MILNE v THE CHIEF EXECUTIVE OF THE DEPARTMENT OF CORRECTIONS [2019] NZHC 3137

MILNE v THE CHIEF EXECUTIVE OF THE DEPARTMENT OF CORRECTIONS [2019] NZHC 3137 [29November 2019]IN THE HIGH COURT OF NEW ZEALANDCHRISTCHURCH REGISTRYI TE KŌTI MATUA O AOTEAROAŌTAUTAHI ROHECIV-2019-409-13[2019] NZHC 3137UNDER The Judicial Review Procedure Act 2016.IN THE MATTER OF An application for judicial review in relationto the management of the applicant'sExtended Supervision Order.BETWEEN ALLAN JOHN MILNEApplicantAND THE CHIEF EXECUTIVE OF THEDEPARTMENT OF CORRECTIONSRespondentHearing: 15 October 2019Counsel: A Bailey for ApplicantM N Zarifeh and W S Taffs for RespondentJudgment: 29 November 2019JUDGMENT OF WHATA JThis judgment was delivered by me on 29 November 2019 at 4.00 pm,pursuant to Rule 11.5 of the High Court Rules.Registrar/Deputy RegistrarDate: .Solicitors: Hansen Law, ChristchurchRaymond Donnelly & Co, Christchurch[1] Mr Milne was released from prison on 31 January 2018, but he was subject toan extended supervision order (ESO), with intensive monitoring (IM) for 12 months.A special condition of his ESO is that he must reside at an approved address. It is astandard ESO condition that an offender must not reside at any address at which aprobation officer has directed them not to reside.1 On 8 January 2019, he was toldCorrections would not approve his then residential address beyond the period of hisIM. I will refer to this as the first demand. The effect of this, he says, was to forcehim from his then home. Then on 11 January he was told in person that he must leavethe address that day. I will refer to this as the second demand. He claimed that bothdemands were unlawful and unreasonable for mistake of fact and law, irrelevantconsiderations, irrationality and unfairness and thus infringed his rights to a fairprocess affirmed by s 27 of the New Zealand Bill of Rights 1990 (BORA) andunlawfully interfered with his tenancy rights.[2] During the hearing Mr Bailey withdrew Mr Milne's claims about the firstdemand. He was, with respect, sensible to do so. Mr Milne was residing at an addressthat was occupied by his programme provider, CRC Limited. Mr Milne had expressedconcerns about the restrictions placed on him by CRC Limited. These concerns werementioned at a Parole Board hearing about his ESO conditions in December 2018.The Parole Board said that it "did not regard it as appropriate for the Department toapprove the residence to coincide with the address of the programme provider".Corrections was therefore plainly justified in requiring Mr Milne to relocate to adifferent address.[3] The decision of the Court of Appeal in McGreevy, helpfully supplied to meafter the hearing by Mr Bailey, supports this conclusion.2 In that case, the appellantchallenged ESO conditions requiring him to be accompanied and monitored at all thetime. The Court there said:[32] We agree with Mr Bailey's submission that monitoring offenders suchas Mr McGreevy outside the hours of the activities of the IRRP (IndividualResidential Reintegration Programme) (including whilst asleep) cannot bejustified as meeting the statutory objectives of the IRRP of rehabilitation andreintegration in accordance with the requirements of s 15(3)(b) of the Act. Mr1 Parole Act 2002, s 107JA(e).2 McGreevy v Chief Executive of the Department of Corrections [2019] NZCA 495.McGreevy cannot be said to have been "participating" in an IRRP 24/7.Monitoring when no attempt was being made to deliver the IRRP was notpermitted.[33] Next, s 107K only permitted an offender to be accompanied andmonitored up to 24/7 if the offender was subject to a 24-hour residentialrestriction, and then only for the first 12 months of the term of the ESO. TheParole Board had not imposed such a condition on Mr McGreevy. TheDepartment could not implicitly have been granted such an extensive power.[34] The Judge appeared troubled by this issue but apparently reconciledit by relying on the fact Mr McGreevy was subject to a residential programme.But the IRRP programme was not residential in the sense of a programme suchas an alcohol and drug rehabilitation programme. Rather, Mr McGreevy wassubject to residence conditions and was also subject to a separate requirementthat he participate in and complete an IRRP. They were two separateconditions. Although aspects of the IRRP were carried out where MrMcGreevy was living it was not a residential programme as such. To the extentthat aspects of the programme were carried out at the residence where MrMcGreevy lived, they ceased at 5 pm. There was still no need for him to bemonitored for up to 24/7.[4] The decision therefore to disapprove Mr Milne's ongoing accommodation withhis programme provider was plainly mandated by the Act irrespective of the ParoleBoard decision. However, the remaining claim in respect of the second demandnevertheless raises an ongoing issue of reasonableness, that is: whether it wasreasonable for Corrections to insist that Mr Milne move immediately. This decisionaddresses that issue.Background[5] On 27 September 2018, Mr Milne moved into an address on Sawyers ArmsRoad, in Christchurch (the Sawyers Arms address). These premises were leased byhis programme provider, CRC Limited. Mr Milne was their tenant. Staff membersand other persons subject to an ESO resided on the property, which consisted of twocottages. Mr Milne was however the only person subject to IM.[6] Mr Milne was not happy with, among other things, his tenancy at the SawyersArms address. He brought an application to the Tenancy Tribunal alleging amongother things breach of his right to quiet enjoyment. His discontent is also evident fromsubmissions his counsel Mr Bailey made on his behalf to the Parole Board. As theParole Board noted in its decision of 20 December 2018:We note Mr Bailey's submission that in terms of section 107K(3)(bb)ii) of theParole Act, the Board may not impose a condition that will result in Mr Milneresiding with the agency who is providing the programme. Ms Currie soughtto distinguish the programme requirement from the condition requiring MrMilne to live at an address approved by a Probation Officer. We do not agreewith that interpretation. Although the condition imposed by the Board withrespect to Mr Milne's accommodation leaves it up to him to propose where hewill live, which must then be approved by his Probation Officer, we do notregard it as appropriate for the Department to approve the residence tocoincide with the address of the programme provider. That seems to us to becontrary to the intention of the accommodation restriction imposed by section107(3)(bb)(ii) of the Act.[7] This was followed by a letter from CRC dated 27 December 2018 givingMr Milne 90 days' notice of termination of his tenancy. The Parole Board decision,together with the concerns raised by CRC Limited, also triggered a rethink inCorrections about the suitability of the Sawyers Arms address for Mr Milne, and in aletter dated 8 January 2019, Ms Gibling for Corrections wrote to Mr Milne advisinghim that it would not approve his residence at the Sawyers Arms address after31 January 2019. As noted, this was the first demand.[8] This was followed by an email from Mr Bailey to Ms Gibling about, amongother things, the timing of Mr Milne's exit from the Sawyers Arms address, whetherhe would be placed at a Kirk Road address (on prison grounds), whether he wouldhave to pay rent and how long he would reside there. Mr Bailey indicated thatMr Milne required answers to these issues before he would make a final decision aboutwhether he would move to the Kirk Road address. Ms Gibling responded that asMr Milne had nowhere else to go after 31 January, the Kirk Road address had becomeavailable and need only be temporary until Mr Milne found another address. She laterconfirmed that he would not have to pay rent and attached the rules of residence.Mr Bailey then raised further issues with the proposed address and rules of residenceand repeated that clarification to all questions was required before Mr Milne wouldmake a final decision to move. Ms Gibling responded to various of the issues raised,noting also that the proposed address was the only house that was available at thattime.[9] The foregoing email exchange concluded at about 3.26 pm on Thursday10 January 2019. Soon after this, Ms Gibling and Mr Ryan Sterling (Acting ServiceManager) visited Mr Milne to discuss moving. The next day, Mr Milne was asked toattend a meeting at the probation centre and he did so with Mr Bailey present. At thatmeeting Mr Milne was told he could not reside at the Sawyers Arms address after31 January and that CRC had voiced concerns about his behaviour. Ms Gibling notesthose concerns in her affidavit. She states:So that I could be more specific as to the exact concerns from CRC'sperspective, I left the meeting and called Annie McNicol from CRC. I tooknote of some of the wording she used to express her concerns and returned tothe meeting. I did not note everything I knew to be an issue as I was alreadyaware of a number of problems from multiple conversations with CRC staff.I informed Mr Bailey that I would email the same concerns to him howeverthese proceedings were initiated before I had time to. The concerns I relayedincluded: the Applicant being more withdrawn; failing to complete expectedhousehold duties; the Applicant complaining about CRC staff, his conditionsand rules of the house and his not allowing others the space or respect to makedecisions for themselves in their own home. I told him that his behaviour hadbeen unpleasant and that he had sworn at and been rude to staff. I told theApplicant that his decision to share information regarding other residents withhis lawyer was inappropriate, that his pressuring others to have his lawyerrepresent them had been relayed to CRC by others as being stressful. I toldhim that encouraging others to manufacture complaints about their situationwith the promise of $9,000 was unhelpful and unsettling. I reiterated that themove to Kirk Road would be temporary and could be a positive one and wasintended as support not as a punishment.[10] After the meeting Ms Gibling gave Mr Milne a letter revoking his permissionto reside at the Sawyers Arms address. This is the second demand. Mr Milne also saysthat none of the alleged concerns were raised with him previously.Is the case is moot?[11] Mr Milne's case is essentially moot insofar as Corrections could not, even itwanted to, approve the Sawyers Arms address after 31 January 2019. It is no longer aCRC Limited residence. But the claim in respect of the second demand is not moot tothe extent that it raises legality and reasonableness issues and to the extent that it mightbe said Corrections infringed his s 27 BORA rights and or improperly interfered withhis right to reside at the Sawyers Arms Address pursuant to his tenancy with CRCLimited.[12] I note for completeness that the reviewability of a decision to disapprove aresidential location was not addressed by the parties. No consideration has been givento the scheme of the Parole Act 2002 and the mechanisms available within that schemeto review or otherwise challenge a decision to disapprove residence. I simply proceedon the basis that the decision is amendable to judicial review. This decision shouldnot be treated as definitive on that point.Reasonableness[13] Mr Milne claims the second demand was unlawful under various heads. Hesays that the second demand was based on a mistake of fact, mistake of law, irrelevantconsiderations, illegality, and that it was irrational and unfair. But, to my mind hiscentral complaint is that the second demand was plainly unreasonable. Morespecifically, he claims that:(a) contrary to the view formed by Corrections, the Parole Board did notfind that he could not reside at the Sawyers Arms address;(b) rather, the Board found that he could not reside with CRC Limited staff;(c) with his intensive supervision ending after 31 January 2019, there wasno need for CRC staff to reside at the premises;(d) other ESO offenders stayed at the Sawyers Arms Road address whowere not subject to intensive supervision, so Mr Milne's treatment wasirrational and unfair;(e) Corrections took into account a potential tenancy Tribunal claimwithout any basis for doing so, and which was in any event irrelevant;(f) Corrections wrongly and unfairly considered concerns raised by CRCwithout properly consulting him or affording an opportunity to respondto alleged concerns about his behaviour; and(g) Corrections effectively assisted CRC in circumventing his tenancyrights, and wrongly derogated from his right to fair process as affirmedby 27 of BORA.[14] While Mr Bailey did not frame his argument precisely in the following terms,I understand him to be saying that the second demand, requiring Mr Milne to moveimmediately, was plainly unlawful, unreasonable and unfair, in that no reasonabledecision maker, properly informed of the background, would demand Mr Milne'simmediate removal from the Sawyers Arms' address.3[15] In response to this issue, Mr Taffs submitted for Corrections that the decisionto disapprove a residential address was nevertheless based on the Parole Boarddecision and on information provided by a trusted service provider, CRC. Moreover,he says that the matters raised by CRC would not have been new to Mr Milne. Finally,given that he had indicated he wanted to move previously, there was no substantivedisadvantage to him.Assessment[16] I propose to address each of Mr Milne's main contentions before turning to theissue of reasonableness.The Parole Board decision[17] As noted above, there can be no serious complaint about Corrections seekingto comply with a clear direction of the Parole Board. On the contrary, Corrections arebound by such directions as they relate to specific ESO offenders, unless and until setaside by the Board or a Court.4CRC can move[18] Mr Bailey's submission that CRC staff need not stay at the Sawyers Armsaddress belies the reality of the situation. CRC provides rehabilitative services toclients. It also provides IM (24-hour monitoring) services. Mr Milne is a client ofCRC. It enters into a contract of services with Corrections in respect of each of its3 As to legality, reasonableness and unfairness see Council of Civil Service Unions v Minister forthe Civil Service [1985] AC 374 (HL); Peters v Davison [1999] 2 NZLR 164 (CA) at 180.4 Boddington v British Transport Police [1999] 2 AC 143 (HL) at 213; Murray v Whakatane DistrictCouncil [1999] 3 NZLR 276 per Elias CJ: "It is settled law that every unlawful administrative act,except perhaps in extreme cases of clear usurpation of power, is operative until set aside by aCourt."clients. At the time, the Sawyers Arms residence was one of only two residencesapproved for child sex offenders. Given this context, it was not at all realistic to expectCRC to move out to simply accommodate Mr Milne. Furthermore, CRC issued a 90-day notice terminating Mr Milne's tenancy on 27 December 2018 because the SawyersArms address had been sold.Other ESO persons allowed to stay[19] I accept that the fact CRC and Corrections allow other persons subject to ESOs(and who were not subject to IM) to continue to stay at the Sawyers Arms Road addressraises the spectre of inconsistency. But, given the clear direction the Parole Boardgave to Corrections about Mr Milne, that different treatment is explicable.CRC alleged concerns / unfair interference with rights[20] As noted Ms Gibling identified the concerns CRC raised about Mr Milne. Afull account of CRC's concerns was also given by Joanne Mai Keele, the servicemanager at CRC. She confirms that she sent a letter terminating Mr Milne's tenancyon 27 December because of the Parole Board direction. Ms Keele also refers toTenancy Tribunal complaints made by another person represented by Mr Bailey andthe concern that if Mr Milne remained at the Sawyers Arms address, he might"contrive a situation which would allow him to bring a claim in the Tenancy Tribunal".She said that the Department "is aware of the tenancy issues Mr Bailey has beenraising on behalf of his clients" and would have known that "if Mr Milne stayed atSawyers Arms Road it would be exposing CRC to another claim in the TenancyTribunal."[21] She identifies CRC's main concerns as follows:48 Over the past three months or so, I consider that Mr Milne has becomesignificantly more difficult and aggressive, both towards CRC staffand other residents. Some specific examples of incidents at SawyersArms Road that have concerned CRC include:48.1 He has entered into a relationship with another CRC clientwho resides at the property, which has led to an elevation ofrisk factors for both Mr Milne and the other client. CRC hasnoted a dramatic negative change in the behaviour of the otherclient. Among other things, the client has recently procuredfor Mr Milne a SIM card and a "Pokémon" DVD (thesignificance of which is that it was part of Mr Milne's indexoffending). CRC staff understand that those items wereobtained at Mr Milne's request;48.2 He has refused to engage in a meaningful way with hisreintegrative programme, and has made comments to CRCstaff to the effect that his victims consented to the offending,and that he "deserved" to offend because he "worked hard toget them" (I understand that "them" in this context is areference to his victims);48.3 He has been verbally abusive and aggressive towards CRCstaff. In one incident, following a discussion between anotherSawyers Arms Road resident and a CRC staff member whichdid not involve Mr Milne, Mr Milne immediately reacted tothe conversation and spoke aggressively towards his CRCstaff member, calling CRC staff "fucking idiots";48.4 He has largely refused to engage with finding alternativeaccommodation, as noted above;48.5 He owes money to a bank which has resulted in him having apoor credit rating. This significantly hampers his chances ofobtaining a rental property, but he has refused the budgetingassistance offered by CRC to help him clear the debt andimprove his credit rating;48.6 On several occasions, he has openly spoken to Mr Bailey onthe phone in the presence of CRC staff and other residents atthe property and has reported openly to Mr Bailey on themovements of people to and from the property as they occurand, of greater concern, his opinion on the mental state ofother residents. I believe that this has created an atmosphereof tension within the residents at the property;48.7 As noted above, he has told other residents on severaloccasions that their rights under the RTA are being breachedand that if they instruct Mr Bailey they will get compensationin the order of $9,000; and48.8 He has given the contact details of other residents toMr Bailey without their consent.[22] Mr Milne queries the relevance of the attention given to Tenancy Tribunalcomplaints by other people. He also denies the allegations referred to by Ms Giblingand made by Ms Keele and is surprised that they were not brought up with him.[23] I am not able to resolve whether the matters that Ms Keele identified did occur,but until Ms Gibling mentioned them on 11 January 2019, it is not evident that theywere clearly identified to Mr Milne. If not, then I accept there is some unfairness toMr Milne as it appears the second demand was made in part because of these concerns.This is also significant because any decision to approve or in this case disapprove ofa residential location affects the liberty of the person, particularly where, as here, thealternative residence is located on prison grounds. I also accept that a potentialTenancy Tribunal claim was an irrelevant consideration (assuming it was considered).[24] But I do not accept that Corrections was obliged to consult with Mr Milneabout CRC's concerns or if it was, the failure to do so in this case was not material.First, there is no statutory requirement to consult, though I accept an affected personmight hold a reasonable expectation that they will be afforded the opportunity tocomment on information that is materially averse to them. Second, as noted,Corrections was plainly justified in seeking to ensure that it followed the directionclearly given by the Parole Board. Mr Milne was aware of this concern. The concernsraised by CRC were, at most, ancillary to this concern. Third, CRC was a trustedservice provider, so it was not unreasonable for Corrections to place weight on itsrepresentations. Fourth, there was some need to move quickly, because of the limitedavailability of houses to accommodate child sex offenders. Given also the purpose ofpublic protection underpinning the ESO regime, it was incumbent on Corrections tomove quickly. Finally, like CRC's other concerns, the prospect of a Tenancy Tribunalclaim, even if wrongly considered, did not materially affect the legitimacy of thedecision to disapprove the Sawyers Arms address. For completeness, I reject also thesubmission that the decision to disapprove was made for an improper purpose, that isto assist CRC. It is clear to me that the overriding purpose was to secure compliancewith the Parole Board's direction.Was the decision unreasonable overall?[25] Stepping back from the detail, it is easy to see why Mr Milne is upset by whathappened. He was told he had to move out of his home immediately, having been toldjust 2 days earlier that he had 2-3 weeks to find alternative accommodation. It alsoappears that he was not told about some of the concerns raised by his landlord, CRC.The process adopted was therefore far from perfect. Given that the requirement tomove directly bears on Mr Milne's rights to freedom of movement and liberty affirmedat ss 18 and 22 of the BORA, his complaint is not without some justification. ButCorrections plainly had a proper basis for disapproving the address – the Parole Boardhad made it clear that it would be inappropriate for him to stay there beyond thetermination of his IM. Whatever CRC's concerns were, they were largely immaterialin any event. In addition, Corrections had to be sure that alternative accommodationwas in fact available to house Mr Milne.[26] Overall, therefore, and given Corrections' duty to ensure protection of thepublic, the decision to disapprove, together with immediate relocation, was lawful andnot unreasonable in the circumstances.Costs[27] If costs are sought and cannot be agreed, submissions may be filed within fiveworking days.