Daniel Trevor Davis v New South Wales State Parole Authority

IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

PB0010/06 DANIEL TREVOR DAVIS v NEW SOUTH WALES STATE PAROLE AUTHORITY

JUDGMENT 1 HIS HONOUR: The plaintiff, Daniel Trevor Davis, is serving concurrent sentences of five years imprisonment which will expire on 19 February 2008. The non-parole period expired on 19 February 2006. Anticipating the expiry, the defendant, State Parole Authority of New South Wales (the Parole Authority), met on 15 December 2005. It decided to refuse parole and issued a Notice of Intention to Refuse Parole. The Notice invited the plaintiff to apply for a reconsideration of the determination. He did so. As a result the Parole Authority convened a hearing on 7 March 2006. On the same day the Parole Authority determined not to release the plaintiff to parole. 2 On 3 April 2006 the plaintiff commenced this proceedings by filing an application on a superseded Form (Form VA) under the Criminal Appeal Act and by writing a letter to the Chief Justice. According to the letter, the plaintiff was seeking a judicial review of the Parole Board's determination on the grounds of a denial of natural justice, failure to take into account relevant considerations, unreasonable abuse of power (acting outside guidelines) and error of law (insufficient evidence). The letter went on to assert that the determination was based on false, misleading and irrelevant material. The latter assertion would have been appropriate to initiate an application under the provisions of s155 Crimes (Administration of Sentences) Act 1999. The former, however, appeared to be a claim for prerogative relief. That gave rise to a difficulty for the Parole Authority for, although it might appear and contradict in an application under s155, it might not do so in a claim for prerogative relief: R v Australian Broadcasting Tribunal; Ex parte Hardiman (1980) 144 CLR 13. In the latter event, the appropriate course would be for the Parole Authority to enter a submitting appearance and for the Attorney General to intervene as contradictor. A letter was written to the plaintiff asking him to clarify the legal basis upon which he wished to proceed, but no response was received. When the matter was called on for hearing I asked the plaintiff to clarify the matter. He was unable to do so. I do not say so critically. He is not a lawyer and I suspect that he did not draft the application and the letter to which I have referred. Accordingly, I granted leave to the Attorney General to intervene to contradict. The Parole Authority filed a submitting appearance. 3 The evidence shows that the plaintiff was born on 9 December 1981. On 30 January 2002 he followed a sixteen year old girl from her home to a park and there raped her anally and vaginally. He was affected by alcohol. At his trial he admitted the acts of intercourse but said that the complainant had consented. The jury found him guilty and he was sentenced as I have described. In imposing sentence the trial judge recommended that the plaintiff have appropriate drug and alcohol psychotherapy whilst in prison. His appeal to the Court of Criminal Appeal was dismissed. 4 The plaintiff's record shows that he first offended when fifteen years of age and that he had since then been dealt with on several occasions by the courts, particularly for offences of violence and theft and kindred offences. There was a conviction for high range prescribed concentration of alcohol, too, and it appears that he was abusing alcohol. A condition of a series of four bonds granted to him in December 2000 was that he undertake alcohol and other counselling. Those bonds were in force when he committed the offences resulting in the current sentences. 5 When the Parole Authority made its decision on 15 December 2005 it had before it a Probation and Parole Pre-Release Report whose author had interviewed the plaintiff, the plaintiff's mother, a psychologist, an education officer and other concerned persons in the corrective services system and had read records of the sentence including the judge's remarks on sentence. The reporter noted that the plaintiff had no prior convictions for sexual offences but that a statement by the complainant contemporary with her complaint of rape asserted that some five months previously the plaintiff had committed an act of indecency in her presence and had indecently touched her. The reporter reviewed the plaintiff's abuse of alcohol and other drugs. She said that he described himself as a binge drinker but did not regard alcohol as a problem. His use of cannabis before and during the sentence was noted. Also the past use of amphetamines. The reporter observed that the plaintiff denied the offending behaviour and maintained that intercourse was consensual. He continued to claim that the complainant had fabricated the complaint, apparently to put things right with her boyfriend, and that the plaintiff saw himself as the victim. He had no empathy for the complainant or her family. The reporter noted two failed urine tests in gaol. In March 2003 he had declined to be assessed for alcohol and other drug counselling. In September of the same year he had participated, but reluctantly. In December of the same year he had participated. By August 2005 he was interested in alcohol and other drug courses such as relapse prevention. However, a case note recorded him as saying that the main reason for wanting to do so was for probation and parole. The plaintiff did not appear to have any psychiatric problems. He had a good work record and behaved himself generally. The reporter assessed him as presenting a medium-high risk of general re-offending and a medium-high risk of sexual re-offending. The reporter declined to support the application for parole until the plaintiff should undertake programs to reduce the risk of re-offending, particularly as to sexual offences, and to help him overcome his problems with alcohol and other drugs. 6 The Parole Authority refused parole for the following reasons - Unable to adopt to normal lawful community life; risk of re-offending; need to address offending behaviour (sex offending/AOD). 7 When the Parole Authority reconsidered the matter on 7 March 2006 it had before it in addition to the material I have reviewed a Supplementary Pre-Release Report. The reporter noted that after an assessment on 30 August 2005 it had been recommended that the plaintiff attend an alcohol and other drugs relapse prevention group. When a commencement date was set, he had failed to place his name on the waiting list, so he was not included in the course. Subsequently he had placed his name on a waiting list, but no commencement date had yet been fixed for another course. The plaintiff had been assessed by the Drug and Alcohol Community Youth Team at Port Kembla Hospital as suitable for counselling by that service. The reporter was concerned that the plaintiff was taking no responsibility for his offending and had not entered appropriate rehabilitation programs. In view of his failure to undertake programs offered to him in prison the reporter doubted whether he had the motivation to do so when released into the community. The reporter declined to recommend parole. 8 The plaintiff attended the hearing and was represented by a solicitor. There is a program for the rehabilitation of sexual offenders known by its acronym CUBIT. The plaintiff told the Parole Authority that he was not willing to enter the CUBIT program because he was maintaining his innocence. (It is a condition of entry into such a program that guilt be acknowledged). The plaintiff offered reasons why he had not participated in alcohol and other drug programs and stated his intention to enter an Alcoholics Anonymous program in the near future. He asserted that he would, if released, participate in the program at Port Kembla Hospital. 9 The Parole Authority noted that since the plaintiff was denying his offending he could not enter CUBIT. It noted the need for the plaintiff to come to terms with his offending behaviour and to do something constructive about his abuse of alcohol. The Parole Authority formally refused parole for reasons identical with those pronounced on the prior occasion.

s155 Crimes (Administration of Sentences) Act 1999 10 Section 155 is as follows - 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. 11 The power under this section is narrow. It is not a judicial review. It is not concerned with the merits of the Parole Authority's decision, nor with the weight to be placed on the factors the Parole Authority had to consider: R v Naudi [2003] NSWCCA 160; Galli v New South Wales Parole Authority [2006] NSWSC 206; DCU v State Parole Authority of New South Wales [2006] NSWSC 526. 12 The plaintiff must establish that there was false, misleading or irrelevant information before the Parole Authority and that the Parole Authority acted upon it in refusing to grant him parole. Relevance must be determined in part by the requirements of s135 of the same Act, which is as follows - 135 General duty of Parole Authority (1) The Parole Authority must not make a parole order 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) In deciding whether or not the release of an offender is appropriate in the public interest, the Parole Authority must have regard to the following matters: (a) the need to protect the safety of the community, (b) the need to maintain public confidence in the administration of justice, (c) the nature and circumstances of the offence to which the offender's sentence relates, (d) any relevant comments made by the sentencing court, (e) the offender's criminal history, (f) the likelihood of the offender being able to adapt to normal lawful community life, (g) the likely effect on any victim of the offender, and on any such victim's family, of the offender being released on parole, (h) any report in relation to the granting of parole to the offender that has been prepared by or on behalf of the Probation and Parole Service, as referred to in section 135A, (i) any other report in relation to the granting of parole to the offender that has been prepared by or on behalf of the Review Council, the Commissioner or any other authority of the State, (ia) if the Drug Court has notified the Parole Authority that it has declined to make a compulsory drug treatment order in relation to an offender's sentence on the ground referred to in section 18D (1) (b) (vi) of the Drug Court Act 1998, the circumstances of that decision to decline to make the order, (j) such guidelines as are in force under section 185A, (k) such other matters as the Parole Authority considers relevant. (3) Except in exceptional circumstances, the Parole Authority must not make a parole order for a serious offender unless the Review Council advises that it is appropriate for the offender to be considered for release on parole. 13 Unfortunately, the nature of the information on which the Parole Authority relied that was allegedly false, misleading or irrelevant has not been precisely identified. In his letter, the plaintiff reviewed much of the material that was before the Parole Authority, extracting quotations from documents and contending for conclusions to be drawn from them as though the matter were being heard afresh. He asserted that there was no material upon which the Parole Authority could conclude that he would be unable to adapt to normal community life. It may be possible to infer from what the plaintiff has written that he contends that the Parole Authority concluded without evidence that the plaintiff presented an unacceptable risk of re-offending merely because he was maintaining his innocence, that the Parole Authority should not have considered his failure to undertake a sexual offender program, given his ineligibility for CUBIT and that it should not have considered his failure to complete an alcohol and other drug rehabilitation program in coming to its conclusions. 14 As to these matters, the Parole Authority is bound to begin with an acceptance that an applicant for parole is guilty of the offence upon which the sentence is based. It would be inappropriate for the Parole Authority to refuse parole merely because an offender denied guilt or refused or was unable to undertake a custodial treatment program. However, the refusal or ineligibility to undertake such a program would be relevant to the question whether parole should be granted: DCU v State Parole Authority of New South Wales. 15 In view of the plaintiff's ineligibility for CUBIT, his failure to enter that program and his maintenance of his innocence are linked. There is no evidence that the Parole Authority refused parole merely because the plaintiff had refused to enter CUBIT or was maintaining his innocence. The Parole Authority's concern was that the plaintiff's failure to enter CUBIT had left his risk of re-offending at an unacceptably high level. It was proper for the Parole Authority to use the refusal in that way. The Parole Authority does not have unconfined discretion. It may not make a parole order, for example, unless the requirement of s135(1) is satisfied. 16 There is no reason to conclude that the Parole Authority refused parole merely because the plaintiff had failed to undertake counselling for alcohol and other drugs. As before, that fact was relevant to the assessment of the plaintiff's risk of re-offending, and plainly that is how the Parole Authority took it into account. 17 It has not been made to appear that the material before the Parole Authority was false, misleading or irrelevant.

Prerogative relief 18 The plaintiff complains of a denial of natural justice. The only part of his letter that might be relevant is set forth under the heading "Inmates explanation". The submission is that "this constitutes a manifest injustice as per circumstances set out in clause 219A" of the Crimes (Administration of Sentences) Regulation 2001. 19 I will set out only part of subcl (1) of cl 219A, thus - 219A Circumstances constituting manifest injustice (1) For the purpose of section 137B of the Act, the following circumstances are prescribed as circumstances which constitute manifest injustice: … (b) where the Parole Authority has previously refused to grant parole because the offender had not, due to circumstances beyond the offender's control, satisfactorily completed a program and the offender subsequently completes that program satisfactorily,

20 The meaning of cl 219A can be understood only by reference to s137B. That section lies in Part 6, Division 2, Subdivision 2 of the Act, which deals with parole for offenders serving sentences of more than three years. S137 deals with the consideration of parole when offenders first become eligible. The plaintiff's application in the present case fell under that section. S137 contains no provision like cl 219A and makes no reference to cl 219A. S137B, which does import cl 219A, provides as follows - 137B Consideration of parole so as to avoid manifest injustice The Parole Authority may consider an offender's case at any time after the offender's parole eligibility date, and without the need for an application, in such circumstances as may be prescribed by the regulations as constituting manifest injustice. 21 S137B has no relevance to the plaintiff's application for parole and neither, therefore, does cl 219A.

22 I have dealt with the question of irrelevance. It is not apparent from the matters put before the Court what relevant matters it is asserted the Parole Authority failed to take into account. It does not appear to me that there was any. 23 It is not clear what the plaintiff means by "unreasonable abuse of power (acting outside guidelines)". It is not clear how guidelines could determine the limits of power or which guidelines are referred to. It does not seem to me that the Parole Authority abused its power. 24 It seems to me that there is no substance in the assertion that there was an error of law because of insufficient evidence. There was evidence of the plaintiff's offending and of his failure to come to terms with the offence. There was evidence of his difficulties with alcohol and his failure to come to terms with them. There was evidence that he accepted no responsibility for his offending behaviour. There was thus evidence to support the conclusion that the plaintiff would not be able to adapt to normal community life. 25 The plaintiff was given notice of the hearing. He saw and heard the evidence on which the Parole Authority made its decision. He was legally represented. He gave evidence. His solicitor was allowed to cross-examine the author of one of the pre-release reports. His solicitor addressed the Parole Authority. The Parole Authority considered everything that was put before it. There was no denial of natural justice. 26 The plaintiff has not made out a case for prerogative relief. 27 The application is dismissed.

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