Ericson v New Zealand Parole Board

[2013] NZHC 1790

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

CIV-2012-485-1823 [2013] NZHC 1790

UNDER THE  Judicature Amendment Act 1972

IN THE MATTER OF       An application for judicial review

BETWEEN  JOHN FREDERICK ERICSON Applicant

ANDNEW ZEALAND PAROLE BOARD First Respondent

THE ATTORNEY-GENERAL Second Respondent

Hearing:                   26 February 2013 and 6 June 2013

Counsel:                  Applicant in person

V J Owen for First Defendant
H Sims and M G Coleman for Second Defendant on
26 February
D J Perkins for Second Defendant on 6 June

Judgment:                19 July 2013

RESERVED JUDGMENT OF MACKENZIE J

I direct that the delivery time of this judgment is

12 pm on the 19th day of July 2013.

Solicitors:           Vicki J Owen, Barrister and Solicitor, Wellington, for First Respondent

Crown Law Office, Wellington, for Second Respondent

Copy to:            Mr Ericson

ERICSON v NEW ZEALAND PAROLE BOARD [2013] NZHC 1790 [19 July 2013]

[1]      In April 2000 Mr Ericson pleaded guilty to the murder of his wife and was sentenced to life imprisonment having pleaded guilty to the murder of his wife.  He first appeared before the first respondent (the Board) for consideration of parole on

15 June 2009,  and  has  been  seen  by  the  Board  annually  since  then.    In  this application for judicial review, he seeks review of a decision of the Board at a hearing on 22 May 2012, declining parole.   He also seeks review of a subsequent review, under s 67 of the Parole Act 2002, of that decision, dated 28 May 2012.

[2]      The statement of claim, drafted by Mr Ericson acting in person, contains a number of allegations which, in administrative law terms, constitute allegations of failing to take into account various relevant matters, taking into account various irrelevant considerations, bias, and failing to give Mr Ericson a fair hearing.  In an amended  statement  of  claim,  dated  15  February 2013,  Mr Ericson  raises  an additional ground of review, namely that his situation is governed not by the Parole Act, but by the previous provisions in the Criminal Justice Act 1985.

[3]      When the matter was first called before me on 26 February 2013 for hearing, the applicant raised another issue.  He claimed that there was a conflict of interest on the part of a member of the Board panel which heard the application in May 2012.  I adjourned the hearing for further affidavit evidence.  After the affidavits were filed, the matter was set down for a further hearing on 6 June 2013.

Alleged conflict of interest

[4]      I deal first with the allegation of conflict of interest.  The panel which saw Mr Ericson in May 2012 was Judge D Holderness (Panel Convenor), Mr N Trendle and Ms K Snook.  Mr Ericson says that, at the hearing, Mr Trendle seemed familiar to him, but he did not know at that stage who Mr Trendle was.   He subsequently remembered that he had, he says, had previous contact with Mr Trendle.

[5]      Mr Ericson’s evidence, in the affidavit filed pursuant to my earlier direction, is that in about 1985 he and his wife (who was later his victim) visited his wife’s brother, Allen Battershall, and his wife in Lower Hutt.  Mr Battershall was a police officer.  During the visit they met another man, “Peter”, who Mr Battershall said was an  undercover  police  officer  working  in  the  Wellington  drug  scene.     While

Mr Battershall  and  the  other  man  were  talking  the  name  Neville  Trendle  was mentioned.  Mr Ericson says that some months later he met Mr Trendle at Wellington Central Police Station.  Mr Ericson had gone there to get a firearms permit, and ran into Mr Battershall there.   Mr Battershall took him upstairs to have a look around and while he was there, introduced him to Mr Trendle, who was in his dress uniform. Mr Ericson says that after the successful conclusion of the undercover operation, he was  told  by  Mr Battershall  that  he  had  been  taken  out  to  dinner  by  the  then Commissioner of Police.   Mr Trendle’s name was mentioned as being one of the group at dinner.

[6]      Mr Battershall  had  made  a  victim  submission  to  the   Board  hearing. Mr Ericson submits that Mr Trendle knows Mr Battershall, and that this gives rise to a conflict of interest (or, as I would recouch Mr Ericson’s submission in legal terms, there is a risk of apparent bias) and that Mr Trendle should not have participated in the Board hearing.

[7]      In Mr Trendle’s affidavit in reply, he says that he was the Chief Legal Adviser at  Police National  Headquarters from  1979  to  1991, Assistant  Commissioner in charge of Human Resources from 1991 and Region Commander for the greater Wellington and Nelson area from 1992 to 1996.  In his role as Chief Legal Adviser he provided advice on a number of issues relating to the police undercover programme, mostly to senior police staff at Police Headquarters.   He was familiar with the programme, but had no contact with staff directly involved in undercover operations.  He had no direct involvement in specific undercover operations around

1985 and had no recollection of an operation involving Mr Battershall or an agent called “Peter”.  Mr Trendle says that the events described in Mr Ericson’s affidavit reflect an extraordinary departure from police covert operating procedures at the time.   He says that the events described by Mr Ericson in relation to his visit to Wellington Central Police Station could not have happened around 1985, because he did not wear a uniform as a legal adviser, and he did not work from the Wellington Central Police Station building before mid 1992.  He cannot recall a police officer named Allen  Battershall.    He  says  he  did  not  attend  a  dinner  as  described  by Mr Ericson.  That would have been a highly unusual way of recognising the work of staff involved in an undercover operation.   Mr Trendle confirms that he read the

papers    relating    to    the    hearing,    including    Mr Battershall’s    submission. Mr Battershall’s name did not register with him.

[8]      Neither Mr Ericson nor Mr Trendle were cross examined.  It is therefore not appropriate to make contested factual findings.  It is not necessary for me to do so to deal  with  this  allegation.     Mr Trendle’s  evidence  is  that  he  does  not  know Mr Battershall  and  did  not  recognise  that  name  when  he  saw  the  victim’s submission.    Putting  Mr Ericson’s  evidence  at  its  highest,  it  does  not  show  a sufficiently close relationship between Mr Trendle and Mr Battershall to give rise to any perception on the part of a fair minded observer of a risk that Mr Trendle would not bring an independent view to Mr Ericson’s case.  I find that no risk of apparent bias on the part of Mr Trendle has been established.

[9]      This ground of Mr Ericson’s application must fail.

Applicability of Parole Act 2002

[10]     The next matter to be considered is Mr Ericson’s submission that the Board has erred in dealing with his case under the Parole Act.  He submits that he is not subject to that Act, rather his case is governed by its predecessor, the Criminal Justice Act 1985, in force when Mr Ericson was sentenced in April 2000.  The Parole Act came into force from 30 June 2002.  It provides for sentences of imprisonment which had been imposed before the commencement date.  Such a sentence is a “pre- cd sentence”, as defined in s 4.  All prisoners who at the commencement date were serving a pre-cd sentence became, in general, subject to the Parole Act, in place of the Criminal Justice Act. That is clear from s 8 of the Parole Act which provides:

(1)       This Part applies to all offenders who are subject to a sentence of imprisonment, including (without limitation) offenders who, on the commencement date, are subject to a pre-cd sentence and who (for instance)—

(a)      are eligible for parole; or

(b)      are to be released under section 104 at their final release date; or

(c)      are under consideration for release on parole … ; or

(d)      are on parole … , or have been given early release under

section 94 of the Criminal Justice Act 1985; or

(e)      are  subject to an  application  for  a recall  order,  or to  an interim recall order or a recall order.

(2)       Every decision about, or in any way relating to, the release of an offender that is made after the commencement date must be made under this Part unless specifically provided otherwise.

(3)       This Part does not in itself affect the validity of any decision made under Parts 4 or 6 of the Criminal Justice Act 1985 about, or in any way relating to, the release of an offender.

[11]     Mr Ericson’s submission is not sustainable, in the light of the decision of the Supreme Court in Morgan v Superintendent, Rimutaka Prison.[1]    Elias CJ said that there is no argument about the meaning of the Parole Act, and that by s 8, Part 1 applies to all offenders whether or not sentenced before the Act came into force.[2]

Part 1 contains the relevant provisions as to eligibility for, and granting of parole. Blanchard J said that the Parole Act provisions are very clear and leave no room for general continued resort to Part 6 of the Criminal Justice Act 1985.[3]

[1] Morgan v Superintendent, Rimutaka Prison [2005] NZSC 26, [2005] 3 NZLR 1.

[2] At [6]. Elias CJ dissented on the substantive issue in the case, the scope of s 6 of the Sentencing Act 2002.

[3] At [45].

[12]     The point at issue in Morgan was whether persons serving sentences when the Parole Act came into force fell within the scope of s 6(1) of the Sentencing Act

2002 which provides:

An offender has the right, if convicted of an offence in respect of which the penalty has been varied between the commission of the offence and sentencing, to the benefit of the lesser penalty.

[13]     The majority of the Court held that s 6 of the Sentencing Act is not engaged by the changes to the regime for parole and early release made by the repeal of the Criminal Justice Act and the coming into force of the Parole Act.

[14]     The law is thus very clear that Mr Ericson’s eligibility for parole is to be

determined under the Parole Act, not under the repealed provisions of the Criminal

Justice Act.

[15]     Mr Ericson  refers  to  s 97  of  the  Parole  Act.     That  section  is  headed “Application of this Part to offenders subject to pre-cd sentences”.   That heading might suggest a wider scope for the section than it in fact has.  It applies only to a very  limited  category  of  offenders  subject  to  pre-cd  sentences.    Subsection (1) applies only to  “every offender who was released under Part 6 of the Criminal Justice  Act  1985  before  the  commencement  date”.    Mr Ericson  is  not  in  that category.  Subsection (2) applies to an offender who has, before the commencement date, been referred to the Board for consideration but the Board had not made a decision.   Subsection (3) applies to an offender who was being considered by the Minister of Corrections for early release before the commencement date, but the Minister  had  not  made  a  decision.    These  subsections  can  have  no  possible application to Mr Ericson.  He did not become eligible for parole until long after the commencement date.  The apparently wider scope of the heading does not override the  narrower  scope  of  the  words  of  the  section.    The  heading  is  an  aid  to

interpretation, but cannot prevail over the clear words of the section itself.[4]

[4] Interpretation Act 1999, s 5.

[16]     This ground of Mr Ericson’s application must accordingly also fail.

Other grounds

[17]     In relation to the other grounds, counsel for the second respondent submits that the statement of claim is not clearly pleaded.  There is force in this submission, but, as Mr Ericson is not represented by counsel, I must endeavour to distil any relevant issues of fact and law from the statement of claim.  Counsel for the second respondent has helpfully endeavoured to set out the essence of Mr Ericson’s grounds, and submits that these may be summarised as raising questions as to whether the Board:

(a)       failed to  take into  account  any material  relevant  consideration,  or improperly took into account an irrelevant factor;

(b)      acted pursuant to its statutory powers and jurisdiction under the Parole

Act;  and

(c)       conducted the hearing fairly and in accordance with the procedure set out in the Parole Act.

[18]     Mr Ericson has previously brought similar proceedings.   He challenged the

Board’s decision at his 2010 parole hearing.  Gendall J dismissed that application.[5]

His Honour noted that this Court does not have an appellate jurisdiction in respect of decisions lawfully made by the Board, and cannot exercise a jurisdiction which by law is vested in the Board.[6]   Those restrictions on the scope of judicial review apply equally to this application by Mr Ericson.

[5] Ericson v New Zealand Parole Board HC Wellington CIV-2010-485-1912, 2 March 2011.

[6] At [14].

[19]     Mr Ericson  submits  that  the  Board  failed  to  consider  certain  relevant information in reaching his decision.   In particular he alleges the Board failed to consider his submissions, “expert psychological opinion”, support and opportunities available to him outside prison, his low score on the Department of Corrections’ measure of the risk of reoffending and his minimum security classification.

[20]     The paramount consideration for the Board in determining whether or not to parole an offender is the safety of the community.[7]     The Board was required to consider whether Mr Ericson presented an undue risk of reoffending.   The Board must consider all relevant information available to it at the time, under s 7(2)(c) of the Act, and may take into account whatever information it thinks fit under s 117.  It is, however, not obliged to make its own inquiries.  The weight to be given to the information which is before it is a matter for the Board.

[7] Parole Act 2002, s 7(1).

[21]     The Board had before it written and oral submissions from Mr Ericson and his counsel, reports from the Department of Corrections, psychological assessments, the views of the victim’s family, previous decisions of the Board and a number of background papers.  The record of the Board’s decision shows that it considered the information before it.   It placed particular weight on the report of a psychologist which   noted   Mr Ericson’s   inability,   to   date,   to   engage   in   any   meaningful psychological  programmes  or  other  interventions.     The  psychologist  assessed

Mr Ericson as being at a low to moderate risk of reoffending but noted that he lacked

insight as to how to avoid or mitigate high risk situations, thinking, or emotions that exacerbated his risk of reoffending.  The weight to be given to that information, on the one hand, and to Mr Ericson’s security classification and the evidence from him of support in the community upon release, were matters for the assessment of the Board.  It is not for the Court, on this application for judicial review, to make its own assessment of the weight to be accorded to these various considerations.

[22]     Mr Ericson submits that the Board should not have taken into account his convictions for escape or his challenge to his conviction for murder.  He submits that these were irrelevant considerations on his application for parole.  He further submits that, in taking them into account, the Board breached several of the rights protected by the New Zealand Bill of Rights Act 1990 (BORA).

[23]     The range of matters which the Board may legitimately take into account in reaching its decision is not specifically defined.  Any material which is relevant to the paramount consideration of the safety of the community may properly be taken into account.  Thus, both Mr Ericson’s conviction for escape and his challenge to his conviction were relevant matters which the Board was entitled to take into account and to weigh in its assessment.  In doing so, the Board did not act in breach of any BORA right.

[24]     Mr Ericson  further  claims  that  the  Board,  in  taking  into  account  his conviction for escape, breached the right protected by s 26 of BORA, which provides that no one who has been finally convicted of an offence shall be tried or punished for it again.   That right, also known as the principle of double jeopardy, is not engaged.   Mr Ericson is not being punished again for the escape.   He remains in prison serving the sentence of life imprisonment imposed on him.  Parole is not a right.   An offender may only be released if the Board is satisfied on reasonable grounds that the offender will not pose an undue risk to the safety of the community

or any person.[8]   The fact of the appellant’s escape from prison and his consequent

conviction are clearly relevant factors in considering whether Mr Ericson will pose an undue risk to the safety of the community if released.  The refusal of parole is not

a further punishment for the offence of escaping from custody.

[8] Parole Act 2002, s 28.

[25]     Mr Ericson continues to challenge his murder conviction.  That is a relevant consideration for the Board, as an indication of his lack of acceptance of responsibility  for  the  offending,  and  the  likely  effect  of  that  on  Mr Ericson’s rehabilitation, and his consequent risk to the community.  The Board, in taking these matters into account, is not acting in breach of Mr Ericson’s right to justice under s 27  of  BORA.    Nothing  which  the  Board  has  done,  in  taking  into  account Mr Ericson’s non-acceptance of his offending, has in any way limited or affected any further lawful avenues of challenge which may be open.  It must also be stressed that Mr Ericson’s challenges to his conviction are subject to the limits imposed by the law.  The law prescribes the extent to which the outcome of court proceedings can lawfully be challenged.  It appears that Mr Ericson has exhausted his legal remedies. However, that question is not before me and I do not address it.

[26]     This ground of the application for review must also fail.

[27]     Mr Ericson contends that the Department of Corrections has failed or refused to provide him with meaningful reintegration opportunities.   Mr Ericson’s counsel before the Board urged the Board to consider making recommendations in relation to his  reintegration  and  rehabilitation.    The  Board  considered  that,  in  the  light  of Mr Ericson’s lack of progress to date and the evidence that it had heard from the prison officer, it would not be useful to make any further recommendations.  That was a view which was open to the Board.

[28]     Mr Ericson complains that the hearing was unfair to him in the way it was conducted.  I find no evidence to support that assertion.  Mr Ericson was represented by counsel before the Board.  He was given a proper opportunity to present his case. I can discern no unfairness in the way in which the hearing was conducted.

[29]     Mr Ericson also seeks review of the decision of the  reviewer, conducted under s 67 of the Parole Act.   That review was carefully and properly conducted. The application for review raises no issues which require separate consideration.

[30]     For these reasons, the application for judicial review of both the Board’s decision and the reviewer’s decision is dismissed.

“A D MacKenzie J”