GREEN v THE NEW ZEALAND PAROLE BOARD [2022] NZHC 693

GREEN v THE NEW ZEALAND PAROLE BOARD [2022] NZHC 693 [6 April 2022]IN THE HIGH COURT OF NEW ZEALANDAUCKLAND REGISTRYI TE KŌTI MATUA O AOTEAROATĀMAKI MAKAURAU ROHECIV-2021-404-1302[2022] NZHC 693UNDER the Judicial Review Procedure Act 2016BETWEEN TERENCE JAMES GREENApplicantAND THE NEW ZEALAND PAROLE BOARDFirst RespondentHearing: 31 March 2022Appearances: O Harold for the ApplicantFirst Respondent abides the decision of the CourtS Jerebine as counsel to assist the CourtJudgment: 6 April 2022JUDGMENT OF GORDON JThis judgment is delivered by me on 6 April 2022 at 2.30 pmpursuant to r 11.5 of the High Court Rules......................................................Registrar / Deputy RegistrarCounsel: Owen Harold, Barrister, AucklandSarah Jerebine, Barrister, Auckland[1] The applicant Terence Green1 is serving a sentence of imprisonment on arepresentative charge of sexual violation by rape of his stepdaughter. He bringsjudicial review proceedings challenging a decision of the New Zealand Parole Board(the Board) declining parole on 31 March 2021 (the March 2021 decision). He alsochallenges a decision of the Panel Convenor dated 20 May 2021 upholding thedecision of the Board on review (the review decision).[2] There are eight grounds of review, five of which claim that the Board shouldnot have received or relied on a statement from Mr Green's former wife Ms H, themother of the victim of his offending. Three of the five grounds concerning Ms H'sstatement relate to the March 2021 decision and two are in respect of the reviewdecision.[3] The next two grounds challenge the Board's treatment of reports frompsychologists.[4] The final ground claims the Board acted unreasonably based on the abovealleged errors.[5] The Board abides the decision of the Court. Ms Jerebine was appointed ascounsel to assist the Court by acting as contradictor.Factual background[6] Mr Green faced trial on eight charges of sexual violation (by rape and digitalpenetration) of his stepdaughter and threatening to kill her. The jury found him guiltyof one representative charge of sexual violation by rape between 1 October 2013 and5 May 2016 and also a charge of breach of a protection order which occurred after hewas arrested for the allegations in relation to his stepdaughter. The jury found him notguilty on all the other charges. The victim was between nine and 12 years of age atthe time of the offending in respect of which Mr Green was found guilty.1 This is not the applicant's real name. I have anonymised his name to protect the identity of thevictim of his sexual offending.[7] At sentencing on 30 November 2018 the Judge said she had formed the viewthat during the period of the representative charge the sexual violation happened anumber of times but said it was impossible for her "to put any kind of figure on that".Mr Green was sentenced to nine years' imprisonment on the charge of sexual violationby rape and was automatically registered on the Child Sex Offender Register. TheJudge sentenced him to a concurrent sentence of three months' imprisonment forbreach of the protection order. Then on 7 March 2019 Mr Green was sentenced on afurther charge of breaching a protection order on 1 August 2018. Mr Green hadpleaded guilty to the charge and was sentenced to three months' imprisonment to beserved concurrently with the sentence of nine years' imprisonment imposed on 30November 2018.[8] Mr Green appealed to the Court of Appeal against both conviction andsentence. In its decision of 31 August 2020, the Court of Appeal dismissed Mr Green'sappeal against conviction and upheld the sentence of nine years' imprisonment (theappeal against sentence having been abandoned).2[9] Mr Green is pursuing an application for leave to appeal to the Supreme Court.[10] Mr Green's sentence end date is 21 September 2025. He first became eligiblefor parole on 23 September 2019.Procedural history before Parole Board[11] Mr Green's first hearing before the Board was on 18 September 2019. At thattime he was waiting for an appeal date from the Court of Appeal. He agreed to delaythe hearing until the Court of Appeal had heard and determined his appeal. In itsdecision the Board noted that Mr Green continued to deny his offending. The Boardstated that he remained an undue risk. The hearing was adjourned to February 2020.[12] The second hearing was on 18 February 2020. The Board again adjourned thehearing pending a decision on Mr Green's appeal to the Court of Appeal. The Board2 G (CA738/2018) v R [2020] NZCA 375.noted Mr Green's continued denial of the offending and stated that the risk remainedundue. Parole was declined. A new hearing was scheduled for February 2021.[13] The third hearing was on 18 February 2021. It was adjourned to March 2021to enable the Board to review material filed by Mr Harold, counsel for Mr Green.[14] The fourth hearing was held on 31 March 2021 and parole was declined. Thisis the first of the two decisions that Mr Green seeks to review.[15] Mr Green applied to the Board for a review of the March 2021 decision. Thereview decision of 20 May 2021 was given by Judge Blackie as panel convenor.Judge Blackie confirmed the March 2021 decision and noted that Mr Green was toappear again before the Board at a hearing to be scheduled in September 2021 at whichtime his eligibility for parole would be for further consideration. This is the second ofthe two decisions Mr Green seeks to review.[16] Mr Green filed his statement of claim on 16 July 2021 in this proceeding.[17] There was then a fifth hearing before the Board on 23 September 2021. Parolewas again declined. The Board stated that the situation effectively had not changedsince March 2021. A further hearing was set for September 2022. The Board notedthe ability for Mr Green to seek an earlier hearing if he believed he had an extensiverelease plan and safety plan before that time.Statutory framework[18] Section 28 of the Parole Act 2002 (the Act) governs release on parole. Itrelevantly provides:28 Direction for release on parole(1AA) In deciding whether or not to release an offender on parole, the Boardmust bear in mind that the offender has no entitlement to be releasedon parole and, in particular, that neither the offender's eligibility forrelease on parole nor anything else in this Act or any other enactmentconfers such an entitlement.(1) The Board may, after a hearing at which it has considered whether torelease an offender on parole, direct that the offender be released onparole.(2) The Board may give a direction under subsection (1) only if it issatisfied on reasonable grounds that the offender, if released on parole,will not pose an undue risk to the safety of the community or anyperson or class of persons within the term of the sentence, havingregard to—(a) the support and supervision available to the offenderfollowing release; and(b) the public interest in the reintegration of the offender intosociety as a law-abiding citizen.[19] The test is that the offender must not pose an "undue risk to the safety of thecommunity". As was said by Dunningham J in Ericson v New Zealand Parole Board:3 The term "undue" means that it is disproportionate to, and outweighed by,the prisoner's personal interest in regaining his liberty, and by the publicinterest in facilitating the reintegration of the offender into society. [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*RoIassessment. Each application for parole must be considered in lightof all factors which may be relevant to that person's risk of offending.While an offender might be "low risk" based on an actuarialcalculation, their personal circumstances may still point to the risk tothe community being "undue" because the Board is not satisfied thatthat particular applicant has demonstrated his or her risk ofreoffending can be appropriately managed.[20] The guiding principles for the Board when making parole decisions are set outin s 7 which provides: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 more3 Ericson v New Zealand Parole Board [2017] NZHC 536 at [24] (footnotes omitted).onerous, or last longer, than is consistent with the safety of thecommunity; and(b) that offenders must, subject to any of sections 13 to 13AE, beprovided with information about decisions that concern them,and be advised how they may participate in decision-makingthat directly concerns them; and(c) that decisions must be made on the basis of all the relevantinformation 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 outcomesare given due weight.(3) When any person is required under this Part to assess whether anoffender 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.[21] Section 43 sets out provisions regarding preparation for a hearing before theBoard. It relevantly provides:43 Preparation for hearings(1) When an offender is due to be released at his or her statutory releasedate, or to be considered by the Board for parole, the Department ofCorrections must provide the Board with—(a) copies of all relevant information relating to the offender'scurrent and previous convictions, including (for example)sentencing notes and pre-sentence reports; and(b) if the offender has engaged in any restorative justiceprocesses, any reports arising from those processes; and(c) in the case of an offender detained in a prison, a report by theDepartment of Corrections; and(2) The Board must take all reasonable steps to give notice to thefollowing people that a hearing is pending:(a) the offender:(b) every victim of the offender:(2A) When, under subsection (2)(b), the Board gives notice to a victim thata hearing is pending, the Board must also prepare and send to thevictim an explanation of the hearing process and how the victim mayparticipate in that process.(4) A failure to notify any person listed in subsection (2)(b) to (f), and afailure to obtain all the information referred to in subsection (1)(a),does not invalidate a hearing.(5) Any person notified under subsection (2) may write to the Board, bya given date, making submissions on, or giving information relevantto, the substantive matter to be decided.Approach on judicial review of Parole Board decisions[22] The Court does not carry out a substantive merits-based review of the Board'sdecision. There is a distinction between the scrutiny of a decision-making process onjudicial review, and an appeal on the merits of the decision reached. Judicial reviewis concerned not with the decision but with the decision-making process.4[23] The decisions challenged will be set aside only if there has been an error bythe Board of the type pleaded by Mr Green. The decisions cannot be set aside simplybecause the Court might have reached a different view on the facts before the Board.[24] In Ericson v New Zealand Parole Board, Gendall J referred to the narrow scopefor judicial review of decisions of the Parole Board, saying:5It is well known that the scope for judicial review of decisions of theParole Board is narrow. The Court can only make an assessment of whethera Board's decision was lawful, that a decision was open to it. Challenge mayonly be on the usual judicial review principles, namely that the Board actedunlawfully because it failed to take into account all relevant considerations,took into account irrelevant considerations, that it arrived at its decision inbreach of the principles of natural justice, or that its decision was sounreasonable as to be reviewable.The Courts do not and cannot sit as appellate bodies from decisions lawfullymade by the Board and the Court cannot exercise a jurisdiction which by law4 Fraser v State Services Commission [1984] 1 NZLR 116 (CA) at 127.5 Ericson v New Zealand Parole Board HC Wellington CIV-2010-485-1912, 2 March 2011 at [13]-[14].is vested in the Parole Board. The recent Court of Appeal decision in Millerv New Zealand Parole Board made this clear when dismissing broadchallenges to the parole regime based upon domestic and international humanrights instruments. The assessment whether the decision was lawful or notcannot be taken as an opportunity to revisit the application for parole. It is notnecessary to review in any detail how the parole system worked this havingbeen discussed at length in Miller and other cases, including A(Victim) vNew Zealand Parole Board where Simon France J provided a generaloverview of how parole works. There is no general entitlement to parole ands 28(1AA) and (2) of the Parole Act 2002 makes it clear that an applicant mayonly be released if the Board is:satisfied on reasonable grounds that the offender ... will not pose anundue risk to the safety of the community or any person ...First, second and third grounds of review[25] There is a substantial overlap between the first, second and third grounds ofreview. All relate to a document headed "R J Conference 19 January 2021" which waswritten by Ms H for a restorative justice meeting with Mr Green. The document is inthe nature of speaking notes.First ground of review[26] Mr Green pleads procedural irregularity and admission of irrelevant and/orillegitimate evidence.[27] Mr Green has sworn an affidavit in this proceeding. He says he had wanted tomeet his former wife so they could say goodbye properly to each other as they had hadno chance to do so earlier as he was in prison. He says he also wanted to see if theycould find some future basis of co-operating over the care of the daughter they hadtogether (not the victim). Mr Green says he had been informed by the prison that thiswas what the meeting was to be about. Mr Green notes that he has always maintainedhis innocence and the prison knew that he had no intention of discussing his offendingwith Ms H as that would be in effect saying her daughter was a liar.[28] Mr Green says it was immediately obvious from the moment the meeting beganthat what Ms H had in mind was to berate him and release all of her anger towardshim. He says he was never informed by the prison that the document written by Ms Hfor the meeting would be provided to the Board.[29] Mr Harold for Mr Green submits that the meeting did not fit the definition of"restorative justice" and was therefore not such a meeting at all. He says instead itseems to have been an opportunity for Ms H to unload on Mr Green to achieve whatshe calls "closure". Mr Harold submits that given Mr Green was not informed thatthis was what Ms H had in mind the meeting was an abuse of process.[30] Mr Harold submits that the Board accordingly allowed itself to become a partyto wrongdoing, accepting into evidence matters said to be in relation to a restorativejustice meeting that were at best irrelevant to the granting of parole and with nolegitimate basis.[31] In short Mr Green's challenge is on a two-fold basis: the restorative justiceprocess was flawed and so nothing from the meeting should have been before theBoard; and the content of Ms H's document was irrelevant.[32] Ms Jerebine submits that the Board has a wide ability at law to receivesubmissions from victims, and to place the correct weight on those submissions. Shesays in this case there was no error by the Board in receiving Ms H's statement, andthere can be no issue with the weight applied by the Board to that statement as theBoard did not make its decision to decline parole in reliance on it.Discussion[33] Under s 43(1)(b) the Board must be provided with any reports arising from anyrestorative justice processes. Under s 43(5) a victim6 may write to the Board makingsubmissions on, or giving information relevant to, the substantive matter to be decided.[34] Under one of the guiding principles in s 7(2)(d) the Board is required to giveany submission by victims "due weight". Section 7(2)(c) provides that decisions mustbe made on the basis of all relevant information that is available to the Board at thetime. Relevant matters are those which are set out in s 28(2), namely that the Boardmust be satisfied on reasonable grounds that the offender, if released on parole, willnot pose an undue risk to the safety of the community or any person or class of persons6 Under s 43(2) the Board is required to take all reasonable steps to give notice to certain people,including every victim of the offender, that a hearing is pending.within the term of the sentence, having regard to: the support and supervision availableto the offender following release; and the public interest in the reintegration of theoffender into society as a law-abiding citizen.[35] The Board has a wide discretion to receive and take into considerationwhatever information it thinks fit, whether or not the information will be admissibleas evidence in a court of law.7[36] The above provisions were discussed by the Court of Appeal in Gilmour vChief Executive of the Department of Corrections.8 In that case the appellant was aformer probation officer who was dissatisfied with the content of the report that theDepartment of Corrections had provided to the Parole Board under s 43(1). Hebelieved the Department had failed to pass on to the Parole Board information he hadcollected or generated when he was a probation officer and which was relevant to theprisoner's risk of re-offending and to the safety of the community.[37] Although there was a different factual context in Gilmour, the Court'sstatements are relevant here. The Court noted that s 7(2)(c) is plain in its intent. TheBoard's obligation is to consider information made available to it, or which it obtains,if that information is relevant.9 The Court further noted that the Board, as the expertbody, is the best judge of what is relevant and what it needs, in order to make itsdecision.10[38] Regardless of what Mr Green and Ms H understood to be the purpose of therestorative justice meeting and irrespective of what is contained in Ms H's statementprepared for that meeting, the Act gives the Board the ability to receive a wide rangeof information from victims whether or not the information would be admissible in acourt of law. Further, it is for the Board to determine what weight to place on thatinformation. I will come to that latter issue shortly, but I simply note at this pointthere is nothing to indicate that the Board placed any weight at all on Ms H's statement.7 Section 117(1).8 Gilmour v Chief Executive of the Department of Corrections [2017] NZCA 250.9 At [36].10 At [39].[39] Returning to s 43(5) and its scope, I accept the submission made byMs Jerebine that this subsection provides for statutory minima not maxima, and theBoard may receive a wider range of information from victims than matters that go tothe substantive issue, without any subsequent decision of the Board being held invalid.Ms Jerebine refers the Court to R v R where the High Court considered the hearingprocess under s 49 of the Act in the course of considering a right to legalrepresentation. The Court noted that the provisions of the Act relating to process donot purport to be a code and the common law requirements of natural justice continueto apply when not inconsistent with the Act:11Relevant to the defendant's challenge is s 49(3) of the Parole Act whichprovides that an offender may, with leave of the Board, be represented bycounsel. The provisions in the Parole Act which bear upon process do not ontheir face purport to be a code and therefore do not exclude the common lawrequirements of natural justice except to the extent that the requirements ofthe common law are inconsistent with the provisions of the Act. They aretherefore to be construed as stipulating the applicant's minimum rights, notthe full extent of them. As Joseph says:Statutory protections are minima not maxima, and the courts willsupplement the procedures by reference to common law standards offairness. For supplementation, it must be shown that the statutoryprocedures are insufficient to do justice and that common lawprocedural protections would not frustrate the statutory purpose.[40] I accept Ms Jerebine's submission that the above principles apply equally toss 7 and 43. If the victim's submissions (their right to be heard on the substantiveissue, the minima) exceed the scope of s 43(5), the Board nevertheless retains itsability to review all relevant information under s 7(2)(c).[41] As a consequence, if the Board does receive irrelevant material under s 43(5)it does not follow that any decision it makes, having received that information, will beinvalid. If a victim's submissions address matters that go beyond the substantive issueto be decided and are thereby irrelevant, the Board must not give any weight to them.As Judge Blackie observed in the review decision, correctly in my view, invariablyvictims are lay people without knowledge of precise boundaries as to what a victimmay or may not say. But the mere receipt per se of irrelevant material by the Boarddoes not invalidate the decision. There are statutory safeguards for the prisoner in s 711 R v R [2015] NZHC 713 at [16] (footnote omitted).and s 28(2). The Board may not place any weight on irrelevant matters received unders 7(2)(d).[42] Even accepting that there is irrelevant content in Ms H's statement and thatthere was an error in the restorative justice process generally any such alleged errorsare of no consequence. The scheme of the Act is that the Board may receive statementsfrom the victim and it is for the Board to determine the appropriate weight to be givento the victim's views. If the submissions address matters that are irrelevant to thesubstantive issues to be decided the Board must not give any weight to irrelevantcontent. But as I have already indicated there is no evidence to suggest that the Boardgave any weight at all to Ms H's statement. Judicial review is reserved for cases inwhich errors and omissions by decision-makers have consequences.12[43] In a related submission Mr Harold submits that much of what Ms H has to sayis not to do with risk to the community but relates to her feelings and preferences forthe future.[44] However, the statutory scheme does not limit the content of a victim'ssubmission simply to safety and risk. Although s 7(1) provides that the paramountconsideration for the Board when making decisions about or relating to the release ofan offender is the safety of the community, there are other principles in s 7 to guidethe Board in making its decision. Although s 28(2) again makes the safety of thecommunity a primary consideration, the Board is also required to consider the publicinterest in the re-integration of the offender into society.[45] Mr Harold refers to the decision in A (Victim) v New Zealand Parole Board andthe statement that "to the extent that the victim's views do not assist the Board inrelation to the criteria of assessing risk to the community", they do not need to begiven weight in the exercise of its functions.1312 Mitchell v Chairperson of New Zealand Parole Board [2015] NZHC 566 at [32].13 A (Victim) v New Zealand Parole Board [2008] NZAR 706 at [53].[46] But, the Court in that case also said:14The point is that limiting the test of "safety of the community" to re-offendingrisks does not foreclose a victim from expressing much of what Ms A said.But nor does it make everything relevant; to take the already decided point, ifa victim chooses to express the view that immediate release will send thewrong message, then the Board cannot give that due weight, because it is nota relevant criteria.[47] Further, as I have already signalled, there is no evidence that the Board gaveany weight to Ms H's statement; indeed it is safe to go further and say that the Boarddid not give any weight to Ms H's statement. That is apparent from the following partsof the Board's decision:5. First, sections 49(4) and 50A(2) provide victims the right to placebefore the Board whatever information they feel is relevant to theissue of parole. Moreover, we regard it as entirely relevant for avictim to express the view that on release an offender should berestricted from entering the area in which they live. Secondly, nothingin A (Victim) v New Zealand Parole Board limits the right of a victimto make their views known to the Board. Thirdly, the submissionconflated admissibility with the weight to be given to the submissionby the Board.[48] The Board then went on to set out the reasons for declining parole in thefollowing paragraph:12. The Board received a psychological report dated 12 January 2021which concluded with the recommendation that Mr [Green] shouldcomplete the Child Sex Offender Treatment Programme to deal withrisk factors and to assist him with safety planning. His denial ofresponsibility for his offending precludes his attendance at theprogramme. Nevertheless, the Board is of the view that Mr [Green]needs to engage with a psychologist to prepare an effective riskmanagement or safety plan before we could consider that he met thestatutory criteria for release on parole.[49] Mr Harold nevertheless submits that although Ms H's statement is not referredto in the reasons for the Board's decision it does not necessarily follow that it did notinform the March 2021 decision.14 At [54].[50] I do not accept that submission. A decision-maker is not necessarily requiredto list matters on which it is not placing weight. Rather, the decision-maker identifiesmatters on which it does place weight in the reasons for a decision.[51] For the above reason the first ground of review fails.Second ground of review[52] Mr Green pleads procedural irregularity on the basis of unreasonableadmission of evidence. Mr Green claims that the Board unreasonably admitted intoevidence pejorative commentary from Ms H about him, in her statement alreadyreferred to. Mr Harold submits that these disparaging comments have nothing to dowith Mr Green being an undue risk to the community or anything to do with his riskat all. He notes that Mr Green in his affidavit rejects the truth of the allegations madeby Ms H.[53] Mr Green also says that parts of Ms H's statement allege various wrongdoingsby him that do not relate to the facts of his convictions. Mr Harold submits thatMr Green is not in a position to defend himself from these unrelated allegations andthis kind of material should not have been admitted into evidence. Alternatively,Mr Harold says if Ms H's statement is considered to be a submission then it shouldnot be given any weight.[54] The same reasoning for the Court rejecting the first ground of review alsoapplies to the second ground of review. The second ground also fails.Third ground of review[55] Mr Green pleads that the Board considered so-called "facts" involving the(child) victim's narrative upon which he was neither convicted nor sentenced. Hetherefore pleads that the Board has taken into account irrelevant matters.[56] My earlier reasoning again applies here. There is no evidence to indicate thatthe Board, in the March 2021 decision accepted any parts of Ms H's statement asstatements of fact. The Board did not place any weight on her statement in its decision.[57] The third ground of review fails.Sixth and Seventh grounds of review[58] The sixth and seventh grounds also relate to the Board's receipt of Ms H'sstatement. It is therefore convenient to consider them at this point. I will consider thesixth and seventh grounds together. They both relate to the review decision. In thesixth ground Mr Green pleads that the review decision fails to address s 50A(2) of theAct. He says that section limits submissions of a victim concerning a prisoner'sproposed parole to the substantive issue before the Board; namely, whether or not theprisoner poses an "undue risk" to the safety of the community if released.[59] This is repeated in the seventh ground with Mr Green adding that the Boardfailed to give the victim information that was reasonably necessary to enable her totake the step of making appropriate submissions in accordance with s 50A(3).[60] The grounds for an application for review are set out in s 67(3) of the Act:67 Review of decisions(3) The grounds for an application for review under this section are thatthe Board, in making the decision,—(a) failed to comply with the procedures set out in this Act andany regulations made under it; or(b) made an error of law; or(c) failed to comply with a policy of the Board developedunder section 109(2)(a), which resulted in unfairness to theoffender; or(d) based its decision on erroneous or irrelevant information thatwas material to the decision reached; or(e) acted without jurisdiction.[61] In the review decision, Judge Blackie noted that in effect Mr Green relied onall of the grounds set out in s 67(3) in support of the review application but counseldid not direct the reviewer to any one of the grounds in particular.[62] Judge Blackie then said:[12] With respect, I can see no limitation in s 49(4) as to what a victimmay or may not say in the course of oral submission. Invariably victims arelay people without knowledge of precise boundaries other than thosecontained in the Guideline, a copy which is attached to counsel's submissions.It is [for] the Board to assess what weight it places on victims' submissions,particularly when it comes to consider release conditions. In any event, in thiscase, the victim's views and/or submission were not a matter upon which theBoard based its decision.[63] Section 50A(2)(a) provides that a victim may, by writing to the Board, makesubmissions on or give information relevant to the substantive matter to be decided ata hearing. Section 50A(3)(b) then provides that, if a victim seeks information fromthe Board in order to take the step of making submissions in writing, the Board maygive that person any other information that is reasonably necessary to enable them totake that step.[64] Mr Harold's reliance on s 50A(2) is a re-working of his arguments in relationto the March 2021 decision that I have already rejected. For reasons already discussed,Judge Blackie did not err in finding that: the Board has a wide ability to accept asubmission; victims may often express views beyond the substantive issues the Boardis required to determine; it is for the Board to determine the weight to be attached to avictim's statement; and in any event no weight was given to Ms H's statement. JudgeBlackie therefore did not err in applying s 67 including s 67(3)(d) as the Board did notbase its decision on erroneous or irrelevant information that was material to thedecision reached.[65] As to the seventh ground, s 50A(3) enables the Board to give a personinformation that is reasonably necessary to enable the person to make submission ifthe person seeks such information. There is no suggestion that Ms H sought furtherinformation.[66] The sixth and seventh grounds of review fail.Fourth ground of review[67] Mr Green pleads that the Board failed to take into account three reports he hadcommissioned from two psychologists: a report of Dr Joseph Sakdalan dated 18 July2017 addressed to the District Court at Manukau (Dr Sakdalan's report); a report ofMs Sabine Visser dated 17 October 2017 addressed to Mr Harold (Ms Visser's firstreport); and a further report of Ms Visser dated 20 March 2018 also addressed toMr Harold (Ms Visser's second report).[68] Mr Green pleads that these reports commented upon his trouble-free history inthe community and with family members other than the child victim, as well as theresults of objective psychological personality testing. Mr Green pleads that thesematters were highly relevant to an assessment of the risk his release may pose to thecommunity.[69] Contrary to Mr Harold's submission, the Board did consider counsel'ssubmission that the psychologist's report should be relied on. The Board noted thatnone of the three psychological reports filed by Mr Green was obtained for the purposeof risk assessment.[70] That finding is correct. Mr Harold submits that Dr Sakdalan's report wasprepared for the purposes of addressing risk. But he acknowledges it was a differentkind of risk. Dr Sakdalan's report was prepared in order to address risk issues ifMr Green were to be released on EM bail. The report recommends measures thatwould reduce a risk of breaching bail conditions. While noting that the decisionwhether Mr Green would be granted EM bail rested with the court, Dr Sakdalanrecommended conditions including the following: no access to alcohol; no access tophone or internet while on EM bail; no contact with Ms H or her daughter; and noaccess to children at his proposed place of residence.[71] Ms Visser's first report considered whether Mr Green could be diagnosed ashaving paedophilic disorder and she concluded he did not. However, the Board'sreasons for declining parole did not relate to any disorders Mr Green may or may nothave. The reasons are contained in [12] of the March 2021 decision set out in [48]above.[72] In her second report Ms Visser commented further on the diagnosis ofpaedophilic disorder and on the effects of sexual abuse on a child. The latter issue isseparate from the issue of risk.[73] Having referred to the three opinions it was up to the Board as to the weight itgave to them.15[74] The fourth ground of review also fails.Fifth ground of review[75] Mr Green pleads that the Board took into account irrelevant considerations inrelying on a report dated 12 January 2021 from a Department of Correctionspsychologist (Corrections psychologist) which, Mr Green says, was flawed as it reliedon incorrect facts. Mr Green pleads that the Board failed to address informationconcerning these incorrect facts supplied to it by his counsel.[76] In his submissions Mr Harold adds a further challenge based on material thatcame into existence subsequent to the March 2021 hearing and decision. I will needto decide if that material is admissible. I first describe the background and materialitself.[77] Mr Harold obtained a report dated 15 September 2021 from psychiatristDr Caleb Armstrong. The instructions to Dr Armstrong are recorded in his report asfollows:3. You have provided me with a number of background documents andrequested that I 'comment as appropriate on the soundness of the Departmentof Corrections engaged psychologist and his report and methodology'. [78] Dr Armstrong's report contains a number of criticisms of the Correctionspsychologist including the psychologist's methodology when employing the ViolenceRisk Scale – Sexual Offender version (VRS-SO). Dr Armstrong notes that theVRS-SO is designed to integrate the assessment and prediction of violence risk withrisk-reduction treatment and measure of change in risk due to treatment change. The15 Minister of Immigration v Zhang [2013] NZCA 487, [2014] NZAR 88 at [34].instrument employs both static and dynamic risk factors. The Correctionspsychologist had assessed Mr Green as being at average risk using this instrument.[79] Dr Armstrong noted that the Corrections psychologist had not provided arationale for arriving at his conclusions regarding how Mr Green scored on theparticular dynamic risk factors which the Corrections psychologist identified as beingclosely related to Mr Green's recidivism risk. For that reason, Dr Armstrong said thereliability of the Corrections psychologist's conclusions were difficult to test.Dr Armstrong then went on to say, having read the material and having assessedMr Green during a telephone conversation, he was in a position to provide his view ofMr Green's risk with respect to the dynamic risk factors identified by the Correctionspsychologist. The report then contained Dr Armstrong's assessment on the variousrisk factors, disagreeing in most respects with the Corrections psychologist.[80] It is apparent that Dr Armstrong's report was filed by Mr Green for the purposeof the Board hearing on 23 September 2021.[81] Mr Harold also sought to introduce an email sent by the Chairperson of theBoard for the 23 September 2021 hearing. The email was sent the day before, on22 September 2021 to staff members at SERCO. The email notes that Mr Green wasdue to appear before the Board the following day. The email states that in January2021 a SERCO psychologist prepared a report relating to Mr Green and that his lawyercriticised the report at the March 2021 hearing but the criticism was not accepted. Theemail continues as follows:We now have a report from Dr Caleb Armstrong a psychiatrist which is ananalysis of Dr [C's] report. It contains some very worrying criticisms ofDr [C's] report. If Dr Armstrong's analysis is correct, and there seems to be asubstantive basis for the criticism, then there are reasons to be seriouslyconcerned. The report itself is on the face of it very brief and makes a numberof conclusory statements without any obvious factual basis.[82] The email then requests that the report of the Corrections psychologist andDr Armstrong's analysis be sent to a senior Corrections psychologist for assessmentand an opinion on whether the Corrections psychologist's report met the basicstandards of competence. It was suggested that in the meantime the Correctionspsychologist should not be assigned to further report writing.[83] Notwithstanding concerns expressed in the email of 22 September 2021 theBoard in its decision at the hearing on 23 September 2021 again refused parole. TheBoard referred to the March 2021 decision saying, "As we said last time, we aresatisfied he is an undue risk". The Board said it would look to Mr Green to undertakeappropriate treatment for a sex offender but noted that was not going to happen givenhis denial. In those circumstances the Board said there was a need, as they had saidin the previous decision, for a substantial safety plan and release plan to be providedby Mr Green.[84] The admissibility of additional evidence in judicial review proceedings wasdiscussed by the Court of Appeal in WK v Refugee and Protection Officer as follows:16The standard for the admission of additional evidence in judicial reviewproceedings is high. Because of the nature of judicial review, which is toassess the lawfulness of the decision-making process rather than the merits ofthe decision, the task of the reviewing court is to assess whether a decisionwas reasonably available to the maker on the basis of the evidence beforethem. As this Court has held, additional evidence may only be permitted forparticular circumscribed purposes:The task of the reviewing court should be to assess whether, in lightof the evidence before the decisionmaker at the time, the decision wasone that a reasonable decision-maker could come to. The only use ofthe subsequent evidence should be to decide whether or not thematerial actually before the decision maker met that standard. Wherea decision maker has made a defective inquiry, a court may find itnecessary to refer to further evidence that would have been consideredhad a proper enquiry been made.That approach has also been followed in immigration cases. In D vImmigration and Protection Tribunal, it was held that:[J]udicial review generally proceeds on the basis of the evidenceavailable to the decision-maker at the time of the decision Theattempted introduction of material after the event, especially for thepurpose of casting doubt on the substantive reasonableness of thedecision in question, is generally inappropriate. Judicial reviewshould not be seen as a further opportunity to present or supplementevidence.[85] Applying those principles, this Court is reviewing the lawfulness of thedecision-making process for the March 2021 decision on the basis of the evidence16 WK v Refugee and Protection Officer [2018] NZCA 258, [2019] 2 NZLR 223 at [66]-[67](footnotes omitted). Leave to appeal to the Supreme Court declined: WK v Refugee and ProtectionOfficer [2018] NZSC 91.before the Board at that time. This is not a case where a decision-maker has made adefective inquiry such that this Court would need to refer to further evidence thatwould have been considered had a proper inquiry been made. Mr Harold is effectivelyattempting to bolster Mr Green's case by asking this Court to consider the merits ofthe March 2021 decision. The proper process for Mr Green, having receivedDr Armstrong's report, is for counsel to put the report before the Board to enable theBoard to consider Mr Green's application for parole on the merits. Mr Harold did thatand having received and considered Dr Armstrong's report the Board still refusedparole in its decision of 23 September 2021.[86] For the above reasons I refuse the admission of Dr Armstrong's report and theemail of 22 September 2021.[87] I return to the submissions made on material that is properly before this Court.As part of his submissions on this ground Mr Harold submits that the finding in thereport of the Corrections psychologist that Mr Green was at "average" risk of sexualre-offending following release was wrong.[88] However, the opinion of the Corrections psychologist is based in large part onthe fact that Mr Green remains "untreated". He states the following in his report:6. When asked about his sexual offending, Mr [Green] maintained hisinnocence. He reported that the victim (his stepdaughter) had "lied andframed" him because she was unhappy about his "strict" parenting style.Thus Mr [Green] denied needing to engage in treatment to address his risk ofsexual re-offending. 17. Mr [Green]'s risk of re-offending is likely to be mitigated throughspecialised psychological treatment to develop robust cognitive andbehavioural strategies. Management measures are also recommendedincluding probationary and law enforcement oversight through the Child SexOffenders (CSO) Registry. 18. Despite Mr [Green]'s positive pattern of institutional compliance, hisdenial of sexual offending and unwillingness to engage in rehabilitationindicate he is not ready for treatment. 19. It is recommended that Mr [Green] complete the Special TreatmentUnit: Child Sexual Offending (STU: CSO) rehabilitation programme toaddress his assessed dynamic risk factors and to assist with safety planning.[89] When declining parole the Board referred to Mr Green not having receivedtreatment and also the need for an effective risk management or safety plan before hemet the statutory criteria for release on parole. I repeat part of paragraph 12 of theMarch 2021 decision for ease of reference:12. His denial of responsibility for his offending precludes hisattendance at the programme. Nevertheless, the Board is of the view that Mr[Green] needs to engage with a psychologist to prepare an effective riskmanagement or safety plan before we could consider that he met the statutorycriteria for release on parole.[90] The Board's finding above is based on factual material before it. Mr Greenmaintains his innocence and is therefore precluded from treatment. As noted byDunningham J in Ericson v New Zealand Parole Board,17 (see [19] above), the test for"undue risk" is not met by reference to any set or specific threshold such as a lowassessment arrived at by using a psychological testing instrument. In any event thepart of the report of the Corrections psychologist resulting in the score of 'average'was not pivotal to the Board's decision. The part of the report the Board did rely onwas that Mr Green denied his offending and had not participated in a sex offendertreatment programme. As was said by Simon France J in A (Victim) v New ZealandParole Board:18Mr Jones took issue with the relevance of the material in relation to theco-accused. However, in a way it is favourable to his case because ithighlights – to the extent that one decision standing alone ever can – thatacknowledgement of guilt is a factor that is taken into account in assessingre-offending risks. Indeed, it has long been recognised as being significant insex cases to the issue of re-offending, and acknowledgement of guilt, andtherefore a problem, is generally a pre-requisite to participation inrehabilitation courses. Without having completed such courses, offenderstraditionally struggle to establish a low re-offending risk. [91] Also not to be forgotten are the required qualifications for Board membership,which include the ability to make a balanced and reasonable assessment of the risk anoffender may present to the community when released from detention.19 This wascommented on by the Court of Appeal in Gilmour.2017 Above n 3, at [24].18 Above n 13, at [47].19 Parole Act, s 111(3)(b).20 Above n 8, at [33].[92] Finally, as to other alleged errors, Mr Harold submits that the Correctionspsychologist misrepresented the conversation with Mr Green and made him lookdishonest regarding a 2004 conviction. In particular:(a) the Corrections psychologist did not include in the report that Mr Greenhad pleaded guilty to get an earlier assault charge "over and done with"and the psychologist did not explain the wide meaning of assault toMr Green;(b) the report referred to certain charges (including threatening to kill) butdid not clarify that Mr Green had been found not guilty of thosecharges; and(c) it was wrong for the Corrections psychologist to use the word"premeditated" with respect to the offending.[93] The Board was aware of these objections and noted in its decision thatMr Harold had submitted that the report of the Corrections psychologist should nothave included reference to matters in respect of which he was found not guilty by thejury.[94] But in any event the Board did not place any weight on the matters set out in[92] above. Accordingly, any such alleged errors in the report by the Correctionspsychologist were not relied on and were of no consequence to the decision to refuseparole.[95] The fifth ground of review fails.Eighth ground of review[96] Mr Green pleads that it was unreasonable for the Board to continue hisincarceration on the basis of a process which was substantially flawed. Mr Haroldsubmits that, because of the prior alleged errors, taken as a whole the March 2021decision and the review decision were unreasonable in all the circumstances.[97] Ms Jerebine refers the Court to Pitceathly v New Zealand Parole Board wherethis Court decided a judicial review proceeding brought primarily on the basis that theBoard had acted unreasonably. This Court said:21A number of Mr Pitceathly's grounds for judicial review allegeunreasonableness on the part of the Board when it declined his application forparole. The concept of "unreasonableness" in judicial review variesdepending on the context in which the decision in issue is being assessed. Theconcept of "reasonableness" in this case affords a degree of latitude to theBoard. Thus, the test as to what is reasonable is not satisfied simply becausethe Board's decision could have been "more reasonable" or done "in adifferent way more acceptable to the court". The approach I have found mosthelpful is to ask whether the decision reached was open to a reasonabledecision-maker in the position of the Board. This limited approach isconsistent with the fact the Board is a specialist decision-making body, whichplays a separate role from the Court in the criminal justice system.[98] Adopting the approach in the above case, I consider the decision the Boardreached was open to a reasonable decision-maker in the position of the Board. As Ihave already determined, the Board did not act erroneously. It cannot therefore besaid to have acted unreasonably. Mr Green continued to deny his offending and hadnot participated in the recommended psychological treatment programme for ChildSex Offenders. The Board was of the view that he needed to engage with apsychologist to prepare an effective risk management or safety plan before the Boardcould consider that he met the statutory criteria for release on parole. The Boardreasonably held, for these reasons, that the statutory test in s 28(2) of the Act was notmet; it could not be satisfied on reasonable grounds that Mr Green would not pose anundue risk to the safety of the community or any person if released.. The reviewdecision was consequentially not unreasonable.[99] The eighth ground of review fails.Result[100] Mr Green's application for judicial review of the decision of the Parole Boarddated 31 March 2021 and the review decision by Judge Blackie dated 20 May 2021 isdismissed.21 Pitceathly v New Zealand Parole Board [2018] NZHC 903 at [43] (footnotes omitted).Costs[101] Ms Jerebine submits that in the event that Mr Green's claim were to fail, costsshould be ordered on a 2B basis together with usual disbursements, with an order madeunder s 178(2)(a) of the Senior Courts Act 2016.[102] Ms Jerebine submits that the claims do not address a matter of substantialpublic importance (the law with respect to relevance and weight, for example, is well-established). She further submits that the claims concern factual scenarios particularto Mr Green and do not address matters concerning a field of interest beyond thefactual scenarios in this case. She submits that costs should be paid by Mr Greenrather than counsel being paid from the public fund.[103] In opposition Mr Harold submits that Mr Green as a sentenced prisoner has noincome. He also says Mr Green has no assets. Mr Green would therefore not be ableto pay costs.[104] It is well established that costs ordinarily follow the event so that the loser willpay the winner's costs.22 In a recent and helpful discussion of the position concerningan impecunious losing party, Powell J said:23 This Court may decline to award costs where the party liable to pay isimpecunious. Typically, however, financial hardship will not be an answer toa claim for costs. Only in exceptional circumstances will a party's financialposition animate the Court's discretion to reduce costs. This position is drivenby the fact that it is "[un]desirable for this Court to make (what will always beessentially arbitrary) adjustments to costs awards to reflect financialcircumstances". This position was emphasised by Muir J in Foni v Foliaki,where his Honour declined to reduce an award of costs on account ofimpecuniosity, relevantly stating: I consider that abatement of costs awards because of personalcircumstances will not typically be justified, having regard to the othermore specific provisions of the relevant rules. I consider the discretionshould be reserved for exceptional cases 22 High Court Rules 2016, r 14.2(1)(a).23 Joden Finance Ltd v Auckland District Court [2021] NZHC 1452 at [8] (footnotes omitted).[105] In HA v Refugee and Protection Officer Muir J said:24 Although the catch-all exception in r 14.7(g) is broad, a good reason isrequired before departing from the general rule that costs should follow theevent. There may be limited circumstances in which a party's financialcircumstances animate the jurisdiction (as for example in Simister v TaurangaCruise Tourism Operators Association Inc where costs were reduced from$37,081 to $10,000 on the basis that the Association would otherwise go intoliquidation which would "not be of benefit to either party"), but I would regardsuch cases as exceptional.[106] I agree with that approach.[107] Mr Green has not sworn an affidavit as to his financial position. But evenaccepting Mr Harold's submission that Mr Green is impecunious, I am not satisfiedthat Mr Green's claimed impecuniosity provides a basis for the Court to refuse coststhat would otherwise have been recoverable. His application was without merit.Further, his application did not raise issues of public importance such that the Courtmight consider refusing or reducing a costs award under r 14.7(e) of the High CourtRules 2016.[108] Ms Jerebine was appointed by the Solicitor-General as counsel to assist theCourt following a request by a Judge of this Court to the Solicitor-General. Section178(2)(a) of the Senior Courts Act provides:178 Costs where intervener or counsel assisting court appears(2) If the Attorney-General or the Solicitor-General or any other personappears as an intervener or counsel to assist the court in any civil proceedingsor in any proceedings on any appeal and argues any question of law or of factarising in the proceedings, the court may, subject to the provisions of any otherAct, make any order it thinks just—(a) as to the payment by any party to the proceedings of the costsincurred by the Attorney-General or the Solicitor-General in so doing;...24 HA v Refugee and Protection Officer [2018] NZHC 1011 at [15] (footnote omitted).[109] A costs order against Mr Green under s 178(2)(a) is in order. I accept that 2Bis the appropriate basis for the calculation of costs. Ms Jerebine will need to file amemorandum itemising the steps and disbursements claimed. I ask Ms Jerebine toconfirm in her memorandum that the order should be in favour of the Solicitor-Generalor if not, identifying the correct recipient. I will then make a formal costs order againstMr Green._____________________________Gordon J