• The courts have been asked to rule on who a probation report belongs to - the probation officer whose name is on it, or the Department of Corrections?
• The dispute arose from the removal of a probation officer's warnings about the risks posed by an prisoner who went on to attack a man with a bottle after being released on parole.
A probation officer suing his bosses for secretly removing safety warnings from a report to the Parole Board was proved right when the inmate attacked a man with a bottle just months after being released from prison.
The prisoner was jailed for attacking a man with a hammer in 2012, causing life-threatening injuries and previously stuck a knife in someone's ear. His probation officer Stan Gilmour assessed Rere Pumipi to be a high risk to the safety of the public but the paragraphs detailing the risk factors were removed from his probation report by his bosses.
These included references to alcohol and drug use, anger management and "deliberate steps to obtain weapons and use them".
As a result, Mr Gilmour took legal action against the chief executive of the Department of Corrections in the High Court at Wellington where the case was heard yesterday.
He sought declarations that the deletions made without his knowledge or approval, to the risk assessment portion of a report to the Parole Board bearing his name, were unlawful.
Pumipi, 22, was not released at his first appearance before the board but at a subsequent appearance six months later. The board was presented with a computerised risk assessment which categorised Pumipi as a moderate risk of reoffending.
Within months of release, Pumipi cut off his bracelet, absconded from the address he was required to stay at, assaulted a man with a bottle, and went on the run.
Whangarei District Court records shows he was sentenced on the new offending in July for assault (six months imprisonment), assault with a weapon (three months), wilful damage (two months) and two counts of breaching his release conditions.
Mr Gilmour's lawyer, Warren Templeton yesterday told Justice Rebecca Ellis that statutory obligations make public safety paramount and require that the Parole Board have "all relevant information".
The Parole Act and the Corrections Act required reports to have robust risk assessments.
Mr Templeton told the court the allocated probation officer had a "special relationship" with the board and was the only person who went "into the field" to assess risk.
His client had run up against an agenda to see young offenders released into the community as soon as possible. Pumipi's prison case managers leaned towards release, said Mr Templeton. "Mr Gilmour was the opposite. They didn't like it so it got chopped. That is what was driving the criticism [of his contribution]. Mr Gilmour ran foul of prison case managers who had a different agenda."
The department denied bias. It was desirable that prisoners be released at the earliest appropriate time that is consistent with public safety, lawyer Daniel Perkins told the court.
Mr Templeton earlier told the Herald that his client sued after feeling his internal complaints were stonewalled. "A key part of Mr Gilmour's concern was his view that he could be held responsible concerning the risks the prisoner posed to the public when these were removed without his knowledge or consent."
But Mr Perkins told the court that in such cases responsibility was sheeted home to the chief executive of Corrections, not individual probation officers.
Mr Gilmour is also seeking a declaration that his original version complied with the requirements of the law while the report ultimately filed with the board did not.
Mr Perkins submitted that parole reports are authored by the department as a matter of law. "It represents a corporate view, not the view of any individual contributor." The duty to prepare the report and, ultimately, its content lay with the department.
"If a probation officer refuses to prepare such a report to the Department's standards, it is not unlawful for the work to be reassigned."
He also noted that Mr Gilmour was not listed as a co-author on the report. Pumipi's prison case manager was listed as "Report Writer", and Mr Gilmour as "Probation Officer".
Mr Gilmour was allocated to assess the suitability and safety of the offender's release proposal.
But Corrections argued this was to inform the board of a prisoner's progress towards "rehabilitative and reintegrative needs ... the suitability of their release proposal, and to propose possible special conditions."
"It is not to venture the Department's or an individual probation officer's opinion of the offender's risk to community safety, or of re-offending if released."
Corrections did not accept that Mr Gilmour's report was sanitised but contained much the same information via the inclusion of Pumipi's sentencing notes, the police caption summary and other material, Mr Perkins said.
The Parole Board members had the experience and expertise to assess risk using this information and by questioning the prisoner, said Mr Perkins. Such a task was beyond the qualifications of a probation officer.
The hearing could prove to be a test case as Parliament had not prescribed what should be in the reports. Rather the content had been agreed between Corrections and the Parole Board. Corrections submitted there was no justification for the court to add "gloss" to the statutes by specifying what reports to the board should contain.
The judge said there seemed to be some confusion in the statutes between the responsibilities of probation officers and the Department of Corrections but she struggled with the argument that by dint of some special relationship with the Parole Board that the probation officer could speak with a voice independent of the department. Probation officers were employees of the department, she noted.
Justice Ellis reserved her decision.
PROBATION REPORT: WHAT WAS REMOVED
Fifteen paragraphs were cut after the report had passed the department's quality assurance check.
Deleted paragraphs included:
"Alcohol and drug use [had not been addressed and] may be deeply ingrained ... Anger management has not been addressed ... This needs to be looked into before his release as his anger is not of a domestic spontaneous nature rather ... he takes deliberate steps to obtain weapons and use them.
It is strongly recommended that Pumipi undergo a psychological evaluation ... which would give further insight into his attitudes [assist with development of ] management strategies ... help assessment of his risk of harm to others and his risk of reoffending which is presently assessed for both as high."
• October 2013: Gilmour allocated to do the probation section of a parole assessment report on Pumipi who had applied for release on parole with an eligibility date of January 2014.
• 5 December 2013: Gilmour completes report, forwards for checking, removes victim information at request of service manager.
• 6 December 2013: Service manager signs report off as meeting quality assurance standards.
• 10 December 2013: Service manager requests Gilmour makes further changes and deletions, in particular to risk assessment section. Gilmour refuses on basis report had been finalised and quality checked.
• 7 January 2014: Pumipi appears before Parole Board.
• 24 February 2014: Gilmour discovered that on 13 December 2013 the report had been extensively changed by another probation officer, including the deletion of 15 paragraphs. On or about the same date, the service manager asked Gilmour to agree to a note being put on the file to the effect that he agreed to the changes made. Gilmour refused and made a complaint.
• 24 May 2014: Gilmour found two computer notes had been entered, apparently authored by the Service Manager stating that changes were made to the report by another probation officer on that manager's instructions and that the author was not Gilmour even though the system "still shows him as the author", and that the report had been "finalised by case managing staff " at Ngawha Prison.
• 21 July 2014: Pumipi released on parole after second appearance before the board.
• February 2015: Pumipi disappears from address his parole conditions require he reside at. Dissatisfied with the progress of his complaints, Gilmour sues Corrections.
• July 2015: Pumipi convicted and returned to jail for assault, assault with a weapon, wilful damage and two counts of breaching parole conditions. The sentences ranged from two to six months jail, to be served concurrently.
• 27 April 2016: High Court hears arguments about whether changes to Gilmour report were unlawful.