Gaelic v New Zealand Parole Board HC Hamilton CRI 2005-419-19

[2005] NZHC 1296

IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY

CRI 2005-419-000019

PAUL JOHN GAELIC

Appellant

v

NEW ZEALAND PAROLE BOARD

Respondent

Hearing:         15 March 2005 Appearances: Mr W C Pyke for Appellant

Ms T Peterson for Crown Judgment:    15 March 2005

ORAL JUDGMENT OF VENNING J

Solicitors:Crown Law Office, PO Box 2858, Wellington Central Crown Solicitor, Hamilton

Copy to:            W C Pyke, PO Box 19271, Hamilton

GAELIC V NEW ZEALAND PAROLE BOARD HC HAM CRI 2005-419-000019 [15 March 2005]

[1]    The appellant is a prisoner serving 9½ years’ imprisonment for one count of causing grievous bodily harm with intent to injure and two counts of sexual violation by unlawful sexual connection. He appeals against a decision of the Parole Board made under s 107 of the Parole Act 2002 that he not be released before his applicable release date. The appellant is in fact subject to two decisions under s 107. On 26 August  2003  the  Board  made  the  initial  decision  that  he  not  be  released.   On 7 September 2004 the Board made a second decision under s 107 (6) confirming the initial decision.

Jurisdiction

[2]    A preliminary issue arises as to the jurisdiction of this Court to entertain the appeal.

[3]    Section 107 applies to offenders subject to determinate pre-cd sentences for specified offences: s 107 (1). The Chief Executive may apply to the Board at any time before the offender’s final release date for an order the offender not be released before the applicable release date: s 107 (2). The Board must make the order if it is satisfied that the offender would, if released before the applicable release date, be likely to commit a specified offence between the date of release and the applicable release date: s 107 (3). The offender is to have 14 days notice of the application together with any reports submitted to the Board and must be given an opportunity to appear before the Board and state his case in person or by counsel:  s 107 (4).  That  is the process that applied to the initial decision in this case.

[4]    If an order is made then it must be reviewed by the Board at least once every six months following the making of the order. The offender’s rights to receive any reports submitted and to appear and be represented apply to this review: s 107 (6). That is the review that led to the Board’s decision on 7 September 2004.

[5]    Thus the scheme of these provisions of the Act is that the Chief Executive may apply at any time for an order under s 107 but that once an initial order is made under that section it is reviewed at least once every six months thereafter.

Appeal

[6]    The rights of appeal provided under the Parole Act are limited. Section 68 provides for appeals to this Court against postponement orders, an order under s 107 or a final recall order. Section 68 reads:

68 Appeal to High Court against postponement orders, section 107 orders, and final recall orders

(1)       An offender who is subject to a postponement order, an order under section 107, or a final recall order may, within 28 days of the date of the decision on a review under section 67 (or whatever longer time the court permits), appeal to the High Court against the decision on the grounds that the order ought not to have been made.

(2)      No appeal may be made under this section until the decision to make the order has been reviewed under section 67.

(3)     If an offender lodges an appeal, he or she remains subject to the order while the appeal is determined.

(4)       In the case of an appeal against a final recall order, without limiting the matters that the court may consider in determining the appeal, the court must consider the need to protect the community, or any person or class of persons.

[7]    Prima facie s 68 (1) applies to provide for  an appeal against  an order  under s 107. However, the right of appeal under s 68 (1) is proscribed by s 68 (2) which provides that no appeal may be made under s 68 (1) until the decision to make the order has been reviewed under s 67.

[8]    It is necessary then to consider whether the order under s 107 has been reviewed under s 67. Section 67 itself provides as relevant:

67 Review of decisions

(1)        An offender who is the subject of any decision of the Board under this Act (other than a decision under any of the provisions referred to in subsection (2)) may, within 28 days of the decision, apply in writing to the Board for a review of that decision.

(2)No review under this section may be sought of—

(a)     a decision under section 45 about the type of hearing; or

(b)     a decision under section 46 on a review of a decision about the type of hearing; or

(c)     a review under section 107(6) of—

(i)an order made under that section; or

(ii)        an order made under section 105 of the Criminal Justice Act 1985 (as provided for in section 97(8)).

[9]    Section 67 (1) provides for reviews of decisions of the Board other than decisions in s 67 (2). By subc (c) (i) s 67 (2) excludes from the operation of that section review of an order made under s 107 (6).

[10]   The effect is that s 67 does not permit a review of the Board’s decision under s 107 (6).

[11]   The practical reason for that is obvious. Section 107 provides a review of a decision under s 107 every six months in any event. Section 67 excludes from the right to review the right to review a decision made on the review of the earlier decision.

[12]   The result is that s 67 (2)(c)(i) precludes from a review under s 67 a review of an order made under s 107 (6). That has the consequential effect that s 68 cannot apply to provide a right of appeal from a decision under s 107 (6) as the decision to make the order under s 107 (6) has not been reviewed under s 67 as that section in turn expressly provides it cannot be reviewed. The review under s 107 (6) is not a review for the purposes of s 67. There is no jurisdiction for this Court to entertain an appeal against an order made under s 107 (6).

[13]   Section 67 (2)(c)(i) does not exclude a right of review from an initial decision under s 107. If an offender is made subject to an initial order under s 107 (3) that he not be released before the applicable release date then the offender does not have to wait six months for that decision to be reviewed but may apply for review of the

decision under s 67. Such a review must be brought within 28 days of the initial decision.

[14]   In this case the original decision under s 107 has not been reviewed. There was no application for review pursuant to the process set out in s 67. Mr Pyke explained the reason for that. The appellant in this case was awaiting a rehearing of his appeal before the Court of Appeal. Whatever the reason the appellant did not apply for review however, as the initial decision has not been reviewed, no right of appeal lies under s 68 from that initial decision either: s 68 (2).

[15]   The strict nature of the appeal rights under the Parole Act was recently recognised by Winkelmann J in this Court in White v New Zealand Parole Board (CRI 2004-404-354, Auckland Registry, 1 October 2004).

[16]   It can also be noted that the preceding legislation the Criminal Justice Act did not provide for a right of appeal at all in  respect  of orders  under the  equivalent  to s 107.

[17]   And finally I note that as Tipping J observed in Guy v Medical Council of New Zealand (1995) NZAR 67 when the Court is exercising an appellate jurisdiction it is not exercising the original jurisdiction of the Court. Appellate powers are purely statutory and there is no such thing as a common law right of appeal (see p 93).

[18]   As there is no statutory vehicle for this appeal and there are no common law rights of appeal this Court has no jurisdiction to entertain an appeal against either the initial decision under s 107 (because it has not been reviewed pursuant to s 67) or the review decision under s 107 (6). The appeal must be dismissed.

G J Venning J