CHANNELL v NSW State Parole Authority

JUDGMENT 1 HIS HONOUR: These proceedings arise in consequence of an application made on 19 September 2005 by the Plaintiff under Section 155 of the Crimes (Administration of Sentences) Act 1999. So far as is presently relevant, the Section provides:- (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. 2 On 8 September 1999 the Plaintiff had been sentenced by Judge Knight in respect of something over 20 offences. The effective total sentence was one of 8 years including a non-parole period of 5 years both such periods to commence on 23 August 1999. The non-parole period thus expired on 22 August 2004. 3 On 1 September 2005 the Parole Board considered the Plaintiff's case and determined that he not be released from a correctional centre until further review by the Board for the following reasons:- "The Board has sufficient reason to believe that if released from custody at this time the offender would not be able to adapt to normal lawful community life; risk of re-offending; need to further address offending behaviour (sex offending); unsuitable post release plan." 4 Before the Board on that occasion was a report of Mr Fitzsimmons of the Long Bay Parole Unit that "there are no appropriate services in the area where (the Plaintiff) plans to live." There was, in addition some oral evidence on the topic. Unfortunately the transcript to the proceedings before the Board, which were obviously sound recorded is in some respects not clear. However, dealing with the evidence of Mr Meyers, the unit leader at the Long Bay Parole Unit, the transcript reads:- Q. Mr Fitzsimmons apparently regards it as unsuitable because he says that close supervision would be unable to be provided and there are no facilities for the treatment of sex offenders in the area, referring, I gather, from that paragraph 2, that's referring to Narromine. A. Yes, he certainly states that in relation to Narromine. Q. That wouldn't be the case in relation to Dubbo, would it? A. It's certainly not ..(indecipherable) .. fairly close to Narromine, and our major concern would be the availability of treatment for sex offenders in Dubbo. Q. Can you tell us there are none? A. I .. (indecipherable) .. fairly close to Narromine, and our major concern would be the availability of treatment for sex offenders in Dubbo. Q. Can you tell us that there are none? A. I.. (indecipherable).. that there is ..(indecipherable).. from the corrective services unit who does ..(indecipherable).. Dubbo ..(indecipherable).. Mr Channell, I'd have to talk to him about that and I understand he would probably have to do an assessment. Q. But presumably there are persons who are liable to report to the Dubbo parole office who, as a condition of their parole, are required to have some sort of counselling or sex offender programme, aren't there? A. "I'm not aware of the … (indecipherable)… in Dubbo but … (indecipherable)… sex offenders… (indecipherable)." 5 Some further light as to the extent of the information which was before the Board is afforded by submissions of a Mr Graham of the Prisoners Legal Service who appeared for the Plaintiff. What Mr Graham said included the following:- "We really don't know what there is available in Dubbo or anywhere near Dubbo, I find it difficult to believe that there is no-one in that entire area which services - Dubbo services a very large area of New South Wales, and I would find it extremely to believe that there is no-one there capable of providing some psychiatric or some psychological counselling that could provide him with the further addressing of his offending behaviour, that the Board seems determined that he requires. … As I say, as for the - there are no facilities for the treatment of sex offenders, we accept that that is the case insofar as Narromine is concerned, one would be surprised indeed if there were forensic psychiatrists or psychologists living in Narromine and I don't accept and indeed there is no evidence of what is available in Dubbo other than the suggestion by the Parole Officer that there are other sex offenders who are supervised in that area, which makes it seem likely that there is someone or more than one person able to provide the sort of counselling the Board seems to think that he needs and the sort of treatment." 6 On 13 October 2005 the Plaintiff wrote to the Parole Board seeking re-consideration of its decision. He asserted that his personal details on the Parole Authority Offender Report which had been before the Board had been altered so as to include a statement that he had a tattoo on his wrist in terms "AC/DC", that the connotations of that term were calculated to be prejudicial and that in fact he had no such tattoo. Secondly, he asserted that the Long Bay Parole Officer had stated at the Parole Board hearing that there were not any accredited psychologists or therapists available in the Dubbo area to assist him in the continuing with treatment whilst out in the community and that that statement was incorrect. 7 In expansion of the latter proposition, the Plaintiff said that he had assumed the parole officer would have had access to a database of the types of support available, he himself had made some enquires of the Dubbo District Parole Office that were unproductive but that - "I have now made my own enquiries from the Australian Psychological Society and obtained confirmation of psychological support available to me when I am released." 8 In the letter, the Plaintiff also maintained that he had not committed the offence which is the subject of his only remaining sentence. 9 The significance of the reference to the Dubbo area lies in the fact that the Plaintiff, if released, intended to reside with his wife in a smaller town some 40 km away. It was not suggested that there was a psychologist or therapist in that town but Dubbo, where the Plaintiff's wife worked each day, was considered by the Plaintiff close enough for any counselling to occur there and to be large enough as to make the presence of an appropriate counsellor likely. 10 On 27 October, the Parole Authority - as the Board by that time was to be known - wrote to the Plaintiff in response to his letter of 13 October saying that it had considered all the matters raised in the correspondence and determined that its decision of the 1 September 2005 was to stand. 11 In the proceedings before me, Counsel appearing for the Parole Authority drew my attention to a number of decisions as to the operation of s155, in particular R v Naudi [2003] NSWCCA 160; McPherson v Offenders Review Board (1991) 23 NSWLR 61; LMS v Parole Board [1999] NSWCCA 371; Rozynski v Parole Board of New South Wales [2003] NSWCCA 214. 12 She also accepted that the statement that the Plaintiff bore a tattoo was wrong but submitted that there was nothing to indicate that it was a matter upon which the Parole Authority had relied. Secondly, while conceding that there was evidence before the Authority to the effect that there were not psychologists or therapists in Dubbo who had the accredited expertise to offer the therapeutic treatment necessary for the Plaintiff to address his offending behaviour, she submitted that there was no evidence before me that such information as was before the Parole Authority on the topic of psychological or other services available in Dubbo was wrong. Thirdly she submitted that in light of the Authority's reconsideration of the matter, I should proceed on the basis that the instant application should be treated as a challenge to the later decision. 13 I accept the first of these submissions. There was so much other information before the Parole Authority concerning the Plaintiff's sexual history that it is inconceivable that the reference to a tattoo could have had any effect on the Authority's deliberations. 14 So far as the second submission is concerned, neither in his letter of 13 October last nor in the proceedings before me was there any documentary support for the Plaintiff's claim in the letter that he had "obtained confirmation of psychological support available to me when I am released." That absence is important because it is clear that what is regarded as needed in this area is not only psychological support but such support by someone trained and qualified in the area of dealing with the problems of sex offenders. The Plaintiff's statement does not address this important requirement. 15 Section 155 in terms make it clear that it is a precondition to this Court making any direction under the section that someone in the situation of the Plaintiff claim that the decision of the Authority was made on the basis of "false, misleading or irrelevant information" and that any direction to the Parole Authority that the Court makes must concern "whether the information was false, misleading or irrelevant". 16 In substance the information from the Probation and Parole authorities that was before the Authority was not that there were no suitable services in Dubbo but that they, that is Mr Fitzsimons and Mr Meyers, did not know. There is no evidence before me that such information was "false, misleading or irrelevant". Accordingly the application to me must fail. 17 This conclusion makes it unnecessary for me to consider that third of the submissions advanced on behalf of the Authority. However, I may perhaps say that my initial reaction is that because it is the first of the Board or Authority's decisions against which the Plaintiff has brought the proceedings, that is the one with which I am primarily concerned. The relevance of the second is only on the question whether there is any utility in the Court doing anything. 18 Before I leave the matter, I would however add this. It does seem entirely unsatisfactory that the Authority should be asked to make a decision to which the existence of appropriate counselling facilities is relevant without being given positive information as to the availability or non-availability of such facilities. It is to be hoped that before the Authority next considers the question of the Plaintiff's parole, either the Probation and Parole authorities or the Plaintiff or his wife is in a position to place before the Authority clear evidence as to that availability. Presumably if there are appropriate persons in Narromine or Dubbo, they or their professional organisation would be willing to provided documentary evidence of their presence, and training and/or qualifications.

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