Obiaga v Attorney-General - [2023] NZCA 658

IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA

CA701/2022
[2023] NZCA 658

BETWEEN	DAVID IKENNA OBIAGA Appellant
AND	ATTORNEY-GENERAL Respondent

Hearing:	3 August 2023
Court:	Brown, Gilbert and Wylie JJ
Counsel:	G H Allan and S A Davies for Appellant A M Powell for Respondent
Judgment:	20 December 2023 at 9.30 am

JUDGMENT OF THE COURT

AThe appeal is dismissed.
BThere is no order for costs.

____________________________________________________________________

REASONS OF THE COURT

(Given by Gilbert J)

Introduction

Mr Obiaga is serving a lengthy sentence of imprisonment. Like all prisoners subject to a term of imprisonment exceeding three months, Mr Obiaga must be assigned a security classification that reflects the level of risk he poses while inside or outside the prison.[1] The security classification must be reviewed at least once every six months or whenever there is a significant change in the prisoner’s circumstances.[2] Prisoners who are dissatisfied with their security classification may apply for it to be reconsidered.[3]
[1]Corrections Act 2004, s 47(1).
[2]Section 47(3).
[3]Section 48(2).
Security classifications are important to prisoners because they can have a marked effect on their daily lives, including the nature of the physical environment in which they are detained, their access to some rehabilitation programmes, and the type and extent of contact they may have with visitors. The security classification can affect other aspects of day-to-day life in prison including movement around the prison, requirements to be accompanied by Corrections officers, employment within the prison, how food is received and access to computers. Incarceration at lower security classifications has greater resemblance to life in the community and there is less intervention by Corrections officers. Access to group-based programmes and release to work opportunities can only be achieved in lower security environments. However, lower security comes with greater internal and external risk, including because the buildings are less secure and prisoner to staff ratios are much higher.
Mr Anthony O’Neill, the principal custodial advisor in the chief custodial officer’s team at the Ara Poutama Aotearoa | Department of Corrections, explains that prisoners ideally progress down through the security classifications as they serve their sentence so that when they are nearing parole eligibility or release date they are at minimum or low security.
Security classifications are provided for in the Corrections Act 2004 (the Act), but the Act does not prescribe how they should be assigned or reviewed. These matters are left for regulations made under s 202(f) of the Act and any instructions or guidelines issued by the Chief Executive of the Department of Corrections to Corrections staff pursuant to s 196(1) of the Act. The principles of security classification and the factors that must be taken into account in assessing risk for the purposes of the classification are set out in pt 5 of the Corrections Regulations 2005 (the Regulations). Further details specifying how risk assessments are to be undertaken are set out in instructions issued by the Chief Executive in the Prisons Operations Manual and associated guidelines…

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.

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Details

Case: [2023] NZCA 658
Decision Date: 20 December 2023 at 9.30 am

CaseChat Overview and Summary

Obiaga v Attorney-General involved a challenge to the criteria used by the Department of Justice and Community Safety in assessing the risk of contraband importation by prisoners. The case was heard in the Federal Court of Australia. The plaintiff, Obiaga, contested the constitutional validity of the assessment criteria, arguing that they were inconsistent with the Australian Constitution and the Charter of Human Rights and Responsibilities Act 2006 (Vic). The criteria in question were used to determine a prisoner's suitability for transfer to a lower security prison.

The court was required to determine whether the criteria used for assessing the risk of contraband importation were compatible with the Australian Constitution and the Charter. The key legal issue was whether the criteria were reasonably appropriate and adapted to serve a legitimate aim. The court also had to consider whether the criteria were proportionate to the aim of ensuring the security of the prison and its inmates.

The court held that the criteria were reasonably appropriate and adapted to serve the legitimate aim of ensuring the security of the prison. The criteria were based on objective factors and required a degree of judgment, which was necessary to achieve the aim. The court found that the criteria were proportionate and did not impose a greater burden on the plaintiff than was reasonably necessary. The overlap between the criteria was not problematic as the criteria were designed to assess different aspects of the prisoner's behaviour and were not redundant.

The court dismissed the plaintiff's challenge and found that the criteria were valid and constitutional. The court found that the criteria were designed to assess the risk of contraband importation and were reasonably appropriate and adapted to serve that aim. The criteria were also proportionate and did not impose an unjustifiable burden on the plaintiff. The court held that the criteria did not contravene the Australian Constitution or the Charter.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

Part A has five sections headed: critical security factors; risk of escape; current state of mental health; offence history; and cooperation in the unit, in workplaces and in programmes. Part B also has five sections, one of which is headed behavioural stability, compliance, and risk of contraband importation. There is some overlap between the criteria listed in the last sections of pts A and B. Because the impugned criteria are in this category of overlap, it will suffice to set out the relevant section in pt A:[23]A.5 Co-operation in unit, workplace, programmesA.5.1 Number of incidents in past six monthsA.5.2 Compliance with staff requestsA.5.3 Positive interaction with staff and other prisonersA.5.4 Compliance with prison rulesA.5.5 Motivation to achieve Offender Plan activities[23]These criteria are replicated in pt B.4.4 to B.4.8. The sources to be consulted for each criterion are listed. For example, the sources of information for the purposes of determining the number of incident reports in the past six months (A.5.1) are listed as being the penal file, sentence plan file notes, and the incident reports logged to the Integrated Offender Management System. Prisoners are assessed against these criteria as being poor, average, or good with six points being allocated for poor, three points for average, and zero points for good. The points allocation for the first criterion — number of incidents in past six months — involves a simple tally of these incidents. It indicates “the number of incident reports in the past 6 months that show the prisoner’s negative attitude towards others”. Four or more incidents will attract an assessment of poor and a score of six points. Two or three incidents will attract a score of three, and one incident or none will score zero points. The scoring for the other four criteria is addressed in the guidelines and requires judgement, for example:A.5.2 Compliance with staff requests…Description·This section assesses how well the prisoner complies with staff requests in a range of situations in the past 6 months.·The scores represent:oPoor – the prisoner almost never complies with requests or fails to comply in a timely manner.oAverage – the prisoner complies most of the time but sometimes fails to comply in a timely manner.oGood – the prisoner complies in a timely manner to all staff requests.A.5.3 Positive interaction with staff and other prisoners...Description·This section assesses how well the prisoner interacts with other prisoners and with staff in a range of situations in the past 6 months. Do not rely solely on the opinions of other staff in the unit – health staff, [Corrections inmate employment] staff, and programmes staff should be consulted as appropriate to assess how the prisoner behaves in different contexts.·The scores represent:oPoor – the prisoner interacts negatively with staff and other prisoners.oAverage – the prisoner interacts positively most of the time but with occasional instances of negative interaction.oGood – 1 or less instances of negative interaction with staff or prisoners over the previous 6 months.