Whalan v State Parole Authority of New South Wales

Judgment (9 paragraphs)

[1]

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.

[2]

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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Judgment (9 paragraphs)

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