David John Marlin v NSW State Parole Authority

Supreme Court of NSW|2009-02-20|Before: Hislop J

CITATION : David John Marlin v NSW State Parole Authority [2009] NSWSC 68

CATCHWORDS : CRIMINAL LAW - parole - s 155 Crimes (Administration of Sentences) Act 1999.

LEGISLATION CITED : Crimes Act 1900 Crimes (Administration of Sentences) Act 1999

Jim Lee v State Parole Authority of New South Wales [2006] NSWSC 1225 CASES CITED : McCafferty v Offenders Review Board (Court of Criminal Appeal 19 June 1995 - unreported) Rozynski v Parole Board of New South Wales [2003] NSWCCA 214

PARTIES : David John Marlin (Plaintiff) NSW State Parole Authority (Defendant)

COUNSEL : In person (Plaintiff) G Denman (Defendant)

SOLICITORS : In person (Plaintiff) Crown Solicitor's Office (Defendant)

IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

PA0013/2008 DAVID JOHN MARLIN v STATE PAROLE AUTHORITY OF NEW SOUTH WALES

JUDGMENT 1 HIS HONOUR: The applicant (David John Marlin) pleaded guilty to an offence of aggravated sexual intercourse without consent pursuant to s 61 J(1) of the Crimes Act 1900. 2 He was sentenced for this offence to imprisonment for a non-parole period of three years commencing on 30 September 2005 and expiring on 29 September 2008 with a balance of term of two years commencing on 30 September 2008 and expiring on 29 September 2010. 3 On 28 August 2008 the respondent (State Parole Authority of New South Wales) determined that the applicant "not be released from a correctional centre at this time for the following reason(s) "Need to further address offending behaviour (sexual offending / AOD / violence)."

4 On 17 September 2008 the applicant made an application that a direction be given to the respondent pursuant to s 155 of the Crimes (Administration of Sentences) Act 1999 ("the Act") on the grounds that the information on which the respondent based its decision on 28 August 2008 was "false / misleading / irrelevant." The applicant, in his application, identified the information he alleged was false, misleading or irrelevant. He did so by marking various parts of the Pre-Sentence Report dated 10 February 2006, the Pre-Release Report dated 17 July 2008 and the Supplementary Pre-Release Report dated 1 August 2008 each of which formed part of the material before the respondent when making its decision.

5 The application came on for hearing before me. The applicant, who appeared without legal representation, made oral submissions in respect of his application. The principal submission made by the applicant was that, though he had tried on many occasions to do the CORE programme at no time during the three and a half years he had been in gaol had he been able to do it. This was through no fault on his part. The programme had been offered to him only a week or two before his first parole hearing [on 1 August 2008] and he had not taken it up as to do so would have jeopardised his prospects of obtaining parole at the earliest available date. The applicant said that he remained prepared to do the programme but wished to be permitted to do it outside gaol. He said he had made arrangements to commence a programme with a clinical psychologist, Katie Seidler, if released. He stressed that he hadn't been able to do the programme due to no fault on his part and that it was unfair that he had been refused parole on the basis he had not done the CORE programme. 6 The CORE programme is a programme which targets the core issues common to sex offenders. It is a non-residential therapy programme for lower risk sex offenders who continue their regular institutional activities (e.g. education, work release). CORE runs in a group format and can be run two half days per week which takes five months, or one half day per week which takes ten months. 7 The applicant stated, in his submissions, "Firstly I am here hopefully to succeed on release on parole"…. "I am here today seeking reconsideration for me to do an external programme. Just please give me a chance to prove that I can do the right thing." 8 The applicant's statements referred to in the previous paragraph evidence a misunderstanding of the court's role and powers under s 155 of the Act. 9 Section 155 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, (c) 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). 10 In Jim Lee v State Parole Authority of New South Wales [2006] NSWSC 1225 Johnson J said… at [15] "Where the sentence of imprisonment exceeds three years, and a non-parole period is fixed, then the question whether the offender will be released on parole is one for consideration by the State Parole Authority… The State Parole Authority has the authority to release an offender conditionally from confinement in accordance with the sentence imposed upon him. The full sentence of imprisonment stands and during its term the prisoner is simply released upon conditional parole… The grant of parole by a paroling authority is a privilege and not a right". 11 Section 155 does not provide a form of appeal from a decision refusing parole, and does not permit the Court to set aside the State Parole Authority's decision and either to substitute its own decision, or to return the matter to the State Parole Authority to hear the matter again. It provides for no more than a direction to the State Parole Authority that the information upon which it acted is of a particular character… On a s 155 application, the Court does not concern itself with questions pertaining to the merits of a decision nor with questions as to what weight is placed upon various factors - see Jim Lee at paragraphs [5]-[7]. 12 In Rozynski v Parole Board of New South Wales [2003] NSWCCA 214 at [13] it was held. "…. information before the Board will not be characterised as false, misleading or irrelevant simply because it was challenged, even if challenged on such a basis before the Board and the challenge determined adversely to the applicant, nor if it is merely incorrect in detail but not false or misleading in substance. This court will need to be satisfied on appropriate (usually new) evidence that information was false or misleading in substance, and that the direction should be given. So far as there is a determination of the Board concerning information said to be false or misleading, before the court will so categorise that information, it will be necessary to satisfy the court that the Board's determination was plainly, not just arguably, wrong and further that the information was false or misleading and material to the Board's conclusion" - 13 This court is concerned only with the information which was before the Board - McCafferty v Offenders Review Board (Court of Criminal Appeal 19 June 1995 - unreported). 14 Since the cases I have referred to above were decided subsection 4 has been added to s 155 of the Act. The new subsection commenced on the 20 May 2008. The purpose of it, as stated in the second reading speech in the New South Wales Parliament, was "to make it abundantly clear that the Supreme Court does not have the jurisdiction to review the merits of a decision by the Parole Authority". Thus even if the court was of the view that the refusal of parole was unfair or unjust it is not a matter that can be remedied by an application under s 155. 15 The issues to be determined on this application are limited to:

(a) whether the information identified in the application was "false, misleading or irrelevant" and

(b) whether the respondent based its decision dated 28 August 2008 on that information. 16 The respondent, in its written submissions, dealt comprehensively with each of the matters which the applicant alleged was false, misleading or irrelevant. The applicant also made oral submissions in respect of each of those matters. 17 The information in the reports relied upon by the applicant is considered hereunder. 18 (a) the applicant relied upon the following comment in the Supplementary Pre-Release Report: "On 24 July 2008 the offender informed this Service that he did not intend to accept the offer [of a place in CORE Low-Moderate Sex Offenders' Program, held at Kirkconnell Correctional Centre]." On 25 July 2008 he signed a formal refusal to participate in a treatment programme, however he requested to remain in a waiting list for CORE… Mr Marlin formerly refused the offer of CORE on 25 July 2008."

(b) The applicant submitted: "I have not accepted the offer to the low to moderate sexual offenders programme held by Kirkconnell - I had not refused the programme. I just refused to sign my parole away at that time."

"To whom it may concern I have a number of reasons why im unable to except the offer into the Low-Moderate Core Program at Kirkonnell Correctional Centre, the main reason being my step father has cancer and we don't expect him to live much longer. The other reasons are im working here at Long Bay ive settled here I have made good friends here and I have fourtnightly visits from my family and friends here and if I went to Kirkconnell Id have nothing. Ive also been no guarantee of a starting date for the Program or do I have any guarantee that the Program wont be cancelled half way through because the physchologist being offered another job elsewhere. I want to make it clear Im NOT at any time refusing to take part in the moderate - low core Program but with only weeks before my parole sitting im not prepared to sign my Parole away… (d) The applicant understood that, if he accepted the offer, he would not have completed the programme by his parole date and thus the taking up of the offer would have denied him the possibility of parole at the earliest opportunity.

(e) The information in the report referred to by the applicant is not "false, misleading or irrelevant".

19 (a) The applicant relied upon the following information in the Pre-Release Report: "records indicate however, that apart from his daughter, the offender had not received any other visits from his children during his incarceration."

(b) The applicant submitted that this information was false as he had seen his two sons and one of his daughters a few times since being gaoled "but not for a bit over 12 months now." He referred to difficulties in arranging for the children to see him as they resided in Hay and his ex-wife made contact difficult and expensive. (c) In my opinion, whether the applicant was or was not visited by his children was not information on which the respondent based its decision. The application cannot succeed on this basis.

20 (a) The applicant relied upon the following information in the Pre-Release Report as being false: "On the day of the offence, Mr Marlin reported that he attended a local club and consumed two beers and six pre-mixed drinks over the course of the evening. He did not consider alcohol to be a contributing factor to the current offence nor his previous violent offences. This appears to contradict Service records which state that on a number of occasions the offender had consumed alcohol prior to perpetrating violent offences. Further to this, in a recent telephone interview his mother reported that the offender is more likely to respond violently when under the influence of alcohol."

(b) The applicant submitted: "…on the day of the offence I had been drinking. I started drinking probably at lunchtime and during the day had a few cans of Bundy rum and on the night of the offence I went to the Western Suburbs Leagues Club with a friend to celebrate her 31st birthday. At that time I only had 1 ½ schooners of beer. I enjoy a beer like anybody else. I don't feel that I have a problem with alcohol." - in the last 3 ½ years I haven't had a beer…. my intention is not to drink again." (c) In my opinion there is no difference of significance between the report and the applicant's submissions as to the amount of alcohol consumed on the date of the offence.

(d) The applicant's psychologist Ms Seidler had earlier expressed the opinion that it was likely that the applicant was minimising the extent of his alcohol use somewhat and that either his use was more significant and frequent than he reported or he tended to use alcohol as a negative coping strategy at times of emotional stress. In sentencing the applicant the sentencing judge referred to the findings of Ms Seidler as a significant issue which the applicant needed to address. The applicant's mother had stated "the offender is more likely to respond violently when under the influence of alcohol". The fact that the applicant had not undertaken any programs regarding the issue of alcohol was something the respondent was concerned about and a factor in its decision on 28 August 2008. In my opinion it has not been demonstrated that the information referred to was "false, misleading or irrelevant". 21 (a) The applicant relied upon the following information in the Pre-Release Report: "Further Mr Marlin will be referred to the Community Compliance Group for additional monitoring due to the nature of his offences."

(b) The Community Compliance Group monitors offenders in the community using such methods as compliance checks, electronic monitoring and writing assessment reports.

(c) The applicant in his submissions said that he would be prepared to accept a monitoring device or something like that and to otherwise assist the parole service.

(d) The comment referred to was made in the context of a consideration of how the applicant would be monitored if released to parole. The respondent's decision not to release the applicant to parole was not based on the availability of such monitoring. This information was not something on which the respondent based its decision. 22 (a) The applicant relied upon the following information in the Pre-Sentence Report: "unfortunately there are no periodic detention facilities available to the offender who intends to return to his address in Hay."

(b) The applicant, in his submissions, stated that if he was offered periodic detention anywhere he would avail himself of it.

(c) It has not been demonstrated that the information is false or misleading. It is information relevant to sentence considerations. It is not information upon which the respondent based its decision when it refused parole. 23 (a) The applicant relied upon the following information in the Pre Release Report "The assessing psychologist reported that, at the time, the inmate did not appear motivated to attend the programs" and "Between 21 November 2008 and 30 January 2009, Mr Marlin attended five sessions of the PREP Programme. He reported exiting the Programme voluntarily for personal reasons. Contact with the Programme Facilitator suggested, however, that the offender had left the programme to avoid disclosure of his offence and considered his exit from that programme a reflection on his poor motivation to address his offending. In interview with the writer, the offender claimed he had left the program due to differences with a fellow inmate and also because he disapproved of the Facilitator."

(b) It has not been demonstrated that this information was not true in recording what had occurred as a matter of fact (save for the obvious error as to the date) and the opinions of those contacted. The information was not misleading. The applicant's comments were noted and there was other material before the respondent, including correspondence, which supported the applicant's assertion he was motivated to attend the programs. Additionally the applicant was represented at the parole hearing and submissions were made on his behalf in this regard. The information in the Pre Release Report was relevant to the respondent's consideration of the application before it.

(c) In my opinion it has not been established that this information was false in substance, misleading or irrelevant. 24 I have considered the submissions and the material in evidence before me. In my opinion none of the information relied upon by the applicant and upon which the respondent based its decision was false, misleading or irrelevant. Accordingly the application is dismissed. **********

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