Wilson v New Zealand Parole Board [2013] NZHC 1789 (16 July 2013)

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BETWEEN	STEWART MURRAY WILSON Appellant
AND	NEW ZEALAND PAROLE BOARD Respondent

Hearing:	3 July 2013
Counsel	M Starling and L M Drummond for Appellant K A L Bicknell and Z R Hamill for Respondent
Judgment:	16 July 2013

[1] On 15 March 1996 the appellant Mr Wilson was sentenced to 21 years imprisonment for serious sexual and violent offending against women and children involving cruelty to children, stupefying adults and bestiality. On 29 August 2012, he was released on parole.

[2] On 21 February 2013 the Department of Corrections applied for an order that Mr Wilson be recalled to prison to continue serving his sentence, on the grounds that he posed an undue risk to the safety of the community or any person and had breached his release conditions. An interim order was made that day. On

[3] Mr Wilson now appeals against the decision of the Board to make the final recall order.

[4] Mr Wilson’s sentence expiry date was 1 December 2015. When he was sentenced, the Criminal Justice Act 1985 then in force provided that he would be entitled to be released on parole after completing two thirds of his sentence. When he became eligible for parole in 2008, the Department of Corrections applied to the Board under s 107(2) of the then applicable Parole Act 2002 (the Act) for an order that he not be released on parole until 1 September 2012. That order was made.

[5] The s 107 order was reviewed every six months as required. It was renewed each time, on the grounds that Mr Wilson continued to refuse to accept responsibility for his offending, refused treatment and was assessed by psychologists as being still at a high risk of reoffending. Mr Wilson was finally released from prison on

29 August 2012. He was subject to the standard conditions set out in s 14 of the Act and 17 special conditions. Two of those conditions are particularly relevant to this appeal:

(a) The standard condition in s 14(1)(h) that “the offender must not associate with any specified person, or with any persons of any

specified class, with whom the probation officer has, in writing, directed the offender not to associate.

(b) A special condition “Not to use or possess any electronic device capable of accessing the internet, unless supervised at all times by an informed adult who has the prior written approval of the Probation officer. To give your Probation officer or their agent access to any electronic device in your possession or control, for the purposes of checking the internet capability of the device and your compliance with this condition”.

27 November 2012, there was a telephone conversation between the District Manager of Whanganui Community Probation and a Ms A, a cousin of Ms B. Mr Wilson had been found not guilty at trial of two charges of alleged offending against Ms B, but convicted of offending against Ms B’s sister. Ms A had been in contact with Mr Wilson for seven years while he was at Christchurch prison, and he had also telephoned her from time to time. Following his release their contact had continued by letter and phone. Matters discussed in that phone call caused Community Probation concern.

A Standard condition of your Parole is (h) “you must not associate with any specified person, or with persons of any specified class, with whom the probation officer has, in writing, directed you not to associate.”

Association includes, but is not limited to, being in your presence, phone contact, text messages, writing letters or communication through a third party. Any contact or communication with Ms A will result in a breach of your Parole.

[8] Mr Wilson indicated that he understood the requirements of his parole conditions and that he had had the direction fully explained to him by signing the bottom of the written direction.

[9] At Christmas time, Ms A sent Mr Wilson a gift. In mid-February she was admitted for day surgery for a serious health problem. On 20 February 2013, one of Mr Wilson’s supporters disclosed to Community Probation that there had been subsequent contact between Mr Wilson and Ms A. The following day the police visited Ms A and took a statement from her. She said that on 17 February Mr Wilson had contacted her on her home phone number. The call lasted about four minutes. Mr Wilson thanked her for her Christmas present and asked her about her surgery. He also told her that he had another cellphone that Corrections staff did not know about. Ms A also said that in previous telephone conversations Mr Wilson had talked about how he wanted to take her to Australia, how he always had $1,000 in his back pocket, and how it was easy for him to break his bracelet off and run away.

[10] On 21 February 2013, Mr Wilson’s parole officer asked him if he had been in contact with Ms A. Mr Wilson denied he had been in contact and said that he knew a non-association direction was in place. When asked about the cellphone he produced it. He said he had been sent it by his lawyers, along with a camera and some photos.

[11] Mr Wilson’s parole officer immediately applied for an order that Mr Wilson be recalled to continue serving his sentence. The grounds for her application was that Mr Wilson posed an undue risk to the safety of the community or any person or class of persons, and that Mr Wilson had breached his release conditions. That day,

21 February 2013, the Board issued an interim recall order under s 62(1) of the Act.

10 April 2013 it made the recall order final. The recall was confirmed in a subsequent review under s 67 of the Act.

[13] The Board made the final recall order on the basis of the following factors:

(a) There was justification for issuing a non-association order in respect of Ms A. First, Ms A had the potential to act as a conduit for contact between Mr Wilson and one or more of his victims and secondly, Ms A was vulnerable and Mr Wilson had offended against vulnerable women. Although Ms A said she had not been in direct contact with one of Mr Wilson’s victims, there was the potential for Ms A to be a conduit for contact by Mr Wilson with his victim, either directly or indirectly via the victim’s sister Ms B. Mr Wilson’s modus operandi was to seek out women who were vulnerable, win their confidence and trust over time and then make women financially dependent on him. Mr Wilson was endeavouring to build a friendship with and win the trust of Ms A.

(b) Mr Wilson breached the non-association direction deliberately and with the full knowledge that the non-association order covered contact by telephone.

(c) Mr Wilson breached the special condition in relation to possession of electronic devices. It is not enough simply to produce a device for checking when asked. Implicit in the condition was the requirement to disclose possession of such devices and make them available for checking their internet capability. Mr Wilson understood this from the outset as his lawyer had given Mr Wilson a letter to give to his probation officer confirming that the other cellphone he had sent Mr Wilson was not internet capable.

(d) The Board held that there was no doubt that Mr Wilson continued to pose an undue risk to the safety of the community. It noted that Mr Wilson was subject to extremely strict release conditions to ameliorate the undue risk he posed on release. His failure to comply with those conditions and to be open and honest with his probation officer meant that the effectiveness of those conditions was significantly reduced and indicated that his risk could not be addressed by the imposition of further conditions.

[14] Mr Wilson has a right to appeal under s 68 of the Act. That section provides:

(1) An offender who is subject to a postponement order, an order under section 107, or a final recall order may, within 28 days of the date of the decision on a review under section 67 (or whatever longer time the court permits), appeal to the High Court against the decision on the grounds that the order ought not to have been made.

(2) No appeal may be made under this section until the decision to make the order has been reviewed under section 67.

(3) If an offender lodges an appeal, he or she remains subject to the order while the appeal is determined.

(4) In the case of an appeal against a final recall order, without limiting the matters that the court may consider in determining the appeal, the court must consider the need to protect the community, or any person or class of persons.

[15] The principles to be applied on this appeal may be briefly summarised. It is a general appeal by way of rehearing.1 The Court may receive in evidence anything that the Board could have received at first instance.2 The decision to make a final recall order involves the exercise of a discretion, so the onus is on Mr Wilson to establish that the Board proceeded on a wrong principle, failed to recognise a relevant matter, took into account an irrelevant matter or that its decision is plainly wrong.3

[16] Mr Starling, counsel for Mr Wilson, in his written submissions sets out the grounds of appeal as follows:

3 Hawker v New Zealand Parole Board HC Christchurch CRI-2009-409-88, 11 September 2009 at

[15]-[20]; Ratima v New Zealand Parole Board HC Christchurch CRI-2003-409-111,

5 February 2004 at [14]-[15]; Norton-Bennett v Parole Board [2012] NZHC 535, [2012] NZAR

465 at [14]-[15]; Wilson v Parole Board HC Christchurch CRI-2009-409-47, 21 May 2009 at [16]-[17]. The difference in approach between general appeals and appeals against the exercise of a discretion is discussed by the majority of the Supreme Court in Kacem v Bashir [2010] NZSC 112, [2011] 2 NZLR 1 at [32].

	(b)	the Board misapplied the legislation in respect to its definition of “association” in relation to s 14;
	(c)	the Board incorrectly held that the appellant had breached one or more parole conditions; and
	(d)	the Board failed to assess the appellant’s risk notwithstanding any breach of parole conditions.
[17]	In hi	s written submissions, Mr Starling addressed all four grounds. However,

in his oral submissions, Mr Starling made it clear that he relies principally on the fourth ground. I can therefore deal quite briefly with the first three grounds.

[18] Section 65 of the Act prescribes a quite tight timeframe for deciding a final recall application. As relevant, it provides:

(1) If an interim recall order is made, the Board must determine the recall application on a date that is,—

(a) if the offender is in custody when the interim order is made, at least 14 days after, but not more than 1 month after, the date of the interim order; or

(b) if the offender is not in custody when the interim order is made, at least 14 days after, but not more than 1 month after, the date on which the offender is taken into custody.

(5) Despite subsections (1) and (2), the Board may from time to time adjourn the hearing of a recall application; but no adjournment may be for more than 8 days, unless the offender consents to a longer period.

27 March 2013, but did not consent to the further indeterminate adjournment for the Board to consider the application. He further submits that, in any event, the power to adjourn in s 65(5) relates to the adjournment of the hearing, and there is no provision to adjourn for deliberations.

[21] The issues are whether the time for delivery of the Board’s reserved decision

[22] The timeframe in s 65(1) applies to the decision, not the hearing, while subs (5) refers to the hearing, not the decision. Section 65 does not require the decision to be made at the hearing. An adjournment of the hearing of an application, to a date outside the subs (1) timeframe, must necessarily extend the time for delivery of the decision to the same date. Unless that is so, the power to adjourn in subs (5) is inoperable. That is so whether or not the adjournment exceeds the eight days beyond which the consent of the offender is required.

[23] For these reasons, I consider that the exercise of the s 65(5) power to adjourn, with consent where needed, extends the time for the delivery of a reserved decision outside the subs (1) timeframe, for the period of the adjournment. The s 65(5) power may also be exercised so as to adjourn the case for the purpose of delivering a reserved decision following a hearing.

[24] The next question is whether, in this case, Mr Wilson, through his counsel, consented to a longer period for the delivery of the reserved decision. The transcript of the hearing before the Board shows that his counsel asked if the Board was likely

to make a decision in principle that day. The Chair indicated the Board’s intention to reserve its decision. Counsel asked whether it was possible to give an approximate timeframe, and was advised that it would be before May. Had counsel objected to the indication, the Board would have been required to issue a decision that day, or within eight days thereafter if it exercised the s 65(5) power to adjourn without consent. Insistence on that was not likely to have been advantageous to Mr Wilson. In those circumstances, I consider that the exchange between counsel and the Chair is evidence of consent. I find that the decision was not made outside the statutory timeframe.

[25] Counsel for Mr Wilson submits that the power to forbid association in s 14(1)(h) of the Act is limited to forbidding physical contact, not all forms of contact. He submits that the Department of Corrections had the opportunity to seek an additional condition of parole prohibiting contact with Ms A in December 2012 but failed to do so. He says that the power in s 14(1)(h) should be interpreted narrowly, given that it has serious penal consequences and that Corrections has the power to address its concerns in another manner.

[26] In support of this submission, counsel points to s 107JA(j) of the Act which provides that a standard condition of an extended supervision order is that the offender “must not associate with, or contact, a victim of the offender”. He says that this shows that “association” must mean something different from contact.

[27] Counsel for the respondent says that “associate” should be construed in light of the purpose of risk reduction and in accordance with the paramount consideration of community safety under s 7(1). She says that there was no error in the Board’s acceptance of the proposition that the prohibition on association in s 14(1)(h) may extend to telephone contact. She says that the telephone call was clearly in breach of the non-association direction.

[28] The Board held that the same considerations that bind it in imposing special conditions should similarly constrain a probation officer’s application of the standard conditions. It accepted that the prohibition on association in s 14(1)(h) should be

but that it should not be applied indiscriminately. It has to be issued for one of the purposes set out in s 15(2). It noted that the probation officer’s primary concern was to reduce Mr Wilson’s risk of reoffending. She was concerned about the contact with Ms A because she had the potential to act as a conduit for contact between Mr Wilson and his victims and she was vulnerable. On that basis the Board held that there was a reasonable justification for the probation officer to issue the non- association order in respect of Ms A. The Board was satisfied that Mr Wilson did breach the non-association order deliberately and in full knowledge of the parameters of it.

[29] The meaning of a provision must be ascertained from its text and in the light of its purpose.4 In its ordinary meaning, the term “associate with” includes concepts of having dealings with another which are not dependent upon in-person contact. The purpose of conditions is to ameliorate the risk of reoffending, and the scheme of the Act is focused on the safety of the community. That purpose would not be assisted by limiting the meaning of the word “associate” to in-person contact.

[30] I do not consider the difference in wording between s 14(1)(h) and s 107JA(j) of the Act to be significant. The absence in s 14(1)(h) of a specific reference to contact does not restrict the ordinary meaning of the term “associate with”. The fact that, in s 107JA(j), (which was enacted at a different time) Parliament has seen fit to refer specifically to contact is not sufficient to narrow the meaning of the term “associate with” in s 14(1)(h).

[32] The third ground of appeal relates to whether or not the appellant had breached either or both of the two conditions set out in [5]. Mr Starling accepted, for the purpose of argument on this appeal, that the appeal should be considered on the

_{assumption that he was in breach. The appellant faces a charge in the
District Court}

of a breach of the conditions. The question whether there was a breach will be in issue in that prosecution. It is therefore best that I act on that assumption, and not discuss this ground of appeal.

[33] In his written submissions, counsel for Mr Wilson submits that a final recall order should only be made where public safety is in issue and that public safety is not at issue in this case. He refers to Bom v New Zealand Parole Board,5 and says that consideration should have been given to whether existing and further parole conditions could ameliorate any undue risk that Mr Wilson could pose. He says that Mr Wilson’s parole conditions are extensive and have otherwise been thoroughly

complied with, and that Mr Wilson has made significant progress towards reintegration. He says that in the light of the vigilance of the Department of Corrections, any suggestion of Mr Wilson absconding to Australia is fanciful.

[34] In his oral submissions, Mr Starling submits that the Board’s decision does not take proper account of Mr Wilson’s release plan and the protections built into that plan. He submits that the risk of reoffending is ameliorated by the stringency of the restrictions placed upon him, to the extent that the breaches should be regarded as minor, and not increasing the risk of reoffending. He submits that Mr Wilson’s professed intention to cut his monitoring bracelet and go to Australia is so unrealistic that the Board should properly have regarded this, and the breaches which occurred, as acts of bravado.

[35] Counsel for the respondent submits that the Board applied the correct test in determining that a final recall order should be made because the ground of undue risk was satisfied. She says that the finding was based on:

(a) Mr Wilson’s earlier pattern of offending and the circumstances in which that offending occurred;

5 Bom v New Zealand Parole Board [2010] NZHC 2207; [2011] NZAR 179 (HC) at [12].

(f) that Mr Wilson’s non-compliance with parole conditions directed to that risk showed further conditions would not be effective.

[36] Counsel for the respondent says that the Board properly considered whether there was an alternative to final recall when it concluded that the appellant’s non- compliance with the original conditions indicated that the imposition of further conditions would not address this risk.

[37] Mr Wilson was consistently assessed as at a high to very high risk of reoffending prior to his release from prison. Unlike other parolees who are not released until their risk to the community is assessed as being sufficiently reduced to justify release, Mr Wilson was released because he could no longer be detained. His risk was assessed as so high that release would not otherwise have been justified. The strict conditions were imposed to address that risk. In these circumstances, any breach of the conditions is a matter of concern. Public safety is therefore an issue in this case. Although Mr Wilson has complied with other conditions, failure to comply with two conditions was rightly viewed as serious by the Board.

[38] The Board held that Mr Wilson’s breaches, and his failure to be open and honest with his probation officer, undermined the effectiveness of the stringent conditions to which he was subject. In that context the Board held that further conditions could not ameliorate his risk of reoffending.

[39] The conditions of parole, and the conditions of the extended supervision order which will come into force when parole ends, have been designed to address a

long-term risk arising from Mr Wilson’s pattern of offending, which includes grooming vulnerable women. The long timeframe involved in such a pattern of offending means that conditions must ensure that conduct which is not in itself unlawful, but which might be preparatory grooming steps to facilitate offending at a much later date, is prevented. For these reasons, it would not be appropriate to adopt the approach submitted by counsel for Mr Wilson, that the risk of reoffending should be assessed against the likelihood of a serious breach of the conditions which might lead to offending in the short term.

[40] For these reasons, I hold that Mr Wilson has not demonstrated that the Board has erred in its assessment of his risk. Having considered the matter afresh on its merits, I record that I would have reached the same conclusion as the Board. In reaching that conclusion, I have borne in mind the requirement in s 68(4) to consider the need to protect the community and the class of persons who may be vulnerable to potential grooming.

[41] For the foregoing reasons, the appeal is dismissed. The final recall order is confirmed.

High Court of New Zealand Decisions

Wilson v New Zealand Parole Board [2013] NZHC 1789 (16 July 2013)