GARLING J: On 29 June 2022, the plaintiff, Simon Hickey, made application to the Court for a direction to be given to the State Parole Authority of NSW ("the SPA") pursuant to s 176 of the Crimes (Administration of Sentences) Act 1999 ("the Act") that the decision which it made to revoke his parole had been made on the basis of false, misleading or irrelevant information.
The SPA filed a submitting appearance. The Attorney-General for NSW was joined and acted as a contradictor in the proceedings.
For the reasons which appear below, the application by the plaintiff must be dismissed.
[2]
Relevant Factual Background
On 27 January 2022, the plaintiff was sentenced for three separate offences by McLennan DCJ in the District Court at Lismore. Only one of those sentences contained a non-parole period.
In respect of that offence, which was one of possessing or using a prohibited weapon without a permit, the plaintiff was sentenced to a term of imprisonment of 18 months to commence on 13 May 2021, with a non‑parole period of 9 months which expired on 12 February 2022.
The sentences for the other two offences were fixed term periods of imprisonment for 9 months and 3 months respectively. All three sentences were entirely concurrent.
Because the plaintiff's sentences were of 3 years or less, pursuant to s 158 of the Act, he was taken to be the subject of a parole order directing his release at the end of the non-parole period. Such an order is known as a statutory parole order, and is generally referred to by that name.
On 11 February 2022, the SPA revoked that statutory parole order.
In revoking his parole, the SPA advised the plaintiff that it had acted pursuant to s 159C(2) of the Act on the basis that the plaintiff was known to the SPA to be a "terrorism related offender" and that the plaintiff "… may engage in violent extremism".
As well, the SPA stated that it revoked the plaintiff's parole pursuant to s 130(1)(a) because it was satisfied that, if released, the plaintiff would pose a "serious identifiable risk to the safety of the community" and that such "risk cannot be sufficiently mitigated by community corrections officer directions or changing parole conditions".
The plaintiff was notified of the revocation of his parole by a letter dated 17 February 2022 from the Secretary of the SPA. That letter noted that in making its decision to revoke his parole, the SPA had determined that the plaintiff fell under Division 3A of Part 6 of the Act and that in making its decision it had noted the submissions made to it by the Commissioner of Corrective Services.
In that letter, the SPA also advised the plaintiff that there would be a "review hearing" on Tuesday 15 March 2022. The plaintiff was told that that review hearing was intended to be held in order "to consider the revocation of the Parole Order/s".
In a standard form letter on that day, the Officer in Charge of the relevant correctional centre where the plaintiff was being held was told that the plaintiff "has the right to appear at this hearing to appeal against the [SPA's] decision".
On 15 March 2022, the SPA heard the application for review. The plaintiff was represented at that hearing and took the opportunity, as was permitted, to make submissions both in writing and orally.
At the conclusion of the hearing on that date, the SPA reserved its decision.
On 5 April 2022, the SPA delivered its decision at a meeting on that day. It found, for the same reasons as had previously been articulated, that recission of the revocation order was not appropriate and that, accordingly, the revocation order of 11 February 2022 should stand.
On this occasion, separately from the decision made on 11 February 2022, the SPA released written reasons for its decision.
[3]
The Nature of the Application
As earlier indicated, this application is made pursuant to the provisions of s 176 of the Act.
That section is in the following relevant terms:
"176 Application to Supreme Court by offender
(1) If -
(a) the Parole Authority revokes … [a] parole order, and
(b) the offender to whom the … parole order relates alleges that the order has been revoked on the basis of false, misleading or irrelevant information,
the offender may, in accordance with the 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)."
It can be seen that the first matter which falls for consideration is the "threshold test" set out in s 176(3), namely whether the Court is satisfied that the application is not an abuse of process, and that there appears to be sufficient evidence to support it.
Fullerton J said in Blanch v New South Wales State Parole Authority [2014] NSWSC 835 at [8] this:
"In Rozynski v Parole Board of NSW [2003] NSWCCA 214 at [13] Greg James J makes it clear beyond question that this Court would need to be satisfied on what his Honour described as 'appropriate (usually new) evidence' that information supporting a revocation of parole was false or misleading in substance, before a direction under s 176 could be given. It is not sufficient that the information is simply challenged, and even less, if it is incorrect in some detail, without being false or misleading in substance."
Once a Court is satisfied of this threshold test, then its role is limited to examining the information provided to the SPA in terms of whether it is false, misleading or irrelevant: see Townsend v Parole Board [2001] NSWCCA 379 at [15]; Wainwright v Parole Authority of New South Wales [2017] NSWSC 1019 at [15].
In considering an application which remains after the "threshold test" is considered, the Court's function is limited. Wilson J said this in Wainwright at [16]:
"The Court is not hearing an appeal and is not concerned with the merits or otherwise of the Authority's decision, or with the findings of the Authority and consideration of how those findings have been made. This is not an application for a remedy in the nature of prerogative relief. The Court has no power to order the Authority to review its decision, or to meet to consider further release to parole, or to substitute a different decision from that made. It is a matter for the applicant to establish that the Authority's decision … was based, at least partly, on information that was in substance false, misleading or irrelevant."
Her Honour went on to note in Wainwright that the applicant in that case had been a persuasive advocate for his claim to parole, but her Honour added "… that is not something this Court can consider".
In considering an application for a direction, and consistently with the Court's limited role, it must identify and consider the "information" before the SPA. This is a term which has been the subject of judicial consideration. In Attorney General for New South Wales v New South Wales State Parole Authority [2006] NSWSC 865 at [73], McClellan CJ at CL observed the following about the meaning of "information" as that term is used in s 156 of the Act, which is relevantly identical to s 176:
"… Although it was appropriate for [the SPA] to receive submissions and, if persuaded that it should do so, act upon them, the nature of the submissions received did not provide information in the relevant sense. To my mind the information contemplated by s 156 is information going to the characteristics of the offence and the offender, and all matters relevant to whether or not it may be appropriate to allow their release. In the broadest sense the section has in contemplation factual information. …"
[4]
Evidence on the Plaintiff's Application
At the commencement of the hearing of the plaintiff's application, he sought solely to rely upon the submissions attached to his application.
After further discussion, the plaintiff agreed that the material which had been before the SPA at its February meeting should be put before the Court.
Accordingly, the Court has all the material which was put before the SPA. It is fair to say that comprised, in summary, the extensive submissions provided to the SPA by the Commissioner for Corrective Services ("the Commissioner") together with almost 300 pages of documentary annexures and a USB stick containing two videos.
The plaintiff did not tender any other evidence or material.
[5]
The Plaintiff's Submissions
The plaintiff's submissions asserted by argument that material which had been relied upon was false or misleading in five respects. He did not submit that any information was irrelevant.
The first submission was that particular internet posts to a site called "Stormfront.org" had been suggested in the Commissioner's submissions to have been made by the plaintiff. The plaintiff contended that that suggestion was false because the posts were not found on either his computer or phone but were found on a public forum under the name "AussieEarlTurner". His short point was that there was no evidence that the statements came from the plaintiff. He tendered no evidence or other material to demonstrate the falsity which he alleged in his submissions to this Court.
The second submission was that the plaintiff contended that part of the material provided to the SPA included copies of Facebook posts featuring an image of the Christchurch terrorist and an image of an incarcerated black man. The plaintiff submitted that there was no material before the SPA which would enable it to conclude that these screenshots from Facebook were posted by him or otherwise in any way his work. He submitted that the Commissioner's assertions contained in the submissions provided to the SPA were, in this respect, false or misleading.
The third submission made was that, although in the material provided to the SPA there was a link capable of being drawn between the plaintiff and the "neo-Nazi website, 'Daily Stormer'", the material was not capable of establishing that the Daily Stormer website had any connection, content or statements advocating violent extremism.
The fourth submission made was that an annexure to the submissions made by the Commissioner to the SPA was misleading because it featured an image of a child laughing at the movie of the Christchurch massacre. It was said that this was misleading because the image in the video contained no statements advocating support for violent extremism - rather, it was ridiculing a current event.
Finally, the plaintiff argued that the material provided to the SPA contained a video he had created and shared, entitled "How the Left Destroyed Australia", which should not have been taken into account because it was "completely political" and was "therefore protected by Australia's constitutional right to freedom of political expression". I understood the plaintiff's submission to be that the SPA erred as a matter of law to take any such material into account in its decision making.
[6]
Discernment
The first four matters relied upon by the plaintiff arise from the content of submissions made and arguments put by the Commissioner to the SPA. The four points attack a very small part of the substantial submissions made by the Commissioner.
The attacks in grounds 1 and 2 are directed to a submission made that those particular items were linked to the plaintiff. The plaintiff disputes that this is so.
As I have noted above at [25], McClellan CJ at CL said in Attorney General for New South Wales v New South Wales State Parole Authority that submissions received by the SPA from the Commissioner of the kind complained about by the plaintiff, whilst constituting material that was before the SPA, do not fall within the meaning of "information" contained in s 176(1)(b) of the Act and which must be demonstrated to be false, misleading or irrelevant. I agree with the remarks of McClellan CJ at CL in that decision.
The SPA was provided with information, here about 300 pages, which was drawn to its attention and upon which it acted in forming an opinion about whether or not parole ought be revoked. The submissions made were merely arguments by the Commissioner as to what that information establishes and what the consequences for the plaintiff's parole order ought be.
Furthermore, these two grounds advanced by the plaintiff simply constitute arguments as to why information put before the SPA should or should not be accepted. The Commissioner was entitled to make the submissions. The SPA could accept or reject them. Whether the SPA was correct or incorrect to do so is not a matter which can be considered in determining whether to make a direction of a kind provided for by the Act.
The third ground also falls into the same category. It attacks a suggested conclusion that the Daily Stormer website had a connection with or contained any content or statements advocating violent extremism. This is a ground which attacks any conclusion about what the information was capable of showing. It does not suggest that the information is false, misleading or irrelevant.
The fourth ground directly attacks an annexure to submissions. When one views the video on the USB which is called "How the Left Destroyed Australia", I am satisfied that the extract in Annexure B appears in that video. There is nothing false or misleading about that entry in Annexure B to the submissions.
Finally, I have considered the plaintiff's claim that the video he created should have been disregarded by the SPA because it was protected by the implied freedom of political communication. In performing its function under ss 130 and 159C of the Act, the SPA may have regard to all factual matters relevant to whether or not it may be appropriate to order release on parole: Attorney General for New South Wales v New South Wales State Parole Authority [2006] NSWSC 865at [73]. In my view, that information properly included the material regarding the video, and nothing about that material has been shown or argued to be false or misleading.
[7]
Conclusion
Whilst I have not the slightest doubt that the plaintiff was aggrieved by the decision, which was made without notice or forewarning to him on the day before he was due to be released on a statutory parole order, of the SPA to revoke his parole, the plaintiff has not established by any evidence that the information before the SPA was false, misleading or irrelevant. The plaintiff has not attempted to adduce any new or other evidence which might impact on that material. Rather, the plaintiff attacks submissions made by the Commissioner, or conclusions drawn, apparently, by the SPA from that material.
In those circumstances, the plaintiff has not met the threshold test contained in s 176(3), namely that he has produced "sufficient evidence to support the application".
In those circumstances, I have concluded that the application should be dismissed. As no order for costs was sought by the defendant, no order will be made.
[8]
Orders
I make the following order:
1. Application for direction to the State Parole Authority is dismissed.
[9]
Amendments
19 October 2022 - Addition of counsel's name on coversheet
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Decision last updated: 19 October 2022