GREEN v THE NEW ZEALAND PAROLE BOARD [2023] NZHC 2595

GREEN v THE NEW ZEALAND PAROLE BOARD [2023] NZHC 2595 [18 September 2023]IN THE HIGH COURT OF NEW ZEALANDAUCKLAND REGISTRYI TE KŌTI MATUA O AOTEAROATĀMAKI MAKAURAU ROHECIV-2023-404-99[2023] NZHC 2595UNDER the Judicial Review Procedure Act 2016BETWEEN TERENCE JAMES GREENApplicantAND THE NEW ZEALAND PAROLE BOARDRespondentHearing: 14 August 2023Appearances: O E Harold for ApplicantNo appearance by Respondent (abides decision)S Jerebine as counsel to assist the CourtJudgment: 18 September 2023JUDGMENT OF WOOLFORD JThis judgment was delivered by me on Monday, 18 September 2023 at 11:30 ampursuant to r 11.5 of the High Court Rules.Registrar/Deputy RegistrarCounsel: O E Harold for ApplicantS Jerebine (Bankside Chambers), Auckland[1] Terence James Green is a serving prisoner. 1 On 30 November 2018 he wassentenced to nine years' imprisonment on one representative charge of rape. Mr Greenwas also sentenced to a concurrent sentence of three months' imprisonment for onecharge of breaching a protection order. His sentence end date is 21 September 2025.He first became eligible for parole on 23 September 2019.[2] On 22 September 2022, Mr Green was declined parole by the New ZealandParole Board (the Board). He applied to review the decision. On 18 November 2022his application for review was dismissed. He now applies for judicial review of theParole Board decision. Mr Green has previously sought judicial review of an earlierParole Board decision, dated 31 March 2021, declining parole and a review decisiondated 20 May 2021. In a comprehensive decision dated 6 April 2022, Gordon Jdismissed his earlier application for judicial review.2Parole Board decision[3] The Board held a parole hearing under s 21(2) of the Parole Act 2002 (the Act)on 22 September 2022 at Auckland South Corrections Facility via Microsoft Teams.Its decision was as follows:1. [Mr Green] is 37 years of age, was sentenced to nine years'imprisonment for the rape over three to four years of his young step-daughter. He has a final release date of September 2025. A minimumsecurity classification. Prior to that offending he had three pages ofoffending involving drugs, violence, and breaches of court orders.[Mr Green] denies the offending.2. We last saw him in September 2021 at that stage he made it clear hecontinued his denial and, therefore, was not eligible for any risk basetreatment. So we said he needed a comprehensive safety plan and acomprehensive release plan.3. We have had a letter from his family which supported Mr [Green's]denials, and so was a concern in terms of our assessment of theircapacity to keep him and young women safe. We also noted thatMr [Green] may not be able to be released to Auckland because ofvictim concerns.4. As to the current situation today we saw a victim prior to the hearing.The victims have made it clear that they strongly oppose Mr [Green]1 This is not the applicant's real name. I have adopted the same name as was used in earlierproceedings to protect the identity of the victim of his sexual offending.2 Green v New Zealand Parole Board [2022] NZHC 693.being released to Auckland. They want the freedom, for understandablereasons, to be able to travel and work and live in Auckland without thefear of having contact with Mr [Green]. So we have told Mr [Green]today that in their view he was likely to be prohibited from living inAuckland as part of any parole grant and so he should look elsewherefor accommodation.5. Mr [Green], at the end of the hearing, tried to get us to answer yes or noto his enquiry: "If I find a place in Hamilton and my family shift therewill that be acceptable?" We did not respond to his question, as we havesaid the prohibition relates only to Auckland.6. Mr [Green] still does not have in our view either a comprehensive safetyplan or a comprehensive plan that could function as an alternative to therisk based treatment we hoped he would have, and so in our view heremains an undue risk. He does have a safety plan which is short, butfor that reason is not inadequate, but does not deal with all of hispotential risks sufficiently and clearly.7. Secondly, he does not have a comprehensive release plan. His plan wasto be released to Auckland to a man called Mr McGuire who is offeringhim accommodation. Mr [Green] did not know Mr McGuire before theoffer although they have apparently spoken since. That is not, in ourview a comprehensive release plan, and in any event is an offer ofaccommodation in Auckland. When we talk about a comprehensiveplan we look to a plan that will involve family and friends holdingMr [Green] accountable, family and friends who understand the riskthat Mr [Green] poses potentially in the family, and who can keep aneye on his progress in the community and report any concerningbehaviour. Those concerns will need to be an integral part of anycomprehensive release plan to reduce Mr [Green's] risk.8. We acknowledge currently his risk is assessed at low/moderate risk ofre-offending, but that low/moderate risk is not no risk, nor is itnecessarily less than undue. For the reasons given we are satisfied, aswe have previously been, that Mr [Green] remains an undue risk andthat once he has developed what we identified back in September 2021and in our decision today, then he may convince the Board that he isless than undue.9. We will then see him again in six months' time in February 2023 withthe hope that he can develop the plan that they had identified.[4] Mr Green then sought a review of the Board's decision under s 67 of the Act.The review was determined on the papers by a panel convenor. In a decision dated18 November 2022, the panel convenor dismissed the application for review.Although it is referred to in the statement of claim, it does not form the basis of or anypart of any pleaded cause of action. As such, it is outside the scope of considerationin the present proceedings.Approach on judicial review of Parole Board decisions[5] I adopt the comments made by Gordon J in her decision dated 6 April 2022.3[22] The Court does not carry out a substantive merits-based review of theBoard's decision. There is a distinction between the scrutiny of adecision-making process on judicial review, and an appeal on themerits of the decision reached. Judicial review is concerned not withthe decision but with the decision-making process.4[23] The decisions challenged will be set aside only if there has been anerror by the Board of the type pleaded by Mr Green. The decisionscannot be set aside simply because the Court might have reached adifferent view on the facts before the Board.[24] In Ericson v New Zealand Parole Board, Gendall J referred to thenarrow scope for judicial review of decisions of the Parole Board,saying:5It is well known that the scope for judicial review ofdecisions of the Parole Board is narrow. The Court canonly make an assessment of whether a Board's decisionwas lawful, that a decision was open to it. Challengemay only be on the usual judicial review principles,namely that the Board acted unlawfully because it failedto take into account all relevant considerations, took intoaccount irrelevant considerations, that it arrived at itsdecision in breach of the principles of natural justice, orthat its decision was so unreasonable as to bereviewable.The Courts do not and cannot sit as appellate bodiesfrom decisions lawfully made by the Board and theCourt cannot exercise a jurisdiction which by law isvested in the Parole Board. The recent Court of Appealdecision in Miller v New Zealand Parole Board madethis clear when dismissing broad challenges to theparole regime based upon domestic and internationalhuman rights instruments. The assessment whether thedecision was lawful or not cannot be taken as anopportunity to revisit the application for parole. It is notnecessary to review in any detail how the parole systemworked this having been discussed at length in Millerand other cases, including A(Victim) v New ZealandParole Board where Simon France J provided a generaloverview of how parole works. There is no generalentitlement to parole and s 28(1AA) and (2) of theParole Act 2002 makes it clear that an applicant mayonly be released if the Board is:3 Green v New Zealand Parole Board, above n 2.4 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].satisfied on reasonable grounds that theoffender ... will not pose an undue risk tothe safety of the community or any person...Grounds of review[6] The statement of claim lists eight grounds of review. I will deal with eachground in turn.First ground of review[7] The first ground of review alleges that the Board failed to advise him just whatsort of "contact" Mr Green was at risk of having with the victim and her mother ifreleased on parole and why this prevented the victim's mother travelling to, living, orworking in Auckland. Mr Green also claims that the Board failed to advise him whyit was reasonable to require a residential address for Mr Green that was not inAuckland.[8] The first ground of review further alleges that the Board failed to adviseMr Green of information received by the Board from the victim's mother in breach ofs 13 of the Act. Mr Green also claims that the Board failed to recognise that Pukekoheis not in Auckland.[9] Section 13 of the Act requires the Board to take all reasonable steps to ensurethat the information received by the Board on which it will make any decision relatingto an offender is made available to the offender at least five working days before therelevant hearing or if that is not possible, as soon as practicable before the hearing.[10] The decision records that the Board saw the victim's mother prior to thehearing. The Board was able to do so in terms of s 49(4) of the Act, which providesthat every victim of an offender is entitled to appear and make oral submissions to theBoard for the purpose of assisting the Board to reach a decision. At the hearinginvolving Mr Green, there was then an extensive dialogue about the views of thevictim and her mother. The Board Chair sought a response from Mr Green when hestated:The final thing I want to say to you is this. Relating to the victim is not aquestion of you going to Pukekohe [where the victim and her mother live].The question is, should the victim be free to go anywhere in Auckland withoutfear of seeing you? We're not going to restrict her to Pukekohe. Now whatdo you want to say?[11] The Board's decision also recorded that the victim and her mother had made itclear that they strongly opposed Mr Green being released to Auckland. It summarised: They want the freedom, for understandable reasons, to be able to travel andwork and live in Auckland without fear of having contact with Mr Green. Sowe have told Mr Green today that in our view he is likely to be prohibitedfrom living in Auckland as part of any parole grant and so he should lookelsewhere for accommodation.[12] This explanation self-evidently means the victim and her mother do not wantthe risk of unplanned encounters with Mr Green.[13] Mr Green already knew that, so there can be no breach of s 13 of the Act. Inthe Board's decision a year earlier in September 2021, the Board stated:We mentioned to Mr [Green] that the victim was strongly against any releaseto Auckland, particularly in the Pukekohe area We may well decide that itis inappropriate for Mr [Green] to be released to the Auckland area.[14] Mr Green submits that the Board seemed somewhat confused thinking thatPukekohe was in Auckland "when it wasn't". The fact of the matter is that Pukekoheis a town located at the southern edge of the Auckland region. It is also within thepolitical boundaries of Auckland Council following the abolition of the FranklinDistrict Council in 2010.[15] The allegations of procedural irregularity, the admission of irrelevant and/orillegitimate evidence, and the failure to provide reasons or evidence are not sustained.[16] The first ground of review must fail.Second ground or review[17] The second ground of review alleges that the Board unreasonably referred to"facts" which were not facts at all, being a (not entirely accurate) summary of thecomplainant's narrative before and during trial.[18] Mr Green does not identify the facts to which he refers in the statement ofclaim, affidavit or submissions. The only references by the Board to the offence inrespect of which Mr Green was convicted and sentenced are in the first paragraph ofthe Board's decision:Mr [Green] is 37 years of age, was sentenced to nine years' imprisonment forthe rape over three to four years of his young step-daughter Mr [Green]denies the offending.[19] This description is completely accurate. The Board did not unreasonably referto inaccurate facts.[20] The second ground of review must fail.Third ground of review[21] The third ground of review alleges that the Board failed to take into accountreports from psychologists, Dr Joseph Sakdalan, Ms Sabine Visser and Mr Paul Ryan.These reports commented on Mr Green's trouble-free history in the community andwith family members, other than the child victim, as well as the results of objectivepsychological testing of Mr Green's personality. These matters are said to be highlyrelevant to risk to the community. Additionally, the applicant says that in his reportMr Ryan outlined a risk-based treatment programme available for Mr Green, whichseems to have been completely ignored by the Board.[22] During the course of the hearing, counsel for Mr Green referred to Mr Ryan'sreport and his assessment that Mr Green had a low to moderate overall risk ofreoffending. Mr Green's safety plan was also set out in Mr Ryan's report. It was thissafety plan the Board referred to when it stated in its decision:6. Mr [Green] still does not have in our view either a comprehensivesafety plan or a comprehensive plan that could function as an alternative tothe risk based assessment we hoped he would have. He does have a safetyplan which is short, but for that reason is not inadequate, but does not dealwith all of his potential risks sufficiently and clearly.[23] Mr Ryan's risk assessment of low-moderate was also explicitly referred to inthe Board's decision, when it stated:8. We acknowledge currently his risk is assessed at low/moderate risk ofre-offending, but that low/moderate risk is not no risk, nor is it necessarily lessthan undue.6[24] The allegation of failure to have regard to a risk-based treatment programmeavailable to Mr Green is dealt with under the fifth ground of review.[25] In summary, the Board has not failed to take a relevant matter into account.[26] The third ground of review must fail.Fourth ground of review[27] The fourth ground of review alleges that the Board did not detail or describewhat behaviour Mr Green might engage in upon release, which was a "risk" to thecommunity. The Board also incorrectly described the class of person to whomMr Green was a "risk" as "young women".[28] Mr Green's risk was summarised in a Parole Assessment Report prepared forthe Board's meeting on 22 September 2022, as follows:Risk SummaryMr [Green's] offending related factors are identified as relationships, attitudes,alcohol use, violence and offending-related sexual arousal. Mr [Green] wasassessed to be at a high risk of reoffending until he has engaged in andcompleted programmes relevant to his index offending. Mr [Green] has aRoC*RoI of 0.16822 which indicates a low risk of general risk of reconvictionand reimprisonment within five years of release. He has an Automated SexualRecidivism Score (ASRS) of 2 which reflects a medium-low risk of sexualreoffending.As Mr [Green's] offending was against a child, it is recommended that heprohibited from any form of contact with persons under the age of sixteenyears unless he has permission of his Probation Officer.As substance use has been identified as an offending related factor, anabstinence condition as well as a special condition to attend an alcohol ordrugs (AOD) assessment is proposed. As Mr [Green] has not engaged in anyrehabilitation to date, a special condition that he attend any treatment asdirected by a Probation Officer is also recommended.6 The Board may only give a decision that an offender be released on parole if it is satisfied onreasonable grounds that the offender if released on parole will not pose an undue risk to the safetyof the community or any person or class of persons within the term of the sentence pursuant tos 28(2) of the Parole Act 2022.Mr [Green] has provided his consent for Electronic Monitoring (EM). Hesigned a copy of the Electronic Monitoring Offender Agreement (EMOA)which was explained to him. Community Corrections recommend Mr [Green]be subject to Residential Restrictions (RR) between the hours of 10pm-6amdaily, with a progress hearing 3 months after release, to help him ease backinto the community and work to mitigating potential risk.[29] This risk summary formed the basis of comments made by the Board in [7] and[8], as follows:When we talk about a comprehensive plan we look to a plan that will involvefamily and friends holding Mr [Green] accountable, family and friends whounderstand the risk that Mr [Green] poses potentially in the family, and whocan keep an eye on his progress in the community and report any concerningbehaviour We acknowledge currently his risk is assessed at low/moderate risk of re-offending but that low/moderate risk is not no risk, nor is it necessarily lessthan undue.[30] The Board adequately and sufficiently identified the risk that Mr Green posedto the community as the risk of reoffending in a similar manner. The allegation thatthe Board failed to detail the risk that Mr Green posed to the community upon releasecannot be sustained.[31] The Board made a reference to young women when it stated:We have had a letter from his family which supported Mr [Green's] denials,and so was a concern in terms of our assessment of their capacity to keep himand young women safe.[32] Counsel for Mr Green submits that women are adult human females and bydefinition the word "women" does not include children. He submits that the Board,therefore, misunderstood Mr Green's risk as he has never been charged with orconvicted of sexual offending against women.[33] There is nothing in this point. Girls are sometimes referred to as young women.The Board did not err in any material way.[34] The fourth ground of review must fail.Fifth ground of review[35] The fifth ground of review alleges that the Board gave no reason, or rationalanalysis, or scientific or statistical grounds, for supposing that only a treatmentprogramme where Mr Green admits his wrongdoing would be sufficient to mitigaterisk by comparison with the programme suggested by the psychologist, Mr Ryan,whereby such admissions were not required.[36] This claim misunderstands the finding of the Board. In his report, Mr Ryanstated:Given Mr [Green's] continued denial of his offending he has been unable toparticipate in Department of Corrections treatment programmes for sexualoffending for which acceptance of responsibility is requisite. Mr [Green]informed the writer that despite his denial he had been and is currently willingto participate in and complete such treatment. In November 2011 the writerconfirmed with Counselling Psychologist and Treatment Clinician at thecommunity based SAFE Programme for the treatment of sexual offenders thatthe SAFE Programme will accept and work with clients who are in denial oftheir offending. It is recommended that Mr [Green] participate in thisprogramme to completion as directed by the Community Probation Service.[37] In the hearing on 22 September 2022, the Board Chairman explained toMr Green that the Board had to proceed on the basis that he was guilty of the rape ofa girl over a number of years. The Chairman stated:And so our approach to that, which is a standard well-established approach, isthat before you can be released, we have to be satisfied that you've understoodwhy you offended and that you've undertaken appropriate rehabilitation workto reduce the risk that was illustrated by your offending. And so at the momentyou're kind of stuck. You have every right to deny it, but there areconsequences from that. Obviously you can't do a programme for sexoffenders when you say you aren't a sex offender, because that's not going toreduce your risk [38] When referred by Mr Green to the SAFE programme, which was only availableafter release, the Board Chairman stated:That's not what we're looking at. What we're looking at is something doneto reduce your risk before you have convinced us you should get out of prison.[39] In the end, the Board did not say that only a treatment based on admission ofwrongdoing would be sufficient. In its decision, the Board stated:6. Mr [Green] still does not have in our view either a comprehensive planthat could function as an alternative to the risk based treatment we hoped hewould have, and so in our view he remains an undue risk. He does have asafety plan which is short, but for that reason is not inadequate, but does notdeal with all of his potential risks sufficiently and clearly.[40] The safety plan identified by the psychologist, Mr Ryan, was not acceptedbecause it did not address all matters sufficiently and clearly. The Board did not rejectthe safety plan because it was based on an alternative to the acceptance of wrongdoing.It rejected the safety plan because it was not sufficiently comprehensive.[41] The fifth ground of review must fail.Sixth ground of review[42] The sixth ground of review alleges that the Board failed to take into accountthat electronic monitoring was available on release to mitigate risk.[43] Section 15(3)(f) of the Act enables the Board to impose a condition requiringthe offender to submit to the electronic monitoring of compliance with any releaseconditions. The Parole Assessment Report for the Board noted that Mr Green hadprovided his consent for electronic monitoring and had signed a copy of the ElectronicMonitoring Offender Agreement, which had been explained to him. CommunityCorrections recommended that Mr Green be subject to Residential Restrictionsbetween the hours of 10.00 pm and 6.00 am daily, with a progress hearing three monthsafter release, to help him ease back into the community and work to mitigatingpotential risk.[44] The report of the psychologist, Mr Ryan, provided to the Board by Mr Green'scounsel recommended:Should Mr [Green] be granted early release on parole by the [Board] allaspects of his residence, employment, study, possible intimate relationships,access to children and young persons under the age of 16 years (including hisown children and those related to him) and all recommended therapy to becarefully monitored by the Community Probation Service under special andstatutory conditions of release. With regard to access to children under theage of 16 years, he must follow the mandates of the Community ProbationService.Electronic monitoring for Mr Green may be considered appropriate.[45] The Board was clearly aware of the availability of electronic monitoring.Although the Board makes no reference to electronic monitoring in its decision, it wasnot required to do so. It was not a mandatory consideration — merely one of a largenumber of risk reduction conditions it has at its disposal.[46] The Board records it has reviewed Mr Green's safety plan but considered it tobe inadequate and noted that it does not deal with all of Mr Green's potential riskssufficiently and clearly. The reasons given are more than sufficient. It is up to theBoard to assess risk and not for this Court to second guess such a specialist tribunal.[47] The sixth ground of review must fail.Seventh ground of review[48] The seventh ground of review alleges that the Board severed thetelecommunications link with Mr Green and his counsel, giving no opportunity to askquestions to clarify or to make submissions on the Board's reasoning process.[49] I have had the opportunity to review the transcript of the hearing before theBoard on 22 September 2022. The hearing took approximately 15 minutes, althoughit appears the early part of the hearing was not recorded. Initially there was asix minute discussion between Mr Green and a Panel member, Mr G Coyle, aboutrelease to Auckland, the proposed address, paid employment, and rehabilitativeprogrammes. Input was then sought from Mr Green's Case Manager and a PrincipalCorrections Officer. The Chair of the Board, Sir R Young, then had a dialogue withMr Green for another almost eight minutes, which was followed by Mr Coyle askingMr Green's counsel whether there was anything further. Counsel made reference toan assessment by the psychologist, Mr Ryan, that Mr Green had a low to moderateoverall risk.[50] The Panel then went off-line to consider its decision. When they resumed thelink, Panel member, Mr Coyle, said they would see Mr Green again in February nextyear. Mr Coyle then explained what was required from the Board's point of view.What we'd like to say to you now is that the address in Auckland is notsatisfactory and you're going to have to find an address outside of Auckland.We want a whānau hui to take place where we see strong commitment fromyour family and your supporters, their commitment to keeping the public safeand keeping you safe, and that needs to happen. We'd also like a morestructured safety plan and we'd ask you to work with your case manager toput together a plan which is perhaps more in line with a denier's safety planand put all that together for the Board and we'll see you again in February totake regard of that information.[51] Mr Green replied "Okay". However, he then sought to enter into a dialogueabout moving his family to Hamilton. The Board did not engage with him andterminated the hearing.[52] Mr Green and his counsel did, however, have sufficient time to talk aboutwhere he would reside on parole earlier in the hearing when there was an extensivedialogue about the proposed parole address in Auckland. The Board made it plain thatan Auckland address was unacceptable because of victim concerns.[53] At the end of the hearing, Panel member, Mr Coyle, asked counsel if there wasanything further. The Board then retired to consider its decision and then advisedMr Green of its decision. The hearing was complete at that stage.[54] No question of a breach of natural justice arises. In any event, Mr Green askeda purely hypothetical question, which the Board was unable to answer in the absenceof a detailed proposal, which would include the actual address, the nature of theresidence, details of any other occupants, and proximity to where the victim resided.[55] The seventh ground of review must fail.Eighth ground of review[56] The final ground of review alleges that taken as a whole, the Board's process,reasoning and decision are so substantively flawed as to amount to an abuse of process.For the above reasons, the applicant has failed to identify any particular flawed aspectof the Board's process, reasoning or decision. This position cannot change by steppingback and considering the process the Board took and its reasoning and decision as awhole.[57] The eighth ground of review must fail.Result[58] All eight grounds of review must fail. Mr Green's application for judicialreview of the Board's decision is dismissed.Costs[59] Ms Jerebine, counsel appointed to assist, has submitted that in the eventMr Green is not successful costs are sought on a 2B basis with usual disbursements,with an order made pursuant to s 178(2)(a) of the Senior Courts Act 2016.Section 178(2)(a) provides that where a person appears as counsel to assist the courtin any civil proceedings, the court may, subject to the provisions of any other Act,make any order it thinks just as to the payment by any party to the proceedings of thecosts incurred by the Attorney-General or the Solicitor-General.[60] Ms Jerebine says an award of costs is appropriate because the applicant'sclaims were not supported at law and did no address a matter of substantial publicimportance. Therefore, the general principle that costs follow the event should apply.7She says costs should be paid by the unsuccessful applicant rather than from the publicfund.[61] The applicant has not addressed the issue of costs. Importantly, it is not clearwhether the applicant is legally aided in this proceeding.[62] If the applicant is not legally aided, counsel to assist will be entitled to costsfor the same reasons articulated by Gordon J in her judgment.8 That is, that theapplicant's application was made without merit and did not raise issues of publicimportance. However, a costs award will likely not be appropriate in this case if theapplicant is legally aided, pursuant to s 45(2) of the Legal Services Act 2011.Therefore, I direct the parties are to file memoranda as follows:(a) The applicant is to file and serve its costs memorandum within10 working days from delivery of this judgment.7 High Court Rules 2016, r 14.2(1)(a)8 Green v New Zealand Parole Board, above n 2, at [101]–[109].(b) Counsel to assist is to file and serve its costs memorandum in replywithin seven working days from service of the applicant'smemorandum.(c) The memoranda are not to exceed three pages in length other thanannexed schedules.[63] A costs decision will then be made on the papers.________________________________Woolford J