Whanganui District Council v New Zealand Parole Board

[2012] NZHC 2248

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

CIV 2012-485-1771 [2012] NZHC 2248

BETWEEN  WHANGANUI DISTRICT COUNCIL Plaintiff

ANDNEW ZEALAND PAROLE BOARD First Defendant

ANDDEPARTMENT OF CORRECTIONS Second Defendant

ANDSTEWART MURRAY WILSON Third Defendant

Hearing:         27 August 2012

Counsel:         H Wilson and B E Ross for Plaintiff

F M R Cooke QC and L Fong for First Defendant
A M Powell and C Brown for Second Defendant
A J McKenzie and L Drummond for Third Defendant

Judgment:      5 September 2012

JUDGMENT OF RONALD YOUNG J

Introduction

[1]      Stewart Murray Wilson was by law entitled to be released from prison on

30 August 2012 after serving 18 years of a 21 year prison sentence for serious sexual and violent offending.  He is subject to a three year period of parole which will end on 1 December 2015.

WHANGANUI DISTRICT COUNCIL V NEW ZEALAND PAROLE BOARD HC WN CIV 2012-485-1771 [5

September 2012]

[2]      On 7 August 2012 the Parole Board set Mr Wilson’s parole conditions.  They included 17 special conditions, amongst which, was an obligation to live at a house on the Department of Corrections’ land on the edge of Whanganui Prison, about

10 kilometres from the Whanganui Township.  There are other conditions requiring

Mr Wilson not to leave the Whanganui District.

[3]      The Whanganui District Council in these proceedings seeks judicial review of the Parole Board’s decision.   In particular they challenge the residential condition and  the  requirement  that  Mr Wilson  not  leave  the  Whanganui  District  without probation officer authority.

[4]      The District Council alleges that the Parole Board made an error of law in imposing these conditions because it failed to properly consider the safety of the community as its paramount consideration and erred in law in failing to consider all relevant information.

[5]      The plaintiff’s case is based on the claim that the Parole Board was led into error because of the approach taken by Corrections in its enquiries as to suitable residence for Mr Wilson on his release on parole.  The plaintiff says Corrections, and as a result the Parole Board, failed to treat the safety of the community as  its

paramount consideration as it was required to by the Parole Act.1    Its decision to

house Mr Wilson in the grounds of Whanganui Prison and to require him to stay within  the  Whanganui  District  was  primarily  determined  by  the  location  of Mr Wilson’s  victims  without  recognising  the  safety  of  the  community  was  the paramount consideration.  This decision making process was not, the plaintiff says, according to law.

[6]      Both the Board and Corrections challenged the Council’s standing to bring these proceedings.   As is customary, I heard full argument on the merits of the plaintiff’s claim.  I have rejected the plaintiff’s claim on its merits.  And so standing does  not  fall  for me  to  decide.    I do,  however,  make some  remarks  about  the competing issues and express a tentative view about standing in this case at the end of this judgment.

[7]      On  27 August  after  hearing  counsel’s  submissions,  given  Mr Wilson’s eminent  release,  I  advised  counsel  that  the  plaintiff’s  proceeding  would  be dismissed.    I  heard  a  parallel  proceeding  at  the  same  time  where  Mr Wilson challenged some of the Board imposed special parole conditions.  I said I would give my reasons in due course for rejecting the Council’s claim which I now do.

Background

[8]      Mr Wilson  was  sentenced  by  Heron J  on  15 March 1996  to  21 years’ imprisonment through a series of cumulative and concurrent sentences for a number of sexual and violent offences.  The offences include rapes and indecent assaults of both adults and children between 12 and 16 years of age; the ill treatment of children under  16;  an  assault  on  a  child  under  16;  as  well  as  stupefying  offences  and bestiality.  The Judge in his sentencing remarks noted that he would have sentenced Mr Wilson to preventive detention had the law allowed him to do so.

[9]      Since Mr Wilson’s imprisonment, there have been a number of legislative changes to parole particularly as a result of the Parole Act 2002.  Mr Wilson became eligible  to  be  considered  for  parole  at  the  two  thirds  point  of  his  sentence  in December 2007.   However, the Department of Corrections applied for, initially in December 2008, and the Parole Board granted, orders under s 107(3) of the Parole Act 2002 preventing Mr Wilson’s release.  Since that original order there have been six monthly reviews each of which confirmed the original order keeping Mr Wilson in prison.

[10]     To keep Mr Wilson in prison, Corrections had to satisfy the Parole Board pursuant  to  s 107  that  there  was  a  real  or  substantial  risk  of  reoffending  by Mr Wilson of a specified kind within the specified period if an order was not made. The  risk  had  to  be  significantly  greater  than  the  risk  of  recidivism  ordinarily attaching to such offending.

[11]     However, orders under s 107 which kept Mr Wilson in prison beyond his parole  eligibility date  to  1 September 2012  could  only be made  with  respect  to specified offences.  Heron J in sentencing Mr Wilson in 1996 imposed a three year cumulative sentence with respect to charges of wilful ill treatment of a child.  Such a crime is not a specified offence and so cannot be the subject of an s 107 order.  Thus, Mr Wilson’s final release date is 2012 after 18 years’ imprisonment rather than in

2015 after 21 years.  However, his sentence expiry date is 1 December 2015.

[12]     The result is that Mr Wilson must be released by 1 September 2012.  Thus, he is now on parole until 1 December 2015.  He can be recalled to prison at any time until December 2015 for breach of parole conditions.  As it happens the Parole Act2 provides  that  prisoners  must  be released  on  a  Monday, Tuesday or Wednesday. Where their release date falls after a Wednesday on any week, they are to be released on the preceding Wednesday.   Here, Mr Wilson’s release day, 1 September, is a Saturday.   He was, therefore, entitled to be released on the preceding Wednesday, being 29 August.

[13]     The  two  relevant  parole  conditions  as  they  relate  to  Mr Wilson  and  the

plaintiff’s claim are:

(a)      that he is to reside at a location within the grounds of Whanganui Prison,  195 Puari Road,  Whanganui,  and  not  to  move  from  that address without the prior written approval of a probation officer;

(b)that he is not to leave the district of Whanganui without the prior written approval of the probation officer.

[14]     The Department of Corrections intended to place a house on the grounds of Whanganui Prison outside of the prison fence for Mr Wilson to live in.   Prior to Wilson’s release date Corrections applied to the Whanganui Council for building resource consent in relation to the house.  At the time of the hearing of this case no decision  had  been  reached  by  the  Council  regarding  the  consent  application. However, I was advised by counsel for Corrections that, on the assumption that the planned  house  would  not  be  available  by Wednesday,  29 August,  an  alternative arrangement would be put in place.

[15]     Near the Whanganui prison fence but inside the prison are a series of self care units where prisoners effectively look after themselves.  The prison fence has been reconstructed so that one of the self care units is outside the prison fence and has its own domestic fencing.  That unit will be provided to Mr Wilson.  It will comply with the  residential  conditions  imposed  by  the  Parole  Board.    Corrections’ intention remains to place a house on prison grounds for Mr Wilson’s parole.

The plaintiff ’s case

[16]     The plaintiff’s  submissions focussed on s 7(1)  of Parole Act 2002.   That section provides:

7        Guiding principles

(1)       When making decisions about, or in any way relating to, the release of an offender, the paramount consideration for the Board in every case is the safety of the community.

(2)      Other principles that must guide the Board's decisions are—

(a)       that  offenders  must  not  be  detained  any  longer  than  is consistent with the safety of the community, and that they must not be subject to release conditions… that are more onerous, or last longer, than is consistent with the safety of the community; and

(b)       that offenders must[, subject to any of sections 13 to 13AE,] be provided with information about decisions that concern them, and be advised how they may participate in decision- making that directly concerns them; and

(c)       that decisions must be made on the basis of all the relevant information that is available to the Board at the time; and

(d)       that the rights of victims [(as defined in section 4 of the Victims' Rights Act 2002] are upheld, and [submissions by victims (as so defined)] and any restorative justice outcomes are given due weight.

(3)      When any person is required under this Part to assess whether an offender poses an undue risk, the person must consider both—

(a)      the likelihood of further offending; and

(b)       the   nature   and   seriousness   of   any   likely   subsequent offending.

[17]     Thus, sub (1) provides that the Board when considering the release of an offender, must consider the safety of the community as its paramount consideration. Subsection (2) identifies other principles to guide the Board’s decisions on parole release.

[18]     The  plaintiff  submitted  that  the  proper  approach  for  the  Board  when considering the release of an offender, was to ask itself the general question “what decision will best serve the safety of the community?”  And more particularly with regard to Mr Wilson’s situation where it was clear that special conditions were going to  be  imposed  given  his  high  risk  of  reoffending  “what  collection  of  special conditions in the context of this offender will best serve the safety of the community?”

[19]     The plaintiff says that the Parole Board did not approach its decision making by asking itself these questions.  It submits that the Parole Board’s decision making was necessarily based on the information provided to it by Corrections and that that information was limited to one proposal for parole at Whanganui Prison restricting Mr Wilson’s movements to the Whanganui District.

[20]     The  plaintiff  says  that  Corrections  approached  its  task  in  relation  to Mr Wilson’s parole incorrectly.  It says that Corrections started with an assessment of where Mr Wilson’s victims were located and on that basis eliminated those parts of New Zealand from a consideration of Mr Wilson’s future residence.   This was the wrong approach.  It did not have community safety as its paramount consideration. Corrections concluded that Taranaki, Whanganui and Hawkes Bay would best fit

Mr Wilson’s release plans.   They rejected Taranaki and Hawkes Bay.   Whanganui was identified as the preferred location.

[21]     Corrections then decided that Mr Wilson could most safely be housed on prison grounds.   The plaintiff submitted that when Corrections determined that a house on prison grounds was most appropriate it wrongly failed to widen its enquiry and consider all prisons in New Zealand and whether they might provide suitable safe accommodation for Mr Wilson.

[22]     And so the plaintiff submits Corrections inappropriately narrowed its enquiry and as a result the Parole Board’s decision making was inappropriately narrowed (the first cause of action).  Further, the Board did not have all relevant information because Corrections  failed  to  enquire about  the  suitability of other prisons  (the second cause of action).  Corrections’ errors became the Board’s errors when they adopted Corrections’ recommendations.

[23]     The  plaintiff  did  not   object   to   Corrections’  conclusion   that   housing Mr Wilson on prison grounds best met public safety.   But it said that the Board’s obligation to meet the test in s 7(1) (safety of the community) was an assessment of all  potential  prisons  throughout  New Zealand.    As  a  result,  the  Council  said Corrections and consequentially the Parole Board made an error of law in placing the interests of the victims above the paramount consideration in s 7, the safety of the community.

[24]     The Parole Board should, in turn, have required Corrections to more fully investigate alternative arrangements which better met the s 7(1) test.   This is the basis of the second cause of action which is an allegation that the Parole Board failed to  consider all  relevant  information.   The plaintiff says  that  Corrections,  by its narrow  focus,  effectively  failed  the  Parole  Board  by  failing  to  provide  the information on which it could broadly consider the safety of the community as a paramount consideration.

[25]     The plaintiff says s 7(2)(i) requires that special condition decisions must be made on the basis that all relevant information is available to the Parole Board at the time.   In this case information regarding other prisons and their suitability should have been provided to the Parole Board through Corrections or sought by the Board.3

Discussion

[26]     It is important to understand the statutory regime for parole in Mr Wilson’s circumstances and relevant background facts.  The Parole Board began considering Mr Wilson’s parole applications and his circumstances in 2007, five years before his release.     The  Board  had  available  to  it  a  wide  range  of  information  from psychologists and counsellors as well as probation officers, together with a detailed history of Mr Wilson’s offending.

[27]     Several things become clear from that information.   Mr Wilson has never accepted that  he has  offended.    Mr Wilson  has  no  interest  in  any rehabilitation because he does not accept he has a problem which requires to be rehabilitated.  The psychological   testing   and   interviews,   Mr Wilson’s   refusal   to   acknowledge wrongdoing or acknowledge the need for help, and the extent and seriousness of his offending, all illustrate that there is a high likelihood of him reoffending.

[28]     The  test  required  to  be  met  by  Corrections  to  obtain  the  s 107  orders illustrates the point.   The Board had to be satisfied that Mr Wilson was likely to commit a specified offence and that the risk was more than the ordinary risk of reoffending. The Board repetitively found this test met.

[29]     Further, on 13 July 2012 Lang J made an extended supervision order under s 107I(2) of the Parole Act.  The Judge was therefore satisfied that Mr Wilson was likely to commit further offences of a sexual nature against young females after his release conditions expired.   Any parole conditions to be imposed were, therefore,

likely to reflect this high risk.

3      Parole Act 2002, s 117.

[30]     Two points relevant to information gathering.  Firstly, s 7(2)(c) notes that the Board’s decisions must be made on the basis of the relevant information available to them at the time the special condition decisions are made.

[31]     Sections 43 to 70 of the Parole Act relate to the process for Board hearings relating to parole.  Section 43 sets out the obligations at the start of the process.  It provides as relevant:

43       Start of process

(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—

(a)       copies of all relevant information relating to the offender's current and previous convictions, including (for example) sentencing notes and pre-sentence reports; and

(b)       if  the  offender  has  engaged  in  any  restorative  justice processes, any reports arising from those processes; and

(c)       in the case of an offender detained in a [prison], a report by the Department of Corrections; and

...

(2)      The  Board  must  take  all  reasonable  steps  to  give  notice  to  the following people that a hearing is pending:

(a)      the offender:

(b)      every victim of the offender:

(c)      the [manager] of the prison in which the offender is detained

(if applicable):

...

(f)       the police.

(3)       If the hearing relates to an offender who is subject to a long-term sentence, any victim who is notified must be advised that he or she may request information on the offender under section 44.

...

(5)       Any person notified under subsection (2) may write to the Board, by a given date, making submissions on, or giving information relevant to,—

(a)      the substantive matter to be decided; and

(b)      whether the hearing should be an unattended hearing or an attended hearing.

[32]     Thus, at s 43(1)(a) the Department of Corrections must provide the Board with all relevant information relating to the offender’s current and previous convictions and at sub (1)(c) it must provide the Board with a report.   The Board may also call for further information should it require it.4

[33]     Corrections have filed three affidavits from employees who undertook the release planning with respect to Mr Wilson.  Their affidavits set out the work that Corrections did in investigating and reporting to the Board on Mr Wilson’s release.

[34]     This evidence shows that Mr Wilson has refused to co-operate in reaching agreement as to suitable release conditions for him.   He had two vague proposals relating to his release, one that he live in Christchurch and the other in Auckland. Neither proposal had any detail and understandably was rejected by Corrections and the Board.

[35]     Ms Ashley Shearar  is  a  team  leader  within  Corrections  and  provided  an affidavit in this case.  She works as the leader of the High Risk Response Team who were responsible for identifying a suitable release plan for Mr Wilson.  She said that Corrections  was  well  aware  that  Mr Wilson  was  approaching  his  release  date. Planning for his release was particularly difficult in Mr Wilson’s case because “he refused to engage with his prison case manager and he would not come up with a realistic or feasible solution, particularly in relation to the location of his release, a release  address  and  community  supports  which  would  address  his  risk  and integrative needs”.  And so it fell to Corrections to formulate a suitable release plan

which it could put to the Board in terms of its s 43(1)(c) obligation.

4      Section 117 (although this section does not expressly authorise the Board to obtain further

[36]     Corrections discussed release options with Police, Department of Building and  Housing,  Work  and  Income  and  Child,  Youth  &  Family  Services.    Initial planning began in May 2012.   Corrections were concerned that the major issue would be to identify a suitable location and a suitable address within that location for Mr Wilson conscious of the statutory requirements in s 7.

[37]     Corrections also asked Police to undertake a victim mapping exercise to establish where Mr Wilson’s victims were living. As to this Ms Shearer said:

It was highly desirable to avoid placing Mr Wilson in an area close to former victims.

[38]     This was because Corrections were anxious to avoid retraumatising victims and also to prevent contact or further offending against them.5   This was information relevant to identifying possible locations for Mr Wilson’s residence.   Ms Shearar said, however, where victims lived;

... was not the only criteria but it was an important one.

[39]     Corrections did not want to place Mr Wilson in a rural area, isolated from the community where he may be able to exploit isolated potential victims.  An isolated area would also make it difficult for Police to respond and for Corrections to provide support for Mr Wilson.  Nor, however, did Corrections want Mr Wilson in the heart of a metropolitan area where he may have easy access to potential victims.

[40]     Further, once a location could be identified, suitable accommodation would then  need  to  be  also  identified.    Housing  New Zealand  were  approached  but properties  they  had  were  often  in  areas  where  there  were  vulnerable  and marginalised people unsuitable for Mr Wilson’s release.

[41]     The Corrections considered both the deep South Island and far North Island but they were  rejected  as  being too  far away from  probation  facilities  and  too

isolated for Mr Wilson.

5      Section 7(2)(d), s 15(2)(c).

[42]     Further, there were a number of victims in South Island locations and other sexual offenders living there who Mr Wilson knew from his time in Christchurch Prison.

[43]     As  a  result  of  this  analysis  three  areas  were  identified  as  “best  fits  for Mr Wilson’s  release  plan”.    They  were  Hawkes Bay,  Taranaki  and  Whanganui. Taranaki was rejected, however, because it lacked reintegration support workers with the  skills  to  assist  Mr Wilson  and  suitable  accommodation  did  not  seem  to  be available.  Hawkes Bay was also considered but there were again concerns relating to a lack of support workers to assist Mr Wilson.  This was an area close to tourist areas with potential vulnerable victims which had been identified as high risk for Mr Wilson.

[44]     The  Department  continued,  however,  to  consider  both  Hawkes  Bay  and Taranaki but a range of factors pointed towards Whanganui as being a preferred location.  Corrections then turned its mind to accommodation.  Ms Shearar said:

Every option we could find did not meet our suitability criteria for accommodating a high risk child sex offender in the community.   Some locations were too close to schools or kindergartens, parks and playgrounds. Some were too exposed and others were too isolated.   Hotels and motels were ruled out because they were not suitable long term options and would risk putting him in contact with potential victims such as vulnerable female tourists.

[45]     The Department considered whether it was possible to house Mr Wilson on prison grounds using some form of portable house.  Corrections had done this before in Christchurch.  There, two sex offenders subject to ten year extended supervision orders were being housed in prison grounds.  Christchurch was not possible because the accommodation was full and there were also problems with victims in that area.

[46]     Accommodation on prison grounds in Taranaki was not an option because

New Plymouth Prison was closing.

[47]     Ms Shearar said:

Accommodating Mr Wilson in prison grounds at Whanganui was identified as a more viable option than at Hawkes Bay because the existing utility connections from previous staff accommodation would also make it more feasible to place accommodation on the site.

[48]     Further,  as  Ms Shearar  said  not  only was  suitable accommodation  a key requirement but also special conditions were needed to manage Mr Wilson’s risk in the community and to support his reintegration following release.  Accordingly, the place for Mr Wilson’s release also needed to be able to accommodate these other special conditions.   Whanganui had a particular reintegrated programme provider whom Corrections had considerable trust in.  Corrections then put together a set of special parole conditions which it proposed for Mr Wilson’s release.  They suggested the purchase of a pre-existing Housing New Zealand house which they would place on Whanganui Prison grounds for Mr Wilson (although outside the prison fence).

[49]     In   its   report   to   the   Board   meeting   of   7 August 2012,   Corrections recommended  21 special  conditions.      At  the  beginning  of  its  decision  as  to Mr Wilson’s parole conditions, the Board said:6

In assessing the matter we are conscious that the paramount consideration is the safety of the community.

[50]     The Board, therefore, had to decide what special conditions were required to meet the statutory tests in s 7 and s 15.   It had before it a comprehensive plan for Mr Wilson’s parole conditions.  Almost all of the proposed conditions focussed on community safety.

[51]     The proposed special parole conditions were:

(1)       To reside at Lot 2 DP46128 CFR WN48C/764, Whanganui Prison,

195 Pauri Road, Whanganui, and to sign, and comply with, rules of the property.    Not  to  move  from  that  address  or  any  subsequent  approved address, without the prior written approval of a probation officer.

6 At [4].

(2)       To remain at your approved address between 8.00pm and 9.00am daily.

(3)       Not   to   enter,  or  loiter  within  the  grounds  of,  any  schools, pre-schools, parks, playgrounds or other public place where children under

16 years of age are likely to congregate, unless under the supervision of an informed adult who has been approved in writing by the probation officer.

(4)       Not to leave the district of Whanganui without the prior written approval of the probation officer.  The district of Whanganui is defined as the district boundary of the Whanganui District Council.

(5)      To submit to, and comply with the requirements of, electronic monitoring as directed by the probation officer, to monitor compliance with conditions relating to your whereabouts.

(6)       Comply with the requirements of electronic monitoring, and provide access to the approved residence for this purpose to Department of Corrections staff and representatives of the monitoring company, as directed by the probation officer.

(7)       You are not to associate or otherwise have contact with any person

16 years of age or younger unless another adult over the age of 18 years, who  has  previously  been  informed  and  approved  in  writing  by  your

probation officer, is present.

(8)       Not to have any female present at your address at any time, unless given prior written approval of the probation officer.

(9)       You are not to have contact or otherwise associate with the victims of your offending, directly or indirectly.

(10)      Not to have any contact with the media.

(11)      Not  to  attend  any  addiction  support  groups,  such  as Alcoholics Anonymous or Narcotics Anonymous, unless supervised at all times by an informed adult previously approved in writing by the probation officer.

(12)     Not to have contact, or associate with, any prisoners or prisoner visitors at Whanganui Prison.

(13)      Attend up to 6 sessions  with a  Department  Psychologist for the purpose of developing a safety plan, as directed by the probation officer in consultation with the psychologist.

(14)    Undertake, engage in and complete a reintegration programme administered by a programme provider approved by the probation officer, and abide by the rules of the programme to the satisfaction of your probation officer and the programme provider.

(15)      Not to engage in any employment (paid or unpaid) without the prior written approval of the probation officer.

(16)     Not  to  own  or  be  in  possession  of  any  animal  (domestic  or otherwise).

(17)      Not to use or possess any electronic device capable of accessing the internet, unless supervised at all times by an informed adult who has the prior  written approval  of the  probation  officer.   To give  your  probation officer or their agent access to any electronic device in your possession or control, for the purposes of checking the internet capability of the device and your compliance with this condition.

(18)     Not to engage in any clubs, groups, associations or churches unless accompanied at all times by an informed adult who has previously been approved in writing by the probation officer.

(19)     Not  to  place  any  advertisement  or  reference  in  any  printed publication (or similar, including internet publications) and not to respond to any such advertisement by another person.

(20)     Not to possess or drive a motor vehicle, including any van or campervan, unless accompanied at all times by an informed adult who has been approved in writing by the probation officer.

(21)     Not to possess or consume alcohol or drugs (including prescription medication), other than prescription medication prescribed to you by a medical practitioner.

[52]     The Board deleted  conditions  2,  3,  10,  12  and  16 and  with  some  minor amendments accepted all the other conditions.   They added a condition that there should be a review of the special conditions in December 2012.

[53]     The Board in its decision made it clear that the paramount consideration it brought to bear on the imposition of the special conditions was the safety of the public.  As Corrections pointed out in their submissions before me, the Board would have been acutely aware of the high level of risk that Mr Wilson posed to the safety of the community.  The evidence given on behalf of Corrections illustrates that they went about their task of identifying a preferred location as part of their obligation to prepare a report for the Parole Board.   The conditions suggested by Corrections primarily, indeed almost exclusively, focussed on community risk.

[54]     Section 7(2)(c)  required  the  Board  to  make  its  decision  based  on  the information it had available.   And while it could have sought further information7 it decided not to do so in the circumstances.   This was understandable.   It had a

comprehensive proposal which dealt in detail with community safety.

7      Section 117.

[55]     Further, as Corrections pointed out, any arrangement for the accommodation of  Mr Wilson  has  to  be  able  to  be  supported  by  Corrections.    This  involves monitoring of conditions and support for a reintegration programme.

[56]     Corrections, and so the Parole Board, went about the process of identifying a suitable place in a sensible and logical way.   For example, they understandably rejected  isolated  areas  where  there  could  be  little  support  or  monitoring  of Mr Wilson’s   conditions   and   where   the   safety   of   the   community   could   be significantly compromised.  Where Mr Wilson’s reintegrated needs could not be met, the safety of the community could also be further compromised.   Successful reintegration is relevant to reduced reoffending likelihood.

[57]     Once the possibility of housing Mr Wilson at a prison became apparent then other  possibilities  were  looked  at,  for  example,  Christchurch,  Hawkes  Bay  and New Plymouth.   Each were rejected for reasons relating to either practicality, for example, the New Plymouth Prison was being closed, or community safety where parole conditions could not be supported by Corrections.

[58]     When the Parole Board came to consider the Whanganui option, they took into account as the paramount consideration risk to the safety of the community. They imposed detailed special conditions designed to reduce this risk.

[59]     It is not a requirement of s 7 or the Parole Act more broadly that Corrections and/or the Parole Board consider every possible location in New Zealand where Mr Wilson may be able to be paroled.  This would place an impossible burden on Corrections and the Parole Board process.

[60]     Here, Corrections considered a wide range of alternatives all of which, in one way or another, were focussed on the safety of the community.

[61]     The guiding principle in s 7(1) does not require the Board to undertake an open ended enquiry about what is the “safest” place in New Zealand for a parole. There is  nothing  in  the  plaintiff’s  case  which  identifies  in  any  event  a  “safer” alternative than the one identified by Corrections and the Board.

[62]     Corrections   undertook   extensive  enquiries   throughout   New Zealand   to identify a  suitable  place  to  house  Mr Wilson  on  release  and  proposed  stringent release conditions focused on community safety.  There is no evidence to support the plaintiff’s contention that Corrections focussed on where victims lived somehow to the exclusion of the paramount consideration of community safety.  It considered the

position of victims as it was legislatively obliged to do8 but not as alleged somehow

to the exclusion of considering community safety.

[63]     I  reject  the  plaintiff ’s  claim  that  Corrections’  focus  (and  therefore  the Board’s) was primarily on victim protection rather than community safety in recommending the special conditions.  The evidence establishes both were taken into account with primacy given to community safety (including the safety of victims) by the Board.

[64]     To return to the two causes of action.  I am satisfied for the reasons given that the Parole Board did correctly apply the statutory obligations in s 7.  It considered the safety of the community as its paramount consideration and it took into account the other relevant s 7 factors.

[65]     I am also satisfied for the reasons given the Board did not fail to consider all relevant information in making its decision.  The plaintiff’s claim must, therefore, fail.

Standing

[66]     Both the first and second defendants challenge the plaintiff’s standing to bring this judicial review.  I have decided this case on the merits of the plaintiff’s claim.    However,  acknowledging  the  submissions  of  the  parties  I  make  some

comments on standing in situations such as this.

8      Parole Act 2002, ss 7(2)(d), 15(2)(c).

[67]     All counsel agree that there is a liberal approach to standing in New Zealand. Today,  few  judicial  review  cases  are  resolved  by  a  defendant  successfully challenging a plaintiff ’s standing to bring the challenge.  But of course that does not mean there are no limits.  Standing to bring judicial review proceedings, therefore, must be assessed on the whole of the facts of the case.9

[68]     As counsel for the Board observed, what drives the relaxed approach to standing is the rule of law.   The Courts function is to ensure public bodies act according to the law.10

[69]     The Board in its submission noted that the Parole Act contains a detailed regime relating  to  decision  making.    It  identifies  who can  participate  in  parole decision making and how they might participate.   General interest groups such as local authorities have no place in the statutory process.  The Board’s point is that to allow bodies such as local authorities to become involved through judicial review proceedings in Parole Board decisions cuts across the statutory regime established by Parliament.

[70]     In Environmental Defence Society Inc v South Pacific Aluminium (No 3) the right to bring judicial review proceedings was challenged.11   The Court observed in confirming standing that the Environmental Defence Society and the Royal Forest and Bird Protection Society both represented a relevant aspect of public interest. And, further, that both would have had the right to appear before the Planning Tribunal and thus had a “legitimate interest in whether the reference to the Tribunal

is invalid”.12

9      Budget Rent A Car Ltd v Auckland Regional Authority [1985] 2 NZLR 414 at 419.

10     See Ye v Minister of Immigration [2008] NZCA 291, [2009] 2 NZLR 596 at 657; Jeffries v

Attorney-General [2010] NZCA 38 at [70]; Oggi Advertising Ltd v Auckland City Council

[2005] NZAR 451 (HC).

11     Environmental Defence Society Inc v South Pacific Aluminium (No 3) [1981] 1 NZLR 216 (CA).

12     At 220.

[71]     The Court was therefore satisfied that responsible public interest groups such as those mentioned who had a right to appear before the Planning Tribunal had sufficient standing to bring review proceedings.

[72]     Counsel for the Board made the point that the Board’s function is not to decide in which district or local body area a particular offender should be released. Nor could it be suggested that a local authority could require the Board to take their views into account in deciding between it and other communities as to where an individual might be paroled.

[73]     Counsel submitted, therefore, given the provisions of the Parole Act provide a tightly identified  process  and  a  tightly prescribed  process  for  participation  then Parliament had decided that interest groups such as elected representatives of communities or indeed other groups that had an interest in parole decisions are not entitled to participate in the decision making process.

[74]     Counsel submitted, therefore, that if such bodies are not entitled to participate in the statutory parole process, they should not be entitled to do so through the back door of judicial review.  To illustrate the point, if there had been an appeal by any of the parties to the Board’s decision, the Whanganui District Council could not have been a party to the appeal.

[75]     The  Board  submitted  that  issues  of  concern  about  the  safety  of  the community are to be addressed in different ways.  To allow judicial review by a local authority would effectively cut across the statutory regime which limits entitlement to participate.

[76]     The plaintiff relies primarily on the observations of Tipping J in O’Neill v

The Otago Area Health Board.13  There, Tipping J said:

Any person who shows an honest interest in a public issue may invoke the processes of the Court to have the substantive matter of concern considered. It would usually be necessary to examine the substantive issue or issues before a decision on standing can be made.   If the plaintiff fails on the substantive issues, the question of standing will be academic.  If the plaintiff would otherwise succeed, it would be an unusual case in which either as a matter of standing or as a matter of discretion the plaintiff will fail.  It is my view that the only circumstance in which a plaintiff should be shut out in limine for want of standing is where the defendant can show that the plaintiff lacks  good  faith  or  that  the  complaint is  clearly frivolous,  vexatious  or otherwise untenable.

[77]     The plaintiff submits that it has a legitimate and honest interest in the Board’s decision to require Mr Wilson to reside in Whanganui.   This is a matter of public interest and importance.  One of the purposes of local government is to promote the social, economic, environmental and cultural wellbeing of communities.14

[78]     Counsel for the plaintiff submitted that there is proper public interest in robust decision making by public bodies.   Whanganui Council had a legitimate interest in the orders made by the Board placing Mr Wilson on parole in Whanganui. The Whanganui community, therefore, will be affected by the orders made beyond other citizens in New Zealand.  It is not a necessary pre-requisite for the Council to have right of audience before the Board before it could bring a judicial review.  This is not one of those unusual cases where the claims should fail on the basis of standing alone.   The claim is not frivolous, vexatious or otherwise untenable and, therefore, the Whanganui Council in this case should have standing to bring these

proceedings.

13     O’Neill v The Otago Area Health Board HC Dunedin CP 50/91, 10 April 1992 per Tipping J.

Cited more recently in Murray v Whakatane District Council [1999] 3 NZLR 276 per Elias J; Society for the Protection of Auckland City and Waterfront Incorporated v Auckland City Council [2001] NZRMA 209.

14     Local Government Act 2002, s 10.

[79]     This is a difficult question for resolution. The Whanganui District Council on behalf of the citizens of the district, do have an interest in the release of prisoners in their district.  They cannot be dismissed as busy body litigants, those with no interest in the outcome.   Ordinarily, this interest would be sufficient to establish standing. Here,  the Board’s position is that Parliament has carefully prescribed  who may participate in parole decisions.   Parliament has not allowed general public interest bodies to participate.

[80]     It seems likely most local authorities will object on behalf of their citizens to the release of recidivist offenders in their territory.  But such offenders, assuming an entitlement to release, must live somewhere.  Thus, Parliament has given the Parole Board the task of deciding on parole and release conditions without the input of such public bodies but with a carefully prescribed set of guiding principles and conditions.

[81]     Judicial review, however, is primarily concerned not with outcome but with process  (although  not  exclusively).    Did  the  Parole  Board  reach  its  decision according to Parliamentary direction through the Parole Act?  The potential parolee has the right to challenge through appeal or review decisions of the Board he/she thinks are wrong or not according to law.   A parolee, however, is only likely to challenge those decisions of the Board with which he/she is dissatisfied.

[82]     Who then is the guardian of public interest in ensuring the Board makes its decisions according to law?  There is a public interest in ensuring that the Board acts according to law in its decision making.  Local authorities may, therefore, represent a legitimate public interest in ensuring the Board has made its decision according to law.  I stress this is not, however, a right to “review” in a non-legal sense the Board’s decision. This case illustrates the point.

[83]     The plaintiff, as it recognised, could not challenge the decision of the Board on the basis that it did not want Mr Wilson living in Whanganui.  Its challenge was that the Board in reaching its decision failed to apply the Parole Act correctly.  Even if the challenge had been successful the Board reconsidering the matter could have placed Mr Wilson in Whanganui.

[84]     As can be seen, therefore, my preferred view is that the plaintiff did have standing to bring these proceedings.   I accept the potential for disruption of the Board’s process if such review challenges become common.  But I suspect they will be relatively rare.    If a  prisoner is  entitled  to parole he/she  must  after all  live somewhere in New Zealand.  Local authority challenges by way of review will not have a say in where a parolee may live but given their public interest I consider they should be entitled to challenge the lawfulness of a Board decision.  Finally, whether in an individual case a local authority has standing will depend on the particular facts.

[85]     In summary, the judicial review proceedings are dismissed.   Although no decision is required with respect to the first and second defendants’ challenge to the plaintiff’s standing to bring these proceedings, my preferred view is that the plaintiff had standing on the facts of this case.

Costs

[86]     If any of the defendants seek costs then they should file a memorandum within 14 days. The plaintiff will have a further 14 days in which to reply.

Ronald Young J

Solicitors:

A J McKenzie, email:  [email protected]
L Drummond, email:  [email protected]

H Wilson, email:  [email protected]

B E Ross, email:  [email protected]
A M Powell, email:  [email protected]

C Brown, Crown Law, Wellington

F M R Cooke QC, email:  [email protected]
L Fong, email:  [email protected]