Hudson v NSW State Parole Authority

Supreme Court of NSW|2010-03-31|Before: Hislop J

Introduction 1 The applicant, Thomas William Hudson, was convicted at trial of three offences, namely attempting to manufacture ephedrine, attempting to manufacture methylamphetamine and conspiring with others to manufacture ephedrine. 2 He was sentenced for each offence to imprisonment for a non parole period of three years commencing on 17 August 2006 and expiring on 16 August 2009 with a balance of term of two years commencing on 17 August 2009 and expiring on 16 August 2011. The sentences were to be served concurrently. 3 On 2 July 2009 the respondent, NSW State Parole Authority, directed that the applicant be released to parole on 16 August 2009. The parole order contained a number of conditions, including: "3. The offender must, while on release on parole, adapt to normal lawful community life."

and "15. The offender must not use, or be in possession of, a prohibited drug or substance." 4 On 6 August 2009 the respondent revoked the parole order dated 2 July 2009 upon the basis the applicant was unable to adapt to normal lawful community life. 5 On 18 September 2009 a review hearing took place. The applicant was legally represented at the review and gave evidence. It was determined that the order of 6 August 2009 was to stand. In coming to that conclusion the respondent had regard, among other things, to the Revocation Prior to Release Report dated 21 July 2009 (the Report). 6 The Report contained the following information: "CURRENT SITUATION Mr Hudson returned to St Heliers Correctional Centre from weekend leave on Sunday 12 th July 2009 and during a search by a custodial officer, twenty cannabis seeds were found in the front pocket of the offender's trousers. The offender was charged internally and received a punishment of three days in cells and was further recommended to be regressed to a C2 classification, removed from C3 programs and transferred to Tamworth Correctional Centre. Mr Hudson denied ownership of the cannabis seeds and could not adequately explain how they came to be in his possession. RECOMMENDATION Mr Hudson has recently been employed on the farm at this Centre and his attempt to introduce cannabis seeds could suggest he was to supply them to other inmates for the purpose of growing the plants on the farm, particularly as he had already been granted Parole and was soon to be released from custody. As noted in the attached Pre Release Report, this Service had some concerns regarding the offender's lengthy criminal history, in particular offences for Supply Prohibited Drugs. During this period of incarceration Mr Hudson had progressed to a C3 classification with the associated benefits without having attended any programs and as such, the District Manager had expressed concerns and recommended he be monitored by the Community Compliance Group upon release from custody. Taking the above into consideration it is respectfully recommended that Mr Hudson's Parole Order be revoked and he attend programs such as Think First to address his offending behaviour. Patricia Gainey Probation and Parole Officer Muswellbrook District Office Date: 21 July 2009 If Mr Hudson is prepared to traffic prohibited substances whilst participating in a program such as weekend leave, this Service can only assume he would be willing to behave in a similar manner in the community. As previously noted in the Pre Release Report dated 17 th June 2009, Mr Hudson has denied any offence he has ever been convicted of and has shown no remorse, contrition or empathy for his potential victims. Despite being found with cannabis seeds in his pocket, once again Mr Hudson has denied ownership of the seeds and he has not provided an adequate reason for his behaviour. This Service already had reservations regarding this inmate being released to Parole and that concern has now been heightened given Mr Hudson's recent behaviour. Ms Gainey's recommendation is supported. Mandy Thomas District Manager St Heliers Parole Unit (Mbk) Date: 27 th July 2009" 7 On 7 November 2009 the applicant made an application to the court for a direction to be given by the court to the Parole Board. The direction sought was that the information upon which the Board, on 18 September 2009, made its decision that the parole order relating to the applicant be revoked was false, misleading, and irrelevant. 8 The application came on for hearing before me. The applicant, who appeared in person, made oral submissions in support of his application.

Principles 9 Section 155 of the Crimes (Administration of Sentence) Act, 1999 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, 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 LMS v Parole Board (1999) 110 A Crim R 172, this court approved a statement by Hunt CJ at CL in McCamley v Offenders Review Board (unreported, NSWCCA, 9 February 1994) concerning the nature of the court's powers under the former s 23 provisions of the Sentencing Act, when his Honour said (at 2-3): "There is no appeal from the Board's decision. This Court is concerned only with information which was before the Board and upon which the Board decided either not to release the applicant to parole or to revoke parole. The Court is not concerned with whether the Board acted in accordance with the statute: that is a matter for an administrative appeal to the Supreme Court…Nor is this Court concerned with whether the Board correctly interpreted or construed the information before it, or whether it drew correct inferences from the information or otherwise gave correct weight to that information. The only powers which this Court has are to give directions to the Board as to whether information upon which its decision was made was false, misleading or irrelevant and to give such further directions with respect to that information as it thinks fit." 11 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". 12 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 substitute its own decision, or 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 paras [5]-[7]. 13 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." 14 Since the cases I have referred to above were decided subs (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.

Determination 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 18 September 2009 on that information. 16 The applicant specifically identified four issues in his application. These issues are noted and considered hereunder.

The statement in the Report "twenty cannabis seeds were found in the front pocket of the offender's trousers" is false 17 The statement in the Report that 20 cannabis seeds were found in the front pocket of the offender's trousers was based upon the observation of the correctional officer who conducted the search of the applicant. 18 The applicant at the review hearing gave evidence: "they found a few marijuana seeds in the front and a whole heap in the back." 19 The applicant did not dispute that there were some cannabis seeds in the front pocket. His evidence suggests they were less than 20 in number. Nothing would appear to turn on this as he submitted to me that he would not have noticed 20 seeds in the front pocket. 20 In my opinion the applicant has not established that the information that 20 cannabis seeds were found in the front pocket of the trousers was plainly wrong. In any event, the substance of the allegation was that the applicant was in possession of 20 cannabis seeds and this was established by the applicant's own evidence as to what was contained in his front and back pockets.

The statement in the Report that the applicant "could not adequately explain how [the cannabis seeds] came to be in his possession" was misleading. 21 The information available to the author of the Report included information that the seeds were sitting unwrapped in the front pocket of the pants the applicant was wearing when searched. The applicant claimed he did not know the seeds were there and that the pants were not his, he having borrowed them over the weekend from another person whose name he could not remember. He had done so because his own pants were dirty. It was open to the author to conclude the applicant's explanation as to how the seeds came to be in his possession was not adequate. The applicant gave evidence at the review hearing by way of explanation. 22 The conclusion that the applicant could not adequately explain how the cannabis seeds came to be in his possession was open on the available information. This Court is not concerned with whether the inferences drawn by the respondent from that information were correct - see McCamley's case.

The statement in the Report that "His attempt to introduce cannabis seeds could suggest that he was to supply them to other inmates" was misleading 23 The comment complained of is no more than a suggestion made as the applicant at the time was soon to be released on parole. The comment is not misleading. It was dealt with by the applicant in strong terms in his evidence at the review hearing. It is not apparent that the respondent adopted the suggestion. Whether it did or did not is not a matter with which the Court is concerned - see McCamley's case.

The statement in the Report "This Service already had reservations regarding this inmate being released to parole" was irrelevant 24 The sentencing judge, when sentencing the applicant, had noted the applicant "has a number of drug offence convictions and has been sentenced to imprisonment on more than one occasion for drug offences…the telephone intercepts that were played satisfied me that he is a person who is part of the normal criminal milieu of drug distributors in the Gosford area and had been for some years." 25 The Probation and Parole Officer had recommended that the applicant be released to parole in her report dated 17 June 2009. However, the report was not unqualified, it being observed that: "This Service has some concerns regarding Mr Hudson's long criminal history including drug supply offences and his negation of ever using drugs. If this is correct, one would have to assume that these crimes were committed for financial gain and the offender has no concern or understanding of the impact of these offences; he feels no contrition or remorse for his offending behaviour." 26 The review hearing was concerned with determining whether the revocation of the parole order dated 2 July 2009 should stand. In these circumstances the pre-existing concerns about the appropriateness of release to parole were relevant to the determination of that question.

Conclusion 27 In my opinion, the applicant has not established that the respondent based its decision on false, misleading or irrelevant information in any of the four respects raised by the applicant. Accordingly, the application is dismissed. **********

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CITATION : Hudson v NSW State Parole Authority [2010] NSWSC 287

LMS v Parole Board (1999) 110 A Crim R 172 CASES CITED : McCamley v Offenders Review Board (unreported, NSWCCA, 9 February 1994) Jim Lee v State Parole Authority of New South Wales [2006] NSWSC 1225 Rozynski v Parole Board of New South Wales [2003] NSWCCA 214

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