Clark v State Parole Authority of New South Wales and Anor

A Preliminary Step 7As appears from section 155(3), before an application such as this one can be considered, the Court must be satisfied that the application is not an abuse of process and that there appears to be sufficient evidence to support it. Ms A C Johnson, who appeared for the Attorney General, informed me that she did not wish to be heard on this issue. Having regard to the evidence which I am about to refer to, I am satisfied the application is not an abuse of process and that there appears to be sufficient evidence to support it.

The Relevant Principles 8As is apparent from section 155(4), the Court's power on an application such as this is quite limited. The relevant principles were recently considered by Garling J in Sutton v New South Wales Parole Board [2011] NSWSC 935. I respectfully adopt and apply what His Honour said at [9], namely: "The authorities establish these propositions: (a) An application for a direction from this Court to the Authority, is not an appeal, or any form of an appeal against the decision of the Authority: McPherson v Offenders Review Board (1991) 23 NSWLR 61 at [69C] per Hunt J (Meagher JA, Studdert J agreeing); (b) An application for a direction from this Court to the Authority is not concerned with whether the Authority acted in accordance with the statute, because it is not a proceeding in the nature of an administrative proceeding seeking prerogative relief: LMS v Parole Board (1999) 110 A Crim R 172 at [8] per Stein JA, Hulme and James JJ; (c) The role of this court in considering an application of this kind is extremely limited. It can only consider whether information given to the Authority was false, misleading or irrelevant. And then only if that information is a basis for the decision which was made: R v Naudi [2003] NSWCCA 160 at [19] per Simpson J (Hodgson JA and James J agreeing); Lee v State Parole Authority of New South Wales [2006] NSWSC 1225 per Johnson J; (d) On the hearing of an application, this Court is not concerned with any questions as to the merits of the decision of the Authority, or with what weight it placed on various factors: Radford v Parole Board [2002] NSWCCA 70 at [36], McCallum v Parole Board of NSW [2003] NSWCCA 294 at [33], DCU v State Parole Authority of New South Wales [2006] NSWSC 526 at [5]-[7] per Johnson J; (e) At the hearing of an application, this Court is not concerned with the thought processes of the Authority, or its findings based on the information before it: McCafferty v Offenders Review Board (Court of Criminal Appeal, 19 June 1995, unreported) per James J (Gleeson CJ and Ireland J agreeing); (f) The term "information" in section 155 is not used in any broad sense. It is used in the sense of factual information, namely information going to the characteristics of the offence and the offender and all factual matters relevant to whether or not it may be appropriate to order a release on parole: Attorney General for New South Wales v New South Wales State Parole Authority [2006] NSWSC 865 at [73] per McClellan CJ at CL, Lee at [14]; (g) In hearing an application, the Court needs to be satisfied that the information was false or misleading in substance. This will usually require evidence in addition to that which was before the Authority to discharge the onus on the applicant: Rozynski v Parole Board of New South Wales [2003] NSWCCA 214 at [13] per Greg James J (Hodgson JA and Simpson J agreeing)"

The Background to the Application 9The applicant was, on 12 March 1998, found guilty by a jury of two counts of stealing a motor vehicle, one count of robbery, and one count of maliciously wounding with intent to prevent his lawful apprehension. In short, the facts alleged were that the applicant and an accomplice had stolen two cars, and, using them, robbed the Commonwealth Bank at Casula Mall of about $510,000. An off-duty police constable who happened to be shopping in a nearby newsagency with his wife, attempted to tackle the applicant to prevent his escape. But in the course of performing that manoeuvre the constable was shot. The evidence against the applicant at trial consisted of admissions to police, evidence from the accomplice, and a body of circumstantial evidence. The circumstantial evidence included his having spent $125,000 in cash on consumer items shortly after the robbery, the finding of $100,000 in his home at a place where he told police it was hidden, the presence in his home of some firearms and ammunition, the calibre of the ammunition being consistent with that of the bullet which shot the constable, and telephone contact between the applicant and the accomplice on the morning of the robbery and afterwards. 10The convictions were upheld on appeal. A significant issue at trial concerned admissions the applicant was said to have made to police. After objection was taken to that evidence, the trial judge, Judge O'Reilly QC, admitted it. In doing so, His Honour rejected evidence given to him by the applicant that police had obtained the admissions by improper means, and he accepted the evidence of a police officer that they had not. The admissions were the subject of argument and some additional evidence on appeal. But once more, the issue was decided adversely to the applicant, and his appeal was dismissed. 11Judge O'Reilly imposed a number of concurrent sentences, the longest of which had a head sentence of 16 years, with a minimum term to expire on 2 April 2010. His head sentence expires on 2 April 2014. 12Throughout the course of his incarceration, and consistently with his assertion at trial that police had acted improperly in obtaining confessional evidence from him, the applicant has denied his guilt for the offences for which he was convicted. Consistently with that denial, he has declined to participate when offered relevant opportunities to undergo rehabilitative programs or be assessed for fitness to undertake them. However when it has come to undertaking trade courses and accepting work opportunities in the prison system, he has taken advantage of all of them. And in general terms, his conduct in the prison system has been very good. 13The relevance of an offender's denial of guilt and refusal to participate in custodial treatment programs to the Authority's decision concerning parole has often been considered. In DCU v State Parole Authority of New South Wales [2006] NSWSC 526 Johnson J summarised the relevant principles, noting (at [48]) that it would be erroneous to refuse parole solely because of a denial of guilt and a refusal or inability to undertake a custodial treatment program, though (at [50]) a denial of guilt and refusal or inability to enter a rehabilitation program would remain relevant to the decision whether or not to grant parole. 14At paragraph 30 of a report by SORC of 1 December 2009 this was said: "Over the years of imprisonment, while Clark has demonstrated poor attitude towards program participation, yet his behaviour and conduct have been acceptable. He has consistently been described as a polite and compliant inmate who has not posed a security risk or management problem for staff." 15But in that same report SORC concluded inter alia: "This career criminal has a lot to do: change his attitude to program participation with the consequential hard work that he will have to undertake. Or has a lot of time further to waste. Council advises that it is not appropriate for this offender to be considered for release on parole." 16Each of the decisions the subject of this application was based inter alia on a SORC report. 17At its meeting on 31 March 2010 the Authority found it was not satisfied the release of the applicant was appropriate in the public interest. In making that finding it summed up its position in the following way: "Unlikely to adapt to normal community life, unwillingness to comply with conditions of parole, [lengthy violent history and lengthy criminal history], risk of reoffending [limited participation in relevant programs], needs to address offending behaviour (Therapeutic) [needs to participate in therapeutic program to address violence e.g. VOTP etc], needs to address offending behaviour (General) [needs to participate in program(s) to address violence e.g. Anger Management etc], need for post-release plans [structured post-release plans in the community], needs to participate in the external leave program and SORC advised that it is not appropriate for the offender to be considered for release on parole." 18Although the applicant's first application sought to have orders made directed to that decision, I accept Ms Johnson's submission that it was superseded by the decision on 10 February 2011 and that that is the one to which this application is directed: see also Sutton at [21]. Although there was no argument about the issue, I took Mr Segal to concede that the first application ought be dismissed regardless of the outcome of the second. 19SORC made a supplementary report on 14 December 2010. In paragraph 1 it quoted from its earlier report, in particular this: "[T]his career criminal has a lot to do: change his attitude to program participation with the consequential hard work that he will have to undertake." 20SORC then considered a probation and parole pre-release report dated 12 April 2010. It then observed inter-alia the applicant had: "...continued to maintain his refusal to be assessed or undertake any offence targeted programs. Until Mr Clark is either able to establish his innocence or accept responsibility for his offending behaviour it is the recommendation of the service that the inmate's release to Parole not be granted". 21Paragraphs 3, 4,5,6 and 7 provided: "3. Clark was scheduled to be interviewed by an Assessment Committee of the SORC at Wellington Correctional Centre on 10 March 2010, however he refused to see the committee. 4. At its meeting of 7 April 2010 the SORC reviewed Clark's matter and recommended he remain as is, classified B, Wellington Correctional Centre. In making this recommendation the Council noted:

• Inmate continues to refuse Assessment Committee interview and offence targeted programs.
• Inmate needs to address offending behaviour.
• Council will write to inmate advising what programs are necessary.
• Council will review in 12 months unless inmate commences offence targeted programs.
• Good education and work reports.
• Non-parole period expired 2 April 2010, latest possible release date is to April 2014. The Assistant Commissioner (Delegate of the Commissioner) approved these recommendations on 5 May 2010.

5. In correspondence to Clark, dated 24 May 2010, advising the above decision, Council advised that in order to progress in classification, he will need to participate in suitable offence targeted programs, including the VOTP and AOD programs. Clark was recommended to make contact with psychology and AOD to determine the suitability for programs.
6. A review of case notes since Council's last report:

• In January 2010 Clark was offered an opportunity to attend a pre-interview session for Getting Smart but refused stated "I don't need it".
• In discussions with custodial staff continues to maintain his innocence and refuses to undertake programs. Indicates he is aware refusal to undertake programs will impact on his parole.
• Continues to be a willing and enthusiastic worker and attracts very good work reports.

7. Council notes advice of 10 December 2010 from Kerrie Wootton (Probation and Parole Officer, Wellington Correctional Centre) that: "During the past 12 months Clark appears to have maintained satisfactory institutional behaviour, he however has continued to maintain his innocence, refused to participate in any therapeutic programs or to cooperate with SORC. When challenged about his intentions to comply with instructions from his allocated PPO post-release, particularly in relation to the completion of therapeutic programs he indicated that he would not comply with any such direction. Therefore, at this time it is my intention to recommend that Mr Clark not be released to parole"." (My emphases: hereafter I shall refer to that advice from Ms Wootton as "paragraph 7") 22The Authority considered that report by SORC and, relying on it, denied the appellant parole on 10 February 2011.

The Information which was False, Misleading, or Irrelevant 23The applicant asserts that both of the Authority's decisions were made on the basis of false, misleading or irrelevant information. However, as I have noted, it is the more recent decision which I must concern myself with on this application. Through his counsel, Mr P Segal, he asked that a direction be made to the Authority to the following effect: "(a) That the Parole Authority consider the case of the applicant without having regard to the opinions of the Serious Offenders Review Council (Review Council) in relation to the rehabilitation of the applicant based upon whether the applicant has not, or will not, participate in programs as referred to by the Review Council. (b) That the Parole Authority be directed to consider the rehabilitation prospects of the applicant without taking into account the reference to him as a career criminal expressed by the review Council." 24Ms Johnson submitted that if I were to find information relied on had been relevantly false, misleading or irrelevant, those directions would not be appropriate. However she said she was content for me to list the matter for further argument as to the formal orders, if I come to the conclusion that directions should be given. 25Mr Segal submitted that as SORC reports are highly influential when the Authority makes its decisions, it is significant when, as he contended had occurred here with his history, SORC reports contain false misleading or irrelevant information. 26When the applicant filed each of his two applications, he asserted a large number of matters relied on had been in that category. For example the names of several of the judges who had heard his unsuccessful conviction appeal were said to have been erroneously stated. And he asserted that it was not explained when dealing with his history, that when certain charges against him were "no billed", that was because he could not have committed the offences because he had been in custody at the relevant time. 27In the course of submissions Mr Segal made it plain that he did not rely on all alleged errors. In the end I understood that only two assertions were relied on as the relevant "information", namely: (a)That the accused was a career criminal; and (b)The assertion recorded as having been made by Ms Wootton that he would not comply with instructions from his allocated PPO post-release, particularly in relation to completing therapeutic programs. 28He did argue faintly in his oral submissions that the assertion the applicant had been charged with murder and armed robbery, the charges then having been no billed, was irrelevant. But I do not consider that irrelevant: it was part of the background material to be considered.

The Assertion that the Applicant was a Career Criminal 29The Oxford English Dictionary, in the context of an "occupation", describes having or being in a "career" as "working permanently in or committed to a particular profession." 30In Rozynski v Parole Board of New South Wales [2003] NSWCCA 214 at [13] (per Greg James J, Hodgson JA, Simpson J agreeing) said in this context: "Information ... will not be characterised as false misleading or irrelevant if it is merely incorrect in detail but not false or misleading in substance ..." 31At the time he went into custody in 1996 the applicant was aged 29. As is apparent from his record, he had, at that stage, the following convictions or offences recorded: Year Offence 1981 Stealing (two offences). 1982 Stealing (two offences) Possession of instruments for breaking and entering. 1983 Unlicensed drive, take and drive conveyance. 1984 Drive manner dangerous, unlicensed driver, stealing motor vehicle, driving speed dangerous. 1985 Carried in conveyance. 1986 Stealing, steal motor vehicle (two counts). 1987 Break enter and steal, fail to appear (three counts), breach of CSO, possess implements (three counts) goods in custody (three counts) offensive conduct, break and enter with intent (two counts) steal motor vehicle (two counts) goods in custody (two counts) fail to appear (two counts), unlawfully take shop goods away. 1989 Custody of prohibited article (three counts), possess offensive weapon (three counts), possession of plates intended to deceive (three counts), owner permit unregistered, owner permit unlicensed, found in a yard without lawful excuse. 1990 Robbery (taken into account on a Form One) malicious wounding, maliciously destroying or damaging property, break enter and steal (three counts) (taken into account on a Form One) break enter and steal (two counts) break enter and steal with intent to commit a felony (taken into account on a Form One). 1993 Break enter and steal. 1994 Low range PCA, unlicensed driver, make false accusation. 1996 The offences for which he is serving his current term.

32Thus by the time he committed the subject offences, he had committed a large number of offences, mostly for dishonesty, over a period of 14 years, which made up almost half of his then life. It is true, as Mr Segal put to me, that many of the offences were committed when he was a young person. But I see no reason to ignore the offences for the purpose of assessing the accuracy of the description "career criminal". And he had no other "career". He left school at age 15 at year 9 level. As is noted at page 47 of Mr Cottman's affidavit of 27 May 2011: "After leaving school he held the few short-term positions in unskilled industries however by his own admission [he] chose to turn his abilities towards criminal activities to support himself" (This material comes from a presentence report of 9 September 1996). 33I do accept Mr Segal's submission that between 1990 and early 1996, there were few offences. 34But dealing only with that part of his life prior to 1996, even taking into account the relatively few convictions from 1990 to 1996 and the fact that the "career" only took him to age 29, I do not consider the description "career criminal" is false or misleading in substance. I well understand that the applicant would not accept the description is an accurate one, particularly given his good conduct in recent years in the prison system. But in the context of his life before he went into the prison system, I do not consider the expression could reasonably be considered as false or misleading. 35Further, I do not consider the use of the expression in its context could be described as providing "information". On its face, the expression was merely used by the author of the SORC report as a short hand way of describing that part of his history before going into custody. And from the context in which the description appears, I do not consider the Council was moved in any way to make its decision based on that description.

Failure to Comply with Directions to Undergo Therapeutic Programs 36It is necessary to consider some of the applicant's history concerning rehabilitation. The Council's report of 14 December 2000 noted he "continues to be a willing and enthusiastic worker and attracts very good work reports". 37The applicant has shown good conduct in the prison system. I am persuaded he has undertaken whatever vocational courses and work, have been offered to him. The prison record suggests that he has shown good capacity for hard work, dedication and the ability to work in a team. Consistently with that attitude and aptitude for work, the evidence shows he has, through his family, arranged employment in the community when released. He has, so the evidence suggests, close community ties, with family members keeping in touch with him and providing him with support. His parents are apparently well and living near Sydney and willing to give him accommodation which is close to the place where there is work available. 38But the applicant has been selective in the courses he has been prepared to do or be assessed for. As is noted above, he continues to maintain he is innocent of the crimes for which he was convicted 13 years ago. He has consistently maintained that attitude although he understands it may prevent his being paroled. Consistently with that position, he refuses to undergo therapeutic courses such as anger management, which are designed to help with his rehabilitation and to ease his way back into society. His counsel said that he would regard it as hypocritical to undergo such courses. He would not be approaching them with a sincere attitude. He would be engaging in a game of pretence. 39There is, as his counsel noted, irony in this situation. He could pretend to be genuine, and embrace and complete the therapeutic courses. Or (as he has in effect done) he can say: "I do not want to mislead the authorities: if I did the programs my heart would not be in them." Indeed, in McCallum v Parole Board of NSW [2003] NSWCCA 294 at [30], Smart AJ (Hidden and Greg James JJ agreeing) said: "It would be undesirable for an offender, in order to obtain parole, to follow the counselling course and appear to be doing what the counsellor or other specialist deems necessary when not in truth ascribing to it and believing it to be unnecessary. That would compromise any integrity which remains in the offender." 40But the evidence shows that pre-release parole authorities are concerned that his attitude to therapeutic courses suggests he will have a poor attitude to compliance with all directions from parole authorities once he is back in the community. That appears to be the real barrier to his being paroled. 41Mr Segal conceded that section 198(2A)(d) of the Act requires SORC to consider (among other factors) "the offender's willingness to participate in rehabilitation programs and the success or otherwise of his or her participation in such programs." Whilst conceding that, however, Mr Segal submitted his suitability for parole ought be considered from his perspective, that is, as a man maintaining his innocence but still able to demonstrate suitability for release into the community. Mr Segal submitted that a parole candidate should not be disqualified from release on parole by reason alone of his maintaining his innocence and not wholeheartedly participating in programs. 42Whilst accepting the validity of that contention, I am by no means persuaded SORC has overlooked it, or that I would have power to direct it to take that matter into account if I considered it had. Indeed, in the end I did not understand Mr Segal to argue SORC had failed to take that into account. 43Ultimately the material which was said to be misleading was, I took it, what appeared in paragraph 7: "During the past 12 months Mr Clark appears to have maintained satisfactory institutional behaviour, he however has continued to maintain his innocence, refused to participate in any therapeutic programs or to cooperate with SORC. When challenged about his intentions to comply with instructions from his allocated PPO post-release, particularly in relation to the completion of therapeutic programs he indicated that he would not comply with any such direction. Therefore, at this time it is my intention to recommend Mr Clark not be released to parole" 44That material was contradicted by the applicant. In his affidavit of 19 April 2011 he said: "5. I have not refused to comply with directions from Parole Officers post-release as indicated in the SORC report of 14 December 2010, paragraph 7. I have not refused to participate in therapeutic programs or any other program post-release. I have never intimated as such to Kerrie Wootton or any other officer. 6. I do not need to participate in VOTP or AOD programs to have my classification reduced. I am not compelled by law to participate in such programs. I have demonstrated good behaviour independent of any such programs. 7. Reference in the Pre-Release Report dated 20 January 2011 to the effect that I would not comply with conditions of parole post-release are totally false. I have never indicated anything of the kind to Kerrie Wootton or any other Probation and Parole Officer 8. I have stated to the Probation and Parole service that I would agree to wear an ankle bracelet to monitor my movements post-release. Any mention of this is omitted from the pre-release reports made available to the State Parole Authority referred to." 45These assertions by the applicant, on their face, raised a factual issue. The applicant was not cross examined, and Ms Wootton was not called. I took the representatives for both parties to agree that such a dispute could have been dealt with before me on the application. Ms Johnson however submitted it was not for the Court under section 155 to adjudicate on which of the two versions is correct: there was plainly evidence before SORC to suggest the applicant had said he would not comply with directions. 46I took Mr Segal to say there was not really a dispute to be resolved. There was simply additional material available which made paragraph 7 misleading by what it omits to say. For the reasons which follow, I accept that submission. At page 47 of the affidavit of Mr Tutton, there is a note (the Wootton note) which says: " Identified programs needs (if previously known) A case note dated the 20/12/2010 Author PPO Kerry Wootton states inmate has agreed to undertake the CALM program in the community when released please see attached case note? Wayne maintained that he felt completing VOTP would be like admitting guilt for something he did not do. He also maintains that he has been treated badly by SORC and apparently that they tried to bully him into attending programs. Despite this Wayne indicated that he had given some more thought to programs in the community, he advised that he would be happy to wear an anklet and see a psychologist and that he would even complete CALM (although he claims he does not really have an anger management issue - admitted to one anger/ violence related offence in his history which it claims occurred at least 20 years ago)?" 47As is apparent, the note shows the applicant was not against doing all programs, just the ones involving an admission of guilt. Paragraph 7, Mr Segal put to me, did not give a true picture, because it suggested he was against doing all programs, not just the ones requiring an admission of guilt, whereas the Wootton note showed the true picture, and that was a picture SORC did not have before it when it made its decision. Since paragraph 7 presented a picture which was not the true one, he submitted, it was false and misleading. Since the Authority had relied on the SORC report, its decision was also made on the basis of false or misleading information.

Consideration 48It is clear to me that the applicant has, for some years, maintained to prison authorities that he will not undertake courses which require him to admit his guilt. A close reading of the SORC report reveals a number of references to that fact. That report also shows SORC regarded that fact as most significant when recommending against parole. But it also seems fairly clear from the content of the SORC report that SORC, when considering the application, did not have before it the Wootton note. Nor is it apparent to me that the Authority had it. Mr Cottman's affidavit at paragraph 8 sets out the documents the Authority had access to before its decision of 10 February 2011. The Wootton note is not one of them. At paragraph 9 he said the Authority: "...would have had access to other documents held on the ... file... although only the documents listed above at [8] were specifically provided to members... for the purposes of the meeting." 49The evidence before me (which is apparently more on this issue than was before SORC or the Authority) persuades me that on its own, paragraph 7 of the SORC report is misleading. It is of course, to an extent, qualified ("particularly in relation to the completion of therapeutic programs"). But throughout the remainder of the SORC report there are multiple references to the fact that the applicant would not take courses requiring an admission of guilt. (See for example references to his refusal to undergo "offence related programs", in paragraphs 2,4,5 and 6). Nowhere in the SORC report is there any reference to the fact that the applicant had agreed to undertake the CALM program in the community, and was happy to wear an anklet, and prepared to see a psychologist. 50Thus I accept Mr Segal's submission that the SORC report contained (by omission) information which was misleading. It did not give the full picture. Further, I am satisfied the misleading paragraph was relevant information: Rozynski at [13]. I find that by relying on the SORC report, as it did, the Authority made its decision on the basis of misleading information.

Conclusion 51The application of 9 December 2010 should be dismissed. On the application of 19 April 2011, a case has been made out for relief. A direction should be given. It cannot be more than a direction to the Authority that the information upon which it acted was of a particular character: McPherson v Offenders Review Board (1991) 23 NSWLR 61 at 69. 52I will hear from the parties as to the form of the direction.

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: 14 October 2011