Under section 21(1) of the Parole Act 2002
Hearing: 24 September 2009 at (Withheld) Prison
Members of the Board:
Judge J E Macdonald – Panel Convenor
Ms S Baragwanath
Mr R Lewis
Counsel:
Mr J Eaton – for Mr Capill
Ms A Toohey – for the Department
On 14 July 2005 Mr Capill was sentenced to nine years’ imprisonment for sexual offending, his victims being (Withheld). He became eligible for parole on 28 June 2008. His statutory release date is 27 June 2014. These represent Mr Capill’s first convictions. His offending took place between 1990 and 2002.
Parole for Mr Capill was first considered by the Board on 24 June 2008. At that time it was declined on the basis that he had not reduced his risk of reoffending by undertaking any programmes in prison. While Mr Capill preferred to undertake the STOP programme in the community he nonetheless was prepared at that stage to undertake the Kia Marama programme in prison. That was the preferred option of (Corrections Psychologist Name Withheld), as well as Mr Capill’s own psychologist, (Psychologist Name Withheld). Unfortunately, Mr Capill is still waiting to undertake the programme. While there was an earlier indication that it might be made available to him in 2011 the latest indication is that it might now be in mid‑2010.
Mr Capill’s current proposal is that he should be released on parole and undertake the STOP programme in the community. That is his preferred option for a number of reasons, some of which relate to fears of a lack of privacy if he was to undertake the programme in prison. It also reflects his frustration at the delay in being able to be assessed for Kia Marama, despite various efforts on his part. He also points to the counselling that he has had with (Psychologist Name Withheld) since his last Board appearance. He relies on the support available to him in the community and the same people that were supporting him back in June 2008 are still part of his support group. The support appears strong. He says that he would comply with any release conditions and that there is nothing to suggest otherwise.
The Board heard from (Name Withheld) who spoke of the role they could play in ensuring that Mr Capill complied with any release conditions. (Name Withheld) also addressed the Board and outlined the support that he was offering.
Mr Eaton submits that Mr Capill is at low risk of re-offending irrespective of whether he gets treatment. He also goes so far as to submit that the prospects of him ever being permitted to be in a position to re-offend are remote.
The Board has letters from his victims and has met with one of them. Each has expressed real concern for the safety of (withheld). They believe that there is a serious risk if Mr Capill was released without having had treatment in the form of the Kia Marama Programme. (Content Withheld). We are obliged to take those views into account.
When this matter first came before the Board there was a report from (Corrections Psychologist Name Withheld). The Board also had a report from (Psychologist Name Withheld) . The report from (Psychologist Name Withheld) contained reasonably extensive criticism of (Corrections Psychologist Name Withheld's) report. (Psychologist Name Withheld) appeared at that first hearing with the intention of providing further information to the Board. Largely in the interests of fairness the Board thought it appropriate to give (Corrections Psychologist Name Withheld), the opportunity to comment on (Psychologist Name Withheld) report and the matter has proceeded from there. At the last hearing (Corrections Psychologist Name Withheld) was present and we had anticipated that (Psychologist Name Withheld) would also be present but unfortunately due to a sudden illness that did not take place.
There has, however, been some further discussion between the two psychologists and helpfully they have presented the Board with a summary of a meeting that took place between them. Their report indicates areas of agreement and areas of disagreement. As stated, that is helpful.
In many respects the Board is being drawn into a direct comparison between the respective merits of the Kia Marama programme on the one hand and the STOP programme on the other. That in turn might lead to an outcome whereby if the preference is for Kia Marama then parole will be declined and if it is a preference for the STOP programme then Mr Capill would be released. However, the Board reminds itself that the real issue is to consider the release proposal that Mr Capill presents at this time.
Both psychologists believe that Mr Capill’s self reported changes, insight, and self reflection skills require testing. They are odds as to whether that should be in prison or in the community.
Ultimately we need to assess whether or not Mr Capill poses an undue risk to the safety of the community. “Undue risk” is defined in section 7(2) of the Parole Act. The issue for the Board is whether, having regard to the support available to him in the community and the desirability of his reintegration back into society as a law‑abiding citizen, it is likely that he will reoffend if released. That assessment needs to be taken between the date of release and the end of his sentence, which is a period of approximately four years and nine months. Plainly that is a significant period of time.
The Board takes the view that there is no ongoing risk to the victims of his offending. We are satisfied that because of their age and their circumstances generally that there is no risk to them. Nobody is suggesting otherwise. There remains, however, some risk to other children and this was the concern expressed by the victims. While they might be overly sensitive, given their own experiences at the hands of Mr Capill, their views were well expressed and difficult to ignore. If we accept their views then it is plainly an undue risk.
There is then a question of considering the risk to the wider community. The Board appreciates at this point that …(Content Withheld)… but in light of a number of comments in the psychological reports we cannot discount the prospect that …(Content Withheld)… others might be at risk.
The major concern the Board has about Mr Capill’s release proposal is that there is no guarantee that he would be assessed as suitable for the STOP programme. While it seems highly likely that he would be there is no guarantee. The further concern, as discussed at the hearing, is that the Board has dealt with recent cases where there has been significant delay before even an assessment takes place. Two recent cases involved a delay of six and eight months. What that indicates is that Mr Capill could well be in the community for a substantial period of time before any treatment takes place. For obvious reasons the safer option for the community is for treatment to take place prior to release. And, generally speaking, the Board often takes the view that if an offender has the opportunity to reduce his or her risk while in prison by undertaking some rehabilitative programme then that should be the preferred option.
In this case the Board has already accepted that it is not a contest between the two programmes but even so we can say that we think that the Kia Marama programme is the better programme for Mr Capill to undertake, and that is largely for the reasons relied upon by (Corrections Psychologist Name Withheld).
We have had extensive submissions and a good deal of material to consider in arriving at a decision. We have given the matter anxious consideration. In the end the Board concludes that if released now, with approximately four years and nine months of his sentence remaining, without the benefit of treatment and with the uncertainty attached to the Stop programme, Mr Capill would pose an undue risk to the safety of the community. Parole is therefore declined.
Judge J E Macdonald
Panel Convenor
You may apply for a review of the Board’s decision under section 67(1). The only grounds under which you may make an application for review are that the Board, in making its decision:
a) Failed to comply with procedures in the Parole Act 2002; or
b) Made an error of law; or
c) Failed to comply with Board policy resulting in unfairness to the offender; or
d) Based its decision on erroneous or irrelevant information that was material to the decision reached; or
e) Acted without jurisdiction.
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