ISHERWOOD v NEW ZEALAND PAROLE BOARD [2022] NZHC 2031

ISHERWOOD v NEW ZEALAND PAROLE BOARD [2022] NZHC 2031 [29 August 2022]IN THE HIGH COURT OF NEW ZEALANDCHRISTCHURCH REGISTRYI TE KŌTI MATUA O AOTEAROAŌTAUTAHI ROHECRI-2022-409-000088[2022] NZHC 2031BETWEEN MAUI GARRY ISHERWOODAppellantAND NEW ZEALAND PAROLE BOARDRespondentHearing: 28 July 2022Appearances: J Tupaea for the AppellantP A Currie for the RespondentJudgment: 29 August 2022JUDGMENT OF NATION JIntroduction[1] Maui Isherwood was sentenced to preventive detention by Chisholm J in April2004 for kidnapping, rape, and administering a class B drug.1 Mr Isherwood wasreleased from prison on 1 September 2020. After a period of good behaviour, he wasrecalled back to prison first in an interim decision of 16 September 2021 and then witha final recall order of 9 November 2021. Mr Isherwood applied to have the ParoleBoard's decision to recall him reviewed. The decision was upheld on review. MrIsherwood now appeals the Board's decision.Factual background[2] Mr Isherwood was sentenced to 8 years' imprisonment in 1999 foradministering morphine to a 14-year-old girl, having sex with her and living on her1 R v Isherwood HC Christchurch CRI-2003-009-8959, 24 April 2004.earnings as a prostitute. He was then released from prison on parole for 18 months inJuly 2003. Mr Isherwood had only been on parole for two or three weeks when hefurther offended and was recalled to prison.[3] Mr Isherwood was convicted of 10 charges relating to administering a class Bdrug, kidnapping, sexual violation by unlawful sexual connection and sexual violationby rape in relation to offending in July 2003. Mr Isherwood and an associate went toa motel with the victim, injected her with drugs and subjected her to a range of violentsexual offending throughout the night. The victim was 18 years old. For thisoffending, Mr Isherwood was sentenced to preventive detention with a minimumperiod of imprisonment of 10 years.[4] Mr Isherwood remained in prison from July 2003 until he was released on 1September 2020, after becoming eligible for parole on 21 April 2014.[5] When released, Mr Isherwood was subject to standard conditions of parole forlife and some special conditions, which were to expire in August 2025. The specialconditions included:(a) not to have contact with a person under the age of 16, directly or indirectly,without prior written approval of a probation officer;(b) to reside at a certain address and not to move without prior writtenapproval of a probation officer;(c) to attend any hearing when notified;(d) not to communicate with his co-offender without the prior writtenapproval of a probation officer;(e) not to have contact with the victim of the offending without the priorwritten approval of a probation officer;(f) not to possess, use or consume alcohol, controlled drugs or psychoactivesubstances except controlled drugs prescribed by a medical professional;(g) to comply with electronic monitoring;(h) not to enter any licensed premises under the Sale and Supply of AlcoholAct 2012, except for supermarkets and dairies, without the prior writtenapproval of a probation officer;(i) not to communicate or associate, directly or indirectly, with any personknown to Mr Isherwood to associate with the Mongrel Mob without theprior written approval of a probation officer;(j) to remain at the stated address between the hours of 9 pm and 6 am daily,unless given prior written approval by a probation officer or as permittedunder s 33(4) of the Parole Act 2002; and(k) to disclose to a probation officer, at the earliest opportunity, the details ofany intimate relationship which commences, resumes or terminates.[6] When first released, Mr Isherwood appears to have complied with his releaseconditions. As reported at his Parole Board review on 4 December 2020, MrIsherwood always reported as required and complied with the special conditions onhis parole. He had no unauthorised contact with gang members and, when heaccidentally entered licensed premises, he immediately phoned his probation officerto inform them of this. The report noted that he was in a supportive relationship withhis then partner. Overall, the probation officer considered he was making goodprogress in the short time he had been in the community, but there was a concern thathe was trying to rush his reintegration. Mr Isherwood requested the removal of hiscondition not to have contact with children under the age of 16 and to extend hiscurfew. Taking a cautious approach, the Parole Board considered the non-contactcondition should not be varied, but the Board did relax the hours of his curfew so theywere from 10 pm until 6 am.[7] Mr Isherwood had another progress hearing with the Parole Board on 27 May2021. The Parole Board thought it appropriate at this time to remove his curfew andthe condition to not associate with children under 16 and to not enter licensedpremises. The Board noted that the non-contact conditions was imposed because MrIsherwood's offending was against younger women and girls. He told the Board hewas living a different lifestyle then and was imbued with a gang mentality. He said henow sees things differently and had kept his distance from the gang.[8] One of the factors that led to the recall application that is currently underreview was Mr Isherwood's arrest in September 2021. This related to charges laid byPolice for receiving stolen property with a value over $1,000,2 and possessing anoffensive weapon.3 On 16 September 2021, Mr Isherwood was found driving a carthat had previously been stolen. Its licence plate had been removed and replaced withanother car's licence plate. Mr Isherwood said the vehicle was not his, but he waslooking at buying it. When the vehicle was searched, the police found a folding pocketknife and brass knuckle dusters under the front passenger seat. Mr Isherwood deniedknowledge of these items.[9] There were other incidents before the one in September that Mr Isherwood'sprobation officer was made aware of, as detailed in the probation officer's affidavit.On 8 January 2021, while still subject to a curfew, Mr Isherwood travelled to theaddress of a known gang member who was on life parole. Mr Isherwood stayed at thisaddress for around two hours. During this time, there were significant incidents ofgang violence within the community. Police stopped Mr Isherwood on his way backto Christchurch, and they described his behaviour as apprehensive and edgy. Notably,Mr Isherwood did not mention this to his probation officer until asked about it, whichwas out of character for him at the time.[10] On 10 July 2021, Mr Isherwood was spoken to by Police in the early hours ofthe morning. He told the Police he was having issues with his car. On 17 July 2021,Mr Isherwood was pulled over by Police. This time there was a female passenger withhim, and the police officer took the view that they were in a relationship. When spokento about this, Mr Isherwood was adamant they were just friends. On 13 August 2021at around 4 am, Mr Isherwood was spoken to by Police as he appeared to be actingsuspiciously. He and an associate were in a parked car on Hills Road.2 Crimes Act 1961, ss 246 and 247: maximum penalty seven years' imprisonment.3 Section 202A(4)(a): maximum penalty three years' imprisonment.[11] On 16 August 2021, concerns were raised by members of Mr Isherwood'sfamily about his mental health. Mr Isherwood allegedly tried to stab himself but wasrestrained by friends.[12] On 2 September 2021, Mr Isherwood was again stopped by Police around 4.30am after he was observed speeding. Police gave him a warning as he admitted tobreaching the COVID-19 lockdown restrictions. When speaking to his probationofficer about this, Mr Isherwood explained he was visiting a friend, but did notmention the Police warning.[13] On 16 September 2021, Corrections made an application for recall on thegrounds Mr Isherwood posed an undue risk and had committed an offence punishableby imprisonment.[14] On 16 September 2021, the Parole Board made an interim recall order for MrIsherwood on the basis "the offender poses an undue risk to the safety of thecommunity or to a person or class of persons".[15] The application for recall was adjourned at two hearings on 11 October 2021and 28 October 2021.[16] On 9 November 2021, there was a hearing before the Parole Board when thefinal recall order was made.[17] Mr Isherwood was not convicted on the criminal charges he faced at the timeof the Parole Board decision. A charge of possession of an offensive weapon wasdismissed on 16 December 2021. A charge of receiving stolen property waswithdrawn by the Police on 13 April 2022.[18] On 1 May 2022, Mr Isherwood made an application under s 67(1) of the ParoleAct for review of the Parole Board 9 November 2021 decision. In a decision of 2 May2022, the Board effectively declined that application.The Parole Board decisions[19] In its decision of 9 November 2021, the Parole Board determined it wouldmake a final recall order because there was undue risk if Mr Isherwood were to bereleased into the community. In making this decision, the Parole Board consideredthe following factors:(a) There was not a suitable address for Mr Isherwood in the community. MrIsherwood's counsel accepted it would be preferable for Mr Isherwood tobe released to a residential programme, but there were none available atthe time.(b) Mr Isherwood and his partner, who had just had a baby, had split up.(c) Mr Isherwood was struggling with his mental health and had been engagedwith the service offered by Hillmorton Hospital.(d) He is facing new allegations of criminal offending. The explanationsprovided by Mr Isherwood and his associates regarding the night of thealleged offending were implausible. The Parole Board did not accept thatMr Isherwood's associate owned the car and had asked Mr Isherwood todrive it because the associate did not have a licence. That did not accordwith other information before the Parole Board which indicated MrIsherwood owned the car.(e) The Parole Board was also unconvinced by his explanation that he was inMongrel Mob clothing only because he wore the clothing for comfort andwas no longer in the gang.(f) As soon as his curfew was removed, he began associating with people inthe middle of the night, including in breach of lockdown restrictions.[20] The Parole Board issued its review decision under s 67 of the Parole Act on 2May 2022. The Board noted the application to review its initial decision of 9November 2021 was almost five months out of time. It said there was no provisionthat allowed for an extension of time for appeal to be granted, and therefore theapplication for review could not be considered. The Board went on to say, even if ithad considered the application, it would have declined it. It noted that the Boardhearing the application on 9 November was aware the charges remained allegationsand recognised the charges had since been dropped. The Board said that:There were at least five other grounds on which the application was grantedand risk was considered undue, including mental health concerns, wearingMongrel Mob clothing, conduct in the community after the curfew wasremoved, involving breaching lockdown restrictions and being present withother members of the Mongrel Mob late in the evening, his lack of credibilitywith respect to explanations relating to the use of vehicles, no release addressand a need to strengthen a release proposal to identify residential or othersupported accommodation.Legislation[21] Section 68 of the Parole Act says:68 Appeal to High Court against postponement orders, section 107orders, and final recall orders(1) An offender who is subject to a postponement order, an order undersection 107, or a final recall order may, within 28 days of the date of thedecision on a review under section 67 (or whatever longer time the courtpermits), appeal to the High Court against the decision on the groundsthat the order ought not to have been made.(2) No appeal may be made under this section until the decision to make theorder has been reviewed under section 67.(3) If an offender lodges an appeal, he or she remains subject to the orderwhile the appeal is determined.(4) In the case of an appeal against a final recall order, without limiting thematters that the court may consider in determining the appeal, the courtmust consider the need to protect the community, or any person or classof persons.[22] Relevantly, s 69(4A) permits a Judge of the High Court to extend any timeallowed for lodging an appeal under s 68.Application for leave to file an appeal out of time[23] On 25 May 2022, Mr Isherwood sought an order extending the time for thelodging of his appeal so that the merits of the appeal, as referred to in submissions,could be considered. Ms Currie for the Crown acknowledged that an appeal could nothave been filed until the Parole Board first dealt with an application to review itsdecision. Corrections did not oppose the application being dealt with on its merits.[24] I accordingly extend the time for Mr Isherwood to lodge his appeal to the dateit was filed, although it may not have been necessary to do so.SubmissionsAppellant submissions[25] Mr Isherwood's appeal was made by way of the notice of application for leaveto appeal dated 25 May 2022 and counsel's submissions of the same date.[26] In his written submissions, Mr Tupaea advanced the appeal on two grounds.The first was that the Board took into account an irrelevant matter. The second groundwas that the Board did not take into account, with reference to the index offending forthe sentence of preventive detention, whether Mr Isherwood had been charged withlike-for-like offending when he was in the community on parole.[27] Mr Tupaea submitted that, in issuing the final recall order, the Board relied onthe grounds in s 61(a) (undue risk to the community) and (c) (committed an offencepunishable by imprisonment) of the Parole Act. He submitted the Board ought not tohave considered s 61(c) of the Parole Act and, in taking that ground into account, hadrelied on an irrelevant consideration in making its decision. He submitted this was anirrelevant consideration because the Panel Convenor, when granting the interim recallorder on 16 September 2021, relied on only one ground, being the ground in s 61(a)(undue risk to the community). Mr Tupaea submitted that was the only ground theBoard could properly consider when making its 9 November 2021 recall decision.[28] Regarding his second ground of appeal, Mr Tupaea submitted that any likelysubsequent offending did not reach the level of Mr Isherwood's previous offending forwhich he was subject to preventive detention. In oral submissions before me, MrTupaea accepted the Parole Board did not have to find Mr Isherwood had been chargedwith subsequent like-for-like offending but submitted Mr Isherwood still had to havebeen charged with offending involving at least a risk of violence.[29] Mr Tupaea accepted, if Mr Isherwood had been charged with possession of anoffensive weapon, that would have been relevant to an assessment of the risk he posedto the community. However, he submitted the alleged possession was a result of itemshaving been found under a passenger seat of a vehicle Mr Isherwood was driving andthe charge was later dismissed.[30] Mr Tupaea acknowledged, at the time of the recall hearing, there was somebasis for the Crown's scepticism as to the explanation and supporting affidavits fromothers that had been provided to the Parole Board to show Mr Isherwood was innocentof the allegations he faced with the charges that were then current. He submittedhowever that those charges now had to be considered on the basis they had not resultedin convictions.[31] Mr Tupaea submitted the alleged offending had not been with an associate ofthe Mongrel Mob and, while Mr Isherwood was wearing Mongrel Mob clothing, it didnot in itself mean there was a safety concern for the community. He submitted thiswas especially so where the clothing was not visible at the time the Police dealt withMr Isherwood and Mr Isherwood's wearing of Mongrel Mob garments was consistentwith it being just for his own comfort and because they were clothes he had.[32] Mr Tupaea submitted the matters relied on by the Board were insufficient forit to find that Mr Isherwood posed an undue risk to the safety of the community andwere more consistent with Mr Isherwood being a risk only to himself. Mr Tupaeasubmitted the appeal should be allowed and Mr Isherwood should be released onparole on the same conditions as previously imposed.Respondent submissions[33] For the Parole Board, Ms Currie submitted the grounds for the Board's interimrecall order were not limited in the manner submitted for Mr Isherwood but, even ifthey had been, there would have been no error in the Board considering wider groundswhen making the final recall order. She noted the Board has a wide right to take intoaccount whatever information it thinks fit in making its decision. She pointed out thatthe Board was aware of the charges against Mr Isherwood when it made its interimorder and must have taken them into account given the charges were referred to in theaffidavit from the probation officer sworn on 16 September 2021 in support of therecall application.[34] She also referred to s 69(6) of the Parole Act which states:The court is not bound to allow the appeal on the ground merely of theimproper admission or rejection of evidence unless, in the opinion of the court,a substantive wrong or miscarriage of justice occurred because of it.[35] Ms Currie referred in some detail to the information before the Board whichshe submitted established that the grounds had been established for the making of thefinal recall order. She referred to the varied grounds the Board relied on in making itsdecision. She submitted the Board was entitled to have regard to the informationbefore it which explained the circumstances in which Mr Isherwood had been chargedwith relevant offending. She submitted those charges had not become an irrelevantconsideration simply because they had not ultimately resulted in convictions.[36] Ms Currie submitted Mr Isherwood had failed to establish that the decision ofthe Board was wrong.Principles on appeal[37] On appeal, the court must consider the need to protect the community, or anyperson or any class of person.4[38] To issue a final recall order, the Parole Board must be satisfied that one of thegrounds in s 61 have been made out, and then it must exercise its discretion to issue afinal recall order.5[39] Where the appeal is based on whether one of the grounds under s 61 has beenmade out, the appeal proceeds as a rehearing.6 As outlined by the Supreme Court inAustin, Nichols & Co Inc v Stichting Lodestar, this Court would have to consider theappeal and reach its own view as to whether the Board's decision was correct, with the4 Parole Act 2002, s 68(4).5 Section 66; and Miller v New Zealand Parole Board [2010] NZCA 600 at [128].6 Leylander v New Zealand Parole Board [2017] NZHC 2996, [2018] NZAR 29 at [15]; and Ericsonv New Zealand Parole Board [2019] NZHC 1806 at [22].onus on the appellant to establish the Board was wrong.7 However, in doing so, thisCourt is to have regard to the specialist function of the Parole Board and theadvantages it has in being able to interview the offender and witness the informationfirst-hand.8[40] Where the appeal is against the second stage of analysis, then it is an appealagainst discretion. In that case, the appellant must establish that the Board proceededon a wrong principle, failed to recognise a relevant matter, took into account anirrelevant matter, or were plainly wrong.9[41] Section 70(2) of the Parole Act provides:(2) On an appeal against a final recall order, the court may—(a) confirm the order; or(b) quash the order and, unless the offender is liable to be detained underthis or any other enactment,—(i) direct the release of the offender from custody; or(ii) direct the release of the offender on standard release conditions(in which case the conditions are deemed to have been imposedby the Board), and refer the offender to the Board forconsideration of whether to impose any special conditions; or(c) refer the matter back to the Board with a direction to reconsider anddecide the matter, in which case it must—(i) advise the Board of its reasons for doing so; and(ii) give the Board any directions that it thinks just concerning anyaspect of the reconsideration.Analysis[42] The relevant grounds for recall are set out in s 61 of the Parole Act, andrelevantly include:7 Austin, Nichols & Co Ltd v Stichting Lodestar [2007] NZSC 103, [2008] 2 NZLR 141.8 Leylander v New Zealand Parole Board, above n 6, at [16], citing Ratima v Parole Board HCChristchurch CRI-2003-409-111, 5 February 2011 at [14].9 Ericson v New Zealand Parole Board, above n 6, at [22]; and Hart v Parole Board [1999] 3 NZLR97 (HC) at 100, citing Miers v Waikeria Prison District Parole Board HC Hamilton AP143/95, 14February 1996 at 3.(a) the offender poses an undue risk to the safety of the community of anyperson or class of persons; or(c) the offender has committed an offence punishable by imprisonment,whether or not this has resulted in a conviction; or(d) in the case of an offender who is subject to residential restrictions,—(ii) a suitable residence in an area in which a residential restrictionscheme is operated by the chief executive is no longer available;[43] One of these grounds must be met for the offender to be recalled to prison. MrTupaea contended only s 61(a) is relevant to this assessment, not para (c), because para(a) was relied upon for the interim recall order.[44] There is no indication in the Parole Act that the matters for the Parole Board toconsider must be limited on this basis.[45] Section 62 of the Parole Act sets out the scheme for an interim recall order:62 Making interim recall order(1) On receiving a recall application, the chairperson or any panel convenormust make an interim recall order if he or she is satisfied on reasonablegrounds that—(a) the offender poses an undue risk to the safety of the community orto any person or class of persons; or(b) the offender is likely to abscond before the determination of theapplication for recall; or(c) in the case of an offender who is subject to residential restrictions,—(i) a suitable residence in an area in which a residential restrictionscheme is operated by the chief executive is no longeravailable; or(ii) the offender no longer wishes to be subject to residentialrestrictions.(2) When deciding whether to make an interim order in respect of an offenderwho is currently detained, the chairperson or panel convenor (as the casemay be) must make the decision as if the offender were not detained.[46] The grounds in s 62 are therefore different and narrower than those in s 61.Notably, s 61(c) is not reflected in s 62. The reason the grounds are different is toreflect the urgent and emergency nature of an interim recall order.10 The Board'sconsideration of the application for a final recall order can be more thorough and morewide-ranging. At that point, it is in accordance with the scheme of the Parole Act thatthe Board be able to consider wider and all grounds relevant to the assessment it hasto make.[47] Consistent with that, s 117 of the Parole Act relevantly says:117 Information before Board(1) In any hearing before the Board, the Board may receive and take intoconsideration whatever information it thinks fit, whether or not theinformation would be admissible as evidence in a court of law.(2) Information received by the Board may be in a form other than writing,but only if the Board is satisfied that—(a) the information adds significantly to the written informationavailable to it; and(b) it will be possible, in relation to that information, to comply with therule in section 13(1) about making information available tooffenders.[48] Section 69 says:69 Procedure on appeal against postponement orders, section 107orders, and final recall orders(5) On an appeal under section 68, the court may receive in evidenceanything that the Board could have received at first instance.(6) The court is not bound to allow the appeal on the ground merely of theimproper admission or rejection of evidence unless, in the opinion ofthe court, a substantive wrong or miscarriage of justice occurredbecause of it.[49] I also note that s 7(2)(c), in the guiding principles section of the Parole Act,provides that decisions must be made on the basis of all the relevant informationavailable to the Parole Board at the time it is making the decision. To hold that a final10 See Simon France (ed) Adams on Criminal Law (online ed, Thomson Reuters) at [PA62.02A].recall order cannot be made on a ground that was not raised at the hearing for theinterim recall order would be inconsistent with the Parole Board having to makedecisions based on the most up-to-date information.[50] Section 61 contemplates that, on the hearing of an application for a final recallorder, the Parole Board will be able to consider information that has emerged betweenthe making of the interim order and the hearing for the making of a final order. Oneof the grounds for the making of an interim order is that the person who was releasedon parole is charged with an offence for which he will be liable for imprisonment. Thegrounds for recall, as set out in s 61 of the Parole Act, include:(c) the offender has committed an offence punishable by imprisonment,whether or not this has resulted in a conviction[.]That is not a ground on which the Chairperson or any convenor can make an interimrecall order under s 62(1) of the Parole Act.[51] The "paramount consideration" in decisions relating to release is the safety ofthe community.11 Section 7(3) provides:When any person is required under this Part to assess whether an offenderposes 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.[52] The risk to the safety of the community is "undue" where it is disproportionateto and outweighs the offender's personal interest in retaining their liberty.12[53] It is not essential to a finding of undue risk that an offender has committedfurther offending of any sort. The applicant for recall certainly does not have toestablish that an offender has offended similar to the index offending for which theywere originally sentenced to imprisonment. As was said by the Court of Appeal inMiller v Parole Board:1311 Parole Act, s 7(1).12 Forest v New Zealand Parole Board [2013] NZHC 2847 at [27], citing Clarke v New ZealandParole Board HC Christchurch CRI-2005-409-111, 22 July 2005 at [35].13 Miller v New Zealand Parole Board, above n 5, at [129].We are also of the view that there is no need for an applicant for recall toestablish particular conduct on the part of the parolee which is similar to theoriginal offending. In this context, the concept of nexus is simply functional.If there is an obvious nexus (eg as there would have been if Mr Carroll hadcommitted sexual offences while on parole), then that is likely to be highlyrelevant to the public safety assessment and tell in favour of recall. Wherethere is no obvious nexus in that sense, it may be rather more difficult toestablish an undue risk.[54] I agree with the submission of Ms Currie that the factors relied on by the Boardin its final recall order decision relating to his risk included:a. ongoing mental health struggles;b. association with Mongrel Mob (being a special condition breach);c. new criminal offending alleged;d. nightly activities including breaching lockdown restrictions;e. implausibility of explanations regarding events of 16 September 2021relating to the criminal charges;f. no suitable approved address; andg. release proposal needs to be strengthened to secure supportedaccommodation.[55] Whether those matters, either separately or cumulatively, put the communityat undue risk has to be considered against the background of the serious offendingwhich led to the sentence of preventive detention. Those risk factors had been thefocus of careful consideration by the Board over a number of years, as had suchprogress Mr Isherwood made through his involvement in various programmes toreduce the level of risk.[56] Mr Isherwood's association with the Mongrel Mob had been long identified asa serious risk factor. That risk factor was recognised by the Board in making it aspecial condition of parole that Mr Isherwood was "[n]ot to communicate or associate,directly or indirectly, with any person known to you to associate with the MongrelMob unless you have the prior written approval of a Probation Officer". MrIsherwood's acceptance of this was a factor of importance to the Parole Board in itsdecision to delete conditions as to curfew, not entering licensed premises and notcontacting children under the age of 16 following a second review hearing on 27 May2021.[57] There was ample evidence before the Board to justify its concern that the riskof serious offending had increased through the way Mr Isherwood was associatingwith others involved with the Mongrel Mob and displaying his allegiance to them.[58] There was the evidence of Mr Isherwood travelling to Motueka on 8 January2021 and being with a known gang member who was on life parole, and MrIsherwood's failure to tell his probation officer about this until he was asked about it.Mr Isherwood was arrested on 16 September 2021 when he was driving a vehicle withfalse plates, was in possession of a significant amount of cash, had a weapon in thevehicle and was wearing clothing that indicated a return to gang association. Policecame across Mr Isherwood in a vehicle in Maunsell Street, Woolston, Christchurch.In the vehicle were the knuckle dusters and knife he was charged with havingpossession of. The vehicle Mr Isherwood was in was a stolen vehicle. The othervehicle was also stolen. The information before the Board was that the person in theother vehicle was a Mongrel Mob associate. In support of Mr Isherwood, this otherperson had provided an affidavit saying he was the owner of the vehicle Mr Isherwoodhad been in and the knuckle duster and knife in the vehicle belonged to him. Therewas a good basis for suggesting the information the other person provided to the ParoleBoard to assist Mr Isherwood was implausible.[59] When Mr Isherwood was searched, he was found to be wearing multipleMongrel Mob clothing items.[60] Mr Isherwood was also stopped in a vehicle on 17 July 2021. He told theofficer attending that he is a life parolee and he was no longer in the Mongrel Mob,but the officer noted Mr Isherwood was wearing red shorts and a large gold and silverring on his right hand similar to those gang members normally wear. There wasinformation supporting the probation officer's concern of a pattern of Mr Isherwoodcoming to the attention of the Police with unknown associates (often at early hours ofthe morning and with no clear reason for being out) in the months before 16 September2021. The information as to his involvement with the vehicles on 16 September 2021was consistent with his being involved in illegal activity and being involved with theMongrel Mob.[61] At the hearing on 9 November 2021, Mr Isherwood provided information tosupport a request that he be released to the Mana Atua recovery home in Auckland.The information provided to the Parole Board was that Mana Atua is an organisationrun by the Destiny Church. It is not an institution with which Corrections has arelationship and the programme houses a number of Mongrel Mob members fromHawke's Bay.[62] I have read the Parole Board's decisions spanning a number of years. Thesebegan with a decision of 4 September 2003 when the Board made a recall order afterthe July 2003 offending committed when Mr Isherwood had been on parole from hisearlier sentence of eight years' imprisonment. From 30 April 2014, there have been anumber of Board decisions following its consideration of parole in relation to MrIsherwood's sentence of preventive detention. In a decision of 4 September 2019, theBoard decided it was time to move on to the reintegrative in-prison phase but, at thattime, Mr Isherwood remained an undue risk. On 4 August 2020, the Board decidedMr Isherwood would be released on parole from 1 September 2020. The Board wassatisfied that Mr Isherwood had produced a comprehensive release plan and relapseprevention plan. It said, with those plans in place, accommodation with his motherand family in Christchurch, general wraparound support from other family memberstogether with prospects of employment in the building industry, Mr Isherwood nolonger represented an undue risk to the community and was ready for release. It isapparent from their decisions that the Board took considerable care in decidingwhether Mr Isherwood should be released on parole.[63] There were 16 conditions of parole Mr Isherwood had to comply with andwhich were to be in force for five years from his release date. Compliance with thoseconditions was obviously important to the Board in ensuring he would not be an unduerisk to the safety of the community. The Board monitored his compliance with hisconditions of parole. It was apparent from their decisions that Mr Isherwood's mentalhealth, his positive psychological state as reported on in a psychologist's report of 6July 2020, and the support he had from a relationship were important to the ParoleBoard in continuing to support his parole and, on 27 May 2021, agreeing to amendsome of his special conditions.[64] The Board considered the application for recall at a meeting on 28 October2021. Ms Currie then sought the making of a final order, but the Board adjourned theapplication because its primary concern was with Mr Isherwood's risk rather than justthe circumstances of the charges which led to the interim recall.[65] It is clear from the Board's decision of 9 November 2021 that it was concernedthat crucial aspects of the support, which had been of importance to the Board in earlierdeciding that Mr Isherwood was no longer an undue risk to the community, were nolonger working out for him. He did not have an appropriate address to be released to.Mr Isherwood's supporters, as well as Corrections, were of the view that he requiredmore intensive support to assist with his transition back into the community.[66] In contrast to the positive reports as to his mental health and psychologicalstate at the time of his release, his mental health had deteriorated. Mr Isherwoodconfirmed this when he discussed those matters with the Board at the hearing. TheBoard noted the circumstances in which he had been found in the middle of the nightaway from his address and the occasion on which he was found to be driving a stolenvehicle. It noted he had said he went out at night to escape issues that had arisen forhim at home and he had split up with his partner.14 It also noted Mr Isherwood hadacknowledged that on two or three occasions he had been found by the Police awayfrom his address in the middle of the night when he was with other people. The Boardnoted he had returned to wearing clothing associated with the Mongrel Mob gang.[67] The Board summarised their reasons for making a final order for MrIsherwood's recall. I find that those reasons justified the Board in deciding there hadbeen a change in Mr Isherwood's personal circumstances, his mental health, thesupport that would be available to him in the community and his willingness to14 Mr Tupaea responsibly informed the Court that Mr Isherwood's partner had obtained a temporaryprotection order against Mr Isherwood as a result of incidents that had occurred in theirrelationship while Mr Isherwood was on parole. He said the protection order was based onallegations as to threats of violence but primarily of psychological abuse. He was still to obtaininstructions from Mr Isherwood as to how he wished to respond to that application and the makingof that temporary protection order.associate with people who put him at risk of further offending. I am satisfied thismeant there could no longer be the confidence that his level of risk was at the level ithad been when the Board decided to release him on parole in August 2020.[68] I find there was no error in the Parole Board deciding in November 2021 thatthere would be an undue risk to the safety of the community if Mr Isherwood werereleased on parole.[69] If all the information the Board had as to his circumstances at that time had notbeen sufficient to establish he was then an undue risk, the Board would still have beenjustified in making a final order for recall in terms of s 61(d) of the Parole Act. Thiswas because, at that time, there was no approved residence available in the communityto which Mr Isherwood could be safely released on parole.[70] It had been a condition of parole that Mr Isherwood live at a specified addresswith his mother. At the time of the Parole Board's final decision this was no longer anapproved address and Mr Isherwood, through his counsel, did not put this forward asan available address.Conclusion[71] Accordingly, the time for Mr Isherwood to appeal has been extended. Hisappeal is dismissed.Solicitors:J Tupaea, Barrister, ChristchurchRaymond Donnelly & Co., Christchurch.