Alexander v Parole Authority of New South Wales

Background

1. The applicant was sentenced in the District Court on 19 August 2013. A copy of the remarks on sentence of her Honour, Judge Tupman, was included in RAC-1 at Tab C.
2. The applicant entered guilty pleas to three counts on the indictment as follows: Count 1 - detaining for advantage contrary to s 90A of the Crimes Act 1900. Counts 2 and 3 - aggravated sexual intercourse without consent, first count relating to 15 May 1999 and the second to 16 May 1999, contrary to s 61J of the Crimes Act 1900. The offences under s 61J carried a maximum penalty of 20 years imprisonment.
3. Her Honour on the date to which I have referred imposed the following sentences: Count 1, terms of imprisonment of five years commencing 2 February 2009 to expire on 1 February 2014. Counts 2 and 3, non-parole periods of three years, six months commencing 2 August 2011 to expire 1 February 2015 with parole period of two and a half years commencing 2 February 2015 to expire 1 August 2017. The overall term of imprisonment was a term of six years commencing 2 August 2011 to expire 1 August 2017.
4. On 26 November 2014 the State Parole Authority made a decision to refuse parole. The Notice of the Decision addressed to the applicant set out the reasons on page 1. Those reasons were stated to be: "Risk of re-offending, limited participation in relevant programs; needs to address offending behaviour (therapeutic) [needs to participate in therapeutic program to address sex offending (CUBIT)]; needs to address offending behaviour [needs to participate in program]; (2) and address alcohol and other drugs problems; needs a psychiatric report (a comprehensive cross-sectional psychiatric report including file review diagnosis and current treatment plan); and need for post release accommodation (no suitable post release accommodation)."
5. The Authority identified the source documents before it that were considered and expressed a conclusion in the following terms: "Until such time as the offender addresses his offending behaviour, has suitable post release accommodation and a psychiatric report is available, the State Parole Authority do not believe release to parole is appropriate. Copies of reports in other documents used by the State Parole Authority in reaching its decision have been forwarded to the Community Corrections along with the forms and notices. Community Corrections also provide you with a copy of these reports and/or documents for your records."
6. On 9 December 2014 the applicant applied for a hearing to review the refusal of parole. On 15 January 2015 the authority considered the application for review. The authority on 15 January 2015 determined that a review hearing was not warranted given that the application did not address grounds on refusal, "The decision to refuse parole on 26 November 2014 is to stand for the following reasons", and there then is set out the reasons which appear to be the same or similar to those that have appeared in the decision of 26 November 2014.

Legislative Provisions

1. Under Part 6 Division 2 of the Crimes (Administration of Sentences) Act 1999 the Act sets out provisions that relate to the making of parole orders. Section 135(1) states that: "The Parole Authority must not grant parole for an offender unless it is satisfied on the balance of probabilities that the release of the offender is appropriate in the public interest."
2. Subsection (2): "In deciding whether or not the release of an offender is appropriate and in the public interest the Parole Authority must have regard to the following matters."
3. There is then set out specific matters in subparagraphs (a) to (k).
4. Section 155(1)(b) of the Act provides: "if the offender alleges that the decision of the Parole Authority has been made on the basis of false, misleading or irrelevant information the offender may, in the accordance with the Rules of Court, apply to the Supreme Court for a direction to be given to the Parole Authority as to whether the information was false, misleading or irrelevant."
5. Section 155(3) provides in an application: "The application is to be considered by the Supreme Court if and only if it is satisfied that the application is not an abuse of process and that there appears to be sufficient evidence to support the application."
6. Section 155(4) provides: "This section does not give the Supreme Court jurisdiction to consider the merits of the Parole Authority's decision otherwise than on the grounds referred to in subsection (1)."
7. It has been necessary in my view, in the approach that I have taken, that I review all of the materials that have been adduced in evidence in order to understand the basis for the application and to determine the extent of evidence that has been adduced that addresses the relevant issues requiring consideration under s 155 and for the purposes of making a determination as to whether the evidence relied upon by the applicant is cogent and/or probative of matters asserted by way of challenge. In other words, I have embarked upon the full hearing notwithstanding that, at the end of the day, the evidence of a particular case may indicate the evidence does not support the application or, if there is no evidence to support the application the proceedings may be shown to be an abuse of process.
8. A number of propositions and principles have been worked out in the various case law authorities. I do not intend to refer to all of the case law. It has been very conveniently summarised and referred to in the written submissions for the Attorney-General. It is sufficient to say that an application for a direction under s 155(1)(b) is not an appeal. In particular, it does not constitute proceedings involving a hearing of the merits or the weight to be given to particular matters that were considered by the Authority in its decision making. It is not the function of this Court in such an application to concern itself with the reasoning processes that have been followed by the Authority in arriving at its decision.
9. In one of the well-known authorities in this area, the decision of the Court of Criminal Appeal in R v Naudi [2003] NSWCCA 160, Simpson J emphasised, firstly, the need for an applicant to produce evidence to support assertions made, in particular as to false or misleading challenges or assertions: at [26]. Secondly, that an application must establish that the Parole Authority decision was "made on the basis" of either false, misleading or irrelevant information.
10. In other words, the information challenged must have a particular character being that referred to in s 155(1)(b) and, furthermore, that, at least in part, forms the foundation for the Authority's decision. Putting it differently, that the challenged information was relied upon by the Authority in coming to its decision.
11. The applicant, therefore, must produce evidence in these proceedings, firstly, to establish that the information in question is information before the Authority in relation to its decision making (that is the first decision) and their decision on review, was false or it was misleading information or it was irrelevant. Secondly, it is necessary to show that such information impacted upon the Parole Authority's decision or determination.
12. Before turning to the material relied upon by the applicant it is necessary to say something about the source material reports that were before the State Parole Authority in refusing parole and its further decision affirming that decision upon the review application.
13. The pre-release report dated 6 November 2014 being part of exhibit RAC‑1 provided information on a range of topics or issues or subject matters. It is not necessary here to detail all of the material on those matters other than to identify that certain of the specific matters addressed were, firstly, the issue of what is referred to as immigration, referring to the fact that the applicant had been identified as having a New Zealand nationality. Secondly, education and training; thirdly, alcohol and other drugs; fourthly, offender attitudes; fifthly, the victim and her family; sixthly, behaviour in custody; seventh, program services; and, eighth, psychological including sex offender programs.
14. In the material in relation to the issue of alcohol, one of the matters to which the applicant has made submissions, the pre-release report at page 2 of 7 noted that: "The applicant admitted at the time of the offence he was consuming excessive amounts of alcohol but failed to see the relationship between alcohol abuse and the offence and, indeed, conceded his behaviour was immature. He denied use of illicit or non-prescribed substances."
15. In relation to the issue of alcohol and other drugs, the author of the report referred at page 3 of 7 to the "Getting Smart" program and noted that on 23 October 2013: "The applicant was offered a place in the program which he initially accepted but withdrew from the program a week later without an excuse."
16. The report stated that: "He had not attempted to enrol in any further programs to address the concerns raised about his level of alcohol abuse. In an attempt to discuss concerns about unaddressed alcohol related issues, he stated his alcohol issues were resolved and it was no longer a problem."
17. On page 6 of 7 of that report it was noted that on 23 October 2013 that the matter to which attention was drawn, (the "Getting Smart" program) was a matter said to be of concern.
18. On the issue of alcohol the submission by the applicant was that there was a failure to identify the fact that the alcohol consumption by him as referred to in the reports was only temporary. In his submissions Mr Alexander said it was in fact a decision not unlike a drug taker, that he had not been properly reviewed and assessed for suitability for programs. He took issue with the Parole Authority's decision which in part was based on the proposition that he had not participated in a program or programs.
19. The issue of alcohol consumption was addressed in a pre-sentence report, which is to be found behind guide card 3 in exhibit RAC-1, a report apparently prepared for the sentence hearing to which I have referred. The sentencing report stated on 19 January 2010: "The offender has indicated he has spent the last 10 years living on the street consuming excessive quantities of alcohol, assuming aliases in attempts to avoid police."
20. Page 2 of that report under the heading "Alcohol and drugs Issues", the report states: "The offender was adamant that he had not consumed alcohol prior to this offence and he has never used illicit substances. He claims that since the offence his daily consumption of alcohol is at least a four litre cask of wine which often resulted in memory loss and loss of consciousness" Et cetera.
21. The issue raised in the considerations addressed in the pre-release report is an assessment that, whatever alcohol was consumed at the date of offences, the fact remains that the risk associated with the applicant has been assessed as linked potentially, at least, to a past problem of alcohol consumption and is one that needs to be assessed for the purposes of assessing his suitability for parole.
22. I turn to a further issue the applicant has raised, and that is what he referred to as a misapprehension of causation in terms of treatment and the like. By that, as I understood it, Mr Alexander was meaning by that, that there had been no re-appraisal of his case, his character or his behaviour in order to remove an alert so that he could participate in programs. In other words, Mr Alexander's contention was that as a matter of causation it was not his behaviour or conduct that can be seen as the cause or reason for him not having participated in courses or programs, but the reason is to be found in the failure by those, whilst he has been in custody, to reassess and make the necessary enquiries for his participation in programs.
23. I do not see this as an issue that advances the application. Firstly, there is no evidence which establishes a factual foundation for the contention as to causation that Mr Alexander makes, but, contrary to that, there is strong material in both the pre-release report and other documents which indicates a failure by the applicant himself to co-operate or participate in the various programs to which the documents before the Parole Authority refer. I do not consider that there is any evidence in other words to support that proposition.
24. Before moving to the next issue, it must be said that there is no evidence which would indicate that the information relied upon by the Authority so far as the issue of alcohol is concerned was in any respect false, misleading or irrelevant.
25. As Simpson J said in the case to which I have referred, as to evidence most likely to be required to establish the issue of information being either misleading or false, it may well be possible to determine whether the information before the Parole Authority was relevant or irrelevant from the materials that were before the Authority when making its decisions. It is clear that the information on the question of alcohol strongly supported the need for that to be properly assessed, and there is no basis at all in the evidence and none was led indeed to establish that the information relied upon in relation to the question of alcohol and other associated risks was false or irrelevant. That is a highly relevant matter in assessing risk.
26. The next issue which was the subject of some submissions by the applicant related to the question of psychiatric assessment. It is necessary to consider the material that was before the Authority in relation to the decision about which a direction is sought. The Sentencing Remarks (page 14) contain an observation made by the sentencing judge: "Some of the facts, together with my observations of the offender, leave me with a fairly clear impression that, even then and certainly now the offender is a person who can well suffer from a psychiatric illness. There is no evidence of that before the Court, and in due course I will deal with that by making recommendations for treatment."
27. Towards the end of the remarks on sentence, pages 12 to 13 her Honour said: "I recommend that the offender be released to parole at the expiration of the non-parole period. I recommend further that this parole be subject to supervision by Probation and Parole and referral for a psychiatric assessment and treatment."
28. In the decision of the State Parole Authority refusing parole reference is made to the sentencing judge's observations to which I have referred. At the conclusion to that decision of 26 November 2014 it was stated: "Until such time that the offender addresses his offending behaviour, has suitable post-release accommodation and a psychiatric report is available, the State Parole Authority does not believe that release to parole is appropriate."
29. The Written Submissions on behalf of the Attorney address in detail a number of the issues that were raised in documents generated by the applicant. It is not necessary to refer to all of the issues that have been analysed in the Written Submissions. On my count there were 12 separate matters addressed in those submissions based upon contentions or assertions made by the applicant.
30. One relates to the issue of alcohol abuse, to which I have already referred. Another relates to access to Justice Health records.
31. In para 62 of the Written Submissions the assertions of the applicant are set out, in which he states, amongst other things, that he did not refuse access to Justice Health records.
32. The submission, which I accept, in para 64 is: "Other than the applicant's assertion that he did not refuse access to his health records, which is otherwise unsupported by evidence.
33. There is no basis to doubt the correctness or accuracy of the account referred to by Ms Sartor in the pre‑release report or to suggest the information is false. Indeed, the presentence report dated 26 February 2010, which was also before the Authority, refers to the applicant adopting a similar stance by refusing to release certain psychiatric health information at that time. Nor is there any suggestion that the information was misleading or irrelevant in any respect.
34. In para 65 of the Written Submissions it was stated: "To the contrary, the extent to which the applicant facilitated access to necessary health information to ultimately permit the Authority to gain insight into his psychiatric status (having regard to the remarks of the sentencing judge to the effect that the offender ought be examined as to the possibility of his suffering psychiatric illness) was clearly a relevant matter for the Authority to have regard to, given its statutory duty pursuant to s 135 of the Act."
35. The submission for the Attorney-General was that there was no substance to this ground of complaint. I accept that submission.
36. There are two other matters which Mr Alexander raised, which he relied upon in support of his application. The first related to the question of the application of s 135 criteria, which is (2)(a) the need to protect the safety of the community: Section 135(2)(a) of the Act. In that respect, the applicant stated that though a matter relied upon by the Authority, it is not a matter that would apply to him as, given his New Zealand nationality, it would be either possible or likely even that he would be deported once released to parole, and therefore there is no need to protect the safety of the community in this State or country, as I understood his submission. However, there is no evidence again to support this proposition. It has not been demonstrated that there was any information relating to the question of immigration, a matter to which the pre‑release report does advert, to the likelihood that the matters which the applicant has endeavoured to forecast will eventuate or that there was any information before the Authority on that matter which was false, misleading or irrelevant.
37. The second matter relied upon is Exhibit A, and that is the letter or statement from his mother, which was relied upon as evidence that, as I understood it, in effect, new evidence, that his mother had been diagnosed with invasive basal cell carcinoma that required surgical excision and treatment, and his mother's health is a matter that ought to be taken into account. However, that is information that cannot be said to have been material that was required to be considered by the Authority, but in any event there is no evidence to suggest that the material was available and no material to suggest that the Authority ought to have pursued this information as a basis for its decision-making.
38. In all the circumstances, I have concluded that the applicant has not discharged the onus; indeed, has not produced evidence to support the fundamental requirement before a direction can be made, that is to say that any information before the Authority was either inaccurate, erroneous or incomplete; no evidence that any such information challenged by or asserted by the applicant to have been wrong in any respect was in fact erroneous; and no evidence to support that any erroneous material or interpretation occurred or impacted in any way upon the decision of the Authority.
39. Accordingly, I find that this application does not have any evidentiary foundation at all, nor any issue raised that could attract the operation of s 155(1)(b). In those circumstances, the application must be dismissed, and I so order.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 19 June 2015