KEY POINTS:
Did he or didn't he? The Parole Board interpreted Brad Shipton's answers to its questions as, effectively, a confession to rape. Shipton denies such an admission "contrition is hardly a confession," his mother said.
But does it matter?
It does to his victim and other aggrieved women from his past, but to the Parole Board?
It shouldn't says barrister Gary Gotlieb, a former president of the Auckland District Law Society.
There should be no requirement, regarding parole decisions, to acknowledge guilt.
"When you have had someone who has defended a charge at trial, given evidence, and then [the board] say `we are not going to let you out because you are not prepared to admit you are guilty,' I say to them `this is a nonsense, he's always said he is not guilty [but] he is accepting he was found guilty'."
There are many cases where people later confess, Gotlieb says, but there are instances, too, where a prisoner's denial is genuine.
Where would the requirement of an expression of guilt leave parole prospects for the likes of David Dougherty and Rex Haig, both eventually cleared? Peter Ellis did not want parole if it involved confessing to what he maintains he did not do.
Wellington barrister Greg King questioned the board's interpretation of Shipton's answers. "If I was on the end of that judgment as a lawyer, I would be absolutely furious."
The board said Shipton (sentenced to eight and a half years) acknowledged he hadn't asked the victim's permission but verbal consent is but one _ and a rare one at that _ form of consent.
A Court of Appeal declaration in August 2006 clarified what the Parole Board can take into consideration. It said the only test for the board to apply was whether the prisoner posed an undue risk to the safety of the community. Deterrence was for the court to consider in setting nominal sentence, minimum periods of imprisonment and deciding whether to grant leave to apply for home detention, but were not relevant to the Parole Board.
The background was an earlier Appeal Court judgment regarding parole being declined to Alan Hawkins, a high-flying businessman convicted of fraud following the 1987 sharemarket crash.
In denying Hawkins parole, the board took deterrence into account, reasoning that public safety would be compromised because the deterrent component of his sentence would be significantly reduced if he was released after a third of his six-year sentence.
In 1995, the court upheld the decision to decline parole to Hawkins and thus allowed deterrence to be considered in parole decisions.
But in 2006 it overturned its earlier ruling, noting the regulatory framework had changed, with the courts now able to set minimum imprisonment and grant leave to apply for home detention. Which leaves the board to assess only the likelihood of Shipton reoffending.
Lawyer Michael Starling, who brought the Appeal Court challenge, said on what he has read of the Shipton case, although Shipton denies acting criminally, he appeared to acknowledge acting badly which might indicate he had gained some insight, and in turn mean he was a reduced risk of reoffending.
A psychologist's report assessed Shipton as being a low risk of reoffending.
The Parole Board, however, said it was not satisfied he did not present an undue risk, and has requested another psychologist's opinion regarding his risk and need for therapy, and adjourned the case until September.
Co-offender Bob Schollum (sentenced to eight years) has won an appeal against the board's decision in April to keep him in prison. His appeal succeeded on one of six grounds _ that the board had not given due weight to support and supervision available to him on release.
Among grounds that failed were that the board had made "a moral judgment" and that it had refused parole solely on Schollum's denial of his offending.
The judge who ruled on Schollum's appeal said the board found Schollum still posed an undue risk not only because of his denial of guilt, but for other reasons such as his lack of remorse and his lack of empathy for the victim.
The board is to rehear Schollum's application for parole as soon as possible.
Peter McNamara, another co-offender, was freed after serving two and a half years of a seven-year sentence. He had shown no remorse and maintained his innocence.
