Milne v Chief Executive of the Department of Corrections
[2019] NZHC 3137
•29 November 2019
IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY
I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE
CIV-2019-409-13
[2019] NZHC 3137
UNDER The Judicial Review Procedure Act 2016. IN THE MATTER OF
An application for judicial review in relation to the management of the applicant’s
Extended Supervision Order.
BETWEEN
ALLAN JOHN MILNE
Applicant
AND
THE CHIEF EXECUTIVE OF THE DEPARTMENT OF CORRECTIONS
Respondent
Hearing: 15 October 2019 Counsel:
A Bailey for Applicant
M N Zarifeh and W S Taffs for Respondent
Judgment:
29 November 2019
JUDGMENT OF WHATA J
This judgment was delivered by me on 29 November 2019 at 4.00 pm, pursuant to Rule 11.5 of the High Court Rules.
Registrar/Deputy Registrar Date: ………………………….
Solicitors: Hansen Law, Christchurch
Raymond Donnelly & Co, Christchurch
MILNE v THE CHIEF EXECUTIVE OF THE DEPARTMENT OF CORRECTIONS [2019] NZHC 3137 [29
November 2019]
[1] Mr Milne was released from prison on 31 January 2018, but he was subject to an extended supervision order (ESO), with intensive monitoring (IM) for 12 months. A special condition of his ESO is that he must reside at an approved address. It is a standard ESO condition that an offender must not reside at any address at which a probation officer has directed them not to reside.1 On 8 January 2019, he was told Corrections would not approve his then residential address beyond the period of his IM. I will refer to this as the first demand. The effect of this, he says, was to force him from his then home. Then on 11 January he was told in person that he must leave the address that day. I will refer to this as the second demand. He claimed that both demands were unlawful and unreasonable for mistake of fact and law, irrelevant considerations, irrationality and unfairness and thus infringed his rights to a fair process affirmed by s 27 of the New Zealand Bill of Rights 1990 (BORA) and unlawfully interfered with his tenancy rights.
[2] During the hearing Mr Bailey withdrew Mr Milne’s claims about the first demand. He was, with respect, sensible to do so. Mr Milne was residing at an address that was occupied by his programme provider, CRC Limited. Mr Milne had expressed concerns about the restrictions placed on him by CRC Limited. These concerns were mentioned at a Parole Board hearing about his ESO conditions in December 2018. The Parole Board said that it “did not regard it as appropriate for the Department to approve the residence to coincide with the address of the programme provider”. Corrections was therefore plainly justified in requiring Mr Milne to relocate to a different address.
[3] The decision of the Court of Appeal in McGreevy, helpfully supplied to me after the hearing by Mr Bailey, supports this conclusion.2 In that case, the appellant challenged ESO conditions requiring him to be accompanied and monitored at all the time. The Court there said:
[32] We agree with Mr Bailey’s submission that monitoring offenders such as Mr McGreevy outside the hours of the activities of the IRRP (Individual Residential Reintegration Programme) (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
1 Parole Act 2002, s 107JA(e).
2 McGreevy v Chief Executive of the Department of Corrections [2019] NZCA 495.
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.
[33] 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.
[34] 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.
[4] The decision therefore to disapprove Mr Milne’s ongoing accommodation with his programme provider was plainly mandated by the Act irrespective of the Parole Board decision. However, the remaining claim in respect of the second demand nevertheless raises an ongoing issue of reasonableness, that is: whether it was reasonable for Corrections to insist that Mr Milne move immediately. This decision addresses that issue.
Background
[5] On 27 September 2018, Mr Milne moved into an address on Sawyers Arms Road, in Christchurch (the Sawyers Arms address). These premises were leased by his programme provider, CRC Limited. Mr Milne was their tenant. Staff members and other persons subject to an ESO resided on the property, which consisted of two cottages. Mr Milne was however the only person subject to IM.
[6] Mr Milne was not happy with, among other things, his tenancy at the Sawyers Arms address. He brought an application to the Tenancy Tribunal alleging among other things breach of his right to quiet enjoyment. His discontent is also evident from submissions his counsel Mr Bailey made on his behalf to the Parole Board. As the Parole Board noted in its decision of 20 December 2018:
We note Mr Bailey’s submission that in terms of section 107K(3)(bb)ii) of the Parole Act, the Board may not impose a condition that will result in Mr Milne residing with the agency who is providing the programme. Ms Currie sought to distinguish the programme requirement from the condition requiring Mr Milne to live at an address approved by a Probation Officer. We do not agree with that interpretation. Although the condition imposed by the Board with respect to Mr Milne’s accommodation leaves it up to him to propose where he will live, which must then be approved by his Probation Officer, we do not regard it as appropriate for the Department to approve the residence to coincide with the address of the programme provider. That seems to us to be contrary to the intention of the accommodation restriction imposed by section 107(3)(bb)(ii) of the Act.
[7] This was followed by a letter from CRC dated 27 December 2018 giving Mr Milne 90 days’ notice of termination of his tenancy. The Parole Board decision, together with the concerns raised by CRC Limited, also triggered a rethink in Corrections about the suitability of the Sawyers Arms address for Mr Milne, and in a letter dated 8 January 2019, Ms Gibling for Corrections wrote to Mr Milne advising him that it would not approve his residence at the Sawyers Arms address after 31 January 2019. As noted, this was the first demand.
[8] This was followed by an email from Mr Bailey to Ms Gibling about, among other things, the timing of Mr Milne’s exit from the Sawyers Arms address, whether he would be placed at a Kirk Road address (on prison grounds), whether he would have to pay rent and how long he would reside there. Mr Bailey indicated that Mr Milne required answers to these issues before he would make a final decision about whether he would move to the Kirk Road address. Ms Gibling responded that as Mr Milne had nowhere else to go after 31 January, the Kirk Road address had become available and need only be temporary until Mr Milne found another address. She later confirmed that he would not have to pay rent and attached the rules of residence. Mr Bailey then raised further issues with the proposed address and rules of residence and repeated that clarification to all questions was required before Mr Milne would make a final decision to move. Ms Gibling responded to various of the issues raised, noting also that the proposed address was the only house that was available at that time.
[9] The foregoing email exchange concluded at about 3.26 pm on Thursday 10 January 2019. Soon after this, Ms Gibling and Mr Ryan Sterling (Acting Service Manager) visited Mr Milne to discuss moving. The next day, Mr Milne was asked to
attend a meeting at the probation centre and he did so with Mr Bailey present. At that meeting Mr Milne was told he could not reside at the Sawyers Arms address after 31 January and that CRC had voiced concerns about his behaviour. Ms Gibling notes those concerns in her affidavit. She states:
So that I could be more specific as to the exact concerns from CRC’s perspective, I left the meeting and called Annie McNicol from CRC. I took note of some of the wording she used to express her concerns and returned to the meeting. I did not note everything I knew to be an issue as I was already aware of a number of problems from multiple conversations with CRC staff. I informed Mr Bailey that I would email the same concerns to him however these proceedings were initiated before I had time to. The concerns I relayed included: the Applicant being more withdrawn; failing to complete expected household duties; the Applicant complaining about CRC staff, his conditions and rules of the house and his not allowing others the space or respect to make decisions for themselves in their own home. I told him that his behaviour had been unpleasant and that he had sworn at and been rude to staff. I told the Applicant that his decision to share information regarding other residents with his lawyer was inappropriate, that his pressuring others to have his lawyer represent them had been relayed to CRC by others as being stressful. I told him that encouraging others to manufacture complaints about their situation with the promise of $9,000 was unhelpful and unsettling. I reiterated that the move to Kirk Road would be temporary and could be a positive one and was intended as support not as a punishment.
[10] After the meeting Ms Gibling gave Mr Milne a letter revoking his permission to reside at the Sawyers Arms address. This is the second demand. Mr Milne also says that none of the alleged concerns were raised with him previously.
Is the case is moot?
[11] Mr Milne’s case is essentially moot insofar as Corrections could not, even it wanted to, approve the Sawyers Arms address after 31 January 2019. It is no longer a CRC Limited residence. But the claim in respect of the second demand is not moot to the extent that it raises legality and reasonableness issues and to the extent that it might be said Corrections infringed his s 27 BORA rights and or improperly interfered with his right to reside at the Sawyers Arms Address pursuant to his tenancy with CRC Limited.
[12] I note for completeness that the reviewability of a decision to disapprove a residential location was not addressed by the parties. No consideration has been given to the scheme of the Parole Act 2002 and the mechanisms available within that scheme
to review or otherwise challenge a decision to disapprove residence. I simply proceed on the basis that the decision is amendable to judicial review. This decision should not be treated as definitive on that point.
Reasonableness
[13] Mr Milne claims the second demand was unlawful under various heads. He says that the second demand was based on a mistake of fact, mistake of law, irrelevant considerations, illegality, and that it was irrational and unfair. But, to my mind his central complaint is that the second demand was plainly unreasonable. More specifically, he claims that:
(a)contrary to the view formed by Corrections, the Parole Board did not find that he could not reside at the Sawyers Arms address;
(b)rather, the Board found that he could not reside with CRC Limited staff;
(c)with his intensive supervision ending after 31 January 2019, there was no need for CRC staff to reside at the premises;
(d)other ESO offenders stayed at the Sawyers Arms Road address who were not subject to intensive supervision, so Mr Milne’s treatment was irrational and unfair;
(e)Corrections took into account a potential tenancy Tribunal claim without any basis for doing so, and which was in any event irrelevant;
(f)Corrections wrongly and unfairly considered concerns raised by CRC without properly consulting him or affording an opportunity to respond to alleged concerns about his behaviour; and
(g)Corrections effectively assisted CRC in circumventing his tenancy rights, and wrongly derogated from his right to fair process as affirmed by 27 of BORA.
[14] While Mr Bailey did not frame his argument precisely in the following terms, I understand him to be saying that the second demand, requiring Mr Milne to move immediately, was plainly unlawful, unreasonable and unfair, in that no reasonable decision maker, properly informed of the background, would demand Mr Milne’s immediate removal from the Sawyers Arms’ address.3
[15] In response to this issue, Mr Taffs submitted for Corrections that the decision to disapprove a residential address was nevertheless based on the Parole Board decision and on information provided by a trusted service provider, CRC. Moreover, he says that the matters raised by CRC would not have been new to Mr Milne. Finally, given that he had indicated he wanted to move previously, there was no substantive disadvantage to him.
Assessment
[16] I propose to address each of Mr Milne’s main contentions before turning to the issue of reasonableness.
The Parole Board decision
[17] As noted above, there can be no serious complaint about Corrections seeking to comply with a clear direction of the Parole Board. On the contrary, Corrections are bound by such directions as they relate to specific ESO offenders, unless and until set aside by the Board or a Court.4
CRC can move
[18] Mr Bailey’s submission that CRC staff need not stay at the Sawyers Arms address belies the reality of the situation. CRC provides rehabilitative services to clients. It also provides IM (24-hour monitoring) services. Mr Milne is a client of CRC. It enters into a contract of services with Corrections in respect of each of its
3 As to legality, reasonableness and unfairness see Council of Civil Service Unions v Minister for the Civil Service [1985] AC 374 (HL); Peters v Davison [1999] 2 NZLR 164 (CA) at 180.
4 Boddington v British Transport Police [1999] 2 AC 143 (HL) at 213; Murray v Whakatane District Council [1999] 3 NZLR 276 per Elias CJ: “It is settled law that every unlawful administrative act, except perhaps in extreme cases of clear usurpation of power, is operative until set aside by a Court.”
clients. At the time, the Sawyers Arms residence was one of only two residences approved for child sex offenders. Given this context, it was not at all realistic to expect CRC to move out to simply accommodate Mr Milne. Furthermore, CRC issued a 90- day notice terminating Mr Milne’s tenancy on 27 December 2018 because the Sawyers Arms address had been sold.
Other ESO persons allowed to stay
[19] I accept that the fact CRC and Corrections allow other persons subject to ESOs (and who were not subject to IM) to continue to stay at the Sawyers Arms Road address raises the spectre of inconsistency. But, given the clear direction the Parole Board gave to Corrections about Mr Milne, that different treatment is explicable.
CRC alleged concerns / unfair interference with rights
[20] As noted Ms Gibling identified the concerns CRC raised about Mr Milne. A full account of CRC’s concerns was also given by Joanne Mai Keele, the service manager at CRC. She confirms that she sent a letter terminating Mr Milne’s tenancy on 27 December because of the Parole Board direction. Ms Keele also refers to Tenancy Tribunal complaints made by another person represented by Mr Bailey and the concern that if Mr Milne remained at the Sawyers Arms address, he might “contrive a situation which would allow him to bring a claim in the Tenancy Tribunal”. She said that the Department “is aware of the tenancy issues Mr Bailey has been raising on behalf of his clients” and would have known that “if Mr Milne stayed at Sawyers Arms Road … it would be exposing CRC to another claim in the Tenancy Tribunal.”
[21]She identifies CRC’s main concerns as follows:
48Over the past three months or so, I consider that Mr Milne has become significantly more difficult and aggressive, both towards CRC staff and other residents. Some specific examples of incidents at Sawyers Arms Road that have concerned CRC include:
48.1He has entered into a relationship with another CRC client who resides at the property, which has led to an elevation of risk factors for both Mr Milne and the other client. CRC has noted a dramatic negative change in the behaviour of the other client. Among other things, the client has recently procured
for Mr Milne a SIM card and a "Pokémon" DVD (the significance of which is that it was part of Mr Milne's index offending). CRC staff understand that those items were obtained at Mr Milne's request;
48.2He has refused to engage in a meaningful way with his reintegrative programme, and has made comments to CRC staff to the effect that his victims consented to the offending, and that he "deserved" to offend because he "worked hard to get them" (I understand that "them" in this context is a reference to his victims);
48.3He has been verbally abusive and aggressive towards CRC staff. In one incident, following a discussion between another Sawyers Arms Road resident and a CRC staff member which did not involve Mr Milne, Mr Milne immediately reacted to the conversation and spoke aggressively towards his CRC staff member, calling CRC staff "fucking idiots";
48.4He has largely refused to engage with finding alternative accommodation, as noted above;
48.5He owes money to a bank which has resulted in him having a poor credit rating. This significantly hampers his chances of obtaining a rental property, but he has refused the budgeting assistance offered by CRC to help him clear the debt and improve his credit rating;
48.6On several occasions, he has openly spoken to Mr Bailey on the phone in the presence of CRC staff and other residents at the property and has reported openly to Mr Bailey on the movements of people to and from the property as they occur and, of greater concern, his opinion on the mental state of other residents. I believe that this has created an atmosphere of tension within the residents at the property;
48.7As noted above, he has told other residents on several occasions that their rights under the RTA are being breached and that if they instruct Mr Bailey they will get compensation in the order of $9,000; and
48.8He has given the contact details of other residents to Mr Bailey without their consent.
[22] Mr Milne queries the relevance of the attention given to Tenancy Tribunal complaints by other people. He also denies the allegations referred to by Ms Gibling and made by Ms Keele and is surprised that they were not brought up with him.
[23] I am not able to resolve whether the matters that Ms Keele identified did occur, but until Ms Gibling mentioned them on 11 January 2019, it is not evident that they were clearly identified to Mr Milne. If not, then I accept there is some unfairness to
Mr Milne as it appears the second demand was made in part because of these concerns. This is also significant because any decision to approve or in this case disapprove of a residential location affects the liberty of the person, particularly where, as here, the alternative residence is located on prison grounds. I also accept that a potential Tenancy Tribunal claim was an irrelevant consideration (assuming it was considered).
[24] But I do not accept that Corrections was obliged to consult with Mr Milne about CRC’s concerns or if it was, the failure to do so in this case was not material. First, there is no statutory requirement to consult, though I accept an affected person might hold a reasonable expectation that they will be afforded the opportunity to comment on information that is materially averse to them. Second, as noted, Corrections was plainly justified in seeking to ensure that it followed the direction clearly given by the Parole Board. Mr Milne was aware of this concern. The concerns raised by CRC were, at most, ancillary to this concern. Third, CRC was a trusted service provider, so it was not unreasonable for Corrections to place weight on its representations. Fourth, there was some need to move quickly, because of the limited availability of houses to accommodate child sex offenders. Given also the purpose of public protection underpinning the ESO regime, it was incumbent on Corrections to move quickly. Finally, like CRC’s other concerns, the prospect of a Tenancy Tribunal claim, even if wrongly considered, did not materially affect the legitimacy of the decision to disapprove the Sawyers Arms address. For completeness, I reject also the submission that the decision to disapprove was made for an improper purpose, that is to assist CRC. It is clear to me that the overriding purpose was to secure compliance with the Parole Board’s direction.
Was the decision unreasonable overall?
[25] Stepping back from the detail, it is easy to see why Mr Milne is upset by what happened. He was told he had to move out of his home immediately, having been told just 2 days earlier that he had 2-3 weeks to find alternative accommodation. It also appears that he was not told about some of the concerns raised by his landlord, CRC. The process adopted was therefore far from perfect. Given that the requirement to move directly bears on Mr Milne’s rights to freedom of movement and liberty affirmed at ss 18 and 22 of the BORA, his complaint is not without some justification. But
Corrections plainly had a proper basis for disapproving the address – the Parole Board had made it clear that it would be inappropriate for him to stay there beyond the termination of his IM. Whatever CRC’s concerns were, they were largely immaterial in any event. In addition, Corrections had to be sure that alternative accommodation was in fact available to house Mr Milne.
[26] Overall, therefore, and given Corrections’ duty to ensure protection of the public, the decision to disapprove, together with immediate relocation, was lawful and not unreasonable in the circumstances.
Costs
[27] If costs are sought and cannot be agreed, submissions may be filed within five working days.
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