DOUGLAS v CHIEF EXECUTIVE OF THE DEPARTMENT OF CORRECTIONS [2022] NZHC 600

DOUGLAS v CHIEF EXECUTIVE OF THE DEPARTMENT OF CORRECTIONS [2022] NZHC 600 [29March 2022]IN THE HIGH COURT OF NEW ZEALANDCHRISTCHURCH REGISTRYI TE KŌTI MATUA O AOTEAROAŌTAUTAHI ROHECIV-2021-409-000403[2022] NZHC 600IN THE MATTER of the Judicial Review Procedure Act 2016IN THE MATTER of an application for judicial review inrelation to the management of the applicant'sPublic Protection Order under the PublicSafety (Public Protection Orders) Act 2014BETWEEN GLEN ANTHONY DOUGLASApplicantAND CHIEF EXECUTIVE OF THEDEPARTMENT OF CORRECTIONSRespondentHearing: 28 March 2022Appearances: A J Bailey for the ApplicantJ Watson for the RespondentJudgment: 29 March 2022JUDGMENT OF DOOGUE JThis judgment was delivered by me on 29 March 2022 at 2.30 pm pursuant toRule 11.5 of the High Court RulesRegistrar/Deputy RegistrarDate:Introduction[1] The applicant, Mr Douglas, is subject to a Public Protection Order (PPO) underthe Public Safety (Public Protection Orders) Act 2014 (the Act) and is detained atMatawhāiti Residence.[2] He seeks to judicially review the respondent's alleged refusal to grant himleave from Matawhāiti Residence for humanitarian reasons prior to March 2021.1[3] Mr Douglas does not impugn the respondent's current approach to grantingleave for humanitarian reasons.[4] Mr Douglas seeks a declaration that the policy in place at MatawhāitiResidence from January 2017 to March 2021, pursuant to which residents were not tobe granted a leave of absence from Matawhāiti Residence to enable them to undertakeactivities within the community (appropriately supervised) save in exceptionalcircumstances was ultra vires.Agreed facts[5] I am indebted to counsel for their joint memorandum on which I have reliedfor the background to this matter.[6] Mr Douglas is subject to a PPO made pursuant to the Act.2[7] The Chief Executive of the Department of Corrections (Chief Executive) hasthe legal custody of every person subject to a PPO.3 A person subject to a PPO (butnot to a prison detention order) must stay in the residence the Chief Executivedesignates by written notice given to the resident and to the manager of that residence.4[8] Matawhāiti Residence is the only PPO residence established under s 114 of theAct. It is a 1.055 hectare (10,550 square metre) facility within the external boundary1 Public Safety (Public Protection Orders) Act 2014, s 26.2 Chief Executive of the Department of Corrections v Douglas [2016] NZHC 3184.3 Public Safety (Public Protection Orders) Act 2014, s 21.4 Public Safety (Public Protection Orders) Act 2014, s 20.of the land gazetted as Christchurch Men's Prison (but outside the main secureperimeter of the prison itself). Matawhāiti Residence was operationalised on9 January 2017.[9] Matawhāiti Residence is a community-like residence, with residentsaccommodated in blocks of three separate self-contained units. Each resident's unithas a living room, bedroom, bathroom, kitchen and laundry facilities, with a smallgarden and veranda area. Also within the residence is a multipurpose residents'community and staff administration building.[10] From the time the residence opened a wide range of recreational activities havebeen made available to residents, as well as targeted rehabilitative opportunities suchas psychological treatment.[11] Residents cannot leave Matawhāiti Residence without being granted a leave ofabsence from the Chief Executive or his delegate.[12] Leave from the residence is governed by s 26 of the Act. Under that sectionthe Chief Executive or his delegate may grant a resident leave:(a) to undergo or receive medical or dental examinations or treatment;(b) to attend hearings and proceedings under the Act to which the residentis a party;(c) to attend any other hearings in a proceeding if the attendance of theresident is required by the court or under an enactment;(d) to attend a rehabilitation programme identified in the resident'smanagement plan; or(e) for humanitarian reasons.55 Public Safety (Public Protection Orders) Act 2014, s 26(1).[13] In determining whether a leave of absence should be granted to enable aresident to attend a rehabilitation programme identified in the resident's managementplan or for humanitarian reasons, the Chief Executive or his delegate must have regardto:(a) whether the risk of serious sexual or violent offending during the periodof the leave is reasonably manageable;(b) the extent to which the resident must be supervised while absent; and(c) the benefit of the proposed leave to the resident and others.6[14] During a leave of absence the resident must be appropriately escorted andsupervised.7[15] At all material times the power to grant a leave of absence was delegated bythe Chief Executive to the Residence Manager of Matawhāiti Residence.[16] In this proceeding, the applicant impugns the policy formerly in place at theMatawhāiti Residence concerning leave from that residence.[17] Pursuant to that policy, residents were only to be granted a leave of absencefrom Matawhāiti Residence to visit dying significant relatives, go to funerals of peoplesignificant in their lives, or for other tragic personal circumstances (the former policy).A corollary of the former policy was that residents were not to be granted a leave ofabsence from Matawhāiti Residence to enable them to interact with the communityand undertake normal community activities, such as visiting a supermarket.[18] The policy was amended in 2019 to enable residents to be granted a leave ofabsence to visit and make purchases from a coffee cart that parked on the externaldriveway of Matawhāiti Residence, directly outside its main gate, and to go on walksaround the outside of the perimeter of the residence. Under the amended policy6 Public Safety (Public Protection Orders) Act 2014, s 26(2).7 Public Safety (Public Protection Orders) Act 2014, ss 26(3) and 73(1).residents were still not to be granted leave to undertake activities in the community,save in the circumstances described in the preceding paragraph.[19] The former policy was criticised on a number of occasions by the review panelestablished under s 122 of the Act and was also criticised by the Ombudsman in his"Report on an Unannounced Inspection of Matawhāiti Residence under the Crimes ofTorture Act 1989" published in December 2020.[20] The former policy was informed by an interpretation of "humanitarianreasons", which in effect equated that phrase with "exceptional reasons".[21] The Department accepts that interpretation was incorrect. The Departmentnow accepts that "humanitarian reasons" in s 26 bears its ordinary meaning, namely"involved in or connected with improving people's lives and reducing suffering" andthat s 26 does not preclude a leave of absence being granted to enable a resident toundertake certain activities in the community.8 That interpretation is informed by theobjects and principles of the Act, namely that it is not an objective of the Act to punishpersons against whom orders are made under the Act and that persons who are detainedin a residence under a PPO should have as much autonomy and quality of life aspossible, while ensuring orderly functioning and safety within the residence.9[22] The former policy was superseded in March 2021.[23] Mr Douglas does not take issue with the present policy concerning leave fromMatawhāiti Residence, pursuant to which he and other residents are regularly grantedleaves of absence to undertake activities in the community. He seeks reassurance thatthis present policy will remain in force and he will continue to get leave (subject, ofcourse, to full compliance with any necessary conditions).[24] Under the present policy residents and staff actively work together to identifyopportunities for leave, which can be centred around the hobbies and interests of eachresident, provided they link in with the resident's rehabilitation/reintegration goals.8 Cambridge Online Dictionary Definition of "humanitarian":https://dictionary.cambridge.org/dictionary/english/humanitarian; access 29 January 2022.9 Public Safety (Public Protection Orders) Act 2014, ss 4(2) and 5(d).Once an opportunity is identified residents and staff work together to complete a leaveproposal and risk assessment for each new type of leave proposed.[25] Leave proposals are then considered by the residents multidisciplinary team(RMDT), consisting of the Residence Manager, Occupations Lead, occupationaltherapist and supporting psychologist. If the RMDT considers the leave proposal isappropriate a recommendation is made to the Matawhāiti Clinical Governance Group(comprised of the Residence Manager, senior regional advisors and representativesfrom Psychological Services, Community Corrections and Corrections High-RiskResponse Team) for leave approval. If the RMDT's view is that the proposal needs tobe amended that will be discussed with the resident and staff will work with theresident to make the necessary changes.[26] After considering a leave proposal the Matawhāiti Clinical Governance Groupwill then make recommendations to the National Intensive Residential Support (IRS)Advisory Board about whether that Board should endorse the leave application. TheIRS Advisory Board exists to provide centralised guidance for the management ofthose residing at Matawhāiti and other houses on prison land. The IRS Advisory Boardis comprised of senior Corrections staff and met for the first time in January 2021.[27] Once a resident has received an endorsement for a particular type of leave bythe IRS Advisory Board, the Clinical Governance Group provides advice to assist theResidence Manager in making decisions regarding authorising leave applications onindividual occasions thereafter.[28] The decisions of the Clinical Governance Group are informed by a number offactors, including a close review of the Behaviour Observation Recording Sheets ofthe resident in question.[29] Any request to revoke a resident's leave authorisation is to be referred to theIRS Advisory Board with an overview of the reasons for the revocation. Leave isnever revoked or withheld as a form of punishment.[30] The Review Panel have also commented favourably on the leave policycurrently in place at Matawhāiti Residence:10It was pleasing to hear from both Mr Douglas and the Residence Manager,Ms Brussoves, that outings are now occurring on a regular basis; and withinproblem. Mr Douglas was enthusiastic about the value and gains achievedthrough outings; whether for specific reasons (shopping, banking, etc,banking) or for exercise and pleasure. He was also very positive about theintroduction of contacts with people at nearby Toruatanga; a residence forformer prisoners who are transitioning back into the community, or in need oflong-term care.Result[31] The Chief Executive accepts the former policy was unlawful, in that it wasbased on a misconstruction of the Act.[32] The Chief Executive accepts that on a proper construction of the Act therespondent or his delegate retains a discretion to grant a leave of absence to residentsto enable them to undertake activities in the community if granting such a leave ofabsence would benefit the wellbeing of the resident. This discretion must be exercisedhaving regard to the mandatory relevancies in s 26(2) of the Act.[33] The former policy had the effect of precluding the Chief Executive or hisdelegate from meaningfully engaging with the discretion conferred by s 26 of the Actand of denying a power that the law had conferred.11 The former policy was thereforeultra vires the Act.[34] Even though the former policy has been superseded, the parties consider adeclaration would still be of value in that it would vindicate Mr Douglas' interests andmay also be of use in guiding future policy development.12[35] I acknowledge that Matawhāiti Residence is a unique facility for those subjectto PPOs. It is the first such residence to be administered under the Act. To an extent,10 Re Douglas, decision of the Review Panel, 21 October 2021 at [7].11 Westhaven Shellfish Ltd v Chief Executive, Ministry of Fisheries [2002] 2 NZLR 158 (CA) at [48].12 For a discussion on the court's discretion to grant declaratory relief in circumstances where anunlawful policy has been superseded see Smith v Attorney-General [2019] NZHC 835, (2019)NZAR 767 from 88.the Chief Executive and the Department have quite naturally been trying to find theirway in unchartered territory. The response to this litigation is evidence of their bonafides in working in accordance with the principles of the Act.[36] I agree with the parties that the declaration sought should be made for thereasons set out in [33].Orders[37] A declaration shall issue that the policy in place at Matawhāiti Residence fromJanuary 2017 to March 2021 pursuant to which residents were not to be granted a leaveof absence from Matawhāiti Residence to enable them to undertake activities withinthe community (appropriately supervised) save in exceptional circumstances was ultravires the Public Safety (Public Protection Orders) Act 2014.[38] There will be no orders as to costs.Doogue JSolicitors:Hansen Law, ChristchurchCrown Law, WellingtonCC:A Bailey, Christchurch