Isherwood v New Zealand Parole Board

[2022] NZHC 2031

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE

CRI-2022-409-000088

[2022] NZHC 2031

BETWEEN

MAUI GARRY ISHERWOOD

Appellant

AND

NEW ZEALAND PAROLE BOARD

Respondent

Hearing:

28 July 2022

Appearances:

J Tupaea for the Appellant

P A Currie for the Respondent

Judgment:

29 August 2022

JUDGMENT OF NATION J

Introduction

[1]    Maui Isherwood was sentenced to preventive detention by Chisholm J in April 2004 for kidnapping, rape, and administering a class B drug.1 Mr Isherwood was released from prison on 1 September 2020. After a period of good behaviour, he was recalled back to prison first in an interim decision of 16 September 2021 and then with a final recall order of 9 November 2021. Mr Isherwood applied to have the Parole Board’s decision to recall him reviewed. The decision was upheld on review. Mr Isherwood now appeals the Board’s decision.

Factual background

[2]    Mr Isherwood was sentenced to 8 years’ imprisonment in 1999 for administering morphine to a 14-year-old girl, having sex with her and living on her

1      R v Isherwood HC Christchurch CRI-2003-009-8959, 24 April 2004.

ISHERWOOD v NEW ZEALAND PAROLE BOARD [2022] NZHC 2031 [29 August 2022]

earnings as a prostitute. He was then released from prison on parole for 18 months in July 2003. Mr Isherwood had only been on parole for two or three weeks when he further offended and was recalled to prison.

[3]    Mr Isherwood was convicted of 10 charges relating to administering a class B drug, kidnapping, sexual violation by unlawful sexual connection and sexual violation by rape in relation to offending in July 2003. Mr Isherwood and an associate went to a motel with the victim, injected her with drugs and subjected her to a range of violent sexual offending throughout the night. The victim was 18 years old. For this offending, Mr Isherwood was sentenced to preventive detention with a minimum period of imprisonment of 10 years.

[4]    Mr Isherwood remained in prison from July 2003 until he was released on 1 September 2020, after becoming eligible for parole on 21 April 2014.

[5]    When released, Mr Isherwood was subject to standard conditions of parole for life and some special conditions, which were to expire in August 2025. The special conditions included:

(a)   not to have contact with a person under the age of 16, directly or indirectly, without prior written approval of a probation officer;

(b)   to reside at a certain address and not to move without prior written approval of a probation officer;

(c)   to attend any hearing when notified;

(d)   not to communicate with his co-offender without the prior written approval of a probation officer;

(e)   not to have contact with the victim of the offending without the prior written approval of a probation officer;

(f)   not to possess, use or consume alcohol, controlled drugs or psychoactive substances except controlled drugs prescribed by a medical professional;

(g)   to comply with electronic monitoring;

(h)   not to enter any licensed premises under the Sale and Supply of Alcohol Act 2012, except for supermarkets and dairies, without the prior written approval of a probation officer;

(i)   not to communicate or associate, directly or indirectly, with any person known to Mr Isherwood to associate with the Mongrel Mob without the prior written approval of a probation officer;

(j)   to remain at the stated address between the hours of 9 pm and 6 am daily, unless given prior written approval by a probation officer or as permitted under s 33(4) of the Parole Act 2002; and

(k)   to disclose to a probation officer, at the earliest opportunity, the details of any intimate relationship which commences, resumes or terminates.

[6]    When first released, Mr Isherwood appears to have complied with his release conditions. As reported at his Parole Board review on 4 December 2020, Mr Isherwood always reported as required and complied with the special conditions on his parole. He had no unauthorised contact with gang members and, when he accidentally entered licensed premises, he immediately phoned his probation officer to inform them of this. The report noted that he was in a supportive relationship with his then partner. Overall, the probation officer considered he was making good progress in the short time he had been in the community, but there was a concern that he was trying to rush his reintegration. Mr Isherwood requested the removal of his condition not to have contact with children under the age of 16 and to extend his curfew. Taking a cautious approach, the Parole Board considered the non-contact condition should not be varied, but the Board did relax the hours of his curfew so they were from 10 pm until 6 am.

[7]    Mr Isherwood had another progress hearing with the Parole Board on 27 May 2021. The Parole Board thought it appropriate at this time to remove his curfew and the condition to not associate with children under 16 and to not enter licensed premises. The Board noted that the non-contact conditions was imposed because Mr Isherwood’s offending was against younger women and girls. He told the Board he

was living a different lifestyle then and was imbued with a gang mentality. He said he now sees things differently and had kept his distance from the gang.

[8]    One of the factors that led to the recall application that is currently under review was Mr Isherwood’s arrest in September 2021. This related to charges laid by Police for receiving stolen property with a value over $1,000,2 and possessing an offensive weapon.3 On 16 September 2021, Mr Isherwood was found driving a car that had previously been stolen. Its licence plate had been removed and replaced with another car’s licence plate. Mr Isherwood said the vehicle was not his, but he was looking at buying it. When the vehicle was searched, the police found a folding pocket knife and brass knuckle dusters under the front passenger seat. Mr Isherwood denied knowledge of these items.

[9]    There were other incidents before the one in September that Mr Isherwood’s probation officer was made aware of, as detailed in the probation officer’s affidavit. On 8 January 2021, while still subject to a curfew, Mr Isherwood travelled to the address of a known gang member who was on life parole. Mr Isherwood stayed at this address for around two hours. During this time, there were significant incidents of gang violence within the community. Police stopped Mr Isherwood on his way back to Christchurch, and they described his behaviour as apprehensive and edgy. Notably, Mr Isherwood did not mention this to his probation officer until asked about it, which was out of character for him at the time.

[10]   On 10 July 2021, Mr Isherwood was spoken to by Police in the early hours of the morning. He told the Police he was having issues with his car. On 17 July 2021, Mr Isherwood was pulled over by Police. This time there was a female passenger with him, and the police officer took the view that they were in a relationship. When spoken to about this, Mr Isherwood was adamant they were just friends. On 13 August 2021 at around 4 am, Mr Isherwood was spoken to by Police as he appeared to be acting suspiciously. He and an associate were in a parked car on Hills Road.

2      Crimes Act 1961, ss 246 and 247: maximum penalty seven years’ imprisonment.

3      Section 202A(4)(a): maximum penalty three years’ imprisonment.

[11]   On 16 August 2021, concerns were raised by members of Mr Isherwood’s family about his mental health. Mr Isherwood allegedly tried to stab himself but was restrained by friends.

[12]   On 2 September 2021, Mr Isherwood was again stopped by Police around 4.30 am after he was observed speeding. Police gave him a warning as he admitted to breaching the COVID-19 lockdown restrictions. When speaking to his probation officer about this, Mr Isherwood explained he was visiting a friend, but did not mention the Police warning.

[13]   On 16 September 2021, Corrections made an application for recall on the grounds Mr Isherwood posed an undue risk and had committed an offence punishable by imprisonment.

[14]   On 16 September 2021, the Parole Board made an interim recall order for Mr Isherwood on the basis “the offender poses an undue risk to the safety of the community or to a person or class of persons”.

[15]   The application for recall was adjourned at two hearings on 11 October 2021 and 28 October 2021.

[16]   On 9 November 2021, there was a hearing before the Parole Board when the final recall order was made.

[17]   Mr Isherwood was not convicted on the criminal charges he faced at the time of the Parole Board decision. A charge of possession of an offensive weapon was dismissed on 16 December 2021. A charge of receiving stolen property was withdrawn by the Police on 13 April 2022.

[18]   On 1 May 2022, Mr Isherwood made an application under s 67(1) of the Parole Act for review of the Parole Board 9 November 2021 decision. In a decision of 2 May 2022, the Board effectively declined that application.

The Parole Board decisions

[19]   In its decision of 9 November 2021, the Parole Board determined it would make a final recall order because there was undue risk if Mr Isherwood were to be released into the community. In making this decision, the Parole Board considered the following factors:

(a)   There was not a suitable address for Mr Isherwood in the community. Mr Isherwood’s counsel accepted it would be preferable for Mr Isherwood to be released to a residential programme, but there were none available at the time.

(b)   Mr Isherwood and his partner, who had just had a baby, had split up.

(c)   Mr Isherwood was struggling with his mental health and had been engaged with the service offered by Hillmorton Hospital.

(d)   He is facing new allegations of criminal offending. The explanations provided by Mr Isherwood and his associates regarding the night of the alleged offending were implausible. The Parole Board did not accept that Mr Isherwood’s associate owned the car and had asked Mr Isherwood to drive it because the associate did not have a licence. That did not accord with other information before the Parole Board which indicated Mr Isherwood owned the car.

(e)   The Parole Board was also unconvinced by his explanation that he was in Mongrel Mob clothing only because he wore the clothing for comfort and was no longer in the gang.

(f)   As soon as his curfew was removed, he began associating with people in the middle of the night, including in breach of lockdown restrictions.

[20]   The Parole Board issued its review decision under s 67 of the Parole Act on 2 May 2022. The Board noted the application to review its initial decision of 9 November 2021 was almost five months out of time. It said there was no provision that allowed for an extension of time for appeal to be granted, and therefore the application for review could not be considered. The Board went on to say, even if it

had considered the application, it would have declined it. It noted that the Board hearing the application on 9 November was aware the charges remained allegations and recognised the charges had since been dropped. The Board said that:

There were at least five other grounds on which the application was granted and risk was considered undue, including mental health concerns, wearing Mongrel Mob clothing, conduct in the community after the curfew was removed, involving breaching lockdown restrictions and being present with other members of the Mongrel Mob late in the evening, his lack of credibility with respect to explanations relating to the use of vehicles, no release address and a need to strengthen a release proposal to identify residential or other supported accommodation.

Legislation

[21]Section 68 of the Parole Act says:

68 Appeal to High Court against postponement orders, section 107 orders, and final recall orders

(1)   An offender who is subject to a postponement order, an order under section 107, or a final recall order may, within 28 days of the date of the decision on a review under section 67 (or whatever longer time the court permits), appeal to the High Court against the decision on the grounds that the order ought not to have been made.

(2)   No appeal may be made under this section until the decision to make the order has been reviewed under section 67.

(3)   If an offender lodges an appeal, he or she remains subject to the order while the appeal is determined.

(4)   In the case of an appeal against a final recall order, without limiting the matters that the court may consider in determining the appeal, the court must consider the need to protect the community, or any person or class of persons.

[22]   Relevantly, s 69(4A) permits a Judge of the High Court to extend any time allowed for lodging an appeal under s 68.

Application for leave to file an appeal out of time

[23]   On 25 May 2022, Mr Isherwood sought an order extending the time for the lodging of his appeal so that the merits of the appeal, as referred to in submissions, could be considered. Ms Currie for the Crown acknowledged that an appeal could not

have been filed until the Parole Board first dealt with an application to review its decision. Corrections did not oppose the application being dealt with on its merits.

[24]   I accordingly extend the time for Mr Isherwood to lodge his appeal to the date it was filed, although it may not have been necessary to do so.

Submissions

Appellant submissions

[25]   Mr Isherwood’s appeal was made by way of the notice of application for leave to appeal dated 25 May 2022 and counsel’s submissions of the same date.

[26]   In his written submissions, Mr Tupaea advanced the appeal on two grounds. The first was that the Board took into account an irrelevant matter. The second ground was that the Board did not take into account, with reference to the index offending for the sentence of preventive detention, whether Mr Isherwood had been charged with like-for-like offending when he was in the community on parole.

[27]   Mr Tupaea submitted that, in issuing the final recall order, the Board relied on the grounds in s 61(a) (undue risk to the community) and (c) (committed an offence punishable by imprisonment) of the Parole Act. He submitted the Board ought not to have considered s 61(c) of the Parole Act and, in taking that ground into account, had relied on an irrelevant consideration in making its decision. He submitted this was an irrelevant consideration because the Panel Convenor, when granting the interim recall order on 16 September 2021, relied on only one ground, being the ground in s 61(a) (undue risk to the community). Mr Tupaea submitted that was the only ground the Board could properly consider when making its 9 November 2021 recall decision.

[28]   Regarding his second ground of appeal, Mr Tupaea submitted that any likely subsequent offending did not reach the level of Mr Isherwood’s previous offending for which he was subject to preventive detention. In oral submissions before me, Mr Tupaea accepted the Parole Board did not have to find Mr Isherwood had been charged with subsequent like-for-like offending but submitted Mr Isherwood still had to have been charged with offending involving at least a risk of violence.

[29]   Mr Tupaea accepted, if Mr Isherwood had been charged with possession of an offensive weapon, that would have been relevant to an assessment of the risk he posed to the community. However, he submitted the alleged possession was a result of items having been found under a passenger seat of a vehicle Mr Isherwood was driving and the charge was later dismissed.

[30]   Mr Tupaea acknowledged, at the time of the recall hearing, there was some basis for the Crown’s scepticism as to the explanation and supporting affidavits from others that had been provided to the Parole Board to show Mr Isherwood was innocent of the allegations he faced with the charges that were then current. He submitted however that those charges now had to be considered on the basis they had not resulted in convictions.

[31]   Mr Tupaea submitted the alleged offending had not been with an associate of the Mongrel Mob and, while Mr Isherwood was wearing Mongrel Mob clothing, it did not in itself mean there was a safety concern for the community. He submitted this was especially so where the clothing was not visible at the time the Police dealt with Mr Isherwood and Mr Isherwood’s wearing of Mongrel Mob garments was consistent with it being just for his own comfort and because they were clothes he had.

[32]   Mr Tupaea submitted the matters relied on by the Board were insufficient for it to find that Mr Isherwood posed an undue risk to the safety of the community and were more consistent with Mr Isherwood being a risk only to himself. Mr Tupaea submitted the appeal should be allowed and Mr Isherwood should be released on parole on the same conditions as previously imposed.

Respondent submissions

[33]   For the Parole Board, Ms Currie submitted the grounds for the Board’s interim recall order were not limited in the manner submitted for Mr Isherwood but, even if they had been, there would have been no error in the Board considering wider grounds when making the final recall order. She noted the Board has a wide right to take into account whatever information it thinks fit in making its decision. She pointed out that the Board was aware of the charges against Mr Isherwood when it made its interim order and must have taken them into account given the charges were referred to in the

affidavit from the probation officer sworn on 16 September 2021 in support of the recall application.

[34]She also referred to s 69(6) of the Parole Act which states:

The court is not bound to allow the appeal on the ground merely of the improper admission or rejection of evidence unless, in the opinion of the court, a substantive wrong or miscarriage of justice occurred because of it.

[35]   Ms Currie referred in some detail to the information before the Board which she submitted established that the grounds had been established for the making of the final recall order. She referred to the varied grounds the Board relied on in making its decision. She submitted the Board was entitled to have regard to the information before it which explained the circumstances in which Mr Isherwood had been charged with relevant offending. She submitted those charges had not become an irrelevant consideration simply because they had not ultimately resulted in convictions.

[36]   Ms Currie submitted Mr Isherwood had failed to establish that the decision of the Board was wrong.

Principles on appeal

[37]   On appeal, the court must consider the need to protect the community, or any person or any class of person.4

[38]   To issue a final recall order, the Parole Board must be satisfied that one of the grounds in s 61 have been made out, and then it must exercise its discretion to issue a final recall order.5

[39]   Where the appeal is based on whether one of the grounds under s 61 has been made out, the appeal proceeds as a rehearing.6 As outlined by the Supreme Court in Austin, Nichols & Co Inc v Stichting Lodestar, this Court would have to consider the appeal and reach its own view as to whether the Board’s decision was correct, with the

4      Parole Act 2002, s 68(4).

5      Section 66; and Miller v New Zealand Parole Board [2010] NZCA 600 at [128].

6      Leylander v New Zealand Parole Board [2017] NZHC 2996, [2018] NZAR 29 at [15]; and Ericson v New Zealand Parole Board [2019] NZHC 1806 at [22].

onus on the appellant to establish the Board was wrong.7 However, in doing so, this Court is to have regard to the specialist function of the Parole Board and the advantages it has in being able to interview the offender and witness the information first-hand.8

[40]   Where the appeal is against the second stage of analysis, then it is an appeal against discretion. In that case, the appellant must establish that the Board proceeded on a wrong principle, failed to recognise a relevant matter, took into account an irrelevant matter, or were plainly wrong.9

[41]Section 70(2) of the Parole Act provides:

(2)   On an appeal against a final recall order, the court may—

(a)confirm the order; or

(b)quash the order and, unless the offender is liable to be detained under this or any other enactment,—

(i)direct the release of the offender from custody; or

(ii)direct the release of the offender on standard release conditions (in which case the conditions are deemed to have been imposed by the Board), and refer the offender to the Board for consideration of whether to impose any special conditions; or

(c)refer the matter back to the Board with a direction to reconsider and decide the matter, in which case it must—

(i)advise the Board of its reasons for doing so; and

(ii)give the Board any directions that it thinks just concerning any aspect of the reconsideration.

Analysis

[42]   The relevant grounds for recall are set out in s 61 of the Parole Act, and relevantly include:

7      Austin, Nichols & Co Ltd v Stichting Lodestar [2007] NZSC 103, [2008] 2 NZLR 141.

8      Leylander v New Zealand Parole Board, above n 6, at [16], citing Ratima v Parole Board HC Christchurch CRI-2003-409-111, 5 February 2011 at [14].

9      Ericson v New Zealand Parole Board, above n 6, at [22]; and Hart v Parole Board [1999] 3 NZLR 97 (HC) at 100, citing Miers v Waikeria Prison District Parole Board HC Hamilton AP143/95, 14 February 1996 at 3.

(a)   the offender poses an undue risk to the safety of the community of any person or class of persons; or

…

(c)   the offender has committed an offence punishable by imprisonment, whether or not this has resulted in a conviction; or

(d)   in the case of an offender who is subject to residential restrictions,—

…

(ii) a suitable residence in an area in which a residential restriction scheme is operated by the chief executive is no longer available;

…

[43]   One of these grounds must be met for the offender to be recalled to prison. Mr Tupaea contended only s 61(a) is relevant to this assessment, not para (c), because para

(a) was relied upon for the interim recall order.

[44]   There is no indication in the Parole Act that the matters for the Parole Board to consider must be limited on this basis.

[45]Section 62 of the Parole Act sets out the scheme for an interim recall order:

62   Making interim recall order

(1)   On receiving a recall application, the chairperson or any panel convenor must make an interim recall order if he or she is satisfied on reasonable grounds that—

(a)the offender poses an undue risk to the safety of the community or to any person or class of persons; or

(b)the offender is likely to abscond before the determination of the application for recall; or

(c)in the case of an offender who is subject to residential restrictions,—

(i)a suitable residence in an area in which a residential restriction scheme is operated by the chief executive is no longer available; or

(ii)the offender no longer wishes to be subject to residential restrictions.

(2)   When deciding whether to make an interim order in respect of an offender who is currently detained, the chairperson or panel convenor (as the case may be) must make the decision as if the offender were not detained.

[46]   The grounds in s 62 are therefore different and narrower than those in s 61. Notably, s 61(c) is not reflected in s 62. The reason the grounds are different is to reflect the urgent and emergency nature of an interim recall order.10 The Board’s consideration of the application for a final recall order can be more thorough and more wide-ranging. At that point, it is in accordance with the scheme of the Parole Act that the Board be able to consider wider and all grounds relevant to the assessment it has to make.

[47]Consistent with that, s 117 of the Parole Act relevantly says:

117 Information before Board

(1)   In any hearing before the Board, the Board may receive and take into consideration whatever information it thinks fit, whether or not the information would be admissible as evidence in a court of law.

(2)   Information received by the Board may be in a form other than writing, but only if the Board is satisfied that—

(a)the information adds significantly to the written information available to it; and

(b)it will be possible, in relation to that information, to comply with the rule in section 13(1) about making information available to offenders.

[48]Section 69 says:

69 Procedure on appeal against postponement orders, section 107 orders, and final recall orders

…

(5)On an appeal under section 68, the court may receive in evidence anything that the Board could have received at first instance.

(6)The court is not bound to allow the appeal on the ground merely of the improper admission or rejection of evidence unless, in the opinion of the court, a substantive wrong or miscarriage of justice occurred because of it.

[49]   I also note that s 7(2)(c), in the guiding principles section of the Parole Act, provides that decisions must be made on the basis of all the relevant information available to the Parole Board at the time it is making the decision. To hold that a final

10     See Simon France (ed) Adams on Criminal Law (online ed, Thomson Reuters) at [PA62.02A].

recall order cannot be made on a ground that was not raised at the hearing for the interim recall order would be inconsistent with the Parole Board having to make decisions based on the most up-to-date information.

[50]   Section 61 contemplates that, on the hearing of an application for a final recall order, the Parole Board will be able to consider information that has emerged between the making of the interim order and the hearing for the making of a final order. One of the grounds for the making of an interim order is that the person who was released on parole is charged with an offence for which he will be liable for imprisonment. The grounds for recall, as set out in s 61 of the Parole Act, include:

(c)   the offender has committed an offence punishable by imprisonment, whether or not this has resulted in a conviction[.]

That is not a ground on which the Chairperson or any convenor can make an interim recall order under s 62(1) of the Parole Act.

[51]   The “paramount consideration” in decisions relating to release is the safety of the community.11 Section 7(3) provides:

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.

[52]   The risk to the safety of the community is “undue” where it is disproportionate to and outweighs the offender’s personal interest in retaining their liberty.12

[53]   It is not essential to a finding of undue risk that an offender has committed further offending of any sort. The applicant for recall certainly does not have to establish that an offender has offended similar to the index offending for which they were originally sentenced to imprisonment. As was said by the Court of Appeal in Miller v Parole Board:13

11     Parole Act, s 7(1).

12     Forest v New Zealand Parole Board [2013] NZHC 2847 at [27], citing Clarke v New Zealand Parole Board HC Christchurch CRI-2005-409-111, 22 July 2005 at [35].

13     Miller v New Zealand Parole Board, above n 5, at [129].

We are also of the view that there is no need for an applicant for recall to establish particular conduct on the part of the parolee which is similar to the original offending. In this context, the concept of nexus is simply functional. If there is an obvious nexus (eg as there would have been if Mr Carroll had committed sexual offences while on parole), then that is likely to be highly relevant to the public safety assessment and tell in favour of recall. Where there is no obvious nexus in that sense, it may be rather more difficult to establish an undue risk.

[54]   I agree with the submission of Ms Currie that the factors relied on by the Board in its final recall order decision relating to his risk included:

a.     ongoing mental health struggles;

b.     association with Mongrel Mob (being a special condition breach);

c.     new criminal offending alleged;

d.     nightly activities including breaching lockdown restrictions;

e.     implausibility of explanations regarding events of 16 September 2021 relating to the criminal charges;

f.      no suitable approved address; and

g.     release proposal needs to be strengthened to secure supported accommodation.

[55]   Whether those matters, either separately or cumulatively, put the community at undue risk has to be considered against the background of the serious offending which led to the sentence of preventive detention. Those risk factors had been the focus of careful consideration by the Board over a number of years, as had such progress Mr Isherwood made through his involvement in various programmes to reduce the level of risk.

[56]   Mr Isherwood’s association with the Mongrel Mob had been long identified as a serious risk factor. That risk factor was recognised by the Board in making it a special condition of parole that Mr Isherwood was “[n]ot to communicate or associate, directly or indirectly, with any person known to you to associate with the Mongrel Mob unless you have the prior written approval of a Probation Officer”. Mr Isherwood’s acceptance of this was a factor of importance to the Parole Board in its decision to delete conditions as to curfew, not entering licensed premises and not

contacting children under the age of 16 following a second review hearing on 27 May 2021.

[57]   There was ample evidence before the Board to justify its concern that the risk of serious offending had increased through the way Mr Isherwood was associating with others involved with the Mongrel Mob and displaying his allegiance to them.

[58]   There was the evidence of Mr Isherwood travelling to Motueka on 8 January 2021 and being with a known gang member who was on life parole, and Mr Isherwood’s failure to tell his probation officer about this until he was asked about it. Mr Isherwood was arrested on 16 September 2021 when he was driving a vehicle with false plates, was in possession of a significant amount of cash, had a weapon in the vehicle and was wearing clothing that indicated a return to gang association. Police came across Mr Isherwood in a vehicle in Maunsell Street, Woolston, Christchurch. In the vehicle were the knuckle dusters and knife he was charged with having possession of. The vehicle Mr Isherwood was in was a stolen vehicle. The other vehicle was also stolen. The information before the Board was that the person in the other vehicle was a Mongrel Mob associate. In support of Mr Isherwood, this other person had provided an affidavit saying he was the owner of the vehicle Mr Isherwood had been in and the knuckle duster and knife in the vehicle belonged to him. There was a good basis for suggesting the information the other person provided to the Parole Board to assist Mr Isherwood was implausible.

[59]   When Mr Isherwood was searched, he was found to be wearing multiple Mongrel Mob clothing items.

[60]   Mr Isherwood was also stopped in a vehicle on 17 July 2021. He told the officer attending that he is a life parolee and he was no longer in the Mongrel Mob, but the officer noted Mr Isherwood was wearing red shorts and a large gold and silver ring on his right hand similar to those gang members normally wear. There was information supporting the probation officer’s concern of a pattern of Mr Isherwood coming to the attention of the Police with unknown associates (often at early hours of the morning and with no clear reason for being out) in the months before 16 September 2021. The information as to his involvement with the vehicles on 16 September 2021

was consistent with his being involved in illegal activity and being involved with the Mongrel Mob.

[61]   At the hearing on 9 November 2021, Mr Isherwood provided information to support a request that he be released to the Mana Atua recovery home in Auckland. The information provided to the Parole Board was that Mana Atua is an organisation run by the Destiny Church. It is not an institution with which Corrections has a relationship and the programme houses a number of Mongrel Mob members from Hawke’s Bay.

[62]   I have read the Parole Board’s decisions spanning a number of years. These began with a decision of 4 September 2003 when the Board made a recall order after the July 2003 offending committed when Mr Isherwood had been on parole from his earlier sentence of eight years’ imprisonment. From 30 April 2014, there have been a number of Board decisions following its consideration of parole in relation to Mr Isherwood’s sentence of preventive detention. In a decision of 4 September 2019, the Board decided it was time to move on to the reintegrative in-prison phase but, at that time, Mr Isherwood remained an undue risk. On 4 August 2020, the Board decided Mr Isherwood would be released on parole from 1 September 2020. The Board was satisfied that Mr Isherwood had produced a comprehensive release plan and relapse prevention plan. It said, with those plans in place, accommodation with his mother and family in Christchurch, general wraparound support from other family members together with prospects of employment in the building industry, Mr Isherwood no longer represented an undue risk to the community and was ready for release. It is apparent from their decisions that the Board took considerable care in deciding whether Mr Isherwood should be released on parole.

[63]   There were 16 conditions of parole Mr Isherwood had to comply with and which were to be in force for five years from his release date. Compliance with those conditions was obviously important to the Board in ensuring he would not be an undue risk to the safety of the community. The Board monitored his compliance with his conditions of parole. It was apparent from their decisions that Mr Isherwood’s mental health, his positive psychological state as reported on in a psychologist’s report of 6 July 2020, and the support he had from a relationship were important to the Parole

Board in continuing to support his parole and, on 27 May 2021, agreeing to amend some of his special conditions.

[64]   The Board considered the application for recall at a meeting on 28 October 2021. Ms Currie then sought the making of a final order, but the Board adjourned the application because its primary concern was with Mr Isherwood’s risk rather than just the circumstances of the charges which led to the interim recall.

[65]   It is clear from the Board’s decision of 9 November 2021 that it was concerned that crucial aspects of the support, which had been of importance to the Board in earlier deciding that Mr Isherwood was no longer an undue risk to the community, were no longer working out for him. He did not have an appropriate address to be released to. Mr Isherwood’s supporters, as well as Corrections, were of the view that he required more intensive support to assist with his transition back into the community.

[66]   In contrast to the positive reports as to his mental health and psychological state at the time of his release, his mental health had deteriorated. Mr Isherwood confirmed this when he discussed those matters with the Board at the hearing. The Board noted the circumstances in which he had been found in the middle of the night away from his address and the occasion on which he was found to be driving a stolen vehicle. It noted he had said he went out at night to escape issues that had arisen for him at home and he had split up with his partner.14 It also noted Mr Isherwood had acknowledged that on two or three occasions he had been found by the Police away from his address in the middle of the night when he was with other people. The Board noted he had returned to wearing clothing associated with the Mongrel Mob gang.

[67]   The Board summarised their reasons for making a final order for Mr Isherwood’s recall. I find that those reasons justified the Board in deciding there had been a change in Mr Isherwood’s personal circumstances, his mental health, the support that would be available to him in the community and his willingness to

14 Mr Tupaea responsibly informed the Court that Mr Isherwood’s partner had obtained a temporary protection order against Mr Isherwood as a result of incidents that had occurred in their relationship while Mr Isherwood was on parole. He said the protection order was based on allegations as to threats of violence but primarily of psychological abuse. He was still to obtain instructions from Mr Isherwood as to how he wished to respond to that application and the making of that temporary protection order.

associate with people who put him at risk of further offending. I am satisfied this meant there could no longer be the confidence that his level of risk was at the level it had been when the Board decided to release him on parole in August 2020.

[68]   I find there was no error in the Parole Board deciding in November 2021 that there would be an undue risk to the safety of the community if Mr Isherwood were released on parole.

[69]   If all the information the Board had as to his circumstances at that time had not been sufficient to establish he was then an undue risk, the Board would still have been justified in making a final order for recall in terms of s 61(d) of the Parole Act. This was because, at that time, there was no approved residence available in the community to which Mr Isherwood could be safely released on parole.

[70]   It had been a condition of parole that Mr Isherwood live at a specified address with his mother. At the time of the Parole Board’s final decision this was no longer an approved address and Mr Isherwood, through his counsel, did not put this forward as an available address.

Conclusion

[71]   Accordingly, the time for Mr Isherwood to appeal has been extended. His appeal is dismissed.

Solicitors:

J Tupaea, Barrister, Christchurch

Raymond Donnelly & Co., Christchurch.