Ericson v Chief Executive, Department of Corrections [2015] NZHC 1157 (27 May 2015)

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Ericson v Chief Executive, Department of Corrections [2015] NZHC 1157 (27 May 2015)

Last Updated: 27 May 2015

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

CIV-2014-409-000175 [2015] NZHC 1157

BETWEEN	JOHN FREDERICK ERICSON Applicant
AND	CHIEF EXECUTIVE, DEPARTMENT OF CORRECTIONS Respondent

Hearing:	26 May 2015
Appearances:	Applicant in person K M Muller for Respondent
Judgment:	27 May 2015

_{JUDGMENT OF DUNNINGHAM J}

[1] Mr Ericson is serving a life sentence of imprisonment after pleading guilty in the High Court in 2000 to the murder of his wife. In this proceeding he seeks judicial review of the Department of Corrections’ alleged failure to provide programmes to support his reintegration and thereby stymieing him from obtaining parole. The relief he seeks is a writ of mandamus ordering the Department of Corrections Chief Executive to provide him with home leave, day parole, release to work and one-on-one counselling or, in the alternative, his release from detention on the basis that his detention is arbitrary.

Background

[2] Mr Ericson first became eligible for parole in 2009. He was declined parole in 2009 and 2010 on the basis that he was not “in the reintegration phase of his sentence”. In 2011, the New Zealand Parole Board noted that he had not undertaken any programmes to deal with his offending apart from a programme in 2001, but

_{nevertheless said it was satisfied that Mr Ericson “has now embarked upon the}

ERICSON v CHIEF EXECUTIVE, DEPARTMENT OF CORRECTIONS [2015] NZHC 1157 [27 May 2015]

reintegration phase of his sentence”. However, it cautioned that “that is likely to be a lengthy and measured process”. The position did not change when he made subsequent applications for parole.

[3] In 2013 he sought judicial review of certain decisions of the Department refusing his applications for temporary release from custody for specified purposes, and in which he ventilated a more general concern about his prospects of obtaining parole being hampered by decisions of prison authorities about the management of his sentence.

[4] In the course of giving his decision on the application for judicial review, MacKenzie J noted that:¹

[Mr Ericson] is generally ineligible for programmes which would involve group psychological assessment ... because his risk is assessed as low. It appears that one-on-one psychological counselling will be required, and that release on parole is unlikely to receive favourable consideration if that has not occurred.

[5] His Honour also noted that if the view was that nothing should be done towards psychological counselling or treatment until the applicant accepts responsibility for his offending, that would not properly take into account the importance of psychological intervention for the applicant’s prospects of a successful parole application.

[6] In late 2013 Mr Ericson was transferred from Rimutaka Prison to Rolleston Prison which, from Mr Ericson’s perspective, was to facilitate him being offered a release to work (“RTW”) programme. However, the affidavit evidence of Mr Williamson, the operations manager at Rolleston Prison, was that while Mr Ericson believed he had “an entitlement to participate in RTW”, he was unlikely to be granted that because he had not “completed any prison-based treatment programmes to address his offending needs and had not been willing to participate in

_{employment in the construction yards”.}

¹ Ericson v Chief Executive, Department of Corrections [2013] NZHC 3035 at [24].

[7] Because Rolleston was a working prison and all prisoners were required to participate in work either inside or outside the wire, and Mr Ericson was not willing to engage in work on the prison grounds, he had to be transferred to another prison. While Mr Williamson supported Mr Ericson’s request to be returned to Rimutaka, he was in fact transferred to Christchurch Men’s Prison where he currently remains.

[8] On 29 April 2014 there was a further parole board hearing. Parole was declined but, taking into account the recommendations of MacKenzie J, and a psychological assessment by Dr Mattson, it was recommended that Mr Ericson be reassessed for a minimum intervention rehabilitative programme (“MIRP”), but if deemed unsuitable, then he should be offered one-to-one psychological intervention.

[9] Since that date, Mr Ericson has been assessed for MIRP. He declined to attend the programme for reasons including that he was not ready “to do group work at this stage and instead would prefer one-on-one rehabilitative work”. As a consequence, the short motivational programme (SMP) was offered instead and he completed that course between August and October 2014.

[10] On 3 October 2014 Mr Pullan, the principal psychologist at the Christchurch Psychologist’s office at the Department of Corrections agreed that given Mr Ericson’s response to the SMP and his increased willingness to explore his offending he could be placed on the list for individual psychological treatment. However, his prioritisation was in the lower category. Mr Pullan gives evidence that should the psychological assessment of Mr Ericson “continue to recommend individual psychological treatment, as is likely, treatment would be initiated in 2015, with an expectation that information is available to the following Parole Board hearing”.

The key issues

[11] In light of that background, Mr Ericson argues that the Chief Executive:

(a) was required to grant him temporary releases, including release on the

RTW programme, but has failed to do so;

(b) was in breach of duty to provide him with rehabilitation programmes, in particular, one-on-one psychological treatment;

(c) is detaining Mr Ericson arbitrarily for as long as he fails to provide such programmes.

Relevant statutory provisions

[12] The issues raised by Mr Ericson need to be considered in light of the provisions of the Corrections Act 2004 which articulate the purpose of the corrections system and the ways in which that purpose is to be achieved.

[13] Section 5(1) of the Act provides:

5 Purpose of corrections system

(1) The purpose of the corrections system is to improve public safety and contribute to the maintenance of a just society by—

...

(c) assisting in the rehabilitation of offenders and their reintegration into the community, where appropriate, and so far as is reasonable and practicable in the circumstances and within the resources available, through the provision of programmes and other interventions; and

...

[14] Section 6 of the Act sets out principles that “guide the operation of the

corrections system”, which include:

6 Principles guiding corrections system

(1) The principles that guide the operation of the corrections system are that—

(a) the maintenance of public safety is the paramount consideration in decisions about the management of persons under control or supervision:

...

(h) offenders must, so far as is reasonable and practicable in the circumstances within the resources

available, be given access to activities that may contribute to their rehabilitation and reintegration into the community.

...

[15] Section 52 of the Act imposes a qualified duty on the Chief Executive to provide rehabilitative programmes for prisoners. It provides:

52 Rehabilitative programmes

The chief executive must ensure that, to the extent consistent with the resources available and any prescribed requirements or instructions issued under section 196, rehabilitative programmes are provided to those prisoners sentenced to imprisonment who, in the opinion of the chief executive, will benefit from those programmes.

[16] Section 3 of the Act defines “rehabilitative programme” in the following way:

(a) means a programme designed to reduce reoffending by facilitating the rehabilitation of prisoners sentenced to imprisonment and their reintegration into society; and

(b) includes any medical, psychological, social, therapeutic, cultural, educational, employment-related, rehabilitative, or reintegrative programme

[17] Finally, s 62 to 65 of the Act govern temporary releases and removals from prison. The Chief Executive’s power to authorise a temporary removal is set out in s 62 which provides:

62 Temporary release from custody or temporary removal from prison

(1) This section applies to every prisoner who is a member of a class of prisoners specified in regulations made under this Act as a class of prisoners who may be—

(a) temporarily released from custody under this section; or

(b) temporarily removed from prison under this section while remaining in custody under the control or supervision of an officer, staff member, or probation officer during the period of removal.

(2) The chief executive may give authority for the temporary release from custody or temporary removal from prison of a prisoner to whom this section applies—

(a) for any purpose specified in regulations made under this Act that the chief executive considers will facilitate the achievement of 1 or more of the following objectives:

(i) the rehabilitation of the prisoner and his or her successful reintegration into the community (whether through release to work (including self- employment), to attend programmes, or otherwise):

(ii) the compassionate or humane treatment of the prisoner or his or her family:

(iii) furthering the interests of justice; or

(b) in any circumstances that, in the opinion of the chief executive, are exceptional and that will facilitate the achievement of 1 or more of the objectives described in paragraph (a).

(3) In exercising the powers conferred by subsection (2), the chief executive must consider—

(a) whether the release or removal of the prisoner might pose an undue risk to the safety of the community while the prisoner is outside the prison:

(b) the extent to which the prisoner should be supervised or monitored while outside the prison:

(c) the benefits to the prisoner and the community of removal or release in facilitating the reintegration of the prisoner into the community:

(d) whether removal or release would undermine the integrity of any sentence being served by the prisoner.

[18] Under s 62(3) when carrying out the assessment under s 62(1) and (2), the Chief Executive must take into account several mandatory considerations. These include both the level of risk to the safety of the community and the benefits to the prisoner and community of the prisoner’s temporary release or removal.

Was the Chief Executive required to grant Mr Ericson temporary releases including release on the RTW programme?

[19] Mr Ericson seeks orders that either the Chief Executive authorise his temporary release from prison,² or that he simply be released altogether. However, as a starting point, Mr Ericson has not identified any specific decisions by the

² On day leave, home leave, day parole or RTW.

Chief Executive declining an application for temporary release under s 62 of the Act. Indeed, as Mr Williamson’s evidence stated, Mr Ericson has not made any application for temporary release under s 62 of the Act. In the absence of a challenge to a specific decision made under ss 62 - 65 of the Act and the Corrections Regulations 2005 to decline temporary release, technically, I need not address this claim any further.

[20] However, in order to forestall a future argument, Mr Ericson appears to be under a misunderstanding that he has an absolute entitlement to temporary release, including to undertake RTW. As the Chief Executive’s submissions explain, there is no such right or entitlement. The scheme of the Act and the supporting Regulations is that decisions about whether to authorise temporary release require the exercise of

a broad discretion.³ That discretion is exercised by reference to certain mandatory

relevant considerations in s 62(3) which include, as a paramount consideration, the risk posed by the prisoner to the safety of the public if temporary release were to go ahead.⁴

[21] While s 52 of the Act imposes a general duty on the Chief Executive to ensure prisoners are provided with “rehabilitative programmes”, which includes “re- integrative programmes” such as RTW, that must be “consistent with the resources available and any prescribed requirements or instructions issued under s 196” of the Act. In other words, as was said in Miller v New Zealand Parole Board, s 52 does not confer a right to rehabilitative programmes regardless of cost or likely benefit.⁵

Furthermore, re-integrative programmes such as temporary releases will only be

approved where issues of risk to the public are satisfactorily addressed.

[22] In this case, the Chief Executive points out that there are factors which would have pointed against Mr Ericson being authorised for temporary release even if he had applied for consideration. His index offending is very serious. He has not received psychological treatment addressing the causes of his offending, which he

_{continues to deny criminal responsibility for. He has escaped from prison and he has}

³ See Corrections Act 2004, s 62(2): the Chief Executive may authorise temporary release;

_{Watson v Department of Corrections [2012] NZHC 3542 at [11].}

⁴ _{Section 62(3)(a).}

⁵ Miller v New Zealand Parole Board HC Wellington CRI-2004-485-37, 11 May 2004.

at times refused work both inside and outside the prison wire.⁶ I accept the Department’s summary of the position which is that Mr Ericson is able to apply for temporary release from prison and he has a right to have that application considered, but he does not have an entitlement to be released. That would depend on a proper assessment of all relevant factors at the time of applying.

Is the Chief Executive in breach of a duty to provide Mr Ericson with rehabilitation programmes, in particular, one-on-one psychological treatment?

[23] Mr Ericson submits that he is in a catch-22 situation, where the Parole Board requires him to have undertaken programmes to address his offending before he will be considered eligible for parole, but the Department then fails to provide him with those programmes because his risk is assessed as too low. As he puts it “if they don’t give us the courses, we are stuck here”.

[24] In response, the Chief Executive argues that the relevant statutory duty to provide psychological treatment is the qualified duty in s 52 of the Act to provide rehabilitative programmes. This section does not impose a legal duty to provide psychological treatment to Mr Ericson as a matter of priority. Rather, that duty must be met having regard to the resources available, and considerations of who will benefit the most from those programmes.

[25] The Chief Executive submits that that duty has been met, and regard has been had to the recommendations in the judgment of MacKenzie J. The specific steps which have been taken are that:

Mr Ericson asked for psychological treatment in March 2014 and Ms Johnson, a case manager at Christchurch Men’s Prison, and Mr Pullan, a psychologist promptly arranged for Mr Ericson to be assessed for eligibility for psychological interventions. He was assessed by Dr Karla Mattson, who recognised that his continued denial of criminal responsibility for his wife’s murder should not be determinative of whether he could nevertheless address the causes of his offending.

6. For example, he was unwilling to participate in employment in the construction yards in February 2014 or as unit cleaner in March 2014, which is a usual precursor to working on temporary release.

[26] Having met with Mr Ericson, his case officer, Jason Gibson, and programmes facilitator, Taryn Hale, agreed that he would participate in a short motivational programme (SMP) from August to October 2014.

[27] Despite successfully completing the SMP, which it was hoped would build confidence to progress to the MIRP, Mr Ericson declined to participate in MIRP and maintains he wanted one-on-one psychological treatment. Mr Pullan and Dr Mattson agreed that he was eligible for one-on-one treatment and could be placed on the waiting list. However, applying the prioritisation guidelines used by the Department, Mr Pullan placed Mr Ericson in the lower category.

[28] Mr Ericson expressed some scepticism about when he would in fact receive that one-on-one psychological treatment, and I accept that the Department has given no firm commitment to that treatment being available this year, but that is the inevitable consequence of the responsibility of the Department to prioritise its resources. As the Chief Executive explains, the Court’s have acknowledged the necessity of prioritisation and targeting of limited resources at an individual level. One way of doing this, as recorded in Miller v New Zealand Parole Board, was to

defer re-integrative programmes until re-integration was “reasonably imminent”.⁷

[29] However, I have to take the Department’s evidence at face value, which is that Mr Ericson is now on the waitlist for such treatment, and it is likely he will receive that later this year. Accordingly, I cannot discern that there has been any unlawfulness in the way the Department has carried out its statutory duty in s 52 of the Act to provide rehabilitative programmes. Rehabilitative programmes have, and are, being offered to Mr Ericson. Some have not been proceeded with because he, in consultation with the relevant Department staff, has decided some options were not appropriate. He is receiving such treatment as has been considered appropriate in

_{accordance with conventional processes as to prioritisation of those resources.}

⁷ Miller v The New Zealand Parole Board CA67/2009, 8 December 2010 at [158].

Mr Ericson being arbitrarily detained

[30] The corollary of Mr Ericson’s arguments on the failure to grant him temporary releases or rehabilitative programmes, was that his detention was arbitrary while that failure continued.

[31] Given I have found there is no failure on the first two counts, it follows that there is no arbitrary detention. His detention is in accordance with a life sentence imposed by a sentencing Judge. The Department has provided him with such rehabilitative programmes as are available and considered suitable for Mr Ericson’s particular needs and there is no basis on which this Court can substitute its own views on the merits of day to day decisions or activities of prison management, nor with decisions which are essentially clinical in nature such as Mr Ericson’s eligibility for psychological treatment, or the prioritisation of treatment to him.

Conclusion

[32] I am satisfied, therefore, that Mr Ericson has not demonstrated that any decision or action of the Department lay outside its statutory powers and discretions, or was otherwise unlawful or unreasonable. Accordingly the relief he seeks cannot be granted and his application fails.

[33] Costs are reserved.

Solicitors:

Crown Law, Wellington