Judicial review – successful application for judicial review of decision made under s 62(3) of the Corrections Act 2004 – temporary removal from prison – compassionate leave – terminally ill mother

Rewiri v R [2023] NZHC 1254 per Tahana J

Adrian Rewiri is incarcerated at Auckland South Corrections Facility (ASCF) in respect of a sentence of seven years and nine months for drug-related offending. His sentence ends 28 January 2027. Rewiri also faces active charges of murder and being an accessory to murder.

Rewiri applied to judicially review a refusal by ASCF’s manager, Serco New Zealand, to grant his application for temporary removal to visit his terminally ill mother at her home in Tokoroa.

The acting prison director declined the application on the basis of:

• the recommendations of the case management and intelligence teams;
• Rewiri’s active charges and history of violating release privileges (two prior attempts to escape custody in 2006 and 2012);
• the proposed private residence that was not secure from the point of view of controlling entry of others (in contrast to a hospital or hospice);
• Rewiri’s recent nomination as the president of the “Bounds” faction of the Mongrel Mob;
• a recent violent incident involving Rewiri and other gang members;
• Rewiri’s involvement in five misconducts and 11 incidents; and
• his23 file notes related to compliance.

Rewiri submitted that while he was told the application had been declined, Serco did not give reasons for its decision. Rewiri further indicated that “privacy” was provided by Serco as the reason for his counsel’s queries remaining unanswered.

Tahana J noted counsel is entitled to request a response on behalf of a client and the delay in providing reasons was unsatisfactory in circumstances where time was of the essence.

Serco accepted while there is no express statutory duty to give reasons, as a matter of natural justice in the present context there ought to be reasons for a decision and those reasons ought to be made available, at least on request.

Tahana J noted Serco’s policy governing temporary removal, which stated, “If the application is denied, the prisoner is advised of any reasons for the refusal”.Prisoners have a legitimate expectation that Serco will act in accordance with its policy and reasons for the refusal should have been provided to Rewiri, particularly where his mother is terminally ill.

Rewiri submitted the court should not read in reasons that are not included within Serco’s recorded reasons and that the prison director failed to consider the factors set out in s 62(3)(b)(c) and (d) of the Corrections Act 2004.

Tahana J noted that while the reasons did not expressly refer to the above factors, they did record relevant factors, namely whether there would be an undue risk to the safety of the community, including Rewiri’s history of violating release privileges and involvement in a recent violent incident.

Serco submitted it did consider the extent to which Rewiri should be supervised or monitored by considering his previous escape history and the fact he would be visiting a private residence.

Tahana J noted that, notwithstanding the above, the prison director appeared to have not considered the amount of security that might be required. The judge accepted Rewiri’s submission that the extent of any security is relevant to the potential risk to safety.

Serco submitted s 63(3)(c) was irrelevant. Rewiri submitted this section as a mandatory consideration and could not be ignored.

Tahana J observed the section is not irrelevant to prisoners who have longer to serve and may be relevant to Rewiri’s future reintegration into the community. Accordingly, she found the prison director’s failure to consider this section was an error.

The prison director did not consider s 63(3)(d). Serco submitted this factor can count only against Rewiri’s removal. Tahana J disagreed.

Held: The prison director erred in declining the application. He was required to have regard to the matters set out in s 63(3)(b)(c) and (d) and failed to do so. Decision remitted to Serco for reconsideration on an urgent basis, within 24 hours.

Hannah Hellyer is an Auckland criminal defence barrister and a member of the ADLS Criminal Law Committee and Parole Law Committee.

Rewiri v R [2023] NZHC 1254