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Mitchell v Attorney-General

Mitchell v Attorney-General

Case [2021] NZHC 2946 2 November 2021

Jurisdiction

Natural Justice & Procedural Fairness

Administrative Discretion

Security Classification

Reconsideration Process

Override of Preliminary Score

Administrative Law

Prison Law

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IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

I TE KŌTI MATUA O AOTEAROA

TE WHANGANUI-A-TARA ROHE

CIV-2021-485-000310

[2021] NZHC 2946

BETWEEN
KERRYN MITCHELL

Applicant

AND

ATTORNEY GENERAL (on behalf of the Chief Executive Officer of Department of Corrections)

Respondent

Hearing: 26 October 2021

Appearances:

Applicant appears in person

D P Neild and G McNamara for the Respondent

Judgment:

2 November 2021

JUDGMENT OF GENDALL J

Introduction

[1] Ms Mitchell is currently serving a sentence of imprisonment at Arohata Prison of two years three months having been sentenced on 31 March 2021. Ms Mitchell seeks to impugn by way of judicial review a decision of the Department of Corrections (Corrections) assigning her a security classification following a reconsideration of “low”. She seeks as relief that instead she be assigned a lower security classification of “minimum”.

[2] With regard to the events relating to Ms Mitchell’s claim, prior to her sentencing she had been held on remand for over a year since 18 March 2020. During this time because of her status as “remand – accused” Ms Mitchell had no security classification.

MITCHELL v ATTORNEY GENERAL [2021] NZHC 2946 [2 November 2021]

[3] Following Ms Mitchell’s sentencing, this triggered an initial security classification assessment and assignment. This started on 1 April 2021. Based on a preliminary points-based score for this assessment, Ms Mitchell would have been given a security classification of “minimum” (the Preliminary Score). This however did not take into account what the respondent says was Ms Mitchell’s conduct during the year she had spent on remand in custody prior to sentencing. After review of this, Corrections overrode the Preliminary Score, assigning Ms Mitchell a higher security classification of “low-medium” (the Override Decision).

[4] Ms Mitchell then applied for reconsideration of the Override Decision. This was successful with her classification then reduced to “low” (the Reconsideration Decision).

[5] As I have noted, Ms Mitchell now seeks as relief here, in addition to a declaration that the Reconsideration Decision was wrong, an order that she be assigned a “minimum” security classification in line with the Preliminary Score, effectively ignoring her conduct while on remand.

[6]In her judicial review application Ms Mitchell advances arguments that:

(a)Corrections did not follow natural justice principles when overriding the Preliminary Score (including in the Reconsideration Decision);

(b)the information used by Corrections staff was not disclosed or discussed with her and this failure meant Ms Mitchell was unable to make proper and reasonable submissions to Charmaine Aroha Roberts (Ms Roberts), the Senior Advisor to the Regional Commissioner of Corrections, lower north region, when she was undertaking the Reconsideration Decision, this being in breach of s 27 of the New Zealand Bill of Rights Act 1990 (BORA);

(c)Corrections staff in undertaking the security classification assessment did not follow the process set out in the legislation and applicable guidelines; and

(d)there was no basis for overriding the Preliminary Score because Ms Mitchell was not assessed as an escape risk, nor was she a high profile prisoner or a…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Mitchell v Attorney-General

Details

AGLC: Mitchell v Attorney-General [2021] NZHC 2946
Case: [2021] NZHC 2946
Decision Date: 2 November 2021

CaseChat Overview and Summary

In Mitchell v Attorney-General, Ms Mitchell sought to challenge the security classification assigned to her by the Department of Corrections (DOC) following her sentencing. Ms Mitchell sought to be assigned a security classification of "minimum" rather than the assigned "low" classification. Ms Mitchell argued that the DOC had not followed natural justice principles, had failed to disclose relevant information to her, and had not followed the process set out in the legislation and applicable guidelines.

The Court considered the statutory and administrative scheme for the security classification process, including the requirements for assigning a security classification and the process for reconsideration. The Court found that the DOC had correctly followed the process set out in the legislation and applicable guidelines and that there was a legitimate basis for overriding the preliminary security classification based on Ms Mitchell's conduct on remand. The Court also found that Ms Mitchell's right to natural justice had been appropriately addressed through the reconsideration process and that a "minimum" security classification would not have reflected the risk Ms Mitchell posed to other prisoners and to staff.

The Court dismissed Ms Mitchell's application for judicial review, finding that there was no legitimate expectation that when a preliminary security classification was calculated there would be no override and that a "minimum" security classification would not have been appropriate in Ms Mitchell's case.

Orders