Kramer v State Parole Authority

Supreme Court of NSW|2023-05-11|Before: Ierace J, Dowd J

Solicitors: Crown Solicitor's Office (Second Respondent) File Number(s): 2022/69354

JUDGMENT

HIS HONOUR: The applicant seeks a direction to the Parole Authority of New South Wales (the first respondent; the SPA), pursuant to s 155 of the Crimes (Administration of Sentences) Act 1999 (NSW) (the CAS Act), that the information on which it based its decision of 26 March 2021 to refuse parole to the applicant was, in the terms of s 155(1) of the CAS Act, "false, misleading or irrelevant". The Attorney General of NSW was granted leave to intervene and has been joined as the second respondent by order of the Registrar on 1 June 2022. The first respondent has filed a submitting appearance, save as to costs.
The applicant is not legally represented in this proceeding.

The SPA's consideration of parole

The SPA has not granted the applicant parole, having met to consider the issue on five occasions, most recently on 12 July 2022. The applicant was first considered for release to parole at a meeting of the SPA on 28 May 2020. Parole was refused, for four stated reasons in the notice of its decision, dated 2 July 2020: "Need to complete a program to address offending behaviour of violence (not domestically related), need for structured post release plans and/or accommodation to be finalised, need for psychological report regarding risk of re-offending, and [the applicant] does not seek release to parole at this time."
The SPA identified the following material that it took into account in making its determination: "OIMS [1] Submission Criminal History dated 5 May 2020 Judge's Sentencing Remarks dated 25 September 2015 Pre Release Report dated 30 April 2020 Notice of Special Interest Offender dated 18 May 2020"
The SPA explained its decision thus, under the heading "Material Facts": "[The applicant] is a 49 year old inmate who is currently an A2 Classification - incarcerated at Goulburn Correctional Centre. He is currently serving a sentence for the offence of cause grievous bodily harm to person with intent. This matter is of Special Interest to the Commissioner of Corrective Services. No submissions have been received at this time. Community Corrections attempted to interview [the applicant] on four separate occasions in order to commence proceedings regarding his Full Pre-Release Report. On all four occasions [he] refused to engage with Community Corrections. On 13 September 2019, [the applicant] refused to attend an audio visual link to commence interview proceedings. On 24 September 2019, he was interviewed regarding the current report. He stated that he did not wish to apply for parole and he refused to sign documentation stating that he was not applying for parole and would not comment any further. On 15 January 2020, Community Corrections attempted to interview [the applicant] again regarding his current parole hearing. He stated 'I have no legal obligation to speak with you' and he proceeded to walk away. On 23 January 2020, Community Corrections again attempted to interview [the applicant] regarding his current parole hearing. As the author commenced speaking the offender stated 'not interested' and refused to sign documentation stating as such. As [the applicant] has refused to engage with Community Corrections; the author of the Pre Release Report was unable to establish his current family and social circumstances. CSNSW records indicate that [he] has not received a visit since 2016 and has not been in telephone contact with any family member in the past twelve months. He has a lengthy history of violent and aggressive behaviour, both in the community and custody. He has failed to display any positive behavioural change in custody that would indicate he has addressed this specific criminogenic factor. Due to the violent nature of the offences, Community Corrections strongly suggest a referral for a psychological assessment and possible treatment options. [The applicant] was referred to CSNSW Psychological services in October 2015; however, he declined the referral. Community Corrections were unable to verify with [him] if he was suffering from a mental health illness at the time of the offences. [The applicant] is severely institutionalised - he has not been subject to any period of community supervision. He served a custodial sentence for a prior conviction of murder; however, he was not released to parole when his non parole period expired. [The applicant] has incurred seventeen misconduct charges since entering custody. These offences relate to numerous assaults, fighting, damaging property, intimidation, refusing drug samples, drug possession and failing to comply with Correctional Centre routine. He was regressed from a B classification to an A2 Classification on the 18 July 2018, and has remained an A2 since that time. [The applicant] has not participated in offence targeted programs. He has been referred to the EQUIPS Foundation, Aggression and Addiction programs; however, he has not commenced these programs. He has a history of refusing to engage with departmental programs targeting offending behaviour. In August 2018, [he] was referred to the violent offender's therapeutic program (VOTP) where it appears he currently sits on a waitlist. As he has refused to engage with Community Corrections; they have been unable to explore post release accommodation options for him and complete a Risk Mitigation Plan. He has been assessed at a medium-high risk of reoffending according to the Level of Service Inventory - Revised (LSI-R)."
Under the heading "Critical Issues", the SPA stated: "[The applicant] has refused to engage with Community Corrections for the completion of the Pre- Release Report. He has also stated that he does not wish to apply for parole; however, he has refused to sign any documentation stating as such. [The applicant] has not engaged in any offence targeted interventions and has failed to comply with Correctional Centre routine. Due to the violent nature of the offences, referral for a psychological assessment and possible treatment options is strongly suggested by Community Corrections. [The applicant] was referred to CSNSW Psychological services in October 2015; however, he declined the referral. Community Corrections were unable to verify with [him] if he was suffering from a mental health illness at the time of the offences. Historical CSNSW records suggest that [he] requires ongoing mental health intervention. Community Corrections are not recommending that a parole order be granted to [the applicant]."
On 12 October 2020, pursuant to s 137B of the CAS Act, the applicant sought what he described as a "reconsideration of decision to refuse parole", accompanied by 45 pages of submissions (the October 2020 submissions). The substantive part, which commences at p 8, challenged the SPA's understanding of the principles that are applied to a determination of parole.
On pp 9 and 10, the applicant stated that reason 4 of the SPA's reasons for refusing parole on 28 May 2020 ("the offender does not seek release to parole at this time"), was "false and misleading". The applicant's explanation, as developed on those pages, is difficult to follow, but has something to do with interviews of him not being electronically recorded, which meant that his responses would be open to being misrepresented. In addition, there would be an absence of confidentiality. In short, the applicant appears to be arguing that he did not participate in the process, and these were his reasons for that decision.
Pages 11 to 27 constitute criticisms of the content of a pre-release report that had been prepared for the SPA, dated 27 April 2020 (the Report). The author of the Report noted at the outset that the applicant had refused to be interviewed. Under the various standard sub-headings of topics canvassed in such reports, the author stated that the applicant had "refused to engage with community corrections".
In his submissions, the applicant made certain observations in respect of each subheading in the Report. He accused the author of "bias" and questioned his "competency". He criticised the risk assessment tool that had been applied to him in the past, the results of which were related in the Report, which he described as a "flawed calculation, flawed application [and] flawed process". The Report proposed that if parole was refused, the applicant should participate in a VOTP program. In his submissions, the applicant stated that he could not do that, because he planned on appealing his convictions (I note that such appeals would require leave, since the convictions were in 2015).
At many junctures in his submissions, in particular from pp 33 to 45, the applicant made submissions as to what he regarded as his strengths in an application for parole.
On 8 December 2020, the SPA reconsidered the question of the applicant's parole. The author of the Report was questioned by the applicant. The SPA determined that its decision of 28 May 2020 would stand, repeating reasons (1), (2) and (4).
On 26 March 2021, the SPA again reconsidered the question of parole and again determined that its decision of 28 May 2020 would stand, repeating reasons (1) and (2) and adding a further reason: "it is unlikely that the offender will be willing to comply with parole conditions".
The Chairperson made the following ex tempore remarks in confirming the decision to refuse parole: "In this matter … there was the decision to refuse parole way back on 28 May 2020 and reasons were given for the decision then to refuse parole. This matter came before the Authority last year and there is a transcript that has been provided. What happened subsequent to that was that [the applicant] complained, and correctly complained, that he did not have certain information at the time of that review hearing. The matter was relisted to give [him] an opportunity to have that information and to respond to it. That is what has taken place today. There has been one additional matter, and the additional matter is that [he] says he did arrange to have forwarded to the Authority further five pages of submissions, 46 to 51, which for some reason did not arrive here. The Authority does not have them. [The applicant] is not prepared to reveal the detail of what was in those without the document in front of him, apparently. Be that as it may, we do not have those five additional pages. Certain criticisms are made today by [the applicant] in respect of the material that he did not have at the review hearing. In relation to the Commissioner's submissions, he says that they contained a false claim. Mr Gardiner, on behalf of the Commissioner, has replied to that and submitted that the submissions were based upon identifiable information that was available to the Commissioner at the time of writing the submissions. We accept that. In relation to the psychologist reports of 25/11/20, the principal complaint seems to be that [the applicant] (apart from me saying that the report should not be relied upon) is in respect of his suggested lack of cooperation in the reporting process. He maintains that that is not accurate. He does allude to the fact that the psychologist session, if I can call it that, was not recorded. He would prefer to have things recorded for the sake of accuracy. I do accept, looking at the material, for one reason or another when the report was prepared, the psychologists did not actually have [his] cooperation. The final matter is the report by [the author of the Report], the most recent report. There is some criticism of that, but is not a significant matter. Having regard to all the material, the Authority confirms the decision to refuse parole that was made on 28 May 2020. [The applicant] needs to complete a program to address his offending behaviour. He has a history of violence and, indeed, extreme violence. He has a murder on his record. Leaving that aside, the index offences relate to the savage biting of a person's ear on two separate victims. Nobody in the community could think that is normal behaviour. He needs to do some program to address that. The second reason for refusal is there is a need for approved, structured, post release plans and accommodation. I appreciate that in [the applicant's] voluminous submissions to the Authority, he did propose certain options for accommodation. None of those have been investigated or approved because he will not cooperate with the Community Corrections officer. There is an additional reason that parole should be refused, namely that it is likely that on the basis of all the material presently available that [he] is unwilling to comply with conditions of parole. He simply will not engage the Community Corrections officer for one reason or another. It is impossible to envisage that he would ever take instructions and abide by any instructions of the Community Corrections officer. For those reasons, parole is refused."
On 1 July 2021, the SPA reconsidered and reaffirmed its decision, citing the following reasons: "Need to complete a program to address offending behaviour of violence (not domestically related) - VOTP and need for structured post release plans and/or accommodation to be finalised."
A third reason was identified in the "Material Facts" that were produced following the meeting, namely, that it was considered unlikely that the applicant would be willing to comply with parole conditions. The SPA stated: "[The applicant] is being considered for release to parole at the anniversary of his non-parole period. Parole was refused in May 2020 and confirmed in March 2021. The reasons outlined for the refusal were, the need to complete a violence program; the need for approved post release plans and accommodation; and it was considered unlikely that [he] would be willing to comply with parole conditions. His non parole period expired on 29 July 2020, and his total sentence will expire on 29 July 2023. [The applicant] is now 50 years of age and is housed at Goulburn Correctional Centre where he remains a B classification and is managed within Special Management Area Placement (SMAP). He has refused to participate in classification reviews and has not incurred any misconduct charges since December 2018. He has not engaged in employment and has declined to participate in education activities. [The applicant] has refused to co-operate with the Case Management Unit (CMU) to develop a case plan and identify program pathways, effectively blocking any progress towards behaviour change rehabilitation. The psychological risk assessment conducted in November 2020, recommended that [the applicant] actively engage in the Violent Offender's Therapeutic Program (VOTP) prior to release to the community. [He] was offered placement and refused it on 2 February 2021. An attempt to discuss the refusal was made by the Senior Psychologist, however was refused by [the applicant] on 4 February 2021. Referrals to engage in the EQUIPS suite of programs remain open. Community Corrections advise that [the applicant] has made a recent behaviour change and has cooperated in the preparation of the Anniversary Pre-release report, however highlight that he maintains refusal to engage with other services within Corrective Services. As such, post release plans are unable to be developed and there is no approved and suitable release accommodation available to [him]. Community Corrections do not recommend release and reaffirm their position that [the applicant] should participate in the VOTP prior to release. The Commissioner of Corrective Services has previously registered special interest and opposition to release, confirmation of his ongoing interest and any submissions is pending."
Under the heading "Critical Issues", the SPA noted: "A psychological risk assessment recommended that [the applicant] participate in the VOTP prior to release and an offer to participate has been refused. [He] has not engaged in any offence targeted interventions and refuses to cooperate with Corrective Services staff in a manner that would progress treatment and post release planning. Until [the applicant engages] in the appropriate offence targeted intervention and engage with Corrective Services, the Authority is not satisfied that release to parole is appropriate."
At its meeting on 5 August 2021, the SPA considered an application by the applicant for a review hearing, dated 21 July 2021. The Authority determined that a review hearing was not warranted and that the decision to refuse parole on 1 July 2022 would stand, for the following reasons: "Need to complete a program to address offending behaviour of violence (not domestically related) - VOTP, need for structured post release plans and/or accommodation to be finalised and need for a comprehensive psychiatric report, i.e. file review, diagnosis and current treatment plan."
On 2 June 2022, the SPA again refused parole, citing reasons (1) and (2). The decision was confirmed at a further hearing on 12 July 2022.

The application for a direction

By way of a hand-written request dated 14 April 2022 that was posted to the Supreme Court, the applicant gave notice of his intention to apply for a direction pursuant to s 155(b) of the CAS Act (the application). The application did not identify the particular SPA decision or decisions in respect of which he was seeking the direction. I note that the most recent SPA determination at the time of the application was that of 5 August 2021, that is, some eight months before the application was made.
Section 155 of the Act provides 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)."
It is also relevant to note the statutory powers and responsibilities of the SPA in making a determination in respect of parole. Section 135 of the CAS Act provides: "135 General duty of Parole Authority relating to release of offender (1) The Parole Authority must not make a parole order directing the release of an offender unless it is satisfied that it is in the interests of the safety of the community. (2) In considering whether it is in the interests of the safety of the community to release an offender, the Parole Authority must have regard to the following principal matters - (a) the risk to the safety of members of the community of releasing the offender on parole, (b) whether the release of the offender on parole is likely to address the risk of the offender re-offending, (c) the risk to community safety of releasing the offender at the end of the sentence without a period of supervised parole or at a later date with a shorter period of supervised parole. (3) In considering whether it is in the interests of the safety of the community to release an offender, the Parole Authority must also have regard to the following matters - (a) the nature and circumstances of the offence to which the offender's sentence relates, (b) any relevant comments made by the sentencing court, (c) the offender's criminal history, (d) the likely effect on any victim of the offender, and on any such victim's family, of the offender being released on parole, (e) if applicable, whether the offender has failed to disclose the location of the remains of a victim, (f) any report in relation to the granting of parole that has been prepared by a community corrections officer, (g) any other report in relation to the granting of parole to the offender that has been prepared by or on behalf of the Review Council or any other authority of the State, ((h) if the Drug Court has notified the Parole Authority that it has declined to make a compulsory drug treatment order in relation to the offender's sentence on the ground that it is not satisfied as to the matters referred to in section 18D (1) (b) (vi) of the Drug Court Act 1998, the circumstances of that decision to decline to make that order, (i) that an application that has been made (but not determined) in respect of the offender - (i) for an extended supervision order or continuing detention order under the Crimes (High Risk Offenders) Act 2006 or the Terrorism (High Risk Offenders) Act 2017, or (ii) for a continuing detention order under Division 105A of Part 5.3 of the Commonwealth Criminal Code, (i1) that the High Risk Offenders Assessment Committee under the Crimes (High Risk Offenders) Act 2006 has recommended that an application be made for an extended supervision order or continuing detention order under that Act or the Terrorism (High Risk Offenders) Act 2017 in relation to the offender, Note - Under the Crimes (High Risk Offenders) Act 2006, section 24AC(a) and the Terrorism (High Risk Offenders) Act 2017, section 63(a) the High Risk Offenders Assessment Committee may make recommendations to the Commissioner about the taking of action by the State in relation to offenders under those Acts. (j) any other matters that the Parole Authority considers to be relevant. (4) Without limiting subsection (3) (e) or (j), if the offender has provided post-sentence assistance, the Parole Authority may have regard to the following - (a) the nature and extent of the assistance (including the reliability and value of any information or evidence provided by the offender), (b) the degree to which the offender's willingness to provide assistance reflects the offender's progress to rehabilitation. (5) Except in exceptional circumstances, the Parole Authority must not make a parole order for a serious offender unless the Review Council advises that it is appropriate for the offender to be released on parole. (6) A report prepared by a community corrections officer for the purposes of subsection (3) must address the matters prescribed by the regulations for the purposes of this section. (7) The Parole Authority (and the Review Council when giving advice for the purposes of subsection (5)) must not have regard to the fact that either of the following may be made in respect of the offender - (a) an application for an extended supervision order or continuing detention order under the Crimes (High Risk Offenders) Act 2006 or the Terrorism (High Risk Offenders) Act 2017, (b) an application for a continuing detention order under Division 105A of Part 5.3 of the Commonwealth Criminal Code. (8) The Parole Authority is not required to consider the matters specified by this section in relation to an offender if it determines under Division 3A that it cannot make a parole order for the offender. (9) In this section - post-sentence assistance means assistance in the prevention, detection or investigation of, or in proceedings relating to, any offence, provided by an offender to law enforcement authorities after the offender was sentenced and that was not taken into account or considered by the sentencing court."
The hearing of the application initially came before Walton J on 28 March 2023, who inquired of the parties as to why it was that the application had taken so long to come on for hearing. Reference was made to a delay in organising a computer for the applicant, who has been legally unrepresented throughout the process, so that he could review certain documentation.
Walton J asked the applicant if he wished to amend his application to incorporate the SPA decisions of 2 June and 12 July 2022; the applicant declined to do so. The matter was stood over to 12 May 2023, to enable the applicant to consider and respond to further written submissions filed by the second respondent that had not made their way to the applicant through the prison system in a timely manner.

The relevant principles

In Sutton v NSW State Parole Authority [2011] NSWSC 935, Garling J distilled propositions from cases that considered the counterpart provisions to s 155 of the CAS Act in the legislation that preceded it (the Sentencing Act 1989 (NSW), ss 23(1), (2) and 41(1)). His Honour said, at [9]: "The authorities establish these propositions: (a) An application for a direction from this Court to the Authority, is not an appeal, or any form of an appeal against the decision of the Authority: McPherson v Offenders Review Board (1991) 23 NSWLR 61 at [69C] per Hunt J (Meagher JA, Studdert J agreeing); (b) An application for a direction from this Court to the Authority is not concerned with whether the Authority acted in accordance with the statute, because it is not a proceeding in the nature of an administrative proceeding seeking prerogative relief: LMS v Parole Board (1999) 110 A Crim R 172 at [8] per Stein JA, Hulme and James JJ; (c) The role of this court in considering an application of this kind is extremely limited. It can only consider whether information given to the Authority was false, misleading or irrelevant. And then only if that information is a basis for the decision which was made: R v Naudi [2003] NSWCCA 160 at [19] per Simpson J (Hodgson JA and James J agreeing); Lee v State Parole Authority of New South Wales [2006] NSWSC 1225 per Johnson J; (d) On the hearing of an application, this Court is not concerned with any questions as to the merits of the decision of the Authority, or with what weight it placed on various factors: Radford v Parole Board [2002] NSWCCA 70 at [36], McCallum v Parole Board of NSW [2003] NSWCCA 294 at [33], DCU v State Parole Authority of New South Wales [2006] NSWSC 526 at [5]-[7] per Johnson J; (e) At the hearing of an application, this Court is not concerned with the thought processes of the Authority, or its findings based on the information before it: McCafferty v Offenders Review Board (Court of Criminal Appeal, 19 June 1995, unreported) per James J (Gleeson CJ and Ireland J agreeing); (f) The term 'information' in s 155 is not used in any broad sense. It is used in the sense of factual information, namely information going to the characteristics of the offence and the offender and all factual matters relevant to whether or not it may be appropriate to order a release on parole: Attorney General for New South Wales v New South Wales State Parole Authority [2006] NSWSC 865 at [73] per McClellan CJ at CL, Lee at [14]; (g) In hearing an application, the Court needs to be satisfied that the information was false or misleading in substance. This will usually require evidence in addition to that which was before the Authority to discharge the onus on the applicant: Rozynski v Parole Board of New South Wales [2003] NSWCCA 214 at [13] per Greg James J (Hodgson JA and Simpson J agreeing)."

The hearing of the application

The applicant appeared at the hearing before me via audio visual link from the prison complex where he is presently being held. He gave sworn evidence in support of his application, essentially challenging the accuracy of propositions in the Report.
I proceed on the basis that the applicant is challenging the SPA decisions of 28 May 2020, 12 October 2020, 8 December 2020, 26 March 2021, 1 July 2021 and 5 August 2021.

The applicant's written submissions on the application

The applicant filed two sets of written submissions before the hearing and sought leave to file a third set at the hearing. Leave was granted to the applicant to do so, with further time being granted to the second respondent to file further written submissions in response if it wished to do so. The second respondent subsequently indicated it did not wish to make any further submissions.

The applicant's first set of written submissions

On 11 April 2023, the applicant filed written submissions, pursuant to the timetable set by Walton J.
The applicant stated: "… The Applicant alleges that … all the information on which the [SPA] based, formed, [opinions] as to, all decisions, conclusions which ultimately formulated the decision to refuse NSW District Court common Law of Direction to subject [the applicant] to parole supervision was and is; False, misleading and or irrelevant." (emphasis in original)
The substance of the applicant's written submissions are difficult to understand. He appears to be stating the following.
The applicant requested the Court to "embark on learned discovery" as to the source of information that was before the SPA to determine whether "references to the source information are false, misleading [or] irrelevant".
The applicant called upon Corrective Services NSW to "produce all and every file and document in existence within Corrective Services NSW relating to the applicant".
Under a sub-heading "Case history - application history", the applicant made a series of complaints against the Registrar for perceived injustices in relation to prior applications to produce documents.
The applicant made submissions concerning the SPA's reasons for its decision on 28 May 2020, in particular, the following passage: "He has a lengthy history of violent and aggressive behaviour, both in the community and custody. He has failed to display any positive behavioural change in custody that would indicate he has addressed this specific criminogenic factor."
The applicant submitted that each of the propositions in this passage was false, but did not elaborate further on why or how that was so.
The applicant referred to the following sentence from the same document: "Community Corrections were unable to verify with [the applicant] if he was suffering from a mental illness at the time of the offences". The applicant submitted: "Mental health illness has never been, nor relevant in any assessment/examination of the Applicant. Despite the Applicant's submissions ('[Voluminous]' as Judge described) and numerous interviews by Community Corrections staff from November 2020 till first ½ of 2022, no such verification recorded."
The applicant submitted that there should have been no reference to his murder conviction in the absence of the sentencing remarks for that offence being before the SPA, since without them, the references were misleading.
The applicant submitted that the references to the types of offences he committed, and the references to him failing to comply with the Correctional Centre routine and engage in programs, were "false, misleading", with no further elaboration.
He submitted that reference to him examining the author of the Report on 8 December 2020 was also false and misleading, because when he attempted to do so, the Chairperson stopped him from questioning the author on the source of his information.
The applicant submitted that the requirement that he complete a VOTP program was inappropriate, because the preconditions exclude offenders who are appealing their conviction and he claims that there is no evidence that the program is effective.
In relation to the "material facts" for the SPA decision of 1 July 2021, the applicant submitted that a reference that "he has not engaged in employment" was incorrect or misleading for two reasons. He had been employed in the prison system in 2013, and since then, there have been classifications and placements where employment was not available. The applicant submitted the reference in the same document to referrals for him to engage in the EQUIPS program remaining open is "false". He submitted that he would be prepared to do e as a condition of parole.
As to the relevant principles of law on the application, the applicant submitted that he "strongly objects" to the proposition that the Court cannot engage in an assessment of the merits of the SPA's decision.
At the conclusion of his submissions, the applicant reiterated his request that the Court engage in a process of discovery of all relevant material.

The applicant's second set of written submissions

The applicant criticised the second respondent for its submission before Walton J that the delay in the hearing was partly due to a difficulty in providing the applicant with a computer.
The applicant notes a submission made by the second respondent that, as noted by McClellan CJ at CL in Attorney General for New South Wales v New South Wales State Parole Authority & Anor [2006] NSWSC 865 at [49], the Court should not consider the SPA's reasons "with a fine tooth comb". The applicant submitted again that the Court should embark on its own discovery of documents in order to determine the extent of falsehoods in the material upon which the SPA's decisions were based.
The applicant disputed the relevance of the LSI-R, which was a risk assessment tool applied to him.

The applicant's third set of written submissions

This is a 20-page document which I was unable to make sense of. It contained references to the Australian Constitution providing a form of protection to the applicant and repetition of some of the material in the earlier submissions.

The applicant's oral evidence and submissions on the application

The applicant stated that he wished to give oral evidence in support of his application, which he anticipated would consume about three days of court time. He was advised that the matter had a two-hour estimate, so that was not possible, but if he wished, the matter could be stood over to allow him to file affidavit evidence. He indicated that he wished to give oral evidence, and that he could do so within the allocated time frame.
I note that it transpired that the applicant's "evidence" was essentially submissions. I determined to approach the exercise with a considerable degree of latitude to the applicant.
I note that the applicant's evidence was either a repetition or elaboration of the content of his written material. To the extent that the applicant advanced additional material or submissions, I note the following. The applicant disputed that he had refused to engage with Community Corrections, stating that he only wanted their conversations to be recorded. It was "false, misleading and irrelevant" to say that he would not cooperate with parole conditions, since his submissions to the SPA demonstrated a commitment to parole. To paraphrase the applicant's next point, it was "misleading" for the SPA to have regard to his prior offence of murder without also having access to the remarks on sentence, because it was a felony murder (my term, not the applicant's) which, he submitted, cast him in a less culpable light for the offence. It was misleading for the SPA to have regard to his convictions for drug-related offences, because he wanted to appeal those convictions and his correspondence with Legal Aid on that topic should have been before the SPA. The applicant strongly disputed the facts on sentence for the offences leading to his current incarceration. As noted, he wished to appeal those convictions. He also disputed the version of facts in the Report which, he said, were not those before the sentencing judge.

The second respondent's submissions

The second respondent submitted that it is apparent from the terms of s 155 that the Court does not engage in an assessment of the merits of the SPA's decision or its findings in reaching that decision, but rather upon the information that based the SPA's decision, which is ascertained by the SPA's reasons for its determination. The SPA's reasons identify the issues in a particular case that weighed most heavily in the application of the test pursuant to s 135.
The second respondent submitted that the reasons for the SPA's decisions, which are relevant to this application, are as follows: "a) The need for the applicant to address the risks associated with his offending through undertaking appropriate program interventions; b) The need for suitable post release planning to ensure the applicant's risks can be adequately managed in the community; and c) Whether the Authority could be satisfied that the applicant was willing and able to comply with the conditions of parole and meaningfully engage with supervision."
The relevant material (information) is that which informed these three reasons. The onus is on the applicant to demonstrate, ordinarily by adducing evidence in addition to that which was before the SPA, that the information before the SPA was false, misleading or irrelevant.

Consideration and determination

It is apparent from the principles that were distilled in Sutton v NSW State Parole Authority that the applicant has the onus of establishing that the information upon which the SPA's determination was based, was false, misleading or irrelevant.
The applicant's evidence in support of his submission that the SPA's reasons in refusing him parole were based on information that was false, misleading or irrelevant are his assertions, on oath, to that effect.
The three reasons extracted by the second respondent are those that recur in the SPA's determinations from 28 May 2020 until 5 August 2021, which was the most recent determination before the applicant sought a direction from this Court.
The first of the SPA's reasons is that there is a need for the applicant to address the risks associated with his offending through undertaking appropriate program interventions. By reference to the "Material Facts" of the SPA's determination on 28 May 2020, it is apparent that it was based on the applicant's "lengthy history of violent and aggressive behaviour" reflected in his criminal history and disciplinary history in custody, including his classification at that time, together with the fact that he had not participated in "offence targeted programs".
The applicant's submission is that his criminal record alone only tells part of the story as to whether his offending is violent, and the SPA should also have had regard to the remarks on sentence. He further submits that the SPA should have also taken into account that he could not attend the VOTP program because he is intending to appeal his most recent convictions.
I note that, for the meeting on 28 May 2020, the SPA did have the remarks on sentence by the sentencing judge for the more recent offences for which he was sentenced in 2015. His submission that the murder conviction was for a felony murder overlooks the inherently violent nature of that offence in any event. The felony was an armed robbery of a fast food outlet in which one of the offenders was armed with a loaded shotgun that was discharged, killing a young staff member: R v Kramer (Supreme Court (NSW), Dowd J, 29 November 1995, unrep).
The applicant has offered reasons as to why he has not participated in a program, including that he is precluded because he intends to appeal his convictions, and he is prepared to partake in such a program in the community as a condition of parole. Given that it is now more than seven years since his sentence was imposed, a degree of scepticism is appropriate as to his stated intention to seek leave to appeal his convictions. In any event, neither submission establishes that the SPA's reason was based on information that was false, misleading or irrelevant.
The second reason for the SPA's decision was the need for suitable post release planning to ensure that the applicant's risks can be adequately managed in the community. It is self-evident that proper planning can only occur in the context of a discussion taking place between Corrective Services staff and the applicant. He has refused to partake in discussions, unless his requirements are met, including the electronic recording of those discussions. The applicant's submission provides an explanation for his decision to not cooperate with Corrective Services staff, but does not establish that the information for the SPA's reason was false, misleading or irrelevant.
The same observations apply to the SPA's third reason, that it could not be satisfied that the applicant was willing and able to comply with the conditions of parole and meaningfully engage with supervision. The applicant has a belief that by putting forward on paper his proposal for parole he has done as much as the SPA could reasonably expect of him in that regard. This discloses a rigid, inflexible and unrealistic approach to the essence of supervision. It does not demonstrate a flaw in the information upon which the SPA's reason was based.

Order

Accordingly, for the preceding reasons, I order that the application filed on 14 April 2022 for directions pursuant to s 155 of the Crimes (Administration of Sentences) Act 1999 is dismissed.

Endnote

"Offender Integrated Management System" 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: 31 May 2023

Sentencing Act 1989(NSW)

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