Butcher v New Zealand Parole Board
[2020] NZHC 960
•12 May 2020
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CIV-2019-404-002075
[2020] NZHC 960
UNDER The Judicial Review Procedure Act 2016 IN THE MATTER
of an application for judicial review of a decision of the New Zealand Parole Board
BETWEEN
CARL DAVID GEORGE BUTCHER
Applicant
AND
NEW ZEALAND PAROLE BOARD
Respondent
Hearing: 22 April 2020 Appearances:
The applicant in person
No appearance for the Respondent (abides decision) D Jones as contradictor
Judgment:
12 May 2020
JUDGMENT OF POWELL J
This judgment was delivered by me on 12 May 2020 at 3.30 pm pursuant to R 11.5 of the High Court Rules
Registrar/Deputy Registrar Date:
BUTCHER v NEW ZEALAND PAROLE BOARD [2020] NZHC 960 [12 May 2020]
[1] The plaintiff, Carl Butcher, seeks judicial review of a decision of the New Zealand Parole Board (“the Parole Board”) which on 21 November 2019 declined to order the release of Mr Butcher on parole (“the November decision”).
[2] The Parole Board abides the decision of this Court and Mr Jones has been instructed as contradictor.
[3] A prisoner, like Mr Butcher, serving more than a two year term of imprisonment may only be released on parole if the Parole Board is satisfied on reasonable grounds that he or she will not pose an undue risk to the safety of the community or any person.1 This Court’s function on judicial review is not to sit as an appellate body for lawful decisions made by the Parole Board and this Court cannot exercise a jurisdiction which by law is vested in the Parole Board.2 The role of this Court is purely one of review, and the scope for review is narrow; this Court can only make an assessment of whether a Parole Board's decision was lawful.3
[4] Accordingly, Mr Butcher will only be successful in these proceedings if the Parole Board acted unlawfully because it failed to take into account all relevant considerations, took into account irrelevant considerations, arrived at its decision in breach of the principles of natural justice, or that its decision was so unreasonable as to be reviewable. 4
Background
[5] Mr Butcher is currently serving a sentence of three years and three months’ imprisonment5 and, if parole is not granted in the interim, will be released from prison on 28 November 2020.
[6] Mr Butcher first became eligible for parole in October 2018, and on 18 October 2018 the Parole Board declined to grant him parole. He was considered for parole on
1 Parole Act 2002, s 28(1AA) and (2).
2 Ericson v Parole Board HC Wellington CIV-2010-485-1912, 2 March 2011 at [14].
3 At [14].
4 At [14].
5 Mr Butcher was convicted on 11 charges of assault on a child, four charges of assault with a weapon and one charge of assault on a female.
a second occasion on 18 April 2019, and again parole was declined. Mr Butcher sought an independent review of this second decision pursuant to s 67 of the Parole Act 2002, but on 15 May 2019, the decision of the Parole Board was upheld on review.
[7] Mr Butcher then lodged an appeal in the High Court against the 15 May review but subsequently amended his claim to one of judicial review. As the second decision of the Parole Board was effectively superseded by the November decision,6 Mr Butcher amended his statement of claim to seek judicial review of the November decision.
The November decision
[8] In undertaking Mr Butcher’s parole assessment, the Parole Board had recourse to the relevant provisions of the Parole Act, Mr Butcher’s criminal history, a Department of Corrections Parole Assessment Report (“PAR”) and previous decisions of the Parole Board; including those made in October 2018 and April 2019. In addition to those materials, on the day of the hearing the Parole Board also received a brief report prepared by Nicola More, who appears to have been a mental health nurse at the Mason Clinic (“the Mason Clinic report”). This report had been prepared following concerns expressed by a PAR writer that Mr Butcher was paranoid and considered he was the victim of a conspiracy. It was not a full psychiatric assessment but confirmed that Mr Butcher did not appear to be delusional and appeared to be low risk to himself and others.7
[9] Ultimately, the Parole Board declined to order Mr Butcher’s release holding that:8
Mr Butcher believes that he is a victim of injustices and that others are conspiring against him. This includes accusations against: previous counsel; prosecutor; and judicial and court officers; of fraud, deceit and conspiracy. The Parole Board report comments that Mr Butcher sees himself as the victim.
6 Mr Butcher also sought review of this decision pursuant to s 67 of the Parole Act but the decision was upheld. Review decision of Sir Ronald Young dated 13 January 2020.
7 Carl Butcher, decision of the New Zealand Parole Board, 21 November 2019 at 4 and 5.
8 Carl Butcher, decision of the New Zealand Parole Board, 21 November 2019 at 14-16.
Mr Butcher has not participated in any rehabilitative programme and remains untreated. The Parole Board report states that he maintains that he has no rehabilitative needs as he is innocent. The report recommends a psychological assessment to establish dynamic risk factors if his appeal is unsuccessful.
The Parole Board disagrees with Mr Butcher's self-assessment. The Parole Board must proceed on the basis that the convictions stand. They also stand against an earlier history of violence. As he has not been prepared to accept his propensity for violence and engage in treatment or counselling to address it, the Parole Board must conclude that he remains an undue risk to the safety of the community and that he will remain such a risk until he addresses his offending. The parole proposal presented does not satisfy the Parole Board that it would address or prevent any risk. Indeed, being supported by family who share his denial is likely to exacerbate his risk to the community, including those he is in relationships with.
[10] Parole was declined. The Parole Board noted that Mr Butcher would be seen again in September 2020 and, based on a recommendation in the PAR as “the best way to establish dynamic risk factors” the Parole Board requested a full Department of Corrections psychological report prior to that hearing.9
Mr Butcher’s claim for judicial review
[11] In his Amended Statement of Claim dated 5 December 2019 Mr Butcher sought judicial review of the November decision on various grounds including claims his rights under the New Zealand Bill of Rights Act 1990 (“NZBORA”) have been breached in various ways.
[12] A number of the claims raised by Mr Butcher can be addressed relatively briefly. First, three of those claims; that the Parole Board has not progressed this case in a timely manner, that the Parole Board wrongly applied a policy of denying rehabilitation to those who appealed their convictions, and that the Parole Board incorrectly identified Mr Butcher’s security classification; were not maintained in the hearing. As Mr Butcher accepted it is difficult to see by how delay can be relevant to the November decision given the decision was issued immediately following the hearing, while it was equally clear that not only has no such policy to deny rehabilitation been identified, rehabilitation does not in any event fall within the responsibility of the Parole Board. As a result any claim regarding this policy is better
9 Carl Butcher, decision of the New Zealand Parole Board, 21 November 2019 at 17.
brought against the Department of Corrections or SERCO as the operator of the prison in which Mr Butcher is currently incarcerated. Likewise, in relation to the security classification it was accepted by Mr Butcher that the Parole Board did no more than state accurately that Mr Butcher’s security classification, while at that time under review, had not yet changed.
[13] There is similarly no substance to the NZBORA issues. First, Mr Butcher contended in his written submissions that his right to refuse medical treatment pursuant to s 11 of the NZBORA has been breached by the Department of Corrections who are seeking to provide him with mind altering drugs. The obvious problem with that submission is that the Parole Board is not responsible for his medical treatment and no decision of the Department of Corrections is at issue in these proceedings.
[14] Secondly, Mr Butcher’s argument that that his right to cross-examine witnesses under the same conditions as the prosecution, pursuant to s 25(f) of the NZBORA was breached at his trial (in particular as a result of claimed difficulties in cross-examining his children), is clearly not relevant to the November decision.
[15] Thirdly, Mr Butcher argued that his right to be free from arbitrary detention pursuant to s 22 of the NZBORA has been breached by the Parole Board when following the November decision, it requested a full psychological report when such a report was unnecessary. Mr Butcher says it is irrational for the Parole Board to require him to go around in circles and instruct another report when the last one (the Mason Clinic report) said that no further report was needed. The fundamental problem with this assertion is that it does not go to whether the decision to decline parole was correct. On the contrary and as noted the purpose of the psychological report requested is to identify “dynamic risk factors” and as such can reasonably be expected to cover different issues in greater detail than the very brief Mason Clinic report prepared by a mental health nurse which was focussed on whether Mr Butcher was delusional or otherwise had identified psychiatric issues.
[16] Outside of these specific issues the focus of Mr Butcher’s claim for judicial review is his contention that while he acknowledges his convictions he nonetheless
maintains that he is innocent of the crimes for which he has been convicted, and therefore he should not have been assessed as being a risk to the community.
[17] Overall, Mr Butcher says that improper weight was given to the fact that he “continues to strenuously deny his offending”. He says that he understands that normally to address one’s offending one must “first accept consciously that they have done something wrong and receive treatment and rehabilitate”. However, he goes on to say that this does not apply to him as his case is not the norm because he is in fact innocent of the crimes of which he has been convicted.
[18] In support of this argument Mr Butcher sought to place a large amount of material before the Court, including statements from witnesses, reports of various investigations, official records and proceedings from various courts both in New Zealand and in Australia, not for the purpose of challenging his convictions but to purportedly show that the conclusion in the November decision that he remained a risk to the community was based on erroneous or irrelevant information. In particular Mr Butcher submitted that this material showed variously the Parole Board:
(a)placed too much weight on Mr Butcher’s denial of his guilt;
(b)erred by taking into account that Mr Butcher was “aggrieved” by his convictions;
(c)erred by finding that familial support increased the risk Mr Butcher poses to the safety of the community;
(d)wrongly took into account Mr Butcher’s appeal of his convictions; and
(e)did not obtain a safety plan or updated PAR for Mr Butcher.
Discussion
[19] There are two fundamental problems with the overall thrust of Mr Butcher’s argument which in turn affects each of the specific issues he has identified. In particular:
(a)The distinction sought to be drawn by Mr Butcher, between accepting his convictions and at the same time disputing the factual basis of those convictions for the purposes of the risk assessment by the Parole Board, is not available.
(b)In any event the material Mr Butcher relied on for arguing that he did not commit the offending has been rejected by the Court of Appeal when in October 2019 it dismissed Mr Butcher’s appeal against conviction.10
[20] On the first of these issues, it was not open to the Parole Board to base its conclusions on risk on the material Mr Butcher had assembled to show he had not in fact committed the offending for which he had been convicted. As Mr Jones submitted, the Parole Board must and in fact did approach the risk assessment on the basis that an applicant for parole is guilty of the crimes for which they have been sentenced and that the underlying facts were true. Put simply, a parole board has no statutory role to consider the facts underpinning a conviction, 11 nor is it equipped to go behind the determination of the legitimate finder of fact, whether a judge or a jury. The material assembled by Mr Butcher to show he did not commit the index offending was therefore irrelevant to the assessment of the risk posed by Mr Butcher undertaken by the Parole Board.
[21] In any event, that material had in fact already been considered by the Court of Appeal. It is in fact clear from the Court of Appeal judgment that the issues Mr Butcher wanted the Parole Board to consider, including in particular that he had an alibi in respect of one of the charges and issues around the calling and cross examination of witnesses, were considered in detail by the Court before it concluded there was no merit in any of the matters raised and dismissed the appeal.12 In such circumstances it was simply not open for the Parole Board, nor indeed this Court, to entertain the possibility that Mr Butcher had not committed the offending for which he is currently imprisoned.
10 Butcher v R [2019] NZCA 487
11 See functions of parole board Parole Act 2002, s 109.
12 Butcher v R, above n 13, at [29].
[22] As a result, while the Parole Board would have been in error had it suggested Mr Butcher’s failure to accept his guilt was the sole reason for denying parole, when coupled with Mr Butcher’s history of offending including the index offending, it was clearly open to the Parole Board to conclude Mr Butcher has a propensity for violence which he had never addressed or otherwise comes to terms with, and that posed a risk to the community if he was released on parole. While the Mason Clinic report had referred to Mr Butcher as low risk, it was not, as noted, a full psychiatric report. No reason was given for reaching the conclusion Mr Butcher was low risk, and the Mason Clinic report did not therefore in any way preclude the conclusions on risk reached by the Parole Board based on the other information before it notwithstanding it was not specifically mentioned in the Parole Board’s analysis.
[23] Likewise, the lengths Mr Butcher continues to go to show he did not commit the index offending is a more than sufficient basis to conclude that Mr Butcher appears to remain “aggrieved” by his convictions as part of that same risk assessment. I note indeed that at the hearing before me while Mr Butcher disputed that he was aggrieved he nonetheless still considered that there had been an injustice. In the same vein the Parole Board’s conclusion that the risk he posed to the community would likely be increased by association with family members who supported his ongoing claims of innocence, was also a conclusion open to it on the evidence, that Mr Butcher’s non- acceptance of the offending would only be reinforced by his family, was also relevant to the assessment of risk.
[24] Mr Butcher’s suggestion that the Parole Board wrongly took into account that he was appealing his convictions also cannot be sustained. On the contrary it is clear that other than acknowledging the dismissal of the appeal it played no part in the Board’s assessment of the risk posed by Mr Butcher, nor could it have given, as noted, the Parole Board was required to proceed on the basis that the allegations underpinning his convictions were true.
[25] Finally, there is no merit in Mr Butcher’s contention that the Parole Board did not have all the relevant information required to accurately assess his eligibility for parole, including a safety plan and an updated PAR report.
[26] As the Parole Board noted no safety plan had been put forward and commented such plans “are completed by inmate[s] seeking parole to demonstrate they are aware of issues of risk and how to avoid and/or address them”.13 The Parole Board’s further comment that the lack of a safety plan was “perhaps not surprising as he maintains his innocence” was in fact echoed by Mr Butcher at the hearing before me, but what Mr Butcher made clear was that he what he was looking for in the context of the development of a safety plan was the “full facts” i.e. the material that showed he had not committed the offences and that therefore no safety plan as such was needed.
[27] Likewise, while it is clear that the PAR writer did not discuss the PAR with Mr Butcher prior to the parole hearing and the PAR appeared to indicate that Mr Butcher’s appeal had still not been determined, there can be no doubt, and indeed the Parole Board commented on it, that Mr Butcher was able to identify the matters in the PAR that he disagreed with. It was clear, through talking to Mr Butcher at the hearing that Mr Butcher’s issue was not minor errors in the PAR but rather Mr Butcher’s contention, consistent with his approach throughout, that unless the PAR writer considered the underlying material advanced by Mr Butcher to show that he had not carried out the offending, she was not doing her job.
[28] Quite clearly, and for the reasons set out as to why the material prepared by Mr Butcher was not relevant to the Parole Board, it was clearly neither necessary nor appropriate for such material to be included in the preparation of a safety plan or the PAR prepared for the Parole Board.
[29] In summary, as Mr Jones submitted, it is clear that the decision reached by the Parole Board was lawful, and reasonably able to be reached on the evidence before the Board. As a result Mr Butcher’s application for review cannot succeed.
13 Carl Butcher, decision of the New Zealand Parole Board, 21 November 2019 at 11.
Decision
[30]The application for review is dismissed. Any costs are to lie where they fall.
Powell J
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