New Zealand Parole Board -

Parole Hearing
Under section 21(2) of the Parole Act 2002

Phillip John SMITH

Hearing: 26 June 2017 At [Withheld]

Members of the Board:

• Alan Ritchie (Panel Convenor)
• Ms S Pakura
• Mr B McMurray
• Mr J Thomson

Counsel:

• [Withheld]

DECISION OF THE BOARD

1. This is a reserved decision (issued on 30 June 2017) relating to Philip John Smith, 43, who appeared for the further consideration of parole on his life sentence for murder committed in 1995.  The victim was the father of a boy earlier indecently assaulted by Mr Smith over a period of years.

2. The criminal history includes fraud, extortion, attempted arson and escape from police custody along with the sexual offending all predating the murder and dating back to 1990.

3. Since the murder Mr Smith has committed fraud in prison between 2006 and 2010.  Then on 22 July 2016 Mr Smith was sentenced to two years nine months in prison for offending against the Passports Act 1992 in 2013 and escaping from custody in 2014.

4. On 22 June 2017, Mr Smith reached his parole eligibility date on that latest sentence.  Hence this hearing for the consideration of parole is earlier than that scheduled for him by the Board on 23 November 2015.

5. At that hearing, the Board noted Mr Smith’s acceptance of the need for further intervention to address his offending (beyond the Child Sex Offender Treatment Programme completed in 2011).  The Board supported the intervention being provided in a timely way with the effectiveness of it to be assessed and advised to the Board in a full psychological report.

6. In addition, the Board supported a return to re-integrative activity at an appropriate time in accordance with departmental policies.

7. We have an addendum Psychological Assessment Report dated 10 May 2017.  This says that Mr Smith has now been screened and remains a high priority for psychological services to address the rehabilitative needs such as the Special Treatment Unit Programme (STURP).  There has been something of a barrier to the STURP presented by Mr Smith’s high security classification and voluntary segregation but we note the security classification became low/medium on 23 December 2016 and has remained at that level in the most recent review. The RoC*Rol is .82092.

8. The 10 May 2017 psychological assessment report rated overall risk as high for sexual, violent and general re-offending. The Psychologist made reference to a wide range of measuring tools in reaching that conclusion. The particular recommendations made in the report were:
It is recommended that Mr Smith complete a specialist violent treatment to address the remaining identified dynamic risk factors.  This is dependent on the risk others pose towards him and the prison’s ability to manage his safety.  However, should this rehabilitative pathway be unavailable, it is recommended for Mr Smith to engage in individual treatment with a departmental psychologist.  [Withheld]
Upon completion of treatment to address his dynamic risk around violence, Mr Smith should be assessed as to whether he needs further intervention related to his sexual offending.  If he is assessed as requiring further intervention, it is recommended that he engage in individual treatment with a departmental psychologist.

9. Mr Smith has challenged certain statements in the original parole assessment report prepared for this hearing about issues of accommodation, a 1995 escape and reparation and an addendum report has been received.

10. We have also received detailed submissions in writing from [Withheld (counsel)].  The essence is that Mr Smith is seeking a six month adjournment during which he would, it is urged, commence the STURP programme (or some equivalent) by individual work with a psychologist and then continue it in the community on full residential restrictions.

11. [Withheld (counsel)] has advised that Mr Smith is committed to completing the STURP programme and has expressed disappointment that it has not been made available in a timely way as suggested by the last Board.

12. We note here that while the Board can make recommendations, it cannot direct.  The timing of intervention is a matter for other authorities.  The absence of it is not commonly a sound basis for a finding that risk is not undue.

13. In his written submissions [Withheld (counsel)] provided a detailed analysis of various risk assessment tools and factors and said:
The convergence of psychological opinion that Mr Smith is currently unlikely to commit violent offences but is at high risk of committing dishonesty offences, questions whether detaining him in prison is disproportionate in these circumstances.

14. [Withheld (counsel)] calls in aid the following from the author of Parole in New Zealand: Law and Practice (Judge Mather):
Clarke v Parole Board the High Court expressed the view that “undue” when used to describe risk, meant that the risk to the community “was disproportionate to, and outweighed [the offender’s] personal interests in retaining his liberty.”

15. [Withheld (counsel)] has added that, “The assessment of undue risk must focus on the evidence which is available and whether that evidence is capable of satisfying the undue risk test.”

16. [Withheld (counsel)] also commented on the level of support and supervision in the community and said that a six month adjournment would provide sufficient time to prepare reports from the Department for residential restrictions, electronic monitoring and a 24 hour Department of Corrections minder.  He said a recommendation for a fresh referral to (withheld) and for support for his accommodation and ongoing treatment at (withheld) may well be of assistance to the Board.

17. [Withheld (counsel)] said that in the interim, Mr Smith was seeking a recommendation and direction from the Board that he commence the recommended STURP programme with a Department of Corrections psychologist as soon as possible on release.

18. Whatever the “convergence” of psychological opinion to which [Withheld (counsel)]’s submissions refer, the current (10 May 2017) assessment does not really mince words:
In considering static and dynamic factors along with structured professional judgement, while Mr Smith’s dynamic risk has reduced somewhat (with regard to the strength/presence of some risk items) he is assessed at high risk of general and violent re offending.

19. The Board is often confronted not with “convergence” but “divergence” of opinion.  No particular information provided to the Board is determinative of release.  What the Board must do (as required by section 7(2)(c) of the Parole Act) is to consider all the available information.  In the end, however, the question of a direction to release is the exclusive prerogative of the Board.  That point was confirmed by MacKenzie J in Ericson v New Zealand Parole Board and the Attorney General [2013] NZHC 1790:
…the weight to be given to the information which is before it is a matter for the Board.

20. There is, of course, no entitlement to parole.  Section 28(1AA) makes that clear.  Nothing in the Act or in any other enactment confers an entitlement.

21. As in all cases the paramount consideration for us is the safety of the community.  Given the offending history we are not prepared to be other than extremely cautious in the light of the current psychological opinion.

22. We accept it and the recommendations.  We expect the necessary intervention to take some time and we expect a gradual reintegration phase to follow.

23. We feel unable to accommodate [Withheld (counsel)]’s submission for a six month stand-down period for the necessary work.

24. In our view, until the recommended intervention is completed within the prison structure, followed by the necessary period of re-integrative activity, risk will be undue.

25. We will schedule Mr Smith to be seen again in May 2019 for the further consideration of parole.  We can offer no assurances whatsoever about any outcome from that hearing.  Indeed, we have given some thought to the question of a postponement order.  We are not ourselves taking that matter any further but it may be that such consideration will be given at some stage in the future. For that to occur, of course, Mr Smith will need to be given the appropriate notice required by the statute.

26. Risk is undue and parole is declined.

Alan Ritchie
Panel Convenor