McGreevy v Chief Executive of the Department of Corrections
[2019] NZCA 495
•16 October 2019 at 9 am
| IN THE COURT OF APPEAL OF NEW ZEALAND I TE KŌTI PĪRA O AOTEAROA |
| CA527/2018 [2019] NZCA 495 |
| BETWEEN | PATRICK JOHN MCGREEVY |
| AND | CHIEF EXECUTIVE OF THE DEPARTMENT OF CORRECTIONS |
| AND | NEW ZEALAND PAROLE BOARD |
| AND | CRC LIMITED |
| Hearing: | 12 September 2019 |
Court: | Gilbert, Venning and Woolford JJ |
Counsel: | A J Bailey for Appellant |
Judgment: | 16 October 2019 at 9 am |
JUDGMENT OF THE COURT
AThe appeal is allowed in part. We make a declaration that the first and third respondents acted unlawfully between 26 May 2008 and 22 August 2012 when they monitored the appellant 24 hours a day, seven days a week, outside the activities specified under the Individual Residential Reintegration Programme developed for him.
BThe appeal is otherwise dismissed.
CWe make no order for costs.
____________________________________________________________________
REASONS OF THE COURT
(Given by Venning J)
Introduction
Patrick McGreevy was made subject to an Extended Supervision Order (ESO) on 26 May 2008. The New Zealand Parole Board (Parole Board) imposed special conditions on him under the ESO. Mr McGreevy challenged the management and implementation of the conditions by the first and third respondents. Mander J dismissed his challenge.[1] Mr McGreevy appeals against that decision.
[1]McGreevy v Chief Executive of Department of Corrections [2018] NZHC 2006.
The first respondent, the Chief Executive of the Department of Corrections (the Department), is responsible for Mr McGreevy’s management and for the implementation of the conditions. The third respondent, CRC Ltd (CRC), is a non‑governmental organisation engaged by the Department to provide a reintegration programme and associated services. At all material times Mr McGreevy resided at premises provided by CRC while subject to the ESO.
Mr McGreevy says the Department and CRC acted illegally by requiring him to be accompanied and monitored up to 24 hours a day, seven days a week (24/7). He also says the Department and CRC breached their delegated powers and associated responsibilities by failing to provide him with an “Individual Residential Reintegration Programme” (IRRP) that met the requirements of the Parole Act 2002 (the Act) and as directed by the Parole Board.
High Court decision
Mander J rejected Mr McGreevy’s challenges. The Judge found that it was lawful for Mr McGreevy to be monitored up to 24/7 between 26 May 2008 and 22 August 2012. He also found that Mr McGreevy had not established he was being monitored up to 24/7 from 22 August 2012 on. Finally, while expressing some reservations, the Judge found Mr McGreevy had not established the programme provided by the Department and CRC did not meet the requirements of the Act.
The appeal
Mr McGreevy says the Judge was wrong to reach those conclusions. He seeks judgment and declarations to the effect that he was unlawfully monitored and that the Department and CRC failed to provide him with a reintegration programme. In addition, he seeks an order quashing the special condition of the ESO requiring him to participate in a programme.
The ESO regime
The ESO regime was introduced by an amendment to the Act.[2] It was created in response to public concern about the release of high risk sex offenders from prison into the community. It enables the Parole Board to impose conditions on eligible offenders for a period of up to 10 years following release.[3] The relevant provisions of the Act have been amended several times since the introduction of the ESO regime in 2004.
ESO conditions
[2]Parole (Extended Supervision) Amendment Act 2004, s 11.
[3]Parole Act 2002, s 107I(4).
When an ESO is imposed the standard conditions set out in s 107JA of the Act apply. In addition, at the time the ESO was imposed on Mr McGreevy, the Parole Board could, on the application of the Chief Executive or a Probation Officer, also impose special conditions.[4]
[4]Section 107K(2). This section was repealed on 12 December 2014 by s 18(1) of the Parole (Extended Supervision Orders) Act 2014.
Section 15 provides for the types of special conditions that may be imposed. They can include residential restrictions and conditions requiring participation in a rehabilitation and reintegration programme to reduce the risk of further offending.[5]
[5]Section 15(2)(b).
Section 16 defines such a “programme” for the purposes of s 15 as meaning, inter alia, attendance at any medical, psychological, social, therapeutic, cultural, educational, employment-related, rehabilitative, or reintegrative programme.[6]
[6]Section 16(b).
Section 33(2) confirms that an offender subject to the residential restrictions is required:
(a) to stay at a specified residence:
(b) to be under the supervision of a probation officer and to co‑operate with, and comply with any lawful direction given by, that probation officer:
(c) to be at the residence—
(i) at times specified by the Board; or
(ii) at all times:
(d) to submit, in accordance with the directions of a probation officer, to the electronic monitoring of compliance with his or her residential restrictions:
…
From 1 October 2007 to 4 April 2009 the residential restrictions could include a requirement that the offender submit to being accompanied and monitored for up to 24 hours a day by an approved person.[7] However, s 107K(3)(b) confirmed that such residential restrictions could apply only “within the first 12 months of the term of the order”.
[7]Section 107K(2).
Section 107K was amended from 4 April 2009. The amendment clarified that while a residential restriction, requiring the offender to be at the residence at all times, could only apply within the first 12 months of the order, partial residential restrictions (i.e. less than 24/7) could be imposed for the full duration of the ESO.
Section 107K(2) (as amended), also confirmed that where a residential restriction was imposed on the offender, requiring them to be at the residence at all times, the offender could also be required to submit to being accompanied and monitored for up to 24/7 by an approved person.[8] But there was no ability to impose such a monitoring requirement where partial residential restrictions for less than 24/7 had been imposed.
[8]A person authorised by the Chief Executive to undertake person-to-person monitoring: s 107K(2).
From 12 December 2014, s 107K was further amended. The ability of the Parole Board to impose a 24/7 monitoring and supervision condition was removed. Only the Court may now impose such an “intensive monitoring” condition.[9]
Was it unlawful to monitor Mr McGreevy up to 24/7 between 26 May 2008 and 22 August 2012?
[9]Parole Act, s 107IAC.
Mr McGreevy says that from the imposition of the ESO on 26 May 2008 until either 15 April or 22 August 2012 he was unlawfully accompanied and monitored for up to 24/7 without authority.
The reference to the two dates arises in the following way. Initially Mr McGreevy was subject to a curfew. Then, from 16 April 2012 Mr McGreevy was subject to electronic monitoring from 10 pm to 7 am Monday to Friday and from 10 pm to 10 am on the weekends. The Parole Board decision of 16 April 2012 did not, however, refer expressly to the hours of his IRRP. On 22 August 2012 the Parole Board specifically confirmed the IRRP hours. From that date, Mr McGreevy was placed in the care of CRC between 7 am and 10 pm Monday to Friday and 10 am and 10 pm on Saturdays and Sundays.
In its pleading the Department accepted that until 16 April 2012 Mr McGreevy was accompanied and monitored for up to 24/7. Mr Bailey submitted that during the hearing in the High Court the Department accepted it was more likely to be 22 August 2012 when the monitoring up to 24/7 ceased. Ms McCall did not challenge that, and addressed her submissions to us on the basis the relevant time period was 26 May 2008 to 22 August 2012. We proceed on that basis.
The Department and CRC argue that until 22 August 2012, when Mr McGreevy’s IRRP became subject to specified hours, the monitoring up to 24/7 was lawful. Mr McGreevy was not monitored as part of his residential restrictions. Rather, he was monitored to ensure compliance with the IRRP, and such monitoring was impliedly authorised.
Ms McCall noted that monitoring could refer to person-to-person (line of sight) monitoring or to electronic/GPS monitoring. She says that the restriction in s 107K relating to how long person-to-person monitoring can last only arises in the context of residential restrictions. It is the Department’s case that other forms of monitoring were permitted to ensure Mr McGreevy’s compliance with the condition of his IRRP including to ensure his attendance at the programme, given that he absconded several times.
Mr McGreevy is a New Zealand citizen. He is entitled to the protections under the New Zealand Bill of Rights Act 1990 (NZBORA). In particular, he is entitled to freedom of movement and residence.[10] Such rights can only be constrained to the extent prescribed by law and as can be demonstrably justified in a free and democratic society.[11]
[10]New Zealand Bill of Rights Act 1990, s 18(1).
[11]Section 5.
The Department acknowledges that s 107K of the Act must be read consistently with the NZBORA and that decisions of the Parole Board or the Department in implementing the special conditions must be consistent with the NZBORA. The Department accepts that monitoring Mr McGreevy for up to 24/7 is a constraint on his freedom of movement. However, the Department submits the limits on Mr McGreevy’s rights are rationally connected to public safety, go no further than are necessary to achieve that objective, and are proportionate to the importance of the objective.
The authority for the constraint on Mr McGreevy’s liberty must be found in the provisions of the Act and the conditions imposed by the Parole Board from time to time. As noted above, only a full time residential restriction (which could only apply for the first 12 months and which Mr McGreevy was not subject to) could include a requirement that he submit to being accompanied and monitored up to 24/7.
The Department and CRC rely on the IRRP to justify the monitoring up to 24/7. On 15 October 2008 the Parole Board imposed the following residence and programme conditions on Mr McGreevy:
1.Reside at an address approved in writing by the Probation Officer, and comply with the rules of the residence to the satisfaction of the accommodation provider and the Probation Officer, and not to move from that address without the prior written approval of the Probation Officer.
2.Participate in, and comply with and complete all aspects of the [IRRP] and comply with the rules of the programme to the satisfaction of the programme provider and the Probation Officer.
3.Not to enter or remain at any place (other than the approved residence or other location approved in writing by a Probation Officer in accordance with electronic monitoring requirements and according to the one on one supervision and activity schedule requirements of the provider);
i.Between the hours of 12 midnight to 9am and 3pm to 12 midnight Monday to Friday; and
ii.Between the hours of 12 midnight Friday to 12 midnight Sunday.
…
(Emphasis original).
The initial curfew provisions were further amended at various times by the Parole Board in its decisions of 19 May 2009, 2 February 2011, 15 December 2011 and 11 April 2012, but at no stage was Mr McGreevy made subject to a residential restriction that required (or authorised) his being accompanied or monitored up to 24/7 as part of those conditions.
Mander J considered that the condition imposed by the Parole Board in October 2008 (and operative until 2012) that Mr McGreevy comply with and complete all aspects of the IRRP entitled the Department to monitor and accompany him for that purpose.[12] The Judge concluded on this point:
[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.
(Emphasis added).
[12]McGreevy v Chief Executive of Department of Corrections, above n 1, at [50].
In reaching that conclusion the Judge accepted the Department’s argument that it was implicitly authorised to monitor and accompany Mr McGreevy up to 24/7 to ensure his participation in and compliance with the IRRP.
The Department points out that on numerous occasions Mr McGreevy had demonstrated he could not manage his risk independently and without monitoring 24/7 may not have met the basic criteria for participation in the programme, namely attending it rather than absconding.
CRC’s position is that it undertook monitoring of the appellant pursuant to its obligations to the Department and lawfully imposed a programme condition which implicitly authorised monitoring as required.
The Department and CRC’s reliance on implicit authorisation does not sit comfortably with Mr McGreevy’s rights and the need for express authority to override those rights.
As the justification advanced for the up to 24/7 monitoring was to ensure compliance with the IRRP, it is helpful to consider how the IRRP operated and what it involved. Ms Joseph, the Department’s District Manager, confirmed that as part of the IRRP, Mr McGreevy was provided with activities designed to progress his living skills, develop safe recreational activities, and enhance socialisation in the community. She provided examples of optimal day by day plans under the IRRP.
The plans show that the activities Mr McGreevy participated in as part of the programme typically started at 8 or 9 am each day with the preparation of breakfast and concluded at 5 pm with preparation of dinner. There is no evidence that the IRRP operated outside those times, even when the hours were not defined as they were from 15 October 2008 until 22 August 2012.
We agree with Mr Bailey’s submission that monitoring offenders such as Mr McGreevy outside the hours of the activities of the IRRP (including whilst asleep) cannot be justified as meeting the statutory objectives of the IRRP of rehabilitation and reintegration in accordance with the requirements of s 15(3)(b) of the Act. Mr McGreevy cannot be said to have been “participating” in an IRRP 24/7. Monitoring when no attempt was being made to deliver the IRRP was not permitted.
Next, s 107K only permitted an offender to be accompanied and monitored up to 24/7 if the offender was subject to a 24-hour residential restriction, and then only for the first 12 months of the term of the ESO. The Parole Board had not imposed such a condition on Mr McGreevy. The Department could not implicitly have been granted such an extensive power.
The Judge appeared troubled by this issue but apparently reconciled it by relying on the fact Mr McGreevy was subject to a residential programme. But the IRRP programme was not residential in the sense of a programme such as an alcohol and drug rehabilitation programme. Rather, Mr McGreevy was subject to residence conditions and was also subject to a separate requirement that he participate in and complete an IRRP. They were two separate conditions. Although aspects of the IRRP were carried out where Mr McGreevy was living it was not a residential programme as such. To the extent that aspects of the programme were carried out at the residence where Mr McGreevy lived, they ceased at 5 pm. There was still no need for him to be monitored for up to 24/7.
The Department’s argument that s 107K did not expressly prohibit 24/7 monitoring to ensure compliance with the IRRP is not an answer. The monitoring was not permitted unless expressly provided for. At the time person-to-person monitoring was permitted under s 107K if imposed by the Parole Board as an express condition but even then, for no longer than 12 months.
Ms McCall also submitted that the introduction of s 107K(3)(bb) on 12 December 2014 supported the Department’s interpretation. Section 107K(3)(bb) sought to restrict the periods during which monitoring was available with respect to particular programme conditions. She submitted that the amendment would not have been necessary if monitoring up to 24/7 was not already available to ensure compliance with a programme. But the amendment is also consistent with an interpretation that its purpose is to ensure that monitoring should be for no longer than is necessary to ensure attendance and participation in the programme. For example, the programme might occupy eight hours, but only five hours monitoring might be required to ensure an offender’s attendance or participation. Section 107K(3)(bb) would only authorise monitoring for five hours.
Ms McCall also referred to s 107ZB(1)(c)(i) which contemplated that the Parole Board could impose conditions requiring monitoring for longer each day than was necessary to ensure participation in the programme. But that section only applied where the “terms” of the condition required monitoring for longer than necessary to ensure attendance. There was no such “term(s)” attached to the conditions relating to Mr McGreevy’s IRRP.
We note that in its decision of 22 August 2012 the Parole Board sought to clarify that it was part of Mr McGreevy’s IRRP that he be accompanied by CRC staff at all times. But that reference must be read as at all times that the IRRP was being delivered. As we have noted, it was not a 24/7 programme, even before its hours were fixed. We do not read that attempted clarification by the Parole Board to amount to an authorisation for monitoring beyond the hours the programme was being delivered.
The monitoring cannot be justified on the basis that it was necessary to monitor Mr McGreevy outside the delivery of the IRRP to ensure that he attended the IRRP. The Department and CRC argue that later, when the hours of the IRRP were defined, Mr McGreevy was not monitored outside those hours. There could not have been any broader remit to monitor before then for that purpose.
For those reasons we conclude that the monitoring of Mr McGreevy up to 24/7 from 26 May 2008 until 22 August 2012 was not authorised either by the provisions of the Act or by the IRRP imposed by the Parole Board. The first and third respondents acted unlawfully between 26 May 2008 and 22 August 2012 when they monitored the appellant 24 hours a day, seven days a week, outside the activities specified under the IRRP developed for him.
Was Mr McGreevy monitored up to 24/7 from 22 August 2012?
Mr McGreevy’s second ground of appeal was that the Judge was wrong to conclude that he had not established he was being monitored up to 24/7 after 22 August 2012.
The Department submits Mr McGreevy was not subject to person-to-person monitoring up to 24 hours a day from 22 August 2012 on. From that date his programme hours were defined. During the specified hours of his programme he was subject to person-to-person monitoring, but he was not monitored in that way outside the hours. The electronic/GPS monitoring applied during his partial residential restrictions.
The Parole Board decision on 22 August 2012 applied the following special conditions to Mr McGreevy’s ESO:
1.To reside at … Racecourse Road, Sockburn, Christchurch and not move from that address without the prior written approval of a Probation Officer.
2.To comply with the requirements of partial residential restrictions and submit to the electronic monitoring as directed by the Probation Officer between 10pm and 7am Monday to Friday and between 10pm and 10am on Saturdays and Sundays, unless absent in accordance with section 33(4) of the [Act].
…
6.To be placed in the care of an agency, approved by the Chief Executive, being Christchurch Residential Care (CRC) between 7am and 10pm Monday to Friday and 10am and 10pm on Saturdays and Sundays, unless alternative or shorter hours are approved in advance in writing by the Probation Officer.
7.Participate in, and complete the Individual Residential Reintegration Programme (IRRP) provided by Christchurch Residential Care (CRC) and comply with the rules of the programme to the satisfaction of the programme provider and the Probation Officer. The purpose of the programme is to:
· enhance living skills;
· develop safe recreational activities;
· enhance socialisation in the community;
· provide pro-social mentoring and support.
Mr McGreevy says he continued to be monitored up to 24/7 after 22 August 2012. He filed three affidavits in the High Court. In his second, extensive, affidavit he said that between 2012 and 2015 he lived at Racecourse Road with only one other person (another ESO offender). A staff member was always in the house and he was given instructions by the CRC staff during all hours. He noted he faced prosecution for breaching a house rule at 4 am on 17 December 2014 (but was not convicted).
A main thrust of Mr McGreevy’s argument is that there was always a CRC staff member present in the house at Racecourse Road after 22 August 2012. He argues there would have been no reason for such an expense to be incurred unless it was to monitor him.
Mr Bailey submitted that if, as it said it did, the Department (by the agency of CRC) went from monitoring 24/7 to ceasing the arrangement on 22 August 2012 the changes should have been substantial and well documented. On the respondents’ evidence the monitoring reduced from up to 168 hours per week to 99 hours per week. But in effect there was no practical change while Mr McGreevy lived at Racecourse Road.
Mr Bailey criticised how the Judge dealt with this issue:
[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.
He submitted the Judge had failed to distinguish between the first and second placements.
Mr Bailey submitted there was a stark difference in Mr McGreevy’s living arrangements when he moved to Sawyers Arms Road. Multiple people resided there and some were subject to 24/7 monitoring.
But the fact the Department was required to have a person on site at Sawyers Arms Road does not mean the house monitor at Racecourse Road was there to monitor Mr McGreevy up to 24/7. While Mr Bailey criticised the Department and CRC’s evidence, it was open to the Judge to accept it.
Mr Gibbs, a manager employed by the Department, confirmed that the role of the supervisor in the house at Racecourse Road, Sockburn, was not to watch the specific offenders or to monitor them outside their agreed programme hours. Rather it was to “ensure the safety and security of everyone, and property at the address”. Later, when Mr McGreevy was at the Sawyers Arms’ address, the supervisor (house monitor) was not monitoring the offenders subject to intensive monitoring as they had individual staff members dedicated to them.
Mr Gibbs said:
19.Round the clock oversight was not a baseline requirement of Mr McGreevy’s programme since 2012. He has never been the subject of [intensive monitoring]. This is detailed by the special condition wording at the time which stated that the monitoring of Mr McGreevy was only to occur during programme hours. There have been occasions since 2012 when Mr McGreevy’s behaviour caused the contracted agency to provide a more intense level of monitoring, as agreed by the Department. These intense monitoring periods were put in place to manage his risk of self‑harming, through hunger strikes, or his risk of absconding.
Ms Joseph confirmed CRC staff were not required to monitor Mr McGreevy overnight. While CRC staff may have been present at the address overnight, they would be in the office, effectively acting as a building custodian. Importantly, Ms Joseph confirmed that if Mr McGreevy left the address the staff would alert Police but would not prevent him leaving.
Her evidence was:
21.… Staff are [also] present overnight to monitor the conditions of other offenders at the same residence with more stringent conditions. CRC may also choose to have an additional staff member present to manage the residence overnight, as might be done at a hostel, but the Department’s understanding is that they would generally be in the office area not watching Mr McGreevy. Staff would of course take steps if they became aware of some health and safety concern overnight but they are not there to monitor Mr McGreevy in the way that they do when, for example, accompanying him on outings. If he were to leave the address when he was not supposed to, staff would notify Police but would not prevent him from leaving.
While that evidence was primarily directed at the Sawyers Arms’ address, Ms Joseph was extensively cross-examined on the arrangements at Racecourse Road. Her evidence remained that:
One of the areas I do not agree with is that Mr McGreevy is managed 24/7 by the programme provider and I want to be really clear about that, that I don’t believe he is monitored 24/7 by the programme provider. He is, however, monitored outside his programme hours by electronic monitoring so he may believe he’s monitored 24 hours, but there is a difference in that level of monitoring.
Ms Keele, CRC’s High Risk Service Manager, confirmed Mr Gibbs and Ms Joseph’s evidence so far as it related to CRC’s role and involvement with Mr McGreevy’s IRRP.
Mr Bailey also relied on the fact that the Department made an application to the High Court for intensive monitoring in early November 2016 to support the submission Mr McGreevy continued to be monitored up to 24/7 after 22 August 2012. Mr Bailey submitted there was no rational reason why the Department would wait until November 2016 to apply to have Mr McGreevy subjected to intensive monitoring if he had not been monitored in that way since 22 August 2012. If he posed such a risk, surely the application should have been made earlier.
The application for intensive monitoring was made in the context of an application to extend the ESO for a further 10 years. On 12 December 2014 the power of the Parole Board to impose conditions authorising person-to-person monitoring for up to 24 hours on offenders subject to full-time residential restrictions (for up to 12 months) was revoked and given instead to the sentencing court. That special condition was renamed an intensive monitoring condition.[13]
[13]Parole Act, s 107IAC.
The application to the Court for intensive monitoring was made on the basis of the Department’s assessment of Mr McGreevy’s behaviour and response to the programme at the time. While intensive monitoring was sought, it was not granted. In her judgment on the application Dunningham J confirmed there is a distinction between supervision at the residence and intensive monitoring. The Judge considered the existing provisions adequate. In doing so, she distinguished between Mr McGreevy’s existing conditions and intensive monitoring 24/7.[14]
[14]Chief Executive of Department of Corrections v McGreevy [2017] NZHC 527 at [23].
The application for the further ESO was made following the amendments to the Act in 2014. The Department also applied to the Parole Board for an amendment to Mr McGreevy’s conditions to take account of the amendments to the legislation.
At the same time as the amendment was made to provide for intensive monitoring applications to be made to the Court, s 107K was also amended to include s 107K(3)(bb) which clarified that a special condition imposed pursuant to s 15(3)(b), requiring an offender to participate in a rehabilitative programme, must not result in the offender being monitored or subject to restrictions “longer than necessary” to ensure participation in the programme. A transitional provision enabled existing, non‑compliant programmes to be amended by 12 December 2016.[15]
[15]Parole Act, s 107ZB(2).
Mr McGreevy’s conditions were reviewed in 2016 to ensure compliance with s 107K(3)(bb). The Department accepted the amendment to the legislation meant it might not be possible to continue with the regime that Mr McGreevy had been subject to because he may have been monitored longer (during his programme hours) than was necessary to ensure compliance and participation in the programme. Ms McCall submitted it was for that reason the Department went back to the Parole Board to seek an amendment to the conditions.
Mr Bailey submitted Mr McGreevy either was or was not monitored 24/7 after 22 August 2012. He submitted the Judge appeared reluctant to make findings against the respondents and ignored the fact that in its November 2016 report to the Parole Board the Department asked the Parole Board to commence the appellant’s new ESO conditions on the last day the transitional provision applied. But that does address the Department’s response on this issue. It considered there was a risk that monitoring for the entire period of the programme hours might, in light of the amendment, not be authorised. It was for that reason the application to change was made. It would only become unauthorised on the expiry of the transitional period, there was no reason to amend it before then.
Mr Bailey noted that in its report of 18 November 2016 in support of the application to vary the conditions the Department referred to offenders subject to IRRP’s being monitored person-to-person when not necessarily participating in programme related activities, and in most cases 24 hours a day. He submitted that was an acknowledgement Mr McGreevy was subject to 24/7 monitoring. Mr Bailey also pointed out the observations of the Parole Board (in a decision of 6 November 2017) that for much of the time “he has been subject to full-time person-to-person monitoring”.
The Department’s response to that point is that the reference in the report was generic and was not specifically relevant to Mr McGreevy. The Judge accepted that Mr McGreevy’s personal position could be different:
[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.
The ESO conditions imposed on 22 August 2012 authorised monitoring during the programme hours and also provided for electronic monitoring outside the programme hours. Section 107K(3)(bb) does not prohibit monitoring as part of a programme condition. It just imposes restrictions on the extent of the monitoring. Some level of monitoring was permitted during all relevant periods under the Act.
We are not persuaded the Judge was wrong, on the basis of all the evidence before him (including the extensive cross-examination of Ms Joseph), to have concluded that Mr McGreevy had not proven, on the balance of probabilities, that he was subjected to 24/7 person-to-person monitoring from 22 August 2012.
Was the programme compliant?
While the Judge had reservations whether the Department and CRC were providing a programme that met the requirements of s 15(3)(b) of the Act he ultimately found that Mr McGreevy had not satisfied him they were in breach of the Act in the way that they were implementing the programme. The Judge did, however, direct the Department to refer the conditions regarding Mr McGreevy’s reintegration programme back to the Parole Board for its review and reconsideration in light of the observations in his judgment.
Mr Bailey criticised the IRRP as not having been developed for bona fide purposes. He submitted that rather, it was designed to monitor Mr McGreevy and little more. Mr Bailey criticised the lack of any documentary evidence of programme goals or strategies and submitted that the Judge should have determined that Mr McGreevy was not being provided with an appropriate reintegrative programme. Mr Bailey also criticised the programme rules which, he submitted, were supportive of Mr McGreevy’s claims the programme’s conditions were not to provide reintegrative assistance but rather were being used as a back-door way to monitor him.
In response, Ms McCall submitted that, unlike the plan criticised in Wilson v New Zealand Parole Board the IRRP was not “a plan to have a plan”.[16] Corrections’ actions in implementing the programme had a reintegrative process but Mr McGreevy was largely resistant which frustrated the plan’s objective.
[16]Wilson v New Zealand Parole Board [2012] NZHC 2247 at [53].
A programme imposed as a special condition must be designed to: [17]
(a)reduce the risk of reoffending by the offender; or
(b)facilitate or promote the rehabilitation and reintegration of the offender.
[17]Parole Act, s 15(2)(a) and (b).
Mr Gibbs deposed that a reintegrative programme is tailored to the risks posed by the individual offender and their particular reintegrative needs. It encourages, and is dependent upon, the offender engaging in activities which are intended to strengthen his ability to manage his own risk. The programme may be basic, at least at first.
We accept that many offenders may require assistance with basic life skills such as cooking, budgeting, shopping and how to safely occupy their time. Basic skills are encouraged such as cooking, cleaning, gardening, and even the requirement that the offender pay rent can assist them in making financial planning and understanding financial obligations.
As is apparent from Mr McGreevy’s pre-sentence report, prior to imprisonment he had a limited work history and a pattern of moving from crisis to crisis. The IRRP provided some stability as a basic step for his reintegration into the community. For the relevant period Mr McGreevy largely failed to engage with the programme.
Both the Department and CRC make the self-evident point that the content and effectiveness of the programme is in part, at least, dependent on Mr McGreevy’s willingness to participate and engage. That is a matter that the Parole Board itself observed. In the decision dated 1 December 2016 it noted:
It does not appear to us, however, that present arrangements are assisting Mr McGreevy to make the progress with his rehabilitation or reintegration that would have been expected by the Board. In part, at least, this is due to Mr McGreevy’s superficial engagement, his apparent lack of motivation, and his tendency to isolate himself.
Then on 6 November 2017:
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.
Attempts were made to expand the programme. An attempt was made to engage Mr McGreevy in further study, but issues arose with inappropriate computer use. Ms Joseph confirmed that the Department encouraged Mr McGreevy to complete a weekly planner intended to provide structured activities to enable him to progress his living skills, develop safe recreational activities and enhance socialisation in the community. Regular meetings were held between staff to discuss the progress and management.
We do not accept Mr Bailey’s submission that IRRPs generally and specifically in relation to Mr McGreevy were not developed for bona fide purposes. On the evidence, including the Parole Board reports, while aspects of the IRRP were basic, that was necessary because of Mr McGreevy’s personal circumstances and needs. The programme could have been developed over time had Mr McGreevy responded more appropriately to it at the early stages of the programme. His failure to engage in some ways constrained the development of the programme. We reject the last head of claim.
There were a number of other issues raised by Mr McGreevy in his pleadings which were not pursued either in the High Court or on appeal. They included issues related to his tenancy agreement, rental obligation and house rules. Mr Bailey confirmed that it was accepted the issues were matters for the Tenancy Tribunal.
Result
The appeal is allowed in part. We make a declaration that the first and third respondents acted unlawfully between 26 May 2008 and 22 August 2012 when they monitored the appellant 24 hours a day, seven days a week, outside the activities specified under the Individual Residential Reintegration Programme developed for him.
The appeal is otherwise dismissed.
Costs
No costs were sought. We make no order for costs.
Solicitors:
Patient & Williams, Christchurch for Appellant
Crown Law Office, Wellington for First Respondent
Chapman Tripp, Christchurch for Third Respondent
4
3
0