Ericson v New Zealand Parole Board HC Wellington Civ-2010-485-1912

[2011] NZHC 2111

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

CIV-2010-485-001912

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

ANDTHE ATTORNEY-GENERAL Second Respondent

Hearing:         16 February 2011

Counsel:         Applicant in person

First Respondent abides the decision of the Court
S E McKenzie and K Laurenson for Second Respondent

Judgment:      2 March 2011

In accordance with r 11.5 I direct the Registrar to endorse this judgment with the delivery time of 10.00am on the 2nd day of March 2011.

RESERVED JUDGMENT OF GENDALL J

[1]      This is an application for judicial review of a decision of the Parole Board

(the Board) dated 26 May 2010, declining to grant parole to the applicant.

[2]      The  proceedings  of  Mr  Ericson  originally  came  before  Wild  J  and  he delivered an oral judgment on 30 September 2010.  Wild J referred to Mr Ericson applying for a writ of habeas corpus.  Wild J ruled the habeas corpus application was

misguided because the Court was satisfied that Mr Ericson was lawfully detained

ERICSON V NEW ZEALAND PAROLE BOARD HC WN CIV-2010-485-001912 [2 March 2011]

and imprisoned by a valid warrant of committal for life imprisonment following upon his guilty plea and sentence on the crime of murder.  Wild J, however, directed that the proceedings be treated as an application for judicial review of the decision of the Board and the matter has proceeded on that basis.

[3]      For completeness I add that shortly before this fixture date Mr Ericson sent to the Court a letter in which he referred to ―a motion of habeas corpus‖.   But that suffered from the same defect of the earlier letter dealt with by Wild J.  It was based upon the challenge or proposition that the applicant was wrongly convicted and imprisoned.  As I hope I explained to Mr Ericson, the Habeas Corpus Act 2001 provides that whilst a Judge must inquire into matters of fact and law claimed to justify the detention, and is not confined to inquiry to the correction of jurisdictional errors, s 14(2) does not entitle a Judge to call into question a conviction of an offence by  a  Court  of  confident  jurisdiction.    So  if  the  last  letter  purported  to  be  an application for a writ of habeas corpus it had to fail.

[4]      As  Wild  J  directed,  Mr  Ericson’s  earlier  application  proceeded  as  an application for judicial review.   I have heard argument from both Mr Ericson and counsel for the Attorney-General on that issue.

Background

[5]      Mr Ericson was charged with the murder of his wife at a Blenheim address on

31 July 1999.  Represented by counsel, he pleaded guilty on 19 April 2000 and was sentenced to life imprisonment with a minimum non-parole period of 14 years.  He sought to appeal against his conviction which the Court of Appeal declined.  He has subsequently applied to the Governor-General for exercise of the Royal Prerogative Mercy, the outcome of which I am told has not yet been determined.  Mr Ericson has mounted a determined and concerted campaign to challenge his conviction on a number of bases as is apparent from the record of the Board.  This spans 428 pages and includes a wealth of material and copies of documents submitted by Mr Ericson. In addition, he forwarded electronic material through a lay advocate or agent of his, (Mr Kevin Wilson), which totals in excess of 500 pages to the Board and many

others.1   At this stage I simply note that one of his complaints is that the Board did not consider this submission.  It seems that the electronic version was deleted by Board officers as being repetitive, irrelevant and comprised submissions directed to the   validity   of   the   conviction   and   application   for   the   exercise   of   the Royal Prerogative, and not therefore relevant to the task the Board was required to undertake.  That electronic version of documents has been sent to this Court.  I have obtained a hard copy and read that material in its entirety.

[6]      Mr Ericson became eligible to be considered for parole on 31 July 2009.  He appeared before the Board on 15 June 2009, who gave their decision on 16 June

2009. Amongst other things, the Board said:

Family members of the victim were strongly opposed to release, because apart  from  the  distress  of  the  ―horrific  nature‖  of  the  murder  they remained convinced that Mr Ericson had done nothing to acknowledge

responsibility.

Mr Ericson was seeking exercise of the Royal Prerogative Mercy from the Governor-General, in a renewed application as it had been declined

previously.

Mr Ericson advised that he had applied to the Human Rights Tribunal of

the United Nations.

[7]      However the Board said that its position was ―simple‖ and:2

He pleaded guilty to these charges when they were laid in the Court.  He was sentenced accordingly.   Subsequently he has sought leave to appeal to the Court of Appeal.  That has been declined.  We take the view that he has been properly convicted in this country and that is our starting point.

At the present time, however, it must be said from his record 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 is obtaining some individual treatment from an ACC counsellor and obviously that is helping him with personal issues.

1 See [13] below.

2      Record of Parole Board, 16 June 2009 at 10.

He has no address and no release proposal.  There is no possible way that he can expect to be released at the present time.

[8]      The Board also noted it lacked full information in the sense that a number of psychiatric and other reports available at the time of sentencing were not before it, and  that  it  was  important  that  these  be  obtained  so  that  the  Board  had  full information as a ―starting point‖.  The Board referred to the applicant having escaped from prison in 2007, which did not ―inspire confidence in his ability to control his

behaviour and is a further ingredient in our decision today‖.3    The Board concluded

that the applicant was an undue risk to the safety of the community, that parole was declined and that he would be seen against in accordance with the ordinary statutory cycle.

[9]      The next hearing occurred on 26 May 2010.  It is that decision which is the

subject of the judicial review challenge.  The essence of the Board’s decision was

that:

Mr Ericson’s case was complicated by the fact that he did not deny the offending, but said he could not recall what had happened and for that

reason he continues to challenge the conviction.

He was assessed as having a moderate risk of reoffending.   He is in the reintegration phase of his sentence.

He had not however been able to engage meaningfully in psychological programmes (although not stated in the decision a report to the Board said that the applicant’s inability to recall offending is a barrier to such programmes).  But he is receiving counselling in respect of his abusive

background.

The victim’s family remained adamant that Mr Ericson should not be

released.

3      At 11.

his lack of support and expressed the view that it would be helpful if he reconnected with his family, who express guarded support and, although he  mentioned  the  Salvation  Army,  Mr  Ericson  had  no  confirmed

accommodation.

The Board recommended that temporary leave and home leave may arise to  assist the applicant’s reintegration despite his escape conviction, but for the present time he remains an undue risk to the safety of the community and would be assessed again in one year’s time in accordance

with the statutory cycle.

[10]     It seems that that time for reassessment will arrive in about three months’

time in May 2011.

Hearing in this Court

[11]     I have endeavoured to distil the primary challenges by Mr Ericson to the

Board’s decision in the written material that he submitted. These are:

(a)      The Board’s decision lacked recommendations for, or assistance with, his rehabilitation or reintegration.  Although those particulars are not articulated in the submissions, as I understand his complaints, they relate to his being unsuitable for the self-care unit due to his segregation for safety reasons and his unsuitability for programmes due to what he says is absence of recall of the offending and the lack of resources made available to him.

(b)The Board, by referring to his efforts to challenge his conviction, and his denial of offending, have breached his human right to challenge his conviction.

(c)      The  Board  failed  to  take  into  account  the  non-family  support available  to  him,  if  granted  parole,  from  the  Salvation  Army

the  500  plus  pages  of  submissions),  a  mentor  and  his  probation officer, and that his main support is based in Auckland and not his family in Lower Hutt.

[12]     In  oral  submissions  Mr  Ericson  expanded  on  those  grounds,  to  add  the following:

(a)      The decision of the Board (as appearing at page 6 of the Record of the Parole Board) records a member of the Board as ―A/Prof Brinded‖. Mr Ericson submitted that Dr Brinded was a psychiatrist engaged by the defence, on his behalf, at the time that he was charged with the murder of his wife.   Therefore because he is listed as a decision- maker in the Board’s decision, a conflict existed.  Separately, he said that he wrote to Dr Brinded on 5 March 2010 and provided the electronic file from Mr Ericson’s advocate, Mr Kevin Wilson.  He had asked Dr Brinded to review the file and provide a formal opinion on its  contents.    A  Board  officer  advised  that  as  a  member  of  the New Zealand Parole Board Dr Brinded was unable to conduct a file review or provide an opinion to Mr Ericson on the matters raised in relation to the conviction.  There is, however, a further typed copy of the Board’s written decision of 26 May 2010, annexed as Exhibit B to the       affidavit   of   Tracy   Louise   Lamb,   Manger   of   Litigation, Legal Services, of the Department of Corrections, which records the members of the Board were:

Judge D J Carruthers

Justice M Frater Mr B McMurray Ms S Pakura

It  does  not  refer  to  Associate  Professor  Brinded  having  been  a member of the Board.   I asked counsel for the Attorney-General to obtain a clarification as to the true position.  This has now been done

participate in the hearing of the Parole Board on 26 May 2010. That disposes of that point, although I record fuller reasons at [21].

(b)Mr  Ericson  submitted  that  the  electronic  file  of  many  pages forwarded by Mr Wilson, should have been before the Board and as it was not he had been denied natural justice and the opportunity for his

―case to be properly heard‖.

(c)      There was substantial proof and material that Mr Ericson did not have any psychiatric or medical issues and the Board should have had access to those documents, and if it did, it ignored them or did not take them properly into account.

(d)He made further submissions in relation to factual matters, such as the taking of medication and drugs at the time of the alleged murder which conflict with other reports (stating he was then on no medication).   He referred to a report of Dr Gordon, the Clinical Director of the Regional Forensic Psychiatric Service at Healthlink South.   I simply observe that those factual matters relate to the challenge to the conviction.

(e)      In  broad  terms  Mr  Ericson  contended  that  he  asked  the  Board, through himself and his then counsel Mr Bott, to consider all material and  accept  that  he  was  not  a  violent  person  and  therefore,  was required to be released on parole and that was not considered, in any shape or form by the Board.

[13]     The number of pages in the electronic material is 527 pages and according to Mr Ericson’s submission this was sent to 48 recipients in addition to the Board. Those recipients are described as the Governor-General;  the Prime Minister;  the Deputy Prime Minister;   Minister of Justice;   Minister of Corrections;  ACT New Zealand  Party  Law  and  all  its  spokesmen;    Associate Minister  of  Corrections; Labour Party (Justice) spokesman;  Labour Party (Corrections) spokesperson;  New

Zealand  Maori,  Member  of  Parliament  Mr Harawira;     Speaker  of  the  House Representatives;   Commissioner of Police;   Department of Corrections Chief Executive;  Ministry of Justice Chief Legal Counsel;  New Zealand Parole Board Regional Office Manager (Central);   New Zealand Parole Board Regional Office Manager   (Southern);      ESR   Corporate Office;      Independent   Police   Conduct Authority;  Solicitor-General;  Attorney-General;  Ms Ablett-Kerr QC;  Mr D Butler (Solicitor);  Office of Chief Ombudsman; Assistant Ombudsman;  ―the Investigator‖ Sky Film and Television;  P H B Hall, Barrister;  M Bott, Barrister;  Serious Fraud Office;  Dr David Chaplow, National Director of Mental Health; Associate Professor Philip Brinded;  Dr Peter Fenwick (Retired Associate Professor); Victoria University of Wellington School of Criminology;   Crown Law Office;  Assistant Solicitor- General;   Court of Appeal;   Law Commission;   New Zealand Police, The Tasman Police District Commander;    New Zealand Police, Tasman Police District (Blenheim);  New Zealand Police, Detective Sergeant J J Hamilton, CIB Blenheim; Professor Nick Hollyford, Department of Pharmacology, University of Auckland; S Gabrielle,  ACC  Counsellor;     Mr  B  Eade,  Unit  Manager,  Rimutaka  Prison; K Ashford, Legal Services Agency;  Dr G Johnston, Springlands Health, Blenheim; Sensible Sentencing Trust;  Professor G Guilford, Dean of Science, University of Auckland;      Registrar,  High  Court,  Christchurch/Hon  Justice  Panckhurst; Dominion Post Newspaper;  New Zealand Herald Newspaper;  Office of the United Nations High Commissioner for Human Rights, Geneva, Switzerland.

Discussion

It is well known that the scope for judicial review of decisions of the Parole Board is narrow.  The Court can only make an assessment of whether a Board’s decision was lawful, that a decision was open to it.  Challenge may only be on the usual judicial review principles, namely that the Board acted unlawfully because it failed to take into account all relevant considerations, took into account irrelevant considerations, that     it     arrived     at     its     decision     in     breach     of     the     principles     of

natural justice, or that its decision was so unreasonable as to be reviewable.4

[14]     The Courts do not and cannot sit as appellate bodies from decisions lawfully made by the Board and the Court cannot exercise a jurisdiction which by law is vested in the Parole Board.  The recent Court of Appeal decision in Miller v New Zealand Parole Board made this clear when dismissing broad challenges to the

parole regime based upon domestic and international human rights instruments.5

The assessment whether the decision was lawful or not cannot be taken as an opportunity to revisit the application for parole.  It is not necessary to review in any detail how the parole system worked this having been discussed at length in Miller and other cases, including A(Victim) v New Zealand Parole Board where Simon France J provided a general overview of how parole works.6    There is no general entitlement to parole and s 28(1AA) and (2) of the Parole Act 2002 makes it clear that an applicant 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 ...

[15]     The further relevant statutory background is contained in s 7 of the Act.  This sets out the guiding principles. These are described as:

7        Guiding principles

(1)       When making decisions about, or in any way relating to, the release of an offender, the paramount consideration for the Board in every case is the safety of the community.

(2)      Other principles that must guide the Board's decisions are—

(a)       that  offenders  must  not  be  detained  any  longer  than  is consistent with the safety of the community, and that they must not be subject to release conditions … that are more onerous, or last longer, than is consistent with the safety of the community;  and

4      I do not need to enter the debate of whether ―unreasonableness‖ relates to unreasonable outcome or reasoning or to what extent there is a variable standard of unreasonableness: see Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1947] 2 All ER 680, [1948] 1 KB

223, Wellington City Council v Woolworths (NZ) Ltd (No. 2) [1996] 2 NZLR 537, Progressive Enterprises Ltd v North Shore District Council [2006] NZRMA 72 at [70], Waitakere City Council v Lovelock [1997] 2 NZLR 385 (CA) at 413.

5      Miller v New Zealand Parole Board [2010] NZCA 600.

6      A(Victim) v New Zealand Parole Board [2008] NZAR 703 (HC).

(b)      that offenders must, subject to any of sections 13 to 13AE, be provided with information about decisions that concern them, and be advised how they may participate in decision- making that directly concerns them;  and

(c)       that decisions must be made on the basis of all the relevant information that is available to the Board at the time;  and

(d)      that the rights of victims (as defined in section  4 of the Victims’ Rights Act 2002) are upheld, and submissions by victims (as so defined) and any restorative justice outcomes are given due weight.

(3)      When any person is required under this Part to assess whether an offender poses an undue risk, the person must consider both—

(a)      the likelihood of further offending;  and

(b)       the   nature   and   seriousness   of   any   likely   subsequent offending.

[16]     In reaching its decision the Board took into account or said relevant factors in

making the determination were Mr Ericson’s:

risk of reoffending;

inability or engage in meaningful psychological programmes;

counselling;

psychological report;

plan on release and in particular his limited support network and lack of confirmed accommodation.

In addition, it took into account as relevant the views of the victim’s family.

[17]    I do not think that it can be said, as Mr Ericson does, that the Board was inappropriately influenced by his application for mercy or his application for leave to appeal to the Court of Appeal.   The Board simply notes them but says in a very neutral way that those are matters for others to decide.  As to possible rehabilitation, it is the Department of Corrections not the Board responsible for that and no matter

what the reason for inadequate rehabilitation or a release plan, once the Board found that Mr Ericson posed undue risk to the community it could not release him on parole.  In making suggestions for Mr Ericson’s reintegration the Board did not stipulate  any formal  requirements  but  simply  (in  response  to  Mr Ericson’s  own contention) recognised that with support from his family this might assist, but they had expressed however only guarded support.

[18]     The various arguments of breaches of the International Covenant on Civil and Political  Rights  and  Bill  of  Rights  cannot  be  sustained  where  detention  is  not arbitrary and in accordance with a sentence imposed.   Assessments which are properly carried out by the Board in accordance with the Parole Act, cannot be challenged on that basis.7

[19]     A review of the Board’s decision in its entirety provides no support for any claim that it erred in law.  It correctly identified the public safety threshold for parole and determined that that threshold had not been met.   It focused on the issue of undue risk to the community and there was ample material before it which it was entitled to regard as relevant to enable it to reach that view.  None of its recorded reasoning process identifies any error of law.  Undue or improper weight does not appear to have been placed on factors which counted against Mr Ericson, and indeed positive suggestions for his reintegration were made.  The report is balanced and positive.  The challenge to the decision falls short by a very wide margin of what is required for judicial review based upon error of law.

The issue of Associate Professor Brinded

[20] As recorded at [12] above the position has been clarified by counsel for the Attorney-General. Dr Brinded did not sit as a member of the Board in determining the application. The correct membership of the Board is that set out in the affidavit of Ms Lamb. The copy signed by the Panel Convenor incorrectly included Dr Brinded’s name as members, no doubt through erroneous use of a template. Mr Bott, counsel present at the parole hearing, would have been aware if Dr Brinded

had been part of the panel and did not object.  This technicality, in the form of the

7      Miller v New Zealand Parole Board [2010] NZCA 600.

first page of the signed decision at page 6 of the Parole Board’s record, does not provide Mr Ericson with any remedy.

Turning to the issue of the 527 pages of electronic file forwarded to the multiple persons

[21]     It appears that the Board’s Communications Manager received an email from Kevin Wilson containing a letter to Dr Brinded with the attachment ―Appeal to the Government‖.   That was the 527 pages of material but as it had nothing to do with the Board’s functions – relating to the issue of conviction – it was deleted.  Further, Dr Brinded, to whom the letter was sent, was not able to comment on matters raised. On behalf of the Attorney-General it was submitted that much of the material in that file is in any event within the bound copy of the Board’s report, which itself runs to

428 pages.  Mr Ericson says there was a breach of natural justice because that file created or forwarded by his advisor in Auckland, had to be considered by the Board. He is incorrect in this belief.

[22]     I called for and obtained the full file which contains submissions totalling many pages and a further ―enclosed file‖ of exhibits, documents and material.  It is headed ―Continuation of Application for the Royal Prerogative of Mercy‖ and is a submission of Mr Ericson to the Governor-General, said to contain:

―Cogent evidence of mitigating factors‖

A      Medication

B      Mental status at time of arrest

C      Seizure of legal files

D      Non-disclosure.

[23]     Careful perusal of all the material make it clear that it relates entirely to a challenge to the police investigation, evidence, the guilty plea, conviction, exhibits before the High Court, inquiries made by Mr Ericson and information obtained by him in his efforts to have his conviction quashed.  It comprises extensive challenges to the evidence and inferences to be drawn from it;   submissions as to facts surrounding the alleged crime;   and extensive, even prolix, arguments on multiple

intricate matters of detail.   Mr Ericson says these point to the exercise of the prerogative of mercy being justified, as establishing his innocence of the charge of murder.  None of this material, even if read by each of the Board members, could in any way have reasonably influenced them in performing their statutory task, in the sense of enabling them to conclude that the applicant did not pose an undue risk to the safety of the community.  The Board itself correctly noted that the fact and validity of conviction was irrelevant because, as the Board stated in paragraph 3,

―that was for others to decide‖.   The Board had to deal with him as a convicted murderer sentenced to life imprisonment.  Members were aware that there remained before the Governor-General the application to exercise the prerogative power of mercy.  If they had chosen to read and take into account all of that contained in the electronic file they would in truth have been taking into account irrelevant considerations to their statutory function.

[24]     If  Mr  Bott  had  considered  that  the  voluminous  ―prerogative  of  mercy‖ material had been in any way relevant he could have tendered it to the Board on behalf of his client.   But as I have said, the Board was not bound to accept or consider it.

Conclusion

[25]     None of the grounds advanced by Mr Ericson in support of his application for judicial review are capable of being sustained.  The Board’s decision cannot be impugned for error of law.  Challenges based upon questions of fact and merit are in truth appeals from its decision, and cannot be dressed up as a judicial review application.

[26]     The applicant is serving a life sentence and has become eligible for parole, but that does not entitle him to parole unless the Board is satisfied on the question of undue risk to the community.  He will be reassessed for parole again in May of this year.   He and his advisors may present to the Board all that material that they consider to be relevant, and the Board accepts or receives it on the basis that it is relevant.  Mr Ericson can then be heard again on the facts and merits by the authority specifically entrusted with the task of determining whether or not he should be

granted parole, and if so, on what conditions.  But in the meantime, nothing has been advanced to show that the Board has, so far, erred in law.

[27]     The application for judicial review cannot succeed and is dismissed.

J W Gendall J

Solicitors:

Crown Law Office, Wellington for Second Respondent

Copy to:
Mr J F Ericson
Unit 11, Rimutaka Prison
Private Bag 47901, Trentham, Upper Hutt 5143.