Blackmore v New Zealand Parole Board

[2013] NZHC 1417

IN THE HIGH COURT OF NEW ZEALAND

CHRISTCHURCH REGISTRY

CRI-2013-409-14 [2013] NZHC 1417

SCOTT JOHN BLACKMORE

Appellant

v

NEW ZEALAND PAROLE BOARD

Respondent

Hearing:	12 June 2013
Appearances:	M J Starling for Appellant K Bicknell for Respondent
Judgment:	12 June 2013

JUDGMENT OF PANCKHURST J

The appeal

[1]  This is an appeal against a Parole Board decision by which Mr Blackmore was made the subject of a final recall order. The correctness of the decision is challenged on grounds to which I will refer in a moment.

The essential background

[2]     On 13 October 2003 Mr Blackmore killed his partner.  This followed the end of their long term relationship from which there were two children. The breakdown of the relationship was not a happy one and there were disputes concerning the care of the children. On the day in question the deceased woman feared for her safety. She was at an address and the appellant made efforts to contact her which were rebuffed. Eventually he gained entry to the house where the victim was while armed with a knife. She was killed by a knife wound to the back.

BLACKMORE v NEW ZEALAND PAROLE BOARD [2013] NZHC 1417 [12 June 2012]

[3] On 17 December 2004, following a trial in this Court, Mr Blackmore was sentenced to 11 years imprisonment, together with a minimum period of imprisonment of two thirds of the end sentence. The Trial Judge described the manslaughter as one “as near as possible to murder, without being labelled as such”.

[4]   On 18 May 2005 the Court of Appeal upheld the sentence imposed including the minimum term and also the Judge’s characterisation of the manslaughter as very close to murder. On 30 November 2011 Mr Blackmore was released on parole, subject to standard conditions and a number of special conditions, some of which I will  refer  to  in  a  moment.   Finally,  I  note  that  the  end  sentence  date  is 20 October 2014.

The recall application

[5] On 2 November 2012, Mr Blackmore’s probation officer filed the recall application. The supporting affidavit referred to a relationship which Mr Blackmore had formed with Ms T. In particular, in October last Ms T had been found at the doorstep at an address not greatly distant from Mr Blackmore’s flat suffering from bodily injuries. She said she had been the victim of an assault, but she was not willing to identify her assailant. Subsequently she did so, and the recall application was made.

[6] The ground advanced as justifying recall was that Mr Blackmore’s continued presence in the community gave rise to undue risk to the safety of its members.

[7] The same day as the application was filed an interim order was made.  The final recall hearing occurred sometime later on 18 December 2012. The Board heard evidence from a number of witnesses including a police sergeant, who had been involved in the investigation into Ms T’s allegation. The probation officer also gave evidence, as did Mr Blackmore and a supporting witness, a neighbour in the block of flats in which Mr Blackmore resided. Ms T was not called, probably for the obvious reason that  as  the complainant in relation an alleged assault it was considered unadvisable.

[8] The evidence amplified and also updated developments in relation to both the alleged assault and Mr Blackmore’s circumstances. Ms T had on 27 November, participated in a video interview conducted by the police. She provided a much more detailed account of the alleged assault. The Board was given a transcript of that interview. However, at the time of the hearing and until now, a charge has not been laid against Mr Blackmore.

[9]      With reference to the allegation the Board said this:

[26]    As yet, the Police have not laid any assault or other charge in respect of the events of 28 October, although Sergeant Sole indicated that a charge is likely to be laid. Ms Bailey properly submitted that (Ms T’s) account of what occurred has not been the subject of sworn evidence and that it has not been tested. In these circumstances, the Board is conscious that it must approach with real caution the issue of (Ms T’s) reliability and credibility in relation to the alleged attack upon her by Mr Blackmore.

[27] On the basis of (Ms T’s) unsworn statement, the Board finds that it is unable to accept Ms Boshier’s submission that it can be satisfied on reasonable grounds that Mr Blackmore has committed an offence punishable by imprisonment, namely an assault. In reaching this conclusion, the Board does not overlook Ms Boshier’s submission that, on the night in question, (Ms T) named her boyfriend as having caused her injuries.

[10]The Board then focussed on a more general concern, and said this:

[28]  The Board is satisfied, however, that there is evidence upon which it can be satisfied on reasonable grounds that Mr Blackmore has breached the two parole conditions referred to above, in particular, the alcohol consumption prohibition.

[29] However, of greater significance and importance in the view of the Board is the issue of undue risk. In relation to Mr Blackmore’s risk, the Board cannot overlook the observations of the sentencing Judge and the Court of Appeal as set out at paragraph 5 above. The relationship which developed with this vulnerable woman; Mr Blackmore’s consumption of alcohol with her on occasions; the noisy sexual activity with her which attracted the attention of the occupants of the adjacent flat; Mr Blackmore’s failure to make any mention to his Probation Officer of the relationship; his determined claim to the Board that there was no relationship with (Ms T) but merely a friendship involving casual sexual relations; and his decision (which his mother approved, as is  confirmed  by  her  statement)  to  take (Ms T) to Nelson together with his failure to notify Ms Robinson of their departure from Christchurch, all point to a serious failure by Mr Blackmore to avoid an increasingly risky situation.

[30] The Board is satisfied that Mr Blackmore quite deliberately failed to advise Ms Robinson of this significant development in his life namely, the relationship which he allowed to develop.   The Board considers that this

confirms Ms Robinson’s view that Mr Blackmore was guarded in his discussions with her.

[31] The Board finds that it is satisfied on reasonable grounds that the ground specified in the application has been established. The developments in his personal life which Mr Blackmore failed to disclose or discuss with his Probation Officer and which the Board is satisfied significantly elevated his risk of reoffending point clearly to Mr Blackmore having become an undue risk in the community or to any person or class of persons.

[11] The Board then noted its view that the risk was unable to be met by a variation of release conditions, hence that the only course available was to make a final recall order.

[12] Earlier in its decision the Board made a number of other significant findings which are of relevance to this appeal. With reference to Mr Blackmore’s reporting to his probation officer, the Board made these observations:

[14]      In her evidence today, which supplemented her affidavit sworn on 2 November  2012,  Ms  Robinson   mentioned   what   she   regarded   as Mr Blackmore’s high risk areas, in particular, alcohol consumption and relationships with women. Ms Robinson confirmed that Mr Blackmore had satisfactorily adhered to his reporting requirements and had been compliant in relation to his parole obligations. However, Ms Robinson described Mr Blackmore as being somewhat guarded and as seeking to control meetings she had with him.

[15] Mr Robinson’s evidence was that, during discussions when  he reported to her, Mr Blackmore denied the use of alcohol and the existence of any  relationships.  The  Board  accepts  Ms  Robinson’s  evidence  that Mr Blackmore did not, at any time, disclose the existence of any relationship or association with (Ms T).

[13]A close evaluation of Mr Blackmore’s evidence by the Board included this:

[16] In his evidence Mr Blackmore denied first, that he was in a relationship with (Ms T) at any time and secondly, that he had assaulted her or had in any way acted violently towards her on 28 October or at any other time.

[17]  In cross-examination, Mr Blackmore acknowledged that, after he had first met (Ms T) in about July 2012, she began to stay at his address on a reasonably regular basis, that she would stay overnight on occasions – sometimes for a period of up to or close to a week – and that there was sexual activity between them which he described as casual sexual relations, short of a relationship. Mr Blackmore mentioned that this was similar to the casual sexual relations he had had with three or four other women following his release in late 2011.

[14]    And later the Board said:

[20] Mr Blackmore acknowledged being aware, when he formed what he describes as his friendship with (Ms T), that she had a history of mental health problems. He described her as a liar who had fabricated her allegations in relation to the events of 28 October. Mr Blackmore, in his evidence, and to an extent, his mother in her statement, sought to paint a very negative picture of (Ms T) and of her general demeanour and character.

[21]    Mr Blackmore impressed the Board as having been evasive in failing to disclose an important aspect of his personal life to Ms Robinson, in particular, the sexual relationship which the Board is satisfied he entered into with a woman who, by reason of her mental health background, he ought to have known was vulnerable. The Board found that Mr Blackmore was also evasive, and at times less than frank, in giving his evidence today.

[22] Mr Blackmore denied that he had consumed alcohol with (Ms T), although he acknowledged having gone with her to Edgeware Village on occasions when she purchased alcohol at a liquor outlet there. His evidence that at all times he has been abstinent was in conflict with the evidence of Mr Johnstone (his neighbour). Although, in his evidence, Mr Johnstone generally sought to assist Mr Blackmore, he nevertheless confirmed that he had seen Mr Blackmore drinking on occasions with (Ms T).

[15]    Then finally the Board noted:

[25]    In his evidence, Mr Blackmore mentioned his distrust of women and of the counselling he has received for this. He said that because of his mistrust he would not have entered into a relationship with (Ms T). Despite Mr Blackmore’s denial, the Board is satisfied that he was in a relationship with (Ms T) and that she stayed with him overnight on a reasonably regular basis and sometimes for successive nights over a period of a week or thereabouts.

The basis of the appeal

[16]     Mr Starling’s submissions can I think be reduced to two central propositions:

(a)The allegation of a serious assault was not established, yet the Board must have been influenced by the assault evidence. Absent this allegation, a recall would never have been considered in reliance on the ‘minor matters’ found to be proved. This shift in approach by the Board gave rise to ‘unfairness’ to the Appellant, and

(b)The finding of undue risk was in error on account of reliance upon matters where the Appellant was not in breach of any duty or obligation to which he was subject.

[17]    I shall return to these contentions shortly.

[18] Ms Bicknell in a written submission reminded me that the appeal is one by way of rehearing and that the Board’s decision involves an exercise of discretion. Therefore, she continued, one of the recognised grounds for the review of a discretionary evaluation must be made out. While it remains for me to reach my own decision, this should be within the framework for the review of a discretion and with due regard to the expertise and experience, and the advantage in seeing witnesses first hand, enjoyed by the Board.

[19] Approached in this way Ms Bicknell submitted that there was  no  flaw apparent in the reasoning process of the Board, or at least any flaw that gave rise to concern as to the correctness of the decision.

The statutory scheme

[20] It is important to have in mind the statutory scheme under which the Board operates in relation to recall applications. I shall refer to that aspect first.

[21]    Section 60 of the Parole Act 2002 relevantly provides:

(3) A recall application must specify the ground or grounds in section 61 on which the applicant relies, and the basis on which the applicant is satisfied that the ground or grounds apply.

[22]    Section 61 provides:

The grounds for recall are that-

(a)the offender poses an undue risk to the safety of the community or any person or class of persons; or

(b)the offender has breached his or her release conditions …; or

(c)the offender has committed an offence punishable by imprisonment (, whether or not this has resulted in a conviction);

I note that paras (d) and (e) relate to conduct of a parolee in relation to residential restrictions, or in relation to the attendance at residential programmes respectively. They are not of present relevance.

[23]    The making a final recall order is governed by section 66:

(1)    The Board may make a final recall order recalling an offender to continue serving his or her sentence in a prison if, following a hearing on a recall application, it is satisfied on reasonable grounds that 1 or more of the grounds for recall in section 61 have been established.

[24] Finally, I note that pursuant to s 117(1) of the Act the Board may receive and take into consideration whatever evidence it thinks fit, whether or not the information would be admissible as evidence in Court of law.

Did the Board rely upon irrelevant matters?

[25] Mr Starling’s second proposition amounted in my view to an assertion that the Board had erred by taking into account irrelevant considerations. It is logical to consider this aspect first and then return to the main argument advanced by counsel.

[26] There were three criticisms directed to para [29] concerning the key reasoning of the Board. In finding that Mr Blackmore’s relationship placed him in a situation where he posed an undue risk to the community, the Board referred to his participation in ‘noisy sexual activity’, his failure to mention the relationship with Ms T to his probation officer, and a failure to notify the probation officer of his visiting Nelson for a period of days with Ms T. With reference to these three aspects, Mr Starling made a number of points.

[27] Firstly, he said there was no obligation of any kind upon Mr Blackmore to abstain from involvement in sexual activities, and indeed that the Board’s observation about noisy sexual activity was of ‘no particular relevance’. Similarly, counsel rightly pointed out that there was no prohibition upon Mr Blackmore having relationships with females, nor a requirement to disclose the existence of any personal relationship to his Probation Officer. This was intimate information and whether or not it might be disclosed to the Probation Officer was likely to depend upon the extent of the rapport between the parolee and his reporting officer.

[28] With reference to the trip to Nelson, which occupied about three days while Mr Blackmore visited his mother, Mr Starling submitted that this could not be construed as a change of residence giving rise to an obligation to inform the probation officer, and indeed obtain her approval.

[29] To appreciate some of these points, it is necessary to refer to the appellant’s release conditions. He is subject to a condition that he is to reside at a particular address and not to move from it without prior written approval.  He is also subject to a curfew and to a condition that he is not to possess or consume alcohol, or non prescribed drugs. However, there are no conditions of release which expressly require the notification of intimate relationships, sexual activity, or the like. Nonetheless, in [29] of its decision, the Board relied on each of these three aspects to some degree.

[30] I accept that participation in noisy sexual activity which was so loud as to gain the attention of neighbours within the block of flats is not a proscribed activity. But I do not consider that the Board suggested this conduct was a breach of any release condition. Rather, as I read it the reference to noisy sexual activity is descriptive of an element of the relationship, and conveyed the character and intensity of that relationship. It was not, I think, a prurient criticism of what was occurring between these two people. The ‘failure’ to mention the relationship to the probation officer does imply there was a duty upon Mr Blackmore to do so. There was, of course, no such duty spelt out in any of the release conditions. Failure was perhaps an unfortunate choice of words.

[31] But there was evidence at the hearing from the Probation Officer concerning Mr Blackmore’s approach to their meetings, namely that he was somewhat guarded and sought to control the meetings. Further evidence revealed that during discussions the officer asked about the use of alcohol and whether he was involved in any relationships with females. Hence, although there may be an element of factual error in the use of the word failure, it seems to me that there was nonetheless an evidentiary basis for the concern which the Board identified.

[32]  Similarly, the Board referred to a ‘failure’ to notify the probation officer of the Nelson trip. It is perhaps debatable whether Mr Blackmore’s intention to visit Nelson for a period of days should have been disclosed to the probation officer. On the other hand, there is considerable weight in Mr Starling’s submission that a visit to one’s mother of short duration hardly amounts to a charge of address. It would however have been good  practice for a parolee to discuss  a visit  of this kind, particularly one with a female companion, with the probation officer. Hence, again although there is the use of a pejorative word in the way in which this concern is described, I doubt this error, if it is to be described of such, is of great moment.

[33] Nonetheless, I shall return to an evaluation of these more specific aspects in the course of considering the main argument.

Is the recall decision clearly wrong?

[34] A discretionary conclusion is assailable only if it is clearly wrong in the considered view of the reviewer. To my mind the effect of Mr Starling’s first and main argument was to challenge the recall decision as clearly wrong. Although not expressed as such he in effect submitted that absent satisfaction that the assault allegation was established, it was wrong for the Board to shift ground and find the recall justified on account of undue risk arising from what counsel termed ‘minor matters’.

[35] I appreciate this is likely to be Mr Blackmore’s perception of the outcome arrived at. It is the case that the interim, and final, recall applications  were predicated on the allegation that he had been the assailant responsible for a serious assault on Ms T. The Board was not satisfied of this, but nonetheless Mr Blackmore found himself the subject of a final recall order.

[36] But I do not read the decision of the Board, in particular the key reasoning in [29], in the way which I apprehend Mr Blackmore does. Moreover, I consider that the decision of the Board is readily understandable. Its concerns are plain and the basis upon which it made the undue risk finding is I think clear.

[37]   Importantly, the Board began with reference to the manslaughter conviction as the essential background. This no doubt was to highlight the circumstances in which Mr Blackmore offended in 2003. He had been in a long term relationship with his partner and the mother of his children. That relationship broke down. This obviously had a severe impact upon Mr Blackmore, so much so that in the circumstances to which I have already referred he entered the house and used a knife to kill his partner. This was an awful crime.

[38] Against that background the Board then assessed Mr Blackmore’s current relationship. It was with a woman who had a history of mental health difficulties. The relationship was obviously of some intensity given the active sexual element and level of cohabitation to which I have already referred. In breach of a release condition, the two were apparently involved in the consumption of alcohol. Then there was Mr Blackmore’s lack of condor. Both in his dealings with the probation officer and, more importantly, in his denial of the relationship to the Board he was evasive.

[39] Although not expressly mentioned in the paragraph upon which  I  have focused in the Board’s decision, I would add that there were signs that the relationship with Ms T had encountered difficulties. Although not able to find that a serious assault had occurred, there was at least evidence to show that the relationship was at a point of breakdown because the Board accepted Ms T had sustained injuries in worrying circumstances. Even without a clear resolution of how and why she sustained those injuries, there was a basis for concern.

[40] This cluster of factors pertaining to the new relationship must be viewed cumulatively. Once they are, they give rise to what was plainly a serious situation. Mr Blackmore was in a significant, quite intense relationship with a female, he was not open and straight forward about it, alcohol was being used and problems in relation to the relationship had surfaced.

[41] This, in short, was a recipe for something of serious significance to happen, and on this basis the Board was well able to reach the conclusion that it did. I do not consider such conclusion is clearly wrong, indeed I agree with it.  In saying that I

have not overlooked the criticisms advanced by Mr Starling in relation to his first submission. Even bringing those criticisms to account, I am satisfied that in substance the concern expressed by the Board was real and gave rise to undue risk.

[42]    For these reasons, the appeal must be and is dismissed.

Solicitors:

M Starling, Christchurch K Bicknell, Christchurch