Genge v Chief Executive, Department of Corrections
[2022] NZHC 2508
•30 September 2022
IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY
I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE
CIV-2021-409-000539
[2022] NZHC 2508
BETWEEN RICHARD LYALL GENGE
Applicant
AND
CHIEF EXECUTIVE, DEPARTMENT OF CORRECTIONS
First Respondent
AND
ATTORNEY-GENERAL
Second Respondent
Hearing: 17 May 2022 Appearances:
Applicant in person
W S Taffs for the First Respondent
Judgment:
30 September 2022
JUDGMENT OF NATION J
Introduction
[1] On 13 October 1995, the applicant (Mr Genge) was convicted on one count of murder and one count of sexual violation by rape. On 25 October 1995, he was sentenced to life imprisonment with a minimum period of 15 years on the charge of murder and a concurrent term of 12 years for the rape charge.
[2] Mr Genge has been assessed by the Department of Corrections (Corrections) as being a low-medium security risk since 2018. Mr Genge says he cannot have a lower security risk assessment because of the way the RoC*RoI risk measurement is
GENGE v CHIEF EXECUTIVE, DEPARTMENT OF CORRECTIONS [2022] NZHC 2508 [30 September 2022]
used in arriving at a security classification for him.1 He says, as a result of this, he is unable to participate in rehabilitative and reintegrative activities which are available only for prisoners with minimum security classifications and says he is therefore unable to demonstrate to the Parole Board that he should be granted parole. Through judicial review proceedings, Mr Genge says the way he has been classified as a low- medium security risk through the use of RoC*RoI is unlawful.
Background
[3] The purpose of a security classification is to enable the containment of sentenced prisoners with a level of supervision appropriate to the level of internal and external risk each prisoner poses. It also ensures the security classification assigned to a prisoner reflects the level of risk posed by that prisoner while inside or outside prison, including the risk an escape would pose to the public.
[4] Although the Corrections Act 2004 (the Act) and the Corrections Regulations 2005 (the Regulations) refer to matters which must be considered in making the initial security classification and on the reviews, neither the Act nor the Regulations require that the risk assessment be carried out in any particular way.2 Corrections has developed a system for doing this.
[5] The security classification framework was helpfully and comprehensively summarised in the judgment of Katz J in Smith v Attorney-General.3 I adopt that summary:
The security classification framework
[6] The process of assigning, reviewing and reconsidering the security classifications of prisoners is governed by ss 47 and 48 of the Act and regs 44 to 52.
1 The RoC*RoI measure is in fact a combination of two measures. “RoC” means risk of (re)conviction, while “RoI” means the risk of imprisonment. The asterisk (*) means "multiplied by". Hence the term RoC*RoI is a measure that means: the offender's risk of reconviction multiplied by the offender's risk of imprisonment.
2 See Corrections Act 2004, ss 48-49; and Corrections Regulations 2005, regs 44-52.
3 Smith v The Attorney-General for the Chief Executive of the Department of Corrections [2017] NZHC 136, [2017] NZAR 331.
[7] All prisoners who have been sentenced to a term of imprisonment of three months or more must be assessed and assigned a security classification. This classification is based on the risks they pose both inside (internal risk) and outside the prison environment (external risk), including in particular the risk of escape and the risk that escape would pose to the public.4 This enables Corrections to appropriately manage prisoners within the prison environment.
[8] It is well recognised that classification decisions have a profound impact on the day-to-day lives of prisoners.5 Such impacts include the availability of rehabilitative programmes, the hours they spend in their cell, and the availability of visits. On the other hand, the need for prisons to function effectively and efficiently is an important consideration,6 as is the fact that Corrections is generally in a better position to assess security risk than the Courts.
[9] When initially assigning a security classification to a prisoner, the assessing officer is required to take into account the seriousness of the most serious offence for which the prisoner is imprisoned; the duration of their sentence; any history of escape or attempted escape, violent behaviour or mental ill health; whether the prisoner is awaiting trial or sentencing on further charges and the nature of the charges; and any additional matter specified in writing by the chief executive.7 A prisoner must be assigned the lowest classification at which they can “safely and securely be managed given the assessment of the level of risk posed by [them]”, and should be placed and managed within a facility and regime consistent with that classification, as far as is practicable.8
[10] A prisoner’s security classification must then be reviewed at least once every six months or whenever there is a significant change in the prisoner’s circumstances.9 The latter is called an “events-based review”. It could arise, for example, when a prisoner has been charged with an assault within the prison, or has attempted to escape. The security classification review must consider both the risk factors addressed at the initial assessment stage (as outlined at [9] above) and also subsequent developments, such as the prisoner's behaviour in prison, their current mental health, their motivation to achieve the objectives set out in their management plan, and the remaining duration of their sentence.10
[11] The security classification process is completed once all of the following steps are completed:11
(a) a risk assessment has been undertaken;
(b) the staff member undertaking the risk assessment has notified the chief executive or prison manager of the security classification that, in his or her opinion, ought to be assigned to the prisoner;
4 Corrections Act, s 47(1).
5 See Bennett v Superintendent, Rimutaka Prison [2002] 1 NZLR 616 (CA) at [81]; Taylor v Chief Executive of the Department of Corrections [2015] NZHC 2196 at [24] and [103].
6 Taylor v Chief Executive of the Department of Corrections [2016] NZHC 1805 at [2].
7 Corrections Regulations, reg 45.
8 Regulation 44.
9 Corrections Act, s 47(3).
10 Corrections Regulations, reg 48.
11 Regulations 46 (for the initial assessment) and 49 (for a review).
(c) the chief executive or prison manager has decided whether the security classification recommended under (b) is appropriate and either:
(i)has approved that recommended classification; or
(ii)has assigned a different classification.
[12] Prisoners must be promptly informed in writing of their security classification and the reasons that that classification was assigned.12 If a prisoner is dissatisfied with the security classification that has been assigned, he or she may apply for a reconsideration, which must be considered promptly.13 The prisoner must also be informed in writing of the reconsideration decision.14
[13]The reconsideration process is governed by reg 51, which provides:
If an application is made to the chief executive for the reconsideration of a security classification under section 48(2) of the Act, the chief executive must—
(a) ensure that the process that was followed in assigning or most recently reviewing that classification as the case requires, is reviewed; and
(b) decide whether or not the prisoner’s current security classification is appropriate and either—
(i)confirm that classification as the appropriate security classification; or
(ii)assign a different security classification to the prisoner.
[14] Regulation 52 provides that any person undertaking the assignment, review, or reconsideration of a prisoner’s security classification must:
(a) be given access to the prisoner’s file kept by the department; and
(b) take into account any relevant information in any form that is readily available to the person; and
(c) record in writing the person’s recommendation or decision and the reasons for it.
[15] The security classification process is completed electronically in what is known as the Integrated Offender Management System (“IOMS”). To give effect to the statutory and regulatory regime, Corrections has devised a points- based classification system, the details of which are set out in guidelines headed “Completing Male Review Security Classification Guidelines” (“Guidelines”). The Guidelines were issued by the Chief Executive pursuant to his powers under s 196(1) of the Act. Each risk factor or other relevant matter is assigned a point value. All questions are answered through the selection of an appropriate score. The Guidelines are highly prescriptive and outline the criteria that must be taken into account when choosing the
12 Corrections Act, s 48(1).
13 Section 48(2).
14 Section 48(4).
appropriate score for each field in the IOMS matrix. A preliminary or indicative security classification is reached based on the total accumulated score. Calculation of the applicable security classification is automatically undertaken upon completion of the IOMS matrix form. While there is no provision for comments in individual sections, supporting comments may be entered in section “C. Assign Security Classification” for the initiating officer, and section “D. Approval” for the recommending officer and approving officer. These comments do not, however, affect the total accumulated score.
[16] The IOMS scoring system assists Corrections officers to make decisions about the appropriate security classification for a particular prisoner, but is not determinative of the outcome. The indicative classification in the IOMS matrix can be overridden when appropriate. This recognises that the Guidelines and associated IOMS matrix may not capture all matters that are relevant to the risk assessment exercise in a particular case. The Guidelines provide, however, that “[a] clear reason must be given for the override” and that “a classification may not be overridden based on a factor that has already been incorporated in the assessment”. The Guidelines require the assessing officer to indicate why he or she believes the indicated security classification is incorrect, as a result of additional information not accounted for in the assessment process.
[6] The security classification system has three categories of external risk. In combination with the internal risk system, this creates five overall categories: minimum, low, low-medium, high, maximum.
[7] The low-medium category is for prisoners with a higher external risk, but an internal risk the same as minimum and low category prisoners. They cannot be housed in external self-care units, nor can they work outside the wire. Internal risk is the risk posed by a prisoner to the safety, security and good order of the prison while the prisoner is inside the prison’s secure perimeter.
[8]Internal risk is used to determine:
(a) the security level at which the prisoner will be managed and accommodated;
(b) access to rehabilitative and reintegrative programmes, and interventions in accordance with the offender plan, including eligibility for special treatment units;
(c) internal movement and mixing with other classification of prisoners within the system; and
(d) suitability for various types of employment and education, whether unit- based or service-based within the prison.
[9] External risk is the risk a prisoner poses when outside the prison’s secure perimeter, where it is authorised (for example, temporary release, release to work, temporary removal and employment outside of the perimeter fence line) or as the result of an escape.
[10]External risk is used to:
(a) determine a prisoner’s eligibility for authorised leave, including temporary removal and temporary release;
(b) determine employment outside the prison, including supervised work parties and release to work;
(c) determine prisoner movement when being moved for administrative reasons, for example on transfer; and
(d) assist the Parole Board to make recommendations to prisons regarding interventions and reintegration activities a prisoner is required to complete prior to release from prison or their next parole hearing.
[11] Documents produced in evidence show Mr Genge’s security classification has been:
Date
Preliminary Classification
Classification after consideration of potential override
April 2012 Low-medium Low October 2012 Low-medium Low April 2013 Low-medium Low October 2013 High High May 2016 (event-based review) High High November 2016 Low-medium Low-medium April 2018 (event-based review) High High May 2018 Low-medium Low-medium September 2020 Low-medium Low-medium March 2021 Low-medium Low-medium September 2021
(confirmed November 2021)
Low-medium Low-medium March 2022 Low-medium Low-medium
[12] Since May 2018, Mr Genge’s preliminary and final security risk classification has been low-medium.
[13] Mr Genge held a low security classification from February 2012 to October 2013 while at Rolleston Prison. On 28 February 2012, his classification was assessed via the automated system as low-medium. The assessing officer recommended an override to low, based on the fact that all Mr Genge’s file notes for the previous two to three months were positive, and he had no misconducts on file. This was approved with the approving officer noting that Mr Genge had made steady progress since transferring from Christchurch Mens’ Prison. The override to low was approved based on his ongoing progression and continued good behaviour.
[14] In October 2013, Mr Genge’s classification was high. The assessing officer noted that Mr Genge had several documented file notes, incidents and a misconduct for poor behaviour, as well as aggressive and intimidating behaviour towards staff and a visiting doctor.
[15] Pursuant to s 48(2) of the Act, a prisoner can request a reconsideration of their security classification. This must be considered promptly.15 The prisoner must also be informed in writing of the reconsideration decision.16
[16] In May 2016, Mr Genge was reclassified to a high security status. This followed certain incidents which had led to him being charged with misconduct as a result of which he was sentenced to periods of loss of privileges and, separately but ultimately, reclassification from low-medium to high security. He brought judicial review proceedings as a result of which counsel for Corrections recognised that the chief executive should have treated a letter of 13 September 2016 as a request for reconsideration of his classification. There was a later and regular review on 2 November 2016 when Mr Genge was reclassified back to low-medium.
15 Section 48(2).
16 Section 48(4).
[17] In a judgment of 5 June 2018, Davidson J made a declaration that, in breach of s 48(2) of the Act, the chief executive of Corrections did not ensure that Mr Genge’s security classification was reconsidered promptly following Mr Genge’s letter of 13 September 2016.17
[18] On 12 January 2021 and 22 February 2021, in advance of his review, Mr Genge requested a security classification override to low. On 22 March 2021, Mr Genge’s classification remained as low-medium.
[19] The classification review of March 2021 recorded a preliminary security classification. Where there was potential for an override, the assessing officer recorded:
PCO has checked security classification no errors detected. Prisoner has twice requested a security classification over-ride to Low on the 14 Jan 21 (PCO) and 22 Feb 21 (APCO) and was declined. On the 1st February 2021 a Request for Reconsideration of Security Classification was completed by Senior Advisor to the Regional Commissioner. The advisor acknowledged and confirmed that the security classification was accurate and correct for Low Medium.
Assessors comments, offender notes, prisoners need to complete rehabilitation programmes and psychological treatment does not warrant any consideration for a reduction in security classification. ROC:ROI 0.75716 Internal Risk equals - 11 External Risk equals - 34. PCO does not support a over-ride to Low. PCO supports Low Medium classification as calculated
Recommend Low Medium classification
[20]The assessing officer also made a note:
A.5.1
Prisoner GENGE has had one incident that occurred on the 22 December 2020 for Intimidating Behaviour.
A.5.3
Indicated as Average. This is based on negative interactions prisoner GENGE has had with staff over the last six months which have been recorded on offender file notes.
12.10.20. Antagonising and manipulative behaviour.
14.01.21. Expletive language towards staff.
08.03.21. Displayed aggressive behaviour. A.5.5.
21.02.21. Prisoner was requested twice to engage with CM regarding his Pathway forward but refused to come out of his cell and meet with CM
Prisoner GENGE has generally been managed without major issues in Kotuku Hut Unit.
17 Genge v Chief Executive of the Department of Corrections [2018] NZHC 1302 at [42].
He has been employed as a Unit Worker since 15.06.20 and to his credit has been consistent with the high standard of work he puts out.
[21] In September 2021, Mr Genge was classified as low-medium. He sought reconsideration of the classification. The Senior Advisor to the Regional Commissioner did this. On 18 November 2021, Mr Genge was advised by letter that his classification had been reconsidered and remained low-medium.
[22] Mr Genge’s security classification was reviewed in March 2022. Again, his security classification was signed off as low-medium. No override was applied.
[23] Mr Genge first filed a statement of claim for judicial review on 23 November 2021. In that statement of claim, his complaint was that Corrections refused to reconsider his security classification following a request he made for such reconsideration under s 48(2) of the Act.
[24] In a document of 18 November 2021, in the form of an affidavit, Mr Genge made various statements as to the RoC*RoI assessment tool being used in the security classification of prisoners and what he considered was the unfairness and illegality of that.
[25] In a minute of 10 February 2022, Osborne J noted that Mr Taffs, as counsel for Corrections, explained that a review of Mr Genge’s security classification had commenced on 1 November 2021 without Mr Genge having to complete a form which had initially been requested from him. Counsel suggested, with that review, the particular application Mr Genge made at that time might be moot. Osborne J adjourned the proceedings for a hearing on 17 May 2022.
[26] On 1 March 2022, Mr Genge filed documents which could be considered as an application for leave to file an amended statement of claim. In that document, Mr Genge set out legal grounds on which he would seek a declaration that Corrections’ use of the RoC*RoI assessment tool in determining the appropriate security classification for a prisoner was unlawful.
[27] I convened a telephone conference with counsel and Mr Genge on 24 March 2022 after counsel for Corrections expressed a concern that, with developments in the proceedings, it might not be possible to proceed with the hearing scheduled for 17 May 2022.
[28] During the conference, Mr Genge confirmed that he wished to argue only the matters that were raised by way of the proposed amendments and not argue the matters referred to in the original statement of claim. Mr Genge said the only further evidence he wished to put before the Court in support of amended pleadings would be documents held by the Department of Corrections showing how his security classification had changed during the time he had been a prisoner. Mr Genge had made a request under the Official Information Act 1982 for copies of those documents. Corrections expected the documents to be available to Mr Genge and to the Court soon after 8 April 2022. Copies of the documents were to also be provided to the Court through inclusion in a common bundle.
[29] I accordingly made timetabling directions for the filing of an amended statement of claim and the filing of a statement of defence to the amended claim. I also permitted the parties to file any further affidavit required for the hearing provided they did so by 12 May 2022.
Pleadings and submissions
[30] In an amended statement of claim filed with the Court on 28 March 2022, Mr Genge alleged:
The recent introduction of the RoC*RoI, into the Security Classification Review of prisoners at B.1.1 means he (and others) cannot gain a lower security classification than low medium, so cannot do reintegrative activities, so cannot present at parole hearings with a realistic chance of parole.
…
Reintegrative activities are engaged on minimum security only…
[31] Mr Genge said the use of the RoC*RoI tool was unfair and unreasonable because it was used to predict what he might do within five years of his release, so penalised him for future offending that had not been committed, had not been the
subject of any charge and had not been proved. He said use of the RoC*RoI assessment tool breached the New Zealand Bill of Rights Act 1990 (NZBORA) and the United Nations Standard Minimum Rules for the Treatment of Prisoners (Nelson Mandela Rules), and was a breach of the Chief Executive’s obligations under the Act.18 In submissions, Mr Genge said use of RoC*RoI breaches the International Covenant on Civil and Political Rights (ICCPR).
[32]Mr Genge sought:
(a) a declaration identifying the nature and extent of the breaches of tort, the NZBORA, and the common law as alleged or otherwise found;
(b) compensation in the form of damages and exemplary damages; and
(c) such further order as the Court sees just.
[33] In his document of 18 November 2021, Mr Genge submitted that RoC*RoI is based on 133,000 criminal histories. He submitted the algorithm assesses 32 inputs and uses a statistical method called logistical regression to calculate “the risk of reconviction” and “risk of imprisonment”. RoC*RoI uses static variables to develop its algorithm. Mr Genge said the static figures, such as an offender’s number of prior convictions or their total years spent in prison, are all the result of human decisions. Mr Genge submitted this perpetuates bias in the New Zealand criminal justice system. Mr Genge said use of the RoC*RoI system penalises prisoners for what they might do within five years of release when they cannot have had the benefit of engagement in reintegrative activities. He said use of the tool in determining his security classification denies him the right to the presumption of innocence, the right to be informed of the reason for arrest, right to be charged promptly or released, the right to be tried without delay, the right to instruct a lawyer, the right to a fair trial and a right to trial by jury, as provided for in the NZBORA.
18 International Covenant on Civil and Political Rights 999 UNTS 171 (opened for signature 16 December 1966, entered into force 23 March 1976); United Nations Standard Minimum Rules for the Treatment of Prisoners GA Res 70/175 (2015); and Corrections Act, ss 57, 58, 59, 60(1), 60(2), 61, 65, 66(1) and 67.
[34] In that document, Mr Genge said his case was not an attack on the RoC*RoI tool. He said, in essence, he was challenging the use of the tool as part of the security classification for a prisoner. He said use of the RoC*RoI tool meant he could not go lower than low-medium security, two classifications removed from the minimum classification required for him to participate in reintegrative activities.
[35] In submissions dated 25 October 2021 in support of his initial statement of claim, Mr Genge said since 13 January 2003 his RoC*RoI score had consistently been higher than 0.7. Combined with the fact he had been sentenced to imprisonment for five or more years for a sexual or violent offence, his score could not be reduced through any individual efforts on his part. He said this makes it impossible for him to progress to a minimum security classification which would enable him to participate in rehabilitative and reintegrative programmes.
[36] In oral submissions before me, Mr Genge said, because of the introduction of RoC*RoI to the security classification process and the predictive nature of that assessment, his detention was arbitrary. He submitted, because the static variables on which RoC*RoI was based could never change, the use of RoC*RoI unfairly prejudged him.
[37] For Corrections, Mr Taffs said the primary submission was that Mr Genge’s arguments failed to account for the inclusion of an “override” facility. He submitted that facility allows Corrections to change a prisoner’s security classification to an appropriate one, irrespective of what has been automatically generated with reference to the RoC*RoI algorithm.
[38] Mr Taffs noted Mr Genge had not challenged the actual security classification arrived at. He submitted the challenge was essentially simply to the use of RoC*RoI.
[39] Mr Taffs submitted the evidence establishes that Mr Genge is able to obtain a security classification below low-medium upon the application of an override. His RoC*RoI score does not prevent this. Positive engagement and interactions are key factors in obtaining an override, as is involvement in treatment and rehabilitation
programmes. He submitted a classification of low-medium does not prevent Mr Genge from participating in programmes or treatment.
Analysis
[40] Affidavit evidence presented for Corrections confirms that RoC*RoI is utilised in the Integrated Offender Management System (IOMS). RoC*RoI is a statistical algorithm used to determine the probability that over the next five years someone will be convicted and sentenced to a term of imprisonment. The RoC*RoI score is calculated automatically in the IOMS and is expressed as a score. Scores of 0.7 and above are considered as high risk, 0.3 to 0.7 are medium risk, and below 0.3 are low risk.
[41] The algorithm takes into account most static (unchangeable) factors that are empirically associated with an increased risk of offending. These include:
(a) age when first convicted;
(b) number of previous convictions;
(c) the seriousness score of previous convictions;
(d) current age;
(e) time since last conviction; and
(f) gender.
[42] The RoC*RoI algorithm was introduced in 2001 and 2002. In 2020, Corrections refreshed the RoC*RoI algorithm, updating the combinations and weightings of variables to more accurately reflect risk based on current evidence. The 2020 update resulted in all individuals’ RoC*RoI scores being recalculated.
[43] Mr Collin-Smyth has a Masters of Science in forensic pathology. He is a senior practice advisor with Corrections and in 2020 helped with the implementation of the Strengthening of RoC*RoI project. It was his evidence that the revised system was shown to classify escape risk more accurately, leading to an overall lower escape rate.
He says, as a result of reclassification, up to 500 more prisoners would be given access to rehabilitative opportunities outside the wire.
[44] Corrections’ evidence is that RoC*RoI is used as the first indicator of risk and is used for security classifications, programme eligibility and as a guide to how often probation officers or case managers should see people on their caseloads.
[45] The evidence establishes that Mr Genge’s RoC*RoI score is only part of the information utilised in the initial computer-generated security classification.
[46] The IOMS security classification review forms for male prisoners used by Corrections refer to a number of factors that can be assigned a “score”. A higher score is associated with higher risk. The internal risk factors include the prisoner’s risk of escape, mental health, offence history and cooperation in his unit, workplace and programmes. The external risk factors include whether the prisoner is highly dangerous or a serious offender, his risk of escape, his behavioural stability, compliance and risk of contraband importation, and whether the prisoner is a dangerous sex offender.
[47] A prisoner’s RoC*RoI score is relevant to the assessment of whether a prisoner is highly dangerous. A RoC*RoI score of greater than 0.7 and having been sentenced to five years’ imprisonment for a sexual or violent offence adds 20 points to a prisoner’s external risk score. This has been the case for Mr Genge since at least April 2012.
[48] The evidence of Mr Anton Edwards, Custodial Systems Manager of Christchurch, was that the computer generated forms use information gathered from a range of sources, including unit staff (three different staff are required), professional assessment of the prisoner and any recommendation they or the unit principal corrections officer might have on the prisoner’s risk. I accept the IOMS generates a preliminary security classification determined by the internal and external risk scores.
[49] I accept the evidence of Mr Edwards that all preliminary security classifications can be “overridden” with rationale to either increase or decrease the
calculated classification. He said this means, if there are automated factors that do not accurately reflect the prisoner’s behaviour, the assessing officer can change a classification score, within reason, to a more appropriate one. When an override is completed to a lower security classification, the rationale needs to be entered in the classification form and signed off in the same manner as all security classification reviews are. Mr Edwards’ evidence in this regard is consistent with the classification forms in evidence for Mr Genge.
[50] It was the evidence of Mr Edwards that, in his position as Custodial Systems Manager, he gives final approval for initial and reviewed security classifications. He said, prior to approval of any classification, he reviews the draft assessment, cross- references any information added by staff in relation to outcome considerations, file notes and any incident or misconduct reports. He then completes a section on the form with any comments and approves the ultimate security classification assessment.
[51] The evidence of Mr Meredith, acting Manager of Strategic Analysis for Corrections, was that, because Mr Genge has a RoC*RoI score over the threshold of
0.7 and is serving a term of imprisonment greater than five years for a violent or sexual offence, he has an internal risk score too high to receive an automated security classification assessment below low-medium. It was his evidence however that Mr Genge could still be classified as low or minimum but this would require prison staff to override the automated assessment.
[52] Mr Meredith analysed the prison population on 30 June of 2018, 2019, 2020 and 2021 to determine how often this set of circumstances applied and what proportion of those in a similar position to Mr Genge were overridden to be either minimum or low security. His evidence was that, applying the criteria of a sentence longer than five years for sexual or violent offending and a RoC*RoI of 0.7 or above, there were an average of 414 matches per year. Of these, an average of 33 per cent were in minimum or low security, indicating that override is relatively common. Forty per cent were in low-medium security and the remaining 27 per cent were in high or maximum security.
[53] It is apparent from the IOMS security classification review forms produced for Mr Genge that the preliminary security classification, any override and the reasons for the override are initially signed off by the assessing officer. They then have to be approved by a recommending officer, then a further approving officer who have to confirm that they have checked the form and recommend the security classification and, if relevant, override.
[54] In Smith v Attorney-General, Mr Smith, through judicial review, challenged his security reclassification as a maximum security prisoner from minimum security after having been apprehended in Brazil where he had escaped to during a temporary release from custody.19 Katz J said, in her view, the matrix in the security classification review forms prepared by Corrections and Corrections’ guidelines did not adequately capture all matters that were relevant to the risk assessment required by s 47 of the Act in relation to Mr Smith. She concluded her discussion as to that by saying:20
It is simply not possible for any “standard form” risk assessment tool to accurately predict all of the risk factors that may be present in any given case. Accordingly, while such a tool may adequately assess risk in many cases, there will always be exceptions. The override mechanism provides for such exceptions.
[55] Through using the RoC*RoI matrix, the nature and seriousness of Mr Genge’s initial offending will always have to be considered in determining the appropriate security risk classification for him.
[56] The purpose of the corrections system is to improve public safety and contribute to the maintenance of a just society through various means, including ensuring that custodial sentences and related orders imposed by the courts and the Parole Board are administered in a safe, secure, humane and effective manner.21 The Act refers to the first principle that is to guide the operation of the corrections system as:22
(a) the maintenance of public safety is the paramount consideration in decisions about the management of persons under control or supervision[.]
19 Smith v Attorney-General, above n 3.
20 At [47].
21 Corrections Act, s 5(1)(a).
22 Section 6(1)(a).
[57] The use of the IOMS matrix, including a RoC*RoI score, in arriving at a preliminary security classification for a prisoner is consistent with that purpose and principle of the Act.
[58] Section 47 of the Act requires the chief executive to assign a security classification that reflects the level of risk posed by that prisoner while inside or outside prison, including the risk of escape and the risk that escape would pose to the public.
[59] Section 196 of the Act empowers the chief executive to provide to staff members of corrections prisons guidelines on the exercise of powers under the Act or any regulations made under the Act. Section 200 permits the Governor-General, by Order in Council, to make regulations ensuring the good management of prisons,23 ensuring the safe custody of prisoners,24 providing for the management, care, treatment, well-being, and reintegration into the community of prisoners,25 and other matters contemplated by the Act, necessary for its administration or necessary for giving it full effect.26
[60]The Regulations state:
44 Principles of security classification
(1) A prisoner should be assigned the lowest level of security classification at which the prisoner can safely and securely be managed given the assessment of the level of risk posed by a prisoner.
…
[61]Regulation 45 states:
45 Assessment of risk
Any staff member conducting an assessment under section 47(1) of the Act of the level of risk posed by a prisoner for the purposes of undertaking a security classification, must take into account—
(a)the seriousness of the offence for which the prisoner is serving a sentence of imprisonment or, in the case of a prisoner serving
23 Section 200(1)(a)(i).
24 Section 200(1)(c).
25 Section 200(1)(d)(i).
26 Section 200(1)(g).
sentences of imprisonment for 2 or more offences, the seriousness of the most serious of those offences:
(b)the duration of the sentence or sentences being served by the prisoner:
(c)any history of escapes or attempted escapes from custody by the prisoner:
(d)any history of violent behaviour by the prisoner:
(e)any history of mental ill health:
(f)whether the prisoner is awaiting trial or sentencing on any further charges and, if so, the nature of those charges:
(g)any additional matter specified in writing by the chief executive as a matter to be taken into account in conducting a risk assessment under section 47(1) of the Act.
[62] In his affidavit, Mr Collin-Smyth explained that IOMS is used as the principal source of information required to calculate the applicable security classification using the IOMS matrix. He said other sources the officers should refer to include the Judge’s sentencing notes.
[63] Mr Genge and two co-offenders were found guilty of what was described as the brutal murder of a young woman on 17 September 1994.27 The pathologist’s opinion was that the pattern of her scalp and brain injuries indicated a ferocious and prolonged assault. Her head had been held by the hair and repeatedly bashed against the edge of a step. There had been further blows, probably with a fist, to the front of the head and face and others to the side of the head, probably violent kicks with relatively soft footwear. There was evidence of recent forceful vaginal penetration. The examination revealed bruising to the neck, shoulders, arm and left hand in a pattern consistent with the victim being forcibly restrained for the purposes of sexual violation. Other injuries indicated she had been dragged on her back while conscious with her jeans still in place.
[64] On sentencing the three defendants found guilty of the murder and rape, the trial Judge said, due to the age and intoxicated condition of the deceased, she was
27 R v October CA477/95, 31 July 1996 at 1-2. This case is Mr Genge’s co-offender’s appeal against conviction and contains a description of the offending.
helpless and at the mercy of her assailants.28 The victim was callously left in the grounds of the school where her body was discovered the following morning by a passer-by. The Judge sentenced Mr Genge on the basis he was the principal offender. He received a life sentence with a minimum period of 15 years’ imprisonment. The Judge said the other two had been convicted as parties. They were each sentenced to life imprisonment but with no minimum term of imprisonment. All three offenders were sentenced to 12 years’ imprisonment for the rape.
[65] Also relevant to the use of the RoC*RoI measure, Mr Genge was convicted of kidnapping for gain for an offence committed on 18 October 1997. For that, he was sentenced to three years and six months’ imprisonment, concurrent with his life sentence for the 1994 murder and 12 year sentence for rape.29
[66] The facts of this conviction were that Mr Genge and four other prisoners detained six prison officers in an office in Paparua Prison through the threat and use of what appeared to be sticks of explosives. Three of the prisoners maintained that two of their number serving life sentences for murder were wrongly convicted and had been seeking redress. Three of the prisoners who had been the primary participants in the event received sentences of seven years’ imprisonment. Mr Genge and one other had been active in dealing with the hostages but the Crown acknowledged their level of involvement and participation were lower. They received sentences of three years and six months’ imprisonment.
[67] I accept the seriousness of Mr Genge’s convictions for murder and rape were thus material to the security classification Corrections arrived at. The seriousness and nature of that offending has to be relevant in assigning a security classification “that reflects the level of risk posed by that prisoner while inside or outside prison, including the risk of escape and the risk that escape would pose to the public”, as referred to in s 47(1) of the Act. There was no error in the way they were reflected in the RoC*RoI score and, through that, in the preliminary security classification in the IOMS matrix.
28 R v Kirner HC Christchurch T45/95, 25 October 1995.
29 R v Genge HC Christchurch T10/98, 3 July 1998.
[68] In R v Peta, the Court of Appeal considered how empirically validated actuarial measures for ascertaining risk could be used and considered by judges in the context of assessing risk when deciding whether and on what terms a prisoner could be subject to an extended supervision order (ESO) under the Parole Act 2002.30 Glazebrook J, for the Court, referred to the evidence of the two psychologists called by the Crown and by the defence. The Court said:
[16] Mr Riley and Dr Vess were in general agreement that empirically validated actuarial measures for ascertaining risk based on static factors should form the foundation of risk assessments in relation to sex offenders. Various changeable or dynamic factors, any other risk factors such as psychopathy or sexual deviancy and other aetiological (causative) factors should then be considered in formulating an individualised assessment of the nature of the risk presented by an individual offender. Risk assessments using actuarial tools have, despite the limitations of those instruments, proved much more accurate than non-structured clinical assessments.
[69] The measure considered in depth by the Court of Appeal in that case was the “Automatic Sexual Recidivism Scale” (ASRS).
[70] Mr Genge’s score on that measure was also one of the matters referred to on the application of the IOMS matrix for external risk. Mr Genge did not challenge the application of that measure.
[71] The use of RoC*RoI as an actuarial measure of future risk of offending was subject to strong challenge in the Court of Appeal in Belcher v Chief Executive of the Department of Corrections.31 A particular criticism raised by a psychologist for the prisoner in that case was that the RoC*RoI measure was of limited relevance as it related to general offending, not sexual offending against children.32 That criticism could not be made as to the IOMS risk assessment of Mr Genge because, given his conviction for murder, Corrections do have to assess the risk of general offending. The ASRS measure used in the IOMS matrix assesses the external risk as to sex offending.
30 R v Peta [2007] NZCA 28, [2007] 2 NZLR 627.
31 Belcher v Chief Executive of the Department of Corrections [2007] 1 NZLR 507 (CA).
32 At [78].
[72] In Belcher, the Court of Appeal found that, on all the evidence, Mr Belcher was a member of a high risk group of sexual offenders of whom 40 to 50 per cent would reoffend sexually within 10 years and of whom around 43 per cent would do so in respect of children. The Court considered his continuing offending in other respects was relevant to the assessment of risk and, as to that, said:33
The two factors primarily relied on by the appellant might suggest some diminution in risk, but there are other factors, also not allowed for in the assessments, which go the other way. His continued offending in other ways, his RoC*RoI score and the results of the SONAR assessment (as to dynamic factors) provide examples. There is also Dr Wilson’s professional judgment, which Keane J accepted and which we see no reason to challenge. In totality, there is no basis for significantly downgrading the risk assessment indicated by the Static-AS measure.
[73] Section 47 and the purpose and principles of the Act, with their reference to the rehabilitation and reintegration of prisoners, require Corrections to consider all the matters referred to in regs 45 and 48 of the Regulations and, in particular, what they have come to know of a prisoner through having them under their supervision and in their care in arriving at the appropriate security classification. That is also important given the requirement in reg 44(1) of the Regulations that:
A prisoner should be assigned the lowest level of security classification at which the prisoner can safely and securely be managed given the assessment of the level of risk posed by a prisoner.
[74] On an application under s 107I of the Parole Act, for a prisoner to be subject to an ESO, the Judge must make an assessment as to whether there is a high risk an offender will commit a relevant sexual offence or a very high risk they will commit a relevant violent offence.
[75] In R v Peta, the Court of Appeal said the making of an ESO is a judicial decision and not that of the health assessor.34 Referring to an earlier judgment of the Court of Appeal, the Court said “every case requires individual judgment and assessment”.35
33 At [93].
34 R v Peta, above n 30, at [7].
35 At [7], citing Barr v Chief Executive of the Department of Corrections CA60/06, 20 November 2006, at [32].
[76] The security risk classification for a prisoner should be made in the same way but that determination is to be made by Corrections, not a Judge as is required with an ESO.
[77] It would not be consistent with the purpose and principles of the Act or consistent with the Regulations for the security classification of a prisoner to be determined solely by their score on the RoC*RoI measure of risk.
[78] I am however well satisfied that this has not been the way Corrections has arrived at an appropriate security classification for Mr Genge. In using the IOMS matrix, Corrections includes scores for dynamic factors (those capable of being addressed by offenders) as to internal risk. Those matters include the current state of a prisoner’s mental health and various matters in relation to his cooperation in the unit, workplace and with any programmes. In the calculation of external risk, under the heading of “Behavioural stability, compliance and risk of contraband importation”, Corrections is required to consider current forensic concerns, incidents in the past six months, compliance with prison rules, compliance with staff requests, positive interaction with staff and other prisoners, and motivation to achieve plan activities.
[79] The computer-generated classification produced through the IOMS matrix is described as a preliminary security classification. The form requires that preliminary classification to be considered by the assessing officer and whether it should be overridden in light of additional information which the officer has. The preliminary classification and the assessing officer’s opinion as to whether it should be overridden and their reasons for that decision have to be considered by both a recommending officer and the approving officer. The evidence establishes this is the process followed in the security classifications arrived at for Mr Genge.
[80] The assessment as to the security classification required for prisoners is to be made by the chief executive of Corrections and those to whom the chief executive has appropriately delegated responsibility for that assessment.36 It is a determination
36 Corrections Act, s 47(1).
which would not normally or appropriately be the subject of judicial assessment, as is necessary with the making of an ESO.37
[81] It is well recognised that courts will generally defer to prison management as to judgments which affect the safety and security of prisons and prisoners, including their security risk classification.38
[82] I am satisfied that Corrections’ incorporation of a RoC*RoI score in the security classification review process for Mr Genge has not been unlawful and has not inhibited or fettered the chief executive from assessing the appropriate security classification for Mr Genge as required by the Act.
[83] The purpose of the Corrections system, as generally referred to earlier, also includes:39
(c) assisting in the rehabilitation of offenders and their reintegration into the community, where appropriate, and so far as is reasonable and practicable in the circumstances and within the resources available, through the provision of programmes and other interventions[.]
[84]Another principle that guides the operation of the Corrections system is:40
(h) offenders must, so far as is reasonable and practicable in the circumstances within the resources available, be given access to activities that may contribute to their rehabilitation and reintegration into the community[.]
[85]Section 52 of the Act states:
52 Rehabilitative programmes
The chief executive must ensure that, to the extent consistent with the resources available and any prescribed requirements or instructions issued under section 196, rehabilitative programmes are provided to those prisoners sentenced to imprisonment who, in the opinion of the chief executive, will benefit from those programmes.
37 Bennett v Superintendent, Rimutaka Prison, above n 5, at [68]-[69] and [78]; Taylor v Chief Executive of the Department of Corrections [2010] NZCA 371, [2011] 1 NZLR 112 at [29]; Genge v Chief Executive of the Department of Corrections, above n 17, at [37]; Gorges v Chief Executive of the Department of Corrections [2017] NZHC 2518 at [59]; and Smith v Attorney-General, above n 3, at [131]-[132].
38 See Genge v Visiting Justice at Christchurch Men’s Prison [2017] NZHC 3168 at [86].
39 Corrections Act, s 5(1)(c).
40 Section 6(1)(h).
[86] It was the evidence of Mr Edwards that Mr Genge has been assessed as needing to complete psychologist-led rehabilitation, either in a special treatment unit or individual psychological sessions. Mr Edwards said this was based on a psychological assessment, and basic markers such as a high ASRS score and high RoC*RoI score. Mr Edwards said programmes in special treatment units are available to any prisoner who is low-medium classification or below, and who has a RoC*RoI above 0.7. Mr Genge has a RoC*RoI of 0.75 meaning this treatment option is available to him. It was Mr Edwards’ evidence that it has been offered to Mr Genge previously.
[87] Individual psychological treatment is available at any security classification. Mr Edwards said Mr Genge has been offered the opportunity to engage with a psychologist one-on-one, most recently on 16 November 2020, but he declined this opportunity.
[88] The uncontradicted evidence for Corrections is thus that Mr Genge’s security classification of low-medium does not solely determine any of his current placements or opportunity for in-prison rehabilitation activities.
[89] Mr Edwards says reintegration is an integral part of all custodial sentences. He says the baseline for the assessment of engagement and reintegration activities is laid out in s 62 of the Act and reg 26 of the Regulations. They provide guidance in assessments for guided release, release to work and outside the wire employment. As provided for in the Act, the Regulations and Corrections’ policy for guided release, prisoners who have a minimum security classification are considered suitable for guided release. A prisoner of a higher security classification can be considered for guided release if they are directed by the Parole Board to be released on parole under s 28 of the Parole Act.
[90] Mr Edwards said that an override to a lower classification will be supported if a prisoner is deemed suitable for reintegration activities. Such a stipulation is more likely when a prisoner is at a stage in their sentence where release is likely or they are nearing their statutory release date. Mr Edwards said that, in Mr Genge’s last Parole Board hearing in April 2022, the Board said it continued to see Mr Genge as an undue
risk to the community but encouraged him to engage with rehabilitation and reintegration activities prior to his next hearing.
[91] Mr Collin-Smyth’s evidence was that a change in risk band will not usually result in an amendment to an existing rehabilitation pathway, as RoC*RoI is only one of the factors considered when determining sentence management.
[92] In considering an override in March 2021, the assessing officer noted that Mr Genge’s need to complete rehabilitation programmes and psychological treatment did not warrant consideration of a reduction in classification.
[93] I also accept the evidence of Mr Collin-Smyth that, if Mr Genge was considered otherwise suitable for a particular rehabilitation programme, it would be possible for the programme facilitator to request or undertake another dynamic risk assessment to determine suitability for a programme.
[94] Mr Genge’s current security classification does therefore make it impossible for him to be considered for beyond the wire reintegration activities unless he is directed by the Parole Board to be released on parole but, for the reasons already discussed, the application of the RoC*RoI measurement in the security classification process will not inevitably prevent Mr Genge from being classified as minimum risk.
[95] Mr Genge has also not established that it is only his present classification that is making it impossible for him to be involved in beyond the wire reintegration activities. As Mr Edwards emphasised in his evidence, while a specific security classification is stipulated in the policy guidance for beyond the wire reintegration activities, overrides to a lower classification would be supported if a prisoner is deemed suitable for such reintegration activities.
[96] For reasons referred to by Dunningham J in a judgment in Ericson v Chief Executive, Department of Corrections, while s 52 of the Act does impose a general duty on the chief executive to ensure prisoners are provided with “rehabilitative programmes” including reintegrative programmes, it does not confer a right to them
regardless of the cost or likely benefit.41 Any decision as to whether Mr Genge could be involved in such programmes must be “consistent with the resources available and any prescribed requirements or instructions issues under section 196 of the Act”.42 Reintegrative programmes such as through temporary release will only be approved where issues of risk to the public are satisfactorily addressed.43
[97] I have thus found on the evidence that Mr Genge’s security classification has not been unfair or unreasonable through preventing him from engaging in rehabilitation or reintegration programmes through which he might have been able to present a stronger case for the grant of parole to the Parole Board.
Summary
[98] With the findings I have made on the evidence, Corrections has established that the Roc*RoI measurement used in Corrections’ security classification of prisoners, including Mr Genge, is consistent with the purpose, principles and chief executive’s obligations under the Act. The use of the RoC*RoI measurement in Mr Genge’s classification reviews has been lawful. With that determination, I deal with the various grounds on which, either through his statement of claim or submissions, Mr Genge sought relief.
[99] Mr Genge is not subject to arbitrary detention through decisions made as to his security classification. The assessment as to that was made in the manner required by the Act and regulations made under the Act. He is detained in prison lawfully pursuant to the warrant for his detainment that was issued following his sentence to life imprisonment. The Act required the chief executive to assess Mr Genge’s risk posed inside or outside the prison in arriving at a security classification for him while he is serving his sentence of imprisonment.44 In making that assessment, the chief executive has not been required to find that Mr Genge has been guilty of a future offence and could not do so. Accordingly, the rights available to him under the
41 Ericson v Chief Executive, Department of Corrections [2015] NZHC 1157 at [21].
42 Corrections Act, s 52.
43 Ericson v Chief Executive, Department of Corrections, above n 41, at [21].
44 Corrections Act, s 47.
NZBORA if suspected of having committed an offence are of no relevance.45 Mr Genge has not been denied those rights through the security classification process.
[100] It was accepted by Corrections in Smith that prisoners have a legitimate expectation that the chief executive’s guidelines for the security classification would be followed and applied consistently.46 Mr Genge could not have had any legitimate expectation that the guidelines or requirements as to classification, as set out in the Act or regulations made under the Act, would result in any particular classification. There is no evidence to suggest the chief executive failed to comply with the legitimate expectation that Mr Genge could have as to the way in which his classification would be reviewed as required by the Act.
[101] Mr Genge alleges misfeasance on the part of Corrections’ staff on the basis they had shown “conscious disregard for those affected by official decision-making” to the effect that his release had been delayed.
[102] The relevant principles for liability were summarised by the Court of Appeal in Commissioner of Inland Revenue v Chesterfields Preschools Ltd.47
[103] Mr Genge has not identified any specific public official against whom he could allege targeted malice involving bad faith, as would be required for a public officer to be liable for misfeasance in the exercise of that officer’s public functions. There is no evidence of non-targeted malice. There is no evidence that any Corrections’ officer, in carrying out a security classification review, acted knowing that he or she had no power to do the act complained of and that the way they acted would probably injure Mr Genge. There is no evidence that any officer involved in the review acted in bad faith through knowing that what they were doing was not lawful. Mr Genge has not particularised the actual loss or damage he says he has suffered through the decisions made as to his security classification.
45 These are the rights Mr Genge alleged were breached as summarised in para [33] of this judgment.
46 Smith v Attorney-General, above n 3, at [21].
47 Commissioner of Inland Revenue v Chesterfields Preschools Ltd [2013] NZCA 53, [2013] 2 NZLR 679.
[104] For the reasons already discussed, the way in which the RoC*RoI measurement was used in the assessment process was lawful and therefore not unreasonable, unfair or an abuse of power. Mr Genge has also not demonstrated that, but for the reference to a RoC*RoI score, his security classification would have been less than what it has been or, even if that was so, he would have participated in rehabilitation or reintegration programmes in ways he has not been able to or that, if he had been, he would necessarily have been released on parole.
[105] Through his submissions, Mr Genge said the effect of the use of RoC*RoI offended the principle that a sentence must not be administered more restrictively than necessary, the principles and purpose of the Act set out in ss 5 and 6, and the original sentencing decision.
[106] I accept the submission for the chief executive that the classification system, including the use of RoC*RoI, was designed to provide an accurate and consistent measure of risk, consistent with the overarching principle of the Act to ensure public safety. Mr Genge is serving a life sentence for murder and was also sentenced to 12 years’ imprisonment for sexual violation by rape. The decisions relating to his security classification are not inconsistent with the sentence of life imprisonment he is now serving.
[107] On sentencing, the Court specified a minimum term of imprisonment of 15 years. Through the imposition of a minimum term of imprisonment, the Court was not indicating that Mr Genge could expect to be released on parole after that time.
[108] Mr Genge claimed that, if his current security classification scores remained as they have been, so as to reflect the RoC*RoI score that results from the nature and seriousness of his offending, Corrections would be in breach of its obligations under the ICCPR to provide and ensure that the penitentiary system provides for prisoners reformation and social rehabilitation48 and the Nelson Mandela Rules which also refer to the need for the fair treatment, rehabilitation and reintegration of prisoners.
48 Article 10(3).
[109] For the reasons discussed, the use of the RoC*RoI score did not inevitably result in Mr Genge’s security classification as low-medium and it will not necessarily do so in the future. Even with a classification at the current level, that, of itself, has not made it impossible for Mr Genge to be involved in rehabilitation programmes or to have received treatment that might have assisted with those aims. There is no evidence that, in using the RoC*RoI tool, Corrections has been in breach of either the ICCPR or the Nelson Mandela Rules.
Conclusion
[110] Mr Genge’s claim for review and for the particular relief he sought in these proceedings is declined.
Costs
[111] The chief executive has been successful in the proceedings. Through counsel, he sought costs on a 2B basis. Counsel must file a memorandum setting out what costs are sought on that basis within four weeks. Mr Genge may file a memorandum in response within two weeks of receiving the memorandum from the Crown. The Crown may file a memorandum in reply within two weeks of receiving Mr Genge’s memorandum. The memoranda are to be no longer than four pages. I will determine any issue over costs on the papers.
Solicitors:
Raymond Donnelly & Co., Christchurch.
Copy to:
R L Genge, Applicant.
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