Gorges v Chief Executive of the Department of Corrections
[2017] NZHC 2518
•16 October 2017
IN THE HIGH COURT OF NEW ZEALAND WANGANUI REGISTRY
I TE KŌTI MATUA O AOTEAROA
WHANGANUI ROHE
CIV-2016-483-24 [2017] NZHC 2518
UNDER THE Judicature Amendment Act 1972, Part 30
of the High Court Rules, the Declaratory
Judgments Act 1908 and the common lawIN THE MATTER OF
an action for judicial review, and declarations
BETWEEN
ASHOR D GORGES Applicant
AND
THE CHIEF EXECUTIVE OF THE DEPARTMENT OF CORRECTIONS Respondent
Hearing: 23 March 2017 Appearances:
Applicant in Person
H M Carrad for RespondentJudgment:
16 October 2017
JUDGMENT OF CLARK J
Pursuant to r 11.5 of the High Court Rules I direct the delivery time of this judgment is
12:00 pm on 16 October 2017
GORGES v THE CHIEF EXECUTIVE OF THE DEPARTMENT OF CORRECTIONS [2017] NZHC 2518 [16 October 2017]
Introduction
[1] Mr Gorges is currently serving a sentence of imprisonment of four years and one month. A prisoner who is subject to a sentence of imprisonment for a term exceeding three months is assigned a security classification.1
[2] In this application for judicial review Mr Gorges challenges his security classification. He says the effect of the decision to classify him as “High” has been to impede his rehabilitation.
Security classification system
[3] Before turning to the substance of Mr Gorges’ claims, and the process which Mr Gorges challenges, it is useful to set the scene with a brief summary of the security classification system.
[4] In Taylor v Chief Executive of the Department of Corrections Ellis J determined an application by Mr Taylor to judicially review the security classification assigned to him.2 Ellis J’s description of the legislative backdrop is
comprehensive.3 For the purpose of this proceeding the following summary is
sufficient.
[5] Security classifications are intended to reflect the level of risk posed by a prisoner while inside or outside the prison including the risk of escape and the risk that escape would pose to the public.4 Although s 47(1) of the Corrections Act 2004 (the Act) requires a security classification to be assigned to every prisoner serving a term of imprisonment exceeding three months the Act does not prescribe the classifications. The classifications have been left to the authority of the Chief Executive to develop.
[6] The Act does, however, prescribe other aspects of the classification process.
1 Corrections Act 2004, s 47.
2 Taylor v Chief Executive of the Department of Corrections [2015] NZHC 2196.
3 At [7]–[25].
4 Corrections Act, s 47(1).
(a) A prisoner’s classification must be reviewed every six months or whenever there is a significant change in the prisoner’s circumstances.5
(b)A prisoner is to be informed of the assigned security classification, and whenever the classification is changed, and the reasons for the classification or the change.6
(c) A prisoner who is dissatisfied with the classification may apply for reconsideration and the Chief Executive must ensure the classification is reconsidered promptly in the prescribed manner.7
(d)Whenever a security classification is assigned to a prisoner or a security classification is reconsidered the prisoner must be informed in writing of the decision.8
[7] A points-based system is used to determine a prisoner’s security classification. Under the system points are assigned to each of the matters relevant to an assessment or review. Those matters are listed and discussed in a 15-page security classification guideline document (the guidelines).9 Internal and external risk factors are to be assessed. As Mr Gorges’ assessment was based only on internal risk factors I describe only those.
[8] There are five categories of internal risk. I set them out as they appear in the guidelines although without the associated commentary.
A. INTERNAL RISK
A.1 CRITICAL SECURITY FACTORS A.2 RISK OF ESCAPES
A.3 CURRENT STATE OF MENTAL HEALTH A.4 OFFENCE HISTORY
A.5 CO-OPERATION IN UNIT, WORKPLACE, PROGRAMMES
5 Section 47(3).
6 Section 48(1).
7 Section 48(2).
8 Section 48(3).
9 Corrections Manual M.02.05 RES.01 Completing Male Review Security Classification
Guidelines.
[9] Because all of Mr Gorges’ risk points were attributable to A.5, “co-operation in unit, workplace, programmes” I set out the further sub-categories within that grouping.
A.5.1 NUMBER OF INCIDENT REPORTS IN THE PAST SIX MONTHS A.5.2 COMPLIANCE WITH STAFF REQUESTS
A.5.3 POSITIVE INTERACTION WITH STAFF AND OTHER PRISONERS A.5.4 COMPLIANCE WITH PRISON RULES
A.5.5 MOTIVATION TO ACHIEVE OFFENDER PLAN ACTIVITIES
[10] The actual assessments are completed on a form within an electronic system referred to as the “integrated offender management system” (IOMS), the main computer system operated by the Department of Corrections. Some of the data required for completion of the form is pre-populated from the IOMS system which stores information relating to the prisoner. The remainder of the information is supplied by the Corrections officer undertaking the assessment or review.
[11] There are five security classifications of risk: “Maximum”, “High”, “Low- medium”, “Low” and “Minimum”. Which of the five security classifications is to be assigned to a prisoner is essentially suggested by the sum of accumulated points. The “review classification points table” included in the guidelines illustrates the way in which accumulated points correspond to one of the five security classifications which the Chief Executive has approved. The classification points table is
reproduced below.
Part A Points
(Internal Risk)
Part B Points
(External Risk)
Classification
33+ N/A Maximum 19-32 N/A High 0-18 17+ Low-Medium 0-18 12-16 Low 0-18 0-11 Minimum
[12] While the process is highly prescriptive the outcome is not abandoned to automation. The preliminary classification reached as a result of the calculated scores for internal and external risk factors may be overridden. The guidelines set
out the process for overriding the preliminary result. Reasons and supporting documentation are required.
Relevant factual background
[13] Mr Gorges’ assigned security classification was reviewed on 7 March 2016 as part of the regular six monthly review process. Mr Gorges’ internal risk factors resulted in an accumulated points result of 22. This brought him within the range of points equating to a security classification of “High”.
[14] The assessing officer and the recommending officer recommended an override of the calculated classification to assign Mr Gorges a classification of
“Low-medium”. The approving officer declined to override the classification and confirmed the assigned security classification as “High”.
[15] On 8 March 2016 Mr Gorges requested a review of his security classification pursuant to s 48(2) of the Act. Mr Gorges disputed the various scores given to him for the internal risk factors.
[16] On 10 March 2016 Ms Audrey Koti, senior advisor to the Regional Commissioner, undertook the review. Ms Koti made some changes to the points allocated but the overall score remained the same.
[17] The alterations Ms Koti made in the course of her reassessment are shown in the following table.
Category Original
Classification
Reconsideration A.5.1 Number of incidents in the past 6 months 0 or 1 0 A.5.2 Compliance with staff requests 3 (Average) 0 (Good) A.5.3 Positive interaction with staff and other
prisoners
3 (Average) 6 (Poor) A.5.4 Compliance with prison rules 3 (Average) 3 (Average) A.5.5 Motivation to achieve offender plan 6 (Poor) 6 (Poor)
[18] In a letter to Mr Gorges that same day Ms Koti advised the security
classification of “High” was upheld.
[19] Ms Koti gave the following reasons for her assessment:
(a) In reviewing A.5.2 (compliance with staff requests) Ms Koti reviewed the information on IOMS and concluded Mr Gorges compliance with staff requests warranted a score of “0 (Good)”.
(b)Ms Koti changed the assessment of A.5.3 (positive interaction with staff) from “Average” to “Poor”. Ms Koti considered that it was not accurate to say that Mr Gorges met the criteria for “Average”. In her letter to Mr Gorges Ms Koti referred to seven offender notes evidencing negative interaction.
(c) The score for A.5.4 (compliance with prison rules) was not changed.
Ms Koti considered “Average” for this category “was the right score for Mr Gorges”.
(d)Ms Koti considered the score for A.5.5 (motivation to achieve offender plan activities) should remain “Poor”. I return to a particular issue in contention arising from the reconsideration of A.5.5 namely, that Ms Koti reached her conclusion without being aware of an offender note which is advantageous to Mr Gorges’ interests.
[20] Importantly, Ms Koti states that even if she had scored Mr Gorges “Average”, for A.5.5 his point count would have been 19 which would still result in a security classification of “High”.
[21] Mr Gorges’ security classification was reviewed again on 1 August 2016. He was assigned a classification of “Low-medium”. The review form recorded Mr Gorges was extremely motivated to address outstanding programmes and was waitlisted for the Drug Treatment Unit (DTU) on the understanding he would be placed in a low security unit prior to placement on the course.
[22] Following the change in Mr Gorges’ security classification to “Low-medium” Mr Gorges was moved to Te Whānui Unit at Whanganui Prison so he could be enrolled in Te Tirohanga Drug Treatment Programme. The programme commenced on 29 August 2016.
[23] On 7 October 2016 a decision was made to transfer Mr Gorges, for his own safety, to another low security unit. Arrangements were made for Mr Gorges to transfer to Hawkes Bay Prison so he could be enrolled in its DTU programme. Mr Gorges transferred on 26 October 2016.
[24] Following the hearing before me an updating affidavit was filed on behalf of the respondent. On 31 January 2017 a review of Mr Gorges’ security classification resulted in a classification of “Low-medium”. The evidence shows that Mr Gorges was exited from the DTU on 1 March 2017 for reasons that were provided in writing to Mr Gorges. These have been discussed with him.
[25] Mr Gorges was transferred to Auckland South Corrections Facility on
29 March 2017 and as at the date of the affidavit was waitlisted for the STURP
beginning June 2017.
Statement of claim
[26] Mr Gorges’ statement of claim advances six overlapping grounds of review: ultra vires; factual error; failure to consider relevant considerations; improper purpose; unfairness and unreasonableness.
[27] Mr Gorges seeks:
(a) a declaration that the impugned decision was unlawful, invalid and of no effect;
(b)a declaration that to progress the applicant’s rehabilitation he should be classified “Low-medium” security to enable him to participate in the STURP;
(c) an order requiring the respondent to take all necessary steps to classify the applicant “Low-medium” security and arrange for his priority entry into the STURP to undertake and seek treatment;
(d) such further or other relief as the court thinks fit; and
(e) punitive damages in the sum of $10,000.
Specific pleadings
[28] The statement of claim pleads that sections A.5.2, A.5.4, and A.5.5 were “incorrectly assessed” and that Mr Gorges should have been assessed overall on the basis of either 16 or 18 points with a consequentially “Low-medium” security classification.
[29] In relation to A.5.2 (compliance with staff requests) Mr Gorges pleads there is no definitive basis on which the score of three points can be justified. There is no evidence to suggest he had not complied with staff requests. Mr Gorges contends the score should have been “Good”.
[30] As to A.5.4 (compliance with prison rules) Mr Gorges pleads he has not been charged or convicted of any offences in the past 12 months. Therefore he cannot have broken any rules and his assessment should be “Good” not “Average”.
[31] In relation to A.5.5 (motivation to achieve offender plan) Mr Gorges pleads he was wrongly assessed. Mr Gorges states he is presently10 motivated to undergo both the Drug Treatment Unit programme (DTU) and STURP (Special Treatment Unit Rehabilitation Programme)11 although acknowledging that in the past he did not consider he was suited to the STURP in terms of his rehabilitation needs. Mr Gorges pleads that the score of “Poor” is not only incorrect but inconsistent with the respondent’s guidelines and the obligation to assist and encourage his rehabilitation
and eventual reintegration. The score of “Poor” should be substituted with “Good”.
10 These pleadings are as at 27 May 2016, the date of the statement of claim.
11 Designed to reduce risk of re-offending and available to “Low–medium” but not higher
classifications.
[32] Mr Gorges pleads that the classification and review procedures were not conducted in accordance with the applicable prescribed guidelines12 and the relevant provisions of Part 5 of the Corrections Regulations 2005. It is further pleaded that the process adopted was not in accordance with sentencing principles in the Sentencing Act 2002 or with the requirements of s 27 of the New Zealand Bill of Rights Act 1990 (NZBORA).
[33] The statement of claim and Mr Gorges’ oral and written submissions reflect his thematic core grievance of being hindered in his rehabilitation and obstructed from participating in reintegration programmes and from gaining employment skills.
Principles
[34] There is little doubt as to the availability of judicial review to prisoners whose conditions of imprisonment are subject to statutory or other rule-based internal processes. Ellis J observed in a second decision concerning a judicial review application brought by Mr Taylor, since at least the decision in Daemar v
Hall “the tide of reviewability has moved slowly but inexorably forward”.13
[35] As in Taylor v Chief Executive of the Department of Corrections (2016) the underlying issue in this case is whether the Court should intervene in the dispute between the applicant and the respondent.
[36] In Taylor (2016) the disputed question was whether a prerequisite14 to Mr Taylor’s participation in a rehabilitation programme, essential to any release on parole, was unreasonable or based on irrelevant considerations. In considering how, and to what extent, those issues might be determined in a particular case about access to rehabilitative programmes Ellis J said:15
The starting point in terms of any application for review of the exercise of [the power under s 52 to decide whether to permit a particular prisoner to engage in a particular rehabilitative programme] is that whether or not
12 Referring to Corrections Manual M.02.05 RES.01 Completing Male Review Security
Classification Guidelines.
13 Taylor v The Chief Executive of the Department of Corrections [2016] NZHC 1805 at [2].
14 A requirement that Mr Taylor be transferred to another prison.
15 Taylor v The Chief Executive of the Department of Corrections above, n 13, at [58] (footnotes omitted).
Mr Taylor or any other prisoner should be permitted to participate in a programme such as the STURP is inherently a matter for evaluation and judgment. The Court’s supervisory jurisdiction does not generally permit it to engage in a rehearing of the merits of an impugned decision. The mere fact that the Court might consider that a better decision could have been made on the facts does not mean that the application for review should succeed. Failure by a decision-maker to consider a relevant consideration is only fatal if the consideration can be said to be expressly or impliedly mandatory. It is trite that the unreasonableness threshold is a very high one. And in the present case care is also required because Mr Sherlock was not cross-examined on his evidence.
[37] My purpose in drawing particular attention to Ellis J’s decision is this: as did Mr Taylor in his application for judicial review, so does Mr Gorges highlight the central importance of rehabilitation to his well-being during his term of imprisonment and to his prospects of early release. But there the similarities in the proceedings end. The decision affecting Mr Taylor was unlawful because the principal motivation in moving Mr Taylor was a desire to make him “accept
direction at all costs.”16 That was an irrelevant consideration.
[38] By contrast with Taylor (2016) Mr Gorges enjoins this Court to engage in the merits of the impugned decision. The statement of claim expressly seeks the Court’s engagement in the merits of the security classification itself. Mr Gorges’ overarching concern is that the respondent’s approach to classifying his security risk was incorrect because it was inconsistent with his rehabilitative needs. Mr Gorges expressly pleads the results he says the scores should have produced.
The merits of the application for review
[39] The first important observation about the statement of claim is that the impugned decision is not Ms Koti’s review. It is the decision of 7 March 2016 which Mr Gorges contends incorrectly assessed A.5.2, A.5.4 and A.5.5. Mr Gorges’ claim does not speak of the changes made by Ms Koti in the course of her reassessment. Thus, while Mr Gorges protests the outcome in respect of A.5.2, the protest overlooks the change in outcome. As a result of Ms Koti’s review the score
improved from “Average” to “Good”. By contrast, the score for A.5.3 worsened
16 At [68].
following the reconsideration but Mr Gorges does not protest that outcome in this proceeding.
[40] Notwithstanding the failure to plead any flaw in Ms Koti’s reassessment I
shall approach Mr Gorges’ challenge to the process as encompassing the decision on
7 March 2016 and the reassessment on 10 March 2016.
[41] That approach seems both fair to Mr Gorges and appropriate given the proximity of the two decisions to each other. They were only days apart and whichever Corrections officer is undertaking the assessment or review the information informing that exercise is stored in the IOMS.
[42] Further, it is Ms Koti’s reassessment that had the effect of determining
Mr Gorges’ security classification status as at March 2016.
A.5.2 Compliance with staff request
[43] The classification is criticised by Mr Gorges but as I have observed the challenge overlooks Ms Koti’s reassessment which resulted in a score of zero. Thus Mr Gorges received the best possible outcome for that category. The relevant guideline for A.5.2 states that “Average” reflects “prisoner complies most of the time but sometimes fails to comply in a timely manner” and “Good” reflects “the prisoner complies in a timely manner to all staff requests”. Ms Koti concluded that information on IOMS indicated Mr Gorges’ compliance with staff requests was mostly good and that he should receive a score of zero.
A.5.3 Positive interaction with staff and other prisoners
[44] Although Mr Gorges does not specifically challenge A.5.3 or Ms Koti’s reassessment which resulted in a more prejudicial outcome I address it nevertheless. The relevant guideline for A.5.3 states that “Poor” reflects “the prisoner interacts negatively with staff and other prisoners” and “Average” reflects “the prisoner interacts positively most of the time but with occasional instances of negative interaction”. Information available to Corrections officers on IOMS evidenced negative interactions. The records are before the Court in the form of exhibits to
Ms Koti’s affidavit. The particular notes are made between 12 November 2015 and
3 January 2016. They report incidents such as Mr Gorges’ persistence in entering the office to see screens and monitors, volatile and antagonistic behaviour towards others, warnings given in respect of rudeness and disrespect towards the staff and suchlike.
[45] Ms Koti considered the reports warranted an assessment of “Poor”. There
was a sufficient evidential foundation for that judgement.
A.5.4 Compliance with prison rules
[46] The guidelines for A.5.4 describe a score of “Average” as meaning that “the prisoner has 1 or 2 file notes relating to non-compliance with prison rules”. A score of “Good” is described as meaning “the prisoner has no file notes relating to non- compliance with prison rules”. Ms Koti considered the score of “Average” was the right score for Mr Gorges. That score did not change between the 7 March 2016 classification and Ms Koti’s reassessment.
A.5.5 Motivation to achieve offender plan
[47] The point of apparently greatest contention lies in A.5.5 for which Mr Gorges was graded “Poor”. Mr Gorges contends his record points to the opposite result as he was strongly motivated to enter appropriate rehabilitative programmes. Mr Gorges’ assessment did not change between 7 March 2016 and the reassessment on 10 March 2016. Both exercises produced a “Poor” result.
[48] It is apparent Mr Gorges was motivated to attend rehabilitative programmes. The problem lay in Mr Gorges’ seeming insistence, at times, that he should not attend the STURP when it was the respondent’s view that he should. To be eligible for the STURP, a prisoner must score 0.7 or above on a Risk of Reoffending and Risk of Imprisonment assessment; have at least one conviction of violent behaviour against another person (but prisoners without violent offending convictions may also be considered on a case-by-case basis); and be of 20 years of age.
[49] As against Ms Koti’s assessment of Mr Gorges’ motivation to engage in rehabilitative programmes, Mr Gorges points to a case manager note in which it is recorded that a score of “Poor” for motivation should be substituted with an “Average” rating. Ms Koti candidly stated she did not read that note. In her evidence Ms Koti says that note focused on the DTU programme which she accepts Mr Gorges was, at times, motivated to attend. Ms Koti was aware that, at times, Mr Gorges had indicated his willingness to attend the DTU programme referred to in the case manager’s note. Mr Gorges’ attitude to participation in DTU varied. Ms Koti gave examples to Mr Gorges in her letter of 10 March 2016.
[50] Importantly, even had Ms Koti given a score of “Average” Mr Gorges’ overall score for internal risk would have been 19 which would still have resulted in a security classification of “High”. Ms Koti’s evidence is that she would not have overridden that outcome because of some of the behaviours described in the offender notes.
[51] I accept the scoring of “Poor” as to motivation was, and could be, open to differing opinion. But that alone cannot be a basis for judicial review relief and the substitution by the Court of a score of “Good” in order to attract a “Low-medium” security classification.
[52] The classification for A.5.5 is not the product of any identifiable error of law. There is an evidential basis of relevant factors for the judgement made and nothing to suggest unreasonableness or an improper purpose. Mr Gorges is of the view that the challenged decisions did not properly taken into account his need for rehabilitative programmes. That view is not supported by the documentation in evidence. Mr Gorges rehabilitation needs were identified and I am unable to discern any basis for concluding this relevant factor was not taken into account.
Decision
[53] The factual conclusions I have reached on the basis of the evidence make it unnecessary to consider each of the six heads of judicial review. On any analysis the facts do not demonstrate procedural error or unlawfulness on any ground.
[54] A substantial portion of Mr Gorges’ written submissions addressed his alleged arbitrary detention in breach of s 22 of NZBORA. This was not pleaded in the statement of claim but the contention seems to be that the intentional and deliberate impeding and obstructing of Mr Gorges’ pathway to rehabilitation has meant that the “very good chance of being released on parole”, which Mr Gorges submits he had, has been denied to him through the respondent’s unlawful actions. Section 23(3) NZBORA is also said (although tentatively) to be engaged by the improper obstructing of Mr Gorges’ progression.
[55] In Zaoui v Attorney-General McGrath J rejected the proposition that a lawful detention might be rendered “arbitrary” by the conditions of the plaintiff’s detention.17 The authors of The New Zealand Bill of Rights Act cast similar doubt on the proposition that breaches of ss 23–25 of NZBORA have the effect of making any associated detention “arbitrary” in terms of s 22.18
[56] In his oral presentation during the hearing Mr Gorges referred to the treatment he had been subjected to as a young person in state care. Mr Gorges asked: if that is not a sufficient reason to override the classification, “what is?” Mr Gorges added that imprisonment, in addition to what he has already experienced, amounts to infliction of suffering. He said he should not have to come to Court and beg for rehabilitation. It should be given to him.
[57] As I did at the time, I unhesitatingly acknowledge Mr Gorges’ perspective. But the evidential basis necessary for the grant of the relief which Mr Gorges seeks is simply not established in this case. There is no factual foundation for Mr Gorges’ arguments that the respondent’s powers were exercised unlawfully, for an improper purpose, in breach of natural justice or unreasonably or that the respondent took into account irrelevant factors or failed to consider relevant factors.
[58] Even if the grounds of review were made out relief is discretionary. It is well established that in circumstances where the grant of relief would have no utility the
17 Zaoui v Attorney-General [2005] 1 NZLR 577 (CA & SC) at [101].
18 Andrew Butler and Petra Butler The New Zealand Bill of Rights (2nd ed, LexisNexis, Wellington, 2015) at [19.8.54].
discretion will not be exercised. The issues are moot. Mr Gorges has commenced the rehabilitation programmes with which he sought to be engaged.
[59] Finally, even if the issues were not moot I would not order Mr Gorge’s security classification to be recorded as “Low-medium”. Parliament has charged the Chief Executive, not the courts, with the statutory function of assigning security classifications to prisoners.
Result
[60] For the reasons given, the application for judicial review is dismissed.
Karen Clark J
Solicitors:
Crown Law Office, Wellington for Respondent
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