In 1997, William Bell was sent to prison for five years nine months after he attacked and almost killed an attendant at a petrol station.  At the time of this assault, he already had 102 convictions for a raft of offences including theft, fraud, burglary, aggravated robbery, assault, trespass, and possession of drugs.   He was released in July 2001 after serving 3½ years.  Based on the law at the time, he was set free after serving two-thirds of his sentence, and the Parole Board had no say in the matter, other than deciding what release conditions to impose on him.

Bell managed to find work experience at the RSA in Panmure – without the permission of his probation officer.  However, staff at the RSA apparently didn’t trust him and after only two weeks, he was ordered to leave.  Bell had experienced rejection for most of his life and couldn’t handle it. Two months later, he came back and stole $12,000. In the process, he bludgeoned and shot three people to death, and seriously injured a fourth – Susan Couch.

What the investigation missed

The investigation which followed blamed understaffing, low morale and poor management within the Mangere Probation Service.  It also blamed the police for failing to act when he committed a minor offence a month before the murders.  The focus of the investigation was on what happened after Bell was released. The fact that he had been incarcerated for 3½ years and not been required to do any rehabilitation programmes in prison was completely ignored. The most significant oversight was that he was not required to attend treatment for his alcohol and drug problem.

He obviously had one. In addition to telling prison staff about his drinking, Bell came from a family with gang connections where binge drinking and drug use were part of daily life.  According to witnesses who testified at his trial, Bell was up all night drinking and smoking cannabis before the murders which occurred at about 8.00am the following morning.   He admitted he was using methamphetamine and apparently told his family he ‘blacked out’ while inside the RSA.

In other words, Bell had a history of alcohol and drug use which began long before he was sent to prison for attacking the service station attendant in 1997. Presumably, he continued smoking cannabis in prison. At the time of his rampage at the RSA four years later, he was drunk, stoned and high on methamphetamine – and had been awake for over 24 hours. Such conditions are clearly not conducive to impulse control. The combination of three different drugs in his system, combined with a lifetime of abuse, abandonment, and low self-esteem turned out to be lethal.

What Corrections failed to do

The most damning part of this story is that the Corrections Department was well aware that Bell’s offending was alcohol and drug-related – but did nothing about it. He was supposed to see a psychologist and have alcohol and drug treatment when he got out. Common sense dictates that Bell should have seen a psychologist and had alcohol and drug treatment while he was still in prison – rather than leaving this up to an understaffed and demoralised Probation Service to organise once he got out.

But no treatment was provided, and the Corrections Department failed to provide the Parole Board with an alcohol and drug assessment describing the extent of his addictions.  At his hearing, the Board members were effectively in the dark – ‘flying blind’ to quote Judge Carruthers. If an AOD assessment had been provided even at that late stage, the Board could have released him directly to a residential treatment programme in the community.  Instead, he was released to unsupervised accommodation in Auckland where he was free to drink and take whatever drugs he could find.

The point is that the mistakes made once Bell was released may never have occurred had the Corrections Department made better use of his 3½ years in custody. The Department’s failure to address his problems with substance abuse in prison far outweighed subsequent mistakes made by the Mangere Probation Service on his release. The failure to monitor Bell in the community simply added to a long chain of errors – and highlighted a systemic failure by Corrections to address addiction issues in prison. If he had been required to attend treatment in prison, and/or if he had been released directly into a residential programme in Auckland, William Bell’s victims might still be alive today.  And Susan Couch wouldn’t have had to waste ten years of her life trying to sue the Corrections Department for damages.

On January 7, the New Zealand Herald reported the story of James Whenuaroa – sentenced to prison for six weeks for stealing a bottle of orange juice from a supermarket. He told the judge he took it because he was hot and thirsty. Perhaps the most pertinent part of the story was that Mr Whenuaroa has 350 previous convictions.

What the Herald didn’t report was that Mr Whenuaroa is a chronic alcoholic who has a history of drinking methylated spirits and as a result, has some measure of cognitive impairment. Virtually his entire history of offending has occurred because of his drinking – mostly for shoplifting alcohol, being drunk and disorderly and willful trespass. He has been sent to prison nearly 40 times in the last 20 years; he’s usually in and out three or four times a year. When he gets out, he starts drinking again the same day.

The battle for a neuropsychological assessment

Mr Whenuaroa was referred for an alcohol and drug assessment at least three times – in 2006, 2007 and 2008. After interviewing him in 2006, I recommended to the Court that Mr Whenuaroa should have a neuropsychological assessment (to see what he’s capable of learning) and be referred to Moana House which is a long term rehabilitation programme in Dunedin. The judge ignored the recommendation and sent Mr Whenuaroa to prison instead.

In 2007 I again recommended a neuropsychological assessment. This time the judge agreed, but when Mr Whenuaroa appeared for sentencing two months later, the assessment had not been done as the psychologist was too busy. Moana House refused to accept him without one. He was released on to the street and relapsed immediately. Not surprisingly Mr Whenuaroa re-offended soon afterwards and was remanded in prison once again.

The assessment was finally completed nearly a year later. However, this time the Court refused to release a copy of it either to his lawyer, to Moana House or to myself. Once again, Mr Whenuaroa was released into the street and relapsed immediately. Not surprisingly, he reoffended and appeared in court again in 2008. Finally, the court agreed to release a copy of the psychologist’s report to those who were trying to help him and Mr Whenuaroa eventually made it to Moana House. However, he left after a few weeks as he wanted to go and see his alcoholic girlfriend in Taupo.

The need for compulsory treatment

Over the years Mr Whenuaroa has been referred to residential treatment programs a number of times. But because of years of alcohol abuse, he has significant memory problems. His short term memory is so poor he struggles to remember anything he was told more than 30 minutes before.  So even when he attends rehabilitation, he can’t remember what he is taught. Because of his condition, he needs long term treatment and long-term support afterwards. But he never lasts the distance. He gets frustrated and generally walks off after a few weeks. And no one makes him stay.

Mr Whenuaroa can be made to stay in prison – for a few weeks at a time. That’s easy to achieve – even though rehabilitation is not available to the 7000 prisoners a year given short sentences.  Let’s not forget that 80% of those sent to prison each year are given short sentences and our prison system simply doesn’t cater for them. With a few exceptions, only those given a sentence of more than two years are allowed to attend rehabilitation programmes.

So although Mr Whenuaroa has been forced to stay in prison 40 times, he has never been ‘forced’ to complete a treatment programme. That’s just crazy. Mr Whenuaroa could be compelled to stay in treatment – by committing him to a rehab programme in the community under the Alcohol and Drug Act or the Mental Health Act. To put that in place takes a bit of time, thought and energy but Mr Whenuaroa has never been committed. Instead the justice system recycles him – in and out of prison, and occasionally, in and out of rehab.

The $3 million cost

Recycling is expensive. He’s already 47 years old and as a lifetime offender, he will end up costing the taxpayer more than $3 million in police, court, prison and legal aid costs. Once his health deteriorates, he will need even more assistance – from the health system. If he was compelled to attend long term treatment for 18 months under the Alcohol and Drug Act, that might cost about $50,000. Not a bad investment – both for Mr Whenuaroa and for society. All it would take is for the justice system to have enough compassion and resolve to find out what Mr Whenuaroa really needs – instead of sending him to prison for stealing a bottle of orange juice.

Graeme Burton has murdered two people. In 1992 he was sentenced to life in prison for the murder of Paul Anderson who was working as a lighting technician in a nightclub. Burton had been drinking and was found to be under the influence of six different drugs at the time.  He was released on parole after 14 years in prison without attending treatment for his drug addiction.  He soon relapsed, and during the next six months he used stand-over tactics against known drug dealers to obtain methamphetamine. He shot and killed Karl Kuchenbecker in the hills of Wainuiomata apparently hoping that police would then kill him. He was shot in the leg which subsequently had to be amputated.

Burton’s Background

Graeme Burton was adopted as a baby by an older couple.  His foster father died when he was only three, leaving his foster mother to raise him on her own.  As a result of put downs and constant criticism, Graeme grew up feeling insecure and angry with little sense of attachment to his adopted mother. He began using drugs at the age of 15 – and no doubt found they relieved much of his underlying distress.

The TVNZ documentary, ‘Beyond the Darklands’, also highlighted Burton’s use of LSD, cannabis, alcohol and prescription pills;  he used to break into chemist shops looking for benzodiazepines and committed burglaries to get money for drugs. From the age of 17, he was using drugs almost on a daily basis; by the time he was 21, he had 91 convictions for property, fraud and other drug-related crimes.

Burton’s frustrations came to a head in 1992, after he was refused entry to a nightclub. He took his resentment and rage out on Paul Anderson who worked at the club, stabbing him to death in an alcohol and drug fuelled frenzy. He was said to be ‘out of it’ on six different drugs at the time.

Burton was sentenced to life and continued using drugs in prison.  He spent 14 years behind bars but managed to avoid returning positive drug tests in the last three years before he was paroled.   He was released into the care of his biological mother whom he barely knew. She’d been living in Australia but agreed to come back to New Zealand for one month to assist her son’s ‘reintegration’.

This plan was doomed from the start. Soon after he was released, Burton started using methamphetamine and anything else he could get his hands on. His mother went back to Australia and he spent the next few months using stand-over tactics and assaulting drug dealers to feed his addiction.  Burton’s last assault on a Wellington drug dealer to obtain more methamphetamine was only three days before he killed Karl Kuchenbecker in January 2007. Altogether, his drug-fuelled rampage lasted six months before it came to an end in the hills of Wainuiomata.

Mistakes made while Burton was in prison

While in prison, Burton attended a rehabilitation programme targeting his propensity for violence – but was not required to attend treatment for his drug addiction. Numerous psychologists and psychiatrists who interviewed him before his release pointed out that his addiction had not been addressed. At the Parole Board hearing in June 2006  (at which he was released), the Board had six different reports all of which recommended alcohol and drug assessment and treatment, or identified relapse to drug use as a risk factor.  The Corrections Department refused to provide one.

The Department even ignored Section 43 (1a) of the Parole Act which requires it to provide the Board with all relevant information about factors which contribute to an inmate’s offending.  Since the Department was well aware that Burton’s offending was alcohol and drug related and since six different reports all recommended further alcohol and drug treatment, in Graeme Burton’s case,  the Department clearly neglected its statutory responsibilities.

Burton’s drug addiction was not the only factor involved in his offending. The psychologists who assessed him said he had a psychopathic personality which pre-disposed him towards violence.  To address this, in 2004, he was required to attend the Violence Prevention Unit (VPU) in Rimutaka, and some of the psychological reports indicated he made some progress on that programme.  But even if Burton had learnt anything in the VPU, whatever he learnt would have been forgotten as soon as he got drunk or took methamphetamine. Because his drug addiction was never treated, other attempts at rehabilitation were a complete waste of time.

The flawed focus of subsequent investigations

Once the subsequent investigations began into what went wrong, the focus was mainly on the mistakes made by the Probation Service and the Police after Burton’s release.  Mistakes were certainly made, but the crucial ones happened long before Burton was paroled. They were made over the entire 14 years that Corrections had him in their custody. The Department failed to treat his drug addiction, ignored the recommendations of six expert reports and failed to provide the Board with an alcohol and drug assessment despite a statutory obligation to do so.

In other words, the Department released an untreated drug addict into the community without a reintegration plan which addressed one of the main factors in his offending. Since Burton wasn’t treated in prison, on release he should have been sent to a residential treatment centre  where he would have been under constant supervision by staff for up to 18 months and drug tested regularly; if he relapsed, or misbehaved, he could have been recalled to prison immediately. If a proper reintegration plan such as this had been put in place, the outcome of this case could have been very different.

In saying that, Burton’s case is not unusual. Ninety per cent of prisoners have problems with alcohol and drugs and most are released without attending any treatment. The recidivism rate in New Zealand is 52% (return to prison) within five years. The lack of addiction treatment in prison and the failure to provide accommodation and support on release leads almost inevitably to relapse and re-offending. It sets prisoners up to fail. Graeme Burton is one of thousands of prisoners released every year who are set up to fail.

A story in the Taranaki Daily News reports that 33 year old sickness beneficiary Steven Bunyan, has just been sent to prison for the 38th time. He was jailed for assaulting a family member (apparently his mother), contravening protection orders, breaching court release conditions and repeat drink-driving. He was jailed for 10 months and disqualified from driving for 12 months and one day.

Bunyan’s mother wrote in her victim impact statement that he reverted to his old ways when staying with her in Okato, that he was taking drugs and ‘always spaced out’. She said she had to think about the effect on the wider family. Judge Roberts noted Bunyan had nine previous convictions for assaulting women and his mother was one of three women who had protection orders against him. The judge said it was clear his problems were more than just alcohol-related and that he had anger issues.

Untreated mental health problem

No kidding!! It seems fairly obvious Bunyan has a mental health problem as well as a drinking problem. What possible benefit does the judge think this man – or society – will gain by sending him to prison again? He needs a psychiatric assessment and dual diagnosis treatment – in other words, integrated treatment for his mental health problems as well as his addictions.

There are at least three reasons Bunyan’s not getting this kind of treatment.

Short sentence syndrome

Let’s assume he first went to prison at the age of 20. If he’s been to prison 37 times before and he’s only 33, that means he’s been in prison an average of three times every year of his adult life.  In other words, Bunyan is a victim of the short sentence syndrome – he gets released halfway through each sentence (that’s the law for anyone given a sentence of less than two years) and never becomes eligible to attend rehabilitation in prison. (He’s probably never appeared before the Parole Board either – that requires a sentence of more than two years). When he gets out, he starts drinking and taking drugs immediately and before you know it, he’s breached a protection order or assaulted someone, and is back before the judge.

Judicial failure to assess

That leads to the second reason he’s not getting the treatment he requires. Judges have the capacity to order psychiatric assessments and alcohol and drug assessments prior to sentencing. They can even delay sentencing until an offender has completed a treatment programme. But they rarely do. AOD assessments are ordered for only 5% of offenders – even though 80% of all offending occurs under the influence of alcohol and drugs.

The ‘bad’ vs ‘sad’ approach

In Bunyan’s case the judge seems aware that he has a problem with alcohol – but doesn’t seem to be aware that Bunyan has a mental health problem. Why? Probably because Probation Officers are not trained to screen offenders for mental health problems. Probation reports are likely to describe Bunyan as a recidivist offender who repeatedly breaches court orders and for whom the only appropriate sentence is imprisonment.

Given that he’s been in the system for most of his adult life, it’s quite on the cards Bunyan attended rehab somewhere along the way. If he did, it obviously didn’t help. Probably the main factor leading to treatment failure is actually the failure of the treatment provider to assess and diagnose the patient’s co-existing mental health disorder.

Let’s say Mr Bunyan was seriously abused as a child, bullied at school and has undiagnosed post-traumatic stress disorder and lifelong feelings of depression. Let’s assume that at the age of 14 he started smoking cannabis and found this provided some relief from his symptoms – which included nightmares and hyper-arousal. At age 16 he started binge drinking and 17 years later (now aged 33), he’s dependent on both and has a short fuse – which leads to serious problems in his relationships with women.

Is rehab going to help? Not likely. Such a person needs a psychiatric assessment and a treatment plan which addresses both the underlying mental health problems and the addiction. Did any of this abuse or trauma happen to Mr Bunyan? I don’t know. But something sure did. The kind of problems he has don’t come from nowhere. Unfortunately, the justice system hasn’t taken the time to find out. It just chucks him back in prison as if more punishment will solve the problem. The sentencing  judge didn’t even bother to impose any release conditions on him.

The cost of failure

But let’s not forget that spending a year in prison costs the taxpayer $90,000. In 13 years, it appears Mr Bunyan has so far cost the taxpayer about $1 million. If this keeps up until he’s 50, it will cost nearly $3 million. What a complete and utter waste of money.  A private psychiatrist might charge $2,000 to do an assessment. Eight weeks treatment would cost about $6,000. Treating Mr Bunyan’s problems from a health perspective instead of a justice perspective might actually solve the problem – and save the taxpayer a fortune. No wonder Charles Chauvel wants to abolish short prison sentences.

Mr Findlay (not his real name) was referred for an alcohol and drug assessment by the Parole Board in March 2009. At the time of the assessment, he was 39 years old and had been in prison for a total of 20 years. He was serving a life sentence for stabbing a young man to death in a street fight just a few weeks after his 16^th birthday. At the time of the assessment, he had been released on parole twice and recalled twice, and was seeking to be released on parole for the third time.

History of offending

Mr Findlay started drinking at the age of 13, and occasionally smoked cannabis. Prior to the murder, he already had eight convictions in the Youth Court – for shoplifting, burglary and theft from cars. He was already getting into in trouble and a week before his 16^th birthday he was convicted of aggravated assault. Six weeks later he got into the fight in which the other young man died.

Once Mr Findlay was sent to prison, he smoked cannabis virtually every day. He spent ten years in prison before being released on parole. Once he got out, he carried on smoking cannabis but also started binge drinking. In the next five years, he incurred a further 12 convictions mostly for fairly minor offending (careless driving and fighting in a public place) before being recalled to prison again. He served another two years before being released a second time.

When Mr Findlay got out this time, he started using (and dealing) methamphetamine. He incurred another three convictions – for disorderly behaviour, dangerous driving and possession of methamphetamine – and was recalled to prison again. He is still in prison six years later.

Family background

Mr Findlay said his father was involved with the Mongrel Mob.  His mother did not want him raised in a gang environment, and gave him to his grandmother to look after.  He said his childhood was fairly normal up to the age of six – when his grandmother died.

After her death, Mr Findlay went to live with his mother for the first time. By this stage, she had a new partner and four more children.  He said his mother and stepfather both drank heavily and his stepfather abused and tortured him. He described an incident in which his stepfather forced him to hold a clothes peg between his teeth and then poured water down his throat – somewhat akin to water boarding.  He said his stepfather sometimes made him lie in the bath full of cold water for hours on end and forced his mother to make sure he stayed there.

Mr Findlay described another incident in which his stepfather threatened to kill him by shoving an electric jug cord down his throat while it was plugged into the wall. During this period of his life, he was beaten and bruised and often went to school with no breakfast.  He began stealing food off other children. Not surprisingly, his teachers became concerned about his welfare and took him to a doctor. He was diagnosed with malnutrition and a hernia and admitted to hospital.

Mr Findlay’s stepfather forced his mother to say she was responsible for Mr Findlay’s scars and bruises, and the police subsequently charged her with assault.  He was removed from his mother’s care and placed in a foster home.

Over the next few years, Mr Findlay lived in more than a dozen different foster homes and was sexually abused. He shifted from one school to another.  At the age of 13, he was sent back to his mother – who by this stage was no longer living with her abusive partner. However, Mr Findlay said that because his mother never protected him from the abuse, he hated living with her and ran away. He was sent to two different boys’ homes and at age 14, was placed in yet another foster situation. He says he was still in foster care when he was sent to prison at the age of 16.

Conclusion

As a result of being tortured and abused as a child, Mr Findlay appears to have developed post-traumatic stress disorder (PTSD). A month before the murder (after being charged with aggravated assault), he was interviewed by a probation officer and a psychiatrist. Neither of them made any mention of the abuse or the torture and the psychiatrist failed to make a diagnosis. An opportunity to intervene was lost and a month later, Mr Findlay killed someone.

Once in prison, three different psychological reports on Mr Findlay all described the way he was treated as ‘exposure to pathogenic care’ – meaning he was treated so badly, it was likely to lead to physical harm or ‘disease’. But once again, there was no mention of sexual abuse, no diagnosis and Mr Findlay never received any therapy.

Despite spending 20 years in prison, and seeing more than a dozen psychologists over this time, Mr Findlay was never diagnosed with PTSD and never required to attend drug treatment – either in prison or on the two occasions he was released on parole. However the three most recent psychological reports had all advised the Corrections Department and the Parole Board that he needed drug treatment.  The Department ignored the recommendations until 2009 – when the Board finally ordered an alcohol and drug assessment to be done.

Recommendation

I interviewed Mr Findlay and concluded that he appeared to have PTSD at the time of the murder and that his subsequent offending history had been driven by his mental health problems and his addictions – none of which had been treated despite spending 20 years in prison.

I recommended that Mr Findlay should attend the Drug Treatment Unit in prison. Mr Findlay has now completed that programme and said he gained a lot from it. He appears to have developed increased insight into himself and into the factors which led to his offending. He appeared before the Parole Board again in 2011, and once again, is working towards release. Eventually, he hopes to be sent to a supervised half-way house in the community.

Footnote on costs

 Before attending the Drug Treatment Unit, Mr Findlay had been in prison for nearly 20 years – at a cost of about $90,000 a year. In other words, nearly $2 million was spent keeping him in prison before he was required to attend a rehabilitation programme targeted at his primary offending issue (alcohol and drug dependence). During those 20 years, he was released twice with his addictions untreated and relapsed immediately.