WONG v NZ PAROLE BOARD [2016] NZHC 1401

WONG v NZ PAROLE BOARD [2016] NZHC 1401 [24 June 2016]IN THE HIGH COURT OF NEW ZEALANDAUCKLAND REGISTRYCIV-2015-404-003095[2016] NZHC 1401BETWEEN ALEX KWONG WONGApplicantAND NEW ZEALAND PAROLE BOARDRespondentHearing: 2 June 2016Appearances: F C Deliu for ApplicantD J Perkins as Counsel Assisting the CourtJudgment: 24 June 2016JUDGMENT OF COURTNEY JThis judgment was delivered by Justice Courtneyon 24 June 2016 at 3.30 pmpursuant to R 11.5 of the High Court RulesRegistrar / Deputy RegistrarDate..Introduction[1] Alex Wong was convicted in 2009 on charges of importing methamphetamine and possessing the drug for supply. He is serving a term of 14- and-a-half years' imprisonment. Mr Wong became eligible for parole in October 2014 but it was refused.1 His review application of that decision failed.2 In early 2015 he applied unsuccessfully to be considered for parole early.3 Later that year he was refused parole a second time.4[2] Mr Wong seeks judicial review of each of these decisions, even though his counsel, Mr Deliu, acknowledges that the effect of the first three decisions is spent and no meaningful relief could be granted in respect of them. However, these earlier decisions provide vital context against which to consider the most recent decision. The appropriate course is to summarily dismiss the application to review the earlier decisions but acknowledge their relevance as context for the fourth decision.[3] The principles on which this Court can judicially review a decision of the Parole Board are well established and were helpfully summarised by Gendall J inEricson v NZ Parole Board:5The Court can only make an assessment of whether a Board's decision waslawful and challenge may only be on the usual judicial review principles, namely that the Board acted unlawfully because it failed to take into account all relevant considerations, took into account irrelevant considerations, arrived at its decision in breach of the principles of natural justice or that its decision was so unreasonable as to be reviewable.[4] The grounds for review of the fourth decision are that the Parole Board:(a) Acted unreasonably and/or irrationally in requiring Mr Wong to complete a Drug Treatment Unit (DTU) programme before being granted parole;1 Decision of Parole Board dated 8 October 2014.2 Review decision dated 26 November 2014.3 Decision of Parole Board dated 22 April 2015.4 Decision of Parole Board dated 17 September 2015.5 Ericson v NZ Parole Board HC Wellington CIV-2010-485-001912, 2 March 2011 at [13].(b) Took an irrelevant consideration into account, namely the views of Mr Wong's parents as to Mr Wong's guilt;(c) Failed to consider a relevant consideration, namely Mr Wong'sROC*ROL score;(d) Failed to give reasons for finding that Mr Wong posed an undue risk to the public;(e) Did not give Mr Wong an opportunity to respond to its view that his acceptance of responsibility for the offending lacked sincerity;(f) Acted unreasonably in concluding that Mr Wong had existing criminal associations;(g) Acted ultra vires as a result of the decision being given by one panel member alone without deliberation by the panel as a whole. To properly consider this ground I would need a report from the panel regarding the hearing. Mr Deliu indicated that this ground will only be pursued (and accordingly a report sought) if all of the other grounds fail.Statutory context[5] The Parole Board must make its decisions in accordance with the principles set out in s 7 of the Parole Act 2002 which relevantly provides that:(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 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;(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.[6] The Act makes it clear, however, that no prisoner has an entitlement to parole and that, in any event, the Parole Board may only grant parole if satisfied that he or she will not pose an undue risk to the safety of the community. Section 28 relevantly provides that:(1AA) In deciding whether or not to release an offender on parole, the Board must bear in mind that the offender has no entitlement to be released on parole and, in particular, that neither the offender's eligibility for release on parole nor anything else in this Act or any other enactment confers such an entitlement.(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.The four decisions[7] Because of the relevance of the earlier decisions to the decision under review, it is convenient to set out the relevant parts of each decision.First parole hearing: 8 October 2014[8] The Board recorded the details of Mr Wong's conviction and sentence and noted his denial at the time of sentencing and the sentencing Judge's view thatMr Wong had "an overwhelming sense of entitlement and an offending-supportiveattitude, gambling issues and criminal associates".[9] The Board went on to make the following statements that are relevant to the present proceeding:Mr Wong has a low ROC*ROL score of 0.1748 and accordingly he is ineligible to attend any prison-based intervention. He has participated in a number of self-improvement courses to enhance his English and he was able to converse satisfactorily with the Board today.[10] The Board noted the submissions made by Mr Wong's counsel, including thefact that he was not dependent on drugs and that his parents (who were present at the hearing) were his main source of support and would provide a pro-social supportive environment should he be released. The Board continued:Mr Wong has maintained his denial of responsibility for his index offending. He also denied responsibility for the kidnapping charge that led to his nineyear sentence previously As far as the Board is concerned his denial of responsibility for offending does not increase his risk. It does however make it more difficult for the Board to assess where the risk may lie and how it isbest mitigated, particularly in light of the sentencing Judge's comments. In that regard however, the Board is of the view that Mr Wong needs to attend counselling to deal with his gambling behaviour. There were indications before us today that he minimises the extent of his gambling when compared with the comments made by the Court of Appeal as to the extent of his gambling activities. Regardless, there is a demonstrable need for Mr Wong to undertake counselling directed at his gambling.In the course of the hearing the Board endeavoured to learn more from Mr Wong about his associates. The attempt proved largely fruitless. His disclosure was minimal and not enlightening. From the decisions of the High Court and Court of Appeal, it is apparent (though he disputes it) that he had contact with others at a very high level in a major importation of a class A controlled drug. At the very least, the Board would need to be satisfied that Mr Wong had put those connections behind him to reduce his risk of re- offending.(emphasis added)[11] It concluded:The Board is not satisfied that if released Mr Wong would not pose an undue risk to the safety of the community. Indeed, we are far from satisfied that Mr Wong will be able to maintain his distance from others whom he has, in terms of court decisions, been criminally involved. We are also of the view that he needs to attend to participate in counselling to deal with his gambling behaviour.The Board also notes the recommendation of the psychologist that should Mr Wong change his approach to accepting responsibility for his index offending sufficiently to enable him to engage in the drug treatment unitprogramme, then he should do so We note Mr and Mrs Huang's minimal grasp of English. No doubt that willbe taken into account when the necessary inquiries are made by Community Probation.Review of the first decision: 26 November 2014[12] Mr Wong sought to review the Board's decision. The grounds included that it had based its decision on erroneous or irrelevant information that was material to the decision reached.6 In particular, Mr Wong challenged the Board's view thatcounselling for gambling was necessary, its implicit requirement that he participate in a DTU programme, its doubt over whether Mr Wong had or could put criminal associations behind him and its failure to sufficiently take into account the supportoffered by Mr Wong's parents. But the reviewer considered that the application amounted to a general challenge to the merits of the decision and rejected all of the grounds advanced.[13] In relation to the Board's reference to a DTU programme the reviewer did not consider that this had been material to the decision and, in any event, was not an error, given that it simply reflected the psychologist's recommendation.[14] The reviewer also considered that the Board was entitled to consider whether Mr Wong had put his criminal associations behind him; this factor had been signalled as a matter of concern in the pre-sentence report, sentencing notes and Court ofAppeal's decision. The reviewer did not, however, address the submission made byMr Wong's counsel that he had been on bail for some years before finally being6 Parole Act 2002, s 67(3)(d).convicted and that there was no evidence that either during that time or during his years in prison he had maintained any criminal associations.Application to be considered for parole earlier than scheduled: 22 April 2015[15] Mr Wong was not scheduled to be considered for parole again until September 2015. However, the Board can consider an offender for release on parole at an earlier time and Mr Wong applied in April 2015 to be considered early.7 The Board noted that the application was based on compassionate grounds; Mr Wong'sparents were elderly, suffering isolation and psychological difficulties, wereincreasingly frail and would benefit from Mr Wong's support. The Board rejected those matters as a basis for releasing a prisoner on parole and observed that:Mr Wong has a substantial and serious history of offending in New Zealand. He has not addressed that. He was waitlisted to take the DTU but was said to have had insufficient English to be able to do so. We understand that he is now waitlisted to take an ESOL course and would urge him to engage in it.The bottom line is that without undertaking some form of rehabilitation in custody and demonstrating that he can put into practice the lessons learned, and without a strong release and reintegration plan which mitigates his risk, which the current one does not, Mr Wong cannot safely be released.The second parole hearing: 17 September 2015[16] In an extremely brief decision the Board declined parole with the direction that he would be seen in the September Board hearing in 2016:When Mr Wong last saw the Board in 2014, it was recorded he maintained his denials to the offending so it was difficult to assess his risk. The Board then supported he complete the gambling counselling and that any future Board would need to be satisfied he had put his high level drug connections behind him and that if he were to accept responsibility for his offending he should undertake the DTU. Today Mr Wong, after close examination by the Board, says he accepts responsibility for the offending. The Board got the impression he may only be saying that because he is aware that until he acknowledges offending there will be no programmes and any release will be further delayed.In any event, now that he at least says he acknowledges the offending, we would support his undertaking the programmes he is sentenced planned for. It was apparent from his interaction with his parents that they say he is 100 per cent innocent. That is of concern given his release proposal is focused on returning to their address. After completing the DTU we would support7 Parole Act 2002, s 26.Mr Wong undertaking some reintegration particularly where his releaseproposal is to his parents' address. Certainly they appear to be collusive rather than pro-social in their view that he is innocent. This will have to beconfronted at some point before this man's release Clearly Mr Wong continues to present an undue risk to the safety of the community.Summary of the decisions[17] In terms of what the Board identified as prerequisites to release:(a) At the first substantive hearing: counselling regarding gambling and to be satisfied that Mr Wong has left his criminal connections behind. It noted the psychologist's recommendation regarding a DTU programme if Mr Wong acknowledged his offending. It noted his proficiency in English.(b) At the application for early consideration: "some form of rehabilitation in custody" (unspecified). It noted that he was waitlisted for an ESOL course in preparation for a DTU programme.(c) At the second substantive hearing: completion of the DTU programme. It merely noted the earlier Board's requirements fourcounselling regarding gambling and to be satisfied the criminal connections were no longer a problem but did not identify those as current requirements.The grounds of reviewRequirement for completion of DTU programme[18] Mr Deliu argued that the Parole Board had required Mr Wong to complete a DTU prior to being granted parole and that no reasonable decision maker would impose such a requirement or, alternatively, that the Parole Board acted irrationally in imposing the requirement.[19] I agree that, although the decision of 17 September 2014 did not directly require the DTU programme to be completed, it had that effect by making it clear that the Parole Board would not consider release until the DTU had been completed.[20] Further, although there was no reference to the ESOL course the effect of that decision was that Mr Wong would not be considered for release until he had completed both the English language and the DTU courses, given his earlier exclusion from the DTU programme for his (self-reported) lack of proficiency. In this regard I note that there are conflicting reports over Mr Wong's proficiency inEnglish, with both the Probation Service and the Board being satisfied at the time of the first hearing that he was proficient. It is inexplicable that the first panel shouldhave been satisfied as to Mr Wong's proficiency but not the later panels.[21] Mr Wong's complaint is that the effective requirement that he complete aDTU programme was made against the background of him never having been a drug user and that this fact was not considered; instead the Board simply followed the approach taken by the previous panels whose decisions were, themselves, flawed. Mr Deliu argued that the idea of Mr Wong having a rehabilitative need in relation to drug abuse was identified in the first decision without any critical analysis and wrongly carried through to the second and third decisions without any consideration as to whether it was appropriate. By the time the Board came to make its decision in September 2015 it failed to properly consider the issue.[22] To understand this complaint it is necessary to go back to the reports prepared for the purposes of the first parole hearing in 2014. At that time the Parole Board had before it a psychological report dated 11 August 2014 and a full parole assessment report dated 27 August 2014. In the psychological report thepsychologist noted Mr Wong's claim that he had never had an issue with substanceabuse and that this claim was supported by the fact that he had been twice tested for IDU (identified drug user) status in prison with negative results. The psychologist concluded that, due to this apparent low level of motivation to participate in rehabilitative programmes as a result of his proclaimed innocence, it would not be the best use of resources to recommend further treatment at the time, but that oncehis appeal process had been finalised, and in the event that he accepted responsibility for the offending:It is recommended that Mr Wong complete a DTU programme in order to reinforce his ideas that drug importation and the supply of drugs is potentially harmful to many people.[23] However, the full parole assessment report prepared only a few weeks later,which specifically addressed Mr Wong's rehabilitative needs, recorded that Mr Wonghad been assessed as being at low risk of re-offending and did not meet the criteria for any rehabilitation programmes. The report specifically noted Mr Wong'sassertion that he did not and had never used drugs. In the release proposal the probation officer did not comment on the psychologist's recommendation but simply recommended an assessment to confirm Mr Wong's assertion that substance abusewas not an issue.[24] Interestingly, both the psychologist and the probation officer who preparedthe reports in August 2014 noted Mr Wong's proficiency in English.[25] The divergence in the recommendations between the psychologist and the Probation Service was an obvious and notable feature of Mr Wong's presentation when he first became eligible for parole. Yet that was not identified in the Board'sdecision of 8 October 2014 and, although the Board did not impose any requirement regarding a DTU programme, it implicitly accepted the psychologist'srecommendation without any reference to or resolution of the conflict between the reports.[26] When the Board dismissed Mr Wong's application to be considered for paroleearlier than scheduled in April 2015, it implicitly confirmed the earlier view that a DTU programme should be a prerequisite to release. When the matter arose for fresh assessment in September 2015 the Board did not identify the earlier conflict between the psychologist's report and the parole assessment report and did not consider the Probation Service's recommendation that there be an assessment toconfirm whether substance abuse was an issue.[27] Given the apparent acceptance that Mr Wong is not and never has been a drug user, was assessed as being at low risk of re-offending and had previously been regarded by the Probation Service as not requiring such a programme, the conflict ought to have been resolved prior to the Board indicating that participation in a DTU programme was a prerequisite to parole. I therefore agree that the Board's decisionthat it would not support release until Mr Wong had completed a DTU programme was one made without taking into account relevant considerations.The views of Mr Wong's parents[28] The Board was concerned about the fact that Mr Wong's parents still believed him to be innocent, even following Mr Wong's acknowledgement of the offending. Mr Deliu submitted that Mr Wong's parents' beliefs were completely irrelevant.[29] I do not accept that this is so. It is apparent from the probation reports thatMr Wong's parents comprise his only social support. It is they with whom he would live upon release. Their views as to their son's offending are clearly relevant and theParole Board was entitled to take them into account.Genuineness of Mr Wong's acknowledgement of offending[30] From the time of Mr Wong's sentencing his refusal to acknowledge hisoffending has been noted as a barrier to his rehabilitation. At the second parole hearing he acknowledged that offending. The Parole Board was doubtful about his sincerity and Mr Deliu submitted that it was unreasonable to reach this view and a breach of natural justice not to allow Mr Wong the opportunity to address theBoard's concerns over the sincerity of his acknowledgement.[31] I do not, however, see that the Board's reservations about Mr Wong'ssincerity were material to the decision they made. Reading the decision, it is evident that those reservations had no effect on the ultimate decision, but were simply mentioned in passing, with the decision being a forward-looking one based on the fact of the acknowledgement.Failure to take into account the RoC*RoL score[32] It was common ground that Mr Wong's RoC*RoL score was low and indicated a low risk of re-offending. That information was before the Board. Mr Perkins, counsel assisting the Court, correctly pointed out that the fact that it was not mentioned specifically does not mean that it was ignored. I do not consider that the failure to specifically identify this piece of information means that there was any procedural error.Failing to give reasons[33] The Board's decision was admittedly brief. However, it is evident that the Board's conclusion that Mr Wong continued to present an undue risk to the community was based on the concerns outlined in the preceding paragraphs. These included (implicitly) that the Board was not satisfied he had put high-level drug connections behind him, that the views of his parents gave rise to concerns, and that Mr Wong had not completed the DTU programme. The fact that (as I have found) at least one of those conclusions was reached in error does not mean that reasons were not given.The Board acted ultra vires[34] This ground turned solely on the audio record of the proceeding which Mr Deliu asserted showed that the decision was made without deliberation by the panel and, instead, made solely by the convener, Judge Paul, within 45 seconds of the hearing being finished. The audio record was inadequate to draw any conclusion regarding these assertions. However, having reached the view I have in relation to the DTU requirement I do not need to consider this ground further.Other aspects of the decision[35] Mr Deliu raised concerns about the fact that the Board's decision referred totwo matters that had been identified in the earlier decisions but did not go on to make any recommendation regarding them. These are not matters that affect the application for review but Mr Wong is worried that, in any further decision, those concerns might be revisited so that he can never be sure what the Board is reallyconcerned about and what the real barriers to release are. Of course, no prisoner has any entitlement to parole. But the fairness of the process is undermined if theBoard's reasons for refusing parole continue to change without any apparent changein the offender's circumstances. I therefore note the two matters that were initially considered barriers to parole being granted were not required in the latest decision.[36] The first is the issue of Mr Wong's criminal connections. In its decision the Board merely referred to the concern that had been expressed in 2014 as to the need to be satisfied that Mr Wong had put his high-level drug connections behind him. In its latest decision it merely referred back to that earlier decision but made no other comment, presumably indicating that this concern no longer existed. Mr Deliu pointed out that Mr Wong has now been in prison for nearly a decade and that there was no evidence before the Parole Board either in 2014 or 2015 that he had maintained any criminal associations while in prison.[37] The second issue is Mr Wong's history of gambling. In 2014 the Board was sufficiently concerned about this to express the view that he needed to participate in counselling to deal with that behaviour. But that concern was not mentioned in the 2015 hearing. Further, it was not noted in the parole assessment report in relation to re-integrative needs, suggesting that the Probation Service did not regard it as a barrier to release.Result[38] I consider that the decision to require Mr Wong to participate in a DTUprogramme before he could secure the Board's support for parole was made withouttaking into account two relevant considerations, namely the Probation Service'sassessment that there was no need for such rehabilitation and the lack of any evidence that Mr Wong had used drugs. This was all the more so given that requiring participation in a DTU programme effectively required completion of anESOL course, the necessity for which was doubtful having regard to the Board's andthe Probation Service's previous assessments.[39] I find that the Board acted unreasonably in reaching its decision as a result ofthis error. I make an order setting aside the Board's decision of 17 September 2015and direct that the Board reconsider whether Mr Wong should be released on parole.[40] The application in relation to the previous three decisions is dismissed.____________________P Courtney J