Douglas v Chief Executive of the Department of Corrections

[2022] NZHC 600

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE

CIV-2021-409-000403

[2022] NZHC 600

IN THE MATTER

of the Judicial Review Procedure Act 2016

IN THE MATTER

of an application for judicial review in

relation to the management of the applicant’s Public Protection Order under the Public Safety (Public Protection Orders) Act 2014

BETWEEN

GLEN ANTHONY DOUGLAS

Applicant

AND

CHIEF EXECUTIVE OF THE DEPARTMENT OF CORRECTIONS

Respondent

Hearing:	28 March 2022
Appearances:	A J Bailey for the Applicant J Watson for the Respondent
Judgment:	29 March 2022

JUDGMENT OF DOOGUE J

This judgment was delivered by me on 29 March 2022 at 2.30 pm pursuant to Rule 11.5 of the High Court Rules

Registrar/Deputy Registrar Date:

DOUGLAS v CHIEF EXECUTIVE OF THE DEPARTMENT OF CORRECTIONS [2022] NZHC 600 [29
March 2022]

Introduction

[1]    The applicant, Mr Douglas, is subject to a Public Protection Order (PPO) under the Public Safety (Public Protection Orders) Act 2014 (the Act) and is detained at Matawhāiti Residence.

[2]    He seeks to judicially review the respondent’s alleged refusal to grant him leave from Matawhāiti Residence for humanitarian reasons prior to March 2021.1

[3]    Mr Douglas does not impugn the respondent’s current approach to granting leave for humanitarian reasons.

[4]    Mr Douglas seeks a declaration that the policy in place at Matawhāiti Residence from January 2017 to March 2021, pursuant to which residents were not to be granted a leave of absence from Matawhāiti Residence to enable them to undertake activities within the community (appropriately supervised) save in exceptional circumstances was ultra vires.

Agreed facts

[5]    I am indebted to counsel for their joint memorandum on which I have relied for the background to this matter.

[6]Mr Douglas is subject to a PPO made pursuant to the Act.2

[7]    The Chief Executive of the Department of Corrections (Chief Executive) has the legal custody of every person subject to a PPO.3 A person subject to a PPO (but not to a prison detention order) must stay in the residence the Chief Executive designates by written notice given to the resident and to the manager of that residence.4

[8]    Matawhāiti Residence is the only PPO residence established under s 114 of the Act. It is a 1.055 hectare (10,550 square metre) facility within the external boundary

1      Public Safety (Public Protection Orders) Act 2014, s 26.

2      Chief Executive of the Department of Corrections v Douglas [2016] NZHC 3184.

3      Public Safety (Public Protection Orders) Act 2014, s 21.

4      Public Safety (Public Protection Orders) Act 2014, s 20.

of the land gazetted as Christchurch Men’s Prison (but outside the main secure perimeter  of   the  prison  itself).   Matawhāiti  Residence  was  operationalised  on  9 January 2017.

[9]    Matawhāiti Residence is a community-like residence, with residents accommodated in blocks of three separate self-contained units. Each resident’s unit has a living room, bedroom, bathroom, kitchen and laundry facilities, with a small garden and veranda area. Also within the residence is a multipurpose residents’ community and staff administration building.

[10]   From the time the residence opened a wide range of recreational activities have been made available to residents, as well as targeted rehabilitative opportunities such as psychological treatment.

[11]   Residents cannot leave Matawhāiti Residence without being granted a leave of absence from the Chief Executive or his delegate.

[12]   Leave from the residence is governed by s 26 of the Act. Under that section the Chief Executive or his delegate may grant a resident leave:

(a)to undergo or receive medical or dental examinations or treatment;

(b)to attend hearings and proceedings under the Act to which the resident is a party;

(c)to attend any other hearings in a proceeding if the attendance of the resident is required by the court or under an enactment;

(d)to attend a rehabilitation programme identified in the resident’s management plan; or

(e)for humanitarian reasons.5

5      Public Safety (Public Protection Orders) Act 2014, s 26(1).

[13]   In determining whether a leave of absence should be granted to enable a resident to attend a rehabilitation programme identified in the resident’s management plan or for humanitarian reasons, the Chief Executive or his delegate must have regard to:

(a)whether the risk of serious sexual or violent offending during the period of the leave is reasonably manageable;

(b)the extent to which the resident must be supervised while absent; and

(c)the benefit of the proposed leave to the resident and others.6

[14]   During a leave of absence the resident must be appropriately escorted and supervised.7

[15]   At all material times the power to grant a leave of absence was delegated by the Chief Executive to the Residence Manager of Matawhāiti Residence.

[16]   In this proceeding, the applicant impugns the policy formerly in place at the Matawhāiti Residence concerning leave from that residence.

[17]   Pursuant to that policy, residents were only to be granted a leave of absence from Matawhāiti Residence to visit dying significant relatives, go to funerals of people significant in their lives, or for other tragic personal circumstances (the former policy). A corollary of the former policy was that residents were not to be granted a leave of absence from Matawhāiti Residence to enable them to interact with the community and undertake normal community activities, such as visiting a supermarket.

[18]   The policy was amended in 2019 to enable residents to be granted a leave of absence to visit and make purchases from a coffee cart that parked on the external driveway of Matawhāiti Residence, directly outside its main gate, and to go on walks around the outside of the perimeter of the residence. Under the amended policy

6      Public Safety (Public Protection Orders) Act 2014, s 26(2).

7      Public Safety (Public Protection Orders) Act 2014, ss 26(3) and 73(1).

residents were still not to be granted leave to undertake activities in the community, save in the circumstances described in the preceding paragraph.

[19]   The former policy was criticised on a number of occasions by the review panel established under s 122 of the Act and was also criticised by the Ombudsman in his “Report on an Unannounced Inspection of Matawhāiti Residence under the Crimes of Torture Act 1989” published in December 2020.

[20]   The former policy was informed by an interpretation of “humanitarian reasons”, which in effect equated that phrase with “exceptional reasons”.

[21]   The Department accepts that interpretation was incorrect. The Department now accepts that “humanitarian reasons” in s 26 bears its ordinary meaning, namely “involved in or connected with improving people’s lives and reducing suffering” and that s 26 does not preclude a leave of absence being granted to enable a resident to undertake certain activities in the community.8 That interpretation is informed by the objects and principles of the Act, namely that it is not an objective of the Act to punish persons against whom orders are made under the Act and that persons who are detained in a residence under a PPO should have as much autonomy and quality of life as possible, while ensuring orderly functioning and safety within the residence.9

[22]The former policy was superseded in March 2021.

[23]   Mr Douglas does not take issue with the present policy concerning leave from Matawhāiti Residence, pursuant to which he and other residents are regularly granted leaves of absence to undertake activities in the community. He seeks reassurance that this present policy will remain in force and he will continue to get leave (subject, of course, to full compliance with any necessary conditions).

[24]   Under the present policy residents and staff actively work together to identify opportunities for leave, which can be centred around the hobbies and interests of each resident, provided they link in with the resident’s rehabilitation/reintegration goals.

8      Cambridge           Online           Dictionary           Definition           of           “humanitarian”:

access 29 January 2022.

9      Public Safety (Public Protection Orders) Act 2014, ss 4(2) and 5(d).

Once an opportunity is identified residents and staff work together to complete a leave proposal and risk assessment for each new type of leave proposed.

[25]   Leave proposals are then considered by the residents multidisciplinary team (RMDT), consisting of the Residence Manager, Occupations Lead, occupational therapist and supporting psychologist. If the RMDT considers the leave proposal is appropriate a recommendation is made to the Matawhāiti Clinical Governance Group (comprised of the Residence Manager, senior regional advisors and representatives from Psychological Services, Community Corrections and Corrections High-Risk Response Team) for leave approval. If the RMDT’s view is that the proposal needs to be amended that will be discussed with the resident and staff will work with the resident to make the necessary changes.

[26]   After considering a leave proposal the Matawhāiti Clinical Governance Group will then make recommendations to the National Intensive Residential Support (IRS) Advisory Board about whether that Board should endorse the leave application. The IRS Advisory Board exists to provide centralised guidance for the management of those residing at Matawhāiti and other houses on prison land. The IRS Advisory Board is comprised of senior Corrections staff and met for the first time in January 2021.

[27]   Once a resident has received an endorsement for a particular type of leave by the IRS Advisory Board, the Clinical Governance Group provides advice to assist the Residence Manager in making decisions regarding authorising leave applications on individual occasions thereafter.

[28]   The decisions of the Clinical Governance Group are informed by a number of factors, including a close review of the Behaviour Observation Recording Sheets of the resident in question.

[29]   Any request to revoke a resident’s leave authorisation is to be referred to the IRS Advisory Board with an overview of the reasons for the revocation. Leave is never revoked or withheld as a form of punishment.

[30]   The Review Panel have also commented favourably on the leave policy currently in place at Matawhāiti Residence:10

It was pleasing to hear from both Mr Douglas and the Residence Manager, Ms Brussoves, that outings are now occurring on a regular basis; and within problem. Mr Douglas was enthusiastic about the value and gains achieved through outings; whether for specific reasons (shopping, banking, etc, banking) or for exercise and pleasure. He was also very positive about the introduction of contacts with people at nearby Toruatanga; a residence for former prisoners who are transitioning back into the community, or in need of long-term care.

Result

[31]   The Chief Executive accepts the former policy was unlawful, in that it was based on a misconstruction of the Act.

[32]   The Chief Executive accepts that on a proper construction of the Act the respondent or his delegate retains a discretion to grant a leave of absence to residents to enable them to undertake activities in the community if granting such a leave of absence would benefit the wellbeing of the resident. This discretion must be exercised having regard to the mandatory relevancies in s 26(2) of the Act.

[33]   The former policy had the effect of precluding the Chief Executive or his delegate from meaningfully engaging with the discretion conferred by s 26 of the Act and of denying a power that the law had conferred.11 The former policy was therefore ultra vires the Act.

[34]   Even though the former policy has been superseded, the parties consider a declaration would still be of value in that it would vindicate Mr Douglas’ interests and may also be of use in guiding future policy development.12

[35]   I acknowledge that Matawhāiti Residence is a unique facility for those subject to PPOs. It is the first such residence to be administered under the Act. To an extent,

10 Re Douglas, decision of the Review Panel, 21 October 2021 at [7].

11 Westhaven Shellfish Ltd v Chief Executive, Ministry of Fisheries [2002] 2 NZLR 158 (CA) at [48].

12 For a discussion on the court’s discretion to grant declaratory relief in circumstances where an unlawful policy has been superseded see Smith v Attorney-General [2019] NZHC 835, (2019) NZAR 767 from 88.

the Chief Executive and the Department have quite naturally been trying to find their way in unchartered territory. The response to this litigation is evidence of their bona fides in working in accordance with the principles of the Act.

[36] I agree with the parties that the declaration sought should be made for the reasons set out in [33].

Orders

[37]   A declaration shall issue that the policy in place at Matawhāiti Residence from January 2017 to March 2021 pursuant to which residents were not to be granted a leave of absence from Matawhāiti Residence to enable them to undertake activities within the community (appropriately supervised) save in exceptional circumstances was ultra vires the Public Safety (Public Protection Orders) Act 2014.

[38]There will be no orders as to costs.

Doogue J

Solicitors:

Hansen Law, Christchurch Crown Law, Wellington CC:

A Bailey, Christchurch