In the written submissions in support of his application, the applicant raises a number of complaints about the Authority's decision:
1. that the Authority made an error of law in relying upon manifest injustice provisions which have no application to revocations of parole;
2. the Authority had regard to incorrect information as to the date on which the EQUIPS programme started;
3. the Authority had regard to false information as to the availability of a custody-based EQUIPS programme to protection prisoners;
4. that the applicant moved to unauthorised accommodation due to circumstances beyond his control and, implicitly, that the Authority should have had regard to that information;
5. that the applicant had legitimate reasons for his non- attendance at the February 2017 EQUIPS programme and, implicitly, that the Authority should have had regard to that information;
6. that the applicant has completed the violent offenders therapeutic programme in the past and is willing to undertake further courses and, implicitly, the Authority should have had regard to that information;
7. that the applicant would be more successfully treated for bipolar disorder and other mental illnesses in the community and, implicitly, the Authority should have given weight to that feature; and
8. in not providing the applicant with a copy of its order of 4 April 2017, prior to the May 2017 hearing, the Authority denied the applicant procedural fairness.
As can be readily seen from that recitation of the applicant's case, most issues raised are matters which fall outside the scope of the present application. The evidence relied upon by the applicant, including his affidavit of 13 July 2017 and his account to the Court today, largely goes to the merits of the Authority's decision and not to the question of whether that decision was based on false, misleading or irrelevant information. It is not open to the Court to consider purported errors of law, questions of whether requirements of procedural fairness were met, or matters which go to the Authority's decision.
The complaints which I have numbered 1, 4, 5, 6, 7 and 8 all fall within those categories and are not material to the determination of an application pursuant to s 176. That is because they do not raise a question of whether the Authority's decision was based upon false, misleading or irrelevant information.
The only complaints raised which could potentially be material to that question are those which I have numbered 2 and 3, being the contention that the Authority had regard to incorrect or false information as to the commencement date of the EQUIPS programme and that it had regard to false information as to the availability of the EQUIPS programme, to protection prisoners at Long Bay prison. These were the matters that Mr Livers, solicitor for the applicant, concentrated on in oral submissions today, and Mr Wainwright also spoke to those matters in his submissions to the Court.
These issues must be firstly considered in relation to the threshold test provided by s 176(3), bearing in mind the basis upon which the Authority made its decision to refuse to rescind the decision of 4 April 2017, that being that the applicant had not completed what was referred to as the "domestic abuse programme."
[2]
The Commencement of the EQUIPS Course
The applicant contends that the course was to commence on 9 February 2017 and not on 7 February 2017, as stated in the evidence before the Authority. The evidence advanced in support of that contention is limited to an assertion contained in a letter written by the applicant to the Authority on 15 June 2017 in which he states the following:
"I do recall I had not received a voicemail from Kerry Lawson, Parole Officer, Hurstville, New South Wales, prior or on 7 February 2017. I only had a conversation with Kerry Lawson and I was instructed to start the course on 9 February."
Mr Wainwright made similar assertions in Court today. There is, however, no evidence, independent of the applicant's assertion, to support that claim and a quantity of evidence that tends to disprove it, including the March 2017 breach report. That the relevant date was 7 February 2017 is further supported by a concession made by the applicant this morning, and by the evidence and submissions placed before the Authority by the applicant at the hearing of 19 May 2017. That includes evidence of his attendance at a medical centre on 7 February 2017 specifically to obtain a medical certificate for that day (with no certificate issued as the centre was about to close). There could have been no basis to seek the issue of a certificate for 7 February 2017 if the applicant had been told the course commenced two days later.
In relation to this complaint, whilst I do not conclude it is an abuse of process, there is insufficient evidence to support the assertion that the Authority relied upon false or misleading information as to the commencement date of the EQUIPS programme. Even if there were sufficient evidence, there is no basis upon which to conclude that the issue of the missed course on 7 February 2017 and the basis of the applicant's non-attendance formed the basis of the Authority decision of 19 May 2017. The Authority referred to the information, but the basis of the decision was the failure to undertake the course and not the reasons for that failure.
[3]
The Unavailability of the EQUIPS Programme
The applicant contends that the Authority was not made aware that no EQUIPS programme was available to protection prisoners at Long Bay Gaol, thus making its decision on the basis of misleading information. In Court this morning it was further asserted that the course was not available anywhere in the State to protection prisoners.
Even if the availability of the course at Long Bay Gaol or elsewhere was the basis upon which the Authority made its decision, something which is doubtful in my view, there is no evidence before the Court to establish that the Authority relied upon false or misleading information about that feature of the matter.
From the transcript of the proceedings before the Authority on 19 May 2017, it seems clear that the Authority proceeded on the basis that the EQUIPS programme would not be available at Long Bay Gaol, at least in the short term. At page 7 of the transcript, the presiding judge referred to the course as being available at Cessnock or the South Coast and not at Long Bay. The applicant himself seems to have understood that that was what the Authority had been told since at the completion of the hearing he said:
"Thank you, your Honour, I'm willing to do the next available course at South Coast." (T8)
Even were there sufficient evidence to establish that the course was not available to protection prisoners, either at Long Bay or elsewhere in the State (including Goulburn, Cessnock and Nowra prisons) and thus that an assertion by the Community Corrections Officer to the contrary was false or misleading, I do not understand the Authority to have based its decision on this information. Rather, as previously noted, the decision was based upon the applicant's failure to undertake a course in the community as directed. Considerations of the availability of a course in custody did not form the basis of that decision.
Accordingly, whilst I do not conclude that this complaint represents an abuse of process, there is insufficient evidence to support this aspect of the application.
The Court is not permitted under the Act to consider the application unless the s 176(3) threshold test is met. Although I do not conclude that the application constitutes an abuse of process, I am not able to find that the test of sufficiency of evidence is met. On the contrary, I am satisfied that it is not. Accordingly, the application must be dismissed.
[4]
orders
1. Leave granted to bring proceedings pursuant to s 4 of the Felons (Civil Proceedings) Act 1981 (NSW).
2. Application dismissed.
[5]
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.
Decision last updated: 02 August 2017
This application is brought pursuant to s 176 of the Crimes (Administration of Sentences) Act. That section allows for the Supreme Court to give directions with respect to information that may have been false, misleading or irrelevant. The powers of the Court in determining an application such as this are very narrowly confined. The only question for the Court is whether the parole order was revoked on the basis of false, misleading or irrelevant information. There is a further limit to the Court's powers contained in s 176(3) of the Act which imposes a threshold test requiring the Court to be satisfied that the application is not an abuse of process and there appears to be sufficient evidence to support it: Blanch v NSW State Parole Authority [2014] NSWSC 835.
Assuming the threshold test is met, the Court's role is limited to examining the information provided to the Parole Authority as to whether it was false, misleading or irrelevant: Townsend v Parole Board [2001] NSWCCA 379 at [15].
The Court is not hearing an appeal and is not concerned with the merits or otherwise of the Authority's decision, or with the findings of the Authority and consideration of how those findings have been made. This is not an application for a remedy in the nature of prerogative relief. The Court has no power to order the Authority to review its decision, or to meet to consider further release to parole, or to substitute a different decision from that made. It is a matter for the applicant to establish that the Authority's decision of 19 May 2017 was based, at least partly, on information that was in substance false, misleading or irrelevant.
Although represented, the applicant has addressed the Court at some length this morning and he is a persuasive advocate for his claim to parole. However, that is not something this Court can consider.