Mitchell v Chairperson of the New Zealand Parole Board
[2015] NZHC 566
•25 March 2015
IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY
CIV-2014-485-011243 [2015] NZHC 566
UNDER the Judicature Amendment Act 1972,
and/or the Corrections Act 2004, the
Parole Act 2002, the Intellectual Disability
(Compulsory Care and Rehabilitation) Act2003, the Mental Health (Compulsory Assessment and Treatment) Act 1992, the Public Safety (Public Protection Orders) Act 2012, the Domestic Violence Act
1995, the Victim Rights Act 2002, the New Zealand Bill of Rights Act 1990, the common law, Natural Justice Rights and Domicile Act 1976
IN THE MATTER
of an application for a Judicial Review on the plaintiff's final New Zealand Parole Board Statutory Power and/or Statutory Power of Decision dated 1-5 December
2014 and Interim Decisions dated 8
October 2013, 3 December 2013 and 6
March 2014BETWEEN
KERRYN MITCHELL Plaintiff
AND
THE CHAIRPERSON OF THE NEW ZEALAND PAROLE BOARD
First Defendant
THE CHIEF EXECUTIVE DEPARTMENT OF CORRECTIONS Second Defendant
THE DIRECTOR OF AREA HEALTH SERVICES WAITEMATA DISTRICT HEALTH BOARD (in particular MASON CLINIC)
Third Defendant
THE PRINCIPAL CASE MANAGER REHABILITION AND EMPLOYMENT, DEPARTMENT OF CORRECTIONS Fourth Defendant
MITCHELL v THE CHAIRPERSON OF THE NEW ZEALAND PAROLE BOARD [2015] NZHC 566 [25
March 2015]
THE ATTORNEY-GENERAL Fifth Defendant
Hearing: 18 March 2015 Counsel:
Plaintiff in person
No appearance for First Defendant
D J Perkins and M J McKillop for Second, Fourth and Fifth
Defendants
No appearance for Third Defendant (abides)Judgment:
25 March 2015
JUDGMENT OF COLLINS J
Introduction
[1] This judgment explains why I am dismissing Ms Mitchell’s application for judicial review. In her application Ms Mitchell has challenged:
(1)procedures followed by the New Zealand Parole Board (the Board) and actions of the Department of Corrections (the Department) prior to two decisions of the Board in which it set special conditions to Ms Mitchell being granted parole (the decisions); and
(2) two of the special conditions of Ms Mitchell’s parole, set by the
Board.
[2] I have concluded Ms Mitchell’s application must be dismissed because:
(1) the procedures of the Board and the actions of the Department which
Ms Mitchell has challenged did not affect the decisions of the Board;
(2)the two special conditions to parole which Ms Mitchell challenges are lawful and reasonable.
Context
[3] On 10 September 2013 Ms Mitchell was sentenced to 25 months’ imprisonment in relation to charges of intentional damage and breaches of protection orders.1
[4] Ms Mitchell was eligible for parole at the time she was sentenced. She was, however, not released on parole. Instead, she served the full sentence which expired on 1 January 2015. As it transpired, when Ms Mitchell’s sentence concluded she was held on remand in relation to other charges. In March 2015 Ms Mitchell was convicted and sentenced to four months’ imprisonment in relation to four of the outstanding charges. There are, however, another 29 charges against Ms Mitchell alleging breaches of protection orders. Ms Mitchell has applied for bail in the District Court in relation to the remaining charges, which are scheduled to be heard in May 2015.
[5] Ms Mitchell’s first parole hearing was scheduled for 8 October 2013. The Department was required to prepare a parole assessment report2 for that hearing. However, that hearing had to be adjourned because the Chairperson of the Board was required to recuse herself and because no parole assessment report was prepared by
8 October 2013.
[6] A parole assessment report was prepared on 12 November 2013.
[7] Ms Mitchell’s case next came before the Board on 3 December 2013. The
Board adjourned Ms Mitchell’s application for parole on that occasion until 6 March
2014. The adjournment was based on three grounds:3
(1) The parole assessment report had “only just come to hand”;
(2) The victims needed to be given an opportunity to be heard;
1 R v Mitchell DC Wellington CRI-2012-032-3561, 10 September 2013.
2 Parole Act 2002, s 43(1)(c).
3 New Zealand Parole Board Decision, 3 December 2013 at [4].
(3)Ms Mitchell had, on 28 November 2013, filed a “request for an adjournment under the Parole Act 2002”.
[8] A further parole assessment report was prepared on 11 February 2014.
[9] Ms Mitchell’s application for parole came back before the Board on 6 March
2014. In its decision of 6 March, the Board said:
(1) Ms Mitchell had over 130 previous convictions, including convictions for assault and nine convictions for breaching protection orders. The protection orders had been obtained to protect Ms Mitchell’s former partner and his new partner, both of whom live in Lower Hutt.
(2) Ms Mitchell’s “recent offending involved a sinister stalking progress over eight years”.4
(3) Ms Mitchell had a record of disturbing behaviour whilst in prison. (4) Ms Mitchell had RoC*RoI5 of 0.7471.
(5) Ms Mitchell’s “obsessive determination to keep offending [was]
worrying”;6
(6) Any mental health issues Ms Mitchell suffered from had not been diagnosed or addressed.
[10] The Board concluded “parole [was] out of the question and was declined”.7
The Board called for a psychiatric report, which was to be considered when it next
dealt with Ms Mitchell’s parole application in December 2014.
[11] Further parole assessment reports were prepared on 11 June 2014 and
13 November 2014. A report on Ms Mitchell’s psychological status was prepared in
November 2014.8
4 New Zealand Parole Board Decision, 6 March 2014 at [5].
5 The RoC*RoI is an actuarial measure developed for the Department of Corrections to assist in
the prediction of an offender’s risk of re-imprisonment. The RoC*RoI, which is based on actuarial predictions derive from criminal history information, represents the likelihood of an individual being imprisoned within a five year timeframe.
6 New Zealand Parole Board Decision, above n 4, at [7].
7 At [9].
8 Although the Parole Board had sought a psychiatric report in its 6 March 2014 decision, no psychiatric report appears to have been prepared. A psychological report was prepared instead.
[12] In the parole assessment report of 13 November 2014, the Department recommended Ms Mitchell be subject to Global Positioning System (GPS) monitoring as a special condition to her being granted parole. However, as Ms Mitchell had not provided the Department with a release address the Department said it would apply at a later date to the Board for a GPS parole condition when it was known if Ms Mitchell had a suitable address to which she could be released.
[13] The 13 November 2014 parole assessment report contained 10 proposed special conditions to Ms Mitchell being granted parole. Those conditions included requirements that Ms Mitchell:
(1)notify her probation officer upon establishing, developing or resuming a relationship;
(2)not travel south of the Bombay Hills without the prior written consent of a probation officer; and
(3)not go to any airport or airfield without the prior written consent of a probation officer.
[14] The psychological report suggested Ms Mitchell suffered complex post traumatic stress disorder and that she was prone to thoughts of persecution, which at times appeared to go beyond what was objectively rational. The report recommended Ms Mitchell receive psychological treatment because of her high risk of reoffending. The report writer thought there was a significant link between Ms Mitchell’s experiences of psychological and psychiatric distress and her risk of future serious offending.
[15] Ms Mitchell’s case was considered by the Board on 4 December 2014. Ms Mitchell was represented at that hearing. The Board adopted some of the recommendations in the 13 November 2014 parole assessment report. The conditions imposed by the Board required Ms Mitchell to:
(1) … attend and complete appropriate programmes of counselling as
issues arise …
(2) … attend a psychological assessment and complete any treatment/counselling as recommended by the psychological assessment to the satisfaction of [Ms Mitchell’s] probation officer and treatment provider.
(3) … reside at an address approved by a probation office and not to move from that address without the prior written approval of [Ms Mitchell’s] probation officer.
(4) Not to enter the North Island of New Zealand at any point south of Levin without the prior written permission of [Ms Mitchell’s] probation officer ...
(5) Upon release into the community to report immediately to
[Ms Mitchell’s] local probation service.
(6) Not to have contact or otherwise associate with any victim of [Ms Mitchell’s] offending, directly or indirectly, unless [she had] prior written consent from [her] probation officer.
(7) Not to possess, or consume alcohol or illicit drugs.
(8) Not to enter any licensed premises except supermarkets.
[16] On 3 February 2015 the Department applied to the Board to add two special conditions to the terms of Ms Mitchell’s parole. Those conditions would require Ms Mitchell:
(1) To submit to electronic monitoring in the form of Global Positioning System (GPS) technology as directed by [her] probation officer in order to monitor [her] compliance with any condition(s) relating to [her] whereabouts, and if issued a mobile device by the Department, to carry and keep charged and turned on at all times, and to answer for the purpose of communicating with the probation officer.
(2) To comply with the requirements of electronic monitoring, and provide access to the approved residence to [her] Probation Officer and representatives of the monitoring company, for the purpose of maintaining the electronic monitoring equipment as directed by [her] Probation Officer.
[17] The Board agreed with the application made by the Department and on
27 February 2015 imposed the additional special conditions sought by the
Department set out in paragraph [16].
Application for judicial review
[18] Ms Mitchell’s application for judicial review is based on six grounds.
[19] First, in relation to the hearing on 6 March 2014, Ms Mitchell says the Board Chairman had an unwritten policy to deny parole to any eligible prisoner with active criminal charges. Ms Mitchell says this policy was illegal, unfair and unreasonable.
[20] Second, Ms Mitchell says the Department did not ensure its parole assessment report was prepared in time for the Board hearing scheduled for
8 October 2013. Ms Mitchell pleads this was a breach of s 43(c) of the Parole Act
2002.9
[21] Third, Ms Mitchell says the Department caused undue suffering, duress and emotional abuse to her through seeking special conditions that were onerous and unreasonable and which were not ultimately adopted by the Board.
[22] Fourth, Ms Mitchell says the Department acted unlawfully by restricting her from having access to support people in Wellington and by implementing an illegal security classification which led to her being transferred from Arohata Prison in Wellington to Auckland Regional Women’s Correction Facility. Ms Mitchell says this decision was based on the 6 March 2014 decision of the Board.
[23] Fifth, Ms Mitchell alleges the Department acted unlawfully, unreasonably and improperly by taking steps to have her assessed for compulsory mental health treatment.
[24] Sixth, Ms Mitchell alleges that the two special parole conditions imposed by the Board on 27 February 2015 were illegal, unfair and/or unreasonable.
First ground for judicial review
[25] Ms Mitchell says the Chairperson of the Board has an “unwritten policy” of
denying parole to prisoners with active unresolved charges.
9 43 Start of process
(1) When an offender is due to be released at his or her statutory release date, or to be considered by the Board for parole, the Department of Corrections must provide the Board with–
…
(c) in the case of an offender detained in a prison, a report by the Department of
Corrections
…
[26] There is no evidence to support this aspect of Ms Mitchell’s claim. The fact that the Chairperson of the Board referred to Ms Mitchell’s outstanding charges in support of his decision of 6 March 2014 is not evidence of an “unwritten policy” of denying parole to prisoners with active unresolved charges.
[27] Ms Mitchell’s suspicion that there is an “unwritten policy” of the kind she
alleges does not constitute credible evidence.
[28] Ms Mitchell has failed to establish the evidential foundation required for her first ground of judicial review.
Second ground for judicial review
[29] Ms Mitchell says that the failure of the Department to prepare her parole assessment report prior to her first appearance before the Board on 8 October 2013 was a breach of ss 49 to 52 of the Corrections Act 2004.
[30] Ms Mitchell has inadvertently identified the wrong statutory provisions. A
parole assessment report is required by s 43(1)(c) of the Parole Act 2002.
[31] As it transpired, one reason why the hearing on 8 October 2013 was adjourned was because the Chairperson needed to recuse herself. As the hearing could not proceed on 8 October 2013 Ms Mitchell suffered no harm by reason of the Department’s failure to comply with s 43(1)(c) of the Parole Act 2002.
[32] Judicial review is reserved for cases in which errors and omissions by decision-makers have consequences. The Department’s failure in this case to comply with its obligation under s 43(1)(c) of the Parole Act 2002 to prepare a parole assessment report in time for the Board’s hearing on 8 October 2013was inconsequential.
[33] Ms Mitchell has failed to establish her second ground for judicial review.
Third ground of judicial review
[34] Ms Mitchell says the Department proposed unreasonable special conditions in its parole assessment report of 30 November 2014.
[35] This aspect of Ms Mitchell’s claim is governed by the decision of the Court of Appeal in Harriman v Attorney-General10 in which Mr Harriman claimed that the Department had made a number of procedural errors, including errors in the preparation of his parole assessment report. The Court of Appeal held that the purpose of judicial review proceedings was to challenge the exercise of a statutory power of decision.11 The only decision in parole hearings is that of the Board. Judicial review was not available in circumstances where the complaint was that the Department had failed to adopt the correct procedure when preparing recommendations for the Board.
[36] Ms Mitchell concedes any errors in the parole assessment report did not cause the Board to reach an erroneous conclusion. There is therefore no basis to examine in detail the parole assessment report. Ms Mitchell’s third ground of judicial review must be dismissed.
Fourth ground of judicial review
[37] Ms Mitchell submits that her security classification by the Department was unlawful and had the consequence of denying her access to support people in Wellington.
[38] This ground of judicial review cannot succeed because Ms Mitchell’s security classification was not relevant to the Board’s decision. In any event, there is no basis upon which I could seriously entertain judicially reviewing the Department’s
security classification of Ms Mitchell or its decision to transfer her to Auckland.
10 Harriman v Attorney-General [2014] NZCA 544.
11 At [33].
Fifth ground of judicial review
[39] Ms Mitchell’s fifth ground of judicial review is based on her concern that the Department attempted to have her assessed for compulsory treatment or care on the basis of her possibly suffering a mental illness, intellectual disability or other disorder.
[40] There is no evidence to support this ground of judicial review. In any event, there is no indication in the decision of the Board that it was in any way influenced by any attempts made by the Department to have Ms Mitchell assessed under the Mental Health (Compulsory Assessment and Treatment) Act 1992 or other legislation.
[41] Ms Mitchell’s fifth ground of judicial review is doomed to fail because it is simply not relevant to the only decision which might be amenable to judicial review, namely the decisions which the Board has made when imposing special conditions on the terms of Ms Mitchell’s parole.
Sixth ground of judicial review
[42] Ms Mitchell claims the two additional special conditions imposed by the
Board on 27 February 2015 were illegal, unfair and/or unreasonable.
[43] The possibility the Department would apply for additional release conditions relating to GPS monitoring of Ms Mitchell was clearly signalled by the Department in the 30 November 2014 parole assessment report. Furthermore, the Department may apply to the Board at any time to vary any release conditions.12
[44] The additional special conditions imposed by the Board are within the scope of the conditions that may be set under s 15(3) of the Parole Act 2002. The non- exhaustive list of special conditions set out in that subsection include:
conditions relating to the offender's place of residence (which may include a
condition that the offender reside at a particular place), …
12 Parole Act 2002, s 56(2).
conditions requiring the offender to participate in a programme (as defined in section 16) to reduce the risk of further offending by the offender through the rehabilitation and reintegration of the offender:
…
conditions requiring the offender to submit to the electronic monitoring of compliance with any release conditions, … that relate to the whereabouts of the offender.
…
[45] The two special conditions imposed by the Board on 27 February 2015 reflected the Board’s concern Ms Mitchell posed an undue risk after taking into account the likelihood of future offending and the nature and seriousness of any future offending.13
[46] Although not argued by Ms Mitchell, I have considered whether the imposition of the additional special parole conditions amounted to a “variation” of Ms Mitchell’s release conditions. I have considered this issue because s 56(2) of the Parole Act 2002 provides:
56 Application for variation or discharge of conditions
...
(2) A probation officer may at any time apply to the Board for the variation or discharge of any release condition … imposed by the Board that applies to an offender.
...
[47] If one were to adopt a very restrictive interpretation of s 56(2) of the Parole Act 2002 it might be possible to argue that the imposition of additional release conditions does not amount to a “variation” of release conditions. In my assessment, however, the purpose of s 56(2) of the Parole Act 2002 is to enable a probation officer to apply to discharge and change existing conditions and to apply for further conditions to be added. This approach is consistent with the natural and ordinary
meaning of “variation” which includes a “departure from a former … condition”.14
13 Parole Act 2002, s 7(3)(a) and (b).
14 HW and FG Fowler The Concise Oxford Dictionary (Clarendon Press, Oxford, 1995).
[48] In my assessment, the special conditions imposed by the Board on
27 February 2015 were lawful.
[49] I have also concluded that the special conditions challenged by Ms Mitchell were entirely reasonable in light of the Board’s assessment of Ms Mitchell’s risk of reoffending and the nature and seriousness of the risk she poses.
[50] Monitoring a released person by GPS was implemented in August 2012 to help mitigate risk to the community by closely monitoring his or her whereabouts. The purpose of GPS monitoring is to provide up-to-date information of a person’s location, which allows early detection of his or her entering prohibited locations or leaving the place where he or she must remain. In light of Ms Mitchell’s extraordinary pattern of breaching protection orders the Board’s decision to impose the special conditions challenged by Ms Mitchell was entirely reasonable and appropriate.
[51] The special conditions imposed by the Board on 27 February 2015 were the least restrictive restraints that could be imposed in Ms Mitchell’s circumstances and were therefore fair and reasonable.
[52] The sixth ground for judicial review has not been established.
Conclusion
[53] None of the grounds for judicial review argued for by Ms Mitchell have been established.
[54] The application for judicial review is dismissed.
[55] The Attorney-General is entitled to costs on a scale 2B basis.
D B Collins J
Solicitors:
V J Owen, Barrister and Solicitor, Wellington for First Defendant
Crown Law Office, Wellington for Second, Fourth and Fifth Defendants
Legal Services, Waitemata DHB, North Shore for Third Defendant