[1] Mr Va’alele is subject to a sentence of six years imprisonment for burglary and assault with intent to rape. That sentence commenced on 12 November 2004 and will come to an end on 8 August 2010 after due allowance is made for time spent in custody on remand.
[2] Mr Va’alele is a citizen of Samoa. At the time of his imprisonment he was in New Zealand unlawfully. Immigration authorities served him with a removal order on 7 August 2004 with a view to removing him from New Zealand upon his release from prison.
[3] Mr Va’alele became eligible for parole on 10 August 2006 and appeared on 16 August 2006 before the New Zealand Parole Board in Christchurch which was headed by Judge Crosbie. Parole was declined on the basis that Mr Va’alele posed an undue risk to the community, the Parole Board finding that a community for this purpose embraced the community in Samoa as well as that in New Zealand.
[4] An application under s 67 of the Parole Act 2002 for review of the decision was conducted by Judge Tompkins was unsuccessful. At a subsequent hearing of the Parole Board on 15 August 2007, however, Mr Va’alele was granted parole from 14 November 2007.
[5] Mr Va’alele sought judicial review of the Parole Board’s decision of 16 August 2006. Panckhurst J refused this application on 2 April 2007, in a judgment now reported as Vaalele v Parole Board [2007] NZAR 396 (HC). Mr Va’alele appeals against that decision. Although the issue is now moot in light of the subsequent decision of the Parole Board, we have considered the point because of its potential impact on other prisoners.

Mr Va’alele’s contentions

[6] Mr Va’alele submits before us, as he did before Panckhurst J, that, under s 7 of the Parole Act, offenders must not be detained any longer than is consistent with the safety of the community. In his submission, an assessment of whether an offender is an undue risk to the safety of the community requires consideration of the likelihood of the offender committing further offences against the laws of New Zealand. He submits that the term “community” is likewise restricted to the New Zealand community.
[7] Mr Va’alele accepts that this would mean that offenders, who will not remain in New Zealand upon their release from prison, should be granted parole at the first available date as they will pose no risk to the safety of the New Zealand community. In his submission, any other interpretation would, however, mean that those in Mr Va’alele’s position risked not being granted parole at all. This is because they are ineligible for rehabilitation programmes and will not be subject to supervision by the New Zealand Probation Service upon release.

Discussion

[8] In his decision of 2 April 2007, Panckhurst J accepted that the primary meaning of the term “community” in the Parole Act is the New Zealand community but he held that it had a secondary meaning, being the community to which an offender is to be returned or deported. We agree with Panckhurst J’s analysis for the reasons he gives in his judgment.
[9] We also note that s 7 of the Parole Act does not just refer to the safety of the community. It also refers to the Board being satisfied that the offender will not, within the term of the sentence, pose an undue risk to any “person or class of persons”. These words are broad and there seems no reason why they would not cover persons in Samoa.
[10] In support of Panckhurst J’s interpretation, the respondent also referred us to the Queens Bench Division decision of R v Parole Board, Ex parte White which was reported only briefly in the Times Law Reports of 30 December 1994 at 687. White concerned an argument that was very similar to that of Mr Va’alele. Mr White was a citizen of Jamaica serving a sentence of life imprisonment for the manslaughter of his girlfriend. The Home Secretary had made a deportation order that was to take effect immediately on the conclusion of Mr White’s sentence.
[11] The relevant enactment at that time was s 34(4)(b) of the Criminal Justice Act 1991 (UK), which provided that the Parole Board was to consider the safety of the public in any decision as to release. Mr White argued that the only public that the Parole Board could consider was the public of the United Kingdom, to whom Mr White could not constitute any risk in view of his immediate removal to Jamaica on release from prison.
[12] Butler-Sloss LJ, finding the matter to be without authority or analogy, rejected Mr White’s argument on three grounds:

(a) There was nothing in the legislation to suggest that “the public” was limited to that of the United Kingdom. She said that, if the term was read too restrictively, there may arise situations where deportation to a nearby country (she gave the example of the Republic of Ireland) may not achieve any protection for the public in the United Kingdom because the parolee might return to the United Kingdom unlawfully.

(b) Mr White’s interpretation would deprive the Parole Board of the discretion that the Act intended it to have over the release of a prisoner prior to the end of the sentence. A prisoner, who was subject to a deportation order, would have not only a right to be considered for parole but a right to be paroled at the first available opportunity. There was no sign of parliamentary intention to fetter the Board’s discretion in that way.

(c) Any deportation order was not set in stone. The Secretary of State would always be obliged to re-consider his decision on humanitarian grounds and it was not his role to consider the protection of the public in doing so. That was the job of the Parole Board.

[13] Latham J agreed. In his view, the word “public” is to be equated to some such phrase as “any other person” (and we note that this phrase is similar to the words used in s 7 of the Parole Act). Latham J considered that the term “public” had been chosen to refer to the world outside whatever establishment the prisoner was incarcerated in.
[14] White was approved by the House of Lords in R (on the application of Clift & Hindawi) v Secretary of State for the Home Office [2007] 2 All ER 1 at [37]. In our view, the reasoning in White is also applicable to the New Zealand context and provides added reasons for upholding Panckhurst J’s decision.

Result

[15] The appeal against the decision of Panckhurst J is dismissed.
[16] As Mr Va’alele is legally aided, there is no order for costs.

Comment

[17] At [37] of his judgment, Panckhurst J referred to Mr Va’alele’s argument that, if community was given a broad meaning, the Department of Corrections should amend its policy and provide treatment programmes and interventions to offenders, regardless of whether they are subject to removal or deportation orders. Panckhurst J noted that Judge Crosbie commented on the same issue in giving the Parole Board’s decision. Panckhurst J said that, as the Department of Corrections was not a party to the proceeding, it was not appropriate for him to broach the question, “save perhaps to note the logic and merit of the argument”. We endorse these comments.

Solicitors:
G C Knight, Solicitor, Christchurch for Appellant
Crown Law Office, Wellington

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