McCallum v Parole Board of NSW

Court of Criminal Appeal (NSW)|2003-09-17|Before: Hidden J, Greg James J, Smart AJ, James J

The applicant stood trial before Freeman DCJ in September 1993 and a jury on six counts, namely, detain a woman against her will with intent to carnally know her contrary to s. 89 of the Crimes Act 1900, four counts of sexual intercourse without consent contrary to s.61 I and one account of attempted sexual intercourse without consent also contrary to s.61 I of the Act. He was found guilty on all counts and sentenced to a concurrent fixed term of imprisonment for 7 years on each count, starting on 1 May 1993 and ending on 30 April 2000.The maximum penalty for each offence was 14 years. All the sexual offences occurred during one episode on 28 November 1992 and involved the same victim.

At the conclusion of his trial the applicant pleaded guilty to a count of armed robbery with an offensive weapon, a replica .45 calibre pistol on 30 April 1993, when he robbed two ladies in their hotel room to which he gained access by a ruse, tied them up and repeatedly menaced them and to a count of being armed with that replica pistol he assaulted a nominated person on 1 May 1993. That victim was an 84 years old man who had kindly given the appellant who was hitch hiking a lift. Both these offences under s.97 (1) carry a maximum penalty of 20 years and involved very serious criminal conduct on the applicant's part. These offences took place while the applicant was on his way to Adelaide to commit suicide at his uncle's grave. He was in a depressed state. For each of the robbery offences the applicant was sentenced to seven years imprisonment starting on 30 April 2000 with a minimum term of 3 years so that the applicant was eligible for release on parole on 29 April 2003. The sentences for the robbery offences were the were thus cumulative on those for the sexual offences.

The victim of the sexual offences was seeking baby sitting work to help support herself as she pursued her University studies. She was lured to the applicant's home for an interview. After some conversation as to her suitability as a sitter for his five months old daughter she waited to meet his wife. After some time had passed, the victim attempted to leave the premises. She was seized by the applicant and, with his arm around her throat dragged protesting into a bedroom where her wrists were bound behind her back. He required her to undress and ultimately completed her undressing. He subjected the victims to two acts of vaginal intercourse and two acts of anal intercourse.

The judge stated that the sentences for sexual offences were much less than he would have imposed had they stood alone and the sentences for the robbery offences were much less than he would have imposed had they stood alone. The judge applied the principle of totality.

In his remarks Freeman DCJ said: "…I accept that the prisoner is of low average intelligence, that he shows indications of a border line personality defect, that he has been in a highly depressed state since being arrested and imprisoned on remand for the sexual offences, and appears that he may well have convinced himself that so overweening was his physical attraction, that indeed his victim CR was a willing participant in the extraordinary range of sexual abuse which he heaped upon her. It seems the prisoner's capacity for self delusion may be supra-normal".
The applicant has consistently maintained that he did not commit the sexual offences and has accordingly refused to address the behaviour of which he has been found guilty. He has refused to engage in a counselling exercise which he would regard a sham. He was not prepared, falsely, as he saw it, to admit his guilt to the sexual offences and to apparently appear to redress his offending behaviour in the way the psychologists and other counsellors would like and which would not be difficult to divine

The applicant asserted that he was not a repeat sexual offender and there was no evidence that he was. He pointed out that he was not serving a current lawful sentence for a sexual offence and submitted that the question of parole only related to the robbery offences.

The Board pointed out that the issue of the relationship between the applicant's two sentences and the convictions to which the parole period related had been previously considered by Sully J in McCallum v. The Commissioner of Corrective Services [2001] NSWSC 208 and by Burchett AJ in McCallum v. The Commissioner of Corrective Services (2002) 129 A Crim R 590. The Board submitted that the key finding was that of Sully J, namely: "…the judge was required to set one parole period for all eight sentences; and that parole period was required to be reasonably proportioned to the total period to be served in custody on account of all eight of the sentences passed simultaneously. The parole period of four years relates therefore to the totality of the plaintiff's criminality".
The Board submitted that it followed that there had been a judicial determination never appealed from, that the applicant had a single parole period fixed for all 8 convictions. Accordingly, it contended that the central point underlying the present application was incurably flawed. The Board submitted that as the applicant was applying for parole in respect of both categories of offence, it waa entitled to take into account the sexual offence convictions and the applicant's continuing attitude towards them.

Counsel for the Board submitted that even if this Court thought that the decision of Sully J was incorrect in so far as it held that the parole period of four years related to the sentences for the sexual offences and the robbery offences, the Board was still entitled to succeed because of s. 135 of the Crimes (Administration of Sentences) Act 1999.

Under s.5 of the Sentencing Act 1989 a Court was required firstly to set a minimum term and secondly to fix an additional term during which the person may be released on parole. Section 6 empowered a Court to decline to set minimum and additional terms if it was appropriate to set a fixed term for, amongst other matters, any reason that the Court considered sufficient.

Section 12 provided: 12. (1) When sentencing a person to more than one term of imprisonment, a court must set minimum and additional terms, or a fixed term, for each sentence. (2) A minimum or additional term, or fixed term, set for an offence is not revoked or varied by a later such term set for another offence.
Section 14 provided that a prisoner was eligible for release on parole only if: (a) the prisoner is subject to at least one sentence of imprisonment that has a minimum term; and

(b) the prisoner has served each such minimum term and is not subject to any other sentence of imprisonment that does not have a minimum term. By the time the applicant came to serve his concurrent sentences for armed robbery and armed assault with intent to rob he was not subject to any other sentence. The fixed terms for the sexual offences had been served and expired.

Section 126 (1) of the Crimes (Administration of Sentences) Act provides that the offender may be released on parole in accordance with Part 6. Section 126 (2) is in substantially the same terms as s.14 of the Sentencing Act 1989.

I attach much weight to the decisions of Sully J and Burchett AJ. However, in view of the statutory provisions it is not possible to hold that the parole period of 4 years relates to all the sentences. No parole period was fixed for the sentences for the sexual offences. The applicant was sentenced to fixed terms which have expired.

Counsel for the Board while acknowledging the difficulties in the approach of Sully J and of Burchett AJ, stated that he had no instructions to make any concessions. Counsel mentioned that when he had appeared before Sully J for the Commissioner he had not advocated the approach taken by that judge, namely, that the parole period of four years relates to the totality of the appellant's criminality.

Section 134 of the current Act which is in Division 2 of Part 6 provides that that Division applies to the making of a parole order for a sentence of more than 3 years for which a non parole period has been set. That is the equivalent of section 16 of the Sentencing Act 1989.

Section 135 of the current Act provides: (1) The Parole Board may not make a parole order for an offender unless it has decided that the release of the offender is appropriate having regard to the principle that the public interest is of primary importance.

(2) In making a decision under this section, the Parole Board must have regard to the following matters: … (b) the offender's antecedents ... (f) the offender's conduct to date while serving his or her sentence including (i) the attitudes expressed by the offender, and (ii) the offender's willingness to participate in rehabilitation programmes. ... (h) the likelihood that, if granted parole, the offender will be able to: (i) to benefit from participation in a rehabilitation program, and (ii) to adapt to normal community life. ... (j) such other matters as the Parole Board considers relevant. 25. The Board was concerned that the applicant had tied up the victim of the sexual assault and the two ladies subjected to the armed robbery which occurred in their room at the hotel. This was significant and the Board was entitled to think that this indicated that something was seriously awry with the appellant.

Section 135 provides that in deciding whether to release an offender on parole the public interest is of primary importance. That is the over-riding principle. Section 135(2) sets out a list of matters to which the Parole Board must have regard. Those include the offender's antecedents; that would encompass the six sexual offences. Section 135(2)(f) requires the Board to have regard to the offender's conduct to date while serving sentence, including the attitudes expressed by the offender and his willingness to participate in rehabilitation programmes. That provision probably relates to the sentence or sentences which the offender is serving. However, the provision is broad enough to pick up attitudes expressed by the offender during the sentence or sentences which he is serving to past matters in so far as they bear upon the offender's fitness to be released. The offender's attitudes of not wishing to address aspects of his offences was capable of bearing upon his fitness to be released. In the present case, the flaw which led to the tying up of the victim of the sexual offences could be seen as being present in the tying up of the ladies the victims of the armed robbery.

The Board could also take the view that without the offender being prepared to address his offending behaviour in relation to women the likelihood of the offender, if granted parole, benefiting from participation in a rehabilitation programme, was low.

Section 135(2)(j) requires the Board to consider such other matters as it considers relevant. It could not be said that the offender's underlying attitudes were not relevant. This provision is one of considerable width as it allows the Board to determine what is relevant. This reduces the area of challenge. However, the factors so considered to be relevant would have to be capable of being relevant on the broad approach contemplated by the section. Parole is a privilege, not a right.

Section 135 of the Crimes (Administration of Sentences) Act not only permitted the Board to do what it did but required it to take into account the matters here in question.

The question of granting parole is usually one of considerable difficulty when the offender maintains his innocence and the crime committed is one which evinces matters which need to be addressed before the offender is released on parole. It would be undesirable for an offender, in order to obtain parole, to follow the counselling course and appear to be doing what the counsellor or other specialist deems necessary when not in truth ascribing to it and believing it to be unnecessary. That would compromise any integrity which remains in the offender.

There is also the problem of not releasing the offender sufficiently early on parole so as to ensure that there is an adequate period of supervision to assist the offender to integrate back into the community.

The applicant, in his submissions, advanced reasons why the Board's decision should be reversed on the merits and he should be released on parole. He relied on favourable assessments from the Education Officer, the Industrial Officer and the Wing Officer. The Education officer described the applicant as doing well in all courses with a excellent attitude and attendance record. The Industrial Officer described the applicant as a good worker showing application and stated that he would succeed if granted parole. His Wing Officer stated that the applicant had not been a problem, had followed Wing routine and was quiet and respectful. The officer added "Shouldn't have many problems outside." The applicant also relied on having served his sentences for the sexual offences, but believing he was innocent and not wishing to compromise his integrity However, the psychological report was unfavourable.

As was pointed out to the applicant during the hearing this Court has no power to review the merits of the Board's decision. In the present case it is confined under s.155 by the Act to considering whether the Board has taken irrelevant information into account. I express no view on the merits of the Board's decision.

Because of the width of the considerations which the Board is required to take into account pursuant to s.135 of the Act this Court must hold that the Board has not taken irrelevant information into account.

The application should be dismissed.

Last Modified: 11/07/2003 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.

CITATION : McCallum v Parole Board of NSW [2003] NSWCCA 294 HEARING DATE(S) : 17 September 2003 JUDGMENT DATE : 27 October 2003

CATCHWORDS : Information to be taken into account by Parole Board when considering release of prisoner on parole - limited role of CCA on application from Parole Board - CCA has no power to review merits of Board's decision. LEGISLATION CITED : Crimes (Administration of Sentences) Act 1999 Sentencing Act 1989 McCallum v. The Commissioner of Corrective Services [2001] NSWSC 208 CASES CITED : McCallum v. The Commissioner of Corrective Services (2002) 129 A Crim R 590 Regina v. Naudi [2003] NSWCCA 160 Rozynski v. Parole Board of New South Wales [2003] NSWCCA 214, PARTIES : John Darrin McCallum v Parole Board of NSW FILE NUMBER(S) : CCA 60175/03 COUNSEL : (A) In Person (C) Mr R Bromwich SOLICITORS : (A) In Person (C) I V Knight

In Regina v. Naudi [2003] NSWCCA 160 and in Rozynski v. Parole Board of New South Wales [2003] NSWCCA 214, Simpson, J. and I both made comment on the lack of the utility of and the difficulties associated with, applications made under s.155, as have various judges of this court over the years.

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