Edmonds v New Zealand Parole Board
[2015] NZHC 386
•16 March 2015
IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY
CIV2014-409-000564 [2015] NZHC 386
BETWEEN ABRAHAM AKARANA EDMONDS
Plaintiff
AND
THE NEW ZEALAND PAROLE BOARD Defendant
CIV 2014-409-000614
BETWEEN JOHN FREDERICK ERICSON Plaintiff
ANDTHE NEW ZEALAND PAROLE BOARD Defendant
Hearing: 4 March 2015 Appearances:
M Starling for Plaintiffs
D Perkins as Amicus CuriaeJudgment:
16 March 2015
JUDGMENT OF DUNNINGHAM J
Introduction
[1] Mr Ericson and Mr Edmonds both seek judicial review of recent decisions of the Parole Board (“the Board”) declining them parole. While the factual circumstances of each case differ, both raise questions about the correct application of the statutory test for the grant of parole. That is why the two cases were heard together, and why it is convenient to set out my findings in a single decision.
[2] Both plaintiffs plead a breach of legitimate expectation. They say they were led to believe that if issues of concern raised in previous Board hearings were
EDMONDS AND ERICSON v THE NEW ZEALAND PAROLE BOARD [2015] NZHC 386 [16 March 2015]
addressed, they would be released on parole at the next hearing, but parole was still declined.
[3] They each claim the Board took into account irrelevant considerations and failed to take into account relevant consideration in declining them parole, although the particular considerations pleaded in each case differ.
[4] Finally, each plaintiff claims that, in all the circumstances, the decision to decline parole was unreasonable in the sense that no reasonable decision maker in the position of the Board would make that decision.
[5] Both plaintiffs seek:
(a) a declaration that the relevant decision declining them parole is invalid;
(b) an order quashing or setting aside the decision and ordering the
“immediate reconsideration of their fresh application”; and
(c) an award of costs (which submissions elaborated should be on 2C
basis).
[6] The Board is named as the defendant. However, the Board explained its policy was to take a neutral role in challenges to particular decisions it makes under the Parole Act 2002 (“the 2002 Act”). The exception is when the proceedings raise issues of principle that extend beyond the immediate case, which was not the case here. In order that the Court heard full argument on the issues, Mr Perkins was appointed as amicus curiae by the Court to act as contradictor in respect of both matters.
Relevant factual matters
Relevant factual background for Mr Ericson
[7] In 2000, Mr Ericson pleaded guilty to and was convicted of murdering his wife and was sentenced to life imprisonment on 19 April 2000. Mr Ericson
subsequently sought special leave to appeal his conviction for murder, claiming he was forced to plead guilty by his lawyer. That application was declined by the Court of Appeal on 21 February 2007.
[8] Mr Ericson first appeared before the Board in 2009. In the written decision of the Board it was recorded that:
… he has done nothing to seriously confront the terrible murder which occurred and for which he was convicted. He says he has no memory of the offending. He is assessed by the latest psychological report as being of moderate risk of reoffending. …
He has no address and no release proposal. There is no possible way that he can expect to be released at the present time.
[9] By 2010, the position had not changed in any substantial way. Mr Ericson remained assessed as at moderate risk of reoffending. The Board noted that:
A complication in his case is that he has not been able to remember details of what happened. He does not deny his offending. He simply says that he cannot recall any of it and he blames that on medication that he received at the time.
[10] At that time he was still assessed as being at moderate risk of reoffending and he had not engaged in any meaningful psychological programmes or any other interventions to address his offending behaviour. While the Board saw him as being in the reintegration phase of his sentence, he needed to work on his release proposals and safety plans and on the support that would be required on his eventual release. The Board concluded that:
For now we are not brought to a stage where we consider that he is no longer an undue risk to the safety of the community and parole will be declined.
[11] In 2011, when he became before the Board again, the Board again declined parole saying:
… he has now embarked upon the reintegration phase of his sentence, … [but] … [h]e understands that it is likely to be a lengthy and measured process.
[12] Mr Ericson sought review of that decision. However, the reviewer upheld the
Board’s decision and concluded that:
… a major difficulty in dealing with [this particular] offender … is the paucity of information normally available in establishing what is to be done to mitigate the prospect of recurrence [of his offending].
[13] In 2012, the Board noted Mr Ericson’s modest RoC*RoI score1 and minimum security rating and that he had progressed for a period of time to a self care unit. However, he had discharged himself from that unit and commenced a hunger strike and, ultimately, the Board considered little or no progress had been made since his last appearance. The Board noted the importance of him working with a psychologist to deal with his anger and frustration and concluded he was unlikely to be able to take any worthwhile re-integrative steps until there had been further psychological intervention.
[14] In 2013, Mr Ericson elected not to appear before the Board, but instead instructed counsel to appear and read a statement. Given the Board had no evidence, including no release plan, to demonstrate that his risk had reduced to a point where he would not pose an undue risk to the community in the event of release, parole was declined. Again Mr Ericson sought review of that decision which concluded he had failed to make out any ground for review.
[15] The 2014 Board hearing is the one which is challenged by this judicial review application. Before that parole hearing, the Board was provided with an updated psychological report prepared by Dr Mattson. She noted that:
(a) Mr Ericson did not meet the criteria for release to work as he had not completed offending related intervention;
(b)Mr Ericson had been assessed for treatment programmes to address his offending but, because of his relatively lower risk of reoffending, he had been considered unsuitable for a high risk Special Treatment Unit Programme (STURP) for violent offending and, in any event, his “continual challenges of his conviction and sentence are likely to act
as a responsivity barrier to treatment”;
1 Risk of re-Conviction x Risk of re-Imprisonment model.
(c) while he may be eligible for the Medium Intensity Rehabilitation Programme (MIRP) she expressed concerns about whether, if he maintained his denial of responsibility for the offence, that might preclude him from benefiting from such interventions;
(d)while the psychologist considered he would “likely benefit from a group based treatment programme … his behaviour has previously been assessed as likely to be disruptive to the treatment environment”. If he was assessed as not suitable for a MIRP, then he could be referred for a brief individual intervention with the Christchurch psychologist office;
(e) importantly, “the focus of any intervention would need to be … identifying the pre-disposing factors and triggers for his violence followed by insight and skill development to reduce the impact of those factors in the future. In that way, specific focus on the offence of killing his wife may not be necessary to achieve development of an appropriate safety plan”; and
(f) to enable any intervention to be successful, “Mr Ericson would either have to complete the legal challenges to his conviction and sentence to their entirety, or develop a method of reducing their impact on his ability to focus on the internal factors that have led him to significant, fatal violence against his wife”.
[16] Her summary of his risk and risk management was that, while Mr Ericson’s long term risk of future violent offending was low, it could increase if he were to commence a new romantic relationship and experience heightened stress. Also, given his explanation that his violence was medication induced, it was possible that medication issues would remain a risk.
[17] In its 2014 decision declining parole, the Board put significant focus on the psychologist’s report and supported her recommendation that Mr Ericson be assessed for the MIRP, and, even if found unsuitable, that he be referred for brief individual
psychological intervention. Mr Ericson again sought review of that decision under s 67(1) of the 2002 Act but was unsuccessful.
Relevant factual background for Mr Edmonds
[18] Mr Edmonds has a criminal history which includes a number of convictions for sexual offending. The first, in 1968, was for assault with intent to rape, for which he received two years’ imprisonment. In 1972 he was convicted of attempted rape and sentenced to four years’ imprisonment and in 1978 he was convicted of attempted rape and sentenced to eight years’ imprisonment, later reduced to six on appeal. On that occasion the trial judge gave Mr Edmonds a “very strong warning” that if he reoffended in similar manner he was likely to be sentenced to preventive detention.
[19] In 1987 Mr Edmonds was convicted on two charges of sexual violation by unlawful sexual connection, wounding with intent to facilitate the commission of a crime and indecent assault upon a male. He was sentenced to preventive detention on the sexual violation charges. Throughout his sentence Mr Edmonds has denied his sexual offending although he has admitted the violence offending.
[20] Mr Edmonds has appeared before the Board from at least 2003. However, he has been repeatedly denied parole on the basis of his assessed high risk of reoffending, his denial of the sexual offending, and his failure to take practical steps to prepare a release proposal.
[21] The 2013 Board decision is relevant, as the applicant seeks to contrast his preparation for that hearing with his preparation for the 2014 hearing, in arguing that the Board’s 2014 decision was erroneous.
[22] In February 2013 the Board declined parole. It assessed his release proposal as inadequate and said his fundamental problem was the extent to which he accepted responsibility for his offending and was prepared to engage in offence-specific treatment. While the Board considered making a postponement order, it did not do so. Instead it gave Mr Edmonds and his supporters the opportunity to present a properly formulated and robust release, reintegration and safety plan. However, it
continued to express concern about Mr Edmonds’ denial of responsibility for his
sexual offending and his failure to undertake any rehabilitative programmes.
[23] When Mr Edmonds appeared before the Board in 2014, a Department of
Corrections psychologist had prepared a report. It noted that:
(a) Mr Edmonds continued to deny any sexual aspect to his offending and as a result he had not completed any offence related treatment interventions;
(b)Mr Edmonds considered that given his current physical condition he was in no state to be able to offend sexually if released;
(c) Mr Edmonds presented a high risk of reoffending based on both static and dynamic risk measures. While that level of risk was likely moderated by his health difficulties and advancing age, firm conclusions could not be made about any change in his assessed level of risk; and
(d) Mr Edmonds’ release plan did not mitigate his high risk of
reoffending, particularly given his lack of insight into his offending.
[24] When the Board heard Mr Edmonds’ parole application in February 2014, it was presented with a release plan that involved assistance and support from Pathways Trust, the Salisbury Street Trust Foundation and the Salvation Army. As Mr Starling explained it, the three organisations were well known to the Parole Board for their work with parolees and in this case, rather than working separately from each other, they had co-operated to present a “well thought out and integrated proposal to manage the applicant in the community” including offering a “circle of support” as well as access to medical care, mentoring, alcohol and drug treatment, and social support. Mr Starling described the release plan as a “gold standard” proposal.
[25] The Board acknowledged the improvements which featured in the new release plan, including the year long period of supported accommodation with the Salvation Army, rather than the usual three month term. However, it concluded:
Neither Community Probation, nor Mr Nelson, the writer of the latest psychological assessment report, support this plan. And neither do we.
[26] While acknowledging the plan included more settled accommodation of which was available for a longer term and the possible mitigating effect of Mr Edmonds now being 69 years old and with obvious health issues, those factors did not, in the Board’s view, have a significant impact on his assessed risk of recidivism. The critical concern for the Board was that Mr Edmonds:
… continues to deny not only his index offending, which he says was a case of mistaken identity, but all the sexual crimes he has been convicted of. Consequently, he remains an untreated sex offender. He is not even prepared, as some deniers are, to work with the psychologist to prepare a relapse prevention plan which would alert him to high risk situations and assist him to put in place strategies for avoiding them.
The Board therefore queried whether “any plan which does not include ongoing 24- hour support and supervision would be adequate to mitigate his high risk of sexual reoffending”.
Approach on judicial review
[27] Both applications for review required examination of how the Board considered the factual material before it. However, that does not mean this Court will embark on a substantive merits based review of the Board’s decision. Despite recent developments in the scope of judicial review, there is still a clear distinction between the scrutiny of a decision-making process on judicial review, and an appeal on the merits of the decision reached. The conventional expression of that
distinction is that of Richardson J, where he said:2
Judicial review is concerned not with the decision but with the decision making process.
2 Fraser v State Services Commission [1984] 1 NZLR 116 (CA) at 127.
That distinction has been reiterated by the Courts on numerous occasions since. For example, French J said recently:3
… contrary to popular belief, judicial review is not an appeal. It is not about
the Court considering information afresh and coming to its own views.
[28] Consequently, the decision being challenged will only be set aside if there has been an error by the Board of the type pleaded. There is no scope for me to set the decision aside simply because I might have reached a different view on the facts which were presented to the Board.
The statutory test for the grant of parole
[29] Pivotal to the issue of whether the Board fell into error, was the question of the statutory test to be applied in deciding whether to grant parole.
[30] As Mr Starling pointed out, the repeal of the Criminal Justice Act 1985 and the introduction of two separate Acts, the Sentencing Act 2002 and the Parole Act 2002, was significant. First, the fact that Parliament chose to split the legislation governing sentencing decisions from the legislation governing parole decisions implies that sentencing decisions and decisions to grant parole are not extensions of one another.
[31] More importantly though, changes to the parole decision process were introduced by the 2002 Act. The key changes were:
(a) neither “change in attitude” nor “nature of offending” are now
considerations for granting parole;4
(b)the paramount consideration for the grant of parole is now the “safety of the community”;5
(c) the fact that offenders must not be detained longer than is consistent with the safety of the community is a mandatory consideration;6
3 Aorangi School Board of Trustees v Ministry of Education [2010] NZAR 132 (HC) at [8].
4 As then were under s 104 of the Criminal Justice Act 1985.
5 Parole Act 2002, s 7(1).
(d)there is now a test of “undue risk” and, in applying that, the Board must consider both the likelihood of further offending and the nature and seriousness of any likely subsequent offending.7
[32] As was confirmed in the decision of the Court of Appeal in Reid v New Zealand Parole Board, considerations of general deterrence are not relevant when considering applications for release on parole or home detention, but factors relating to the particular individual that may affect the safety of the community, are relevant. 8
[33] The test articulated in s 7 and s 28(2) of the 2002 Act, that the offender not pose an “undue risk to the safety of the community”, was considered in Clarke v Parole Board.9 Chisholm J explained that the term “undue” when used describe the risk, meant that the risk to the community “was disproportionate to, and outweighed, [the prisoner’s] personal interests in retaining his liberty”.10 To that observation, I would add it also has to be balanced against the public’s interest in facilitating the reintegration of the offender into society.11
[34] I am satisfied that the term “undue risk” is a deliberately elastic test. It is not met by reference to any set or specific threshold such as a low RoC*RoI assessment. Each application for parole must be considered in light of all factors which may be relevant to that person’s risk of offending. While an offender might be “low risk” based on an actuarial calculation, their personal circumstances may still point to the risk to the community being “undue” because the Board is not satisfied that that particular applicant has demonstrated his or her risk of reoffending can be appropriately managed.
[35] Mr Starling also drew my attention to statistics issued by the Department of
Corrections which demonstrate that prisoners serving indeterminate sentences were now spending longer in prison before being released than ever before and, by
6 Section 7(2)(a).
7 Section 7(3)(a) and (b).
8 Reid v New Zealand Parole Board (2006) 22 CRNZ 743 (CA).
9 Clarke v Parole Board HC Christchurch CRI-2005-409-11.
10 At [35].
11 Section 28(2)(b).
implication, that the Board was not correctly applying the simpler 2002 Act test for release.12 However, I do not consider such statistics are of assistance in scrutinising the lawfulness of individual decisions. I have no way of knowing what range of factors may be contributing to that statistical outcome and, more importantly I cannot deduce from that trend that the statutory test is being wrongly applied in the specific cases before me.
[36] In light of that discussion I turn now to the arguments advanced for
Mr Ericson and Mr Edmonds.
Mr Edmonds’ claims
Breach of legitimate expectation
[37] Mr Edmonds’ pleadings claimed that he had “a legitimate expectation that if [he] addressed the issues raised in previous decisions that, all things remaining equal, he would be released on parole at the hearing:
… having addressed the test of undue risk. However, in breach of that legitimate expectation, the Board had “declined release on parole for reasons that ignore the issues raised in the previous decisions.
[38] It is sufficient for this discussion to set out the three stage test articulated by the Court of Appeal in Comptroller of Customs v Terminals (NZ) Limited, for considering claims of legitimate expectation: 13
The first is to establish the nature of the commitment made by the public authority whether by a promise or settled practice or policy. This a question of fact to be determined by reference to all the surrounding circumstances. A promise or practice that is ambiguous in nature is unlikely to be treated as giving rise to a legitimate expectation in administrative law terms.
[126] The second is to determine whether the plaintiff’s reliance on the promise or practice in question is legitimate. This involves an inquiry as to whether any such reliance was reasonable in the context in which it was given.
12 Department of Corrections Topic Series Report: Offenders on Indeterminate Sentences
(13 October 2014).
13 Comptroller of Customs v Terminals (NZ) Limited [2012] NZCA 598, at [125-127], [2014]
2 NZLR 137.
[127] The third, and often most difficult part of the inquiry, is to decide what remedy, if any, should be provided if a legitimate expectation is established.
[39] In deciding whether a commitment could be made and relied on in the context of a Parole Board hearing (and thus given rise to a legitimate expectation), it is important to look at the statutory context in which parole decisions are made.
[40] The starting point must be that the prisoner has no entitlement to release, and community safety is paramount.14 Section 28(1AA) provides the Board:
… must bear in mind that the offender has no entitlement to be released on parole and, in particular, that neither the offender’s eligibility for release on parole nor anything else in this Act or any other enactment confers such an entitlement.
Parole may only be granted if, at the time it is being considered, the prisoner can demonstrate they do not pose an undue risk. The statutory context does not allow a commitment to arise which would override or alter that statutory test.
[41] I also consider that, had the Board promised in 2013 that Mr Edmonds would be released on parole if he put forward a more robust release plan, it would have unlawfully fettered the exercise of its powers. On each occasion the Board considers parole it must address the question of undue risk afresh, considering all relevant information available at the time, as is required by s 7(2)(c).
[42] I also consider that even if the legal context permitted a legitimate expectation to arise, Mr Edmonds’ pleading of legitimate expectation fails on the facts. Implicit in his pleading is that he considers, on the facts, he had satisfactorily addressed the test of undue risk. I was invited to draw that conclusion from the quality of the release plan he put forward to the Board. However, that is a factual determination and, for reasons discussed below, it is clear the Board had reasons for considering that the release plan still did not incorporate a satisfactory relapse
prevention plan.
14 Sections 28(1AA) and 7(1).
[43] I also accept it is not apparent from the record what facts gave rise to a substantive legitimate expectation that Mr Edmonds claims he had. Nowhere on the face of the 2013 decision of the Board does it suggest that if Mr Edmonds simply strengthened his release plan, that parole would inevitably follow. On the contrary, at all times the Board has expressed concern with his denial of responsibility for his offending and the consequent failure to complete any rehabilitative programme and recorded that this was a substantial barrier to any decision to grant parole. It was therefore unsurprising that in 2014, while the Board acknowledged that the release plan was an improvement, it concluded it was still inadequate to mitigate his high risk of sexual reoffending.
[44] In summary, the ground of legitimate expectation is simply not relevant in this context. What any prisoner can expect is that their application is considered fairly, in light of the statutory test and having considered all relevant material which bears on whether that test is satisfied. Whether that has occurred in this case is discussed under the subsequent headings.
Taking into account irrelevant consideration
[45] The next alleged error in the Board’s decision is the claim that the Board took into account Mr Edmonds’ continued denial of the index offences when it is not explained in the decision how this denial elevates the appellant’s risk of offending on parole to an undue level.
[46] As was explained in the Chief Executive of the Department of Corrections v
Wilson:15
… denial of previous sexual offending is not a risk factor. It may be relevant, however, in assessing whether an offender can realistically address the issues underlying that offending.
[47] On behalf of Mr Edmonds, Mr Starling submitted that the approach in R v
Reha, was relevant.16 That case involved a sentencing appeal and the issue of
15 Chief Executive of the Department of Corrections v Wilson [2012] NZHC 1634 at [71].
16 R v Reha CA 458/98, 5 March 1998 at 5.
whether a sentence of preventive detention was appropriate. The Court observed that:
When sexual offending is involved and there are indications of recidivism such that without treatment further offending is likely, denial is highly material because while it is maintained, treatment is impossible.
However, it also concluded that in the offender’s particular circumstances, the likelihood of further sexual offending was low and a lesser sentence than preventive detention should be imposed. I am satisfied that Reha was a particular case where, on the facts, denial was not indicative of an increased risk of reoffending. It does not elevate that finding to a general principle.
[48] The question in Mr Edmond’s case must be whether his denial could reasonably be considered by the Board as relevant to his risk of reoffending. In that regard, I found the transcript of the Parole Board hearing useful. In it, one of the Board members, Dr Skipworth, asked whether Mr Edmonds’ position of maintaining his innocence on his four previous sexual offending convictions was maintained. When Mr Edmonds affirmed that it was, Dr Skipworth observed:
… we are told that in the time period leading up to your previous offending there were no particular warning signs or problems. You were in a, on the last occasion, I believe, you were happily married, you were not drinking excessively. Those around you did not perceive you to be having any kind of difficulties and I guess you would say that there was no offending, but of course the Court have convicted you and have done so on four occasions for incidents that you say didn’t happen and which don’t seem to have been associated with any kind of what we might call early warning signs, so the support network that you have, what exactly is it that they’re supposed to be looking out for in order to give some indication that you might be about to reoffend?
[49] It is clear that the relevance of Mr Edmonds’ denial of his sexual offending from the Board’s perspective, was that it meant that the Board could not be satisfied that his relapse prevention plan would alert him to high risk situations and assist him to put in place strategies for avoiding them. That is why the Board concluded that neither GPS monitoring, nor residential restrictions would necessarily assist in mitigating his high risk of sexual reoffending.
[50] I am satisfied therefore that the appellant’s denial, and the consequent inability of the release plan to address risk factors for offending, was a relevant consideration and the Board was not in error in taking it into account.
Failing to take into account relevant considerations
[51] Mr Starling also submitted that the Board failed to take into account both the very long period of time since the appellant had offended and his age and failing health.
[52] The appellant is now 70 and has acknowledged health problems. He suffers from moderately severe emphysema and becomes breathless with exertion. Given his age and the time which had elapsed since he had offended, it was also submitted that his risk of sexual offending must be recognised as having decreased.
[53] I accept that the identified factors were relevant information which bore upon the mandatory considerations the Board was obliged to address. However, I am also satisfied that the Board did consider them, and took into account the evidence it had on the impact of those factors on Mr Edmonds’ risk of reoffending.
[54] First, the length of time Mr Edmonds had spent in prison (and therefore since he last offended) was acknowledged in the Board’s decision. The Board also had before it the 2013 addendum psychological report which recorded that Mr Edmonds had a “marked tremor” in his left hand, and was “rather breathless”, needing to use inhalers to assist him with his breathing before commencing the interview. It also recorded that Mr Edmonds had maintained employment in the engineering unit of the prison and, while unable to use welding equipment, was able to continue with tasks such as driving the forklift. The report concluded that although consideration had been given to Mr Edmond’s advancing age and health issues, these were not seen to significantly impact on his assessed risk of recidivism. Furthermore, at the parole hearing his lawyer advised that, while Mr Edmonds had emphysema, he was “still relatively healthy”.
[55] The Board was clearly alive to Mr Edmonds’ age and health, noting both issues at paragraph 11 of their decision, but they accepted advice that those factors
did not have a significant impact on Mr Edmonds’ assessed risk or recidivism. I am satisfied therefore that the Board took those factors into account and, to the extent they had evidence about how those factors bore on their decision, they were factored into the Board’s consideration of whether Mr Edmonds posed an undue risk.
Unreasonableness of decision
[56] The last ground of review was that, in the circumstances which existed in
2014, including the comprehensive release plan then before the Board, no reasonable Board could refuse parole. This submissions harks back to Mr Starling’s assertion that this was a “gold standard” release plan and, given Mr Edmonds age and health, and 28 years since his offending, that it was unreasonable not to release him.
[57] However, looked at in the round, the position in 2014 had not addressed the concern as set out in 2013 Board decision, where the panel convenor recorded that:
Over the years many attempts have been made to formulate a plan which will eventually lead Mr Edmonds out of prison and safety into the community. But to be successful, the plans need some positive input from Mr Edmonds himself and sadly, that has been, and continues to be, lacking.
[58] In 2014 a significantly improved plan was put forward but, as the Board explained, it still could not incorporate a relapse prevention plan, including strategies for avoiding high risk situations, without Mr Edmonds’ willingness to address those issues.
[59] While there may well come a time when Mr Edmonds’ age and physical frailty inevitably do counteract any undue risk of reoffending, I cannot say that the Board’s weighing of these factors on this occasion was unreasonable.
[60] For all the above reasons, Mr Edmonds’ application for review of the Board’s
2014 decision is declined.
Mr Ericson’s claims
Breach of legitimate expectation
[61] Mr Ericson pleaded a legitimate expectation that if he “addressed” his risk of reoffending “he would be released on parole”, but instead he was declined parole for reasons that “ignore the statutory test”. However, this pleading assumes a factual basis which was clearly contested on the evidence.
[62] In submissions, the alleged legitimate expectation was framed slightly differently, asserting that the expectation was if Mr Ericson’s application “addressed the issues raised in previous decisions that, all things remaining equal, he would be released on parole at the hearing, having addressed the test of undue risk”. The submissions went on to say that the Board “declined release on parole for reasons that ignore the issues raised in the previous decision”.
[63] Again, Mr Perkins’ submissions focussed on the fact that the starting point for considering an application for parole is that the prisoner has no entitlement to release, and community safety is the paramount consideration. Given the statutory framework there is, therefore, no room for a legitimate expectation of the kind Mr Ericson is claiming, to arise. Furthermore, on the facts, Mr Ericson’s 2014 application cannot be said to have addressed his risk of reoffending, particularly when there was no release plan presented for the Board to consider.
[64] Again, I accept that in the statutory context, the concept of legitimate expectation is irrelevant. What is relevant is the statutory test for the grant of parole, which must be considered and applied, having regard to all relevant material before the Board at the time of the application. For the reasons I go on to discuss, I consider the Board did correctly consider Mr Ericson’s application. Therefore, strictly speaking, it is unnecessary for me to consider what facts could have given rise to any substantive legitimate expectation, as a consequence of the 2013 decision. However, for completeness, I note that in the absence of a comprehensive release plan, it is self-evident that he had not addressed his risk of reoffending, and the claim of breach of legitimate expectation fails.
Taking into account irrelevant considerations
[65] Mr Ericson argues that the Board erroneously had regard to the lack of “criminogenic interventions” undertaken by Mr Ericson despite him not being considered high enough risk by the Department to be eligible for them, and without explaining why the failure to undertake such intervention would contribute to lowering his risk of offending.
[66] There was considerable discussion in the hearing about the fact that some of the programmes provided by the Department of Corrections to address offending behaviour were not available to Mr Ericson because of his low assessed risk of reoffending. There was certainly an irony in the fact that it was recommended that he undertake criminogenic interventions to manage his risk of reoffending, but that the Department of Corrections classified him as at too low a risk of reoffending to qualify for the usual programmes.
[67] However, the claim that the Board required him to complete programmes he was not eligible for, and then drew adverse inferences from his failure to do so, misrepresents the Board’s position. What the Board had considered relevant was the need for “targeted psychological intervention to address factors that may have contributed to his violent behaviour, and that therefore may cause him to be a risk to public safety in the future”. Both the Board and the psychologist, which prepared a report for the Board, had considered the possibility he would not be eligible for the usual programmes and had considered and suggested an alternative approach of one- to-one psychological counselling. Mr Ericson had not taken that option up and that failure to undertake work to identify the factors that may have contributed to his violent behaviour, was the relevant factor in the Board’s decision. It could not be said to be an irrelevant consideration.
[68] Furthermore, I note that Mr Ericson’s ineligibility for programmes such as MIRP and STURP, while frustrating, is not determined by the Board and cannot influence its application of the statutory test. Whether or not the Department of Corrections is in a position to resource programmes that will help Mr Ericson address his risk of offending is not the relevant issue from the Board’s perspective,
although the Board did identify an alternative approach if that was the position. The Board was required to apply the statutory test and Mr Ericson’s failure to undertake any criminogenic interventions was relevant and bore directly upon the paramount consideration of community safety.
Failure to take account of relevant considerations
[69] The pleading that the Board failed to take account of relevant considerations was integrally connected to the previous head of claim. Mr Ericson claims the Board failed to take into account his low assessed risk, and the fact this rendered him ineligible for the criminogenic interventions it was suggesting he participate in. The low risk of reoffending was primarily based on his RoC*RoI assessment, and that was expressly referred to by both the psychologist in her report to the Board and by the Board in its decision.
[70] However, as Mr Perkins submitted, low risk is not the same as no undue risk. The Board also correctly took into account factors personal to Mr Ericson’s situation, including the factors identified which may have contributed to his past violent behaviour and cause him to be a risk to public safety in the future. The Board, therefore, did have regard to this consideration but, for the reasons given, decided it was not determinative of the grant of parole.
[71] The fact that his low assessed risk meant he did not qualify for some of the criminogenic interventions offered by the Department, could not be assumed to mean he would derive no benefit from the programme. Indeed, the Board endorsed the psychologist’s recommendations that he be assessed for MIRP. As already discussed, ineligibility for resources such as departmental programmes could not be conclusive of an offender being eligible for parole and the Board obviously did not consider that to be the case.
[72] I am satisfied that the Board took proper account of his assessed low risk and his consequent ineligibility for certain criminal interventions in a proper way in reaching their decision.
Decision unreasonable
[73] Taking all the above matters into account, I cannot reach the conclusion that the Board’s decision was unreasonable and warrants this Court’s intervention on review. Despite Mr Ericson’s low actuarial assessment of risk, the Board had valid reasons for considering the statutory test had not yet been met by Mr Ericson, in particular because of his failure to undertake targeted psychological intervention to identify risk factors.
[74] Accordingly, the application for review is declined on this ground also.
Costs
[75] Both Mr Edmonds and Mr Ericson have been unsuccessful and neither plaintiff is in receipt of legal aid. Their application has prompted the need to appoint counsel to argue the contrary view, and I was assisted by Mr Perkins’ submissions. While ordinarily the plaintiffs could be required to pay the amicus’ costs pursuant to the provisions of s 99A of the Judicature Act 1908, in my view, this is not an appropriate case to do so. Instead, I order that the amicus’ costs be paid out of the public funds pursuant to s 99A(1)(b) of the Judicature Act 1908.
Solicitors:
Crown Law, Wellington
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