WONG v THE NEW ZEALAND PAROLE BOARD [2017] NZHC 2098

WONG v THE NEW ZEALAND PAROLE BOARD [2017] NZHC 2098 [30 August 2017]IN THE HIGH COURT OF NEW ZEALANDAUCKLAND REGISTRYCIV-2016-404-2629[2017] NZHC 2098UNDER The Judicature Amendment Act 1972IN THE MATTER of an Application for Judicial Review of aParole DecisionBETWEEN ALEX KWONG WONGPlaintiffAND THE NEW ZEALAND PAROLE BOARDDefendantHearing: 28 April 2017Counsel: D D Zhang and R Zhao for plaintiffF M R Cooke QC and V J Owen for respondentJudgment: 30 August 2017JUDGMENT OF KATZ J[Application for judicial review]This judgment was delivered by me on 30 August 2017 at 3:00pmPursuant to Rule 11.5 High Court RulesRegistrar/Deputy RegistrarSolicitors: Amicus Lawyers, AucklandV J Owen, AucklandCounsel: F M R Cooke QC, Thorndon Chambers, WellingtonIntroduction[1] Alex Kwong Wong was convicted on retrial of one charge of importing 8.9 kilograms of methamphetamine and another of possessing it for supply. Potter J sentenced Mr Wong to fourteen-and-a-half years' imprisonment, with a minimum period of imprisonment of seven-and-a-half years.1 His end sentence date is 11 October 2021.[2] Mr Wong became eligible for parole in October 2014. He was denied parole at his first hearing before the Parole Board that month. He has also been denied parole at a number of subsequent hearings. In 2016 he successfully judicially reviewed the Parole Board.2 Courtney J held that the Board's decision requiringMr Wong to participate in a Drug Treatment Unit programme before he could secure its support for parole was made without taking into account two relevant considerations. First, the probation service had assessed that there was no need for such rehabilitation. Second, there was no evidence that Mr Wong had ever used drugs. Courtney J set aside the Board's September 2015 decision declining to grantMr Wong parole, and directed a reconsideration.3[3] A further parole hearing, before a differently constituted panel, took place on 24 August 2016. In a reserved decision, dated 29 August 2016, the Board again denied Mr Wong parole. Mr Wong now seeks to judicially review that decision.[4] I will briefly summarise the decision under review, the statutory framework, and the legal principles relating to review of parole decisions, before turning to consider each of Mr Wong's grounds of challenge.The Parole Board's decision of 29 August 2016[5] In the decision under review, the Board noted that Mr Wong'smethamphetamine importation and possession for supply offending involved very serious importation of methamphetamine from China in about July 2004. At his sentencing, Potter J found that Mr Wong had played a crucial role in the1 R v Wong HC Auckland CRI-2005-004-15296, 1 May 2009 at [62]-[63].2 Wong v New Zealand Parole Board [2016] NZHC 1401.3 At [38]-[39].importation.4 His pre-sentence report noted his "overwhelming sense of entitlement" and "offending supportive attitude, gambling issues and criminalassociates" as factors contributing to an increased risk of re-offending. The report also noted that Mr Wong maintained he was innocent of the offending, and as a result he was unmotivated to address the factors that had led to his offending.[6] The Board noted that Mr Wong had a prior conviction for kidnapping forransom, for which he had been sentenced to nine years' imprisonment in 1994.Mr Wong had maintained for many years that he was innocent of that crime. Indeed the first time he acknowledged he was guilty of the kidnapping appears to have been at his August 2016 parole hearing. At that hearing Mr Wong also (belatedly) acknowledged his guilt for the drug offending he was convicted of, and for other drug offending (in May 2004) in respect of which he had been acquitted at trial.[7] The Board was concerned, however, that Mr Wong was only claiming to now accept responsibility for his offending in order to improve his prospects of release. Itnoted that his answers to the Board's questioning were often inconsistent andimplausible. In the Board's view, Mr Wong continued to minimise his involvementand did not demonstrate true insight or contrition. His minimisation was such that in reality it amounted to a denial of his drug offending. The Board drew a "compelling inference" that Mr Wong's evasions, denials and minimisation would inevitably havebeen, and may continue to be, made to his parents. This was significant because Mr Wong's proposed release plan was that he would live with his parents.[8] A psychologist's report before the Board noted that Mr Wong's risk ofgeneral re-offending was low, as determined by his RoC*RoI score (a statistical risk assessment tool used by the Department of Corrections). However, the report noted that his risk of involvement in drug offending was difficult to establish, because research indicates that a main driver of drug trafficking lies within the need for material gain. This suggests that Mr Wong's risk of further drug offending could be exacerbated should he struggle to find employment and yet require money to feed his gambling behaviour. The psychologist was also concerned that Mr Wong's ongoing4 Above n 1, at [38].denial of his offending effectively denied him access to any opportunities to address his treatment needs.[9] Against this background, the Board's concerns regarding Mr Wong included his involvement in a serious kidnapping for ransom; his subsequent involvement in major international drug offending (shortly after completion of parole for the kidnapping); his propensity to commit serious crimes together with other people; his minimisation and ongoing denials of his offending; his lack of insight, acceptance, understanding and genuine acknowledgement of his criminogenic propensities; and his previous denials and deceptions to secure his parents' collusion. The latter factor, together with the age and frail health of his parents, led the Board to conclude thathis parents' ability to manage his risk in the community would be very limited.[10] Ultimately, the Board concluded that:44. His lack of appreciation of why he offended was displayed to us when he said his first crime was because he was "naïve and young", and his later crimes were because he was "silly", but he had "grown up now and are seeing things differently". He was 35 when the drug crimes occurred.45. Counsel argued that Mr Wong's risk has "not increased" whilst in prison. However, the issue is whether it has reduced to less than"undue". But he has done little or nothing to reduce his risk, described in the pre-sentence report, as high.46. His crimes reveal a sophisticated determination to use or liaise with criminal associates and engage in major crime to obtain significant financial gain. His lack of appreciation, and genuine understanding of his criminal attitudes that led to his offending, is such that some treatment to address these features is indicative. It may well be with the assistance of intensive one to one psychological counselling through the Department of Corrections.47. In our judgment his risk remains undue. Further, his safety and release plan is inadequate. We have referred to the difficulty of a Residential Restrictions condition (which would have to be imposed) and the barriers to his parents being able to maintain oversight of their son, awareness of his risks, and cognisance of warning signs. We are of the view that they may continue to be collusive.48. We have reached the conclusion that at present, untreated for his criminal (and dishonest) propensities, he could not be safely managed in the community on parole for the remaining five years of his sentence. We are satisfied by a wide margin that Mr Wong's riskto the community of offending for financial gain if now released is undue and outweighs his personal interest in requiring his liberty.49. For the foregoing reasons parole is declined. He needs rehabilitative treatment in some form or other, and if not admitted to a formal programme then at least one to one intensive psychological counselling is indicated to address his criminogenic needs. Thereafter, he may move into reintegration activities if approved by the Department of Corrections. This will enable any gains that he has made to be demonstrated across various settings and reintegration meetings with case manager, probation officer, family and other supporters, to occur in formulating a solid and effective safety and release plan. That, however, may be some time off as treatment first must occur.50. We determine that he should be seen in November 2017 as there is very much work ahead for Mr Wong in order to satisfy us that he would no longer be an undue risk.The statutory scheme and judicial review of Parole Board decisionsParole – the statutory framework[11] The Parole Act 2002 ("Act") has detailed provisions describing exactly when a prisoner is entitled to be considered for parole.5 It also has detailed machinery regulating the procedure which must be followed when considering an offender for parole. The Act prescribes how the process is commenced,6 the type of hearing that will take place,7 the roles of victims,8 and the information that should be provided to the offender.9[12] 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.10 An offender must not, however, be detained any longer than is consistent with community safety.115 Sections 20-32.6 Section 42.7 Section 49.8 Sections 44 and 50A-50B.9 Sections 13 and 43.10 Section 28(1AA).11 Section 7(2)(a).[13] The Board may only direct that an offender be released on parole if it is satisfied on reasonable grounds that the offender, if released on parole, will not posean "undue risk" to the safety of the community or any person or class of personswithin the remaining term of their sentence, having regard to:12(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.[14] Whether an offender poses an "undue risk" depends on the likelihood offurther offending, and on the nature and seriousness of any likely subsequent offending.13 The Act requires that "the paramount consideration for the Board in every case is the safety of the community".14[15] The Act also includes detailed provisions setting out how decisions of the Board are to be appealed and reviewed.15 There is a right of appeal to the High Court in respect of three types of orders only: orders to postpone considering parole; orders that an offender not be released until his statutory release date; and final recall orders.16 There is a further right of appeal of such decisions to the Court of Appeal.17 For decisions in respect of which there is no right of appeal, there is a right of review. This must be conducted either by the chairperson of the Board, or by a panel convenor to whom the chairperson delegates the conduct of the review (usually a District Court Judge).18[16] There is accordingly no right of appeal in respect of the decision under review. Rather, the Act provides for a statutory review of such decisions. Mr Wong has exercised his right to seek such a review. The result was confirmation of theBoard's decision.12 Section 28(2).13 Section 7(3).14 Section 7(1).15 Sections 67-70.16 Section 68.17 Section 70.18 Section 67.Judicial review of Parole Board decisions[17] There is a restricted role for judicial review in the parole context.19 A key reason for the more limited approach to judicial review in this context is the highly prescriptive nature of the Act, which includes detailed procedural provisions relating to parole decision-making. As outlined above, parole legislation has a strong public protection focus. It vests decision-making in a board with specialist experience and expertise. As Gendall J observed in Ericson v New Zealand Parole Board:20[14] The Courts do not and cannot sit as appellate bodies from decisions lawfully made by the Board and the Court cannot exercise a jurisdiction which by law is vested in the Parole Board. The recent Court of Appeal decision in Miller v New Zealand Parole Board made this clear when dismissing broad challenges to the parole regime based upon domestic and international human rights instruments. The assessment whether the decision was lawful or not cannot be taken as an opportunity to revisit the application for parole.[18] Once the Board makes the risk assessment the Act requires, there is a relatively limited ability to challenge it in judicial review proceedings. There is no provision for a full merits-based review by this Court.[19] I now turn to consider in turn the various grounds of challenge to the decision under review advanced on behalf of Mr Wong.Reconsideration lacked bona fides[20] Mr Wong's first ground of challenge is that:It was arguably contemptuous for the defendant to not even have a copy of[Courtney J's decision] present at the hearing (for the panel to consider) and/or in any event this shows the reconsideration was conducted as window dressing or lip service.(Emphasis as per original).[21] Mr Zhang's argument on behalf of Mr Wong, in essence, was that the Board'sreconsideration lacked bona fides because the Board members did not have a copy ofCourtney J's decision with them at the hearing. When the Board was asked whether19 Ericson v New Zealand Parole Board HC Wellington CIV-2010-485-1912, 2 March 2011 at [13]-[14]; and Edmonds v New Zealand Parole Board [2015] NZHC 386 at [27]-[28].20 Above n 19.it had a copy of that decision, the Chair responded along the lines that although the decision was relevant to why a rehearing was taking place, it was not relevant to the assessment of whether Mr Wong currently posed an undue risk to the safety of the community, as that was a matter for the Board.[22] It is apparent from the transcript of the hearing, however, that the Board had read and considered the decision. Further, counsel for Mr Wong had a copy of the decision available to give to the Board if there was anything in it that she expressly wished to refer to. The Board indicated it was happy to receive any submissionsrelating to Courtney J's decision, provided they were relevant to the task it had toundertake.[23] I do not accept that the fact that the Board did not have a copy of CourtneyJ's decision with them at the hearing indicates any lack of bona fides on the part of the Board or that their reconsideration was merely "window dressing".Irrationality/legitimate expectation[24] Mr Zhang's second argument was that it was irrational for the Board: to (yet again) shift the goalposts as to why [Mr Wong] could not be granted parole, anyway not making it clear what he had to do and/or regardless doing so without advanced notice or an opportunity to file supplementary submissions or evidence in breach of due process.(Emphasis as per original).[25] This issue arises out of the following (obiter) observations made by Courtney J in her judgment:21Other aspects of the decision[35] Mr Deliu raised concerns about the fact that the Board's decisionreferred to two 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 really concerned 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 the Board's reasons for refusing21 Above n 2.parole continue to change without any apparent change in the offender'scircumstances. I therefore note the two matters that were initially considered barriers to parole being granted were not required in the latest decision.(Emphasis added).[26] The two matters referred to were Mr Wong's criminal connections and hishistory of gambling. Given that no specific recommendations were made regarding these matters in the decision before Courtney J, she inferred that they were no longer regarded as barriers to release.[27] Mr Zhang submitted that the Board failed to comply with this aspect ofCourtney J's guidance when reconsidering parole, because it again "shifted the goalposts" by relying on new grounds to support its reasoning or resurrecting oldones. Mr Zhang submitted that if the Board applied the Judge's observations to itsreconsideration, there were no relevant factors that the Board could have taken into account and Mr Wong should therefore have been released immediately.[28] Alternatively, and essentially as a fallback position, Mr Zhang submitted that if the Board intended to take into account any matters other than those referred to in its last parole decision, it was required to give Mr Wong advance notice of those matters.[29] Mr Cooke QC submitted that this particular ground of challenge is moreappropriately characterised under the "legitimate expectation" head rather than irrationality. That is because Mr Zhang's argument is essentially that, as a matter of fair procedure, an offender has a legitimate expectation that the factors that will be considered when addressing parole will be only those referred to in the Board's lastdecision.[30] I accept Mr Cooke's submission. The conduct complained of here falls wellshort of meeting the irrationality threshold, and the way the argument was developed by Mr Zhang falls more logically under the legitimate expectation head than that of irrationality. In practical terms, however, little turns on precisely how the argument is characterised.[31] It is obviously preferable, as a matter of best practice, that the "goalposts" forobtaining release on parole remain broadly consistent over time (absent changing circumstances). The Board cannot, however, commit to only addressing matters identified as barriers to parole in its last decision regarding that particular offender while ignoring any other factors (no matter how relevant). As Dunningham J observed in Edmonds v New Zealand Parole Board:22[39] In deciding whether a commitment could be made and relied on in the context of a Parole Board hearing (and thus give rise to a legitimate expectation), it is important to look at the statutory context in which parole decisions are made.[40] The starting point must be that the prisoner has no entitlement to release, and community safety is paramount. Section 28(1AA) provides the Board: must bear in mind that the offender has no entitlement to bereleased 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.Parole may only be granted if, at the time it is being considered, the prisoner can demonstrate they do not pose an undue risk. The statutory context does not allow a commitment to arise which would override or alter that statutory test.[41] I also consider that, had the Board promised in 2013 that Mr Edmonds would be released on parole if he put forward a more robust release plan, it would have unlawfully fettered the exercise of its powers. On each occasion the Board considers parole it must address the question of undue risk afresh, considering all relevant information available at the time, as is required by s 7(2)(c).[44] In summary, the ground of legitimate expectation is simply not relevant in this context. What any prisoner can expect is that their application is considered fairly, in light of the statutory test and having considered all relevant material which bears on whether that test is satisfied. Whether that has occurred in this case is discussed under the subsequent headings.(footnotes omitted).22 Edmonds v New Zealand Parole Board, above n 19; see also at [64].[32] Ultimately the Board must be satisfied that the offender, if released on parole, will not pose an undue risk to the safety of the community or any person or class ofpersons. Accordingly, if there is a particular factor that is relevant to the Board'sassessment of risk the Board must take that factor into account.[33] I accept Mr Cooke's submission that parole decision-making is not a simplistic or linear exercise. It is difficult, precisely because the factors involved in making the decision will be complex and interrelated. It cannot be the case that the Board is required to disregard a matter that is relevant to the level of risk an offender poses to the community simply because that matter was not identified or addressed (possibly entirely inadvertently) by a previous Board. Such an approach would undermine the overarching statutory purpose, which requires that offenders not be released if they still pose an undue risk to community safety.[34] The decision under review in this case is a comprehensive one. It was a reserved decision delivered by the Chair of the Board, a retired High Court Judge. Many decisions of the Board, however (including some of the previous decisions relating to Mr Wong) are not as comprehensive. While they are reasoned decisions, the reasoning is often somewhat truncated. Not every decision will identify every potential barrier to release. Instead, it appears that the Board may sometimes focus on the key barriers to release, particularly if it is apparent that, based on those factors alone, release is premature. That does not, however, preclude the Board from subsequently considering or referring to other matters that are also relevant to its assessment of undue risk.[35] In any event, it is apparent from a review of the previous parole decisions relating to Mr Wong that all of the matters the Board identified as relevant in the decision under review had been identified as issues of concern in previous decisions. Although there may be some differences in emphasis, no entirely new matters have been introduced into the analysis, let alone any that are determinative.[36] Mr Zhang's alternative submission under this head was that the Board is required to give Mr Wong due notice of the factors that would be considered at the hearing, but failed to do so. In essence, this is a submission that the requirements of natural justice were breached.[37] The requirements of natural justice are context-specific.23 The Act itself sets out the key requirements of natural justice in the parole context. An offender is entitled to the information received by the Board for the purpose of the hearing,24which will include reports from Corrections. In addition, the decision of the Board and the reasons for it must be in writing,25 and the offender is entitled to a copy of the written decision.26 The offender also has a right to have the decision reviewed.27There is no statutory requirement, however, for the Board to advise an offender in advance of the hearing precisely what factors may be important to its decision- making process. Nor do the requirements of natural justice require the imposition of such a requirement in the parole context. In practice, however, the broad ambit of the potential issues will likely be apparent from previous decisions of the Board and also any other information provided to the Board, which the offender is entitled to a copy of.Bias and/or predetermination[38] Mr Wong's third ground of challenge is that the Board: acted with bias and/or predetermination, as evidenced by its ex parte (and undocumented) consideration of court decisions not on the file, the manner of its intemperate questioning about lying and English and/or its blame of [Mr Wong] for his family's (unproven) perjury.(Emphasis as per original).23 See Daganayasi v Minister of Immigration [1980] 2 NZLR 130 (CA) at 141; Webster v Auckland Harbour Board [1987] 2 NZLR 129 (CA) at 132; Dotcom v United States of America [2014] NZSC 24, [2014] 2 NZLR 355 at [120]; Drew v Attorney-General [2002] 1 NZLR 58 (CA) at [67]; and Lyttelton v Police [2016] NZHC 22, [2016] NZAR 493 at [35].24 Sections 13(1) and s 43(1).25 Section 116(3).26 Section 116(4).27 Section 67.[39] The Board's record of proceedings contains many judgments relating to Mr Wong, including a judgment delivered in related proceeds of crime proceedings. Mr Zhang said that a number of those judgments were not provided to the Board by either Mr Wong or his counsel. Mr Zhang submitted that this was therefore evidenceof a "unilateral investigation" by the Board which was "without notice andundocumented, and should not be permitted". In addition, the manner in which theBoard questioned Mr Wong was said to be "demeaning, unprofessional and intemperate". Taken together, Mr Zhang submitted that these matters demonstrate "apparent bias if not a blatant predetermination to deny Mr Wong parole and simply to fish for anything to justify that outcome".[40] The common law test for bias is whether a fair-minded, lay observer might reasonably apprehend that the decision-maker might not bring an impartial mind to the decision he or she is required to make.28 The Act also includes a specific provision relating to bias:118 Avoiding actual or perceived bias(1) The chairperson must ensure that no person involved in a parole panel hearing reviews a decision of that panel.(2) The chairperson must, if he or she becomes aware that a member has, or may be perceived as having, bias for or against an offender, require the member to excuse himself or herself from—(a) participating in a panel that considers an application by or relating to the offender; and(b) making, or participating in making, any other decision under this Act that relates to the offender.[41] In this case it is clear that steps were taken to avoid any actual bias or perception of bias. The panel that reconsidered Mr Wong's case was a differently comprised panel from that whose decision was set aside by the High Court. Further, the chairperson of the Board, the Hon Warwick Gendall QC (a retired High Court Judge), allocated himself as the panel convenor for the hearing. I accept Mr Cooke'ssubmission that these steps reflected the care with which the Board approached the28 Muir v Commissioner of Inland Revenue [2007] NZCA 334, [2007] 3 NZLR 495 at [61]-[62]; and Saxmere Co Ltd v Wool Board Disestablishment Co Ltd [2009] NZSC 72, [2010] 1 NZLR 35 at [3].reconsideration exercise, and reflected the Board's recognition of the importance of impartiality.[42] Mr Zhang's submission that there was something improper in the Board having before it copies of previous court decisions overlooks that the Board is entitled to receive whatever information it considers appropriate, under s 117(1) of the Act:In any hearing before the Board, the Board may receive and take into consideration whatever information it thinks fit, whether or not the information would be admissible as evidence in a court of law.[43] Documents relating to Mr Wong's prior offending and criminal history areclearly relevant to the Board's risk assessment exercise. Indeed Corrections mustprovide the Board with "copies of all relevant information relating to the offender's current and previous convictions, including (for example) sentencing notes and pre- sentence reports".29 The contents of the relevant court decisions would have been well known to Mr Wong and his legal advisers. It was not procedurally unfair of the Board to have considered such material.[44] Nor am I persuaded that the manner of questioning at the hearing demonstrated any actual or apparent bias on the part of panel members or indicated that they had predetermined the outcome.[45] The hearing was governed by s 49, which relevantly provides:49 Hearings(1) A hearing must be run in the manner of an inquiry, and in an atmosphere that encourages persons appearing before the Board to speak for themselves, and as freely and frankly as possible.(2) Within that context, the Board may conduct the hearing as it thinks appropriate and, subject to this section, has the following powers:(a) to determine who may attend:(b) to determine who may speak:(c) to impose limits on what a person may talk about and for how long:29 Section 43(1)(a).(d) to require any person to leave the hearing, either temporarily or for the remainder of the hearing:(e) to adjourn the hearing.[46] I accept Mr Cooke's submission that the Board members were entitled to be frank and direct in their communications with Mr Wong, and Mr Wong was entitled to be equally frank and direct in his responses. Given the inquisitorial role of the Board, it was appropriate for panel members to robustly test aspects of Mr Wong's evidence. This was necessary in order to assess the level of Mr Wong's insight intothe nature and seriousness of his prior criminal activity and the genuineness of his acknowledgement of it. This was particularly so given Mr Wong's change ofposition regarding his guilt, after many years of denials.[47] The manner of questioning at the parole hearing did not demonstrate any actual or apparent bias on the part of panel members, or indicate that they had predetermined the outcome.Unlawful delegation/no evidence[48] Mr Wong's fourth ground of challenge is that:[The Board] unlawfully delegated its statutory function to assess risk to the Department of Corrections, whilst paradoxically refusing to accept the scientific Roc*RoI score on the basis of no evidence and instead a vague reference to what is "well known" but cannot be the subject of judicial notice.(Emphasis as per original).[49] Mr Zhang's two submissions under this head are inherently contradictory, ashe appeared to accept. On the one hand, the Board is said to have unlawfully delegated its statutory function to assess risk to Corrections, which uses the RoC*RoI (Risk of re-Conviction multiplied by Risk of re-Imprisonment) risk assessment tool and then provides the relevant score to the Board. On the other hand, the Board is said to have erred in not relying solely or primarily on the Roc*RoI score which has been calculated by its allegedly unlawful delegate.[50] The Board referred to Mr Wong's RoC*RoI score, which assessed him as"low risk". It also noted, however, the qualifications regarding RoC*RoI score inthe psychologist's report. In particular, that report noted that although Mr Wong'sRoC*RoI score is low, his risk of involvement in drug offending is difficult to establish. That is because research indicates that a main driver of drug trafficking is the need for material gain. Mr Wong's risk of further drug offending could therefore be exacerbated if he struggled to find employment following release and/or required money to feed gambling behaviour.[51] The Board observed that low risk is not the same as "no undue risk", and that it is the statutory function of the Board to assess whether risk is "undue". RoC*RoI"is only a Departmental statistical tool being an actuarial measure developed to assist in prediction of an offender's risk of re-imprisonment". The Board further stated that:It is well-known that such statistical tool does not always indicate actual risk which is dependent on many dynamic and other factors. They include the seriousness of the index offence, or offences, circumstances of the offending, information and pre-sentence probation reports, offence history, (serious or negligible) behaviour in prison, mental health, rehabilitative programmes and other interventions, reintegrative steps, release plans and the like. As indicated in the reports before the Board, a low RoC*RoI is not necessarily determinative or reliable in assessing risk of involvement in drug offences especially those which arise through the need for material gain.[52] The Board noted that a low RoC*RoI score may not therefore equate with actual risk. Further: it is not the function or task of psychologists or probation officers orreport writers to determine whether or not the statutory test of "undue risk"exists. It is a function of the Board to determine undue risk based upon all the relevant circumstances before it. It must be individualised and take into account all relevant factors.(Citations omitted).[53] There is no error in the Board's approach. Its reference to the Roc*RoI scoreas one factor in its overall risk assessment analysis does not involve any unlawful delegation to Corrections. Similar arguments were rejected by both the High Courtand Court of Appeal in Miller v New Zealand Parole Board.30 As noted above, the Board is entitled to receive and take into account whatever information it thinks fit. This includes the Roc*RoI score as calculated by Corrections.[54] Mr Zhang's alternative argument, that the Board erred by "refusing to accept the scientific Roc*RoI score", is also flawed. The Board was correct not to treatMr Wong's RoC*RoI score as the complete answer. The Act requires the Board to make its decision in accordance with the statutory tests and, as part of that, to take a range of relevant information into account. The RoC*RoI score is just one relevant factor among many. It cannot be determinative in itself. Roc*RoI is a statistical actuarial tool. It takes no account of the individual circumstances of the particular offender. As Dunningham J observed in Edmonds:31[34] I am satisfied that the term "undue risk" is a deliberately elastic test. It is not met by reference to any set or specific threshold such as a low RoC*RoI assessment. Each application for parole must be considered in light of all factors which may be relevant to that person's risk of offending. While an offender might be "low risk" based on an actuarial calculation, their personal circumstances may still point to the risk to the community being "undue" because the Board is not satisfied that that particular applicant has demonstrated his or her risk of reoffending can be appropriately managed.[55] The Board can properly rely on information supplied by Corrections, including the RoC*RoI score. Ultimately, however, it is required to make its own assessment of risk in light of all of the information properly before it.Error of law and/or fact[56] Mr Wong's fifth ground of challenge is that:[The Board] erred in fact that [Mr Wong] ever lied in Court because he never gave evidence and/or erred in law that his innocence was ever an issue in his trial or appellate proceedings.(Emphasis as per original).30 Miller v New Zealand Parole Board [2010] NZCA 600 at [59]-[61]; and Miller v New Zealand Parole Board (2008) CRNZ 104 (HC) at [52].31 Above n 19.[57] Mr Zhang submitted that Mr Wong had been asked repeatedly by the Board whether he had lied throughout his trials and appeals, and whether he had lied to the Court. This line of questioning was said to be erroneous, because Mr Wong had never given evidence in any of his trials or appeals, and hence had never lied in a court of law. Furthermore, his appeal grounds focussed on legal issues and the relevant legal submissions were made by counsel, not Mr Wong. It necessarily followed, Mr Zhang submitted, that the Board had erred in fact or in law, because it assumed that Mr Wong had previously lied about his offending.[58] The transcript of the reconsideration hearing shows that the Board asked Mr Wong to confirm that he now accepted responsibility for "the importation of drugs in July [2004]" (the offending he was convicted for) despite his previous denials of guilt. He was also asked to clarify his position in relation to the importation of drugs in May 2004 (which he had been acquitted of). He initially responded that he had not been found guilty of that. He subsequently said, however,"Well I would say I'm guilty on all of them". This included an admission of guilt inrelation to the 1993 kidnapping, which he had also previously denied. Mr Wong was subsequently asked whether he would say that he was a dishonest man. Heresponded, "I was a dishonest man but now I've changed". Another panel memberlater returned to the topic in the following exchange:GH: I just want to go back to what Ms Pakura spoke to you about which is that you've lied since 1993 to 2015 to lots of people.To Courts, to lawyers?Wong: YeahGH: To your family?Wong: YeahGH: And to friends?Wong: YeahGH: Right, okay. When you did your last sentence, the one for kidnapping, you were lying then?Wong: Yes[59] Viewed in context, the Board was not suggesting to Mr Wong that he hadperjured himself when giving evidence in court. Rather, the Board's focus was onMr Wong not previously telling the truth about his offending or taking responsibility for it, either in dialogue with friends or family or in his various court proceedings.[60] The Board was entitled to probe Mr Wong's apparent change of heart and totest whether it was genuine, or simply reflected what he thought the Board wanted to hear to improve his prospects of release (as the Board suspected). His acknowledgement of his offending history, and the degree of his insight into the seriousness of it, are important considerations in assessing Mr Wong's risk of re-offending.Ultra vires/adjudication of guilt[61] Mr Wong's sixth ground of challenge is that:[The Board] violated autrefois acquit and/or breached the right to a presumption of innocence and/or conducted an inquiry without jurisdiction to conduct a drugs investigation.(Emphasis as per original).[62] Mr Zhang submitted that the Board infringed the principle of autrefois acquit32 and also the right to be presumed innocent until proved guilty,33 by putting to Mr Wong that he had committed the May 2004 offending for which he was acquitted. Mr Zhang submitted that "if a decision maker adjudicates a matter it lacksjurisdiction over it acts ultra vires".[63] The Board has not, however, "adjudicated" the charge relating to theMay 2004 offending. Mr Wong has not been charged or convicted in respect of matters for which he had previously been acquitted. Further, having previously been acquitted of the May 2004 offending, Mr Wong was not placing himself in jeopardy of conviction through his admissions.32 See Criminal Procedure Act 2011, s 47.33 See New Zealand Bill of Rights Act 1990, s 25(c).[64] The Board's role is simply to assess whether Mr Wong would pose an undue risk to the safety of the community if released. Given Mr Wong's previous denialsof offending (including offending in respect of which he was convicted), it was not unreasonable for the Board to explore the parameters of the conduct he was now admitting. The fact that a person shows insight into their criminal behaviour, including acknowledging the full scope of their prior criminal activity, may well be relevant to the degree of risk they pose to the community. It was therefore notimproper for the Board to enquire into Mr Wong's propensity to engage in criminal behaviour, and the extent to which he now acknowledges and accepts that, as part of its overall risk assessment process.[65] Nor did questioning Mr Wong about the full extent of his prior offending infringe the presumption of innocence in s 25(c) of the New Zealand Bill of Rights Act 1990. That presumption applies to persons who are charged with an offence, and it applies only in relation to the determination of that charge. Mr Wong has already been convicted of an offence and is serving a sentence of imprisonment. His answers could not have resulted in a conviction for those charges he was acquitted of. He is now seeking parole, which can only be granted if the Board is satisfied that his release would not pose an undue risk to the safety of the community. Relevant tothat enquiry is Mr Wong's insight into his criminal behaviour, including hisperception of the offending which he now accepts he committed. The New Zealand Bill of Rights Act protections that were available during his trial are simply not relevant (and do not apply) in this particular context.34Undue weight/disproportionality/Wednesbury unreasonableness[66] I will consider Mr Wong's remaining grounds of challenge together.[67] Mr Zhang submitted that the Board placed undue weight on Mr Wong's kidnapping conviction, in circumstances where the end sentence for that offending had long since expired and it had not been treated as an aggravating factor when he was sentenced for his drug offending. Mr Zhang submitted that previous panels did34 See Shortland v New Zealand Parole Board HC Auckland CRI-2007-404-366, 17 December 2007 at [31]-[33]; King v New Zealand Parole Board [2007] NZAR 289 at [21]; and G (CA 206/2010) v R [2010] NZCA 283 at [83]-[87].not place much, if any, reliance on this conviction, yet this panel did. He submitted that this was unreasonable in the Wednesbury sense.35[68] Mr Zhang also submitted that the Board has acted disproportionately compared to how other offenders are treated, breaching the requirement that there be consistency in decision-making.36 He submitted that less worthy prisoners than Mr Wong have been granted parole.[69] These grounds of challenge appear, in essence, to be attacks on the merits of the Board's decision. As I have outlined above, however, it is not the role of this Court to review the merits of Board decisions or to operate as an appellate court. Rather, the primary focus must be on whether the decision-making process was lawful.[70] Mr Wong has committed serious offences, as evidenced by the fact that he was sentenced to imprisonment for fourteen-and-a-half years. Until recently he appears to have taken no responsibility at all for his offending. There is nothing tosuggest that the Board's decision here was not reasonably open to it. The decision is not unreasonable in the Wednesbury sense (or otherwise). The various matters taken into account by the Board were all relevant. The weight to be attributed to those various factors (including the historic kidnapping conviction) was a matter for the Board.[71] As for the "disproportionality" argument – every offender is unique and every parole decision will turn on the specific information before the Board relating to that particular offender. Ultimately, the Board must be satisfied on reasonable grounds that the offender, if released on parole, will not pose an undue risk to the safety of the community. No two cases are alike. Reference to the outcomes of other parole decisions, involving other offenders, is unlikely to be of significant assistance to the Board in undertaking the required risk assessment exercise.35 Associated Provincial Picture Houses Ltd v Wednesbury Corp [1948] 1 KB 223 (CA).36 Relying on Mau'u v R [2011] NZCA 385 at [26].Conclusion[72] There is no substance to Mr Wong's various grounds of challenge. To theextent that the relevant grounds of challenge raise procedural issues, I am satisfiedthat the Board's decision-making process was lawful. To the extent that the groundsof challenge attack the merits of the Board's decision, they are also withoutsubstance, and are largely beyond the proper scope of judicial review.Costs[73] Mr Cooke submitted that 3B costs were appropriate (regardless of which party was successful), whereas Mr Zhang submitted that 2B costs should be awarded to the successful party.[74] Although I was greatly assisted by the involvement of senior counsel and the comprehensive submissions he presented on behalf of the Board, in my view it is appropriate to award costs on a 2B basis.Result[75] The application for review is dismissed.[76] The Board is awarded costs on a 2B basis.____________________________Katz J