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OSH prosecutions for parole scandal – Chapman Tripp letter

This letter was sent to the Secretary of Labour. A reply was said to be coming last week (ending 19 February)

 Our ref: Stephen Franks
Direct dial: +64 4 498 4937

12 January 2009                                                                                                        
Christopher Blake
Secretary of Labour
Department of Labour
PO Box 3705
Charges for Failing to care about Parole Murders
1            Garth McVicar by his solicitors in this matter (Chapman Tripp) gives notice for the purposes of section 54 (1) of the Health and Safety in Employment Act that he has an interest in knowing whether the deaths and injuries inflicted on innocent people by criminals released from prison before completing their sentences on parole are, or are to be, subject to the taking of enforcement action by an inspector.
2            In particular he wants to know whether any enforcement action has been investigated or instigated in relation to the killing on 6 January 2007, of Karl Kuchenbecker and the injuring of four other people. We have advised Mr McVicar that sections 15 and 19 of the Act appear to have been breached, and that charges under section 49, or 50 of the Act should have been instigated.
3            The reasons for considering that the matter should be subject to enforcement action are detailed later in this notice.
4            As required by Regulation 8 of the Health and Safety in Employment (Prescribed Matters) Regulations 2003, the following details are provided:
4.1       Mr McVicar’s postal address is:
Sensible Sentencing Trust
PO Box 701
4.2       His telephone number is 027 248 7919
4.3       His fax number is 06 835 5519
4.4       His email address is
5            If the Secretary wishes to clarify any aspect of this notice, or to explore issues raised by it, and Mr McVicar’s interest in it, please also communicate with the writer – Stephen Franks.
6            I have advised Mr McVicar on his rights and the application of the Act to the matters he considers should be the subject of prosecution under the Act. Mr McVicar would prefer that any technical issues be dealt with directly between the Secretary and Chapman Tripp as his lawyers for this purpose.
Obvious hazard
7            The matter in which Mr McVicar is interested has been driven home by numerous predictable and predicted murders and other injuries. Violent reoffending rates in New Zealand are so high that additional injury as a result of the release of violent offenders on parole is statistically certain. There remains uncertainty as to which offenders will hurt innocent people, when and to whom, but the probabilities that paroled violent prisoners will hurt someone while on parole are much higher than the probabilities of many other injuries for which employers are obliged to take stringent precautions.
The law
8            Section 15 of the Act requires every employer to "take all practicable steps to ensure that no action or inaction of any employee while at work harms any other person."
9            Section 19 (b) requires every employee to "take all practicable steps to ensure …"that no action or inaction of the employee while at work causes harm to any other person."
10         There is clear evidence that Ministers and the managers of agencies involved with parole and parolees have not taken all practicable steps to prevent the resulting serious and predictable harms, and neither have their employees. 
11         As you will know the law creates a duty to refuse to do unsafe work.
Fairness of enforcement 
12         Mr McVicar is well aware of the managers’’ dilemma. They are expected to operate a system that can not meet those requirements. The system has subordinated the safety of the public to other priorities for many years. They must juggle pressures that ensure a quantity of failures. Policies and rules that elevate privacy and process concerns above the safety of the public compound the risks. But as you know the Act does not excuse employers or employees for those reasons. They are required to place the safety of fellow workmates and the public above all other considerations. 
Ministers’ liability 
13         Ministers who have determined the policy in legislation and who have known of the likely consequences of release are the most culpable. They have known that the systems in place, and the resources are inadequate to institute and to operate the systems of assessment and supervision in the way needed to minimise the inevitable hazards.
14         They have implicitly placed their desire to appear compassionate, and to allow offenders a chance to rehabilitate spontaneously above the lives and futures of the inevitable victims of paroled criminals.
15         Mr McVicar believes they have done so in the face of:
15.1    clear research evidence that parole does not rehabilitate;
15.2    knowledge that risk assessment systems are unreliable;
15.3    knowledge that conditions imposed on parolees were unlikely to keep other people safe;
15.4    knowledge that systems and resources in Corrections were not adequate to enforce conditions even if the conditions were sufficient;
15.5    knowledge that laws governing recall for breaches of parole are cumbersome, frustrating for those expected to use them and used in a small minority of cases of breach of the terms of parole; and
15.6    knowledge that offenders were well aware of the deficiencies in parole assessment and supervision, and accordingly cynical about the effectiveness of the criminal justice system generally. Offenders can prudently assume that wrongdoers will not be swiftly visited by the long arm of the law. Accordingly the people responsible can not assert a right to expect their charges to obey the law.
16         In short, they must have known, or would be negligent not to have known, that many offenders will abuse any opportunity they are given, to the peril of innocent people in the community. 
17         You will be aware that it is not a defence that the hazard is the result of a good faith decision to put more priority on other objectives. 
18         You have charged people before now whose actions have been entirely well intentioned. For example you are currently pursuing enforcement against the Outdoor Pursuits Centre over the loss of the school students swept away by a flash flood, despite massive public support for that organisation, and concerns that any additional exposure for their mistake will add to the pressures to eliminate risk exposures for kids who volunteer for them and thicken the ‘cotton wool’ now surrounding our young people.
19         The charges in Japan and France that resulted in government Ministers being convicted for allowing tainted blood to continue being used in transfusions went ahead despite evidence that the Ministers were balancing risks and costs in good faith.
20         Mr McVicar considers that the competing policy objectives in this case (the case for the current parole system) are far less compelling, and not supported by evidence of effectiveness.
21         The shooting of Karl Kuchenbecker by Graeme Burton on 6 January 2007 is merely one instance that highlights persistent breaches of sections 15 and 19. The clear evidence of negligent supervision of William Bell should have put the responsible people on notice in the inconceivable circumstances that they were not previously aware.
22         In Burton’s case deficiencies were found as findings of fact by the Coroner during the inquest into the death of Karl Kuchenbecker (report released 16 May 2008) and by the Independent Police Complaints Authority in her report (released on 23 June 2008) into the conduct of Police following Burton’s release on parole and before he was shot by Police on 6 January 2007. 
23         The circumstances should have resulted in independent review by your inspectors and charges under section 49 or 50 of the Act.
24         Section 49 provides that a person who fails to take an action required by the Act [i.e. all practicable steps to ensure that no action or inaction harms any person] knowing that failure to take the action is reasonably likely to cause serious harm, commits an offence against the Act punishable by imprisonment for up to 2 years or a fine of up to $500,000 or both.
25         Section 50 creates strict liability for breaching sections 15 and 19 (failing to take all practicable steps to prevent harm) irrespective of whether the person in breach knows that the failure is reasonably likely to cause serious harm. The penalty is a fine of up to $250,000.
Particular facts
26         All potential charges in relation to the Burton harm arise out of a core set of facts:
26.1    Graeme Burton, who was already a convicted murderer and known to be a high risk of reoffending, was released into the community in June 2006.
26.2       Dangerous and unusual features of Burton’s risk to the safety of the public safety were:
(a)        the circumstances of the earlier murder where, pumped up with alcohol, drugs (and adrenaline) Burton killed a complete stranger in an unprovoked and violent attack;  
(b)        Burton’s history of violence in prison, particularly arising from a need to assert dominance over other men;
(c)        the fact that the Department of Corrections had received multiple reports of Burton’s repeated violent behaviour in prison just weeks before he was released on parole;
(d)        warning signs of Burton’s relapse (as highlighted in the Parole Board decision of June 06) were all apparent at the latest, by November 2006; and
(e)        by November 2006, public officials employed by Corrections and Police had formed the opinion that if he remained in the community, Burton would kill somebody.
26.3    There was an abdication of responsibility by the State (evident in the actions/omissions of individual employees, individual Departments, and systemically) to properly manage Burton’s risk to public safety.
26.4    On 6 January 2007, while on the run from Police, Burton killed Karl Kuchenbecker and attacked and injured four other people. Although all the people whom Burton attacked, injured and/or killed on 6 January 2007 were not known to him, they were exactly in the class of people the agencies were required to have in mind under sections 15 and 19 because of his known propensity for unprovoked attacks on strangers.  
26.5    Had Crown organisations and public officials acted properly, Burton would not have been loose in the community on 6 January 2007 because either –
(a)        he would have not been released on parole at all; or
(b)        he would have been recalled early in December 2006 (at the latest) and almost certainly apprehended by the Police soon afterwards.
Who to charge
27         The organisations which should be the objects of enforcement action are the Department of Corrections, NZ Police, and the New Zealand Parole Board.  
28         Individual public employees who should be defendants include:
28.1    the Commissioner of Police;
28.2    the Chief Executive of the Department of Corrections;
28.3    the Prison Manager of Rimutaka Prison at the time of Burton’s release on parole;
28.4    Burton’s probation officer and her immediate supervisor;
28.5    Paula Sharp, Supervising Probation Officer at the Department of Corrections; and
28.6    Suzanne Boyd, Sergeant Vaughan Mead and Det Sergeant Warwick McKee of the New Zealand Police.
29         OSH prosecutions often target people who are legally responsible but not to blame in any moral sense, so the individuals named in the preceding three subparagraphs, are not excepted. Nevertheless Mr McVicar naturally does not wish to see the individuals named facing the brunt of these defaults. They happened to be the ones on whose watch the inevitable happened. We have informed him of the provisions of the law that should allow the government agencies concerned to meet the costs. 
30         Strenuous efforts must be made to charge the responsible Ministers. That may need a test of the Crown Organisations (Criminal Liability) Act 2002. You should have also determined who in the Ministry of Justice has been responsible in their work for the policies and law that have continued the parole system, despite no evidence that it now serves any of the purposes claimed for it. They have gambled with the lives of they system’s victims
Time limits
31         We recognise that enforcement now could be out of time, because of the time limits in section 54B. Mr McVicar asks you to apply for an extension of time if none of your inspectors has been apprised of the circumstances in a way that should have alerted them to the need to investigate enforcement.
32         Please inform Mr McVicar fully of any reasons why enforcement action has not been taken, or if it was not considered before this notice, why it was not considered. Please ensure that information accompanies any notice under section 54C (1)(b) because if Mr McVicar is obliged to pursue enforcement action himself he will need the information to put before the Court in any application for an extension of time in which to lay an information.
Yours faithfully
Stephen Franks