PELIKANI v CHIEF EXECUTIVE OF THE DEPARTMENT OF CORRECTIONS [2023] NZHC 21

PELIKANI v CHIEF EXECUTIVE OF THE DEPARTMENT OF CORRECTIONS [2023] NZHC 21 [20January 2023]IN THE HIGH COURT OF NEW ZEALANDAUCKLAND REGISTRYI TE KŌTI MATUA O AOTEAROATĀMAKI MAKAURAU ROHECIV 2023-404-000092[2023] NZHC 21UNDER the Judicial Review Procedure Act 2016IN THE MATTER OF An application for a judicial review of adecision made under the Corrections Act2004BETWEEN RICHARD PELIKANIApplicantAND CHIEF EXECUTIVE OF THEDEPARTMENT OF CORRECTIONSRespondentHearing: 20 January 2023Appearances: S McColgan for the ApplicantD Jones for the RespondentJudgment: 20 January 2023JUDGMENT OF TAHANA JThis judgment was delivered by me on 20 January 2023 at 7.45pmPursuant to Rule 11.5 of the High Court RulesRegistrar/Deputy RegistrarSolicitors/Counsel:Scott McColgan, Barrister, AucklandCrown Law, WellingtonIntroduction[1] Mr Richard Pelikani is currently a sentenced prisoner at Mt Eden Prison.Mr Pelikani was convicted of conspiring to import 600 kilograms ofmethamphetamine and conspiring to supply five ounces (approximately 140 grams)of cocaine.[2] Mr Pelikani applied to the Department of Corrections (Corrections) fortemporary removal so that he can attend his grandmother's unveiling on 21 January2023. Corrections declined his application. Mr Pelikani now seeks judicial review ofthat decision and relief under s 16 of the Judicial Review Procedure Act 2016.[3] Mr Pelikani submits that Corrections' decision was unlawful on grounds thatCorrections took into account irrelevant considerations – that Mr Pelikani has the samecategorisation as "s 501 deportees," that Mr Pelikani is related to people who aremembers of gangs; and that Mr Pelikani assaulted a Corrections officer in 2014. Thegrounds of review also include a failure to take into account a relevant consideration– being the conditions that would have made the removal safe.[4] The Crown say the decision was reasonably open to the decision maker,relevant considerations were taken into account and there were no irrelevantconsiderations taken into account.[5] This application was heard under urgency this afternoon via teleconference.The unveiling is tomorrow.Relevant law[6] Section 62 of the Corrections Act 2004 (the Act) provides:62 Temporary release from custody or temporary removal fromprison(2) The chief executive may give authority for the temporary release fromcustody or temporary removal from prison of a prisoner to whom thissection applies—(a) for any purpose specified in regulations made under this Actthat the chief executive considers will facilitate theachievement of 1 or more of the following objectives:(i) the rehabilitation of the prisoner and his or hersuccessful reintegration into the community (whetherthrough release to work (including self-employment), to attend programmes, or otherwise):(ii) the compassionate or humane treatment of theprisoner or his or her family:(iii) furthering the interests of justice; or(b) in any circumstances that, in the opinion of the chiefexecutive, are exceptional and that will facilitate theachievement of 1 or more of the objectives described inparagraph (a).(3) In exercising the powers conferred by subsection (2), the chiefexecutive must consider—(a) whether the release or removal of the prisoner might pose anundue risk to the safety of the community while the prisoneris outside the prison:(b) the extent to which the prisoner should be supervised ormonitored while outside the prison:(c) the benefits to the prisoner and the community of removal orrelease in facilitating the reintegration of the prisoner into thecommunity:(d) whether removal or release would undermine the integrity ofany sentence being served by the prisoner.[7] Regulation 29 of the Corrections Regulations 2005 (the Regulations), provides,insofar as relevant:29 Purposes for which eligible prisoners may be temporarily releasedor temporarily removed under section 62(1) A prisoner who is eligible for temporary release, or temporaryremoval, under section 62 may be temporarily released or temporarilyremoved (as the case may be) for any of the following purposes thatthe chief executive considers will facilitate 1 or more of the objectivesspecified in section 62(2) (a) of the Act (subject to the considerationsin section 62(3)):(a) to recognise or maintain a family relationship or a friendship(for example, attending a funeral or tangi):Analysis[8] Section 62(2) of the Act anticipates removal from prison for the purpose ofcompassionate or humane treatment of the prisoner. Rule 29 of the Regulationsprovides attendance at a funeral and tangihanga as an example of recognising a familyrelationship or a friendship. An unveiling has similar cultural significance.[9] The Chief Executive has a discretion under s 62. The Chief Executive mustconsider the matters set out in s 62(3), which include:(a) whether the removal "might pose an undue risk to the safety of thecommunity while the prisoner is outside the prison"; and(b) the extent to which the prisoner should be supervised or monitoredwhile outside the prison.[10] Corrections' written decision declining removal states:If this application is not approved give reasons:Mr PELIKANI is patched member of Crips, King Cobra and associate ofComanchero gangs. There is no guarantee that these gang members will notbe present at the unveiling. Presence of any gang members will leave ourescorting staff and members of the public at risk where safety and security canbe compromised.Mr PELIKANI has a history of assaulting staff members, and he will pose riskto staff members if this escort is approved.Mr PELIKANI is a person of interest and is currently being placed as Personsof Extreme Risk Directorate.Mr PELIKANI has recently been sentenced to 4 years and 8 months, althoughMr PELIKANI's security classification is low and he still has active chargeswhich relates to drugs whereby appeal is pending.Due to the risk posed the application is NOT APPROVED.Failure to take into account relevant consideration[11] Mr Jones submitted that Corrections had considered whether four officerscould attend the unveiling but given staff shortages, there was no additional staffavailable. The issue of supervision was therefore considered and taken into account.Relevant considerationsGang affiliations and previous assault on staff[12] There is a potential factual dispute over whether Mr Pelikani is a member ofthe King Cobras gang. It is accepted he is a member of the Crips and has associationswith King Cobras and Comancheros.[13] Mr McColgan for Mr Pelikani submitted that the fact of gang membership andthe attendance of gang members does not on its own pose an undue risk to the safetyof the community and was not a relevant consideration. Mr Pelikani's associations arebased on his shared Tongan ethnicity rather than any gang based affiliation. Anunveiling is an important cultural ceremony and the likely conduct of gang membersneeds to be considered in that context.[14] There is significant merit in Mr McColgan's submission that the fact a prisonerhas associations with other gangs or that other gang members may attend the unveilingis not relevant without more. It risks discriminating based on ethnicity. If it wasaccepted, Mr McColgan submitted it would have the perverse outcome of allowingsomeone convicted of murder to attend a funeral1 and denying those of particularethnic backgrounds who are convicted of much less serious offending from attendingtangihanga or unveilings. I accept the submission that gang membership alone orattendance by gang members is not a relevant factor without something more and thisis a risk of discrimination.[15] Mr Jones however, submitted that it was not simply the fact of gangassociations alone but also Mr Pelikani's historical assault on staff that was taken intoaccount. Taking the historical violence and gang membership and association1 Watson v Department of Corrections [2012] NZHC 3542.together, it was open to Corrections to consider that there might be a risk to the safetyof the community.PERD and security classification[16] Mr McColgan also submitted that Mr Pelikani was not aware that he had beenplaced on the "PERD" or "Persons of Extreme Risk Directorate" and that Mr Pelikaniunderstood it was for s 501 deportees. Mr Jones for the Crown explained that PERDis a supervision categorisation that means Mr Pelikani is under additional supervisionbecause he is higher risk. It is not limited to s 501 deportees.[17] Mr Pelikani has been placed on PERD despite having a "low" securityclassification. Mr Jones explained this classification relates to Mr Pelikani's day today accommodation within the prison and is separate.[18] The "low" security classification and the PERD placement appear inconsistentbut on the face of the information provided regarding PERD, it was a relevantconsideration and discloses a potential risk.[19] I acknowledge that the lack of knowledge or opportunity to understand orrespond to the placement on PERD together with the delays in receiving the decision,has disadvantaged Mr Pelikani's ability to challenge its relevance. I cannot however,find that it is an irrelevant consideration.[20] I find that Corrections did take into account relevant considerations and thedecision was not so unreasonable that a reasonable decision maker would not havemade it.Procedure[21] I acknowledge Mr McColgan's submission that Mr Pelikani has beendisadvantaged by the unsatisfactory delays in Corrections providing:(a) the documents to enable Mr Pelikani to apply for temporary removal;and(b) the reasons for the decision so an application could be made to theCourt.[22] The above delays have made it difficult for Mr Pelikani to advance hisapplication in the very limited time available. This is especially so when there hasbeen no time to obtain evidence as to the meaning of PERD and the securityclassification as referred to in the decision. I acknowledge the comprehensive andhelpful submissions that Mr McColgan has made despite these challenges.[23] There is room for improvement in Corrections' procedures so prisoners havesufficient time to advance applications of this kind.Result[24] The application for relief under s 16 of the Judicial Review Procedure Act 2016is declined.______________________Tahana J