Harriman v Attorney-General
[2013] NZHC 1516
•21 June 2013
IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY
CIV-2012-485-000881 [2013] NZHC 1516
UNDER Judicature Amendment Act 1972
Declaratory Judgments Act 1908
Parole Act 2002
Corrections Act 2004
Crown Proceedings Act 1950
State Sector Act 1988
New Zealand Bill of Rights Act 1990
International Covenent on Civil and
Political Rights, the Common Law
BETWEEN ALLEN LOUIS HARRIMAN Applicant
ANDATTORNEY-GENERAL First Respondent
NEW ZEALAND PAROLE BOARD Second Respondent
Hearing: 11 February 2013
Appearances: Applicant in Person (via AVL link) R C Laurenson as Amicus Curiae
C A Griffin and L M Inverarity for the First Respondent
FMR Cooke QC and V J Owen for the Second Respondent
Judgment: 21 June 2013
RESERVED JUDGMENT OF GODDARD J
This judgment was delivered by me on 21 June 2013 at 4.30 pm, pursuant to r 11.5 of the High Court Rules
Registrar/Deputy Registrar
Solicitors: Crown Law, Wellington
Counsel: FMR Cooke QC, Wellington
R C Laurenson, Wellington
Copy To: A L Harriman, Applicant
HARRIMAN v ATTORNEY-GENERAL [2013] NZHC 1516 [21 June 2013]
Introduction
[1] Mr Harriman, a sentenced prisoner, seeks judicial review of actions by the Department of Corrections (the Department) and the Parole Board (the Board) arising from the Board’s consideration of his eligibility for release on parole. He became eligible for parole on 23 January 2012. He was first refused parole on
17 January 2012, at a Parole hearing which he did not attend. He was subsequently again refused parole on 7 August 2012, at a hearing which he again did not attend. The second hearing on 7 August 2012 meeting was convened after Mr Harriman had successfully applied for and been granted an early parole hearing.
[2] Further claims by Mr Harriman seeking compensation for breach of the New Zealand Bill of Rights Act 1990 (NZBORA) and/or the International Covenant on Civil and Political Rights (ICCPR), for misfeasance of public office and for breach of statutory duty were severed in a previous judgment of this Court.1
Summary of causes of action
[3] Mr Harriman’s claim can be distilled into three essential issues, namely
whether:
(a) the Department caused his first parole hearing to miscarry, by providing inaccurate and incomplete information to the Board;
(b)the Board’s decision was unlawful, unreasonable and procedurally unfair, because the Board failed to properly determine his application for an unattended hearing and went on to make erroneous findings in its decision; and
(c) as a result his detention is now arbitrary and unlawful, in breach of
NZBORA and ICCPR.
1 Harriman v Attorney-General [2012] NZHC 2148.
Background events
[4] On 22 February 2007 Mr Harriman was sentenced to 12 years imprisonment for class A and B drug importation and supply offences, with a minimum period of imprisonment of six and a half years. He first became eligible for parole on
23 January 2012. He was advised by letter dated 1 September 2011 that he would have a parole hearing on or about 16 January 2012. In accordance with a policy settled by the Board, the hearing was scheduled as an attended hearing, although this was not explicitly advised in the letter. However, the letter did advise Mr Harriman that he was entitled to appear before the Board to state his case in person, or through a lawyer should he prefer that. The letter also advised that if Mr Harriman wished to make a written submission to the Board regarding his hearing, this would be required by 16 December 2011. He would also be permitted to make oral submissions to the Board at his hearing. The letter further advised that the meeting agenda would be finalised approximately two weeks before the hearing and that he would be sent a copy of all of the information the Board would consider.
[5] Enclosed with the letter was a booklet designed to inform prisoners about the hearing process. Inter alia, the booklet advised:
It is the Board’s current policy to schedule all hearings as ‘attended’. However, you can still make submissions to the Board on whether the hearing should be ‘unattended’ if you wish.
...
What if I don’t want to go to the hearing?
You can choose not to go to the hearing. If you choose this you will have to tell the Board in writing, by signing a “waiver” (a form that says you don’t want to attend the hearing). Talk to your Case Officer if you want to do this. Remember, if you choose not to go to the hearing you will not be able to talk to the Board in person, but you can still make a written submission to the Board (see Page 5).
[6] This policy of the Board directing that the scheduling of all hearings will be as ‘attended’ hearings will be discussed later in this judgment.
Legislative requirements for a parole assessment plan
[7] Approximately two to three months before a prisoner is considered for parole, a Case Manager within Rehabilitation and Reintegration Services (RRS) (now called Rehabilitation and Employment (R and E)), is required to begin preparation of a Parole Assessment Report (PAR).
[8] The PAR is a comprehensive plan, addressed to ensuring the safety of the community into which the offender may be released, with a key aspect of the plan being the address at which the offender will reside, with whom he or she will reside, and the personal circumstances that will be involved in life outside prison. This information is necessary in order for the Board to be able to consider, in a comprehensive way, whether an offender can safely be released in accordance with the requirements of the Parole Act 2002 (the Act).
[9] The requirements for such a comprehensive approach to the circumstances into which a prisoner will be released are reflected in several provisions of the Act.
[10] First, s 7, which sets out the guiding principles for the Board, and requires the following:
(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.
[11] Under s 7(2), amongst the other principles that must guide the Board’s
decision, is the principle:
(c) that decisions must be made on the basis of all relevant information that is available to the Board at the time.
[12] Information of central relevance to the Board’s decisions is that pertaining to a prisoner’s release conditions. Amongst the standard release conditions, provided for in s 14 and which must be applied in every case, are conditions that the offender must not move residential address without the prior written consent of a responsible
probation officer;2 must not reside somewhere directed not to reside;3 must not
2 Section 14(1)(c) and (e).
engage in employment or associate with particular persons directed not to undertake or associate with;4 and must take part in rehabilitative or reintegrative needs assessment, if so directed.5
[13] As can be seen these statutory requirements are all intended to maximise reintegration into the community and minimise the risk to the safety of the community. In combination they underline the necessity for there to be an integrated plan for release, developed in conjunction with and supported by the Department of Corrections after consultation with Community Probation Services.
[14] There are special conditions that may be imposed by the Board relating to residential restrictions. Special conditions that may be imposed under s 15(3) include:
(a) Conditions relating to the offender’s place of residence (which may include a condition that the offender reside at a particular place), or his or her finances or earnings; and
(ab) residential restrictions.
[15] Under s 33 potential residential restrictions are expressed in the following terms:
33 Residential restrictions
(1) The Board may impose on an offender the special conditions referred to in section 15(3)(ab) (residential restrictions) if the residence in which it is proposed that the offender reside is in an area in which a residential restriction scheme is operated by the chief executive.
(2) An offender on whom residential restrictions are imposed is required—
(a) to stay at a specified residence:
(b) to be under the supervision of a probation officer and to co- operate with, and comply with any lawful direction given by, that probation officer:
(c) to be at the residence—
3 Section 14(1)(f).
4 Section 14(1)(g) and (h).
5 Section 14(1)(i).
(i) at times specified by the Board; or
(ii) at all times:
(d) to submit, in accordance with the directions of a probation officer, to the electronic monitoring of compliance with his or her residential restrictions:
(e) to keep in his or her possession the licence issued under section 53(3) and, if requested to do so by a member of the police or a probation officer, must produce the licence for inspection.
[16] Sections 34-35 provide that a report must be provided by a probation officer in relation to the suitability of residential restrictions, and occupants at the residence must consent to the offender residing there.
[17] As Mr Cooke summarised the situation thus:
The general requirement for the Board to be satisfied of the safety of the community, and the reasonably elaborate provisions set out by Parliament for the potential for conditions relating to the place of residence, and also the more broad ranging residential restrictions, illustrate the significance of a coordinated plan for the release of the offender which addresses residence as part of the need to be satisfied about the safety of the community, and which also takes into account the associated needs of reintegration of the offender within the community. The release plan should be developed in conjunction with a probation officer, and will also be informed by the information and reports the Department of Corrections is required to provide to the Board under s 43(1).
Preparation of Mr Harriman’s parole assessment plan
[18] In August 2011, Ms Carrick, a new Case Manager in RRS at the Department was assigned to Mr Harriman. Although Mr Harriman’s PAR would be the first that Ms Carrick had prepared on her own without full supervision, she had completed appropriate training, including field observations, prior to this assignment. In her preliminary preparation of Mr Harriman’s PAR for his January 2012 parole hearing she undertook the necessary background research by obtaining relevant information from Mr Harriman’s files and updating his offender plan prior to interviewing him. Having done this, Ms Carrick arranged an interview with Mr Harriman on
12 October 2011.
[19] The interview took place in an office in Mr Harriman’s unit and Ms Carrick’s
manager, Mr Staps, also attended to observe the interview.
[20] Although Mr Harriman initially attended the interview, he advised the two case managers that he did not want to participate in it. He says that he informed Ms Carrick and Mr Staps that there was sufficient information on file for them to compile the necessary report and that he had spent the last six and a half years correcting the Department’s files to ensure that they were accurate source material for such compilation. He also says he told them that his proposed residential address would be provided in written submissions that he was sending to the Parole Board. He did not remain and left the room.
[21] Ms Carrick does not recall Mr Harriman saying before he left that he intended to provide his release proposal directly to the Parole Board. She said that if given the opportunity it may have been possible to discuss alternative options to a formal interview with Mr Harriman, for example if he had not wished to be interviewed but was willing to provide information in writing and give his written consent for her to use that information for his PAR. However, the interview never got that far. Mr Harriman had not offered any information in writing and was not willing to engage at all. She thinks the interview was terminated within about a minute or so of its starting and that Mr Harriman remained standing while he was there.
[22] Ms Carrick made a contemporary note of the failed interview.
[23] In consultation with Mr Staps, Ms Carrick then wrote to Mr Harriman, explaining the PAR process in detail and her role, and expressing the hope that he might be prepared to meet with her, and that she wished to give him a further opportunity to participate in the PAR process.
[24] However, Mr Harriman had, in the meantime, filed a prisoner complaint about the interview. The complaint was referred to Mr Staps, who said he believed the letter that Ms Carrick had drafted in conjunction with him following the aborted interview and sent to Mr Harriman, would have met the complaint.
[25] Mr Harriman also made the same complaint to Dr David Wales, Assistant General Manager of RRS, and to the General Manager, Prison Services. Dr Wales responded to the complaint, and in conclusion recommended that Mr Harriman participate in the PAR process whilst recording that the decision to do so was ultimately his.
[26] On the basis of the foregoing, it is clear Mr Harriman’s complaint about the
interview was adequately responded to.
[27] Mr Harriman then wrote to the Board on 9 December 2011 requesting that his parole hearing be an unattended hearing. In submissions annexed to his letter he specifically requested:
[T]hat a decision be made in regard to the conduct of an unattended hearing pursuant to Section 48 of the Parole Act 2002 upon the basis that significant efficiencies are to be gained by holding an unattended hearing and that the matter be restricted to written submissions in the interests of greater accuracy and accountability.
Hence, the proceedings are sought to be conducted on the papers.
[28] Mr Harriman then set out in his submissions a number of matters in support of his eligibility for release on parole. This included a residential address and phone number and name of his contact.
[29] In terms of his employment prospects, Mr Harriman advised that he had transferred to Rolleston Prison in order to capitalise on the building and construction opportunities in the Christchurch region and in response to training schemes established within the prison system. His submissions were coherent and detailed and clearly sought to address all issues the Parole Board may need to consider at the hearing in relation to his being able to be safely released. There were a number of relevant attachments to the submissions. Mr Harriman concluded by inviting any questions in writing from the Board in clarification of any matters that might be raised during the Board’s considerations and said he would answer these in writing.
[30] Mr Harriman said he received no questions in writing from the Board as a result of his submissions, nor any communication to acknowledge his request for an
unattended hearing and advise the type of hearing under either s 48 or s 49 of the
Act, as required under ss 45(5), (6) and (7) of the Act.
[31] Mr Harriman says that he supplied a handwritten copy of his submissions to the Department two to three weeks prior to 9 December. That was the earliest date on which they could be typed up and forwarded to the Parole Board. The Department says the information was not on file at the time Mr Harriman said he had made the handwritten version available some two to three weeks prior, and thus Ms Carrick did not have it in time for it to be included in the PAR she prepared, which was completed on 23 November 2011 and received by the Board on
30 November 2011. Thus the PAR did not contain any confirmation of the availability and appropriateness of the release address provided by Mr Harriman in his submissions and his proposed employment.
[32] The absence of a report from the Department verifying public safety assurances and confirming the appropriateness of standard and special release conditions was a significant deficiency in the material before the Parole Board as the Department is required to provide a report to the Board on such matters under s 43(1)(c) of the Act.
[33] Ms Griffin for the Department submitted that the absence of those details was
at the core of Mr Harriman’s problems. She said:
The problem at the core of the applicant’s claims involving the Department, is that the Department needs to know a prisoner’s release proposal – where he is going to live, where he is going to work, etc – not just to record it in the completed PAR, but also to investigate its viability. Had the applicant provided his release address directly to Ms Carrick, she would have sent this address to Community Probation Services (CPS) for them to confirm its availability and to assess its appropriateness. To do this, CPS need to contact third parties, such as the owners or occupiers of any residential address. As the disclosure of private information is almost inevitable, the Department insists on the prisoner’s signed consent before such contact is made, to protect its officer and the relevant prisoner.
The applicant never told Ms Carrick, or other case managers, that he had an up to date accommodation proposal, and never provided signed consent for the Department to contact third parties. He preferred to maintain that all information was “on file”. However, there was no record of the applicant’s proposed address on file in October 2011. The November PAR was completed on 23 November 2011 and received by the Board on 30
November 2011. The applicant’s proposed address was first referred to in
his written submissions to the Board dated 9 December 2011.
[34] The absence of a release plan that was fully compliant with the statutory requirements was also referred to by Mr Cooke:
The provision of a residential address in written form does not by itself respond to the need for a release plan. In general terms a release plan is a more comprehensive plan addressed to ensuring the safety of the community to which the offender may be released with a key aspect of that plan being the place where the offender will live, with whom he or she will live, and the personal circumstances which will be involved in his or her life outside prison. These matters need to be considered in a comprehensive way in order for the Board to be satisfied that the offender can be released in accordance with the requirements of the Act.
Mr Harriman’s reasons for seeking an unattended hearing
[35] Mr Harriman had a number of reasons why he specifically sought an unattended hearing, rather than an attended hearing. He said his intention was, and still is, “to promote greater accountability and accuracy in order to provide greater efficiencies as defined in the Parole Act 2002 at s 45(4)(c) and to restrict the information to that in writing including” his own written submissions”.
[36] One of Mr Harriman’s reasons for seeking an unattended hearing was to obtain a written transcript of the hearing which is not apparently provided when an attended hearing takes place. Mr Harriman sees a written record of the hearing as providing more accountability. For the same reason, Mr Harriman sought to have any questions that the Board might have for him recorded in writing and his responses to those questions similarly recorded in writing. Thus he would have a full record of the parole process in the form of his written submissions, any questions and answers to those questions and a transcript of the hearing itself, as well as the decision.
[37] Other reasons which contributed to Mr Harriman’s desire for an unattended hearing are his evident mistrust of RRS and a lack of confidence in the accuracy of information held by the Department on his file. This has resulted in a lack of confidence on his part that his case for parole will be accurately presented.
[38] Mr Harriman also reported at the hearing before me that adverse comments had been made to him by staff about his chances of obtaining early release on parole. Hence his heightened sense of mistrust.
The waiver
[39] The Court was advised that prior to a parole hearing, a unit staff member will inquire of a prisoner whether he wishes to attend his parole hearing. If the prisoner does not he will be asked to sign the Department’s standard form of waiver. This was referred to earlier in [5] where the relevant passage from the Parole Board’s booklet is set out.
[40] A Corrections officer attended on Mr Harriman in his cell on 13 December
2011. Mr Harriman did not wish to sign a waiver and explained to the officer that he had submitted an application under s 48 of the Act requesting an unattended hearing. The officer apparently noted the waiver form accordingly and signed it himself.
[41] It seems that at the parole hearing on 17 January 2012 the Board members were concerned about the situation of a signed waiver together with an application for an unattended hearing under s 48. They requested the Principal Corrections Officer, who was present at the hearing, to make contact with Mr Harriman to clarify his position and offer him the opportunity to appear at the hearing.
[42] The Principal Corrections Officer made contact with Mr Harriman by telephone and was advised by him along the following lines:
Don’t they know what a section 48 is? They’re meant to look at my submissions and give their decision in writing, that’s what a section 48 is.
[43] Mr Harriman went on to state that he had not signed the waiver form.
The Parole Board decision of 17 January 2012
[44] The decision of the Board is set out in full as follows:
1.Allen Lewis Harriman is aged 56 and serving a 12-year prison sentence for drug offending. The drugs involved were heroin and ecstasy. He had a minimum non-parole period of six and a half years.
His sentence commenced in February 2007. He becomes eligible for parole later this month and he has a statutory release date in July 2017. These are his first convictions in New Zealand and he has a ROC*Rol of 0.10. He does however have an earlier prison sentence in Australia when he was sentenced to nine years imprisonment for trafficking in heroin.
2.From reading the sentencing notes, it seems that his offending was motivated by a desire to clear his financial commitments. There was no suggestion of any drug dependency or drug use on his part.
3.The unusual aspect about this case is that Mr Harriman has made application to have an unattended hearing and, in line with that, has presented written submissions to us to support his release on parole. Subsequent to filing that application, he has signed a waiver and further enquiries today indicate that he does not wish to appear before the Board. The difficulty from the Board’s perspective is that Mr Harriman was not prepared to participate in the interview process for the preparation of the parole assessment report or indeed provide any details of any release proposal. He also does not have any accommodation proposal and certainly there is no approved accommodation for him.
4.On the other side, he has presented perfectly sensible written submissions. They indicate that he has participated well in a number of courses as well as being involved in prison-based employment. Because of his assessed risk, he has not been identified to participate in any rehabilitative programmes in prison.
5.Taking all those matters into account, we do not in fact have a viable release proposal to consider and in light of that, parole is declined. We must view Mr Harriman as being an undue risk to the safety of the community. If Mr Harriman wishes to be released on parole, then at the very least he needs to participate in the parole process. That would start with participating in the preparation of any parole assessment report and formulating a release proposal.
[45] Mr Harriman says this decision was not the result of a fair hearing and was influenced unduly by the Department and its staff. He says the decision contains manifest errors of fact, as he had not submitted a waiver. He had submitted a release proposal and a residential address proposal.
Review of the Parole Board’s decision
[46] After receiving the Parole Board’s decision of 17 January 2012, Mr Harriman applied for a review of the decision under s 67 of the Act on the grounds that it:
(a) failed to comply with the procedures set out in the Act and any regulation under it;
(b) made an error of law;
(c) based its decision on erroneous or irrelevant information that was material to the decision reached; or
(d) acted without jurisdiction.
[47] The review was conducted by Judge Mahony, who recorded at the outset that Mr Harriman had declined to participate in or provide a release proposal for the Parole Assessment Report; that he had sent a written submission to the Board requesting an unattended hearing under s 48 of the Act and indicating that he did not want legal representation; and that he had asked for the question of his parole to be dealt with on the papers.
[48] Under a heading “Procedures as to the Type of Hearing”, Judge Mahony considered the mandatory directions under s 45 of the Act.
[49] The relevant provisions of s 45 for the purposes of this proceeding are as follows:
45 Decision on type of hearing
(1) The panel convenor who is allocated to conduct a particular hearing must decide whether that hearing will be an unattended hearing under section 48 or an attended hearing under section 49.
...
(4) In deciding whether to hold an unattended hearing or an attended hearing, the panel convenor must consider—
...
(f) any other matter that the panel convenor considers relevant.
...
(6) A panel convenor may, before or during an unattended hearing, determine that the hearing must be an attended one and, in that case, a
time for the attended hearing must be fixed and the people referred to in subsection (5) must be notified accordingly.
...
[50] Judge Mahony found that the failure of the Panel Convenor to determine the type of hearing that Mr Harriman would have under s 45 of the Act amounted to an error of law. The error occurred because the Panel Convenor had not made the mandatory decision in s 45(1) and was acting in accordance with a “universal” policy direction confirmed by the Chair of the Parole Board on 10 October 2011, as follows:
All hearings of the Board to consider the release of an offender on parole or to set release conditions shall be by way of attended hearing unless the Panel Convenor decides in a particular case that it is to be an unattended hearing.
[51] Judge Mahony upheld as correct Mr Harriman’s submission that a number of procedural steps had not been followed leading up to and involving a decision under s 45 as to whether Mr Harriman’s hearing would be attended or unattended. The Judge found this was because “the decision [had] been pre-empted by the Board’s universal practice ...”.
[52] Judge Mahony was satisfied that the failure to determine whether Mr Harriman’s hearing should be attended or unattended, amounted to an error of law. He said:
25.I am satisfied in this case that a number of mandatory procedures in the Parole Act were not followed. Some of the failures, such as the giving of notice were administrative. The failure to follow the requirements in section 45 involve the Panel Convenor in a pre- hearing statutory function. In my view, this is not a function which is amenable to a general policy or universal practice adopted by the Board, for example under section 109(2)(a) Such a policy, however well intentioned, in relation to offenders’ rights is not in conformity with the pre-hearing procedures in the Act which apply to every individual parole hearing and require that the Panel Convenor decide the nature of the hearing – attended or unattended case by case. It is the first of the statutory functions given to a Panel Convenor under section 114(3)(a) of the Act.
[53] Judge Mahony went on to deal with other aspects of Mr Harriman’s application for review, such as the waiver form that had been submitted at the hearing by a Corrections officer and the accommodation and release proposals
Mr Harriman had sought to rely upon. The Judge concluded that the Board’s approach was in accordance with the requirements of s 28 of the Act; namely, that the Board must be satisfied on reasonable grounds that an offender, if released on parole, will not pose an undue risk to the safety of the community within the term of his sentence, having regard to the support and supervision available to the offender following release.
[54] In finding thus, Judge Mahony noted that Mr Harriman could not achieve his objectives by side-stepping the process required in ensuring no undue risk to the safety of the community would occur and if Mr Harriman wished to be released on parole, that, at the very least, would require his participation in the parole process.
Second parole hearing and decision of the Board on 7 August 2012
[55] Following Judge Mahony’s review, Mr Harriman filed this application for judicial review. The same month he applied to the Board for an early parole hearing and was granted an early hearing by a decision of the Board on 6 June 2012.
[56] The hearing required the preparation of a further PAR. This was undertaken by Ms Carrick and finalised on 27 June 2012.
[57] Mr Harriman apparently attempted to withdraw from the early parole hearing after it had been set down.
[58] The hearing proceeded without Mr Harriman in attendance and the Board once again declined him parole for the following reasons:
1.Mr Harriman is serving a 12 year prison sentence for serious drug offending relating to heroin and ecstasy. He had a minimum non- parole period of six and a half years. His sentence commenced in February 2007. He became eligible for parole on 23 January 2012 and has a statutory release date in July 2017.
2.Having been successful in an application under section 26 of the Parole Act today is an attended hearing. As it turns out, Mr Harriman has chosen not to attend. We, therefore, deal with the matter in his absence. The latest parole assessment report tells us that Mr Harriman has again declined to participate in the parole assessment process. It means that there has been no ability to verify his release proposal. In the Board’s view nothing has changed since his appearance on 17
January 2012. In effect, there is no viable release proposal for the Board to consider. On that basis Mr Harriman must be treated as still posing an undue risk to the safety of the community and parole is declined.
[59] Mr Harriman is not seeking judicial review of this decision.
Grounds of review
[60] Mr Harriman seeks review of both the Department’s actions and its alleged omissions in relation to the information provided to the Board for his first parole hearing on 17 January 2012. He also seeks a review of aspects of the Parole Board’s approach to the question of his parole.
[61] The first cause of action alleges bad faith on the part of the Department’s officers by failing to implement the “purpose and guiding principles” in the Corrections Act 2004, thereby unlawfully extending his term of imprisonment. By way of relief Mr Harriman seeks a number of declarations that actions or omissions of officers or employees of the Department of Corrections were unlawful and thereby caused or contributed to an unlawful parole hearing on 17 January 2012.
[62] Central to this cause of action are Mr Harriman’s beliefs that the Department failed in its reporting function to the Board in a number of ways: first, by wrongly interpreting his declining to be interviewed as “a disinclination to participate in the parole process” and reporting this view to the Board, thereby tainting its decision; second, by failing to provide an accurate and complete report, in advising the Board that Mr Harriman “was not prepared to participate in the interview process for the preparation of the parole assessment or indeed provide any details of the new release proposal”. Also, in advising that he “does not have any accommodation proposal and certainly there is no approved accommodation for him”.
[63] Mr Harriman alleges these errors, combined with others, indicate predetermination on the part of RRS and the Department and resulted in the Board making an unreasonable decision.
Second cause of action
[64] In his second cause of action, Mr Harriman alleges failure by the Parole Board to comply with required procedures in the Act. These encompass a failure to notify him of the Board’s decision as to the type of hearing he would be accorded pursuant to s 45 of the Act, consequent upon a failure of the Board to make any such decision. Mr Harriman contends that the Board’s failure to comply with those procedural requirements nullifies its decision of 17 January 2012 to decline parole.
[65] Further, Mr Harriman alleges that the Board based its decision on erroneous information, based on a belief that Mr Harriman had signed a waiver form. He also contends that the Board made unsustainable findings of fact based on erroneous documentation furnished by the Department in relation to Mr Harriman’s accommodation proposal.
Third cause of action
[66] In his third cause of action Mr Harriman seeks declarations that his term of imprisonment has been unlawfully extended and is now arbitrary and unlawful in breach of ss 9, 22 and 23(5) NZBORA and articles 9 and 10 of the ICCPR. The right said to be most impugned is the right not to be arbitrarily detained contrary to s 22
NZBORA, which draws upon article 9(1) of the ICCPR.
First cause of action: the Department’s alleged acts and omissions
[67] Mr Harriman alleges the mistakes of fact evident in the Board’s decision are indicative of a predetermination or the appearance of a predetermination brought about in large part by the Department’s wrongful actions and omissions.
[68] The fundamental problem under this heading is Mr Harriman did not engage in the parole process sufficiently to allow RRS to approve a release proposal that would satisfy the Board that his release back into the community on parole would not pose an undue risk to the safety of the community.
[69] As is clear, for a release proposal to be approved it must be an integrated plan which has been developed with and is supported by the Department of Corrections. Axiomatically this involves departmental officials working with a prisoner and the engagement requires the facilitation of sufficient information by the prisoner to the Department to enable officials to investigate and confirm the availability and appropriateness of any release address nominated. It is not sufficient for any prisoner, including Mr Harriman, to simply provide an address direct to the Parole Board without first providing that address to RRS for checking as part of the preparation of the prisoner’s PAR. The process and the difficulties occasioned by Mr Harriman’s approach were encapsulated by Ms Griffin in her submissions, quoted in [32] above.
[70] As Mr Cooke also said, the reference in the Board’s decision to a lack of a formal release plan was not focussed simply on the lack of identification of a particular residential address. The plan is required to address with whom the offender will live and the personal circumstances of his or her life outside prison.
[71] For these matters to be investigated, Mr Harriman’s consent for the Department to contact relevant third parties – such as the owner of occupier of the proposed address – was required. As Ms Griffin explained, the Department requires consent in order to protect both itself and the prisoner in the inevitable event that the
prisoner’s private information has to be disclosed.6 Mr Harriman did not however
engage sufficiently with Ms Carrick for her to obtain his consent.
[72] The outcome was that Mr Harriman’s refusal to engage with RRS prior to either his January or August parole hearings so as to enable the proper investigation of the viability of his release proposal by the Department with the assistance of Community Probation Services rendered his application for release on each occasion fundamentally deficient. As Judge Mahoney observed, the legislative requirements cannot simply be sidestepped.
[73] I record that both the Department and the Parole Board, through counsel, have expressed their willingness to assist Mr Harriman towards his next parole
6 See [32].
hearing by taking steps to try and find persons within the Department with whom he feels he can confidently work in developing a suitable release plan for his next hearing. The Court would encourage Mr Harriman to seriously consider taking up this offer, given the reality that he cannot totally exclude the Department and the Probation Service from the process, as both have a public responsibility in the matter.
[74] Mr Harriman advised the Court that it is too late because the residential address he had proposed in his submissions for the January 2012 parole hearing is no longer available to him. He said this has caused him to abandon mandamus as a remedy. That is not a matter the Court can resolve.
[75] Similarly, in the context of judicial review, the Court cannot make any definitive finding in relation to Mr Harriman’s assertion that he had provided the Department with all relevant information for placement on his file two or three weeks prior to 9 December 2011; and Ms Carrick’s contrary statement that there was no such information on file by the time she was required to complete the PAR for the January 2012 hearing.
[76] In conclusion, I do not find that the Department caused Mr Harriman’s first parole hearing to miscarry, by providing inaccurate or incomplete information to the Parole Board. Nor did the Department’s officers act in bad faith as alleged.
[77] It is now for Mr Harriman to collaborate with the Department over release proposals for his next parole hearing, which is due in August 2013. If he continues to simply correspond directly with the Board and attempt to exclude the Department from fulfilling its role in the parole process, he is likely to again be declined release on parole.
Second cause of action: attended or unattended hearings
[78] The first part of the challenge on review to the Parole Board’s decision of
17 January 2012 relates to the mode of hearing.
[79] Three questions arise in relation to the Board’s decision, or lack of decision relating to Mr Harriman’s request for that hearing to be an unattended hearing. The first is whether. as Judge Mahony found, the policy confirmed by the Chair on
10 October 2011 and set out in [48] above, constitutes a blanket or “universal” policy that amounts to a fetter on the exercise of the Board’s discretion in discharging its mandatory responsibilities under s 45 of the Act? The second question is whether, if the policy of 10 October 2011 did not amount to a fetter but leaves room for the exercise of individual discretion, that residual discretion was actually exercised in Mr Harriman’s case. The third is whether, on either scenario, Mr Harriman was in fact deprived of a fair hearing?
[80] Turning to the first question the applicable law is well established. The general rule is that “anyone who has to exercise a statutory discretion must not ‘shut his ears’ to an application.”7 So long as any policy formulated is within the scope of the legislative purpose and acknowledges the existence of any discretion, it will be valid.8
[81] Mr Cooke submitted that the legitimacy of the policy formulated by the Board could be viewed in the context of the specific statutory power in s 109(2)(a) of the Act which allows for the formulation of such policies by the Board. He said there was no reason why the particular statutory language of s 45 should eliminate the possibility for such policies. As decisions on hearing type are essentially administrative in nature, they are classically within the power of a body such as the Board to regulate its procedure and under s 117A the Board is empowered to regulate its own procedure.
[82] The critical issue is whether the Board’s policy, as formulated, does leave
room for the exercise of individual discretion.
[83] The decision making power conferred by s 45 fits within the category of a power which, as a result of the nature of the subject matter, justifies the
7 British Oxygen Co Ltd v Minister of Technology [1971] AC 610, at 624.
8 Practical Shooting Institute (New Zealand) Inc v Commissioner of Police [1992] 1 NZLR 709 (HC).
establishment of a carefully formulated policy.9 It is entirely understandable and in the interests of expedition and efficiency that such a policy should have been formulated, given the Parole Board is required to hear in the region of 5,000 cases per year. There is also an in-built safeguard in the presumption in favour of s 27
NZBORA rights. Further, as Mr Cooke submitted, the legislative policy relating to attended and unattended hearings is directed to obtaining appropriate, fair and fully informed decision making. A policy that presumes a prisoner’s attendance at a hearing sits well within the scope of that purpose.
[84] The policy, as formulated, does leave room for the exercise of individual discretion in its ryder that all hearings shall be by way of attended hearing “... unless the Panel Convenor decides in a particular case that it is to be an unattended hearing.” In this respect, there is scope for the hearing to be changed to an unattended hearing if, in the Panel Convenor’s opinion, an offender’s particular circumstances warrant that. This aspect, coupled with the fact that pro forma advice is sent to every prisoner eligible to be considered for parole, that all hearings will be
scheduled as attended hearings,10 sufficiently persuades that the Board has not shut
its ears unduly and has preserved an appropriate residual discretion to itself.
[85] In any given case, the Panel Convenor must still decide whether the particular circumstances warrant a departure from the general policy that all hearings will be scheduled as attended hearings.11 Provided such a decision is made, the decision- making power provided by s 45(1) will have been appropriately exercised.
[86] This leads to the second question, whether that discretion was exercised in Mr Harriman’s case. It clearly was not at the time Mr Harriman made his written request for an unattended hearing, nor at any time prior to the hearing convening. Nothing on the face of the record indicates that the Panel Convenor or any other member of the panel turned his or her mind to the question of the type of hearing Mr Harriman should have, prior to 17 January 2012. It therefore appears that the
Parole the Parole Board did apply the policy in Mr Harriman’s case in a blanket
9 See Practical Shooting Institute (New Zealand) Inc v Commissioner of Police at 729.
10 As per the booklet sent to Mr Harriman under cover of the letter advising the date of his parole hearing referred to in [4] and [5].
11 Practical Shooting Institute (New Zealand) Inc v Commissioner of Police, above n 8, at 730.
manner, as there is no indication they were even aware of his request and certainly they did not acknowledge it. This conclusion is consistent with Judge Mahony’s finding that the exercise of discretion was pre-empted by the Board’s universal practice.12
[87] Mr Cooke argued that the hearing was changed to an unattended hearing on the basis of Mr Harriman’s particular circumstances, once the Board was aware of them. Whilst the hearing was scheduled as an attended hearing, that was reconsidered by the Board in light of Mr Harriman's absence at the hearing. At that point the Board exercised its discretion to proceed with the hearing in his absence. Clearly, this decision should have been made much earlier and in response to Mr Harriman’s written request, which evidently was not brought to the Panel Convenor’s attention sufficiently prior.
[88] As it turns out, the issue arising from the very late application of the policy in Mr Harriman’s case now appears to be somewhat moot. In this regard, I note that the Parole Amendment Bill that has since been introduced to the House of Representatives proposes removal of the distinction between attended and unattended hearings. Instead, it is envisaged the Act will provide for one hearing at which the Board can determine who can attend. That being the case, I accept Ms Griffin’s submission that this prospect points to a futility to granting relief beyond that already achieved in Judge Mahony’s decision.
[89] I come then to the third question, which is whether Mr Harriman essentially received the unattended hearing he sought.
[90] On the evidence filed in this review proceeding it cannot be said that the Board’s decision would have been any different had there been compliance with s 45 of the Act from the outset. I therefore agree with Judge Mahony that the hearing was not void or a nullity as a consequence. If there was an absence of compliance, at least until very late in the piece, that would not have – and did not - affect the way in which the Board ultimately made its decision. The absence of a material and critical
piece of information, in the form of an approved release plan, rendered the outcome
12 See [49] of this judgment.
of the hearing inevitable. Mr Harriman’s written submissions were expressly taken into account and the Panel Convenor took all steps to ensure that Mr Harriman did not wish to be further heard on 17 January by having direct contact made with him to verify that.
Did the Board make erroneous findings?
[91] The Board’s conclusion that Mr Harriman posed an undue risk to the safety of the community was the only sustainable conclusion to reach in the absence of a fully particularised release proposal, vetted and approved by RRS and the Probation Service. In reaching its considered decision about undue risk to the safety of the community, having regard to the support and supervision available to Mr Harriman following his release, the Parole Board clearly had in mind the factors set out in s 7(3) of the Act. Albeit they were briefly stated, these matters are adequately recorded by the Board at the commencement of its decision.
Arbitrary or unlawful detention contrary to NZBORA and ICCPR Relief
[92] As the first respondent submitted, detention is not arbitrary or unlawful if it is in accord with a sentence imposed by a sentencing Judge and the required public safety assessments have been carried out by the Board in a way which accords with the Parole Act.13
[93] Mr Harriman was sentenced to 12 years imprisonment with a minimum period of imprisonment of six and a half years. That minimum period only expired on 23 January 2012. The Board rightly concluded that he remains an undue risk to the community.
[94] It follows from the above that there has been no unlawful or arbitrary detention of Mr Harriman contrary to his rights under NZBORA or the ICCPR.
13 Miller v New Zealand Parole Board [2010] NZCA 600 at [70].
Relief
[95] I have not found that the acts or omissions alleged on the part of the Department and its officials caused or contributed to an unlawful parole decision by the Board on 17 January 2012. To the extent that the Court in its supervisory jurisdiction can inquire into these allegations, there appear to be no acts or omissions by the Department that resulted in the Board considering any irrelevant factor, failing to consider all relevant factors or coming to an unreasonable decision. As adverted to more than once in this judgment, the absence of an approved release plan for the Board to consider meant it was inevitable that Mr Harriman’s parole application would be denied.
[96] In any event, the decision of the Board on 17 January 2012, which is the impugned decision, has since been overtaken by the 7 August 2012 decision of the Board, which has not been challenged by Mr Harriman.
Conclusion
[97] None of Mr Harriman’s claims are made out. His application for judicial
review of actions by the Department and the Board is dismissed.
Goddard J
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