Sutton v NSW State Parole Authority

Judgment 1William Lewis Sutton applies to the Court for a direction to the NSW State Parole Authority that the information on which the Authority based its decision to refuse his release on parole was false, misleading, or irrelevant. 2The application is permitted by the provisions of s 155 of the Crimes (Administration of Sentences) Act 1999. 3The Authority has filed a submitting appearance. The Attorney General for the State of New South Wales was granted leave to intervene and has been the contradictor on the application. 4For the reasons set out below I have decided that the application should be dismissed. Nature of application 5The application is brought solely pursuant to the provisions of s 155 of the Crimes (Administration of Sentences) Act . It is not an application for prerogative relief. 6It is necessary to understand the restrictive nature of an application of this kind. It is appropriate to commence with the legislation. 7Section 155 is in the following form: " 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 the rules of the court, apply to the Supreme Court for a direction to be given to the Parole Authority as to whether the information is 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. (4) This section does not give the Supreme Court jurisdiction to consider the merits of the Parole Authority's decision otherwise than on the grounds referred to in subsection (1)." 8The operative terms of this section are in substantially identical form to the terms of s 23 of the Sentencing Act 1989, which has now been repealed. However, there are a number of authorities dealing with those earlier provisions that are apt to apply to the section under consideration. 9The authorities establish these propositions: (a)An application for a direction from this Court to the Authority, is not an appeal, or any form of an appeal against the decision of the Authority: McPherson v Offenders Review Board (1991) 23 NSWLR 61 at [69C] per Hunt J (Meagher JA, Studdert J agreeing); (b)An application for a direction from this Court to the Authority is not concerned with whether the Authority acted in accordance with the statute, because it is not a proceeding in the nature of an administrative proceeding seeking prerogative relief: LMS v Parole Board (1999) 110 A Crim R 172 at [8] per Stein JA, Hulme and James JJ; (c)The role of this court in considering an application of this kind is extremely limited. It can only consider whether information given to the Authority was false, misleading or irrelevant. And then only if that information is a basis for the decision which was made: R v Naudi [2003] NSWCCA 160 at [19] per Simpson J (Hodgson JA and James J agreeing); Lee v State Parole Authority of New South Wales [2006] NSWSC 1225 per Johnson J; (d)On the hearing of an application, this Court is not concerned with any questions as to the merits of the decision of the Authority, or with what weight it placed on various factors: Radford v Parole Board [2002] NSWCCA 70 at [36], McCallum v Parole Board of NSW [2003] NSWCCA 294 at [33], DCU v State Parole Authority of New South Wales [2006] NSWSC 526 at [5]-[7] per Johnson J; (e)At the hearing of an application, this Court is not concerned with the thought processes of the Authority, or its findings based on the information before it: McCafferty v Offenders Review Board (Court of Criminal Appeal, 19 June 1995, unreported) per James J (Gleeson CJ and Ireland J agreeing); (f)The term "information" in s 155 is not used in any broad sense. It is used in the sense of factual information, namely information going to the characteristics of the offence and the offender and all factual matters relevant to whether or not it may be appropriate to order a release on parole: Attorney General for New South Wales v New South Wales State Parole Authority [2006] NSWSC 865 at [73] per McClellan CJ at CL, Lee at [14]; (g)In hearing an application, the Court needs to be satisfied that the information was false or misleading in substance. This will usually require evidence in addition to that which was before the Authority to discharge the onus on the applicant: Rozynski v Parole Board of New South Wales [2003] NSWCCA 214 at [13] per Greg James J (Hodgson JA and Simpson J agreeing) 10I will bear these principles in mind in considering this application. Decisions of NSW State Parole Authority 11The first decision by the NSW State Parole Authority was made on 12 November 2010. 12On that day it made a decision not to release the applicant on parole. 13It gave its reasons as follows: "REASON/S: Unlikely to adapt to normal community life [unwillingness to comply with conditions of parole, lengthy violent history, lengthy criminal history, previous offence similar to current index offence, prior revocations of parole and poor response on previous community supervision], risk of re-offending [reoffended and received a custodial sentence on last parole order and limited participation in relevant programs], needs to address offending behaviour (Therapeutic) [needs to participate in therapeutic program to address violence eg VOTP etc and needs to participate in therapeutic programs that address alcohol and other drugs problems eg Ngara Nura, Phoenix] and need for post release accommodation [no suitable post release accommodation]." 14On 22 November 2010 the applicant applied to the Authority to reconsider its decision to refuse his release on parole. In that application, the applicant included the following statement: "I do not agree with the information that has been given to the Parole Authority ...: Information used & conclusions made are incorrect.