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[2006] NSWSC 1214
Supreme Court of NSW
2006-11-06
Johnson J
Original judgment source is linked above.
Background to Application 2 The background to the Applicant's present custodial position may be summarised as follows. On 11 February 2005, the Applicant was sentenced at the Campbelltown District Court by BR Maguire QC DCJ with respect to one count of stealing from the person and one count of robbery. A further two counts of break, enter and steal, one count of stealing from the person, one of robbery and one of assault with intent to rob were taken into account on a Form 1. The Applicant was sentenced to a total term of imprisonment of four years commencing on 11 June 2003 with a non-parole period of two years expiring on 10 June 2005, with the balance of term of two years to expire on 10 June 2007. 3 On 30 June 2005, the Authority determined that the Applicant should not be released on parole and stood the matter over to 24 February 2006. On 15 December 2005, the Court of Criminal Appeal dismissed an application by the Applicant under s.155 CAS Act relating to that refusal of parole: Whalan v Parole Board of NSW [2005] NSWCCA 445. 4 On 21 April 2006, the Authority determined once again that the Applicant would not be released to parole, and stood over the question of the Applicant's release on parole for further consideration on 19 January 2007. The Authority directed that reports be provided to it no later than 3 January 2007 for that purpose.
Nature of Application Under s.155 CAS Act 5 The present application is brought under s.155 CAS Act. The Court of Criminal Appeal, and judges of this Court, have said on more than one occasion that the function ascribed to a Court under that provision (and its predecessor provision) is a very narrow one. In DCU v State Parole Authority [2006] NSWSC 526, I summarised the principles emerging from earlier cases concerning the narrowness of the statutory function to be exercised by the Court under that section. 6 Section 155 does not operate as a form of judicial review of a decision of the Authority. It does not provide a form of appeal from a decision refusing parole. Section 155 does not permit the Court to set aside the Authority's decision, and to either substitute its own decision or to return the matter to the Authority to hear the matter again: McPherson v Offenders Review Board (1991) 23 NSWLR 61 at 69C. It provides for no more than a direction to the Authority that the information upon which it acted is of a particular character, namely, that the information was false, misleading or irrelevant information. 7 This narrow statutory review function must be understood against the background of the functions of the Authority itself. In DCU, at paragraphs 12 and following, I made some general observations about the functions of the Authority. The Authority is not a court. It does not impose sentences. It exercises a function of determining whether, in effect, an offender who has been sentenced to imprisonment of more than three years (and where a non-parole period has been fixed), ought be released before the end of the complete sentence of imprisonment. The grant of parole by a paroling authority is a privilege and not a right: McCallum v Parole Board [2003] NSWCCA 294 (paragraph 28). 8 The Authority acts under s.135 and, indirectly, s.135A CAS Act. Section 135(1) provides: "The Parole Authority must not make a parole order for an offender unless it is satisfied, on the balance of probabilities, that the release of the offender is appropriate in the public interest." 9 A number of factors are referred to in the list of matters in s.135(2), with further light being shed upon relevant factors in s.135A CAS Act. Accordingly, the present application relates to a decision by a statutory authority exercising particular functions under the CAS Act with respect to this Applicant.
The Authority's Decision Concerning the Applicant 10 The Authority's reasons for its determination of 21 April 2006 not to release the Applicant on parole were as follows:
(a) the offender would not be able to adapt to normal community life;
(c) need to further address offending behaviour in relation to alcohol, drugs and violence;
(e) need for a structured post-release plan. 11 A number of reports were placed before the Authority, and evidence was given by the Applicant, and by a Probation and Parole officer, at the hearing on 21 April 2006. The Applicant was legally represented on that occasion. He has appeared today unrepresented on the present application. 12 It is apparent that the Applicant has had a chequered history with respect to earlier releases on parole. The Chairperson of the Authority made a number of observations during the hearing, which pointed to past difficulties where the Applicant was re-arrested within a period of days of release. 13 It is apparent that the Applicant has a long-standing problem with drugs. He is on the methadone programme at present. 14 I recite these matters by way of general background, but not by way of fact-finding. As I have said, the function that the Court is exercising is a narrow one.
The Applicant's Contentions 15 The areas of complaint raised by the Applicant in the written materials provided in support of the application, and in his oral submissions made today, focus upon two areas of information which were before the Authority. Firstly, it is submitted that there was false and irrelevant information taken into account by the Authority regarding the assessment of the Applicant as a violent person. Secondly, it is submitted that misleading information was taken into account by the Authority concerning the impact of Drug and Alcohol courses which the Applicant has completed in gaol. 16 There is a third area about which complaint is made, relating to a history of alleged dirty urine tests supplied by the Applicant whilst in custody. 17 There was material before the Authority which pointed to concerns with respect to violence. The Applicant asserts that false information was given to the Authority by Probation and Parole Officer, Ms Maloney, stating that he was a violent person. He points to material which appears to have been the source of some of the comments with respect to violence in the Authority file, being statements of custodial officers alleging that certain incidents had occurred. 18 It is apparent from the material before the Authority, and from the submissions made by the Applicant today, that he disputes significantly a number of the matters raised against him with respect to this question of violence. It must be noted, however, that Ms Maloney, in her evidence on 21 April 2006, does not express a view herself that the Applicant is violent. She points to the history of complaints in this respect. The Applicant's own account was noted, so that the Authority was aware that these matters were controversial. 19 Ms Maloney pointed, as well, to the Applicant's acceptance of a behavioural contract, entered into on 31 January 2006 with respect to violent conduct. The Applicant has contended, both before the Authority and here today, that the fact that he entered into this undertaking is not a form of admission that he has engaged in violent behaviour within the prison setting. Nevertheless, it is relevant material, in my view, in relation to the overall question.
Decision 20 It is not the task of this Court, on a limited review such as this, to attempt a fact-finding function. This Court is not in a position to, nor is it required as a matter of law on an application of this type, to hear evidence from custodial officers, prisoners or others to determine what happened. The task is to apply the s.155 test to the material which was before the Authority. I am not satisfied that the material (relating to the issue of violence) discloses that the Authority had regard to any false, irrelevant or misleading information. 21 With respect to the question of drug use and drug rehabilitation, the Applicant points to the fact that reports to the Authority state that, since 1997, he had had five dirty urine tests. It is true that some of the material before the Authority indicated that history, but there was also significant information before the Authority, including the report of Ms Maloney and the report of Ms Clare McAdam, Drug and Alcohol counsellor, indicating that the Applicant had successfully challenged a number of these tests, that some were erroneous and that the explanation for them appeared to be the metabolic breakdown of his medication. That material was taken into account by the Authority. In this respect, the Authority did not make its decision upon the basis of false, misleading or irrelevant information. 22 The Applicant points to the material contained in the report of Ms Maloney which indicated that he had not benefited from the ten Drug and Alcohol courses which he had completed. It is necessary to consider the context in which Ms Maloney commented upon those matters. It is apparent, as I have said, that the Applicant has a long-standing problem with drugs. His capacity to grapple with that problem upon release into the general community is clearly, in the circumstances of this case, a critical issue for the Authority to consider. 23 In evidence before the Authority on 21 April 2006, Ms Maloney said that the Applicant had not gained any real benefit from those programmes in terms of being able to develop the skills to prevent a relapse in the future. This comment related to the extent to which the Applicant's courses would equip him for the future in the community. It is not a statement that he has gained nothing from the programmes. 24 Ms McAdam's report observed that the Applicant had ongoing serious drug misuse issues, both inside gaol and in the community. There was a pervasive pattern of drug use and drug-related offences and these were matters that needed to be confronted. 25 I am not satisfied that any comment made by Ms Maloney, with respect to the question of benefit of Drug and Alcohol courses undertaken by the Applicant in gaol, involved reliance by the Authority upon false, misleading or irrelevant information. 26 In summary, I am not satisfied that the Applicant has demonstrated any matter which would call for a direction under s.155 CAS Act. I am not satisfied that he has demonstrated that the decision of the Authority was made on the basis of false, misleading or irrelevant information. 27 I have already mentioned that the Applicant's case will be again before the Authority on 19 January 2007, some two months hence. Reports will be prepared prior to that time. 28 The Applicant has emphasised his strong desire to undertake an ex-inmate programme run by Mr John Taylor, psychologist, as summarised in a document upon which he has relied (Exhibit 1). It is, of course, a matter for the Authority to determine what approach should be taken with respect to the Applicant's future custody. 29 It is the position, of course, that if the Applicant is not released to parole he will be released unconditionally on 10 June 2007 upon the expiration of his full sentence. It may be that a more intensive rehabilitation programme than that which the Applicant has considered to date may be, given his past history, more likely to be entertained positively by the Authority. In making that observation, of course, I do not attempt to influence the functions of the Authority. It will be a matter for the Authority to make decisions with respect to the Applicant when his case falls for further consideration in January 2007. 30 I am not satisfied that any basis for a direction in favour of the Applicant under s.155 CAS Act has been demonstrated. The application is dismissed.
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Whalan
State Parole Authority of New South Wales
CITATION : Whalan v State Parole Authority of New South Wales [2006] NSWSC 1214
Whalan v Parole Board of NSW [2005] NSWCCA 445 CASES CITED : DCU v State Parole Authority [2006] NSWSC 526 McPherson v Offenders Review Board (1991) 23 NSWLR 61 McCallum v Parole Board [2003] NSWCCA 294
(1991) 23 NSWLR 61