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High Court of New Zealand Decisions |
IN THE HIGH COURT OF NEW ZEALAND
CHRISTCHURCH REGISTRY
CIV-2006-409-002815
IN THE MATTER OF the Judicature Amendment Act 1972
BETWEEN IOANA VAALELE
Applicant
AND THE NEW ZEALAND PAROLE BOARD
Respondent
Hearing: 2 April 2007
Counsel: P N Allan for Applicant
A M Powell
for Respondent
Judgment: 22 May 2007
JUDGMENT OF PANCKHURST J
What is the meaning of "community"
in the Parole Act?
[1] The sole issue raised by this application for judicial review concerns the
correct meaning of the word
"community" as used in the Parole Act 2002.
[2] Mr Vaalele is a serving prisoner. He is also the subject of an order for his
removal to Samoa, his homeland. Having reached his parole eligibility date, the
applicant appeared before a Parole Board for a decision
to be made whether he
should in fact be released. The test which the Board must apply is whether, if
released on parole, the applicant
will not pose an undue risk to the safety of the
communit y: s7 and s28(2) of the Act. Counsel for Mr Vaalele submitted to the
Board
that because following his removal he would pose no risk to the New Zealand
communit y, Mr Vaalele should be released.
IOANA
VAALELE V NZ PAROLE BOARD HC CHCH CIV-2006-409-002815 22 May 2007
[3] The Board rejected this argument. It decided that a community
for the
purposes of the Parole Act included the community to which Mr Vaalele will be
removed. Because concern continued to exist
that he would pose an undue risk to
the safety of others during the balance of his term, a release on parole was not
ordered.
[4]
The present application for judicial review challenges the approach adopted
by the Board, in particular its interpretation of
the concept of a community.
The statutory environment
[5] What constitutes a community is not defined in the Parole Act. But
at a
number of points in the Act the word is used in relation to whether a prisoner should
be released back into the community.
[6] Section 7 provides:
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 or detention conditions that are more
onerous, or last longer, than is consistent with the safety
of the
community; and
(b) that offenders must be provided with information about decisions
that concern them, and be advised how they may participate in
decision-ma king that directly concerns them;
(c) .....
(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.
(emphasis added)
[7] With reference to prisoners who have
reached their parole eligibility date, s28
applies:
Direction for release on parole
(1) The Board may, after a hearing
at which it has considered whether to
release an offender on parole, direct that the offender be released on
parole.
(2) The Board may give a direction under subsection (1) only if it is
satisfied on reasonable
grounds that the offender, if released on parole,
will not pose an undue risk to the safety of the community or any
person or class of persons
within the term of the sentence, having
regard to
(a) the support and supervision available to the
offender following
release; and
(b) the public interest in the reintegration of the offender into
society as a law-abiding citizen. (emphasis added)
[8] In exceptional circumstances the Board may release
a prisoner who has not
reached his parole eligibility date, in which case the same test (undue risk to the
safet y of the community)
applies: s25(6). Further, an offender may serve his
sentence on home detention, where the offender is deemed suitable for
that option,
provided also such offender will not pose an undue risk to the safety of the
communit y: s35(2)(a).
Some further background
[9] In August 2004 the applicant, who is now aged 24 years, committed offences
of burglary and assault with intent to rape.
In November of that year he was
sentenced to six years imprisonment.
[10] At the time of his apprehension and sentencing Mr Vaalele
was an
overstayer. In consequence, in August 2004 he was served with a removal order
which will be enforced upon his release from
prison.
[11] The applicant's parole eligibility date was 10 August 2006. His statutory
release date, and sentence end date, is
8 August 2010.
[12] Section 21 requires the Board to consider the release of an offender on parole
"as soon as practicable" after
the parole eligibility date is reached: s21(1). Such
occurred in this instance on 16 August 2006. The Board, convened by
Judge
Crosbie, considered Mr Vaalele's case, including the contention that a release on
parole would not pose an undue risk to the
New Zealand community, given that
Mr Vaalele's removal to his homeland would inevitably occur. For reasons which I
shall set out
in a moment, the Board did not accept this contention.
[13] Pursuant to s67 the applicant applied for a review on the grounds
that the
Board's decision was tainted by an error of law: s67(3)(b). The review, as required,
was undertaken by another panel convenor,
in this instance Judge Tompkins. He
concluded that the original decision was not afflicted by legal error and, accordingly,
the application
for review was declined.
The Board, and the review, decisions
[14] The Board's decision included this:
While section
28 could confine reading of the term "community" to "New
Zeala nd", it could on a larger and liberal interpretation suggest
a wider
community in the sense of the Pacific community. This is a phrase that is
routinely heard and used including
in Government circles, with for example,
a particular Ministerial portfolio being one of Pacific Island Affairs. We are
incr easingly seeing offenders from the Pacific Islands in our prisons, both
those who are New Zealand citizens and those
who are not. It follows that
ther e is a certain fluidity of movement between New Zealand and its pacific
neighbours
and, in addition, there is an awareness amongst New Zealanders
and our Pacific neighbours about the basis on which offenders
will be treated
and released in New Zealand.
This panel of the Board considers this offending to be serious offending
and
considers there exists an obligation to the "community" in the wider sense
described above. The Board must be satisfied
that Mr Vaalele will not pose
an undue risk to the safety of the persons in that community.
[15] In light of its view as
to the correct meaning of "community", the Board
concluded that the applicant would pose an undue risk if released because he had
not
addressed the causes of his offending "at all". The Board added that it considered
Mr Vaalele a "victim" of the policy that prisoners
who do not have New Zealand
cit izenship status do not receive treatment programmes or interventions while in
prison. It observed:
It is respectfully
suggested, given that Mr Vaalele will eventually be released
to a neighbouring jurisdiction that shares to an increasing extent,
laws and
values consistent with significant sections of the population in New Zealand,
that there is an obligation
to ensure that the causes of the offending are
addr essed while incarcerated in New Zealand. To do otherwise, might in
fact see the offender posing an increased risk to the safety of the persons of
the community to which they are returning.
[16] On review, Judge Tompkins considered the question of interpretation in
somewhat more detail. His decision included this:
In light of all the above, my conclusions are as follows:
1. The extension of the meaning of "the community" to
encompass
considerations of safety in a country located in the Pacific region, such
as Samoa, might on
first reading normally require explicit statutory
language. There is no such language in the Act.
2. The
reasons given for the wide construction adopted by the Parole
Board in this case are not inconsistent with the broad
discretionary
consideration required of the Board by ss7 and 28 of the Act.
3. Some support for a wider approach
is, by analogy, available in R v Al
Baiiaty (CRI-2004-085-1340 High Court Wellington, 11 March
2005). In
particular, the comment relating to our justice system not
"wishing upon" other countries a person with the "sort of
risk"
represented by the prisoner in that case is directly relevant.
4. The adoption of a liberal, purposive
approach, including consideration
of factors relevant to the inmate's risk to the residents of a foreign
country, in considering "the safety of the community" by the Parole
Board is not in itself an approach that is extra-territorial
in effect, as
the Parole Board is exercising a discretion in relation to an inmate
within the territory
and jurisdiction of New Zealand. No oversight or
follow-up by any branch or organisation of the New Zealand
government is required or anticipated by such an interpretation: What
the Board is doing is making a present assessment
of risk of an inmate
presently incarcerated within New Zealand's prison system, who has
received no rehabilitative
intervention whilst serving his sentence.
5. Overall, such an approach as was adopted by the Board in this case is
consistent with the historical, political, social, cultural and tourism ties
that exist within the Pacific
region, due to the fluidity of movement of
people between New Zealand, Samoa and elsewhere in the Pacific.
Given the strong links existing between New Zealand and Samoa, any
concern felt in Samoa about the potential deportation
upon early
release of Mr Vaalele could also be validly held by members of the
Samoa n community resident
in New Zealand, who, by virtue of family
or other ties, are or become aware of his release and deportation. Any
future offending in Samoa may well, by virtue of those ties, impact
directly or indirectly on those persons
associated with that community
who are resident in New Zealand or, indeed, upon New Zealand
residents or
citizens who are visiting Samoa.
6. The decision of the Board reached in this case is consistent with New
Zeala nd's international (albeit moral) obligations.
7. The cumulative effect of the above is that, despite the absence
of
expr ess language, the Parole Board was entitled to take into account
the risk to the community in Samoa when assessing Mr Vaalele's risk
to the "safety of the community", as that phrase is used in ss7 and 28
of the Parole Act 2002.
[17]
Al Baiiaty was a sentencing decision in which Gendall J was faced with an
argument that, because the deportation of the prisoner
to Iraq was inevitable, a
sentence of preventive detention should not be imposed. The Judge did not entirely
accept that proposition,
commenting that although "protection of the community and
the safety of its members relates to New Zealand", it was hard to see why
our justice
system should wish upon citizens of other countries the risk which the prisoner
posed particularly to women.
[18]
Judge Tompkins' reference to New Zealand's international obligations
related to the Declaration on the Elimination of Violence
against Women adopted
unanimously by the General Assembly of the United Nations on 20 December 1993
Art icle 4(f) requires States
to:
Develop, in a comprehensive way, preventive approaches and all those
measur es of a legal, political, administrative
and cultural nature that promote
the protection of women against any form of violence, and ensure that the
revictimisation
of women does not occur because of laws insensitive to
gender considerations, enforcement practices or other interventions.
Judge Tompkins concluded that the Declaration did not have the legal force of a
binding international treaty, but nonetheless he
saw it as giving rise to an
internat ional moral obligation. Reference was made to Tavita v Minister of
Immigration [1994] 2 NZLR 257 (CA) where Cooke P said at 266:
Legitimate criticism could extend to the New Zealand Courts if they were to
accept
the argument that, because a domestic statute giving discretionary
powers in general terms does not mention international
human rights norms
or obligations, the Executive is necessarily free to ignore them.
Grounds of judicial review
[19]
The statement of claim advances the case for judicial review under three
heads, being mistake of law, inconsistency and unreasonableness.
However, as
Mr Allan accepted at the outset of his argument, the outcome of the case will
necessarily depend upon
the question of statutory interpretation. It is self-evident
that, if "community" is restricted to the New Zealand community, the
decision-
making process at both levels is susceptible of review.
[20] With reference to remedy the applicant seeks a declaration
that both decisions
are invalid and should, therefore, be quashed. Rather than the case being referred
back to the Board for reconsideration,
Mr Allan contended that I should make an
order for the immediate release of Mr Vaalele into the custody of the police so that
the
removal order may be implemented, regardless that this Court rarely substitutes a
decisio n for that of the decision maker.
The
respective arguments
[21] In essence Mr Allan advanced three main contentions:
[a] that the decision of the Parole
Board to interpret community as
extending to New Zealand's Pacific neighbours (but not to other
countries)
was arbitrary, and therefore also inconsistent and
unreasonable,
[b] that the word community as used in the
Parole Act, when read in
light of the scheme of the Act as a whole, could only sensibly be
read as encompassing
the New Zealand community, not
communit ies at large, and
[c] that the recent decision of the Court of Appeal
in Reid & Ors v
New Zealand Parole Board (2006) 22 CRNZ 743 was, at least
in spirit, consistent with the narrower view of community.
[22] Mr Powell described the word community
as one of inherent flexibility. Its
interpretation in the context of the Parole Act raised whether Parliament intended to
confine
the concept of community to coincide with New Zealand's borders, or not.
Counsel described the purpose of the Act as to provide for
offenders who have
served the minimum portion of their sentence to begin their reintegration back into
the community when they
no longer present an undue risk to its safety, but not
before.
[23] Mr Powell agreed with Judge Tompkins' conclusion that
no question of extra
territorial legislation arose in this case. Even if community was construed to extend
to the community into
which the offender would in fact be released, New Zealand
would not thereby be seeking to make a law having effect in another jurisdiction
but
rather seeking to provide some measure of extra territorial protection. I agree.
[24] Counsel further submitted that the
Bill of Rights Act 1990 was not engaged
with reference to this question of interpretation. Either approach was consistent with
the
Bill of Rights. The only right potentially at stake was the right against arbitrary
detention: s22. Mr Powell argued that the continued
detention of a prisoner beyond
his eligibility date for parole was not arbitrary, where release would involve undue
risk to others,
whether in New Zealand or beyond.
[25] The result in Al Baiiaty was said to support a broader interpretation of
communit y.
The purpose of the sentence of preventive detention is to protect the
"co mmunit y from those who pose a significant and ongoing
risk to the safety of its
members": s87(1) Sentencing Act 2002. Gendall J, by imposing a sentence of
prevent ive detention and by
concerning himself with the welfare of women in
countries beyond New Zealand adopted a more expansive view, regardless that
deportation
of the offender was bound to occur. Mr Powell contended, by analogy, a
similar approach was appropriate under the Parole Act.
[26]
In the final analysis counsel submitted that intuitive judgment led to the
answer that the Parole Act contemplated the community
into which the offender
would be released as the proper interpretation of the concept. Nothing in the Act
indicated that Parliament
was concerned only at the risk an offender might pose to
persons living in New Zealand. And, Mr Powell argued, to impute to Parliament
an
intent ion to display apparent indifference to the welfare of persons outside New
Zealand was inappropriate. Indifference of this
nature would require clear words.
The Act does not contain them.
Analysis and interpretation of "community"
[27] Central to
the applicant's case is the proposition that a broad interpretation of
communit y is antithetical to the statutory scheme of the
Parole Act. The governing
principle for decision of the Board is that in every case the safety of the community
is the paramount
consideration: s7(1). But offenders must not be detained any longer
than is consistent with the safety of the community, nor be subject
to release
condit ions more onerous than is required for community safety: s7(2).
[28] When offenders are released on parole,
s29 requires the imposition of
standard release conditions and permits the addition of special conditions. The
standard
release conditions are defined in s14, and include obligations to report to a
probation officer within 72 hours of release; to report
to the officer periodically as
required; to keep the officer advised of the offender's residential address and place
of employment;
to not associate with persons specified by the officer; and an
obligat ion to participate in a rehabilitative and reintegration needs
assessment when
directed to do so. As can be seen, these are intensely indigenous requirements. The
ongoing involvement of a probation
officer is central to ensuring compliance with
them. In turn, the decision to release an offender on parole is to be taken by the
Board with regard to the support
and supervision available to that offender following
release: s28(2)(a) (see [7]).
[29] Further, I note that an offender released
on parole may be recalled to prison:
s60(1). The grounds for recall in s61 include:
(a) the offender poses an undue risk
to the safety of the community or any
person or class of persons; or
(b) the offender has breached his or
her release conditions or detention
conditions;
In addition s61(e) provides for the recall of an offender who is subject
to a special
condit ion requiring his or her participation in a residential programme where such
init iat ive has failed, whether
through the offender's fault or otherwise.
[30] I agree with Mr Allan that immediately the concept of community is placed
alongside
the regime of conditions which typically accompany a release on parole,
there is a strong argument for the proposition that community
must mean the New
Zealand community. Consistently, at a number of points in the Act, the notion of the
safet y of the community is
linked to the ability of the Board to promote that end by
the imposition of support and supervision requirements provided through
the
Probation Service. Hence, I accept that the primary meaning of the term community
in the Act is the New Zealand community. However,
does it necessarily follow that
the safety of another community, to which an offender will be returned, is not also
the concern of
a Board in making a parole decision?
[31] Put another way may community, in the context of this Act, be interpreted to
bear a
secondary meaning, being the community to which an offender is to be
returned or deported? I think that it can and should be so interpreted.
[32] Reflective of the primary meaning of community, whether release in an
individual case will pose an undue risk to the safety
of the community or any person
or class of persons, is to be assessed having regard to the support and supervision
available to the
offender following release. With reference to offenders who are to
be removed or deported, the Board will need to assess risk without
the comfort that
tailored release conditions provide in the case of New Zealand based offenders. But,
subject to recognising this
important distinction, it does not seem to me that
construing community to have primary and secondary meanings is unworkable; or
invo lves difficulties which call in question the interpretation that I favour.
[33] The alternative is to read down the word
community and restrict it to its
primary meaning of the New Zealand community. That, to my mind, would not
promote the underlying
purpose of the Act. Far from making a release decision
which is guided by the prescribed paramount consideration, the Board would
be
engaged in ignoring risk, simply because that risk was external to New Zealand. I
agree with Mr Powell's submission that to ignore
the risk posed by an offender
fo llo wing a return or deportation, because it is not a risk to the New Zealand
communit y, is a bleak
approach and would invite legitimate criticism, including with
reference to the observance of New Zealand's international responsibilities.
[34] It is of interest to note the position which obtains in New South Wales. The
Crimes (Administration of Sentences) Act 1999
governs the release of offenders.
Before offenders are released, the Parole Authority must be satisfied, on balance,
that release
is appropriate in the public interest. In applying that test the first factor it
must consider is the need to protect the safety
of the community (s135(2)(a)). To
enable the Authority to properly exercise its functions it may establish guidelines.
[35]
Operating guidelines were established in 2004 and include considerations
relevant to the release of an offender who is liable to
removal or deportation. These
factors are:
(a) whether a definite decision has been made by the Department of
Immigrat ion;
(b)
whether the offender has adequately addressed the offending
behaviour;
(c) whether the offender would otherwise
be released to parole in
Australia if not subject to deportation;
(d) the seriousness of the offence;
(e) the risk to the community in the country of deportation;
(e) the duration of the period to be served on parole;
(f) the fact that supervision of the parole order is highly unlikely to
occur. (emphasis added)
This example, I
think, indicates a similar, if more refined, approach to this common
problem and in the context of broadly similar legislation.
[36] For these reasons I do not accept the argument that the word "community" in
the Parole Act means only the New Zealand community.
No doubt, that is its
primary meaning, but the word also bears a secondary meaning being the community
to which an offender will
be removed or deported. When the latter situation obtains,
the approach of the Parole Board will need to be modified in the way I
have
indicated. It will need to address the anxious question of undue risk without the
comfort which the support and supervision
available to offenders in New Zealand
may provide.
[37] Mr Allan's argument included a contention that, if community was given
a
broad meaning, the Department of Corrections should amend its policy and provide
treatment programmes and interventions to offenders
regardless that they are subject
to removal or deportation orders. I note that Judge Crosbie addressed the same issue
in giving the
Board's decision in this case (see para [15]). The Department of
Corrections was not a party to this proceeding. It is not, therefore,
appropriate for
me to broach this question, save perhaps to note the logic and merit of the argument.
Disposition of this case
[38] For the reasons I have endeavoured to explain I am not persuaded that the
Board, or Judge Tompkins on review, misinterpreted
the meaning of community so
as to give rise to reviewable error. To the contrary, I agree that the word
"co mmunit y" in
the Parole Act is not restricted to the New Zealand community.
[39] Accordingly, the application for judicial review is dismissed.
_________________________________________________________________________________
Solicitors:
FS Legal, Christchurch for Plaintiff
Crown Law Office, Wellington for Defendant
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