Van Wakeren v New Zealand Parole Board

[2017] NZHC 362

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2017-404-00038 [2017] NZHC 362

BETWEEN

RONALD VAN WAKEREN

Appellant

AND

NEW ZEALAND PAROLE BOARD Respondent

Hearing:	6 March 2017
Appearances:	Appellant in Person F G Biggs for Respondent
Judgment:	7 March 2017

JUDGMENT OF FOGARTY J

This judgment was delivered by Justice Fogarty on

7 March 2017 at 3.30 p.m., pursuant to r 11.5 of the High Court Rules

Registrar/Deputy Registrar

Date:

Solicitors:

Crown Law Office, Wellington

VAN WAKEREN v NEW ZEALAND PAROLE BOARD [2017] NZHC 362 [7 March 2017]

[1]      The appellant, Mr van Wakeren, is serving a sentence of imprisonment of 12 years and 3 months for burglary, money laundering and other crimes.   He has a statutory release date of 26 December 2019.

[2]      On 7 December 2015 he was released on parole.  The release was pursuant to special conditions fixed by the Board after a hearing on 23 November 2015.  Special condition 9 provided

(9)      Not to undertake any employment, paid or unpaid, without the prior written approval of a Probation Officer.

[3]      On 16 November 2016, a probation officer, Mr Malcolm Ramachandran, filed before the New Zealand Parole Board a notice of application to recall.  Two grounds were advanced:

1.        The offender has breached a condition of the sentence

2.The offender poses an undue risk to the safety of the community or any person or class of persons

[4]      This application was supported by an affidavit from Mr Ramachandran.  That affidavit repeated the special conditions of his release, including clause 9 set out above.  It records that, on 8 November, Mr van Wakeren appeared before the Board for a progress hearing at which he reluctantly disclosed to the Board that he was a shareholder in a company named “BestEscort.Com” and had been for approximately four months.  He refused to divulge any further information about his status within the company.

[5]      Following the hearing on 8 November 2016, a probation officer completed an internet search of the New Zealand Company Register which identified that the appellant was a director of another company “RVW On Line Trading Ltd”.  Inquiries revealed the company was incorporated on 29 February 2016.  Mr van Wakeren has

100 per cent shareholding in the company.  The business classification is “internet only retailing”.  In his affidavit Mr Ramachandran then contended:1

Given  his  status  as  sole  director  within  this  online  trading  company,  it highlights that Mr Van Wakeren is currently breaching the special condition

1      Affidavit of Mr Ramachandran dated 16 November 2016.

of his parole, namely:   Not to undertake any employment, paid or unpaid, without the prior written approval of a Probation officer.

[6]      In the summary to this affidavit it is stated:

Mr van Wakeren has breached the special conditions of his Parole in that he is the sole director of the online company RVW OnLine Trading Limited. This condition is breached and is currently undertaking employment without the prior written approval of the Probation Officer.

(Emphasis added.)

[7]      Mr van Wakeren’s principal argument was that the subsequent consideration of the application to recall by the Board was of no effect because the grounds of the application were:

(a)       The offender has breached a condition of sentence. (Emphasis added.)

[8]      And,  of  course,  we  know  from  the  above  that  the  allegation  of  Mr Ramachandran was that he had breached a condition of release, not a condition of the sentence.

[9]      In oral argument before me, Mr van Wakeren confirmed at least twice, if not three times, in answer to my questioning that he did appreciate at the hearing that the allegation was that his involvement in the company RVW Trading Ltd was in breach of the release condition that he not undertake any employment, paid or unpaid, without the prior written approval of a probation officer.  He also agreed he did not have that written approval.

[10]     As I explained to Mr van Wakeren at the hearing, it is common enough that there can be errors in the paperwork of applications.   But that does not have the necessary consequence that the subsequent hearing of the application is to no effect. I drew his attention to the New Zealand Bill of Rights 1990 and his entitlement to notice of the claim against him and to have the ability to conduct his defence in a hearing before the Parole Board.

[11]     I am quite satisfied that neither he nor the Parole Board were distracted by the terms of the application referring to a condition of the sentence rather than to a condition of release.  The transcript, some of which I have perused, makes it clear that all persons involved were examining the ramifications of Mr van Wakeren’s directorship and shareholding in RVW Online Trading Ltd.  At that hearing Mr van Wakeren was represented by counsel, Mr Meyrick.

[12]     The Board decision records the submission by Mr Meyrick challenging the lawfulness of the first ground of the application on the basis that it asserted the offender had breached “condition of the sentence”.  The Board responded with the proposition that it is plain in the context that the applicant (application) was referring to the ground of appeal that the offender breached his release conditions.   It also records that Mr Meyrick did not pursue the point.

[13]     It went on to record that:

13.Mr Meyrick accepted, on behalf of Van Wakeren, that the grounds for  the  application  were  established  and  the  respondent  did  not oppose  the  making  of  a  final  recall  order.     Because  of  the implications of such a concession, and owing to the limited time for consultation with his client immediately before the hearing, an adjournment was taken to allow Mr Meyrick to confirm his instructions.  He did.  Those instructions were confirmed by Mr Van Wakeren in the course of the hearing.

[14]     Having conceded to the making of a final recall order, Mr Meyrick then

sought Mr van Wakeren’s release on parole.

[15]     The written decision of the Board was released on 23 December 2016.  The decision  of  the  Board  discusses  his  involvement  as  a  director  of  RVW  Online Trading Ltd.  It records that Mr van Wakeren had reported to his probation officer and conceded that he had been skirting with his special conditions.  (There is another issue as to the use of the internet which does not figure in this appeal.)  The Board decision  records the probation  officer had  concluded that  Mr van Wakeren  had breached his release conditions with respect to RVW Online Trading Ltd.

[16]     Later in the decision the Board recorded that they were not persuaded by Mr van Wakeren’s explanation with respect to his role as sole director and shareholder in

RVW Online Trading Ltd.   The Board concluded on the basis of the concessions made on his behalf and by Mr van Wakeren himself that the grounds of the application were made out and there should be a final recall order.

[17]     The Board then went on to consider the application that upon being recalled the Board should immediately release him on parole.  The Board refused to do this because they were not satisfied his release would not pose an undue risk to the safety of the community.  That led to the decision making a final recall and declining to release Mr van Wakeren on parole.

[18]     I am quite satisfied that there was no breach of natural justice and the error in the pleading was of no consequence to the matters canvassed, and fully canvassed, at the hearing. This aspect of the appeal is dismissed.

[19]     Mr van Wakeren then argued that he had not obtained proper advice from his counsel, Mr Meyrick.   Mr Meyrick had turned up only a few minutes before the hearing.  That he had foolishly accepted Mr Meyrick’s advice.  That in that regard there had been a miscarriage of justice.

[20]     I do not agree.  Plainly the Board was alerted to the possibility that there may be some flaw in the instructions given by Mr van Wakeren to his counsel, Mr Meyrick. As noted above, the hearing was adjourned to enable him to have a further consultation and clarify any instructions.

[21]     That step taken cures any doubts about the matter.  On top of that, it is plain that Mr van Wakeren was clearly in breach of the release condition that he not engage in employment.

[22]     At the hearing before me there was some to and fro as to the distinction between being an employee and a director and so on.

[23]     I am satisfied that Mr van Wakeren knew at all times the essential content of the order was that he not go back into business, without the approval of his probation officer.

[24]     I have no doubt that the Parole Board decision is lawful and correct.   It followed a proper effective notice of the issue confirmed by the hearing where Mr van Wakeren had the benefit of counsel.  The reasoning of the Board discloses that there was a full examination of all the issues.

[25]     In the end I conclude that there is no merit in this appeal.  I agree with the decision of the Parole Board.  There is no error in it.  The Board decision stands. The appeal is dismissed.