Smith v Chief Executive of the Department of Corrections
[2024] NZHC 3584
•27 November 2024
ORDER PROHIBITING PUBLICATION OF NAMES OR IDENTIFYING PARTICULARS OF THE APPLICANT UNTIL AFTER 5PM ON THURSDAY 28 NOVEMBER 2024. IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY
I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE
CIV-2024-485-787
[2024] NZHC 3584
UNDER the Judicial Review Procedure Act 2016 IN THE MATTER
of an application for Judicial Review
BETWEEN
PHILLIP JOHN SMITH
Applicant
AND
THE CHIEF EXECUTIVE OF THE DEPARMTENT OF CORRECTIONS
Respondent
Hearing: 27 November 2024 Appearances:
Applicant in person
A M Powell for Respondent
Judgment:
27 November 2024
JUDGMENT OF BOLDT J
[1] Phillip John Smith has been serving a life sentence for murder since 1996, and is currently housed in Rimutaka Prison. This case arises because, on 19 November 2024, Mr Smith’s father Basil Smith died in Palmerston North. The funeral will be held in Palmerston North tomorrow, 28 November 2024.
[2] The day after his father’s death, Mr Smith asked to be allowed to leave prison to attend the funeral, and applied for temporary removal under s 62 of the Corrections Act 2004 (the Act).
SMITH v THE CHIEF EXECUTIVE OF THE DEPARMTENT OF CORRECTIONS [2024] NZHC 3584 [27
November 2024]
[3] In a decision dated 22 November 2024, the General Manager of Rimutaka Prison (the Manager), as the Chief Executive’s duly authorised delegate, declined Mr Smith’s application. Mr Smith seeks an urgent judicial review of that decision.
[4] Mr Smith has not been a model prisoner. Notoriously, he escaped from custody in 2014 while on temporary release and fled to Brazil, though he was recaptured and returned to New Zealand promptly. Moreover, and despite being behind bars, he has engaged in dishonesty offending over the last few years, and has also gathered misconduct charges; the most recent, which has yet to be heard, arose only around six weeks ago. The Parole Board recently observed Mr Smith “appears unable to comply with prison rules”.
[5] The proposed removal would involve Mr Smith being transported from Rimutaka Prison to Palmerston North in the company of three Corrections officers. Whenever outside the vehicle he would be handcuffed to one of the officers. Mr Powell, on behalf of the Department of Corrections, confirmed the refusal of the application was not dictated by a shortage of staff or vehicles.
[6] Instead, the Manager placed particular weight on Mr Smith’s 2014 escape, and his recent reclassification from low-medium to high security.1 The Manager produced a written decision explaining the refusal, and I set it out in full:
It has been determined that Phillip SMITH continues to present an undue level of risk to others. The safety and security of staff members, Phillip SMITH, and the wider community cannot be adequately ensured. Accordingly, the application for Temporary Removal is hereby declined. The grounds for this decision are outlined as follows:
Phillip SMITH has been serving a life sentence since 1996 following convictions related to child sex offending and murder. He is classified as Tier 2 prisoner until PERD. In addition to these serious convictions, Phillip SMITH has a documented history of dishonesty and fraud, with a recent conviction in 2023 for committing IRD fraud while in prison at Rimutaka Prison.
Notably, in November 2014, Phillip SMITH absconded during a period of temporary release and subsequently fled the country. More recently, he has been involved in two separate incidents resulting in misconduct charges and a reclassification from Low-Medium Security to High Security.
1 Mr Smith is currently challenging that reclassification by way of judicial review in a separate proceeding.
The following factors have been taken into consideration in the decision:
·Phillip SMITH is currently classified as a High Security prisoner.
·The risk of flight remains significant, as evidenced by his 2014 escape and subsequent overseas flight, which involved careful planning and manipulation. His sister, Joane Smith, was convicted of assisting his escape.
·Phillip SMITH has an active alert on the Victim Notification Register. The funeral is to be held in the region where the victims family resides.
·Phillip SMITH has a significant number of supporters, as evidenced by his online website.
·The funeral has been advertised both online and locally, making it open to the public. As a result, there are significant uncertainties regarding the potential attendees, and mitigations cannot be effectively implemented.
·The funeral is expected to be livestreamed, and there is a possibility that attendees may record the event. Staff members have not consented to having their images or videos captured.
Given the aforementioned factors, I am unable to guarantee the safety and security of our staff, Phillip SMITH, or the wider community if the application for Temporary Removal were to be approved.
[7] Because the funeral is tomorrow, the application was heard, and this decision was prepared, in circumstances of considerable urgency. Mr Powell helpfully attended at very short notice, as did Mr J McBrearty from the Department of Corrections.
[8] I delivered the result of the application, and a broad outline of my reasons, at the conclusion of the hearing.
Principles
[9] There was no dispute about the applicable principles. As Mr Smith acknowledged, the decision resides with the Chief Executive or his delegate, and not with the Court. My role is confined to ensuring the decision was made lawfully, fairly and reasonably. Provided it acts lawfully, day-to-day management of prisoners is an area where the Department is entitled to considerable latitude.
[10] There is no dispute the Manager was required to consider Mr Smith’s application impartially and with due regard to the Act, and that he was obliged to offer reasons for his decision which were rationally and logically connected with the relevant ground of refusal.
Statutory regime
[11]Section 62 of the Act relevantly provides:
(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:
…
ii.the compassionate or humane treatment of the prisoner or his or her family:
…
(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.
[12] Mr Powell confirmed the Manager declined the application in reliance on s 62(3)(a). No other provision is in issue. It follows the only question I am required to address is whether the Manager has demonstrated that Mr Smith’s attendance at the funeral might pose an undue risk to the safety of the community.
Discussion
[13] I am not satisfied the Manager’s decision discloses a clear and rational basis for the refusal of the application. He placed considerable reliance on Mr Smith’s 2014 escape, without explaining its relevance to Mr Smith’s proposed attendance at the funeral.
[14] Mr Smith escaped in 2014 while on temporary release. He was not supervised during that period, let alone handcuffed to a Corrections officer.
[15] There is no comparison between the circumstances of that escape and the carefully controlled escort proposed for Mr Smith’s attendance at the funeral. It is notable Mr Smith attended his mother’s funeral in 2005 without incident, and that he has been temporarily removed from prison on numerous other occasions over the years (including to attend civil proceedings in Court and receive medical treatment).
[16] While Mr Powell and Mr McBrearty note that much has happened since 2005, it is fanciful to suggest Mr Smith might somehow seek to escape from his escort if allowed to attend the funeral. I consider the Manager’s heavy reliance on the 2014 escape, in the context of this application, to be irrational.
[17] The Manager also noted his concern that members of the victim’s family reside in the Manawatū, and suggests Basil Smith’s death notice might prompt members of the victim’s family to attend the funeral, presumably with a view to threatening or attacking Mr Smith. When pressed, however, Mr McBrearty acknowledged the Department has no intelligence or other information suggesting that hostility from the victim’s family is likely, or that anyone associated with the victim has any plans to attend. Once again, I regard that concern as speculative and irrational.
[18] Similarly, the fact Mr Smith has supporters outside prison is simply irrelevant. Mr McBrearty suggested Mr Smith’s supporters, or members of his family, might confront Mr Smith’s escort. In the absence of information or intelligence that anyone is planning to use Mr Smith’s attendance at the funeral to create disorder, there is no reason to believe there is any risk to the safety of the officers escorting him.
[19] Finally, there is no evidence the funeral will be livestreamed. None of the material issued by the funeral director indicates any plan to do so. Mr Smith says he understands the service will not be livestreamed. The Department is concerned that the faces of Corrections staff may be revealed if the service were live streamed; it is unclear whether, or how, that concern might be relevant to an application under s 62, however in light of the fact there is no evidence that livestreaming is contemplated I need not to comment further.
[20] I have concluded the Manager’s decision does not disclose a rational basis for concluding that Mr Smith’s removal to attend the funeral might pose an undue risk to the safety of the community, and accordingly his decision must be set aside.
Relief
[21] Watson v Department of Corrections is a decision which bears many similarities to the present case.2 In that case, Scott Watson, who was (and is) serving a life sentence for double murder, applied for temporary removal to his attend his mother’s funeral. Justice Fogarty concluded there was no rational basis for the Department’s refusal of Mr Watson’s application. The Judge quashed the decision and, rather than referring the matter back for reconsideration, issued a mandatory order directing the Chief Executive or one of his authorised delegates to authorise Mr Watson’s temporary removal.
[22] Mr Smith invited me to make a similar order in the present case. I am not prepared to do so; as noted already, this is a statutory decision which resides with the Chief Executive or his delegate and not with the Court. While I do not consider the Manager’s current decision discloses a rational risk, it is important the Manager has the opportunity to review the material before him and reconsider his decision in light of my analysis.
[23] Nonetheless, time is of the essence; the funeral is tomorrow and it would not be acceptable for the decision to be delayed to the point where Mr Smith’s attendance becomes logistically impossible. Accordingly, I direct that the Chief Executive or his
2 Watson v Department of Corrections [2012] NZHC 3542.
delegate must reconsider Mr Smith’s application in accordance with the observations in this judgment. If no decision is made by 4.30pm this afternoon, I order the Chief Executive or one of his authorised delegates to give authority for Mr Smith’s temporary removal from prison to attend his father’s funeral, subject to any reasonable conditions under s 64 of the Act.
[24] For the avoidance of doubt, I confirm it will be open to the decision-maker to direct that Mr Smith’s attendance is conditional upon the service not being livestreamed, and that the escort is satisfied no members of the news media are in attendance.
[25]I make no order as to costs.
Boldt J
Solicitors:
Crown Law Office, Wellington
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