GORGES v THE CHIEF EXECUTIVE OF THE DEPARTMENT OF CORRECTIONS [2017] NZHC 2518 [16 October 2017]

GORGES v THE CHIEF EXECUTIVE OF THE DEPARTMENT OF CORRECTIONS [2017] NZHC 2518 [16 October 2017]IN THE HIGH COURT OF NEW ZEALANDWANGANUI REGISTRYI TE KŌTI MATUA O AOTEAROAWHANGANUI ROHECIV-2016-483-24[2017] NZHC 2518UNDER THE Judicature Amendment Act 1972, Part 30of the High Court Rules, the DeclaratoryJudgments Act 1908 and the common lawIN THE MATTER OF an action for judicial review, anddeclarationsBETWEEN ASHOR D GORGESApplicantAND THE CHIEF EXECUTIVE OF THEDEPARTMENT OF CORRECTIONSRespondentHearing: 23 March 2017Appearances: Applicant in PersonH M Carrad for RespondentJudgment: 16 October 2017JUDGMENT OF CLARK JPursuant to r 11.5 of the High Court Rules I directthe delivery time of this judgment is12:00 pm on 16 October 2017Introduction[1] Mr Gorges is currently serving a sentence of imprisonment of four years andone month. A prisoner who is subject to a sentence of imprisonment for a termexceeding three months is assigned a security classification.1[2] In this application for judicial review Mr Gorges challenges his securityclassification. He says the effect of the decision to classify him as "High" has beento impede his rehabilitation.Security classification system[3] Before turning to the substance of Mr Gorges' claims, and the process whichMr Gorges challenges, it is useful to set the scene with a brief summary of the security classification system.[4] In Taylor v Chief Executive of the Department of Corrections Ellis J determined an application by Mr Taylor to judicially review the security classification assigned to him.2 Ellis J's description of the legislative backdrop iscomprehensive.3 For the purpose of this proceeding the following summary is sufficient.[5] Security classifications are intended to reflect the level of risk posed by a prisoner while inside or outside the prison including the risk of escape and the riskthat escape would pose to the public.4 Although s 47(1) of the Corrections Act 2004(the Act) requires a security classification to be assigned to every prisoner serving aterm of imprisonment exceeding three months the Act does not prescribe theclassifications. The classifications have been left to the authority of theChief Executive to develop.[6] The Act does, however, prescribe other aspects of the classification process.1 Corrections Act 2004, s 47.2 Taylor v Chief Executive of the Department of Corrections [2015] NZHC 2196.3 At [7]–[25].4 Corrections Act, s 47(1).(a) A prisoner's classification must be reviewed every six months or whenever there is a significant change in the prisoner'scircumstances.5(b) A prisoner is to be informed of the assigned security classification, and whenever the classification is changed, and the reasons for the classification or the change.6(c) A prisoner who is dissatisfied with the classification may apply for reconsideration and the Chief Executive must ensure the classification is reconsidered promptly in the prescribed manner.7(d) Whenever a security classification is assigned to a prisoner or a security classification is reconsidered the prisoner must be informed in writing of the decision.8[7] A points-based system is used to determine a prisoner's securityclassification. Under the system points are assigned to each of the matters relevant to an assessment or review. Those matters are listed and discussed in a 15-page security classification guideline document (the guidelines).9 Internal and externalrisk factors are to be assessed. As Mr Gorges' assessment was based only on internal risk factors I describe only those.[8] There are five categories of internal risk. I set them out as they appear in the guidelines although without the associated commentary.A. INTERNAL RISKA.1 CRITICAL SECURITY FACTORSA.2 RISK OF ESCAPESA.3 CURRENT STATE OF MENTAL HEALTHA.4 OFFENCE HISTORYA.5 CO-OPERATION IN UNIT, WORKPLACE, PROGRAMMES5 Section 47(3).6 Section 48(1).7 Section 48(2).8 Section 48(3).9 Corrections Manual M.02.05 RES.01 Completing Male Review Security Classification Guidelines.[9] Because all of Mr Gorges' risk points were attributable to A.5, "co-operationin unit, workplace, programmes" I set out the further sub-categories within that grouping.A.5.1 NUMBER OF INCIDENT REPORTS IN THE PAST SIX MONTHSA.5.2 COMPLIANCE WITH STAFF REQUESTSA.5.3 POSITIVE INTERACTION WITH STAFF AND OTHER PRISONERSA.5.4 COMPLIANCE WITH PRISON RULESA.5.5 MOTIVATION TO ACHIEVE OFFENDER PLAN ACTIVITIES[10] The actual assessments are completed on a form within an electronic systemreferred to as the "integrated offender management system" (IOMS), the maincomputer system operated by the Department of Corrections. Some of the data required for completion of the form is pre-populated from the IOMS system which stores information relating to the prisoner. The remainder of the information is supplied by the Corrections officer undertaking the assessment or review.[11] There are five security classifications of risk: "Maximum", "High", "Low-medium", "Low" and "Minimum". Which of the five security classifications is to beassigned to a prisoner is essentially suggested by the sum of accumulated points.The "review classification points table" included in the guidelines illustrates the way in which accumulated points correspond to one of the five security classifications which the Chief Executive has approved. The classification points table is reproduced below.Part A Points(Internal Risk)Part B Points(External Risk) Classification33+ N/A Maximum19-32 N/A High0-18 17+ Low-Medium0-18 12-16 Low0-18 0-11 Minimum[12] While the process is highly prescriptive the outcome is not abandoned to automation. The preliminary classification reached as a result of the calculated scores for internal and external risk factors may be overridden. The guidelines setout the process for overriding the preliminary result. Reasons and supporting documentation are required.Relevant factual background[13] Mr Gorges' assigned security classification was reviewed on 7 March 2016 as part of the regular six monthly review process. Mr Gorges' internal risk factorsresulted in an accumulated points result of 22. This brought him within the range of points equating to a security classification of "High".[14] The assessing officer and the recommending officer recommended an override of the calculated classification to assign Mr Gorges a classification of"Low-medium". The approving officer declined to override the classification and confirmed the assigned security classification as "High".[15] On 8 March 2016 Mr Gorges requested a review of his security classification pursuant to s 48(2) of the Act. Mr Gorges disputed the various scores given to him for the internal risk factors.[16] On 10 March 2016 Ms Audrey Koti, senior advisor to the Regional Commissioner, undertook the review. Ms Koti made some changes to the points allocated but the overall score remained the same.[17] The alterations Ms Koti made in the course of her reassessment are shown in the following table.Category OriginalClassificationReconsiderationA.5.1 Number of incidents in the past 6 months 0 or 1 0A.5.2 Compliance with staff requests 3 (Average) 0 (Good)A.5.3 Positive interaction with staff and otherprisoners3 (Average) 6 (Poor)A.5.4 Compliance with prison rules 3 (Average) 3 (Average)A.5.5 Motivation to achieve offender plan 6 (Poor) 6 (Poor)[18] In a letter to Mr Gorges that same day Ms Koti advised the securityclassification of "High" was upheld.[19] Ms Koti gave the following reasons for her assessment:(a) In reviewing A.5.2 (compliance with staff requests) Ms Koti reviewed the information on IOMS and concluded Mr Gorges compliance withstaff requests warranted a score of "0 (Good)".(b) Ms Koti changed the assessment of A.5.3 (positive interaction withstaff) from "Average" to "Poor". Ms Koti considered that it was not accurate to say that Mr Gorges met the criteria for "Average". In her letter to Mr Gorges Ms Koti referred to seven offender notes evidencing negative interaction.(c) The score for A.5.4 (compliance with prison rules) was not changed.Ms Koti considered "Average" for this category "was the right score for Mr Gorges".(d) Ms Koti considered the score for A.5.5 (motivation to achieve offender plan activities) should remain "Poor". I return to a particularissue in contention arising from the reconsideration of A.5.5 namely, that Ms Koti reached her conclusion without being aware of anoffender note which is advantageous to Mr Gorges' interests.[20] Importantly, Ms Koti states that even if she had scored Mr Gorges "Average",for A.5.5 his point count would have been 19 which would still result in a securityclassification of "High".[21] Mr Gorges' security classification was reviewed again on 1 August 2016. He was assigned a classification of "Low-medium". The review form recorded Mr Gorges was extremely motivated to address outstanding programmes and was waitlisted for the Drug Treatment Unit (DTU) on the understanding he would be placed in a low security unit prior to placement on the course.[22] Following the change in Mr Gorges' security classification to "Low-medium" Mr Gorges was moved to Te Whānui Unit at Whanganui Prison so he could beenrolled in Te Tirohanga Drug Treatment Programme. The programme commenced on 29 August 2016.[23] On 7 October 2016 a decision was made to transfer Mr Gorges, for his own safety, to another low security unit. Arrangements were made for Mr Gorges to transfer to Hawkes Bay Prison so he could be enrolled in its DTU programme. Mr Gorges transferred on 26 October 2016.[24] Following the hearing before me an updating affidavit was filed on behalf of the respondent. On 31 January 2017 a review of Mr Gorges' security classification resulted in a classification of "Low-medium". The evidence shows that Mr Gorges was exited from the DTU on 1 March 2017 for reasons that were provided in writing to Mr Gorges. These have been discussed with him.[25] Mr Gorges was transferred to Auckland South Corrections Facility on 29 March 2017 and as at the date of the affidavit was waitlisted for the STURP beginning June 2017.Statement of claim[26] Mr Gorges' statement of claim advances six overlapping grounds of review:ultra vires; factual error; failure to consider relevant considerations; improper purpose; unfairness and unreasonableness.[27] Mr Gorges seeks:(a) a declaration that the impugned decision was unlawful, invalid and of no effect;(b) a declaration that to progress the applicant's rehabilitation he should be classified "Low-medium" security to enable him to participate in the STURP;(c) an order requiring the respondent to take all necessary steps to classifythe applicant "Low-medium" security and arrange for his priorityentry into the STURP to undertake and seek treatment;(d) such further or other relief as the court thinks fit; and(e) punitive damages in the sum of $10,000.Specific pleadings[28] The statement of claim pleads that sections A.5.2, A.5.4, and A.5.5 were"incorrectly assessed" and that Mr Gorges should have been assessed overall on thebasis of either 16 or 18 points with a consequentially "Low-medium" securityclassification.[29] In relation to A.5.2 (compliance with staff requests) Mr Gorges pleads there is no definitive basis on which the score of three points can be justified. There is no evidence to suggest he had not complied with staff requests. Mr Gorges contends thescore should have been "Good".[30] As to A.5.4 (compliance with prison rules) Mr Gorges pleads he has not been charged or convicted of any offences in the past 12 months. Therefore he cannot have broken any rules and his assessment should be "Good" not "Average".[31] In relation to A.5.5 (motivation to achieve offender plan) Mr Gorges pleadshe was wrongly assessed. Mr Gorges states he is presently10 motivated to undergoboth the Drug Treatment Unit programme (DTU) and STURP (Special TreatmentUnit Rehabilitation Programme)11 although acknowledging that in the past he did notconsider he was suited to the STURP in terms of his rehabilitation needs. Mr Gorgespleads that the score of "Poor" is not only incorrect but inconsistent with therespondent's guidelines and the obligation to assist and encourage his rehabilitationand eventual reintegration. The score of "Poor" should be substituted with "Good".10 These pleadings are as at 27 May 2016, the date of the statement of claim.11 Designed to reduce risk of re-offending and available to "Low–medium" but not higherclassifications.[32] Mr Gorges pleads that the classification and review procedures were not conducted in accordance with the applicable prescribed guidelines12 and the relevant provisions of Part 5 of the Corrections Regulations 2005. It is further pleaded that the process adopted was not in accordance with sentencing principles in the Sentencing Act 2002 or with the requirements of s 27 of the New Zealand Bill of Rights Act 1990 (NZBORA).[33] The statement of claim and Mr Gorges' oral and written submissions reflecthis thematic core grievance of being hindered in his rehabilitation and obstructedfrom participating in reintegration programmes and from gaining employment skills.Principles[34] There is little doubt as to the availability of judicial review to prisoners whose conditions of imprisonment are subject to statutory or other rule-based internal processes. Ellis J observed in a second decision concerning a judicial review application brought by Mr Taylor, since at least the decision in Daemar v Hall "the tide of reviewability has moved slowly but inexorably forward".13[35] As in Taylor v Chief Executive of the Department of Corrections (2016) the underlying issue in this case is whether the Court should intervene in the dispute between the applicant and the respondent.[36] In Taylor (2016) the disputed question was whether a prerequisite14 to Mr Taylor's participation in a rehabilitation programme, essential to any release onparole, was unreasonable or based on irrelevant considerations. In considering how, and to what extent, those issues might be determined in a particular case about access to rehabilitative programmes Ellis J said:15The starting point in terms of any application for review of the exercise of [the power under s 52 to decide whether to permit a particular prisoner to engage in a particular rehabilitative programme] is that whether or not12 Referring to Corrections Manual M.02.05 RES.01 Completing Male Review Security Classification Guidelines.13 Taylor v The Chief Executive of the Department of Corrections [2016] NZHC 1805 at [2].14 A requirement that Mr Taylor be transferred to another prison.15 Taylor v The Chief Executive of the Department of Corrections above, n 13, at [58] (footnotes omitted).Mr Taylor or any other prisoner should be permitted to participate in a programme such as the STURP is inherently a matter for evaluation and judgment. The Court's supervisory jurisdiction does not generally permit it to engage in a rehearing of the merits of an impugned decision. The mere fact that the Court might consider that a better decision could have been made on the facts does not mean that the application for review should succeed. Failure by a decision-maker to consider a relevant consideration is only fatal if the consideration can be said to be expressly or impliedly mandatory. It is trite that the unreasonableness threshold is a very high one. And in the present case care is also required because Mr Sherlock was not cross-examined on his evidence.[37] My purpose in drawing particular attention to Ellis J's decision is this: as didMr Taylor in his application for judicial review, so does Mr Gorges highlight the central importance of rehabilitation to his well-being during his term of imprisonment and to his prospects of early release. But there the similarities in the proceedings end. The decision affecting Mr Taylor was unlawful because theprincipal motivation in moving Mr Taylor was a desire to make him "acceptdirection at all costs."16 That was an irrelevant consideration.[38] By contrast with Taylor (2016) Mr Gorges enjoins this Court to engage in themerits of the impugned decision. The statement of claim expressly seeks the Court'sengagement in the merits of the security classification itself. Mr Gorges' overarching concern is that the respondent's approach to classifying his security riskwas incorrect because it was inconsistent with his rehabilitative needs. Mr Gorges expressly pleads the results he says the scores should have produced.The merits of the application for review[39] The first important observation about the statement of claim is that theimpugned decision is not Ms Koti's review. It is the decision of 7 March 2016 whichMr Gorges contends incorrectly assessed A.5.2, A.5.4 and A.5.5. Mr Gorges' claimdoes not speak of the changes made by Ms Koti in the course of her reassessment. Thus, while Mr Gorges protests the outcome in respect of A.5.2, the protest overlooks the change in outcome. As a result of Ms Koti's review the score improved from "Average" to "Good". By contrast, the score for A.5.3 worsened16 At [68].following the reconsideration but Mr Gorges does not protest that outcome in this proceeding.[40] Notwithstanding the failure to plead any flaw in Ms Koti's reassessment I shall approach Mr Gorges' challenge to the process as encompassing the decision on7 March 2016 and the reassessment on 10 March 2016.[41] That approach seems both fair to Mr Gorges and appropriate given the proximity of the two decisions to each other. They were only days apart and whichever Corrections officer is undertaking the assessment or review the information informing that exercise is stored in the IOMS.[42] Further, it is Ms Koti's reassessment that had the effect of determiningMr Gorges' security classification status as at March 2016.A.5.2 Compliance with staff request[43] The classification is criticised by Mr Gorges but as I have observed the challenge overlooks Ms Koti's reassessment which resulted in a score of zero. ThusMr Gorges received the best possible outcome for that category. The relevantguideline for A.5.2 states that "Average" reflects "prisoner complies most of the time but sometimes fails to comply in a timely manner" and "Good" reflects "the prisonercomplies in a timely manner to all staff requests". Ms Koti concluded that information on IOMS indicated Mr Gorges' compliance with staff requests wasmostly good and that he should receive a score of zero.A.5.3 Positive interaction with staff and other prisoners[44] Although Mr Gorges does not specifically challenge A.5.3 or Ms Koti'sreassessment which resulted in a more prejudicial outcome I address it nevertheless.The relevant guideline for A.5.3 states that "Poor" reflects "the prisoner interactsnegatively with staff and other prisoners" and "Average" reflects "the prisonerinteracts positively most of the time but with occasional instances of negativeinteraction". Information available to Corrections officers on IOMS evidencednegative interactions. The records are before the Court in the form of exhibits toMs Koti's affidavit. The particular notes are made between 12 November 2015 and 3 January 2016. They report incidents such as Mr Gorges' persistence in entering theoffice to see screens and monitors, volatile and antagonistic behaviour towards others, warnings given in respect of rudeness and disrespect towards the staff and suchlike.[45] Ms Koti considered the reports warranted an assessment of "Poor". Therewas a sufficient evidential foundation for that judgement.A.5.4 Compliance with prison rules[46] The guidelines for A.5.4 describe a score of "Average" as meaning that "theprisoner has 1 or 2 file notes relating to non-compliance with prison rules". A score of "Good" is described as meaning "the prisoner has no file notes relating to non-compliance with prison rules". Ms Koti considered the score of "Average" was theright score for Mr Gorges. That score did not change between the 7 March 2016 classification and Ms Koti's reassessment.A.5.5 Motivation to achieve offender plan[47] The point of apparently greatest contention lies in A.5.5 for which Mr Gorgeswas graded "Poor". Mr Gorges contends his record points to the opposite result as he was strongly motivated to enter appropriate rehabilitative programmes. Mr Gorges' assessment did not change between 7 March 2016 and the reassessment on 10 March 2016. Both exercises produced a "Poor" result.[48] It is apparent Mr Gorges was motivated to attend rehabilitative programmes. The problem lay in Mr Gorges' seeming insistence, at times, that he should notattend the STURP when it was the respondent's view that he should. To be eligiblefor the STURP, a prisoner must score 0.7 or above on a Risk of Reoffending and Risk of Imprisonment assessment; have at least one conviction of violent behaviour against another person (but prisoners without violent offending convictions may also be considered on a case-by-case basis); and be of 20 years of age.[49] As against Ms Koti's assessment of Mr Gorges' motivation to engage inrehabilitative programmes, Mr Gorges points to a case manager note in which it isrecorded that a score of "Poor" for motivation should be substituted with an "Average" rating. Ms Koti candidly stated she did not read that note. In herevidence Ms Koti says that note focused on the DTU programme which she accepts Mr Gorges was, at times, motivated to attend. Ms Koti was aware that, at times, Mr Gorges had indicated his willingness to attend the DTU programme referred to inthe case manager's note. Mr Gorges' attitude to participation in DTU varied. Ms Koti gave examples to Mr Gorges in her letter of 10 March 2016.[50] Importantly, even had Ms Koti given a score of "Average" Mr Gorges'overall score for internal risk would have been 19 which would still have resulted ina security classification of "High". Ms Koti's evidence is that she would not haveoverridden that outcome because of some of the behaviours described in the offender notes.[51] I accept the scoring of "Poor" as to motivation was, and could be, open todiffering opinion. But that alone cannot be a basis for judicial review relief and thesubstitution by the Court of a score of "Good" in order to attract a "Low-medium"security classification.[52] The classification for A.5.5 is not the product of any identifiable error of law. There is an evidential basis of relevant factors for the judgement made and nothing to suggest unreasonableness or an improper purpose. Mr Gorges is of the view that the challenged decisions did not properly taken into account his need for rehabilitative programmes. That view is not supported by the documentation in evidence. Mr Gorges rehabilitation needs were identified and I am unable to discern any basis for concluding this relevant factor was not taken into account.Decision[53] The factual conclusions I have reached on the basis of the evidence make it unnecessary to consider each of the six heads of judicial review. On any analysis the facts do not demonstrate procedural error or unlawfulness on any ground.[54] A substantial portion of Mr Gorges' written submissions addressed hisalleged arbitrary detention in breach of s 22 of NZBORA. This was not pleaded in the statement of claim but the contention seems to be that the intentional and deliberate impeding and obstructing of Mr Gorges' pathway to rehabilitation hasmeant that the "very good chance of being released on parole", which Mr Gorgessubmits he had, has been denied to him through the respondent's unlawful actions.Section 23(3) NZBORA is also said (although tentatively) to be engaged by the improper obstructing of Mr Gorges' progression.[55] In Zaoui v Attorney-General McGrath J rejected the proposition that a lawfuldetention might be rendered "arbitrary" by the conditions of the plaintiff'sdetention.17 The authors of The New Zealand Bill of Rights Act cast similar doubt on the proposition that breaches of ss 23–25 of NZBORA have the effect of making anyassociated detention "arbitrary" in terms of s 22.18[56] In his oral presentation during the hearing Mr Gorges referred to the treatment he had been subjected to as a young person in state care. Mr Gorgesasked: if that is not a sufficient reason to override the classification, "what is?"Mr Gorges added that imprisonment, in addition to what he has already experienced, amounts to infliction of suffering. He said he should not have to come to Court and beg for rehabilitation. It should be given to him.[57] As I did at the time, I unhesitatingly acknowledge Mr Gorges' perspective.But the evidential basis necessary for the grant of the relief which Mr Gorges seeksis simply not established in this case. There is no factual foundation for Mr Gorges' arguments that the respondent's powers were exercised unlawfully, for an improperpurpose, in breach of natural justice or unreasonably or that the respondent took into account irrelevant factors or failed to consider relevant factors.[58] Even if the grounds of review were made out relief is discretionary. It is well established that in circumstances where the grant of relief would have no utility the17 Zaoui v Attorney-General [2005] 1 NZLR 577 (CA & SC) at [101].18 Andrew Butler and Petra Butler The New Zealand Bill of Rights (2nd ed, LexisNexis, Wellington, 2015) at [19.8.54].discretion will not be exercised. The issues are moot. Mr Gorges has commenced the rehabilitation programmes with which he sought to be engaged.[59] Finally, even if the issues were not moot I would not order Mr Gorge'ssecurity classification to be recorded as "Low-medium". Parliament has charged theChief Executive, not the courts, with the statutory function of assigning security classifications to prisoners.Result[60] For the reasons given, the application for judicial review is dismissed._____________________________Karen Clark JSolicitors:Crown Law Office, Wellington for Respondent