Stanley Allen Gilmour v Chief Executive of the Department of Corrections

IN THE SUPREME COURT OF NEW ZEALAND

SC 69/2017
[2017] NZSC 133

BETWEEN	STANLEY ALLEN GILMOUR Applicant
AND	CHIEF EXECUTIVE OF THE DEPARTMENT OF CORRECTIONS Respondent

Court:	William Young, OʼRegan and Ellen France JJ
Counsel:	W G C Templeton and T A Chubb for Applicant D J Perkins and M J McKillop for Respondent
Judgment:	4 September 2017

JUDGMENT OF THE COURT

AThe application for leave to appeal is dismissed.
BThe applicant must pay the respondent costs of $2,500.

____________________________________________________________________

REASONS

The applicant, in his then role as a probation officer in community corrections, had contributed to a draft parole assessment report (PAR) on a particular offender which was to be provided to the Parole Board under s 43(1)(c) of the Parole Act 2002. This set out his view of the offender’s risk of re-offending. The offender’s principal case manager (who was responsible for the final form of the PAR) disagreed with what the applicant had written and it was not included in the PAR which was submitted to the Parole Board.
The applicant claims that the Department of Corrections was required to include his contribution in the PAR. This contention was rejected in the High Court[1] and Court of Appeal.[2] As the respondent’s submissions note, the applicant’s argument is based solely on the interpretation of the Act.
[1]Gilmour v Chief Executive of the Department of Corrections [2016] NZHC 1352 (Ellis J).
[2]Gilmour v Chief Executive of the Department of Corrections [2017] NZCA 250 (Harrison, Winkelmann and Asher JJ).
Section 43(1)(c) provides:
43 Preparation for hearings
(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;
There is a memorandum of understanding between the Department and the Parole Board as to what should be contained in the PAR which is discussed in the judgment of the Court of Appeal.[3]
[3]At [15]–[17].
The applicant’s challenge to the non-inclusion of his contribution in the PAR has been pitched at a high level: that the Department was required to include his contribution in the PAR. The argument, which draws primarily on the risk‑assessment function of the Parole Board, is that the PAR was required to include all material known to the Department which was relevant to risk.
We consider that a PAR could contain an expression of opinion as to the risk of re-offending and the premises on which that opinion is based and thus that it would have been open to the principal case manager to have included the applicant’s contribution in the PAR. We are, however, also of the view that the principal case manager was entitled to form a judgment as to what should be included in the PAR. If she disagreed with the appropriateness of the applicant’s contribution, she was not required to include it.
The Court of Appeal concluded that the contents of the PAR are for the Department to determine and, in doing so, it is entitled to have regard to the memorandum of understanding. On this basis the final form and contents of a PAR involve an evaluative assessment on the part of the principal case manager. There is thus no requirement for the principal case manager to include any assessment of risk or the factual premises which underpin that assessment.[4]
[4]See the Court of Appeal’s reasoning at [23], [35] and [37].
The point at issue is extremely narrow and we are of the view that there is insufficient scope for doubt as to the approach adopted by the Court of Appeal to warrant granting leave to appeal.
Accordingly, the application for leave to appeal is dismissed. We order that the applicant pay the respondent costs of $2,500.

Solicitors:
Sellar Bone & Partners, Auckland for Applicant
Crown Law Office, Wellington for Respondent

CaseChat Overview and Summary

In the case of Stanley Allen Gilmour v Chief Executive of the Department of Corrections, the applicant sought a review of the decision of the Chief Executive to dismiss his application for leave to appeal to the High Court. The applicant, a prisoner, had challenged the decision of the Department of Corrections not to include his contribution in a Parole Assessment Report (PAR) submitted to the Parole Board. The applicant argued that the Department was required to include his contribution in the PAR as it was material and relevant to the risk of re-offending.

The court was required to determine whether the Department of Corrections was required to include the applicant's contribution in the PAR and whether the principal case manager was entitled to form a judgment as to what should be included in the PAR. The court held that the contents of the PAR are for the Department to determine, and it is entitled to have regard to the memorandum of understanding with the Parole Board. The court also held that there is no requirement for the principal case manager to include any assessment of risk or the factual premises which underpin that assessment.

The court concluded that the Court of Appeal's approach was correct and that there was insufficient scope for doubt as to the approach adopted by the Court of Appeal to warrant granting leave to appeal. The application for leave to appeal was dismissed, and the applicant was ordered to pay the respondent's costs of $2,500.

Legal Principle Established

Section 43(1)(c) provides:43 Preparation for hearings(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; There is a memorandum of understanding between the Department and the Parole Board as to what should be contained in the PAR which is discussed in the judgment of the Court of Appeal.[3][3]At [15]–[17]. The applicant’s challenge to the non-inclusion of his contribution in the PAR has been pitched at a high level: that the Department was required to include his contribution in the PAR. The argument, which draws primarily on the risk‑assessment function of the Parole Board, is that the PAR was required to include all material known to the Department which was relevant to risk. We consider that a PAR could contain an expression of opinion as to the risk of re-offending and the premises on which that opinion is based and thus that it would have been open to the principal case manager to have included the applicant’s contribution in the PAR. We are, however, also of the view that the principal case manager was entitled to form a judgment as to what should be included in the PAR. If she disagreed with the appropriateness of the applicant’s contribution, she was not required to include it. The Court of Appeal concluded that the contents of the PAR are for the Department to determine and, in doing so, it is entitled to have regard to the memorandum of understanding. On this basis the final form and contents of a PAR involve an evaluative assessment on the part of the principal case manager. There is thus no requirement for the principal case manager to include any assessment of risk or the factual premises which underpin that assessment.[4] [4]See the Court of Appeal’s reasoning at [23], [35] and [37]. The point at issue is extremely narrow and we are of the view that there is insufficient scope for doubt as to the approach adopted by the Court of Appeal to warrant granting leave to appeal. Accordingly, the application for leave to appeal is dismissed. We order that the applicant pay the respondent costs of $2,500.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established