Wilson v New Zealand Parole Board [2012] NZHC 2247 (3 September 2012)

Last Updated: 10 September 2012

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

CIV 2012-409-1722 [2012] NZHC 2247

BETWEEN STEWART MURRAY WILSON Plaintiff

AND NEW ZEALAND PAROLE BOARD First Defendant

AND THE CHIEF EXECUTIVE OF DEPARTMENT OF CORRECTIONS Second Defendant

Hearing: 27 August 2012 (Heard at Wellington)

Counsel: A J McKenzie and L Drummond for Plaintiff

F M R Cooke QC and L Fong for First Defendant

A M Powell and C Brown for Second Defendant

Judgment: 3 September 2012

_{JUDGMENT OF RONALD YOUNG J}

Introduction

[1] The plaintiff, Mr Wilson has been in prison for 18 years. The law required that he be released on Wednesday, 29 August 2012. Mr Wilson will then be on parole until early December 2015. The Parole Board have set special conditions of parole for Mr Wilson. In these judicial review proceedings, Mr Wilson challenges a number of these special parole conditions. He says these parole conditions are illegal, being in breach of s 15 of the Parole Act 2002; illegal because they are in breach of the New Zealand Bill of Rights Act 1990; and that some of the conditions

_{are disproportional, uncertain, ambiguous, unreasonable or irrational.}

STEWART MURRAY WILSON V NEW ZEALAND PAROLE BOARD HC CHCH CIV 2012-409-1722 [3

September 2012]

[2] At the end of the hearing on 27 August, I advised counsel that I dismissed the plaintiff’s challenges save the challenge relating to Corrections’ interpretation of the Parole Board’s special condition relating to a reintegration programme. After discussion with all counsel, it was agreed the reintegration programme condition would, in view of Mr Wilson’s pending release, be sent back to the Board on Tuesday, 28 August for reconsideration in view of my comments. I advised counsel then that I would later give my reasons for dismissing most of Mr Wilson’s review application and upholding his challenge to the detail of the reintegration programme.

Background

[3] Mr Wilson was sentenced in 1996 to 21 years’ imprisonment for very serious sexual offending involving women and children, violent offending involving women and children, including cruelty to children, stupefying adults and bestiality. He was not eligible for preventive detention but the Judge at sentencing observed that he would have imposed preventive detention had it been available. He was in custody awaiting trial.

[4] When Mr Wilson was sentenced, the Criminal Justice Act 1985 provided that Mr Wilson would be entitled to be released on parole after completing two thirds of his sentence. However, the Parole Board could require him to remain in prison for the whole of any sentence he was serving for serious sexual offending if they were satisfied that he would be likely on release to commit a further such offence.1

[5] As a result of the 2002 Parole Act which significantly changed parole eligibility, the following dates were applicable to Mr Wilson; parole eligibility date

2 December 2007; final release date (the two thirds calculation) 2 September 2008;

applicable release date if orders were made preventing his early release

_{1 September 2012; sentence end date 1 December 2015.}

1 Criminal Justice Act 1985, s 105.

[6] Similar to the power under s 105 of the Criminal Justice Act, s 107 of the Parole Act2 provided that the Board had power to require Mr Wilson to remain in prison through until his final release date if he qualified in terms of the statutory test.

[7] When Mr Wilson became eligible to be considered for parole Corrections applied to the Parole Board3 for Mr Wilson to remain in prison until his applicable release date. Subsequent orders were made by the Parole Board so that his actual release date became 1 September 2012. The s 107 order was reviewed six monthly. Mr Wilson has challenged some of the Board’s s 107 orders.

[8] Mr Wilson’s actual release date was 30 August 2012. Section 52(2) of the Parole Act provides that a parolee cannot be released on a non-release day. Thursday to Sunday of each week are non-release days and so 1 September is a non-release day. Mr Wilson must be released on the nearest preceding release day which is Wednesday, 29 August 2012.

[9] Mr Wilson has served 18 years’ imprisonment but his sentence was 21 years. The three year difference arises from the sentence imposed by the High Court at the sentencing in 1996 for wilful treatment of a child. Orders under s 107 that an offender serve his full sentence of imprisonment may only be made with respect to specified offences. Cruelty to a child was not a specified offence. And to Mr Wilson by virtue of the s 107 orders made could not be required to serve his full term of imprisonment for that offence.

[10] The first occasion in which the Parole Board considered making an order under s 107 was at its meeting of 16 December 2008. The Board had to be satisfied that if Mr Wilson was released he would, before the applicable release date, be likely to commit a specified offence between the date of release and the applicable release

_date.

2 _{Parole Act 2002, s 107.}

3 Parole Act 2002, s 107.

[11] The Board had before it extensive evidence from Psychological Services, parole assessment reports, as well as the sentencing notes of Heron J from 1996. No evidence was called by Mr Wilson.

[12] The Board was satisfied that the s 107 test had been met because of the nature of Mr Wilson’s offending which extended over 25 years which had a series of disturbingly common features. As the Board said:

Mr Wilson took women and girls, often their daughters, into his home on the pretext of friendship. The victims, and there were many of them, were often vulnerable. Once a relationship was established they were subject to cruel and degrading treatment. They were subject to assaults, indecencies and often raped. Mr Wilson then took control of their lives to an extraordinary degree with compliance being obtained by force or threats of force.

[13] I would add compliance by victims was also obtained by their drugging.

[14] The Board noted Heron J’s comments that he would have imposed a sentence of preventive detention had he been able to. That confirmed their view that the sentencing Judge saw Mr Wilson as someone at a high risk of reoffending.

[15] The Board said that since sentencing, psychologists had consistently assessed Mr Wilson as posing a high risk of reoffending. Further, Mr Wilson had done nothing to ameliorate his high risk. He denied his offending and refused to engage in any form of offence related treatment. He had no insight into his offending and did not accept responsibility for his behaviour. In support of his application for parole, Mr Wilson proposed release plans that were unrealistic and undeveloped.

[16] The Board continued to reassess Mr Wilson six monthly from the date of the s 107 order through until 2012. On each review the result was the same. Mr Wilson continued to refuse to accept responsibility for his offending and refused to accept treatment. Psychologists continued to assess Mr Wilson as at a high risk of reoffending. And so it was on 7 August 2012, with that extensive background of reporting, that the Board came to consider Mr Wilson’s release conditions due

1 September 2012.

[17] The Board had a further extensive report from Corrections. The report suggested 21 conditions attached to Mr Wilson’s parole. Each condition was identified together with what Corrections described as a rationale for each proposed special condition.

[18] The Parole Board rejected five of the conditions and imposed an additional condition of its own; that Mr Wilson attend a monitoring and compliance hearing before the New Zealand Parole Board in December 2012. In addition, the Board modified some of the conditions. The conditions deleted were:

(a) The curfew condition. Corrections asked that Mr Wilson be required to remain at his approved address on the Whanganui Prison property between 8.00 p.m. and 9.00 a.m. The Parole Board said:

We have not imposed a curfew as we think it is unnecessary given the electronic monitoring.

(b) The third proposed condition which related to loitering or being within the grounds of schools, preschools, parks, playgrounds or other public areas where children under 16 were likely to congregate. The Board considered that other conditions adequately covered contact with anyone under 16 years of age. This clause was, therefore, effectively repetitious.

(c) The media contact clause. The Parole Board deleted the clause that Mr Wilson was not to have any contact with the media. In discussion the Parole Board indicated it did not consider that this clause had relevance to any of the grounds upon which parole conditions could be lawfully imposed. They thought such a restriction was an unjustifiable limit on free speech.

(d) The Parole Board deleted the provision that Mr Wilson was not to have any contact or association with prisoners or prison visitors at the prison. The Board considered this would be especially difficult given Mr Wilson’s house was on prison grounds.

(e) Finally, the Parole Board deleted the provision that Mr Wilson was not to own or be in possession of any animal, domestic otherwise.

[19] The parole conditions imposed by the Parole Board with respect to

Mr Wilson were:

(1) To reside at Lot 2 DP46128 CFR WN48C/764, Whanganui Prison,

195 Pauri Road, Whanganui and not to move from that address, without the prior written approval of a Probation officer.

(2) Not to leave the district of Whanganui without the prior written approval of the Probation Officer. The district of Whanganui is defined as the district boundary of the Whanganui District Council.

(3) To submit to, and comply with the requirements of, electronic monitoring as directed by the Probation Officer, to monitor compliance with conditions relating to your whereabouts.

(4) To comply with the requirement of electronic monitoring, and provide access to the approved residence for this purpose to Department of Corrections’ staff and representatives of the monitoring company, as directed by the Probation Officer.

(5) Not to associate or otherwise have contact with any person under

16 years of age unless another adult over the age of 20 years, who has previously been informed and approved in writing by your Probation Officer, is present.

(6) Not to have any female present at your address at any time, unless given prior written approval by the Probation Officer.

(7) Not to have contact or otherwise associate with the victims of your offending, directly or indirectly.

(8) Not to attend any addiction support groups, such as Alcoholic Anonymous or Narcotics Anonymous, without the prior written approval of the Probation Officer.

(9) To attend sessions with a Department Psychologist for the purpose of developing a safety plan, as may be directed by the Probation officer in consultation with the psychologist.

(10) To undertake, engage in and complete a reintegration programme administered by a programme provider approved by the Probation Officer, and abide by the rules of the programme to the satisfaction of your Probation Officer and the programme provider.

(11) Not to engage in any employment (paid or unpaid) without the prior written approval of the Probation Officer.

(12) Not to use or possess any electronic device capable of accessing the internet, unless supervised at all times by an informed adult who has

the prior written approval of the Probation Officer. To give your Probation Officer or their agent access to any electronic device in your possession or control, for the purposes of checking the internet capability of the device and your compliance with this condition.

(13) Not to engage in any clubs, groups, associations or churches unless with the prior written approval of the Probation Officer.

(14) Not to place any advertisement or reference in any printed publication (or similar, including internet publications) and not to respond to any such advertisement by another person without the prior written approval of the Probation Officer.

(15) Not to possess or drive a motor vehicle without the prior written approval of the Probation Officer.

(16) Not to possess or consume alcohol or illicit drugs.

(17) To attend for a monitoring and compliance hearing before the New Zealand Parole Board in December 2012 at a time, date and venue to be notified to you in writing by the New Zealand Parole Board.

Statutory regime

[20] Section 7 sets out the guidelines for Board decision making with respect to parole. It provides as follows:

7 Guiding principles

(1) When making decisions about, or in any way relating to, the release of an offender, the paramount consideration for the Board in every case is the safety of the community.

(2) Other principles that must guide the Board's decisions are—

(a) that offenders must not be detained any longer than is consistent with the safety of the community, and that they must not be subject to release conditions... that are more onerous, or last longer, than is consistent with the safety of the community; and

(b) that offenders must[, subject to any of sections 13 to 13AE,] be provided with information about decisions that concern them, and be advised how they may participate in decision- making that directly concerns them; and

(c) that decisions must be made on the basis of all the relevant information that is available to the Board at the time; and

(d) that the rights of victims [(as defined in section 4 of the

Victims' Rights Act 2002] are upheld, and [submissions by

victims (as so defined)] and any restorative justice outcomes are given due weight.

(3) When any person is required under this Part to assess whether an offender poses an undue risk, the person must consider both—

(a) the likelihood of further offending; and

(b) the nature and seriousness of any likely subsequent offending.

[21] Section 15 of the Act authorises the Board to impose special conditions of release and provides limitation on the ability to do so. As sub (2) notes, the special release conditions must not be imposed unless they are designed to reduce the risk of reoffending, facilitate rehabilitation and reintegration and provide for the reasonable concerns of victims. Subsection (3) gives examples of the types of conditions that may be imposed.

The plaintiff ’s case

[22] The plaintiff challenges nine of the 17 special release conditions. They are identified as the following conditions:

(a) electronic monitoring (4);

(b) the district and residence conditions (1), (2); (c) safety plan (9);

(d) the reintegration programme (10); (e) internet and advertising (12), (14); (f) vehicle use and ownership (15);

(g) Church condition (13).

[23] I consider the plaintiff ’s submissions and give my reasons and decision with respect to each challenged condition.

Electronic monitoring condition

[24] The plaintiff submits that electronic monitoring is only available to monitor compliance with conditions “relating to whereabouts”. This is so because of s 15(3)(f) and s 15A(1) which specifically provide that electronic monitoring must relate to “whereabouts” conditions of parole.

[25] The plaintiff says that given the Board declined to make curfew or public place conditions, then the requirement to have any form of electronic monitoring of “whereabouts” was no longer authorised by the Parole Act.

[26] Section 15 of the Act covers, in part, the entitlement to impose a condition relating to electronic monitoring. Section 15(3)(f) provides as follows:

15 Special conditions

...

(3) The kinds of conditions that may be imposed as a special condition include, without limitation,—

...

(f) conditions requiring the offender to submit to the electronic monitoring of compliance with any release conditions, or conditions of an extended supervision order, that relate to the whereabouts of the offender.

[27] Section 15A(1) further expands on electronic monitoring. It provides as follows:

15A Electronic monitoring

(1) The purpose of an electronic monitoring condition [[imposed under section 15(3)(f)]] is to deter the offender from breaching conditions that relate to his or her whereabouts, and to monitor compliance with those conditions.

[28] The condition imposed by the Parole Board4 was that Mr Wilson was required to comply with the requirements of electronic monitoring to monitor compliance with conditions relating to Mr Wilson’s whereabouts. I am satisfied even after the Board deleted two conditions relating to curfew and public places that there remain two conditions with respect to Mr Wilson’s parole relating to Mr Wilson’s whereabouts. Firstly, the requirement to live on the grounds of the Whanganui Prison, and secondly, the requirement that he not leave the Whanganui district without the prior written approval of the probation officer.

[29] There were parole conditions which related to the whereabouts of Mr Wilson. The electronic monitoring condition is designed to monitor compliance with those conditions. There is, therefore, nothing illegal about the imposition of such a condition. I reject this ground of review.

The district condition

[30] The district condition5 requires Mr Wilson not to leave the district of Whanganui without prior approval of the probation officer. There can be no doubt a special condition requiring a parolee not to leave a particular area without prior approval is contemplated by s 15.6 The plaintiff challenges this condition on the basis that it cannot be justified under s 15(2) grounds. That is, it cannot be justified to reduce the risk of reoffending, to facilitate rehabilitation and reintegration, or to provide for the reasonable concerns of victims of the offender.

[31] I reject that argument. The condition clearly relates to the reduction of risk of reoffending by Mr Wilson and provides for the reasonable concerns of victims of Mr Wilson. One of the factors that influenced the Board in settling on Whanganui as the place for Mr Wilson to live was that none of Mr Wilson’s victims lived there. Thus, requiring Mr Wilson to remain within the Whanganui area will reduce the

_{chances of him having random contact or indeed intentional contact with his victims.}

4 _{See at [19](4).}

5 _{See at [19](2).}

6 Section 15(3)(e).

[32] The second basis upon which the district condition is justified in terms of s 15(2) relates to part of Mr Wilson’s offending. Some of his offending involved Mr Wilson picking up hitchhikers, taking them back to his house, over a period of time winning their confidence and then sexually assaulting them often with the use of drugs. Restricting Mr Wilson to a geographic area restricts his capacity to travel and to take the opportunities that he has previously taken to offend in this way. I am satisfied the district condition is justified as within the s 15(2) criteria.

Internet and advertising conditions

[33] This relates to the prohibition on Mr Wilson from using the internet unless supervised and prohibiting him from placing advertisements in the media unless with prior written approval by a probation officer.7

[34] These conditions along with a number of the other parole conditions are not absolute. The conditions permit the use of the internet and advertising if a probation officer approves.

[35] The plaintiff’s submission is that this condition unfairly restricts Mr Wilson’s

right of freedom of expression.8

[36] The sentencing notes of Heron J observe that Mr Wilson sought vulnerable women through personal advertisements in newspapers. Mr Wilson may not yet have used the internet, but without parole supervision he would be free to do so. The internet is a potential site for accessing vulnerable women, perhaps more so than newspaper advertising when Mr Wilson was sentenced 16 years ago. Mr Wilson is permitted to access the internet but only with approval by a probation officer. The probation officer considering approval will be aware that any restrictions on Mr Wilson’s use of the internet and indeed on media advertising must relate to the reduction of risk of reoffending by Mr Wilson and provide for the reasonable

_{concerns of his victims.}

7 _{See at [19](12) and (14).}

8 New Zealand Bill of Rights Act 1990, s 14.

[37] To take an example, supervised access to the internet to enable Mr Wilson to use internet banking could hardly be objectionable. In the same way advertising in a newspaper for the sale of an item Mr Wilson wishes to sell, is unlikely to be objectionable. But advertising seeking contact with, for example, women, or unfettered access to the internet is likely to be objectionable. Limiting such access would be in accordance with the s 15(2) grounds.

[38] The Parole Board, therefore, lawfully imposed the internet and advertising condition. It was authorised by s 15(2). If, in its functioning Mr Wilson believes that the probation officer is refusing reasonable access to the internet, for reasons outside of s 15(2), then he can apply to the Parole Board to amend the condition to provide for more specificity. This ground of review is dismissed.

Vehicle condition

[39] The Board provided that Mr Wilson was not to possess or drive a motor vehicle without the prior written approval of the probation officer.9 This is clearly a condition relating to reducing the risk of reoffending by Mr Wilson and authorised by s 15(2). Mr Wilson has previously used a motor vehicle to facilitate his offending. The Board rejected Mr Wilson’s counter proposal that he not carry passengers without permission. Such a condition would be very difficult to enforce. Understandably the Board rejected it. In appropriate circumstances Mr Wilson can use a motor vehicle as approved by the probation officer. I reject this ground of

challenge.

The Church condition

[40] There is a similar pattern to the Church condition10 as with the motor vehicle and internet condition. The condition is not an absolute condition but one that permits Mr Wilson to attend Church in circumstances where the probation officer

_{approves. This condition relates to reducing the risk of reoffending under s 15(2).}

9 _{See at [19](15).}

10 See at [19](13).

Mr Wilson has previously used social occasions such as Church meetings to target vulnerable women.

[41] However, if Mr Wilson can attend Church for only the formal Church service and return home immediately afterwards, then the probation officer may consider there is no reason to refuse to allow such attendance as long as there are adequate safeguards to ensure Mr Wilson keeps to this regime. As I have previously observed the probation officer will no doubt be aware of s 15(2) of the Parole Act and the fact that the exercise of the “Church” condition must be in accordance with that provision.

[42] Further, the probation officer will be aware that the New Zealand Bill of Rights Act 1990 applies to his actions including Mr Wilson’s right to freedom of religious practice.11

Safety plan condition

[43] The safety plan condition12 requires Mr Wilson to attend sessions with a departmental psychologist. The plaintiff submitted that this condition infringed his rights under the New Zealand Bill of Rights Act13 not to undergo medical treatment in the form of psychological treatment. But this condition does not require Mr Wilson to undergo medical treatment. He is only required to attend the sessions. He is not required to participate. It will be a matter for Mr Wilson to decide whether he wishes to participate but no doubt he will take into account the fact that the purpose of the sessions is to develop a safety plan for him. The condition is justified by s 15(2) as relevant to the risk of reoffending and promoting rehabilitation.

_{[44] I reject this ground of challenge.}

11 _{New Zealand Bill of Rights Act 1990, ss 13, 15.}

12 _{See at [19](9).}

13 New Zealand Bill of Rights Act 1990, s 11.

Residence condition

[45] Mr Wilson is required to live on the grounds of Whanganui Prison.14 He is currently being housed in a residence which is hoped to be temporary until a more permanent residence can be shifted on to the Prison grounds.

[46] As the plaintiff acknowledged, s 15(3)(a) specifically entitles the Board to impose a condition relating to an offender’s place of residence. The residence condition relates to reducing the risk of reoffending and providing for the reasonable concerns of victims. It keeps Mr Wilson in a place where there is relative ease of supervision, and at a residence where he can be kept an eye on. It is not a de facto prison, he is outside the prison fence. He is entitled to come and go from his residence subject only to the other conditions imposed. People are entitled to visit him there. The only restriction on access by visitors to Mr Wilson’s residence (I have been advised of) is that prior to visiting Mr Wilson (because visitors are coming onto Corrections’ property), visitors need to give their name and address to Corrections. Beyond that restriction Mr Wilson is free to have visitors subject only to the other restrictions provided for in the conditions of parole.

[47] The residence condition, therefore, is well within the authority of the Board to impose and is authorised by s 15(2) and specifically s 15(3)(a).

[48] The other factor raised by the plaintiff, is the application of the Residential Tenancies Act 1986. The plaintiff submitted that this Act applied to Mr Wilson’s accommodation and the Board by its parole conditions could not avoid the statutory obligations of a landlord. It is not a matter for this Court to decide whether the Residential Tenancies Act does or does not apply to the house in which Mr Wilson will live. If Mr Wilson thinks the Act applies and believes that his Landlord, the Department of Corrections, has somehow breached the Act, then remedies are provided for in the Act.

_{[49] For the reasons given, I reject this ground of challenge.}

14 See at [19](1).

Reintegration

[50] The final challenge relates to the reintegration programme condition. The Board made an understandably general order in relation to a reintegration programme for Mr Wilson.15 It required Mr Wilson to undertake, engage and complete a reintegration programme approved by the probation officer and abide by the rules of the reintegration programme.

[51] At the time the Board imposed the order it had no knowledge of the actual reintegration programme proposed. That information came later. Attached to the affidavit of Matthew Gibbs who is the Extended Supervision Order Co-ordinator and a Senior Advisor in the High Risk Response team at Corrections, was a copy of the reintegration programme. The programme addressed to Mr Wilson provides as follows:

I must be accompanied by two persons, at all times whenever I am away from the Whanganui Prison grounds, who are responsible for the supporting of my reintegration programme (integration staff). This means that I am under the care and support of integration staff when in the community, ensuring my safety and the safety of others.

I am permitted to be on Whanganui Prison grounds, however I may not go onto any prison grounds west of the access road to the property and other areas specified by my probation officer and marked on a map given to me.

I acknowledge that I am not required to be accompanied by integration staff when within the specified boundaries.

I acknowledge that integration staff are allocated to me as support people and this will require a close working relationship between us. I must be courteous and respectful towards integration staff at all times. I must not verbally abuse or physically assault reintegration staff and accept that this behaviour is inappropriate and may be reported to the Police or result in a breach of my special conditions of parole.

I understand that integration staff members, who are providing me with care and support to assist with my reintegrative needs, will develop a programme of activities with me. This will include plans to address my reintegrative needs, as well as recreational and social activities. Further, a weekly plan of activities will be developed

15 See at [19](10).

with integration staff. I will be fully involved in the weekly planning process.

I understand that integration staff must seek prior approval from my probation officer for my weekly plan or before I engage in any programme activities. This approval is required to ensure the plan or activities are appropriate and safe for me to engage in. I understand that I must raise any requests for outings or any needs I have, as part of the weekly meeting or through my probation officer.

I must not deviate from my weekly plan without prior approval of my probation officer and if I do this it will be a breach of these rules.

My attendance and participation in any programmes or activities will be to the satisfaction of my probation officer.

I understand that before leaving prison grounds I will need to go through my personal safety plan for my physical and mental wellbeing with reintegration staff (as follows):

1. I must not associate with anyone under the age of 16 years, and victims or anyone else I have been directed by my probation officer to not associate with.

2. I must be under the direct care and support of reintegration staff at all times while out in the community (meaning any time I am away from the Whanganui Prison grounds).

3. I must talk to reintegration staff immediately if I feel uncomfortable or unsure when out in the community.

4. If reintegration staff decide to end an outing I must respect that their decision is final and act accordingly.

5. I understand that if I have any concerns I can discuss these with reintegration staff and with my probation officer.

6. I understand that I will be provided with the contact details for on site support for me to use if I, at any time, have any concerns over my safety.

[52] This “reintegration programme” provides that a reintegration programme will be developed.16 Otherwise the “programme” is a series of restrictions on Mr Wilson. Presumably a reintegration programme is a programme designed to assist Mr Wilson to reintegrate into the community in a way that is satisfactory and safe for him and for others. Thus, without explanation many of the conditions of the programme are

_{difficult to justify in this context.}

16 At [51] fifth bullet point.

[53] Bullet point five of the reintegration programme promises that reintegration staff members “will develop a programme of activities with me”. This is said to include plans to address Mr Wilson’s reintegrative needs, as well as recreational and social activities. Further, a weekly plan of activities is to be developed with integration staff. Mr Wilson is to be fully involved in the weekly planning process. But no detail is given. It is essentially a plan to have a plan.

[54] Beyond this “plan” to have “plan” the reintegration “programme” is a list of things Mr Wilson must or must not do. For example, the first requirement is that whenever Mr Wilson is away from Whanganui Prison grounds, he must be accompanied by two persons. This restriction was not suggested by Corrections, as an independent condition of parole nor approved by the Parole Board. Unless Corrections are prepared to provide up to six people per 24 hour period (three eight hour shifts of two people) to ensure that when Mr Wilson does wish to leave the grounds he can do so, then this provision would be imposing an additional restriction on Mr Wilson, not provided for in any of the other conditions of his parole nor approved by the Board. There is no obligation on Corrections to provide two such persons at any particular time or indeed at all. Nor was any rationale for the condition suggested consistent with a reintegration programme. Section 15(3)(ab) in fact authorises residential restrictions, but the current conditions were not imposed pursuant to ss (3)(ab).

[55] The second bullet point further restricts Mr Wilson’s geographical area. This restriction was not approved by the Parole Board and indeed could be in conflict with other conditions made by the Parole Board, for example, the Whanganui District condition.

[56] It would be wrong for a reintegration programme to be used as a back door method of placing further restrictions on Mr Wilson which were not directly authorised by the Parole Board and where they could be seen to be in conflict with other conditions set by the Board or conditions rejected by the Board and where they had no apparent reintegration purpose.

[57] Finally, I note that the reintegration programme has no end to it. In theory, therefore, Mr Wilson would have been prevented from leaving his residence in Whanganui, unless he had two people available to accompany him until

1 December 2015. Corrections gave no undertaking as to availability of two such persons and so Corrections were in complete control over whether Mr Wilson could ever leave the house on Whanganui Prison grounds.

[58] This particular arrangement would be a form of de facto detention that could not be allowed. I indicated to counsel that I would, therefore, be prepared to declare that the reintegration programme developed by Corrections was not authorised by the Parole Act and was in breach of the New Zealand Bill of Rights Act. However, because the condition of the Parole Board was itself lawful (it simply authorised a reintegration programme as approved by the probation officer), a better course was the referral back to the Parole Board to set particular conditions relating to the reintegration programme for Mr Wilson’s release. This cause of action was agreed to by all parties.

[59] In the circumstances, therefore, a formal declaration was not required. However, I am satisfied the programme developed by Corrections was not in fact a reintegration programme as imposed by the Board; it was not authorised by s 15(3)(b) of the Parole Act and was probably in breach of s 22 of the New Zealand Bill of Rights Act.

[60] The reintegration programme condition was, therefore, referred back to the Board to reconsider in light of my comments and any further reintegration programme proposed by Corrections with the agreement of all the parties. Section 56 of the Parole Act empowers the Board to reconsider terms of parole at any time.

New Zealand Bill of Rights Act 1990

[61] Counsel for Mr Wilson submitted that many of the parole conditions breached the New Zealand Bill of Rights Act. The New Zealand Bill of Rights Act contains a comprehensive set of provisions relating to individual’s rights. They

include, as relevant here, s 11 right to refuse medical treatment; s 14 freedom of religion; s 15 right to manifestation of religious belief; s 17 freedom of association; s 18 freedom of movement and s 22 right to liberty.

[62] In one sense, some (although not all) of these freedoms and rights, have been restricted by the conditions made by the Parole Board. The only right which I find is not restricted is a right to refuse to undergo medical treatment because of a misapprehension by the plaintiff as to the interpretation of the clause relating to

attending a psychologist.17

[63] The Parole Act of course empowers the Parole Board to restrict each of these freedoms. Section 15(3) gives examples of a wide range of special conditions which will restrict a parolee’s freedom of association, of travel, and of liberty.

[64] Section 5 of the New Zealand Bill of Rights Act provides as follows:

5 Justified limitations

Subject to section 4 of this Bill of Rights, the rights and freedoms contained in this Bill of Rights may be subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.

[65] I am satisfied that each of the restrictions imposed on Mr Wilson save the reintegration programme are justified by the Parole Act in that they are imposed for reasons required in s 15(2) of the Act. These restrictions are reasonable limits prescribed by law justified in a free and democratic society in terms of s 5 of the New Zealand Bill of Rights Act.

[66] The restrictions on Mr Wilson are significant considered as a whole. But they reflect Mr Wilson’s conduct both at the time of his offending and subsequently. Mr Wilson offended in a gross way affecting a number of complainants over

25 years. It was some of the most serious sexual offending that had come before the

_{Courts at that time.}

17 See at [43].

[67] Mr Wilson since his offending has done nothing to help himself. He has refused to acknowledge his criminality. He has refused to co-operate with Corrections in rehabilitation. He has refused to acknowledge he needs help. He has refused to participate in the process of setting conditions or where he might live. His suggestions as to conditions on parole have been superficial and poorly thought out and have provided no assistance at all either to Corrections or the Parole Board in considering his case.

[68] This all illustrates why the limits imposed by the Parole Board are limits that are reasonable and demonstrably justified in the free and democratic society which is New Zealand. Finally, Mr Wilson also complained that some special conditions of parole were inadequate in other ways.18 These allegations were not pursued before me. Save for my comments about the reintegration programme, the conditions were clear, logical, unambiguous and authorised by law.

[69] For the reasons given the application for review relating to all of the conditions save the reintegration programme is dismissed. No formal order is required with regard to my observations regarding the reintegration programme. A hearing is now being held by the Parole Board with further orders being made.

[70] The Parole Board in any event will review the conditions imposed on Mr Wilson in a December hearing. Further, if Mr Wilson considers the operation of any other parole conditions breaches the guidance given in s 15(2) of the Parole Act or breaches in an unreasonable way Mr Wilson’s rights under the New Zealand Bill of Rights Act, then there is jurisdiction at any time to return to the Parole Board to

_{ask them to review or more closely specify some of the general conditions imposed.}

18 See at [1].

Costs

[71] If any defendant seeks costs, memoranda can be filed within 14 days and the plaintiff has a further 14 days to respond.

_{Ronald Young J}

Solicitors:

A J McKenzie, email: [e-mail]

L Drummond, email: [e-mail]

F M R Cooke QC, email: [e-mail]

L Fong, email: [e-mail]

A M Powell, email: [e-mail]

C Brown, Crown Law, Wellington