Thacker v Attorney-General
[2023] NZHC 1901
•20 July 2023
IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY
I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE
CIV-2022-485-000545
[2023] NZHC 1901
IN THE MATTER OF The Judicial Review Procedure Act 2016 BETWEEN
JIM DAVID THACKER, Prisoner, of Auckland
Applicant
AND
ATTORNEY-GENERAL, sued for and on behalf of the DEPARTMENT OF CORRECTIONS, Wellington
First Respondent
AND
VISITING JUSTICE AT AUCKLAND
PRISON, Auckland Second Respondent
Hearing: 24 May 2023 Appearances:
J Mason and N T U Thrupp for the Applicant
S L K Shaw and E McDowell for the First Respondent No appearance for the Second Respondent
Judgment:
20 July 2023
JUDGMENT OF GENDALL J
Introduction
[1] The applicant, Mr Jim David Thacker, brings this judicial review application against the first respondent, the Attorney-General, sued on behalf of the Department of Corrections and the second respondent, the Visiting Justice at Auckland Prison (the Visiting Justice). There was no appearance for the Visiting Justice on this application before me, s/he advising me that s/he would abide the decision of the Court.
JIM DAVID THACKER, Prisoner, of Auckland v ATTORNEY-GENERAL, sued for and on behalf of the DEPARTMENT OF CORRECTIONS, Wellington [2023] NZHC 1901 [20 July 2023]
[2] Mr Thacker is in Auckland Prison. He seeks judicial review of his directed segregation, alleging that it amounted to “punishment” and unlawful solitary confinement, as well as decisions declining him contact with his family. His application for review relies on the grounds of improper purpose, failure to consider relevant considerations, consideration of irrelevant factors, bias, use of fettered discretion, substantive unfairness, error of law, legitimate expectation and breach of natural justice. Essentially, he maintains too the Department of Corrections (Corrections) discharged its functions and responsibilities and exercised decision- making powers in a way that is contrary to the Corrections Act 2004 and related regulations and policies; it failed to properly consider te Tiriti o Waitangi/the Treaty of Waitangi and international instruments; and it acted in breach of the New Zealand Bill of Rights Act 1990.
[3] Mr Thacker is currently a prisoner incarcerated in the Prisoners of Extreme Risk Unit (PERU) at Auckland Prison in Paremoremo. Mr Thacker was taken into custody on 15 June 2020 at Waikeria Prison near Te Awamutu. He remained there until 9 October 2020 when he was transferred to Auckland Prison. Since 11 January 2021, Mr Thacker has been in PERU. His period under conditions of directed segregation began on 23 September 2020 and was continuing as at the date of the hearing, amounting to a period of two years and eight months.
[4] The decisions Mr Thacker seeks to judicially review are a number of decisions to place, and keep, him in directed segregation and two decisions to decline Mr Thacker contact with his family, first via audio video call (AVL) and second in person.
Chronology
[5] In 2018, Mr Thacker was deported to New Zealand from Australia under s 501 of the Australian Migration Act 1958 on the basis that he was deemed to be a “person of bad character”. He had not been imprisoned before. He had however received sentences of community service and fines for offences he had committed in Australia.
[6] On 15 June 2020, Mr Thacker was admitted to Waikeria Prison as a remand accused prisoner, in the legal custody of Corrections. He faced charges of discharging
a firearm with reckless disregard, unlawful possession of prohibited firearms, participating in an organised criminal group, possession of firearms and ammunition, possession of methamphetamine for supply, supplying methamphetamine, possession of ecstasy for supply, possession of cocaine for supply, supplying cocaine and money laundering.
[7] On 9 October 2020, Mr Thacker was transferred to Auckland Prison. This was because of the Waikeria Prison Director’s assessment that the prison was not equipped to cope with the risk presented by him. The Prison Director’s evidence is that transferring prisoners for reasons of behavioural management and risk to Corrections staff is not a usual circumstance. It is a rare occurrence. The threshold was, however, reached by Mr Thacker. Accordingly, Mr Thacker was transferred and placed in Unit 10 at Auckland Prison. This it is said is a unit for prisoners who pose significant risk, such as prisoners who have a high-level of influence over other prisoners and an ability to incite violence.
[8] On 11 January 2021, Mr Thacker was moved into the Prisoners of Extreme Risk Unit (PERU), which is a separate custodial operation within Auckland Prison. The PERU comes under the operational and custodial function of the Persons of Extreme Risk Directorate.
[9] Mr Thacker’s trial took place between August and November 2022 at the High Court in Hamilton at a time when he was housed between the PERU and the Springhill Corrections Facility.
[10] On 23 November 2022, Mr Thacker was found guilty in the High Court on all charges he faced. His status changed from remand accused to remand convicted while he awaited sentencing.
Directed segregation
[11] Mr Thacker is currently subject to a directed segregation direction under s 58(1)(b) of the Corrections Act 2004 (the Act), with denied association status. As I have noted, he is housed in the PERU at Auckland Prison. I now set out the chronology relating to Mr Thacker’s time under directed segregation.
[12] The first decision to place Mr Thacker under directed segregation was taken on 23 September 2020. The Prison Director at Waikeria Prison, Mr James Watson made the decision for the reasons as recorded on the “M.07 Form.01 Application for a Direction to Segregate Prisoner”. These reasons were noted as being that Mr Thacker had displayed a negative attitude towards the rules of the prison, in particular the non-violence policy, and that a time on segregation would enable him to reflect on his actions. The decision was taken following an application by a Senior Corrections Officer to place Mr Thacker in direct segregation.
[13] The incident that sparked the application was behaviour characterised by the prison authorities as “contact sparring”. It is said Mr Thacker was given multiple instructions to stop acting violently but he refused. Mr Thacker’s own characterisation of the behaviour it appears was that it was non-violent non-contact sparring which he was engaging in with his cousin as a form of exercise.
[14] Mr Watson’s evidence however was that the sparring incident occurred against the backdrop of rising tensions in the prison caused by the increased presence of Mongols gang members in the prison, and a corresponding increase in threats, non- compliant, disruptive and concerning behaviour. Mr Thacker is the president of the Mongols gang. His behaviour was perceived by the prison authorities as carrying significant weight here.
[15] On 25 September 2020, the decision to place Mr Thacker under directed segregation was reviewed by a Senior Advisor, Ms Vickie Burgers, as required by the Prison Operations Manual. Ms Burgers supported the decision and cited the prison’s “zero tolerance to violence” policy as the reason for her support.
[16] Mr Thacker was given a copy of the relevant forms and other paperwork. Both the reasoning and the effect of the decision were explained to him. The forms carry Mr Thacker’s signature acknowledging this.
[17] The direction was due to expire on 6 October 2020, 14 days after it was made. Mr Watson’s evidence is that directed segregation is continually under assessment and accordingly, it was a considered decision for Mr Thacker to be subject to directed
segregation until the expiry of the direction on 6 October 2020. Beyond that, no application was made to extend the directed segregation on the basis of an assessment at the time that Mr Thacker’s risk could be managed outside of directed segregation.
[18] On 7 October 2020, however, a fresh direction was issued pursuant to s 58(1)(b) of the Act to segregate Mr Thacker. This occurred because it is claimed that around that time in the yard, Mr Thacker had intentionally blocked the cameras and refused to leave while also encouraging fellow prisoners to remain within the yard despite instructions to leave. Prison authorities characterise the behaviour as simply an attempt to create disorder, while Mr Thacker’s contention is that it was a protest against the prisoners’ conditions with a demand to speak with the Prison Director. Further, the incident reports from Corrections describe serious threats Mr Thacker made towards Corrections staff at the time, including threats to kill.
[19] According to Mr Watson’s evidence, Mr Thacker’s behaviour, his wider risk profile and resultant safety conditions were “well in excess” of the threshold to direct segregation. The threats by Mr Thacker against Corrections staff members were specific, real and at the “top end”, according to Mr Watson. Accordingly, directed segregation was ordered with restricted association status.
[20] Again, in accordance with the Prison Operations Manual, the decision was reviewed by a Senior Advisor, Ms Rochelle Danby. She clearly supported the decision on the basis of Mr Thacker’s escalating behaviour and the threats made towards Corrections staff.
[21] Again, the reasons for the decision and its effect were explained to Mr Thacker and the relevant paperwork provided to him. He acknowledged the same with his signature.
[22] As I have noted above, on 9 October 2020 Mr Thacker was transferred to Auckland Prison. At this time he was still subject to the 7 October 2020 directed segregation direction, with restricted association.
[23] Once at Auckland Prison, it seems Mr Thacker’s behaviour concerned prison authorities there too. It is said his behaviour was unpredictable with quick and frequent escalations to volatility, with regular shouting at Corrections staff, and a resistance to prison rules and the regular boundaries that had been set. His influence and already high status by reason of being the President of the Mongols gang, it is claimed by prison authorities, continued to increase despite Mr Thacker’s restricted association status and the parameters of his directed segregation. For these reasons, on 19 October 2020, Mr David Pattison, the Prison Director at Auckland Prison, recommended that Mr Thacker’s directed segregation be continued.
[24] On 21 October 2020, Ms Sarah Millsteed-McLean, a Senior Advisor, approved the extension. Mr Thacker’s association status changed from restricted to denied. In her approval, Ms Millsteed-McLean was satisfied the only way to manage Mr Thacker’s behaviour and minimise the risk he posed to Corrections staff and other prisoners was for him to be on directed segregation with denied association.
[25] Mr Thacker was informed of the decision. On this occasion, however, he refused to sign the paperwork. Again, however, the reasons and effect of the decision were explained to Mr Thacker. The paperwork included a management plan which set out behaviours required of Mr Thacker, including a requirement not to be aggressive towards staff.
[26] On 4 November 2020, the Deputy Prison Director, Mr Robert Sherlock recommended that Mr Thacker’s directed segregation with denied association continue. The recommendation was based on Mr Thacker’s high likelihood of endangering other prisoners or Corrections staff. Mr Thacker’s earlier behaviour at Waikeria prison, including making a specific threat to kill against a Corrections Officer and his notoriety and influence, as reflected in his gang leadership status at the prison, were factors considered in the risk assessment. Again, the Senior Adviser, Ms Millsteed-McLean made the decision to approve the extension, and the decision was explained to Mr Thacker but he refused to sign the paperwork.
[27] On 30 November 2020, Mr Sherlock again recommended that Mr Thacker’s directed segregation with denied association continue. This was said to be on the basis
that his behaviour continued to endanger the safety of others in the prison environment and the good order of the prison. Mr Sherlock referred to three specific instances of Mr Thacker violently disrupting the security of the prison by damaging the structural integrity of prison facilities, in particular cell doors. Prison authorities also continued to be concerned about what was described as Mr Thacker’s “sphere of influence” despite the limitations of the directed segregation direction. Again, Ms Millsteed-McLean approved the extension.
[28] On 22 December 2020, Mr Sherlock again recommended that Mr Thacker’s directed segregation with denied association continue. The primary basis for the extension it seems was Mr Thacker’s influence over the behaviour of other prisoners and his apparent ability to incite or order violence. A specific example of this was cited. It involved Mr Thacker barricading himself in his yard for four hours by blocking and preventing the door from locking despite instructions to the contrary. Three other prisoners it is said followed suit. This was the case, notwithstanding the allegiance of those other prisoners to a different gang from the Mongols, Mr Thacker’s gang. To prison authorities, this demonstrated that Mr Thacker’s significant influence was only growing. And, it is claimed it had the potential to seriously disrupt the safety and good order of the prison.
[29] On 24 December 2020, the Visiting Justice, made the decision to continue Mr Thacker’s directed segregation direction under s 58(3) of the Act. The Visiting Justice met with Mr Thacker. In their discussion, as recorded in the Visiting Justice’s notes, Mr Thacker claimed he is not violent. The notes went on to record they discussed requirements never to threaten Corrections staff. And, the Visiting Justice issued a memorandum setting out his reasons for continuing the direction some time later.
[30] That direction was set to expire on 6 April 2021. As I have noted above, during this period Mr Thacker was moved into the PERU and his custodial management shifted to the Persons of Extreme Risk Directorate (PERD).
[31] On 1 April 2021, Ms Jeanette Burns, the Commissioner for PERD recommended that Mr Thacker’s directed segregation continue. Ms Burns was
satisfied this was necessary to safely and securely manage Mr Thacker, as he had continued to display non-compliant behaviour. This included his pleading guilty to three disciplinary charges, including one for assaulting a staff member on the same day as his first meeting with the Visiting Justice.
[32] The Visiting Justice decided to continue the direction, which was due to expire on 6 July 2021. The decision was explained to Mr Thacker but again he refused to sign the paperwork.
[33] On 8 April 2021, Mr Thacker and the Visiting Justice met. In the Memorandum explaining reasons of the Visiting Justice, dated 3 August 2021, the Visiting Justice records Mr Thacker’s additional comment at the meeting that he was frustrated by the lack of phone time he had to talk to his family.
[34] On 5 July 2021, 5 October 2021, 25 November 2021, 1 February 2022, 24 April 2022 and 14 June 2022 Mr Thacker’s directed segregation was continued by decisions made by the Visiting Justice. On each occasion, it is said the application to extend was prompted by specific instances of Mr Thacker having demonstrated further non-compliant behaviour which endangered the safety of others in the prison, particularly Corrections staff. For each occasion, the Visiting Justice’s reasons are set out in Memoranda of 3 August 2021, 5 October 2021, 11 April 2022 and/or the relevant forms. Each extension it appears was also explained to Mr Thacker with reasons and the effect of the decisions.
[35] Some notable instances referred to by prison authorities in support of applications to extend include Mr Thacker pleading guilty to a charge of arson for setting fire to his cell on 22 April 2021; twice throwing liquid substances over Corrections staff on 28 April 2021 and 14 May 2021; Mr Thacker misusing the pay phone on 10 November 2021 by speaking to an unauthorised individual; and he attempting to “fish” between cells on 17 May 2022. Corrections’ evidence before the Court is that during this time Mr Thacker continued to act aggressively towards staff and damage property, he failed to comply with legitimate orders and he barricaded the yard door to stop the cell from being locked. He had accumulated a number of disciplinary charges and incident reports.
Phone Contact
[36] It is useful now to outline a chronology of the decisions relating to Mr Thacker’s use of AVL calls.
[37] Prison authorities have made two decisions to decline Mr Thacker’s request for AVL contact with his family. The decisions were made on 23 December 2021 and 6 July 2022.
[38] Corrections note that AVL calling is not an entitlement. The policy under which AVL calling is made available to prisoners is found in the Prison Operations Manual. It provides that AVL calling is offered under specific conditions to protect the safety, privacy and security of participants.
[39] At particular times, the prison authorities assessed Mr Thacker as not being eligible for AVL calling. One of the criteria for eligibility in the Manual is that a prisoner has not previously breached the established conditions of AVL calling. Mr Thacker, it is said, did not meet this criterion as he had breached conditions of AVL calling while at Waikeria Prison, incurring a misconduct report in the process.
[40] The Manual provides further considerations to facilitate AVL calling even where the criteria are met. These are whether the prisoner has been subject to a misconduct report and whether supervision would be required to manage safety during the AVL call. Suitability is to be assessed on a case-by-case basis.
[41] The 23 December 2021 denial was made on the basis that Mr Thacker had a recent misconduct charge on 2 December 2021 and had previously, on 10 November 2021, been charged with misusing the phone system by participating with unauthorised persons in a three-way video call.
[42] The 6 July 2022 denial it is explained was made on the basis of Mr Thacker around this time setting his cell on fire and causing significant damage to prison property.
[43] The reasons for each decision were provided to Mr Thacker and also to his counsel after they were requested.
[44] On 29 November 2022, following Mr Thacker’s trial, for a time he was provided with AVL calling.
Legislative scheme
[45] Prison management is governed by the Corrections Act 2004 (the Act). The Corrections Regulations 2005 (the Regulations) are regulations promulgated under s 200 of the Act. The Act and the Regulations provide for a number of ways that the movements and accommodation of prisoners are to be managed. Beyond matters that are specified, the Act permits the further management of prisoners to address the safety and security of those within the prison environment and the prison itself.
[46] Directed segregation is one of the tools the Act permits that are to be used to manage prison life. The decisions made in Mr Thacker’s case which he now challenges were made pursuant to s 58. It provides:
58 Segregation for purpose of security, good order, or safety
(1)The prison manager may direct that the opportunity of a prisoner to associate with other prisoners be restricted or denied if, in the opinion of the manager,—
(a)the security or good order of the prison would otherwise be endangered or prejudiced; or
(b)the safety of another prisoner or another person would otherwise be endangered.
(2)If a direction is given under subsection (1),—
(a)the prisoner concerned must promptly be given the reasons in writing for the direction and any subsequent direction under subsection (3)(c):
(b)the chief executive must promptly be informed of the direction and the reasons for it.
(3)A direction under subsection (1)—
(a)must be revoked by the prison manager if there ceases to be any justification, under subsection (1), for continuing to
restrict or deny the opportunity of the prisoner to associate with other prisoners:
(b) may be revoked at any time by the chief executive or a Visiting Justice:
(c)expires after 14 days unless, before it expires, the chief executive directs that it continue in force:
(d)if it continues in force because of a direction under paragraph (c), must—
(i)be reviewed by the chief executive at intervals of not more than 1 month:
(ii)expire after 3 months unless a Visiting Justice directs that it continue in force:
(e)if it continues in force because of a direction under paragraph (d)(ii), must be reviewed by a Visiting Justice at intervals of not more than 3 months.
[47] The purposes and principles of the Act are found in ss 5-6. Relevantly, these sections provide:
5Purpose of corrections system
(1)The purpose of the corrections system is to improve public safety and contribute to the maintenance of a just society by—
(a)ensuring that the community-based sentences, sentences of home detention, and custodial sentences and related orders that are imposed by the courts and the New Zealand Parole Board are administered in a safe, secure, humane, and effective manner; and
(b)providing for corrections facilities to be operated in accordance with rules set out in this Act and regulations made under this Act that are based, amongst other matters, on the United Nations Standard Minimum Rules for the Treatment of Prisoners;
…
6Principles guiding corrections system
(1)The principles that guide the operation of the corrections system are that—
(a)the maintenance of public safety is the paramount consideration in decisions about the management of persons under control or supervision:
…
(f)the corrections system must ensure the fair treatment of persons under control or supervision by—
(i)providing those persons with information about the rules, obligations, and entitlements that affect them; and
(ii)ensuring that decisions about those persons are taken in a fair and reasonable way and that those persons have access to an effective complaints procedure:
(g)sentences and orders must not be administered more restrictively than is reasonably necessary to ensure the maintenance of the law and the safety of the public, corrections staff, and persons under control or supervision:
(h)offenders must, so far as is reasonable and practicable in the circumstances within the resources available, be given access to activities that may contribute to their rehabilitation and reintegration into the community:
(i)contact between prisoners and their families must be encouraged and supported, so far as is reasonable and practicable and within the resources available, and to the extent that this contact is consistent with the maintenance of safety and security requirements.
(2)Persons who exercise powers and duties under this Act or any regulations made under this Act must take into account those principles set out in subsection (1) that are applicable (if any), so far as is practicable in the circumstances.
[48] Directing segregation is a matter for the Prison Director of the prison in question. The Director’s opinion is informed by reports from staff, incident and misconduct reports relating to the prisoner, file notes and other relevant information provided by Corrections staff. The prisoner must be informed promptly of the direction and the reasons for it. And, the direction must be revoked if the justification for it ceases to exist.
[49] Continuing directed segregation requires a stepped procedure to be followed, as provided for in s 58 and the Prison Operations Manual. The initial direction is made by the Prison Director. It expires 14 days after issue. A continuation allows for the direction to continue beyond 14 days and up to three months from the start of segregation. A continuation is made by a Senior Advisor to the Regional
Commissioner. Such a direction must be reviewed at intervals of one month or less. A continuation to segregation beyond three months must be made by a Visiting Justice. Such a continuation must be reviewed at intervals of three months until it is revoked or expires.
[50] The detailed substance of how these rules are to operate is provided for in part 6 of the Regulations and the Prison Operations Manual. For example, the standardised forms that were used for each instance Mr Thacker was placed and kept in directed segregation are found in the Manual. As are forms relating to a prisoner’s management plan and review mechanisms.
[51] The standardised forms record the decision and its reasons. Generally, the content within the forms increases as the length of time a prisoner has spent in directed segregation increases. The forms reflect and facilitate the multiple levels of consideration and approval the decision to direct segregation requires.
[52] What are described as a prisoner’s “minimum entitlements” must be maintained at all times, including while in segregation. They are provided for in s 69 of the Act, along with other provisions relating to those minimum entitlements, which are usefully set out here:
69 Minimum entitlements
(1)Every prisoner has the following minimum entitlements:
(a)physical exercise, as provided for in section 70:
(b)a bed and bedding, as provided for in section 71:
(c)food and drink, as provided for in section 72:
(d)access to private visitors, as provided for in section 73:
(e)access to statutory visitors and specified visitors:
(f)access to legal advisers, as provided for in section 74:
(g)to receive medical treatment, as provided for in section 75:
(h)to send and receive mail, as provided for in section 76:
(i)to make outgoing telephone calls, as provided for in section
77(3):
(j)to exercise any right conferred on prisoners by regulations made under this Act to communicate using any specified device or medium of communication:
(k) access to information and education, as provided for in section 78.
(2)A prisoner may be denied, for a period of time that is reasonable in the circumstances, 1 or more of the minimum entitlements set out in subsection (1) if—
(a)there is an emergency in the prison; or
(b)the security of the prison is threatened; or
(c)the health or safety of any person is threatened.
(3)A prisoner detained in a Police jail may be denied 1 or more of the minimum entitlements set out in subsection (1) (other than the entitlements referred to in subsection (1)(b), (c), (f), and (g), and the entitlement under subsection (1)(e) of access to statutory visitors) if, in the opinion of the prison manager or other person in charge, it is not practicable to provide those entitlements, having regard to the facilities available at the Police jail and the resources available.
(4)A prisoner—
(aa)may be denied, for not more than 2 consecutive days at a time, the minimum entitlement referred to in subsection (1)(a) if—
(i)the prisoner has been temporarily released from custody or temporarily removed from prison under section 62 or removed for judicial purposes under section 65; and
(ii)in the opinion of the prison manager, it is not practicable to provide the entitlement during the times the prisoner is in the prison:
(a)may be denied the minimum entitlements referred to in subsection (1)(d), (i), (j), and (k) if the prisoner is undergoing a penalty of cell confinement imposed under subpart 5 of Part 2:
(b)may be denied the minimum entitlement referred to in subsection (1)(k) if a direction under section 58 or 59 is in force and the prison manager considers that the prisoner is likely to damage prison property.
(5)The minimum entitlements conferred by subsection (1) are not privileges referred to in section 43(3)(a)(i), section 133(3)(a), or section 137(3)(a).
…
Grounds of review
[53] The grounds of review Mr Thacker advances in this present application as I have noted are that the directed segregation decisions were made with an improper purpose, considered irrelevant factors, failed to consider relevant factors, fettered discretion, demonstrated bias and substantive unfairness, contained an error of law, breached the requirements of natural justice and breached the legitimate expectation that the decisions would consider te Tiriti and the relevant international instruments and comply with the appropriate duty of care.
[54] On the decisions related to contact and visitation with his family, Mr Thacker advances substantive unfairness as the principal ground of review. The grounds of review advanced against the directed segregation decisions are also relied on.
[55] Mr Thacker’s case is that he was subject to conditions of directed segregation as a matter of routine and for the improper purpose of punishment. The decisions to keep Mr Thacker in directed segregation he maintains amounted to mere rubber stamping. Similarly, decisions to deny Mr Thacker contact with his family were made for the improper purpose of punishing him.
[56] Related is the fettering discretion ground of review. By failing to consider each decision on its own merits and engaging instead in a process of rubber stamping, Mr Thacker says Corrections and the Visiting Justices improperly fettered their discretion.
[57] Mr Thacker says the effects on his mental health of continuing directed segregation were not taken into account. Other relevant factors he contends that were not considered are tikanga as required by s 6(1)(c) of the Act, the views of whānau, hapū and iwi as required by s 6(1)(e) of the Act and Mr Thacker’s rights under rr 44 and 45 of the Nelson Mandela Rules; te Tiriti and the New Zealand Bill of Rights Act ss 9, 22 and 27.
[58] The decisions instead he maintains considered irrelevant factors such as Mr Thacker’s position as President of the Mongols gang and his apparent influence over other prisoners. Mr Thacker says his position in the gang is irrelevant to his conduct in the prison and it is only his conduct in the prison that should have been
determinative of whether he was to be subject to directed segregation. Mr Thacker also makes the related allegation that Corrections were biased against him because of his status as a high-ranking gang member.
[59] Finally, Mr Thacker contends that all the decisions he is challenging were substantively unfair. Amongst other things, he says this was because, by way of example, they denied him the ability to adequately prepare for his defence in his criminal trial and they denied him the ability to be in contact with his whānau. Additionally, the decisions were made in a manner which Mr Thacker claims breached his right to natural justice.
Discussion
Directed Segregation
[60] I begin by considering the context in which the decisions Mr Thacker seeks to review were taken. A case not dissimilar to the present case, Smith v Attorney-General, was a judicial review proceedings relating to the security classification assigned to a prisoner. There, Katz J observed:1
[127] Both the Court of Appeal and this Court have recognised that courts should be slow to interfere with operational decisions about day-to-day prison management. The courts have recognised a wide range of factors that are relevant to the administrative decisions made in the course of the day-to-day operation of a prison, and the judgment and experience of the prison manager in assessing and weighing those factors should be given considerable deference.
[61] Addressing directed segregation and s 58 in particular, Justice Isac in this Court in another recent case, Taylor v Attorney-General, said:2
[69] Judicial decisions, especially concerning judicial review of decisions by prison managers and prison staff, highlight two competing factors. On the one hand, a margin of appreciation is often afforded to institutional decision- makers reflecting that they, rather than a judge, are best placed to make decisions concerning a dynamic environment involving the allocation of
1 Smith v Attorney-General [2017] NZHC 136 at [127] (footnotes omitted). See also Drew v Attorney-General [2002] 1 NZLR 58 (CA) at [85]-[86]; Taylor v Chief Executive of the Department of Corrections [2010] NZCA 371; [2011] 1 NZLR 112 at [29]; and Mitchell v Attorney-General [2013] NZHC 2836.
2 Taylor v Attorney-General (No. 3) [2022] NZHC 3170 at [69]-[70].
resources (including staff) where those matters affect the security and good order of a prison….
[70] On the other hand, recognising both the vulnerability of those deprived of liberty to abuses of power, and the importance of fundamental human rights, where intervention is warranted it is the duty of the Court to intervene.
[62] Justice Isac goes on to describe the weight Parliament decided to afford the opinion of the Prison Director (or Manager, as the term is used) in making decisions relating to the segregation of a prisoner by importing a subjective standard in s 58 as opposed to an objective one:3
[82] … It will also be evident that s 58 imports a broad subjective standard. What matters is the “opinion of the manager” on whether the security or good order of the prison would be endangered or prejudiced without a directed segregation order. Parliament’s use of a subjective standard confirms a policy choice between the need to ensure adequate protection against abuse of power while acknowledging prison managers and their staff are better placed to make decisions about the day-to-day management of a prison using limited resources.
[63] Mr Thacker’s allegation here that directed segregation was used against him as a form of punishment in my view is quite unsupported by any evidence before me. As I see the position it can also be dealt with straightforwardly by making reference to Isac J’s analysis on the issue as well as referring to other cases which have reached similar conclusions. Directed segregation is not a form of punishment. Rather, it is a prison management tool designed to enable the orderly management of prisons and to diffuse potential flashpoints.4 Behaviour warranting a formal response is dealt with under the separate disciplinary process provided for in the Act and Mr Thacker was subject to it separately for various instances when his behaviour was found to have reached that threshold.5 While the misconduct reports Mr Thacker had accumulated in his time in prison were a consideration in the directed segregation decision, they were only one factor in the overall assessment of the risk Mr Thacker posed to safety within the prison.
3 At [82]. See also Idea Services Ltd v Attorney-General [2022] NZCA 470 at [51]-[54].
4 Taylor v Attorney-General (No. 3), above n 2, at [84]; and Mitchell v Attorney-General, above n 1, at [4]; and Gorgus v Chief Executive of the Department of Corrections [2023] NZHC 450.
5 Corrections Act 2004 [the Act], pt 2 sub-pt 5 entitled “Offences”.
[64] And indeed, recent comments of Woolford J in this Court in Gorgus v Chief Executive of the Department of Corrections6 a case involving a prisoner’s challenge to a decision also to place him on directed segregation and its terms, are apposite here:
[41] Mr Gorgus claims that the decision to place him under directed segregation was punitive and only undertaken to sidestep the usual disciplinary process that Corrections must follow. He claims he was not afforded the opportunity to defend the claim that he had incited other prisoners to be assaultive and therefore Corrections breached s 25(c) of NZBORA.
[42] This illustrates a level of misunderstanding on the part of Mr Gorgus. It is unnecessary for a charge to be laid or a complaint to proceed for Corrections to take Mr Gorgus’ behaviour into account in assessing his level of risk to the good order of the prison. All that is required is that there be credible and reasonable evidence of such risk. To expect more would have a chilling effect on the ability of Corrections’ staff to make day-to-day security decisions. Some latitude in making such assessment must be accorded to corrections.
[65] Other considerations included all those matters generally outlined in the standardised forms that the various decision-makers were required to apply their minds to.7 So, contrary to Mr Thacker’s claims, I am satisfied on all the evidence before me his mental health and wellbeing was a consideration in each of the decisions under review. In my judgment, the same is true of Mr Thacker’s cultural identity, the Crown’s te Tiriti obligations, international instruments relating to New Zealand’s obligations to prisoners and the New Zealand Bill of Rights Act.
[66] I address now Mr Thacker’s claim that it was his position as President of the Mongols gang that led to his extended time in directed segregation, as opposed to his conduct generally or the actual risk he posed to safety within the prison.
[67] While Mr Thacker has attempted to minimise what appears to be the violent and volatile nature of his behaviour which prompted the applications to place and then extend his time in directed segregation, the Court can only rely on the evidence before it. And that evidence suggests Mr Thacker posed a significant risk to the security and good order of the prison and the safety of those in the prison environment. It cannot be the case, nor is it alleged in my view, that two prison directors, one deputy director, three senior advisors, the Visiting Justice and every Corrections officer involved in the
6 Gorgus v Chief Executive of the Department of Corrections, above n 4, at [41] – [42].
7 These include specifically mental health among other considerations such as meals, exercise, activities and the like.
decisions in question, fabricated or exaggerated the nature of Mr Thacker’s behaviour and the consequent risk he posed. The paperwork for each decision to place Mr Thacker in directed segregation details the incident(s) that led to the decision being made and the reasons for Mr Thacker’s risk assessment. As I see it, Mr Thacker has simply not addressed in any persuasive way here this significant body of evidence.
[68] Mr Thacker’s case is essentially that he was never afforded an opportunity to show good behaviour. Rather, because of his status as President of the Mongols gang, prison authorities targeted him from the outset to control the apparent influence he could have had on other prisoners and his potential ability to disrupt the security of the prisons in which he was housed. However, a strong argument exists here in my view that this plainly is not what happened. The decisions to place and keep Mr Thacker in directed segregation reference various specific instances where Mr Thacker largely demonstrated violent and disruptive behaviour and illustrated the tangible influence he had over other prisoners. On occasions, this even included those other prisoners who had an affiliation to a gang different from the Mongols, the gang of which Mr Thacker is the President. Arguably, Mr Thacker’s influence over the conduct of other prisoners was not merely potential. It was real. That is perhaps reflected in the incidents of both October 2020 when Mr Thacker encouraged fellow prisoners to stay in the yard at Waikeria Prison, and also December 2020 when he led the disruption in Auckland Prison by preventing his door from being closed, with other prisoners following his example.
[69] The allegation that directed segregation was used against Mr Thacker in a casual and unfair manner on balance here is not borne out. I am satisfied the Prison authorities made careful and considered decisions to manage the risk Mr Thacker posed. Their assessments were based in the context of day-to-day management of a dynamic high-risk environment. I find that each decision-maker appropriately exercised their statutory function under the legislative scheme. Mr Thacker has not been able to make out any of the challenges he advances to the lawfulness of the directed segregation decisions.
Contact decisions
[70] On this aspect, I say at the outset that in my view in all the circumstances here the decisions not to allow Mr Thacker AVL time were not substantively unfair. First, Mr Thacker did not meet the criteria required for a prisoner to be considered to receive the privilege of AVL calling. Mr Thacker had recent misconduct reports and even more relevantly, had a misconduct report relating to his earlier use of AVL calling.
[71] While I acknowledge how frustrating it is likely to be for prisoners to not be able to have in-person contact with loved ones, those prohibitions arose as a result of the COVID pandemic that curtailed freedoms for the whole country. Unfortunately, they have continued to an extent as I understand it at least in part because of staffing concerns at Corrections. That is a difficult ongoing problem. It is not, however, one that can be fully addressed on an application for judicial review like the present. Those prohibitions and limitations on contact with whanau as I understand it have been applied evenly across the prison population. Issues relating to the distribution of scarce resources such as staff are administrative decisions for prison management.
[72] Mr Thacker’s recent ability to stay in contact with his whanau has nonetheless been enabled through his phone call time allowance of one hour and fifteen minutes per week which has continued. This is significantly in excess of what I understand is the minimum prisoner entitlement of five minutes per week. It is also in recognition of Corrections’ inability to facilitate in-person visitations and the fact that Mr Thacker is ineligible for AVL calling.
[73] Beyond that, this Court is not in a position to mandate day-to-day prison management, as Churchman J recognised in his decision on Mr Thacker’s interlocutory application seeking further contact with his whānau. These are resource allocation decisions made by prison authorities who are obviously familiar with staffing issues and prison conditions and are best placed to make those decisions. As Churchman J did note in his decision relating to prisoners’ entitlements to contact with whānau, where he cited s 51(4) of the Act:8
8 Thacker v Attorney-General [2022] NZHC 3287 at [33] (footnotes omitted).
That entitlement must be considered within the context of an environment in which both a Prison Manager and their officers are required to have an individual management plan for every prisoner. Such a plan must (among other things) be based on an assessment of the needs, capacities, and disposition of the prisoner, and be consistent with the resources available to the chief executive to manage the prisoner.
[74] As I see it, the Court generally cannot and should not step in to “micro- manage” prison management by substituting its own views on decisions which require prison authorities to balance competing priorities using scarce resources.9 That is not the scope of judicial review.10 In prison management decisions especially, that scope is restricted, as other authorities have also confirmed.11
[75] Mr Thacker has not been able to establish the unlawfulness of the contact decisions. His challenge here also fails.
Conclusion
[76] For all the reasons I have outlined above, Mr Thacker’s application for judicial review is dismissed.
[77] As to costs, I am unsure whether Mr Thacker may be legally aided here and therefore they are reserved. If costs are sought, and counsel are unable to resolve the costs issue between them, then memoranda (maximum five pages each) may be filed sequentially, and the Court will give a decision on costs on the basis of the memoranda filed and all the other material then before the Court.
Gendall J
Solicitors:
Phoenix Law Ltd for the Applicant
Meredith Connell – Wellington for the First Respondent
9 Mitchell v Attorney-General [2013] NZHC 2836 at [35].
10 Taylor v Chief Executive of the Department of Corrections HC Wellington CIV-2006-485-897, 11 September 2006 at [75].
11 Ericson v Chief Executive of the Department of Corrections [2013] NZHC 3035 at [11]-[16]; and
Bennett v Attorney-General HC Rotorua CP61/00, 9 August 2001 at [25].
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