Green v Chief Executive of the Department of Corrections
[2020] NZHC 640
•25 March 2020
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CIV-2019-404-2018
[2020] NZHC 640
UNDER the Judicial Review Procedure Act 2016 BETWEEN
GLENN GREEN
Applicant
AND
CHIEF EXECUTIVE OF THE DEPARTMENT OF CORRECTIONS
Respondent
Hearing: 20 March 2020 Appearances:
Applicant in person
M Mortimer for Respondent
Judgment:
25 March 2020
JUDGMENT OF BREWER J
This judgment was delivered by me on 25 March 2020 at 10:00 am pursuant to Rule 11.5 High Court Rules.
Registrar/Deputy Registrar
Solicitors:
Meredith Connell (Auckland) for Respondent
GREEN v CHIEF EXECUTIVE OF THE DEPARTMENT OF CORRECTIONS [2020] NZHC 640 [25 March 2020]
Introduction
[1] Mr Green pleaded guilty in the District Court to a charge of blackmail. On 16 May 2019, Judge CM Ryan sentenced him to 17.5 months’ imprisonment.1
[2] Judge Ryan imposed a number of release conditions. One, a special condition imposed under s 93(2)(b) of the Sentencing Act 2002 (“the Act”), is:
Not to undertake any employment or training, paid or unpaid, without the prior written approval of a probation officer.
[3] Mr Green is unhappy with the way his probation officers are giving effect to this condition.
[4] Mr Green, who represents himself, has filed a document applying for what he says is judicial review of the condition. This is what he asks the Court to do:
I am seeking the court to either dismiss the employment condition all together or at the very least make a decision ordering probation not to force me to disclose history if not asked and to back off and allow me to find a job that will be ongoing long after probation ends in August 2020.
[5] Mr Green cannot obtain an order from this Court by way of judicial review removing the condition from his conditions of release. He has already litigated this issue in a criminal appeal determined by Lang J on 5 September 2019.2 Justice Lang dealt with the issue in this way:
[26] This condition prohibits Mr Green from obtaining employment without the prior approval of his probation officer. Mr Green says that he has already obtained several offers of employment but on each occasion his probation officer declined to approve the employment unless Mr Green disclosed his previous offending to the prospective employer. He says that this resulted in him not proceeding with his applications for employment.
[27] Mr Steele submits that this argument does not constitute an appeal against the imposition of the condition but rather against the manner in which it is being applied. For that reason he contends the appeal cannot succeed, and that Mr Green must look elsewhere for a remedy if he is unhappy with the manner in which the probation service is applying the condition. He suggests, for example, that Mr Green could bring judicial review proceedings if he considered the probation service was not enforcing the condition in an appropriate manner.
1 R v Green [2019] NZDC 9117.
2 Green v R [2019] NZHC 2220.
[28] I accept this argument and I also consider the imposition of the condition was appropriate. Mr Green’s previous convictions demonstrate that he is plainly unsuited to some forms of employment. Positions in which he is required to handle money would fall within this category.
[29] I am reluctant to completely ignore the issue Mr Green raises, however, because his ability to obtain employment is likely to be an important factor in his rehabilitative process. It is also unrealistic in my view to require Mr Green to apply for judicial review whenever he considers the probation service has acted inappropriately in declining to approve an offer of employment.
[30] In imposing this condition the Judge said that she “encourage[d] the probation officer to assist you and encourage you to obtain employment, because you definitely have skills which can be best used by being employed in the community”. Earlier in her remarks the Judge also said that she was imposing special release conditions to reduce the risk of offending and provide for the reasonable concerns of victims, as well as facilitating or promoting Mr Green’s rehabilitation or reintegration. The rehabilitative aspect of the conditions needs to be borne in mind in the present context.
[31] There is also some force to Mr Green’s submission that it should be left to prospective employers to seek such information as they may require about his past before they employ him. If they are not sufficiently concerned to make enquiries about previous convictions he should not be required to disclose them. A blanket requirement that he disclose his convictions in every case could also cost him job opportunities that may otherwise be available to him. That would hinder the rehabilitative process for obvious reasons.
[32] It seems to me that the greatest risk of future offending lies in Mr Green’s ability to gain access to electronic devices that permit him to obtain unsupervised and unmonitored access to the internet. That certainly appears to be the focus of the remainder of his release conditions and I consider it is also relevant in the context of his future employment.
[33] Mr Green told me during the hearing that he is seeking a position as a mechanic in a garage or car repair business. He says this will not involve him having access to electronic devices capable of gaining access to the internet. I consider, for what it is worth, that the probation service should permit Mr Green to apply for such positions without being required to disclose his previous convictions so long as it can be sure the job will not permit him to have access to any internet capable device. It will be for Mr Green to satisfy the probation service that any position for which he applies meets this requirement. This does not detract in any way from Mr Green’s general obligation as a prospective employee to honestly answer any questions an employer may ask about his past history.
[6] Mr Green’s complaint now is really about the way he alleges his probation officers are administering the condition. His arguments can be summarised:
(a)The probation officers have not heeded Lang J’s views.
(b)They are inconsistent in their approach to the relevance of his criminal history. One probation officer did not require him to proactively disclose his criminal history. Another required all of it to be disclosed. A third probation officer required disclosure only of the blackmail offence upon which the condition was imposed.
(c)He is required to obtain employment if possible, and he wants to, but the diktat of the probation officers about disclosure of his history is stopping him from getting employment.
[7] Mr Green did say that he has no objection to a probation officer checking with a prospective employer to assess whether a job is suitable, provided that the only conviction disclosed is the one for blackmail.
Judicial review
[8] Judicial review is a tool of limited usefulness for Mr Green in his situation. As French J has said:3
[C]ontrary to popular belief, judicial review is not an appeal. It is not about the Court considering information afresh and coming to its own views. Judicial review is primarily limited to an examination of the process, and if successful usually results in the decision-maker being required to start afresh, as opposed to quashing the decision for all time.
[9] In the spirit of professional accommodation, Mr Mortimer for the respondent suggested that if I were to find the respondent has acted unlawfully, then the appropriate relief would be a declaration to that effect. I adopt that suggestion. It gives me a principled approach to Mr Green’s complaint.
[10] First, Mr Green’s ground for judicial review that the probation officers have not heeded Lang J’s views cannot succeed. Justice Lang made suggestions, not orders. Further, the affidavit of Mr Green’s current probation officer, Mr Ramachandran, sets out an approach to Mr Green’s employment opportunities which is not inconsistent with Lang J’s common sense advice. Judicial review, as French J said, is about an
3 Aorangi School Board of Trustees v Ministry of Education [2010] NZAR 132 (HC) at [8].
examination of the lawfulness of process rather than (except for extremes) an evaluation of outcome.
[11] I will consider the second and third grounds (inconsistency of approach and material detriment) together.
[12]Section 93(3) of the Act provides:
(3)A special condition must not be imposed unless it is designed to—
(a)reduce the risk of reoffending by the offender; or
(b)facilitate or promote the rehabilitation and reintegration of the offender; or
(c)provide for the reasonable concerns of victims of the offender.
[13] Mr Green’s probation officers have to administer the condition consistent with the reasons for which it was imposed. Judge Ryan did not specify why she imposed the condition. However, the Judge clearly viewed rehabilitation and reintegration through gaining employment as important:4
… I do though encourage the probation officer to assist you and encourage you to obtain employment, because you definitely have skills which can be best used by being employed in the community.
[14] The necessary inference is that the Judge, knowing that Mr Green is assessed as having a high risk of reoffending, imposed the condition so that probation officers could check proposed employment to reduce the risk of reoffending.
[15] Mr Green, from his record, will be at a high risk of reoffending if his job allows him to handle money, have access to the internet or access to customer details. A probation officer is entitled to (indeed, should) satisfy himself/herself that any job Mr Green applies for does not have any of these risk factors.
[16] A probation officer will have to make inquiry of a prospective employer. Mr Green is not a reliable source of information.
4 R v Green, above n 1, at [89](h).
[17] I have looked at the evidence of two job applications about which Mr Green complains. Mr Green says there were others, but there is no evidence of them . In any event, Mr Green’s descriptions of what happened are similar to his descriptions of the two for which there is evidence.
[18] One application was for a job as a car groomer at a car sales business. Mr Green refused to allow the probation officer to contact the prospective employer (as is his right). The probation officer told Mr Green it was essential that he disclose his offending to the prospective employer. The probation officer did not approve the employment because he did not know what risks the job entailed, nor did he know what Mr Green had disclosed to the employer which might mitigate any risks.
[19] The other application was for a job at Graffiti Protecta Painting. Mr Green gave consent for the probation officer to contact the prospective employer. The probation officer did not disclose all of Mr Green’s criminal history. He spoke about it in general terms and for the purpose of obtaining information relevant to risk factors. The probation officer discussed with the prospective employer whether Mr Green’s job could be structured so he worked at commercial businesses and not at private homes. In the end, it was concluded this was not possible and the job was not approved.
[20] I understand Mr Green’s frustration. He wants to get a job and he sees the probation officers getting in the way of that. But, Mr Green is at a high risk of reoffending. His probation officers must be able to assess risk factors associated with particular jobs.
[21] I do not find there is an unlawful process. The approaches taken to disclosing Mr Green’s criminal history are more nuanced than Mr Green submits. There is no blanket direction that he must disclose his full criminal history. I accept there is material detriment to Mr Green from disclosure of his criminal history to any degree. An employer aware that Mr Green has a criminal history and is being monitored by the probation service may well be less likely to offer Mr Green a job than if they did not know these things. But, that is unavoidable and is not the result of unlawful process.
Decision
[22]Mr Green’s application for judicial review is dismissed.
Costs
[23] If there is any issue as to costs, the respondent is to file its memorandum no later than 8 May 2020. If a memorandum is filed, Mr Green is to file his reply no later than 22 May 2020.
Brewer J
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