Knighton v New Zealand Parole Board

[2012] NZHC 3014

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

CRI 2012-009-000084 [2012] NZHC 3014

UNDER  Section 68 of the Parole Act 2002

BETWEEN  BEVAN KNIGHTON Appellant

ANDNEW ZEALAND PAROLE BOARD OF NEW ZEALAND

Respondent

Hearing:         7 November 2012

Counsel:         A McKenzie for the Appellant

K Bicknell for the Respondent

Judgment:      13 November 2012

[RESERVED] JUDGMENT OF WYLIE J

This judgment was delivered by Justice Wylie on 13 November 2012 at 4.30 pm

Pursuant to r 11.5 of the High Court Rules

Registrar/Deputy Registrar

Date:

Distribution:

A McKenzie:  [email protected]

K Bicknell: [email protected]

KNIGHTON V NEW ZEALAND PAROLE BOARD OF NEW ZEALAND HC CHCH CRI 2012-009-000084 [13 November 2012]

Introduction

[1]      The appellant, Mr Knighton, appeals against a final recall order made by the Parole Board on  18 July 2012.   The  appeal is  brought pursuant  to s  68 of the Parole Act 2002.   He asserts that the Board took into account irrelevant matters, failed to take into account relevant matters and that its decision was plainly wrong.

Background

[2]      Mr Knighton is 28 years old.  On 15 September 2005, he was sentenced to eight years’ imprisonment for unlawful sexual connection with a child under 12.  He was also sentenced to three  years’ imprisonment, to be served concurrently, for indecently assaulting the child.   A minimum non-parole period of four years was imposed and Mr Knighton became eligible for parole as from 15 September 2009. His sentence end date is 14 September 2013.

[3]      Mr Knighton  was initially released  on  parole  on  1  November 2010.    In addition to the standard release conditions, various special conditions were imposed. Relevantly, they provided that Mr Knighton was not to contact or associate with any person under 16 years of age unless an informed adult over the age of 18 years previously approved in writing by a probation officer was also present.  Further, he had to attend and complete the STOP programme or appropriate individual psychological counselling to the satisfaction of the probation officer and programme provider.

[4]      On 20 May 2011, an application was made for an interim recall order under s 62(1) of the Parole Act.  In an affidavit filed in support of the application, a senior probation officer deposed that Mr Knighton had been found in the company of two young boys aged 13 and 14 years, without an approved adult present.  The Board made an interim order.   The application for a final recall order was heard by the Board on 9 June 2011.  It made the order.  It was satisfied that Mr Knighton posed an undue risk to the safety of the community, or to a person or class of persons.

[5]      On 14 September 2011, Mr Knighton was again released on parole.   The Parole Board again imposed special conditions.  They were substantially the same as the special conditions noted above. Again, there was an application for recall, which was granted on an interim basis on 22 December 2011.   The affidavit in support asserted that Mr Knighton had been found at the home of a woman, together with her two-year old daughter.  Mr Knighton denied that there was any breach.  He asserted that the daughter was not present when he initially went to the address, and that she had been dropped off at home unexpectedly.  He also stated that when the daughter arrived at the house, he left the property.  The matter proceeded to hearing before the Board,  and  on  11  January  2012,  it  refused  to  grant  the  application  for  recall. Mr Knighton was again released on parole.

[6]      There was a further interim recall application made on 27 June 2012.  The application asserted that Mr Knighton had failed to attend and complete the STOP programme on a regular basis.  In an accompanying affidavit, the probation officer deposed  that  on  22  May  2012,  a  review  was  held  at  STOP’s  premises  with Mr Knighton’s  parents,  Child,  Youth  and  Family  representative,  Mr  Knighton’s probation officer and STOP facilitators.  It was asserted that when Mr Knighton was asked questions in regard to his offending behaviour, he became agitated, chose not to answer and refused to make any eye contact with the STOP facilitators.  It was further  asserted  that  Mr Knighton  had  failed  to  accurately  disclose  information regarding his treatment to his support people and his probation officer.   It was alleged that the behaviour demonstrated a level of dishonesty on his part, and that he had failed to make proper progress on the programme.  It recorded that Mr Knighton had been suspended from STOP.  It was also deposed that a further meeting was held on 27 June 2012, and that STOP representatives stated that they believed Mr Knighton’s engagement with the programme was superficial, that he had been dishonest with all agencies involved and that he was not motivated to address his offending.   Mr Knighton was told that he would not be accepted back into the programme.  Mr Knighton was therefore unable to comply with the special condition requiring him to undertake and complete the STOP programme.  In the affidavit, it was asserted that Mr Knighton was therefore an untreated sex offender and that that increased the risk he posed to the community.   The following statement was also contained in the affidavit:

Of   note   is  that   Christchurch   Police   have   received   information  that [Mr Knighton] had been seen parked, on more than one occasion, outside a primary school.  Police have not laid any charges with regard to this but are currently investigating the matter.

[7]      The Parole Board made an interim recall order on 27 June 2012 and a final recall order on 18 July 2012.   Relevantly, the Board stated in its written recall decision of 18 July 2012 as follows:

Section 66(1) invests the Board with the discretion to recall Mr Knighton if satisfied on reasonable grounds any ground for recall has been established. As indicated, the Board is satisfied this is the case.

In terms of its discretion, the Board takes particular note of the following; firstly, Mr Knighton’s serious sexual offending involving a young female; secondly,  his  insufficiently  addressed  risk  of  further  sexual  offending; thirdly,  his  questionable  motivation  for  further  intervention;  fourthly, plausible indications of an enduring perverse interest in young children; and, crucially, the extent to which such a perverse interest compromises public safety.

Notice of appeal

[8]      Mr Knighton filed a notice of appeal in this Court, dated 25 July 2012.  He asserted that the Board took into account irrelevant matters, including “plausible indications of an enduring perverse interest in young children”, where such allegations were not the subject of any direct evidence.  Further, he asserted that the Board failed to take into account relevant matters, including:

(a)       his strict compliance with his reporting conditions; (b)           the absence of any further offending;

(c)      his  willingness  to  comply  with  any  further  parole  conditions, including in relation to further assessment and treatment and not to go near any school.

[9]      Section 68(2) of the Parole Act precludes an  appeal being heard until  a review is conducted under s 67 of the Act.  Accordingly, the appeal was treated as being an application for review pursuant to s 67(3)(b).

[10]     The application for review was heard by Justice Frater, as Panel Convenor. The Review Panel’s decision issued on 14 September 2012.   The Panel found no error in the Parole Board’s approach.   It considered that the decision about undue risk was based solely on Mr Knighton’s failure to complete the STOP programme. Frater J noted that Mr Knighton had been subject to three recall applications since his release in December 2010, all of which involved allegations of association with under-aged children, both boys and girls.   She observed that while the Board had accepted the most recent allegations as unproven, it was not bound to disregard them in the exercise of its recall discretion.  Further, she did not consider that the Board had failed to take into account relevant considerations and that compliance with conditions, family support and willingness to complete further psychological assessment in the community were irrelevant.  The review resulted in the decision of the Parole Board being confirmed on 14 September 2012.

Approach to Appeals under s 68

[11]     The appeal is brought pursuant to s 68 of the Parole Act 2002.  Relevantly, it provides as follows:

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

(1)      An offender who is subject to… 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.

[12]   Section 69(4) provides that, subject to s 69, and with any necessary modifications, ss 119, 120, 123, 129, 130, 133, 134, 136 and 143 of the Summary

Proceedings Act 1957 apply to an appeal under s 68 as if the order appealed against were an order made by a District Court Judge.

[13]     Section  119(1)  of  the  Summary  Proceedings Act  1957  provides  that  all general appeals are by way of rehearing.

[14]     The appropriate approach to appeals under s 68 has been discussed in a number of authorities, including Ratima v New Zealand Parole Board.[1]   In that case, Panckhurst J summarised the appropriate approach as follows:[2]

[1] Ratima v New Zealand Parole Board HC Christchurch CRI 2003-409-000111, 5 February

[2] Ratima,v New Zealand Parole Board, above n 1, at [14].

The important points are these:

(a)       although a general appeal by way of rehearing is ordained, an onus remains upon the appellant to satisfy this court that the decision of the Board was wrong,

(b)       where the appeal is properly to be categorised as one against the exercise of a judicial discretion (as in postponement and final  recall  orders)  the  appellant  must  establish  that  the Board proceeded on a wrong principle, failed to recognise a relevant matter or brought to account an irrelevant one, or that its decision was clearly wrong[.]

[15]     In Austin, Nichols & Co Inc Stichting Lodestar,[3] the Supreme Court reviewed the proper approach to appeals by way of rehearing.  The Court held that where an appeal is by way of rehearing, it is not appropriate for the appellate Court to defer to the Tribunal from whose decision the appeal arises on matters of fact, or the weight to be attached to the evidence.   Rather, the appellate Court must make its own decision, according such weight to the Tribunal’s conclusions as it sees fit.   The appellate Court can have regard to any specialist expertise possessed by the Tribunal whose decision is under appeal, and to any advantage the Tribunal may have gained from the opportunity to observe the witnesses firsthand.

[3] Austin, Nichols & Co Inc Stichting Lodestar [2007] NZSC 103, [2008] 2 NZLR 141.

[16]     There is no inconsistency between the approach discussed by Pankhurst J in

Ratima, and that endorsed by the Supreme Court in Austin, Nichols.

[17]     Both counsel also accepted that, although it is the Board’s decision which is under consideration on the appeal, the decision given by the Review Panel can also to be taken into account.[4]

Analysis

[4] Vincent v New Zealand Parole Board, above n 1, at [25].

[18]     The   Parole   Act   provides   that   the   paramount   consideration   for   the Parole Board in every case is the safety of the community.[5]   Further, on any appeal, this Court must also consider the need to protect the community.[6]

[5] Parole Act 2002, s 7(1).

[6] Section 68(4).

[19]     The grounds for recall are set out in s 61 of the Act.  It provides as follows:

61       Grounds for recall

The grounds for recall are that—

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

(b        the offender has breached his or her release conditions; 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,—

(i)       the offender is jeopardising the safety of any person at his or her residence; or

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

(iii)    the offender no longer wishes to be subject to residential restrictions; or

(e)  in the case of an offender who is subject to a special condition that requires his or her attendance at a residential programme,—

(i)       the offender is jeopardising the safety of any person at the residence, or the order or security of the residence; or

(ii)      the offender has failed to remain at the residence for the duration of the programme; or

(iii)      the   programme   has   ceased   to   operate,   or   the offender's participation in it has been terminated for any reason.

[20]     In practice, the apparent breadth of this provision has been constrained by the Courts.   The Court of Appeal in Miller v New Zealand Parole Board,[7]  noted as follows:[8]

[7] Miller v New Zealand Parole Board [2010] NZCA 600.

[8] Ibid, at [129].

Given   the   overall   scheme   of   the   2002   Act   and   the   human   rights jurisprudence as to arbitrariness of detention, we conclude that the discretion under s 66 to make a final recall order ought only to be exercised where public safety is in issue.  Where the ground specified in s 61(a) is made out, the Board will necessarily be satisfied that the offender poses an undue risk to public safety.  The same is likely also to be true in respect of s 61(d)(i) and (e)(i).   The issue arises more acutely in relation to the other grounds provided for in s 61.  We are of the view that when those grounds are made out, the Board should address public safety directly.   If the Board, having done so, is of the view that further detention of the offender is not required for purposes of consistency with the public safety of the community (cf s

7(2)(a))  and is  satisfied that  the  offender  can  remain  in  the community without posing an undue risk to public safety (cf s 28(2)), the discretion to

recall should not be exercised.  In putting the test in this slightly awkward and labourious way, we are trying to ensure an approach which is aligned as

closely as possible to the statutory language.  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…  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.

[21]     I approach the appeal by reference to these observations.

[22]     In  the  present  case,  the  application  for  final  recall  was  founded  on  the assertions,  first,  that  Mr  Knighton  posed  an  undue  risk  to  the  safety  of  the community and secondly, that he had breached his release conditions.   The Board recorded that it was satisfied that both grounds for the application were made out; it considered that reasonable grounds for recall had been established under s 66(1).  It expressly referred to the evidence that Mr Knighton had been released on parole on

14 September 2011 on standard and special conditions that required, amongst other

things,   that   he   attend   and   complete   the   STOP   programme   or   appropriate

psychological counselling.  It referred to the fact that he had been discharged from the  STOP  programme  given  his  unsatisfactory  response  to  the  programme  on

27 June 2012 and that he was not a candidate for reconsideration.  It also referred to evidence that the police had received reliable reports that Mr Knighton had been seen with a young boy some four or five times, including in a public park, and that he had also been seen parked outside a primary school on two occasions.  It noted that Mr Knighton had previously been recalled to prison for unauthorised contact with under 16 year olds and that his index offending involved sexual offending against an 11 year-old girl.

[23]     Mr McKenzie, appearing for Mr Knighton, referred to s 7(2)(a) in the Act.  It provides that an offender must not be detained for any longer than is consistent with the safety of the community and that he or she must not be subject to release conditions that are more onerous or last longer than is consistent with the safety of the community.  He emphasised that issues in relation to liberty are invoked and that this Court on appeal must guard against a “lowering of the bar” when it is dealing with appeals from decisions of the Parole Board.

[24]     I now consider whether the grounds for appeal made out in this case.

[25]     I  do  not  consider  that  it  can  be  said  that  the  Board  erred  in  principle. Mr Knighton has been convicted of serious sexual offending against a young female. He was released on parole subject to a condition that he undertake the STOP programme.      Presumably,   this   condition   was   imposed   to   address   the   risk Mr Knighton  might  otherwise  pose  to  the  community.    Mr  Knighton  did  not satisfactorily engage with the programme.  He did not complete it and he has been removed from it.   There can be no doubt that Mr Knighton breached his release condition in this regard.  As a result, he remains an untreated sex offender.  This is relevant to the issue of whether or not Mr Knighton posed an undue risk to the community.

[26]   Mr McKenzie submitted that Mr Knighton had partially completed the programme, and that such risk as he posed must therefore have been mitigated.

[27]     There was however no evidence to support this assertion, and I note the comments made by Frater J in the review decision.  She noted that research from two major studies indicates that sexual offenders who do not complete their treatment are more likely to reoffend than those who do.

[28]     In any event, the Board did not say that Mr Knighton’s risk of reoffending must necessarily have increased as a result of his failure to complete the STOP programme.  Rather, it found that the grounds for making the final recall order had been made out.   The Board in effect considered that Mr Knighton was not appropriately addressing his sexual offending and that his motivation was questionable.  It concluded that the risk posed by Mr Knighton as an untreated sex offender was undue.  That conclusion was open to it on the evidence before it and it was not founded on irrelevant considerations.  Nor was it plainly wrong.

[29]     The Board in its written decision also noted that the police had received reliable evidence that Mr Knighton had been seen with a young boy, and that he had parked outside a primary school.  It also observed that Mr Knighton had previously been recalled to prison for unauthorised contact with children under 16 years old.

[30]     The  Board  recorded  that  Mr  Knighton  denied  any  improper  parking  or contact with the young boy.

[31]     Mr McKenzie criticised the Board and asserted that it erred when it took into account the alleged parking outside a primary school.  He submitted that this was an irrelevant consideration.   He accepted that the Board has a discretion to accept evidence which is not otherwise admissible in a court of law,[9]  but submitted that when a person’s recall to prison is being considered, there is a clear need to follow proper procedure.  He submitted that the only material before the Board was a letter

from the police to the appellant’s probation officer, that no efforts were made to obtain any statement from the witness, and that there were errors in the statements made  by  the  witness.    In  particular,  the  witness  stated  that  Mr  Knighton  was observed outside the primary school during the first week of 2012.   Mr Knighton

was, in fact, in prison at that time and the primary school would not have been open.

Mr McKenzie submitted that it would not have been difficult for the probation officer responsible to have obtained via the police a statement from the witness, and that ideally, the witness should have been placed before the Board and had his or her evidence tested under cross-examination.

[9] Parole Act 2002, s 117.

[32]     While I acknowledge the force of Mr McKenzie’s submission, there are two

answers to it.

[33]     First, it is clear from the record of the Board’s decision that the alleged parking outside the primary schools had little or no bearing on its decision.  In the record of hearing, the Chairman of the Board, Judge Lovegrove, noted as follows:

I have deliberately avoided referring to anything that relates to allegations that have been made about behaviour around schools and in relation to young people because that is all they are for the moment, allegations, which may mature into something more substantial, but for the moment our particular concern is with undue risk in other respects and with breach of a condition that feeds the ground of undue risk.

[34]     Secondly,  under  s  117(1)  of  the Act,  the  Board  may  take  into  account whatever information it thinks fit, whether or not it would be admissible in a Court of law.

[35]     Here,  I  do  not  consider  that  the  Board  erred  when  it  observed  that Mr Knighton  displays  “plausible  indications”  of  an  ongoing  perverse  interest  in young children.

[36]     There was material before the Board on which it could properly make that comment.  I refer to the history of this matter that I have set out above.  Mr Knighton has previously been recalled as a result of his association with under-aged children. That was a matter of record.  The alleged parking incident and the alleged contact with a young boy were consistent with concerns raised by this prior conduct.  They were allegations only, but the Board acknowledged this.  It was not precluded from weighing them in the balance when considering whether or not to make a final recall order.  Moreover, on appeal, this Court is not bound to allow an 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 has occurred.  Here, I am not persuaded that there was a substantive wrong or a miscarriage of justice.

[37]     Having read the decision carefully, I cannot see that the Board proceeded on an incorrect principle.   Nor do  I consider that  it failed to address any relevant matters, or that it brought into account irrelevant matters.   Its decision was not clearly wrong.

[38]     The appeal is dismissed.

Wylie J

2004; and see also Hart v Parole Board [1999] 3 NZLR 97 (HC) at [99]-[100]; King v
New Zealand Parole Board HC Auckland CRI 2006-404-382, 9 February 2007 at [13]–[14];

Vincent v New Zealand Parole Board HC Hamilton CRI 2005-419-41, 14 October 2005 at [19].