Kerr v New Zealand Parole Board
[2014] NZHC 1473
•27 June 2014
IN THE HIGH COURT OF NEW ZEALAND WHANGAREI REGISTRY
CIV-2014-488-23 [2014] NZHC 1473
UNDER the Judicature Amendment Act 1972, New
Zealand Bill of Rights Act 1990 and the
Parole Act 2002IN THE MATTER
of an application for judicial review
BETWEEN
SIMON ALLEN KERR Plaintiff
AND
NEW ZEALAND PAROLE BOARD Defendant
Hearing: 24 June 2014 Counsel:
Appearance:
MB Smith, amicus curiae
SA Kerr, plaintiff in person
Judgment:
27 June 2014
JUDGMENT OF FAIRE J
This judgment was delivered by me on 27June 2014 at 1:30pm pursuant to Rule 11.5 of the High Court Rules.
Registrar/Deputy Registrar
Date……………
Solicitors: Marsden Woods Inskip & Smith, Whangarei
And To: SA Kerr, Whangarei
VJ Owen, Wellington
Kerr v New Zealand Parole Board [2014] NZHC 1473 [27 June 2014]
[1] The plaintiff applies for a judicial review of the Parole Board decision dated
2 December 2013. The Board concluded that Mr Kerr did not meet the statutory requirements for release. It found that he is an undue risk to the safety of the community.1 The decision to deny Mr Kerr parole was upheld on review.2
[2] Mr Kerr is serving a sentence of six years and six months’ on four charges of burglary in which a large amount of cash and property were taken. The sentence expiry date is 23 February 2018. He has been described as a recidivist career burglar with one hundred and forty five convictions. On 8 October 2013 he appeared for his first consideration of parole. At that stage he was engaged in the Māori therapeutic programme and requested an adjournment until December 2013. He wished to complete that programme and be better placed to put his case for parole.
[3] The October Board, when granting the adjournment, made its decision clear to Mr Kerr. It referred to his history and length of time until his sentence expiry date. It warned him that he faced a challenge to persuade a Board that his level of risk would be reduced sufficiently for parole to be a realistic prospect.
[4] This hearing was set by Heath J in a minute issued on 15 April 2014. His Honour’s minute confirmed the appointment of MB Smith as amicus curiae. The minute then gave directions to ensure that the application was ready for hearing, including directions for the filing of submissions and a paginated bundle that comprised a record of the proceedings before the Parole Board, plus relevant decisions. Mr Kerr has prepared these proceedings himself. The current application proceeds based on an amended statement of claim which was filed on 2 April 2014. Mr Kerr advised the Case Officer who has responsibility for the file that he did not wish to make further submissions.
[5] I extract from Mr Kerr’s amended statement of claim that the grounds he
advances in support of his application in summary are as follows:
1 Re Kerr (New Zealand Parole Board) 2 December 2013.
2 Re Kerr (New Zealand Parole Board) 13 December 2013.
(a) The Board failed to take into account a relevant consideration being his response to a criminogenic programme.
(b)the Board ruled that he was not eligible for parole for twelve months from the December decision which is an error of law;
(c) the Board’s transcript of the hearing was not fully recorded and is incomplete;
(d)the Board breached its obligation to give him a fair hearing and is in breach of s 27(1) of the New Zealand Bill of Rights Act 1990;
(e) the Board failed to accept submissions presented by both Corrections and Probation to the effect that his proposed accommodation was suitable. In finding that the accommodation was unsuitable the Board’s decision was unreasonable and failed to take account of relevant considerations;
(f) the Board failed to allow him to open his submissions with a mihi;
(g)the Board did not allow his support people to speak. The failure to accept relevant evidence is an error of law;
(h)the Board focussed unfairly on his past. I assume that what is intended here is a complaint that the Board took into account an irrelevant consideration and/or its decision was accordingly unreasonable.
Mr Kerr’s amended statement of claim is the only written statement of his case.
[6] I adopt, for the purpose of this application, the summary of the scope of judicial review in relation to Parole Board decisions contained in the judgment of
Gendall J as follows:3
[13] It is well known that the scope for judicial review of decisions of the Parole Board is narrow. The Court can only make an assessment of whether a Board's decision was lawful, that a decision was open to it. Challenge may only be on the usual judicial review principles, namely that the Board acted unlawfully because it failed to take into account all relevant considerations, took into account irrelevant considerations, that it arrived at its decision in breach of the principles of natural justice, or that its decision was so unreasonable as to be reviewable.
[14] The Courts do not and cannot sit as appellate bodies from decisions lawfully made by the Board and the Court cannot exercise a jurisdiction which by law is vested in the Parole Board. The recent Court of Appeal decision in Miller v New Zealand Parole Board made this clear when dismissing broad challenges to the parole regime based upon domestic and international human rights instruments. The assessment whether the decision was lawful or not cannot be taken as an opportunity to revisit the application for parole. It is not necessary to review in any detail how the parole system worked this having been discussed at length in Miller and other cases, including A(Victim) v New Zealand Parole Board where Simon France J provided a general overview of how parole works. There is no general entitlement to parole and s 28(1AA) and (2) of the Parole Act 2002 makes it clear that an applicant may only be released if the Board is:
“satisfied on reasonable grounds that the offender … will not pose an undue risk to the safety of the community or any person … ”
[15] The further relevant statutory background is contained in s 7 of the
Act. This sets out the guiding principles. These are described as:
7 Guiding principles
(1) When making decisions about, or in any way relating to, the release of an offender, the paramount consideration for the Board in every case is the safety of the community.
(2) Other principles that must guide the Board's decisions are—
(a) that offenders must not be detained any longer than is consistent with the safety of the community, and that they must not be subject to release conditions … that are more onerous, or last longer, than is consistent with the safety of the community; and
3 Ericson v New Zealand Parole Board HC Wellington CIV-2010-485-1912, 2 March 2011 at
[13]–[15].
(b) that offenders must, subject to any of sections 13 to
13AE, be provided with information about decisions that concern them, and be advised how they may
participate in decision-making that directly concerns
them; and
(c) that decisions must be made on the basis of all the relevant information that is available to the Board at the time; and
(d) that the rights of victims (as defined in section 4 of the Victims’ Rights Act 2002) are upheld, and submissions by victims (as so defined) and any restorative justice outcomes are given due weight.
(3) When any person is required under this Part to assess whether an offender poses an undue risk, the person must consider both—
(a) the likelihood of further offending; and
(b) the nature and seriousness of any likely subsequent offending.
[7] I include also the succinct summary of how the parole system works from the judgment of Simon France J.4
[2] It is generally understood that the stated length of a sentence imposed by a Court does not ordinarily reflect the amount of actual jail time an offender will serve. It is possible that a person may serve the whole sentence, but under the various legislative schemes that applied in New Zealand over the last few decades, that was comparatively rare.
[3] A sentence can be viewed as having two components:
a)the penal or punishment part, which represents the amount of time that must be served as “just deserts” for the offending. Once an offender has served this part of a sentence he or she becomes “parole eligible”; whether they are released is up to the Parole Board;
b)the balance of the sentence, which represents the period from parole
eligibility date to the last day of the sentence. This portion might be served if it is assessed by the Parole Board to be inappropriate, or unsafe, to release the prisoner following completion of the punishment component.
[4] It has always been the case that Parliament says how much the punishment part of a sentence will be. It does that by setting a basic
4 A(Victim) v New Zealand Parole Board [2008] NZAR 703 (HC).
rule applicable to all sentences. Over the years that rule has changed but the amounts have been either 1/3, 1/2 or 2/3 of a sentence.
[8] I deal with each ground advanced in Mr Kerr’s amended statement of claim.
The plaintiff ’s response to crimiogenic programme
[9] This is a matter that Mr Kerr is very concerned about. He advised me that his outlook on life had changed and that he wished to leave his criminal past behind him. He frankly acknowledged that what was required was independent verification that he had literally turned over a new leaf. An assessment of his performance in the programmes, he submitted, provided at least some basis for that independent verification of his change of attitude. His concern is that without that material being before the Parole Board he could not properly advance his case.
[10] Mr Smith acknowledged that the final report of the Māori therapeutic programme was not before the Parole Board on 2 December 2013. In addition, he accepted that it was not clear whether the Board had the final report of the Tikanga Māori programme before it on 2 December 2013.
[11] Mr Smith drew attention to the fact that the Board had before it the following information:
(a) A full parole assessment report dated 28 August 2003;
(b)The plaintiff’s request to adjourn the 8 October 2013 hearing so that completion of the Māori therapeutic programme could be considered;
(c) The second and subsequent parole assessment report dated 11
November 2013;
(d) The plaintiff’s oral submissions.
[12] What I am required to determine is, even if the final reports were relevant and available to the Board at the time, would the Board have declined parole but for having failed to consider the final reports.5
[13] It is noteworthy that the Board made a positive finding in the plaintiff’s
favour when it said:6
He has done well so far in prison having completed the Māori therapeutic programme and the Tikanga Māori programme.
It therefore seems that credit was given to the plaintiff without needing to consider the final reports.
[14] Despite recording positive findings in favour of the plaintiff’s position, the Board understandably had considerable reservations about the future risk he posed given his past history. Clearly the history cannot be ignored. The Board clearly did not close its mind to reassessment of the position because it pointed out that there was much work for him to do in terms of rehabilitation and reintegration steps before a Parole Board would be satisfied that he was entitled to the privilege of release into the community.
[15] Mr Smith submitted that, in these circumstances, the ‘but for’ test is not met. That is a proper and appropriate submission to make in the circumstances. What weight the decision maker gives to relevant information is for the decision maker. It is not appropriate for me to substitute a view of what the Parole Board should have assessed as undue risk. On the material available to the Board it was open to it to reach the conclusion it did.
Eligibility for future parole
[16] The parole hearing was originally set down for 8 October 2013. The plaintiff requested that it be adjourned until 2 December 2013. In its decision on 2 December
2013 the Board made the comment that the plaintiff would “be seen in the statutory
5 Poananga v State Services Commission [1985] 2 NZLR 385 (CA); Attorney-General v Ireland
[2002] 2 NZLR 222 (CA).
6 Re Kerr (New Zealand Parole Board) 2 December 2013, above n 1 at [3].
cycle of 12 months”.7 The plaintiff submits that the Board ought to have backdated the 12 month cycle by reference to the original hearing date.
[17] Mr Smith raised, as the first issue, whether the reference by the Board to the statutory cycle of 12 months is a reviewable decision. He submitted that it appears to be an observation based upon the Board’s understanding of the statutory regime as it is applied when parole is declined. He submitted, therefore, that the Board’s observation is not a decision to decline any request to consider parole within 12 months of its decision.
[18] There is much force in that submission. However, it is not necessary to determine the matter based on that conclusion. The 12-month statutory period required by s 21 of the Parole Act 2002 is expressed to be from after the offender’s last parole hearing. In this case, that is 2 December 2013. I find that there is no reviewable error based on this ground.
The transcript of the hearing
[19] The record does indicate that the audio recording appears to have been incomplete at the start of the hearing. Mr Smith drew attention to the fact that there is no legislative requirement that evidence or information received by the Board must be recorded. He also drew attention to s 49(2) of the Parole Act 2002, which allows the Board to conduct hearings as it thinks appropriate.
[20] I can find no reviewable ground based on this ground.
The alleged failure to give a fair hearing
[21] The plaintiff claims a breach of s 27(1) of the New Zealand Bill of Rights Act
1990 and his right to have a fair and informed hearing. Mr Smith correctly submits that whether the principles of natural justice have been applied by the Board must be measured against the rights, obligations, interests and discretions provided by the
Parole Act.
7 Re Kerr (New Zealand Parole Board) 2 December 2013, above n 1 at [7].
[22] The plaintiff’s interest is to have his parole application fairly considered. Here the Board has observed the principles of natural justice. It has given proper consideration to relevant information. It has allowed the plaintiff the opportunity to be heard. I find that there is no reviewable basis based on this ground.
Alleged failure to accept submissions in relation to suitable accommodation
[23] There is the passage in the parole assessment report which provides:8
Ms Grant stated that she was aware that the police were after Mr Kerr prior to his arrest. Ms Grant admitted that it was wrong of her not to encourage Mr Kerr to hand himself in.
[24] That provides ample justification for the statement in paragraph 5 of the
Board’s decision of 2 December 2013 as follows:9
His proposed accommodation is with his partner. But this is reported as unsuitable because what is said to be her collusiveness during the time that Mr Kerr had absconded before his eventual capture in 2011.
[25] Mr Smith drew attention to the fact that the Board had other information pertaining to risk before it. The plaintiff’s criminal record, his history of avoiding arrest, poor compliance with previous parole conditions and his sentence end-date were all appropriate factors.
[26] The plaintiff’s assertion that the relevant agencies unanimously supported the accommodation proposal is contradicted by both assessment reports. They indicated that community probation was unable to support the proposed address due to problems with GPS monitoring.
[27] The question here is whether the decision is so untenable that it amounts to an issue of law. The test is that of Lord Radcliffe in Edwards v Bairstow:10
An ultimate conclusion of a fact-finding body can sometimes be so insupportable – so clearly untenable – as to amount to an error of law; proper application of the law requires a different answer. That will be the position
8 Appendix 1, detailed information about the suitability of residential restrictions for Kerr, Simon
Allen at DNRCF on 7 October 2013.
9 Re Kerr (New Zealand Parole Board) 2 December 2013, above n 1 at [5].
10 Edwards v Bairstow [1956] AC 14, [1955] All ER 48 (HL) as adopted by the New Zealand
Supreme Court in Bryson v Three Foot Six Ltd [2005] NZSC 34, [2005] 3 NZLR 721 at [26].
only in the rare case in which there has been, in the well-known words of Lord Radcliffe in Edwards v Bairstow, a state of affairs "in which there is no evidence to support the determination" or "one in which the evidence is inconsistent with and contradictory of the determination" or "one in which the true and only reasonable conclusion contradicts the determination" Lord Radcliffe preferred the last of these three phrases but he said that each propounded the same test.
[28] Mr Smith correctly submitted that the evidence before the Board at the time it made its decision, including the collusiveness of the plaintiff ’s partner and the problems with GPS monitoring, were not so inconsistent and contrary to the determination to be fully untenable. This provides no reviewable ground in respect of the Board’s decision.
Failure to allow mihi at opening
[29] The plaintiff claims that his cultural right to open his submission with a mihi was denied to him. Mr Smith drew attention to the fact that this was considered in the review decision where the following observation is made:11
This Panel Convenor has listened to the audio recording of the hearing. It is incomplete at the start and it is not possible to assess the opportunity for mihi. However, the questioning was led by a Māori Parole Board member who is known to be meticulous in her observation of tikanga. In any event this point, on its own, could not found a successful review application.
[30] Mr Smith observed that the Parole Act 2002 does not expressly provide for a mihi. What is significant in this case is that the Board expressly invited the plaintiff to freely and frankly speak at least twice. There is nothing in s 49 of the Parole Act
2002 which sets out the manner in which the hearings are to be conducted which would justify a review of the Parole Board decision on this ground in this case.
Failure to allow support people to speak
[31] The Board’s decision records:12
Mr Kerr … has the support of his partner and extended family who are here today. The Board did not consider it necessary to hear the supporters speak today given the extensive submissions made by Mr Kerr, but acknowledge that they support him.
11 Review decision of Allan Ritchie, Panel Convenor, RNZPB at [10].
12 RNZPB 15.
support network. Section 28(2) requires the Board to have regard to the support and supervision available to the offender following release in its assessment risk. Section 49(2)(b) empowers the Board to determine who may speak.
[33] The Board has had regard to the support available to the offender. The Board acknowledged the support of the offender’s partner and extended family. Once again, the Board was entitled to conclude that his position would not be enhanced by further oral evidence from the supporters who attended the parole hearing. That their support was a positive position supporting his application was acknowledged by the Board. It is difficult to see how any further information from them could possibly have led to a change in the decision reached by the Board.
Undue focus on plaintiff ’s past
[34] The plaintiff’s claim is that the Board unfairly focussed upon the plaintiff’s past. Section 7(2)(c) of the Parole Act 2002 requires the Board to be guided by the principle that decisions must be made on the basis of all the relevant information that is available to the Board. The Board must consider, in the assessment of undue risk, the likelihood of further offending and the nature and seriousness of any likely subsequent offending.
[35] Mr Smith submitted that relevant information would include that pertaining to the plaintiff’s criminal record, including the seriousness of the index offences, the history of avoiding arrest and poor compliance with previous parole conditions.
[36] As already recorded in this judgment, what weight is afforded to relevant information is for the decision maker. This ground does not form a basis for a review of the Parole Board’s decision.
[37] When I stand back and consider the analysis just carried out I conclude that none of the matters pleaded in the plaintiff ’s amended statement of claim separately or taken together justify an order granting judicial review and directing a rehearing of Mr Kerr’s parole application.
JA Faire J