Green v New Zealand Parole Board
[2023] NZHC 2595
•18 September 2023
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CIV-2023-404-99
[2023] NZHC 2595
UNDER the Judicial Review Procedure Act 2016 BETWEEN
TERENCE JAMES GREEN
Applicant
AND
THE NEW ZEALAND PAROLE BOARD
Respondent
Hearing: 14 August 2023 Appearances:
O E Harold for Applicant
No appearance by Respondent (abides decision) S Jerebine as counsel to assist the Court
Judgment:
18 September 2023
JUDGMENT OF WOOLFORD J
This judgment was delivered by me on Monday, 18 September 2023 at 11:30 am pursuant to r 11.5 of the High Court Rules.
Registrar/Deputy Registrar
Counsel: O E Harold for Applicant
S Jerebine (Bankside Chambers), Auckland
GREEN v THE NEW ZEALAND PAROLE BOARD [2023] NZHC 2595 [18 September 2023]
[1] Terence James Green is a serving prisoner. 1 On 30 November 2018 he was sentenced to nine years’ imprisonment on one representative charge of rape. Mr Green was also sentenced to a concurrent sentence of three months’ imprisonment for one charge of breaching a protection order. His sentence end date is 21 September 2025. He first became eligible for parole on 23 September 2019.
[2] On 22 September 2022, Mr Green was declined parole by the New Zealand Parole Board (the Board). He applied to review the decision. On 18 November 2022 his application for review was dismissed. He now applies for judicial review of the Parole Board decision. Mr Green has previously sought judicial review of an earlier Parole Board decision, dated 31 March 2021, declining parole and a review decision dated 20 May 2021. In a comprehensive decision dated 6 April 2022, Gordon J dismissed his earlier application for judicial review.2
Parole Board decision
[3] The Board held a parole hearing under s 21(2) of the Parole Act 2002 (the Act) on 22 September 2022 at Auckland South Corrections Facility via Microsoft Teams. Its decision was as follows:
1.[Mr Green] is 37 years of age, was sentenced to nine years’ imprisonment for the rape over three to four years of his young step- daughter. He has a final release date of September 2025. A minimum security classification. Prior to that offending he had three pages of offending involving drugs, violence, and breaches of court orders. [Mr Green] denies the offending.
2.We last saw him in September 2021 at that stage he made it clear he continued his denial and, therefore, was not eligible for any risk base treatment. So we said he needed a comprehensive safety plan and a comprehensive release plan.
3.We have had a letter from his family which supported Mr [Green’s] denials, and so was a concern in terms of our assessment of their capacity to keep him and young women safe. We also noted that Mr [Green] may not be able to be released to Auckland because of victim concerns.
4.As to the current situation today we saw a victim prior to the hearing. The victims have made it clear that they strongly oppose Mr [Green]
1 This is not the applicant’s real name. I have adopted the same name as was used in earlier proceedings to protect the identity of the victim of his sexual offending.
2 Green v New Zealand Parole Board [2022] NZHC 693.
being released to Auckland. They want the freedom, for understandable reasons, to be able to travel and work and live in Auckland without the fear of having contact with Mr [Green]. So we have told Mr [Green] today that in their view he was likely to be prohibited from living in Auckland as part of any parole grant and so he should look elsewhere for accommodation.
5.Mr [Green], at the end of the hearing, tried to get us to answer yes or no to his enquiry: “If I find a place in Hamilton and my family shift there will that be acceptable?” We did not respond to his question, as we have said the prohibition relates only to Auckland.
6.Mr [Green] still does not have in our view either a comprehensive safety plan or a comprehensive plan that could function as an alternative to the risk based treatment we hoped he would have, and so in our view he remains an undue risk. He does have a safety plan which is short, but for that reason is not inadequate, but does not deal with all of his potential risks sufficiently and clearly.
7.Secondly, he does not have a comprehensive release plan. His plan was to be released to Auckland to a man called Mr McGuire who is offering him accommodation. Mr [Green] did not know Mr McGuire before the offer although they have apparently spoken since. That is not, in our view a comprehensive release plan, and in any event is an offer of accommodation in Auckland. When we talk about a comprehensive plan we look to a plan that will involve family and friends holding Mr [Green] accountable, family and friends who understand the risk that Mr [Green] poses potentially in the family, and who can keep an eye on his progress in the community and report any concerning behaviour. Those concerns will need to be an integral part of any comprehensive release plan to reduce Mr [Green’s] risk.
8.We acknowledge currently his risk is assessed at low/moderate risk of re-offending, but that low/moderate risk is not no risk, nor is it necessarily less than undue. For the reasons given we are satisfied, as we have previously been, that Mr [Green] remains an undue risk and that once he has developed what we identified back in September 2021 and in our decision today, then he may convince the Board that he is less than undue.
9.We will then see him again in six months’ time in February 2023 with the hope that he can develop the plan that they had identified.
[4] Mr Green then sought a review of the Board’s decision under s 67 of the Act. The review was determined on the papers by a panel convenor. In a decision dated 18 November 2022, the panel convenor dismissed the application for review. Although it is referred to in the statement of claim, it does not form the basis of or any part of any pleaded cause of action. As such, it is outside the scope of consideration in the present proceedings.
Approach on judicial review of Parole Board decisions
[5]I adopt the comments made by Gordon J in her decision dated 6 April 2022.3
[22]The Court does not carry out a substantive merits-based review of the Board’s decision. There is a distinction between the scrutiny of a decision-making process on judicial review, and an appeal on the merits of the decision reached. Judicial review is concerned not with the decision but with the decision-making process.4
[23]The decisions challenged will be set aside only if there has been an error by the Board of the type pleaded by Mr Green. The decisions cannot be set aside simply because the Court might have reached a different view on the facts before the Board.
[24]In Ericson v New Zealand Parole Board, Gendall J referred to the narrow scope for judicial review of decisions of the Parole Board, saying:5
It is well known that the scope for judicial review of decisions of the Parole Board is narrow. The Court can only make an assessment of whether a Board’s decision was lawful, that a decision was open to it. Challenge may only be on the usual judicial review principles, namely that the Board acted unlawfully because it failed to take into account all relevant considerations, took into account irrelevant considerations, that it arrived at its decision in breach of the principles of natural justice, or that its decision was so unreasonable as to be reviewable.
The Courts do not and cannot sit as appellate bodies from decisions lawfully made by the Board and the Court cannot exercise a jurisdiction which by law is vested in the Parole Board. The recent Court of Appeal decision in Miller v New Zealand Parole Board made this clear when dismissing broad challenges to the parole regime based upon domestic and international human rights instruments. The assessment whether the decision was lawful or not cannot be taken as an opportunity to revisit the application for parole. It is not necessary to review in any detail how the parole system worked this having been discussed at length in Miller and other cases, including A(Victim) v New Zealand Parole Board where Simon France J provided a general overview of how parole works. There is no general entitlement to parole and s 28(1AA) and (2) of the Parole Act 2002 makes it clear that an applicant may only be released if the Board is:
3 Green v New Zealand Parole Board, above n 2.
4 Fraser v State Services Commission [1984] 1 NZLR 116 (CA) at 127.
5 Ericson v New Zealand Parole Board HC Wellington CIV-2010-485-1912, 2 March 2011 at [13]-[14].
satisfied on reasonable grounds that the offender ... will not pose an undue risk to the safety of the community or any person
...
Grounds of review
[6] The statement of claim lists eight grounds of review. I will deal with each ground in turn.
First ground of review
[7] The first ground of review alleges that the Board failed to advise him just what sort of “contact” Mr Green was at risk of having with the victim and her mother if released on parole and why this prevented the victim’s mother travelling to, living, or working in Auckland. Mr Green also claims that the Board failed to advise him why it was reasonable to require a residential address for Mr Green that was not in Auckland.
[8] The first ground of review further alleges that the Board failed to advise Mr Green of information received by the Board from the victim’s mother in breach of s 13 of the Act. Mr Green also claims that the Board failed to recognise that Pukekohe is not in Auckland.
[9] Section 13 of the Act requires the Board to take all reasonable steps to ensure that the information received by the Board on which it will make any decision relating to an offender is made available to the offender at least five working days before the relevant hearing or if that is not possible, as soon as practicable before the hearing.
[10] The decision records that the Board saw the victim’s mother prior to the hearing. The Board was able to do so in terms of s 49(4) of the Act, which provides that every victim of an offender is entitled to appear and make oral submissions to the Board for the purpose of assisting the Board to reach a decision. At the hearing involving Mr Green, there was then an extensive dialogue about the views of the victim and her mother. The Board Chair sought a response from Mr Green when he stated:
The final thing I want to say to you is this. Relating to the victim is not a question of you going to Pukekohe [where the victim and her mother live]. The question is, should the victim be free to go anywhere in Auckland without fear of seeing you? We’re not going to restrict her to Pukekohe. Now what do you want to say?
[11] The Board’s decision also recorded that the victim and her mother had made it clear that they strongly opposed Mr Green being released to Auckland. It summarised:
… They want the freedom, for understandable reasons, to be able to travel and work and live in Auckland without fear of having contact with Mr Green. So we have told Mr Green today that in our view he is likely to be prohibited from living in Auckland as part of any parole grant and so he should look elsewhere for accommodation.
[12] This explanation self-evidently means the victim and her mother do not want the risk of unplanned encounters with Mr Green.
[13] Mr Green already knew that, so there can be no breach of s 13 of the Act. In the Board’s decision a year earlier in September 2021, the Board stated:
We mentioned to Mr [Green] that the victim was strongly against any release to Auckland, particularly in the Pukekohe area … We may well decide that it is inappropriate for Mr [Green] to be released to the Auckland area.
[14] Mr Green submits that the Board seemed somewhat confused thinking that Pukekohe was in Auckland “when it wasn’t”. The fact of the matter is that Pukekohe is a town located at the southern edge of the Auckland region. It is also within the political boundaries of Auckland Council following the abolition of the Franklin District Council in 2010.
[15] The allegations of procedural irregularity, the admission of irrelevant and/or illegitimate evidence, and the failure to provide reasons or evidence are not sustained.
[16]The first ground of review must fail.
Second ground or review
[17] The second ground of review alleges that the Board unreasonably referred to “facts” which were not facts at all, being a (not entirely accurate) summary of the complainant’s narrative before and during trial.
[18] Mr Green does not identify the facts to which he refers in the statement of claim, affidavit or submissions. The only references by the Board to the offence in respect of which Mr Green was convicted and sentenced are in the first paragraph of the Board’s decision:
Mr [Green] is 37 years of age, was sentenced to nine years’ imprisonment for the rape over three to four years of his young step-daughter … Mr [Green] denies the offending.
[19] This description is completely accurate. The Board did not unreasonably refer to inaccurate facts.
[20]The second ground of review must fail.
Third ground of review
[21] The third ground of review alleges that the Board failed to take into account reports from psychologists, Dr Joseph Sakdalan, Ms Sabine Visser and Mr Paul Ryan. These reports commented on Mr Green’s trouble-free history in the community and with family members, other than the child victim, as well as the results of objective psychological testing of Mr Green’s personality. These matters are said to be highly relevant to risk to the community. Additionally, the applicant says that in his report Mr Ryan outlined a risk-based treatment programme available for Mr Green, which seems to have been completely ignored by the Board.
[22] During the course of the hearing, counsel for Mr Green referred to Mr Ryan’s report and his assessment that Mr Green had a low to moderate overall risk of reoffending. Mr Green’s safety plan was also set out in Mr Ryan’s report. It was this safety plan the Board referred to when it stated in its decision:
6. Mr [Green] still does not have in our view either a comprehensive safety plan or a comprehensive plan that could function as an alternative to the risk based assessment we hoped he would have. He does have a safety plan which is short, but for that reason is not inadequate, but does not deal with all of his potential risks sufficiently and clearly.
[23] Mr Ryan’s risk assessment of low-moderate was also explicitly referred to in the Board’s decision, when it stated:
8. We acknowledge currently his risk is assessed at low/moderate risk of re-offending, but that low/moderate risk is not no risk, nor is it necessarily less than undue.6
[24] The allegation of failure to have regard to a risk-based treatment programme available to Mr Green is dealt with under the fifth ground of review.
[25]In summary, the Board has not failed to take a relevant matter into account.
[26]The third ground of review must fail.
Fourth ground of review
[27] The fourth ground of review alleges that the Board did not detail or describe what behaviour Mr Green might engage in upon release, which was a “risk” to the community. The Board also incorrectly described the class of person to whom Mr Green was a “risk” as “young women”.
[28] Mr Green’s risk was summarised in a Parole Assessment Report prepared for the Board’s meeting on 22 September 2022, as follows:
Risk Summary
Mr [Green’s] offending related factors are identified as relationships, attitudes, alcohol use, violence and offending-related sexual arousal. Mr [Green] was assessed to be at a high risk of reoffending until he has engaged in and completed programmes relevant to his index offending. Mr [Green] has a RoC*RoI of 0.16822 which indicates a low risk of general risk of reconviction and reimprisonment within five years of release. He has an Automated Sexual Recidivism Score (ASRS) of 2 which reflects a medium-low risk of sexual reoffending.
As Mr [Green’s] offending was against a child, it is recommended that he prohibited from any form of contact with persons under the age of sixteen years unless he has permission of his Probation Officer.
As substance use has been identified as an offending related factor, an abstinence condition as well as a special condition to attend an alcohol or drugs (AOD) assessment is proposed. As Mr [Green] has not engaged in any rehabilitation to date, a special condition that he attend any treatment as directed by a Probation Officer is also recommended.
6 The Board may only give a decision that an offender be released on parole if it is satisfied on reasonable grounds that the offender if released on parole will not pose an undue risk to the safety of the community or any person or class of persons within the term of the sentence pursuant to s 28(2) of the Parole Act 2022.
Mr [Green] has provided his consent for Electronic Monitoring (EM). He signed a copy of the Electronic Monitoring Offender Agreement (EMOA) which was explained to him. Community Corrections recommend Mr [Green] be subject to Residential Restrictions (RR) between the hours of 10pm-6am daily, with a progress hearing 3 months after release, to help him ease back into the community and work to mitigating potential risk.
[29] This risk summary formed the basis of comments made by the Board in [7] and [8], as follows:
When we talk about a comprehensive plan we look to a plan that will involve family and friends holding Mr [Green] accountable, family and friends who understand the risk that Mr [Green] poses potentially in the family, and who can keep an eye on his progress in the community and report any concerning behaviour …
We acknowledge currently his risk is assessed at low/moderate risk of re- offending but that low/moderate risk is not no risk, nor is it necessarily less than undue.
[30] The Board adequately and sufficiently identified the risk that Mr Green posed to the community as the risk of reoffending in a similar manner. The allegation that the Board failed to detail the risk that Mr Green posed to the community upon release cannot be sustained.
[31]The Board made a reference to young women when it stated:
We have had a letter from his family which supported Mr [Green’s] denials, and so was a concern in terms of our assessment of their capacity to keep him and young women safe.
[32] Counsel for Mr Green submits that women are adult human females and by definition the word “women” does not include children. He submits that the Board, therefore, misunderstood Mr Green’s risk as he has never been charged with or convicted of sexual offending against women.
[33] There is nothing in this point. Girls are sometimes referred to as young women. The Board did not err in any material way.
[34]The fourth ground of review must fail.
Fifth ground of review
[35] The fifth ground of review alleges that the Board gave no reason, or rational analysis, or scientific or statistical grounds, for supposing that only a treatment programme where Mr Green admits his wrongdoing would be sufficient to mitigate risk by comparison with the programme suggested by the psychologist, Mr Ryan, whereby such admissions were not required.
[36] This claim misunderstands the finding of the Board. In his report, Mr Ryan stated:
Given Mr [Green’s] continued denial of his offending he has been unable to participate in Department of Corrections treatment programmes for sexual offending for which acceptance of responsibility is requisite. Mr [Green] informed the writer that despite his denial he had been and is currently willing to participate in and complete such treatment. In November 2011 the writer confirmed with … Counselling Psychologist and Treatment Clinician at the community based SAFE Programme for the treatment of sexual offenders that the SAFE Programme will accept and work with clients who are in denial of their offending. It is recommended that Mr [Green] participate in this programme to completion as directed by the Community Probation Service.
[37] In the hearing on 22 September 2022, the Board Chairman explained to Mr Green that the Board had to proceed on the basis that he was guilty of the rape of a girl over a number of years. The Chairman stated:
And so our approach to that, which is a standard well-established approach, is that before you can be released, we have to be satisfied that you’ve understood why you offended and that you’ve undertaken appropriate rehabilitation work to reduce the risk that was illustrated by your offending. And so at the moment you’re kind of stuck. You have every right to deny it, but there are consequences from that. Obviously you can’t do a programme for sex offenders when you say you aren’t a sex offender, because that’s not going to reduce your risk …
[38] When referred by Mr Green to the SAFE programme, which was only available after release, the Board Chairman stated:
That’s not what we’re looking at. What we’re looking at is something done to reduce your risk before you have convinced us you should get out of prison.
[39] In the end, the Board did not say that only a treatment based on admission of wrongdoing would be sufficient. In its decision, the Board stated:
6. Mr [Green] still does not have in our view either a comprehensive plan that could function as an alternative to the risk based treatment we hoped he would have, and so in our view he remains an undue risk. He does have a safety plan which is short, but for that reason is not inadequate, but does not deal with all of his potential risks sufficiently and clearly.
[40] The safety plan identified by the psychologist, Mr Ryan, was not accepted because it did not address all matters sufficiently and clearly. The Board did not reject the safety plan because it was based on an alternative to the acceptance of wrongdoing. It rejected the safety plan because it was not sufficiently comprehensive.
[41]The fifth ground of review must fail.
Sixth ground of review
[42] The sixth ground of review alleges that the Board failed to take into account that electronic monitoring was available on release to mitigate risk.
[43] Section 15(3)(f) of the Act enables the Board to impose a condition requiring the offender to submit to the electronic monitoring of compliance with any release conditions. The Parole Assessment Report for the Board noted that Mr Green had provided his consent for electronic monitoring and had signed a copy of the Electronic Monitoring Offender Agreement, which had been explained to him. Community Corrections recommended that Mr Green be subject to Residential Restrictions between the hours of 10.00 pm and 6.00 am daily, with a progress hearing three months after release, to help him ease back into the community and work to mitigating potential risk.
[44] The report of the psychologist, Mr Ryan, provided to the Board by Mr Green’s counsel recommended:
Should Mr [Green] be granted early release on parole by the [Board] all aspects of his residence, employment, study, possible intimate relationships, access to children and young persons under the age of 16 years (including his own children and those related to him) and all recommended therapy to be carefully monitored by the Community Probation Service under special and statutory conditions of release. With regard to access to children under the age of 16 years, he must follow the mandates of the Community Probation Service.
Electronic monitoring for Mr Green may be considered appropriate.
[45] The Board was clearly aware of the availability of electronic monitoring. Although the Board makes no reference to electronic monitoring in its decision, it was not required to do so. It was not a mandatory consideration — merely one of a large number of risk reduction conditions it has at its disposal.
[46] The Board records it has reviewed Mr Green’s safety plan but considered it to be inadequate and noted that it does not deal with all of Mr Green’s potential risks sufficiently and clearly. The reasons given are more than sufficient. It is up to the Board to assess risk and not for this Court to second guess such a specialist tribunal.
[47]The sixth ground of review must fail.
Seventh ground of review
[48] The seventh ground of review alleges that the Board severed the telecommunications link with Mr Green and his counsel, giving no opportunity to ask questions to clarify or to make submissions on the Board’s reasoning process.
[49] I have had the opportunity to review the transcript of the hearing before the Board on 22 September 2022. The hearing took approximately 15 minutes, although it appears the early part of the hearing was not recorded. Initially there was a six minute discussion between Mr Green and a Panel member, Mr G Coyle, about release to Auckland, the proposed address, paid employment, and rehabilitative programmes. Input was then sought from Mr Green’s Case Manager and a Principal Corrections Officer. The Chair of the Board, Sir R Young, then had a dialogue with Mr Green for another almost eight minutes, which was followed by Mr Coyle asking Mr Green’s counsel whether there was anything further. Counsel made reference to an assessment by the psychologist, Mr Ryan, that Mr Green had a low to moderate overall risk.
[50] The Panel then went off-line to consider its decision. When they resumed the link, Panel member, Mr Coyle, said they would see Mr Green again in February next year. Mr Coyle then explained what was required from the Board’s point of view.
What we’d like to say to you now is that the address in Auckland is not satisfactory and you’re going to have to find an address outside of Auckland.
We want a whānau hui to take place where we see strong commitment from your family and your supporters, their commitment to keeping the public safe and keeping you safe, and that needs to happen. We’d also like a more structured safety plan and we’d ask you to work with your case manager to put together a plan which is perhaps more in line with a denier’s safety plan and put all that together for the Board and we’ll see you again in February to take regard of that information.
[51] Mr Green replied “Okay”. However, he then sought to enter into a dialogue about moving his family to Hamilton. The Board did not engage with him and terminated the hearing.
[52] Mr Green and his counsel did, however, have sufficient time to talk about where he would reside on parole earlier in the hearing when there was an extensive dialogue about the proposed parole address in Auckland. The Board made it plain that an Auckland address was unacceptable because of victim concerns.
[53] At the end of the hearing, Panel member, Mr Coyle, asked counsel if there was anything further. The Board then retired to consider its decision and then advised Mr Green of its decision. The hearing was complete at that stage.
[54] No question of a breach of natural justice arises. In any event, Mr Green asked a purely hypothetical question, which the Board was unable to answer in the absence of a detailed proposal, which would include the actual address, the nature of the residence, details of any other occupants, and proximity to where the victim resided.
[55]The seventh ground of review must fail.
Eighth ground of review
[56] The final ground of review alleges that taken as a whole, the Board’s process, reasoning and decision are so substantively flawed as to amount to an abuse of process. For the above reasons, the applicant has failed to identify any particular flawed aspect of the Board’s process, reasoning or decision. This position cannot change by stepping back and considering the process the Board took and its reasoning and decision as a whole.
[57]The eighth ground of review must fail.
Result
[58] All eight grounds of review must fail. Mr Green’s application for judicial review of the Board’s decision is dismissed.
Costs
[59] Ms Jerebine, counsel appointed to assist, has submitted that in the event Mr Green is not successful costs are sought on a 2B basis with usual disbursements, with an order made pursuant to s 178(2)(a) of the Senior Courts Act 2016. Section 178(2)(a) provides that where a person appears as counsel to assist the court in any civil proceedings, the court may, subject to the provisions of any other Act, make any order it thinks just as to the payment by any party to the proceedings of the costs incurred by the Attorney-General or the Solicitor-General.
[60] Ms Jerebine says an award of costs is appropriate because the applicant’s claims were not supported at law and did no address a matter of substantial public importance. Therefore, the general principle that costs follow the event should apply.7 She says costs should be paid by the unsuccessful applicant rather than from the public fund.
[61] The applicant has not addressed the issue of costs. Importantly, it is not clear whether the applicant is legally aided in this proceeding.
[62] If the applicant is not legally aided, counsel to assist will be entitled to costs for the same reasons articulated by Gordon J in her judgment.8 That is, that the applicant’s application was made without merit and did not raise issues of public importance. However, a costs award will likely not be appropriate in this case if the applicant is legally aided, pursuant to s 45(2) of the Legal Services Act 2011. Therefore, I direct the parties are to file memoranda as follows:
(a)The applicant is to file and serve its costs memorandum within 10 working days from delivery of this judgment.
7 High Court Rules 2016, r 14.2(1)(a)
8 Green v New Zealand Parole Board, above n 2, at [101]–[109].
(b)Counsel to assist is to file and serve its costs memorandum in reply within seven working days from service of the applicant’s memorandum.
(c)The memoranda are not to exceed three pages in length other than annexed schedules.
[63]A costs decision will then be made on the papers.
Woolford J
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