McGreevy v Chief Executive of Department of Corrections
[2018] NZHC 2006
•8 August 2018
IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY
I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE
CIV-2016-409-1145
[2018] NZHC 2006
UNDER Judicature Amendment Act 1972 IN THE MATTER OF
an application for judicial review in relation to the management of the applicant’s
Extended Supervision Order
BETWEEN
PATRICK JOHN MCGREEVY
Applicant
AND
CHIEF EXECUTIVE OF DEPARTMENT OF CORRECTIONS
First RespondentNEW ZEALAND PAROLE BOARD
Second RespondentCRC LIMITED
Third Respondent
Hearing: 30 April 2018 Appearances:
A Bailey for the Applicant
K Laurenson for the First Respondent Appearance for the Second Respondent excused T Aickin for the Third Respondent
Judgment:
8 August 2018
JUDGMENT OF MANDER J
MCGREEVY v CHIEF EXECUTIVE OF DEPARTMENT OF CORRECTIONS [2018] NZHC 2006 [8 August 2018]
Contents
Background [5]
Period: 26 May 2008-15 April 2012 [6]
Period: 16 April/22 August 2012-7 December 2016 [9]
Period: 8 December 2016-Current [14]
Monitoring and accompaniment [20]
The question of lawful monitoring and accompaniment [22]
The current regime [26]
Past monitoring and accompaniment [36]
Has there been monitoring and accompaniment outside the hours of the programme? [52]
No discernible changes in management regime [53] Timing of the application for new ESO conditions in November 2016 [59] The Department’s report to the Parole Board of 18 November 2016 [61] Findings regarding challenge to monitoring and accompaniment regime [74]
Residential arrangements [81]
Finding in respect of challenge to residence conditions [99]
House and programme rules [100]
Challenge to the reintegration programme [107] Decision on challenge to reintegration programme [115] Challenge to Parole Board conditions [128]
Conclusions [134]
Costs [138]
[1] The applicant, Patrick McGreevy, has been the subject of an Extended Supervision Order (ESO) since 2008. Pursuant to special conditions made by the second respondent, the New Zealand Parole Board (Parole Board), he has resided at premises provided by the third respondent, CRC Limited (CRC).
[2] The first respondent, the Chief Executive of the Department of Corrections (the Department) is responsible for the management of Mr McGreevy. The Department and CRC have jointly administered the special conditions which have periodically been varied by the Parole Board over the last 10 years.
[3] Mr McGreevy seeks judicial review of the way a number of these special conditions have been implemented. In particular, Mr McGreevy challenges the monitoring to which he has been subjected, certain requirements relating to his residence, and a special condition that he participate in a programme. Mr McGreevy argues that these conditions are unlawful, and that they have been applied and administered by the Department and CRC in an impermissible way and in breach of his rights under the New Zealand Bill of Rights Act 1990.
[4] The Department, which took the lead in opposing the application for review, maintains the special conditions imposed by the Parole Board were lawful and justified. Further, the Department maintains it has at all times acted lawfully and reasonably in its implementation of those special conditions in accordance with the Parole Act 2002 (the Act), and submits its actions do not give rise to any unjustifiable infringement of Mr McGreevy’s rights. CRC adopts those submissions in active opposition to Mr McGreevy’s challenge. The Parole Board, in the ordinary way, abides the judgment of the Court.
Background
[5] In order to deal with the issues raised by Mr McGreevy, it is necessary to set out the background to Mr McGreevy’s present position.
Period: 26 May 2008-15 April 2012
[6] On 26 May 2008, the Christchurch District Court made an ESO in respect of Mr McGreevy for a period of 10 years. Excluding periods when Mr McGreevy was taken into custody for breaches of the ESO, the first ESO was due to expire on 31 January 2020.
[7] On 15 October 2008, the Parole Board imposed special conditions.1 Relevant to the present proceeding, those conditions included:
(a)A requirement that Mr McGreevy reside at an address approved by a probation officer and comply with the rules of the residence to the satisfaction of the accommodation provider and the probation officer.
(b)A requirement to participate in, comply with and complete all aspects of the Individual Residential Reintegration Programme (the programme) and comply with its rules.
(c)A requirement to be subject to residential restrictions, including electronic monitoring for 12 months from the commencement of the ESO, between 3.00 pm and 9.00 am Monday to Friday, and 12.00 pm Friday to 12.00 pm Sunday.
[8] In 2009, the Act was amended to remove the period that partial residential restrictions could be imposed as a special condition.2 Mr McGreevy continued to be subject to partial residential restrictions beyond the first year. Over the following three years, the Parole Board varied and supplemented the special conditions. The time Mr McGreevy was subject to residential restrictions was gradually reduced.
Period: 16 April-7 December 2016
[9] In 2012, the Parole Board varied the special conditions. As from 16 April 2012, Mr McGreevy was subject to the following relevant conditions:
1 Parole Act 2002, s 107IA.
2 Parole (Extended Supervision Orders) Amendment Act 2009, inserting s 107K(3)(b).
(a)He was required to reside at a CRC residence in Sockburn and comply with the rules of the residence.
(b)Under partial residential restrictions, he was required to submit to electronic monitoring as directed by a probation officer between 10.00 pm and 7.00 am Monday to Friday, and between 10.00 pm and 10.00 am Saturday and Sunday.
(c)He had to participate in, comply with and complete all aspects of the programme and comply with its rules.
(d)Approved people were allowed access to Mr McGreevy’s residence to provide him with support with life skills, and he was required to participate in reintegration development activities to the satisfaction of a probation officer and to engage with this support and activities.
[10] As a result of global positioning systems (GPS) becoming available to the Department as part of its electronic monitoring capability of high risk offenders, the Parole Board on 22 August 2012 varied Mr McGreevy’s special conditions to provide for GPS monitoring. Although already subject to an electronic monitoring condition for the purpose of his residential restrictions, a new condition was added:
(a)To submit to and comply with the requirements of electronic monitoring as directed by the probation officer, to monitor compliance with the conditions relating to Mr McGreevy’s whereabouts.
[11]Two further changes were made. Firstly, a further condition was added:
(b) Mr McGreevy must be placed in the care of an agency approved by the Chief Executive, being CRC, between 7.00 am and 10.00 pm Monday to Friday, and 10.00 am and 10.00 pm on weekends.
[12] Secondly, the existing programme condition was varied to specify that the programme was to be provided by CRC and the purposes of the programme particularised, namely to:
· enhance living skills;
· develop safe recreational activities;
· enhance socialisation in the community; and
· provide pro-social mentoring and support.
[13] The Parole Board also expressly stated that as part of that programme Mr McGreevy was required to be accompanied at all times by CRC staff.
Period: 8 December 2016-Current
[14] In December 2016, Mr McGreevy’s conditions were varied following amendments to the Act that were passed in 2014.3 That legislation provided a two year window to the Parole Board to review non-complying conditions.4 During that transitional period, non-complying existing conditions remained lawful. Mr McGreevy is critical of the Department for not addressing the issues arising from the legislative changes until the end of the two year period.
[15] When the Department applied to review Mr McGreevy’s conditions on 18 November 2016, it acknowledged that it may no longer be possible to continue the ESO regime to which Mr McGreevy was presently subject. In particular, the present conditions may have resulted in him being monitored longer than was necessary to ensure his participation in activities associated with his programme and may thus breach the amended Act.5
[16] The Parole Board varied Mr McGreevy’s special conditions as from 8 December 2016. Relevantly, for the purpose of the current proceeding, he became subject to the following conditions:
(a)To reside at an address approved by a probation officer.
3 Parole (Extended Supervision Orders) Amendment Act 2014.
4 Parole Act 2002, s 107ZB(2).
5 Section107K(3)(bb).
(b)To be subject to residential restrictions between 6.00 pm and 9.00 am daily, which included being electronically monitored between those times.
(c)To undertake, engage in and complete a reintegration programme between 9.00 am and 6.00 pm daily, and to abide by the rules of the programme.
(d)To be placed in the care of an approved agency between 9.00 am and
6.00 pm, and whilst in that care to be accompanied and monitored by agency staff members at all times.
(e)To participate in, comply with, and complete “all aspects of the individual reintegrative residential programme” and to comply with the rules of the programme to the satisfaction of the probation officer. This condition specifically provided that “[i]t is a part of that programme he be accompanied at all times by Christchurch Residential Care staff”.
(f)To submit to and comply with the requirements of electronic monitoring as directed by the probation officer in order to monitor compliance with the conditions relating to his whereabouts.
[17]In imposing these conditions, the Parole Board observed:
[13] The Board is of the view that the arrangements with respect to his care and the Individual Residential Rehabilitation Programme needs to change to comply with the provisions of s 107K(3)(bb) of the Parole Act. We are satisfied that a programme directed to Mr McGreevy’s rehabilitation and reintegration is necessary to reduce his risk of reoffending. Moreover, we are of the view that s 107K(3)(bb) permits his ongoing personal supervision and monitoring while participating in that programme, provided that it is no longer than necessary. The relevant conditions will be varied broadly in line with those proposed in the report from the Department. Whilst it is not for the Board to specify the content of that programme, it seemed to us from the outline presented to us at the hearing, that enhancements may be required to ensure the programme achieves its objectives.
[18] On 22 March 2017, Dunningham J made a further ESO for a period of 10 years on the basis that Mr McGreevy continued to pose a real and ongoing risk of
committing serious sexual offences.6 Mr McGreevy’s risk was assessed as high.
However, the Court declined to impose an intensive monitoring condition.7
[19] On 6 November 2017, the Parole Board set special conditions for the second ESO. The new conditions were materially the same as those existing under the previous ESO, other than that Mr McGreevy’s programme hours are now 9.00 am to
5.00 pm Monday to Friday and 10.00 am to 3.00 pm Saturday and Sunday. His partial residential restrictions apply outside those hours.
Monitoring and accompaniment
[20] Mr McGreevy alleges the Department and CRC have unlawfully accompanied and monitored him since the making of the first ESO in 2008. In particular, it is claimed that Mr McGreevy has been, and continues to be, subject to “up to 24 hours a day monitoring”. There are two aspects to that allegation. Firstly, there is the contention that the Department cannot lawfully subject Mr McGreevy to monitoring and accompaniment. Secondly, there is the claim Mr McGreevy has been and remains subject to around the clock personal monitoring.
[21] Mr McGreevy also alleges that the Department and CRC have acted unreasonably by requiring him to be accompanied and monitored “for up to 24 hours a day”, and have exercised their power for an improper purpose to achieve that result. Parallel allegations are made against the Parole Board. In particular, that it acted unreasonably when it imposed special conditions on 22 August 2012, knowing they would be utilised by the Department and CRC to require Mr McGreevy to be accompanied and monitored up to 24 hours a day, and that it did so for an improper purpose.
The question of lawful monitoring and accompaniment
[22] At the time the first ESO was made in 2008, the Act permitted a special condition to be imposed by the Parole Board that an offender be subject to person-to-
6 Chief Executive of the Department of Corrections v McGreevy [2017] NZHC 527; Parole Act 2002, s 107I(1).
7 Section 107IAC.
person monitoring for up to 24 hours a day. This could only be imposed for the first 12 months of the term of the ESO.8 After 12 December 2014, offenders could still be made subject to a 24 hour monitoring condition (intensive monitoring). However, again, the maximum duration of such a condition was one of 12 months.9 It is accepted that Mr McGreevy has never been the subject of such a condition. Mr Bailey on behalf of Mr McGreevy submitted that, in the absence of any such special condition being imposed on Mr McGreevy, he could not be subjected to monitoring and accompaniment for what he alleges was and remains 24 hours a day. However, he says that has been the effect of the Department’s implementation of the Parole Board conditions.
[23] The Department accepted that Mr McGreevy was monitored and accompanied for up to 24 hours a day until new conditions were imposed in 2012. It said that this was pursuant to the reintegrative residential programme to which he was subject at the time. It is also accepted that since 2012 Mr McGreevy has been monitored and accompanied during the hours he has been required to comply with the programme.10 The Department and CRC’s position is that this monitoring of Mr McGreevy was, and remains, a lawful and necessary part of the programme he is required to participate in under the conditions imposed by the Parole Board.
[24] In response, Mr Bailey submitted that compliance with the Parole Board’s condition that he participate in a reintegrative programme, as argued by the Department, could not authorise such intrusive monitoring. He submitted such an approach conflicted with the statutory limits that Parliament had placed on person-to- person monitoring. Mr Bailey submitted that such a requirement could only have been imposed as a specific condition, initially by the Parole Board and more latterly by a Judge of this Court, and for only a maximum duration of 12 months. Mr McGreevy alleges the present programme is nothing more than a device to ensure he is monitored around the clock.
8 Parole Act 2002, s 107K(3)(b).
9 Parole Act 2002, s 107IAC(2)-(3).
10 From 16 April 2012 until 7 December 2016 that comprised 99 hours per week (7.00 am to
10.00 pm Monday to Friday and 10.00 am to 10.00 pm on weekends); since 8 December 2016 between 9.00 am to 6.00 pm daily and then, since 6 November 2017, between 9.00 am to 5.00 pm Monday to Friday and 10.00 am to 3.00 pm Saturday and Sunday.
[25] The most convenient means of assessing the legal basis upon which the Department maintains it has legitimately monitored and accompanied Mr McGreevy and may continue to do so is to firstly address the current position.
The current regime
[26] Since 8 December 2016, Mr McGreevy has been subject to a condition imposed by the Parole Board which requires him to be placed in the care of an approved agency (CRC) between stated hours. The condition provides that while in the care of that agency, he is to be accompanied and monitored by an agency staff member at all times. The hours during which he is placed in the agency’s care and required to be accompanied and monitored match the period Mr McGreevy is required to engage in and complete his programme.
[27] That special condition was imposed under s 15 of the Act. Section 15(3) lists the kinds of conditions that may be imposed as special conditions, including:
(b) Conditions requiring the offender to participate in a programme (as defined in s 16) to reduce the risk of further offending by the offender through the rehabilitation and reintegration of the offender.
[28] Section 16 defines “programme” as including attendance at a rehabilitative or reintegrative programme, or placement in the care of any appropriate agency approved by the Chief Executive.
[29] In December 2014, s 107K(3) of the Act was amended by the Parole (Extended Supervision Orders) Amendment Act 2014. The following requirement was introduced:
(bb)Any condition requiring the offender to participate in a programme (as referred to in s 15(3)(b)) must not –
(i)require that the offender be, or result in the offender being, supervised, monitored, or subject to other restrictions, for longer each day than is necessary to ensure the offender’s attendance at classes or participation in other activities associated with the programme; or
(ii)require the offender to reside with, or result in the offender residing with, any person, persons, or agency in whose care the offender is placed;
[30] The Department and CRC submitted that its monitoring and accompaniment of Mr McGreevy pursuant to the Parole Board’s conditions was necessary to ensure his participation in the activities associated with the programme. In that regard, the Parole Board, when imposing conditions on 6 November 2017 after the making of the most recent ESO, observed:
(a)Programme
35.Mr McGreevy has been subject to a condition that he engage in a programme for around eight years. The conditions imposed by the Board have expressly or by implication imposed considerable restrictions on his movements while he is subject to the programme. For example, for much of the time he has been subject to full-time person-to-person monitoring.
36.The Board has previously referred to the apparent lack of benefit gained, or progress made, by Mr McGreevy from his participation in programmes provided for him by the Department. Whilst we have recently indicated a broad concern as to the structure of the programme, we are in no doubt that the principal reason for that lack of progress is Mr McGreevy’s own unwillingness to engage. While he may put this down to what he regards as unnecessary restrictions imposed on him, there has been an element of victimstance in his appearances before the Board, and an apparent lack of motivation to take advantage of the opportunities provided by the programme.
37.Despite the lack of progress in the past, we accept that Mr McGreevy’s ongoing participation in a programme of the type specified in section 16(b) of the Parole Act is necessary and is consistent with the purposes of section 15(2)(a) and (b) of the Act, as providing a very important part of his rehabilitation and reintegration. We say that for three reasons. First, Mr McGreevy is a high-risk child sex offender and there is a need to constructively structure his time to mitigate his risk of reoffending. Secondly, whilst the success of the programme will depend on the extent to which he is prepared to engage in it, his reintegration and social and personal development is unlikely to be advanced in other ways. Thirdly, as part of its oversight of offenders who are subject to long-term supervision, it seems to us to be important for the Department to maintain its efforts directed to the reintegration and rehabilitation. In Mr McGreevy’s case, it seems to us that the changes referred to by counsel in the joint memorandum, provide room for some optimism in the future. Finally, whilst the Board accepts the need for Mr McGreevy to continue to participate in a programme, the choice of programme (and any agency to provide it) is a matter for Community Corrections.
38.As to the hours of the programme, we note that Mr McGreevy submits they should be reduced. Mr Bailey supported that submission with reference to daily activities that do not require supervision. That submission also appears to reflect Mr McGreevy’s preference not to be subject to structured arrangements, and, perhaps more to the point, to his aversion to be accompanied throughout the day. Mr McGreevy
appears quite content to accept a longer daily period of residential restrictions in place of programme hours.
39.We have reflected on this point and concluded that there should be a slight reduction in programme hours. We have taken account of the objections made by Mr Bailey, but endeavoured to provide for structured activities on a daily basis. We are of the view that the objectives proposed by the Department can be adequately achieved in an 8-hour day during the week and a lesser 6-hour day over the weekends. While this allows Mr McGreevy to spend more time as he chooses, there is little indication that will necessarily result in his electing to pursue activities that will enhance his reintegration or rehabilitation. Outside programme hours, the Probation Officer is authorised to permit absences from the approved residence and this allows for some flexibility.
[31] Evidence filed by the Department indicates that Mr McGreevy has in the past shown a propensity to abscond during programme hours and has demonstrated an unwillingness to positively participate in steps to manage his risk and to gain greater independence. As the Parole Board itself articulated, supervision and monitoring is necessary to ensure that Mr McGreevy remains in the care of the agency and participates in the programme in the most fundamental way, namely by attending and not absconding. Mr McGreevy has a history of non-compliance with the ESOs. He has received seven convictions for breaching conditions and has received four custodial sentences in relation to those breaches, all of which involve him absconding from his address. At least one involves the removal of his GPS device. Further, as at the date of the review application hearing, he was facing two extant charges.
[32] Ms Lisa Joseph, a District Manager employed by the Department of Corrections, is familiar with the conditions of Mr McGreevy’s ESO. She gave evidence that supervision of Mr McGreevy during his programme hours is necessary to ensure he participates in the programme and to manage the risk he presents. He is accompanied by CRC staff at all times if he leaves the residence, although the Department states it would like to work towards reducing the level of supervision over time. Examples given were of accompanying Mr McGreevy on an outing to an approved small shop but waiting outside for him to finish his shopping, or of visiting a supermarket where a staff member would wait at the end of an aisle for him.
[33] Ms Joseph’s evidence was that exercises such as this have been attempted unsuccessfully in the past, and that lower levels of supervision on outings have
resulted in Mr McGreevy absconding or removing his electronic monitoring equipment. She advised that in order for CRC and the Department to be able to reduce the level of supervision on outings, Mr McGreevy would need to demonstrate some progress in managing his risk independently.
[34] When Mr McGreevy is at his residence, Ms Joseph’s evidence was that, in practice, during the hours of the programme while in the care of CRC, a member of staff would be with Mr McGreevy other than when he is in his room or the bathroom. It is understood staff will usually be in an office area of the residence, away from Mr McGreevy’s private quarters, during those periods.
[35] Outside the hours of the programme, Mr McGreevy is subject to electronic GPS monitoring as part of his residential restrictions. He is not personally monitored by a CRC staff member. Ms Joseph’s evidence was that some of the other residents at Mr McGreevy’s present CRC residence are subject to an ESO with an intensive monitoring condition. This means staff are required to be onsite around the clock to monitor those residents. While at least one CRC staff member would be at the residence overnight, that person would not be monitoring Mr McGreevy. It was her understanding that this staff member would generally remain in the office area of the residence.
Past monitoring and accompaniment
[36] Prior to the enactment of s 107K(3)(bb), the legislation did not address whether a condition requiring an offender to participate in a programme could require that offender to be monitored or accompanied. The Department submitted that the introduction of s 107K(3)(bb) in 2014 indicated that previous monitoring as part of a programme ordered as a special condition by the Parole Board was lawful. In its submission, monitoring and accompaniment prior to the introduction of s 107K(3)(bb) was not prohibited or restricted and was not required to be authorised by a specific provision in the legislation so long as the offender was required to be in the care of an agency or to be participating in a particular programme pursuant to a special condition imposed by the Parole Board.
[37] The Department, in support of its position, pointed to the decision of the Parole Board of 22 August 2012, which noted that Mr McGreevy had, since the beginning of his ESO in 2008, been subject to a condition requiring him to participate in, comply with, and complete all aspects of the programme and to comply with its rules to the satisfaction of the programme provider and the probation officer. The Parole Board observed that as part of that programme Mr McGreevy was required to be accompanied at all times by CRC staff.
[38] The Department also relied on the legislative history of s 107K(3)(bb). The explanatory note to the Parole (Extended Supervision Orders) Amendment Bill 2014, which amended s 107K, distinguished between intensive supervision and monitoring for the purposes of the programme. The note recorded that the Bill:
... removes from the Board the ability to impose up to 24-hour monitoring on an offender subject to residential conditions (that this is replaced by the requirement under new section 15(3)(g) to impose an intensive monitoring condition if ordered to do so by the Court):
It provides that, if the Board imposes a condition requiring the offender to participate in a programme, it cannot also require the offender to be supervised or monitored for longer each day than is necessary for the purposes of the programme, or require the offender to reside with any person, persons, or agency in whose care the offender is placed.
[39] In relation to the period before 2012 when there were no prescribed programme hours, the Department accepted Mr McGreevy was effectively subject to the programme 24 hours a day. The Department’s justification for that level of monitoring was that it was simply part of the programme to which Mr McGreevy was subject at the time and which he was required to comply with and complete as a result of the condition imposed by the Parole Board. After specified programme hours were set by the Parole Board in its decision of 22 August 2012, the Department maintained it was entitled to proceed on the basis that Mr McGreevy could be monitored and supervised by CRC staff at all times during the now defined hours of that programme.
[40] Mr McGreevy was subject to partial residential restrictions before 2012 (he remains subject to such a requirement today). However, the Department does not seek to justify his previous 24 hours a day monitoring and accompaniment on the basis of his residential restrictions. The Department’s position is that he was subject to a
monitoring and accompaniment requirement during that period only as a consequence of his required participation and compliance with the programme.
[41] This is reflected in the approach taken by the Department in its application to vary the conditions of the ESO in 2012. In providing background details to the Parole Board in its report of April 2012, the Department described Mr McGreevy’s position at that time in the following terms:
Mr McGreevy is subject to an Individual Residential Reintegration Programme (IRRP) administered by Christchurch Residential Care (CRC). In compliance with the rules of the programme, he is required to reside at a CRC property and be monitored by the agency’s support staff while under their care and supervision. Mr McGreevy is supervised at all times both while in the home and while on excursions in the community.
[42] In accordance with the recommendation of a Departmental psychologist, it was proposed that the present level of monitoring and restrictions be “very gradually reduced”. Under the heading “Proposed Changes” the Department stated:
All parties involved in the management of Mr McGreevy’s ESO have been consulted about how the restrictions could be gradually reduced, while still mitigating risk to the community. It has been agreed that Mr McGreevy’s IRRP can now be altered to allow him to move towards living more independently, by reducing CRC staff oversight to during the day and evenings only, and removing staff oversight overnight. In order to mitigate the risk of Mr McGreevy leaving his residence overnight when staff are not present, he will remain subject to electronically monitored residential restrictions.
[43]In summarising the application, the Department stated:
CPS has been consulting with CRC about developing Mr McGreevy’s IRRP to encourage Mr McGreevy to utilise his time by having a structured programme of meaningful activity which may include study, recreation and social events. In addition, it will allow him to work towards living more independently by not having extensive care and supervision by staff, but instead he would be electronically monitored overnight...
In order to change the hours Mr McGreevy is subject to CRC supervision, a slight variation of his current residential restriction times is required, so there is no period of time he is not subject to some level of external monitoring. This will only result in increased residential restriction times by three hours on Saturdays and Sundays, when Mr McGreevy has agreed he would like CRC staff to be coming to his residence from later in the mornings.
[44] As the Department has acknowledged, it was monitoring and accompanying Mr McGreevy on a daily 24 hour basis. The Department considered it could do so as a requirement of the programme. It maintains the programme had application even during the period that Mr McGreevy was subject to partial residential restrictions and electronic monitoring overnight.
[45] Mr Bailey on behalf of Mr McGreevy submitted that a rehabilitative and reintegration programme could not operate on a 24 hours, seven days a week basis. He made the point that a person could not be physically awake 24 hours a day to be participating in a programme. Thus, 24 hour monitoring cannot be justified on such a basis. However, that submission may overlook that the special condition imposed by the Parole Board in October 2008, and still operative at the time of the 2012 variation application, was that Mr McGreevy:
...participate in, and comply with and complete all aspects of the Individual Reintegrative Residential Programme and comply with the rules of the programme to the satisfaction of the programme provider and the probation officer.
[Emphasis added]
[46] The programme to which Mr McGreevy was subject was a residential programme. Sections 15 and 16 of the Act did not exclude such a programme from being imposed under s 107K. A residential programme would not now be possible. A condition requiring an offender to participate in a programme must not require that person to reside with, or result in the offender residing with, an agency in whose care he is placed.11 However, that limitation was not there at the time.
[47] In July 2012, the Department sought further variations. In its report to the Board, the Department referred to Mr McGreevy’s programme:
The programme requires him to be placed in the care of an agency approved by the Chief Executive (under s 16(c) of the Parole Act 2002), being Christchurch Residential Care (CRC). He is subject to CRC support and the provision of rehabilitative and reintegrative programmes between the hours of
7.00 am and 10.00 pm Monday to Friday and between 10.00 am and 10.00 pm on Saturdays and Sundays. He is continuously assisted and supported by CRC support staff between these hours, both while in the home and while on excursions in the community.
11 Parole Act 2002, s 107K(3)(bb)(i).
[48] It appears, in order to accurately reflect that description of the programme as currently being implemented at that time, the Department made the following request:
A variation to the wording of the IRRP condition is proposed in order to make it clear that Mr McGreevy is placed in the care of CRC (as per s 16(c)), as well as the hours under which he is required to be subject to the partial residential restrictions and available to benefit from the reintegrative programme presented by CRC staff...
[49] It was as a result of that application that the Parole Board added the further condition requiring Mr McGreevy to be placed in the care of CRC during the hours of his programme.
[50] It is tolerably clear that, pursuant to the condition imposed by the Parole Board that Mr McGreevy participate in, comply with, and complete his Individual Reintegrative Residential Programme, the Department was entitled to monitor and accompany him for that purpose. However, it is also apparent that the Department’s objective in administering the ESO was, and continues to be, to ensure Mr McGreevy is subject to “some level of external monitoring” around the clock. It was not until 2012 that the hours of the programme were defined and Mr McGreevy formally placed into the care of CRC as an approved agency. At that point, a clear demarcation was made between the hours of the programme and the partial residential restrictions with which Mr McGreevy was obliged to comply.
[51] The Department has chosen to defend the review application on the basis that, until new special conditions were imposed in 2012, it was entitled to monitor and accompany Mr McGreevy for up to 24 hours a day on the basis that he was subject to the programme on a full-time basis. Notwithstanding the fact that Mr McGreevy was subject to a residential programme, I find that difficult to reconcile with Parliament having only allowed a limited 12 month period during which an offender could be made subject to around the clock person-to-person monitoring (now intensive supervision). Such a requirement had to be imposed by the Parole Board as a specific special condition, and the offender needed to be subject to full-time residential restrictions, which Mr McGreevy never was. However, I do not consider it was impermissible to make an offender subject to both partial residential restrictions and a
condition requiring his participation in a programme which necessitated his monitoring and accompaniment in order to secure his compliance with the programme.
Has there been monitoring and accompaniment outside the hours of the programme?
[52] Mr McGreevy challenges the Department’s stance that he has not been monitored and accompanied since 2012 beyond the hours of the programme. Mr McGreevy relies upon aspects of the Department’s management of his ESO which he submits support his argument that after 2012 he remained subject to monitoring and accompaniment beyond the programme hours.
No discernible changes in management regime
[53] Mr Bailey observed that the Department’s position was that after almost four years of 24 hour monitoring by CRC staff this reduced from 168 hours per week to only 99 hours. He submitted that marked a substantial change in Mr McGreevy’s day- to-day management that should have been reflected in formal directions by the Department to CRC, reduced staffing levels, and less funding of CRC by the Department. He pointed to a lack of documentary evidence which correlates with the significant reduction in the programme hours during which Mr McGreevy was required to be monitored. Mr Bailey suggested that effectively there was no change and Mr McGreevy remained subject to 24 hour monitoring.
[54] Between April 2012 and 2015, Mr McGreevy resided at a CRC residence in Sockburn together with another man subject to an ESO. For substantially all of that period, a CRC employee was at the address 24 hours a day. The residence comprised three bedrooms. One was allocated for occupation by CRC with the other two being respectively Mr McGreevy’s and the other man’s bedrooms. Mr McGreevy points to this arrangement as being inconsistent with the Department’s claim that Mr McGreevy’s monitoring and accompaniment was limited to the hours of his programme.12
12 Mr McGreevy also raised issues relating to the presence of the CRC representative as being inconsistent with the Residential Tenancy Act 1986. Mr McGreevy is required to pay rent for his occupation of the CRC address. It was accepted those issues are more appropriately pursued in proceedings before the Tenancy Tribunal, which Mr McGreevy was in the process of advancing at the time of the hearing of his judicial review application.
[55] The Department rejected Mr McGreevy’s claim that he continued to be subject to monitoring and accompaniment during the period of his residential restrictions after 2012. Mr Matthew Gibbs was a departmental manager responsible for a team of staff engaged with the management of ESOs. He provided evidence that agencies that house multiple offenders are able to employ a house monitor or supervisor to watch over the address during the night. The role of the supervisor is not to watch specific offenders or monitor them outside the agreed programmes hours. Rather, it is to ensure the safety and security of people and property at the address. He distinguished that person from an individual staff member who has been assigned a particular responsibility in respect of a resident, such as the monitoring of an offender subject to an intensive monitoring order.
[56] The Department’s District Manager, Ms Joseph, provided evidence that accorded with Mr Gibb’s. In addressing Mr McGreevy’s present arrangements, she noted that he is subject to partial residential restrictions between 6.00 pm and 9.00 am, but is not subject to overnight monitoring by staff. Other staff may be present to monitor other offenders who are subject to more stringent conditions, and CRC may have an additional staff member present to manage the residence overnight, but her understanding is that such a person would be in a separate office area.
[57] Ms Joseph noted that if such a person became aware of health and safety concerns overnight, he or she would take appropriate steps. However, they were not there to monitor Mr McGreevy in the way he would be during the hours of his programme, for example, by accompanying him on outings. If Mr McGreevy was to leave the residence in breach of his residential restrictions, she stated that the staff member would notify police but would not prevent him leaving. That was confirmed by an employee of CRC, Ms Joanna Keele, who has been involved in overseeing the daily management of Mr McGreevy. She confirmed that Mr McGreevy was not subject to overnight monitoring by CRC staff.
[58] While the Department did not provide specific evidence relating to the arrangements at Mr McGreevy’s former CRC address in Sockburn, it is not apparent that the overnight presence of the CRC staff member at that address was any different from his present arrangements, which do not extend to actual monitoring of
Mr McGreevy. Insofar as Mr McGreevy placed weight on an absence of records marking a change of arrangements at the CRC residence, I accept that in practical terms there likely would not have been any change in resourcing, given the presence of only two persons subject to ESOs at the address during the time Mr McGreevy resided there between April 2012 and 2015. It is not possible on the available evidence to discern whether CRC was carrying out an overnight monitoring function prior to 2012, after which the programme hours became explicitly limited, or was simply present for the purpose of discharging the type of “caretaker” role described in the Department’s evidence.
Timing of the application for new ESO conditions in November 2016
[59] The 2014 amending Act provided a two year period for the Parole Board to review Mr McGreevy’s 2012 programme condition to ensure it complied with s 107K(3)(bb). That was the requirement that offenders not be monitored for longer each day than is necessary to ensure their participation in activities associated with the programme.13 The section came into force on 12 December 2014. The Department therefore had until December 2016 to review the special condition. Mr McGreevy is critical of the Department waiting until the end of that period
[60] Mr Bailey submitted the Court was entitled to infer the Department intentionally delayed the filing of its application to maximise the duration for which it could rely on the effective two year extension of the existing programme condition. However, the Department was entitled to rely on the two year period provided by the legislation to review the programme condition. It complied with that statutory requirement. Except insofar as the report accompanying the application provides information as to how the Department viewed Mr McGreevy’s current programme requirements, I do not consider anything can responsibly be inferred from the timing of the Department’s application.
13 Parole Act 2002, s 107ZB.
The Department’s report to the Parole Board of 18 November 2016
[61] Mr McGreevy relies upon the content of the Department’s 18 November 2016 report to the Parole Board in support of its application to vary or discharge conditions of the ESO. This application was required to enable the Parole Board to review whether the special condition requiring Mr McGreevy to participate in a rehabilitation and reintegrative programme complied with the terms of s 107K(3)(bb).14 In that application, the Department stated:
7.A small number of the highest risk offenders subject to ESO are currently subject to an Individual Residential Reintegration Programme (IRRP) condition. IRRPs were designed to provide intensive external oversight and reintegration assistance to offenders on an ESO. The programmes require offenders to be accompanied and monitored by staff from external providers contracted by the Department. Additionally, the programmes may involve assistance with employment/training, finance or earnings, as well as participation in individual or group programmes.
8.The Department considers that the existing IRRP does not comply with s 107K(3)(bb) because person-to-person monitoring is in place at times when the offender is not necessarily participating in programme related activities, and in most cases, 24 hours per day.
9.Section 107ZB is a transitional measure that requires the NZPB to review the programme conditions of an offender subject to an ESO imposed prior to the 2014 amendments, where the terms of the programme conditions require the offender to be supervised, monitored or subject to other restrictions for longer each day than necessary to ensure attendance of the programme, or require that the offender reside with any person or agency in whose care they have been placed. If no review is completed prior to 12 December 2016, the programme conditions are automatically cancelled, regardless of whether it complies with s 107K(3)(bb) or not.
[62]The report further stated:
22.In December 2014, changes were made to the ESO legislation in the Act, specifically ss 107K(3)(bb) and 107ZB. The Department was of the understanding it was unable to maintain the current IRRP arrangement, post December 2016.
23.The Department has submitted an application for a new ESO, for Mr McGreevy, requesting an intensive monitoring (IM) condition to allow for 24/7 monitoring for another 12 months, the maximum duration of such a condition. The first hearing of that application is scheduled for 13 December 2016; however, it is expected to be a number of months until it is finally determined.
14 Parole Act 2002, s 107ZB.
[63] I accept Mr Bailey’s submission that the background set out in the Department’s November 2016 application appears to be an acknowledgement that, as a result of the enactment of s 107K(3)(bb), it can no longer monitor Mr McGreevy as it had been doing to that point. The application to this Court for intensive monitoring arguably presents as an attempt to preserve the status quo, at least for another 12 months. It follows that the background provided by the Department in its November 2016 application to the Parole Board prima facie appears to conflict with how the Department sought, for the purpose of this proceeding, to justify its monitoring of Mr McGreevy between 2012 and 2016.
[64] The Department’s position and the evidence it has called about the Individual Residential Reintegration Programme is puzzling. Mr Gibbs’s evidence about such a residential programme was premised on the offender having been subject to a specific 12 month person-to-person monitoring condition (more latterly known as intensive supervision). That programme would be developed at the offender’s appointed address where the person was being “managed” on a 24 hour basis. When the offender was no longer able to be subjected to 24 hour person-to-person monitoring after the first 12 months, an Individual Residential Reintegration Programme would be “developed to allow the programme and support to the offender to continue after the first year of the ESO, by continuing to closely support the offender but without necessarily providing around the clock monitoring”. Confusingly, Mr Gibbs acknowledged that Mr McGreevy has never been the subject a specific person-to- person intensive monitoring condition. Yet, he has clearly been subject to an Individual Residential Reintegration Programme.
[65] From what I am able to glean from Mr Gibbs’ evidence, it appears that when GPS monitoring became available as a discrete condition to monitor an offender’s whereabouts, the cohort of offenders subject to an Individual Residential Reintegration Programme (including Mr McGreevy) were, as a priority, made subject to that form of monitoring. It seems a concern may have arisen that the requirements of this type of reintegration programme in combination with the GPS monitoring may breach the Act. As a result, amendments were sought from the Parole Board of the special conditions “pertaining to the Individual Residential Reintegration Programme to ensure they complied with the Act”.
[66] In paragraphs 7-9 of the Department’s November 2016 report, set out above, the Department acknowledged that in respect to its Individual Residential Reintegration Programmes there is person-to-person monitoring 24 hours per day in most cases. That appears to accord with Mr Gibbs’s evidence that such offenders are usually subject to intensive monitoring. The reference to the Individual Residential Reintegration Programme in the report appears to be to the generic programme referred to in Mr Gibbs’s evidence. That is how it is referred to in successive Parole Board decisions concerning Mr McGreevy, at least until its most recent decision of 27 March 2017. While this is the type of programme to which Mr McGreevy was subject, the November 2016 report makes no reference to the stipulated periods which Mr McGreevy was required to be in the care of CRC and which prescribed the periods that Mr McGreevy was subject to the programme from 2012 to 2016. Nor is any reference made to the electronically monitored partial residential restrictions.
[67] The November report writer included as part of the existing programme conditions that Mr McGreevy be accompanied at all times by CRC staff. That condition, if it was applied beyond the programme hours, would be in breach of s 107K(3)(bb). Under the heading “Summary of Application” the Department states in the report:
24.The Department considers that Mr McGreevy continues to demonstrate a requirement for an intense level of monitoring and support to assist him to make pro-social decisions and lifestyle choices. If the current level of oversight is withdrawn then it is considered that his ability to identify his risk, assess situations and follow safety plans without prompting will be severely compromised, as demonstrated by his actions when he has previously absconded.
25.As noted in paragraph 22, the Department believes that s 107ZB of the Act may be engaged, and that the Board must review Mr McGreevy’s current programme conditions under s 107ZB(2).
[68] Under s 107ZB of the Act, where the terms of the programme condition would result in the offender being monitored for longer each day than is necessary to ensure his participation in the programme, the Board must review the condition imposed under s 15(3)(b) of the Act. In the absence of so doing, the condition requiring the offender to participate in the programme is cancelled. By not making an application to the Parole Board, the Department therefore ran the risk of the condition being cancelled.
[69] In its report, the Department did not state that the current programme condition required Mr McGreevy to be monitored more than was necessary to ensure his participation in the programme. It only said that s 107ZB may be engaged and that the existing programme condition may not comply with s 107K(3)(bb). However, as I have observed, given Mr McGreevy was subject to the programme described as the Individual Residential Reintegration Programme and the Department’s reference in its report to the programme condition requiring him to be accompanied at all times by CRC staff, then on its face the condition did not comply with s 107K(3)(bb).
[70] The new conditions imposed by the Parole Board in its decision of 1 December 2016 expressly aligned the periods of the day Mr McGreevy could be accompanied and monitored by CRC staff with the times he was in the care of that agency and therefore the programme. However, the clarification achieved by the reformulation of that condition is blurred by the perpetuation of a programme condition which again referred to the Individual Residential Reintegration Programme and a requirement that Mr McGreevy be accompanied at all times for that particular type of programme.
[71] There is a regrettable opaqueness about the way the Parole Board conditions have been formulated and the approach taken by the Department. Its November 2016 report demonstrates an unsureness as to the parameters of monitoring an offender outside the period the person is required to participate in the programme. That, together with the effect of GPS monitoring, was likely the reason for specifying that accompaniment and monitoring by a CRC staff member attached to the period the agency had responsibility for the care of Mr McGreevy while he was subject to the programme.
[72] Ms Joseph had understandable difficulty under cross-examination explaining the approach taken by the Department in the November 2016 report. However, she was specific in her evidence that during the programme hours Mr McGreevy would be subject to the oversight and monitoring of CRC staff, and that for the remainder of the time he would be subject to electronic monitoring as authorised by his partial residential restrictions. The short point is that, for this aspect of the argument, I do not consider simply from the Department’s 2016 report that I can conclude Mr McGreevy was being illegally accompanied and monitored outside his programme hours, 24
hours a day. However, the issues that have emerged regarding the breadth of the current conditions I return to later in this judgment.
[73] I have already referred to Mr Bailey’s emphasis on the Department’s concurrent application seeking intensive monitoring pursuant to a new ESO, which he submitted was indicative of the Department’s objective to retain the then present level of monitoring, at least for a further 12 months. The Department failed in its application to obtain an order requiring the Board to impose an intensive monitoring condition on Mr McGreevy.15 I have accepted that may be an indication that the Department was concerned that the extent of the monitoring of Mr McGreevy available to it would become more limited, but there was no evidence that would actually be the case. Notably, Dunningham J, in declining the Department’s application, observed that Mr McGreevy was presently subject to a high degree of supervision and that there was inadequate evidence to suggest the conditions of Mr McGreevy’s current ESO could not protect the community from the risk he posed. That was an entirely reasonable conclusion to draw from Mr McGreevy being monitored and accompanied to ensure his participation in activities associated with his programme and the electronic monitoring and partial residential restrictions to which he was subject.
Findings regarding challenge to monitoring and accompaniment regime
[74] Placing reliance on Ms Joseph’s evidence and the Parole Board’s findings that the current monitoring of Mr McGreevy as part of his ongoing participation in the programme is necessary to ensure his attendance, the Department submitted that monitoring over the course of the current hours of the programme was lawful. I accept that submission but only so long as the Parole Board’s condition that Mr McGreevy participate in the programme requires or results in him being monitored or restricted no more than is necessary to ensure his participation in activities associated with the programme. If that is the case, the current monitoring is lawful. However, the programme Mr McGreevy is required to participate in is to reduce the risk of further offending through his rehabilitation and reintegration.16 The programme must therefore seek to advance those objectives. Consideration of that issue is undertaken
15 Chief Executive of Department of Corrections v McGreevy, above n 6.
16 Parole Act 2002, s 15(3)(b).
later in this judgment when the content of Mr McGreevy’s programme is addressed as part of his challenge to the Department and CRC’s provision and implementation of the Parole Board’s condition that he participate in such a programme.
[75] Mr McGreevy’s challenge to the Department and CRC’s accompaniment and monitoring of him was also based on alleged breaches of the New Zealand Bill of Rights Act 1990, namely breaches of his rights of association and movement.17 The Department acknowledged that the power of the Parole Board to impose special conditions on an ESO pursuant to s 107K of the Act is required to be read consistently with the New Zealand Bill of Rights Act. The Department, in implementing those special conditions, must do so in a manner that is consistent with that legislation. Any resulting limit on Mr McGreevy’s freedom of movement and association must be prescribed by law and demonstrably justified in a free and democratic society.18
[76] Monitoring an offender during programme hours to ensure his participation in activities associated with the programme limits a person’s freedom of association and movement. However, so long as such restrictions are reasonable and justifiably imposed for the reasons required in s 15(2) of the Act, they will be permitted by s 5 of the Bill of Rights Act. The accompaniment and monitoring must go no further than is necessary to achieve the objective of Mr McGreevy’s rehabilitation and reintegration. In pursuance of that goal there must also be recognition that he is a high risk offender and, thus, a need to ensure the safety of the community.
[77] The Department submitted that Mr McGreevy’s programme strikes the correct balance. It submitted that it allows controlled and supervised community integration with a reduced level of accompaniment and monitoring over time in furtherance of his safe rehabilitation, which the programme is designed to achieve. Again, consideration of whether Mr McGreevy’s rights are currently being breached turn on the content and implementation of the Parole Board’s condition requiring his participation in a reintegration programme.
17 New Zealand Bill of Rights Act 1990, ss 17 and 18.
18 New Zealand Bill of Rights Act 1990, s 5; Te Whatu v Department of Corrections [2017] NZHC 3233 at [28].
[78] For completeness, I do not consider there is an inconsistency between the 24 hours a day requirement of intensive monitoring and the need to ensure the attendance or compliance of an offender in a programme between defined hours of the day if that is necessary to ensure the offender’s participation in activities associated with the programme. The present special conditions delineate between electronically monitored residential restrictions and monitoring as part of the programme. I do not consider that the electronically monitored residential conditions and the need to monitor Mr McGreevy during the hours of his programme in combination amount to or can be equated with intensive monitoring under s 107IAC of the Act.
[79] Mr McGreevy specifically alleged the Parole Board acted unreasonably in its decision of 22 August 2012 in imposing conditions on him knowing that the conditions had previously been, and would continue to be, utilised by the Department and CRC to require him to be accompanied and monitored “for up to 24 hours a day”. I reject that allegation. There is no evidence that the Parole Board believed the conditions it imposed would be administered otherwise than in accordance with the Act.
[80] Insofar as the decision of 22 August 2012 referred to Mr McGreevy having to be accompanied at all times by CRC staff, I accept on its face that was not consistent with s 107K(3)(bb) of the Act. Insofar as the condition went beyond what the Act authorised, it was invalid. However, if it reflected the Parole Board’s understanding that in order to ensure Mr McGreevy’s participation in activities associated with the programme he would be required to be monitored and accompanied throughout the hours of the programme, the condition complied. The Parole Board’s short decision is silent on that issue. In the absence of evidence that the Parole Board understood the condition would be used to monitor and accompany Mr McGreevy in a manner inconsistent with the Act, the challenge as it was framed fails.
Residential arrangements
[81] Mr McGreevy presently lives at a CRC residence with three other people who are subject to an ESO and residential restrictions. Mr McGreevy is unhappy at having to live with other people at the CRC residence and would like to live at another
address. However, he is required as a condition of his ESO to live at an address which is approved by his probation officer.
[82] Mr McGreevy’s challenge to being required to live with other residents at his current address is based on an allegation that he is required to live with these other occupants without his consent so it is unlawful.
[83] Section 34 of the Act provides that before the Board may impose residential restrictions on an offender, it must consider a report from the Department.19 Before completing that report the Department’s Chief Executive is required to:20
(a)ensure that every relevant occupant of the residence where it is proposed that the offender reside is aware of the nature of the offender’s past and current offending; and
(b)tell every relevant occupant that the reason for giving that information is to enable the occupant to make an informed decision about whether to consent to having the offender reside at the residence; and
(c)tell every relevant occupant that the information provided about the offender must not be used for any purpose other than that described in paragraph (b); and
(d)obtain the consent of every relevant occupant to having the offender reside at the residence; and
(e)inform every relevant occupant of their right to withdraw their consent, at any time, to having the offender reside at the residence.
[84] Mr McGreevy claims that he is a “relevant occupant” of his current residence and that the Chief Executive did not obtain his consent to have the other offenders reside at the residence. Mr McGreevy maintains he has been forced to live with other ESO offenders who have been, or are, subject to residential restrictions.
[85] In his evidence, Mr McGreevy referred to the Department’s website. He stated:
On the first respondent’s website a “relevant occupant” is defined as including anyone that is 16 years or older who is going to be living at the same address as an offender.
19 Parole Act 2002, s 34(1).
20 Section 34(3).
[86]The term “relevant occupant” is defined in s 34(4) of the Act as follows:
In subsection (3), relevant occupant means, in relation to a residence that the chief executive is considering as a suitable residence for an offender subject to residential restrictions,—
(a)in the case of a family residence, every person of or over the age of 16 who ordinarily lives there; and
(b)in the case of any other residence, every person whom the chief executive identifies as being a relevant occupant for the purpose of subsection (3).
[87] Mr McGreevy maintains the information on the website represents the policy of the Department’s Chief Executive. Mr Bailey submitted the Chief Executive would not individually determine who a relevant occupant is for every non-family residence for the purposes of s 34(4)(b), and that he or she must have adopted and imposed a policy which covers all types of residents.
[88] In support of his argument, Mr Bailey noted that in January 2014 the reference to “the Chief Executive” in s 34(4)(b) was previously to “the probation officer”. This, he submitted, likely indicated that the determination of who was a “relevant occupant” for a non-family residence had previously occurred on a case-by-case basis. The change in the wording of the section to “the Chief Executive”, Mr Bailey submitted, was consistent with the question of who was a “relevant occupant” now being governed by a general policy directive from the Chief Executive. Mr Bailey submitted the information on the website represented such a policy.
[89] I was not furnished with a copy of the relevant extract from the website. I therefore do not know the context in which the information is provided. It is notable that the wording from the website reflects the statutory definition of relevant occupant in the case of a family residence. I consider it unlikely that the website is declaratory of some formal policy that has been formulated by the Chief Executive regarding who is to be considered a “relevant occupant” in the case of any other residence. On the face of s 34(4)(b), the Chief Executive is provided with a broad discretion as to who he or she may identify as a relevant occupant for the purposes of requiring consent under s 34(3). That discretion is plainly premised on there being adult residents of an
address from whom consent is not required, other than in the case of a family residence.
[90] Section 34(3) sets out the Chief Executive’s obligations to provide certain information to every relevant occupant. This includes notifying such persons of the offender’s past and current offending and the residential restrictions they will be subject to for the purpose of obtaining those persons’ informed consent to living with an offender.
[91] There was no evidence of Mr McGreevy having been identified by the Chief Executive as a relevant occupant, other than the reference to the website. That information appears to be directed to informing the public as to the level of engagement required to be entered into by the Department when seeking consent before there can be any expectation of offenders living with them.
[92] Ms Joseph’s evidence was that Mr McGreevy has resided with other persons subject to ESOs who are managed by CRC. The Chief Executive has never identified those other offenders at those addresses as relevant occupants under s 34(4)(b) of the Act, just as Mr McGreevy himself has not been identified as a relevant occupant by the Chief Executive.
[93] Reference was made in Ms Joseph’s evidence to other offenders required to live in a hostel-like situation, such as an alcohol and/or drug facility, being subject to residential restrictions who are not viewed by the Department as “relevant occupants” for the purpose of imposing residential restrictions. The analogy is only relevant insofar as it is consistent with the Chief Executive having not, in situations involving non-family residences, identified other residents subject to residential restrictions as being relevant occupants for the purpose of meeting the requirements of s 34(3).
[94] Mr Bailey submitted Ms Joseph’s reference to Mr McGreevy’s residential situation being akin to offenders being placed on residential restrictions at a hostel or alcohol or drug facility, or the like run by an organisation such as the Salvation Army, demonstrated that the Chief Executive was proceeding on the basis of a mistake of fact. It was emphasised that Mr McGreevy had signed a tenancy agreement and paid
rent in respect of the address where he is presently living. I accept the analogy drawn by the witness may not be apt. However, it is clear that Mr McGreevy is not residing in a family residence, nor is there evidence, or at least adequate evidence, to establish the Chief Executive has identified Mr McGreevy, either pursuant to a general policy or otherwise, as falling within the category of a relevant occupant in the case of “any other residences”.
[95] Turning to Mr McGreevy’s more general complaint of having to live at a residence with other offenders, I understand Mr McGreevy has spoken to his probation officer about changing addresses but has not put forward a suitable address. Ms Joseph’s evidence was that if he did, CRC staff would go to that address and administer the programme from that location during the day. Mr McGreevy would then be electronically monitored between 5.00 pm and 9.00 am. There are other offenders on ESOs with conditions like Mr McGreevy’s who live in private properties.
[96] If Mr McGreevy was to put forward an address, the Department’s evidence was that it would have to check whether the residence was safe for him and the community. Alternative addresses have been declined by the Department in the past because they are in close proximity to children and, in the opinion of the Department, present too great a risk for Mr McGreevy.
[97] The Department stressed that the Parole Board’s conditions do not require Mr McGreevy to live at his current address and if he was to put forward an alternative address that was suitable, he would be able to move. In its most recent decision of 6 November 2017, the Parole Board considered Mr McGreevy’s complaints about his present living arrangements. It noted that his past proposals to his probation officer of alternative addresses in Christchurch were, in its view, assessed as unsuitable for “entirely sound reasons”.
[98] As recently as February 2018, the Department assessed an alternative address for Mr McGreevy with a view to having it approved by his probation officer. However, on a visit to the address to assess its suitability, Departmental staff observed at least 15 school aged children walking past the address to and from school. Therefore it was not considered suitable. Ms Joseph said the Department was still exploring
options for an alternative address for Mr McGreevy. This includes the assessment of whether a lease of a private property is viable.
Finding in respect of challenge to residence conditions
[99] I do not consider the Department and CRC have acted illegally by requiring Mr McGreevy to reside with other occupants of his present residence who are subject to residential restrictions without his consent. I reject that ground of challenge.
House and programme rules
[100] As part of Mr McGreevy’s challenge to the Department’s monitoring and oversight of him at CRC’s residential facility, he has put in issue the rules that govern his residence. The evidence filed by the parties referred to “programme rules” and “house rules”. Various iterations of those rules were exhibited and there has been some confusion regarding their application. As a result of Ms Joseph’s evidence, the position has been clarified.
[101] The Department advised that many of the programme rules that once operated have now been superseded by Parole Board conditions. An example provided was the rule that Mr McGreevy be supervised on outings, which is now the subject of a condition requiring supervision at all times during programme hours. A requirement contained in the rules that he not associate with children is reflected in a standard condition imposed by the Act itself, in addition to a special condition set by the Parole Board that he not enter public places where children under 16 congregate.21 There are no programme rules currently in operation.
[102] While there are presently no programme rules, there are CRC house rules with which Mr McGreevy is obliged to comply as a condition of his residence at the CRC facility. They apply at all times Mr McGreevy is at the residence, both during and outside programme hours.
[103] Mr Bailey highlighted what he described was the oppressive nature of a number of these rules. They include that: Mr McGreevy cannot have any visitors to
21 Parole Act 2002, s 107JA(i).
the residence unless approved in writing by his probation officer; he is required to treat CRC staff inside the residence “with respect”; he must permit random checks and searches of his bedroom at any time “if deemed necessary”; he is not permitted access to the internet unless under observation by a CRC employee; and he must advise which sites he is going to view in advance of accessing them.
[104] Mr Bailey described these conditions as imposing further around the clock restrictions, beyond the hours of the programme so as to effectively monitor everything Mr McGreevy does. He submitted that such conditions go beyond what can permissibly be imposed on a person in their own home, and go further than what even the Parole Board would consider imposing as additional special conditions. In that regard, it is noted that the Parole Board, in its 6 November 2017 decision, declined a request by the Department to restrict the applicant using the internet, holding that such a condition would be “unduly restrictive”.
[105] The Department, on the other hand, submitted that the majority of the rules relate to day-to-day management of the residence and are targeted at reducing the offender’s risk of breaching standard and special conditions of the ESO, for example, by having visits from unapproved visitors, having unauthorised DVDs delivered, or being exposed to images which might trigger an offender’s preoccupation. Others are said simply to reflect the criminal law, such as the requirement that the resident not show physical violence towards others, and not possess or use illegal drugs. It is submitted by the Department that the rules do not themselves amount to unlawful monitoring and do no more than is necessary to ensure the CRC residence is able to operate in a safe manner.
[106] Mr Bailey made it clear in his submissions that if the restrictions and rules relating to Mr McGreevy’s residence at the CRC facility are not restrictions imposed as part of the programme but rather are “house rules” governing his occupation of the CRC address, he would pursue those issues as a landlord/tenant matter before the Tenancy Tribunal rather than as part of this proceeding. The Department has confirmed there are no programme rules in operation at present, and that the conditions governing Mr McGreevy’s residence are pursuant to CRC’s house rules. The issues raised by Mr McGreevy are therefore issues concerning his residential tenancy which
arise between Mr McGreevy and CRC in their respective capacities as tenant and landlord. The Department confirmed that its only role would be to approve a new address if Mr McGreevy’s present residence was not to continue. Mr McGreevy is entitled to proceed before the Tenancy Tribunal on that clarified basis.
Challenge to the reintegration programme
[107] Mr McGreevy alleges that the Department and CRC breached their delegated powers and associated responsibilities in failing to provide or implement a programme as required by the Parole Board’s condition that he participate in a reintegration programme. Mr McGreevy claims his present programme does not meet the intended purposes of that condition, which he maintains are to enhance his living skills, develop safe recreational activities, enhance socialisation in the community and provide pro- social mentoring and support.22 He seeks declarations that the Department and CRC have breached their duties by failing to provide a programme as directed by the Parole Board.
[108] In response, the Department submitted Mr McGreevy’s programme is consistent with s 15(3)(b) of the Act, which requires a programme be directed at “reducing the risk of further offending by the offender through the rehabilitation and reintegration of the offender”.
[109] The Department maintains that it endeavours to provide a weekly plan for Mr McGreevy that is designed to involve him in structured activities to enable him to progress his living skills, develop safe recreational activities and enhance his socialisation in the community. Ms Joseph gave evidence of regular meetings being held between staff who work with Mr McGreevy to discuss his progress and management. She exhibited a daily plan setting out outings and activities outside the residence which it is maintained have a reintegration focus. Mr McGreevy is also expected to participate in household tasks, like cooking, cleaning, gardening and
22 Those objectives were expressly stipulated by the Parole Board when it imposed its condition that Mr McGreevy participate in and complete the Individual Residential Reintegration Programme to be provided by CRC in its decision of 22 August 2012. Those objectives were not expressly included in similar conditions imposed by the Parole Board in its subsequent decisions.
mowing lawns, as well as attending appointments for budgeting assistance and other services.
[110] Ms Joseph referred to Mr McGreevy having in the past engaged in a course at a local polytechnic but difficulties with his use of the computers meant he did not continue. It is noted that some ESO offenders in the community study or are employed. The Department would be supportive of courses or employment in the future if Mr McGreevy was prepared to engage in such proposals and comply with steps to ensure such an initiative could be undertaken safely.
[111] Ms Joseph’s evidence was that the Department had encouraged Mr McGreevy to put forward appropriate ideas or proposals to use his time or engage in activities during programme hours. In its most recent decision, the Parole Board has made it a special condition that Mr McGreevy, if directed, attend an assessment for suitability for the STOP programme, and to attend the programme if assessed as suitable. The Department considers that kind of formal course could form part of Mr McGreevy’s rehabilitation programme, although he has expressed opposition to such an initiative.
[112] Mr Bailey submitted that the current programme does not meet the requirements of a “reintegration programme”. Mr McGreevy views the programme as simply a means by which he can be monitored, made to do household chores, and taken to shops when he wishes to go. He sought to illustrate the paucity of his programme by reference to a record of his activities during a week in February 2018. He maintained it showed that, in the absence of a specified activity, he would be either watching television, building models in his room, smoking outside, completing his planner, or doing housework such as cooking. He maintains that would be typical of the way he spends most of his week.
[113] Mr Bailey noted that Mr McGreevy has been subject to a “programme” for nearly every day since May 2008, excluding periods in custody. He questions the Department’s claim that it is necessary for Mr McGreevy to be subject to a programme for the purpose of advancing his client’s rehabilitation and reintegration. Essentially, Mr Bailey’s submission is that the only objective presently being achieved is the close monitoring of Mr McGreevy during the hours of his programme. He cites such tasks
as engaging in activities like cooking as part of his programme, which the Department considers necessary in order for Mr McGreevy to acquire basic life skills, as disingenuous. Mr Bailey submitted that programme objectives such as “how to safely occupy Mr McGreevy’s free time” cannot be reconciled with the amount of “free time” he presently has under the present programme regime in the absence of actual initiatives to teach Mr McGreevy how to safely occupy this free time.
[114] The Department’s response to these criticisms is that, while the Department can encourage Mr McGreevy to participate in scheduled activities and engage in the planning of appropriate ideas or proposals in furtherance of the programmes reintegrative and rehabilitative objectives, to a large extent it is dependent on Mr McGreevy’s preparedness to cooperate. The evidence filed in support of the Department’s position is that Mr McGreevy has failed to engage with the programme and frequently lacks motivation, often refusing to engage with planning activities. He is described as being reluctant to suggest ideas or goals. When Mr McGreevy does make suggestions, these are often unsuitable and likely to involve contact with children, such as attending at a skate park or swimming pool. The Department notes that the Parole Board, in its latest decision of 6 November 2017, remarked on Mr McGreevy’s lack of progress being principally a result of his own unwillingness to engage.
Decision on challenge to reintegration programme
[115] The effect of the decision to impose a further ESO on Mr McGreevy in March 2017 means he is recognised at high risk of sexually reoffending. Mr McGreevy did not challenge whether that threshold for the making of the ESO was met at the time of the hearing of the Department’s application.23 The programme to which Mr McGreevy is subject is a condition of the Parole Board. Unfortunately, because of Mr McGreevy’s approach and attitude to the objectives of that programme, the activities in which he is able to engage are limited and the content of the programme sparse.
23 Chief Executive of Department of Corrections v McGreevy, above n 6, at [2] and [16].
[116] It is not necessary for me to resolve the allegations as to who is essentially responsible for deficiencies in Mr McGreevy’s current programme. I am mindful of the Court’s limitations, in the context of the present application, to accurately sift through the competing contentions of Mr McGreevy and the Department at the level of detail in which the daily interaction between Mr McGreevy and CRC takes place. I acknowledge that the content and effectiveness of the rehabilitation and reintegration programme is dependent on Mr McGreevy’s preparedness to participate and be motivated to assist himself. I also accept the Department must be afforded some latitude of judgment in assessing the balance between the public safety, rehabilitation and reintegration of offenders with complex needs, and their freedom of movement in the community.
[117] The essential task of this Court is not to assess the merits of the Department and CRC’s decisions regarding the administration of the programme but to scrutinise its lawfulness. However, the difficulty that arises is that, notwithstanding where responsibility lies for the apparent “aridness” of the programme required to address Mr McGreevy’s rehabilitation and reintegration needs, I have reservations as to whether the content of Mr McGreevy’s programme aligns with that anticipated by the Parole Board.
[118] In imposing the special condition that Mr McGreevy undertake and engage in a reintegration programme approved by his probation officer between stipulated hours of each day of the week, the Board was clearly satisfied of the need for Mr McGreevy’s continued participation in such a programme. The Parole Board has repeatedly stated that the choice of the programme is a matter for the Department. However, on recent occasions when Mr McGreevy’s situation has been referred to it, the Parole Board has expressed concern regarding the programme. It remarked that it was important that the Department maintain its efforts directed to reintegration and rehabilitation. It seemed to the Board that “enhancements” may be required to ensure the programme achieves its objectives.
[119] Despite submissions to the contrary by the Department, I consider the situation has some similarities to that in Wilson v New Zealand Parole Board.24 In that case, the Parole Board imposed a condition that Mr Wilson undertake, engage and complete a reintegration programme approved by the probation officer, and abide by the rules of the reintegration programme. As in the present case, the Board imposed the order without knowledge of the actual reintegration programme proposed. Ronald Young J described the reintegration programme that was subsequently developed as a series of restrictions on Mr Wilson and a statement of intention to develop a “reintegration programme”. The programme provided as follows:
· I understand that integration staff members, who are providing me with care and support to assist with my reintegrative needs, will develop a programme of activities with me. This will include plans to address my reintegrative needs, as well as recreational and social activities. Further, a weekly plan of activities will be developed with integration staff. I will be fully involved in the weekly planning process.
[120] Ronald Young J observed that a reintegration programme is presumably one to assist an offender to reintegrate into the community in a way that is satisfactory and safe for others. However, he considered that, without any explanation, the conditions of the programme (effectively restrictions on movement and a requirement for monitoring and accompaniment) were difficult to justify. In the absence of detail as to the programme’s content, it was described as essentially “a plan to have a plan”. The Judge concluded:25
It would be wrong for a reintegration programme to be used as a back door method of placing further restrictions on Mr Wilson which were not directly authorised by the Parole Board and where they could be seen to be in conflict with other conditions set by the Board or conditions rejected by the Board and where they have no apparent reintegration purpose.
[121] Ronald Young J was prepared to declare that the reintegration programme developed by the Department was not authorised by the Act and was in breach of the New Zealand Bill of Rights Act. However, the condition of the Parole Board was itself lawful, because it simply authorised a reintegration programme as approved by the probation officer. Therefore, the Court concluded that a better course was to refer the
24 Wilson v New Zealand Parole Board [2012] NZHC 2247.
25 At [56].
matter back to the Parole Board to set particular conditions relating to the reintegration programme for Mr Wilson’s release.
[122] The Department sought to distinguish Wilson on the basis that monitoring during programme hours has been expressly authorised by the Parole Board’s condition and is not introduced as a “back door” restriction which is greater than or in conflict with other Parole Board conditions. However, the present conditions provide that while Mr McGreevy is in the care of CRC during the same hours as it administers the programme, he is to be accompanied and monitored by an agency staff member at all times. That does not address the issue of whether the Department is lawfully implementing a programme, pursuant to s 15(3)(b) of the Act for the purpose of reducing the risk of further offending by Mr McGreevy through his rehabilitation and reintegration.
[123] The placement of Mr McGreevy in the care of CRC during the stipulated hours is for the purpose of the rehabilitation and reintegration programme. The need for Mr McGreevy to be accompanied and monitored while in the care of the agency during the hours of the programme is based on the fundamental premise that he is engaged in a reintegration programme. Where such a programme is not being implemented, which Mr McGreevy has put in issue, justification for him being accompanied and monitored falls away. That is the very basis upon which the Department has justified its monitoring and accompaniment of Mr McGreevy since the first ESO in 2008.
[124] That requirement has become even more focussed since December 2016 when the Department sought to ensure the programme conditions complied with s 107K(3)(bb) of the Act. The condition requiring Mr McGreevy to participate in a programme must not require or result in him being monitored for longer than is necessary to ensure his participation in activities associated with the programme.
[125] Unlike in Wilson, there currently is no documented reintegration programme. While Ms Joseph in her first affidavit referred to a set of programme rules of 17 June 2016, they made no reference to the content of the programme. In any event, Ms Joseph advised in her later affidavit that those rules no longer regulate the
programme. She described it as “now chiefly governed by the conditions imposed by the Parole Board”. It follows that the situation is essentially the same as in Wilson.
[126] I appreciate from the evidence of Ms Joseph that the Department endeavours to produce weekly and monthly plans for Mr McGreevy, and that their content and implementation is significantly dependent on both the level of cooperation that can be obtained from him and the need to manage the risk Mr McGreevy presents. However, there does not appear to be an actual reintegration programme as contemplated by the Parole Board at the time it imposed the latest conditions on Mr McGreevy in November 2017.
[127] On the available evidence, there are regular planning meetings between staff who work with Mr McGreevy to manage him and to chart a plan for his week, in accordance with longer term monthly schedules. However, no overall strategy or plan was identified, other than to occupy Mr McGreevy for some hours each week. I have considerable reservations about whether that meets the requirement of the Parole Board’s condition of a reintegration programme for which a special condition can be imposed pursuant to s 15(1)(3)(b) of the Act. However, equally, I am not satisfied that Mr McGreevy has demonstrated that it does not.
Challenge to Parole Board conditions
[128] In December 2016, the Parole Board convened to hear the Department’s application to vary Mr McGreevy’s special conditions because of the imminent application of s 107K(3)(bb). That section mandated that any condition requiring an offender to participate in a programme must not result in that person being monitored for longer each day than is necessary to ensure the offender’s attendance at classes or participation in other activities associated with the programme.
[129] The Parole Board, in its decision of 1 December 2016, imposed a condition that whilst Mr McGreevy was in the care of his programme provider (CRC), he was required to be accompanied and monitored by an agency staff member at all times. That condition was continued by the Parole Board in its decisions of March 2017 and November of that year.
[130] For some reason that was not explained to me, the Parole Board has continued with the condition that Mr McGreevy participate in, comply with and complete an individual residential reintegration programme, and that as part of that programme be accompanied at all times by CRC staff. This is despite the condition previously referred to that Mr McGreevy, while in the care of CRC and between set hours, be accompanied and monitored, and despite there being another special condition requiring Mr McGreevy to undertake, engage in and complete a reintegration programme.
[131] Mr McGreevy seeks to challenge these conditions imposed by the Parole Board on the basis they go beyond what is sanctioned by s 107K(3)(bb). Mr Bailey, by reference to that provision, submitted that Mr McGreevy does not attend any classes and does very limited “other activities”. He submitted that it followed that the continuous monitoring of Mr McGreevy, presently for 50 hours per week, during the hours of his programme was unlawful.
[132] The Department objected to the introduction of this new claim which went beyond the present pleadings and sought that conditions imposed by the Parole Board be quashed; effectively that he should not be subject to the programme at all. Because that allegation was never formally pleaded, nor the subject of direct evidence, the Department understandably objected to its introduction. Mr Bailey submitted that it was in the interest of all parties to have the present proceeding resolve as many issues as possible relating to the management of Mr McGreevy’s ESO, and that, in any event, it is to be anticipated that the Parole Board would continue to abide the decision of this Court.
[133] I do not consider that in the circumstances it would be appropriate to widen the proceeding to include this belated claim and formally consider the issue. It represents a direct challenge to the lawfulness of the special condition imposed by the Parole Board and widens the ambit of the proceeding as presently pleaded. However, because of the approach I intend to take, the need to file further review proceedings to address the issue of whether the present conditions are consistent with s 107(3)(bb)(i) may be avoided.
Conclusions
[134] On the evidence before me, I have reservations whether the Department and CRC are providing a programme that meets the requirements of s 15(3)(b) of the Act pursuant to which Mr McGreevy can be accompanied and monitored to ensure his attendance and participation in associated activities. However, Mr McGreevy has not satisfied me that the Department and CRC are currently breaching the Act in the way they are implementing the programme, or that he is being subject to unlawful monitoring and accompaniment.
[135] I decline Mr McGreevy’s application for declarations that the Department and CRC have acted illegally or unreasonably and in breach of the New Zealand Bill of Rights Act. I am also not satisfied that the Department and CRC have acted out of any improper purpose in seeking to administer and implement Mr McGreevy’s programme as alleged, by requiring him to be accompanied and monitored. The allegation that the Parole Board acted with an improper purpose was not pursued in Mr Bailey’s submissions. In any event, I do not consider it is supported by any evidence adduced in this proceeding.
[136] Because of my concerns regarding the content of Mr McGreevy’s programme and whether it is meeting its intended purposes of reintegration and rehabilitation, I direct the Department refer the conditions regarding Mr McGreevy’s reintegration programme back to the Parole Board for its review and reconsideration in light of the observations I have made in this judgment. That course will also provide the Parole Board with the opportunity to consider the terms of its present conditions, particularly condition (8) of its decision of 27 March 2017.
[137] The Parole Board has to date taken care not to intrude into how the Department and CRC provides the programme which is the subject of its condition, or to review its content. However, the issues raised in this proceeding require the Parole Board to closely consider whether the programme currently being sought to be implemented accords with the requirements of the reintegration programme it ordered Mr McGreevy to engage with as a special condition of the ESO.
Costs
[138]Costs are reserved.
Solicitors:
Patient & Williams, Christchurch Crown Law, Wellington
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