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Coleman v Chief Executive Department of Corrections [2020] NZHC 1033 (18 May 2020)

Last Updated: 25 June 2020

REASONS JUDGMENT OF NATION J

• [1] Mr Coleman is currently residing in housing at Tōruatanga, administered by the Department of Corrections (the Department), adjacent to the Christchurch Men’s Prison. On 5 May 2020, he applied by way of originating application for a writ of habeas corpus. There was a hearing as to that application on 8 May 2020. At the conclusion of the hearing, with Mr Coleman present, I gave an oral judgment declining the application with reasons to follow. This is the reasons judgment.¹

The grounds

• [2] Mr Coleman’s application was made on the grounds:

1. The Court of Appeal have advised that a notice of appeal has been lodged in respect of my decision.

COLEMAN v THE CHIEF EXECUTIVE, DEPT OF CORRECTIONS [2020] NZHC 1033 [18 May 2020]

(a) through a sentence of intensive supervision and an interim supervision order (ISO) pending determination of an application for an extended supervision order (ESO), he was subject to conditions:

(i) to reside at an address approved by a Probation officer and not to move from that address without prior approval of a Probation officer;

(ii) to comply with all tenancy and house rules of an approved accommodation provider and to remain at that residence, including but not limited to:

1. completing the necessary paperwork and other administrative tasks;

2. behaving appropriately while living at the address and not giving the property owner or leaseholder reason to decide to evict him; and

3. paying the rent on time.

(iii) he be at the approved address between the hours of 10 pm and 6 am daily unless he had the prior approval of a Probation officer; and

(iv) he was subject to electronic monitoring.

(b) Mr Coleman was detained because:

(i) his approved address is a prison; and

(ii) he is required to reside there and not leave that address at all between the hours of 10.00 pm and 6.00 am, seven days per week and to not leave without prior permission and accompaniment otherwise.

(c) His detention was unlawful because he is not subject to a sentence of imprisonment, and the orders for intensive supervision and interim supervision do not specify special conditions requiring him to remain at the approved address at all times.

• [3] In an accompanying affidavit, Mr Coleman said he lives in a house on the property of Christchurch Men’s Prison in Templeton, that he had been brought down to Christchurch by Probation when he would rather be back in Auckland. His house was within a secured section with two other houses, like a gated community. People there could not “just come and go”. Since he had been living at this address, he had not been allowed to leave the property by himself. There were four scheduled outings per week. On each occasion, he was accompanied by at least one or two, usually two, staff members. He was only allowed to go to the supermarket once a week. When he was not doing a programme at the property, he had no organised tuition or classes to attend. He made a number of complaints about the way staff at the facility interacted with him.

• [4] Ms Wham began her oral submissions by submitting that Mr Coleman had been moved from Auckland to Christchurch under a sentence of intensive supervision, despite his objections. She submitted:

(a) Mr Coleman, under his sentence of intensive supervision and ISO, was subject to a curfew only between the hours of 10 pm and 8 am;

(b) Mr Coleman was detained within a small site managed and staffed by the Department and only able to leave it with advance permission and when accompanied;

(c) although Mr Coleman was subject to a basic programme at the site, there was substantial downtime when he was not involved with that programme but was not permitted to leave the property;

(d) Mr Coleman was not subject to any order or sentence that required him to be at the property at all times; and

(e) the constraints he was under were such to mean that he was detained for habeas corpus purposes.

• [5] Ms Wham argued Mr Coleman’s challenge was to his detention, not the conditions of the orders applying to him. She accepted he could challenge decisions that had been made in respect of his detention by way of judicial review but argued

the availability of such recourse was not a ground for denying him a writ of habeas corpus given his unlawful detainment.

• [6] Ms Boshier appeared for the Department. Ms Boshier said Mr Coleman was subject to a sentence of intensive supervision and also to an ISO. Her primary submission was, pursuant to s 14(1A) Habeas Corpus Act, the Court should refuse the application because the application for a writ of habeas corpus was not the appropriate procedure for considering the allegations made by Mr Coleman. She said, although potentially moot, it was not contested that Mr Coleman was detained. She said, nevertheless, the detention was lawful in terms of both the sentence of intensive supervision and the ISO.

• [7] In support of the opposition to the application, the Department filed an affidavit from Mr Angelo Houtos, the manager of Tōruatanga, employed by the Department. In that, he provided evidence as to the nature of Mr Coleman’s residence and how he was managed there.

• [8] Mr Houtos says that Tōruatanga is a community comprising three standalone houses and a community hub. It is staffed 24 hours, providing “support for reintegrative activities between 6 am and 10 pm. There are currently six residents. House one, where Mr Coleman is currently housed, is a fenced property with a gate that is not locked and often not closed. There is a fence around the entirely of the Tōruatanga property. The front gate is normally open during the day.

• [9] Mr Houtos says there is no rule that Mr Coleman is not allowed to leave the property by himself. He says regular outings accompanied by staff are offered to Mr Coleman but he is accompanied by staff due to the programme condition imposed by the Court as part of his intensive supervision sentence. Supermarket trips had continued during the COVID-19 lockdown but other outings had been curtailed in accordance with Government protocols and advice to stay at home. Mr Houtos referred to reports of March and April attached to his affidavit which demonstrate a marked lack of engagement by Mr Coleman with the staff which Mr Houtos said had correspondingly limited the activities offered as part of the programme. He said Mr

Coleman regularly refused to engage with staff, attend community meetings or plan reintegrative activities.

• [10] Mr Coleman came to reside at Tōruatanga around 10 February 2020. Mr Houtos’ affidavit indicated the transfer was necessary because of problems with Mr Coleman’s self-care and behaviour at Christchurch Residential Care (CRC). Mr Coleman’s needs were basic, for instance to try and get him to shower more than once every three weeks, safely store food and not eat meat that was raw or food that was obviously spoiled. A report of 15 April 2020 indicated that Mr Coleman’s disabilities:

... negative any meaningful engagement. Staff attempt to negotiate one small goal a day for [Mr Coleman] such as getting out of bed, or placing a few pieces of rubbish in the bin.

It said Mr Coleman has significant needs in relation to hygiene, cooking, cleaning and general day to day life. He spends the majority of his time in bed, or under a blanket in the lounge surrounded by food.

• [11] A report of 18 March 2020, attached to Mr Houtos’ affidavit, detailed that Mr Coleman was fixated on meeting women and would approach anyone aged about 17 to 25 at times when he was away from Tōruatanga, even with staff right next to him. He had made contact with a teenager at a shop and his engagement with her had led staff at Tōruatanga to the view that a non-association direction needed to be imposed due to this person’s apparent vulnerability and naivety.

Background

• [12] Mr Coleman is aged 27. On 3 July 2015, he was sentenced in the District Court at Auckland on a charge of exploitative sexual connection after a plea of guilty.² This charge was reduced from initial charges of rape and sexual violation through oral and anal penetration. Mr Coleman was sentenced to imprisonment for four years and two months. That sentence was upheld by Brewer J in the High Court at Auckland in a judgment of 18 December 2015.³

² R v Coleman [2015] NZDC 12457.

³ Coleman v R [2015] NZHC 3298.

• [13] In March 2019, the Department applied for an ESO and an ISO in the District Court at Auckland. On 11 November 2019, the application for an ESO was transferred to the Christchurch District Court. There was to have been a hearing of that application on 25 March 2020. It could not proceed because of the COVID-19 lockdown. The Court is still to allocate a new hearing date.

• [14] On 5 April 2019, an ISO under s 107FA Parole Act 2002 was made in the District Court at Waitakere.⁴ In his judgment of that date, Judge Glubb recorded that counsel appearing for Mr Coleman had discussed matters with Mr Coleman. The judgment records that Mr Coleman and his counsel both accepted that the interim supervision order could be made by consent. Mr Coleman was remanded at large on the ESO application but subject to the Judge recording Mr Coleman was then subject to the conditions of the ISO. A copy of the ISO, including attached conditions, was produced with Ms Boshier’s written submissions. Mr Coleman acknowledged receipt of that order and conditions on 5 April 2019.

• [15] Standard conditions imposed under s 107JA Parole Act required:

(a) he had to advise the Probation officer immediately of his residential address, not change it and not move without approval of a Probation officer; and

(b) must not reside at any address which a Probation officer has directed he not reside.

• [16] Special conditions imposed under s 107FA Parole Act required that Mr Coleman:

(a) be subject to GPS monitoring at all times;

(b) reside at an address approved by a Probation officer and not move from that address without the approval of a Probation officer;

⁴ Police v Coleman [2019] NZDC 6499.

(c) “4. comply with all tenancy and house rules of an approved accommodation provider and to remain at that residence, including (but not limited to):

1. Completing necessary paperwork and other administrative tasks;
2. behaving appropriately while living at the residence and not giving the property owner or leaseholder reason to decide to evict you; and
3. paying the rent on time”;

(d) be at the approved address between 10 pm and 6 am daily unless he had the prior written approval of a Probation officer; and

(e) “7. To attend an assessment with a departmental psychologist and complete any programmes/counselling as recommended by the assessment to the satisfaction of your Probation officer and programme provider”.

• [17] On 23 October 2019 in the District Court at Waitakere, Judge Glubb sentenced Mr Coleman on three charges to which he had pleaded guilty. A breach of supervision order related to his failing to answer calls by the monitoring team as required by the conditions for GPS monitoring to which he was subject. The other charges were for assault and intimidation. Those charges arose out of his behaviour in making unwanted advances to and pursuing young women.

• [18] A Department of Corrections pre-sentence report was prepared. A copy of the report was attached to Ms Boshier’s submissions. That report advised that, prior to his remand in custody on the charges, Mr Coleman had resided at Goodwood Park, Ramarama, which was supported accommodation contracted by the Department to house offenders with complex needs. The report referred to Mr Coleman as having “a disordered lifestyle where both he and his living quarters will be in an unkempt and untidy condition. He is unable to maintain his own accommodation to an acceptable sanitary standard unless he has external support”.
• [19] The report referred to the high concerns the Department had as to the way the charges before the Court involved Mr Coleman approaching women, paralleling his previous offending pathway. The Probation officer wrote:

This is of high concern for the Department and, as such, Mr Coleman would benefit from a high level supported living accommodation with a reintegration programme where his lifestyle could be structured in a way that encourages him to assist in productive activities as opposed to ruminating about women and placing himself in high risk situations. The Department of Corrections is working towards sourcing an appropriate provider, however accommodation is not confirmed at this time. Therefore, it is recommended that there is a condition whereby he engages in a programme for up to 12 hours per day. That would allow for Mr Coleman to obtain the best assistance to allow him to develop reintegrative skills and to mitigate his risk in the community. If accommodation with a suitable provider is located, a curfew condition for the remaining 12 hours will be required to ensure consistency with other residents. It will also mitigate the risk of Mr Coleman leaving the property unaccompanied and placing himself in high risk situations.

• [20] At his sentencing, Mr Coleman was represented by counsel. The Judge recorded there was then a proposal that Mr Coleman go to the Christchurch Residential Care programme and that a suitable address was not available for an electronically monitored sentence. His risk to the community was such that the recommendation of the report writer had been for imprisonment. Mr Coleman’s counsel referred to Mr Coleman having been in custody for a period and that the option of the CRC was now available. Mr Coleman’s counsel submitted that a sentence of supervision would be a better outcome because “it might enable Corrections to monitor Mr Coleman more fully and over a longer period and ensure that he received the rehabilitative assistance he needed to mitigate the risk of further offending moving forward”. Mr Coleman’s counsel also indicated there was no objection to the conditions detailed in the pre- sentence report. Those conditions included conditions that he:

(a) comply with requirements of electronic monitoring;

(b) reside at an address approved by a probation officer and not move from that address without the prior written approval of a probation officer;

(c) comply with all tenancy and house rules of an approved accommodation provider and remain at that address, and behave appropriately while at that address;

(d) attend an assessment with a departmental psychologist and completed any programmes/counselling as recommended by that assessment to the satisfaction of his probation officer and programme provider;

(e) be at his approved address between 10 pm and 6 am daily unless he had the prior approval of a probation officer.

• [21] The report also included on page 9 a special condition which the Department recommended be imposed as a condition of release conditions if Mr Coleman was sentenced to a short term of imprisonment. Those conditions required Mr Coleman:

1. To undertake, engage in and complete a reintegration programme approved by your Probation Officer, for up to 12 hours per day, seven days a week. Whilst participating in the programme, to submit to being supervised and monitored as necessary to ensure your attendance at classes or participating in other activities associated with the programme. To abide by the rules of the programme to the satisfaction of your Probation Officer.

2. Not to loiter near public transportation hubs and/including bus-stops, train stations, and ferry terminals, unless you have the prior written permission of your managing probation officer.

3. Not to use any form of public transport unless you have the prior written permission of your managing probation officer.

4. To be at your approved address between the hours of 8.00PM and 8.00AM daily unless you have the prior written approval of a probation officer.

• [22] On 23 October 2019, the Judge sentenced Mr Coleman to two years’ intensive supervision on the conditions detailed in the report. He also expressly imposed special conditions as set out on page 9 of the pre-sentence report. These were the conditions just referred to.⁵

• [23] On 24 October 2019, the Court sealed amended orders for sentence of supervision. These orders referred to the sentence of two years’ intensive supervision imposed on 23 October 2019. Included with the orders were standard conditions for intensive supervision but, also under s 54F Sentencing Act, the four special conditions just referred to. These were set out just as they had been on page 9 of the pre-sentence report. Mr Coleman acknowledged receipt of the amended orders with the conditions

⁵ At [21].

referred to by signing the document at the Christchurch District Court on 24 October 2019.⁶

Analysis

Section 14(1A)Habeas Corpus Act

• [24] Relevantly, s 14 Habeas Corpus Act states:

14 Determination of applications

(1) If the defendant fails to establish that the detention of the detained person is lawful, the High Court must grant as a matter of right a writ of habeas corpus ordering the release of the detained person from detention.

(1A) Despite subsection (1), the High Court may refuse an application for the issue of the writ, without requiring the defendant to establish that the detention of the detained person is lawful, if the court is satisfied that—

...

(b) an application for the issue of a writ of habeas corpus is not the appropriate procedure for considering the allegations made by the applicant.

• [25] Mr Coleman is essentially seeking to use the Habeas Corpus procedure to challenge either the administration of his sentence and/or the conditions of his sentence. This is not the appropriate procedure to do so.

• [26] It was not submitted by his counsel that the copies of the relevant orders and conditions, which were produced with the submissions of counsel for the Department, were not true copies of the order, sentence and conditions to which Mr Coleman is subject.

• [27] Mr Coleman, in his application, in his affidavit and through counsel, accepted that he was subject to both the ISO and the sentence of intensive supervision, and the conditions attaching to both the sentence and the ISO.

6. There is a handwritten note on the document recording Mr Coleman’s address as being CRC, 13 Ferguson Avenue, Mairehau. I infer from this that Mr Coleman had been brought to the CRC immediately following his sentencing in the Waitakere Court and so signed the amended orders in Christchurch.

• [28] If Mr Coleman remains dissatisfied with the conditions of his placement at Tōruatanga, the rules or conditions to which he is subject at that particular residence, the procedures he could take to obtain a remedy for his grievances include:

(a) judicially reviewing the decision of the Department to place him there; or

(b) applying to the District Court pursuant to s 54K Sentencing Act to have his intensive supervision sentence varied or cancelled; or

(c) applying to the District Court for a variation of the ISO conditions pursuant to s 107FA Parole Act 2002.

• [29] In Manuel v Hawkes Bay Regional Prison, the Court of Appeal said:⁷

[49] A person who detains another can fairly be expected to establish, effectively on demand, the legal justification for the detention. In cases involving imprisonment or other statutory confinements, this will involve the production of a relevant warrant or warrants or other documents which provide the basis for the detention. We accept that apparently regular warrants (or other similar documents) will not always be a decisive answer to a habeas corpus application. But it will be a rare case, we think, where the habeas corpus procedures will permit the Court to inquire, into challenges on administrative law grounds to decisions which lie upstream of apparently regular warrants. This is particularly likely to be the case where the decision maker is not the detaining party. There may not be a bright line which distinguishes between those arguments which are available on habeas corpus applications and those which can only be deployed (if deployed at all) in judicial review proceedings. Nonetheless we see the test as coming down to whether the arguments in issue are properly susceptible to fair and sensible summary determination. If they are, they can be addressed in habeas corpus proceedings. If not, they must be held over for evaluation in judicial review proceedings. In such proceedings, an application for interim relief (including release from custody) would be dealt with urgently and the Judge dealing with such an application would be in a position to give directions as to the future conduct of the litigation to ensure prompt substantive determination.

• [30] In Wilson v Chief Executive, Department of Corrections, Mr Wilson was subject to an ESO.⁸ It was a condition that he reside in a Corrections property at Whanganui and not leave that district without the written approval of his probation officer. He asked the Minister of the Department to allow him to travel to the South Island to visit his ill mother. In the absence of a decision, Mr Wilson applied for a writ of habeas corpus to allow him to do so. Collins J accepted that other procedures were

⁷ Manuel v Superintendent of Hawkes Bay Regional Prison [2005] 1 NZLR 161

⁸ Wilson v Chief Executive, Department of Corrections [2018] NZHC 2322, [2018] NZAR 1357.

available to him, namely application for judicial review if his request was refused or an application to the Parole Board to vary the conditions of the ESO to specifically enable him to visit his mother. Collins J applied s 14(1A)(b) Habeas Corpus Act and held the application for the issue of a writ of habeas corpus was not the appropriate procedure for considering Mr Wilson’s concerns.

• [31] In Bennett v Superintendent, Rimutaka Prison, the Court of Appeal was concerned with the refusal of writs of habeas corpus on applications by two prisoners.⁹ One had objected to his being reclassified as high-medium security, resulting in his transfer to another prison. The other objected to his being placed in non-voluntary segregation.¹⁰ The Court of Appeal said “in our view, the appropriate way in which sentenced prisoners contest the lawfulness of the conditions of their incarceration is by application for judicial review”.

• [32] The Court of Appeal also stated:¹¹

It is also our view that a change to the conditions on which an inmate is being detained, either by segregation, reclassification or transfer to another property, does not create a new detention under an enactment for the purposes of s 23(1) of the Bill of Rights. Nor, if an inmate is unlawfully treated while detained, is the detention itself rendered unlawful. The remedy is the cessation of the unlawful element, not the cessation of the detention.

• [33] In this instance, Mr Coleman was not subject to a prison sentence. There was however no dispute that he is subject to intensive supervision. It was not suggested that he was not required to reside at Tōruatanga as a condition of that sentence. It was accepted that he was subject to a curfew which restrained him from leaving that place and that, while there, he was required to participate in any such programme as might be directed in accordance with the conditions of intensive supervision. Mr Coleman was attempting to use the habeas corpus writ procedure to challenge an element of the restraints or detention he was under pursuant to his sentence of intensive supervision in the same way as the two prisoners did in Bennett as to their prison sentence. As the Court of Appeal held was the case in Bennett, an appropriate procedure to do this is by judicial review.

⁹ Bennett v Superintendent, Rimutaka Prison ]2002] 1 NZLR 616 (CA).

¹⁰ At [65].

¹¹ At [62].

• [34] I accept also, as submitted for the Department, that Mr Coleman could apply under s 54K Sentencing Act to the District Court for an order cancelling or varying the conditions or sentence of intensive supervision on grounds referred to in s 54K(1).

• [35] Mr Coleman could also seek to have the conditions of the ISO varied through an application under s 107FA Parole Act 2002 to suspend that ISO which, if successful, would allow the District Court to, in effect, vary the conditions of the ISO.

• [36] Mr Coleman’s application was thus refused applying s 14(1A)(b) Habeas Corpus Act.

Detainment

• [37] The constraints Mr Coleman is under are such that he may not have been held to be in close custody in the sense discussed by the Court of Appeal in Drever v Auckland South Corrections Facility and Schuchardt v Commissioner of Police (Habeas Corpus: Bail Conditions).¹² There was however probably detainment in the sense which Collins J found to exist for Stuart Murray Wilson in Wilson v Chief Executive, Department of Corrections. It also fits within the Court of Appeal’s definition of detention, as recently discussed in its judgment in A v Ardern. There, the Court said:¹³

In order to constitute detention under the Act, restraint of a person’s liberty must entail more than intermittent or limited constraint upon his or her general right of movement ... Detention under the Act requires holding a person in close custody or in a similarly restrictive environment not shared by the public generally.

• [38] As earlier noted however, Ms Boshier, for the Department, accepted that Mr Coleman was subject to detainment.

¹² Drever v Auckland South Corrections Facility [2019] NZCA 346, [2019] NZAR 1519; and Schuchardt v Commissioner of Police (Habeas Corpus: Bail Conditions) [2017] NZAR 1689 (HC).

¹³ A v Ardern [2020] NZCA 144 at [20].

Lawfulness of the detainment

• [39] The essence of Mr Coleman’s complaint is that he is unlawfully detained because, when he is not subject to curfew and not participating in a programme as required by his probation officer, he is unlawfully restrained from leaving Tōruatanga and going where he wants.

• [40] It was however accepted that Mr Coleman is subject to the sentence of intensive supervision imposed by Judge Glubb on 23 October 2019, and the conditions attached to that sentence as recorded in the amended orders of 24 October 2019. One of the conditions required him to engage in a reintegration programme approved by his probation officer for up to 12 hours per day, seven days a week. He was also required to submit to being supervised and monitored as necessary to ensure his participation in the programme. Another condition of intensive supervision required Mr Coleman to be at his approved address between 8 pm and 8 am daily unless he had the prior written approval of a probation officer. The Judge made it clear that, with a sentence of supervision, Mr Coleman would be restrained by having to participate in a programme through being at Tōruatanga for up to 12 hours per day and be subject to a curfew for the other 12 hours. Mr Coleman acknowledged receipt of the amended orders which included the relevant conditions of the intensive supervision sentence. His counsel had asked for that sentence to be imposed. The initially approved residence was to be the CRC.

• [41] Mr Coleman had thus not been transferred to Christchurch as part of his sentence against his objections.

• [42] The evidence from Mr Houtos satisfies me that Mr Coleman is engaging in a rehabilitation programme through having to live at Tōruatanga. Mr Coleman’s needs are so basic and the risks to himself and others in the community so intense that the reintegration programme requires him to stay at Tōruatanga unless he can be accompanied on approved outings. The programme also allows the staff to interact with him in a way that might assist him to complete the most basic tasks that might, at some stage, enable him to live within the community.

• [43] Section 54G Sentencing Act states:

54G Special conditions related to programmes

A court may impose any special condition or conditions related to a programme if the court is satisfied that—

(a) there is a significant risk of further offending by the offender; and

(b) standard conditions alone would not adequately reduce that risk; and

(c) the offender requires a programme to reduce the likelihood of further offending by the offender through the rehabilitation and reintegration of the offender.

• [44] Pursuant to s 54H, for the purposes of s 54G, programme means, amongst other matters, “placement in the care of any appropriate person, persons, or agency approved by the chief executive of the Department of Corrections ...”. Mr Coleman has been placed in the care of the Department at Tōruatanga. Mr Coleman is thus subject to a programme in accordance with the conditions of his sentence of intensive supervision through having to reside at Tōruatanga. It is through that condition Mr Coleman is required to remain at Tōruatanga for 12 hours per day in addition to being subject to the curfews imposed as part of the ISO and intensive supervision sentence.

• [45] Furthermore, if Mr Coleman wished to dispute that determination, for reasons already discussed, that issue would appropriately be the subject of alternatively available proceedings rather than be pursued through a habeas corpus application.

• [46] The conditions of Mr Coleman’s ISO also required him to complete any programme to the satisfaction of his probation officer and programme provider. The evidence establishes that the programme provider is now the Department through its staff at Tōruatanga. Mr Coleman must thus meet and comply with the requirements the Department have made of him to remain at Tōruatanga, and not leave it without their approval and oversight.

• [47] I thus accept the submission for Ms Boshier, contrary to the submissions made for Mr Coleman, that the conditions of both the intensive supervision sentence and the ISO allow the staff at Tōruatanga to require Mr Coleman to stay within the confines of Tōruatanga 24 hours a day except for outings on terms approved by the staff. This

means that, to the extent he is detained at Tōruatanga, the Department has satisfied me that such detainment is lawful.

Summary

• [48] The application was dismissed, applying s 14(1A)(b) Habeas Corpus Act. I have also held that, to the extent Mr Coleman was detained, that detainment was lawful in accordance with both the ISO and intensive supervision sentence to which he was subject.

• [49] For all the above reasons, Mr Coleman’s application for a writ of habeas corpus was denied.

Solicitors:

M Starling, Barrister, Christchurch Raymond Donnelly & Co., Christchurch.