A Weekly Report from the Keyboard of Murray McCully
MP for East Coast Bays

A Tale of Monumental and Tragic Failure

The murder of Karl Kuchenbecker by previously convicted murderer Graeme Burton prompted three reviews of the actions of Corrections and Parole services. Unsurprisingly, none found serious fault with the system, merely improvement that could be made in future.

Much of the public and media attention has focussed on the role of the Corrections Department, an agency beset by huge problems on every possible front. That is only fair. Corrections’ role in the Burton affair showed shortcomings that are serious and major. But what of the part played by the Parole Board – they, after all, were the people who let Burton out of prison.

The review of the actions of the Parole Board, conducted by Chief District Court Judge RJ Johnson and Professor JRP Ogloff, is a thinly veiled white-wash. But if readers ignore the shameful attempt to minimise the incompetent and outrageous actions of the Board, the facts exposed in the report are truly chilling. They expose a culture of almost wilful disregard for the Board’s statutory duty to protect public safety. And they make it clear that it is only a matter of time before the same Board, operating with the same contempt for public safety, causes the needless death of more New Zealanders.

The Parole Board

The Parole Board is in fact three panels of board members (breaking the country into three geographic entities), constituted in various configurations for the purpose of hearing parole applications from the nation’s prisoners. Invariably the chair is a serving District Court Judge. Other panel members are political appointees – under the current Government there is a distinct leaning towards left-wing social liberals.
The role of the Parole Board in the Burton affair deserves special scrutiny. They and they alone were responsible for the decision to release Burton. They made their decision in the face of clear evidence that Burton would re-offend. Their actions unquestionably resulted in the death of Karl Kuchenbecker, and could well have led to the deaths of others. Their actions will unquestionably lead to the deaths of others unless changes are made.

Burton

By any standard of measurement, Graeme William Burton is a bad bastard. By the time he was sentenced to life imprisonment for murder in December 1992, he had already chalked up 91 previous convictions – including drug, property, breach of bail, wilful damage, failure to answer bail, resisting Police, and breach of periodic detention offences.

Subsequently, in prison, Burton accumulated further convictions - assault on prison officers (2 in 1994), assault with intent to injure (1996), and six convictions in 1998 for escaping from prison, stealing a motor vehicle, and possession of firearms.

But wait. There’s more. Burton also managed to accumulate 13 proven misconduct punishments whilst in prison, for offences like assaulting fellow inmates, using drugs and alcohol, and possessing prohibited items. Hardly the sort of record that you would imagine to deserve leniency from the Parole Board.

The Psychologist’s Advice

By the time the Parole Board made their fatal decision to release Burton in June 2006, they had access to four reports from psychologists employed by the Corrections Department to undertake such assessments:

In April 2002, Burton was assessed “at high risk for re-offending.”
In May 2004, the psychologist assessed Burton as being “at high risk of re-offending in a violent manner.” And:

“Dynamic factors that elevate Mr Burton’s risk for violent recidivism include his pro-violence beliefs, his distorted thinking relating to his offending and his view of the world; specifically his beliefs of entitlement and suspicious and mistrustful outlook. Other dynamic factors that increase his risk include his limited ability to manage his emotions appropriately, criminal associates, substance abuse, and a lack of empathy and remorse.”

By August 2004, Burton had completed a violence prevention programme and was given a further psychological assessment. The programme must have been an absolute ripper, because this time the psychologist found him to be “at very high risk of re-offending in a violent manner.”

The report “highlights an enduring pattern of grandiosity, a lack of empathy, remorse, and indicates he is likely to re-offend within a relatively short period of release into the community.”

In April 2006, the psychologist gave Burton another assessment:

”Mr Burton was assessed as being at moderate-high risk of further violent offending in the medium-term following release. His immediate risk will be increased by any resumption of substance abuse, association with criminal peers, major life stressors or setbacks, withdrawal of social support, lack of cooperation with supervision, and persistent negative mood states.”

In short, Burton was professionally assessed as having a “moderate-high risk of further violent offending.” And that risk could be increased by a range of influences – all the sort of influences that would almost certainly come into play if he was released.

Faced with those reports, a Parole Board would have required a gross disregard for public safety, or to have taken leave of its senses, to release Burton. But it gets worse:

The 26 April 2006 psychologist’s report refers to a Public Prison Service memorandum dated 24 April 2006 (i.e., two days earlier). The psychologist wrote that “ it reports two instances in February and March 2006 when prisoners in unit four (where Burton was located) were believed to have been assaulted. One had a suspected broken arm and the other was found ‘in a badly beaten state.’ A third prisoner approached staff in February 2006 to request re-location from unit four due to alleging he was being repeatedly assaulted by the same person whom he would not name. The memorandum reported that ‘intelligence information had been received on all three occasions that prisoner Graeme Burton was the perpetrator.’ On 3 April 2006 intelligence information was received that Mr Burton and another prisoner were soliciting other prisoners to do ‘hits’ on two staff members.”

Amazingly, in June 2006 the Board dismissed these very serious allegations as “an unsubstantiated allegation for which no report has been received, no action has been taken.” They concluded that it would be “wrong for any Board to take such matters into account when assessing risk.” Yet the psychologist’s report in April had been clear: if the allegations against Burton were found to be convincing, “this would substantially elevate Burton’s risk of re-offending.” How on earth could a Board charged with protecting the safety of the public decide to exclude such an important matter from their consideration?

On 28 June 2006, the Parole Board stated that they had “come to the view over the past nine months that Mr Burton’s potential risk to the safety of the community is not considered to be undue taking into account the efforts made to address his offending and his proposed release plans.” That decision was a death sentence for Karl Kuchenbecker.

The Review Conclusion

The Review of Judge Johnson and Professor Ogloff concludes that “in its dealings with Mr Burton over several years, the New Zealand Parole Board gave due consideration to the potential risk that Mr Burton posed to the community and carefully balanced that risk potential against the public interest in reintegrating him back into the community as a law-abiding citizen.” (Brief pause here, while readers choke on the expression “law-abiding citizen”). Further:

“Having made the judgment that the unprovable allegations about Burton’s conduct recounted by the psychologist should not be taken into account, on the information available before the Parole Board on 28 June 2006, the decision to grant Mr Burton’s application for parole was reasonable.”

The mccully.co Conclusion

Well, the good folks at the worldwide headquarters of mccully.co have conducted their own review of both the Parole Board and the Reviewers. And here it is:

The Parole Board

Section 7 of the Parole Act 2002 requires of the Board, that “when making decisions about, or in any way relating to, the release of an offender, the paramount consideration for the Board in every case is the safety of the community.”

The Parole Board, at its meeting on 28 June 2006, failed utterly to meet its statutory obligation to protect the safety of the community. Even without the information in the psychologist’s report regarding the recent allegations against Burton in prison, there was an emphatic, overwhelming and unmistakable consistency about the psychologist’s advice: there was a serious risk that Burton would re-offend if he was released and it was likely that his re-offending would involve violence. Further, there was a range of factors that would increase the risk of violent re-offending even more – all of them most likely to occur if he was released. There was simply no room on the evidence available for the Parole Board to draw any conclusion other than that parole should be declined.

It is important to remember that in June 2006, Burton was still serving the sentence handed down by the Court. He was, therefore, seeking the privilege of parole. And read in that context the Parole Act clearly means that the benefit of the doubt must go to innocent, law-abiding members of the community, and must be denied to convicted criminals whose rehabilitation is open to the slightest question. But that did not happen here.

Further, the Board was wrong to set aside the allegations of further misconduct on Burton’s part and release him. The disclosures in the psychologists’ report of 26 April 2006 placed the Board on notice. They had a statutory duty to make such further enquiry as would enable them to meet their obligations under S7 of the Act. Even if Burton had, in every other respect, a clean bill of health, they had that obligation. In the circumstances of this case their failure to make that enquiry was almost unbelievable.

No reasonable person who has read the background to this case could conclude that the Board had met its obligations to the public. And no one who has read the background to this case should have any confidence in the Parole Board or its members.

The Review

Those who appointed the review team (that would be the Parole Board itself) received exactly what they expected: a carefully argued, legalistic, minimalist assessment of the obligations of the Board that would find the Board had ticked the necessary boxes on matters of process and gloss over their failure to meet their statutory and public duty. Ignoring, of course, the fact that an innocent person was killed as a direct result of that failure.

It’s not quite up there with the infamous report of Mr Ingram QC which failed to find serious fault with the actions of Taito Phillip Field MP – and was subsequently blown completely out of the water. But coming from our Chief District Court Judge, it’s a very unsatisfactory piece of work indeed. And one that will subsequently come back to bite him and others involved in this saga. Because the one certainty that stands out from this paperwork is this: Karl Kuchenbecker is not the last New Zealander to needlessly die as a consequence of the actions of the Parole Board. The key lessons have not been learnt by either the Board or the Review team. Convicted criminals will continue to be given early release by the Parole Board in contravention of their duties under the Parole Act 2002. And innocent New Zealanders will pay for those mistakes with their lives.

The Real Villains

Just as the reviews have failed to identify the flaws that allowed a violent criminal who should have been behind bars, to kill an innocent New Zealander, the changes proposed by the Government fall well short of ensuring that there will be no repetition of this tragedy. There will be more process. More boxes to tick. But the real issue will not be addressed. The most critical change required is not to the legislation, but to the Board.

If the current Parole Board members are going to disregard their obligations under the Act, we need new ones. And the responsibility for that rests firmly in the Cabinet room of Helen Clark’s Government.

ENDS

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