Ralph Heberley Ngatata LOVE - 15/08/2017
Under section 21(2) of the Parole Act 2002
Ralph Heberley Ngatata LOVE
Hearing: 15 August 2017
Members of the Board:
- Hon J W Gendall QC – Panel Convenor
- Ms F Pimm
- Mr L Tawera
- Ms S Pakura
Support Persons: (withheld)
DECISION OF THE BOARD
- Dr Ralph Love is serving a sentence of two years six months imprisonment imposed in the High Court at Wellington on 7 October 2016, having been found guilty of the crime of obtaining property by deception, under s240 of the Crimes Act 1961.
- His parole eligibility date has been reached, namely, 7 August 2017, and his sentence end date is 6 April 2019.
- The circumstances and background surrounding Dr Love’s conviction are well documented in the judgment of Lang J who presided over a lengthy Judge-alone trial, and the Court of Appeal in its judgment on 26 June 2017. The appeal was against both conviction and sentence, and it was dismissed.
- In a brief summary Dr Love’s offending occurred when he, together with an associate Ms Lorraine Skiffington, were involved in negotiations with developers seeking access to a substantial property in Pipitea Street, Thorndon, owned by the Wellington Tenths Trust. Dr Love was Chairman of that entity, which had the task of managing assets which had been reserved for Māori people in Wellington and Taranaki regions for many years.
- Dr Love and Ms Skiffington knew that the developers with whom they were negotiating were prepared to pay $3 million in order gain access to the Trust’s land for development. Dr Love never disclosed that fact to his fellow trustees at the Tenths Trust. The developers were led to believe that the $3 million premium was to go to the Tenths Trust. The payments were to be made in two instalments of $1.5 million. The first within seven days of a services agreement being signed, and a further payment of $1.5 million on satisfaction of certain conditions of the lease agreement. The deceit was elaborately hidden, and “two way” (against both the Trust and the developers).
- A company was formed by Ms Skiffington and her accountant, which entered into the services agreement with the developers. It was to receive the $3 million payment. The Tenths Trust had no knowledge of that fact, and of the deliberate deception that was occurring. The first $1.5 million plus GST was paid in early January 2007. The company created for the purpose received the funds paid or transferred these into a bank in the joint names of each of the trusts that the Judge found Dr Love and Ms Skiffington had settled. This was to enable them to acquire substantial equity in a valuable residential property in Plimmerton. They had acquired the property close to those events.
- Ultimately, the agreement to lease did not proceed and the Tenths Trust entered into a new arrangement with developers. But none of the trustees or beneficiaries of the Tenths Trust knew about the $1.5 million payment that had been received, and applied for the joint benefits of Dr Love and Ms Skiffington.
- Lang J found that Dr Love intended to deceive in three possible ways, namely:
(a) He falsely representing to developers that he was acting with the Tenths Trust’s knowledge and authority, and failing to disclose that his fellow trustees were not aware of the proposal to pay the $3 million premium.
(b) He omitted to disclose a crucial factor to the Tenths Trust namely the developer’s offer to pay the premium, when in the circumstances there was a duty of disclosure. Lang J found that information was of such significance that the omission to disclose must have been deliberate. It was only explicable because Dr Love did not want his fellow trustees to know about the payment that was being received eventually by himself and Ms Skiffington.
(c) Over a period between November and 2006 and January 2007 the activity of Dr Love and his associate amounted to a contrivance and a fraudulent device to defer funds for their own benefit. It was a deception to obtain resulting personal gain, which according to the Judge had the “hallmarks of dishonesty”. The circumstances gave rise to the clear inference that Dr Love and Ms Skiffington were guilty of an elaborate deception primarily of the Tenths Trust but also of the developers.
- As we have said Dr Love appealed against his conviction and sentence, which was dismissed. The appeal was based upon the contentions that a miscarriage of justice occurred because the trial Judge should not have found that Dr Love was fit to stand trial because of health reasons; and secondly, it was alleged there was error on the part of Dr Love’s counsel. The Court of Appeal rejected both contentions. It noted that relevantly, Dr Love had not, through his then counsel, challenged the factual findings of Lang J. Dr Love had given evidence at his trial, with the defence being essentially one of denial of knowledge or any dishonest intention. The Court of Appeal described the sentence of two and a half years imprisonment as being “well within range if not merciful, and could not possibly be criticised as excessive”.
- Dr Love has health issues which have been well documented. It is not necessary that we make any extensive reference to them as they were referred to in the Judge’s sentencing notes, the Court of Appeal decision, and an earlier decision of the Deputy Chair when an application for compassionate release was declined. His health issues are being well managed by the medical personnel at Rimutaka Prison. There has been extensive information presented to the Board concerning the diagnosis of dementia which is described in parts as being moderate or mild. Dr Love’s supporters contend this would diminish any risk he might have to the community, or any person, or group of persons in it. As we later observe (in paragraph 20) dementia can increase, rather than reduce risk.
- The Court of Appeal in its judgment of 26 June 2017 noted that there was no evidence that Dr Love was suffering unduly and appeared to be in relatively good health. His line of defence was not attributable to mental impairment; and there was evidence that he functioned in the average to high average range in terms of working memory. There was expert opinion thus his abilities appeared to far exceed those that other defendants found unfit to stand trial, and that there were “lengthy passages of cross-examination where Dr Love held his own in answering probing questions about the existence in terms of the services agreement, and his answers were clear and exculpatory. He was similarly emphatic, expanding where necessary, and denying any participation and using the premium payments to repay the mortgage, and in money movements generally. He tended to blame everything on Ms Skiffington and Mr Stevens”. (That remains the case in his presentation to the Board).
- The Court of Appeal noted that Dr Love’s clinician, when giving evidence that he was surprised at how “adept” Dr Love was in some aspects of his performance as a witness.
- The panel engaged in lengthy questioning and discussion with Dr Love and we share the view that he was adept, even adroit in his presentation. He was able to express himself well and cogently. He maintained, as he had at trial, that he had no knowledge of the events which formed the backbone of the Crown’s case and he placed the entire blame upon Ms Skiffington and her accountant. He told the panel that he had no knowledge that he or any trust of his was a 50 Percent owner of the Plimmerton property, yet he said that he “accepted the process which was carried through that [he] was responsible for the process that had been carried through but he did not have the intention to defraud anyone, and that what had occurred seemed to [him] to be a logical process at the time”. He minimises his offending (indeed denies). Lang J however, did not accept any absence of intent or knowledge. His supporters, or some, appear to adopt the same view. We were told in the course of the inquiry that whilst he “takes responsibility he did not potentially know what was going on”. That belies the factual findings of Lang J.
- It is not the case that denial of offending would mean that parole is declined. The issue comes back to risk and whether there exists possible treatment, despite such denial, which may reduce the risk of causing harm to any person if released into the community.
- We have read the two victim impact statements made available to Lang J who said: “The single most important item of redress sought … is a formal unreserved and sincere apology to the beneficial owners and the trustees of Wellington Tenths Trust who completely trusted him in all matters concerning that trust. That trust was betrayed”.
and we endorse those remarks.
- Whether or not Dr Love is prepared to do this is a matter entirely for him and his claim to innocence would seem to make this unlikely. It is not relevant to assessment of risk, however.
- The Board has received a number of submissions from family and some others who indicate support of Dr Love and ask for a decision that Dr Love be released on parole.
- We need to make it abundantly clear that parole is not determined by “referendum or petitions” from those who support release, or not, as the case may be. The relevance of support for an offender is whether others are able to manage his/her risk when in the community. If “supporters” do not recognise the risk, or believe that there is no risk, then that may not be helpful to the offender, and this is especially the case where those who express support believe, mistakenly, that no intention or wrong has been done. There is a telling distinction between “supporters” who fall into the category of simply supporting a wish to achieve parole, and those whose “support” is directed to assisting in managing known and agreed risks. So, petitions of “supporters” are unhelpful in assisting the Board in deciding the issue.
- Apart from (withheld) and (withheld), the Board has received statements of support from 10 signatories to a petition, or statement of support, and three from former trustees. Yet there were 10 or 11 trustees at the time of the offending, and something over 6000 total beneficiaries of the trust who are victims. As with any serious fraudulent offender, release on parole will not occur just because certain groups might object although the Board gives due weight to submissions of victims.
- We have given the matter anxious consideration in applying the law provided by Parliament. We do not consider that the diagnosis of dementia reduces Dr Love’s risk and indeed it is well known that dementia can in fact increase risk as it removes elements of self-awareness and self-regulation that might otherwise occur. Dr Love assured us that he has no desire or intention to participate in any matters involving finances or trusts.
- The psychologist’s report and opinion before the Board describes Dr Love’s risk of reoffending being “delimited” by four factors. They are:
(a) His automatic prohibition from acting as a director or manager of any company and the Māori Land Court is not likely to appoint him to be involved in any way with the Māori Ahu Whenua Land Trusts;
(b) His daughter has an Enduring Power of Attorney and with the oversight of his son, there is provided an additional layer of protection to the extent that he must defer to his appointed attorney important decisions;
(c) His family are well aware of his limitations and are able to provide ongoing care and oversight of his moderate dementia and health needs;
(d) His notoriety and publicity surrounding his conviction and imprisonment is thought to make it unlikely that he would be appointed to any position of trust. A special condition can ensure that does not happen.
- The psychologist’s view, in summary, is that although there are areas of risk management which remain untested whilst Dr Love is in prison “it is considered that the presence of considerable support along with external barriers outlined above, that Dr Love’s release plan is viable …. He will present a low management risk on release based on assessment of his reintegrative needs”.
- We make it clear that it is the opinion of the Parole Board, and not that of report writers, that determines the final outcome.
- Dr Love will be aged 80 on the 7September 2017. Because of his advanced age, some compromised mental functioning, declining physical health; strength of family and community support; we have been able to be satisfied in terms of s28 that we should give a direction for release on parole. That is because there are reasonable grounds to conclude that he will not pose an undue risk to the safety of the community, or any person, or class of persons within it over the remainder of his sentence (that is until 6 April 2019) provided he faithfully adheres to his standard and special conditions and requirements of his probation officer. If, for whatever reasons, his risk should escalate to undue, he will face immediate recall to prison.
- Accordingly, Dr Love will be released on parole on 9 October 2017, one month after reaching age 80, on the standard conditions and the following conditions which shall continue until his sentence end date, of 6 April 2019.
- The special conditions are:
(1) To attend a whānau hui on such occasions as required by your probation officer, to ensure that whānau and supporters understand the importance of adherence to parole conditions.
(2) To reside at (withheld) and not to move from that address without the prior written approval of a probation officer.
(3) To notify your probation officer before engaging in any employment or changing such employment or place of employment with the definition of “employment” including participation in any voluntary activity.
(4) Not to have any involvement direct or indirect with the Wellington Tenths Trust or the Port Nicholson Block Settlement Trust (which presented victim impact statements to the sentencing Judge) in any capacity without the prior written approval of your probation officer.
(5) Not to engage or participate in any financial or property transactions, business or acquisitions, whether in your own right or as a trustee, partner, or other capacity without the prior written approval of your probation officer.
Hon J W Gendall QC