Green v New Zealand Parole Board
[2022] NZHC 693
•6 April 2022
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CIV-2021-404-1302
[2022] NZHC 693
UNDER the Judicial Review Procedure Act 2016 BETWEEN
TERENCE JAMES GREEN
Applicant
AND
THE NEW ZEALAND PAROLE BOARD
First Respondent
Hearing: 31 March 2022 Appearances:
O Harold for the Applicant
First Respondent abides the decision of the Court S Jerebine as counsel to assist the Court
Judgment:
6 April 2022
JUDGMENT OF GORDON J
This judgment is delivered by me on 6 April 2022 at 2.30 pm pursuant to r 11.5 of the High Court Rules.
.....................................................
Registrar / Deputy Registrar
Counsel:Owen Harold, Barrister, Auckland Sarah Jerebine, Barrister, Auckland
GREEN v THE NEW ZEALAND PAROLE BOARD [2022] NZHC 693 [6 April 2022]
[1] The applicant Terence Green1 is serving a sentence of imprisonment on a representative charge of sexual violation by rape of his stepdaughter. He brings judicial review proceedings challenging a decision of the New Zealand Parole Board (the Board) declining parole on 31 March 2021 (the March 2021 decision). He also challenges a decision of the Panel Convenor dated 20 May 2021 upholding the decision of the Board on review (the review decision).
[2] There are eight grounds of review, five of which claim that the Board should not have received or relied on a statement from Mr Green’s former wife Ms H, the mother of the victim of his offending. Three of the five grounds concerning Ms H’s statement relate to the March 2021 decision and two are in respect of the review decision.
[3] The next two grounds challenge the Board’s treatment of reports from psychologists.
[4] The final ground claims the Board acted unreasonably based on the above alleged errors.
[5] The Board abides the decision of the Court. Ms Jerebine was appointed as counsel to assist the Court by acting as contradictor.
Factual background
[6] Mr Green faced trial on eight charges of sexual violation (by rape and digital penetration) of his stepdaughter and threatening to kill her. The jury found him guilty of one representative charge of sexual violation by rape between 1 October 2013 and 5 May 2016 and also a charge of breach of a protection order which occurred after he was arrested for the allegations in relation to his stepdaughter. The jury found him not guilty on all the other charges. The victim was between nine and 12 years of age at the time of the offending in respect of which Mr Green was found guilty.
1 This is not the applicant’s real name. I have anonymised his name to protect the identity of the victim of his sexual offending.
[7] At sentencing on 30 November 2018 the Judge said she had formed the view that during the period of the representative charge the sexual violation happened a number of times but said it was impossible for her “to put any kind of figure on that”. Mr Green was sentenced to nine years’ imprisonment on the charge of sexual violation by rape and was automatically registered on the Child Sex Offender Register. The Judge sentenced him to a concurrent sentence of three months’ imprisonment for breach of the protection order. Then on 7 March 2019 Mr Green was sentenced on a further charge of breaching a protection order on 1 August 2018. Mr Green had pleaded guilty to the charge and was sentenced to three months’ imprisonment to be served concurrently with the sentence of nine years’ imprisonment imposed on 30 November 2018.
[8] Mr Green appealed to the Court of Appeal against both conviction and sentence. In its decision of 31 August 2020, the Court of Appeal dismissed Mr Green’s appeal against conviction and upheld the sentence of nine years’ imprisonment (the appeal against sentence having been abandoned).2
[9]Mr Green is pursuing an application for leave to appeal to the Supreme Court.
[10] Mr Green’s sentence end date is 21 September 2025. He first became eligible for parole on 23 September 2019.
Procedural history before Parole Board
[11] Mr Green’s first hearing before the Board was on 18 September 2019. At that time he was waiting for an appeal date from the Court of Appeal. He agreed to delay the hearing until the Court of Appeal had heard and determined his appeal. In its decision the Board noted that Mr Green continued to deny his offending. The Board stated that he remained an undue risk. The hearing was adjourned to February 2020.
[12] The second hearing was on 18 February 2020. The Board again adjourned the hearing pending a decision on Mr Green’s appeal to the Court of Appeal. The Board
2 G (CA738/2018) v R [2020] NZCA 375.
noted Mr Green’s continued denial of the offending and stated that the risk remained undue. Parole was declined. A new hearing was scheduled for February 2021.
[13] The third hearing was on 18 February 2021. It was adjourned to March 2021 to enable the Board to review material filed by Mr Harold, counsel for Mr Green.
[14] The fourth hearing was held on 31 March 2021 and parole was declined. This is the first of the two decisions that Mr Green seeks to review.
[15] Mr Green applied to the Board for a review of the March 2021 decision. The review decision of 20 May 2021 was given by Judge Blackie as panel convenor. Judge Blackie confirmed the March 2021 decision and noted that Mr Green was to appear again before the Board at a hearing to be scheduled in September 2021 at which time his eligibility for parole would be for further consideration. This is the second of the two decisions Mr Green seeks to review.
[16]Mr Green filed his statement of claim on 16 July 2021 in this proceeding.
[17] There was then a fifth hearing before the Board on 23 September 2021. Parole was again declined. The Board stated that the situation effectively had not changed since March 2021. A further hearing was set for September 2022. The Board noted the ability for Mr Green to seek an earlier hearing if he believed he had an extensive release plan and safety plan before that time.
Statutory framework
[18] Section 28 of the Parole Act 2002 (the Act) governs release on parole. It relevantly provides:
28 Direction for release on parole
(1AA) In deciding whether or not to release an offender on parole, the Board must bear in mind that the offender has no entitlement to be released on parole and, in particular, that neither the offender’s eligibility for release on parole nor anything else in this Act or any other enactment confers such an entitlement.
(1)The Board may, after a hearing at which it has considered whether to release an offender on parole, direct that the offender be released on parole.
(2)The Board may give a direction under subsection (1) only 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, having regard to—
(a)the support and supervision available to the offender following release; and
(b)the public interest in the reintegration of the offender into society as a law-abiding citizen.
…
[19] The test is that the offender must not pose an “undue risk to the safety of the community”. As was said by Dunningham J in Ericson v New Zealand Parole Board:3
… The term “undue” means that it is disproportionate to, and outweighed by, the prisoner’s personal interest in regaining his liberty, and by the public interest in facilitating the reintegration of the offender into society. …
[T]he term “undue risk” is a deliberately elastic test. It is not met by reference to any set or specific threshold such as a low RoC*RoI assessment. Each application for parole must be considered in light of all factors which may be relevant to that person’s risk of offending. While an offender might be “low risk” based on an actuarial calculation, their personal circumstances may still point to the risk to the community being “undue” because the Board is not satisfied that that particular applicant has demonstrated his or her risk of reoffending can be appropriately managed.
[20] The guiding principles for the Board when making parole decisions are set out in s 7 which provides:
7 Guiding principles
(1)When making decisions about, or in any way relating to, the release of an offender, the paramount consideration for the Board in every case is the safety of the community.
(2)Other principles that must guide the Board’s decisions are—
(a)that offenders must not be detained any longer than is consistent with the safety of the community, and that they must not be subject to release conditions that are more
3 Ericson v New Zealand Parole Board [2017] NZHC 536 at [24] (footnotes omitted).
onerous, or last longer, than is consistent with the safety of the community; and
(b)that offenders must, subject to any of sections 13 to 13AE, be provided with information about decisions that concern them, and be advised how they may participate in decision-making that directly concerns them; and
(c)that decisions must be made on the basis of all the relevant information that is available to the Board at the time; and
(d)that the rights of victims (as defined in section 4 of the Victims’ Rights Act 2002) are upheld, and submissions by victims (as so defined) and any restorative justice outcomes are given due weight.
(3)When any person is required under this Part to assess whether an offender poses an undue risk, the person must consider both—
(a)the likelihood of further offending; and
(b)the nature and seriousness of any likely subsequent offending.
[21] Section 43 sets out provisions regarding preparation for a hearing before the Board. It relevantly provides:
43 Preparation for hearings
(1)When an offender is due to be released at his or her statutory release date, or to be considered by the Board for parole, the Department of Corrections must provide the Board with—
(a)copies of all relevant information relating to the offender’s current and previous convictions, including (for example) sentencing notes and pre-sentence reports; and
(b)if the offender has engaged in any restorative justice processes, any reports arising from those processes; and
(c)in the case of an offender detained in a prison, a report by the Department of Corrections; and
…
(2)The Board must take all reasonable steps to give notice to the following people that a hearing is pending:
(a)the offender:
(b)every victim of the offender:
…
(2A)When, under subsection (2)(b), the Board gives notice to a victim that a hearing is pending, the Board must also prepare and send to the victim an explanation of the hearing process and how the victim may participate in that process.
…
(4)A failure to notify any person listed in subsection (2)(b) to (f), and a failure to obtain all the information referred to in subsection (1)(a), does not invalidate a hearing.
(5)Any person notified under subsection (2) may write to the Board, by a given date, making submissions on, or giving information relevant to, the substantive matter to be decided.
…
Approach on judicial review of Parole Board decisions
[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
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].
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:
satisfied on reasonable grounds that the offender ... will not pose an undue risk to the safety of the community or any person ...
First, second and third grounds of review
[25] There is a substantial overlap between the first, second and third grounds of review. All relate to a document headed “R J Conference 19 January 2021” which was written by Ms H for a restorative justice meeting with Mr Green. The document is in the nature of speaking notes.
First ground of review
[26] Mr Green pleads procedural irregularity and admission of irrelevant and/or illegitimate evidence.
[27] Mr Green has sworn an affidavit in this proceeding. He says he had wanted to meet his former wife so they could say goodbye properly to each other as they had had no chance to do so earlier as he was in prison. He says he also wanted to see if they could find some future basis of co-operating over the care of the daughter they had together (not the victim). Mr Green says he had been informed by the prison that this was what the meeting was to be about. Mr Green notes that he has always maintained his innocence and the prison knew that he had no intention of discussing his offending with Ms H as that would be in effect saying her daughter was a liar.
[28] Mr Green says it was immediately obvious from the moment the meeting began that what Ms H had in mind was to berate him and release all of her anger towards him. He says he was never informed by the prison that the document written by Ms H for the meeting would be provided to the Board.
[29] Mr Harold for Mr Green submits that the meeting did not fit the definition of “restorative justice” and was therefore not such a meeting at all. He says instead it seems to have been an opportunity for Ms H to unload on Mr Green to achieve what she calls “closure”. Mr Harold submits that given Mr Green was not informed that this was what Ms H had in mind the meeting was an abuse of process.
[30] Mr Harold submits that the Board accordingly allowed itself to become a party to wrongdoing, accepting into evidence matters said to be in relation to a restorative justice meeting that were at best irrelevant to the granting of parole and with no legitimate basis.
[31] In short Mr Green’s challenge is on a two-fold basis: the restorative justice process was flawed and so nothing from the meeting should have been before the Board; and the content of Ms H’s document was irrelevant.
[32] Ms Jerebine submits that the Board has a wide ability at law to receive submissions from victims, and to place the correct weight on those submissions. She says in this case there was no error by the Board in receiving Ms H’s statement, and there can be no issue with the weight applied by the Board to that statement as the Board did not make its decision to decline parole in reliance on it.
Discussion
[33] Under s 43(1)(b) the Board must be provided with any reports arising from any restorative justice processes. Under s 43(5) a victim6 may write to the Board making submissions on, or giving information relevant to, the substantive matter to be decided.
[34] Under one of the guiding principles in s 7(2)(d) the Board is required to give any submission by victims “due weight”. Section 7(2)(c) provides that decisions must be made on the basis of all relevant information that is available to the Board at the time. Relevant matters are those which are set out in s 28(2), namely that the Board must be 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
6 Under s 43(2) the Board is required to take all reasonable steps to give notice to certain people, including every victim of the offender, that a hearing is pending.
within the term of the sentence, having regard to: the support and supervision available to the offender following release; and the public interest in the reintegration of the offender into society as a law-abiding citizen.
[35] The Board has a wide discretion to receive and take into consideration whatever information it thinks fit, whether or not the information will be admissible as evidence in a court of law.7
[36] The above provisions were discussed by the Court of Appeal in Gilmour v Chief Executive of the Department of Corrections.8 In that case the appellant was a former probation officer who was dissatisfied with the content of the report that the Department of Corrections had provided to the Parole Board under s 43(1). He believed the Department had failed to pass on to the Parole Board information he had collected or generated when he was a probation officer and which was relevant to the prisoner’s risk of re-offending and to the safety of the community.
[37] Although there was a different factual context in Gilmour, the Court’s statements are relevant here. The Court noted that s 7(2)(c) is plain in its intent. The Board’s obligation is to consider information made available to it, or which it obtains, if that information is relevant.9 The Court further noted that the Board, as the expert body, is the best judge of what is relevant and what it needs, in order to make its decision.10
[38] Regardless of what Mr Green and Ms H understood to be the purpose of the restorative justice meeting and irrespective of what is contained in Ms H’s statement prepared for that meeting, the Act gives the Board the ability to receive a wide range of information from victims whether or not the information would be admissible in a court of law. Further, it is for the Board to determine what weight to place on that information. I will come to that latter issue shortly, but I simply note at this point there is nothing to indicate that the Board placed any weight at all on Ms H’s statement.
7 Section 117(1).
8 Gilmour v Chief Executive of the Department of Corrections [2017] NZCA 250.
9 At [36].
10 At [39].
[39] Returning to s 43(5) and its scope, I accept the submission made by Ms Jerebine that this subsection provides for statutory minima not maxima, and the Board may receive a wider range of information from victims than matters that go to the substantive issue, without any subsequent decision of the Board being held invalid. Ms Jerebine refers the Court to R v R where the High Court considered the hearing process under s 49 of the Act in the course of considering a right to legal representation. The Court noted that the provisions of the Act relating to process do not purport to be a code and the common law requirements of natural justice continue to apply when not inconsistent with the Act:11
Relevant to the defendant’s challenge is s 49(3) of the Parole Act which provides that an offender may, with leave of the Board, be represented by counsel. The provisions in the Parole Act which bear upon process do not on their face purport to be a code and therefore do not exclude the common law requirements of natural justice except to the extent that the requirements of the common law are inconsistent with the provisions of the Act. They are therefore to be construed as stipulating the applicant’s minimum rights, not the full extent of them. As Joseph says:
Statutory protections are minima not maxima, and the courts will supplement the procedures by reference to common law standards of fairness. For supplementation, it must be shown that the statutory procedures are insufficient to do justice and that common law procedural protections would not frustrate the statutory purpose.
[40] I accept Ms Jerebine’s submission that the above principles apply equally to ss 7 and 43. If the victim’s submissions (their right to be heard on the substantive issue, the minima) exceed the scope of s 43(5), the Board nevertheless retains its ability to review all relevant information under s 7(2)(c).
[41] As a consequence, if the Board does receive irrelevant material under s 43(5) it does not follow that any decision it makes, having received that information, will be invalid. If a victim’s submissions address matters that go beyond the substantive issue to be decided and are thereby irrelevant, the Board must not give any weight to them. As Judge Blackie observed in the review decision, correctly in my view, invariably victims are lay people without knowledge of precise boundaries as to what a victim may or may not say. But the mere receipt per se of irrelevant material by the Board does not invalidate the decision. There are statutory safeguards for the prisoner in s 7
11 R v R [2015] NZHC 713 at [16] (footnote omitted).
and s 28(2). The Board may not place any weight on irrelevant matters received under s 7(2)(d).
[42] Even accepting that there is irrelevant content in Ms H’s statement and that there was an error in the restorative justice process generally any such alleged errors are of no consequence. The scheme of the Act is that the Board may receive statements from the victim and it is for the Board to determine the appropriate weight to be given to the victim’s views. If the submissions address matters that are irrelevant to the substantive issues to be decided the Board must not give any weight to irrelevant content. But as I have already indicated there is no evidence to suggest that the Board gave any weight at all to Ms H’s statement. Judicial review is reserved for cases in which errors and omissions by decision-makers have consequences.12
[43] In a related submission Mr Harold submits that much of what Ms H has to say is not to do with risk to the community but relates to her feelings and preferences for the future.
[44] However, the statutory scheme does not limit the content of a victim’s submission simply to safety and risk. Although s 7(1) provides that the paramount consideration for the Board when making decisions about or relating to the release of an offender is the safety of the community, there are other principles in s 7 to guide the Board in making its decision. Although s 28(2) again makes the safety of the community a primary consideration, the Board is also required to consider the public interest in the re-integration of the offender into society.
[45] Mr Harold refers to the decision in A (Victim) v New Zealand Parole Board and the statement that “to the extent that the victim’s views do not assist the Board in relation to the criteria of assessing risk to the community”, they do not need to be given weight in the exercise of its functions.13
12 Mitchell v Chairperson of New Zealand Parole Board [2015] NZHC 566 at [32].
13 A (Victim) v New Zealand Parole Board [2008] NZAR 706 at [53].
[46]But, the Court in that case also said:14
The point is that limiting the test of “safety of the community” to re-offending risks does not foreclose a victim from expressing much of what Ms A said. But nor does it make everything relevant; to take the already decided point, if a victim chooses to express the view that immediate release will send the wrong message, then the Board cannot give that due weight, because it is not a relevant criteria.
[47] Further, as I have already signalled, there is no evidence that the Board gave any weight to Ms H’s statement; indeed it is safe to go further and say that the Board did not give any weight to Ms H’s statement. That is apparent from the following parts of the Board’s decision:
5. … First, sections 49(4) and 50A(2) provide victims the right to place before the Board whatever information they feel is relevant to the issue of parole. Moreover, we regard it as entirely relevant for a victim to express the view that on release an offender should be restricted from entering the area in which they live. Secondly, nothing in A (Victim) v New Zealand Parole Board limits the right of a victim to make their views known to the Board. Thirdly, the submission conflated admissibility with the weight to be given to the submission by the Board.
[48] The Board then went on to set out the reasons for declining parole in the following paragraph:
12.The Board received a psychological report dated 12 January 2021 which concluded with the recommendation that Mr [Green] should complete the Child Sex Offender Treatment Programme to deal with risk factors and to assist him with safety planning. His denial of responsibility for his offending precludes his attendance at the programme. Nevertheless, the Board is of the view that Mr [Green] needs to engage with a psychologist to prepare an effective risk management or safety plan before we could consider that he met the statutory criteria for release on parole.
[49] Mr Harold nevertheless submits that although Ms H’s statement is not referred to in the reasons for the Board’s decision it does not necessarily follow that it did not inform the March 2021 decision.
14 At [54].
[50] I do not accept that submission. A decision-maker is not necessarily required to list matters on which it is not placing weight. Rather, the decision-maker identifies matters on which it does place weight in the reasons for a decision.
[51]For the above reason the first ground of review fails.
Second ground of review
[52] Mr Green pleads procedural irregularity on the basis of unreasonable admission of evidence. Mr Green claims that the Board unreasonably admitted into evidence pejorative commentary from Ms H about him, in her statement already referred to. Mr Harold submits that these disparaging comments have nothing to do with Mr Green being an undue risk to the community or anything to do with his risk at all. He notes that Mr Green in his affidavit rejects the truth of the allegations made by Ms H.
[53] Mr Green also says that parts of Ms H’s statement allege various wrongdoings by him that do not relate to the facts of his convictions. Mr Harold submits that Mr Green is not in a position to defend himself from these unrelated allegations and this kind of material should not have been admitted into evidence. Alternatively, Mr Harold says if Ms H’s statement is considered to be a submission then it should not be given any weight.
[54] The same reasoning for the Court rejecting the first ground of review also applies to the second ground of review. The second ground also fails.
Third ground of review
[55] Mr Green pleads that the Board considered so-called “facts” involving the (child) victim’s narrative upon which he was neither convicted nor sentenced. He therefore pleads that the Board has taken into account irrelevant matters.
[56] My earlier reasoning again applies here. There is no evidence to indicate that the Board, in the March 2021 decision accepted any parts of Ms H’s statement as statements of fact. The Board did not place any weight on her statement in its decision.
[57]The third ground of review fails.
Sixth and Seventh grounds of review
[58] The sixth and seventh grounds also relate to the Board’s receipt of Ms H’s statement. It is therefore convenient to consider them at this point. I will consider the sixth and seventh grounds together. They both relate to the review decision. In the sixth ground Mr Green pleads that the review decision fails to address s 50A(2) of the Act. He says that section limits submissions of a victim concerning a prisoner’s proposed parole to the substantive issue before the Board; namely, whether or not the prisoner poses an “undue risk” to the safety of the community if released.
[59] This is repeated in the seventh ground with Mr Green adding that the Board failed to give the victim information that was reasonably necessary to enable her to take the step of making appropriate submissions in accordance with s 50A(3).
[60]The grounds for an application for review are set out in s 67(3) of the Act:
67 Review of decisions
…
(3)The grounds for an application for review under this section are that the Board, in making the decision,—
(a)failed to comply with the procedures set out in this Act and any regulations made under it; or
(b)made an error of law; or
(c)failed to comply with a policy of the Board developed under section 109(2)(a), which resulted in unfairness to the offender; or
(d)based its decision on erroneous or irrelevant information that was material to the decision reached; or
(e)acted without jurisdiction.
[61] In the review decision, Judge Blackie noted that in effect Mr Green relied on all of the grounds set out in s 67(3) in support of the review application but counsel did not direct the reviewer to any one of the grounds in particular.
[62]Judge Blackie then said:
[12] … With respect, I can see no limitation in s 49(4) as to what a victim may or may not say in the course of oral submission. Invariably victims are lay people without knowledge of precise boundaries other than those contained in the Guideline, a copy which is attached to counsel’s submissions. It is [for] the Board to assess what weight it places on victims’ submissions, particularly when it comes to consider release conditions. In any event, in this case, the victim’s views and/or submission were not a matter upon which the Board based its decision.
[63] Section 50A(2)(a) provides that a victim may, by writing to the Board, make submissions on or give information relevant to the substantive matter to be decided at a hearing. Section 50A(3)(b) then provides that, if a victim seeks information from the Board in order to take the step of making submissions in writing, the Board may give that person any other information that is reasonably necessary to enable them to take that step.
[64] Mr Harold’s reliance on s 50A(2) is a re-working of his arguments in relation to the March 2021 decision that I have already rejected. For reasons already discussed, Judge Blackie did not err in finding that: the Board has a wide ability to accept a submission; victims may often express views beyond the substantive issues the Board is required to determine; it is for the Board to determine the weight to be attached to a victim’s statement; and in any event no weight was given to Ms H’s statement. Judge Blackie therefore did not err in applying s 67 including s 67(3)(d) as the Board did not base its decision on erroneous or irrelevant information that was material to the decision reached.
[65] As to the seventh ground, s 50A(3) enables the Board to give a person information that is reasonably necessary to enable the person to make submission if the person seeks such information. There is no suggestion that Ms H sought further information.
[66]The sixth and seventh grounds of review fail.
Fourth ground of review
[67] Mr Green pleads that the Board failed to take into account three reports he had commissioned from two psychologists: a report of Dr Joseph Sakdalan dated 18 July 2017 addressed to the District Court at Manukau (Dr Sakdalan’s report); a report of Ms Sabine Visser dated 17 October 2017 addressed to Mr Harold (Ms Visser’s first report); and a further report of Ms Visser dated 20 March 2018 also addressed to Mr Harold (Ms Visser’s second report).
[68] Mr Green pleads that these reports commented upon his trouble-free history in the community and with family members other than the child victim, as well as the results of objective psychological personality testing. Mr Green pleads that these matters were highly relevant to an assessment of the risk his release may pose to the community.
[69] Contrary to Mr Harold’s submission, the Board did consider counsel’s submission that the psychologist’s report should be relied on. The Board noted that none of the three psychological reports filed by Mr Green was obtained for the purpose of risk assessment.
[70] That finding is correct. Mr Harold submits that Dr Sakdalan’s report was prepared for the purposes of addressing risk. But he acknowledges it was a different kind of risk. Dr Sakdalan’s report was prepared in order to address risk issues if Mr Green were to be released on EM bail. The report recommends measures that would reduce a risk of breaching bail conditions. While noting that the decision whether Mr Green would be granted EM bail rested with the court, Dr Sakdalan recommended conditions including the following: no access to alcohol; no access to phone or internet while on EM bail; no contact with Ms H or her daughter; and no access to children at his proposed place of residence.
[71] Ms Visser’s first report considered whether Mr Green could be diagnosed as having paedophilic disorder and she concluded he did not. However, the Board’s reasons for declining parole did not relate to any disorders Mr Green may or may not have. The reasons are contained in [12] of the March 2021 decision set out in [48] above.
[72] In her second report Ms Visser commented further on the diagnosis of paedophilic disorder and on the effects of sexual abuse on a child. The latter issue is separate from the issue of risk.
[73] Having referred to the three opinions it was up to the Board as to the weight it gave to them.15
[74]The fourth ground of review also fails.
Fifth ground of review
[75] Mr Green pleads that the Board took into account irrelevant considerations in relying on a report dated 12 January 2021 from a Department of Corrections psychologist (Corrections psychologist) which, Mr Green says, was flawed as it relied on incorrect facts. Mr Green pleads that the Board failed to address information concerning these incorrect facts supplied to it by his counsel.
[76] In his submissions Mr Harold adds a further challenge based on material that came into existence subsequent to the March 2021 hearing and decision. I will need to decide if that material is admissible. I first describe the background and material itself.
[77] Mr Harold obtained a report dated 15 September 2021 from psychiatrist Dr Caleb Armstrong. The instructions to Dr Armstrong are recorded in his report as follows:
3. You have provided me with a number of background documents and requested that I ‘comment as appropriate on the soundness of the Department of Corrections engaged psychologist and his report and methodology’. …
[78] Dr Armstrong’s report contains a number of criticisms of the Corrections psychologist including the psychologist’s methodology when employing the Violence Risk Scale – Sexual Offender version (VRS-SO). Dr Armstrong notes that the VRS-SO is designed to integrate the assessment and prediction of violence risk with risk-reduction treatment and measure of change in risk due to treatment change. The
15 Minister of Immigration v Zhang [2013] NZCA 487, [2014] NZAR 88 at [34].
instrument employs both static and dynamic risk factors. The Corrections psychologist had assessed Mr Green as being at average risk using this instrument.
[79] Dr Armstrong noted that the Corrections psychologist had not provided a rationale for arriving at his conclusions regarding how Mr Green scored on the particular dynamic risk factors which the Corrections psychologist identified as being closely related to Mr Green’s recidivism risk. For that reason, Dr Armstrong said the reliability of the Corrections psychologist’s conclusions were difficult to test. Dr Armstrong then went on to say, having read the material and having assessed Mr Green during a telephone conversation, he was in a position to provide his view of Mr Green’s risk with respect to the dynamic risk factors identified by the Corrections psychologist. The report then contained Dr Armstrong’s assessment on the various risk factors, disagreeing in most respects with the Corrections psychologist.
[80] It is apparent that Dr Armstrong’s report was filed by Mr Green for the purpose of the Board hearing on 23 September 2021.
[81] Mr Harold also sought to introduce an email sent by the Chairperson of the Board for the 23 September 2021 hearing. The email was sent the day before, on 22 September 2021 to staff members at SERCO. The email notes that Mr Green was due to appear before the Board the following day. The email states that in January 2021 a SERCO psychologist prepared a report relating to Mr Green and that his lawyer criticised the report at the March 2021 hearing but the criticism was not accepted. The email continues as follows:
We now have a report from Dr Caleb Armstrong a psychiatrist which is an analysis of Dr [C’s] report. It contains some very worrying criticisms of Dr [C’s] report. If Dr Armstrong’s analysis is correct, and there seems to be a substantive basis for the criticism, then there are reasons to be seriously concerned. The report itself is on the face of it very brief and makes a number of conclusory statements without any obvious factual basis.
[82] The email then requests that the report of the Corrections psychologist and Dr Armstrong’s analysis be sent to a senior Corrections psychologist for assessment and an opinion on whether the Corrections psychologist’s report met the basic standards of competence. It was suggested that in the meantime the Corrections psychologist should not be assigned to further report writing.
[83] Notwithstanding concerns expressed in the email of 22 September 2021 the Board in its decision at the hearing on 23 September 2021 again refused parole. The Board referred to the March 2021 decision saying, “As we said last time, we are satisfied he is an undue risk”. The Board said it would look to Mr Green to undertake appropriate treatment for a sex offender but noted that was not going to happen given his denial. In those circumstances the Board said there was a need, as they had said in the previous decision, for a substantial safety plan and release plan to be provided by Mr Green.
[84] The admissibility of additional evidence in judicial review proceedings was discussed by the Court of Appeal in WK v Refugee and Protection Officer as follows:16
The standard for the admission of additional evidence in judicial review proceedings is high. Because of the nature of judicial review, which is to assess the lawfulness of the decision-making process rather than the merits of the decision, the task of the reviewing court is to assess whether a decision was reasonably available to the maker on the basis of the evidence before them. As this Court has held, additional evidence may only be permitted for particular circumscribed purposes:
The task of the reviewing court should be to assess whether, in light of the evidence before the decisionmaker at the time, the decision was one that a reasonable decision-maker could come to. The only use of the subsequent evidence should be to decide whether or not the material actually before the decision maker met that standard. Where a decision maker has made a defective inquiry, a court may find it necessary to refer to further evidence that would have been considered had a proper enquiry been made.
That approach has also been followed in immigration cases. In D v Immigration and Protection Tribunal, it was held that:
[J]udicial review generally proceeds on the basis of the evidence available to the decision-maker at the time of the decision … The attempted introduction of material after the event, especially for the purpose of casting doubt on the substantive reasonableness of the decision in question, is generally inappropriate. Judicial review should not be seen as a further opportunity to present or supplement evidence.
[85] Applying those principles, this Court is reviewing the lawfulness of the decision-making process for the March 2021 decision on the basis of the evidence
16 WK v Refugee and Protection Officer [2018] NZCA 258, [2019] 2 NZLR 223 at [66]-[67] (footnotes omitted). Leave to appeal to the Supreme Court declined: WK v Refugee and Protection Officer [2018] NZSC 91.
before the Board at that time. This is not a case where a decision-maker has made a defective inquiry such that this Court would need to refer to further evidence that would have been considered had a proper inquiry been made. Mr Harold is effectively attempting to bolster Mr Green’s case by asking this Court to consider the merits of the March 2021 decision. The proper process for Mr Green, having received Dr Armstrong’s report, is for counsel to put the report before the Board to enable the Board to consider Mr Green’s application for parole on the merits. Mr Harold did that and having received and considered Dr Armstrong’s report the Board still refused parole in its decision of 23 September 2021.
[86] For the above reasons I refuse the admission of Dr Armstrong’s report and the email of 22 September 2021.
[87] I return to the submissions made on material that is properly before this Court. As part of his submissions on this ground Mr Harold submits that the finding in the report of the Corrections psychologist that Mr Green was at “average” risk of sexual re-offending following release was wrong.
[88] However, the opinion of the Corrections psychologist is based in large part on the fact that Mr Green remains “untreated”. He states the following in his report:
6. When asked about his sexual offending, Mr [Green] maintained his innocence. He reported that the victim (his stepdaughter) had “lied and framed” him because she was unhappy about his “strict” parenting style. Thus Mr [Green] denied needing to engage in treatment to address his risk of sexual re-offending. …
…
17. Mr [Green]’s risk of re-offending is likely to be mitigated through specialised psychological treatment to develop robust cognitive and behavioural strategies. Management measures are also recommended including probationary and law enforcement oversight through the Child Sex Offenders (CSO) Registry. …
18. Despite Mr [Green]’s positive pattern of institutional compliance, his denial of sexual offending and unwillingness to engage in rehabilitation indicate he is not ready for treatment. …
19. It is recommended that Mr [Green] complete the Special Treatment Unit: Child Sexual Offending (STU: CSO) rehabilitation programme to address his assessed dynamic risk factors and to assist with safety planning.
[89] When declining parole the Board referred to Mr Green not having received treatment and also the need for an effective risk management or safety plan before he met the statutory criteria for release on parole. I repeat part of paragraph 12 of the March 2021 decision for ease of reference:
12. … His denial of responsibility for his offending precludes his attendance at the programme. Nevertheless, the Board is of the view that Mr [Green] needs to engage with a psychologist to prepare an effective risk management or safety plan before we could consider that he met the statutory criteria for release on parole.
[90] The Board’s finding above is based on factual material before it. Mr Green maintains his innocence and is therefore precluded from treatment. As noted by Dunningham J in Ericson v New Zealand Parole Board,17 (see [19] above), the test for “undue risk” is not met by reference to any set or specific threshold such as a low assessment arrived at by using a psychological testing instrument. In any event the part of the report of the Corrections psychologist resulting in the score of ‘average’ was not pivotal to the Board’s decision. The part of the report the Board did rely on was that Mr Green denied his offending and had not participated in a sex offender treatment programme. As was said by Simon France J in A (Victim) v New Zealand Parole Board:18
Mr Jones took issue with the relevance of the material in relation to the co-accused. However, in a way it is favourable to his case because it highlights – to the extent that one decision standing alone ever can – that acknowledgement of guilt is a factor that is taken into account in assessing re-offending risks. Indeed, it has long been recognised as being significant in sex cases to the issue of re-offending, and acknowledgement of guilt, and therefore a problem, is generally a pre-requisite to participation in rehabilitation courses. Without having completed such courses, offenders traditionally struggle to establish a low re-offending risk. …
[91] Also not to be forgotten are the required qualifications for Board membership, which include the ability to make a balanced and reasonable assessment of the risk an offender may present to the community when released from detention.19 This was commented on by the Court of Appeal in Gilmour.20
17 Above n 3, at [24].
18 Above n 13, at [47].
19 Parole Act, s 111(3)(b).
20 Above n 8, at [33].
[92] Finally, as to other alleged errors, Mr Harold submits that the Corrections psychologist misrepresented the conversation with Mr Green and made him look dishonest regarding a 2004 conviction. In particular:
(a)the Corrections psychologist did not include in the report that Mr Green had pleaded guilty to get an earlier assault charge “over and done with” and the psychologist did not explain the wide meaning of assault to Mr Green;
(b)the report referred to certain charges (including threatening to kill) but did not clarify that Mr Green had been found not guilty of those charges; and
(c)it was wrong for the Corrections psychologist to use the word “premeditated” with respect to the offending.
[93] The Board was aware of these objections and noted in its decision that Mr Harold had submitted that the report of the Corrections psychologist should not have included reference to matters in respect of which he was found not guilty by the jury.
[94]But in any event the Board did not place any weight on the matters set out in
[92] above. Accordingly, any such alleged errors in the report by the Corrections psychologist were not relied on and were of no consequence to the decision to refuse parole.
[95]The fifth ground of review fails.
Eighth ground of review
[96] Mr Green pleads that it was unreasonable for the Board to continue his incarceration on the basis of a process which was substantially flawed. Mr Harold submits that, because of the prior alleged errors, taken as a whole the March 2021 decision and the review decision were unreasonable in all the circumstances.
[97] Ms Jerebine refers the Court to Pitceathly v New Zealand Parole Board where this Court decided a judicial review proceeding brought primarily on the basis that the Board had acted unreasonably. This Court said:21
A number of Mr Pitceathly’s grounds for judicial review allege unreasonableness on the part of the Board when it declined his application for parole. The concept of “unreasonableness” in judicial review varies depending on the context in which the decision in issue is being assessed. The concept of “reasonableness” in this case affords a degree of latitude to the Board. Thus, the test as to what is reasonable is not satisfied simply because the Board’s decision could have been “more reasonable” or done “in a different way more acceptable to the court”. The approach I have found most helpful is to ask whether the decision reached was open to a reasonable decision-maker in the position of the Board. This limited approach is consistent with the fact the Board is a specialist decision-making body, which plays a separate role from the Court in the criminal justice system.
[98] Adopting the approach in the above case, I consider the decision the Board reached was open to a reasonable decision-maker in the position of the Board. As I have already determined, the Board did not act erroneously. It cannot therefore be said to have acted unreasonably. Mr Green continued to deny his offending and had not participated in the recommended psychological treatment programme for Child Sex Offenders. The Board was of the view that he needed to engage with a psychologist to prepare an effective risk management or safety plan before the Board could consider that he met the statutory criteria for release on parole. The Board reasonably held, for these reasons, that the statutory test in s 28(2) of the Act was not met; it could not be satisfied on reasonable grounds that Mr Green would not pose an undue risk to the safety of the community or any person if released.. The review decision was consequentially not unreasonable.
[99]The eighth ground of review fails.
Result
[100] Mr Green’s application for judicial review of the decision of the Parole Board dated 31 March 2021 and the review decision by Judge Blackie dated 20 May 2021 is dismissed.
21 Pitceathly v New Zealand Parole Board [2018] NZHC 903 at [43] (footnotes omitted).
Costs
[101] Ms Jerebine submits that in the event that Mr Green’s claim were to fail, costs should be ordered on a 2B basis together with usual disbursements, with an order made under s 178(2)(a) of the Senior Courts Act 2016.
[102] Ms Jerebine submits that the claims do not address a matter of substantial public importance (the law with respect to relevance and weight, for example, is well- established). She further submits that the claims concern factual scenarios particular to Mr Green and do not address matters concerning a field of interest beyond the factual scenarios in this case. She submits that costs should be paid by Mr Green rather than counsel being paid from the public fund.
[103] In opposition Mr Harold submits that Mr Green as a sentenced prisoner has no income. He also says Mr Green has no assets. Mr Green would therefore not be able to pay costs.
[104] It is well established that costs ordinarily follow the event so that the loser will pay the winner’s costs.22 In a recent and helpful discussion of the position concerning an impecunious losing party, Powell J said:23
… This Court may decline to award costs where the party liable to pay is impecunious. Typically, however, financial hardship will not be an answer to a claim for costs. Only in exceptional circumstances will a party’s financial position animate the Court’s discretion to reduce costs. This position is driven by the fact that it is “[un]desirable for this Court to make (what will always be essentially arbitrary) adjustments to costs awards to reflect financial circumstances”. This position was emphasised by Muir J in Foni v Foliaki, where his Honour declined to reduce an award of costs on account of impecuniosity, relevantly stating:
… I consider that abatement of costs awards because of personal circumstances will not typically be justified, having regard to the other more specific provisions of the relevant rules. I consider the discretion should be reserved for exceptional cases …
22 High Court Rules 2016, r 14.2(1)(a).
23 Joden Finance Ltd v Auckland District Court [2021] NZHC 1452 at [8] (footnotes omitted).
[105]In HA v Refugee and Protection Officer Muir J said:24
… Although the catch-all exception in r 14.7(g) is broad, a good reason is required before departing from the general rule that costs should follow the event. There may be limited circumstances in which a party’s financial circumstances animate the jurisdiction (as for example in Simister v Tauranga Cruise Tourism Operators Association Inc where costs were reduced from
$37,081 to $10,000 on the basis that the Association would otherwise go into liquidation which would “not be of benefit to either party”), but I would regard such cases as exceptional.
[106]I agree with that approach.
[107] Mr Green has not sworn an affidavit as to his financial position. But even accepting Mr Harold’s submission that Mr Green is impecunious, I am not satisfied that Mr Green’s claimed impecuniosity provides a basis for the Court to refuse costs that would otherwise have been recoverable. His application was without merit. Further, his application did not raise issues of public importance such that the Court might consider refusing or reducing a costs award under r 14.7(e) of the High Court Rules 2016.
[108] Ms Jerebine was appointed by the Solicitor-General as counsel to assist the Court following a request by a Judge of this Court to the Solicitor-General. Section 178(2)(a) of the Senior Courts Act provides:
178 Costs where intervener or counsel assisting court appears
…
(2) If the Attorney-General or the Solicitor-General or any other person appears as an intervener or counsel to assist the court in any civil proceedings or in any proceedings on any appeal and argues any question of law or of fact arising in the proceedings, the court may, subject to the provisions of any other Act, make any order it thinks just—
(a) as to the payment by any party to the proceedings of the costs incurred by the Attorney-General or the Solicitor-General in so doing;
...
…
24 HA v Refugee and Protection Officer [2018] NZHC 1011 at [15] (footnote omitted).
[109] A costs order against Mr Green under s 178(2)(a) is in order. I accept that 2B is the appropriate basis for the calculation of costs. Ms Jerebine will need to file a memorandum itemising the steps and disbursements claimed. I ask Ms Jerebine to confirm in her memorandum that the order should be in favour of the Solicitor-General or if not, identifying the correct recipient. I will then make a formal costs order against Mr Green.
Gordon J
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