Terry Sampson v NSW State Parole Authority

Judgment 1HIS HONOUR: The applicant, Terry Sampson, is serving a sentence for serious offences of violence. His non-parole period has expired but on 19 July 2011 he was refused release to parole by the State Parole Authority. He has applied to this court under s 155 of the Crimes (Administration of Sentences) Act 1999 for a direction that the Authority's determination was made on the basis of false, misleading or irrelevant information. The Authority has filed a submitting appearance but the Attorney General has been joined and has been represented before me by Ms Johnson, a solicitor advocate with the State Crown Solicitor's office. 2Parole was refused because of what was seen to be the need for the applicant to complete what is known as the Violent Offenders Treatment Program and otherwise to address issues of anger and violence. It was on that basis, and that basis only, that parole was refused. 3In its decision the Authority noted that the violence used by the applicant in the commission of the subject offences was extreme. It addressed the question whether appropriate treatment might be available in the community by reference to a letter under the hand of Danielle Matsuo, the acting director of the Sex and Violence Offender Therapeutic Programs. Ms Matsuo wrote: "It is the view of Corrective Services NSW that there is presently no treatment program offered in the community of the required intensity for a high risk/needs violent offender. Individual risk management sessions may assist an untreated offender, that is focusing on warning signs for offending and development of a self-management plan, but these would not address the underlying causal factors for offending." 4The Authority noted that it needed to heed that cautionary advice, as it described it, observing that it could only make an order for parole if it were in the public interest. 5The application is based on a number of grounds, the most significant being that the conclusion that the applicant should complete the Violent Offenders Treatment Program was based on false or misleading information. He has been assessed in the past by reference to the Revised Level of Service Inventory, to which I will refer as LSI-R, as at medium risk of re-offending. He was unrepresented before me and he developed his argument in relation to this matter carefully, obviously having conducted a great deal of research. I trust I do his argument no disservice by dealing with it briefly. 6He referred to Corrective Services material, in particular communications between psychologists, in which the view was expressed that his risk of re-offending was higher than the medium assessment under the LSI-R scale. He took me to departmental guidelines in this area under the heading Draft Interim New South Wales Policy Overrides, the effect of which is to discourage a reassessment of the risk of re-offending according to that scale by reference to the individual concerned and which emphasises the value of the objective scale as a guide to that risk. 7He put that his level of risk was such that the Violent Offenders Treatment Program is not suitable for him, and that his requirement to undergo that program would itself be contrary to departmental policy. I should record that one matter he raised in that regard was a document of August 2011, which noted that the suitability for violent offenders for treatment under that program had previously been poorly communicated and documented and which asserted that the Violent Offenders Treatment Program was suitable for medium-high to high risk/needs of violent offenders. That document, of course, postdates the Authority's decision and that material obviously was not before it. 8The difficulty the applicant faces in these proceedings, however, is that the Authority did not address that issue at all. It is true that Ms Matsuo in the passage from her letter to which I have referred spoke of high risk/needs violent offenders. From the context, however, it is apparent that was not a reference to the LSI-R scale. The expression "high risk" was being used more loosely simply to convey that the applicant presented a level of risk which rendered him unsuitable for treatment within the community. 9What the Authority did have before it was a letter of 7 July 2011 under the hand of Ms Filipa Abreu, the acting team leader of the Violent Offenders Therapeutic Program. That letter said, among other things: "Mr Samson's risk of recidivism as measured by the LSI-R is medium which falls within the medium or medium/high to high range required for eligibility." 10The letter went on to say that Mr Sampson was currently on a waiting list for that program. In the circumstances, then, it cannot be said that the Authority's decision that the program should be completed before the applicant was released to parole was based on any false or misleading information. And the information which the Authority had was clearly relevant because that, as I have said, was the central issue dictating the Authority's determination. 11The remedy under s 155 is limited and unusual. It is not an appellate process, nor is it any form of administrative review of the Authority's decision. The authorities under the section were helpfully collected by Garling J in Sutton v New South Wales State Parole Authority [2011] NSWSC 935 at [9]. At sub-par (c) of that paragraph his Honour referred to authority for this proposition: "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." 12In the light of that line of authority, I am far from persuaded that the Parole Authority's insistence upon completion of the Violent Offenders Therapeutic Program was based on any false or misleading information. 13The applicant also complained that the Authority had wrongly concluded that he had not addressed his offending and violent behaviour and anger issues. I received into evidence as exhibit A a number of certificates. These demonstrate completion of a number of courses mainly directed to human interaction and control of violent behaviour, some of them under the broad heading of "Personal Effectiveness Program." 14The applicant gave evidence about those very matters before the Parole Authority. As I have said, the Authority referred to his need to complete the Violent Offenders Therapeutic Program and otherwise address his anger and violence. It went on to observe, however, that it would be a matter for Probation and Parole to see if alternative programs dealing with these issues could be put in place. But importantly, yet again it cannot be said that in so far as the Authority touched on that matter it had before it any false or misleading information. It had before it the very information upon which the applicant relied in this court. 15He raised three other matters, although he acknowledged that they are not as significant as the matters I have dealt with. In the material which the Authority had before it there were assertions that his previous offences - that is, the offences in his criminal history - consisted of violent and aggressive offences, that he had been expelled from school for violence, and that he was raised in a family participating in domestic violence. I have to say, having examined his criminal history, that to characterise it as consisting of violent and aggressive offences is a debatable proposition and the applicant mounted a reasonable argument that that is not a fair characterisation of it. That is not a matter I am called upon to decide, but certainly that question is fairly debatable. 16As to the assertions that he had been expelled from school for violence and had been raised in an environment of domestic violence, I was not taken in these proceedings to the source of those assertions but the applicant did call evidence from his mother. The effect of his mother's evidence is that neither of those assertions is true. That evidence is unchallenged. I found his mother an impressive witness and I have no reason not to accept what she said. 17So, in the end, the applicant mounted a sound argument that those assertions are at best questionable. However, none of them played any part in the Authority's decision. The mere fact they were in material before the Authority is not to the point. As Garling J observed in the passage which I have quoted, not only is it necessary to show there was false, misleading or irrelevant information before the Authority, it must also be shown that that information was a basis for its decision. It does not appear to me that any of those matters formed any basis of the Authority's decision. 18Accordingly, I am not persuaded that that decision was the product of any false, misleading or irrelevant information and the application under s 155 of the Crimes (Administration of Sentences) Act must be dismissed.