MICKLESSON v PAROLE BOARD OF NSW SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL MEAGHER and POWELL JJA, and SHEPHERD AJA 13 August 1997, 13 August 1997 [1997] NSWCA 202 Administrative Law — Judicial review of exercise of powers — Alleged wrongful exercise of power — Refusal of Parole Board to grant parole on expiration of minimum term — Refusal alleged to have been based on alleged policy — Policy alleged to be improper — Relevant circumstances alleged not to have been taken into account. Criminal Law — Administration of prisons — Probation and parole — Parole Board — Declines to grant parole on expiration of minimum term — Reasons for refusal — Whether proper basis for refusal. Powell JA By Summons filed 21 May 1997, the Claimant, who is at present an inmate within the Kirkconnell Correctional Centre, seeks orders, prerogative in nature, in relation to the determination of the Parole Board of New South Wales ('the Board") on 17 February this year to refuse to make an order for him to be admitted to parole. The factual background which gives rise to this application may be stated fairly shortly. On 4 December 1992, Graham DCJ sentenced the Claimant on six counts out of 11 counts of an indictment for offences alleged to have been committed by the Claimant against one of his stepdaughters, then being a child under the age of 16, of which counts the Claimant had earlier been found guilty by a jury during the Taree sittings of the District Court. The six counts in respect of which the Claimant had been found guilty were two counts of act of indecency; two counts of sexual intercourse without consent, one of those two counts being in respect of a child under his guardianship; and two counts of attempted sexual intercourse without consent. In respect of the two counts of act of indecency, Graham DCJ sentenced the Claimant to a fixed term of two years, to commence on 4 December 1992; in respect of one of the counts of sexual intercourse and the two counts of attempted sexual intercourse, his Honour sentenced the Claimant to a fixed term of three years to commence on 4 December 1992; while, in respect of the final count, his Honour sentenced the Claimant to a term of five years to commence on 4 December 1992 with a minimum term of three years and an additional term of two years. In the course of his remarks on sentence, Graham DCJ recorded (inter alia) that while a number of the offences has been put in issue by the Claimant, in respect of some at least of the offences the Claimant was alleged to have made admissions to the investigating police. At the conclusion of his Honour's remarks he said (inter alia): "Having regard to the special circumstances of this case I propose to alter the usual proportion between minimum and additional terms. The minimum term must, in any event, be a substantial one because of the factors already identified 2 UNREPORTED JUDGMENTS but because of the age of the offender, his previous good character, the fact that this is his first time in gaol, because of the circumstances in which he will need to be held in custody and because of the quite good prospects of rehabilitation (particularly should he face up to the problems which give rise to these offences), then the combination of those circumstances justifies a measure of leniency and a measure of variation of the usual rule as to the proportion between minimum and additional terms." Although the material which is before the Court does not clearly demonstrate that this was so, it would appear to be the fact that the Claimant appealed to the Court of Criminal Appeal in respect of both his conviction and sentence but that that appeal was unsuccessful. Thereafter, on 22 February 1994, at Gosford the Claimant came again before the District Court in its Criminal Jurisdiction, on this occasion before Patten DCJ and Jury, the Claimant on, this occasion, being convicted on four counts of indecent assault alleged to have been committed by him in respect of another of his stepdaughters. In relation to those four counts Patten DCJ sentenced the Claimant to a term of three years, divided into a minimum term of one year to commence on 4 December 1995 and an additional term of two years; his Honour did not, however, make an order directing the Claimant's release on parole on the expiration of the minimum term (see Sentencing Act 1989 s24(1) ("the Act")). In the course of his remarks on sentence his Honour said (inter alia): "There is no material before me to explain the prisoner's conduct, except perhaps that at the time he was involved in the excessive consumption of alcohol, but it is obvious from the nature of the offences in relation to the two victims that he needs counselling, treatment and supervision. I therefore propose to accede to Mr Warwick's submission that there should be a re-ordering of the statutory proportion between the minimum sentence and the additional sentence so as to provide an extended period during which the prisoner's rehabilitation might be supervised and I find therefore that that constitutes special circumstances in this case." On this occasion the Claimant did not seek to appeal against either his conviction or sentence. The nett effect of the orders made by Graham DCJ and Patten DCJ was the Claimant became eligible for parole on 4 December 1996. Prior to that date there had been prepared by the Probation and Parole Service, no doubt for submission to the Board, a Pre-Release Report. That Report contained the following (inter alia) material: "PSYCHOLOGICAL COUNSELLING By virtue of his claims of innocence for the offences for which he has been charged Mr Micklesson's contact with psychological services at Kirkconnell have been limited and he has not attended any specific sex offender program. ASSESSMENT: Mr Micklesson impresses as a man of average intelligence who professes his innocence yet cannot give a credible reason for his step-daughter's accusations. While his failure to accept responsibility for his offences is disappointing, his behaviour and attitude in custody would seem to indicate a readiness to abide by the conditions of parole. His post release plans are considered appropriate, his father is aware of the requirements of parole and URJ MICKLESSON v PAROLE BOARD OF NSW (Powell JA) 3 has indicated his willingness to provide support. Given Mr Micklesson's positive post-release plan and good custodial performance, release to parole is recommended. Should the Board consider this option, it is recommended that the inmate be required to undergo psychological counselling as directed by his supervising officer." Before the matter was considered by the Board a Psychological Report was prepared for the Board's consideration. That Report, dated 26 November 1996, contains the following (inter alia):- "Although Mr Micklesson has seen psychologists from time to time he has not completed any specific therapy because of his adamant denial of the offences. Post release treatment is unlikely to change his position. Consequently, it is difficult to develop an understanding of the thoughts, feelings and behaviours which would increase Mr Micklesson's risk of reoffending. Risk of reoffending Mr Micklesson has no prior history of deviant sexual activity. Due to Mr Micklesson's denial of the sexual abuse, it is difficult to develop an understanding of thoughts, feelings and behaviours which would increase the risk of his reoffending Predisposing risk factors for reoffending would include: complete denial of his behaviour; non participation in structured sex related therapy; no relapse prevention plan and no understanding of his offence cycle. It is not possible to ascertain what the precipitating risk factors would be to his denial. Summary It is noted that, if parole is granted, Mr Micklesson plans to live with his father at a mobile home park where no children reside and where no unaccompanied children are allowed on the premises. If released on parole, it is recommended that Mr Micklesson not be in the presence of minors unless supervised by an appropriate adult, not be allowed in a position of authority involving children and not be allowed to involve himself with organisations where he could have unsupervised access to minors." The material to which I have just referred, together with other material, appears to have been considered by the Board at its meeting on 5 December 1996. As the result of that consideration, the Board expressed its then intention not to release the Claimant on parole and, therefore, in accordance with the provisions of s20 the Act, notified the Claimant of its then intention. In the formal notification of its decision there were assigned as reasons for the Board's then intention the following: "Unable to adapt to normal lawful community life; risk of reoffending; need for further psychological counselling; need for participation in a sex offenders program". In reliance upon provisions of the Act the Claimant then sought a review of the Board's expressed intention. That review appears to have been carried out on 17 February 1997, at which time Mr W Hutchins appeared for the Claimant while a Ms M Ridge appeared for the Parole Unit of the Kirkconnell Correctional Centre. At the time, the Board was presided over by the Hon JA Nader QC ("the Chairman''), a former judge of the Supreme Court of the Northern Territory and one who, since his retirement from that Court, has on occasion presided as an acting judge of the District Court of this State. 4 UNREPORTED JUDGMENTS The material before the Court does not record in any detail what material was put before the Parole Board on that occasion, nor what evidence, if any, was tendered on behalf of the Claimant. The Board's Determination, as recorded by the Chairman at the conclusion of the review, was in the following terms. "Parole is refused for the reasons stated on 5 December 1996. The matter is stood over to 26 August 1997 when the board will require all reports, including a psychological report, especially directed to the causes of and the possible removal of the persistent denial. Let me make it perfectly understood that this board is faced with the fact of a conviction which is a legal conviction standing on the record. We have no power or right to look behind it so we must regard you, Mr Micklesson - whether you think it's unjust or not is another matter - we must regard you, we are bound by law to regard you, as a guilty person denying your guilt in the face of the fact of your guilt to us. We can't make any concessions to those matters that your counsel put to us so eloquently about the grounds you have for an appeal of some kind to the Supreme Court. If those proceedings are successful, your whole sentence will be set aside and you may even claim some sort of compensation against the state for the terrible injustice it has done to you, but at the moment this board is faced with the fact of your conviction and can't look behind it. You must understand that, so we must now give some more time. We will allow some more time, I think it is 6 months approximately, to those in authority to counsel you to make you see that persisting in denial is not something that will advantage you here." The Summons having been brought on for hearing today, Mr GP Craddock has appeared for the Claimant, while the Crown Advocate Ms MF Latham has appeared, by leave, for the Attorney-General, the Board having entered a submitted appearance to the proceedings. At the outset, Mr Craddock sought to raise with the Court the question whether or not the Board is to be regarded as "specified tribunal" for the purposes of s48 of the Supreme Court Act 1970. For whatever weight it may have, my view is that the Board is not "a specified tribunal" and that proceedings seeking a review of the decisions of the Board, unless they might be brought pursuant to the provisions of s23 of the Act, ought to be commenced, in the first instance, in the Administrative Division of the Court. The fact that I am of the view which I have just expressed is, however, of no significance in the present case since it is quite clear from the provisions of s51(2) of the Supreme Court Act 1970 that it is open to this Court, if it so desires - and, at the outset, it indicated that it proposed so to do - to determine the present application rather than to remit it for hearing in that Division. The grounds upon which the Claimant has sought to base his claim for relief are, as I understand it, two, they being: (1) that there is, within what might be called "the prison system", a policy to the effect that a person convicted of sexual offences who does not undergo counselling and who does not admit to the guilt of the matters of which he has been convicted ought not to be released to parole; and (2) that, in any event, the Board, even if entitled to have regard to such policy, has not had regard to all the other matters which might be put in favour of the Claimant in relation to his application for release on parole. URJ MICKLESSON v PAROLE BOARD OF NSW (Meagher JA) 5 It seems to me that the Claimant's case fails at the outset, for it has not been demonstrated to my satisfaction that there is, within "the prison system", a policy such as has been suggested. At best, the material that is before the Court indicates that at the Kirkconnell Correctional Centre there is a policy that, for the purposes of Program Review and Classification Review, an inmate convicted of such an offence is not to be given the benefit of the lowest security classification unless, and until, he has attended appropriate counselling and indicated his willingness to accept guilt. Even if there were a policy such as has been suggested, however, it seems to me that it could not be said that that policy was a matter to which it would have been improper for the Board in the course of its deliberations to have regard. It is clear enough that s17 of the Act enjoins the Board, when considering such applications, to consider matters such as the public interest, and the ability of an inmate, if released on parole, to adjust to life outside "the prison system". The only basis, as it seems to me, upon which the attack which Mr Craddock has sought to mount could succeed is that, as suggested by Mr Craddock, the Parole Board had regard only to the policy and did not have regard to other matters in favour of the Claimant in his application for parole. The material which is before the Court in my view fails to establish that that was so. On the contrary, the reasons which were stated in the notification of intention which was sent to the Claimant on 5 December indicate to me that the Board had regard to a variety of factors to which it was entitled under its statute to have regard. It seems to me, therefore, that the Claimant's case fails in its demonstration. Ms Latham has sought to raise, as a discretionary bar to the relief sought, the provisions of s23 of the Act which provide - albeit in rather limited circumstances - for challenges as to the Board's decisions when taking into account what are said to be irrelevant matters to be the subject of an application to the Court of Criminal Appeal. Although, when I first read the material which had been filed on behalf of the Claimant, I was disposed to think that it was being asserted that the Board took into account irrelevant matters, no argument to that effect was finally advanced. For that reason, I would prefer to refrain from expressing a view as to the relevance of s23 of the Act to an application such as this unless, and until, the question arises directly for determination. I would propose that the application be dismissed with costs. (Submissions as to costs) Meagher JA I must say in my view - I don't know if I speak for myself only - Ican see no reason why the normal principles shouldn't apply, namely, that the loser pays the winner's costs; and I would make an order for costs as sought. Shepherd AJA That seems to be the practice of the court, so I agree. I agree also with the orders proposed by Powell JA. Meagher JA I also agree with the orders proposed by Powell JA. The application is dismissed with costs. Counsel for the Claimant: G P Craddock Solicitors for the Claimant: T Murphy, Legal Aid Commission 6 UNREPORTED JUDGMENTS Counsel for the Opponent: Submitting appearance Solicitors for the Opponent: I V Knight, State Crown Solicitor Counsel for the Attorney-General: Ms M F Latham, Crown Advocate Solicitors for the Attorney-General: I V Knight, State Crown Solicitor