C v New Zealand Parole Board - [2021] NZHC 2567

No judgment structure available for this case.

NOTE: SUPPRESSION ORDERS EXIST: SEE [174]

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2019-404-1493

[2021] NZHC 2567

BETWEEN
C

Applicant

AND

NEW ZEALAND PAROLE BOARD

First Respondent

CHIEF EXECUTIVE OF THE DEPARTMENT OF CORRECTIONS

Second Respondent

Hearing: 13-15 September 2021

Appearances:

F Pilditch QC for Applicant

M S Smith and V Owen for First Respondent
D Perkins and L Dittrich for Second Respondent

Judgment:

4 October 2021

JUDGMENT OF LANG J

[on application for judicial review]

This judgment was delivered by me on 4 October 2021 at 3.30 pm, pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar Date……………

C v NEW ZEALAND PAROLE BOARD [2021] NZHC 2567 [4 October 2021]

[1] The applicant, C, was made the subject of an extended supervision order (ESO) under s 107I of the Parole Act 2002 (the Parole Act) upon his release from prison in April 2016. C contends that in imposing and implementing his ESO conditions over the next three years the New Zealand Parole Board (the Parole Board) and the Department of Corrections (Corrections) acted in a manner that was unlawful and/or unreasonable.

Background

[2] In 2002, C was sentenced to preventive detention on charges of raping and indecently assaulting a 13 year old female victim. He was also sentenced to concurrent terms of imprisonment on charges of injuring the victim’s father with intent to injure and assaulting him with a weapon.1 The Court of Appeal quashed the sentence of preventive detention and replaced it with a finite sentence of 14 years imprisonment.

[3] C has a lengthy criminal history that includes many convictions for offending involving violence. The offending for which he was sentenced in 2002 occurred less than two weeks after C had been released from prison having served an effective sentence of seven and a half years imprisonment imposed on charges involving serious violence against numerous victims.

[4] C’s history of offending involving violence prompted the Chief Executive of the Department of Corrections to file an application for a Public Protection Order (PPO) against C under the provisions of the Public Safety (Public Protection Orders) Act 2014 (the Public Protection Act). In the alternative, the Chief Executive sought an ESO under s 107I of the Parole Act.

[5] The High Court heard both applications as a matter of urgency because C was about to be released from prison after serving the whole of his sentence. At the conclusion of the hearing in 2016, the Court dismissed the application for a PPO but granted the application for an ESO.

1 Citations for cases involving C have been omitted to ensure the effectiveness of suppression orders made at the end of the judgment.

[6] The Court directed that the extended supervision order was to remain in force for a period of seven years. It also imposed several special conditions, including a condition requiring C to be intensively monitored for a period of six months. It also directed that C was to be subject to electronic monitoring and was also to reside at a residential address as directed and approved by a probation officer. He was required to remain at this address at all times for a period of 12 months unless he was given permission to leave the address by a probation officer. In addition, the standard conditions contained in s 107JA of the Parole Act applied to the ESO. These included a condition preventing C from associating with or contacting any person under 16 years of age.2

[7] C was released from prison on 18 May 2016. On release he became immediately subject to the conditions of the ESO. On 19 September 2016 the Parole Board imposed special conditions that mirrored those imposed by the High Court.

[8] Following his release from prison C initially resided at residential address “A” in Auckland. Corrections had originally intended him to reside at another address but security modifications to that address had not been completed by the time C was released from prison.

[9] Corrections entered into a contract with an agency called Te Roopu Taurima O Manukau (TRT) to provide C with accommodation and intensive monitoring services at residence A . TRT was also required to provide C with reintegrative and rehabilitative activities whilst also managing his risk in the community.

[10] Whilst C was living at residence A, the fact of his placement there became known to the surrounding community. This led to considerable media attention, part of which was directed towards the fact that Corrections had not undertaken community consultation before placing C at the address. The hostility directed towards C at residence A led Corrections to re-locate C to residence B.

[11] C moved to the residence B address on 27 May 2016. However, community hostility towards him did not subside after he moved to that address. Protests were

2 Parole Act 2002, s 107JA(i).

held outside the address and staff members were accosted by members of the community when they arrived at the address. The issue again found its way into the news media. These issues prompted Corrections to relocate C to a residential complex situated on prison land adjacent to the Spring Hill Correction Facility near Te Kauwhata. This comprised seven self-care units that had recently been used by prisoners transitioning towards release. Each unit contained four bedrooms and had its own kitchen, bathroom and laundry facilities.

[12] C moved to Spring Hill on 10 October 2016. He remained there until 5 April 2019, when he moved to a residential address in Auckland.

[13] The decision by Corrections to move C to Spring Hill and the events that followed over the next 30 months have led to the issues raised in this proceeding.

Standard of review

[14] In assessing the reasonableness of the decisions that are the subject of review in this proceeding Mr Pilditch submitted I should apply a higher intensity of review, sometimes referred to as a “hard look” or “heightened scrutiny”. He said this was justified because the decisions involve questions relating to C’s liberty and freedom of movement.3

[15] Mr Perkins submitted on Corrections’ behalf that the issues raised in the proceeding are intensely fact specific. He suggested it may not be helpful to engage in any depth with the standard of review for this reason.

[16] I have not found it necessary to consider this issue because most of the decisions I have been required to reach are exercises of statutory interpretation and do not involve the concept of reasonableness. In areas where that concept arises I consider the answer would be the same regardless of what intensity of review is applied.

3 University of Auckland v International Education Appeal Authority [2010] NZAR 1 (HC) at [40].

The first cause of action – breach of s 107K(3)(bb)(ii) of the Parole Act

[17] In this cause of action C contends Corrections breached s 107K(3)(bb)(ii) of the Parole Act by requiring him to reside at Spring Hill. He says the breach occurred because the Spring Hill complex was operated and managed by the same agency that was responsible for his rehabilitation and reintegration into the community.

[18]Section 107K(3)(bb)(ii) of the Parole Act provides as follows:

(3) When the Board imposes special conditions under this section,—

…

(bb) any condition requiring the offender to participate in a programme (as referred to in section 15(3)(b)) must not—

…

(ii) require the offender to reside with, or result in the offender residing with, any person, persons, or agency in whose care the offender is placed; and

…

[19] As will be evident from the wording used in s 107K(3)(bb)(ii), the section prohibits any condition in an ESO that results in an offender residing with any agency in whose care that person has been placed. The section is obviously designed to prevent offenders from being subject to the supervision and direction of a single agency for 24 hours every day as would be the case in a custodial environment. C contends Corrections breached the requirements of the section because it arranged for him to reside at Spring Hill whilst the same agency was responsible both for managing his accommodation and implementing his reintegrative programmes.

[20] This was not the case on C’s arrival at the complex. Corrections had re- purposed the Spring Hill site prior to C’s arrival for the express purpose of housing offenders who had been released from prison but were subject to ESO’s. The last prisoners had only left the complex a short time before C arrived. When C arrived he was the only occupant of the complex. At this stage Corrections officers from the adjacent prison staffed the reception and communal areas and were responsible for supervising and managing the operation of the complex.

[21] Corrections’ Auckland office initially maintained responsibility for C’s management. However, Spring Hill is situated within the area for which Corrections’ Hamilton office is responsible. Responsibility for his management therefore shifted to the Hamilton office at some stage shortly after C arrived at Spring Hill.

[22] TRT initially remained responsible for providing intensive monitoring services and reintegrative and rehabilitative services after C arrived at Spring Hill. It provided the mentors who would pick C up from the complex on a regular basis and transport him to Auckland to undertake community-based activities. Whilst he was at the complex two mentors from TRT lived with C in his unit so they could monitor him 24 hours a day.

[23] On 21 December 2016 Corrections entered into a contract with a Hamilton- based agency called the Anglican Action Mission Trust (AA) under which AA assumed responsibility for the services formerly provided to C by TRT. The contract had a commencement date of 18 October 2016 but it appears to be common ground that AA did not begin to supply these services until 1 May 2017.

[24] From the same date AA also assumed responsibility for the management and operation of the Spring Hill complex. AA also provided the mentors responsible for C’s reintegrative activities. Furthermore, on 16 June 2017 the Parole Board imposed a condition on C under s 16(c) of the Parole Act. This placed him in the care of an agency approved by Corrections. Corrections nominated AA as this agency. Thereafter AA continued to provide these services to C until late 2018, when responsibility for these passed to an Auckland-based agency called Emerge Aotearoa.

[25] Mr Perkins contends there are indications C was not “residing” with AA during this period as that term is used in s 107K(3)(bb)(ii). By way of example, C resided in a unit situated on land owned by Corrections. Corrections was also responsible for the maintenance and upkeep of the complex. Furthermore, AA did not supervise C in any way after he retired to his unit each night.

[26] As Mr Perkins also acknowledges, however, the issue of whether C was residing with AA is ultimately a matter of fact and degree. I consider the evidence is

overwhelmingly to the effect that AA had sole responsibility for virtually every aspect of C’s residential arrangements and oversight during this period. As I have already observed, AA staffed the reception and communal areas of the complex where C went for group activities. AA staff were also his point of contact for any queries or problems he encountered with his unit or his activities. Furthermore, AA had contractual responsibility to Corrections for the welfare of the residents of the complex as well as their security. If a resident was to leave the complex in breach of any parole conditions AA was responsible for alerting Corrections and the police to that fact.

[27] Perhaps the most telling factor of the way in which AA, Corrections and the Parole Board viewed the position flows from the fact that on 16 June 2017 the Parole Board also imposed a condition requiring C “to abide by the residency agreement of the approved residential programme to the satisfaction of the Probation Officer”. AA subsequently endeavoured to have C sign a residency agreement setting out the terms on which he occupied his unit at Spring Hill but he refused. This plainly suggests all parties considered C was residing with AA whilst it was also C’s programme provider.

[28] It follows that C has established that Corrections breached the prohibition contained in s 107K(3)(bb)(ii) during the period in which he resided at Spring Hill and was subject to a programme placing him in AA’s care.

The second cause of action: breach of rights under s 22 of the New Zealand Bill of Rights Act 1990

[29] Under this cause of action C makes several allegations. Whether individually or in combination he says these amounted to a breach of his right under s 22 of the New Zealand Bill of Rights Act 1990 (NZBORA) not to be arbitrarily and unlawfully detained. He alleges:

(a)Corrections’ decision to require him to move to Spring Hill was arbitrary and unlawful;

(b)Corrections subjected him to a regime at Spring Hill that amounted to a PPO in all but name;

(c)The nature and duration of C’s residence at Spring Hill led to him being arbitrarily and unlawfully detained there.

Was Corrections’ decision to require C to move to Spring Hill arbitrary and unlawful?

[30]Section 15(1) and (2) of the Parole Act provides as follows:

15 Special conditions

(1)The Board may (subject to subsections (2) and (4)) impose any 1 or more special conditions on an offender.

(2)A special condition must not be imposed unless it is designed to—

(a) reduce the risk of reoffending by the offender; or

(b)facilitate or promote the rehabilitation and reintegration of the offender; or

(c)provide for the reasonable concerns of victims of the offender; or

(d)comply, in the case of an offender subject to an extended supervision order, with an order of the court, made under section 107IAC, to impose an intensive monitoring condition.

[31] As I have already observed, both the High Court and the Parole Board imposed residential restrictions on C for a period of twelve months from 18 May 2016. These gave Corrections the ability to direct C where he was to live during this period.

[32] Mr Pilditch submits that Corrections could only exercise the powers conferred on it for one or more of the purposes set out in s 15. He says Corrections’ decision requiring C to move from residence B to Spring Hill was not made for any of those reasons. Rather, it enabled Corrections to protect its own reputation after issues arose when the community and news media learned C was residing at residence B. This followed similar issues that had arisen when C was residing at residence A .

[33] I deal with this allegation relatively briefly because Mr Pilditch did not place a great deal of weight on it. He frankly acknowledged C would probably not have commenced the present proceeding if Corrections had not required him to reside at Spring Hill for such a lengthy period and subject to such stringent conditions.

[34] Mr Pilditch relies in this context on a report dated 25 August 2016 that was prepared for Corrections’ Intensive Monitoring Governance Group. In the section “Governance Group Decision Outcomes” the following passage appears under the heading “Offender Management related decisions”:

C is currently subject to six months IM [intensive monitoring] conditions which ends on 17 November 2016.

The issue of accommodation for the immediate future and post-IM appears to have been resolved in that a decision has been made to house him on the grounds of Spring Hill Prison. The MDT has not been informed of the date for the move as yet. The planning for the physical move is still underway with the MDT. C was initially hostile to the idea of being housed next to a prison, and still does not know the detail of where he will be housed, but is gradually coming to accept it in theory due in large part to the motivational work of the staff around him (PO, Psych, TRT).

C has been unsettled over this period by the public outcry over his placement in [Auckland] over the last four months. He has continued to lean on his partner A for support to process his feelings. They speak at least once per day via phone.

The MDT is continuing to work on developing self management (social control) in C and upskill him with a view to slowly and safely increasing his ability to live independently. While this has been somewhat hampered by the need to manage his risk and the reputational risk to the Department should anything go wrong, some progress has been made such as his use of computers to study for his Driver’s Licence test, shopping, banking, involvement with kapa haka, etc. The MDT is unclear what activities the Governance Group will allow to assist in increasing C’s ability to manage himself in the community when he moves to Spring Hill.

(Emphasis added)

[35] I do not accept Mr Pilditch’s submission on this point for several reasons. First, the comment in the report on which he relies does not relate to the proposed move to Spring Hill. It relates to progress that had been made to increase C’s ability to live independently. Secondly, the report refers to reputational risk in a qualified way. It refers to “reputational risk to the Department should anything go wrong”. By this I take the report to be referring to reputational damage the Department might suffer if C was to commit an act whilst at residence B that might substantiate the concerns of those who were voicing their opposition to him remaining at the address.

[36] I observe in passing that reputational risk is not necessarily an irrelevant consideration for Corrections (or an agency such as TRT) in the present context. They

are required to provide services that balance the protection of the community against the rehabilitative and reintegrative needs of offenders. Maintaining the trust of the community is an important aspect of maintaining public confidence in the criminal justice system generally. Furthermore, Corrections engages organisations such as TRT to house and supervise the activities of offenders who have been identified as being at risk of future offending. Those organisations also require the ongoing trust of the neighbouring community to enable them to continue carrying out that function. This does not mean, however, that Corrections is entitled to make decisions to advance its own interests over those of an offender. It must always implement parole conditions in a manner that best achieves the criteria set out in s 15.

[37] Corrections was faced with a difficult decision once opposition arose to C residing at residence B. It would obviously not have facilitated C’s rehabilitation and reintegration to remain at that address given the widespread opposition to his presence there. Another address had to be found, and quickly. This posed several problems. The first was that C had effectively been in prison for 20 years and did not have a support network of friends or family who could assist him on his release. This meant he had no residential address to which he could return upon his release. He had indicated a desire to return to live in a small settlement in the Waikato region where members of his family still lived. This gave rise to several practical issues, including the fact that the offending for which he had just completed a lengthy sentence of imprisonment had been committed in that area. The interests of the victims and their families who still lived there had to be taken into account.

[38] These factors meant Corrections realistically had no choice but to move C to Spring Hill after the issues arose whilst he was living at residence B. Mr Pilditch accepts that Corrections made this decision in the expectation that it would be an interim and short term measure whilst it took steps to locate alternative permanent accommodation. Unfortunately, however, this turned out not to be the case.

[39] It follows that, in the circumstances that existed at the time, Corrections’ decision to move C to Spring Hill was neither unlawful nor arbitrary.

Did Corrections subject C to a regime at Spring Hill that amounted to a PPO in all but name?

[40] Mr Pilditch contends that the conditions under which C lived at Spring Hill over the next 30 months were similar to, and in some respects stricter than, those that apply to an offender who is subject to a PPO.

[41] C was initially permitted to walk around the entire complex but when other residents began living there a few months later he was restricted to his unit. His excursions away from the complex with his TRT mentors would see him returned to Spring Hill no later than 1 pm each day. Until June 2017 he was required to remain in his unit after returning to the complex. This meant he was restricted to his unit from 1 pm most afternoons until 8 am the following morning. Furthermore, during the first two months after he arrived at Spring Hill the fact that he was subject to an intensive monitoring condition meant that two TRT mentors lived with him in his unit 24 hours a day.

[42] The rules relating to visits by persons other than his mentors were also very strict. Visits had to be arranged through Corrections’ Hamilton office and generally had to be undertaken off-site rather than at Spring Hill. During his time at Spring Hill C says he only received visitors on one occasion, and this occurred in January 2017 whilst Corrections officers were still running the complex. AA did not permit visitors at all until March 2018, when it permitted visitors between the hours of 1 pm and 5 pm each Saturday.

[43] C says that from June 2017 he was permitted to go to the communal area of the complex once each week to participate in group sessions with other residents of the complex. He says he stopped going to these because heated arguments would erupt between residents. The staff who managed the complex were not equipped to deal with these. C says he would also lock the door and windows of his unit at night because other residents were using drugs and alcohol and he did not want incriminating items to be deposited into his unit.

[44] Furthermore, C says he did not have a reliable and direct ability to send or receive mail. He received his mail from the staff managing the complex.

[45] Mr Pilditch contends that all these factors resulted in C living in conditions that were equally as restrictive as those that apply to an offender subject to a PPO. This was despite the fact that the High Court’s PPO decision had found C did not present as such a risk of imminent offending as to justify being subject to a PPO.

[46] I acknowledge that these appear to be very restrictive conditions. However, I accept Corrections’ argument that it is difficult to make a realistic assessment of C’s claims under this head because I do not have any evidence regarding the restrictions that apply in practice to an offender who is subject to a PPO. Offenders in this category are placed in the legal custody of the Chief Executive of Corrections4 and required to live in a residence located within prison precincts that is designated by the Chief Executive5 and gazetted for the purpose.6 Such premises are removed from the ambit of the Corrections Act 2004.7

[47] At this stage there is only one such residence in New Zealand and this is situated in Christchurch. C has never been placed in the legal custody of the Chief Executive and the Spring Hill complex has never been gazetted as a residence under the Public Protection Act.

[48] I also accept Corrections’ argument that some of the restrictions that applied to C were the result of the parole conditions to which he was subject. The most obvious of these are the intensive monitoring and residential restrictions conditions that applied to C until 18 November 2016 and 18 May 2017 respectively. The latter explain why C was required to remain in his unit after returning from outings with his mentors until June 2017. Throughout the time C was at Spring Hill he was also subject to a condition imposed by the Parole Board that required him to be subject to a nightly curfew supported by electronic monitoring. This required him to remain in his unit between the hours of 8 pm and 8 am each day.

[49] Furthermore, some aspects of C’s evidence are subject to a factual dispute that I cannot resolve in this proceeding. By way of example, he says the CCTV cameras

4      Public Safety (Public Protection Orders) Act 2014, s 21(1).
5      Section 20.
6      Section 114(1).
7      Section 114(3).

would rotate on their poles and follow his progress if he walked around the complex. The evidence for Corrections is that they were disconnected and permanently faced away from the complex.

[50] The lack of any meaningful evidence about the practical implementation of the PPO regime means C cannot establish that Corrections applied the same, or more restrictive, conditions to him at Spring Hill than those that would apply to an offender subject to a PPO.

Were the conditions and duration of C’s residence at Spring Hill such that he was arbitrarily and unlawfully detained there?

[51] To some extent this aspect of C’s claim replicates those under the previous ground. C contends he was effectively kept prisoner at Spring Hill for the length of time he lived there.

[52] Mr Pilditch points out that the Spring Hill complex was situated on prison land adjacent to the correctional facility in which C had served part of his sentence. It was surrounded by a fence and had CCTV cameras mounted at regular intervals. For several months after C arrived the complex was staffed and operated by Corrections officers. Mr Pilditch submits that a person in C’s position would perceive the return to Spring Hill as a return to a prison environment. He says the nature and duration of the conditions C was subject to whilst at Spring Hill meant that this perception became reality.

The test for detention under s 22

[53] Under the heading “Liberty of the person”, s 22 of the NZBORA provides that everyone has the right not to be arbitrarily arrested or detained. As Mr Perkins points out for Corrections, several recent cases have considered the question of what constitutes “detention” for the purposes of s 6 of the Habeas Corpus Act 2001. The term “detention” under that Act is defined as including “every form of restraint of liberty of the person”.8

8 Habeas Corpus Act 2001, s 3.

[54] In Nottingham v Ardern the Court of Appeal confirmed that the concept of detention in a habeas corpus context requires the applicant to be subject to close confinement akin to actual imprisonment.9 This reflected the approach taken in several earlier cases decided under that legislation.10 The Court also emphasised, however, that it is important not to conflate a restriction on a person’s right of movement under s 18 of the NZBORA with restrictions on their liberty under the Habeas Corpus Act.11 Not every restriction on movement will amount to a restraint of liberty for the purposes of the latter.

[55] Mr Perkins contended that the Court should take the same approach in the present case as has been taken in cases decided under the Habeas Corpus Act. In other words, this aspect of C’s claim should fail because he was not held in close confinement whilst at Spring Hill.

[56] I do not accept this submission because it overlooks the fact that the Habeas Corpus Act is designed to provide an expeditious means of determining whether a person is being wrongly held in conditions akin to imprisonment. Sections 22 and 23 of the NZBORA, both of which relate to circumstances where a person is “detained”, have a much broader function and apply in many diverse situations.

[57] The issue of whether a constraint on movement amounts to detention for the purposes of ss 22 and 23 often arises where a person has been detained by police before being arrested. As Richardson J observed in Police v Smith and Herewini, a case involving s 23(1), restraint on an individual’s freedom of movement may amount to detention where it results in a substantial intrusion on personal liberty.12 This will involve consideration of the nature, purpose, extent and duration of the constraint. In common with many NZBORA issues the determination of whether a particular form of constraint amounts to detention may therefore involve questions of fact and degree.

[58]To similar effect, the Court of Appeal observed in Everitt v Attorney-General:13

9      Nottingham v Ardern [2020] NZCA 144, [2020] 2 NZLR 207 at [18]-[20].
10     Drever v Auckland South Corrections Facility [2019] NZCA 346, [2019] NZAR 1519; and
Schuchardt v Commissioner of Police [2017] NZAR 1689.
11 At [20].
12     Police v Smith and Herewini [1994] 2 NZLR 306 (CA) at 316.
13     Everitt v Attorney-General [2002] 1 NZLR 82 (CA) at [7].

…In general terms, whether someone is detained within the meaning of s 22 of the Bill of Rights may be determined by a “mixed objective/subjective test: does the suspect have a reasonably held belief, induced by police conduct, that he or she is not free to leave”.¹⁴ A commonsense and practical approach is called for and something more than a temporary check on a citizen’s liberty is required. As we said in Police v Smith and Herewini, what beyond that constitutes a sufficient restraint on liberty to come within the guarantee of s
22 of the Bill of Rights against arbitrary detention, will depend on the circumstances of the case and will involve consideration of the nature, purpose, extent and duration of any constraint.

(footnotes omitted)

[59] I propose to apply this test in determining C’s claim that he was detained at Spring Hill.

Was C detained at Spring Hill?

[60] As Mr Perkins points out, there are obvious differences between C’s situation at Spring Hill and those of a prisoner in custody. The first is that C was not kept in a room that was locked from the outside. He could, and did, lock the door and windows of his unit from the inside.

[61] Secondly, C’s unit was situated in a complex surrounded by a fence but the evidence establishes that the entrance gate was generally left open. C therefore had the ability to walk away from the complex if he wished to do so.

[62] Thirdly, once AA assumed responsibility for managing the complex its staff had no power to arrest or detain C if he elected to leave the complex. That was also the case when the complex was bring managed by Corrections officers. The staff managing the complex were required to notify the police if an incident occurred that resulted in an offender breaching his parole conditions. Similarly, AA staff and Corrections staff did not monitor C during curfew hours as would be the case if he had been in prison.

[63] Fourthly, C left the complex on a regular basis with his mentors to undertake community-based activities in Auckland and elsewhere. This would not happen in the case of a prisoner.

14 R v M [1995] 1 NZLR 242 (HC) at 245.

[64] Fifthly, although C received his mail from the staff managing the complex they did not open or inspect it as would be the case if C was a prisoner.

[65] I accept these submissions. However, there is also evidence that the manner in which Corrections implemented his parole conditions resulted in one aspect of C’s freedom of movement being significantly curtailed. This flows from the fact that C was told from the outset that he could not leave the Spring Hill complex without his mentors. He was told he would be in breach of his parole conditions if he did so. This would result in his arrest and return to custody. Corrections and AA maintained this stance throughout the time C resided at Spring Hill. This meant that during the 30 months C lived at Spring Hill he never ventured beyond the gates of the complex unless he was accompanied by his mentors.

[66] There can be no issue taken with this up until 18 May 2017 because C remained subject to residential restrictions during this period. These required him to remain at Spring Hill 24 hours a day unless he left the complex with the permission of his probation officer.

[67] On 18 May 2017, however, C’s residential restrictions expired. His parole conditions still subjected him to a curfew in his unit at Spring Hill between the hours of 8 pm and 8 am each day and they also prohibited him from associating with young persons and visiting places where such persons may congregate. Corrections used electronic monitoring to ensure compliance with these conditions. Furthermore, his parole conditions required him to be subject to supervision and monitoring by AA staff members to ensure he attended classes and participated in activities relevant to his rehabilitation. Subject to those conditions, however, there were no other constraints on his freedom of movement. This meant Corrections could not lawfully prohibit C from leaving the Spring Hill complex between the hours of 8 am and 8 pm each day after 18 May 2017.

[68] The records kept by the mentors who accompanied C on his excursions from Spring Hill show that C generally left the complex with them on three days each week. They would leave Spring Hill between 8.30 and 9 am and return between 1 pm and 4 pm. C also left the complex with his mentors on one occasion during the weekend.

This meant he was required to remain within the complex 24 hours a day for at least three to four days every week and for several hours before his curfew began on other days. Given that this restriction lasted for approximately two years I have no doubt that it amounted to a substantial incursion on his freedom of movement. The fact that there was no lawful basis for it means I am also satisfied the constraint constituted a form of unlawful and arbitrary detention for the purposes of s 22 of the NZBORA.

Did the delay in finding alternative accommodation amount to detention?

C’s argument

[69] Mr Pilditch also contends that C was subject to a form of detention under s 22 because he was required to remain living at Spring Hill for far longer than was reasonably necessary. He points out that C was not happy about the prospect of returning to the Spring Hill area when Corrections first suggested this would occur. Corrections assured him, however, that the placement at Spring Hill was to be a short- term measure whilst other alternative residential possibilities were explored.

[70] Mr Pilditch submits that this meant Corrections had an obligation to ensure C stayed at Spring Hill for the shortest period reasonable in the circumstances. This was particularly so given the shortcomings that Spring Hill posed for C’s rehabilitation and reintegration into the community. Notwithstanding Corrections’ assurances C was required to remain at Spring Hill for approximately 30 months.

[71] Mr Pilditch submits that Corrections was not pro-active in finding C alternative accommodation. Rather, it reacted to suggestions put forward by C and his advocate,
M. They took the lead in finding alternative addresses at which he could reside. They put forward numerous addresses to Corrections during the latter part of 2018 but none were approved.

[72] Mr Pilditch also points out that Corrections ultimately opposed C moving to the new address in Auckland (“residence C”), when he eventually applied in January 2019 to have his parole conditions varied to enable this to occur. Corrections also went to the extent of asking the Parole Board to revoke its decision granting C’s application. The Parole Board rejected this application.

Corrections’ argument

[73] Corrections explains that it faced many issues in assisting C to find alternative accommodation after he arrived at Spring Hill. Between October 2016 and May 2017 he had been focussing on moving back to the area in the Waikato where members of his family lived. Investigation of this possibility had taken considerable time. In May 2017 C decided he would try to find a suitable address in the Auckland region.

[74] He wanted TRT to take over supervision of his activities and it was based in Auckland. He also had the support of his advocate, M, who lived in Auckland and had previously worked for TRT at the community centre he attended in Ōtāhuhu.

[75] Corrections points out that the transition process involved numerous interrelated steps. First, it was necessary to assign an Auckland-based probation officer to supervise the transition. It was also necessary to engage a new service provider because AA was based in Hamilton. TRT initially agreed to assist but was ultimately unable to do so for a variety of reasons.

[76] It then became necessary to undertake community notification for residence C. Issues subsequently arose about the suitability of the residence C address and Corrections eventually determined it was not suitable in August 2018. This meant C needed to find another address and this became a complicated process. It was not until April 2019 that the Parole Board finally resolved the issue by varying C’s bail conditions to permit him to live at residence C, in Auckland.

[77] Corrections therefore contends there is a reasonable explanation for the delay that occurred and that it did not in any event cause C to remain in any form of detention.

Narrative

[78] The withdrawal of TRT as a potential service provider posed a problem because at that time there were only three agencies who could provide the services that Corrections required to manage C’s rehabilitation. These were TRT, AA and Emerge Aotearoa (Emerge).

[79] In September 2017 M advised Corrections she had found and been able to rent the residence C in Auckland. Corrections assessed this as being technically suitable in or about October 2017 and the process of transitioning C to live at residence C began. In January 2018 Corrections approved the residence C address as being suitable for C’s needs.

[80] Negotiations with Emerge continued into the early part of 2018 and the parties eventually entered into a contract on 26 March 2018. Emerge then needed to recruit and train three new staff members to provide mentoring services to C. C had expressed a preference that the staff who were to assist him be Māori, and Corrections monitored Emerge’s recruitment process to ensure this was taken into consideration. In May 2018 representatives of Emerge met with AA staff to discuss the operational aspects of C’s management.

[81] Emerge did not complete its recruitment process until July 2018 and further time was then required to train the new employees. The contemporaneous notes kept by C’s mentors indicate that AA continued to act as Corrections’ service provider for several more months. By this time C was visiting the residence C address regularly in the company of his mentors.

[82] The next issue that arose was community notification. Corrections’ local Probation office had concluded this would not be necessary but review of the decision at regional and national level led to it being reversed. Community notification then occurred between May and August 2018. This went smoothly and initially attracted no adverse response from the community.

[83] Meanwhile C was growing frustrated. In May 2018 he applied for a writ of habeas corpus on the basis that his continued residence at Spring Hill amounted to unlawful detention. He subsequently converted this to an application for judicial review and sought urgent interim orders permitting him to re-locate immediately to the residence C address.

[84] In August 2018 Corrections received advice that a neighbour proposed to construct an Early Childhood Education Centre (ECE) approximately 100 metres

down the road from residence C. At or about this time Corrections also had contact with the MP for the electorate, who was the constituent Member of Parliament for the electorate in which residence C was located. She advised Corrections the address was unsuitable because of the likelihood that an ECE would be built nearby.

[85] This information prompted Corrections to halt the transition arrangements because it was concerned that construction of an ECE would make residence C unsuitable. If this occurred C would be required to move again. Corrections advised C and M that residence C was not suitable on 23 August 2018. Not surprisingly they were very disappointed, particularly given the fact that there was no firm evidence that the ECE was going to be built.

[86] C’s application for interim orders in the judicial review proceeding was set down to be heard on 27 September 2018. The hearing was adjourned after C’s lawyers began negotiating with Corrections regarding C’s transfer from Spring Hill to another address. C discontinued the proceeding on 5 October 2018 after Corrections gave him a letter of intent stating that he would be moved off prison land within six weeks.

[87] C and M then began to look for alternative addresses. Between October 2018 and January 2019 they provided Corrections with details of 19 potential properties they may be able to rent. This process was conducted on an informal basis with M advising Corrections of a potential address and Corrections providing a swift response advising whether it was technically suitable. Some of the addresses were considered unsuitable because of their proximity to locations where children were likely to congregate. Some related to properties that were not technically suitable in other ways for ESO purposes and some could not be considered further because M and C were unable to secure them.

[88] M retained her lease of the residence C property after Corrections said that it was not suitable and C continued to visit the address in the company of his mentors on a regular basis. In January 2019, no doubt even more frustrated by the ongoing delay, he applied for a variation of his parole conditions to permit him to reside at the address at residence C. The Parole Board granted C’s application on 18 March 2019 following a hearing on 25 February 2019. By that stage there was still no evidence

that an ECE was to be built near the address. The Parole Board amended C’s parole conditions to permit him to live at residence C as from 5 April 2019.

[89] Corrections immediately advised M that it considered the Parole Board had made an error in not including a monitoring condition in his special conditions. It approached the Board seeking rectification of what it perceived to be an oversight. On
25 March 2019 the Parole Board responded by issuing a direction requiring Corrections to cease monitoring C immediately.

[90] On 28 March 2019 M received advice that Corrections had applied for an order reversing the Parole Board’s decision to permit C to re-locate to the residence C address. This was set down for hearing on 2 April 2019, just three days before C was due to leave Spring Hill. Corrections expressed its opposition to C moving to the residence C address based on opposition he was likely to encounter from local residents and the prospect that an ECE may be built nearby.

[91] At the end of the hearing the Parole Board declined to reverse its earlier decision. It held that the panel that had earlier decided to permit C to move to the residence C address was fully aware of the concerns Corrections had raised regarding the address. It concluded:

7.The Board was assisted by the concise and focused submissions of both counsel. We accept as did the Board that considered the variation in February that a measure of opposition to C’s presence in the environment of his propoed address could be anticipated. The same we might observe could be said for other addresses. In the absence of risk to the safety of the community our focus has been on the likely impact that opposition would have on C’s reintegration and rehabilitation in terms of the extended supervision order.

8.In our view the benefits likely to be achieved through C’s ongoing reintregration at the proposed address were not outweighed by any disruption or opposition that is reasonably likely to occur. We note that fourteen other options appear to have been previously considered but not assessed as suitable. We note also a number of special conditions of the extended supervision order that mitigate his risk of re-offending. In particular we are satisfied that any risk to children in the absence of the early childhool learning centre is adequately addressed by the existing conditions.

This finally left C free to re-locate to residence C in Auckland.

Decision

[92] I do not consider any criticism can be levelled against Corrections for the events that occurred between October 2016 and August 2018. These were largely driven by C’s initial desire to live in the Waikato followed by his decision to return to Auckland. Any move to Auckland plainly required Corrections to undertake significant rearrangement of his care arrangements. This caused delay while Emerge recruited and trained new staff after TRT indicated it could not assist C. None of this was of Corrections’ making. During this period C and Corrections were both proceeding on the basis that it was likely he would move to the residence C address.

[93] C strongly criticises Corrections’ actions after Corrections determined the residence C address was unsuitable in August 2018. As I have already observed, he considers that he and M were making efforts to find suitable addresses and Corrections was reacting to these rather than taking the initiative itself. However, the contemporaneous communications between Corrections and M suggest the parties were co-operating during this period to find and asses the suitability of alternative addresses for C. I accept that C and M were the ones who were looking for a suitable address but this is understandable. It was obviously preferable for C to find an address that suited him rather than have Corrections impose one on him.

[94] It also seems that at least some of the problem in finding a suitable address was caused because Corrections applied the guidelines it had developed in relation to child sex offenders. Many addresses were not suitable because they did not meet the requirements of those guidelines. This occurred, for example, where an address was within 500 metres of a school or other place where young persons might congregate. Mr Pilditch criticises Corrections for this. He says it should not have applied the guidelines because the High Court granted the ESO on the basis that C presented as a very high risk of violent offending in the future and not as a high risk of sexual offending. For the reasons given later in this judgment I consider Corrections was entitled to have regard to its child sex offender guidelines when considering the suitability of alternative addresses.15

15 At [134]-[143].

[95] I therefore do not consider Corrections can be criticised for the delay that occurred between August 2018 and January 2019. However, it is difficult to see why Corrections persisted in opposing C’s move to the residence C address after he filed the application to vary his parole conditions in January 2019. By that stage there was no sign of an ECE being built in the vicinity of residence C and five months had elapsed since community notification. In all other respects Corrections had determined that the residence C address met C’s needs. The Parole Board ultimately accepted M’s submission that the solution was for C to move to the residence C address and for the situation to be reviewed if construction of the ECE commenced. It is difficult to see why Corrections did not take the same approach.

[96] Furthermore, Corrections made its concerns known to the Parole Board at the hearing on 25 February 2019. The Parole Board’s subsequent decision took those concerns into account. Corrections’ decision to immediately apply for an order reversing the Parole Board’s decision is therefore difficult to fathom. Ultimately, however, it did not delay C moving to the residence C address because the Parole Board heard and dismissed Corrections’ application before the scheduled re-location date of 5 April 2019.

[97] It is obviously unfortunate that C was required to reside at Spring Hill for such a lengthy period, particularly when he was initially given to believe he was only to be there for a short time. For the reasons given above, however, I consider that the only period when Corrections’ actions can be criticised was between January and April 2019. Its actions during that period did not cause C to be required to live at Spring Hill any longer than would otherwise have been the case. This aspect of C’s claim fails as a result.

Summary

[98] C has established he was subject to unlawful and arbitrary detention for considerable periods after his residential restrictions expired on 16 May 2017. This occurred because Corrections and the agencies required him to remain within the Spring Hill complex at all times unless he was in the company of his mentors. This

finding does not extend to the period between 8 pm and 8 am each day when his parole conditions required him to be subject to a curfew at Spring Hill.

[99]The remaining aspects of this cause of action fail.

Third cause of action: Unlawful imposition of intensive monitoring condition and unlawful intensive monitoring

[100] The third cause of action is based on an allegation that the Parole Board imposed a condition on 16 June 2017 that permitted Corrections and the agencies to monitor C to a greater extent than the Parole Act permitted. This resulted in C being subject to intensive monitoring by TRT and AA well beyond the six month period directed by the High Court and the Parole Board. C says this continued until the Parole Board directed Corrections to cease monitoring him on 25 March 2019.

Did the Parole Board impose an unlawful condition?

[101] Section 107IAC(1) of the Parole Act permits a sentencing court to impose an intensive monitoring condition when it makes an ESO. The maximum duration of such a condition is 12 months.16 Section 107IAC(2) defines such a condition as follows:

107IAC Court may order imposition of intensive monitoring condition

…

(2)An intensive monitoring condition is a condition requiring an offender to submit to being accompanied and monitored, for up to 24 hours a day, by an individual who has been approved, by a person authorised by the chief executive, to undertake person-to-person monitoring.

[102] On 16 June 2017 the Parole Board imposed the following special condition on C:

(8) To be placed in the care of an agency approved by the Chief Executive and between the hours of 8.00am and 8.00pm each day of the week and, whilst in the care of that agency to be accompanied and monitored by an agency staff member up to 12 hours a day.

(Emphasis added)

16 Parole Act 2002, s 107IAC(3).

[103] Mr Pilditch disputes the lawfulness of this condition. He acknowledges the Parole Board has powers to impose special conditions under s 15 and, in the case of offenders subject to an ESO, s 107K of the Parole Act. Mr Pilditch points out that neither section gives the Board a general power to impose a monitoring condition other than an intensive or electronic monitoring condition.

[104] Corrections and the Parole Board contend the condition was lawfully imposed under s 107K(3)(bb)(i) of the Parole Act, which provides as follows:

107K Board may impose special conditions

…

(3)When the Board imposes special conditions under this section, -

…

(bb) any condition requiring the offender to participate in a programme (as referred to in section 15(3)(b)) must not—

(i) require that the offender be, or result in the offender being, supervised, monitored, or subject to other restrictions, for longer each day than is necessary to ensure the offender's attendance at classes or participation in other activities associated with the programme; or

(Emphasis added)

[105] Corrections and the Parole Board point out that s 15(3)(b) of the Parole Act permits the Parole Board to impose a condition requiring an offender “to participate in a programme (as defined in s 16) to reduce the risk of further offending by the offender through the rehabilitation and reintegration of the offender”.

[106] They say AA monitored and supervised C after 16 June 2017 because the Parole Board imposed a special condition on that date placing C in the care of an agency approved by Corrections. Corrections refers to this as a programme condition because the Parole Board imposed it under s 16(c) of the Parole Act, which provides as follows:

16 Programmes

For the purposes of section 15, a programme means any of the following:

…

(c)placement in the care of any appropriate person, persons, or agency, approved by the chief executive, such as (without limitation)—

(i)an iwi, hapu, or whanau:

(ii)a marae

(iii)an ethnic or cultural group:

(iv)a religious group, such as a church or religious order:

(v) members or particular members of any of the above. (Emphasis added)

[107] Corrections approved AA as the agency that was to be responsible for C’s care. Corrections and the Parole Board contend that, once this occurred, s 107K(3)(bb)(i) of the Parole Act impliedly permitted AA to supervise and monitor C for up to 12 hours each day.

[108] I accept that s 107K(3)(bb)(i) provides implicit confirmation that an agency may monitor, supervise or make an offender subject to other forms of restriction where this is necessary to achieve the objectives set out in the subsection. Monitoring and supervision is prohibited, however, if it lasts longer than is necessary to achieve two purposes. These are to ensure the offender attends classes and participates in activities associated with the offender’s programme.

[109] This means I do not accept the submission by counsel for the Parole Board that the legality of the monitoring condition “turns on whether this Court considers that the provision for accompaniment and monitoring for “up to 12 hours a day” is problematic. The maximum duration of the monitoring and supervision is not the key issue. The legality of the condition turns on the purpose for which the restrictions are imposed on the offender.

[110] The blanket prohibition on C leaving Spring Hill without his mentors confirms Corrections and the agencies gave no consideration to whether supervision and monitoring were always necessary to ensure C participated in the activities he engaged in when he left the Spring Hill complex. They certainly never gave him the opportunity to leave the complex on his own or in the company of a person such as M

for that purpose. Rather, Corrections, AA and Emerge all proceeded on the basis that the condition entitled them, and in fact required them, to monitor and supervise C every time he left the complex. They interpreted the condition as authorising them to accompany and monitor C whilst he undertook activities associated with his programme rather than to ensure he did so.

[111] Corrections and the agencies no doubt proceeded on this basis because of the wording the Parole Board used in the condition it imposed on 16 June 2017. This permitted any agency in whose care C was placed to accompany and monitor him for up to 12 hours every day. It did not specify the purpose for which such monitoring and supervision was to be undertaken. I therefore consider the condition failed to acknowledge the restrictive effect of s 107K(3)(bb)(i). The condition ought to have permitted the agencies to monitor and supervise C only to the extent and for the duration necessary to ensure he attended classes or participated in activities relating to his rehabilitation and reintegration into the community. The condition that the Parole Board imposed on 16 June 2018 gave the agencies powers that were wider than those permitted under the Parole Act.

[112] This leads to the next issue, which is whether Corrections and the agencies monitored and supervised C whilst he participated in activities other than those that were associated with his programme.

Was C supervised and monitored whilst participating in activities other than those that were associated with his programme?

[113] Mr Pilditch argues that many of the activities that C undertook whilst being supervised and monitored by his mentors did not fall within the category of activities that were associated with C’s programme. He cites trips to the bank and other personal appointments such as visits to the doctor as examples. Mr Pilditch therefore contends that the agencies monitored and supervised C to a greater extent than was permitted by s 107K(3)(bb)(i).

[114] Corrections points out that C had wide ranging reintegrative and rehabilitative needs. These reflected the fact that he had effectively been in prison for over 20 years. This meant he needed considerable assistance to cope with even simple activities

following his release. Life skills, routine, self-care and goal setting were all features of the programme. As a result, every outing from Spring Hill formed part of his rehabilitative programme. Each had the objective of assisting C to prepare to live in the community on his own. Mentors accompanied him on each of these outings not only to provide him with assistance but also to ensure he participated fully in the programme. They also provided him with transport because he had no means of travelling to Auckland without their assistance.

[115] I accept this submission. C was in the process of returning to the community after spending a very lengthy period of time in prison. This meant that learning to interact with others in a non-custodial environment was likely to present particular challenges for him. Managing his finances and everyday needs was also likely to be difficult. Having read the records kept by the agencies for the period between 18 June 2017 and March 2019 I am satisfied that the excursions they describe can all broadly be described as conducive to C’s rehabilitation and reintegration into the community. I therefore do not accept Mr Pilditch’s submission that the monitoring and supervision occurred during excursions that did not relate to C’s programme of rehabilitation and reintegration into the community.

Did intensive monitoring occur after 16 November 2016?

[116] C says that for a lengthy period after the intensive monitoring condition expired his mentors remained in very close proximity to him at all times whilst he was away from the complex. He says this was eventually relaxed to some extent but the mentors still required him to remain within their line of sight. They accompanied him on visits to the doctor, the bank and other personal appointments. If he went to the toilet they would wait outside and would call out to him if they felt he was taking too long. C’s evidence is supported by that of M, who also observed C being accompanied by his mentors long after his intensive monitoring condition expired on 16 November 2016.

[117] I acknowledge the concerns expressed by C and M about the extent to which they believe C was subject to close supervision after the intensive monitoring condition expired. I also accept the submission for Corrections that care needs to be taken with these given that they relate to events that occurred several years ago. An

objective rather than subjective approach is also required. I have therefore derived the greatest assistance from the contemporaneous records prepared by the two agencies who were responsible for escorting C on his excursions from Spring Hill after November 2016.

November 2016 to May 2017

[118] There is little in the way of documentary evidence to assist in determining the level of monitoring and supervision to which C was subjected between 16 November 2016 and May 2017. From May 2017, however, weekly notes kept by AA show that he was subject to line of sight monitoring whilst away from Spring Hill. Several notes record that “line of sight was maintained” during outings. I therefore infer that C was subject to this requirement from the time his intensive monitoring condition ended on 18 November 2016.

[119] C’s most frequent excursions, particularly during the first 12 months of his stay at Spring Hill, were to the community centre in Ōtāhuhu where M was working at the time. There he would be involved in a variety of activities. C’s mentors would maintain line of sight observation of him during these visits. C describes an incident on 31 August 2017 when he went into a side room at the community centre with M and was out of his mentor’s sight for approximately ten minutes. This resulted in C receiving a formal and final written warning on 4 September 2017.17

[120] The weekly notes prepared for the period between 4 and 10 December 2017 also record that C had an issue with his mentor being “right on him” when he visited the community centre and spent time with M that week. He told the mentor he “was different to IM [intensive monitoring]” and was entitled to have time with his advocate in private. This resulted in C contacting his probation officer and receiving confirmation that, so long as C told his mentors where he was, there was no requirement for him to remain in their line of sight. This suggests that at least some mentors were enforcing the line of sight restriction as late as December 2017.

17 Corrections subsequently withdrew the warning after C’s lawyer became involved on his behalf.

[121] I consider that a requirement to remain within line of sight at all times satisfies the definition of intensive monitoring contained in s 107IAC(2). It did not occur for more than five or six hours at a time and it did not involve the mentors remaining in close proximity to C at all times as had been the case when he was subject to intensive monitoring. It nevertheless involved the mentors accompanying him everywhere he went. They also kept him under constant surveillance at all times.

[122] The requirement to remain in line of sight also led to formal reprimand if C failed to remain in his mentors’ line of sight for any significant period. Furthermore, as the incident that occurred in December 2017 demonstrates, the monitoring was intrusive and disconcerting for C. These factors satisfy me that the monitoring went well beyond that required to ensure he participated in rehabilitative activities associated with his programme. Rather, it amounted to a reduced form of intensive monitoring. I find that this occurred between 16 November 2016 and December 2017.

January 2018 to April 2019

[123] Corrections contends that the monitoring and supervision of C tapered off in 2018 as he gradually adjusted to being out and about in the community. Mr Perkins provided several examples of instances where C was left on his own or in the unsupervised company of M for significant periods.

[124] Mr Pilditch disputed this assertion and said that the examples given by Corrections were exceptions to the general rule. He maintained that C remained subject to close supervision and monitoring at all times until the Parole Board directed Corrections to cease monitoring him on 25 March 2019.

[125] There is little contemporary documentary evidence for the period between December 2017 and June 2018. From July 2018, however, monitors notes kept by C’s mentors on a daily basis are available. They demonstrate that, as C’s relationship with M developed, the amount of time he spent with her or on his own without being subject to supervision or monitoring increased steadily.

[126] Not surprisingly, the level of detail to be found in the notes varies from mentor to mentor. The notes nevertheless provide valuable evidence of the extent to which C’s mentors monitored and supervised his activities from July 2018.

[127] The monitors notes show that, as had always been the case, the mentors took C to a variety of places when he left Spring Hill. These included supermarkets, country markets and shops. The monitors notes record numerous occasions on which C was dropped off at country markets where he would either spend several hours on his own or with M on an unsupervised basis. On these occasions he was given instructions as to where and when he was to be picked up at the end of the excursion. He also began shopping in supermarkets with M while his mentor waited in the vehicle outside. The monitors notes record on several occasions during this period that C was “no oversight”, which I take to mean he was no longer required to remain within his mentors’ line of sight.

[128] By June 2018 C was also spending time at residence C in Auckland on a regular basis. C says that when he visited residence C, his mentors would knock on his bedroom door every 30 minutes if they had not seen him during that period.

[129] This may have occurred on some occasions but the monitors notes show that on most occasions C’s mentor would remain outside the address in a vehicle whilst C went into the address for several hours. M was often there when C visited and the mentors gave them time alone. On some occasions the mentor would enter the address, usually at C’s invitation. On several occasions the mentor assisted C to do chores in and around the address.

[130] Furthermore, in a memorandum Corrections sent to C on 11 September 2018 a senior probation officer advised him that mentors who accompanied him to the residence C address were not expected to keep him in line of sight but they were expected to remain at the address whilst he was there. The email ended “It is not a drop off and leave you arrangement”. The arrangement described in this memorandum appears to have remained in place until the Parole Board directed Corrections to cease monitoring C on 25 March 2019.

[131] The mentors obviously continued to accompany C when he left Spring Hill during 2018 and 2019. They also generally, but not always, remained in his vicinity when he got to his destination. I am satisfied, however, that the monitoring and supervision during this period was not overly intrusive or disconcerting for C. He was not required to remain within his mentors’ line of sight and was given considerable freedom of movement. I am therefore satisfied C was not subject to any form of intensive monitoring during this period.

Summary

[132] C has established that the wording of the monitoring condition imposed by the Parole Board on 16 June 2017 was wider than that permitted by s 107K(3)(bb)(i) of the Parole Act. This did not result in Corrections and the agencies supervising and monitoring him whilst he participated in activities not associated with his rehabilitation and reintegration into the community.

[133] C has also established that he was subject to a reduced form of intensive monitoring between 18 November 2016 and December 2017 but not thereafter.

Fourth cause of action: wrongful application of Child Sex Offenders Guidelines to C

[134] Corrections maintains a set of internal guidelines known as the Child Sex Offender Guidelines (the Guidelines). These are designed to provide staff with assistance and guidance regarding the procedure to be followed when a person who has offended sexually against children and young persons is released from prison. As its name suggests, the Guidelines apply to offenders who have served a sentence for a child sex offence. The procedures guide the selection and approval of any address at which the offender may live following release. They also inform the decision as whether community notification should be carried out.

[135] Community notification will usually be undertaken where the offender is serving a sentence of preventive detention or is subject to parole conditions, prison release conditions or an ESO. It may also apply to an offender for whom Corrections is considering making an application for an ESO. Community notification only occurs

once a decision has been made to approve an address. The information that is provided to residents in the neighbouring community does not identify the offender or the address where the offender proposes to live.

[136] Corrections says the Guidelines have been developed in a manner that endeavours to balance the need to ensure the safety of the community against the particular needs of the offender. As a result, the Guidelines aim to inform and educate the community in a way that avoids the offender being stereotyped so as to result in the community responding in a negative way. They have no legal status and their application in any given case remains very much a matter of discretion for staff members dealing with the case.

[137] Mr Pilditch points out that, although Corrections has explained how community notification occurred at residence B (in 2016) and the residence C address (in 2018), no Corrections witness has explained why Corrections considered the Guidelines applied to C. Mr Pilditch contends an explanation is required because, although C was serving a sentence imposed for sexual offending against a young person, Corrections did not seek and obtain an ESO on the basis that he was at high risk of future sexual offending. Rather, it did so on the basis that he presented as a very high risk of future violent offending.

[138] Mr Pilditch points out that Corrections’ decision to apply the Guidelines to C resulted in significant practical consequences for both Corrections and C. First, it resulted in Corrections’ decision to undertake community notification for both the residence B and residence C addresses. This produced significant hostility and antagonism towards C from residents in the locality of the residence B address. This resulted in the decision to move him from residence B to Spring Hill.

[139] Mr Pilditch contends the decision to apply the Guidelines to C also prolonged C’s stay at Spring Hill because of the need to apply the Guidelines to alternative addresses after Corrections determined that the residence C address was not suitable in August 2018.

[140] Mr Pilditch contends Corrections should never have applied the Guidelines to C when it had not sought and obtained the ESO on the basis that he presented a high risk of future sexual offending. He therefore submits the decision to do so was either in breach of the Guidelines themselves or it was unreasonable in the circumstances.

[141] I do not accept these submissions for several reasons. First, it is common ground that the Guidelines have no legal status. They are merely materials produced by Corrections for the assistance of its staff. Failure to follow the advice contained in the Guidelines may be evidence that actions taken by Corrections staff are unreasonable but that will not always, or even generally, be the case. The Guidelines are not to be followed rigidly in every case. As Corrections points out, staff are expected to tailor their actions and decisions to reflect the circumstances of individual cases.

[142] This leads to the next issue, which relates to the offending for which C was sentenced in 2002. This involved an incident that lasted for approximately 90 minutes after C unlawfully entered a house where the 13 year old female victim was sleeping at night. The victim was staying with her grandparents at the time. A psychological report prepared before a parole hearing in 2011 described the offending as follows:

14. The Police Summary of Facts and Detective’s Statement note that the victim knew C who was a distant relative. She woke to find him on top of her, and with her lower garments removed. He then pushed an object in and out of her vagina. The victim’s brother woke and saw
C. He was told to watch TV and to “ignore” what was taking place. The victim resisted and eventually he got off from her. C then sat next to her and rubbed her thighs, genitals and breast area. The victim told him to stop, and he threatened her with talk about a gun, so she acquiesced. C left the address approximately 90 minutes later. Two days later, the victim’s father learned about the rape and went to look for C. He went to C’s address and found a group of intoxicated youths who threatened him. He then left, but shortly after, C and three associates followed him to the address. C punched the victim twice in the head and assaulted him with a nearby rake. The rake broke and C attempted to stab the victim in the stomach with the pointed end. It was noted that after the assaults C ran off making threats to shoot people with his shotgun. The Armed Offenders Squad and dog handlers were used to join the manhunt for him. C handed himself in 24 hours later. At that stage he admitted to the assaults, but denied the sexual offending, or even being at the house. He reported that he committed the assaults as self- defence.

[143] When the facts of C’s sexual offending are taken into account I have no doubt that Corrections was fully justified in concluding it should apply the Guidelines to him. The offending occurred within just ten days after C had been released from prison after serving a lengthy sentence imposed for violent offending. It was pre- meditated and involved a home invasion at night. It resulted in the rape and indecent assault of a 13 year old victim in her own bed. It also involved threats with a firearm. The Judge’s sentencing remarks also record the serious harm the offending has caused to the victim. The sexual offending was then followed by serious violence directed against the victim’s father.

[144] I consider the fact that Corrections did not seek an ESO based on the risk of future sexual offending has very little weight when the nature and seriousness of the index offending is taken into account. If Corrections had decided not to apply the Guidelines to C the communities in which he was to reside would justifiably have been aggrieved. That is in fact what occurred after C began living at residence A in circumstances where no community notification was undertaken. I therefore do not accept Corrections acted unreasonably in applying the Guidelines to C upon his release.

[145] Mr Pilditch also submits that, if Corrections decided to undertake community notification, it needed to ensure it portrayed C’s circumstances correctly. He points out that the community notification advised residents living near the residence C address that an offender “convicted of crimes against children” was returning to the area. This was incorrect because C has only offended sexually against one young person and not several as the notification suggested.

[146] I accept this criticism as far as it goes but I do not consider it advances C’s case greatly. It is unlikely that residents living in the vicinity of the residence C address would have been greatly reassured to know that the offender who was moving to their neighbourhood had only committed serious sexual offences against a single victim rather than several.

[147] Furthermore, the community notification that was undertaken for the residence C address property did not result in a hostile or widespread reaction from the local

community. It resulted only in the information received about the possible construction of an ECE down the road. It therefore appears that the wording of the notification had no adverse effects for C.

[148] On Corrections’ behalf Mr Perkins also points out that the Guidelines did not prompt or influence the decision to undertake community notification when the residence C address was being considered. The decision was made to undertake community notification because of public assurances Corrections had previously given that community notification would be undertaken in relation to any future residential arrangements involving C. I assume that Corrections gave these to address concerns raised about the lack of community notification when C began living at the residence A address.

[149] For the sake of completeness, I record that the statement of claim also contains an allegation that the decision to apply the Guidelines to C was unlawful because the definition of child sex offenders used in the Guidelines is tied to the definition used in s 182B of the Corrections Act 2004. Mr Pilditch did not address this issue in his submissions so I take him to have abandoned it. As Mr Perkins points in any event, however, there is no discernible link between the Guidelines and s 182B. Section 182B informs the application of s 182A of the Corrections Act, which relates to the sharing of information between agencies.

[150]C has not established his claim under the fourth cause of action.

The fifth and sixth causes of action: special conditions imposed by the Parole Board

[151] These causes of action relate to special conditions the Parole Board imposed between 2016 and 2019 restricting C from going to places where children might congregate. The High Court did not impose this condition when it granted the application for an ESO but the Parole Board imposed it as a special condition on 19 September 2016.

[152]The condition in question required C:

(7) Not to enter any parks, playgrounds, schools or any other place identified in writing by your Probation Officer where children congregate, without the prior written approval of a Probation Officer.

[153] This condition remained in force until 15 January 2019, when C applied to have it deleted before he moved to the residence C address. Corrections had opposed any variation of the condition on the basis that it was still needed to manage C’s risk of sexual offending in the future. The Parole Board declined C’s application to delete the condition in its decision delivered on 18 March 2019 for the following reasons:

20.Condition (7) is a clear whereabouts condition but it is arguable that the curfew condition also relates to whereabouts as do certain of the standard conditions under s 107JA of the Parole Act.

21.In relation to condition (7) M’s principal submission is that the ESO was made on the basis of risk of violent offending and that management of sexual offending should be in accordance with the Child Sex Offender Register provisions to which C is subject.

22.The Department opposes the discharge of condition (7) which it says was legitimately imposed in accordance with the Parole Act including section 15. It says C became eligible for the making of an ESO on account of the sexual offending and has been assessed as posing a high threat of sexual offending against children.

23.In the Department’s opinion, condition (7) is necessary for the sufficient management of risk.

24.We agree. Condition (7) will not be discharged.

[154] Mr Pilditch challenges the reasonableness of this condition on the same basis he challenges Corrections’ decision to apply the Guidelines to him. He again emphasises that the ESO was granted on the basis that he posed a very high risk of future offending involving violence and not because of any risk relating to future sexual offending. He therefore contends the special condition prohibiting him from entering places where children congregate was unreasonable.

[155] C also says the condition has caused him considerable practical difficulty because compliance with it is achieved in part through electronic monitoring. C has encountered issues on several occasions when events beyond his control have resulted in Corrections alleging he has breached the condition. By way of example, on 28 April 2019 Corrections advised him he was to be arrested because electronic monitoring had established he entered a park two days earlier. His lawyer then gathered evidence to

prove that, although he had been in the vicinity of the park in question at the time alleged, he did not enter it.

[156] Another example occurred when C’s vehicle was delayed for a period by road works outside a school. This caused Corrections to allege he had breached the condition. Corrections eventually took the matter no further after C’s lawyer pointed out that “entering” a place did not include stopping outside it in a motor vehicle. These events make it clear that the condition leaves C at considerable risk of being accused erroneously of breaching it.

[157] However, two factors persuade me the Parole Board’s decisions to impose and then decline to delete the condition cannot be regarded as unreasonable. The first is that, regardless of the basis on which the ESO was made, C’s index offending involved very serious sexual offending against a young female. Corrections and the Parole Board were entitled to take that fact into account in considering whether the condition should remain in place.

[158] Secondly, guidance on the issue can be gleaned from the standard ESO conditions prescribed by s 107JA of the Parole Act. These include a condition prohibiting the offender from associating with, or contacting, any person under 16 years of age without the prior written approval of a probation officer.18 Furthermore, any such contact must take place in the presence of an adult who has been informed about the offender’s relevant offending and who has received written approval from a probation officer as being suitable to undertake the supervision of contact between the offender and the young person.19

[159] These are very strict conditions and they apply regardless of the nature of an offender’s history of offending. They plainly indicate that Parliament has intentionally imposed significant restrictions on the ability of any person who is subject to an ESO to have contact with persons under the age of 16 years. The special condition imposed by the Parole Board prohibits C from entering places where children congregate. I consider such a restriction can be viewed as a natural corollary of the standard

18 Parole Act 2002, s 107JA(1)(i)(i).
19 Section 107JA(1)(i)(ii).

condition restricting contact between persons subject to an ESO and persons under the age of 16 years.

[160]C has failed to establish the fifth and sixth causes of action.

The seventh cause of action: breach of s 118(1) of the Parole Act

[161]Section 118(1) of the Parole Act provides as follows:

118 Avoiding actual or perceived bias

(1)The chairperson must ensure that no person involved in a parole panel hearing reviews a decision of that panel.

(2) …

[162] This cause of action flows from the fact that Mr Neville Trendle was a member of the Parole Board panel that initially imposed special conditions on C on 19 September 2016. One of these was the condition prohibiting C from entering parks, schools and other places where children might congregate. After a different panel of the Parole Board declined C’s application for deletion of this condition on 18 March 2019 C applied for a review of that decision. Mr Trendle reviewed the decision but declined to disturb it.

[163] Mr Pilditch contends Mr Trendle’s involvement in the review hearing resulted in a breach of s 118(1) because he had been a member of the panel that originally imposed the special condition. Mr Pilditch submits this resulted in Mr Trendle effectively reviewing his own decision, and s 118(1) is designed to prevent that from occurring.

[164] This argument faces the obvious difficulty that s 118(1) is specific in its terms. It requires the chairperson to ensure that no person involved in a parole panel hearing “reviews a decision of that panel.”20 Mr Trendle was not a member of the panel that made the decision he was reviewing. This means s 118(1) does not apply regardless of any earlier involvement Mr Trendle may have had in imposing C’s parole conditions.

20 Emphasis added.

[165]This cause of action fails as a result.

Result

[166] C has succeeded in the claims he advances in the first, second and third causes of action. His remaining claims have failed.

[167] At this stage I refrain from making declarations as sought by C in his statement of claim. I would be grateful if counsel could confer and, if possible, reach agreement on the wording of declarations that reflect the conclusions reached in this judgment. If they cannot agree they should file and serve competing memoranda and I will deal with the issue on the papers.

Costs

[168] I am not aware whether C is legally aided. Counsel therefore have leave to file concise submissions regarding costs and I will deal with that issue on the papers.

Suppression

[169] C seeks a permanent order suppressing his name and identifying details in this proceeding from publication. He advances the application on the basis that any public interest the proceeding raises flows from the issues he has raised rather than his identity. He says there is therefore no public interest in his identity being revealed. He is also concerned that publication may result in further hostility towards him and this will hinder his ongoing rehabilitation and reintegration into the community.

[170] Corrections does not oppose an order for suppression being made and the Parole Board abides the Court’s decision.

[171] As Mr Pilditch acknowledges, the starting point in this context is the principle of open justice and freedom of expression.21 This creates a presumption of disclosure in the interests of transparency.22 The issue is whether the circumstances justify an

21 Y v Attorney-General [2016] NZCA 474, [2016] NZAR 1512 at [25].
22 At [26]-[29].

exception being made to the general principle.23 This means the Court must endeavour to achieve a balance between open justice and transparency considerations and the interests of the party seeking suppression.24

[172] In the present case I am satisfied the balance falls firmly in favour of suppression for two reasons. First, C is now well down the pathway towards rehabilitation and reintegration into the community. In September 2020 the Parole Board acknowledged the success C has achieved by reducing his parole conditions significantly. He is now subject only to conditions prohibiting him from consuming alcohol and drugs, requiring him to comply with any residential plan and specifying the address at which he must live. This is a remarkable achievement given his background and the restrictive nature of the conditions to which he was subject upon his release from prison in May 2016. Any further media attention has the obvious potential to create hostility towards C from those in the community who opposed him living at residence A and residence B. That would endanger his ongoing rehabilitative and reintegrative efforts.

[173] Secondly, some of the issues that the present proceeding raises may well be of public interest but this is not because of C’s identity. Rather, any element of public interest arises out of the way in which the Parole Board and Corrections have imposed and implemented his parole conditions.

[174] I therefore make a final order suppressing from publication any information in this judgment that may cause C’s identity to be revealed.

Lang J

23 At [29].
24 At [31].

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Citations

C v New Zealand Parole Board [2021] NZHC 2567

Most Recent Citation

New Zealand Parole Board v Attorney-General [2023] NZHC 1611

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New Zealand Parole Board v Attorney-General [2023] NZHC 1611

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