Genge v Chief Executive, Department of Corrections
[2019] NZHC 172
•15 February 2019
IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY
I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE
CIV-2018-409-000522
[2019] NZHC 172
BETWEEN RICHARD GENGE
Applicant
AND
CHIEF EXECUTIVE, DEPARTMENT OF CORRECTIONS
First Respondent
AND
ATTORNEY-GENERAL
Second Respondent
Hearing: 28 – 29 November 2018 Appearances:
Applicant in person
D M Lester, Counsel to assist the Court
W S Taffs and K Courtney for RespondentsJudgment:
15 February 2019
JUDGMENT OF DUNNINGHAM J
[1] Mr Genge is a serving prisoner, having spent more than 24 years in prison. He seeks judicial review of decisions made, and actions taken, in relation to his custodial arrangements.
[2]The three events which have prompted this application for review are:
(a)the decision to reassess his security classification from low-medium to high on 19 April 2018, and the motivation for it;
GENGE v CHIEF EXECUTIVE, DEPARTMENT OF CORRECTIONS [2019] NZHC 172 [15 February 2019]
(b)the failure to return him to a low security part of the prison following the successful review of his security classification back to low-medium in mid-May 2018; and
(c)the decision to decline the applicant’s request for segregation and the practical consequences of that for Mr Genge.
[3] The first two issues are connected, while the third stands independent, although they all have a bearing on Mr Genge’s current custodial arrangements.
Background events
The April security classification review
[4] The Department of Corrections undertakes a security classification review for each prisoner on a six monthly cycle. A security classification review is undertaken using a standard form which identifies factors contributing to internal1 or external risk2 and allows for scoring of those factors. The factors identified for scoring include such matters as the prisoner’s recent offence history, his or her co-operation in the unit as demonstrated by compliance with prison rules, and his or her motivation to achieve Offender Plan activities. The total points scored gives rise to the preliminary security classification, although that classification may be overridden to a higher or lower classification, but only where there is a factor which is not already addressed in the scoring, but which is properly taken into account.3
[5] A prisoner’s security classification can also be reviewed following the occurrence of an incident or event which suggests a different security classification may be justified. This is referred to as an event-based review.
1 Being the risk posed by a prisoner to the safety, security and good order of the prison while inside the prison secure perimeter.
2 Being the risk a prisoner poses when outside the prison secure perimeter or as a result of escape.
3 This issue, and indeed the whole process of undertaking a security classification assessment using the guidelines developed by the Chief Executive under s 196 of the Corrections Act 2004, are discussed in detail in Taylor v Chief Executive, Department of Corrections [2015] NZHC 2196 at [90].
[6] In December 2017, Mr Genge’s security status was reassessed because a misconduct charge he faced for assault on a Corrections Officer had been withdrawn, leaving just one misconduct charge for breaching prison rules by entering another prisoner’s cell. His overall score meant he was classified as a low-medium security risk (down from high risk in September 2017).
[7] However, there was a further “event based review” in April 2018 which followed an incident on 16 April 2018. Mr Creagh, the operations and systems adviser at Christchurch Men’s Prison, explains that prior to 16 April there had been a number of incidents of Mr Genge refusing to follow prison rules, or behaving in a confrontational way with prison staff. However, this culminated in an incident on 16 April 2018 when Mr Genge was spoken to about his abusive and threatening behaviour towards staff in the dining room. Mr Creagh’s evidence is that Mr Genge took an aggressive stance, and was told to leave the dining room. Mr Creagh’s account of what happened next is as follows:
The applicant initially refused to leave the dining room and was then ordered to leave the dining room. The applicant walked slowly towards the dining room exit. PCO Kahu deemed it necessary to escort the applicant out. As both approached the door, the applicant deliberately stopped in the doorway obstructing PCO’s Kahu’s view and access to the unit compound. Due to the close proximity to the applicant and for safety reasons, PCO Kahu pushed the applicant out of the doorway away from himself. The applicant was then spoken to in the unit compound and was told to leave. A few minutes later, the applicant re-entered the dining room, meaning PCO Kahu had to go back into the dining room and order the applicant to leave. The applicant left the dining room and stated he wanted a complaint form which was issued to him.
[8] This account of what occurred was replicated in incident reports filed by each of the three officers present.
[9] Mr Genge sought to have PCO Kahu charged with assault as a result of what happened. However, police declined to proceed with the charge, concluding that the “actions of the staff member who moved you from the door were totally justifiable and do not constitute an assault” as Mr Genge “chose to obstruct a doorway and refused to move after being asked and then instructed several times to do so”.
[10] The residential manager at Christchurch Men’s Prison, Mr Hunter, concluded that Mr Genge’s behaviour and the risk he posed to staff was not consistent with him
continuing to be housed in the low security unit. He also, at around the same time, had his security classification reviewed. Mr Creagh says the resulting classification of Mr Genge as high risk, which he approved on 19 April 2018, was “calculated due to the applicant’s non-compliance with staff instructions, not adhering to unit rules and being argumentative, abusive and threatening towards unit staff and his case manager”.
[11] Mr Genge immediately sought consideration of the reclassification and it was considered by the Senior Adviser to the Regional Commissioner, Southern Region.4 On 14 May 2018, Mr Genge was advised that, following reconsideration, adjustments had been made which resulted in his security classification being revised back to low-medium. Specifically, the Senior Adviser believed there was insufficient evidence to support the rating on some sections of the form relating to compliance. Furthermore, the classification undertaken on 19 April 2018 had captured a misconduct charge that should have been removed because it had been withdrawn. Once it was excluded and the other adjustments made to Mr Genge’s assessment, his score resulted in a low-medium classification.
[12] However, Mr Genge was not returned to a low security environment, a decision which Mr Genge takes issue with.
The request for voluntary segregation
[13] On 27 September 2018, Mr Genge made a request for voluntary segregation from other prisoners. The terms of his request read as follows:
To Whom It May Concern
My name is Richard Genge and I request protective custody as I fear for my safety.
[14] Prison staff considered this application and asked for further information to support it but Mr Perry, the Principal Corrections Officer of Rawhiti Unit, states in his affidavit that Mr Genge refused to provide any further information and would not give any reasons for wanting voluntary segregation.
4 Pursuant to s 48(2) Corrections Act 2004.
[15] Given that Mr Genge had been a mainstream prisoner for 24 years without any apparent concerns for his safety, and in the absence of any details about what the particular safety concern was, prison staff were not satisfied that he was vulnerable. His application for voluntary segregation was therefore declined.
[16] That has had consequences for Mr Genge as he then refused to take his statutory entitlement to “yards” or recreation time, if that meant he would mix with other prisoners. He therefore considers that as a consequence of being refused his request for voluntary segregation, he is being denied his minimum entitlement to exercise under s 69(1)(a) and s 70(1) of the Corrections Act 2004 and has lodged a complaint form to this effect.
[17] It is in light of this sequence of events that I turn to consider the issues raised by Mr Genge. These are:
(a)Whether the 19 April security reassessment is amenable to review, particularly because its outcome was motivated by a desire to punish him for making a complaint to police?
(b)Whether the failure to return Mr Genge to a low security unit following the review of his security classification is a reviewable error?
(c)Whether the respondent committed a reviewable error by failing to grant the request for segregation?
(d)Whether the respondent breached the Corrections Act 2004 by denying Mr Genge his statutory entitlement to exercise? and
(e)If any reviewable error is established, what remedy should follow?
Was the 19 April 2018 security reassessment unlawful because it was motivated by a desire to punish Mr Genge for making a complaint to police?
[18] Mr Genge claims that the decision to reassess his security classification in April 2019 was:
(a)unlawful in that it breached the requirements of the Corrections Act 2004, as well as of various other documents that constrain and guide Corrections staff;
(b)unfair;
(c)unreasonable;
(d)breached his legitimate expectation that staff would classify him in accordance with the Corrections Act 2004 and other related documents; and
(e)an abuse of power because it was motivated by retaliation for Mr Genge laying a complaint of assault against Principal Corrections Officer (PCO) Kahu.
[19] The relief sought is a declaration that the Department of Corrections acted “in a manner outside of their jurisdiction”. He also seeks $100 a day for the time he spends in a high security unit until he is returned to a low-medium security unit and, that a public notice be published acknowledging the error and the ordered redress.
[20] The nub of Mr Genge’s complaint is that he was re-classified as a high security risk and returned to a high security unit because he made a complaint against PCO Kahu of assault, saying that the security classification was not warranted and “goes against all penal policy, both statutory and regulatory”. In his submission, the act of reclassification for that purpose, instead of undertaking it accurately and objectively, “… shows malice and a deliberate attempt to thwart [his] legitimate expectations …”.
[21] Mr Genge focused particularly on the inferences to be drawn from the fact that when his December 2017 security classification review was undertaken, the withdrawn assault charge was excluded from the offence history section of the security classification score sheet and this contributed to his security classification being revised down. However, when the 18 April 2018 classification was undertaken, that assault charge contributed to a score which resulted in a high risk classification. In his
view, this demonstrated that the Corrections staff who carried out the April reclassification deliberately manipulated the scoring, in breach of policy and procedure, by reinstating this charge and this demonstrated malice towards him.
[22] There is no doubt that if the scoring of a prisoner for the purposes of a security review was manipulated or falsified to achieve an adverse outcome in retaliation for something the prisoner had done, the decision would be amenable to review. As Churchman J concluded in Hudson v The Attorney-General,5 if a security review was used as retaliation for a prisoner using the complaints system that would be contrary to s 152(1)(b) of the Corrections Act 2004 which provides that one of the objectives of the Corrections complaints system is:
…
(b) to ensure all persons under control or supervision are aware of the complaints system and are able to make a complaint if and when they choose to do so, without fear of adverse consequences …
[23] Furthermore, as Mr Lester pointed out, if the fact that Mr Genge made a complaint to police was a motivation for his reassessment, the decision would have taken into account an irrelevant and unlawful consideration. It would also be the use of the power for an improper purpose.
[24] However, the real dispute here is a factual one as to whether the Corrections officer undertaking the security review reinstated the assault charge when completing the score sheet for Mr Genge’s security classification and if so, whether that was done deliberately, in retaliation for Mr Genge lodging a formal complaint of assault against PCO Kahu.
[25] The affidavit evidence filed by the respondents was unequivocal in stating that the April security classification was completed in accordance with the guidelines and based on their assessment of his behaviour to that point and, in particular, the events on 16 April 2018. As Mr Hunter, the residential manager of the prison says:
5 Hudson v The Attorney-General [2017] NZHC 2456.
The fact the applicant had made a complaint of assault against PCO Kahu stemming from an incident in the dining room on 16 April 2018 did not influence our decision to move him. I had viewed the footage and concluded the applicant had obstructed staff exiting the dining room which led to the decision to move him [to the high security unit].
[26]Similarly, Mr Creagh says:
The decision to review the applicant’s security classification was made by R M Hunter and the Kotuku unit’s PCO (PCO Kahu) after the discussion with the Deputy Prison Director due to the applicant’s behaviour towards staff … The applicant’s classification was not reviewed due to him making a complaint.
[27] Despite these denials that the reclassification was retaliatory, Mr Genge urged me to find that Corrections staff must have deliberately reinstated the assault charge when undertaking the April classification because it did not feature in the December classification. If so, I could infer from that that the resulting adverse score was the product of malice.
[28] I sought further evidence on this point from the Department of Corrections following the hearing, as it was unclear to me from the evidence filed to that point which misconduct charge contributed to the score at section A.4.3 in the December and April classifications. From the further affidavit filed from Mr Creagh, I now understand that the assessing officer in December overrode the system which automatically prepopulates the offence history field in the score sheet with any misconduct charges which were on foot in the preceding six month period (whether proceeded with or not). However, the assessing officer in April was not aware that the assault charge had been withdrawn on 29 November 2017 and had been overridden when undertaking the December classification. The offence history section of the form was the automatically pre-populated part with all charges the prisoner had faced at any time in the last six months and he did not override this when completing the form.
[29] In light of this evidence I am not satisfied that the assault charge was deliberately reinstated in the score sheet by staff to help achieve the high security classification in April. It had not been removed in December, but simply overridden,
and in April it was left in because the officer completing the form was not aware that it should have been overridden.
[30] Once that issue is addressed I consider that the evidence for the respondents clearly explain the circumstances which triggered a reassessment, being a string of incidents in March and early April 2018, leading to the confrontation with PCO Kahu on 16 April 2018. I do not consider that the evidence supports a conclusion that there was deliberate manipulation of the assessment template to achieve an adverse score for Mr Genge.
[31] In any event, as Mr Lester submitted, the remedy for a prisoner dissatisfied with the security reassessment is to apply for reconsideration under s 48 Corrections Act 2004. That application must be considered promptly and the prisoner informed in writing of the reconsideration decision.6 Mr Genge availed himself of the opportunity for reconsideration and was successful. His security classification reverted to medium-low. This is because the reviewer excluded the misconduct charge related to the assault and also adjusted some of the other scoring. For example, because there were no activities scheduled in Mr Genge’s Offender Plan, his rating for motivation to achieve them should have been scored as “good”, not “poor”. Thus, the system for ensuring the security classification was conducted consistently, accurately and fairly, functioned appropriately and was able to address Mr Genge’s concerns.
[32] I therefore conclude that there was no reviewable error in the way the event-based security classification of April 2018 was undertaken.
Was the failure to return Mr Genge to a low-medium security unit following the review of his classification a reviewable error?
[33] Despite Mr Genge having his security classification reconsidered and adjusted downwards, Mr Genge remained in Rawhiti, a high security unit, and was not returned to Kotuku, or any other low security unit in Christchurch Mens’ Prison or elsewhere.
6 Section 48(2) and (4).
[34] The reasons for this are set out in Mr Hunter’s affidavit. He explains that the following factors are taken into account when determining where a prisoner is housed:
(a)the prisoner’s motivation to work in unit based (internal cleaning, grounds and servery work), or industry based (offender industry), employment;
(b)the prisoner’s motivation to address his sentence plan objectives and attend programmes;
(c)the prisoner’s compliance with prison rules;
(d)the prisoner’s co-operation and compliance with prison staff requests; and
(e)the prisoner’s demonstrated positive interactions with staff and prisoners.
[35]He goes on to say:
A prisoner’s security classification plays a role in where a prisoner is housed as it is indicator of the risk of (sic) the prisoner poses to both staff and other prisoners. A prisoner’s behaviour in light of the [above factors] drives the prisoner’s security classification. Accordingly, whilst where a prisoner is housed is based primarily on the [above factors] …., the security classification will usually match where they are housed. Sometimes a prisoner will be moved due to poor behaviour and a security classification may be altered following this.
[36] In this case, Mr Hunter explains that while Mr Genge met the criteria for the low security Kotuku unit based on his security classification, PCO Kahu and he:
… deemed it was not suitable to place him in a low security unit due to his behaviour towards staff, non-compliance with rules and his lack of motivation to attend work programmes. The risk the applicant posed to the less experienced staff member meant it was not practicable to house him in the Kotuku unit. No other low security unit was suitable as the other low security units are identified treatment units and the applicant is not engaged in any treatment programme.
The applicant’s submissions
[37] While Mr Genge says that he should not have been moved to the high security unit in the first place, more importantly he submits that “the continued denial to house [me] in low security shows personal prejudice and an undue bias…” and argues that PCO Kahu and Mr Hunter “usurped their delegated authority” by denying him a placement which was consistent with his security classification.
Submissions of counsel assisting
[38] However, it was Mr Lester who developed this point further. He focused on reg 44(2) of the Corrections Regulations 2005 which sets out the following requirement:
A prisoner who has been assigned a security classification must be placed and managed within a facility and regime that is consistent with his or her security classification, to the extent that it is practicable (having regard to the availability of accommodation and other resources).
[39] In his submission, the evidence of Mr Hunter shows that factors which had already been taken into account in the security classification process were also being taken into account in determining whether to transfer the applicant back to a low security environment. In effect, there was a double counting of these risk factors and by doing this, the decision-makers effectively substituted their own view of the prisoner’s risk assessment for that which had been reached following formal reconsideration.
[40] More importantly though, Mr Lester submitted that the approach set out in the evidence of Mr Hunter does not comply with the Corrections Regulations because the starting point is that a prisoner must be placed and managed within a facility consistent with his or her security classification, unless it is impracticable to do so because of resources. Here, the primary reasons for not placing Mr Genge in a low security unit include his behaviour towards staff, non-compliance with rules and lack of motivation to attend work programmes, all of which are matters which had already been assessed through the security classification process and which were not considerations that fell within the proviso to reg 44.
The respondents’ submissions
[41] The respondents acknowledge that Mr Genge has remained housed in Rawhiti 2, a high security unit, and was not returned to Kotuku unit because “his behaviour and the risk he posed to the less experienced staff in that unit made it unsuitable to return him to that unit”. They say that no other low security unit was suitable as the other low security units are treatment units. The respondents submit
that in the circumstances, housing the applicant in Rawhiti 2 is not a breach of reg 44(2).
[42]They note that, as originally drafted, reg 44(2) read:7
A prisoner who has been assigned a security classification must be placed and managed within the least restrictive facility and regime that is consistent with his or her security classification, to the extent that is practicable (having regard to the availability of accommodation and other resources).
(emphasis added)
The respondents argue that the amendment of the regulation to require a consistent placement rather than the least restrictive one, affords some flexibility to where a prisoner can be housed.
[43] The respondents note, too, that there are five security classifications for prisoners being:8
(a)maximum security;
(b)high security;
(c)low-medium security;
(d)low security; and
(e)minimum security.
However, there are only three security classifications for facilities, being low, high and maximum, which also suggests there is some flexibility as to where, for example, a low-medium security prisoner could be housed.
[44] The respondents’ primary submission, however, was made in reliance on the proviso in reg 44(2) which says that the requirement to place a prisoner within a facility that is consistent with his or her security classification is subject to the
7 Before being amended on 19 July 2007 by Corrections Amendment Regulations 2007.
8 As set by the Chief Executive pursuant to s 196(1) Corrections Act 2004.
practicality of doing so, having regard to the availability of accommodation and other resources.
[45] In this case, while Mr Genge is currently housed in a high security unit and although he has a low-medium security classification, the evidence of Mr Hunter sworn on 8 October 2018 was that matters beyond prisoner’s security classification are relevant to the placement of a prisoner. Having regard to such matters he considered that there were no beds available in a suitable low-medium facility.
[46] Although Mr Genge’s security classification was low-medium, it was not considered that he could be housed in the low security Kotuku unit as he had only just been ejected from this unit for his behaviour and intimidation of staff and it would not be practical to return him to this unit, as he could not be managed in it in such a way that staff safety could be ensured. Furthermore, as Mr Hunter observed, the view was taken that it would be inappropriate to return Mr Genge to the Kotuku unit while he refused to engage in rehabilitative measures and posed a risk to staff and in particular, a lesser experienced staff member that Mr Genge had already had “run ins” with. In any event, as the Kotuku unit is now a “working unit” intended for prisoners engaging in trade training, which Mr Genge is not willing to participate in, he was not considered suitable for that unit.
[47] The respondents rely particularly on the decision in Smith v The Attorney-General, where the High Court considered reg 44(2) and held that the term “resource” included:9
… the ability to properly plan the transfer of a prisoner from one facility to another in a manner consistent with the requirement to protect the safety and wellbeing of both the prisoner and others.
As Corrections staff were not satisfied that they could ensure the safety of others the respondents considered the proviso in reg 44(2) applied.
[48] Finally, the respondents say that efforts to place Mr Genge in alternative accommodation were overtaken by his request for voluntary segregation. Although a
9 Smith v The Attorney-General [2017] NZHC 3141 at [40].
range of alternative placements were then discussed with Mr Genge, the only facility he expressed a willingness to move to was the Leimon Villas. However, the Leimon Villas were not considered an option as Mr Genge is an untreated prisoner who has not completed any rehabilitation and therefore did not fit the criteria for that unit.
Analysis
[49] Notwithstanding the 2007 amendment, I consider reg 44(2) still clearly requires a prisoner to be placed in a unit that is consistent with his or her security classification and a prisoner with a low-medium classification should not be housed in a high security facility.
[50] The only exception permitted by the regulation focuses on practical impediments to achieving this because of “the availability of accommodation and other resources”. In my view, Mr Lester is correct to say that factors relating to the prisoner’s interaction with other prisoners and staff cannot be relied on to say that transfer to a low security unit is not practicable. Those factors have already been taken into account in arriving at Mr Genge’s security classification. If they are taken into account again to justify maintaining him in a high security unit, then the prison is effectively overriding the security classification assessment it has done. That would be contrary to the purpose of having guidelines issued by the Chief Executive to ensure that the assessment of risk is undertaken as consistently and objectively as possible for all prisoners.10
[51] In my view, the function of the exception in reg 44(2) is focussed not on the prisoner’s attributes, but on the resources available in the prison to meet that prisoner’s needs and, in particular, the availability of appropriate accommodation. For example, had the issue simply been the non-availability of beds in a low security unit, the prison could not have been criticised for non-compliance (although it would have been expected to address this shortage of beds as soon as practicable).
10 As discussed at [78] and [79] in Taylor v Chief Executive of Corrections, above n 3.
[52] The application of the proviso was discussed by Lang J in Smith v Attorney-General.11 In that case Mr Smith was retained in a high security unit following his reclassification as a low-medium security risk, and this continued after he was transferred from one prison to another. The Court noted that the obligations imposed by reg 44(2) are not “absolute in the sense that Corrections is required to give full effect to them the moment a prisoner is reclassified”.12 Furthermore, Lang J held that reg 44(2) recognised the importance of practical considerations and in his view, the term “resources” included “the ability to properly plan the transfer of a prisoner from one facility to another in a manner consistent with the requirement to protect the safety and wellbeing of both the prisoners and others”.13
[53] In that case, because the prisoner was to be transferred to another prison and that took time because a number of issues relevant to providing for Mr Smith’s safety needed to be worked through, the Court did not consider that the delay of several months until the transfer occurred was sufficient to say that Corrections had failed in regard to its obligations under reg 44(2).
[54] However, even after Mr Smith had been transferred, he was still retained in a high security facility, again citing reasons of protecting him from violence by other prisoners. Lang J considered it to “be a matter of concern that there are currently no plans to transfer Mr Smith to a low-medium security unit as reg 44(2) requires”.14 However, he accepted that Corrections needed sufficient time to formulate a plan to move Mr Smith to an environment which was “commensurate both with his current security status and his need for protection from other prisoners”.
[55] While Lang J was not prepared to make a declaration that Corrections at that point was failing to comply with its obligations under reg 44(2) he noted that if Mr Smith continued to remain in high security accommodation it would become “easier to infer Corrections has decided to keep him where he is … to punish him for
11 Smith v Attorney-General, above n 9.
12 At [40].
13 At [40].
14 At [54].
past demeanours and would obviously not be giving effect to the obligations imposed by reg 44(2)”.15
[56] In my view, the case in Smith was an example of where Corrections was afforded some latitude to marshal the necessary resources to provide for Mr Smith’s protection in a unit of the prison that matched his security status. However, unless Corrections staff could be seen to be actively working towards that end, there could be a declaration that reg 44(2) had been breached.
[57] In the present circumstances, I consider Corrections staff initially confused the issue of whether it had available resources to house Mr Genge in a low security unit, with issues relating to Mr Genge’s own behaviour which had already been taken into account in arriving at his security classification. Indeed, Mr Genge’s evidence was that prisoners who had been classified as having a medium-low security risk after him were given places in Kotuku in advance of him.
[58] However, it is clear to me, with further evidence filed, that the prison has subsequently been proactive in seeking low security accommodation for Mr Genge. In Mr Creagh’s second affidavit he explained that in late November, Mr Genge was offered a transfer to a low security unit at Invercargill Prison but he declined this as he did not wish to move away from Christchurch where he had family.
[59] In terms of local options, Mr Genge was offered a place in the low security Kotuku unit on 11 December 2018. However, he declined this offer stating he would not go into any unit which was managed by Graham Hunter, the Residential Manager at Christchurch Men’s Prison. Mr Creagh explained that of the six low security units at Christchurch Men’s Prison, Mr Hunter manages four of these, being the Tirohanga Paeroa Unit, the Paparua Unit, the Kotuku Unit and Leimon Villas. Of the remaining two, the low security Te Ahuhu Unit is only available to prisoners who are on voluntary segregation, which Mr Genge is not (a topic I cover further on). The only remaining low security unit is the Matapuni Unit which does not have any beds available and is a special treatment unit running a rehabilitation programme which requires group therapy. However, Mr Genge refuses to engage in group therapy and so is not
15 At [55].
considered suitable for this programme. Furthermore, he would be considered a disruptive influence for those completing the programme.
[60] Mr Creagh notes that Mr Genge’s refusal to be in a unit which is managed by Mr Hunter means he could only be moved there against his will and possibly with the use of force, which Mr Creagh considers would create safety concerns for both staff and prisoners.
[61] A further option has been considered of moving Mr Genge to a North Island low security facility to complete the Te Kunga portion of the Tirohanga programme, which would take approximately six months, and then returning him to Christchurch Men’s Prison to complete the special treatment unit rehabilitation programme if his motivation to complete that course had improved. There is, however, no certainty that he will be accepted in the programme.
[62] The Court was provided with further updating memoranda in late January and early February. Mr Genge is now housed in the newly opened Miro Unit which treats prisoners “according to their individual needs” with a focus on helping prisoners to transition to the “residential estate”. It does not have a security classification and houses prisoners with a range of classifications from minimum to high security. Mr Genge accepts he gets one hour of exercise a day here, but now complains that “prisoners do not associate, nor are programmes available”.
[63] It is clear from the above that this situation is more complex than it first presented at hearing. At that point I consider Corrections staff had not fully understood their obligations under s 44(2) and were erroneously taking into account Mr Genge’s behavioural issues, including his interaction with staff, as warranting his retention in the high security unit at Rawhiti. However, I accept that more recently, considerable efforts have been made to place Mr Genge in a low security unit matching his security classification. I agree that where the unit is dedicated to providing a specific kind of rehabilitation or work programme that Mr Genge cannot or will not participate in, then that is not available accommodation for Mr Genge to be placed in.
[64] More difficult is the issue of Mr Genge now refusing to be placed in a low security unit if it is managed by a particular individual. Strictly speaking there is nothing in reg 44(2) which means that prisoner objections, on their own, warrant non-compliance with its requirements. However, given his expressed strong view about not wanting to go to such units and the prison’s assessment that it would create safety concerns for staff and prisoners, I consider those could amount to practical resource concerns, separate from the issues which determined his security classification, which excuse the current non-compliance with reg 44(2).
[65] In any event, while prison staff continue to actively look for, and present, opportunities for Mr Genge to be in a suitable low security unit, and are housing him in a unit that is intended to cater for individuals on different security classifications including his medium-low classification, I do not consider that the respondents are in breach of any legal obligation they have in respect of Mr Genge.
Has the prison committed a reviewable error by failing to grant the request for segregation?
[66] The Corrections Act 2004 makes provision for segregation of prisoners for various reasons, including for the security and good order of the prison and for the safety and welfare of individual prisoners. Section 59 of the Act deals with segregation for the purpose of protective custody, including at the request of a prisoner. Section 59(1)(a) provides that a prison manager may direct that the opportunity of a prisoner to associate with other prisoners be restricted if:
(a)The prisoner requests that his or her opportunity to associate be restricted or denied and the manager considers, having regard to any information supplied by the prisoner or otherwise available to the manager, that it is in the best interests of the prisoner to give that direction;
[67] As already explained, Mr Genge sought voluntary segregation but, given his refusal to provide reasons for wanting voluntary segregation, and their own knowledge of Mr Genge’s history of interaction with other inmates, prison staff refused that request.
[68]Mr Genge’s complaints are that:
(a)his request should not have been refused as his assertion that he feared for his safety should have been sufficient information to grant it; and
(b)the consequence of refusing the request was that he was restricted to his cell in order to avoid interacting with other prisoners and that breached his minimum entitlements under s 69(1)(a) and s 70(1) of the Corrections Act 2004 that permit him to be out of his cell for a full hour of exercise per day.
[69] In his statement of claim of 11 October 2018, Mr Genge states that he had informed PCO Glen Perry of his reasons for wanting protective custody but would not put anything in written form, because he says a Senior PCO has been caught giving out prisoner information to other prisoners at Christchurch Men’s Prison. However, Mr Genge does not provide evidence to support this claim. In contrast, the evidence of Ms Dierck, the Deputy Prison Director, and of Mr Perry, the Principal Corrections Officer, is that the only information they had was Mr Genge’s bald statement that he feared for his safety. Mr Perry says “at no stage has the applicant told me his reasons for wanting voluntary segregation”.
[70] Before voluntary segregation can be directed under s 59(1) the manager charged with making the decision must have reached the view that it is in the best interests of the prisoner to give that direction, having regard to the available information. It is difficult to see how that statutory requirement could be satisfied with no information available other than the prisoner’s request.
[71] Segregation of a prisoner, whether sought voluntarily or otherwise, is undoubtedly one of the most extreme responses a prison can have to a safety threat. In order to determine whether it is in the best interests of the prisoner to give that direction, the prison manager would need to have relatively detailed information about the particular risk arising so that the manager can decide whether it could be addressed in some less drastic way or whether, in fact, segregation is required.
[72] Given the lack of information on what the risk was in this case, and the knowledge the prison manager had about Mr Genge’s 24 year prison history in which
there had been no real concerns for his safety, it was unsurprising that the request was declined. The prison manager simply did not have adequate material to make the determination required by s 59(1).
[73] Accordingly, I can see no basis for the Court to intervene in the decision to decline Mr Genge’s requirements.
Has Mr Genge been denied his minimum statutory entitlement to exercise?
[74] The second limb of Mr Genge’s argument is that as a result of the refusal to direct voluntary segregation, he has, in practical terms, been restricted to his cell and has not been able to exercise his statutory right to one hour of exercise per day.16
[75] In my view, the issue here is whether the respondents have made a decision to deprive him of that statutory right or whether he is voluntarily choosing not to exercise that right as a result of the application for segregation being declined.
[76] The respondents pointed to the decision in Toia v Prison Manager, Auckland and Ors, where Brewer J noted that where a prisoner has the option of leaving their cell, but does not do so, that is a matter of their choice and is not a breach.17
[77] Mr Genge argued that the Toia decision did not apply to him as Mr Toia was on directed segregation because he was assessed as at risk of self-harm, whereas in his own case, he had voluntarily sought segregation, but it had been denied. Furthermore, the prison staff had refused to facilitate a separate regime for him so he could take exercise when no-one else was around. That meant that if he wanted recreation, he would be forced to mix with the people that he was in fear of.
[78] However, in my view, having determined that the decision to deny voluntary segregation was open to the prison manager, there is nothing to distinguish Mr Genge’s circumstances from those in Toia. He was offered the opportunity to take exercise but simply refused to do so. Indeed, as Mr Lester submitted, there is a circulatory argument in Mr Genge’s complaint. He will not mix with other prisoners because his
16 Under s 70 Corrections Act.
17 Toia v Prison Manager, Auckland and Ors [2014] NZHC 867.
request for voluntary segregation has been declined, but it has been declined because of his refusal to supply supporting information. For this reason, his remaining in his cell is voluntary because it is as a result of both his refusal to provide information in support of his application for voluntary segregation and of his refusal to associate with other prisoners.
[79] In my view, Mr Genge is the architect of his own fate. He has been offered his minimum entitlement to exercise and has chosen not to take it. There has therefore been no breach by prison authorities in providing him with his statutory minimum entitlement of his statutory rights.
Remedies
[80]If successful in his claims Mr Genge has sought:
(a)a declaration that the Department of Corrections acted in a manner outside of their jurisdiction;
(b)$100 a day from the removal of Mr Genge to high security until Mr Genge returns to a low-medium security unit;
(c)that a public notice be published acknowledging the Department of Correction’s error and redress.
[81] In the preceding discussion, there is only one issue on which I have found in Mr Genge’s favour. I have accepted that Corrections staff initially had regard to an irrelevant consideration (being Mr Genge’s behavioural issues) when declining to move Mr Genge to a unit in the prison which was consistent with his security classification.
[82] I accept that it is appropriate to provide declaratory relief on that issue. That is a vindication for Mr Genge and will assist the Department when considering how to meet its requirements under s 44(2).18 The declaration I make is as follows:
18 Forrest v Chief Executive of the Department of Corrections HC Wellington CIV-2011-409-1233, 2 December 2011 at [35].
The first respondent erred in having regard to the appellant’s behavioural issues as a matter warranting non-compliance with the requirements of reg 44, as these had already been considered and taken into account when determining his security classification.
[83] However, having made that declaration, I acknowledge that the Department of Corrections has reviewed its stance and has actively sought to house Mr Genge in a low-security unit and regime, but has been thwarted by Mr Genge’s response to each of those offers. I am satisfied that the Department is endeavouring to comply, to the best of its ability, with reg 44. If Mr Genge is now dissatisfied with his placement in Miro Unit that is a matter of his own doing.
[84] I am satisfied on the facts that no compensation is required because, even when appropriate low security options were offered, Mr Genge rejected them, so the respondents’ error has caused him no detriment.
[85] I also reject the request for a public notice to be published acknowledging any error. This Court’s judgment is a public document and is the appropriate way to record the outcome of Mr Genge’s claims.
[86] As Mr Genge has not established any other reviewable error I do not need to consider his claim for remedies further.
Conclusions
[87]In summary, I have found:
(a)The evidence does not support Mr Genge’s claim that his April security classification was motivated by malice or other irrelevant consideration. While there were errors made in compiling the score on which his April classification was based, those were promptly corrected through the statutory process of reconsideration. No other relief is required.
(b)I accept that Corrections staff had regard to an irrelevant consideration when they initially declined to return Mr Genge to a low security unit following the revision of his April security assessment. I have made the following declaration as a consequence:
The first respondent erred in having regard to the appellant’s behavioural issues as a matter warranting non-compliance with the requirements of reg 44, as these had already been considered and taken into account when determining his security classification.
(c)However, I am satisfied that Corrections staff are now properly applying reg 44(2) to Mr Genge’s circumstances and have identified available low security accommodation for him. If his refusal of those options creates resource concerns for the prison (for example, having the staff to manage the transfer of a resisting prisoner), then there is no breach by prison staff to comply with reg 44(2).
(d)The decision to decline Mr Genge’s request for voluntary segregation was lawful.
(e)There was no breach by prison staff of their statutory obligation to provide Mr Genge with his minimum entitlements to exercise while he was in Rawhiti Unit. A breach is not established because of his failure to avail himself of the opportunity to take exercise.
Costs
[88]The question of costs is reserved.
Solicitors:
D M Lester, Barrister, Christchurch
Raymond Donnelly & Co., Christchurch Copy To: Mr Genge
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