Section 155 of the Crimes (Administration of Sentences) Act 1999 (NSW) gives the Supreme Court a confined power to address information alleged to be false, misleading or...
An applicant under s 155 must establish that information before the Parole Authority was false, misleading or irrelevant in substance and that it formed at least part of the...
Given s 135(3)(j), information is relevant if it may lead, directly or indirectly, to the Parole Authority's satisfaction about whether release is in the interests of community...
The application was dismissed because the applicant did not establish that the challenged information, including information that was wrong or incomplete, was relied upon by the...
Issues before the court
What is the scope of the Supreme Court's jurisdiction under s 155 of the Crimes (Administration of Sentences) Act 1999 (NSW)?
Did the applicant establish that challenged information about IDATP was false, misleading or irrelevant and relied upon in refusing parole?
Plain English Summary
The Supreme Court did not reconsider whether Karpatsis should have been granted parole. Its role under s 155 was much narrower: to consider whether the refusal was based on information that was false, misleading or irrelevant. Although the Court identified one misleading description of the IDATP program, it found that this did not assist the applicant and had not been shown to influence the parole refusal. The other complaints did not establish the required statutory grounds or show that the disputed information founded the decision. The application and proceedings were dismissed.
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Deep Dive
2,480 words · generated 02/10/2026
What happened
Spiros Karpatsis applied to the Supreme Court of New South Wales under s 155 of the Crimes (Administration of Sentences) Act 1999 (NSW). He sought a direction concerning information in a Community Corrections Officer's “Pre-Release Report, Manifest Injustice”, dated 2 July 2020. The report was before the Parole Authority at a meeting on 16 July 2020, where it refused parole.
Were the disputed matters irrelevant to the Authority's parole decision?
Did the report's treatment of custodial misconduct, mental health and other matters establish a statutory ground?
Cited legislation
2 cited instruments linked from this judgment.
Karpatsis was serving an aggregate sentence of six years and three months for seven offences of break, enter and steal. His non-parole period expired on 12 January 2020, and his head sentence was due to expire on 12 January 2023 (Background, [1]). The Authority had refused parole on 7 November 2019, relying on poor custodial behaviour, continued drug use, and his perceived failure to address offending behaviour (Background, [2]–[3]). A review hearing on 20 February 2020 confirmed the refusal (Background, [4]).
The later application focused particularly on the report's discussion of the Intensive Drug and Alcohol Treatment Program (IDATP). Karpatsis argued that the report was false or misleading in suggesting he could complete the program before a parole eligibility date, because he could not be transferred to the correctional complex where it was offered. He also raised complaints about descriptions of misconduct, mental health, other programs, psychological services and his rehabilitation.
The Authority submitted to the Court. The Attorney General intervened as contradictor. Rothman J dismissed the application and the proceedings. The decisive point was not whether every disputed statement was accurate. It was whether the applicant had established a statutory ground under s 155 and shown that the information in question was relied upon in refusing parole.
Why the court decided this way
Rothman J began with the limits of s 155. The provision allows an offender to apply for a direction if the Authority has refused parole and the offender alleges that the decision was based on false, misleading or irrelevant information. The Court may give directions about that information, but only if the statutory threshold is met. Section 155(4) expressly excludes merits review, a limit emphasised by the judge: the Court could not “assess the correctness of the Authority's determination or the applicant's eligibility for parole” (Legislation, [4]).
The judgment treated the application as requiring the applicant to establish both the character of the information and its connection to the decision. The Court described the relevant question as whether information was false, misleading or irrelevant and had “caused the Parole Authority to determine the matter in the manner that it has” (Consideration, [17]). In its concluding reasoning, the Court put the point in terms of whether the information was relied upon in refusing parole (Consideration, [21]).
The distinction between an inaccurate statement and a statutory ground was central. The Court said that a statement being “wrong” did not, without more, make it false, misleading or irrelevant for s 155 purposes (Consideration, [8]). Similarly, an omission could leave a report incomplete without necessarily making it false, misleading or irrelevant. The Court considered that the absence of discussion about mental health might leave conduct unexplained or make the report incomplete, but would “almost certainly” not, on that basis alone, fall within the statutory categories (Consideration, [7]).
The IDATP schedule provided a concrete example. It used the status “completed”, while its detail said that Karpatsis had been discharged without completing the program. Rothman J described “completed” as infelicitous and found the information misleading or false. But the error was misleading in Karpatsis's favour, and, critically, the Court found no evidence that the Authority relied on it to refuse parole (Consideration, [3]–[4]). The existence of an error was therefore insufficient to obtain a direction.
The Court also explained why the relevance ground was narrow. Section 135(3)(j) allows the Authority to consider other matters it considers relevant. The judgment stated that information is relevant if it may lead, directly or indirectly, to the Authority's satisfaction about whether release is in the interests of community safety (Legislation, [13]). Reports prepared by Community Corrections Officers are among the matters the Authority is required to consider under s 135(3)(f) and (g), although considering a report does not require accepting its correctness (Legislation, [14]). The Court's view was that disagreement with professional evaluation, or the presence of inaccurate information in a report, did not itself make the material irrelevant.
The misconduct complaint also did not establish the necessary ground. Karpatsis said there had been no institutional misconduct events since 2 May 2020. The Court found that there had been at least two proved charges, although an intimidation charge had been dismissed (Consideration, [5]–[6]). The judge noted that some conduct related to the effects of COVID-19 restrictions, but the point for s 155 was whether the information crossed the statutory threshold, not whether it could be viewed sympathetically.
Finally, Rothman J noted that much of what Karpatsis raised was more suited to the manifest injustice hearing than to a s 155 application. A parallel application raised a “strong suggestion” of abuse of process, because the relief available in the Court might be narrower than that available in the other forum (Consideration, [18]–[20]). The judge did not finally decide abuse of process, because the application failed on its substantive statutory basis (Consideration, [21]).
Before and after state of the law
The judgment did not announce a new statutory test or alter the law. It explained how the Court understood s 155 and applied it to the applicant's evidence.
The statutory framework described in the judgment has two connected parts. First, s 155 allows a Supreme Court application concerning information alleged to be false, misleading or irrelevant, but only where the application is not an abuse of process and there appears to be sufficient evidence to support it (Legislation, [1], quoting s 155(3)). Second, s 155(4) prevents the Court from considering the merits of the parole decision except on those specified grounds. The judgment therefore describes a limited information-review mechanism, not an appeal about whether parole should have been granted.
The parole decision itself is governed by the statutory considerations set out in s 135. The Authority must be satisfied that release is in the interests of community safety and must consider prescribed matters, including community safety risks, the likelihood that release will address reoffending risk, and the risk of release at sentence end without supervised parole (Legislation, [6], [9]). The statutory list also includes the offence, sentencing comments, criminal history, victim impacts and relevant reports (Legislation, [10], [14]).
Within that framework, the Court considered the statutory concept of relevance broad. Because s 135(3)(j) includes other matters the Authority considers relevant, the Court said a matter may be relevant if it can contribute, directly or indirectly, to the Authority's community-safety assessment. It also said that a court could not treat a matter as irrelevant merely because it disagreed with the Authority's view, unless that view was unreasonable, irrational or illogical (Legislation, [11]–[13]).
The practical consequence of this reading is that not every factual dispute in a parole report can be resolved through s 155. The applicant must connect the challenged information to one of the statutory categories and to the refusal itself. The judgment does not say that incorrect information is immaterial in every circumstance. Rather, it holds that incorrectness alone does not establish the statutory ground, and that the applicant must also show that the information was relied upon.
Key passages with plain-English translation
“The Court is not able to assess the correctness of the Authority's determination or the applicant's eligibility for parole.” (Legislation, [4])
Plain English: The Court was not conducting a second parole hearing. It could not decide for itself whether the Authority reached the right outcome or whether Karpatsis qualified for release. Its role was confined to the specific information challenge allowed by s 155.
“information is relevant if it may lead, directly or indirectly, to the satisfaction of the Parole Authority as to whether the release of an offender is in the interests of the safety of the community.” (Legislation, [13])
Plain English: Information can count as relevant even if it does not determine the decision by itself. If it could contribute to the Authority's assessment of community safety, it may fall within the wide statutory concept of relevance.
“The fact, assuming for present purposes that it is the fact, that an allegation or statement is ‘wrong’ does not render the statement misleading or false or irrelevant” (Consideration, [8])
Plain English: Showing a statement is mistaken does not automatically prove one of the specific grounds in s 155. The applicant must establish more than a disagreement about accuracy.
“Even where some of the material is wrong or incomplete, the applicant has failed to satisfy the Court that it was relied upon by the Parole Authority to refuse parole.” (Consideration, [21])
Plain English: The Court accepted that there could be errors or omissions, but the applicant had not established that they formed a basis for the refusal. That failure was decisive.
The judgment also contains observations about rehabilitation and the applicant's circumstances. Rothman J acknowledged his reported period free from drugs, his program participation and the difficulty of recovery. The judge said there was “much to be said for the release of the applicant on parole” as a means of rehabilitation, while immediately emphasising that this was not the Court's role in the s 155 proceeding (Consideration, [11]–[17]). Those observations should be read as contextual comments, not as a determination that parole should have been granted.
What fact patterns trigger this precedent
The judgment is most directly relevant where an offender challenges a parole refusal by alleging that information considered by the Parole Authority was false, misleading or irrelevant. It is particularly useful where the dispute concerns reports prepared for parole consideration, including assessments of program participation, custodial behaviour, drug use, psychological engagement or release planning.
The judgment indicates that a s 155 issue may require close attention to at least three questions: what precise information was before the Authority; why it is alleged to fall within one of the statutory categories; and whether evidence shows it formed part of the foundation for the refusal. The judgment records the respondent's formulation of these matters and addresses the same substance in its own reasoning (Respondent's Case, [2]; Consideration, [21]).
A factual mistake in a report is not automatically enough. The IDATP schedule's use of “completed” was misleading or false, but the Court found the error operated in the applicant's favour and had not been shown to influence the decision. Conversely, the judgment does not state that a more serious or decision-relevant error could never support a direction. Its reasoning leaves the question dependent on proof of the statutory character of the information and its connection to the decision.
The case also illustrates the difference between challenging a report's factual basis and challenging professional judgment. Where a complaint is that a report presents a negative assessment, omits context or conflicts with other material, the Court may treat it as a disagreement about evaluation or completeness unless the evidence establishes a s 155 category. The broad statutory relevance test makes it important to distinguish “this information is unfavourable” from “this information is irrelevant”.
The judgment also addresses parallel proceedings. It records a manifest injustice application occurring alongside the s 155 case and notes that overlapping applications may raise abuse-of-process questions where one forum provides more complete relief (Consideration, [18]–[20]). However, the Court did not finally determine that issue, so the decision should not be overstated as a final ruling that pursuing both forms of process is necessarily abusive.
How later courts have treated it
The judgment supplied here contains no later judicial decisions applying, distinguishing, approving or criticising Karpatsis v Parole Authority of New South Wales. It therefore does not provide a basis to state how later courts have treated the decision.
The judgment itself refers to four authorities. It refers to Esho v Parole Board Authority of NSW [2006] NSWSC 304 when discussing the limited nature of s 155 relief and the possibility of other public law orders (Legislation, [5]–[8]). It cites Parisienne Basket Shoes Pty Ltd v Whyte (1938) 59 CLR 369; [1938] HCA 7 in connection with the statutory relevance discussion (Legislation, [11] and endnote 3). It refers to Burbank Australia Pty Ltd v Luzinat [2000] VSC 128 and Fairfax Media Publications Pty Ltd v Cummings (2012) 269 FLR 182; [2012] ACTCA 36 in its discussion of abuse of process and overlapping proceedings (Consideration, [19]–[20]).
Those references show the authorities Rothman J drew upon or identified in the judgment. They do not, on their own, establish the later treatment or current status of Karpatsis. No proposition about subsequent case law can be drawn from the supplied decision alone.
Still-open questions
The judgment leaves several matters unresolved in the particular case. First, it did not finally determine whether the parallel manifest injustice process made the s 155 application an abuse of process. The Court considered that there was a strong suggestion of abuse but found it unnecessary to decide the point after concluding that the applicant had not established the information-based ground for relief (Consideration, [19]–[21]).
Second, the judgment does not provide a detailed evidentiary test for when information has formed “part of the foundation” for a refusal. It states that the applicant had not satisfied the Court that the challenged material was relied upon, but it does not set out a general method for proving that connection. The result therefore highlights the importance of the decision record and the material before the Authority without defining every form of evidence that might establish reliance.
Third, the Court's treatment of the IDATP discrepancy was fact-specific. It found the description “completed” misleading or false but not shown to have influenced the Authority's refusal. The judgment does not determine how a court should treat an inaccurate description that is demonstrably adverse to an applicant and demonstrably relied upon.
Fourth, although the judgment sets out a broad relevance test under s 135(3)(j), it does not resolve the boundary of that test in cases where the Authority's asserted view of relevance is challenged as unreasonable, irrational or illogical. It states the limiting qualification, but the case did not require the Court to apply it to establish relief.
Finally, the judgment did not decide whether an omission of important contextual or mental health information could, in a different evidentiary setting, make a report misleading rather than merely incomplete. Its observation was that the omission alleged in this case might make the report incomplete, but would almost certainly not be sufficient by itself to make it false, misleading or irrelevant (Consideration, [7]). Any broader conclusion would go beyond the judgment.
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HIS HONOUR: The applicant, Spiros Karpatsis, seeks, by a document entitled "Application For Direction To Parole Authority" filed on 30 July 2020, a direction from the Court, pursuant to s 155 of the Crimes (Administration of Sentences) Act 1999 (NSW) (hereinafter "the Act"). The direction sought is directed to the Parole Authority of New South Wales (hereinafter "the Authority"), which is the first respondent in these proceedings.
The direction sought is to the effect that certain information contained in a "Pre-Release Report, Manifest Injustice" prepared by a Community Corrections Officer, dated 2 July 2020 (hereinafter "the Report"), prepared for and submitted to the Authority for a manifest injustice application private meeting/hearing, held on 16 July 2020, was false, misleading and/or irrelevant.
Central to the applicant's contention is that the Report stated that he was eligible to complete an Intensive Drug and Alcohol Treatment Program (hereinafter "IDATP") offered at the Geoffrey Pearce Correctional Centre (formerly known as the OMPCC) and that completion would take him to a point in time near his parole eligibility date (asserted by the applicant to be November 2020) and that these statements were false or misleading in that the applicant was unable to be classified to the Geoffrey Pearce Correctional Centre and, therefore, could not complete the IDATP by November 2020.
The first respondent has filed a submitting appearance. The Attorney General for New South Wales (hereinafter "the respondent") has been granted leave to intervene as the contradictor and is named as the second respondent in these proceedings.
[3]
Background
The applicant is currently serving an aggregate sentence of 6 years and 3 months' imprisonment for seven counts of break, enter and steal in contravention of s 112(1)(a) of the Crimes Act 1900 (NSW). This sentence was imposed by Yehia SC DCJ on 11 May 2018. His non-parole period of 3 years and 3 months expired on 12 January 2020 and his head sentence is set to expire on 12 January 2023.
On 7 November 2019, the Authority refused the applicant's application for release to parole on the asserted basis of his poor custodial behaviour. There had been a number of internal misconduct charges in custody.
The other matters upon which the Authority relied were the applicant's continued drug use and inability to address this offending behaviour. The Authority came to the view that the applicant presented as an unacceptable risk to community safety. The applicant sought a review of that decision.
On 20 February 2020, at a Parole Review Hearing held to deal with the applicant's application under s 139 of the Act, the Authority confirmed its decision to refuse to grant parole on the basis that the applicant needed (a) to develop coping skills within custody; (b) to demonstrate a longer period of good behaviour; (c) to complete programs to address his offending behaviour; and (d) to improve his classification in prison, prior to his release. The Review Hearing received evidence and submissions on behalf of the applicant.
The Review Hearing took evidence from a Community Corrections Officer. The judge's notes from the hearing record the following entries:
1. "currently ineligible to IDATP due to classo [sic]"; and
2. "next classification review October 2020-they are held on a yearly basis".
In April 2020, the applicant's classification was altered to a minimum security C1 classification. This occurred prior to the Manifest Injustice Hearing, which is the subject of the application to this Court.
On 15 May 2020, the applicant's legal representative filed a request under s 137B of the Act for a consideration of the applicant's case so as to avoid manifest injustice (hereinafter "the Manifest Injustice Hearing"). Among other things, the applicant submitted that it would be manifestly unjust to require the applicant to serve a further five months in prison on the basis that he had achieved a C1 classification; demonstrated a period of seven months between internal charges; and participated in the only intervention program available to him, namely, the EQUIPS Addiction Program.
[4]
Applicant's Submissions
The applicant, in the application filed on 30 July 2020, asserts that a statement in the Report alleged to have been to the effect that he would be "eligible to complete IDATP Program by November 2020" was false and misleading. This submission was agitated on the basis that, as at March 2020, and again as at 16 July 2020, the applicant could not be transferred to the Geoffrey Pearce Correctional Centre, which forms part of the John Morony Correctional Complex, now called the Francis Greenway Correctional Complex. That is the correctional facility or complex at which the Program is offered.
The IDATP Program takes a minimum of four months to complete. During the course of the Program the applicant would be required to be accommodated in a single cell for medical reasons. The applicant's requests to be transferred were refused on the basis that a "one out" cell placement could not be accommodated at the Correctional Centre.
Further, the applicant asserts, in the submissions filed on 18 August 2020, that numerous pieces of information contained in the Report are false, misleading and/or irrelevant. The reasons for the information being "false, misleading and/or irrelevant" are:
1. The applicant contends that the statement in the Report alleged to have been to the effect that the applicant would be eligible to complete IDATP by November 2020 was "false and misleading as early as March 2020 I cannot be classified to the OMPCC". This is the same allegation as was asserted in the application dated 30 July 2020. The applicant appears to be saying that it was misleading to say that the applicant was eligible for IDATP and that completion of it could be achieved "before his next parole eligibility date".
2. The applicant also contends that the Report contains statements about the applicant's offending and the victims which are "contradictive [sic] and attempt to show [the applicant] in a negative light".
3. In his submissions, the applicant also contends that the Report falsely stated that the applicant had incurred "three institutional misconducts, this information being false as records will show the more serious of these offences Intimidation was dismissed".
4. The applicant refers to comments on page 3 of the Report to the effect that:
"as a result of these charges, [the applicant] was placed on an eight week Behaviour Management Contract (BMC) from 2 May 2020 to 27 June 2020. The BMC required [the applicant] to remain free of illicit substances, comply with centre rules and routine, remain pro-social, seek and maintain employment and not incur any further charges. While [the applicant] completed his BMC, records detail his inappropriate behaviour and language towards Justice Health Staff during this time".
1. The applicant asserts that the foregoing comments are "misleading and irrelevant since no institutional misconduct events occurred … since the 2nd May 2020".
2. The applicant next contends that the Report fails to refer to aspects of the applicant's mental health, which are described, in the submission of the applicant, in the Medical Certificate for a mental health single cell placement.
3. The next contention to which the applicant refers is that the Report contains a false and irrelevant assertion to the effect that the applicant "appears to have sufficient time remaining on his sentence to participate in pre-release leave programs". This seems to be a confusing reference by the applicant to the time remaining in the non-parole period, as distinct from the head sentence.
4. The applicant submits that the recommendation that he would benefit from a pre-release program is misleading and irrelevant because of the recommendation of the sentencing judge that he be referred to the Compulsory Drug Treatment Program.
5. At page 4 of the applicant's submissions, the applicant alleges that the Report's summary of his behaviour and participation in prison, under the heading "Programs and services in custody", is misleading and irrelevant, because it is, according to the applicant, contradictory as it contains both positive and negative aspects.
6. The applicant relies upon the IDATP discharge summary which, according to the applicant, contradicts the Report in identifying the applicant will not have sufficient time to complete IDATP. The applicant relied upon this aspect in detail in the course of the oral hearing and it will be dealt with later in these reasons.
7. The Report states that there is no program that is the equivalent of IDATP available in the community and the applicant maintains that this comment is "extremely false and misleading". The applicant refers to community-based organisations such as Narcotics Anonymous and Alcoholics Anonymous and also refers to a recommendation in the IDATP discharge summary that the applicant engage in trauma and post-traumatic stress disorder counselling in the community.
8. The applicant complains as to a breach of trust because the material under the heading "psychological" in the Report is based upon information that was confidential to the relationship between psychologist and patient, being the applicant and his treating psychologist in prison.
9. The applicant complains about the statement in the Report (at page 4) that the applicant had not completed any other offence related programs, which, according to the applicant, was false and misleading. In support of this contention, the applicant has lodged and referred to a number of certificates produced in annexures to the submissions.
10. Next, the applicant complains about the comment in the Report that the applicant had not engaged in restorative justice and complains that this statement is misleading and irrelevant as it was not an option available to the applicant and, according to the applicant, had been included for the irrelevant purpose of showing the applicant in a negative light.
11. The next contention refers to a statement at page 5 relating to the applicant's participation in driver knowledge tests on 16 June 2020 and the fact that, according to the Report, the applicant had not engaged in further educational programs.
12. There is a repetition of the first and other contentions.
13. The last contention is a complaint about the statements in the Report, to which some reference has already been made, in or to the effect that the applicant had only superficial contact with psychology services and displayed a lack of insight into his negative behaviours. The applicant relies upon certain attachments to his submissions, which, he argues, are to the opposite effect and asserts, as a consequence of those contradictory documents, that the statement in the Report must, therefore, be false and misleading.
[5]
Respondent's Case
The respondent relies upon Affidavits of Courtney Lauren Raad, affirmed 8 September 2020 and Karen Barbara, sworn 8 September 2020, and the exhibits thereto; as well as the Affidavits of Scott Graham, sworn 9 September 2020; Catherine Kersivien, affirmed 7 September 2020; and Philip Hugill, affirmed 4 September 2020.
The respondent's written submissions helpfully summarise the contentions of the applicant. Those contentions (or that summary) is in or to the effect of that summarised above. Essentially, the respondent refers to the principles associated with the jurisdiction under s 155 of the Act and submits to the Court that the applicant is required to establish to the requisite standard that:
1. factual information before the Authority on 16 July 2020 was false, misleading or irrelevant;
2. such information was false, misleading or irrelevant in substance; and
3. the material was at least part of the foundation for the decision.
Essentially, given the basis upon which a decision of the Parole Authority can be challenged under s 155 of the Act and the general duties of the Parole Authority in granting parole, the respondent submits that the application is misconceived. Further, the respondent submits that the matters raised by the applicant as "misleading or false" or "irrelevant" are, almost entirely, matters of professional judgement and, in the absence of evidence of lack of bona fides, the applicant cannot meet the requirements necessary for success under s 155 of the Act. Further again, the respondent submits that the applicant has not adduced evidence that could persuade the Court or satisfy the Court that the information was foundational to the Authority's decision.
[6]
Legislation
Before considering the submissions of the applicant, it is necessary to deal with the principles that apply in an application under s 155 of the Act. The provisions of s 155 are 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.
(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)."
Clearly, the Parole Authority has decided that the applicant should not be released on parole and the applicant alleges that the decision has been made on the basis of false, misleading or irrelevant information. As a consequence of the foregoing, the applicant had a right to apply to the Court for a direction to be given to the Parole Authority as to whether the information was false, misleading or irrelevant.
On such an application, pursuant to the terms of s 155(2) of the Act, the Court may give such directions in respect of the information as it thinks fit. The reference to "the information" is a reference to that described in s 155(1)(b) of the Act, namely, the information that is alleged to have been "false, misleading or irrelevant".
The jurisdiction of the Court under s 155 of the Act is extremely limited. Were the Court satisfied that the Parole Authority had acted upon false, misleading or irrelevant information, the Court could give directions that the information not be considered or that further enquiry issue for obtaining information that is not false or misleading or irrelevant.
The foregoing presents examples for the fundamental proposition that an application under s 155 of the Act is not an appeal in the sense normally understood by the term and the Court is not in a position to correct findings of fact or errors of law. Nor is it in a position to substitute its own view of conclusions of fact and law that should or could arise from the material that has been adduced. The Court is not able to assess the correctness of the Authority's determination or the applicant's eligibility for parole.
[7]
Consideration
At its meeting on 7 November 2019, the Parole Authority determined not to release the applicant. That determination can be found in Exhibit CLR 1 at p 2 and the reasons for that determination commence at p 3. The whole of the reasons need to be read and understood.
The State Parole Authority came to the conclusion that the applicant had commenced the IDATP Program on 17 October 2018 and completed the first phase by 9 April 2019. However, according to the reasons of the Parole Authority, the applicant was placed on a Participant Support Contract in early June 2019, after he was observed to be drug-affected during a visit. As a consequence, the offender was discharged from the program.
Whilst engaged in IDATP, the applicant had been tested on 84 occasions and returned 48 positive results to illicit substances. The Parole Authority concluded:
"It was identified that there was not sufficient time for the offender to progress in classification to re-enter and complete IDATP. The IDATP Discharge Summary recommended that the offender complete the EQUIPS suite of programs and engage in psychological counselling. A referral to EQUIPS Addictions is yet to be made."
The State Parole Authority also referred to the comments of the sentencing judge, albeit, at that stage, comments that must be qualified by the effluxion of time, as to the long-standing addiction and degree of immaturity of the applicant and the genuineness with which he wanted change and the degree to which he was prepared to work for it.
Critically, as the State Parole Authority commented:
"The offender's drug use has continued whilst in custody as evidenced by positive urinalysis tests and was subsequently discharged early from IDATP and is yet to address this offending behaviour. His custodial behaviour has been very poor, resulting in misconduct charges, multiple regressions and segregation. He displays no insight and zero victim empathy.
Conclusion
The Authority is not satisfied that the release of the offender is in the interests of the safety of the community [s 135(1)]. Due to the offender's poor custodial behaviour, continued drug use and inability to address this offending behaviour The Authority is not satisfied that the release of the offender is in the interests of the safety of the community. The offender presents as an unacceptable risk to community safety."
[8]
Endnotes
Esho v Parole Board Authority of NSW [2006] NSWSC 304.
Ibid.
Parisienne Basket Shoes Pty Ltd v Whyte (1938) 59 CLR 369 at 391; [1938] HCA 7.
Exhibit A, Attachment 15.
Section 155(3) of the Crimes (Administration of Sentences) Act.
Burbank Australia Pty Ltd v Luzinat [2000] VSC 128 at [28]-[29].
Fairfax Media Publications Pty Ltd v Cummings (2012) 269 FLR 182; [2012] ACTCA 36.
DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.
Decision last updated: 01 October 2020
At the Manifest Injustice Hearing, held on 16 July 2020, the Authority considered the applicant's request and refused to grant parole on the basis that (i) the Community Corrections Officer did not recommend the grant of parole; and (ii) the applicant had not addressed the reasons for refusal of the parole. The applicant's application to this Court relates to the Manifest Injustice Hearing and the fact that the Report was before the Authority at the meeting.
The applicant was self-represented before the Court, as presently constituted, and filed a bundle of documents, all of which were admitted into evidence, notwithstanding that some of them, at least, were strictly inadmissible. The applicant relies upon the various documents in that bundle, all of which were annexed to the application and filed on 30 July 2020. There are also further materials that the applicant filed on 18 August 2020, upon which the applicant relies and of which the Court has had cognisance.
The limited nature of the orders that may issue as a result of any proceedings under s 155 of the Act was the basis upon which the Court issued orders in the nature of certiorari and mandamus, rather than continue with the futile application of s 155, in Esho v Parole Board Authority of NSW. [1]
Ultimately, the task of the Parole Authority is to determine whether it is in the interests of the safety of the community for an applicant for parole to be released. The Parole Authority is disentitled from releasing a prisoner on parole, unless the Parole Authority is satisfied that it is in the interests of the safety of the community to release the prisoner.
Thus, it is not the objective fact of whether the offender could be released nor the objective conclusion that it would be in the interests of the safety of the community to release that would permit the Court to grant relief of the kind that issued in Esho. [2] Only questions regarding the satisfaction of the Parole Authority as to the preconditions for exercising its jurisdiction to release the offender, may enliven this type of relief, and not the objective existence of the fact or circumstances that it is in the interests of the safety of the community to release him or her.
In those circumstances, it is only where the determination in s 135(1) of the Act is not open to the Parole Authority that there may exist jurisdictional error (leaving aside, for present purposes, error such as denial of procedural fairness and the like).
Further, by the provisions of s 135(2) of the Act, the Parole Authority is required to have regard to three principal matters: the risks of the safety of members of the community of releasing the offender on parole; whether the release of the offender is likely to address the risk of the offender reoffending; and the risk to community safety of releasing the offender at the end of the sentence without a period of supervised parole.
Further considerations are prescribed by s 135(3) of the Act and include: the nature and circumstances of the offence committed by the applicant; relevant comments of the sentencing court; the offender's criminal history; the likely effect of the release of the offender on any victim of the offender or on the victim's family; any report relating to the grant of parole that has been prepared by a Community Corrections Officer; any other report prepared by or on behalf of the Review Council; and any other matters that the Parole Authority considers to be relevant.
I have omitted from the above those considerations that are plainly irrelevant. The inclusion of the provisions of s 135(3)(j), which requires the Parole Authority to consider "other matters … [it] considers to be relevant" imposes a significant limitation on those matters that the Court can determine are irrelevant for the purposes of s 155 of the Act. A matter that cannot reasonably be considered to be relevant may be assessed by the Court as "irrelevant", but, given the wording of s 135(3)(j) other matters are relevant so long as the Parole Authority considers them to be. [3]
The foregoing analysis renders more important the consideration of a matter that is considered to be relevant by the Parole Authority. A failure to take into account a relevant matter may be the subject of an appropriate order. However, the terms of s 155 of the Act confine the role of the Court, under that section, to correcting the consideration of an irrelevant matter. It does not allow the Court to issue directions as to the consideration of a relevant matter that was not otherwise considered by the Parole Authority.
As earlier stated, unless unreasonable, irrational or illogical, once the Parole Authority considers a matter to be relevant, pursuant to the terms of s 135(3)(j) of the Act, a Court could not determine that the matter was irrelevant. Moreover, information is relevant if it may lead, directly or indirectly, to the satisfaction of the Parole Authority as to whether the release of an offender is in the interests of the safety of the community. This is an extraordinarily broad test. The foregoing ought not be taken as a criticism of the breadth of the test. It is an appropriate and essential test in dealing with release on parole. Nevertheless, as the Court is seeking to make clear, it makes a finding of a court that the matter was "irrelevant", limited to an extremely narrow issue.
Further, the inclusion in mandatory criteria of the prescriptions in s 135(3)(f) and (g) of the Act, makes every report on the granting of parole, by any Community Corrections Officer or by any other authority of the State, to be information or matters that the Parole Authority is required to consider. Of course, consideration of the report does not require acceptance of its correctness. Nevertheless, the mere fact that such a report may have incorrect information or information that is not up-to-date does not seem to allow the Parole Authority to ignore the report.
As earlier stated, the applicant moves the Court under s 155 of the Act and has not sought orders in the nature of certiorari or mandamus. As a consequence, the Court is required to determine whether the application is an abuse of process and whether there is sufficient evidence to support the application, before determining whether the allegations of false, misleading or irrelevant information being taken into account have been made out.
The Discharge Summary from IDATP to which the Parole Authority was referring above can be found at p 82 of Exhibit CLR 1 to the Affidavit of Courtney Lauren Raad. At p 83 of that discharge summary the Services and Programs Officer and Acting Therapeutic Manager - Senior Psychologist noted:
"After Mr Karpatsis was placed on the support contract dated 11th June 2019, he was involved in an incident in the correctional centre. Mr Karpatsis was charged with a misconduct of stealing which involved a correctional officer's personal belongings. At the time of the charge Mr Karpatsis denied any wrongdoing and claimed he had mistaken the item for his own which was similar in appearance however, he did plead guilty of [sic] the charge. Mr Karpatsis was found guilty of the misconduct and as a result breached his contract. …"
Further under the heading conclusions and recommendations, the report or discharge summary says:
"Mr Karpatsis demonstrates difficulty in emotional regulation and trauma management. This presents a significant risk for Mr Karpatsis to relapse into Alcohol and Drug use and Criminal Conduct when he is released into the community. It is strongly recommended that he engages in individual counselling which focuses on dealing with Trauma and Post Traumatic Stress Disorder. Engaging in this therapy will allow Mr Karpatsis to continue to work on his difficulties with emotional regulation, trauma and AOD use. This will decrease his risk of substance abuse and offending behaviour.
Due to Mr Karpatsis's earliest release date of 12 January 2020, he will not have sufficient time to return to complete the IDATP. Mr Karpatsis may be eligible to participate in the EQUIPS Suite of Programs.
Mr Karpatsis intends to reside in the Campbelltown area upon his release and will be able to have access to services in that area."
The applicant argues that the finding of his failure to complete the addiction course is false or misleading and relies on a Summary Schedule which is Attachment 26 to Exhibit A and is entitled "My Plan". The second item on the first page of Attachment 26, while referring to "other approved programs", comments in the following terms:
"INTENSIVE DRUG AND ALCOHOL TREATMENT PROGRAM: Spiros commenced IDAPT [sic] 17/10/2018 and progressed to Phase 1. He was discharged 17/06/2019; without completing the program. He is now required to complete an alternative AOD course."
The schedule lists the start date as 17 February 2020 and lists the status as "completed". The inconsistency between the status of completed and the comment in the details of the program is relied upon by the applicant to show misleading or false information. He also submits that the inconsistency between the conclusion that the course had been "completed" and the statement of the reasons of the Parole Authority demonstrates that the Parole Authority relied upon misleading information. The term "completed" is infelicitous.
The course was not completed and it could no longer be attended, but the details of the program, even those provided in the schedule, show that the applicant was prevented from fully completing the program because of urinalysis issues. The information in the schedule, to the effect that the course was completed, was misleading or false, but it was misleading in the applicant's favour. Further, it has not been shown to have been relied upon by the Parole Authority in refusing parole. Nor was the material irrelevant.
The applicant relies upon other issues. First, the applicant relies upon what is said to be misleading and irrelevant information as to institutional misconduct issues. The applicant claims that there have been no institutional misconduct issues since 2 May 2020. Nevertheless, on 2 May 2020 there were three institutional misconduct issues. There may have been four. One of the issues related to intimidation, a far more serious issue by comparison to the behaviour in custody issues otherwise described, and that charge was dismissed. Whether there were another two or another three does not affect the fact that there were misconduct issues.
Nevertheless, whether major or minor, there were at least two proved institutional misconduct charges. In some respects, were this not a prison system, the conduct in question may well have been understandable. It certainly was not criminal and related to the effect of COVID-19 restrictions.
Further, the applicant complains about the Report which fails to mention the applicant's mental health issues. The failure to mention mental health issues, assuming it to be correct for the time being, might render the Report incomplete or fail to proffer an explanation for conduct but it almost certainly would not be a matter that rendered the report false or misleading or irrelevant.
Many of the complaints raised by Mr Karpatsis, the applicant, concern statements that are alleged by Mr Karpatsis to be wrong. The fact, assuming for present purposes that it is the fact, that an allegation or statement is "wrong" does not render the statement misleading or false or irrelevant, assuming, for present purposes that it is not otherwise in one or more of those categories.
For example, the applicant's complaint in relation to the statement made about his capacity to complete the IDATP course before release, falls into this category. Mr Karpatsis takes issue with the statement on two fundamental bases: first, he submits that there is a misstatement of the release date available; and second, Mr Karpatsis submits that it is misleading or false to suggest that he would benefit from participation in a particular program, because the sentencing judge made comments to a different effect. Neither of those comments, and many of the complaints by the applicant are in this category, is irrelevant or misleading or false. Even where there is, by incompleteness of the information, for example, as to ineligibility for a course, the applicant has not satisfied the Court that it was a foundation for the Parole Authority decision to refuse parole.
In relation to the second aspect, there is a difference between a difference of professional opinion, on the one hand, and the determination of falsity, misleading or irrelevant information. Returning to the first, it should be added that the proposition underpinning some of the submissions of the applicant that the Parole Authority and Correctional Services have misunderstood his anniversary date for the purpose of parole hearings is not made out.
None of the foregoing comments should give the impression that the Court, as presently constituted, has no sympathy or empathy with the complaint of Mr Karpatsis. It is notorious that rehabilitation from a drug problem is extremely difficult and requires extraordinary discipline and, generally, much assistance.
Overwhelmingly, the reports on his rehabilitation suggest that he would benefit most by individual psychological attention. This would be more readily available after release on parole than it would be in the prison system.
The applicant submits that he has been drug-free for seven months. That seems to accord with the material that is before the Court. This is an extraordinary and gratifying achievement.
There is no doubt that the applicant's circumstances require intensive counselling. The applicant is now employed in the prison system; he relies upon a report of May 2018 from Corrective Services relating to participation in the Young Adult Satellite Program ("YASP") and the fact that he was chosen to be a mentor in the Program. [4]
As earlier stated, he has completed Phase 1 of the EQUIPS Addiction Program, a 20 session program, the Certificate of Compliance for which has been tendered and is relied upon by the applicant. He also received and relies upon a certificate of attainment certifying that he has successfully completed the "save-a-mate Alcohol and Other Drugs Emergencies Course with CPR Demonstration"; the RUSH Program (Real Understanding of Self-Help); the Materials Handling Program for Future Employment; he obtained a certificate as best all round recognition in the YASP Program; he completed programs in dynamic risk assessment; he completed a course in "crystal meth" addiction; and passed a number of drug test analyses performed without notice.
There is much to be said for the release of the applicant on parole as a means of rehabilitating the applicant and, perhaps, the only means of rehabilitating the applicant.
Nevertheless, that is not the role of the Court. The role of the Court is to determine the application under s 155 of the Act as to whether there has been false, misleading or irrelevant information that has caused the Parole Authority to determine the matter in the manner that it has.
Further and most importantly, the applicant will have had the benefit of a manifest injustice hearing on 24 September 2020. Most of the matters that are raised by the applicant in this application are matters that are more suited to a manifest injustice hearing than an application to the Court under s 155 of the Act.
In filing a further Manifest Injustice Application and separately pursuing the application to this Court, there is a strong suggestion that the proceedings in this Court are an abuse of process. [5] Where two applications are made in different forums in relation to the same or similar subject matter, that forum which offers the narrower relief, or the least appropriate or complete relief, may well have an application before it which is an abuse of process. [6]
The multiplicity of proceedings does not of itself amount to an abuse of process. Where all that can be achieved by the Court, in these proceedings, is able to be achieved at the Manifest Injustice Hearing, but more completely, then the application and prosecution of proceedings in this Court is, in my view, an abuse of process. [7]
Ultimately, it is unnecessary for the Court to come to a view or to determine finally whether the application before the Court is an abuse of process. I am of the view that the applicant, while having some excellent bases for the grant of parole, has not made out that the Parole Authority acted on false, misleading or irrelevant information. Even where some of the material is wrong or incomplete, the applicant has failed to satisfy the Court that it was relied upon by the Parole Authority to refuse parole.
As a consequence of the foregoing, the Court makes the following orders:
1. Application dismissed;
2. Proceedings dismissed.