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[2003] NSWCCA 214
Court of Criminal Appeal (NSW)
2003-06-18
Hodgson JA, Simpson J, Greg James J
Original judgment source is linked above.
The application to this court 52 In his written application, Mr. Rozynski applied for a direction to be given by the court to the Parole Board that the information upon which the Board acted and "revoked the eligibility for a parole order" pursuant to either s.130, s.141, s.149, s.150, s.170(1) was either false, misleading or irrelevant; a direction that the Board implement a modern reporting process; a direction to inform and enable the reporting process and the inmate to abide her/his reporting and pre-intention deliberation obligations; a direction to order the Corrective Services Parole Officers and Administration Units to collate and report verified inmate custodial achievement records and enact only those recommendations that are within the Crimes (Administration of Sentences) Act 1999 Regulations; a direction to cease the practice of recommending the setting of parole rehabilitation conditions without parole order release within the current and only workable regulatory framework; a direction to the police, Probation and Parole Services and Corrective Services to comply with the regulations to only report confirmed conviction details with one record entry per report print out so as to limit misleading opportunity and stop false conviction reporting and conviction history print outs being submitted to Parole Boards and/or judicial tribunals in this country; a direction that a parole order of alcohol and other drugs counselling and standard regulatory conditions to remain under supervision for the duration of the additional term by Probation and Parole Services be unrevoked. 53 In respect of these directions, the applicant provided Schedule 1 to his application containing written submissions and Schedules 2 and 3 giving particulars. Schedule 1 contended that the applicant had fully served his non-parole period and hence submitted, in purported reliance on various sections of the Crimes (Administration of Sentences) Act 1999, the applicant was legally eligible to be released upon parole. So much might be accepted. The applicant referred to s.135 of the Act which provides for the matters to which the Board must have regard in considering the granting of parole. The applicant appeared to contend in his written submissions that he was either entitled to parole or entitled to parole without having imposed upon him the conditions of parole providing for supervision and courses. 54 The applicant contended:- "I submit a refusal upon 13 August 2002, in reliance of a parole officer's recommendation to ignore medical and legal advice, and refuse parole and recommend an 18 month, 33% custodial term increase to enforce a voluntary mental health patient participation was misleading. In fact, miscarried the eligibility criteria usurped the boundaries of the prescribed regulations regarding rehabilitation conditions for parole officers." 55 The submission, although confused, appeared to equate eligibility for parole with entitlement to release on parole. It is plainly misconceived and, in any event, despite the attempt to categorise it as "misleading", does not pertain to misleading information on which the decision was based. Such a submission cannot be entertained on this application. 56 He contended that the parole officer had provided false, misleading and irrelevant material to the Board which led the Board into accepting recommendations of "no medical legal advice or relevance to CUBIT discharge, of no available suitable accommodation, of an undisclosed mental health patient status requirement for CUBIT participation". 57 In Schedule 1, the applicant submitted that the material presented to the Parole Board as to his prior convictions was false and misleading, in particular the conviction print outs. He contended that the convictions can be seen at close inspection to be doubled and tripled, indicating him as having been convicted of over 11 firearm offences and 11 sexual assault matters across some 22 courts in New South Wales. He pointed out that he had seven traffic convictions, one firearm replica pistol conviction, two illegal use motor vehicles, two indictable offence being one sexual assault conviction and detain person conviction. Although he accepted that trained and informed eyes might be able to decipher all the entries and relevant reference numbers and dates, he contended that the overall effect of the documentation provided to the Board was false and misleading. 58 The material to which he refers is the familiar computer bail print out which contains records of charges, of court orders during the disposition of a matter and of eventual disposition orders. It refers not only to convictions at first instance, but also to the effect of appeals. It is plainly a difficult document to read and at times may be incorrect in detail. It is particularly difficult to read in relation to the days on which matters came before the various courts. In his oral submissions before us, the applicant contended that, not only were the police print out, but the Department of Corrective Services' report and the Parole Office's report, particularly because of double entries, erroneous both in detail and in totality such as to be false and misleading. 59 In particular, reference was made to various offences in Victoria which should have been struck out from the record and which it was contended were irrelevant, in particular in that there was only one breach of a community services order, that the Victorian record was wrong, listing wrongly offences on 19 May 1997 and that the record contained reference to the armed robbery of which he was acquitted on appeal. Reference was also made to the parole officer's statements that the applicant had been released to parole in Victoria on 6 August 1997, and that was said to be both wrong and irrelevant so that it was false and misleading. Further, there was reference to a statement made by the sentencing judge as to the applicant being on parole in Victoria and it was said that that matter again misled the Board. 60 The report was said to be false in referring to the dates of conviction of the armed robbery offences, and in that breach action in respect of community service orders was taken only once, not on a number of occasions. The applicant detailed his concerns about these matters not only in the Schedule 2 particulars to his application, but also in his oral argument.
The contentions 61 The applicant contended his prior record was erroneous as it was detailed in the printout overall, misleading in the form in which it was given and erroneously detailed in the documents before the Board. He also contended that the Court of Criminal Appeal judgment should not have been taken into account as irrelevant. The applicant's contention as to that was, that he had not challenged either the basis for the sentence or the sentence itself, merely the structuring of the sentence in terms of the date for which, in his contention, the firearm sentences should commence. 62 It can be seen when the reasons for the Parole Board are examined that, although there may have been errors in detail or the prior record documents may have been in a form difficult to read before the Parole Board, the applicant's prior criminal history in general is not disputed as having been in substance accurately before the Board and that the Board's concern was with, in particular, the circumstances of the commission of the sexual assault offence and the applicant's potential for recidivism, a concern of a more general nature. 63 So far as the detailed information concerning the applicant's more general criminal record was not accurate before the Board, or presented in a form said to be likely to mislead, it was not information which in the detail contended was the basis of the Board's decision nor false or misleading in the sense of affecting that decision. I do not consider that these matters raise any necessity for a direction of the kind of which the section speaks or as sought by the applicant. I further consider that the Court of Criminal Appeal decision was entirely relevant in particular as showing the view taken by the courts of the seriousness of the applicant's offences and the nature of his sentences. 64 All the material in respect of prior convictions and the Court of Criminal Appeal judgment were before the Board and were referred to in the parole officer's reports. As the applicant conceded, upon an informed analysis of the primary material concerning his record, it was possible to ascertain what entries were duplicate entries, what entries reflected convictions later reversed on appeal and what entries were only of significance in relation to Victoria. Although certain of the details of the material and, in particular, in the references in the parole report, were not accurate, the material was before the Board to enable the Board to ascertain an overall accurate picture, so far as it was necessary to found the basis of their decision. 65 It is not the case that, whenever differing information on a point is before the Board, those differences can be said to show that some information before the Board was false or misleading. The issue is whether there was information that significantly influenced the Board's decision which was false, misleading or irrelevant, such as to warrant the making by this court of a direction to the Board to which effect might be given in a future hearing of the Board. There is nothing in respect of these matters which warrants any such view being taken. 66 I have already concluded that the decision of the Board concerning the availability of accommodation was made upon the basis of material that was before the Board which was not false or misleading. It remains to consider the issue of Mr. Rozynski's involvement in the CUBIT programme. It was contended that the CUBIT discharge summary was misleading and in particular that the reasons leading to Mr. Rozynski's discharge from that programme as given by the authorities managing the programme were false and misleading. Reference was made both to the report referred to as the discharge summary and the progress report in evidence before us and before the Board. In the two CUBIT reports are set out extensively a history of Mr. Rozynski's use of sunglasses and the reaction to that use of those administering the CUBIT programme. 67 To support the argument that Mr. Rozynski was unjustly discharged from the programme by reason of his refusal to remove his sunglasses, notwithstanding that his necessity for sunglasses was occasioned by his pterygium, medical certificates were provided and there was also provided to us on this issue a petition signed by numerous persons attesting to having seen Mr. Rozynski in good weather and artificial lighting conditions wearing his eyewear protection. I have already referred to evidence by Mr. Ryan, the parole officer, that on occasions at Junee and Goulburn he had seen Mr. Rozynski not wearing sunglasses. This material, it is said, was wrong in that Mr. Ryan appeared to be mistaken as to the times at which he served in various gaols, such that he would not have been able, bearing in mind Mr. Rozynski's movements within the gaol system, to have seen Mr. Rozynski or to have had Mr. Rozynski's case upon his case load at the times about which he spoke. 68 The implication of the dispute over Mr. Rozynski's involvement and discharge from the CUBIT programme involves an issue of whether or not he procured his own discharge from the programme as a manipulative person unwilling to participate in the programme, not merely whether he did or did not need to or did wear sunglasses at any particular time. 69 Mr. Ryan, the parole officer, was not directly challenged on his assertions concerning seeing Mr. Rozynski without sunglasses at the hearing before the Board. Nonetheless, the issue that Mr. Rozynski claimed not to be such a person, but was a person who was co-operative with the CUBIT programme but was unfairly excluded from it, was fairly before the Board. The medical certificates of the various medical practitioners were produced to the Board and were available before us. Mr. Rozynski also took issue with assertions that he was an entrenched sex offender who represented a medium to high risk and thereby required attendance and satisfactory progress through the CUBIT programme before release. He contended he had never been such a person and that his history for other offences meant that his involvement in the instant offence, notwithstanding its nature, would not allow such conclusions of him to be drawn. Mr. Rozynski contended that the Board was misled by assertions that he was unwilling to participate in the CUBIT programme when, in fact, over four and a half years, he said, he had attempted to involve himself with CUBIT and other similar programmes and that that picture was omitted from having been put before the Board. He contended that the matter was put before the Board as though he was not seeking to be involved in CUBIT until late in his sentence, and was in fact unwilling to participate in CUBIT having an involvement designed to ensure his own discharge. 70 It was put that there were incorrect matters such as the applicant being an entrenched sex offender, not undergoing education courses, not being known in employment areas of the gaol, that far from being remorseful he tried to manipulate things by minimising his guilt, and that a misleading impression had been created as to his total criminal antecedents; and that these were all matters which, if not false or misleading and the basis for the Board's decision in themselves, were such as to have influenced the Board to regard less favourably Mr. Rozynski's explanation about his sunglasses and hence affected adversely to him the willingness of the Board to draw a conclusion that he had deliberately sought to procure his discharge from the CUBIT programme. In that regard, it must be noted that the material before the Board did not refer to the 20 plus courses that Mr. Rozynski asserts he had completed whilst in gaol, nor his various employment activities whilst in gaol, since all that appears to have been put before the Board in that latter regard came from officers or institutions at which Mr. Rozynski was not known and not from the institution in which he was known; but it must be noted that Mr. Rozynski's general involvement in courses and employment did raise any disquiet or concern for the Board upon which the conclusion was based or which appears to have influenced the Board's attitude concerning Mr. Rozynski's failure to complete the CUBIT programme. 71 I do not consider that those matters in themselves considered discretely amounted to false of misleading material upon which the decision of the Board was based. I have had regard to the additional material, in particular, Exhibits D, E and F provided by Mr. Rozynski and the assertions he has made in the various documents included in Exhibit C. Even taking those matters, however, into account, I do not see that the conclusion the Board reached, that Mr. Rozynski was unwilling to complete CUBIT and had given an inadequate explanation for that failure to complete it, was not open to the Board to conclude, based on material before it that was not, in my view, false or misleading. 72 Although I would not be prepared for myself to accept the accuracy of the parole officer's assertions of having seen Mr. Rozynski not wearing sunglasses particularly as to the relevant dates, I do not see that the Board's decision was based upon that matter, nor that such a matter of detail is capable of rendering false or misleading the mass of other material before the Board, even when the applicant's material by way of the petition and his medical condition are taken into account. This particularly because of what is revealed concerning the disclaimers for his homework and the applicant's unwillingness otherwise to meet his obligations under the course. 73 I have reached this conclusion notwithstanding what is said to be the inaccuracies contained in the criminal record and its overall misleading nature, the omission of material relating to courses and to work history, and having particular regard to the Board's stated reasons for refusing parole.
Conclusion 74 I have therefore come to the conclusion that I am not satisfied that there was material false, misleading or irrelevant upon which the Board based its decision not to release the applicant on parole, such as might merit the giving of a direction as is contemplated by s.155 of the Crimes (Administration of Sentences) Act 1999. 75 I would therefore conclude that the application should be dismissed. **********
Last Modified: 07/31/2003 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 : ROZYNSKI v. PAROLE BOARD OF NSW [2003] NSWCCA 214 HEARING DATE(S) : Wednesday 18 June 2003 JUDGMENT DATE : 29 July 2003
CATCHWORDS : Whether information given to the Parole Board was false, misleading or irrelevant LEGISLATION CITED : Crimes (Administration of Sentences) Act 1999 Crimes (Sentencing Procedure) Act 1999 Naudi [2003] NSWCCA 160 CASES CITED : McPherson v. Offenders Review Board (1991) 23 NSWLR 61 LMS v. Parole Board [1999] NSWCCA 371 Rozynski [2001] NSWCCA 257 PARTIES : ROZYNSKI, Glen Alan James v. PAROLE BOARD OF NEW SOUTH WALES FILE NUMBER(S) : CCA No. 60089 of 2003 COUNSEL : App: In person Resp: Ms. H. Roberts SOLICITORS : Resp: I.V. Knight
10 At the conclusion of her Honour's judgment, she referred to the statutory history of the jurisdiction. In particular, she referred to the judgment of Hunt, J. (as he then was) in McPherson v. The Offenders Review Board (1991) 23 NSWLR 61 and to LMS v. Parole Board [1999] NSWCCA 371, and to the fact that, notwithstanding the pleas of the court, the section had been re-enacted in its present form. 11 Both Hodgson, JA. and I shared her Honour's views concerning the purpose the powers conferred by the section are intended to achieve. I said:- "I once again draw 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." 12 Notwithstanding these views, it is clear this application has been properly brought before us and should be determined on its merits. But it should be clearly understood that there is no jurisdiction in the court to do other than to determine whether a direction should be given to the Parole Board as to whether information upon which its decision was based was false, misleading or irrelevant, and in consequence of such a direction to give such ancillary or complementary directions "with respect to the information" (that is the information upon which the decision was based), as the court thinks fit. 13 For my part, I consider that action under the section will not be warranted unless the statutory conditions are met as a matter of substance. This means that information before the Board will not be characterised as false, misleading or irrelevant simply because it was challenged, even if challenged on such a basis before the Board and the challenge determined adversely to the applicant, nor if it is merely incorrect in detail but not false or misleading in substance. This court will need to be satisfied on appropriate (usually new) evidence that information was false or misleading in substance, and that the direction should be given. So far as there is a determination of the Board concerning information said to be false or misleading, before the court will so categorise that information, it will be necessary to satisfy the court that the Board's determination was plainly, not just arguably, wrong and further that the information was false or misleading and material to the Board's conclusion. 14 In exercising that jurisdiction, having regard to s.155(3) and the closing words of that subsection, it is necessary for the court to ascertain in what precise respects it is alleged that the information was false, misleading or irrelevant, so as to be able to identify the evidence to support the contention and the sufficiency of that evidence, in order to ascertain whether the application is an abuse.
The instant offences 19 I shall examine the particular contentions made by the applicant in the context of considering the background to the applicant's convictions and sentence, a summary of which is included in the submissions on behalf of the Board provided to the court. The content of that material was before the Board. 20 The applicant had been sentenced in the District Court of New South Wales at Penrith on 14 December 1998 in respect of a number of offences involving firearms and a number of offences including an offence of sexual assault. The firearm offences dated back to 1993 when the applicant had been charged with both armed robbery and firearm matters. Following an appeal, on a fresh trial, he had been acquitted of the armed robbery matters but was convicted of two counts of possession of a shortened firearm for which he was dealt with by his Honour Judge Williams at the same time as the offences which included the sexual assault. 21 Those latter offences consisted of one count of aggravated sexual assault and two counts of detaining for advantage together with a fourth count of stealing a motor vehicle. 22 The applicant was sentenced to a four and a half year minimum term commencing on 17 February 1998 and expiring on 16 August 2002, with an additional term of two and a half years, expiring on 16 February 2005. 23 An application for leave to appeal was brought to this court. It was refused - Regina v. Rozynski [2001] NSWCCA 257. The appeal was brought upon the ground that the aggregate punishment for the two groups of offences was excessive. In the judgment of Studdert, J. at paragraphs 8 to 10 appears the following:- "The offence of aggravated sexual assault is an offence which attracts a maximum penalty of twenty years imprisonment: s.61J(1) of the Crimes Act. The offences of detain for advantage are offences in respect of which the maximum penalty is one of 20 years imprisonment: s.90A of the Crimes Act. The offence of steal motor vehicle attracts a maximum penalty of five years imprisonment: s.154(1)(a) of the Crimes Act. Each of the offences attracting the sentences that commenced on 17 February 1998 was committed on 2 August 1996. The victim of the sexual offence was a 16 year old girl who informed the applicant before he assaulted her that she was a virgin. The victim of the second charge under s.90A was the 18 year old boyfriend of the first victim I have identified. The learned judge summarised the objective features of the offences committed on 2 August 1996 in the following passage in his remarks on sentence:- 'The facts are that two young people [and his Honour was, of course, referring to the young man and young woman I have mentioned] were sitting in a car, parked near Warwick Farm railway station when Mr. Rozynski entered the vehicle and began a conversation. The young man in the car was aged 18 and the young girl was aged 16. Mr. Rozynski produced a knife when the young man went to get up out of the vehicle. He pulled a knife out of his jacket and said, 'Lie back down. No-one's going to get hurt'. As he said this, he had the knife at the throat of...the young woman. He had a further conversation with the victims and then said to the young man, 'Get up and get in the back seat. If you don't do it, I'm going to cut her'. The young man then climbed into the back seat of the motor vehicle and Mr. Rozynski climbed through to the front seat. He then tied the wrists of the young man together with some tape and placed a jacket over his head.' He then drove the vehicle to various locations around the area, stopping twice and having further conversations, during which other threats were made as well as promises not to harm either of the young persons. He finally stopped outside 14 Gallop Street, Warwick Farm. At this location, he led both victims to a laundry which is attached to Unit 4, 14 Gallop Street. The laundry was located at the rear of the units. He then put the knife to the young man's back and told them to walk into the laundry. Once all three of them were inside, he turned the light on for a couple of seconds and then tied the young man's feet together and put his legs through his arms. He then made the young lady take all her clothes off and lie on a car seat that was in the laundry. He then performed cunnilingus on her, then penile penetration and ejaculated on her stomach. He then took his jumper and wiped her stomach and then he performed digital penetration. Whilst doing this, he said, 'I'm going to kill myself after what I've done to youse. It's not my fault. I'm taking drugs. It's the drugs that do it to me.' He then got dressed and left the laundry and drove off in the young person's car which was located later that afternoon in Hart Lane, Warwick Farm, about 30 metres from where he lived. There are a number of aggravating features. Firstly, the offences occurred in the early hours of Saturday morning. Secondly, the victims were young people enjoying a night out. Thirdly, Mr Rozynski threatened both on a number of occasions, both with a knife and with words and actions. Fourthly, he tied the young man up, taping his hands and tying his feet. Fifthly, he committed three types of sexual assault on the young lady, she protesting that she was a virgin and this was occurring in the sight of her companion who was tied up. Plainly, viewed objectively, these were very serious crimes, particularly the sexual offence." 24 It will appear that I do not regard this decision as irrelevant, particularly because of the passage I have cited. 25 The applicant had come forward for sentence at the age of 32 but with a lengthy criminal record including offences of dishonesty, break enter and steal, stealing motor vehicle and involving firearms. There were convictions for armed robbery in Victoria. 26 It was submitted on the appeal that although the applicant had spent more than 16 months in custody for the firearms offences, he had originally only been sentenced to 12 months in respect of them and it was put that, had Judge Williams when re-sentencing appreciated this matter, it would have been appropriate to reduce or backdate the sentence so that a lesser sentence would have been imposed or a sentence lesser in effect. 27 The court concluded that in the circumstances of the applicant's case, no unfairness or injustice had occurred and that the sentence accorded with principle. It was on that basis the application for leave to appeal was refused.
(1991) 23 NSWLR 61