ERICSON v NEW ZEALAND PAROLE BOARD [2017] NZHC 536

ERICSON v NEW ZEALAND PAROLE BOARD [2017] NZHC 536 [23 March 2017]IN THE HIGH COURT OF NEW ZEALANDCHRISTCHURCH REGISTRYCIV-2016-409-001192[2017] NZHC 536BETWEEN JOHN FREDERICK ERICSONApplicantAND NEW ZEALAND PAROLE BOARDRespondentHearing: 9 March 2017Appearances: M Starling and N Wham for ApplicantNo appearance for DefendantK Stone - Counsel to assist the CourtJudgment: 23 March 2017JUDGMENT OF DUNNINGHAM J[1] Mr Ericson is serving a term of life imprisonment following his conviction for murdering his wife. He became eligible for parole in July 2009 and, since then, has appeared before the Parole Board ("the Board") on an annual basis. His most recent parole hearing was on 4 October 2016. A decision declining parole, followed.[2] Mr Ericson challenges the Board's October 2016 decision to decline parole.He says it was unlawful in that:(a) the decision failed to take into account relevant considerations, namely that the Board could impose special release conditions;(b) the decision to decline parole was more than necessary to accomplish the objective of limiting the applicant's risk of offending; and(c) the decision of the Board was unreasonable in that it was a decision that no sensible Parole Board, acting with appreciation of its duty, would have arrived at.[3] While the Board, as is its policy, took a neutral role in the proceedings, Ms Stone was appointed by the Court to act as contradictor in respect of the application.Background[4] In 1999, Mr Ericson was charged with the murder of his wife by attacking her with a tomahawk. Despite pleading guilty to that charge, he has subsequently challenged his conviction in various ways. For example, he has claimed that he cannot remember the events leading to her death and that his lack of memory was caused by medication he was taking at the time of the events. For some time he maintained he was guilty of manslaughter and not murder and advanced that position through appeals and applications for the royal prerogative of mercy. He has also sought, on several occasions, a writ of habeas corpus, claiming his imprisonment was unlawful.[5] In 2009, when he first applied for parole, the Board noted he had donenothing to seriously confront his role in his wife's murder and he was assessed as being of moderate risk of reoffending.[6] A similar position was reached in 2010 where Mr Ericson was again found to be at moderate risk of reoffending and the Board considered that he was not yet in the reintegration phase of his sentence.[7] In 2011, Mr Ericson was again declined parole, but on this occasion the Board considered that he had embarked on the reintegration phase of his sentence. However, he was still assessed to have a moderate risk of violent offending and parole was declined.[8] In 2012, Mr Ericson had progressed to a self-care unit. However, he discharged himself from the unit and commenced a hunger strike. Ultimately the Board considered he had made little or no progress since his last appearance and the Board noted that he needed professional assistance to deal with his anger and his frustration, saying he was unlikely to be able to take any worthwhile integration steps until he had had psychological intervention.[9] In 2013, Mr Ericson chose not to appear before the Board, although he was represented by counsel. Parole was again declined, as the Board considered it was not able to explore what progress may have been made since the 2012 hearing. It also had no evidence (including no release plan) to demonstrate his risk had been reduced.[10] When Mr Ericson appeared before the Board in April 2014, the parole assessment report prepared for the hearing assessed him as being at low to medium risk of reoffending and posing a medium risk of harm if not supported in the community. Community Probation did not support his release until he engaged with a psychologist. Parole was declined.[11] Mr Ericson again appeared before the Board in April 2015. By that stage he had completed a short motivational programme, but he had declined a place on the medium intensity rehabilitation programme, due to his ongoing legal issues and concern over engaging in a group setting. While the report confirmed he was now assessed as being at low risk of further violent offending, it observed that this risk might increase if he was to enter into a new intimate relationship or was under stress. The Board also noted that there was no proper release proposal set out in the parole assessment report and, again, parole was declined.[12] On 31 March 2016, Mr Ericson again appeared before the Board. Although the Board accepted his risk was assessed as low and he was now undertaking individual psychological treatment, he was again declined parole. The Boardconsidered that the applicant's low risk rating was questionable considering comments in the most recent psychological report.[13] The last occasion on which Mr Ericson appeared before the Board was in October 2016 and it is the ensuing decision declining parole which is the subject of this application.The October 2016 parole consideration[14] Before the Board convened the 4 October 2016 hearing, it received a parole assessment report. That report made the following observations:(a) Mr Ericson continued to willingly engage in individual psychological treatment with a Department of Corrections clinician. She spoke positively in regard to his ongoing progress to date but was clear that"additional treatment goals are yet to be explored in full and will require continued professional therapy to support".(b) Mr Ericson continued to spend a large amount of time, effort and concentration on legal issues related to his conviction and sentence, and:perceived gains and disappointments within this processappear to have a significant effect on Mr Ericson's mood,motivation, self-worth and then ultimately his general attitude and behaviour and appropriate interactions withothers". As these would not all be resolved on release, the Board "may wish to explore his management planningaround these effects in more depth with Mr Ericson.(c) Mr Ericson had been employed outside the prison grounds at the prison piggery since May 2016 and his instructor spoke highly of his work ethic and commitment.(d) Mr Ericson had undertaken initial engagement with the Salvation Army Resettlement Service to develop an employment pathway for his eventual release.(e) Mr Ericson's support network would "profit from further enhancement", noting he was estranged from his adult children as aconsequence of their mother's death, but that he maintained contact with his mother and a close friend who resides in Auckland.(f) While Mr Ericson was currently assessed as being at a low-medium risk of further violent offending, it was considered that if he were to engage in violence, it was likely to be severe and result in serious harm. Any offending would likely be in the context of relationship difficulties or stressful life events.(g) Mr Ericson's release was not supported "without confirmed suitable accommodation in the community" and he had been referred to theSalvation Army's Supported Accommodation Service (SASA) to assist with accommodation.(h) Various special conditions were suggested as being required in the event he was released. These were:1. To attend for a comprehensive drug and alcohol assessment and complete any recommended treatment/programme to the satisfaction of your probation officer and treatment provider.2. Attend for a psychological assessment by a Department Psychologist as recommended by a psychological assessment to the satisfaction of your Probation Officer and treatment provider.3. To reside at an address specified by the New Zealand Parole Board and not to move from that address without the prior written approval of a Probation Officer.4. Not to stay away overnight from your residence between the hours of 22:00pm and 06:00am without prior written approval of a Probation Officer.5. To obtain prior written approval from your probation officer before entering into suitable paid or unpaid employment. Suitable employment is that which is approved by your probation officer where it is confirmed that the employer is aware of your criminal history and special conditions of Parole.6. To notify your probation officer before entering into a new, intimate and/or domestic relationship.7. You are not to have contact or otherwise associate with the victim(s) of your offending, directly or indirectly, less you have the prior written consent of your Probation Officer.[15] An addendum psychological report prepared in August 2016, was also available to the Board. This updated earlier psychological reports prepared for prior Board hearings. After outlining Mr Ericson's current situation, his conduct withinthe prison institution, the treatment he had been provided with, his potential to reoffend, and his release plan feasibility, the report set out five recommendations. These were, in summary, that:(a) Mr Ericson should continue to engage in individual psychological treatment to develop further insight into his offence process and the"offence paralleling behaviours in which he reportedly continues to engage". The treatment should "emphasise the development ofcoping skills to replace the role that violence, sexual fantasies, and sexual behaviour appear to fulfil, and on the development of a relapseprevention plan".(b) Mr Ericson should be supported to pursue referral to a service such as SASA, in order to arrange the support required for successful reintegration to the community.(c) Mr Ericson should be supported to develop other aspects of his release plan, including longer term accommodations, potential employment options and community-based activities, through which he could develop personal relationships.(d) If he was granted parole, consideration should be given to a special condition requiring him to inform his probation officer of commencement of an intimate relationship.(e) Should he remain in prison, consideration be given to transferring him to a lower security hut unit to allow him increased opportunities to participate in activities that could assist with his reintegration.The Board decision[16] The Board met on 4 October 2016. Mr Starling, Mr Ericson's lawyer,appeared along with his client. Mr Starling advised that accommodation had been confirmed with the Salvation Army commencing 22 February 2017, and that date would allow Mr Ericson to take part in a Release to Work programme in prison in the interim period.[17] During the hearing Mr Ericson was asked a number of questions about his progress to date and his plans if he were released. He explained that the Salvation Army supported accommodation programme was confirmed for three months. He confirmed that the August report from the psychologist was accurate. He was questioned on the issues that his further psychological treatment needed to cover, and he acknowledged he still had difficulties and needed to address "cognitive distortions", but that he considered these were matters which could continue to be addressed on release, rather than in prison.The decision[18] After meeting with Mr Ericson and then deliberating, the Board gave a decision. In its decision the Board summarised the material it had taken into account in reaching its decision. It recorded the assessment that Mr Ericson was seen as being at low risk of general and violent offending, but that the seriousness of any future violence may be severe. The Board noted the psychologist's view that in lightof the length of time Mr Ericson had been imprisoned an unstructured release was not recommended and that the current treatment needed to continue. The Board recorded that Mr Ericson had received a positive report from the accompanying officer and that he had caused no difficulty since his last appearance before the Board. The Board also noted the proposal for release involved living in Salvation Army supported accommodation.[19] However, in explaining why it declined parole, the Board expressed concernsabout "the fairly short period that Mr Ericson would receive support in the community in view of the lengthy period he has spent in prison". The Board was concerned that while the risk of further offending was assessed as a low possibility, it was of a potentially grave nature. The Board considered the release proposal was of insufficient duration to alleviate the concern as to what would happen after Mr Ericson left the Salvation Army's care. The Board also considered that thepsychological treatment Mr Ericson was working on should be completed before release as it was looking at his offending behaviour and ways of addressing any likely subsequent offending.[20] Although parole was declined, the Board then suggested that a support meeting with all those who will be involved in Mr Ericson's reintegration take placebefore he was to appear before the Board again in May 2017.[21] Mr Ericson subsequently sought review of the Board's decision by a panelconvenor, but that, too, was unsuccessful.The statutory framework for the grant of parole[22] Section 28 of the Parole Act 2002 (the Act) governs release on parole. It relevantly provides:28 Direction for release on parole(1AA) In deciding whether or not to release an offender on parole, the Board must bear in mind that the offender has no entitlement to bereleased on parole and, in particular, that neither the offender'seligibility for release on parole nor anything else in this Act or any other enactment confers such an entitlement.(1) The Board may, after a hearing at which it has considered whether to release an offender on parole, direct that the offender be released on parole.(2) The Board may give a direction under subsection (1) only if it is satisfied on reasonable grounds that the offender, if released on parole, will not pose an undue risk to the safety of the community or any person or class of persons within the term of the sentence, having regard to—(a) the support and supervision available to the offender following release; and(b) the public interest in the reintegration of the offender into society as a law-abiding citizen.[23] Section 7 of the Act sets out the principles which are to guide the Board when making parole decisions. It provides:7 Guiding principles(1) When making decisions about, or in any way relating to, the release of an offender, the paramount consideration for the Board in every case is the safety of the community.(2) Other principles that must guide the Board's decisions are—(a) that offenders must not be detained any longer than is consistent with the safety of the community, and that they must not be subject to release conditions that are more onerous, or last longer, than is consistent with the safety of the community; and(b) that offenders must, subject to any of sections 13 to 13AE, be provided with information about decisions that concern them, and be advised how they may participate in decision- making that directly concerns them; and(c) that decisions must be made on the basis of all the relevant information that is available to the Board at the time; and(d) that the rights of victims (as defined in section 4 of theVictims' Rights Act 2002) are upheld, and submissions byvictims (as so defined) and any restorative justice outcomes are given due weight.(3) When any person is required under this Part to assess whether an offender poses an undue risk, the person must consider both—(a) the likelihood of further offending; and(b) the nature and seriousness of any likely subsequent offending.[24] The test articulated in these sections is that the offender must not pose an"undue risk to the safety of the community". The term "undue" means that it is disproportionate to, and outweighed by, the prisoner's personal interest in regaininghis liberty,1 and by the public interest in facilitating the reintegration of the offender1 Clarke v Parole Board HC Christchurch CRI-2005-409-11, 22 July 2005 at [35].into society. As I said in an earlier decision on an application for review of the Board by Mr Ericson:2[T]he term "undue risk" is a deliberately elastic test. It is not met byreference to any set or specific threshold such as a low RoC*RoI assessment. Each application for parole must be considered in light of all factors whichmay be relevant to that person's risk of offending. While an offender mightbe "low risk" based on an actuarial calculation, their personal circumstances may still point to the risk to the community being "undue" because theBoard is not satisfied that that particular applicant has demonstrated his or her risk of reoffending can be appropriately managed.[25] Thus, the claims that the Board has erred in law in its October decision must be referenced to this test and whether the Board:(a) failed to have regard to a relevant consideration when it assessed his risk to the community; or(b) reached a decision that was disproportionate or unreasonable in the circumstances.The applicant's submissions[26] In his written submissions, and at the hearing, Mr Starling sought to place the specific grounds of review in the wider context of what he characterised as arbitrary decision-making processes by Parole Boards, where decisions were not subject to the rigour, and appellate scrutiny, that, for example, sentencing decisions were subject to.[27] By way of example, Mr Starling sought to compare and contrast the decision made in Mr Ericson's case, with that of another prisoner convicted of murdering his wife, Mr Kevin Harmer, where Mr Harmer was released on parole at his first parole hearing. As Mr Starling understood matters, Mr Harmer did not acceptresponsibility for his wife's death, had not engaged in any offence-focused treatment in prison, and was not required to live in supported accommodation. Nevertheless, Mr Harmer was released on parole with eight special conditions imposed which included the requirement to complete treatment and counselling programmes.2 Edmonds and Ericson v The New Zealand Parole Board [2015] NZHC 386 at [34].Mr Starling said that the similarity between the circumstances of the two prisoners, but the stark contrast in outcomes before the Board, supported his submission thatthe Board's decision in respect of his client was irrational.[28] In response to the first aspect of these submissions, I consider it is inappropriate to compare and contrast the sentencing process with the process by which the Parole Board makes it decisions to release an offender. Parole decisions are decisions made in a quite different statutory framework. The Act is explicit in saying that an offender has no entitlement to be released on parole. Furthermore, Parliament has seen fit to limit the ability to challenge a Parole Board decision to a statutory right of review under s 67(3) of the Act, or by an application for review to this Court on the grounds that there has been an error of law.[29] In terms of the general criticism made of the inconsistencies in the Parole Board decision-making process, even if there was substance to it, it would not assist in the determination of this particular application.[30] I must determine whether, in this case, the Board erred in law. I am not assisted in resolving this question by reference to the outcomes in any other case. That is, in part, because it is not possible to compare Mr Ericson's circumstances tothat of any other prisoner because I do not have the full suite of information relied onto come to the decision in the other prisoner's case. The original offence type andthe assessed risk of reoffending are just two factors that go into the Board'sassessment of the risks posed by an applicant for parole. Furthermore, the Board'sassessment of whether the imposition of special conditions would mitigate the risk will also differ from prisoner to prisoner, taking into account the risks posed by the particular applicant it is considering. Consequently, the fact that the Board has reached a different view in relation to a different prisoner, serving a sentence for the same offence and with a similar risk of reoffending, does not establish that theBoard's decision in Mr Ericson's case was in error.[31] Thus, in my view, these general submissions do not assist in determining the pleaded grounds of review, and I turn now to the errors alleged in Mr Ericson's case.Did the Board err in failing to take account a relevant consideration, namely, that it could impose special release conditions?[32] The applicant points out that the Board may impose special conditions on an offender on parole, as it did with Mr Harmer, and the Board is not limited as to what special conditions it may impose.3 He submits the Board failed to take account of this when assessing how the residual risk would be managed in the community. While Mr Starling acknowledged that the Board made reference to conditions when it concluded it was "not brought to the view that Mr Ericson, if released into the community on the conditions of parole, would no longer pose an undue risk to thesafety of the community", he considered the reference was to the standard release conditions in s 14 of the Act. He says, had the Board been referring to the special conditions proposed, it would have provided its reasons for considering them inadequate to address risk.[33] However, I consider it is clear the Board was taking into account the proposed suite of special conditions when it reached its conclusions. The proposed special release conditions were set out in the parole assessment report that was provided to the Board. The addendum psychological report also made reference to one of the proposed special conditions. It is clear the Board considered these conditions because they were the focus of questions of Mr Ericson at the hearing. He was asked about his ability to comply with the proposed conditions and whether he objected to any of them. One of the lines of enquiry was whether he saw difficulty complying with many of the conditions which involved dealing with a probation officer, who was a person in authority. The Board also enquired whether he would have difficulty disclosing information about himself as required by the special conditions.3 Parole Act 2002, s 15.[34] From the material before me, I am satisfied that the Board was aware it could impose special conditions and took some time to assess the likely efficacy of those conditions. The logical inference is that the Board's conclusion that there remainedan undue risk if Mr Ericson was released into the community on conditions of parole, took account of its ability to impose special conditions on him.[35] For this reason, the first ground of review fails.Was the Board's decision disproportionate or unreasonable?[36] I have considered the applicant's second and third grounds of review togetherbecause they rely on the same submissions, with the applicant's first claiming thatthe decision to decline parole was "more than was necessary to accomplish theobjective of limiting the applicant's risk of offending" and then that the decision wasone "that no sensible Parole Board, acting with due appreciation of its duty, wouldhave arrived at".[37] Unreasonableness, in the sense that no reasonable decision-maker acting with due appreciation of its duty would have arrived at the decision, has long been recognised as a ground of review.4 In such cases, even though the decision-maker has seemingly considered all relevant factors and ignored irrelevant factors, if the outcome is so irrational that no reasonable body of persons could have arrived at it, then the only proper inference is that the power has been misused, and the decision will be set aside.[38] The applicant also asserts the decision to decline parole was not a proportionate response to the risk. Proportionality was first identified as a possible ground of judicial review by Lord Diplock in Council of Civil Service Unions v Minister for the Civil Service.5 However, there is debate as to whether it is an independent ground of judicial review in New Zealand.6 Instead, it has been applied4 It was first developed in Associated Provincial Picture Houses Ltd v Wednesberry Corporation[1948] 1 KB 223; [1947] 2 All ER 680 (CA).5 Council of Civil Service Unions v Minister for the Civil Service [1985] AC 374 (HL) at 410.6 Isaac v Minister of Consumer Affairs [1990] 2 NZLR 606 (HC) at 635–636.as a type of unreasonableness of outcome7 with particular application in cases involving the New Zealand Bill of Rights Act 1990 (NZBORA).8[39] Given that a decision on whether an offender should be released on parole brings up NZBORA issues, and s 7(2)(a) of the Act brings questions of proportionality into play, I consider proportionality is an appropriate consideration inthe present situation. However, any review of the Board's decisions in this context should be undertaken "loosely", in the sense that a wider range of outcomes will be considered reasonable and proportionate.9 As was said in Taylor v Chief Executive of the Department of Corrections:10we keep in mind that applications for judicial review differ from generalappeals on the merits. The Court's supervisory role on judicial review has the objective ensuring that decisions of a kind at issue in this proceeding are made according to law. The Court will intervene on conventional judicial review grounds to ensure that objective is achieved. Substituting its own view for that of a decision-maker would be an exceptional step in this context.[40] I accept that in every case that the Board considers a request for parole, it must consider, afresh, whether the applicant poses an undue risk to the safety of the community, based on all relevant information before it. The starting point is that the prisoner has no entitlement to release and the paramount consideration in every case is the safety of the community. Parole may only be granted if, at the time of considering the application for parole, the prisoner can demonstrate they do not pose an undue risk. No particular information provided to the Board would necessarily be determinative of the outcome. Thus, an assessment that an offender is of low risk of re-offending does not necessarily lead to a finding that the risk posed is not undue. Similarly, a comprehensive suite of special conditions may not be considered toappropriately manage the risk if there are concerns about the offender's ability tocomply with them, or where there is still residual doubt about the offender's abilityto avoid situations which might trigger offending behaviour. In other words, theoffender's personal circumstances may still suggest the risk to the community is7 For example in Waitakere City Council v Lovelock [1997] 2 NZLR 385 (CA) at 407–408.8 Philip A Joseph Constitutional and Administrative Law in New Zealand (4th ed, Thomson Reuters, Wellington, 2014) at [24.5.2(2)].9 Graham Taylor Judicial Review: A New Zealand Perspective (3rd ed LexisNexis, Wellington, 2014) at [14.43].10 Taylor v Chief Executive of the Department of Corrections [2015] NZAR 1648 (CA) at [91].undue if he or she has not demonstrated that their risk can be appropriately managed on release.[41] In the present case, Mr Starling submitted that there was nothing in the reports to suggest that Mr Ericson posed an undue risk to the community if paroled, he had now engaged in psychological treatment and that could be continued in the community, he had supported accommodation with the Salvation Army, and the risks of reoffending were appropriately addressed by the special conditions imposed. InMr Starling's submission, to expect more from Mr Ericson before parole was to be granted was unreasonable, a factor he considered was highlighted by the allegedly inconsistent treatment of Mr Harmer.[42] However, having read all the materials available to the Board, and the transcript of the hearing, I am satisfied that the Board had a range of concerns which, when considered in totality, meant they were not persuaded that the risk to the community had been adequately addressed. It is clear that the Board considered that Mr Ericson would need a very structured support system on his release to the community. In this regard there were reservations about the short duration of the proposed supported accommodation and the lack of a good local network system for Mr Ericson. The Board was also of the view that the psychological treatment should be completed before Mr Ericson was released on parole, because this was central to managing the risk of offending behaviour when released to the community.[43] I am satisfied that, on the material before it, this was a decision that was open to the Board. Furthermore, the Board's decision represented a rational steppingstone in providing guidance to Mr Ericson on how he could constructively work towards release on special conditions. In all the circumstances, I am satisfied that the decision to decline parole was neither disproportionate nor so unreasonable that no reasonable Board could have reached that decision in light of its statutory obligations.[44] The application to declare the decision invalid, and to quash it and grant parole to Mr Ericson is therefore declined.Costs[45] Counsel appointed to assist the Court noted that if Mr Ericson was unsuccessful, the Court had the option of ordering that Mr Ericson pay her costs or, alternatively, the Court may order that her costs be paid out of public funds. I am satisfied that, notwithstanding this is Mr Ericson's fifth application for judicial review of Parole Board decisions, the case was responsibly advanced through counsel.11 Ms Stone was appointed at the Court's request and accordingly, I orderthat her costs be paid out of public funds, pursuant to s 99A(1)(b) of the Judicature Act 1908.Solicitors:M Starling, Barrister, ChristchurchCrown Law Office, Wellington11 The appellant's four previous judicial reviews are: Ericson v New Zealand Parole Board HC Wellington CIV-2010-485-1912, 2 March 2011; Ericson v New Zealand Parole Board [2013] NZHC 1790; Edmonds and Ericson, above n 2; and Ericson v New Zealand Parole Board[2015] NZHC 375.