Kingi v New Zealand Parole Board HC Wellington CIV-2010-485-2327

[2011] NZHC 1219

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

CIV-2010-485-2327

BETWEEN  DYLAN JAMES KINGI Plaintiff

ANDNEW ZEALAND PAROLE BOARD Respondent

Hearing:         21 February 2011 (Heard at Wellington)

Counsel:         R M Gould for Plaintiff

F Sinclair for Respondent

Judgment:      22 February 2011

JUDGMENT OF JOSEPH WILLIAMS J

In accordance with r 11.5, I direct the Registrar to endorse this judgment with the delivery time of 1.00pm on the 22nd February 2011.

Solicitors:

Crown Law, PO Box 2858, Wellington

Blackstone Chambers, PO Box 12-549, Wellington

DYLAN JAMES KINGI V NEW ZEALAND PAROLE BOARD HC WN CIV-2010-485-2327 22 February 2011

[1]      Dylan Kingi applies for judicial review of a decision of the Parole Board dated  20 July  2010  (and  by  implication  a  later  review  of  that  decision  by Judge Lovegrove on 14 August 2010 upholding the Board’s assessment).

[2]      Mr Kingi is in prison serving a three year nine month sentence for aggravated robbery and burglary.   He has served 28 months of that sentence.   He asked the Parole  Board  in  July  last  year  to  release  him  to  Moana  House,  a  Dunedin community-based  residential  therapy facility for male  offenders.   Moana House provides a treatment programme for those who want to make changes in their lives. The programme lasts 18 months.

[3]      Mr Kingi first came before the Parole Board on 25 May 2010 but there was insufficient information for a decision to be made and his application was adjourned until July of that year.  In the meantime on 14 June 2010, Moana House confirmed that a place was available for him if he was released by the Parole Board in July. Moana House advised however that the bed would not be held indefinitely.

[4]      At the July hearing, the Parole Board declined to release Mr Kingi to Moana House citing general low level misbehaviour and concluding that he remained a significant risk to the community given his offending history and lack of treatment to that date.  I note by way of an aside that Mr Kingi acknowledges that he has had problems associated with drugs and alcohol all his adult life, and that this has been a major cause of both his offending and his immature behaviour.   In any event the Board considered that Mr Kingi should not be released to Moana House until he completed  the  seven  month  custodial  Drug  Treatment  Unit  (DTU)  programme. Mr Kingi’s application was adjourned for 12 months to allow him to do that.   No date for the DTU programme was then available as demand significantly outstrips the supply of places.

[5]      Mr Kingi applied for review of the Board’s refusal.  He argued that the Board had failed to understand the likely delay in getting into the DTU programme and the likely knock-on effect of that delay – making it impossible for him to complete both the DTU and Moana House programmes within his 45 month sentence.  He argued further  that  the  Parole  Board  failed  to  take  into  account  the  substantial  risk

mitigation effect of the Moana House programme itself (which counsel argued was more successful than the DTU programme) and the fact that his stay there would be electronically monitored.

[6]      Judge Lovegrove on review said Mr Kingi’s history made him all too likely to breach conditions of residence at Moana House and be returned to prison.  The Judge found that the Board’s community safety assessment in respect of Mr Kingi was reasonable in light of the latter’s offending history and misbehaviour in prison. In fact he said that in light of the constraints on the Board as set out in s 28(2) of the Parole Act 2002, the result in this case was inevitable.  He added:

There was, in fact, plenty more on the record which could have been called upon to justify the exercise of the Board’s discretion against Mr Kingi’s release notwithstanding the availability of a bed at Moana House: his two earlier unsuccessful referrals in 2006 and 2007 to the Odyssey House residential  programme;  his  failure  to  attend  appointments  for  drug  and alcohol counselling in 2008; his rapid reoffending cycle; his numerous convictions for breach and non-compliance; and his questionable motivation for change.

[7]      On judicial review before me, Ms Gould argues that the assessment made by both the Board and Judge Lovegrove was superficial.   Ms Gould accepted that Mr Kingi  had  misbehaved  while  in  prison,  that  he  had  been  demanding  and argumentative as well as immature.  But she said these are the hallmarks of a drug addict and they require treatment.   She argued essentially that both the Board and Judge Lovegrove on review had conflated Kingi’s misbehaviour with the question of his risk to the community and so had failed to assess the risk he actually represented to the community in situ in an electronically monitored residential placement in a well respected drug treatment programme.

[8]      Section 7(1) of the Parole Act says the paramount consideration for the Board in all cases is the safety of the community.  That said, s 7(2)(a) says that offenders must  not  be detained  any longer than  necessary in  terms  of  community safety. Section 28(2) provides that parole may only be granted if the Board is satisfied that release 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”.

[9]      In making that assessment, the Board must have regard to the support and supervision that is available, and the public interest in re-integrating the offender as a law abiding citizen.

[10]     As it turns out Mr Kingi has not found a place in the DTU programme in the time since his parole hearing in July last year.   I am now advised that he will be admitted into the programme in April this year.  It is a seven month programme as I have said, and  so will  conclude at  the end of the  year.   Ms  Gould  complains, understandably, that if at the conclusion of this programme Mr Kingi is released to Moana House (as is his wish), he will not be able to complete the Moana House

18 month programme within the total term of his sentence.  There is likely to be an overhang, as it were, of at least six months and probably more.  The Moana House bed remains available.

[11]     It is in my view very unfortunate that the DTU programme is to commence so late in Mr Kingi’s sentence.  It would have been far better if it were available to him 12 months ago or more.  Everyone seems to agree that Mr Kingi needs treatment if  he  is  to  return  to  the  community  with  any  chance  of  living  a  life  without significant offending.  But I do not think that means the Board and Judge Lovegrove have made unreasonable assessments, or failed to apply the correct legal tests.  Judge Lovegrove’s review is the fuller and more comprehensive assessment.  In addition to the  considerations  referred  to  by  the  Board,  Judge  Lovegrove  refers  to  failed treatment attempts in 2006, 2007, and 2008; the speed with which Mr Kingi has reoffended in the past and his lengthy history of breach of, and non-compliance with, sentencing conditions.   The Judge (and the Board) were all entitled to take these matters into account.  Indeed if they had not, they would have failed to take relevant matters  into  consideration.    Mr  Kingi’s  failure  to  complete  earlier  residential treatment programmes and subsequent reoffending are right on point.  I accept that they happened between five and three years ago – but the weight to be accorded to the age of the failures is for the Board and the reviewing Judge, not me.

[12]     It follows that I agree with Mr Sinclair’s submission that the Board and the

reviewing Judge applied the right “undue risk to the community” test and considered

all the relevant considerations.   Beyond that, the conclusion reached was within discretion and cannot be interfered in by me.

[13]     It is extremely unfortunate, perhaps even unfair, that the resources available for custodial treatment programmes are insufficient to meet demand in a timely way, but the statutory test is explicit, and both the Board and Judge Lovegrove clearly and properly focussed their minds on that test.  The conclusion reached was that, when viewed as a whole, Mr Kingi’s circumstances meant that community release – even to a good programme and even with electronic monitoring – represented too much of a risk that he would breach and reoffend.  That was a conclusion open to the Board and reviewing Judge on the evidence.

[14]     This application must be dismissed accordingly.

Joseph Williams J