GREEN v CHIEF EXECUTIVE OF THE DEPARTMENT OF CORRECTIONS [2020] NZHC 640

GREEN v CHIEF EXECUTIVE OF THE DEPARTMENT OF CORRECTIONS [2020] NZHC 640 [25 March2020]IN THE HIGH COURT OF NEW ZEALANDAUCKLAND REGISTRYI TE KŌTI MATUA O AOTEAROATĀMAKI MAKAURAU ROHECIV-2019-404-2018[2020] NZHC 640UNDER the Judicial Review Procedure Act 2016BETWEEN GLENN GREENApplicantAND CHIEF EXECUTIVE OF THEDEPARTMENT OF CORRECTIONSRespondentHearing: 20 March 2020Appearances: Applicant in personM Mortimer for RespondentJudgment: 25 March 2020JUDGMENT OF BREWER JThis judgment was delivered by me on 25 March 2020 at 10:00 ampursuant to Rule 11.5 High Court Rules.Registrar/Deputy RegistrarSolicitors:Meredith Connell (Auckland) for RespondentIntroduction[1] Mr Green pleaded guilty in the District Court to a charge of blackmail. On16 May 2019, Judge CM Ryan sentenced him to 17.5 months' imprisonment.1[2] Judge Ryan imposed a number of release conditions. One, a special conditionimposed under s 93(2)(b) of the Sentencing Act 2002 ("the Act"), is:Not to undertake any employment or training, paid or unpaid, without the priorwritten approval of a probation officer.[3] Mr Green is unhappy with the way his probation officers are giving effect tothis condition.[4] Mr Green, who represents himself, has filed a document applying for what hesays is judicial review of the condition. This is what he asks the Court to do:I am seeking the court to either dismiss the employment condition all togetheror at the very least make a decision ordering probation not to force me todisclose history if not asked and to back off and allow me to find a job thatwill be ongoing long after probation ends in August 2020.[5] Mr Green cannot obtain an order from this Court by way of judicial reviewremoving the condition from his conditions of release. He has already litigated thisissue in a criminal appeal determined by Lang J on 5 September 2019.2 Justice Langdealt with the issue in this way:[26] This condition prohibits Mr Green from obtaining employmentwithout the prior approval of his probation officer. Mr Green says that he hasalready obtained several offers of employment but on each occasion hisprobation officer declined to approve the employment unless Mr Greendisclosed his previous offending to the prospective employer. He says thatthis resulted in him not proceeding with his applications for employment.[27] Mr Steele submits that this argument does not constitute an appealagainst the imposition of the condition but rather against the manner in whichit is being applied. For that reason he contends the appeal cannot succeed, andthat Mr Green must look elsewhere for a remedy if he is unhappy with themanner in which the probation service is applying the condition. He suggests,for example, that Mr Green could bring judicial review proceedings if heconsidered the probation service was not enforcing the condition in anappropriate manner.1 R v Green [2019] NZDC 9117.2 Green v R [2019] NZHC 2220.[28] I accept this argument and I also consider the imposition of thecondition was appropriate. Mr Green's previous convictions demonstrate thathe is plainly unsuited to some forms of employment. Positions in which he isrequired to handle money would fall within this category.[29] I am reluctant to completely ignore the issue Mr Green raises,however, because his ability to obtain employment is likely to be an importantfactor in his rehabilitative process. It is also unrealistic in my view to requireMr Green to apply for judicial review whenever he considers the probationservice has acted inappropriately in declining to approve an offer ofemployment.[30] In imposing this condition the Judge said that she "encourage[d] theprobation officer to assist you and encourage you to obtain employment,because you definitely have skills which can be best used by being employedin the community". Earlier in her remarks the Judge also said that she wasimposing special release conditions to reduce the risk of offending and providefor the reasonable concerns of victims, as well as facilitating or promotingMr Green's rehabilitation or reintegration. The rehabilitative aspect of theconditions needs to be borne in mind in the present context.[31] There is also some force to Mr Green's submission that it should beleft to prospective employers to seek such information as they may requireabout his past before they employ him. If they are not sufficiently concernedto make enquiries about previous convictions he should not be required todisclose them. A blanket requirement that he disclose his convictions in everycase could also cost him job opportunities that may otherwise be available tohim. That would hinder the rehabilitative process for obvious reasons.[32] It seems to me that the greatest risk of future offending lies inMr Green's ability to gain access to electronic devices that permit him toobtain unsupervised and unmonitored access to the internet. That certainlyappears to be the focus of the remainder of his release conditions and Iconsider it is also relevant in the context of his future employment.[33] Mr Green told me during the hearing that he is seeking a position as amechanic in a garage or car repair business. He says this will not involve himhaving access to electronic devices capable of gaining access to the internet.I consider, for what it is worth, that the probation service should permitMr Green to apply for such positions without being required to disclose hisprevious convictions so long as it can be sure the job will not permit him tohave access to any internet capable device. It will be for Mr Green to satisfythe probation service that any position for which he applies meets thisrequirement. This does not detract in any way from Mr Green's generalobligation as a prospective employee to honestly answer any questions anemployer may ask about his past history.[6] Mr Green's complaint now is really about the way he alleges his probationofficers are administering the condition. His arguments can be summarised:(a) The probation officers have not heeded Lang J's views.(b) They are inconsistent in their approach to the relevance of his criminalhistory. One probation officer did not require him to proactivelydisclose his criminal history. Another required all of it to be disclosed.A third probation officer required disclosure only of the blackmailoffence upon which the condition was imposed.(c) He is required to obtain employment if possible, and he wants to, butthe diktat of the probation officers about disclosure of his history isstopping him from getting employment.[7] Mr Green did say that he has no objection to a probation officer checking witha prospective employer to assess whether a job is suitable, provided that the onlyconviction disclosed is the one for blackmail.Judicial review[8] Judicial review is a tool of limited usefulness for Mr Green in his situation. AsFrench J has said:3[C]ontrary to popular belief, judicial review is not an appeal. It is not aboutthe Court considering information afresh and coming to its own views.Judicial review is primarily limited to an examination of the process, and ifsuccessful usually results in the decision-maker being required to start afresh,as opposed to quashing the decision for all time.[9] In the spirit of professional accommodation, Mr Mortimer for the respondentsuggested that if I were to find the respondent has acted unlawfully, then theappropriate relief would be a declaration to that effect. I adopt that suggestion. Itgives me a principled approach to Mr Green's complaint.[10] First, Mr Green's ground for judicial review that the probation officers havenot heeded Lang J's views cannot succeed. Justice Lang made suggestions, not orders.Further, the affidavit of Mr Green's current probation officer, Mr Ramachandran, setsout an approach to Mr Green's employment opportunities which is not inconsistentwith Lang J's common sense advice. Judicial review, as French J said, is about an3 Aorangi School Board of Trustees v Ministry of Education [2010] NZAR 132 (HC) at [8].examination of the lawfulness of process rather than (except for extremes) anevaluation of outcome.[11] I will consider the second and third grounds (inconsistency of approach andmaterial detriment) together.[12] Section 93(3) of the Act provides:(3) A special condition must not be imposed unless it is designed to—(a) reduce the risk of reoffending by the offender; or(b) facilitate or promote the rehabilitation and reintegration of theoffender; or(c) provide for the reasonable concerns of victims of the offender.[13] Mr Green's probation officers have to administer the condition consistent withthe reasons for which it was imposed. Judge Ryan did not specify why she imposedthe condition. However, the Judge clearly viewed rehabilitation and reintegrationthrough gaining employment as important:4 I do though encourage the probation officer to assist you and encourageyou to obtain employment, because you definitely have skills which can bebest used by being employed in the community.[14] The necessary inference is that the Judge, knowing that Mr Green is assessedas having a high risk of reoffending, imposed the condition so that probation officerscould check proposed employment to reduce the risk of reoffending.[15] Mr Green, from his record, will be at a high risk of reoffending if his job allowshim to handle money, have access to the internet or access to customer details. Aprobation officer is entitled to (indeed, should) satisfy himself/herself that any jobMr Green applies for does not have any of these risk factors.[16] A probation officer will have to make inquiry of a prospective employer.Mr Green is not a reliable source of information.4 R v Green, above n 1, at [89](h).[17] I have looked at the evidence of two job applications about which Mr Greencomplains. Mr Green says there were others, but there is no evidence of them . In anyevent, Mr Green's descriptions of what happened are similar to his descriptions of thetwo for which there is evidence.[18] One application was for a job as a car groomer at a car sales business.Mr Green refused to allow the probation officer to contact the prospective employer(as is his right). The probation officer told Mr Green it was essential that he disclosehis offending to the prospective employer. The probation officer did not approve theemployment because he did not know what risks the job entailed, nor did he knowwhat Mr Green had disclosed to the employer which might mitigate any risks.[19] The other application was for a job at Graffiti Protecta Painting. Mr Greengave consent for the probation officer to contact the prospective employer. Theprobation officer did not disclose all of Mr Green's criminal history. He spoke aboutit in general terms and for the purpose of obtaining information relevant to risk factors.The probation officer discussed with the prospective employer whether Mr Green'sjob could be structured so he worked at commercial businesses and not at privatehomes. In the end, it was concluded this was not possible and the job was notapproved.[20] I understand Mr Green's frustration. He wants to get a job and he sees theprobation officers getting in the way of that. But, Mr Green is at a high risk ofreoffending. His probation officers must be able to assess risk factors associated withparticular jobs.[21] I do not find there is an unlawful process. The approaches taken to disclosingMr Green's criminal history are more nuanced than Mr Green submits. There is noblanket direction that he must disclose his full criminal history. I accept there ismaterial detriment to Mr Green from disclosure of his criminal history to any degree.An employer aware that Mr Green has a criminal history and is being monitored bythe probation service may well be less likely to offer Mr Green a job than if they didnot know these things. But, that is unavoidable and is not the result of unlawfulprocess.Decision[22] Mr Green's application for judicial review is dismissed.Costs[23] If there is any issue as to costs, the respondent is to file its memorandum nolater than 8 May 2020. If a memorandum is filed, Mr Green is to file his reply no laterthan 22 May 2020.________________________________Brewer J