Mitchell v Attorney-General
[2021] NZHC 2946
•2 November 2021
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 risk to specific individuals.
The statutory and administrative scheme
[7] Section 47(1) of the Corrections Act 2004 (the Act) requires that all prisoners who are serving sentences of more than three months’ imprisonment be assigned a security classification by the Department of Corrections. The classification is intended to reflect the level of risk posed by the prisoner while inside or outside prison (for example while on a release to work programme) including the risks that would pose to the public. This is also to enable Corrections to appropriately manage prisoners within a prison environment.1 That security classification of each prisoner must be undertaken and reviewed “in the prescribed manner”.2
[8] The Act and the Corrections Regulations 2004 (the Regulations) provide some guidance as to the correct process. Further guidance is contained in internal Corrections guidelines and other documents.
[9] There are five different security classifications: maximum, high, low-medium, low and minimum.3
[10]The Act also prescribes other aspects of the classification process:
(a)A prisoner’s classification must be reviewed every six months (unless an exemption applies) or whenever there is a significant change in the prisoner’s circumstances;4
1 Smith v Attorney-General on behalf of the Chief Executive of the Department of Corrections
[2017] NZHC 136 at [7].
2 Section 47 (3)(a).
3 These bands were set by instructions issued by the Chief Executive, which is permissible under s 196(1) of the Act. The bands are therefore administrative, rather than legislative: Taylor v Chief Executive of the Department of Corrections [2015] NZHC 2196 at [7].
4 Section 47(3).
(b)a prisoner is to be promptly informed of the assigned security classification, and whenever the classification is changed, and the reasons for the classification or the change;5
(c)a prisoner who is dissatisfied with the classification may apply for a reconsideration and the Chief Executive of Corrections must ensure the classification is reconsidered promptly in the prescribed manner;6 and
(d)whenever a security classification is assigned to a prisoner or a security classification is reconsidered the prisoner must be informed in writing of the decision.7
[11] That statutory scheme for the security classification process has been considered in a number of cases including Smith v Attorney General on behalf of the Chief Executive of the Department of Corrections.8
[12] Under the classification process, it is appropriate that a prisoner is assigned the lowest classification at which they can be “safely and securely managed given the assessment of the level of risk posed by a prisoner”.9 When initially assigning a security classification to a prisoner, the assessing officer is required to take into account a number of matters which include:
(a)The seriousness of the offence for which the prisoner is imprisoned;
(b)the duration of their sentence;
(c)any history of escapes or attempted escapes from custody;
(d)any history of violent behaviour by the prisoner;
5 Section 48(1).
6 Section 48(2).
7 Section 48(3).
8 Smith v Attorney-General (on behalf of the Chief Executive of the Department of Corrections) above n 1, and see also Gorges v the Chief Executive of the Department of Corrections [2017] NZHC 2518 and Taylor v Chief Executive of the Department of Corrections, above n 3.
9 Corrections Regulations, Regulation 44.
(e)any history of mental ill health;
(f)whether the prisoner is awaiting trial or sentencing on any further charges, and if so, the nature of those charges; and
(g)any additional matters specified in writing by the Chief Executive.
[13] As Ms Roberts sets out in her affidavit, she was the person who undertook the Reconsideration Decision here. She noted that further guidance on the security classification process for female prisoners is set out in the Prison Operations Manual, in particular at M.02.02.Res.01 Completing Female initial security classification guidelines (the Guidelines). Those Guidelines were issued by the Chief Executive pursuant to his powers under s 196(1) of the Act. Under the Guidelines the security classification process is completed electronically in what is known as the Integrated Offender Management System (IOMS).
[14] A points-based system is used to initially assess a prisoner’s security classification. Under that system points are assigned to each of a range of matters considered relevant to an assessment or review. Those matters are listed in a 15-page Security Classification Guideline Document.
[15] Ms Roberts in her affidavit explains that this points-based system was developed by Corrections to assist prison officers with their initial assessment obligations in accordance with the statutory and regulatory regime and to ensure as far as possible objectivity and consistency across assessments:
“The details of the points system are set out in the Guidelines. In brief, the points-based classification system assigns a point value to each of the key matters relevant to an assessment or review, divided into internal and external risks. Some of the information is pre-populated from the information held on the system about the prisoner, the rest of the information is completed by the Corrections Officer undertaking the assessment (the Assessing Officer). Calculation of the applicable security classification is automatically undertaken under completion of the IOMS matrix form, and the total accumulated score will suggest one of the five security classifications.”10
10 Roberts’ affidavit at 8.3 – 8.4.
[16] That points-based classification however is only a preliminary or indicative security classification. It is not determinative of the ultimate outcome and can be overridden when appropriate. In this regard the Guidelines specifically provide amongst other things that:
“Override reasons and recommendations
· Any classification may be overridden to a higher or lower classification. A clear reason must be given for the override. A classification may not be overridden based on a factor that has already been incorporated in the assessment.
…
[17] The ability to override the Preliminary Score in the IOMS matrix, as the authorities confirm, can occur when appropriate and recognises that the Guidelines and the associated IOMS matrix may not capture all matters that are relevant to the risk assessment of a particular prisoner.11
[18] Section 16(1)(f)(ii) of the Act provides that the Corrections system must ensure the fair treatment of persons under control or supervision by ensuring that decisions about those persons are taken in a fair and reasonable way and that those persons have access to an effective complaints procedure.
[19] Prisoners however do not have a legitimate expectation that no override will be applied or that the IOMS Preliminary Score will be the ultimate outcome of any security classification decision. In Taylor v Chief Executive of the Department of Corrections at [114] Ellis J stated:
… the override option exists precisely because filling out the review form and applying the points system is intended largely to be a mechanical (and therefore objective and consistent) exercise. The possibility of an override recognises the reality that the Guidelines and the form may not capture all matters that are relevant to the risk assessment required by s 44 in relation to a particular prisoner. It contemplates that there may be a departure from policy but … requires clear reasons for that to be given. The Guidelines also make it clear that there cannot be a departure from policy (an override) simply because an application of the points system does not result in adequate weight being given to one of the matters expressly required to be considered.”
11 Smith v Attorney-General (on behalf of Chief Executive of the Department of Corrections), above n 1, citing Taylor v Chief Executive of the Department of Corrections, above n 3.
[20] On this aspect Ms Mitchell submits that the form used by Corrections “is fettered, and it does not allow “positive action” by the recommending officer to allow the approving officer to follow the chain of command”.12
[21] I disagree however. The discretion to override the Preliminary Score is a well established principle as the authorities make clear. The form too does nothing to fetter the ultimate security classification. Clearly, as I see it, the Preliminary Score generated by IOMS may fail to take into account relevant information such as the prisoner’s conduct on remand, and that is acknowledged in cases such as the present.
[22] There is no doubt too that a prisoner who is dissatisfied with the security classification assigned to them (ie after an override) may apply to the Chief Executive for reconsideration of that decision. In that event, the Chief Executive must ensure that the security classification is reconsidered promptly “in the prescribed manner”.13 That did take place here. As a result Ms Mitchell’s original security classification in the Override Decision of “low-medium” was reduced on review as set out in the Reconsideration Decision to one of “low”.
[23] Regulation 51 also provides relevantly that if, as took place on Ms Mitchell’s request here, an application is made for reconsideration of a security classification under s 48(2) the Chief Executive must:
(a)ensure that the process followed in assigning the security classification is reviewed; and
(b)decide whether or not the prisoner’s current security classification is appropriate, and either confirm that classification or assign a different classification to the prisoner.
[24] And, Regulation 52 requires that any person undertaking the assignment or reconsideration of a prisoner’s security classification must be given access to the prisoner’s file kept by Corrections and take into account any relevant information in
12 Ms Mitchell’s submissions at [5](v).
13 Section 48(2) Corrections Act.
any form that is readily available. The recommendation or decision must also be recorded in writing along with reasons for it.
Additional factual background
[25] I turn now to additional factual background here. As I have noted above, Ms Mitchell’s final security classification after she was sentenced (and following the Reconsideration Decision) was one of “low”. Ms Mitchell now seeks as relief that she be assigned a “minimum” classification in line with the Preliminary Score she had received.
[26] So far as relevant events here are concerned, after sentencing, the respondent says these were taken into account when the Override Decision of “low-medium” was made. That assessment was then reduced to “low” after the Reconsideration Decision. All this was based on what are described as incident reports as they related to Ms Mitchell’s behaviour on remand.
[27] As to these incident reports, in her affidavit of 5 October 2021 Ms Roberts deposes generally to these incidents in this way:
(a)15 October 2020 – Ms Mitchell is described as repeatedly refusing to engage with health staff for a Covid-19 assessment, on her return to the prison following a Court appearance. She refused to comply or to follow instructions on request from staff, began to spit and shout at staff and of particular concern given her Covid status was unknown, spat directly in the face of a staff member;
(b)28 October 2020 – Ms Mitchell refused to relocate from the secure unit back to a multi-cluster unit which held remand prisoners when her earlier segregation period had expired. She was abusive, verbally aggressive to prison staff and threw milk and food around her cell. A recommendation was made that her segregation would continue;
(c)31 October 2020 – Ms Mitchell began making threats to staff on the intercom and activated the fire alarm and the sprinkler system in her
cell. When servicemen arrived to fix the sprinkler she was abusive and it took over 10 minutes for her to calm down and vacate the cell to enable the serviceman to repair the sprinkler;
(d)23 December 2020 – Ms Mitchell smashed a television set in her cell and as Ms Roberts says she has now admitted to this.
(e)13 February 2021 – Ms Mitchell broke the clothing bin in her cell and threw bits of the plastic bin and food around and under her cell door whilst making inappropriate and threatening comments to staff. As a result her cell was such that it required a professional clean before it could be reoccupied;
(f)16 February 2021 – Ms Mitchell abused the intercom system by making successive emergency calls at about one-minute intervals. She then indicated there was no emergency but continued to make calls despite instruction not to do so. All this was of concern given that the system was reserved for emergencies only;
(g)3 March 2021 – around the middle of the day Ms Mitchell began banging her cell door and tipping cups of tea, water and food under the door. She then activated her cell alarm and continuously demanded towels and threatened to set off the fire sprinklers. Later that evening, while she was on a twice hourly welfare check, Ms Mitchell covered her observation window so staff would not be able to see her;
(h)14 March 2021 – Ms Mitchell removed her clothing and urinated on her cell floor. When approached, she threatened to assault officers and forcefully assaulted one officer. She was also on a hunger strike at the time. She was transferred to the intervention support unit. She threw blankets, bedding and her mattress out of the cell and at that point covered the cell camera and observation windows with food and plastic. Later staff entered her cell to remove food and toilet paper placed by her over the observation windows and cell camera and thereupon
Ms Mitchell again assaulted an officer by striking her in the head three times. Other staff moved into the cell to assist in restraining her;
and
(i)15 March 2021 – Ms Mitchell, while still in the intervention support unit, was observed by an officer smearing faeces on the walls and observation windows of the cell while screaming loudly, swearing and making threats. Shortly thereafter Ms Mitchell verbally abused staff calling one officer a “nigga” and threatening to “come and slit (that officer’s) throat”. Ms Mitchell then used faeces to write the officer’s name on the wall of the cell. She continued her verbal abuse throughout the day, and refused to vacate the cell so it could be cleaned and decontaminated. Later, she was pepper sprayed and restrained by staff on her bed as she was refusing to drop a pile of the faeces she was holding and threatening staff with. Ms Mitchell and her cell were then decontaminated. The incident has been referred to the police and charges are being considered.
Analysis
[28] I accept it has been well recognised that security classification decisions have a profound impact on the day-to-day lives of prisoners generally.14 In particular, the classification impacts in cases for example where there are significant differences between say maximum and minimum security classifications. These impacts include the availability of rehabilitative programmes and the hours a prisoner may spend in their cell. On the other hand the critical need for prisons to function effectively and efficiently must always be an important consideration, as is the fact that Corrections is generally in a better position to assess the security risk of prisoners than the Courts.15
14 Bennett v Superintendent Rimutaka Prison [2002] 1 NZLR 616 (CA) at [81], and Taylor v Chief Executive of the Department of Corrections above n 3, at [24] and [103].
15 Taylor v Chief Executive of the Department of Corrections, above n 3, at [2], and Smith v Attorney- General, above n 1, at [8].
[29] In my analysis of what has occurred here for Ms Mitchell, it is useful to consider the various steps in her security classification process which I now do.
The Preliminary Score and the Override Decision
[30] In beginning the security assessment for Ms Mitchell following her sentencing on 31 March 2021, in accordance with usual process, three officers were involved. The assessment proceeded as I outline below.
[31] An assessing/initiating officer, Ms Fili, carried out the scoring of each risk factor for Ms Mitchell in the IOMS system and this produced an automated Preliminary Score of 16 points for internal risk factors and eight points for external risk factors. This indicated a security classification on these numbers of “minimum” which I have noted was the Preliminary Score. No issue is raised about this part of the process.
[32] A principal corrections officer, Ms Reedy reviewed the security classification form in her capacity as a recommending officer. Ms Reedy recommended a security classification override and gave as the reason for this “misconduct history and file notes indicate that the prisoner is not suitable for minimum classification, low-medium recommended”.
[33] An approving officer, the Residential Manager, Ms Trask, provided final approval for Ms Mitchell’s security classification. She supported the recommendation for an override and the ultimate classification of “low-medium”, which I have referred to as the Override Decision.
[34] Ms Mitchell has not at any time alleged that the Preliminary Score was in anyway incorrect, but has simply contested that no classification higher than that Preliminary Score was justified here. She alleges the Guidelines were incorrectly applied in relation to the override of her Preliminary Score on the basis that she had not been assessed as either an escape risk, a High Profile prisoner, nor was there any evidence that she would pose a threat to a specific individual in the community if she escaped.
[35] On these aspects, while the Guidelines do include specific factors which might provide the basis for a manual override, those factors are not in any way restrictive. The Guidelines clearly provide a broad discretion to manually override a Preliminary Score so long as that override is not based on a factor that has already been incorporated in the initial assessment itself.
[36] Ultimately, the application of the Guidelines must promote the requirement in s 47 of the Act that the prisoner’s security classification:
“Reflects the level of risk posed by that prisoner while inside or outside prison
… “
[37] Here, behavioural incident reports were not included as part of the automated matrix of factors Ms Fili properly applied in carrying out the initial security classification using the IOMS form. This is precisely what led to Ms Reedy’s override of Ms Mitchell’s Preliminary Score, given that it failed to take into account her conduct while on remand, conduct which according to Ms Roberts was repeated and significantly troubling. On this issue of the incident reports, before me Ms Mitchell endeavoured to suggest these referred to untested and generally un-investigated incidents. So far as the incident involving refusal to take a Covid-19 test, Ms Mitchell contends she had a right to refuse this as medical treatment under the NZ BORA and in any event some incidents have resulted in disciplinary processes against her.
[38] With respect this is not entirely true. Ms Roberts in her evidence confirms that one incident at least is the subject of police consideration and a possible charge at this point. In addition, I am satisfied that there is sufficient evidence before me of the other incidents which involved what might be seen as lower level violence by a prisoner in custody. All these in my view are able to come into consideration, given that matters of safety both for prison staff and other inmates are relevant to classification questions. The delay which would be inherent in waiting for disciplinary proceedings or charges involving the police to progress before they might impact upon a security classification would simply be unacceptable for an administrative process such as this.16 And, in any event, as I understand the position here, Ms Mitchell has had the opportunity to
16 I say this in light of reg 47 of the Regulations which requires a prisoner’s security classification to be made within 14 days of that prisoner coming into prison.
respond to these incident reports, all of which relate to underlying safety risk concerns and she has raised no issues regarding the major portions of the reports.
[39] I conclude first, that Ms Mitchell’s initial security classification assessment was carried out consistently with the Regulations and the Guidelines and, secondly, that there can be no question an override to the Preliminary Score was inevitable here given her repeated behaviour during her remand.
The Reconsideration Decision
[40] It was Ms Roberts who completed the reconsideration of Ms Mitchell’s initial security classification when this was requested. In the end Ms Mitchell was assigned a security classification of low rather than the earlier classification of low-medium. In fact it does seem that Ms Mitchell had applied for a reconsideration of the Override Decision at low-medium even before she had received that decision herself. Her application for a reconsideration was made on 4 May 2021 although she did not receive the decision itself until 9 May 2021. It would appear that due to Ms Mitchell’s previous experience of having her Preliminary Score overridden, she anticipated the Override Decision that was made.
[41] Previously, this Court has held that the reconsideration process undertaken by Corrections in situations such as the present does meet the requirement for natural justice with a prisoner being able to respond to the initial security classification imposed including any Override Decision.17 In the present case, as I note, Ms Mitchell challenged the Override Decision without knowing what it was or the reasons for its conclusions. Nevertheless, she set out in her PC.01 form what she considered the appropriate assessment of her security classification should have been. In fact that application on her part was successful, with her classification being reduced to “low”.
[42] On 13 May 2021 Ms Roberts wrote to Ms Mitchell informing her of the review and the Reconsideration Decision. In making her decision Ms Roberts determined that a reduction to “minimum” was not the appropriate security classification
17 Bell v The Chief Executive of the Department of Corrections [2021] NZHC 412 at [65] citing
Taylor v Chief Executive of the Department of Corrections, above n 3, at [102].
Ms Mitchell had sought and that here the override had been necessary. Ms Roberts however determined that an override to a “low” security classification was appropriate rather than the earlier override to “low-medium” which had been imposed.
[43] In making that reconsideration Ms Roberts took into account a minimum of nine incidents reported in IOMS during the time that Ms Mitchell had been held on remand at Arohata Prison. She determined that an override of some kind was appropriate on the basis of these incidents. This was the case even though none of the incidents had ultimately resulted in misconduct hearings, although as I have noted police charges are still pending for one incident. Ms Roberts described Ms Mitchell’s behaviour towards and her interactions with prison staff and other prisoners as demonstrably negative and often aggressive given too that they included multiple allegations of abuse and threats to staff, unlawful activating of the sprinkler system, property damage, abusing the prison intercom system, assaulting staff, smearing faeces on walls and refusing to engage with health staff for a Covid-19 assessment.
[44] She noted that convictions or formal misconduct charges were not required for a behavioural incident to be considered as relevant to a security classification decision. In many cases good reasons existed for not pursuing misconduct charges for every instance of prison misconduct. This it seems was in part to promote a prisoner’s engagement in rehabilitation especially where misconduct matters were minor. Notwithstanding, this did not mean that Corrections should overlook a prisoner’s repeated and negative behaviour, on IOMS, when assessing the risk posed by a prisoner both to other prisoners and to staff.
[45]Indeed in Newton v The Superintendent of Rimutaka Prison, Wild J held:18:
This argument equates the prison’s essentially judicial inmates disciplinary offence process … with the prison’s day-to-day administration, including decisions on security classification … Taken to its logical extreme, the argument would preclude the prison from taking … from taking any administrative action unless and until appropriate disciplinary offences were proved against the inmate.
18 Newton v Superintendent of Rimutaka Prison HC Wellington, CIV-2003-485-1778, 5 September 2003 at [35].
[46] Bearing these matters in mind I am satisfied that security classifications for prisoners are a matter of day-to-day prison management. They are simply a risk-based assessment, are not punitive and as noted in Genge v Chief Executive of the Department of Corrections:19
(a)There is no presumption of innocence nor need to prove guilt:
(b)the consequences of classification or reclassification are not in the nature of punishment.
[47] Ms Roberts in her assessment determining that the behavioural incidents in question indicated that Ms Mitchell could not be safely and securely managed with a “minimum” security classification, stated in her affidavit at (23);
“A “minimum” security regime allows prisoners to be managed in a more open environment, where there are multiple opportunities for prisoners to create disorder and a potential harm to staff and other prisoners. I therefore considered that an override was necessary. I considered whether it was necessary to move Ms Mitchell up two security classifications to “low- medium”, however I determined that this was a higher than necessary security classification for Ms Mitchell, in my opinion a “low” security classification was appropriate.”
[48] I accept that Ms Roberts’ decision was a proper one in line with the statutory and regulatory regime and the requirements for an override as set out in the Guidelines. Ms Roberts’ decision as I see it was one to assign to Ms Mitchell the lowest level of security classification at which she could be safely and securely managed given the level of risk she posed. In making her decision Ms Roberts took into account all relevant information readily available, she recorded her decision in writing and she provided this with reasons to Ms Mitchell on 13 May 2021. The incident reports which she had taken into account were not information that was previously considered during the automatic points-based calculation of Ms Mitchell’s security classification and therefore no double counting occurred here.
19 Genge v Chief Executive of the Department of Corrections [2018] NZHC 1302 at [12] and [38].
[49] Finally, in making her own determination as to the appropriate security classification, Ms Roberts reduced the classification for Ms Mitchell ultimately to one of “low” rather than “low-medium.
[50] On this and given the content of the incident reports whilst Ms Mitchell was on remand, I am satisfied a “minimum” security classification would not have reflected the risk that she posed inside the prison, as s 47 of the Act requires. Minimum security prisoners clearly are managed in a more open environment where there are multiple opportunities for prisoners to create disorder and potential harm to staff and other prisoners as Ms Roberts confirms.
[51] Ms Mitchell’s threatening and abusive behaviour and her assaults on staff as reported in the incidents in question mean that a “minimum” classification for her was not appropriate here.
[52] I conclude that the points-based Preliminary Score was always regarded simply as a preliminary assessment in cases such as this. No legitimate expectation existed against an override occurring. Ms Mitchell’s right to natural justice as I see it was appropriately addressed through the reconsideration process in which she was successful, with her classification being reassessed as “low” rather than “low- medium”. Given all matters of relevance here, a “minimum” security classification in my view would not have reflected the risk Ms Mitchell posed to other prisoners and to staff.
[53] In considering her allegations of unreasonableness and unfairness in the application of the security classification system, Ms Mitchell raises issues including what she says was a conflict of interest on the part of Corrections Officers in the various decisions made regarding her classification. At first she noted that Mr Trask who, was one of the witnesses to two incidents occurring on 28 October 2020 and on 31 October 2020, was the author of an incident report relating to that 28 October 2020 event. Ms Mitchell contends that Mr Trask is conflicted here in that he presented as a witness to these events and then purported to be the author of the 28 October 2020 incident report.
[54] In my view there is little in this complaint. Various correction officers including Mr Trask had interactions with Ms Mitchell over matters in prison such as safety. Mr Trask was not the prison officer involved in other more serious incidents such as when an officer was spat at by Ms Mitchell, and when a further officer was punched by her with a closed fist. In addition, the involvement of Ms Roberts, a very senior person in the Corrections establishment at the time is noted, given she did not provide direct evidence as a witness in any sense.
[55] Next, before me Ms Mitchell endeavoured to suggest that forms she had encountered in her classification were complex and confusing. These included the 4 May 2021 PC.01 Prisoner Complaint form she signed on that date. No evidence of this confusion was before the Court however. In particular it is noted that Ms Mitchell’s 4 May 2021 PC.01 form was signed and lodged by Ms Mitchell before she received advice of her security classification decision on 9 May 2021.
[56] An additional argument related to the parole hearing undertaken for Ms Mitchell on 4 May 2021. As a result of that hearing my understanding is that Ms Mitchell’s next parole hearing date is scheduled for 1 May 2022 which is only shortly before her statutory release date of 17 June 2022. Ms Mitchell suggested her security classification might have some degree of influence on these matters, but nothing is before me to establish this is so. Arguments relating to parole hearings in context here do not assist Ms Mitchell.
[57] As to further natural justice arguments, Ms Mitchell suggested it was wrong to allow Corrections here to use untested and unreliable incident reports against her to override the initial security classification which was based originally on her Preliminary Score. In considering natural justice questions, Ms Mitchell referred to decisions in Daganayasi v Minister of Immigration and Tavita v Minister of Immigration.20
[58] The Crown here accepts unequivocally that natural justice requirements apply. Mr Neild noted before me that this Court has previously held that the security
20 Daganayasi v Minister of Immigration [1980] 2 NZLR 130 (CA), and Tavita v Minister of Immigration [1994] 2 NZLR 257 (CA).
classification reconsideration process adopted by Corrections clearly meets requirements of natural justice. This is in the sense that a prisoner is able to respond to the initial security classification provided including any Override Decision. As such the decisions in Taylor, Smith and Bell particularly apply.21 In considering these natural justice principles the present case clearly differs in context and otherwise from the decisions in Taylor, Smith and Bell, but it is accepted that the overall principles will apply. For example, the context in the Smith case is entirely different in that the prisoner was under a life imprisonment sentence, he was accepted as a significant risk to younger persons and also he presented an extreme risk factor with prior escapes from custody.22
[59] Here, Ms Mitchell on 13 May 2021 was informed of the review and her Reconsideration Decision by Ms Roberts which included an explanation of the reasons for both the review and the Override Decision.
[60] Ms Mitchell contends also that, with her security classification, she has been penalised by Corrections simply because she had been on remand for one year prior to her sentencing.
[61] In this case I am satisfied sufficient reasons were provided to Ms Mitchell which would have enabled her to understand why her security classification decisions in question were made. I accept too that with the review process in particular Ms Mitchell had a reasonable opportunity to present her case and reasonable notice of the case she was to meet. That review and reconsideration process as I see the position actually protects Ms Mitchell’s natural justice rights here.
[62] Given the important effect classification decisions have on the day-to-day life of a prisoner, it is important the decision-making process employed by Corrections is prescribed and constrained by statute, regulations and policy. Here, that process was complied with and legitimate purposes were explained to Ms Mitchell for the Override Decision and for the later decision of Ms Roberts on the reconsideration question.
21 Taylor v Chief Executive of the Department of Corrections, above n 3 , Smith v Attorney-General on behalf of the Chief Executive of the Department of Corrections, above n 1 and Bell v The Chief Executive of the Department of Corrections, above n 17.
22 Smith v Attorney-General on behalf of the Chief Executive of Corrections, above n 1.
[63] There is also as I see it an aspect of day-to-day prison management in the decisions at issue here. Both the Court of Appeal and this Court in the past have recognised that a Court should be slow to interfere with operational and administrative decisions about everyday prison management given particularly the wide range of factors that are relevant to decisions made in the course of the general operation of a prison.23
[64] It has often been said that micro-management of prisons by the Courts is to be avoided.
[65]In Gorges v Department of Corrections, Clark J observed:24
“Parliament has charged the Chief Executive, not the Courts, with the statutory function of assigning security classifications to prisoners”.
[66]And, Davidson J in this Court said in Genge v Department of Corrections:25
The Court will be slow to interfere with administrative decisions in the course of the day-to-day management of a prison where complex judgment calls are required.
[67] There needs to be an egregious element of a decision taken by Corrections for a Court to interfere. In my view that has not occurred here and Ms Mitchell has been unable to establish that intervention is required.
[68] The Courts have held on a number of occasions that the reconsideration process before security classification protects the natural justice rights of prisoners such as Ms Mitchell here by giving them an opportunity to respond to the Preliminary Score and any Override Decision. That occurred in this case.
[69] For all theses reasons Ms Mitchell’s application for judicial review is dismissed. The points based Preliminary Score was preliminary only. There is no legitimate expectation that when a Preliminary Score is calculated there will be no
23 By way of example see Drew v Attorney-General [2002] 1 NZLR 58 (CA), Taylor v Chief Executive of the Department of Corrections, above n 3, Mitchell v Attorney-General [2013] NZHC 2836, Bennett v Attorney-General, above n 14.
24 Gorges v Department of Corrections, above n 24, at [59].
25 Genge v Department of Corrections, above n 19, at [37].
override. Ms Mitchell’s right to natural justice here was appropriately addressed through the reconsideration process, a process in which to a degree she succeeded.
[70] Taking into account the many and reasonably serious incident reports from Ms Mitchell’s time on remand, I am satisfied a “minimum” security classification would not have reflected the risk Ms Mitchell posed to other prisoners and to staff.
[71]For all these reasons her application is dismissed.
Gendall J
Solicitors:
Luke Cunningham & Clere, Wellington
Copy to: K Mitchell
4
5
0