Whalan v Parole Board of NSW

LMS v Parole Board [1999] NSWCCA 371 CASES CITED: McPherson v Offenders Review Board (1991) 23 NSWLR 61 R v Naudi [2003] NSWCCA 160

Shane Michael Whalan - Applicant PARTIES: Parole Board of NSW - Respondent

Applicant self represented SOLICITORS: B Baker - Respondent

IN THE COURT OF CRIMINAL APPEAL 2005/1373

GROVE J JAMES J SIMPSON J

Thursday 15 December 2005 Shane Michael Whalan v Parole Board of NSW Judgment 1 SIMPSON J: This is an application under s155 of the Crimes (Administration of Sentences) Act 1999. That section is in the following terms: " 155 Application to Supreme Court by Offender

(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 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." 2 On 30 June 2005 the Parole Board considered and refused an application for parole by the applicant. The applicant now alleges that the decision was made on the basis of false, misleading or irrelevant information, and asks that a direction to that effect be given by this Court to the Parole Board. 3 Pursuant to sub-s(3) of s155 this Court may not embark upon consideration of the application unless it is first satisfied that the application is not an abuse of process and that there appears to be sufficient evidence to support it. 4 Applications to this Court under s155 are becoming more frequent. This Court has more than once commented upon apparent inefficacy of the powers conferred on it by s155: McPherson v Offenders Review Board (1991) 23 NSWLR 61; LMS v Parole Board [1999] NSWCCA 371, R v Naudi [2003] NSWCCA 160. 5 The difficulties in the legislation have been expressly drawn to the attention of those in Attorney General's Department responsible for law reform as appropriate for legislative amendment. Reform is urgent. There is a tendency quite unfairly to mislead offenders to believe that this Court is able to provide a remedy. 6 Typically, as in the present case, the applicant is not legally represented, and is forced to do his or her best to present a case without legal experience or training. Given that the section itself is "obscure", to quote Hunt J (as he then was) in McPherson, this creates even more difficulties than are usual in the case of unrepresented litigants. 7 The court has gratefully received the assistance of the Crown Solicitor, in particular in setting out the background circumstances, and in providing extensive documentation relevant to the application. 8 On 11 February 2004, in the District Court, the applicant was sentenced in respect of one count of steal from the person and one count of robbery. On each charge he was sentenced to a minimum term of imprisonment for two years, commencing on 11 June 2003 and expiring on 10 June 2005, with an additional term of two years, expiring on 10 June 2007. At the expiration of the non-parole period the applicant applied for parole. On 30 June 2005 the Board conducted a hearing into the application. The applicant was present and was represented. He gave evidence. 9 Reports were provided by an officer of the Probation and Parole Service which did not support his application. On 30 June 2005 the Parole Board determined that parole should be refused. The Board gave the following reasons: "The Board has sufficient reason to believe that if released from custody at this time the offender would not be able to adapt to normal community life; risk of re-offending; past failures on parole; need to address offending behaviour (AOD); need for structured post-release plans." 10 At the conclusion of the hearing the chairperson of the Board said to the applicant: "Mr Whalan, the Board has considered all that has been put on your behalf and all that you said, the Board is of the view that parole ought to be refused for the reasons that were stated on 13 May 2005 and for the additional reason not at that time expressed, that there is a need for a structured post-release plan." 11 The Board stood the application over for further consideration until 24 February 2006. Initially the applicant provided to this court a very lengthy and discursive handwritten document setting out the reasons for which he contends that this court ought to give a direction of the kind envisaged by s 155. Not surprisingly, the material provided reflects his lack of legal training. It is largely irrelevant to the issues which arise in respect of an application under s155. 12 It seems to me that the applicant sought to challenge the factual accuracy of certain material that was contained in the reports put before the Board. For example in the report dated 14 June 2005 the Probation and Parole officer said: "Interviews with correctional officers and supporting reports indicated that there have been numerous allegations that Mr Whalan, amongst a few others, is involved in 'standing over' and bullying of other inmates." 13 A good deal of the applicant's written material went to denying that he was involved in standing over or bullying. In effect the applicant asserts that the decision of the Board refusing him parole was based on information which was false. 14 That is not what happened. The Probation and Parole officer was careful to report that the allegations were just that, allegations. She also included in the report the fact that no correctional charges had been laid. There is no reference in the Board's reasons to those allegations. 15 In Naudi I held that it was insufficient that false information be put before the Board; it is also necessary to bring an application within s155 that false information form a part of the Board's decision. 16 Two problems confront the applicant. Firstly in order for this court to give a direction under s155 this court has to find as a fact that relevant information is false, misleading or irrelevant. Here the issue is whether the information was false. At the hearing of the application further documentation was provided to the court, much of it being of the kind that had been placed before the Board. Of particular significance in this material is a document that was marked Ex A which is a letter over the hand of Rhonda Danylenko, alcohol and other drug worker, of the MRRC Silverwater. 17 That is identified as a brief statement to the court, providing the following information regarding the applicant. The first item listed is a certificate of achievement for alcohol and other drug awareness issued on 20 February 2005. This information sits uneasily with that part of the Board's reasons for refusing parole which are "need to address offending behaviour (AOD)". 18 In my opinion the only way that passage can be read is as a finding by the Board that the applicant has failed to address his offending behaviour and the particular of that failure to address offending behaviour is his asserted failure to undertake alcohol and other drug courses. 19 The document Ex A in my opinion demonstrates, to my satisfaction at least, a factually incorrect finding. Indeed evidence to the effect was before the Board. The applicant gave evidence, he was asked by his own counsel about the documentation he had with him, which included the certificate as to AOD awareness, dated 20 February 2005. 20 Unfortunately for the applicant, the other material before the court essentially defeats his present application. That is because of the peculiarities of s155. 21 The legal representative of the Board pointed out to us the section permits this court to give a direction that the decision of the Parole Board was made on the basis of false, misleading or irrelevant information. What the section does not do is to empower this court to give a direction even where, as it seems to me is the case here, the Board has misunderstood or disregarded information that was before it. 22 For that reason it seems to me that although the applicant has a legitimate complaint about that part of the reasoning of the Board it is not a complaint which this court is empowered to provide a remedy. 23 In respect of the other matters raised by the applicant, particularly concerning his identification as a stand over man, he faced a different problem. As I have indicated, in order for the court to make a direction it has to find as a fact that the information before the Board was false, misleading or irrelevant. This court is not in a position to make such an assessment as to those assertions that the applicant did engage in stand over behaviour. 24 However the information that was before the court was only that such allegations have been made and the officer was at pains to point out that because no charges had been laid, no determination of the factual accuracy of the allegations had ever been made. 25 The applicant does not deny that the allegations have been made. He denies the content of the allegations. There is therefore no basis on which this court could determine that information was false, even if the report was read as conveying a factual assertion that the applicant had been involved in stand over behaviour. It is not possible for the court merely on the denial of the applicant to resolve that factual issue. 26 Finally it is not apparent that the Board relied upon the existence of the allegations and certainly did not rely upon any factual finding that the applicant was so involved. 27 Accordingly this court cannot conclude that the decision was based upon that "false information". 28 The final matter raised by the applicant concerned his investigation of a rehabilitation programme available to him on his release from gaol. There is nothing in the reasons given by the Board that would establish that the decision was based on false information in that respect. For those reasons, by reason of sub-s 3, and because of the extremely limited powers that this court has, I am of the view that the application should be dismissed. 29 I think it is proper to find that there is insufficient evidence to support the application but even if there were sufficient information it would not be open to this court in these circumstances to give a direction of the kind sought. I propose that the application be dismissed. 30 GROVE J: I agree. 31 JAMES J: I also agree. 32 GROVE J: The formal order of the court, Mr Whalan, is that your application may be dismissed but before we conclude the matter there are a couple of things that we wish to say to you. We are acutely conscious that when you appeared before the judge in a District Court on 11 February his Honour said to you at that time that the sentence that he imposed meant that you have about four months to go. That was wrong. 33 You now know that it is a question that the Parole Board considers and not a matter of automatically getting parole when the non-parole period has expired. We are sympathetic with you insofar as you were misled. 34 As Simpson J has pointed out, we have no power to grant you any remedy even if we happened to be of the view that in some way you have been dealt with unfairly. 35 That is what I was trying to explain to you earlier when I said we had no merit jurisdiction. 36 I would like to also observe myself that the very limited jurisdictional power that we have is made more difficult to exercise because the reasons of the Board are so brief in expression and sometimes cryptic in their terms. 37 SIMPSON J: Ms Baker, may I suggest that you convey the views expressed to the legislative section of the Premier's Department.

(Ms Baker undertook to convey the views of the Bench.)

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