GALLI v NSW STATE PAROLE AUTHORITY

LEGISLATION CITED : Crimes (Administration of Sentencing) Act 1999 s 155

New South Wales State Parole Authority (Respondent)

COUNSEL : Applicant in person Ms D M L Woodburne (Respondent)

SOLICITORS : Ms J K Witmer (Legal Aid Commission of NSW) Mr W Abadee (Crown Solicitor's Office)

THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

PB0007/2007 - JUAN CARLOS GALLI v NSW STATE PAROLE AUTHORITY

1 HIS HONOUR: This is an application under s 155 of the Crimes (Administration of Sentencing) Act 1999 which provides for an application to the Supreme Court by an offender where the Parole Authority decides that he or she should not be released on parole and where the offender alleges that the decision of the Parole Authority has been made on the basis of false, misleading or irrelevant information. In that event the Supreme Court may, in the exercise of its discretion, give a direction to the Parole Authority as to whether the information was false, misleading or irrelevant and make such directions with respect to the information as it thinks fit. 2 This provision does not, of course, give the Supreme Court any power to reconsider the decision entrusted by the Act to the Parole Authority. In this particular case the Parole Authority refused to grant the offender parole 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 address offending behaviour (sexual offending); unconfirmed post-release accommodation. The matter has therefore been stood over to 17 August 2006 for a report from the Probation and Parole officer to enable reports to be obtained for parole to be considered." 3 It seems to me that the standing over for some ten months of an application for a further review by the Board is, in substance, a refusal to grant parole. It may be assumed that the Authority expects that the Correctional Centre report and Probation and Parole officer's report, in addition to addressing the issues generally relevant to the question of parole, will in particular address those matters identified by that Authority as justifying the refusal to release the offender on parole on 7 October 2005. 4 It is difficult to believe that the Parole Authority would have regarded the fact that the offender's post- release accommodation was unconfirmed as decisive. It is obvious that the question of the availability of such accommodation could have been quickly and easily addressed. Indeed, as I understand it, this has now been done and it is clear that accommodation for the applicant on his release is available. 5 So far as his ability to adapt to normal community life, it is obvious from the report of the Probation and Parole officer that the only question in this regard is the risk of re-offending. It is not suggested anywhere in the report (which was apparently accepted by that Board) that there are other significant difficulties affecting his ability to adapt to normal lawful community life. 6 The risk of re-offending is linked to the need to address the offending behaviour which was of a sexual character. The pre-release report of the probation officer makes it clear that the applicant was refused participation in the sexual offender programmes otherwise available to offenders because he refused to admit his guilt of the offences for which he was convicted. Although the language in the report is that he refused to participate in the programmes, this is double-speak. It is a condition of entry into those programmes that the applicant admit his guilt. It is easy to understand why this should be so. If you are attempting to address particular behaviours of an individual, a denial by that person that they have exhibited those behaviours means that treatment is unlikely to be useful. It is, therefore, not a criticism of the particular sex offender programmes that are offered to offenders such as the applicant that they are not seen as useful where the individual does not accept his or her guilt. 7 The question to be considered by the Parole Authority is not ultimately whether an offender has undertaken such a programme, assuming that he or she was convicted of a sexual offence. The question is whether in all the circumstances an offender should be released to parole having regard to the criteria specified in the Act, crucially whether there is or is not a real risk of re-offending. In considering this question a number of matters are relevant. Of course, the nature of the offending itself is of significant importance. The objective facts and circumstances are set out in the reasons for sentence of Stewart ADCJ of 25 August 2000 and I do not propose to set them out here. In the course of his Honour's reasons, he said: "One of the problems in this case is the problem of rehabilitation. The prisoner still maintains his innocence. This makes this issue difficult to grapple with. However, despite the prisoner's attitude I think that the prospects of rehabilitation are reasonably good."

His Honour went on to say: "I treat this as a single incident. I note that it is out of character." 8 At the hearing on 7 October 2005, presided over by Mr Pike, the following exchange appears: "GRAHAM (Prisoner's Legal Service appearing for the offender): Your Honour and members of the Board, my instructions are that Mr Galli denies the offences for which he was convicted. He has maintained a denial and he is aware of the consequences of the continuation of his denial.

CHAIRPERSON: Did you want to take it any further than that?

CHAIRPERSON: In which case, Ms Vanney, (the Probation and Parole Service officer) do you have anything to add to the submission that has just been put to me by Mr Graham? VANNEY: No, I have nothing further. I think everything has been outlined in my report, thank you.

CHAIRPERSON: The Board will retire and consider those reports." 9 In the course of his remarks, the Chairperson stated: "The Board considered him for release on parole on 25 August 2005 and they formed an intention to refuse parole on the fact that he was unlikely to adapt to a normal community life; there was a risk of re-offending and there was a need for him to address his offending behaviour, particularly in regard to sexual offending behaviour. Parole was not recommended. There was also an unconfirmed post-release accommodation. Mr Graham confirms today that Mr Galli still maintains his innocence and accepts the consequences that follow that so far as parole is concerned. Accordingly, parole is refused for the reasons stated." 10 I am not so sure that this Court does not have jurisdiction, in an appropriate case, to require the Parole Authority to consider adequately and within the law according to the statutory criteria, its obligations in relation to parole. On the face of it, it seems to me that the Parole Authority considered that the fact alone that the offender refused to admit his guilt brought upon his own head the consequence that parole would be refused. If this is so, it strikes me as a complete refusal to undertake the task given the Authority by the Act. It is not for a prisoner to decide whether or not he or she will be paroled providing, of course, the prisoner is prepared to agree to the conditions of parole itself. It is for the Authority to determine that question, having regard to the statutory criteria. I am unable to see how there is anything in the Act which permits the Board to refuse to consider those criteria or to decide that any consideration of those criteria is foreclosed by a refusal by an offender to comply with any particular requirement, except of course the requirement to adhere to the conditions of parole. I am not faced, however, with such an application in this case but what I am going to do should be understood in the light of those observations. 11 I have already pointed to the terms of s 155 of the Act. It seems to me that a refusal by the Authority to consider material matters must have the effect that the facts that it is considered have misled it into making the decision which it has made. Furthermore, having regard to the phrase overall "false, misleading or irrelevant information" I am also of the view that regarding as decisive a fact that cannot be decisive, although it might be marginally relevant, is to make a decision upon the basis of such information. 12 It is, of course, for the Parole Authority to weigh up any particular fact in the context of the whole of the circumstances and, if that were done here, it may be that the application would have been refused. It is evident from the words of the Chairperson that this is precisely what the Authority has not done. In this respect it is necessary to point to two additional matters. 13 The first and perhaps most significant is the question of Ms Vanney, the relevant Probation and Parole officer, in her report of 1 July 2005. That reads: "Assessment and Recommendation Mr Galli's conduct record while in custody can only be described as very good. However, of specific concern is his emphatic denial of the offence and refusal to undertake custody post-treatment programmes. Mr Galli's focus at this point in time is primarily to clear his name once he is released from custody. Subsequently, his family have indicated their ongoing support of Mr Galli and his stated endeavours in clearing his name upon release.

Hence, Mr Galli remains an untreated sex offender and continues to deny the offence. Therefore, it is recommended that Mr Galli not be granted parole at this time. It is also recommended that Mr Galli participate in a sex offender treatment programme prior to release. However, it is noted that continued denial of the offence currently renders him unsuitable for such a programme."

As Ms Vanney's report points out: "On 7 February 2005 a psychologist in the MSPC area 5/6 conducted a risk assessment using static 99. On this particular assessment Mr Galli's score was low." 14 Mr Galli maintains that that shows that he is low risk and it appears clear that from the Inmates Classification and Case Management Procedures Manual that in relation to "criteria for sex offender programmes": "Inmates assessed as presenting a low risk of re-offending in a sexual manner will normally not be required to participate in a sex offender program and may progress through the normal case management process." 15 Ms Vanney, who perused the applicant's psychological file and who conducted wide-ranging interviews with a number of relevant persons, including those charged with Mr Galli's care and custody, did not suggest anywhere in her report that Mr Galli represented a significant risk to the community upon his release. It may be that she felt unqualified to make such an assessment. I think the reality is that in light of his not having been permitted to participate in the sexual offender programmes, she did not feel able positively to say that he did not represent such a risk. 16 There is no doubt that there is, generally speaking, a relatively high risk of recidivism amongst sex offenders. This generality must be qualified having regard to the kind of offences committed by an offender. No doubt this is one of the factors that led to the applicant being assessed as low risk. It seems to me quite misleading to select as the most fundamental and determinative fact that a particular offender has declined to admit his guilt and therefore has been refused access to the sexual offender programmes whilst in prison. 17 For those reasons I direct the Authority to reconsider, as soon as is practically possible having regard to any perceived need to obtain further information and reports, the question whether in all the circumstances the refusal of the applicant to admit guilt and consequent exclusion from sexual offender treatment programmes is misleading in relation to the statutory criteria for the grant of parole. 18 I might add there are a number of reasons why people do not admit their offences. Amongst the strongest of them is shame.

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