Grace v Chief Executive of the Department of Corrections
[2023] NZHC 2551
•13 September 2023
IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY
I TE KŌTI MATUA O AOTEAROA KIRIKIRIROA ROHE
CIV-2020-419-38
[2023] NZHC 2551
UNDER the Judicial Review Procedure Act 2016 BETWEEN
JAMES MATUA GRACE
Plaintiff
AND
THE CHIEF EXECUTIVE OF THE DEPARTMENT OF CORRECTIONS
First Defendant
SERCO NEW ZEALAND LIMITED
Second Defendant
Hearing: 7 June 2023 Appearances:
S Abdale for Plaintiff
M Dillon for First Defendant
E A Boshier and A A Sawant for Second DefendantJudgment:
13 September 2023
JUDGMENT OF WOOLFORD J
This judgment was delivered by me on Wednesday, 13 September 2023 at 2:30 pm pursuant to r 11.5 of the High Court Rules.
Registrar/Deputy Registrar
Solicitors:Gavin Boot Law (G Boot), Hamilton, for Plaintiff Crown Law (D Jones), Wellington, for First Defendant
Duncan Cotterill (EA Boshier and AA Sawant), Wellington, for Second Defendant
Counsel: S Abdale, Hamilton, for Plaintiff
M Dillon, Hamilton, for First Defendant
GRACE v THE CHIEF EXECUTIVE OF THE DEPARTMENT OF CORRECTIONS [2023] NZHC 2551 [13
September 2023]
[1] James Matua Grace was sentenced to preventive detention on 11 May 2010 for violent offending with a minimum non-parole period of five years. He became eligible for parole on 19 May 2014. Despite a number of appearances before the Parole Board (the Board), he has not been paroled. He blames the Department of Corrections (Corrections) and Serco New Zealand Ltd (Serco)1 for blocking his rehabilitation and reintegration pathway towards release. He has filed judicial review proceedings seeking various declarations, an order directing that Corrections restore his minimum security classification, and general damages of $30,000.
Pleadings
[2] The latest iteration of the amended statement of claim is dated 29 September 2021. It contains four causes of action — three causes of action are directed at Corrections and one cause of action at Serco. The first two causes of action are described by counsel for Mr Grace as follows.
The first is that Corrections breached its statutory duty to [Mr Grace] in all aspects of the assessment, management, and review of his security classification, including the accuracy of information held on his Integrated Offender Management System (IOMS) records; and that this unfair treatment led to him being prevented from undertaking reintegrative pathways necessary to achieve parole. This negatively impacted on his mental health and ultimately meant, through not being granted parole, that his time in prison was needlessly prolonged and restrictive.
The second cause of action against Corrections alleges unreasonableness, in that it was unreasonable and therefore unfair for Corrections, in reviewing Mr Grace’s security classification after the 13 July 2020 incident, to take into account alleged incidents that Mr Grace denied, which did not result in charges at the time, and which had not previously resulted in raised security classification (that is, these allegations arose during the period that Mr Grace’s security classification was minimum).
[3] The third cause of action was originally directed at Serco but redirected at Corrections. It is described as follows:
Mr Grace claims that Corrections breached its statutory duty to him by providing inaccurate information to the Parole Board that he was removed from work in November 2020 due to poor behaviour. This inaccurate information was critical to whether the Parole Board would grant him parole, and it did not. This resulted in an injustice to Mr Grace and caused him harm by misrepresenting him to be badly behaved when he was not, and ultimately
1 Serco is the company that operates the Auckland South Corrections Facility (ASCF) under contract with Corrections.
causing him to needlessly spend more time in prison and suffer ongoing restrictions than was warranted.
[4] The fourth cause of cause of action is the only one directed at Serco. It is described as follows:
Mr Grace claims that Serco was unreasonable in that he was subjected to arbitrary psychological treatment in that he was required to continue psychological treatment to the satisfaction of Francois Meyer, the then Assistant Director of Rehabilitation and Reintegration at Auckland South Correctional Facility run by Serco, and as part of that treatment, Stacey Howes, psychologist, reported (after she ended his one-on-one treatment) by referencing an earlier psychological report, as if he had Intermittent Explosive Disorder and paranoia, when those diagnoses had never been made.
Factual background
[5] Mr Grace first appeared before the Board on 8 July 2014. At that point he had a “high” security classification. The Board declined to recommend his release but noted his improved behaviour since 2012 and recommended that he participate in the Drug Treatment Unit (DTU) and the Special Treatment Unit Rehabilitation Programme for violent offenders (STURP). The psychological report before the Board recommended that he undertake a STURP programme before the DTU.
[6] Mr Grace’s security classification was lowered from ‘high’ to ‘low-medium’ on 2 March 2015, which enabled him to be considered for a STURP programme.
[7] When Mr Grace appeared before the Board on 16 June 2016, he had not commenced either course but was shortly to be transferred to a different prison in order to be enrolled in a STURP programme. He did not seek parole and his release was not recommended. He subsequently began the programme at Spring Hill Corrections Facility on 21 June 2016, approximately 14 months after he first became eligible, and completed it on 28 April 2017. When Mr Grace appeared before the Board on 24 August 2017, he had completed the STURP programme, but was only part way through the DTU programme and did not seek parole. Having commenced the DTU programme on 12 May 2017, Mr Grace completed the programme on 5 October 2017.
[8] When Mr Grace appeared before the Board on 22 August 2018, he had therefore completed both programmes but did not seek to be released, having accepted
that he needed to make greater progress in reducing his risks. The Board noted the progress that he had made but also commented that there were continuing issues with his behaviour and problems with his proposed release plan. It noted that he was awaiting one-on-one treatment with a psychologist and recommended that this take place, as a priority, before he commenced the reintegration phase of his sentence.
[9] He went on to engage in individual psychological treatment between February 2019 and October 2019. He also undertook a specialist Māori cultural assessment in June 2019.
[10] When he appeared before the Board on 5 November 2019, the Board did not recommend release, observing that his conduct had been mixed since he last appeared before the Board. The Board noted that he had been referred for a psychiatric assessment. That assessment took place in August 2020 and found that whilst he did not have an active psychiatric illness, he did have issues with regulating his behaviour and with self-image.
[11] In February 2020 he was transferred to Tongariro Prison. Whilst at Tongariro Prison he requested a whānau hui and guided releases. Neither of these were able to be provided to him due to the level two and three COVID-19 lockdowns that affected all prisons throughout New Zealand.
[12] Following an incident on 13 July 2020 when he argued with and was alleged to have assaulted an officer, his security classification was reviewed and raised from ‘minimum’ to ‘high’. He was then moved from Tongariro Prison to Waikeria Prison, in line with his change in security classification.
[13] He applied for a review of his security classification but on 14 September 2020, the decision was made that he remain as ‘high’ security.
[14] Mr Grace was transferred from Waikeria Prison to the Auckland South Corrections Facility (ASCF) on 30 December 2020, following a riot at Waikeria Prison. There is no suggestion he was involved in the riot.
[15] After Mr Grace was moved to ASCF, he was reclassified as “low–medium” security on 13 January 2021. The assessing officer recommended an override of this automated security classification to “low”. This override request was approved, and Mr Grace was reclassified as “low” security. When Mr Grace appeared before the Board on 10 March 2021, the Board noted that it was proposed that he would see a psychologist in May to review his safety plan, then perhaps some guided release work outside the wire and release to work. In addition, he would be considered for release to Residences. The Board was satisfied this was an appropriate way forward for Mr Grace.
[16] While at ASCF, Mr Grace has participated in some internal employment, being a wing support worker from 11 February to 15 May 2021, and part of the asset maintenance team from 6 April to 12 May 2021.
[17] He also resided at ASCF’s cultural immersion wing, Te Whare O Te Waiora, between 2 January and 7 May 2021. While there, he participated in the Puwhakamua programme. On 7 May 2021, Mr Grace progressed to the Residences which provides housing for prisoners who are in the reintegrative phase of their sentence. While residing there, Mr Grace was provided with the opportunity to continue his participation in cultural immersion activities.
[18] On 7 May 2021, Mr Meyer, the Assistant Director of Rehabilitation and Reintegration at ASCF attended a whānau hui with Mr Grace and others. Following the meeting, and considering his level of motivation at the time, Mr Meyer immediately asked for Mr Grace to be prioritised for psychological treatment. Mr Grace immediately began treatment with a psychologist, Ms Stacey Howes.
[19] After treatment commenced, Mr Grace attended nine sessions with Ms Howes until the treatment was prematurely terminated. Ms Howes produced a termination letter in which she stated that the sessions were terminated as they were no longer considered to be beneficial to Mr Grace, who displayed responsivity barriers and therapy interfering behaviours. Mr Grace’s attitude towards Ms Howes’ work was of concern, which was recorded in the Parole Board’s decision dated 11 October 2021:
We last saw him in March 2021. At that stage we thought further work with a psychologist was needed for two reasons: Firstly, to further work on his safety plan and then, secondly, to do further work arising from the circumstances that gave rise to difficulties that Mr Grace had in prison in coping. After that we thought he needed some reintegrative work.
As to the current position, Mr Grace is assessed by his psychologist of being high risk of re-offending. Mr Grace told us today he thought that what we had required him to do was only to undertake work on his safety plan. As we have pointed out, the decision in March 2021 was much broader than that.
In any event, the psychological report notes that Mr Grace’s therapist described a varied presentation by Mr Grace. At time he was engaged and responsive. At other times rigid, paranoid and aggressive. The example given was that he accused the therapist of colluding with others to stall his reintegrative pathway. As a result the sessions ended.
We have spoken to Mr Grace about his reaction and expressed our concern about the way he saw the therapist’s approach. We acknowledged Mr Grace is entitled to have his view as to what might be best for him. However his therapist thought that further work beyond the safety plan was required, which was what we had asked him and the therapist to do at our last hearing.
The concern is in particular that Mr Grace’s index offending relating to the wounding charge arose in circumstances where he misinterpreted a very minor comment by a friend which resulted in Mr Grace’s extreme violence to the friend. And his claim that the therapist was deliberately delaying his reintegration is again a misinterpretation of a situation where he reacted angrily.
[20] Subsequent to the Parole Board hearing on 11 October 2021, Mr Meyer again sought to have Mr Grace given priority for further psychological treatment with another psychologist at ASCF.
[21] On 24 December 2021, Mr Grace was regressed from the Residences to the Management Unit after being found in possession of contraband. On 2 February 2022, Mr Grace was reclassified as “high” security following his regression from the Residences. Mr Grace requested a review of his security classification. It was found that an error had been made in calculating Mr Grace’s points for internal and external risk categories, which subsequently led to Mr Grace’s security classification being downgraded to “low–medium” on 24 February 2022.
First cause of action
[22] The first cause of action as described by counsel for Mr Grace is that Corrections breached its statutory duty to Mr Grace “in all aspects of the assessment, management and review of his security classification”.
[23] Clause 37 of the amended statement of claim broadly alleges Mr Grace’s offender notes contained inaccurate, unfair, and biased entries in breach of an unspecified statutory duty to ensure that his offender notes were accurate, fair, and unbiased. The entries said to be inaccurate, unfair, and biased are not specified in the first cause of action. However, two entries in Mr Grace’s offender notes are earlier referred to in cl 20 and 22 of the amended statement of claim:
20 On 26 March 2020, the Offender Notes record an incident where he reportedly threatened another prisoner, and they were both reprimanded. The Plaintiff denies this incident occurred. No further action was taken by Corrections at the time.
…
22. On 28 April 2020, the Offender Notes record an incident where he reportedly made a threatening statement to a Corrections Officer about the noise being made by his neighbour, and the reprimand he was given. The Plaintiff denies this incident occurred and there is a witness who can verify this. No further action was taken by Corrections at the time.
[24] Corrections acknowledge that these incidents are recorded in the Integrated Offender Management System (IOMS) notes and denies Mr Grace’s claim that they never occurred. In the context of this application for judicial review, I am not able to make any finding that the IOMS notes are inaccurate.
[25] Although the amended statement of claim noted that the plaintiff denies the incidents on 26 March 2020 and 28 April 2020 occurred, Mr Grace does not deny their occurrence or explain what he says happened in any of the four affidavits he has sworn. He merely states:
Taking into account allegations that predated the 13 July incident, which did not result in charges, and which did not affect my minimum security classification at the time, was very unfair and unreasonable.
Nor have the Corrections Officers who made the notes on 26 March 2020 and 28 April 2020 sworn an affidavit.
[26] In an affidavit dated 4 December 2020, the Acting Manager of High Intensity Psychology Programmes for Corrections, Ms Helen Garrett, states that during her review of the IOMS notes she sighted several notes that referred to Mr Grace’s behaviour and attitude. Within these were case notes that spoke to both positive (politeness, good work ethic) and negative behaviours (swearing and aggression). It is her opinion that the case notes are balanced and reflect Mr Grace’s responses to situations across time.
[27] Clause 38 of the amended statement of claim then alleges that Corrections breached an unspecified statutory duty to ensure that Mr Grace’s security classifications were reviewed “when they should be, as and when required under the Act.” Particulars are then set out as follows:
(i)As soon as the decision was made in early August 2020 to withdraw the charge against the Plaintiff, arising from the 13 July 2020 incident, his security classification should have been reviewed as required by the Corrections Act.
(ii)It took 2 months to notify the Plaintiff of his security classification review.
(iii)It was unfair to take into account allegations that previously had no impact on his security classification, and allegations that predated the 13 July 2020 incident.
(iv)The delay and unfair decision caused the Plaintiff to suffer harm in that:
(a) He was prevented from undertaking reintegrative programmes necessary for his pathway to release on parole;
(b) His mental health was negatively impacted, causing him to suffer loss of hope that he would ever be released on parole; and
(c) His prison sentence was needlessly prolonged and more restrictive than necessary.
[28] The third particular specified is replicated in the second cause of action and so I will deal with it then.
[29] The major complaint set out in the first and second particulars appears to relate to an incident on 13 July 2020, and the consequences for Mr Grace’s security classification.
[30] On 13 July 2020, Mr Grace’s security classification was “minimum”. The amended statement of claim alleges that Mr Grace had been making a hook carving, which he had left in the carving room. He went to the carving room and found the carving missing. It had apparently been removed by a female Corrections Officer, which upset him.
[31] The amended statement of claim then alleges that Mr Grace asked to see PCO Connie Shaw to confirm that she had given authority for him to make the carving. He was then escorted by Corrections Officers to see her about the problem. After the meeting with PCO Shaw, one of the officers reported to PCO Shaw that Mr Grace had assaulted him on the way to the meeting. Following the report, Mr Grace was charged with assault, placed in isolation, and had his security classification raised from “minimum” to “high”. He was transferred to Waikeria Prison the following day.
[32] The IOMS notes made at the time by PCO Shaw largely confirms Mr Grace’s account as set out in the amended statement of claim. Mr Grace is described as “aggressive and vocal” and “loud and argumentative”. Mr Grace is said to have finally listened and returned to the compound. The assault complained of was pushing a staff member in the back while he was walking Mr Grace to an interview room.
[33] The amended statement of claim further alleges that on 25 August 2020, Mr Grace was informed that the Tongariro Prison prosecutor had formally withdrawn the charge of assault. Mr Grace had earlier, on 15 and 23 August 2020, filed complaints about his security classification and sought a review. On 14 September 2020, he received the review of his security classification.
[34] As noted above, the alleged unfairness of the review of his security classification will be dealt with when discussing the second cause of action. The complaint in the first cause of action relates to the timeliness of the review of Mr Grace’s security classification complaint.
[35] In his affidavit sworn on 19 November 2020, Mr Grace states that he was told on 6 August 2020 that the charge of assault was going to be withdrawn. He does not specify who told him.
[36] The decision of which Mr Grace complains was received on 14 September 2020, two months after the alleged assault, five weeks after he said he was informally advised that the charge of assault was to be withdrawn, three or four weeks after he filed complaints about his security classification and three weeks after he was formally advised that the charge of assault had been withdrawn.
[37] The amended statement of claim does not specify what statutory duty was breached when it took Corrections three or four weeks to review Mr Grace’s security classification, or the date by which a decision should have been made.
[38] Sections 47 and 48 of the Corrections Act 2004 deal with security classifications. Section 47(3) provides that the security classification of each prisoner must be reviewed whenever there is a significant change in the prisoner’s circumstances, while s 48(2) allows a prisoner to apply for a reconsideration of their security classification. The Chief Executive must ensure that the security classification is reconsidered “promptly”. “Promptly” means quickly, without delay, or at the arranged time.2
[39] In Genge v Chief Executive of the Department of Corrections, the plaintiff Mr Genge, also a serving prisoner, received a declaration to the effect that his application for a reconsideration of his security classification was not considered promptly within the meaning of s 48(2).3 In that case, the plaintiff was asked to re- submit his application twice, and after two months, still had not received an answer. The Judge found that the plaintiff had been clear in his application and done all he could to advance it. In those circumstances, and in light of a concession by the Department that it had failed to follow its statutory obligations, relief was granted.
2 Cambridge Dictionary “Promptly” < v Chief Executive of the Department of Corrections [2018] NZHC 1302 at [31].
[40] In the circumstances of this case, however, I am not persuaded that Corrections failed to reconsider Mr Grace’s application for review promptly. I note that prison operations are complex, particularly where, as here, a decision requires the fulsome consideration of overall risk to safety for the prisoner and others, in reference to multiple factors.4 The month it took to reconsider Mr Grace’s classification appears unexceptional.
[41]Clause 39 of the amended statement of claim alleges:
39.The defendant failed to exercise statutory powers and duties to ensure that –
(a)The Plaintiff’s psychological welfare was protected.
(b)Security classifications were allocated and reviewed fairly.
(c)Recording on the IOMS was conducted fairly and without bias and/or racism.
(d)The Plaintiff was assisted in his reintegration into the community, through the provision of programmes and other interventions in a timely manner having regard to his eligibility for parole on 19 May 2014.
(e)The Plaintiff was treated fairly by informing him about the rules, obligations, and entitlements that affect him; and failing to ensure that decisions affecting him are taken in a fair, timely, and reasonable way.
(f)The Plaintiff does not serve a sentence that is more restrictive and lengthy than is reasonably necessary.
(g)The Plaintiff is given timely access to activities that may contribute to his reintegration into the community.
[42] These allegations are not particularised and are far too general to be sensibly responded to by Corrections.
[43]The first cause of action is dismissed.
4 Corrections Regulations 2005, reg 48.
Second cause of action
[44] Although initially drafted more widely, the second cause of action as described by counsel for Mr Grace is that it was unreasonable for Corrections to take into account earlier alleged incidents, which Mr Grace denied, when reviewing his security classification after the incident on 13 July 2020.
[45] Clause 41 of the amended statement of claim alleges that it was unreasonable and therefore unfair that the review of his security classification took into account alleged incidents that were denied, did not result in charges at the time, and had not previously resulted in raised security classification at the time, as a reason to maintain his security classification as “high”.
[46] Following the alleged assault of a Corrections Officer on 13 July 2020, and Mr Grace’s reclassification as a “high” security risk, Mr Grace had sought a review of his security classification. The outcome of the review was formally conveyed to Mr Grace by letter dated 14 September 2020.
[47] In the first section of the review, A.5.1, the reviewing officer assessed the incident reports in the past six months. The review noted three recorded incident reports in the previous six months in which Mr Grace was involved that showed a negative attitude towards others. These were:
26 March 2020 — Heard to state “wait till we’re unlocked. I’ll f …en sort you out” 3 April 2020
—
Unauthorised item in cell
13 July 2020
—
Officer assaulted by Mr Grace
[48]The reviewing officer stated:
I have not counted the 3 April incident as it is unclear whether this item was attributed to you. I have counted the 26 March incident report and the 13 July incident report. Although there was insufficient evidence to support a charge of assault on 13 July, there is evidence to show your behaviour was not acceptable in the circumstances and will count as an incident that shows a negative attitude towards others.
[49] The review officer then advised Mr Grace that his score under A.5.1 remained at three.
[50]There were then four other sections — A.5.2 Compliance with staff requests;
A.5.3 Positive interaction with staff and other prisoners; A.5.4 Compliance with prison rules; and A.5.5 Motivation to achieve Offender Plan activities. The ratings made when Mr Grace’s security classification was increased to “high” were A.5.2 average;
A.5.3 poor; A.5.4 average; and A.5.5 average.
[51]The reviewing officer reassessed these four ratings and determined that the
A.5.5 average rating should be increased from average to good. She noted that Mr Grace’s file notes indicated a willingness and desire to engage in activities to support his rehabilitation and that she had sought information and advice on this issue from his case manager.
[52] As a result, Mr Grace’s internal risk points were decreased from 26 to 23. The review then set out a points table to illustrate how points are calculated and relate to security classification in all prisons nationwide. It showed that if a prisoner scored between 19 and 32 points, his security classification would be “high”.
[53] This led the reviewing officer to conclude that Mr Grace’s classification score would change (from 26 to 23), but there was no change to his overall security classification.
[54] Mr Grace complains that the review should not have taken account of either the 13 July 2020 incident because the charge of assault was withdrawn or the 26 March 2020 incident because it too was unproven and had no consequences at the time.
[55] Even if these two incidents were ignored altogether and three points deducted from Mr Grace’s classification score, his overall security classification would remain as “high”.
[56] More fundamentally, I am of the opinion that in assessing a prisoner’s security classification, Corrections are able to take into account incident reports recorded on
IOMS, notwithstanding that such incident reports did not result in any negative consequences at the time. A security classification assessment or review should look at a prisoner’s overall risk and a prisoner’s behaviour in the past must always be relevant to some degree or another. This is explicitly provided for in both the Corrections Act and accompanying Regulations, which give a relatively broad discretion to the Prison Manager or Chief Executive in these determinations.5 An incident which may not itself give rise to a prisoner’s classification score when first considered may later do so if it has come to form part of a pattern of behaviour. The review only looked at incident reports in the previous six months so Mr Grace’s score could change if no incidents were reported in the previous six months. The incidents would not count against him forever. That is not unreasonable in the Wednesbury scale.6
[57]The second cause of action is dismissed.
Third cause of action
[58] The third cause of action as described by counsel for Mr Grace is that Corrections breached its statutory duty to him by providing inaccurate information to the Board that he was removed from work in November 2020 due to poor behaviour.
[59]Clauses 45 and 46 of the amended statement of claim allege:
45.[Mr Grace] appeared before the Parole Board on 10 March 2021 and was declined parole. Incorrect information provided by the [First] Defendant about the Plaintiff, that he had been removed from work in November 2020 due to poor behaviour, was relied on by the Parole Board. He relies upon the decision of the Parole Board for content and meaning.
46.It was incumbent upon the [First] Defendant, and in keeping with its statutory duties to assist the Plaintiff with his reintegration into the community, and in providing information to the New Zealand Parole Board (NZPB) to assist them in decision-making about the Plaintiff’s release on parole, to provide accurate information about the Plaintiff. Providing inaccurate information, which was relied upon by the Parole Board, breached the duty to the Plaintiff and caused an injustice, thereby harming him. It also breached the Plaintiff’s right to justice under s 27 of the New Zealand Bill of Rights Act 1990.
5 Corrections Act, s 47(4)(c)–(d) and Corrections Regulations reg 48.
6 Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223(CA).
[60]In its decision of 11 March 2021, the Board stated:
We last saw him in November 2020. At that stage Mr Grace had been removed from his employment within the prison.
Corrections concedes this is not supported by the evidence and may reflect a mistake or misunderstanding by the Board.
[61] Mr Grace says a report prepared by Corrections must have been the source of the mistake or misunderstanding. He is, however, unable to point to any such statement made by Corrections. Corrections submitted two reports to the Board for its March 2021 hearing – a psychologist’s memorandum dated 25 January 2021, and a Parole Assessment Report. The latter report states:
In July 2020 Mr Grace transferred from Tongariro Prison to Waikeria Prison where his Behaviour and Attitude (B&A) has been recorded as polite and compliant with only one negative reported incident for September 2020 relating to verbal abusive and disrespectful behaviour towards custodial staff relating to an incident where he was not unlocked from his cell. It is noted he was not employed in any prison based employment for the short time he was located at Waikeria Prison.
[62] There is no assertion that Mr Grace had been removed from his employment within the prison. The source of the statement made by the Parole Board remains unknown.
[63] The third cause of action is, therefore, not made out on the evidence. In any event, it cannot form the basis of a claim as a submission to the Board does not involve the exercise of a power susceptible to judicial review.7
[64]The third cause of action is dismissed.
Fourth cause of action (Serco)
[65] Although counsel for Mr Grace broadly describes the fourth cause of action as Mr Grace’s unreasonable subjection to arbitrary psychological treatment and the wrongful reliance by a psychologist on diagnoses which had never been made, counsel for Serco identifies a number of different claims made against Serco in the amended
7 Wilson v New Zealand Parole Board [2023] NZHC 1003 at [18]–[21].
statement of claim as follows. Counsel for Mr Grace does not take issue with his analysis.
(a)It was unreasonable of Serco to require Mr Grace to undergo psychological treatment from May 2021, for the reason that Mr Grace had by that time already completed “all applicable psychological therapy and maintenance programmes …”;
(b)It was unreasonable of the appointed psychologist (Ms Howes) to reach the conclusion she did when conducting that psychological treatment (namely that Mr Grace displayed “responsivity barriers” such that there were barriers to his capacity for reintegration that yet required addressing with a psychologist);
(c)Serco acted unreasonably by not advising Mr Grace within a certain time – perhaps immediately – that his security classification had been set as “low” following a routine review;
(d)Serco acted unreasonably because a particular person (Mr Meyer) did not exercise a discretion to override Mr Grace’s security classification to “minimum”;
(e)It was unreasonable to apply “demerit points” in the security classification process for the reason that Mr Grace had outstanding treatment needs;
(f)Serco is, through this process, purporting to require Mr Grace to undergo psychological treatment for the specific purpose of preventing his access to activities which would enable him to show the Parole Board that he is capable of reintegration and so for the purpose of prolonging his detention.
[66] The first claim fails at the outset because Mr Grace was not “required” to undergo psychological treatment from May 2021. Mr Meyer states in his affidavit of
2 March 2021 that, at a whānau hui on 7 May 2021, he made it clear to Mr Grace that he would progress best if he fully attended to the intervention with the psychologist. He says he also requested Mr Grace resist any urge to dictate the outcome of the treatment. Mr Meyer made it clear that the intervention would need to continue until the psychologist was satisfied that his outstanding needs had been effectively addressed. Mr Grace was, however, not positively “required” to undergo this psychological treatment in the sense he was not coerced. It was, however, made plain that it was seen as necessary to further the prospect of being able to participate in certain activities and thus ultimately achieve parole.
[67] As to the second claim, Mr Grace contends that Ms Howes’ conclusions as set out in her termination letter of 15 July 2021 were unreasonable and unfair. He also says that the reference by Ms Howes to an earlier psychological report was either an act of bad faith or unprofessional. Mr Grace implies the treatment ended because he queried the purpose and direction of the treatment. None of this is the case.
[68] Ms Howes is a suitably qualified psychologist performing a role which was necessary to help Mr Grace in his efforts towards reintegration. The Parole Board had made it clear that they saw further psychological treatment as necessary. This Court will not embark on an enquiry as to whether the stance taken by Ms Howes, or the conclusions reached by her were wrong. She was not exercising powers that are susceptible to judicial review.8 The Court’s role in such cases is confined to reviewing the lawfulness of the decision in issue. Ms Howes’ decision was clearly lawful. Ms Howes had not been able to establish a therapeutic relationship with Mr Grace. She was entitled to refer to earlier psychological reports, which contained material relevant to her own assessment of Mr Grace’s position.
[69] As to the third claim, Mr Grace’s security classification was reviewed and confirmed as “low” on 4 August 2021. Mr Grace appears to complain about timeliness of the review. He states that from the beginning of June he had continuously asked staff when his security classification would be reviewed. A review was initiated on 10 July 2021, but not completed until 4 August 2021. Mr Grace was notified the same
8 Wilson v New Zealand Parole Board [2023] NZHC 1003.
day. This is not unreasonable. As noted at [40] in relation to an earlier review, the month it took to reconsider Mr Grace’s classification appears unexceptional.
[70] As to the fourth claim, the amended statement of claim alleges that Mr Meyer had the ability to override Mr Grace’s security classification from “low” to “minimum”, but he failed to exercise that power. This is not correct. Mr Meyer does not have the ability to override a security classification. That is an operational and custodial matter for which he does not have responsibility.
[71] Another failing of the security review in August 2021 is said to be the addition of three “demerit points” because Mr Grace had outstanding treatment needs. This is the fifth claim. Mr Grace here refers to the section A.5.5 – Motivation to achieve Offender Plan Activities. In this section a good rating is achieved if the prisoner is attending and/or has completed the Offender Plan activities scheduled for the past six months or the activities were not available due to events or circumstances beyond the prisoner’s control, but the prisoner showed motivation to attend. An average rating is achieved if the prisoner attending or attempted to attend, and completed some of the Offender Plan activities scheduled for the previous six months.
[72] The review was undertaken by an employee of Corrections and not Serco. The reviewing officer changed Mr Grace’s previous good rating to an average rating because he had “some outstanding treatment needs”. This led to the addition of three points to Mr Grace’s score and resulted in a total of eight points for internal risks and 30 points for external risks. On the basis of those scores, Mr Grace received a provisional classification of “low-medium”. However, this was manually overridden, which resulted in a “low” classification for Mr Grace.
[73] Although Mr Grace maintains he had done everything necessary to be paroled, the Board continued to see it differently and had commented about his outstanding treatment needs, particularly psychological treatment. That was an assessment for the Board, which this Court is not in a position to review. In any event, the addition of three points made no difference to Mr Grace’s security classification. Mr Grace’s January 2021 classification was “low”, having been revised down from “low-medium”
following an override and his August 2021 classification was also “low”, again, revised down from “low-medium”.
[74] The sixth and final claim is a general allegation that Serco is purporting to require Mr Grace to undergo psychological treatment for the specific purpose of preventing his access to activities, which would enable him to show the Board that he is capable of reintegration, all this for the purpose of prolonging his detention.
[75] There is, however, no evidence to support such an allegation. Psychological treatment was recommended by the Board as the pathway forward for Mr Grace. An extract from the Board’s decision dated 11 October 2021 is set out earlier in [19]. It is clear that Mr Grace had a difference of opinion with the Board, who commented that his claim that the treating psychologist was deliberately delaying his reintegration, was, again, a misinterpretation of the situation, to which he had reacted angrily.
[76] I accept Mr Meyer’s evidence that Serco prioritised Mr Grace’s treatment, which was conducted by a suitably qualified psychologist. There is no reason to call into question the bona fides or quality of the psychological treatment. Mr Meyer is of the opinion that the ‘roadblock’ to Mr Grace’s reintegration is his interpersonal style and his response to treatment support which makes him an ongoing risk for future violence. Again, there are no grounds to review Mr Meyer’s expert opinion in the context of the present proceedings.
[77] Finally, I also accept that Serco has made available to Mr Grace a variety of employment and other opportunities relevant to his ability to demonstrate capacity for reintegration within the bounds of what his classification allows.
[78]The fourth cause of action is dismissed.
Result
[79]Mr Grace’s application for judicial review is dismissed.
Woolford J
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