15 Feb 2017

Murderer gets apology over security classification

7:56 am on 15 February 2017

Convicted child sex offender and murderer Phillip John Smith has received an apology from Corrections after mistakes were made over his security classification.

Phillip John Smith

Phillip John Smith Photo: RNZ

Smith brought legal action against prison authorities, challenging the security review process that saw him upgraded from a minimum security prisoner to a maximum security prisoner after his escape to Brazil.

Smith is serving a life sentence for murdering the father of a boy he was sexually abusing.

He argued in court that the Corrections Department failed to follow its own policies when it determined he was a maximum security prisoner.

He was joined in the action by another prisoner, Nikki Roper, who is serving a life sentence for murdering his former girlfriend Alexsis Tovizi in 2010.

The lawyer for the attorney-general, Vicki McCall, told the High Court in Auckland that even if there were mistakes in the process, Smith and Roper would still be classified as maximum security prisoners.

Prisoners are entitled to have their security classifications reviewed every six months.

Authorities take into account things such as the seriousness of a prisoner's offence, the length of their sentence, whether they have escaped in the past, if they have been violent and their mental health.

It is a points-based system but it can be overriden by a senior manager. Prisoners can also ask for a review.

Security classifications affect the day-to-day lives of prisoners - dictating whether they can take part in rehabitative programmes, how many hours they can spend out of their cells and how many visits they can have.

In her decision, released to RNZ, Justice Katz found there had been mistakes in the process.

For example, Smith was penalised in his security assessment for being charged with escaping custody but at the time of the review he had not yet been formally charged.

But Justice Katz said the points-based system was not designed to cope with prisoners like Smith, who was described by a senior prison manager as intelligent, manipulative and coercive.

Prison staff inflated Smith's points to ensure he reached the threshold for maximum security prisoners when they should have overridden the system.

Justice Katz also criticised Corrections for failing to review Smith's security classification every six months.

Late reviews resulted in a potential security risk to the public and was unfair to prisoners, she said.

She rejected Smith's application to have the security classifications quashed outright, but did make a declaration.

It was important to hold Corrections to account and provide guidance for the future, she said.

"Declining relief in such circumstances would mean that Corrections would effectively be free of court oversight in respect of the security classification review process, no matter how egregious any procedural errors might be."

She found there had been breaches of natural justice and statutory requirements.

"I have found that there were a number of procedural shortcomings in relation to the processes that were followed for Mr Smith and, to a lesser extent, Mr Roper"

In a separate bid, Smith asked the court to review Corrections' decision to terminate his work as a messman, which included serving breakfast, dinner and hot drinks and collecting laundry from maximum security prisoners.

He was paid $14 a week, $2 of which went to the rental of his television.

In March 2016, Smith was told by a senior prison officer that he had lost his job to allow him to concentrate on preparing for his court cases.

But prison managers said the real reason was that Smith was no longer deemed safe, because of his ability to manipulate other prisoners, and his job could help him to do that.

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