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Smith v Attorney-General

Smith v Attorney-General

Case [2020] NZHC 1848 28 July 2020

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ORDER PROHIBITING PUBLICATION OF PARAGRAPHS [124] TO [130] (INCLUSIVE) OF THIS JUDGMENT.

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE

CIV-2020-485-000133

[2020] NZHC 1848

UNDER the New Zealand Bill of Rights Act 1990

BETWEEN

PHILLIP JOHN SMITH

Plaintiff

AND

THE ATTORNEY-GENERAL

Defendant

Hearing: 9 – 10 June 2020

Appearances:

Plaintiff in person

D Jones and L Dittrich for the Defendant

Judgment:

28 July 2020

JUDGMENT OF DOOGUE J

This judgment was delivered by Justice Doogue on 28 July 2020 at 2.30 pm
pursuant to Rule 11.5 of the High Court Rules.

Registrar/ Deputy Registrar Date:

Solicitors:
Crown Law, Wellington

SMITH v THE ATTORNEY-GENERAL [2020] NZHC 1848 [28 July 2020]

Introduction [1]

Background [6]

Mr Smith’s sentence [6]

Corrections’ rehabilitative interventions for individuals who have committed sexual offences against children and violent offences  [10]
Eligibility and suitability criteria for the STU programmes  [19]
Waiting lists  [25]
The treatment that Mr Smith has received  [30]
Events 1996-1999  [30]
Events 2000-2009  [32]
Events 2010-2014: Te Piriti  [37]
Events 2015-2016: post-escape  [49]
Events 2017-2018  [55]
Events 2019-2020  [61]

Submissions [65]

Mr Smith [65]

Corrections [69]

The current state of the law in New Zealand on an implied public law duty [73]

The statutory framework [73]

Relevant international obligations [81]

Relevant domestic case law [84]

The international jurisprudence [94]

United Nations Human Rights Committee [94]

United Kingdom [99]

Is there an implied public law duty to provide rehabilitation? [108] Parliament has expressly provided for the rehabilitative needs of prisoners in s 52 of the Corrections Act [110]
An implied public law duty is not necessary [112] A distinction between prisoners facing determinate and indeterminate sentences [115]

Mr Smith’s entitlement to rehabilitative treatment under s 52 of the Corrections Act [118]

Analysis of Mr Smith’s case [124]

Has Corrections failed to provide Mr Smith with rehabilitative treatment opportunities? [131]

Was Mr Smith’s treatment for sexual offending adequate? [144] Mr Smith’s submissions [144]

Corrections’ submissions [147]

Analysis [151]

describe it? [187]

Conclusion [189]

Result

[191]

Has Corrections denied Mr Smith the opportunity to address his violent offending? [172] Was Corrections’ treatment after Mr Smith’s escape retributive and punitive? [178] Are Mr Smith’s appearances before the Board an empty exercise or a charade, as he would

Introduction

[1] The plaintiff, Mr Smith, is serving a life sentence for murder and concurrent sentences for other offences. The defendant is the Attorney-General, sued on behalf of the Chief Executive (Chief Executive) of the Department of Corrections (Corrections).

[2] Mr Smith claims the Chief Executive is under an implied public law duty to provide him with rehabilitative treatment. He says Corrections has failed to provide him with rehabilitative treatment, and that this failure amounts to him being arbitrarily detained in breach of section 22 of the New Zealand Bill of Rights Act 1990 (BORA). Furthermore, he submits Corrections’ failure also amounts to a breach of his rights to humanity and dignity under s 23(5) of BORA.

[3] Corrections says that the…

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 Smith v Attorney-General

Details

AGLC: Smith v Attorney-General [2020] NZHC 1848
Case: [2020] NZHC 1848
Decision Date: 28 July 2020

CaseChat Overview and Summary

Phillip John Smith (Mr Smith) is serving a life sentence for murder and concurrent sentences for other offences. The Attorney-General is sued on behalf of the Chief Executive (Chief Executive) of the Department of Corrections (Corrections). Mr Smith claims the Chief Executive is under an implied public law duty to provide him with rehabilitative treatment. He submits that Corrections has failed to provide him with rehabilitative treatment, and that this failure amounts to him being arbitrarily detained in breach of section 22 of the New Zealand Bill of Rights Act 1990 (BORA). Furthermore, he submits Corrections’ failure also amounts to a breach of his rights to humanity and dignity under s 23(5) of BORA. Corrections says that the duty to provide rehabilitation is expressly provided for in s 52 of the Corrections Act 2004 (Corrections Act). They say that Mr Smith has been provided with such reasonable and appropriate treatment by the Chief Executive, so as to fulfil the duty. The issues for the Court to determine are whether or not any duty to provide rehabilitative treatment is provided for as a statutory duty in s 52 of the Corrections Act, or is an implied public law duty; and in either event, if the Chief Executive is required to provide Mr Smith with rehabilitative treatment and the Chief Executive has failed to discharge that duty, whether this amounts to a breach of ss 22 and 23(5) of BORA. The Court declined to declare the implied public law duty Mr Smith argued for, for the following reasons: Parliament has expressly provided for the rehabilitative needs of prisoners in s 52 of the Corrections Act; in light of s 52, an implied public law duty is not necessary; and an implied public law duty creates a distinction between prisoners facing determinate and indeterminate sentences. In relation to the merits of the case, the Court considered that Mr Smith had been provided with significant rehabilitative services throughout his incarceration. The Court considered Mr Smith’s opportunities for rehabilitative treatment were affected both by long waiting lists and his individual readiness to participate in a Special Treatment Unit. In relation to the adequacy of the treatment, the Court found that the programme for the treatment of child sexual offenders delivered through Te Piriti is based on best international practice and can have an effect of reducing recidivism. It found that the provision of further treatment to Mr Smith was not an admission by Corrections of a failure in the efficacy of the Te Piriti programme, but rather it is evidence of Corrections’ continuing efforts to provide him with reasonable opportunities to work towards his rehabilitation in light of his rehabilitative needs. The Court found that Mr Smith had not yet been given an opportunity to attend a Special Treatment Unit for violent offending, as Corrections’ standard policy requires those needing treatment for child sexual offending and violent offending to complete the child sexual offending programme first. However, the Court found that the risks of violent offending are addressed in a number of ways, and that a specialist sexual offending course will address many of the issues that underlie the risks of violent offending. The Court found that Mr Smith did have much attention paid to his rehabilitative needs after his escape, and dismissed the suggestion that the non-provision of rehabilitative services amounted to arbitrary detention. The Court found that Mr Smith is not arbitrarily detained, and Corrections have not failed to treat him with humanity and respect for his inherent dignity as a person. The Court declined the application for: a declaration that an implied public law duty exists, requiring Corrections to make reasonable provision for access to treatment programmes for prisoners serving indeterminate sentences when the Parole Board has conditioned their release on the completion of those programmes; a declaration that Corrections has failed to provide Mr Smith with a reasonable opportunity to complete specialist treatment for his violent offending, rendering his detention arbitrary in breach of s 22 of BORA, as well as resulting in breaches of ss 23(5) and 27 of BORA and s 52 of the Corrections Act; a declaration that Corrections has failed to provide Mr Smith with a reasonable opportunity to complete adequate specialist treatment for his sexual offending, rendering his detention arbitrary in breach of s 22 of BORA, as well as resulting in breaches of ss 23(5) and 27 BORA and s 52 of the Corrections Act; a writ of mandamus requiring Corrections to commence specialist violence treatment; public law compensation for legitimate frustration and anxiety; and costs.

Orders