S v New South Wales Parole Authority - [2007] NSWSC 1287 - NSWSC 2007 case summary — Zoe

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S v New South Wales Parole Authority

[2007] NSWSC 1287

Supreme Court of NSW|2007-10-08|Before: Barr J

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Source facts

Court

Supreme Court of NSW

Decision date

2007-10-08

Before

Barr J

Source

Original judgment source is linked above.

Judgment (12 paragraphs)

[1]

The application 10 The application is dated 20 March 2007. It was filed on 23 March 2007. It asserts that information on which the Parole Authority acted was false, misleading and irrelevant. That information is particularised in a fourteen-page attachment to the application. The attachment is formidable in its length. It has thirteen attachments, numbered and entitled as follows - 1 Pre-Release Report dated October 25th, 2006 prepared by Probation and Parole Service 2 Submissions for paper hearing dated November 17th, 2006 prepared by (the applicant) 3 Psychological Assessment dated December 21st, 2006 prepared by Duffy Barrier Robilliard Psyc 4 Parole Submissions dated January 5th, 2007 prepared by (the applicant) 5 Psychological Risk Report dated February 26th, 2007 prepared by L Vidler 6 Supplementary Pre Release Rpt dated March 5th, 2007 prepared by Probation and Parole Service 7 Parole Supplementary Submissions dated March 5th, 2007 prepared by (the applicant) 8 Comment on Psychological Risk Report dated March 13th, 2007 prepared by Duffy Barrier Robilliard Psyc 9 Changes to Operations Procedures Manual dated 2002 prepared by J Klok 10 Criteria for Sex Offenders Programs from Inmate Classification and Case Management Procedures Manual of the Department of Corrective Services 11 Attachment to Affidavit of G Steedman dated December 11th, 2006 in the matter of Wray v R prepared by L Vidler 12 Consent to sex offender programs referral dated November 24th, 2004 13 Ibid dated December 14th, 2005

[2]

[3]

and fifteen numbered paragraphs thus - 15. The SPA formed its judgment based on false, misleading and irrelevant information. [Crimes (Administration of Sentences) Act 1999 s155(1)] 16. The SPA concluded that, because I was "untreated": - I pose an unacceptable risk to the safety of the community - The only way that I could satisfy the concerns of the SPA is to complete the PREP program. This reasoning is false and misleading. 17. The contention that I pose an unacceptable risk to the safety of the community is unsupported by evidence. - The statistical possibility of my offending on parole falls at the lowest point within the lowest category of possibilities. (see attachment 4 No 12 Et al.) - The parole officer, prison psychologist and Duffy Barrier Robilliard Psychologists are in agreement that the most recognised indicator of sexual recidivism (Static-99) places me at the lowest point in the lowest range. (see attachment 1 p6) (see attachment 3 pp8-9) (see attachment 4 No. 11 Et al. and pp13-14) (see attachment 5 pp3-4) (see attachment 7 No. 7) (see attachment 8 No. 2) 18. The contention that, the only way that I could satisfy the concerns of the SPA is to complete the PREP program, is unfounded. This is because this requirement is based on a misconception of what the PREP program is designed to accomplish. The program is irrelevant to me. - "The PREP program is a pre-treatment group aimed at introducing and preparing offenders to participate in a sex offenders treatment program". - "It is important to note that the PREP program is not treatment, but preparation for treatment." (see attachment 5 p3) (see attachment 7 No. 6) (see attachment 11e) - I have been barred from sex offenders treatment programs. (see attachment 4 No. 8 and pp13-14) 19. The suggestion (made for the first time during my parole period) that my participation in a PREP program is a mandatory requirement for parole, is contrary to Department of Corrective Services (DCS) policy and is therefore misleading. This is especially true as the DCS has had ample opportunity over the last six years to make such a program available to me in my non-parole period. The suggestion that I now participate in a PREP program: - Ignores the memorandum to all Commanders and Governors issued by the A/Senior Assistant Commissioner, declaring; "It is not acceptable that an inmate's release date be delayed because s/he has not been able to participate in a program aimed at addressing criminogenic needs prior to her/his earliest possible release date". (see attachment 9) - Ignores the DCS Inmate Classification and Case Management Procedures Manual - criteria for sex offender programs policy that: "An inmate assessed as presenting a low risk of re-offending in a sexual manner will normally not be required to participate in a sex offender program…" (see attachment 10) 20. The suggestion that I now partake in a PREP program (in my parole period) further offends because the PREP program and its predecessors (S.O.P.E, E.S.O. and U.S.O) have been running for several years. It had never been suggested by any DCS psychology or programs staff that I should apply to do these programs (even though I applied twice, in 2004 and 2005, to commence any program deemed suitable). The first such suggestion came in my parole period. 21. S135A(e) of the Crimes (Administration of Sentences) Act 1999 involves the parole officer's requirement to consider, in his report, "the offender's willingness to participate in rehabilitation programs, …" 22. The PREP program is not a treatment (or rehabilitation) program. "It is an educational program and does not provide treatment." (see attachment 11e) 23. Therefore, the completion of the PREP program is irrelevant to legislative requirements. It is false and misleading to suggest that it provides treatment or rehabilitation. 24. The supplementary Pre Release Report (attachment 6 p3) and the Psychological Risk Report (attachment 5 p5) concur that I am suitable for reference to forensic psychology services for a community management plan. Neither report recommends a custodial based program such as the PREP program. Therefore, the SPA's interpretations of the report's recommendations are false. 25. Any concerns raised in the above two reports are put to rest by the clarifications contained in the comment on Psychological Risk Report prepared by Duffy, Barrier Robilliard Psychologists. (see attachment 8) 26. The SPA relied on some unknown information to require me to complete a custodial PREP program in order to be granted parole. That unknown information is false and misleading as the PREP program is an irrelevant requirement.

[6]

14 The application attempts to raise for the consideration of this Court the reasonableness of the Parole Authority's insistence that sex offenders like the applicant are to be granted parole only after they have taken part in programs designed for the rehabilitation of sex offenders, yet will not permit those applicants who will not admit their guilt to complete those programs. That is not the function of this Court: DCU v State Parole Authority of New South Wales [2006] NSWSC 526; and Lee v State Parole Authority of New South Wales [2006] NSWSC 1225. 15 As appears from the passages I have extracted from the application, the application is brought as though the Court were empowered to consider and determine the merits of the Parole Authority's decision to refuse parole. In addition, the applicant made lengthy and detailed oral submissions calculated, I think, to demonstrate that what was before the Parole Authority must have been false, misleading or irrelevant because the decision itself was wrong. My conclusion about this is borne out in part by these statements in the application itself, in para 16 that the reasoning (sic) identified is false and misleading, in para 18 that the contention (sic) identified is unfounded, in para 19 that the requirement of participation in a program is contrary to policy, in para 20 that the suggestion that the applicant partake in a program offends, in para 23 that the completion of a program is irrelevant to legislative requirements, in para 24 that the Parole Authority's interpretations (sic) of the recommendation of a report are false and in paras 27 - 29 that the view (sic) held by the Chairman of the Parole Authority was false. I reiterate that the power of the Court is limited to considering whether information the basis of the Parole Authority's decision was false, misleading or irrelevant. 16 I attempted during oral submissions to have the applicant identify each of the several pieces of information that he was contending the Parole Authority relied on in coming to its decision and to say whether it was false, misleading or irrelevant and why.

[7]

17 The applicant's first submission was that there was no evidence before the Parole Authority that he posed an unacceptable risk to the community, that he was required to complete PREP, and that his completing PREP would diminish the perceived risk of re-offending. 18 It was submitted that the conclusion was bad on its face and was founded on false, misleading and irrelevant information. 19 In my opinion there is no substance in those submissions. There was before the Parole Authority a report from an officer of the Probation and Parole Service, dated 5 March 2007, accompanied by and relying upon a report of a psychologist, Ms Vidler, dated 26 February 2007. The Probation and Parole Report contains this passage - Contact with a psychologist at Kirkconnell Correctional Centre and the Statewide Clinical Coordinator, Sex Offender Programmes confirm that (the applicant) is a suitable candidate for the Pre-Treatment Programme (PREP). At the inmate's request, his name has been placed on the waiting list for PREP and he will be offered a place as soon as one becomes available. PREP is run as an open group and accordingly it is difficult to predict when exactly a vacancy will arise. Regarding the availability of treatment in the community, contact with the Therapeutic Manager, Forensic Psychology Services (FPS) revealed that in light of (the applicant's) stance of innocence, FPS would not be in a position to offer him any treatment. The Parole Authority is referred to the attached Psychological Risk Report of Lyn Vidler, Psychologist, Kirkconnell Correctional Centre dated 26 February 2007 and in particular to Ms Vidler's assessment regarding the inmate's dynamic risk factors. Ms Vidler considers that (the applicant's) risk of re-offending may increase due to identified factors which include "lack of intimacy in the marital relationship; thoughts and feelings regarding his relationship with his children/daughters; and lack of positive social influences" (p4). It is noted that (the applicant) is relying heavily on the support of family members upon release. Previous discussions with family members revealed that, firstly, they do not accept (the applicant's) conviction and, secondly, they appear to lack insight into the dynamics of child sexual abuse. As such, they would not be considered "responsible" people to supervise his contact with children and coupled with his lack of positive social influences, his risk of re-offending is significantly increased. (The applicant's) comment to Ms Vidler that he does not see any reason to limit his contact with his grandchild is of further concern. In addition to the issues outlined above, (the applicant's) lack of remorse and empathy for the victim, which he displayed once again during a recent interview, makes a favourable recommendation by this Service impossible. (The applicant) maintained his stance regarding the offences, reiterating that he and not the victim had been wronged. Further, when asked what the victim's life may be like now, the inmate replied "It must be awful after what she has done to the family".

[8]

20 In Ms Vidler's report there appear these passages - Risk of Reoffending (The applicant's) risk of reoffending in a sexual and/or violent manner was assessed using an actuarial risk assessment instrument, the Static-99. The Static-99 is an instrument designed to assist in the prediction of sexual and violent recidivism for sexual offenders. … The recidivism estimates provided by the Static-99 are group estimates based upon reconvictions and were derived from groups of individuals with these characteristics. As such, these estimates do not directly correspond to the recidivism risk of an individual offender. The offender's risk may be higher or lower than the probabilities estimated in the Static-99 depending on the other risk factors not measured by this instrument. Individuals with (the applicant's) characteristics, on average, sexually reoffend at 5% over five years and at 11% over ten years. The rate for any violent recidivism (including sexual) for individuals with these characteristics is, on average, 6% over five years and 12% over ten years. Based on the Static-99 score, this places (the applicant) in the low risk category relative to other adult male sexual offenders. (The applicant) has not identified his dynamic risk factors (changeable risk factors which may be targeted in treatment), the continued presence of which may increase his risk of reoffending. However, dynamic risk factors were identified by Clinical Psychologist Peter Ashkar. Mr Ashkar, of Duffy Barrier and Robilliard Psychologists, compiled a psychological report on (the applicant) in December 2006. This report was included in the documents supplied by the State Parole Authority accompanying the request for the current report. In assessing (the applicant's) offence specific treatment needs, Mr Ashkar assessed his dynamic risk factors and identified "intimacy deficits within the primary relationship and thoughts and feelings about adult/child-father/daughter relationships…as current management needs" (page 12). Although Mr Ashkar noted that (the applicant) does not associate with persons who could exert a negative social influence he noted that (the applicant) "has no other people in his life whom he considers to be close friends outside of his family" (page 6). In the presence of intimacy deficits within the marriage and thoughts and feelings in regard to his relationships with his children, particularly daughters, a lack of positive social influences becomes an important dynamic risk factor.

[9]

Thus, (the applicant's) dynamic risk factors, requiring management on release, may be summarised as: · Lack of intimacy in the marital relationship · Thoughts and feelings regarding his relationship with childrenldaughters · Lack of positive social influences. 21 Mr Ware, the co-ordinator to whom I have referred, wrote a report on 13 June 2007. It contained this passage - In my review of (the applicant), I determined that he is a sexual offender assessed as a low risk of recidivism. When referred to Sex Offender Programs for treatment, it was determined that he required a greater intensity of treatment given his categorical denial and other relevant treatment needs. He subsequently commenced the CUBIT moderate/high intensity treatment program 5 July 2006 only to be discharged 17 July 2006 after his continued statements pertaining to his innocence and refusal to accept responsibility for the offending. (The applicant) requested to be placed on the waiting list for the PREP pre-treatment program at Kirkconnell CC 8 February 2007. The PREP program is designed to increase offender motivation and reduce resistance towards treatment. It has recently been implemented at two sites, and has an extensive waiting list at each site. Entry into the PREP program is prioritised based on Earliest Possible Release Date and Sentence Expiry Dates, as well as on risk of recidivism. Offenders assessed as high risk of recidivism are given priority over offenders assessed as low risk. (The applicant) was ultimately assessed as unsuitable to complete the program (L, Vidler, 9 May 2007). This judgment reflected (the applicant's) continued statements that he was intending to complete the PREP program only to satisfy the State Parole Authority, rather than prepare for, or even consider completing, treatment. It was clear that (the applicant) was not motivated to complete treatment and a decision was made to offer available places in the preparatory program to those offenders who were genuinely contemplating treatment. Of note, during the time that (the applicant) remained on the waiting list for the program, other offenders denying their offences were accepted into the program. However, they were assessed as having a greater risk of reoffending than (the applicant). This decision has been reviewed. (The applicant) is suitable to complete the PREP program. The goal of the program will be to motivate (the applicant) to consider treatment, either within custody or within the community. Given (the applicant's) categorical denial of responsibility for his offending, he will not be suitable for community group based treatment programs at Sex Offender Program's Forensic Psychology Services (FPS). It is my view, however, that he should be referred to FPS for an assessment of his risk and support as to his risk management. This may include limited one-to-one intervention, and may need to include family members. Notwithstanding (the applicant's) categorical denial, this intervention would focus on reducing the risk of any further "allegations" of sexual abuse. I have corresponded with psychologists Lyn Vidler and Craig Baird (13 June 2007) and a place within the PREP program at Kirkconnell CC is likely to become available for (the applicant) between 10-24 July 2007.

[10]

22 Plainly, there was before the Parole Authority information the effect of which was that the applicant presented a risk to the community. That risk was assessed as low. It is not within the function of this Court to examine whether the applicant's risk of re-offending, however low and however described, was or was not "unacceptable". Of course, if the material before the Parole Authority showed that there was no risk, the Parole Authority could not have properly have found it unacceptable so as to refuse parole for that reason, but that is not what happened. 23 The next submission was that the Parole Authority did not consider the applicant's low risk score on the scale of re-offending. It was submitted that the parole officer supplied the Parole Authority with false information. It was submitted that the conclusion that the applicant presented an unacceptable risk to the community was incompatible with his assessment as presenting a low risk of re-offending. This really repeated the first submission and I do not accept it. What is acceptable or not is matter for the Parole Authority, not for this Court, to decide. The submission that the officer had supplied false information relied on a Case Note Report which gave details of a conversation between the reporting officer and a psychologist on 4 August 2006. The Case Note Report says, in part - He is not a predatory type of offender who offends against unrelated victims. He created opportunities for himself to offend against (name deleted). He denies the offence so no assessment will provide any more information regarding his dynamic factors. I agreed with Victoria that on the face of it he is a low risk sex offender who is unlikely to offend as the circumstances are no longer there. Certainly he needs a condition that he is not left in the company of children under the age of 16. There's no programmes for him to do. I will e-mail Elzbieta and cancel request for psyc report. 24 As the applicant conceded, that Case Note Report, which came into evidence as exhibit D, was before the Parole Authority. It does not seem to me that what was put before the Prole Authority was false or misleading. It was perfectly plain to the Parole Authority that its officers and psychologists were reporting that the applicant's risk of re-offending was low. 25 Thereafter the applicant made a number of very long submissions. In their many and various ways they attacked the conclusion reached by the Parole Authority that parole ought not to be granted. Unfortunately, each of those submissions effectively invited the Court to re-hear the case. One example of this treatment was an attack made on a statement in a report to the Parole Authority about the circumstances in which the applicant had entered and had then been excluded from the PREP program. There is this attachment in a report of 25 October 2006 - (The applicant's) suitability for the CUBIT program was based on his partial acknowledgment of inappropriate aspects of his relationship with his daughter. It appears, however, that once in treatment he steadfastly denied any wrongdoing on his part. Subsequently, (the applicant) was discharged from the program and he continues to maintain his innocence in relation to the offences.

[11]

26 It was submitted that the Parole Authority had been misled because the applicant had never admitted offending. There are two answers to that submission. This first is that there was material before the Parole Authority that he had admitted offending. Ms Vidler's report of 26 February 2007 relayed a report by Dr Armstrong that the applicant had told him that he treated the victim as "a lover and a partner" and from the victim's solicitor, Ms Hauptmann, that the applicant had visited her office unannounced and, sobbing, had indicated that he knew his daughter had consulted her. He had admitted that he had sexually molested her, told her that he was sick and needed help. In addition to those matters the Parole Authority had before it his Honour's remarks on sentence, which referred to admissions and treated them, correctly, as his Honour's own findings of fact. The second thing that may be said is that even if the officers were wrong about admissions made by the applicant, that was quite unlikely to influence the Parole Authority. The difficulty the Parole Authority was then facing was that, whether or not he had made any admissions in the past, he was not making any in the present and that that fact alone was excluding him from the PREP program. That was a fundamental fact leading to the Parole Authority's decision to refuse parole. 27 A further submission seized on remarks made by the Chairman of the Parole Authority to the effect that he wished S to do the PREP program so that he had, even at an intellectual level, a framework of what was going to be required of him by the Probation and Parole Service. The context was, of course, if parole were granted. It was submitted that the Chairman's remarks were misguided. Any requirement to complete PREP was founded on false, misleading and irrelevant information. It was not a logical requirement, it was contrary the Department's policy and was, it was submitted, contrary to the specific purpose of the program. 28 It seems inappropriate to enquire into these matters. The submission amounts to a further invitation for this Court to put itself in the place of the Parole Authority and re-hear the matter. That the Court may not do. 29 The applicant went to a great deal of trouble to prepare his application. He tendered a massive amount of written evidence and addressed the Court for a long time. It is impossible in this judgment to refer to every criticism he levelled at the Parole Authority. I have tried to extract and summarise the principal ones. I have read all the material he relies on and have carefully read a transcript of the oral submissions that he made. Almost every submission he made, written and oral, amounted to an invitation to this Court to re-hear the application. In my opinion the applicant has not identified any information that was put before the parole Authority that was false, misleading or irrelevant. 30 The application is dismissed.

Parties

Applicant/Plaintiff:

Respondent/Defendant:

New South Wales Parole Authority

Cases Cited (7)

CITATION : S v New South Wales Parole Authority [2007] NSWSC 1287 This decision has been amended. Please see the end of the judgment for a list of the amendments.

McPherson v Offenders Review Board (1991) 23 NSWLR 61 R v Naudi [2003] NSWCCA 16 CASES CITED : McCallum v Parole Board [2003] NSWCCA 294 LMS v Parole Board (1999) 110 A Crim R 172 DCU v State Parole Authority of New South Wales [2006] NSWSC 526 Lee v State Parole Authority of New South Wales [2006] NSWSC 1225

135A Preparation of reports by Probation and Parole Service A report prepared by or on behalf of the Probation and Parole Service for the purposes of section 135 must address the following matters: (a) the likelihood of the offender being able to adapt to normal lawful community life, (b) the risk of the offender re-offending while on release on parole, and the measures to be taken to reduce that risk, (c) the measures to be taken to assist the offender while on release on parole, as set out in a post-release plan prepared by the Probation and Parole Service in relation to the offender, (d) the offender's attitude to the offence to which his or her sentence relates, (e) the offender's willingness to participate in rehabilitation programs, and the success or otherwise of his or her participation in such programs, (f) the offender's attitude to any victim of the offence to which his or her sentence relates, and to the family of any such victim, (g) any offences committed by the offender while in custody, including in particular any correctional centre offences and any offence involving an escape or attempted escape, (h) the likelihood of the offender complying with any conditions to which his or her parole may be made subject, (i) in the case of an offender in respect of whom the Drug Court has declined to make a compulsory drug treatment order on the ground referred to in section 18D (1) (b) (vi) of the Drug Court Act 1998, the contents of any notice under section 18D (2) (b) of that Act. 8 S155 of the Crimes (Administration of Sentences) Act 1999 is 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. 9 An application under this section is not an appeal against the decision of the Parole Authority to refuse parole and does not operate as a form of judicial review: McPherson v Offenders Review Board (1991) 23 NSWLR 61; R v Naudi [2003] NSWCCA 160. The Court does not concern itself with the merits of a decision or with the weight to be placed on the factors the Parole Authority has to consider in arriving at that decision: McCallum v Parole Board [2003] NSWCCA 294. The only power the Court has is to direct the Parole Authority whether information on which its decision was made was false, misleading or irrelevant and, if so, to give such further directions as it considers appropriate: LMS v Parole Board (1999) 110 A Crim R 172; DCU v State Parole Authority of New South Wales [2006] NSWSC 526.

(1991) 23 NSWLR 61

[2003] NSWCCA 294

[2006] NSWSC 526

[2006] NSWSC 1225

Cited By (1)

Cumberworth v Parole Authority of NSW