Regina v Naudi [2003] NSWCCA 160 | Case summary

facts 3 The applicant was born on 28 May 1955. On 18 August 1997 he was charged on indictment with ten counts of sexual assault, one count of assault occasioning actual bodily harm and one count of assault. He entered a plea of guilty to the single count of assault, and pleas of not guilty to each other charge on the indictment. After a trial a jury convicted him on each count on the indictment. On 17 October 1997, on the assault charge, he was sentenced to a fixed term of imprisonment for six months, commencing on the day it was imposed. On the charge of assault occasioning actual bodily harm he was sentenced to a fixed term of imprisonment for one year. On the ten sexual assault counts he was sentenced to a minimum term of six years, with an additional term of two years, commencing on 3 February 1997. 4 All counts on the indictment related to the same victim, a young female who had been taken into their home by the applicant and his wife, her mother having died when the victim was eleven years of age. The first offence was committed in 1990 or 1991, when the victim was eleven or twelve. So far as I can ascertain from the material before this court (principally the remarks on sentence of the sentencing judge) this consisted of penile penetration of the victim's vagina. Thereafter, for about three or four years, there was no sexual activity, but this resumed and became a regular and frequent occurrence from early 1994 (when the victim was fifteen years of age). It is unnecessary here to detail the circumstances of the individual sexual offences. The charge of assault to which the applicant pleaded guilty was committed in August or September of 1994, when the victim resisted the applicant's overtures and he punched her in the stomach. There were other instances of assault, including one in which he pushed the victim into a metal trolley and threw a coat hanger at her, which penetrated her leg causing injury. 5 The minimum term imposed on the applicant expired on 2 February 2003. He applied for parole. On 5 December 2002 the Parole Board ("the Board") advised of its intention to refuse parole. It gave as its reason: "Unable to adapt to normal community life; risk of re-offending; need to address offending behaviour." 6 The Board gave notice to the applicant that it would reconvene on 14 February 2003 for the purpose of reconsidering its determination, and advised the applicant of his entitlement to make submissions to the Board on that occasion. It provided him with copies of reports and other documents it intended to use in the review hearing. 7 On 14 February 2003 a hearing took place, at which the Board had before it a pre-sentence report prepared at the time of sentencing, a pre-release report dated 26 November 2002, a supplementary pre-release report dated 12 February 2003, and the applicant's criminal history; and received oral evidence from the applicant and from Ms Rose Coates, a Probation and Parole Officer at Long Bay Parole Unit, and the author of the pre-release reports. 8 Concerns about the applicant's release are set out in Ms Coates' reports. In the first she reported that the applicant was not, in custody, a management problem, and was generally well behaved except for some instances of "a quick temper". She listed a series of educational courses he had undertaken. However, she also noted that, despite a recommendation that he attend an anger management programme, he had failed to do so. This was because a prerequisite of such a programme was attendance at an introductory Personal Effectiveness Programme, which the applicant had begun but failed to complete. Ms Coates reported (quoting an alcohol and other drugs worker): "… Mr Naudi presented with an entitled manner, a poor attitude towards class participation and towards women." 9 There were other comments concerning the applicant's "attitude" and communication skills. Ms Coates also referred to a history of drug and alcohol abuse but observed that that did not appear to have been a factor in the commission of the sexual offences. There was a good deal in the report that was favourable to the applicant, particularly relating to his behaviour in custody, his employment, and his participation in the education programmes. 10 Of particular concern, apparently, to Ms Coates, was the fact that the applicant continues to deny his guilt of the offences. When she gave oral evidence Ms Coates made it clear that she considered that the applicant should not be released until he had successfully completed a sexual offenders' course but that such a course was not available in the absence of acknowledgement of guilt of the offences of which he had been convicted. 11 In the 26 November 2002 report, Ms Coates outlined the applicant's proposals in relation to accommodation in the event of a grant of parole, and considered these arrangements to be suitable. Notwithstanding the mixed content of her report, she concluded with the following: "Release to parole cannot be recommended at this stage. Mr Naudi would benefit from acknowledging his offences and commencing to take responsibility for them by referring himself to the appropriate sex offender treatment program. He would also benefit from reapplying to attend an anger management program and any prerequisites this involves." 12 Ms Coates' report was endorsed by Mr Bob Morgan, the Manager of the Long Bay Parole Unit. Mr Morgan noted: "Notwithstanding his generally compliant behaviour within the custodial situation, it is of concern that Mr Naudi has failed to make any progress in addressing his offending behaviour. Given there has been no shift in his attitude with regard to the offences it can only be assumed he will present as a significant risk if placed in a similar situation to that in which his offending behaviour developed." 13 A supplementary report dated 12 February 2003 was also before the Board. This was also written by Ms Coates ad endorsed by Mr Morgan. Among other things, Ms Coates recorded in the report specific matters in her earlier report with which the applicant disagreed. That the applicant refused to acknowledge his guilt of the offences continued to be a barrier to his undertaking treatment programmes; his unsuitability for undertaking treatment programmes in turn continued to be a barrier to recommendation to release on parole. 14 Ms Coates also noted that the applicant had attended, but not completed, a psychological interview. On the materials available, the psychologist (a Dr Schou) assessed the applicant's rate of risk (of re-offending) as low to moderate, but this had to be treated with caution as a full risk assessment might have returned a different result. 15 Ms Coates and Mr Morgan adhered to their earlier recommendations against a grant of parole. 16 At the review hearing on 14 February 2003, the applicant was legally represented and was questioned about his proposals if released, and about the matters that gave rise to Ms Coates' concern. In relation to his refusal to undertake the sex offenders' course, he said: "Well, it'd be very hypocritical of me to do a course like that when I didn't do the crime, I done the crime I'd be more than happy to do the courses. I knew that I'd be probably knocked back for parole for not doing the crime, the courses as well." 17 The applicant was questioned by some members of the Board. 18 After a brief adjournment during which the Board considered the matters put before it, it reconvened and advised the applicant that parole would "at this stage" be refused "for the reasons stated". That is, as I understand what the Board said, it adopted the reasons previously given for the refusal of parole. * * * 19 As will be seen from the terms of s155 of the Act, the role of this court in relation to a refusal of parole is extremely limited. It may consider only whether information given to the Board was "false, misleading or irrelevant". It is implicit in the section that any information found to be false, misleading or irrelevant has also been information on which the Board's decision was based. It is not sufficient that there be false, misleading or irrelevant information; that information must also be part (at least) of the foundation for the decision. If the court finds that the information was false, misleading or irrelevant, it "may give such direction with respect to the information as it thinks fit". No guidance is given as to the nature of directions envisaged. It may be that the legislature contemplated that, in the event that the court found that information given to the Board was false, misleading or irrelevant, the directions open to it would include a direction that the Board reconsider its decision. In the absence of argument it is not possible to reach a firm conclusion as to this. One thing is clear: this court does not operate as either an appeal from, or judicial review of, Board decisions. 20 On the hearing of the application this court first considered whether leave should be granted to the applicant to appear in person. Leave was provisionally granted and the applicant was then given the opportunity to make submissions directed to the questions raised by s155(3): that is, to attempt to satisfy the court that the application was not an abuse of process and that there appeared to be sufficient evidence to support the application. 21 Having heard the applicant's initial submissions, the court was appropriately satisfied and heard further submissions on the substance of the application. 22 One difficulty in the present application is that the applicant appears unrepresented. Prior to the hearing, he presented a document containing the contentions he wished to put before the court. At the hearing, he put forward some additional evidence and argument. 23 While, in my opinion, it is possible for this court to reach a view, on the material before the Board alone, that information given to it was irrelevant, in the absence of evidence in this court contradicting or putting in correct context the information before the Board, it would not, ordinarily, be possible for this court to determine that the information given to the Board was false or misleading. 24 I will deal firstly with the matters raised by the applicant in the original document he filed. The applicant then contended that the Board, in reaching its determination that he would be unable to adapt to normal community life, was misled by Ms Coates, by the omission of relevant information. The information he contended was not given to the Board included a policy statement of the Department of Corrective Services, to the effect that one of its objectives in sentence management is assisting inmates to adapt to normal community life via correctional centre programmes and participation in external community programmes prior to release, and that priority should be given to inmates facing significant barriers to reintegration to society after release, for example inmates serving long terms of incarceration. 25 The applicant followed this reference by asserting that, to the date of writing, only two inmates had been allowed out on day leave. He claimed to have been denied access to the external programmes referred to in the policy statements. He further claimed that omission of this information led to the Board's being misinformed and that this contributed to its view that the applicant would be unable to adapt to normal community life. 26 The applicant produced no evidence to support any of the assertions he made in this respect. It was not easy to understand the points the applicant sought to make by these references. As best I can make it out, it is a point concerning alleged divergence between stated policy of the Department of Corrective Services and its practices. I am unable to see that, even if such a divergence were shown to exist (which, in the absence of evidence, it is not) it could have any bearing on his application for parole. There being no evidence before the Board concerning either the Department's policy or its practices, it cannot be said that the Board was misinformed in relation to those subject matters. This aspect of the applicant's argument does not advance his case. 27 The second matter raised by him was the assertion that the Board was misled in reaching the same conclusion because of the failure of Ms Coates to emphasise that he had established appropriate accommodation, employment and counselling. 28 It can readily be seen that this assertion is factually incorrect. Ms Coates made reference to his proposed accommodation and declared it to be satisfactory; the applicant himself gave evidence that he anticipated securing employment, that he had accommodation, and that he had made arrangements for counselling. No false, misleading or irrelevant information in relation to employment or accommodation has been identified. 29 The applicant also complained that Ms Coates' report was misleading in that she listed the educational courses he had completed, but said that he was not currently undertaking any. This, he said, was misleading because he had completed all the courses available to him. 30 I am satisfied that what Ms Coates said was not misleading. She gave no weight to the applicant's non-attendance in educational courses at the time she reported, but gave considerable attention to those courses which he had undertaken. Even assuming it to be the case (of which there is no formal evidence) that the applicant had completed all courses available to him, this does not establish that Ms Coates' report was misleading. 31 There is one factual matter contained in Ms Coates' report with which the applicant takes issue. Ms Coates stated that the applicant's former de facto partner had told her that the applicant had suggested that she (that is, the former de facto) contact the victim of the offences by telephone and that she had in fact done so. Ms Coates considered that this incident (if correctly reported to her) demonstrated "significantly manipulative behaviour" on the part of the applicant, both towards his former partner and towards the victim of the offences. 32 As to this, the applicant asserts that, in an interview with Ms Coates on 25 October 2002, he had told Ms Coates that he did not want her to talk to his former de facto partner because of a dispute between them about the applicant's access to their son. He claims to have told Ms Coates that his former de facto partner had rung the victim, apparently not at his instigation. 33 In her supplementary report, Ms Coates expressly recorded the applicant's denial of the allegation that he had initiated the contact with the victim but added that she had no reason to consider that the information she had been given "would necessarily be false". He repeated his denial in oral evidence before the Board. 34 Two observations may be made about this issue raised by the applicant. Firstly, it is not possible to determine whether Ms Coates' assertion had any effect upon the determination of the Board. Given the terminology of s155(1)(b), it is necessary that the applicant establish that the Board's decision was "made on the basis" of false, misleading or irrelevant information. It is not sufficient that he establish that information of that character was included in the material before the Board; the applicant must go further and show that information of that character was (at least in part) the foundation for the decision: that is, that, in coming to its decision, the Board relied upon that information. While it is important to remember and keep firmly in mind at all times the limited role of this court in an application such as this, and that it does not include reviewing the decision made by the Board, the impact of any information shown to have been false, misleading or irrelevant may have a bearing upon the nature of any direction given by the court. In this respect it is of some significance that, in referring to the incident, Ms Coates was careful to make it clear that her information had come from the former de facto, and that the interpretation she placed upon the behaviour attributed to the applicant was expressly made subject to a question as to its correctness. 35 The second, and more important, observation to be made is that there is no evidence before this court to demonstrate that the statement made by Ms Coates is incorrect. In fact, what she says is not inconsistent with what the applicant says; as indicated, Ms Coates makes it quite clear that she is recounting an assertion made to her by a former partner, but is not necessarily adopting it as a truthful or correct statement. That is, Ms Coates has made it quite clear that she was given a certain account by the former de facto which she recognised, and communicated to the Board, may or may not have been true. There is no evidence that Ms Coates was not given an account in the terms that she mentions. But even if the report were to be taken as a statement of the truth of the account given to Ms Coates, there is no evidence before this court that demonstrates that it was false or misleading. In this regard it is not insignificant that Ms Coates' report was available to the applicant and his solicitor at the time he gave his evidence. He expressly denied that the telephone call was made at his instigation. The Board therefore was in possession of the two competing accounts. 36 There is nothing in the decision of the Board, or the short reasons for refusal given by it, which would enable this court to determine that the decision was "made on the basis of" this information, even if it could be shown to have been false. 37 Next, the applicant contended that the Board was misled into believing he was at risk of re-offending. It is not easy to understand the argument he advanced in support of this contention. What he wrote was that the Board was misled: "by ignoring the fact that I pleaded not guilty and ignored Ms Rose Coates, states in her report that I am not eligible to do the sex offenders' programme courses, cause I still maintain my innocence." 38 What is plain is that the applicant's argument misconceives s155. What it is necessary to establish is "false, misleading or irrelevant" is the information put before the Board on the basis of which it made its decision. The section confers no jurisdiction on this court to review the reasoning process or conclusions of the Board. What the applicant here is attacking is the conclusion at which the Board arrived on the basis of the information put before it. The two factual matters raised by him - the fact that he pleaded not guilty, and his ineligibility to undertake a sex offenders' programme in the absence of acknowledgment of guilt - were both fully and comprehensively before the Board. There was no false or misleading information in this respect. 39 At the hearing of this application, the applicant sought to demonstrate that the conclusion was wrong by tendering some documentation (exhibit A). The material may best be described as a research report, prepared by officers of the Canadian law enforcement authorities, concerning risk assessment for sex offenders. It contains, inter alia, a table to enable evaluation of the risks of re-offending in any individual case, by reference to a series of criteria. The applicant had performed a self assessment, and concluded that his risk of re-offending should be judged as low. To my mind, the documentation does not establish that any information on which the Board based its decision was false or misleading. That information consisted of assessment, based on limited information available (the limitation on the availability of the information having come about by reason of the applicant's non-cooperation). There is no reason to suppose that the assessments did not represent the honestly held opinions of the individuals concerned, and indeed, every reason to think they did. That a different test came to a different opinion does not render the information provided to the Board false or misleading. 40 At the hearing of the application the applicant raised some additional matters. The first matter concerned a passage in Ms Coates' report dealing with the applicant's proposals for accommodation in the event of his release. Ms Coates wrote: "Mr Naudi intends to reside with his aunt at her home in Doonside, Sydney. A home visit has been conducted and the address is considered suitable. Mr Naudi's aunt stated that she does not know whether her nephew committed the offences or not and she would prefer to think he did not. However, she stated she was willing to monitor Mr Naudi and to liaise with his Parole Officer. She presented as supportive of Mr Naudi but with a fairly pragmatic approach towards any conditions he may have in relation to parole. She understands that she may not be considered to be a responsible supervising adult in the context of Mr Naudi having contact with minors, and stated that she wanted to make it clear that she would not ignore any suspect behaviour she observed in relation to the inmate." 41 It was that part of the report in which Ms Coates stated that the applicant's aunt [Ms Farrugia] understood that she might not be considered a "responsible supervising adult" with which the applicant takes issue. He claimed the assertion to be false or misleading because he had, he said, correspondence from the Family Court of Australia permitting Ms Farrugia to supervise his contact with his son. The applicant was not able to produce the document to which he referred and thus there was no evidence before this court to support his claim. But, even assuming such a document to exist, and to be to the effect asserted by the applicant, it would not, in my view, achieve what the applicant hopes of it. In my opinion, the applicant has misconstrued Ms Coates' report. What Ms Coates was referring to was the possibility that the parole authorities might not consider Ms Farrugia to be suitable to supervise the applicant in his contact with minors. That is quite separate from any approval given by the Family Court authorities to contact visits supervised by Ms Farrugia. The approval of Family Court authorities might be a relevant factor in the assessment by state authorities of Ms Farrugia's suitability as a supervisor, but (assuming it to exist) does not establish that the information given by Ms Coates to Board was false or misleading. The applicant's legal representative, at the Board hearing, who covered comprehensively matters at issue in Ms Coates' report, did not see the need to address this part of the report. It is unlikely to have had any bearing on the decision of the Board. 42 A second matter to which the applicant referred was the conclusion by Mr Schou that the applicant's risk of re-offending was low to moderate. The applicant linked this with a pre-sentence report prepared for the original sentencing proceedings, in which he was assessed as suitable for serving a sentence by way of periodic detention. Again, it is not clear what the applicant seeks to make of this. He does not, as I understand it, suggest that the assessment was false or misleading, but rather that the Board gave it insufficient weight. That is not a matter (even if established) that this court can take into account. 43 The applicant also referred to a paragraph in Ms Coates' first report in which he was said to have been involved in "a minor incident at work" when he was employed in the kitchen. He suggested that the use of the word "incident" conveyed something sinister about his conduct, or critical of it. The applicant produced in this court a document signed by a supervisor of Food Services (a Mr or Ms C Chambers) stating that the reason that the applicant had ceased to work in the kitchen was that he had found the work too boring and that there was too much time between the tasks he had to perform. Mr/Ms Chambers stated that the applicant was very active and would be better suited to a job where he was constantly active. He/she added that the applicant has worked "very well" in the time he had been employed in the kitchen. 44 The applicant gave oral evidence about the circumstances in which he had ceased work in the kitchen. It was to precisely the same effect as that contained in the memorandum from Mr/Ms Chambers. 45 Once again, there is nothing shown to be false or misleading about what Ms Coates wrote in her report. She quoted the supervisor as saying that the applicant's overall performance had been good, and said that he was likely to take up alternative employment within the next few days. 46 There is nothing in this point argued by the applicant. 47 Finally, the applicant complained of a passage in the report in which Ms Coates wrote: "Mr Naudi somewhat minimises his history of drug and alcohol abuse, which includes offences for cannabis, heroin and amphetamines." 48 He denied that this was true. Although the applicant gave evidence before the Board acknowledging problems with drugs in the past, he said he had never, in prison, tested positive to drugs. He said no more about his attitude to drug use. 49 There is no reason to believe that the statement by Ms Coates was false or misleading. Certainly, there is no evidence adduced in this application on which this court could conclude that that information was in any way inaccurate. In saying this, I take into account the applicant's denial, which (although not made on oath or affirmation) I would be prepared to treat, for the purpose of the argument, as evidence, it is simply a denial and no more. In any event, there is no reason to believe that Ms Coates' assessment of the applicant's attitude to his drug use played any significant part in the Board's decision. 50 The applicant has failed to establish that the decision of the Board was made on the basis of false, misleading or irrelevant information. There is, accordingly, no occasion for this court to give any direction to the Board. I do not, however, wish to conclude these reasons without observing something of the legislative history of this jurisdiction. 51 Until 1999, the s155 jurisdiction was conferred on this court by s23 of the Sentencing Act 1989 which was in substantially similar, if not identical, terms to s155. S41 of the same Act conferred a parallel jurisdiction in relation to an order of the Parole Board revoking a grant of parole. 52 The history and purpose of the jurisdiction were traced by Hunt J (as he then was) in McPherson v Offenders Review Board (1991) 23 NSWLR 61. His Honour described the purpose of the statutory provisions as "obscure". In LMS v Parole Board [1999] NSWCCA 371; unreported 25 October 1999, this court (constituted by Stein JA, Hulme and Greg James JJ) said: "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." 53 Those pleas were made on 25 October 1999. The legislation there under consideration was that contained in s23 of the Sentencing Act 1989. Less than two months later, on 8 December 1999, the Crimes (Administration of Sentences) Act received Royal assent; it was gazetted on 17 December 1999 with a commencement of 3 April 2000. Notwithstanding the observations of Hunt J in McPherson and the pleas of this court in LMS, s155, precisely reproducing the effect of s23, was enacted. It is still not clear what the powers conferred by the section are intended to achieve. 54 I am satisfied that the applicant has not established that the Board's decision was based on false, misleading or irrelevant information. It is, fortunately, therefore unnecessary further to explore the intention of the legislature in the enactment of s23. 55 I propose that the application be dismissed. 56 GREG JAMES, J: I agree with Simpson, J. 57 I once again draft to the attention of the legislators the history of the provisions under which this application was brought and which are referred to in the cases cited at paragraph 50 et seq. of Simpson, J.'s judgment. The section seems of little practical value. It might be the legislators would reconsider whether it should remain in effect.

Regina v Naudi

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