Ericson v Chief Executive of the Department of Corrections

[2013] NZHC 3035

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

CIV-2012-485-2601 [2013] NZHC 3035

UNDER THE  Judicature Amendment Act 1972

IN THE MATTER OF       an application for judicial review

BETWEEN  JOHN FREDERICK ERICSON Applicant

ANDCHIEF EXECUTIVE, DEPARTMENT OF CORRECTIONS

Respondent

Hearing:                   19 September 2013

Counsel:                  Applicant in person

D J Perkins for Respondent

Judgment:                15 November 2013

RESERVED JUDGMENT OF MACKENZIE J

I direct that the delivery time of this judgment is

4 pm on the 15th day of November2013.

Solicitors:           Crown Law Office, Wellington, for Respondent

Copy to:            Mr Ericson

ERICSON v CHIEF EXECUTIVE, DEPARTMENT OF CORRECTIONS [2013] NZHC 3035 [15 November

2013]

[1]      The applicant is serving a sentence of life imprisonment following a plea of guilty in the High Court in 2000 to the murder of his wife.  In this proceeding he seeks judicial review of a number of decisions of prison management.

[2]      The issues to be determined in this proceeding were set out in a statement of agreed  issues,  determined  in  accordance  with  a  direction  given  by  Kós J  on

29 April 2013.  It is convenient to set out (slightly amended) that statement of issues:

(a)       Were  any  of  the  following  three  decisions  of  the  respondent’s

delegate:

(i)on  or  about  24 August 2011,  to  refuse  to  authorise  the applicant’s temporary release from custody in order to participate in a ‘release to work’ program;

(ii)on  or  about  27 October 2011,  to  refuse  to  authorise  the applicant’s temporary removal from prison in order to participate in a shopping excursion;  and

(iii)on  or  about  16 November  2012,  to  refuse  to  authorise  the applicant’s temporary release from custody to visit the Upper Hutt area for four hours on 12 December 2012 in the company of Richard Clement;

unlawful in any of the respects set out in (b).

(b)      Were any of those decisions unlawful in that the decision:

(i)       Was inconsistent with one or more directions of the Board?

(ii)Took into account an irrelevant consideration, being the applicant’s escape from Wellington Prison in 2007?

(iii)     Placed    undue    weight    on    the    applicant’s    escape    from

Wellington Prison in 2007?

(c)      Were any of the three decisions in question (a) unlawful in that, taken individually or collectively, they are inconsistent with the applicant’s rights (affirmed by the New Zealand Bill of Rights Act 1990) to:

(i)       not have retrospective punishment imposed upon him; (ii)      not be exposed to double jeopardy;

(iii)     not be detained arbitrarily;  and/or

(iv)     be accorded natural justice;

because they have had, and/or will continue to have, the effect of extending the term of his imprisonment?

(d)Has  the  respondent  acted  unlawfully  by  refusing  to  provide  the applicant with one-on-one counselling at this time?

[3]      Underlying those specific issues is a wider concern of the applicant, that his prospects of obtaining parole are being hampered by decisions of prison authorities about the management of his sentence.

[4]      The applicant became eligible to be considered for parole in July 2009.  He was first seen by the Parole Board on 15 June 2009.  In its decision,1 the Board noted that family members of the victim were strongly opposed to release.  It recorded that the applicant had applied for the exercise of the royal prerogative of mercy and for a pardon and intended to take other steps.  The Board recorded that the applicant had no address and no release proposal and that there was no possible way that he could

expect to be released then.

[5]      He was seen again on 26 May 2010.  The Board’s decision recorded that the

applicant was not able to remember details of what had happened in his offending and that his application for a pardon was ongoing.2   The Board noted a psychological

1      Parole Board decision of 16 June 2009.

2      Undated decision of the Parole Board.

report which indicated the applicant to be at moderate risk of reoffending and recommended that extended reintegration steps be taken.  The Board noted that he had not been able to engage in any meaningful psychological programmes or any other interventions which would be of assistance in dealing with his offending behaviour.  The Board noted the opposition of family members of the victim to his release.   It also noted guarded support from his family to his release.   The Board said:

9.We do see him as being in the reintegration phase of his sentence.  It is not likely that there will be any change to his views about his ability to remember the offence.  It is time, however, that he spends some time particularly in a one-to-one counselling relationship with a psychologist working on his release proposals and safety plans.  In particular there needs to be work on his support arrangements.  If he is able to connect with his family in a better way then that is going to be crucial for him for the future.

…

11.       There is work for him to do.  In a nutshell that can be encapsulated in the way that the psychologist has by talking about an extended period of  reintegration.   We recommend  that he  have  temporary leaves and home leaves if that can be arranged from prison.   We understand that there would be an override needed for that in view of the escape conviction which he has.  That escape has been explained to us and we understand that there is at least some support for his explanation about that.

[6]      The applicant appeared again before the Board on 24 May 2011.   At that hearing he told  the  Board that  he was  not  contemplating further  legal  steps  in connection with his conviction and sentence.  He accepted that he may have caused the death of his wife, but considered that he was not a murderer.  The Board noted that he had not undertaken any programmes to deal with his offending apart from a Straight Thinking Programme in 2001.   It noted that he was a trusted worker, as indicated by several jobs within the wire.  He now had support of family members and a long time friend and he was confident that once released he would have employment opportunities. The Board said:

10.The  Board  is  satisfied  that  he  has  now  embarked  upon  the reintegration phase of his sentence.  We have explained to him that we support his movement into the community in the gradual way we have explained about.   He understands that that is likely to be a lengthy and measured process.

[7]      The applicant then applied for an earlier parole hearing and that application was considered on 20 December 2011.   The application was declined.   The Board noted his counsel’s concern about the lack of progress with his reintegration.  The Board noted its earlier decision in May that he had embarked on the reintegration phase of the sentence and that a gradual way of proceeding was going to be best and that it was likely to be a lengthy and measured process. The Board said:

8.        We still think that is true.  We see no reason for an earlier hearing.

Mr [Ericson] may be frustrated with the response from Corrections but it is their response and nothing to do with the Parole Board.  In

addition, we read from the latest reports that Mr Ericson seems to

have an ability to self sabotage at key moments and so he needs to reflect also on his own contribution towards the lack of progress.

[8]      The applicant was seen again by the Board in the statutory timeframe on

22 May 2012.  The Board noted a number of developments.  Following a period of about seven months in the self-care unit, the applicant had taken himself out of that unit in November 2011 and for a period went on a hunger strike.  He explained to the Board that he saw that  as the only manner in  which he could protest what he considered  to  be  unfair  treatment  by  the  prison  administration.    The  applicant enlarged upon his grievances about his management within the prison in an increasingly angry manner.  The Board noted the applicant clearly considered that he was still being penalised for his escape in November 2007.  The Board noted that the applicant was considering the possibility of a further appeal to the Court of Appeal to set aside the conviction for murder and that the applicant was, and always had been, prepared to acknowledge that he was guilty of manslaughter. The Board said:

13.In effect, little or no progress has been made since Mr Ericson’s last appearance before the Board.   It seems that until Mr Ericson can move on from his present angry state, and his desire to blame others for his predicament, that he will not make any significant progress.

14.Ms Earl today suggested that any further psychological intervention would not be worthwhile and that it is not sought.   However the Board considers that it is important for Mr Ericson to work with a psychologist.  In particular, Mr Ericson’s present anger and feelings of frustration need to be dealt with professionally.  He is not likely to be able to take any worthwhile reintegrative steps until there has been further psychological intervention.

[9]      Those decisions of the Board give background to the decisions which are the subject of challenge in this application for judicial review.

[10]     I deal first with the three decisions set out at [2](a), and the questions posed about them in [2](b) or (c).  The essence of the applicant’s concern is that the refusal to authorise temporary releases from prison (which would be appropriate and usual for a prisoner eligible for parole), is hampering his ability to satisfy the Board that his release on parole would be appropriate.

[11]     The first issue which I must address is the extent to which any of these decisions is amenable to judicial review, and the scope of any such review.   The intensity of scrutiny undertaken by this Court on an application for judicial review of decisions made in the management of prisons and prisoners has been considered in a

number of cases.  In Drew v Attorney-General, McGrath J said:3

The Penal Institutions Act provides for a regime of prison discipline that is separate from the criminal justice system. It reflects the particular need in the prison context to maintain order within the institutions by punishing conduct which undermines proper authority or orderly community living. Closely linked  to  the  imperative  of  continuing  order  is  the  maintenance  of  the integrity of prison security, which includes security against the introduction and use of illegal drugs within the prison. It is a complaint in relation to the events of unauthorised use of drugs within the prison that gave rise to the disciplinary proceedings against Mr Drew which have become the subject of this appeal.

At the heart of the statutory scheme for prison discipline is the policy that is shared with many countries that responsibility for dealing with misconduct by prisoners should, in general, form part of the governmental function of prison management. In this context the Act contemplates that the principal burden of disciplinary adjudication should fall on those responsible for the operation of the prison. That is achieved by providing under the Act a two tier disciplinary process. At the first level the prison disciplinary system is administered by the senior officers in the prison, with the aim that the great majority of incidents will be dealt with at this level in a fair, timely and effective manner consistent with the need to maintain order. An important safeguard for prisoners who become subject to the process at this level is a right of appeal against any finding by the superintendent that a complaint concerning an offence against discipline has been proved and against the penalties that may consequently be imposed (s 35).

[12]     Those observations, made in the course of a dissenting judgment, have been referred to with approval in a number of subsequent decisions.   In Department of

Corrections  v  Taylor  the  Court  of Appeal  noted  that  those  observations  remain

3      Drew v Attorney-General [2002] 1 NZLR 58 (CA) at [85]-[86].

relevant in the context of the 2004 Act.4 Subsequently, in Taylor v Chief Executive

Department of Corrections, the Court of Appeal said:5

The operation and control of prisons is provided for in the Corrections Act

2004  and  regulations  made  under  its  authority.  The  purpose  of  the corrections system, as stated in s 5(1) of the Corrections Act, is to “improve

public  safety  and  contribute  to  the  maintenance  of  a  just  society”.

Section 6(1)(a)  provides  that  the  “paramount  consideration”  in  decisions about the management of persons under control or supervision is that public safety is maintained. While a prisoner is not wholly deprived of the rights available to other citizens, the particular need in prisons to maintain order and  discipline  has  been  recognised  in  a  number  of  decisions.  In  his dissenting judgment in Drew v Attorney-General, McGrath J commented in relation to the Penal Institutions Act (the predecessor to the Corrections Act):

[85] ... It reflects the particular need in the prison context to maintain order within the institutions by punishing conduct which undermines proper authority or orderly community living. Closely linked to the imperative of continuing order is the maintenance of the integrity of prison security …

This statement was subsequently quoted and adopted by the Court of Appeal in Department of Corrections v Taylor.

That need to maintain discipline within prisons militates against any restriction being placed against the discretionary ability of the Department of Corrections to control prison visits. A court will hesitate before making any order affecting the discretion of a prison manager to control visits, and that hesitation will be even greater when the proposed orders have a mandatory quality in the sense of directing positive action. A court imposition of such positive duties on the prison manager might require the prison manager to use prison resources in a manner which may compromise that public safety (which is the “paramount consideration” as described in [28]).

[13]     In another proceeding by Mr Taylor, Taylor v Chief Executive Department of Corrections, this Court was concerned with an application for judicial review of a prison manager’s decision to issue a visitor prohibition order.6   Clifford J noted that where the manager makes a prohibition order he is acting to protect the security of the prison environment.  He said:7

Furthermore, the consequences of the Court interfering too readily in the Manager’s assessment could adversely effect (sic) the ability of the Manager to ensure the security of the prison.   I am inclined therefore, to afford the Manager significant latitude in his determination.

4      Department of Corrections v Taylor [2009] NZCA 129, [2009] 3 NZLR 34.

5      Taylor v Chief Executive of the Department of Corrections [2010] NZCA 373, [2011] 1 NZLR

112 at [28]-[29] (footnotes omitted).

6      Taylor v The Chief Executive of the Department of Corrections HC Wellington CRI-2006-485-

897, 11 September 2006.

7 At [75].

[14]     In Greer v Prison Manager at Rimutaka Prison, the applicant sought judicial review of decisions by prison authorities relating to access to legal papers and to a computer.8   Ronald Young J stated:9

Many of Mr Greer’s causes of action are essentially complaints that the prison  administration  has not  acted in  a  way that he  considered fair  or appropriate.   While the actions of Corrections administration might be frustrating to Mr Greer these actions would not ordinarily be susceptible to judicial review.   If the Courts were to involve themselves in judicially reviewing management decisions at the level of much of what Mr Greer complains about then they would be unlikely to have time for any other work.  They would essentially be left with the task of micro managing the prisons.  Although I consider the lawfulness of Corrections conduct relating to each cause of action, most of these causes of action are management decisions not susceptible to review.

[15]     In Mitchell v Attorney-General, Collins J, in considering an application for judicial review of the lawfulness of two aspects of the way in which the applicant had been treated as a prisoner, noted that certain decisions are so trivial that they are not  amenable  to  judicial  review.    Collins J  echoed  the  concern  expressed  by Ronald Young J above that judicial review of such decisions would involve the High

Court “micro managing the prisons” and trivialising the judicial review procedure.10

[16]     I consider that judicial review of the decisions on the three applications for temporary release from custody does not fall within the restricted scope of judicial review of prison management decisions.   The statutory power to direct temporary release is contained in s 62 of the Corrections Act 2004.   That section confers a broad  discretionary  power  on  the  respondent.    The  challenge  is  in  essence  a challenge to the merits of the decision, rather than to the legality of the decision, in each case.   Furthermore, each of the decisions was a specific application, the circumstances of which are now past.  Consideration of those specific decisions, on the available grounds of judicial review, having regard to the questions in [2](b) and (c), could not, even if successful, lead to meaningful relief to the applicant.

[17]     Instead, it is appropriate to adopt a broader approach, which addresses the

applicant’s more general concern.  I articulate that concern as being that, in making

8      Greer  v  The  Prison  Manager  at  Rimutaka  Prison  HC  Wellington  CIV-2008-485-1603,

18 December 2008.

9 At [9].

10     Mitchell v Attorney-General [2013] NZHC 2836.

decisions  which  affect  the  applicant’s  sentence,  on  matters  such  as  temporary release, work within the prison and outside the wire, and the available rehabilitative and  treatment  opportunities,  the respondent  has  given insufficient  weight  to  the matters to which the Parole Board will have regard when considering the applicant’s eligibility for parole.

[18]     The decisions of the Parole Board to which I have referred above, in the passages quoted, recognise that the applicant is in the reintegrative phase of his sentence.   It is clear that his eligibility for parole is dependent upon a number of matters.   In particular it is clear from the Board’s decisions that some temporary releases from prison will be a necessary prerequisite to a grant of parole.   Some matters are within the control of the applicant.  Others are dependent upon decisions by the prison authorities in the administration of the applicant’s sentence. Temporary releases, and opportunities for work, both inside the prison and ‘outside the wire’, fall in the latter category.

[19]     The applicant submits that his 2007 escape from prison is being given undue weight by the prison authorities in the decisions on temporary release proposals.  It is apparent from the material before me, that this escape has been a significant factor. It is also apparent, on the material before me, that in assessing the applicant’s risk, the consequences of his escape diminish over time.   The form of security classification review used by the respondent assigns a weight to the risk of escape by attributing a numeric score to that risk.   The numeric score diminishes over time, from a score of eight for an escape within the past year, to one for an escape seven or more years ago.  The weight to be attached to that escape in assessing applications for temporary release and working outside the wire ought similarly to diminish over time.

[20]     That assessment of weight is essentially a matter for the prison authorities and  it  is  not  permissible  for  the  Court  to  substitute  its  own  view  of that  risk. However, the assessment of the weight to be attached to the escape needs to take into account that another important factor in the decision whether to grant a temporary release is the consideration that temporary release is a necessary precondition to the grant of parole.  As the time after the parole eligibility date lengthens, the weight to

be attributed to the need to facilitate temporary releases necessary for the successful application for parole should increase.  It is not apparent, from the material before me, that the need to achieve temporary releases to advance the applicant’s case for prohibition has been a factor which has been weighed in the temporary release decisions.

[21]   The limitations on the scope of judicial review of decisions of prison management which I have discussed mean that these decisions are not amenable to judicial review on the grounds set out in [2](b).   Further, the decisions are not unlawful on any of the grounds in [2](c).

[22]     However, I consider that it is incumbent on the prison authorities to take into account, in considering future applications for temporary release, that the Parole Board has recognised that the applicant is in the reintegration phase of his sentence. It will not be sufficient, in considering applications for temporary releases to give weight to the applicant’s previous escape, without also giving weight to the need for temporary releases as part of a planned progression to parole.  The prison authorities will need to be able to explain the reasons for any refusal, to the satisfaction of the Parole Board.  Consideration may have to be given to the development of a more specific plan for reintegration to address this issue.

[23]   Question [2](d) relates to the applicant’s eligibility for rehabilitation programmes and psychological counselling or treatment which might assist his case before the Parole Board.

[24]     The material before me indicates that the applicant is generally ineligible for programmes which would involve group psychological assessment.  In general, that is because his risk is assessed as low.   It appears that one-on-one psychological counselling will be required, and that release on parole is unlikely to receive favourable consideration if that has not occurred.

[25]     It appears from the material before me that a substantial barrier to one-on-one psychological intervention has been the applicant’s refusal to accept responsibility for his offending. That appears to be so, from the most recent psychological report, a

report from Mr Carlyon dated 28 February 2013.  The final paragraph of that report,

headed ‘recommendations’, says:

While Mr Ericson continues to pursue legal challenges against his index conviction, psychological intervention is not possible.  Should those matters eventually be concluded to the point that Mr Ericson no longer seeks legal redress of one kind or another, and he wishes to receive assistance focused upon issues of personal style (e.g., righteous anger and over control), emotional control, communication and safety planning, a referral to the Psychological Service should be made.  Any gains made in treatment may generalise to both any eventual reintegrative tasks (e.g., his interactions with others  while  engaged  in  release  to  work  for  instance)  as  well  as  assist Mr Ericson to develop the skills to manage himself in a way that allows for reintegrative tasks to be offers.

[26]     The statutory power in respect of rehabilitation is contained in s 52 of the Act.    The  respondent  is  required  by  that  section  to  ensure  that,  to  the  extent consistent with the resources available, rehabilitation programmes are provided to prisoners who will benefit from them.  That section was discussed by the Court of

Appeal in Miller v New Zealand Parole Board.11   It is one of a number of legislative

provisions which address rehabilitation and reintegration.

[27]     The passage which I have quoted from the psychological report is open to the interpretation that nothing further will be done towards psychological counselling or treatment unless and until the applicant accepts responsibility for his offending.  If that is what the report writer is suggesting, I do not consider that approach properly takes into account the importance of psychological intervention for the applicant’s prospects of a successful parole application.   It is not appropriate to make further psychological treatment dependent on the applicant’s acceptance of responsibility for his offending and the abandonment of legal challenges to his conviction. Psychological intervention which takes into account the applicant’s position on these issues is required.   The applicant’s submission to me was that he accepts that he killed his wife, but that he is unable to remember anything about that.  I express no view on whether psychological intervention is likely to be fruitful in the light of that stance on the part of the applicant.   That cannot be known unless intervention is

attempted.

11     Miller v New Zealand Parole Board [2010] NZCA 600 at [143]-[161].

[28]     I consider that the question whether the applicant will benefit from further psychological  intervention  requires  further  examination,  so  that  the  information which the Parole Board will require on the applicant’s next appearance can be made available to the Board, with sufficient particularity to enable the Board properly to assess that information.

[29]     For the reasons I have given, I find that the applicant has not established ground for intervention by way of judicial review in respect of any of the decisions which have been made. The application must accordingly be dismissed.

[30]     I direct that a copy of this judgment is to be made available to the Prison Manager, for consideration by the prison authorities in making decisions as to the applicant’s  management,  relevant  to  the  applicant’s  next  scheduled  appearance before the Board (having regard to the Parole Board’s recognition that the applicant is in the reintegration phase of his sentence).  I further direct that a copy be made available to the Parole Board.

“A D MacKenzie J”