Forrest v New Zealand Parole Board
[2013] NZHC 2847
•30 October 2013
IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY
CRI-2013-485-000071 [2013] NZHC 2847
BETWEEN BRENDON DOUGLAS FORREST Appellant
ANDNEW ZEALAND PAROLE BOARD Respondent
Hearing: 29 October 2013
Counsel: Appellant in person (via AVL) J E Mildenhall for Respondent
Judgment: 30 October 2013
JUDGMENT OF COLLINS J
Introduction
[1] The question I have to consider is whether the Review Panel of the New Zealand Parole Board (Review Panel) erred in upholding a decision of the New Zealand Parole Board (Parole Board) when it decided to recall Mr Forrest to prison.
Context
[2] This question arises in the context of an appeal by Mr Forrest from a decision of the Review Panel in which it confirmed the Parole Board’s decision to recall Mr Forrest to prison thereby requiring him to serve the balance of his prison sentence. However, the Parole Board is in the process of reassessing whether or not Mr Forrest should again be released from prison. A hearing to consider granting Mr Forrest parole was heard last week and has been adjourned to 9 December 2013
at which point the Parole Board decided Mr Forrest can again be released on parole.
FORREST v NEW ZEALAND PAROLE BOARD [2013] NZHC 2847 [30 October 2013]
Background
[3] In 2001, when he was just 17 years old, Mr Forrest was sentenced to three
years’ imprisonment for arson. He was released on parole in August 2003.
[4] In 2004 Mr Forrest was sentenced to four months’ imprisonment for making threatening telephone calls. Within two days of his release from prison in May 2004, he committed another arson and threatened to kill a person. This resulted in him being sentenced to four and a half years’ imprisonment.
[5] On 10 February 2006 Mr Forrest was sentenced to a further three years’ imprisonment for offences he committed while in prison. His offending on this occasion related to serious threats to kill a number of people and demanding money.
[6] On 12 December 2008 Mr Forrest was sentenced to a further two years’ imprisonment. Again, his offences were committed when he was in prison. His offending on this occasion also involved threats to kill people.
[7] Mr Forrest’s sentences will end on 14 July 2015.
[8] On 11 February 2013 Mr Forrest was released on parole from prison. The
conditions of Mr Forrest’s parole included the following special conditions:
1.To attend and complete any programme, counselling or treatment including psychological programme, counselling or treatment, that may be directed by [his] probation officer to the satisfaction of [his] probation officer and programme provider. Details of the appropriate programme are to be determined by [his] probation officer.
2.To reside at ... Masterton and not move from that address without the prior written approval of [his] probation officer.
3.... not to have contact or otherwise associate with the victim or victims of [his] offending directly or indirectly without the prior written consent of [his] probation officer.
4.Not to undertake, terminate or change any employment without the prior written consent of [his] probation officer.
5. Not to possess or consume alcohol or illicit drugs.
6.To appear before the Parole Board three months after the commencement of parole for a review as to [his] progress on parole.
[9] In deciding to release Mr Forrest on parole, the Parole Board noted that he had been diagnosed with Asperger’s disorder and that he had undertaken intensive psychological treatment during the course of his sentence.
[10] The reports before the Parole Board included a recommendation that Mr Forrest receive a high level of support on a long term basis to manage his “propensity for engaging in unhelpful thinking and behaviour”. The psychologist who provided this recommendation said Mr Forrest continued “... to be at high risk of reoffending at times when he was stressed and distressed”. The psychologist also said situations that might trigger Mr Forrest’s risk of reoffending “include believing that others were not meeting his needs or respecting his rights” and that:
These feelings, coupled with his neuropsychological profile, tend to mean [Mr Forrest] becomes very fixated ... on hostile attitudes towards others and themes of revenge. At these times he is most likely to respond with overt and covert forms of aggression, including complaints, threats and violence.
[11] While on parole Mr Forrest was required to reside with his aunt and uncle at their home in Masterton.
[12] Soon after he was released on parole Mr Forrest became engaged to a woman he had just met. She lived in Wanganui. Mr Forrest’s fiancée and her children moved to Masterton to be near Mr Forrest. In early May Mr Forrest was permitted to spend three nights with his fiancée at a boarding house where she was living. The remainder of his time was to be spent at his uncle and aunt’s house.
[13] On 15 May 2013 Mr Forrest told his probation officer that there were difficulties developing at his uncle and aunt’s house. On 20 May 2013 Mr Forrest’s aunt and uncle advised the probation service that they were no longer able to support Mr Forrest because of threatening messages they were receiving from Mr Forrest’s fiancée.
[14] By 24 May 2013 the probation service was concerned that Mr Forrest was exhibiting warning signs that he might be at risk of reoffending. These signs included:
(1) distancing himself from support people; (2) not engaging with support services; and
(3)no longer engaging in pro-social activities (physical exercise and meditation).
Interim recall order
[15] The probation service filed an application for interim recall on 28 May 2013. That application was made on the grounds Mr Forrest posed an undue risk to the safety of the community or any other person.1
[16] The application for interim recall was granted on 28 May 2013. As a consequence Mr Forrest returned to prison that day.
Final recall order
[17] On 21 June 2013 the Parole Board heard the probation service’s application
to have a final recall order made in relation to Mr Forrest.
[18] At the final recall hearing the Parole Board heard evidence from Mr Forrest, his fiancée, a supervising probation officer, and a consultant who works with people with disabilities. Mr Forrest and his witnesses explained the support they are willing to give him.
[19] On 4 July 2013 the Parole Board delivered its final recall order. Its decision
was primarily based on the breakdown of Mr Forrest’s relationship with his uncle
1 Parole Act 2002, s 61(a).
and aunt and his inability to offer any alternative suitable place to live. The Parole
Board said that it was:2
satisfied that given [Mr Forrest’s] criminal history and particular psychological makeup, that he poses an undue risk to the safety of the community at present and should be recalled.
Review decision
[20] Mr Forrest applied for a review of the Parole Board’s decision. That review was heard by the Review Panel which delivered its decision on 28 July 2013. The Review Panel confirmed the Parole Board’s decision, noting that Mr Forrest’s relationship with his uncle and aunt had broken down irrevocably, and because he lacked viable alternative accommodation, he posed an undue risk to the safety of the community.
Grounds of appeal
[21] There are two limbs to Mr Forrest’s appeal:
(1)The Parole Board was wrong to conclude he posed an undue risk to the safety of the community; and
(2)Even if he does pose an undue risk to the safety of the community, the Parole Board ought not to have exercised its discretion to issue a final recall order.
Principles governing an appeal
[22] Mr Forrest’s appeal is from the decision of the Review Panel. However, as the Review Panel upheld the Parole Board’s decision it is also essential to examine the correctness of the Parole Board’s decision.3
[23] An appeal against a decision of a Review Panel in relation to a final recall order is an appeal against the exercise of discretion. Thus, Mr Forrest must establish
2 Parole Board decision, 4 July 2013 at [17].
3 Shortland v New Zealand Parole Board, Auckland District HC Auckland CRI-2007-404-366, 17
December 2007 at [19].
that both the Parole Board and the Review Panel proceeded on a wrong principle, failed to recognise a relevant matter, or took into account an irrelevant matter, or were plainly wrong.4
Did Mr Forrest pose an undue risk to the safety of the community or any person?
[24] In assessing whether Mr Forrest posed an undue risk to the safety of the community or any person, the Parole Board was required to consider both the likelihood of Mr Forrest reoffending and the nature and seriousness of any likely reoffending.5
[25] Mr Forrest says the Parole Board was not correct when it found an undue risk to the safety of the community or of any person because of the breakdown of the relationship between himself and his uncle and aunt.
[26] In my assessment, the Board was correct to find an undue risk to the safety of the community or any person because of the complete breakdown of the protective arrangements that had been put in place as a condition to him being granted parole.
[27] The risk to the safety of the community or any person will be an “undue risk” if it is disproportionate to and outweighs the personal interests of Mr Forrest in retaining his liberty.6
[28] In this case, it was apparent that despite the breakdown of his relationship with his uncle and aunt, Mr Forrest had obtained alternative supporters in the community, including his fiancée. However, whilst this was a promising indication the Parole Board was not satisfied that these developments were sufficient to mitigate the risk that Mr Forrest posed to the safety of the community particularly as he did not have suitable accommodation arrangements in place.
[29] In reaching its decision the Parole Board took into account the likelihood of further offending and the nature and seriousness of any likely subsequent offending.
4 Ratima v New Zealand Parole Board HC Christchurch CRI-2003-409-111, 5 February 2004.
5 Parole Act 2002, s 7(3).
6 Clarke v New Zealand Parole Board HC Christchurch CRI-2005-409-111, 22 July 2005 at [35].
It was of concern to the Parole Board that none of the safeguards put in place for Mr Forrest when he was granted parole had survived. Mr Forrest had been released on parole in February 2013 because the Parole Board was:7
... satisfied that [Mr Forrest] does not pose an undue risk to the safety of the community given the accommodation with his family, the employment opportunity [to work with his uncle] and the strong family support.
[30] By the time the Parole Board considered the final recall application none of these arrangements continued to exist.
[31] In addition, the Parole Board was fully entitled to accept the probation service’s evidence that Mr Forrest’s behaviour and risk of reoffending had worsened in the period leading up to his recall. The Parole Board was justified in being concerned that Mr Forrest was engaging in fixative behaviour and that there were clear signals that he was posing an increased risk to the safety of others. Those factors included Mr Forrest distancing himself from his approved immediate support network, from approved support services, withdrawing from pro-social activities and fixating on people or things.
[32] In my assessment, the Parole Board and the Review Panel reached the only decision that was reasonably available to them on the evidence that was presented to them. Mr Forrest did pose an undue risk to the safety of the community and to others.
Did the Parole Board and Review Panel improperly exercise its discretion?
[33] The Parole Board was mindful that once it found that the grounds existed to recall Mr Forrest, it was still required to exercise its discretion under s 66 of the Parole Act 2002 before making a final recall order.
[34] The Court of Appeal has explained:8
Given the overall scheme of the 2002 Act and the human rights jurisprudence as to arbitrariness of detention, we conclude that the discretion under s 66 to make a final recall order ought only to be exercised where
7 Parole Board decision, 24 January 2013 at [6].
8 Miller v New Zealand Parole Board [2010] NZCA 600 at [129].
public safety is in issue. Where the ground specified in s 61(a) is made out, the Board will necessarily be satisfied that the offender poses an undue risk to public safety.
[35] When the Parole Board exercised its discretion under s 66 the principles set out in s 7 of the Parole Act were engaged.9
[36] In this case the most relevant consideration was that of the safety of the community. The Parole Board was justifiably concerned that Mr Forrest would reoffend in a serious way because of his psychological profile and his history of serious offending. Accordingly, the Parole Board did not err when it issued its final recall order and the Review Panel did not err when it upheld the Parole Board’s decision.
Future hearings
[37] At the time the final recall order was made by the Parole Board, Mr Forrest had no approved alternative place to live. The Parole Board encouraged Mr Forrest and his counsel to advance an alternative release plan incorporating an approved place for Mr Forrest to live. The Parole Board said it would reconsider parole. That has now occurred. The Parole Board has indicated that it will advise Mr Forrest on
9 December 2013 whether or not he has provided sufficient protections and
structures to ensure he is able to safely return to the community.
9(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
(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. (emphasis added)
[38] In these circumstances, the Parole Board plainly exercised its discretion under s 66 of the Act in the only way that it could. The Parole Board’s decision was not one that can be impeached.
Conclusion
[39] For the reasons set out above Mr Forrest’s appeal must be dismissed. The
answer to the question posed in paragraph [1] of this judgment is that neither the
Review Panel or the Parole Board erred when it ordered Mr Forrest’s recall to prison.
D B Collins J
Solicitors:
Crown Law Office, Wellington for Respondent
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