Genge v Chief Executive Department of Corrections [2018] NZHC 1302 (5 June 2018)

Last Updated: 13 July 2018

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE CIV-2017-409-000356 [2018] NZHC 1302

BETWEEN	RICHARD GENGE Applicant
AND	THE CHIEF EXECUTIVE DEPARTMENT OF CORRECTIONS First Respondent
AND	THE ATTORNEY-GENERAL Second Respondent

Hearing:	10 April 2018 and 29 May 2018
Appearances:	R Genge self-represented Applicant R S May for First and Second Respondents
Judgment:	5 June 2018

JUDGMENT OF NICHOLAS DAVIDSON J

INTRODUCTION

[1] This judgment concerns the circumstances in which Mr Genge as a serving prisoner was re-classified to high security status in May 2016, and his later attempt to have that reconsidered.

[2] His reclassification was not reconsidered promptly as it should have been under s 48(2) of the Corrections Act 2004, and this is now accepted by the respondents who have, after initial opposition, taken what I consider a proper and reflective approach to this judicial review. In that they, the Court, and Mr Genge,

GENGE v THE CHIEF EXECUTIVE DEPARTMENT OF CORRECTIONS & ANOR [2018] NZHC 1302 [5 June 2018]

have been much assisted by the careful submissions of Mr May as counsel for the respondents.

BACKGROUND

Mr Genge’s security reclassification

[3] Mr Genge is serving a sentence of life imprisonment and has been in custody since 24 September 1994.

[4] In January 2016, he was working in the prison engineering workshop, in the Kotuku Unit, which houses prisoners with low-medium and low security classifications.

[5] He was charged with misconduct on 23 February 2016 but a security review was not undertaken as it was not thought warranted. He was sentenced to 14 days loss of privileges.

[6] On 19 May 2016, there was a further incident about which the Court has been told in some detail, and he was charged with abusive, threatening and intimidating behaviour under the prison disciplinary system. The charge was not heard until 4 August 2016. It was found proved and he was sentenced to confinement with loss of privileges.

[7] For this incident Mr Genge was reclassified from low-medium to high security, which meant he could no longer work in the prison engineering workshop. As he explained to the Court, the opportunity to work is very important to him as a long serving prisoner, and the time spent out of his cell is far more liberating and tolerable under a low-medium or low security classification than under high security.

[8] Mr Genge in these proceedings says he had not been found guilty in respect of the incident on 19 May 2016 and losing his work opportunity was a penalty, so his reclassification was in breach of s 25(c) of New Zealand Bill of Rights Act 1990 (“NZBORA”) as contrary to the presumption of innocence. He also says it was
unreasonable, and inconsistent with the Prisons Operations Manual (“POM”) and certain international instruments.

The reclassification process

[9] The decision to reclassify Mr Genge to high security was made by the senior supervisor, Mr Creagh, following a points-based assessment which placed Mr Genge in the high security range. As Mr Creagh explains in an affidavit, “the process of assigning, reviewing and reconsidering security classifications of prisoners is governed by ss 47 and 48 of the Corrections Act 2004 (“the Act”) and Corrections Regulations 2005 (“the Regulations”) 44 – 52.” There are guidelines for this process in the POM. A prisoner serving more than three months is assigned a security classification to reflect the level of risk he or she poses to staff and other prisoners, the risk of escape, and the risk that escape would pose to the public. The classifications range through maximum, high, low medium, low and minimum, based on instructions issued by the Chief Executive under s 196(1) of the Act. A security classification determines matters such as the unit in which the prisoner is housed, their access to employment opportunities and rehabilitative programmes, the number of hours spent in their cell, and visitation rights.

[10] When assigning a security classification for a prisoner, the assessing officer is required to take into account matters such as the seriousness of the offending, the length of sentence, any history of escape or attempted escape, violent behaviour or mental ill-health. Overall a prisoner must be assigned the lowest classification under which he or she can be safely and securely managed, given the assessment of the level of risk posed by them.¹ A review must be undertaken every six months or whenever there is a significant change arising from the prisoner’s circumstances, for example following a charge arising from an incident in the prison, or an attempt to escape.² The review must bring to account the prisoner’s offence history, behaviour in prison, mental health, and motivation to achieve objectives set out in an individual management plan.³

¹ Corrections Regulations 2005, reg 44(1).

² Corrections Act 2004, s 47 (3)-(4).

³ Regulation 48.

[11] The security classification process is electronic, under an integrated offender management system (“IOMS”), and the preliminary or indicative security classification is reached based on the accumulated ‘points’ score. That score is reviewed by the officer responsible for the classification, and then reviewed for approval or otherwise by a senior staff member. The IOMS scoring system is not determinative, but indicative, and can be overridden.

[12] The disciplinary regime is quite separate from security classification. It is directed by ss 128 to 140 of the Act and Part 11 of the Regulations. Classification is associated with management and the day to day risk profile. Immediate reclassification action may be undertaken based on present and future risk, but not as a punishment. The disciplinary regime is directed to punishment and deterrence and natural justice in addressing charges requires there to be delay before determination.

[13] Employment is recognised as rehabilitative and sometimes carries risks. It is not a minimum entitlement of a serving prison under s 69 of the Act and under 196 there is no legitimate expectation of constancy in the conditions, programmes or opportunities provided to a prisoner. Practical employment opportunities are available only in lower security units and for high security prisoners these are theory based. The exception is for practical work in the kitchen.

Mr Genge’s challenge on judicial review

[14] The incident on 19 May 2016 which resulted in Mr Genge’s security reclassification is strongly disputed by him on the facts. The substance of that is not the issue for this judgment but bears mention. He was escorted for a medical appointment and there was an altercation.

[15] Mr Creagh approved the classification review on 26 May 2016. He referred to the calculation of points for convictions and charges under the Act in the previous six months for drug, violence and escape related offences, for incidents in the past six months, compliance with staff requests and positive interactions with staff and other prisoners.
[16] The preliminary assessment of high risk was confirmed by Mr Creagh. This meant he was no longer suited to the lower security Kotuku Unit, a “huts unit”, which is composed of connected wooden buildings around a courtyard, unlike high security units. Mr Genge was moved to the high security Rawhiti 2 Unit in May 2016.

[17] Mr Genge contests the calculation of points in a number of respects, to which I will refer shortly, but I do not make any findings in this regard because the fundamental issue for this judicial review relates to the way in which Mr Genge’s request for reconsideration of his reclassification was dealt with. Before I turn to that, I refer to the later and regular review on 2 November 2016 whereby Mr Genge was reclassified back to low-medium, and moved into the Te Ahuhu Unit in January 2016. There he was offered work and the opportunity to attend a basic training programme in plumbing, mechanics and painting.

THE RECONSIDERATION REQUEST

[18] On 13 September 2016 Mr Genge wrote to the Chief Executive. In his handwritten letter, he said:

“... I am writing to you so that you might reconsider my classification under s 48(2) of the Corrections Act 2004.”

[19] He then referred to his reclassification of 24 May 2016 and set out his reasons for reconsideration. He said he had no charges for drug, violence or escape related matters, or any convictions for any offence. He referred to his never having been sent to the At Risk Unit (“ARU”), although the points assessment said he had. He said that he was placed on a misconduct charge which conflicts with the POM in its reference to a prisoner being assigned the lowest level of security classification at which the prisoner can be safely and securely managed, on assessment of the level of risk.

[20] He also challenged the security classification review as being undertaken for the purpose of facilitating loss of privileges, transfer to another unit or prison, or to facilitate access to programmes. He said any change in his risk profile was likely to last less than a month and even after he was charged he continued to work in the
engineering workshop. He challenged the inclusion of the incident on 19 May, which had by then been dealt with in the disciplinary process.

[21] The Manager of Ministerial Services relied to Mr Genge on 27 September 2016 and said that if he wished to seek reconsideration he must complete a PC.01 form so staff could begin that process, which would then be completed within five working days.

[22] In a PC.01.Form.01 dated 13 October 2016, Mr Genge referred to his letter to the Chief Executive of 13 September 2016 which requested a classification review under s 48(2) of the Act, and explained why. He referred to the reply from the Manager at Ministerial Services, Corporate Services, saying he should complete a PC.01 form, but s 48(2) of the Act refers to his writing to the Chief Executive. He wrote:

In my letter to Chief Executive Ray Smith 13-9-2016 I requested my classification be reviewed in line with section48(2) of the Corrections Act 2004, I explained which sections were scored wrong and stated why they were wrong and, showed instances where the Prison Service Operations Manual were breach – M.02.01(5)-M.02.01.05(4)-M.02.01.08(3) see the note at bottom of the page, of M.02.05 Manager Ministerial Services, Corporate services replied to my letter to Ray Smith Chief Executive stating I should complete a PC.01 form, but the statutory legislation, 49)2) Corrections Act 2004 states to write to Chief Executive, then Manager Ministerial Services states a prisoner is unable to request a reconsideration of their classification review if such a request has been completed in the previous six months- I last applied for a review on 28-06-09 under section 48(2) Corrections Act 2004.

[23] Mr Malone, as Principal Corrections Officer, says this PC.01 form does not record a request by Mr Genge for reconsideration of his security classification, but rather a complaint that Corrections had not complied with its obligations under the Act. Mr Malone says that he explained to Mr Genge that to request reconsideration he would have to fill out a separate PC.01 form to be loaded into the system. That advice is recorded in Part C of the 13 October 2016 form which reads:

Further action taken:

Request for reclass (sic) to be placed on PC.01. This will then be loaded and action as per procedure. PC.01 form provided and handed to prisoner.

[24] Because he believed Mr Genge intended to request reconsideration he did not wait for him to request a PC.01 form, and he printed out a fresh form which he handed to him. There was no further request for reconsideration using this second PC.01 form.

Development during hearing of this proceeding

[25] This judgment does not purport to address in detail some of the legal challenges made by Mr Genge to the way in which his security classification review was undertaken following the incident on 19 May 2016. Those challenges have been mentioned, but given the outcome of this judgment they are subject to observations only.

[26] It was clear by the end of the first day of hearing of 10 April 2018 that Mr Genge had very clearly sought reconsideration of his classification as high security. Therefore, by Minute of 20 April 2018, I identified three issues for further argument:

1. Was Mr Genge given the reconsideration that he was entitled to under s 48(2) of the Act?

2. If Mr Genge’s application for reconsideration was not considered in the way to which he was entitled (answered in (1) above), then how should the Court on judicial review regard the possible outcome of a proper reconsideration?

3. Relief.

If some relief is on the fact of it warranted, then what in the exercise of the

Court’s discretion should that be?

[27] Mr Genge had made it quite clear in his letter to the Chief Executive that he sought reconsideration of his classification. He followed up the reply with the very form that he was asked to complete, being PC.01, with the assistance of Mr Malone, and was given another PC.01 form which according to Corrections did not find its way into its records.

[28] Although it may have been worded more precisely in the PC.01 form as a reconsideration request, before them the substance of what Mr Genge sought when he wrote to the Chief Executive was quite clear. It is also clear that at least in one
respect Mr Genge’s request for reconsideration was well warranted because he had
never been sent to the At Risk Unit as had been counted against him.

[29] When the hearing resumed on 29 May 2018, Mr May responded to the Minute to acknowledge these facts, and I commend him, the Chief Executive and the Attorney for this. He agreed that it was “odds on” as I put to Mr May, “that he would have been successful in his reconsideration had it been undertaken at the time.”

[30] I recognise that in the prison system there must be compliance with the statutory, regulatory, and subordinate security classification and disciplinary provisions, and forms and procedure are important. At the same time, a serving prisoner, such as Mr Genge, has to wade through what to an outsider is a bureaucratic procedure, and in this case Mr Genge plainly did his best, and the substance of what he sought was quite clear.

[31] That is I infer why Mr May conceded on 29 May 2018 that there was a breach of s 48(2) of the Act, and that Mr Genge’s security classification was not considered promptly following his letter of 13 September 2016.

[32] That concession goes further than the submission by Mr Genge that he did file a PC.01 form on 13 October 2016, but that was a backstop to his primary argument that his letter of 13 September 2016 should have sufficed. However, the concession by Mr May allows a declaration which I conclude should be made, addressed under Conclusion and Disposition.

OBSERVATIONS

[33] The security classification process has been discussed in a number of cases.^.4 These and other authorities demonstrate that prison management and security classification regimes must not be confused with disciplinary regimes. Security classification decisions have a major impact on the day to day lives

4. Smith v Attorney-General [2017] NZHC 136 at [6]- [17]; Gorges v Chief Executive of the Department of Corrections [2017] NZHC 2518; Taylor v Chief Executive of the Department of Corrections [2015] NZHC 2196 at [7]- [25].

of inmates, and Mr Genge described that vividly when describing the effect of high security classification as opposed to low or low medium. Katz J in Smith v Attorney-General recognised this.⁵

[34] Security classification must be undertaken with procedural propriety and reasonableness, and it is not a punishment. The imperative is security, which in this regard prevails over natural justice and rights principles such as the presumption of innocence only to the extent necessary. In this there is no element of double punishment.

[35] The Court of Appeal in Bennett v Superintendent of Rimutaka Prison, denied a claim for habeus corpus, and held that a change of conditions which an inmate is subject to does not amount to punishment.⁶ Blanchard J said:

[53] The consequences of segregation in accordance with directions issued under s 7, as compared with the punishment of solitary confinement under one of the disciplinary provisions, were said to be quite different. Segregated inmates have the usual privileges concerning television, radio and electrical devices. They have access to private visitors, to exercise yards at specified times and to telephones. They are seen regularly by guards and, to the extent possible, their participation in courses etc, is maintained. On the other hand, cell confinement as a punishment following disciplinary proceedings involves up to 23 hours per day in the cell. There is a loss of privileges and limitation on visitors and on telephone calls, as well as segregation.

[36] Ronald Young J concluded to the same effect where a prisoner claimed he was punished twice when he was segregated due to threatening behaviour, and later disciplined for the same incident.⁷

[37] I agree with Mr May that the misconduct charges which Mr Genge faced were relevant to his points assessment, and there is clear authority that there is no double penalty involved. The Court will be slow to interfere with administrative decisions in the course of the day to day management of a prison where complex judgement calls are required.

⁵ At [8].

⁶ Bennett v Superintendent of Rimutaka Prison [2001] NZCA 286; [2002] 1 NZLR 616 (CA).

⁷ Taunoa and Ors v Attorney-General (2004) 7 HRNZ 379 (HC).

[38] There is no breach of s 25(c) NZBORA because that applies only where a person is charged with an offence and a security classification does not fall in this category. There is no double punishment because the security reclassification is not a punishment as a matter of law. The security classification review was not undertaken to facilitate a loss of privileges or transfer to another unit or access to programmes. It was simply a risk based assessment. There is no tenable argument that Corrections acted in a wrongful way in this regard. When Mr Genge says that security classification reviews should not be conducted in response to minor changes in risk that can be managed according to the guidelines, that is so obviously for prison management that this Court would never interfere with such a decision unless there was an egregious element of the decision making.

CONCLUSION

[39] These observations do not undo the merit of Mr Genge’s fundamental challenge that he should have had reconsideration of his reclassification promptly after he wrote to the Chief Executive. He is entitled to a declaration to that effect.

[40] He also seeks costs but he is self-represented and is not entitled to those. He also asked for a contribution towards his acquisition of legal texts which he has had to purchase with the assistance of his whanau. This application should not provide Mr Genge with a library with which to bring the several proceedings he has mounted in this Court and this challenge is in the end largely based in fact. Mr Genge alluded to something more than an apology for his success in this proceeding. There is no basis for that in my view. It was “odds on” he would have been successful in reconsideration, so for several weeks he would have had lower security classification, which he achieved by the review undertaken in November 2016. I do not minimise the effect on him in these few weeks. High security is a much tougher regime than lower security. He has proved his point and that will be recognised by this judgment.

[41] The respondents up to a point could have adopted an argument based on form rather than substance. That they did not do so is a credit to them. I acknowledge that Mr Genge did not mount excessive claims in this proceeding, although he was
wrong on several aspects of law. He was right in an important respect, on a narrow point.

DISPOSITION

[42] I declare that in breach of s 48(2) of the Corrections Act 2004 the Chief Executive of the Department of Corrections did not ensure that Mr Genge’s security classification was reconsidered promptly following Mr Genge’s letter of 13 September 2016.

[43] Disbursements are reserved.

...........................................

Nicholas Davidson J

Solicitors:

Luke Cunningham Clere, Wellington

Copy to:

Mr Genge (self-represented)