Ayoub v NSW Parole Authority

Supreme Court of NSW|2014-05-01|Before: Adamson J

Introduction 1Mr Ayoub is presently in custody serving a term of imprisonment of four years and six months, which commenced on 27 February 2010 following his conviction of the following offences: sexual intercourse without consent; inflict actual bodily harm with intent to have sexual intercourse with victim and two counts of act with intent to pervert the course of justice. 2His three-year non-parole period expired on 26 February 2013. His application for parole was refused in January 2013. He commenced these proceedings by application filed on 11 October 2013. However, before his application was heard, the State Parole Authority (the Authority) considered again whether he ought be released on parole. On 9 January 2014, the Authority refused his application for parole. 3When the matter came before me, as Duty Judge, for hearing on 1 May 2014, Mr Ayoub sought to amend his application, in order to challenge the refusal on 9 January 2014. The grounds of the application remain the same. As there was no objection to the amendment by the Attorney-General, I allowed the amendment.

Relevant legislation 4Section 155 of the Crimes (Administration of Sentences) Act 1999 (NSW) (the Act) provides: 155 Application to Supreme Court by offender (1) If: (a) the Parole Authority decides that an offender should not be released on parole, and (b) 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 accordance with 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. (2) The Supreme Court may give such directions with respect to the information as it thinks fit. (3) An application under this section 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. (4) 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).

Evidence 5The Attorney-General relied on the affidavit of Robert Allen Cosman affirmed 11 February 2014 to which he annexed relevant documents, including the Authority's reasons for refusing parole made on 9 January 2014 and the material which it considered in making the decision. 6These documents included a Psychological Service Report dated 16 December 2013 which set out, among other matters, an assessment of Mr Ayoub's score in Static-99. Static-99 is an instrument designed to assist in the prediction of sexual recidivism for individuals charged with, or convicted of, a sexual offence. It consists of 10 items and produces estimates of future risk based on the number of risk factors present in an individual. Mr Ayoub's total score on Static-99 was four, which placed him in the moderate-high risk range. The four factors, reflected in his score, included the following two, in respect of which Mr Ayoub disputed his score: (1)He was aged between 18 and 34.9; and (2)He had not lived with a lover for more than two years. 7The report noted the following: "Mr Ayoub disputed being scored as having never lived with a lover for more than two years, however this is contradictory to previous reports and he was aware that it would reduce his risk rating if this were to be changed." 8The report also set out the programs that Mr Ayoub had completed while in custody, together with a chronology of the offers that had been made to him to participate in programs for sex-offenders. It recited the occasions on which Mr Ayoub had been offered a place and refused to participate, in the Custody-Based Intensive Treatment Program for Sexual Offenders (CUBIT) Moderate-High Intensity. 9The Authority's reasons for refusing parole were as follows: Consideration of matters in s 135 The offender needs to address his sexually offending behaviour through therapeutic program participation. The Judge in sentencing noted that he denied his guilt and had no expression of remorse or contrition into his offence; furthermore the offender lacks insight into his offending. The victims were known to the offender and the offence involved the use of violence upon the victim. First time in custody. Requires a level of medium to high intervention upon release given the nature of his offending upon his victim. Community Corrections are not recommending release. Critical issues Offender needs to participate in a therapeutic program to address his sexually offending behaviour while in custody. Conclusion Until such time as the offender participates in appropriate therapeutic programs in custody, the Authority do [sic] not believe release to parole is appropriate at this time. 10Mr Ayoub read an affidavit in support of his application which was filed with his outline of submissions on 30 April 2014. He did not give any oral evidence before me at the hearing of the application. However he made statements in submissions through the audio video link from Junee gaol. He confirmed that he was not willing to undertake the CUBIT course because he was not prepared to acknowledge his guilt of the offences for which he had been convicted. He took exception to what he saw as this requirement of participation of a CUBIT course. 11Mr Ayoub also tendered documents in support of his application, including a document issued by Corrective Services New South Wales dated 16 January 2013 entitled "Institutional Programs for Individuals who have committed sexual offences". This document sets out the nature of the CUBIT Program. It also describes an alternative program, called "Deniers" which is said to be for: "a group of men convicted of sexual offences who have always maintained that they were wrongfully accused or falsely identified." 12The document also states: "The Deniers Programe is not suitable for men who are deemed eligible for other Sex Offender Programs treatment groups (i.e. CUBIT/ CORE)." 13Mr Ayoub tendered a letter from Legal Aid dated 30 April 2012, which was written on his behalf to the Therapeutic Manager of CUBIT, in which the author inquired whether he could participate in the Deniers Program. The letter in response, dated 3 May 2012, read in part: "Upon review of Mr Ayoub's custody-based Sex Offender Programs referral it has been determined that Mr Ayoub still remains suitable for the CUBIT program. This is based on the assessed level of risk and his perception of the circumstances that led to his convicted (i.e. he acknowledges that a sexual act took place). This is in line with Sex Offender Programs policy."

The Grounds for the Application 14Mr Ayoub identified three grounds for his application: (1)The risk assessment before the Authority (Static 99) was false; (2)The Authority relied on misleading information, namely that he was able to complete the recommended therapeutic programs when he had in fact been refused admission to those courses; and (3)The Authority failed to take into account the imminence of the end of his term and the desirability of his being supervised on parole. 15He contended that the risk assessment had erroneously given him a score of 4 and argued that his score ought be 2 since he had in fact been in a live-in relationship with a lover for more than two years. Further he submitted that, as he was born on 13 August 1979, he was very close to the edge of the age limit and that it was unfair to add to his score on that ground. 16As to the third ground, Mr Ayoub contended that it would not be desirable for him to be released into the community unless he had been subject to parole and that accordingly he ought be granted parole.

Reasons 17The Court's function under s 155 of the Act is limited in terms, as this Court has recognised: R v Naudi [2003] NSWCCA 160 at [19] per Simpson J (Hodgson JA and James J agreeing). 18I am not persuaded that this application is not an abuse of process within the meaning of s 155(3) of the Act. Nor am I satisfied that there is sufficient evidence to support the application. Accordingly, I am not permitted to consider the application by reason of the provisions of s 155(3) of the Act. I accept the Attorney-General's primary submission to this effect. 19However, as the application proceeded on the basis of full submissions, I propose to set out my reasons for dismissing the application, had the applicant met the threshold in s 155(3). 20As to the first ground, I do not consider that the information regarding the risk assessment can be regarded as "false" within the meaning of s 155 of the Act. An assessment of risk by reference to Static-99 is no mere mathematical exercise. It involves some clinical judgment to be exercised, as well as a professional assessment of the credibility of the person being assessed. Were it otherwise, any person undergoing the test could, to some extent at least, bring about a lower or higher score as the case may be, by the history given. It is apparent from the Psychological Report that the assessor considered that it was appropriate to allocate a point to Mr Ayoub's score for that factor on the basis of his prior inconsistent statements regarding the longevity of previous relationships. Professional opinions may differ as to the score to be allocated to a particular offender. This does not make any such opinions "false" as long as they are reasonably and genuinely held by the assessor. There is no evidence to indicate that the assessor's opinion as to Mr Ayoub's score was not reasonably or genuinely held. Indeed the report indicated that it was reasonably based. Accordingly, the information before the Authority was not false. 21The fact that Mr Ayoub is at the upper end of the age band for offending is not to the point. He fell within the band and it was, accordingly, open to the assessor to assess him as scoring a point on the scale for that criterion. 22The first ground has not been made out. 23As to the second ground, Mr Ayoub, in his submissions before me, confirmed the correctness of the factual basis for the Authority's reasons. He was offered a place in the CUBIT course and declined to participate. He contended, in effect, that he ought not be required to participate in such a course and that it was unfair to make him to do so, or to have his non-participation count against him in circumstances where he continued to protect his innocence. This submission has no place in these proceedings. I am concerned solely with whether the information provided to the Authority was materially false, misleading or irrelevant, not with whether the Authority ought to have made the decision it made. There is no basis for the proposition that the information on which the Authority refused parole concerning Mr Ayoubi's non-participation in courses fell into any of these three categories. 24The second ground has not been made out. 25The third ground is, in substance, that the Authority ought to have granted him parole because, if it is not granted and Mr Ayoub remains in custody until the end of his term, he will be inadequately prepared for release into the community. This ground was developed by Mr Ayoub in the course of oral submissions There is no evidence that the Authority failed to take into account the importance of a period of parole before the conclusion of Mr Ayoub's sentence. In any event, the Authority, as it was entitled to do, appears to have given greater weight to the need for Mr Ayoub to participate in a program to reduce his risk of recidivism. 26The third ground has not been made out. 27As the applicant has failed to demonstrate any ground that could give rise to relief under s 155 of the Act, I would have dismissed the application, even if I had found that it was not an abuse of process and that there appeared to be sufficient evidence to support it.

Orders 28I make the following order: (1)Dismiss the application.

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