Tekani v Manager, Christchurch Men's Prison

[2017] NZHC 604

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

CIV-2017-409-000182 [2017] NZHC 604

BETWEEN

LESLIE NOEL TEKANI

Plaintiff

AND

THE MANAGER, CHRISTCHURCH
MENʼS PRISON
First Defendant

DEPARTMENT OF CORRECTIONS Second Defendant

Hearing:	28 March 2017 (By way of telephone conference)
Appearances:	AMS Williams for Plaintiff H Carrad for First and Second Defendants
Judgment:	29 March 2017

JUDGMENT OF GENDALL J [On Application for Judicial Review]

Introduction

[1]      Late in the afternoon yesterday 28 March 2017 the plaintiff filed in this Court a statement of claim seeking judicial review of a decision relating to his proposed prison  van  transportation  from  Christchurch  Men’s  Prison  to  the  Nelson  Police Station scheduled to take place the next day, being today 29 March 2017 at 7:45 a.m.

[2]      This statement of claim was supported by a one page affidavit from the plaintiff Mr Tekani.  This affidavit, no doubt as a result of the great haste which this present matter seems to have necessitated, was unsworn and unsigned.

[3]      In addition, the matter was supported by a short memorandum from counsel for the plaintiff seeking urgency.

TEKANI v THE MANAGER, CHRISTCHURCH MENʼS PRISON [2017] NZHC 604 [29 March 2017]

[4]      The proceeding was required to be on notice and at some time yesterday afternoon it was served by email on the Crown Law Office on behalf of the defendants.

[5]      At 4:15 p.m. yesterday, when this matter first came to my attention, I directed that it was to be the subject of an urgent telephone conference involving counsel for all parties at 4:45 p.m. that day.

[6]      That telephone conference took place.  Mr Williams appeared as counsel for the plaintiff. Ms Carrad appeared as counsel for the defendants.

[7]      After discussion with counsel for the parties there was no alternative, given extreme urgency which was involved, but for a hearing of the plaintiff’s application seeking orders by way of judicial review to proceed as a telephone hearing at that point.   This occurred.   At this hearing I heard submissions from Mr Williams on behalf of the plaintiff.  These submissions were advanced in support of the orders sought in the application, first, that the decision to transport the plaintiff to Nelson in the manner sought  was  unreasonable and  unlawful  and,  secondly,  that  an  order would follow prohibiting this.  Then I heard submissions from Ms Carrad for both defendants.  She indicated that, in the very brief time she had available since being served with this proceeding, she had obtained instructions which were to oppose the plaintiff's application and to support the current transportation arrangements that were planned.

[8]      After  considering  these  submissions  I  gave  my  decision  yesterday  at

5:15 p.m. indicating that the plaintiff's application failed.   His claim to the orders sought by way of judicial review was dismissed.  In making this decision I indicated that my detailed reasons would follow.  I now give those reasons.

Background facts

[9]      The plaintiff is a serving prisoner at Christchurch Men’s Prison.   He has a statutory release date of 31 March 2017.   In January 2013 the plaintiff was the subject of an Extended Supervision Order (ESO) and he remains subject to this order.

[10]     The  conditions  of  the  plaintiff’s  ESO  made  in  the  District  Court  at

Christchurch on 29 January 2013 I am told are as follows:

a.To submit to electronic monitoring as directed by a probation officer in order to monitor compliance with conditions relating to your whereabouts and, if issued with a mobile device by the Department or if using your own device, to carry and keep it charged at all times for the purpose of communicating with the probation officer.

b.To comply with the requirements of electronic monitoring and to provide access to the approved address to the probation officer and representatives of the monitoring company for the purpose of maintaining the electronic equipment as directed by a probation officer.

c.To attend, participate in and adhere to the rules of a Kia Marama Relapse Prevention Group as and when directed by the probation officer to the satisfaction of the probation officer and programme provider.

d.To attend and engage in sessions with a Departmental psychologist for the purpose of developing or reviewing a safety plan in accordance with directions issued by the probation officer.

e.Not to purchase, possess or consume alcohol or illicit drugs and to submit to alcohol and drug testing as may be directed by a probation officer.

f.        To be at your approved address between the hours of 10 p.m. and

7 a.m.  daily  except  where  you  have  prior  written  approval  of  a probation officer.

g.        To reside at an address approved by a probation officer and not to move from that address without the prior written approval of a probation officer.

h.To notify your probation officer of any relationships/associations with females and details and nature of any such relationship/associations.

i.         To  only engage  in  such vocational training/employment  (paid  or unpaid) with the prior written approval of the probation officer.

j.         Not to enter or remain on the grounds of any crèches, kindergartens, preschools,  primary  schools,  high  schools,  or  any  other  area identified (and specified in writing) by a probation officer where children under the age of 16 years are known to congregate except where you have the prior written approval of a probation officer.

[11]     Following his impending release from Christchurch Men’s Prison it seems

the plaintiff has accommodation arranged in Nelson.  This has been approved by his

probation officer as required by the conditions of his ESO. As noted above, it is also a condition of his ESO that he be GPS monitored.

[12]     Arrangements have now been made it seems at the request of the plaintiff’s probation officer in Nelson, who has been appointed to adopt that role following the plaintiff’s prison release, for him to be transported by way of a prison van from Christchurch Men’s Prison leaving at 7:45 a.m. today, 29 March 2017 to the Nelson Police Station.   In accordance with what I understand to be usual procedure, the plaintiff is to be handcuffed during that prison van journey.  I am told the journey is to be via Greymouth and will take approximately eight hours.

Counsel’s submissions

[13]     Before me, counsel for the plaintiff suggested that it was highly unusual for a prisoner to be transferred in this manner for the purpose of release following his serving a sentence, especially in a case such as the present where it is claimed the prisoner is not the subject of any condition which would require such a transfer.

[14]     Mr Williams went on to note that on previous occasions, when the plaintiff had been released from custody, he had been fitted with a monitoring bracelet in Christchurch and been released to travel by bus to Nelson.  This was not to occur on the present occasion however.  Mr Williams went further in his submissions before me and contended that the plaintiff had no convictions for escaping from custody or otherwise absconding in the past and would, in any event, be fitted with a GPS bracelet on his release.

[15]     So far as that last aspect is concerned however, one important matter needs to be noted. As to this, Ms Carrad for the defendants advised the Court that, on the last occasion on which the plaintiff had been released from Christchurch Men’s Prison, within four hours of this release he had been re-arrested for breaching release and ESO conditions, in that he had arranged and met a young woman in direct contravention of his non-association conditions.

[16]     Lastly, in his submissions before me Mr Williams contended first, that there

were no conditions associated with the plaintiff’s ESO that would require him to be

escorted  to  Nelson  and  secondly,  that  in  all  the  circumstances  of  this  case  the decision here for handcuffed prison van transportation to Nelson could only be seen as unreasonable and unlawful.

[17]     On this aspect, Mr Williams referred me to ss 53 and 54 Corrections Act 2004 which relate to the transfer of prisoners from one prison to another and reasons required for such a transfer.   He suggested that none of the s 54 reasons for a prisoner transfer apply in this case.

[18]     Turning  now  to  the  defendant’s  submissions  advanced  before  me  by Ms Carrad, it was repeated first, that the plaintiff's final prison release date, as I have noted, is not until Friday next, 31 March 2017.   A plan for the plaintiff’s prison release she outlined had been carefully arranged at the request of his probation officer.   Whilst the plaintiff continued to serve his sentence and was still in the custody of the Department of Corrections, he was to be securely transported from Christchurch to the Nelson Police Station.  There he would be met by the probation officer who would then take him to Corrections to have his monitoring bracelet fitted, he would be fully briefed on his release and ESO conditions, and then she would take him to the approved Nelson accommodation.   This would mean that although his formal release date was not to be until Friday 31 March 2017 he would, as I understand it, in fact be released and his ESO order begin on 29 or 30 March

2017.

[19]     So far as the reasons for all this are concerned, Ms Carrad indicated that it was thought by the probation officer and all the authorities involved that this arrangement gave the plaintiff the best possible chance to both comply with his ESO conditions and to start his post-release life to avoid any immediate possibility of re- arrest.  Ms Carrad suggested that it was important to ensure that, as far as possible, the events which occurred on the plaintiff’s last prison release where he was re- arrested within four hours for breach of his non-association conditions were avoided. She understood that the plaintiff’s probation officer was of the view that, with her own active involvement in meeting with the plaintiff on his arrival in Nelson, supervising his electronic monitoring arrangements, his briefing and settling him into

his Nelson accommodation, all this would provide the best possible initial assistance for him.

[20]     Finally, Ms Carrad maintained that these transportation arrangements simply followed  the  administrative  request  made  by the  probation  officer  and  the  first defendant in particular has merely adopted the role of carrying these out.

My decision

[21]     On all of these matters it is useful to note s 25(1)(ab) Corrections Act 2004 which addresses one of a number of functions of probation officers which are set out in that Act. This provision states:

25       Functions of Probation Officers

(1)      It is the function of every probation officer –

…

(ab)     To supervise all persons placed under the officer’s supervision under an Extended Supervision Order made under Part 1A of the Parole Act 2002, and to ensure that the conditions of the order are complied with:

…

[22]     As I have noted above, Ms Carrad in her submissions to me maintained that the plaintiff’s appointed probation officer made an assessment of what was the safest and most prudent manner of transferring him from Christchurch to Nelson following his prison release to avoid actual difficulty which had occurred in the past, and to comply with his release and ESO conditions.   It was she who requested the arrangements  which  are  currently proposed.    I am  satisfied  here that  given  the supervision function of the probation officer noted in s 25(1)(ab) of the Corrections Act 2004 above, and the real concerns expressed that last time the plaintiff was released from prison within four hours he was re-arrested for breach of release conditions, the present arrangements could not be considered to be unreasonable or unlawful.  The decision to have the plaintiff securely transported to Nelson in my view was a sensible and practical one made for appropriate reasons, especially given the plaintiff’s early breach of a release condition in the past.   If justification was

required for the transfer, then it seems to me that the situation here is akin to one that is specifically provided for in s 54(1)(b) of the Corrections Act 2004 which states:

54       Reasons for Transfer

(1)       A prisoner may be transferred by the Chief Executive from one prison to another for one or more of the following reasons:

…

(b)      To assist in facilitating the –

(i)       Rehabilitation of the prisoner; or

(ii)      Reintegration of the prisoner into the community on his or her release.

…

[23]     Here, the essential point advanced by Mr Williams for the plaintiff is that he simply objected to being transported from Christchurch to Nelson (over what he said was a long and difficult road journey) handcuffed in the back of a prison van, simply to be released.  It is said he has no issue about this transfer if it took place in the back of a car rather than a prison van.  His complaint therefore is effectively about the means of transportation.

[24]     In my judgment there is little in this.  Security reasons, as he is still a serving prisoner until release, obviously remain.  Ms Carrad before me maintained too that the second defendant simply says that transportation arrangements were made for the plaintiff as requested by his probation officer.  His statutory prison release date, as I have noted, is 31 March 2017 when under this arrangement, as I understand it, he will in fact be released early on 29 or 30 March 2017 with his ESO commencing then.  It might be said that this is actually to his advantage.  It seems, I am told, that it has been brought about by the fact that prisoner van transfers usually take place on Wednesdays rather than the plaintiff here waiting until his final sentence release date of Friday 31 March 2017.

[25]  For  all  these  reasons  I  find  that  what  is  essentially  the operational/administrative decision to transport the plaintiff to Nelson in the usual prisoner transfer  manner proposed  was  not  unreasonable,  unlawful  or  otherwise

invalid.  His claim to review this decision under the Judicial Review Procedure Act

2016 therefore failed and it was dismissed.

[26]     As to costs on this matter, they are reserved.  If they are in issue between the parties and counsel are unable to resolve the question then memoranda may be filed sequentially.

...................................................

Gendall J

Solicitors:

Public Defence Service

Crown Law Office, Wellington