Hudson v Attorney-General
[2017] NZHC 2456
•6 October 2017
IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY
I TE KŌTI MATUA O AOTEAROA
TE WHANGANUI-Ā-TARA ROHE
CIV-2017-485-127 [2017] NZHC 2456
UNDER the Judicature Amendment Act 1972 IN THE MATTER
of an application for Judicial Review on the grouns of unreasonableness and the Corrections Act 2004
BETWEEN
STEPHEN THOMAS HUDSON Applicant
AND
THE ATTORNEY-GENERAL First Respondent
THE PRISON DIRECTOR OF TONGARIRO PRISON
Second Respondent
Hearing: 20 September 2017 Counsel:
Applicant in Person
M J McKillop for RespondentJudgment:
6 October 2017
JUDGMENT OF CHURCHMAN J
[1] By amended statement of claim dated 10 April 2017 the applicant sought judicial review of a decision refusing his request to transfer from Whanganui Prison to Tongariro Prison (formerly known as Rangipo Prison).
[2] The applicant sought declarations that the decision of the Prison Director of
Tongariro Prison (Lynette Ruth O’Connor – commonly known as Lyn) to refuse his request to transfer was unfair and unreasonable.
HUDSON v THE ATTORNEY GENERAL [2017] NZHC 2456 [6 October 2017]
[3] The respondent opposed the application and filed an affidavit by Lyn O’Connor which exhibited a quantity of relevant documentation. The respondent also filed what was described as a “bundle of documents”. The respondent applied to introduce this evidence under s 130(3) of the Evidence Act 2006 that is, without the evidence being introduced by a witness.
[4] At the hearing, the applicant consented to the admission of this evidence and it was admitted accordingly. Both parties made extensive reference to it in speaking to their submissions.
Factual background
[5] Mr Hudson is currently an inmate at Rimutaka Prison. His criminal history includes 81 charges, including convictions for violence, drug, and property crimes. He also has three convictions for actual or attempted escape from custody. In 2002, he was sentenced to life imprisonment for murder. He will be eligible for parole in
2026. At the time of the decision refusing his request for transfer, November 2016, he was serving his sentence at Whanganui Prison.
[6] His security risk is assessed, like all prisoners, every six months. There are five categories: maximum, high-medium, low-medium, low, and minimum. He has been assessed as low-medium five times since 2013. At the time of the decision, he was assessed as low-medium risk. However, he was kept in the Te Waimarie unit, a high security wing. He was voluntarily segregated from mainstream prisoners for the purpose of protective custody under s 59(1)(a) of the Corrections Act 2004 (the Act). He apparently refused transfer to available cells in the low-medium wings following a downgrade in his security classification. He was kept in Te Waimarie until his transfer to Rimutaka Prison on 27 January 2017.
[7] During that time, he repeatedly requested transfer to Tongariro Prison. Mr Hudson says these requests were either ignored, or declined due to prison muster issues. The present application relates to a transfer request Mr Hudson submitted on
8 November 2016. On 15 November, he was informed that the request had been declined. He proceeded that same day to request the reasons for that decision, with “completeness and accuracy”, via a prisoner complaints form (PC01).
[8] Ms O’Connor describes the process by which she came to her decision. She was asked by Shane Bradford, who holds the position of Advisor Prison Population, to consider Mr Hudson’s request with a “money back guarantee”, which means if a transfer is effected but the prisoner does not fit in, he or she will be sent back to the previous prison. Ms O’Connor had discussions with Glen Goddard, Custodial Systems Manager at Tongariro Prison around risk management of Mr Hudson. In those discussions, they canvassed Mr Hudson’s:
(a) offender alert reports which record altercations he has been involved with;
(b) offender plan;
(c) September 2016 misconduct report;
(d) November 2016 security classification review; (e) visitor list; and
(f) offender notes, which record regular entries into the Integrated
Offender Management System to monitor his progress. [9] All of the above are attached to her affidavit of 19 July 2017.
[10] Ms O’Connor decided to decline the request. Her email to Mr Bradford was very brief and does not, she says, relay the entirety of her rationale for the decision. She explains the brevity by saying she was about to go on leave and wanted the matter dealt with before she left.
[11] More in-depth reasons were recorded by Mr Goddard on 5 December 2016 in an email following a request by Graham Dack, Residential Manager at Whanganui Prison. That email records the following reasons (emphasis in original):
The short version is this;
Tongariro Prison prioritises employment and reintegration opportunities for genuine s 59(1)(a) prisoners, who are motivated to address their offending. Prisoner Hudson is:
·Ten years from PED, not in the reintegration phase of his sentence and with no programme on offer for him at Tongariro Prison.
·Security classification comment; and scoring Prisoner Hudson – Generally compliant and does as requested of him by staff with the occasional upset. At times he tries to buck the system as noted in his previous file notes. He is a long way off his first Board and at the stage is reluctant to engage with Case Management. …
·The misconduct for the review period was for fighting with another prisoner, behaviour suggests he is not suitable for s 59(1)(a) VPC, however it appears the misconduct was not pursued by the prison.
· High risk escape.
Prisoner Hudson is not a fit for Tongariro Prison, due to the level of risk he poses, the ongoing issues with staff engagement and recent fighting.
[12] Ms O’Connor explained each of these points in more detail in her affidavit at [38]. She also explained her earlier email in more detail at [39]. I summarise the points she made as:
(a) Tongariro is a low-medium security prison, and a “working” prison.
Most prisoners are working 40-hour weeks, in a less restrictive environment. Tongariro does not prioritise low-medium prisoners because they cannot partake in employment “outside the wire”, such as in the forestry sector. Mr Hudson was unable to engage with that work without special leave, because of his security rating.
(b)Tongariro is also entirely segregated, which means all prisoners have been voluntarily segregated for protective custody purposes. They are often sex offenders.
(c) Tongariro favours prisoners who are motivated and committed to change, who have a genuine need for protective custody, and will benefit from the employment and reintegration opportunities on offer.
(d)Mr Hudson’s offender plan includes intensive residential treatment programmes that are not on offer at Tongariro. She says this was a decisive factor.
(e) Mr Hudson was not engaged in his rehabilitation, and had not reached the “stage of change” expected of Tongariro prisoners. This was the second decisive factor.
(f) Mr Hudson had recently engaged in violence with another prisoner.
(g) Mr Hudson’s escape risk was high, and that was incompatible with
Tongariro’s less restrictive environment.
(h)On the list of family members Mr Hudson wished to have visit him, some would be closer, but others would be more distant if he were to transfer from Whanganui to Tongariro.
[13] Because Mr Hudson had not received a response by 8 December 2016, he called the Department of Corrections complaints response desk. They advised he should call the Prison Inspectorate. He received a response to his PC01 the next day. Mr Hudson called the Prison Inspectorate regarding the response he had received. The Inspectorate advised in January 2017 that the complaint and decisions regarding transfers were outside of its mandate.
[14] Mr Hudson was transferred to Rimutaka Prison on 27 January 2017.
Submissions
Irrelevant considerations
[15] Mr Hudson submits his alleged misconduct for fighting is an irrelevant consideration because the misconduct allegation was withdrawn prior to Ms O’Connor making her decision.
[16] He submits another irrelevant consideration was Ms O’Connor’s assessment
that he lacks engagement with rehabilitation. Mr Hudson considers his completion
of an alcohol and other drugs programme makes that assessment incorrect, and therefore an irrelevant consideration. This is, in effect, an argument for an error of fact by the decision-maker.
[17] The final irrelevant consideration is that Mr Hudson was not suitable for protective custody. This was based on the withdrawn allegation of misconduct against Mr Hudson. He notes that he has had threats against his life made by gang leaders. He submits that because the misconduct allegation was withdrawn and in the context of threats on his life, he was a suitable candidate and this was therefore an irrelevant consideration. This is, again, more properly an argument for an error of fact.
Relevant considerations
[18] Mr Hudson further submits that providing the least restrictive environment and access to his family were mandatory and relevant considerations, that were not taken into account in the decision. He notes s 54(4) sets out the grounds that the Chief Executive (and the Prison Director, by delegation) must, as far as reasonably practicable, have regard to. Section 54(4)(a) is the desirability of providing the least restrictive environment for the prisoner consistent with public safety, safety of staff, and of prisoners. That is reinforced by s 6(1)(g), which provides:
6 Principles guiding corrections system
(1) The principles that guide the operation of the corrections system are that—
…
(g) sentences and orders must not be administered more restrictively than is reasonably necessary to ensure the maintenance of the law and the safety of the public, corrections staff, and persons under control or supervision …
[19] To reinforce this, Mr Hudson points to reg 44(2) of the Corrections
Regulations 2005:
44 Principles of security classification
…
(2) A prisoner who has been assigned a security classification must be placed and managed within a facility and regime that is consistent with his or her security classification, to the extent that it is practicable (having regard to the availability of accommodation and other resources).
[20] And to provisions of the Prison Operations Manual:
M.02.01.R01.01 Housing prisoners
A prisoner who has been assigned a security classification must be placed and managed within a facility and regime that is consistent with his security classification to the extent that is practical (having regard to the availability of accommodation and other resources).
Facilities for accommodation should be matched to the level of risk indicated
by the prisoner’s security classification. …
Facilities are classified as low, high or maximum security.
…
[21] With those regulations and guidelines in mind, he suggests the fact that he was housed in a high security environment whilst being assessed as low security was a relevant and mandatory consideration that Ms O’Connor failed to take into account.
[22] Regarding family access, Mr Hudson points to s 54(4)(c) of the Act which requires the decision-maker to consider “the desirability of ensuring that the prisoner is detained at a location as close as is practicable to his or her family”, and s 6(1)(e)(i):
6 Principles guiding corrections system
(1) The principles that guide the operation of the corrections system are that—
…
(g) an offender’s family must, so far as is reasonable and practicable in the circumstances and within the resources available, be recognised and involved in—
(i) decisions related to sentence planning and management, and the rehabilitation and reintegration of the offender into the community; …
[23] He points out that three out of five of his approved visitors are significantly closer to Tongariro than Whanganui. No mention was made of this consideration in the original reasons provided for the decision, despite Mr Hudson asking for completeness and accuracy. He suggests that Ms O’Connor’s belated explanation is insufficient because it was not considered in the original decision.
Ultra vires and unreasonableness
[24] Mr Hudson submits the conclusion that a prisoner who uses the complaints process is not a self-managing prisoner is not supported by the principles behind the complaints system. He notes a guiding principle of the corrections system is that a prisoner must have access to an effective complaints procedure:
6 Principles guiding corrections system
(1) The principles that guide the operation of the corrections system are that—
…
(f) the corrections system must ensure the fair treatment of persons under control or supervision by—
…
(ii) ensuring that decisions about those persons are taken in a fair and reasonable way and that those persons have access to an effective complaints procedure; …
[25] To reinforce the argument, he points to s 152 of the Corrections Act 2004, which provides, inter alia:
152 Objectives and monitoring of corrections complaints system
(1) The corrections complaints system has the following objectives:
…
(b) to ensure that all persons under control or supervision are aware of the complaints system and are able to make a complaint if and when they choose to do so, without fear of
adverse consequences …
…
[26] In light of those principles, Mr Hudson submits that Ms O’Connor seemed to
regard the fact he used the complaints process as a reason to deny him transfer, and
that this is an adverse consequence and contrary to s 152(1)(b). He suggests that
Ms O’Connor’s decision is, in this regard, ultra vires and unreasonable.
Breach of natural justice and unfairness
[27] Mr Hudson submits Ms O’Connor’s characterisation of Mr Hudson as having a high risk of escape is in error. He suggests his attempts to escape are historic, and in any event are included in the assessment of his security rating as per reg 45(c) of the Corrections Regulations 2005. His submission was that Ms O’Connor had therefore ignored the Department’s risk assessment, and substituted her own (incorrect) assessment, and double counted this risk factor. He suggests this is a breach of natural justice. He cites Taylor v Chief Executive of the Department of
Corrections, where the High Court noted:1
… it is not disputed that the principal point of the guidelines issued by the chief executive under s 196 (and the associated forms) is to ensure that the assessment of risk is performed as consistently and objectively as possible across the prison estate. The need for fairness is specifically underscored by the principle articulated in s 6(1)(f) of the Act.
[28] In light of that, he suggests that in substituting the Department’s risk assessment with her own, Ms O’Connor acted unfairly.
[29] Mr Hudson seeks a declaration that Ms O’Connor’s decision to refuse the transfer was unreasonable or alternatively unfair.
Respondent’s submissions
[30] The respondent emphasises the multi-factorial analyses anticipated by ss 53 and 54 of the Act. Mr McKillop for the respondents notes that while Mr Hudson states his claims are on the grounds of unreasonableness, they instead point to the grounds of procedural impropriety.
[31] Mr McKillop distinguishes between mandatory and permissive relevant considerations and notes that s 54(4) mandatory factors need only be taken into
1 Taylor v Chief Executive of the Department of Corrections [2015] NZHC 2196 at [78].
account “as far as reasonably practicable”. He submits Ms O’Connor considered all the mandatory factors contained in s 54(4) and found they did not support a transfer.
[32] In relation to the relative brevity of the reasons set out initially by Ms O’Connor for declining the request, Mr McKillop noted that the level of detail that would be provided in these circumstances was proportionate to the level of detail in the application and the specific points raised.
[33] He noted that the application came via a relatively brief email forwarded by Shane Bradford (Adviser Prison Population, Central Region) on 11 November 2016. Mr McKillop referred to the fact that some requests for transfer are submitted directly in letter form by the prisoners themselves and in those circumstances a detailed written letter of response addressing whatever specific issues are raised is normally provided.
[34] Mr McKillop characterises the decision as within a category of “polycentric decision-making”. He submits further that the reasons for transfer listed in s 54 indicate a high degree of discretion afforded to the decision maker. Those reasons include the primary principles of the corrections system, such as reducing reoffending, and more administrative matters, such as managing the prison muster. Prisons have limited resources, and transfer decisions in that context will have repercussions in other directions. Where that is the case, Ms O’Connor necessarily needed to consider other matters, such as the needs of other prisoners who would better suit Tongariro’s objectives.
[35] He points to Te Runanga o Raukawa Inc v Treaty of Waitangi Fisheries Commission for support of a polycentric approach.2 In the context of limited prison resources, he points to Miller v New Zealand Parole Board, where the Court of Appeal concluded it is reasonable to prioritise the needs of prisoners nearing their release date for reintegration purposes.3 He further points to Taylor v Chief Executive of the Department of Corrections to support the point that although
provisions in the Corrections Act 2004 might appear mandatory, such as those
2 Te Runanga o Raukawa Inc v Treaty of Waitangi Fisheries Commission HC Wellington
CP 322/96, 7 August 1997 at 10.
3 Miller v New Zealand Parole Board [2010] NZCA 600 at [159].
requiring the provision of rehabilitative programmes, they can be considered aspirational in nature, rather than requiring specific programmes to be available to specific prisoners.4 In that case, Ellis J made the following statement on the standard of review:5
The starting point in terms of any application for review of the exercise of that power is that whether or not Mr Taylor or any other prisoner should be permitted to participate in a programme such as the STURP is inherently a matter for evaluation and judgment. The Court’s supervisory jurisdiction does not generally permit it to engage in a rehearing of the merits of an impugned decision. The mere fact that the Court might consider that a better decision could have been made on the facts does not mean that the application for review should succeed. Failure by a decision-maker to consider a relevant consideration is only fatal if the consideration can be said to be expressly or impliedly mandatory. It is trite that the unreasonableness threshold is a very high one. And in the present case care is also required because [the prison manager] was not cross-examined on his evidence.
[36] Mr McKillop submits the same standard ought to apply with respect to s 54.
Recent violence
[37] Regarding the withdrawn charge of misconduct, Mr McKillop considers the fact of the altercation (which was captured on CCTV footage) and the charge as distinct. He points to various cases where, for instance, Corrections was justified in taking administrative action in light of positive drugs test results despite misconduct
charges not being proved.6 He says that this is particularly so where the charge is not
heard for procedural reasons, such as in this case where the hearing was outside the
21 day time limit. He submits violence must be a permissive consideration because Corrections must be able to manage violence effectively irrespective of whether charges are laid or misconduct proved.
Least restrictive environment
[38] Mr McKillop submits Ms O’Connor did consider s 54(4)(a), but it did not support Mr Hudson being transferred to Tongariro. Section 54(4)(a) also requires the
least restrictive environment that is consistent with the safety of the public, staff, and
4 Taylor v Chief Executive of the Department of Corrections [2016] NZHC 1805 at [55].
5 At [58].
6 Newton v Superintendent of Rimutaka Prison HC Wellington CIV-2003-485-1778, 5 September
2003 at [31].
other prisoners. Ms O’Connor assessed his suitability in terms of his security rating, his being held in a high-security wing, his history of violence, and escape risk. She concluded there was a risk to the public and other vulnerable prisoners if she accepted Mr Hudson into Tongariro.
[39] Mr McKillop submits that Mr Hudson’s November 2016 security classification was not a thorough reassessment, and would probably have been upgraded to “high” if such a reassessment had been undertaken at the time. I do not place any weight on this submission. Counsel did not refer to any evidence which supported it. Additionally, the reassessment in March–April 2017 retains the low-medium status he had previously, despite including additional violence incidents in his assessment.
High risk of escape
[40] Mr McKillop details the distinction between a prisoner’s internal risk and external risk. Mr Hudson’s internal risk was low, but his external risk is high, due mostly to his previous escape attempts and his long period of incarceration. Moreover, a low-medium rating does not automatically mean a prisoner is eligible for Tongariro Prison. Although Tongariro houses both low and low-medium prisoners, it is primarily geared towards catering for those with low security classifications. In that context, Ms O’Connor’s consideration of Mr Hudson’s risk of escape was not an irrelevant consideration.
[41] Mr McKillop additionally points out that the Court’s observations in Taylor were in respect of legitimate expectations that Corrections follow its security classification process for consistency. This is not such a case, and there is no dispute over whether Corrections followed its guidelines in assessing Mr Hudson’s security rating.
Access to family
[42] Mr McKillop submits Ms O’Connor treated this as a neutral factor. He
suggests this is reasonable in the context where it was not raised as a reason for the
transfer at the time, and where it was clear he would be closer to some approved visitors and further away from others should he be transferred.
Engagement with rehabilitation and punishment for complaints
[43] Mr McKillop suggests Mr Hudson is mischaracterising Ms O’Connor’s decision in this regard. She considered whether he was engaging with rehabilitation by assessing whether he was self-managing. This is not a formal status, but an overall impression of the stage of change Mr Hudson appeared to be in.
[44] Ms O’Connor refers to the “stages of change” model, in which successful rehabilitation efforts are evidenced by moving from denial, through contemplating change, to taking action, to change and maintaining that change. Ms O’Connor referred to Mr Hudson’s offender notes, in which she found evidence that he had not accepted his offending: he was contemplating an appeal against his murder conviction around the time he requested transfer. Her consideration of his PC01 complaints was not a punishment for making complaints, but she considered the substance of those complaints point to a tendency to blame others for his problems. His completion of one rehabilitation programme does not invalidate Ms O’Connor’s concern regarding his lack of engagement. Mr McKillop suggests this is supported by the fact that his April 2017 security classification assessed his motivation to implement his offender plan as “poor” (down from “average” in November 2016).
[45] Th Court notes that the final point is difficult to use, post facto, as a justification for assessing Mr Hudson as poorly engaged with rehabilitation. It is possible that the decision not to transfer Mr Hudson had the effect of reducing his likely engagement with rehabilitation.
Law
Relevant statutory provisions
[46] Requests for prisoner transfer are governed by ss 53 and 54 of the
Corrections Act 2004, which relevantly provide:
53 Transfer from one prison to another
(1) A prisoner may be transferred, on the direction of the chief executive, from any prison to any other prison in which he or she
may be lawfully detained.
…
54 Reasons for transfer
(1) A prisoner may be transferred by the chief executive from one prison to another for 1 or more of the following reasons:
(a) to assist in reducing the likelihood of reoffending by the prisoner:
(b) to assist in facilitating the—
(i) rehabilitation of the prisoner; or
(ii) reintegration of the prisoner into the community on his or her release:
(c) to place that prisoner in a prison closer to his or her family:
(d) to respond to the needs of that prisoner, as identified in the management plan:
(e) to ensure the safety of that prisoner or any other person:
(f) to implement a change in the security classification of that prisoner:
(g) to provide medical or psychiatric care for that prisoner:
(h) to reduce the risk of self-harm by that prisoner if he or she is identified as being at risk:
(i) to reduce the risk to that prisoner if he or she is identified as being vulnerable to mistreatment by other prisoners:
(j) to grant a request by a prisoner for a transfer.
(2) A prisoner may be transferred by the chief executive from one prison to another in order to ensure compliance with the requirements of this Act or any regulations made under this Act concerning—
(a) the separation of convicted prisoners from accused prisoners;
or
(b) the separation of prisoners who are under a specified age from prisoners who are of or over that age.
(3) A prisoner may be transferred by the chief executive from one prison
(the first prison) to another prison—
(a) to restore or maintain the security and order of the first prison: (b) to enable effective management of the national prisoner
muster:
(c) to allow repairs or alterations at the first prison:
(d) in response to the closure or change of use of the first prison or part of that prison.
(4) When considering whether to transfer a prisoner for 1 or more of the reasons set out in subsection (1) or when considering how a transfer for 1 or more of the reasons set out in subsection (2) or subsection (3) is to be effected, the chief executive must, as far as is reasonably practicable, have regard to—
(a) the desirability of providing the least restrictive environment for the prisoner that is consistent with the maintenance of public safety and the safety of staff members and other prisoners; and
(b) the need to facilitate the rehabilitation and reintegration of the prisoner into the community, taking into account the availability and location of appropriate services and programmes that will contribute to the achievement of those objectives; and
(c) the desirability of ensuring that the prisoner is detained at a location as close as is practicable to his or her family.
(5) A decision by the chief executive to transfer a prisoner must be made in the prescribed manner.
Standard of judicial review
[47] Judicial review is the supervisory function of the Court concerned with ensuring public power is exercised according to the law.7 In exercising that function to assess a decision and determine whether it ought to be allowed to stand, the Court is primarily concerned with examining procedural compliance, not the substance of the decision itself.8
[48] There is recognition in New Zealand that grounds of review tend to overlap in practice and there may be no fine distinctions between them.9 Here the applicant’s submissions as regards judicial review on the ground of unfairness and unreasonableness could be summed up by the question: did the decision-maker (at each stage) “direct themselves properly in law and then act according to law. They
must observe the criteria expressly or implicitly laid down in the legislation. So they
7 Mercury Energy Ltd v Electricity Corporation of New Zealand Ltd [1994] 2 NZLR 385 (PC).
8 Aorangi School Board of Trustees v Ministry of Education [2010] NZAR 132 (HC) at [8].
9 Wilson v Auckland City Council [2007] NZAR 711 (HC) at [17]
must call their attention to matters they are bound by the statute to consider and they
must exclude considerations which on the same test are extraneous.”10
[49] Regarding the standard and intensity of the review, the ‘normal’ intensity of review has been described by the Supreme Court as being whether the information, objectively assessed, reasonably supported the decision, not just whether there was information on which the decision maker could act.11
Analysis
Relevant and irrelevant considerations
[50] Section 54 allows for prison transfers for a variety of reasons. When making a decision under that section, s 54(4) sets out mandatory factors the decision-maker is to have regard to, as far as reasonably practicable. Those factors are not exhaustive and, so far as a consideration is relevant to the reasons for a transfer, it is a relevant consideration to a decision regarding transfer.
[51] First, the three matters Mr Hudson raises as irrelevant – consideration of his most recent episode of violence, his lack of engagement with rehabilitation, and his non-genuine need for protective custody – are integrally relevant to various aspects of s 54. For example, s 54 allows prison transfers to assist in rehabilitation and to ensure the safety of the prisoner or other prisoners. The claimed irrelevant factors are indeed relevant to those reasons for transfer, and point away from permitting such a transfer.
[52] Secondly, the fact that Mr Hudson has participated in one rehabilitative course does not overcome the fact that his security classification noted his engagement with rehabilitation at the time was average. Ms O’Connor was justified in assessing his suitability for Tongariro less favourably in that context. It remained
a relevant consideration, and was not a material error of fact.
10 New Zealand Maori Council v Attorney-General [Lands Case] [1987] 1 NZLR 641 (CA) at 678.
11 McGrath v Accident Compensation Corporation [2011] NZSC 77, [2011] 3 NZLR 733 at [31].
[53] Mr Hudson’s need for protective custody was not an irrelevant consideration, but was appropriately coloured by the fact that Mr Hudson has recently been involved in a violent altercation. In the context of needing to ensure the protection of the motivated prisoners already at Tongariro, Mr Hudson’s need for protective custody could not trump the needs of those other prisoners.
[54] Finally, access to family is a mandatory consideration and it is not at all clear that this was considered in the original decision. There is no indication that it was not reasonably practicable to do so. That is, prima facie, a ground for review. It is, however, reasonable to accept Ms O’Connor’s later position that it was treated as a neutral factor in her assessment. Mr Hudson would be only marginally better off with slightly better access to some family members, while being further away from others. It is difficult to see how this factor, even if taken as pointing towards transfer, would outweigh other concerns that point away from such a decision. Although a prima facie ground for review is made out in this regard I decline to exercise my discretion to grant the requested remedy on this basis as while some family resided closer to Tongariro Prison for others, including an aunt in Eketahuna, who was an approved visitor, the travelling distance would be increased.
Ultra vires and unreasonableness
[55] As I indicated during the course of the hearing, Ms O’Connor’s references to Mr Hudson’s use of the prison complaints system is of concern. Prima facie, considering a prisoner’s PC01s could be construed as punishment for making use of one of the few methods of redress available to prisoners. It is understandable that prison officials may view a large number of complaints with circumspection, but in the context of a considerable power imbalance and lack of other options available to prisoners, such circumspection itself needs to be treated very carefully.
[56] Mr Hudson’s PC01 complaints do not reach a level that by themselves would warrant concluding he is overzealous in blaming others for his problems. Requesting the reconsideration of terms used in his security classification review and requesting reasons for certain decisions are matters of legitimate concern, which Mr Hudson raised in a legitimate way. Only the PC01s relating to repeated requests
to be transferred out of Te Waimarie could reasonably be seen as a problematic use of the complaints system, and even then to come to the conclusion that he is blaming others is something of a stretch.
[57] Within that context, considering Mr Hudson’s use of PC01s as a standalone ground for assessing his tendency to blame others is unhelpful. It is certainly troublingly close to punishing Mr Hudson for using the complaints process, contrary to s 152(1)(b) of the Corrections Act 2004.
[58] Nevertheless, it was not a standalone ground, and nor was it the primary reason Ms O’Connor refused the request for transfer. The conclusion regarding Mr Hudson’s “stage of change” was supported by other matters, such as his engagement with rehabilitation and his recent violence. Moreover, in the overall assessment, it is difficult to see how Ms O’Connor’s reference to Mr Hudson’s use of PC01s was determinative of the outcome. Even if it had not been considered, it is highly unlikely that the decision would have been otherwise favourable to Mr Hudson’s request. Accordingly, I decline to exercise my discretion to set the decision aside on this ground.
Breach of natural justice and unfairness
[59] I accept the respondent’s submissions that Taylor does not provide support for Mr Hudson’s claim in respect of the assessment of his risk of escape. That case was specifically concerned with legitimate expectations that the Department of Corrections would follow its own guidelines when preparing security classifications. It was not concerned with ensuring decisions that touch on security concerns would be limited to considering the outcome of that classification.
[60] Tongariro Prison is geared towards offering specific training and rehabilitation programmes. Because of the nature of those programmes and the fact that some include working outside the prison, it has specific requirements of its prisoners, particularly when it comes to security. Undertaking a specific assessment of a potential prisoners escape risk in that context is reasonable, perhaps even expected. With that in mind, Ms O’Connor’s consideration of Mr Hudson’s risk of
escape, distinct from his security classification, cannot be characterised as a breach of natural justice, or unfairness.
Conclusion
[61] Although there are errors that give rise to some legitimate concerns, they cannot be said to be material to the decision at issue in the context of multi-factorial decisions afforded a large measure of discretion. Moreover, that context and lack of materiality points away from exercising the Court’s discretion to grant the requested remedy. The application for judicial review on the grounds of unreasonableness, procedural impropriety, breach of natural justice and unfairness is declined.
[62] Should the respondent wish to make application for costs any memorandum is to be filed within 14 days with the applicant then having seven days to respond.
Churchman J
Solicitors:
Crown Law, Wellington
3
2
0