Leylander v New Zealand Parole Board

[2017] NZHC 2996

IN THE HIGH COURT OF NEW ZEALAND INVERCARGILL REGISTRY

I TE KŌTI MATUA O AOTEAROA WAIHŌPAI ROHE

CRI-2017-425-000049 [2017] NZHC 2996

BETWEEN

CHRISTIAN SHANNON LEYLANDER

Appellant

AND

NEW ZEALAND PAROLE BOARD Respondent

Hearing:	30 November 2017
Appearances:	K M Barker for the Appellant M J Thomas for the Respondent
Judgment:	5 December 2017

JUDGMENT OF NATION J

[1]      In July 2014, the appellant, Mr Leylander, was convicted and sentenced to four and a half years’ imprisonment on various charges of supplying drugs, receiving, thefts, assaults and burglary (by night).  His sentence end date is 3 July 2018.

[2]      Mr Leylander was released on parole on 27 July 2016.  He was on parole for approximately 11 months. Although his conduct and compliance were initially good, concerns about his compliance arose.  Following Mr Leylander’s failure to comply with his reporting obligations, an application was made for an interim order for his recall to prison, whereupon he was returned to prison on 15 July 2017.

[3]      After a number of administrative adjournments, a final recall hearing was conducted on 7 September 2017, at which the Parole Board (the Board) imposed a

LEYLANDER v NZ PAROLE BOARD [2017] NZHC 2996 [5 December 2017]

final recall order. Mr Leylander sought review of this decision under s 67 of the Parole Act 2002 (the Act), which was heard on the papers by a Panel Convenor, Judge Mather, on 17 October 2017.  Judge Mather confirmed the Board’s decision, dismissing the pleaded grounds of review.

[4]      Mr Leylander now appeals to this court, effectively against Judge Mather’s decision confirming the Board’s imposition of a final recall order and the Board’s original decision.1

Relevant law on appeal

[5]      Mr Leylander has a right of appeal to the High Court under s 68 of the Act. A review hearing under s 67 is a pre-condition to the right to appeal to the High Court, and the appeal in this Court is against the review decision.

[6]      Section 70(2) outlines the powers of the Court on an appeal against a final recall order:

(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  …

[7]      It has been said the appeal is against a discretion.  In many cases, that will be because there will not be any dispute that the grounds for the Board to consider a recall

have been established. Those grounds are set out in s 61(a)-(e) of the Act.

1      In Ratima v Parole Board HC Christchurch CRI-2003-409-111, 5 February 2011, Panckhurst J held at [9] that, given the decision on review is deemed to be the final decision of the Board, “it is convenient and appropriate to refer to appeals as against the Board’s decision, whilst of course bringing to account the reasoning in the review decision as well”.

[8]      Importantly, however, in Miller v Parole Board, the Court of Appeal concluded that the discretion under s 66 to make a final recall order ought only be exercised where public safety is an issue.2   The ground in s 61(a) is that “the offender poses an undue risk to the safety of the community or any person or class of persons”.  The Court of Appeal accepted that, with this ground and the grounds in ss 61(d)(i) and (e)(i), establishment of the particular ground referred to there will necessarily satisfy the Board that the offender poses an undue risk to public safety.   With the other grounds, William Young J stated that:3

… 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 72(a)) and is satisfied that the offender can remain in the community without posing an undue risk to public safety (cf 28(2)), the discretion to recall should not be exercised.

[9]      This means that the Board had to be satisfied that Mr Leylander posed an undue risk to public safety.

[10]     Panckhurst J carefully considered the approach to be taken on appeals against an order for recall in Ratima v Parole Board.4   He noted the appeal proceeds by way of rehearing.  He agreed that the approach to be taken on an appeal under the Parole Act was the same as Randerson J, in Hart v Parole Board, held was appropriate for appeals against similar decisions under the Criminal Justice Act 1985.5   One of those principles was that:6

[W]here 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 …

[11]     In Hart v Parole Board, there was no dispute that a ground for recall had been established.   Under s 107I(6) Criminal Justice Act 1985, it was sufficient that the

offender had committed an offence while on parole.  Once that had been established,

2      Miller v Parole Board [2010] NZCA 600.

3 At [129].

4      Ratima v Parole Board, above n 1.

5      Hart v Parole Board [1999] 3 NZLR 97 (HC).

6      Ratima v Parole Board, above n 1, at [14], referring to Hart v Parole Board, above n 5, at 100.

Randerson J held the Parole Board had a broad discretion as to the factors it might consider in deciding whether to order recall.

[12]     Randerson J adopted a statement of the approach to be taken, as articulated by

Penlington J in Miers v Waikeria Prison District Parole Board, where he stated:7

Thus it follows that before the District Prisons Board, one or more of the grounds  set out in s  107I(6)  must be established  on  the balance  of the probabilities, and that having occurred the Board has an unfettered discretion as to whether or not to make an order for recall.

Accordingly, an appeal to this Court can be properly categorised as an appeal against the exercise of a judicial discretion and accordingly an appellant has the onus of establishing that the Board proceeded on a wrong principle or gave undue weight to some factor or insufficient weight to another factor.

[13]     In Ryder v The New Zealand Parole Board, Fogarty J stated:8

Section 66(1) required a two stage analysis. First, the Board must be satisfied that one or more grounds of recall in s 66(1) have been established. … Second, the Board then has to exercise a discretion whether or not to make a final recall.

[14]     In Ryder, there was no dispute that one of the grounds had been made out.  In light of the judgment of the Court of Appeal in Miller v Parole Board, it could now be said that the discretion arises after the Board has been satisfied that the offender poses an undue risk to public safety.

[15]     I am thus of the view that, where an appeal is against the decision of the Board at the first stage of its analysis, ie whether the grounds for recall had been established, the appeal is by way of rehearing and is not against the exercise of a discretion.  The Supreme Court’s judgment in Austin, Nichols & Co Inc v Stichting Lodestar,9 means this Court has to consider the appeal and reach its own view as to whether the Board’s decision that there was an undue risk was correct but the onus is on an appellant to

establish the Board was wrong.

7      Miers v Waikeria Prison District Parole Board  HC Hamilton AP 143-95, 14 February 1996.

8      Ryder v The New Zealand Parole Board HC Christchurch CRI-2006-409-67, 7 April 2006 at [9].

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

[16]     I nevertheless consider that, even when an appeal is by way of rehearing against the Board’s decision on the first stage of its analysis, consistent with Austin, Nichols & Co Inc:10

[R]egard should be had to the specialist function of parole boards, which on account of their composition, expertise and experience are in an advantaged position by comparison to an appellate court, the more so where credibility assessments and the opportunity to observe the offender at the hearing are material to the decision which was reached.

As this case illustrates, the Board has a significant advantage, through the detailed consideration it gives to risk assessments and parole eligibility on different occasions over an extended period, usually when the offender has been in different situations within the prison system.

[17]     On this appeal, counsel for both parties proceeded on the basis this was an appeal against the exercise of a discretion.  For Mr Leylander, Ms Barker addressed all grounds on which an appellate court might allow an appeal against the exercise of a discretion.  In doing so, she was in essence arguing that the Board should not have been satisfied that, when the application for recall was made, there was an undue risk to the safety of the community if Mr Leylander were returned to parole.

Parole Board and Review decisions

[18]     The Board heard the substantive recall application on 7 September 2017, it having been adjourned on two earlier occasions because of concerns around Mr Leylander’s lack of legal representation.  Ultimately, Mr Leylander was represented by Ms Barker.  She also represented the appellant at the review hearing and again in this Court.   The Board’s conclusion was given orally, with written reasons for its decision following shortly thereafter.

[19]     The Board referred comparatively briefly to the grounds of recall.  It referred to the pleaded grounds based on undue risk and breach of conditions.  It referred to concerns raised  by probation  officer  as  to  Mr  Leylander’s  perceived  transience,

failures to report without reasonable excuse and disclosures around no longer needing

10     Ratima v Parole Board, above n 1, at [14], referring to one of the principles articulated by

Randerson J in Hart v Parole Board, above n 5.

or desiring employment.  The Board referred to Ms Barker’s submissions on those matters, which accorded with her submissions at the review hearing and again in this Court.   It acknowledged that Mr Leylander, through Ms Barker, had given explanations for the various matters which had been of concern to those involved with Mr Leylander’s probation.

[20]     The Board referred to Mr Leylander’s denial of any relapse into drug-taking, and the probation officer’s acknowledgement that there was “nothing beyond suspicion” in relation to that.  The Board then referred to concerns it had, in light of all the information, about the heightened risk to public safety which it considered Mr Leylander now posed, and it concluded:

Looking at the information overall we find the position less than satisfactory. We do believe there has been an escalation of risk to a point where it is reasonable for us to conclude that risk is undue.

[21]     Judge Mather confirmed the decision of the Board in his decision of 17 October

2017.  He began by referring to the application and the statutory grounds for review. This included, as advanced by Ms Barker, arguments that the Board had misdirected itself as to the requirement to find a risk to public safety, its failure to consider release conditions which might have mitigated that risk, and its reliance on erroneous or irrelevant information in the form of the pending misconduct charge to which the Board had regard.

[22]     In relation to the submission that the Board had misapplied the relevant statutory tests, Judge Mather considered:

Counsel’s submission that the Board’s decision does not address public safety cannot be sustained. Although the Board did not recite in full the test of risk to public safety set out in ss 28 and 61 of the Act, it is clear…that the Board was fully alert to the test to be applied…

It is correct that the Board did not, in its decision, refer to the availability of further conditions. However that omission cannot, in my view, constitute an error of law. The Board cannot be required, in an oral decision on a recall application, to articulate all the options open to it. It must apply the legal test for recall, and give at least brief reasons for its decision, and it did so in this

case.

[23]     Judge Mather further considered that s 7(2)(c) of the Act, which obliges the

Board to consider all relevant information available to it at the time of hearing, meant

that a pending misconduct charge could be considered.   It was an example of “information subsequent to the events giving rise to the recall application, which may be favourable to an offender or unfavourable”.

[24]     The  Judge  therefore  dismissed  both  grounds  of  review  and  affirmed  the

Board’s decision.

Analysis

[25]     The relevant grounds for recall are set out in s 61 of the Act.  The present application was made on the grounds:

(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 release conditions.

[26]     However, as stated by the Court of Appeal, even with ground (b) present, the Board had to be satisfied the offender posed an undue risk to the safety of the community.11   The Board had to be satisfied the grounds had been made out on the balance of probabilities.12

The decision maker failed to take into account relevant information

[27]     Mr Leylander submits that the Board failed to take into account information relevant to the recall application. This took the form of affidavits from Mr Leylander, his mother and his partner, and a letter from his previous employer. These are said to explain and give context to the matters which were clearly of concern to the Board, and they were the subject of Ms Barker’s submissions before the Board and her careful and persuasive submissions to me.

[28]     Mr Leylander accepts that this information was referred to, albeit briefly. The

Board stated “[w]e have received from Mr Leylander a very detailed explanation for

11     Miller v Parole Board, above n 2.

12     Hart v Parole Board, above n 5, referring to Miers v Waikeria Prison District Parole Board, above n 7.

his behaviour and we have helpful submissions from Ms Barclay [sic] …”. It referred to Ms Barker’s submissions giving explanation for Mr Leylander’s change of cellphone numbers, and his travel to other parts of the South Island together with his expressed reasons for terminating his employment.

[29]     Ultimately, Ms Barker submits that, although the decision demonstrates that the Board was aware of the detailed explanations which had been given, its failure to detail consideration of them “at the relevant time”, that is, in its summation of the risk which it considered Mr Leylander posed, is a reviewable error.

[30]     I do not consider that the mere failure to discuss, in detail, all the evidence which supported Mr Leylander’s position, amounts to an error which justifies allowing the appeal.  The Board’s decision and the transcript of the hearing which preceded it, demonstrate that the Board was aware of and had proper regard to Mr Leylander’s explanation in relation to the matters of concern to it.

The decision maker erred in law

[31]     Mr Leylander submits that the Board’s decision demonstrates that it either did not understand the correct threshold to apply or that it failed to apply it correctly here. In particular, Ms Barker submits that the equivocal language employed by Board, evidenced by its references to “having concerns” and finding Mr Leylander’s situation “less than satisfactory”, falls short of the requirements for a recall order.  She submits that there must be an “identified risk to public safety”, and that the Board did not identify such.  I note that the statutory provisions require only that there must be an undue risk and, in that respect, the Board considered that “there has been an escalation of risk to a point where it is reasonable for us to conclude that risk is undue”. However, it is clear from the transcript of the hearing and the decision which followed that the identified risk, apparent to the Board, was that Mr Leylander would re-lapse into substance abuse and re-offend.

[32]     This is demonstrated by how the latter part of the Board’s decision is set out:

10.  In Ms Barclay’s [sic] submission, Mr Leylander had not relapsed into drug use or committed other offences. She said there was nothing about the

behaviour that indicated that he posed an undue risk to community safety and she urged that a final recall order should not be made.

11. We do have concern about the situation outlined by Mr Harrison. Our concern is heightened by advice from the PCO of a pending misconduct…

[33]     These remarks demonstrate that the Board’s consideration of the risk posed by Mr Leylander, and the ultimate grounds for recall, followed on from the articulation by Ms Barker of Mr Leylander’s position in relation to the grounds for recall.  There is nothing here to suggest that the Board in any way misunderstood the key inquiry and what it was required to decide.

[34]     Mr Leylander contends that a second error of law arose in the Board’s (and subsequently Judge Mather’s) failure to refer to the possibility that conditions could be imposed to address the clear concern the Board had in relation to Mr Leylander’s problems with drugs and potential for relapse. Judge Mather referred to this argument, holding that the Board was not obliged to articulate all the options open to it. I agree.

[35]     Ultimately, Mr Leylander submits that the Board and, by extension, Judge Mather, have misinterpreted or misunderstood the legal test they were obliged to apply, namely that there was an identified risk to public safety sufficient to warrant recall.  I consider, however, that Judge Mather was correct to consider the Board was aware of the statutory test, and that the Board applied that test correctly. Applications for recall of a prisoner to prison, in the greater context of decisions about whether a prisoner should be admitted to parole, are core aspects of the Board’s function and area of expertise.

The decision maker took into account irrelevant information

[36]   Mr Leylander submits that the Board took into account an irrelevant consideration when it considered a pending prison misconduct charge against him. The Board noted in its decision that its concerns in relation to Mr Leylander were “heightened” by the presence of that misconduct charge.

[37]     The charge itself related to Mr Leylander’s possession of improvised tools which he was using to light cigarettes.  The transcript demonstrates that some time was devoted to discussing this aspect of the case. Mr Leylander had been apprehended

with metal prongs and wires, which he had apparently used as an ignition source to light cigarettes.   It appears Mr Leylander was disputing some aspects of the misconduct charge, on the basis that his possession of some of the items was innocent, in the sense that they had been part of a loose wall fitting/fixture in his cell, and that not all items were useful to his improvised device.  Nevertheless, he accepted that his goal had been to light cigarettes, and his use of the implements was thus opportunistic.

[38]     I do not consider that this charge was an irrelevant matter before the Board. Ms Barker submits that there was no direct or clear connection between Mr Leylander’s possession of implements which were used in connection with tobacco, and the risk to the community which Mr Leylander might pose if he were to re-offend following a relapse into drug-taking habits. The respondent, for its part, submits that there is such a link, and that Mr Leylander’s conduct in this respect meant that he might be at some greater risk of relapsing into drug habits.  The respondent submits that, per s 7(2)(c) of the Act, this was relevant information which the Board was entitled to take into account.  I agree.

[39]     There is no direct link between the misconduct charge and the risk which Mr Leylander might ultimately present. It was relevant only to the extent that it tended to give cause for concern about Mr Leylander’s general attitude and circumstances, as regards a perceived risk to public safety. That was a legitimate concern. In any event, I am satisfied, as was Judge Mather, that the Board did not give this factor undue weight in its exercise of the relevant discretion.  It was simply part of the matrix of relevant facts which, as the Board was entitled to consider, tended to heighten, in conjunction with other evidence of Mr Leylander’s transience and potentially troubling patterns, the identified risk to public safety.

The decision maker was plainly wrong

[40]     Finally, Mr Leylander submits that the decision, as a whole, was plainly wrong.

Ms Barker refers again to the evidence which had been given by Mr Leylander and those close to him, and which she contends explained away, to a large extent, the matters about which the Board might legitimately have been concerned. She refers to the 11 months spent on parole prior to recall.  That the first six months of that time

represented good compliance with obligations was acknowledged by the Board at the hearing, and is evident from the transcript.   Ms Barker emphasised that, in other respects, Mr Leylander had done well by staying clean from drugs and completing demanding employment.  There was nothing untoward in Mr Leylander’s departure from  that  employment,  in  the context  of his  desiring  a holiday or break.    She acknowledged that Mr Leylander’s failure to report on several occasions was unacceptable, but that such failures were properly addressed by breach charges before the Court. As to that, there had been a breach charge laid against Mr Leylander, and that formed part of the context in which the Board made its decision.  Mr Leylander signalled he would defend that charge13  and it was ultimately withdrawn, but I consider it  remained  a  valid  consideration  before the  Board  and  on  the review application.   That also applies to a Police charge, for failing to comply with instructions relating to the search of Mr Leylander’s cellphone, which was pending at the time of the hearing before the Board. That charge was also later withdrawn.

[41]     The crux of the overall matter which the Board was faced with is perhaps summed up in an exchange between one of the panel members and Mr Leylander during the hearing, where he said, addressing Mr Leylander:

… Mr Leylander, most people, given the privilege of parole with a record like yours appreciate it and respond to it and they are meticulous in compliance with the rules. The Board’s paramount consideration is for the safety of the community including all those people you have harmed. We cannot disregard them and make you the subject of our consideration solely.

[42]     This demonstrates that the Board was clearly aware of and had regard to all of Mr Leylander’s circumstances, but that the ultimate question of whether there was now an undue risk to the safety of the community remained the principal focus. There was no error in the Board approaching matters that way.

[43]     Mr Leylander was aged 33 at the time the Board heard the recall application. He had an extensive history of criminal offending over many years, an offending history which indicated that, at the end of his prison sentence, he and the community

could be significantly at risk from his further offending. On 1 July 2014, Mr Leylander

13     Although the Board’s decision includes a reference to an admission by Mr Leylander that the grounds for the breach charge had in fact been made out.

was  sentenced  to  four  and  a  half  years’ imprisonment  for  serious  offences  of dishonesty, including burglary and theft.  The burglary charges involved property of significant value and gross breaches of trust.  There were also drug-related charges. On 11 July 2014, he was sentenced to a concurrent sentence of one month imprisonment for assault of his partner.  Probably the most significant factors in Mr Leylander’s offending were his drug and alcohol addiction and the associations he had, mainly on the West Coast where he had been working.

[44]     In  granting  Mr  Leylander  parole,  the  Board  obviously  recognised  the significant progress Mr Leylander had made in dealing with these issues while serving his prison sentence and particularly through the programmes in which he participated. It is, however, apparent that risks remained.

[45]     When granting parole, the Board had the benefit of a detailed psychological report of 6 April 2016.  That report referred to the significant progress Mr Leylander had made but, as was perhaps to be expected, there were some concerns.  In April

2016, an incident occurred when Mr Leylander had been seen leaving the cell of another prisoner with a strong smell of tobacco present, consistent with a concern of Mr Leylander’s “continued association with others involved in contraband-offence paralleling behaviour”.  This was of concern because it suggested that, despite his developing an insight into the key role of antisocial peers in his offending and his tendency to  gravitate  towards  them,  he  had  an  ongoing  association  with  others involved in rule-breaking while in the Matapuna Special Treatment Unit.

[46]     The report recognised Mr Leylander’s strong work ethic and his commitment to his family but noted that, at times of stress, particularly when feelings of abandonment, rejection or criticism are triggered, he has reverted quickly to old behaviour patterns – including violence and excessive use of substances to manage his emotions and illegal activities as a means of funding them.

[47]   The psychologist referred to both positive and negative aspects of Mr Leylander’s personality but also the solid gains made in addressing many of the issues which were factors in Mr Leylander’s offending.  However, she considered:

It is only with time and repeated practice that [Mr Leylander’s] new self- identity and consistent behaviours will become his predominant mode of responding.  An environment which is likely to foster this includes one in which he is removed from antisocial associates, has positive prosocial attachment relationships which provide him with a sense of love and connection, and continues to build his prosocial desire for success in work and fatherhood.

[48]     In summarising risk and risk management, the psychologist said:

Mr Leylander poses a high risk of perpetrating further general re-offending that could lead to imprisonment. … Were he to return to the use of substances and affiliate with an anti-social peer group, [that risk] would become prominent.

[49]     I note Ms Barker submitted that it was his drug and alcohol abuse that would make him a risk to the community.  There was no evidence before the Board that he was then abusing alcohol or drugs, merely, at best, a suspicion that he could be.  The Board did however have information before it which indicated the community could be at risk, even without Mr Leylander abusing alcohol or drugs, although that risk would be much greater if he were again to use alcohol or drugs.  The information before them also suggested that, with a change in his circumstances, the risk of further drug and alcohol abuse had increased.

[50]     The psychologist recognised that Mr Leylander would be best able to manage his risk through effective implementation of his safety plan with a pro-social support network and lifestyle. The psychologist considered Mr Leylander’s release plan, with his returning to Invercargill, reconnecting with his mother, sister and their families, and engaging in work there within the dairy industry, was feasible and would assist him in managing that risk.  In her recommendations, the psychologist stressed that it would be important that Mr Leylander develop a pro-social network in Invercargill, and that close communication between the Probation Service and Mr Leylander’s support people would be imperative.   She said “a return to anti-social associates remains a key risk factor and one that would require close monitoring on his release”. That was all part of the detailed information which the Board had to consider when dealing with the recall application.

[51]     The circumstances that were relied on in support of the recall application were set out in an affidavit of Mr Leylander’s probation officer, Mana Harrison, of 6 July

2017.  Mr Harrison was a probation officer with whom Mr Leylander said he had a good relationship. Mr Harrison was concerned that Mr Leylander had failed to report to a probation officer four times since 24 May 2017.  He faced a breach charge for failing to report on 29 June 2017 for which he was due to appear in Court on 18 July

2017. That charge was subsequently withdrawn but the information from Mr Harrison in his affidavit was that Mr Leylander had not, as instructed, reported to a probation officer since 23 June 2017. Mr Harrison said that, over the past month, Probation had assessed Mr Leylander as being at a significantly increased risk of reoffending and therefore posing an undue risk to the community.   They referred to his quitting employment on 31 May 2017. They also referred to Mr Leylander’s mother contacting Probation on 4 April 2017 with concerns as to the way he was distancing himself from his family and her suspicion that he could be back using drugs.  Mr Harrison also referred to Mr Leylander’s self-report showing him becoming increasingly transient, travelling  to  Queenstown,  Christchurch  and Timaru  respectively within  a  week. Associated with that was his having given Probation three new cell phone numbers in the previous two weeks.  Mr Harrison was concerned that this change in behaviour and stability was evidence of an escalation in Mr Leylander’s risk.

[52]     Ms Barker referred to the evidence which the Board had of the significant progress Mr  Leylander had made when initially on parole,  the entirely positive reference that had been provided from the contractor with whom he had worked until near the end of the contracting season, the way in which he had established a home, accumulated savings and paid off significant outstanding amounts in fines, and the way he had maintained and developed significant pro-social relationships, not just with his own family but also a new partner who was likely to be a positive influence on him. Ms Barker explained, it appears with justification, that there was an innocent explanation for the number of cell phone numbers, and pointed out that his providing all such numbers to his probation officer would not have been consistent with his acquiring those different numbers for some nefarious reason.  She suggested that his leaving work was understandable given the difficult relationship he had with his then manager, and the extent to which he needed and was entitled to a holiday.  She said there was nothing sinister in Mr Leylander’s travel and it was understandable given the break he was having from work.

[53]     The information which Ms Barker relied on in making those submissions was before the Board and must have been considered by it.

[54]     Against all the background information which the Board had before it and which it had to consider in making its decision, I have not been persuaded that the conclusion it came to as to the level of risk was wrong.

[55]     Mr Leylander’s mother explained in an affidavit of 4 September 2017 how she had become concerned at the way Mr Leylander had distanced himself from her and also his family, although she said that, once this must have been discussed between him and the probation officer, they had talked about this and had agreed on a way he would keep in touch.  There was other information put before the Board to suggest that this change in their relationship could have been as a consequence of his entering into a relationship with his new partner.   Nevertheless, the fact remained that his mother had been concerned at the way his contact with her had diminished.  That contact was largely phone contact but could involve brief visits once a week for only half an hour.   It was therefore not extensive contact, in terms of time, which had reduced.   Nevertheless, in her affidavit, his mother said it felt to her like “an unexplained change in his behaviour”.

[56]     Mr Leylander’s mother also referred to the new job he had obtained shortly before his contracting work and season was due to finish. She said that he told her he did not get on with his new boss but she also said:

I think he was basically overwhelmed. As well as work, he was having some difficulty with his children’s mother in arranging contact with the kids.   I remember thinking that he was getting burnt out, and he spoke to me about wanting a break.

[57]     Her observations as to this were consistent with Mr Leylander having been under the sort of stress which the psychologist had said could see him reverting quickly to old behaviour patterns, including violence and substance abuse.

[58]     Mr Leylander’s new partner provided an affidavit sworn on 2 September 2017 which suggests she would have a positive influence on his life.  She explained how they had travelled to Christchurch together where they met her father and sister, and

then the following week how he had travelled to Queenstown and then to Timaru. She saw nothing problematic in those trips.  I note, however, that Mr Harrison wrote a letter in support of his application for a review of the decision to make an interim recall order. In that letter he said that, while in Timaru, he needed a lift to buy a new car and, while doing this, the person he was with had firearms in his possession. He was taken to the Police station.  It was in that context that he was asked to hand over his phone and then asked for his pin number which he said he declined as he “was not doing anything wrong and was not being charged with anything”.  He was charged with an offence as a result of this although that charge was subsequently withdrawn. Nevertheless, the information which Mr Leylander provided in that letter would understandably have caused the Board some concern that, with his travel, Mr Leylander had renewed an association of the sort which was a factor in his previous offending.

[59]     In his affidavit, Mr Leylander explained why he had left his employment in early May 2017.   While he may have had reason to leave that employment, the information before the Board was that his engagement in employment would be a significant factor in risk reduction.   According to his own affidavit, he was not intending to be in employment between 1 May 2017 and when the new contracting season started in September 2017.  It would have been understandable for the Board to be concerned that risks could arise out of the time that he would then have available to potentially renew old destructive associations. The psychologist had noted that Mr Leylander’s strong work ethic was one of the factors that had ameliorated, to some degree, the extent of his offending over periods of his life. Work had been part of his release plan to reduce his risk of further offending.

[60]     At the same time as these significant changes had occurred, there was a breakdown in the relationship between Mr Leylander and his probation officer.  Mr Leylander said in his affidavit that he had a good rapport with Mr Harrison. Ms Barker emphasised the way in which Mr Leylander communicated with Mr Harrison but the facts before the Board indicated Mr Leylander was not acting as if he recognised the importance of communicating with his probation officer. Although Mr Leylander may have talked to his probation officer about why he was unhappy in his new work, of his ultimate wish to return to his contracting work in the new season and of his intention

to travel, that cannot have happened in a way to allay or reduce the concerns which

Mr Harrison had, as were conveyed to the Board in Mr Harrison’s affidavit of 6 July

2017.

[61]     Overall,  despite  the  effective  advocacy  of  Ms  Barker,  I  have  not  been persuaded that the Board’s decision was wrong. It follows that Judge Mather’s review decision affirming the Board’s decision should not be disturbed on this ground. I have not been persuaded the Board was wrong to conclude that, with the change of circumstances, there was an undue risk to the safety of the community, requiring Mr Leylander’s recall to prison.

[62]     The progress which Mr Leylander made while earlier in prison and while initially on parole was impressive.  Although the Board’s concern was as to whether there was an undue risk to the safety of the community, inherently with their decision, they recognised that in the changed circumstances Mr Leylander’s own safety was at risk.  He is fortunate that, through his family and his new partner, positive pro-social support should be available to him on his release. With his recall to prison, the Board remain best able to decide how that support might be utilised for his benefit, and ultimately for the benefit of the community.

Conclusion and disposition

[63]     I have not been persuaded the decision the Board reached was wrong or that, if and to the extent it was exercising a discretion, there was an identifiable error in the way it did so.  The appeal is dismissed and the decisions of Judge Mather and the Board confirmed.

Solicitors:

Eagles Eagles & Redpath, Invercargill

Preston Russell Law, Invercargill.