Milner v New Zealand Parole Board

[2022] NZHC 1631

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE

CIV-2022-485-0008

[2022] NZHC 1631

UNDER

the Judicial Review Procedure Act 2016

IN THE MATTER

of an application for judicial review

BETWEEN

ETHAN MILNER

Applicant

AND

NEW ZEALAND PAROLE BOARD

Respondent

Hearing:

23 June 2022

Counsel:

C J Tennet for Applicant

M S Smith and V J Owen for Respondent

Judgment:

11 July 2022

JUDGMENT OF SIMON FRANCE J

[1]    Mr Milner was a recalled prisoner seeking parole.  He was denied parole on  3 June 2021. The Parole Board identified various things that needed to occur before his next appearance in November 2021. When Mr Milner appeared in November 2021 he considered he had successfully done the various things indicated in June. However, he was not released on parole, with the Board considering more psychological intervention was still required. Mr Milner then unsuccessfully sought a statutory internal review of that decision.

[2]    These two decisions (denial of parole in November and the subsequent unsuccessful review) are the focus of this proceeding. Their relevance has been somewhat reduced by the fact that at the next hearing, on 1 March 2022, the Board directed Mr Milner’s release on 29 March 2022, and that occurred. This layer of

MILNER v NEW ZEALAND PAROLE BOARD [2022] NZHC 1631 [11 July 2022]

mootness, plus my assessment that the proceeding lacks merit factually and legally means the decision will be somewhat brief.

[3]    Rather than identify the relief sought, it is convenient to view the proceedings through the key challenges:

(a)First, it is argued that the Parole Board in June laid out a pathway to parole which Mr Milner travelled successfully. The decision of the November Panel to deny parole is said to be a “u-turn” contrary to Parole Board policy. If it is not contrary to policy to do a “u-turn”, it is submitted it should be.

(b)Second, it is argued that it was an error for the Board member who reviewed and upheld the June decision to then be convenor of the November Board. The challenge is advanced under the heading of predetermination.

(c)Third, it is submitted the November panel gave insufficient reasons for not following the pathway laid out in June.

(d)Fourth, it is submitted the review failed to address the pre- determination challenge to the November decision.

[4]    Counsel for the Parole Board appeared to assist the Court in terms of relevant law but not to defend the substantive correctness of the decisions under challenge.

The June decision

[5]    By way of background, Mr Milner had twice been released on parole on his current sentence but each time had been subject to a recall. The second recall was made final on 7 September 2020. The June 2021 hearing was Mr Milner’s second since this recall.

[6]    The Board noted the concerns about Mr Milner’s rapid return to substance abuse when in the community. Subsequent to recall, Mr Milner had started but not

completed a drug treatment programme. Since he was removed from that programme, Mr Milner had been having counselling sessions with a psychologist, with the focus being managing his stress and anxiety. He had also been prescribed medication.

[7]The June Board concluded:

11.Stress and anxiety is something that Mr Milner refers to in his safety plan which he has provided to the Board. In our view, it is important he continue the mental health counselling he has recently started to provide confidence it is able to be managed.

12.He also, in our view, needs to complete an intensive DTP programme in prison before he leaves. For this reason, notwithstanding the availability of a place on the Bridge Programme, the Board is declining parole today. As recommended, we hope that after its completion he can start to refresh treatment gains from the STURP and integrate those into his learnings from the DTP with a psychologist.

13.We also support the recommendation that he engage in further personal skill development including building and developing skills to manage avoidant behaviour and a lack of disclosure.

14.Mr Milner will be seen again in November 2021. This will enable him to complete the DTP and start the work with a psychologist before he returns to the Board. It will also enable him to work further on his response to anxiety and stress so that he can satisfy the Board he is able to manage it.

15.Mr Milner needs to ensure his release plan meets his significant reintegration support needs. As the psychologist recommended, he needs to increase his support network and find stable accommodation in an area where opportunities for daily structure can be provided. Whether his release proposal includes a residential programme, such as the Bridge, is a matter he may wish to discuss with programme facilitators on the DTP.

[8]    The meaning and intent of these comments can be assessed both on their own terms but also informed by the statutory context. First, and most importantly, the Parole Act 2002 (the Act) provides that no-one has an entitlement to parole.1 Offenders may only be released when the Board is satisfied this can be done without exposing the community to “undue risk”.2 Section 7 provides that release decisions must be made on the basis of all the information available to the Board at the time of the decision.

1      Parole Act 2002, s 28(1AA).

2      Section 28(2).

[9]    Self-evidently, indications of pathways and future outcomes are contingent, and necessarily so. All that is certain is that the June Board did not consider Mr Milner then ready for release, and felt more progress was needed in several areas. To this end, the Board identified that Mr Milner:

(a)needed to continue the work he is doing in managing stress and anxiety so the Board can have confidence he is able to manage it;

(b)needed to complete a Drug Treatment Programme;

(c)once he had done that, needed to do work to refresh previous gains from a Special Treatment Unit Rehabilitation Programme he had done previously. This required starting work with a psychologist;

(d)needed to engage in further personal skills development; and

(e)needed to firm up his accommodation and support network proposals.

[10]   To view this decision as some form of commitment to release at his next appearance, as Mr Milner seemingly did, is neither a reasonable nor available inference. Several of the activities involve achieving progress and outcomes. For example, the Board required work to be done with a psychologist in order to effect change in Mr Milner and his assessed risk; just doing the sessions without the correlated effect is unlikely to be enough.

[11]   With these conclusions about the June decision, and the unavailability of any inference that it was some sort of promise to be released, the case largely falls away.

The November decision

[12]   A differently constituted panel convened under Covid protocol rules met in November 2021. The steps identified in June 2021 had occurred. The November Board identified a single issue concerning release, namely whether the substance abuse treatment and the psychological treatment that had just commenced would be

continued in the community, or should be continued in a custodial setting. To assist it in this decision, the Board had an updated psychological report.

[13]   The Board took the view that the psychological intervention was a priority that should be completed before release to a Bridge Programme. The reasons were:

(a)the purpose of the intervention was to reinforce gains from the Special Treatment Unit programme. These were directly relevant to the risks Mr Milner posed:

(b)Mr Milner’s Release Plan, without this reinforcement, did not adequately reduce the risk; and

(c)the combination of alcohol abuse and two failed release meant a higher degree of confidence was needed before a third release.

An updated assessment following more intervention was directed.

[14]   In my view, the November decision was consistent with the June decision. It focused on the psychological intervention that had been identified in June, and following receipt of a report, considered more work was needed. There is no “u-turn” but rather an ongoing evaluation of a particular aspect, with that evaluation being informed by updating reports.

[15]   Mr Milner’s challenge to the adequacy of the reasons is premised on the incorrect view that the June decision represented some form of commitment. That being so, it was submitted a departure from the commitment needed further explanation. As has been noted, no such commitment existed and there was no u-turn to explain. The reasons given in November meet the statutory obligation in s 116(3) of the Act.

[16]   These conclusions mean it is unnecessary to consider the relevant jurisprudence in any depth. It has, however, often been stated that there is limited scope in the parole area for concepts such as legitimate expectation. Recent

affirmations of this are Wong v New Zealand Parole Board3 and Ericson v New Zealand Parole Board.4 The reason for that limited role is the statutory scheme. It was described by Dunningham J in Ericson v NZ Parole Board in these terms:5

Parole may only be granted if, at the time it is being considered, the prisoner can demonstrate they do not pose an undue risk. The statutory context does not allow a commitment to arise which would override or alter that statutory test.

[41] … On each occasion the Board considers parole it must address the question of undue risk afresh, considering all relevant information available at the time, as is required by s 7(2)(c). …

[44] In summary, the ground of legitimate expectation is simply  not  relevant in this context. What any prisoner can expect is that their application is considered fairly, in light of the statutory test and having considered all relevant material which bears on whether that test is satisfied. Whether that has occurred in this case is discussed under the subsequent headings.

[17]The pleadings invite the Court to declare that the Parole Board:

has a policy of providing direction for a prisoner, so as to provide a clear pathway to parole.

Alternatively, if the Board does not have such a policy, the court is asked to make a declaration that the Board should have one.

[18]   There are several concerns raised by the pleading. What meaning the proposed declaration is intended to convey is unclear. On its face it says nothing of any import. It is only if one reads into the proposition concepts such as the declared policy creating expectations, or as representing a commitment by the Board to follow the pathway that the declaration could have any value. Those concepts are, however, for the reasons given inconsistent with the statutory scheme and not available.

[19]   Second, as a matter of fact the Board does not have such a policy, if “policy” is a reference to s 109(2)(a) of the Act which allows the Board to develop policies on how to discharge its function. This absence of such a policy is accepted by the applicant. Accordingly, if what is meant is a s 109 policy, the declaration would be

3      Wong v New Zealand Parole Board [2017] NZHC 2098 at [31]–[33].

4      Ericson v New Zealand Parole Board [2017] NZHC 536 at [40].

5      At [40]–[44]. Whether it can never be relevant is not something requiring consideration here.

wrong. If policy is being used in a different context, the declaration would be both wrong and confusing.

[20]   Third, it is, as the Act says, a function of the Board to develop policies and amend and revise those policies as it sees fit. It is not the role of the Court to develop the policies, not to direct the Board to have such a policy, nor to advertise a policy if it exists.

[21]   On the issue generally about providing a pathway, s 21A(b) provides that the Board “may” identify the relevant activities (if any) which the Board expects to be completed by the next hearing. The use of “may” is significant given the preceding subsection involves a “must” obligation. So too, it may be thought, is the recognition, by the words “if any”, that there may not be specific activities identified or identifiable that will change the risk assessment. Although s 21A applies to hearings which are more than 12 months away, Mr Milner’s case illustrates that the Board will also identify areas to be addressed in relation to hearings more proximate than 12 months, presumably whenever it is possible and appropriate.

[22]   It flows from the statutory scheme that there is a capacity to identify future steps, but no obligation. Cases no doubt vary so much that it would be unexpected that the Board would or could commit to a policy of always creating a clear pathway. Sometimes there may not be one.

[23]The application for declarations concerning Board policy is declined.

Reviewer then convenes next Panel

[24]   Section 11 of the Act provides that the Board is to consist of a chairperson, at least nine panel convenors, and sufficient members to carry out the statutory functions effectively. The convenors must be a Judge (present or former) or a barrister or solicitor who has held a practising certificate for at least seven years.6 Section 115 provides that Panels of the Board consist of three members, at least one of whom must be the chairperson or a convenor. Section 67 provides for review of Board decision.

6      Parole Act, s 114.

The reviewer is to be either the chairperson or a Panel convenor nominated by the chairperson.

[25]   In the present case the convenor who carried out the review of the June decision then convened the November Panel, albeit it was a reduced Panel due to Covid protocols. There is nothing in the scheme of the Act to prevent this, nor is it apparent why it would be a problem. Familiarity with a case may be thought to be an advantage.

[26]   The convenor’s role on a review is governed by s 67(3) which sets out the available grounds of review – error of law, failure to follow procedure or prescribed policy, lack of jurisdiction, or having regard to erroneous or irrelevant information. It is not a rehearing of the case, and is very much a classical review power rather than an appeal function. Accordingly, the nature of the task does not tell against subsequently convening a panel in relation to the same offender.7

[27]   The applicant advanced a claim of predetermination in relation to the November decision. The claim was based on an inference that because the convenor upheld the June decision, he had therefore predetermined the November outcome. There is nothing on the face of the decision to support this. As previously discussed, the area of concern in November flowed on from a specific need identified in June, and amounted to an assessment that what had occurred between June and November was insufficient to ameliorate the concern. It was a conclusion informed by updating information provided subsequent to both the June hearing and the review. There is nothing in the circumstances to suggest predetermination.

The November review

[28]   Three challenges are made to this decision. The first is that the particular reviewer should not have been appointed because she was “junior” to the Panel convenor. The second and third concern a failure to address Mr Milner’s predetermination challenge, including a failure to cite the legal test for predetermination.

7      This is not to say a convenor cannot convene successive Panels. The focus is solely on the nature of the review function.

[29]   Since I have already determined there was no predetermination in the November decision, any failure by the reviewer to address it correctly could not lead to relief. That said, the challenge anyway lacks merit. The review decision has a section, under a heading “Predetermination”, which correctly identifies the predetermination ground advanced by Mr Milner. Further, the convenor notes that the predetermination challenge also includes reliance on the convenor’s role in the earlier recall of Mr Milner and advances that as a separate concern. It appears to have been suggested that the convenor at the oral hearing repeatedly referred to the earlier recall hearing. To address this, the present reviewer listened to a tape recording of the November hearing, identified the four occasions there was a reference (direct or indirect) to the recall hearing and addressed each of the four occasions.

[30]   The present challenge to the manner in which the reviewer has addressed counsel’s submissions on predetermination appears to be advanced in direct contravention of the text of the review decision. It lacks any merit.

[31]   Nor is there any attempt on behalf of Mr Milner to identify some supporting authority or principle for the proposition that a “junior” convenor should not review a decision of a Panel convened by a more senior convenor. In the absence of any supporting material, it is not a proposition I consider needs addressing further. Senior and junior are not relevant concepts.

Conclusion

[32]   The applications for review and declarations are dismissed. There was no commitment made by the June Panel, the decision of the November Panel flowed from the June Panel and focused on a relevant matter, and the subsidiary challenges all lack merit.

Simon France J

Solicitors:

Kevin Smith Law Ltd, Wellington for Applicant Vicki J Owen, Wellington for Respondent