Pelikani v Chief Executive of the Department of Corrections
[2023] NZHC 21
•20 January 2023
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CIV 2023-404-000092
[2023] NZHC 21
UNDER the Judicial Review Procedure Act 2016 IN THE MATTER OF
An application for a judicial review of a decision made under the Corrections Act 2004
BETWEEN
RICHARD PELIKANI
Applicant
AND
CHIEF EXECUTIVE OF THE DEPARTMENT OF CORRECTIONS
Respondent
Hearing: 20 January 2023 Appearances:
S McColgan for the Applicant D Jones for the Respondent
Judgment:
20 January 2023
JUDGMENT OF TAHANA J
This judgment was delivered by me on 20 January 2023 at 7.45pm Pursuant to Rule 11.5 of the High Court Rules
…………………………
Registrar/Deputy Registrar
Solicitors/Counsel:
Scott McColgan, Barrister, Auckland Crown Law, Wellington
PELIKANI v CHIEF EXECUTIVE OF THE DEPARTMENT OF CORRECTIONS [2023] NZHC 21 [20
January 2023]
Introduction
[1] Mr Richard Pelikani is currently a sentenced prisoner at Mt Eden Prison. Mr Pelikani was convicted of conspiring to import 600 kilograms of methamphetamine and conspiring to supply five ounces (approximately 140 grams) of cocaine.
[2] Mr Pelikani applied to the Department of Corrections (Corrections) for temporary removal so that he can attend his grandmother’s unveiling on 21 January 2023. Corrections declined his application. Mr Pelikani now seeks judicial review of that decision and relief under s 16 of the Judicial Review Procedure Act 2016.
[3] Mr Pelikani submits that Corrections’ decision was unlawful on grounds that Corrections took into account irrelevant considerations – that Mr Pelikani has the same categorisation as “s 501 deportees,” that Mr Pelikani is related to people who are members of gangs; and that Mr Pelikani assaulted a Corrections officer in 2014. The grounds of review also include a failure to take into account a relevant consideration
– being the conditions that would have made the removal safe.
[4] The Crown say the decision was reasonably open to the decision maker, relevant considerations were taken into account and there were no irrelevant considerations taken into account.
[5] This application was heard under urgency this afternoon via teleconference. The unveiling is tomorrow.
Relevant law
[6]Section 62 of the Corrections Act 2004 (the Act) provides:
62 Temporary release from custody or temporary removal from prison
…
(2)The chief executive may give authority for the temporary release from custody or temporary removal from prison of a prisoner to whom this section applies—
(a)for any purpose specified in regulations made under this Act that the chief executive considers will facilitate the achievement of 1 or more of the following objectives:
(i)the rehabilitation of the prisoner and his or her successful reintegration into the community (whether through release to work (including self- employment), to attend programmes, or otherwise):
(ii)the compassionate or humane treatment of the prisoner or his or her family:
(iii)furthering the interests of justice; or
(b)in any circumstances that, in the opinion of the chief executive, are exceptional and that will facilitate the achievement of 1 or more of the objectives described in paragraph (a).
(3)In exercising the powers conferred by subsection (2), the chief executive must consider—
(a)whether the release or removal of the prisoner might pose an undue risk to the safety of the community while the prisoner is outside the prison:
(b)the extent to which the prisoner should be supervised or monitored while outside the prison:
(c)the benefits to the prisoner and the community of removal or release in facilitating the reintegration of the prisoner into the community:
(d)whether removal or release would undermine the integrity of any sentence being served by the prisoner.
[7] Regulation 29 of the Corrections Regulations 2005 (the Regulations), provides, insofar as relevant:
29 Purposes for which eligible prisoners may be temporarily released or temporarily removed under section 62
(1)A prisoner who is eligible for temporary release, or temporary removal, under section 62 may be temporarily released or temporarily removed (as the case may be) for any of the following purposes that the chief executive considers will facilitate 1 or more of the objectives specified in section 62(2) (a) of the Act (subject to the considerations in section 62(3)):
(a)to recognise or maintain a family relationship or a friendship (for example, attending a funeral or tangi):
…
Analysis
[8] Section 62(2) of the Act anticipates removal from prison for the purpose of compassionate or humane treatment of the prisoner. Rule 29 of the Regulations provides attendance at a funeral and tangihanga as an example of recognising a family relationship or a friendship. An unveiling has similar cultural significance.
[9] The Chief Executive has a discretion under s 62. The Chief Executive must consider the matters set out in s 62(3), which include:
(a)whether the removal “might pose an undue risk to the safety of the community while the prisoner is outside the prison”; and
(b)the extent to which the prisoner should be supervised or monitored while outside the prison.
[10]Corrections’ written decision declining removal states:
If this application is not approved give reasons:
Mr PELIKANI is patched member of Crips, King Cobra and associate of Comanchero gangs. There is no guarantee that these gang members will not be present at the unveiling. Presence of any gang members will leave our escorting staff and members of the public at risk where safety and security can be compromised.
Mr PELIKANI has a history of assaulting staff members, and he will pose risk to staff members if this escort is approved.
Mr PELIKANI is a person of interest and is currently being placed as Persons of Extreme Risk Directorate.
Mr PELIKANI has recently been sentenced to 4 years and 8 months, although Mr PELIKANI’s security classification is low and he still has active charges which relates to drugs whereby appeal is pending.
Due to the risk posed the application is NOT APPROVED.
Failure to take into account relevant consideration
[11] Mr Jones submitted that Corrections had considered whether four officers could attend the unveiling but given staff shortages, there was no additional staff available. The issue of supervision was therefore considered and taken into account.
Relevant considerations
Gang affiliations and previous assault on staff
[12] There is a potential factual dispute over whether Mr Pelikani is a member of the King Cobras gang. It is accepted he is a member of the Crips and has associations with King Cobras and Comancheros.
[13] Mr McColgan for Mr Pelikani submitted that the fact of gang membership and the attendance of gang members does not on its own pose an undue risk to the safety of the community and was not a relevant consideration. Mr Pelikani’s associations are based on his shared Tongan ethnicity rather than any gang based affiliation. An unveiling is an important cultural ceremony and the likely conduct of gang members needs to be considered in that context.
[14] There is significant merit in Mr McColgan’s submission that the fact a prisoner has associations with other gangs or that other gang members may attend the unveiling is not relevant without more. It risks discriminating based on ethnicity. If it was accepted, Mr McColgan submitted it would have the perverse outcome of allowing someone convicted of murder to attend a funeral1 and denying those of particular ethnic backgrounds who are convicted of much less serious offending from attending tangihanga or unveilings. I accept the submission that gang membership alone or attendance by gang members is not a relevant factor without something more and this is a risk of discrimination.
[15] Mr Jones however, submitted that it was not simply the fact of gang associations alone but also Mr Pelikani’s historical assault on staff that was taken into account. Taking the historical violence and gang membership and association
1 Watson v Department of Corrections [2012] NZHC 3542.
together, it was open to Corrections to consider that there might be a risk to the safety of the community.
PERD and security classification
[16] Mr McColgan also submitted that Mr Pelikani was not aware that he had been placed on the “PERD” or “Persons of Extreme Risk Directorate” and that Mr Pelikani understood it was for s 501 deportees. Mr Jones for the Crown explained that PERD is a supervision categorisation that means Mr Pelikani is under additional supervision because he is higher risk. It is not limited to s 501 deportees.
[17] Mr Pelikani has been placed on PERD despite having a “low” security classification. Mr Jones explained this classification relates to Mr Pelikani’s day to day accommodation within the prison and is separate.
[18] The “low” security classification and the PERD placement appear inconsistent but on the face of the information provided regarding PERD, it was a relevant consideration and discloses a potential risk.
[19] I acknowledge that the lack of knowledge or opportunity to understand or respond to the placement on PERD together with the delays in receiving the decision, has disadvantaged Mr Pelikani’s ability to challenge its relevance. I cannot however, find that it is an irrelevant consideration.
[20] I find that Corrections did take into account relevant considerations and the decision was not so unreasonable that a reasonable decision maker would not have made it.
Procedure
[21] I acknowledge Mr McColgan’s submission that Mr Pelikani has been disadvantaged by the unsatisfactory delays in Corrections providing:
(a)the documents to enable Mr Pelikani to apply for temporary removal; and
(b)the reasons for the decision so an application could be made to the Court.
[22] The above delays have made it difficult for Mr Pelikani to advance his application in the very limited time available. This is especially so when there has been no time to obtain evidence as to the meaning of PERD and the security classification as referred to in the decision. I acknowledge the comprehensive and helpful submissions that Mr McColgan has made despite these challenges.
[23] There is room for improvement in Corrections’ procedures so prisoners have sufficient time to advance applications of this kind.
Result
[24] The application for relief under s 16 of the Judicial Review Procedure Act 2016 is declined.
Tahana J
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