Loizos MICHAELS - 28/03/2017
Under section 21(2) of the Parole Act 2002
Hearing: 28 March 2017 at [Withheld]
Members of the Board:
- Hon J W Gendall QC – Panel Convenor
- Mr B McMurray
- Ms G Hughes
Date of Reserved Decision: 3 April 2017
RESERVED DECISION OF THE BOARD
1. Mr Michaels is serving a sentence of eight years imprisonment for 30 crimes of fraud or obtaining by deception. A minimum non-parole period of three years and nine months was imposed. His parole eligibility date was 31 May 2015. His sentence end date is 27 February 2019.
2. He appealed to the Court of Appeal against his conviction and sentence. The appeal was dismissed. The Court in its judgment described his offending as being “a sustained ever-developing con” and a “sustained complex fraud” which suggested that Mr Michaels “presents a significant ongoing risk to the community and he was clearly capable of fooling people and exhibited no remorse”. Mr Michaels contended to the court that his trial counsel made serious errors in the conduct of the case and a miscarriage of justice occurred. He filed an affidavit, gave oral evidence and was cross-examined. In dismissing the appeal, the Court said that it had “no merit”, and rejected his evidence on oath.
3. When he was last seen by the Board on 18 September 2015 the Board noted that he said he fully acknowledged his crimes, but the Board did not place much weight upon his expression of remorse. It said that there had been no fundamental change in his thinking, and noted he was disbelieved when he gave evidence on oath at trial and to the Court of Appeal. The Board concluded it had no confidence that his release arrangements would manage his risk over the ensuing three years and five months.
4. Mr Michaels resided in Australia up until about 2006. He was convicted there of crimes of dishonesty (5 thefts and 2 of obtaining property by deception – i.e. fraud) in 1995. It seems he was sentenced again in 2006 for a further crime of obtaining property by deception between 1 April and 31 July 2003. He had further convictions for failing to comply with bail conditions in 2004 and 2005. After he came to New Zealand he committed the index offending during 2007-2008.
5. The fraudulent offending fell into two categories and in two different ways. It was described as being at a very personal level. Over $3.2 million was obtained. The sentencing Judge said to Mr Michaels:
“You had the ability to ingratiate yourself with others and to draw them into schemes to a point where it was impossible for them to extricate themselves, where they were committed to pay out more and more money…. You persuaded them to hand over, in some cases, everything they had and everything they could persuade others to give them and when one was squeezed out you moved on to the next”.
6. After being charged and pleading not guilty Mr Michaels was granted bail. He did not answer to it. Despite his stern opposition, he was extradited back to New Zealand in September 2011 to face a Judge Alone trial.
7. Mr Michaels is subject to a removal order and will be deported to Australia when released from prison, whether on his sentence end date, or on parole.
8. Mr Michaels was represented by counsel and he presented detailed comprehensive submissions; letters of support from a [Withheld] to the effect that if Mr Michaels were to return to Australia he would provide pastoral assistance and guidance if he wished to access this; a further letter offering support to Mr Michaels under [Withheld],. We have also received affidavits from a private investigator engaged by Mr Michaels, and a psychological report obtained [Withheld]. There are earlier (2014) letters of support from [Withheld].
9. We have considered and taken into account that material when assessing the ultimate question, namely, whether Mr Michaels would pose an undue risk to the safety of the community, if released on parole.
10. The second affidavit of [Withheld] relates to his opinion and belief as to the accuracy or reliability of prison management reports and records and which Mr Michaels disputes. It is not our function to make any comment or decision on those. Mr Michaels or his counsel no doubt can raise his concerns with the Department of Corrections. We simply note that Mr Michaels disputes some comments in the parole assessment report.
11. Mr Michaels’ current proposal is that on his return to Australia [Withheld]. He told us that he would reconnect with [Withheld] (we assume that it is not the same as that in Brisbane to which the letter of support relates); he would avail himself of the assistance of [Withheld].
12. The Board received letters of support for Mr Michaels on 5 November 2014 (before his parole eligibility date) from [Withheld] at which time the proposed accommodation was [Withheld]. That was to be with his [Withheld]. Recently, the accommodation position has altered as Mr Michaels’ [Withheld]. We understand that Mr Michaels’ [Withheld] has, he says, recently been dealt with in the criminal courts for fraud-related offending. The only pro-social family support would appear to be Mr Michaels’ [Withheld]. He says she has compromised health issues and he wishes to help her.
13. We have carefully considered the opinions expressed in [Withheld]’s psychological report and taken these into account. [Withheld] makes particular reference to and relies on paragraphs 72-80 of the report, which expresses her view that Mr Michaels had a “medium risk of fraud-type reoffending” but there are a number of protective factors such as pastoral support, absence of substance abuse or sexual violence. There are positive features in Mr Michaels’ background and presentation. But there are also troubling personality aspects which impact upon his risk. The psychologist expresses her view that there was evidence that he might be quite convincing and persuasive to others, which is obviously the case given his extensive fraudulent and deceptive behaviour, which led to the index offending and his prior convictions in Australia. The psychologist said that Mr Michaels:
“Frequently reiterated his remorse and regret and was careful to point out that he did not blame anyone else for the position he now finds himself in”.… He was somewhat reticent about the facts of the offending and the impact on some of the victims, who he considered to have misrepresented their own role in events and have taken advantage of him. Mr Michaels was also focused on his perception of the victims’ wrongdoings; however, agreed that the misbehaviour (whether perceived or real) of others does not exculpate his own offending behaviour”.
14. His defence at trial, as stated by the Court of Appeal, was that he was a victim of illegal activities. When apprehended his position was to allege conspiracy by the Serious Fraud Office, attack characters of witnesses and claim that there was involvement of other prominent people who were not witnesses.
15. The pre-sentence report refers to his assertion that he himself was a victim as the actual victims who had set him up and “set out to entrap me” and that “what I brought [to the scheme] was my ability to bargain”. Despite his repeated statements to the panel that he was “very remorseful”, that seemed at odds with an earlier answer implicating a victim who he said falsely said that he had money but according to Mr Michaels that was not the case. He told us that that victim knew more than what he said and “he was part of the scam”. He told the Board, repeatedly that he had changed his views, was remorseful and did not blame others. We do not find his assertions convincing. His expressed remorse is only directed at the situation in which he finds himself, namely, wanting release from prison and return to Australia. We agree with the previous observation of the Board in paragraph 10 of its earlier decision that it was “unable to attribute much weight to that expression [of remorse and shame] and to his declared motivation to lead a law-abiding life in the future as a protective factor”.
16. Our assessment of Mr Michaels is that he has certain personality and character qualities which he needs to recognise in order to be fully cognitive of, and to assist in managing, his risk. The psychologist refers to Mr Michaels as being helpful, but is a manipulating and demanding prisoner (that is according to prison documents seen by the psychologist). She states that caution must be exercised in interpreting results of psychological tests as they have an inherent cultural, statistical and self-report limitations. This is well-known by the Board.
17. A “low” RoC*RoI of 0.17786 in our view is not a reliable indication of risk as it is unlikely to have taken into account prior convictions in Australia. And, further, as has been stated often in court, “low risk” is not “no risk”. The test is described as “undue risk”.
18. The psychopathy check-list results obtained by tests set by the psychologist are said to fall within the average or below average range compared with other male adult offenders, which she says, does not meet the criteria for diagnosis of psychopathy. She said however, that his presentation was somewhat consistent with superficial grandiosity, need for admiration and lack of empathy, a pattern of excessive emotionality and attention seeking, and a pattern pre-occupation with orderliness, perfectionism and control. She says they may not accurately reflect his personality functioning because that pattern may also be consistent with attempts to present himself as being competent in order to achieve the desired outcome of parole. Those features were apparent to us at the hearing with considerable impression management in his responses. We are mindful that a “diagnosis” applies to conditions and not to people who may have certain personality features relevant to risk without there being diagnosis of psychoathy.
19. Aspects of Mr Michaels’ personality makeup which were apparent to us in his presentation, and also from all the material before the Board (including Court judgments, psychological report, his own submissions) illustrated he can present as a charming, opinionated, self-entitled, deceitful and manipulative. As a recidivist confidence trickster he proved to be a danger to the community of Australia as well as to the community of New Zealand and was sentenced to imprisonment in both countries. The manner and scale of his index crimes indicate his grandiosity, determination, deceit and lack of empathy.
20. The psychologist observes that protective factors and convictions in Australia did not appear to have had a deterrent effect, and Mr Michaels’ [Withheld]’s accommodation was not a protective factor in the past. But, we have not been told whether in fact he was then living or closely involved and associated with [Withheld] whilst offending in Australia. Clearly, any support did not extend to deter the serious New Zealand offending. Although Mr Michaels told us that he was “really very, very close” to [Withheld] was not aware of his offending.
21. Whether or not Mr Michaels has been a difficult and demanding prisoner or, as his counsel says, a “model prisoner”, it is beside the point. That is, because parole is not granted because an offender has had good behaviour in prison, any more than parole is refused because an inmate may have behaved poorly. The guiding principles which we apply are those in s7 of the Parole Act 2002 with the paramount consideration being the safety of the community, whether an offender poses an undue risk of both the likelihood of further offending, and the nature and seriousness of any likely subsequent offending. We are mindful that offenders must not be detained any longer than is consistent with the safety of the community but equally they may not be released if still posing an undue risk to the community.
22. The crucial issue in this case is whether Mr Michaels has a sufficiently strong safety and relapse prevention plan which, if implemented, would ensure that his risk of over the remaining 23 months of his sentence, could be managed so as not to be “undue”.
23. Despite what he says, Mr Michaels does not truly understand his risk factors, and does not have a sufficiently robust safety and release plan. He does not see his risks and further work is needed to enable him to appreciate what they are. It is not sufficient for him to say that he will not offend again. Family support which would have been there in the past but that did not stop offending, which commenced over 20 years ago. His RoC*RoI totally underestimates his risk, which at present, in our view, remains undue.
24. Although sentence management must be the prerogative of prison authorities it may be that one way in which he might understand his risk so as to develop true insight and a robust safety and release plan (which can withstand scrutiny), is for him to engage in the Short Rehabilitation Programme (SRP). This would require an override. But that is at least necessary so that if successfully undertaken may assist in reducing the undue risk which currently exists, and help in his formulating a robust release plan.
25. Court decisions have confirmed that the “community” which is relevant to the issue of undue risk, is the community in New Zealand or overseas – that is, the community into which an offender is to be released. When it is overseas, it is relevant that offenders released on parole and deported are no longer subject to the jurisdiction of Community Probation, and can live and behave without supervision, oversight or any means by which they (although still legally “serving” a sentence) can be monitored and held to account.
26. The test for release is, of course, not higher when a person is to be deported, but in assessing whether the risk is not undue the fact that there are no means of oversight of such an offender who is free to behave as he chooses, is relevant. We share the view of the last Board that at present we are not satisfied that Mr Michaels will not pose an undue risk to the safety of the community in Australia. His release plan still falls short, by a wide margin, of being able to manage that risk.
27. The statutory criteria which would enable Mr Michaels’ to be released on parole have not been met, in our view. He remains an undue risk to the safety of the community and his release plan is inadequate.
28. Parole is declined. He will be seen again in the month of March 2018, that is before 31 March 2018.
Hon J W Gendall QC