the material before them that the s 107 order was likely to remain in place. That view would, however, have to be one that was subject to any matters advanced on behalf of Mr Wilson. Mr Wilson had the right to appear before
the Board and to state his case in person or by counsel.11 Implicit in this is that the
Board will listen to the position advanced for him at the hearing and consider it with an open mind. A failure to do so would breach Mr Wilson’s right to natural justice, a right which is affirmed by s 27 of the New Zealand Bill of Rights Act 1990.
[16] As both sides accept, the Parole Board would have breached Mr Wilson’s right to natural justice if matters had been left after the opening paragraph set out above in which Judge Kendall concluded “...and it’s the ruling as well. The section
107 order will continue.” After that Mr McKenzie requested to be heard. He was given that opportunity.
[17] Mr McKenzie pointed out that the psychologist’s report was just one part of what the Board needed to consider, that the burden was not on Mr Wilson to show that he would not commit a specified offence, that the Board needed to take into account both the narrowing window in which the question of risk was to be assessed (particularly in light of the kind of offending which Mr Wilson had been involved in) and that Mr Wilson was of an age where the risk of recidivism statistically is lower,
that a release plan was not a statutory pre-condition and that if Mr Wilson did not
11 Section 107(4) Parole Act 2002.
supply an address for parole within 72 hours he would be in breach of parole. Mr McKenzie was also permitted to ask questions of the psychologist about the narrowing window of risk and the relevance of Mr Wilson’s age. He was not permitted to question the sentence planner but Mr McKenzie had already made his point that there were ways to deal with the absence of a release plan.
[18] I do not think it matters that the Parole Board did not seek further submissions after the questioning of the psychologist. The issues had been squarely raised by Mr McKenzie who, faced with the Parole Board’s opening statement that it was ruling that the s 107 order continue, did very well in insisting that the Board consider the matter. It would have been preferable for the Parole Board to explicitly acknowledge that it was in error to have started as it did. Instead Judge Kendall said “I think it’s appropriate we started the way we did”. Nevertheless I accept that the Parole Board did then retrace its steps by the Judge going on to say that it was “appropriate” that Mr McKenzie “have the opportunity to address points of view that the Parole Board has expressed” and that “it would be inappropriate for the Board to consider the initial indication in the light of the submissions” made by Mr McKenzie.
[19] Although the Parole Board did not deliberate for long it is apparent that the issues raised by Mr McKenzie were considered. In the first paragraph of its decision the Parole Board referred to the period until the applicable release date. In the second paragraph the Parole Board referred to the two points Mr McKenzie had made. In the third paragraph the Parole Board addressed the relevance of the absence of a release plan (ie that nothing had changed – Mr Wilson continued to be an untreated sex offender who had not worked towards a constructive and structured release proposal). In the fifth paragraph the Parole Board set out the psychologist’s response to the two points raised by Mr McKenzie.
[20] I therefore consider that, having initially given a ruling that breached Mr Wilson’s right to natural justice the Parole Board proceeded to undo what it had done. I consider that the hearing which then took place did not breach Mr Wilson’s right to natural justice. The Parole Board indicated that it needed to reconsider what it had said at the outset in light of what Mr Wilson’s counsel had said. Mr Wilson’s
counsel was listened to, as is shown by the Parole Board referring to what it had earlier described as a ruling but which it then revised to “the initial indication”, the permission given to question the psychologist, by the Parole Board retiring to deliberate and by the discussion of the submissions in the decision given. The Parole Board’s actions showed that fair and genuine consideration was given to the points
Mr Wilson’s counsel made. As is said in Ridge v Baldwin12 “if an officer or body
realises that it has acted hastily and reconsiders the whole matter afresh, after affording to the person affected a proper opportunity to present his [or her] case, then its later decision will be valid”.
[21] Mr Wilson may feel that a Parole Board which gives a ruling at the outset before it even hears from his counsel has not gone about things fairly. He may feel that what occurred afterwards was simply going through the motions and that he did not have a chance of a fair hearing. Counsel for the respondent acknowledges that because of what occurred there may be a lingering feeling that what occurred was not fair and that it may have been better to have adjourned the hearing and started afresh with a new panel. That would certainly removed any doubt about the fairness of the hearing. It is in fact what occurred with the April review.
[22] Looked at objectively, however, the position at the November hearing was like any other case where a Judge has read the papers filed and indicates at the outset what the Judge makes of it, but is then persuaded by counsel that there are other points that need to be considered. The fact that those points, once listened to, do not persuade the Judge to alter his or her assessment does not mean that the points have not been listened to. If the “fair minded observer” test is applied to what occurred before the Parole Board, and taking into account that the hearing concerns the liberty of a person, I consider that the subsequent events would be viewed as undoing what was initially done.
[23] In any event, even if the hearing was not a fair one because of the approach the Parole Board took at the outset, there is no issue about the fairness of the April hearing. That took place early in the next 6 month period in which a review was
required to take place. It took place before three different members of the Parole
12 Ridge v Baldwin [1964] AC 40 at 79.
Board. The decision made was to keep the s 107 order in place. Mr Wilson is now being held in prison because of that decision and not the earlier one. It would therefore be pointless to direct the Parole Board to reconsider its November decision.
[24] Counsel for the respondent submits that a declaration should be issued in respect of the breach of Mr Wilson’s rights at the November hearing. Declaratory relief is discretionary. I consider in this case it is not appropriate to make any declaration. This judgment records that the Parole Board started off wrongly and their initial view that they could make a ruling without hearing from Mr Wilson or his counsel was in error. That is a sufficient vindication of Mr Wilson’s rights. I would have had a different view if the Board had not retraced its steps at the November hearing and/or if it had not already carried out its next review.
Unreasonableness
[25] The test under s 107 requires the applicant to satisfy the Board “that there is a real and substantial risk of reoffending of the specified kind within the specified period if an order is not made, and that such risk is significantly greater than the risk of recidivism ordinarily attaching to such offending.”13 On a review the s 107 order is to be revoked only if the Board is no longer satisfied that this test is met. Because an order is in place (so the Board was satisfied when the order was made that the test was met), the Board’s focus on a review will be on whether there has been any change in the risks.
[26] The submission for Mr Wilson was that two things had changed. One of them was that the applicable release date was closer. This meant that there was less time for Mr Wilson to reoffend and consequently less risk that he would. This was said to be particularly so in light of the nature of his offending. His wife had played a role in that offending and Mr Wilson is now estranged from her. Further, Mr Wilson’s offending had involved grooming his victims over time and so the shorter the period over which his risk was to be assessed the less opportunity he
would have to carry out offending of that kind.
13 Wilson v Parole Board [2001] 3 NZLR 399 at [60], [70] and [74].
[27] The other thing that had changed was that Mr Wilson is getting older. Mr Wilson was nearly 64 years old at the time of the Parole Board hearing and is of that age now. The psychologist’s evidence was that “for someone who is in the high risk category which Mr Wilson would fall within, there continues to be a 6% rate of recidivism over the age of 60”.
[28] Mr Wilson has been assessed as “high risk” under the ASRS tool. This estimates the probability of sexual recidivism among adult males who have already been convicted of at least one sexual offence against a child or non-consenting adult. It does so by reference to static risk factors. To be in the high risk category the offender needs a score of 5 to 9. (Lower scores put the offender in lower risk categories). Mr Wilson’s score was 5. Under the ASRS this means a 46% probability of sexual reconvictions after 5 years. Counsel for Mr Wilson submits that this 46% must be reduced because offenders who are older have a lower recidivism rate. He submits that this risk is still further reduced because the period from the review to the applicable release date had shortened to 22 months.
[29] Counsel for Mr Wilson submits that the psychologist did not take matters further. She labelled Mr Wilson as high risk but did not say that he was “significantly greater than the ordinary statistical risk”. Counsel for Mr Wilson points to her evidence that the question being asked is “is there a greater than the standard sex offender’s chance of reoffending within the period and that certainly remains the case based on [Mr Wilson’s] characteristics.” He says that this does not refer to a “significantly” greater risk and yet the Parole Board relied on her evidence in deciding that the s 107 order was to be continued. To this, counsel for Mr Wilson adds that the Parole Board did not set out the statutory test in its decision and misstated it in the exchange with counsel, recorded on page 4 of the transcript, in saying “that Mr Wilson needs to satisfy the Board that he is below that threshold.”
[30] I consider that these matters do not establish that the Parole Board’s decision was unreasonable or that it applied the wrong test. Taking the question of the test applied first, immediately after the Parole Board’s comment about Mr Wilson needing to satisfy the Parole Board that he was below the threshold, counsel for Mr Wilson submitted that this was reversing the onus. Out the outset of its decision
the Parole Board stated that it was required to revoke the order if the test under s 107 was no longer met. It stated that it was looking for some change in the risk since the order was met. It then addressed the relevant factors (Mr Wilson remained an untreated sex offender who had not worked towards a constructive and structured release proposal and, although the window had narrowed and Mr Wilson was getting older, the psychologist’s evidence was that Mr Wilson continued to meet the high threshold required under s 107). The Parole Board therefore approached the matter correctly and considered the relevant factors.
[31] As to the reasonableness of the decision, I consider there was ample evidence on which the Parole Board could conclude that the s 107 order was to remain. Counsel for Mr Wilson has focussed his submissions on the questions and answers at the hearing. However the Parole Board had before it the psychologist’s full report. That report stated that it was an Addendum Report which provided a brief update on Mr Wilson’s progress and situation over the last six months and was to be read with the full report of 23 July 2008 and three Addendum Reports prepared in April 2010, October 2009 and 24 March 2009.
[32] The psychologist’s report referred to the assessment tools with which Mr Wilson has previously been assessed: the ASRS, PCL:SV and STABLE 2007. The psychologist said that she had reviewed these and concurred with the previous assessments. She said that “[a]dditional information reviewed only served to reinforce the previous assessments”.
[33] She noted that the ASRS was based solely on static risk predictors. She said that Mr Wilson’s score on factor 1 under the PCL:SV “indicates a higher probability of committing serious violent offences within two years of release into the community”. She referred to an earlier psychologist’s assessment that “Mr Wilson has also been found to have a significant pattern of sexual deviance (as indicated by his offence history), which when combined with high scores on the PCL:SV produces a multiplicative effect that in international research has been associated with rapid and high rates of sexual recidivism.” (Emphasis added.) She referred to Mr Wilson being in the “high risk” group on the STABLE 2007 (a tool which assesses stable dynamic factors). Under this tool the problematic factors for
Mr Wilson, which were considered to remain current, were “deviant sexual preference; cooperation with supervision; negative emotionality; poor problem solving skills; lack of concern for others; hostility towards women; capacity for relationship stability; and social influences.”
[34] Specifically in relation to age the psychologist referred to international research which suggested that “those offenders who persist in their sexual offending later in life have enduring deviant arousal and psychopathic characteristics.” The psychologist considered it likely that Mr Wilson would demonstrate deviant arousal and he also displayed “significant psychopathic traits.”
[35] Putting everything together, the psychologist concluded that “[t]hese factors combine to continue to indicate the ongoing risk Mr Wilson poses over the next two years, and support the continuation of the s 107 order.” She said that Mr Wilson “continues to be assessed as a high risk of sexual recidivism in the remainder of his applicable sentence were he to be released to the community.”
[36] The Parole Board referred to and relied on the pyschologist’s evidence. That evidence amply supported that Mr Wilson presented a real and substantial risk of reoffending of the specified kind within the specified period if the s 107 order was not continued, and that such risk was significantly greater than the risk of recidivism ordinarily attaching to such offending. The evidence of that risk was directed to the
21 month period and took into account his age. The Parole Board’s decision was not
irrational and unreasonable.
Result
[37] The application for judicial review is dismissed.
Mallon J
0