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High Court of New Zealand Decisions |
Last Updated: 19 July 2016
IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY
CIV-2015-485-171 [2016] NZHC 1352
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IN THE MATTER
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Declaratory Judgments Act 1908
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BETWEEN
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STANLEY ALLEN GILMOUR Plaintiff
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AND
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CHIEF EXECUTIVE OF THE DEPARTMENT OF CORRECTIONS Respondent
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Hearing:
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27 April 2016
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Counsel:
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W G C Templeton for Plaintiff
D Perkins for Respondent
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Judgment:
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22 June 2016
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RESERVED JUDGMENT OF ELLIS J
I direct that the delivery time of this judgment is
11 am on the 22nd day of June 2016
GILMOUR v CHIEF EXECUTIVE OF THE DEPARTMENT OF CORRECTIONS [2016] NZHC 1352 [22 June
2016]
[1] On 17 May 2013, Mr P was sentence to three years and nine months
imprisonment following his convictions for causing grievous
bodily harm with
intent to injure, assault and theft.1 He received a first strike
warning. Mr P was then incarcerated at Northland Region Corrections Facility
(NRCF). His first parole
hearing was scheduled for January 2014.
[2] As part of any parole process, s 43(1) of the Parole Act 2002
(the PA) requires the Department of Corrections (the Department)
to provide the
Parole Board (the Board) with copies of all relevant information relating to the
offender’s current and previous
convictions (including sentencing notes
and pre-sentence reports) and “a report”. Such a report is known as
a “Parole
Assessment Report” or PAR.
[3] The plaintiff, Mr Gilmour, is a probation officer employed in the Community Corrections Service. Part of his role is to supervise former prisoners who are released on parole and to prepare, or assist in preparing, PARs. Initially he was involved in preparing Mr P’s PAR but, due to a disagreement as to its contents, his work was effectively overridden and his part of the PAR rewritten by someone else. Mr Gilmour says that the Department’s actions were unlawful and seeks a
declaration to that effect.2 He also asks the Court to declare
that a probation officer
who is charged with preparing a PAR is required to express an opinion about
the risk posed by the particular prisoner if released.
The question of risk is,
of course, central to the Board’s parole decision.
The legislative and administrative context
[4] Before discussing the issues raised by Mr Gilmour’s claim it is necessary to say a little about the statutory and operational context through which a probation officer comes to be involved in the parole process. That context involves both the PA and the Corrections Act 2004 (the CA) and internal processes adopted by the
Department in order to meets its obligations under those
Acts.
1 Counsel were agreed that it was appropriate that Mr P’s name be anonymised in this judgment.
Corrections Act 2004
[5] The CA is the legislative framework under which those offenders who
are convicted and sentenced are dealt with for
the duration of their
sentences (and occasionally, beyond). In cases where the sentence is one of
imprisonment that sentence
will, in the majority of cases, span a period of
incarceration and then a period of parole. The CA thus deals with both what
happens
inside prisons and upon release on parole. It is the point at which
these two phases intersect (the preparation for and consideration
of parole)
with which the present case is concerned.
[6] Section 5(1) of the CA states that purpose of the Corrections
system is to improve public safety and contribute to the maintenance
of a just
society by (inter alia) “providing information to the courts and the New
Zealand Parole Board to assist them in decision-making”.
[7] Section 24 of the CA provides that the Chief Executive must appoint
under the State
Sector Act 1988 (the SSA) as many probation officers as are required for the
purposes of that Act or any other enactment. Section 25 sets out the functions
of probation officers. One such function (s 25(1)(e)) is “to provide all
the reports and information that a court, the New
Zealand Parole Board, or a
prison manager may require under any enactment”.
Parole Act 2002
[8] Section 108 of the PA establishes the New Zealand Parole
Board as an independent statutory body and stipulates
that the
Department provides administrative and training support to the
Board.
[9] The other critical provision is s 43(1), which relevantly
provides:
(1) When an offender is due to be released at his or her statutory
release date, or to be considered by the Board for parole,
the Department of
Corrections must provide the Board with—
(a) copies of all relevant information relating to the offender's current and previous convictions, including (for example) sentencing notes and pre-sentence reports; and
(b) if the offender has engaged in any restorative justice processes,
any reports arising from those processes; and
(c) in the case of an offender detained in a prison, a report by the
Department of Corrections;
...
The MOU
[10] As I have said, reports provided pursuant to s 43(1)(c) are known as
PARs. Their content is not prescribed in the PA but,
in a general way, is dealt
with in a memorandum of understanding (MOU) between the Department and the
Board. That MOU is revised
and renewed from time to time and deals with other
matters arising related to the Department’s s 108 obligations. The MOU
sets out the Department’s responsibilities to the Board in a number of
“service areas”, including one entitled
“Information to the
Board”.
[11] Under that heading the 2008 MOU provided:
Parole and Final Release Conditions
Provision of information and reports in accordance with section 43(1) of
the Parole Act 2002 including:
- Copies of all relevant information relating to the offender’s
current and previous convictions. This will include Judge’s
sentencing
notes, summary of facts, pre sentence reports and any specialist reports
completed by the Department at the time of sentencing.
- A “Parole Report” in terms of s 43(1)(c). This report is
to cover the offender’s progress towards the goals
identified in their
individual sentence plan.
[12] The 2012 MOU records the s 43 responsibilities in similar terms. It
refers to the separate obligation to provide copies
of sentencing notes
and pre-sentence reports, and states “In addition, a report on the
offender’s progress in prison
and recommendations on
release.”
The Department’s administrative processes
[13] The respondent’s evidence was that a PAR is prepared
using a standard
template on the Department’s Integrated Offender Management System (IOMS).
The template is structured under a number of headings. The principal
contributors to a PAR are the relevant case management staff
based at the prison
where the subject prisoner is held. But content is also contributed by
probation officers from the service
area in which it is anticipated that the
prisoner will reside upon release. Usually (but not always) the contributing
probation officer
will also be assigned to supervise the relevant prisoner upon
release.
[14] Mr Oliver, who is the Service Manager of the Department’s
Dargaville Corrections Service Centre deposed that the role
of Community
Corrections in relation to the preparation of PARs is:
... to assess the suitability of the prisoner’s release proposal, and
comment on whether it will strengthen their compliance
with the conditions of
parole, reduce the likelihood of their reoffending, minimise the risk of harm to
others, and meet their reintegrative
needs. To do this the ... probation officer
primarily contributes to the release proposal section of a PAR (“Section
F”)
alongside the prison case manager. Community Corrections also
proposes special conditions (“Proposed Special Conditions on
Release” – Section G, and “Proposed Length of Release
Conditions” – Section I), and details the offender’s
history
of compliance with orders in the community (“Offender Compliance
History” – Section D). Guidance around
how probation officers
should contribute to PARs is provided on the Department’s internal
Practice Centre website ...
[15] Mr Oliver also referred to (and annexed) a user guide for probation
officers charged with preparing PARs and the quality
standards against which
Community Corrections contribution to the PAR is assessed. He then further
explained:
The checks a probation officer will make in considering the release proposal
differ in every case. But the process will in almost
all cases involve visiting
proposed release addresses to check their suitability, but can also involve (for
example):
If a victim notification register (“VNR”) flag shows up on the
offender’s record, checking the appropriate address
with the VNR
co-ordinator;
If a child is living at the proposed release address, checking with
Child, Youth and Family; and
Making checks with New Zealand Police to ensure the proposed residence and
the other occupants are appropriate.
The probation officer also considers whether any special conditions should be proposed to the Parole Board. Special conditions can help minimise harm to others and meet an offender’s reintegrative needs.
[16] I record at this point that Mr Gilmour did not seek to argue that
any of the Department’s rules, guidelines or operational
practices in
relation to PAR preparation were ultra vires.
The facts of Mr P’s case
[17] In Mr P’s case, his first parole hearing was, as I have said,
scheduled for January 2014. The evidence was that the
PAR for his hearing was
begun by a case manager at NRCF, Ms Beazley. She summarised Mr
P’s progress towards addressing
his rehabilitative and reintegrative
needs under the heading “Summary of Progress During
Sentence”.
[18] Ms Beazley also obtained information from Mr P about his release
proposal. Such information involved details of the programmes
he intended to
complete in prison prior to parole, his proposed release address, employment and
financial information, relationships
and whanau support and matters relating to
the victim. That information was entered into IOMS and transmitted to the
Dargaville Community
Corrections office, where Mr Oliver asked Mr Gilmour to
assess the release proposal.
[19] By about the beginning of December 2013 Mr Gilmour had produced a
draft for inclusion in the PAR. Mr Oliver instructed him
to delete some of the
content on the grounds that it was irrelevant. It seems that Mr Gilmour
prepared at least one further draft
and then, on 6 December, he
“finalised” the Community Corrections part of the PAR in
IOMS.
[20] As I have said, a PAR is structured under a variety of standard form
headings.
Under the heading “Release Proposal” Mr Gilmour:
(a) summarised the drivers of Mr P’s offending that had been identified in the pre-sentence report and noted that he would need to have addressed these in order for him “to be successful in his bid for early release”;
(b) noted his criminal history in the Youth Court and went
into considerable detail about the violent nature of some
of his early
offending;
(c) detailed later offending by Mr P and noted “The index
offending was particularly violent” (which he described);
(d) mentioned several times that Mr P had completed the Tikanga
Māori Programme while in jail but commented (more than
once) that this did
not address the causes of his offending or his propensity for
violence;
(e) noted the role that alcohol had played in Mr P’s
offending, commenting that “Alcohol and drug use
may be deeply
ingrained” and had “not been dealt with”;
(f) commented that anger management had not be dealt with
and
expressed the view that it “needs to be looked into before
release”;
(g) noted that Mr P’s history of completing a community based
sentence
was poor;
(h) recorded that “The Dargaville police have been canvassed and
report they do not support the application for early
release”;
(i) stated that:
It is strongly recommended he under go [sic] a psychological evaluation given
the graphic nature of his past and the present offending
before release, which
would give further insight to his attitudes and would reflect on the management
strategies required. Also it
would help on the assessment of his risk of harm to
others and his risk of re-offending, which is presently assessed for both as
high.
[21] Under the heading “Accommodation” Mr Gilmour recorded that
the proposed
address was that of Mr P’s aunt, Ms R. He said:
Ms [R] has a young child of two and a half months of age. As Child Youth and Family have considered Mr [P] as a risk to his own child and ex partner,
Ms [R] was informed of their concern and that, that department may have
concerns for the safety of her child. As there was insufficient
time to involve
that department in the decision making, after an intensive and extensive
conversation addressing the safety of her
child the conclusion was reached that
it is doubtful that Mr [P] would present as a risk to his cousin.
[22] Under the heading “Relationships”, and in relation to Mr
P’s former partner,
Mr Gilmour wrote:
A request for information was sent to Child Youth and Family concerning
contact with Mr [P] on the 15th August 2013. The result is that
Child Youth and Family do not support any contact by Mr [P] or of him cohabiting
with any children
under the age of 17 years. There is concern by Child Youth and
Family of him having contact with his child and partner which could
put their
safety and the court Child Youth and Family plan at risk.
[23] And finally, under the heading “Community/Whanau/Hapu
support” he said:
Mr [P] has to understand the basics of human behaviour and he will need to do
some hard yards in changing his life by first seeking
out people that are not
associated with offending. To change his life he first has to change his
friends which requires him to
make some changes in his approach and
attitudes.
[24] Ms Beazley reviewed this content in IOMS and noted that it contained
some factual errors. But Mr Gilmour refused to make
any further changes to it.
The matter was “escalated” internally with the result that (inter
alia) the following deficiencies
were identified with Mr Gilmour’s
contribution:
(a) it contained irrelevant material that duplicated what was already
before the Board;
(b) it omitted relevant information about programmes Mr P had
completed;
(c) contrary to what the draft said or suggested, Mr P had no known history
of domestic violence;
(d) no clear release pathway was identified (in the event that the Board was minded to grant parole); and
(e) it appeared to constitute Mr Gilmour’s personal and subjective
views
about Mr P rather than an objective, professional assessment.
[25] These concerns were fed back to Mr Gilmour, through Mr Oliver.
Again, Mr Gilmour refused to make further changes and (at
some point) left the
Dargaville Community Corrections office.
[26] Mr Gilmour’s contribution to the PAR was subsequently redrafted by another Community Corrections employee and returned to NRCF. The content was reviewed and finalised by Ms Mills on 13 December 2013. Ms Mills signed the PAR as the “Departmental Representative”. Mr P also signed the PAR. The probation officer’s
name recorded on the PAR is Mr Gilmour’s.3
[27] Apart from identifying Mr P’s risk factors and how they had
been and might further be addressed, the revised PAR refers
to none of the
matters I have set out at [20] and [21] above. It records:
(a) Mr P’s participation in several courses or programmes not
mentioned by Mr Gilmour and that he had received
“accolades for
his contribution and commitment” to the Maori Therapeutic
Programme;
(b) that his final progress report stated that Mr P:
...acknowledges the influence of his past patterns of gangster styled
lifestyles of offending encouraged by his harmful patterns of
drug and alcohol
use, as well as offence related thoughts and feeling coupled with his pro
offence friends and/or family and
also the use of violence as a management tool
has had not only on him but on his family too. He has also put some time and
energy
in to finding pro- social friends and family to help support him on
re-entry in to the community and of his maintaining an offence
free lifestyle in
the future.
(c) that he has requested assistance in dealing with his anger
issues;
3 After Mr Gilmour had become aware of the changes that had been made to his contribution to the PAR annotations were placed on IOMS to make it clear that he had not authored the final content.
[28] The PAR noted that both Ms R’s address and Mr P’s
grandmother’s address
had been assessed as suitable. It recorded that:
Child Youth and Family and New Zealand Police have been consulted for input
into the suitability of the proposed address and at the
time of finalising this
report, neither agency had provided a response.
[29] The PAR also noted that Mr P had a one year old son with whom he
wished to build an “active care giving role”.
It identified a
programme which would be available to assist him in building that relationship.
The PAR makes recommendations
about suitable special release conditions
including proposed further activities or programmes but does not opine on the
“ultimate
issue” namely whether Mr P should or should not be granted
parole.
[30] The revised PAR was provided to the Board in advance of the January
2014 hearing, along with the required information relating
to Mr P’s
current and previous convictions, sentencing notes (which are detailed) and
pre-sentence reports. Mr P was refused
parole. In its decision, the Board
noted:
(a) Mr P’s RoC*RoI score of 0.636;4
(b) the details of his convictions for violence and that these were of
concern;
(c) the programmes he had completed and proposed to
complete.
[31] The rest of the decision report is worth setting out in full. The
Board said:
... 4. Mr [P] told us he learnt a lot while he has been in prison. He
acknowledged the lifestyle he was leading and wanted to
lead was that of a
gangster. He said he put himself into situations where he could portray that
gangster lifestyle. He mixed with
a group of other youths who are not working.
He has consistently carried weapons with him to keep himself safe. He now
recognises
that his future lies in mixing with positive people. He acknowledges
the support of his family and is committed to working with them
to avoid
re-offending. 5. He was supported today by his nan and
4 RoC*RoI refers to the combined risk of conviction (R0C) and imprisonment (RoI) within the five years following an offender’s release from prison. It is an actuarial measure calculated at the beginning of a prison sentence using static risk factors, which remain constant over the course of the sentence. Both Mr Gilmour’s PAR and the revised PAR recorded Mr P’s RoC*RoI score on the cover page.
his mother. They had attended two whanau huis [sic] with Mr [P] and as a result had prepared a detailed plan as to the support that the whanau was able to provide to Mr [P] when he leaves prison. It was a very well structured and considered plan that saw Mr [P] engaging with a substantial residential drug and alcohol programme when he leaves prison, such as Odyssey House or Te Hurihanga. Mr [P] told us he is committed to that plan. 6. Of concern to the whanau and of more concern to the Board is this thread of violence that has permeated Mr [P]’s offending. There is also his consistent history of breach and failing to comply with his obligations but there is a background of violence that has not yet been fully understood or fully dealt with. There appears to be a deep seated issue that is of particular concern to the Board.
7. Whilst Mr [P] does not have a RoC*Rol that reaches the threshold for a psychological report the Board would nevertheless be greatly assisted by a
psychological assessment focusing on the anger issue, and recommendations
for treatment and the pathway forward. 8. In the meantime we are of the
firm view that Mr [P] needs to attend the Drug Treatment
Unit and support his
tentative placement at the DTU-3 at Auckland Prison. There is considerable
work to be done before Mr [P] can
be safely returned to the community but he is
on the right path. ...
[32] Parole was, accordingly, declined. The Board noted that Mr P would
be scheduled to be seen again in July by which time
it hoped the psychological
assessment would be available.
The declarations sought
[33] By way of memorandum dated 1 April 2016, Mr Templeton proposed amended terms for the declarations sought by Mr Gilmour. He sensibly abandoned the claim for a declaration that the PAR essentially involved a “forgery”, due to Mr Gilmour’s name remaining on it following the rewriting. He advised that the two
declarations he wished the Court to make are as
follows:5
1 The Department cannot lawfully file the statutory report
(“PAR”) to the Parole Board (“Board”)
under the Parole
Act 2002 relating to a prisoner seeking release on parole when all relevant
information available at the time
was not placed before the Board in the PAR
purported to be written in part by the named probation officer who did not write
the PAR
nor agree with its contents and when:
(a) probation officers are required pursuant to their defined
statutory function and mandatory departmental standards
for PARs to provide
information to the Board and prison managers as they may require under any
enactment and
(b) probation officers have
existing direct statutory relationships with Boards when probation officers
provide relevant information
to Boards pursuant to other separate statutory
duties relating to parole and
(c) having regard to the Board’s paramount statutory principle
of safety the community when making decisions about or
in any way relating to,
the release of an offender on parole.
2. Given the statutory imperatives relating to the Parole
Board as described in s 25(1)(e) of the Corrections Act
2004, and s 7(1), s
7(2)(c), s 7(3) 14 [sic] s 15, s 28(2) and s 43(1)(c), s 43A, s 60(2), s
111(3)(b), s 117 of the Parole Act 2002,
every PAR filed with the Board for a
parole hearing must properly address for the Board’s consideration whether
an offender
might pose an undue risk to the safety of the community or any
person and their likelihood of further offending. The PAR content
provided by
Mr Gilmour did address these issues, but the PAR ultimately filed with the Board
did not.
[34] With respect to Mr Templeton, these would be inaptly worded
declarations even were I to be persuaded to accept his various
submissions.
Each is too detailed and contains relative expressions such as “all
relevant information” and “must
properly address” that beg
important questions, such as: What information is “relevant”? What
does “properly”
require? I therefore propose to address Mr
Gilmour’s claim by asking and answering the specific legal questions
which,
in my view, are raised by it. There are not many. If any of them is
answered in Mr Gilmour’s favour, then thought can
be given to the
appropriate form of declaratory relief.
[35] So. The questions are:
(a) who is responsible in law for meeting the obligation imposed by
s 43(1)(c) of the PA and the provision of a PAR to the
Board?
(b) does a probation officer who is involved in the preparation of a
PAR have a direct statutory relationship with/owe direct
statutory obligations
to the Board?6
(c) is a PAR provided to the Board for a parole hearing
required to address whether an offender might pose an undue
risk to the safety
of
6 To the extent that this question is not answered by (a).
the community or any person and their likelihood of further
offending?
[36] Each will be addressed in turn.
Who is responsible in law for the provision of a PAR to the Board and for
meeting the obligation imposed by s 43(1)(c)?
[37] In my view, the terms of s 43 are clear and unambiguous.
It is the Department of Corrections which must provide
the Board with the
information and reports listed and a s 43(1)(c) report (a PAR) is to
be “by the Department
of Corrections”.
[38] While it is neither particularly common nor recommended legislative
practice to confer statutory powers on departments per
se,7 there
are clear lines of responsibilities that flow from doing so. In particular, s
32(1) of the State Sector Act 1988 (the SSA)
provides that the Chief
Executive of the department is responsible to the appropriate Minister for
(inter alia)
(d) the stewardship of—
(i) ...
(ii) the legislation administered by the department or departmental agency;
and
(e) the performance of the functions and duties and the exercise of
the powers of ... the department ... (whether imposed by
any enactment or by the
policies of the Government); and
...
(g) the integrity and conduct of the employees for whom the
chief executive is responsible; and
(h) the efficient and economical delivery of ... services provided by
the department ... and how effectively those ... services
contribute to the
intended outcomes.
[39] And s 34(2) of the SSA provides:
(2) The chief executive of a department ... shall have the
powers necessary to carry out the functions, responsibilities,
and
duties
7 See the discussion in the Legislation Advisory Committee’s Report No 4 Departmental Statutes
April 1989.
imposed on that chief executive by or under this Act, as well as the powers
necessary to carry out the functions, responsibilities,
and duties imposed on
that chief executive or that department ... by or under any other
Act.
[40] Accordingly what s 43(1) effectively does is impose obligations on
the Chief Executive of the Department to provide the Board
with the information
there specified. The Chief Executive is, in turn, responsible to the Minister
for meeting those obligations
and it will be the Chief Executive and/or the
Minister who will be responsible in the event of some error or failure in that
regard.
And as s 32 of the SSA also makes clear, the Chief Executive is
responsible for the integrity and conduct of Corrections
Department
employees, including Mr Gilmour’s. There is really nothing remarkable
about any of that.
[41] I am not persuaded to differ from this straightforward reading of s
43(1) by the existence and terms of s 25 of the CA, which
was particularly
relied on by Mr Templeton. Although I have set out s 25(1)(e) above, I repeat
it for convenience here. It stipulates
that the functions of probation officers
under the Act include the provision of “all the reports and information
that a court,
the New Zealand Parole Board, or a prison manager may require
under any enactment”.
[42] I agree with Mr Perkins that s 25(1) merely reflects the reality that powers are conferred on other persons or entities by other enactments to require probation officers to provide certain reports and information.8 While the words of s 25(1) suggest that the Parole Board might be one of those entities having such a power, that does not mean that a gloss must be placed on s 43(1)(e) whereby the words “Department of Corrections” are to be read as meaning “parole officer”. Rather, I
accept Mr Perkins’ submission that the reference to the Board at this part of the provision is likely to be an historical artefact that reflected s 34 of the PA prior to its
amendment in 2014.9
8 Section 26(1) of the Sentencing Act 2002 is but one example.
9 As originally enacted s 34(1) provided that:
On receiving an application under section 33 for home detention, the Board must request a report from a probation officer on the offender’s suitability for home detention, and the report must address the matters listed in section 35(2)(b). [emphasis added]
The references in s 34 to probation officers have now been replaced with references to the Chief
Executive of the Department of Corrections.
Does a probation officer who is involved in the preparation of a PAR have
a direct statutory relationship with/owe direct statutory
obligations to the
Board?
[43] For essentially the same reasons, the answer to this question must
be “no”.
To reiterate, there are three principal reasons for this:
(a) the relevant statutory relationship here is expressly stated
to be between the Board and the Department. That is
also reflected in the MOU
and in the fact that a PAR is required to be signed by a “departmental
representative”;10
(b) as an (unchallenged) operational matter, a PAR has two distinct
components only one of which can be completed by a
probation officer.
The other is completed by staff within the prison where the relevant offender
has been housed (which necessarily
focuses on an offender’s conduct and
progress within prison). It would make no sense to interpret s 43 as placing
legal responsibility
for the report on an individual parole officer;
(c) by contrast, the CA does, on other occasions, impose
powers or functions directly on parole officers. Thus (for
example) s 60(2)
provides that in certain circumstances a parole officer may apply
directly to the Board for an order that
an offender who is released on parole be
recalled. But that is because it is individual parole officers who are
responsible for
particular offenders who are paroled and it will be them who are
most likely to be in a position to know about the circumstances
and details of
any breach.
Is a PAR required to address whether an offender might pose an undue risk
to the safety of the community or any person and
their likelihood of
further offending?
[44] Again, the answer must be no.
10 The fact that a probation officer’s name is also included on the front page does not, in my view,
signify either authorship or responsibility for the content of the PAR.
[45] The starting point is that the PA is silent on the content of such
reports. But Mr Templeton submitted that their required
content can be
inferred from other provisions in the Act, and in particular those referred to
in the draft declaration sought,
namely ss 7(1), 7(2)(c), 7(3), 14, 15, 28(2),
43(1)(c), 43A, 60(2), 111(3)(b), and 117.
[46] It is of course indisputable that the PA is centrally concerned with
risk and risk assessment, as many of those provisions
highlight. For
example:
(a) section 7 (which sets out the Act’s “guiding
principles”) provides that in every case which comes before
the Board the
paramount consideration is the safety of the community and that when assessing
undue risk in the context of a parole
decision, consideration must be given
to:
(i) an offender’s likelihood of further offending; and
(ii) the nature and seriousness of any likely subsequent offending; (b) the focus of many of the ss 14 and 15 release and special release
conditions are on the management of risk;
(c) section 28(2) provides that the Board may only grant parole if it
is satisfied on reasonable grounds that the offender,
if released on
parole, will not pose an undue safety risk (within the term of the sentence)
having regard both to—
(i) the support and supervision available to the offender following release;
and
(ii) the public interest in the reintegration of the offender into society
as a law-abiding citizen; and
(d) section 111(3)(b) requires that a person appointed to the Board is regarded as having the ability to make a balanced and reasonable
assessment of the risk an offender may present to the community when
released.
[47] And as ss 7(c) and 117 make clear the Act recognises that the Board
needs to have before it relevant material in order to
make properly informed
decisions. For that reason it is not confined to the reports provided to it and
may request and receive other
material including oral evidence. But I am unable
to see how that fact advances Mr Gilmour’s position.
[48] In my view, all these provisions merely serve to emphasise the
signal point that it is the Board, and no other, who is expressly
charged with
assessing risk and with making parole decisions. While the Board receives
administrative and training support from
the Department of Corrections it is
statutorily independent (s 108). Expertise in risk assessment is not only a
prerequisite to appointment
but is a skill which is developed further as a
result of appointment.
[49] The purpose of s 43 is to ensure that the Board has before it the information it needs to make that risk assessment. That information is expressly required to include relevant information relating to the offender’s current and previous convictions, including sentencing notes and pre-sentence reports. That is the very material upon which Mr Gilmour principally relied when writing his report. Importantly, however, there is nothing to suggest that the Department, probation officers or any of the other persons or entities required to report under s 43 have
either an advisory or recommendatory role in that regard.11
Indeed, their assuming
such a role would cut directly across both the Board’s statutory
independence and its expertise.
[50] As it happens, all the points just made are perfectly exemplified by the present case. The Board’s decision in relation to Mr P expressly recorded many of the same concerns that had been expressed by Mr Gilmour without the benefit of his report. That is (no doubt) because the Board had before it all the information upon
which Mr Gilmour had based his own assessment. It seems to me that the
only
points made by Mr Gilmour in his PAR and which
did not feature in the Board’s consideration were either wrong or
irrelevant.
And, of course, the outcome was that the Board did not grant
Mr P parole on that occasion.
Conclusion
[51] No error has been identified in relation to the Department’s
PAR process in relation to the consideration of Mr P for
parole. No grounds for
declaratory relief have been made out. The claim is dismissed
accordingly.
[52] The respondent is entitled to 2B costs in the usual way. Memoranda
may be submitted if agreement cannot be
reached.
Solicitors: Sellar Bone and Partners, Auckland, for Plaintiff
Counsel Instructed: WGC Templeton
Crown Law, Wellington, for Defendant
“Rebecca Ellis J”
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URL: http://www.nzlii.org/nz/cases/NZHC/2016/1352.html