"It was Dr Blake, who in a witnessed agreement, committed himself to providing one on one counselling, as was strongly suggested by two respected Psychologists in this field. If 'I' entered into and completed, the Introductory SORT Course, that I did, because, I believed and placed my faith in this man, only to have that 'trust', abused, in the most awful way, in his refusal to counsel me." (sic)
14 Although its terms are a little cryptic, a letter of 11 December 1998 from Mr Robert McKeown, who describes himself as the Acting General Manager, apparently of the Junee Correctional Centre, seems to indicate that the Applicant had made 7 requests for referral for psychological counselling in 1998. A report of 30 April 1999 signed by Maree Grant and Heinz Krueger records that:-
"After a meeting with Dr Blake, Senior Psychologist at this Centre, Mr S agreed to attend the Introductory SORT program and then have one on one counselling with Dr Blake. Mr S completed the Intro-SORT program, however, the one on one sessions did not eventuate, through no fault of the applicant".(sic)
15 In totality, this evidence satisfies us that the Applicant has made serious efforts to obtain individual counselling. The omission of any reference to these efforts did not make what Dr Blake did say false but it did, on the other hand, make his report misleading. Notwithstanding the references in the report to counselling are to counselling of particular types, when one has regard to the number of occasions the report makes reference to the applicant being unwilling to undertake counselling, it suggests the applicant has been substantially unwilling to undertake counselling at all. That is clearly not so.
16 The probabilities are that Dr Blake's report, and in particular what he had to say on the question of counselling was of significance in the Board's decision. In that situation, the Court should give the direction which s23 of the Sentencing Act contemplates.
17 There were also other aspects of Dr Blake's report which were criticised but in relation to these matters, the complaint fails. The opinions of someone in Dr Blake's situation, providing the opinions are in fact held, are not false or misleading merely because, in the applicant's view, they are wrong.
18 Dr Blake said:-
"Mr S has somewhat of an "assumed" key informant status … and has been reluctant to involve himself in more intensive group treatment due to his perceived issues of personal safety."
and later -
"It is also regrettable that Mr S believes that he is not suitable for the Corrective Services COBAC program, as he claims he is suing the Dept. of Corrective Services."
19 The Applicant submitted that the use of the words "assumed" and "claims" indicated that Dr Blake was asserting the untruth of the suggestions that the Applicant was an informant and was suing the Department. However it seems to us that these references have been misunderstood by the applicant. The Board could have been in no doubt but that the applicant was an informant and a most important informant from the point of view of the authorities. The writer of the report, however, was concerned about LMS himself assuming that status and because of it being reluctant (for whatever reason, whether of personal safety or otherwise) to involve himself in group psychological counselling treatment sessions. Similarly, the writer, when he refers to the claim of LMS suing the Department of Corrective Services, is not concerned as to whether LMS is or is not a litigant but whether that status had been claimed to justify LMS asserting that he was not suitable for the COBAC Programme involving, as that programme does, psychological counselling. The important matter in each case is not the applicant's actual status but whether he is really willing to undergo counselling. The report implies he is not.
20 Apart from the material to which we have referred, the Court was taken to a very considerable quantity of other documentary material in support of the application. We have considered all of that material but none provides any basis for concluding that the Board made its decision on any other information which was false, misleading or irrelevant.
21 An appropriate order to reflect the conclusion at which we have arrived is:-
"Direct the Parole Board that, insofar as Dr Blake's report of 31 March 1999 suggested that the Applicant had been unwilling to undergo counselling, that report was misleading."
22 However a question arises whether the Court can, or should, go further. There is nothing in the Sentencing Act which indicates what effect will or might be given by the Parole Board to such a direction. Fairness would suggest that the Board should reconsider Mr S' application for parole in light of this Court's conclusion or direction and as soon as that can reasonably be done. It may be that insofar as s23(2) provides that the Court of Criminal Appeal "may give such direction with respect to the information (suggested to have been false, misleading or irrelevant) as it thinks fit" the section empowers the Court to give consequential directions designed to ensure the decision it does make concerning that information is not a solemn farce. However, not surprisingly considering the Applicant was not represented, no submissions were directed to any question of ancillary orders.
23 Given that the Board expressed a number of reasons for its decision, it may be that the Applicant would gain little or nothing by having a further hearing by the Board now, merely on the basis of the conclusion at which this court has arrived. He may be better served by waiting until 25 January with a view to addressing all of the Board's concerns. In these circumstances, we would propose that the Court go no further than to give the direction I have set out above but reserve liberty to the Applicant to apply, in the event no further hearing of the Board is held within a reasonable time.
24 The applicant sought certain costs. That application is entirely misconceived and this court lacks power to grant any such application.
25 In conclusion, we would add our voice to the pleas of other judges that Parliament will remove ss23 and 41, at least in their current form, from the Sentencing Act. In McCamley (supra) Hunt CJ at CL, with the agreement of at least one other member of the Court said that that case illustrated how little utility there was in those provisions and that the procedure was a failure. We would add that, while the sections do contain some provisions directed to avoiding the time of the Court being wasted, this case illustrates that one effect of the sections is that 3 Supreme Court judges may be required to examine a great deal of paper in order to come to a decision whether some information before the Parole Board was false, misleading or irrelevant; and this even though the information, while material, was not decisive and may turn out to be utterly irrelevant when the Parole Board next considers an applicant's case - in less time than it generally takes to bring a matter on in this Court. The absence from the Sentencing Act of anything which clearly states what effect is intended for directions concerning information this Court may make under the sections is yet another unsatisfactory aspect of them.
26 The orders of the Court are:-
(1) Direct the Parole Board that, insofar as Dr Blake's report of 31 March 1999 suggested that the Applicant had been unwilling to undergo counselling, that report was misleading.