PITCEATHLY v NEW ZEALAND PAROLE BOARD [2018] NZCA 454

PITCEATHLY v NEW ZEALAND PAROLE BOARD [2018] NZCA 454 [25 October 2018]NOTE: HIGH COURT ORDER SUPPRESSING NAME AND IDENTIFYINGPARTICULARS OF CROWN WITNESS AT TRIAL REMAINS IN FORCE.IN THE COURT OF APPEAL OF NEW ZEALANDI TE KŌTI PĪRA O AOTEAROACA288/2018[2018] NZCA 454BETWEEN NEIL GRAHAM PITCEATHLYAppellantAND NEW ZEALAND PAROLE BOARDRespondentHearing: 16 October 2018Court: Miller, Brown and Gilbert JJCounsel: S W Hughes QC for AppellantM S Smith and V J Owen for RespondentJudgment: 25 October 2018 at 2.30 pmJUDGMENT OF THE COURTA The appeal is allowed.B The decision of the respondent declining parole to the appellant is setaside.C The appellant's application for parole is referred back to the respondentfor reconsideration in the light of the meaning of s 28(2) of the Parole Act2002 as explained in this judgment.D The respondent must pay the appellant costs for a standard appeal on aband A basis and usual disbursements.____________________________________________________________________REASONS OF THE COURT(Given by Brown J)Introduction[1] Section 28 of the Parole Act 2002 (the Act) provides that the New ZealandParole Board (the Board) may direct that an offender be released on parole only ifsatisfied on reasonable grounds that the offender, if released on parole, will not posean undue risk to the safety of "the community or any person or class of persons withinthe term of the sentence". The issue on this appeal concerns the meaning of the quotedphrase.Factual background[2] Mr Pitceathly was found guilty by a jury of 17 charges of sexual violation byrape, 74 charges of sexual violation by unlawful sexual connection, 60 charges ofstupefying with intent to commit sexual violation and 61 charges of possessingintimate visual recordings. The victim of all his offending which occurred primarilybetween 1999 and 2003 was his former wife who,1 when supplied by Mr Pitceathlywith medication beyond her prescribed dose would be rendered unconscious, therebyproviding the opportunity for him to engage in sexual activity with her.[3] On 21 August 2009 Mr Pitceathly was sentenced to 20 years' imprisonment(reduced to 18 years on appeal) with a minimum non-parole period of seven years andnine months.2 His statutory release date is 26 May 2027. He became eligible forparole on 24 February 2017.[4] On 31 January 2017 the Board conducted a hearing to consider whetherMr Pitceathly should be released on parole. Mr Pitceathly was supported by his third(present) wife who had no concerns at all for her own safety based on her associationwith Mr Pitceathly since 2005. However Mr Pitceathly's second wife informed theBoard of her fears for her safety should Mr Pitceathly be released.Consequently Mr Pitceathly agreed that, if granted parole, he would not enter the areawhere his second wife resides without the approval of a probation officer.1 The victim has waived her statutory right to name suppression under s 139 of the Criminal JusticeAct 1985.2 R v Pitceathly HC Tauranga CRI-2007-042-4245, 21 August 2009; and Pitceathly v R[2010] NZCA 95.[5] Mr Pitceathly relied upon reports from Mr Manderson, a psychologist withwhom he had had 33 sessions, who outlined the range of topics covered in the courseof his treatment of Mr Pitceathly and noted a number of factors that served to mitigatehis risk of reoffending. The Board also received a psychological report from anotherpsychologist, Dr Macfarlane, who assessed Mr Pitceathly as being at medium to highrisk of reoffending and concluded that the release proposal was insufficient to managehis risk. She considered that if sexual reoffending was to occur, it would most likelyinvolve carefully planned, covert sexual assaults against a well-known female victim.[6] In its decision dated 7 February 2017 the Board stated:14. We have reviewed the detailed submissions made by and on behalf ofMr Pitceathly in support of his release on parole. We have concluded that weare not satisfied that the work he has done and proposes to do with hispsychologist together with the release proposal that has been developed andthe release conditions that the Board might impose, is sufficient to enable usto conclude that his release would not pose an undue risk to the safety of thecommunity.[7] The Board proceeded to discuss five factors that had contributed to its view,concluding as follows:21. In brief, we fall well short of being satisfied that the work MrPitceathly has done to date together with his release and safety plans aresufficient to manage the psychological assessment of his risk or the level ofrisk indicated by his offending. In the absence of further significant andintensive intervention we could not be satisfied that his release would not posean undue risk to the safety of the community. Parole is declined.[8] On 10 March 2017 Mr Pitceathly applied to the Board for a review of itsdecision under s 67 of the Act alleging various errors of law. On 20 March 2017 theBoard issued a decision holding that no error of law was established and confirmingthe decision of 7 February 2017.[9] Mr Pitceathly then commenced a proceeding for judicial review of the Board'sdecision. Five errors were alleged including:• As a consequence of the Board's failure to consider the absence of previousconvictions, the fact the offending occurred in the context of adysfunctional relationship and involved a single victim, Mr Pitceathly'sage and his commitment to counselling, the Board reached a decisionwhich was disproportionate or unreasonable in the circumstances.• The conclusion that the counselling undertaken by Mr Pitceathly had beenineffective in ensuring that he did not pose an undue risk to the communitywas a decision which was unreasonable.The High Court judgment[10] With reference to the former ground Collins J was satisfied that the Board'sdecision was one that was reasonably available to it, notwithstanding the fact that thedecision did not make reference to some of the matters specifically identified onMr Pitceathly's behalf.3[11] Turning to the latter ground, the Court stated:[71] It was only during the course of Mr Perkins' submissions that itbecame clear the real concern is not the risk Mr Pitceathly may pose to thecommunity, but the risk he poses to his current wife.[72] Support for the position adopted by Mr Perkins can be found inDr Macfarlane's report, in which she explained that Mr Pitceathly is at amedium-high risk of further sexual offending and that if such offending wereto occur, it would most likely involve a well-known, vulnerable adult femalevictim.[73] The Board was satisfied by Dr Macfarlane's report that the therapyMr Pitceathly had undertaken with Mr Manderson had "not been of sufficientintensity nor had it demonstrated sufficient risk focus " to adequatelyaddress Mr Pitceathly's risk of reoffending. The Board also said that thesessions Mr Pitceathly had undertaken with Mr Manderson were not"sufficient to manage the psychological assessment of his risk or the level ofrisk indicated by his offending". While these comments appear to have beendirected to the potential risk posed by Mr Pitceathly to the wider community,rather than just to his present wife, the Board's assessments are capable ofencompassing the concerns that Dr Macfarlane clearly harboured about therisks Mr Pitceathly poses to his current wife.[74] It would have been helpful if the Board had explained precisely whatconcerns it had about the risk Mr Pitceathly poses to his current wife, ratherthan referring generally to concerns about the risks Mr Pitceathly may pose tothe community. While I have concerns about the precision with which theBoard conveyed its reasons, I am nevertheless satisfied that the Board wasentitled to prefer Dr Macfarlane's opinion over that conveyed byMr Manderson. Dr Macfarlane's report was extremely comprehensive and3 Pitceathly v New Zealand Parole Board [2018] NZHC 903 at [68].logical, and it carefully analysed the effectiveness of the therapy thatMr Pitceathly had had with Mr Manderson. I have already concluded at [61]that Dr Macfarlane's report was not irrational. The fact the Board preferredDr Macfarlane's opinion over that of Mr Manderson was an option that wasreasonably available to the Board in the circumstances of this case.(Footnotes omitted).[12] The Judge was unable to conclude that the Board's decision in relation to thelatter ground passed the threshold of being unreasonable in the sense that noreasonable body of persons could have arrived at it. The application for judicial reviewwas dismissed.The issues on appeal[13] Drawing attention to the concession at [71] of the judgment that the realconcern is not the risk Mr Pitceathly may pose to the community but rather to hiscurrent wife, the notice of appeal contended that the High Court made an error of lawin elevating Mrs Pitceathly to be "the community". The relief sought on appeal was adeclaration declaring that Mrs Pitceathly cannot be and is not "the community" for thepurposes of the Act.[14] Subsequently the parties filed agreed issues in the following terms:1 Did the respondent correctly interpret and apply s 28(2) of the ParoleAct 2002 when it declined parole finding that " we could not besatisfied that his release would not pose an undue risk to the safety ofthe community", given the identified potential victim?2 If it did not (ie, if there was a material error by the respondent ininterpreting or applying s 28(2)), what remedy is appropriate?The parties' casesThe appellant's submission[15] The argument for Mr Pitceathly was pithily framed by Ms Hughes QC asfollows:This appeal, is confined to a single point, that is Mrs Pitceathly cannot and isnot either "the community" or "any person or class of persons within the termof the sentence".It is submitted, that the latter reference applies to named victims or classes ofvictims. For example someone who had been convicted of paedophilia mayhave a direction that he is not to have contact with persons under the age of12 for example. It is common ground, that there are no named person orpersons nominated in Mr Pitceathly's sentence.[16] Ms Hughes developed the argument that the word "community" is a collectivenoun presupposing a category involving more than one person by reference to excerptsfrom the first and second readings of the Sentencing and Parole Reform Bill in 2001and 2002 and to a report from the Ministry of Justice to the Justice and ElectoralCommittee. She emphasised that the only person identified as a potential victim is anindividual who happily adopts that risk. Unlike the community or the public whichcan be presumed not to know of the offending, that person has full knowledge of thecrimes of which Mr Pitceathly has been convicted.[17] She submitted that, having found there was no community at risk fromMr Pitceathly, the Judge should have ruled that the Board had misdirected itself as tothe legal test to be applied and should have admitted Mr Pitceathly to parole.The Board's submission[18] The Board, which did not appear in the High Court, appropriately confined itssubmissions to the proper interpretation of s 28(2) and the question of appropriateremedies. In light of its statutory functions and the possibility that it might have toreconsider the question of parole if the appeal succeeded, the Board did not seek tomake comment on the correctness of the reasons expressed by it in the decision or onthe materiality of any error of law.[19] The Board's submission adopted the well-recognised approach of ascertainingmeaning from the text of the enactment and in the light of its purpose.4[20] Mr Smith submitted the text of s 28(2) recognises three categories of potentialvictims that may be relevant to the assessment of undue risk, being in ascending orderof breadth: a person (singular), a class of persons (plural) and the community.4 Commerce Commission v Fonterra Co-operative Group Ltd [2007] NZSC 36, [2007] 3 NZLR767 at [22].The disjunctive "or" that separates the three categories of potential victims indicatesthat an undue risk to the safety of people in any one of the three categories will justifythe decline of parole if that is the judgment of the Board. He submitted that to readdown "person" and "class of persons" so that they only extend protection to personsnamed or nominated by class at the time of sentencing would be a very bleak approachand inconsistent with the scheme of the Act.[21] With reference to the application of the provision Mr Smith recognised thecritical issue for this Court as being whether the Board materially erred in law indescribing its assessment of undue risk under s 28(2) in terms of "community" ratherthan in terms of a "person or class of persons". Attention was drawn to the fact thatthis Court has previously held in the context of an application to judicially review adecision declining to grant parole that inaccuracy by the Board in the expression ofthe statutory test was of no practical moment.5 However Mr Smith also recognisedthat this Court might find that in order for justice to be seen to be done in a contextwhere individual liberty is at stake that it was appropriate for the Board to expresslyaddress the relevant s 28(2) limb.Analysis[22] In our view the phrase "within the term of the sentence" does not serve as aqualifier of any of the three categories of potential victims which precede it.Rather the purpose of the phrase is to specify the duration of the period during whichthe prospect of undue risk to safety is to be assessed, namely the balance of thesentence imposed. As such the phrase will equally serve its purpose if relocated toother points within the provision.[23] That the second and third categories of potential victims are not intended to bequalified by the phrase is confirmed by their appearance in a number of otherprovisions without the durational phrase. For example one of the grounds for recallin s 61 is that:(a) The offender poses an undue risk to the safety of the community orany person or class of persons 5 Harriman v Attorney-General [2014] NZCA 544 at [90]–[92].The same phrase appears in s 62(1)(a) in the context of an interim recall order and ins 68(4) with reference to appeals to the High Court. If the construction contended forby Ms Hughes was correct, then the durational phrase would also appear in each ofthose provisions.[24] In any event the construction for which Ms Hughes contends does not flowlogically from the reference to the "term" of the sentence which as a matter of plainmeaning concerns the period of the sentence. The proposition that the purpose of thephrase is to confine a person or class of persons to the victims or classes of victimswho are named in the sentence necessitates reading the word "term" as "terms".We consider that involves placing an unjustified gloss on what would otherwise be theplain meaning of the phrase, namely a reflection of the fact that the Board'sresponsibility to assess risk is confined to the period of the duration of the offender'ssentence.[25] We acknowledge the point made by Ms Hughes that the guiding principles ins 7 of the Act refer only to the safety of the community:7 Guiding principles(1) When making decisions about, or in any way relating to, the releaseof an offender, the paramount consideration for the Board in everycase 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 isconsistent with the safety of the community, and that theymust not be subject to release conditions that are moreonerous, or last longer, than is consistent with the safety of thecommunity [26] However we consider that in s 7 the word "community" is used in a moreexpansive sense subsuming all three categories of potential victims which areindividually identified in the more specific machinery provisions of the Act.[27] For these reasons we consider that the correct interpretation of s 68(2) is thatadvanced by Mr Smith on behalf of the Board.[28] However, while it follows that it would have been open to the Board to conductthe assessment in relation to Mr Pitceathly which s 28(2) requires by reference eitherto a class of persons, such as well-known females as contemplated by Dr Macfarlane,or even an individual person, such as either Mr Pitceathly's second or third wife, thepoint is fairly made by Ms Hughes that the Board did not do so. Rather it addressedthe issue of undue risk to safety with reference to the "community" which promptedthe understandable concerns expressed by Collins J about the precision with which theBoard conveyed its reasons.[29] While it may well be the case that the Board would have reached the sameconclusion whichever category of victim was the object of its focus, nevertheless asMr Smith's submission appropriately recognised this case concerns the liberty of anindividual. We consider that it was necessary that the Board should undertake theassessment required by s 28(2) in relation to the appropriate category of victim. On theface of the decision, that did not happen here. We cannot exclude the reasonablepossibility that had it done so, the Board might have found that subject to appropriateconditions the risk posed by Mr Pitceathly to the relevant person or class of personswould not be undue.[30] Consequently, notwithstanding our rejection of the statutory constructionadvanced for Mr Pitceathly, we allow the appeal. We make a direction under s 17(3)of the Judicial Review Procedure Act 2016 that Mr Pitceathly's application for paroleis referred back to the Board for reconsideration in the light of our conclusions on themeaning of s 28(2).Result[31] The appeal is allowed.[32] The decision of the respondent declining parole to the appellant is set aside.[33] The appellant's application for parole is referred back to the respondent forreconsideration in the light of the meaning of s 28(2) of the Parole Act 2002 asexplained in this judgment.[34] The respondent must pay the appellant costs for a standard appeal on a band Abasis and usual disbursements.Solicitors:Nicholsons, New Plymouth for Appellant