Daniel Trevor Davis v New South Wales State Parole Authority [2006] NSWSC 1231

New South Wales Supreme Court

CITATION : Daniel Trevor Davis v New South Wales State Parole Authority [2006] NSWSC 1231

HEARING DATE(S) : 13 November 2006

JUDGMENT DATE : 20 November 2006

JUDGMENT OF : Barr J at 1

DECISION : Application dismissed.

PARTIES : Daniel Trevor Davis New South Wales State Parole Authority

FILE NUMBER(S) : SC PB0010/06

COUNSEL : P: N/A (In person) D: N L Sharp

SOLICITORS : P: N/A (In person) D: Crown Solicitor's Office

IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

GRAHAM BARR J

20 NOVEMBER 2006

PB0010/06 DANIEL TREVOR DAVIS v NEW SOUTH WALES STATE PAROLE AUTHORITY

JUDGMENT 1 HIS HONOUR: The plaintiff, Daniel Trevor Davis, is serving concurrent sentences of five years imprisonment which will expire on 19 February 2008. The non-parole period expired on 19 February 2006. Anticipating the expiry, the defendant, State Parole Authority of New South Wales (the Parole Authority), met on 15 December 2005. It decided to refuse parole and issued a Notice of Intention to Refuse Parole. The Notice invited the plaintiff to apply for a reconsideration of the determination. He did so. As a result the Parole Authority convened a hearing on 7 March 2006. On the same day the Parole Authority determined not to release the plaintiff to parole. 2 On 3 April 2006 the plaintiff commenced this proceedings by filing an application on a superseded Form (Form VA) under the Criminal Appeal Act and by writing a letter to the Chief Justice. According to the letter, the plaintiff was seeking a judicial review of the Parole Board's determination on the grounds of a denial of natural justice, failure to take into account relevant considerations, unreasonable abuse of power (acting outside guidelines) and error of law (insufficient evidence). The letter went on to assert that the determination was based on false, misleading and irrelevant material. The latter assertion would have been appropriate to initiate an application under the provisions of s155 Crimes (Administration of Sentences) Act 1999. The former, however, appeared to be a claim for prerogative relief. That gave rise to a difficulty for the Parole Authority for, although it might appear and contradict in an application under s155, it might not do so in a claim for prerogative relief: R v Australian Broadcasting Tribunal; Ex parte Hardiman (1980) 144 CLR 13. In the latter event, the appropriate course would be for the Parole Authority to enter a submitting appearance and for the Attorney General to intervene as contradictor. A letter was written to the plaintiff asking him to clarify the legal basis upon which he wished to proceed, but no response was received. When the matter was called on for hearing I asked the plaintiff to clarify the matter. He was unable to do so. I do not say so critically. He is not a lawyer and I suspect that he did not draft the application and the letter to which I have referred. Accordingly, I granted leave to the Attorney General to intervene to contradict. The Parole Authority filed a submitting appearance. 3 The evidence shows that the plaintiff was born on 9 December 1981. On 30 January 2002 he followed a sixteen year old girl from her home to a park and there raped her anally and vaginally. He was affected by alcohol. At his trial he admitted the acts of intercourse but said that the complainant had consented. The jury found him guilty and he was sentenced as I have described. In imposing sentence the trial judge recommended that the plaintiff have appropriate drug and alcohol psychotherapy whilst in prison. His appeal to the Court of Criminal Appeal was dismissed. 4 The plaintiff's record shows that he first offended when fifteen years of age and that he had since then been dealt with on several occasions by the courts, particularly for offences of violence and theft and kindred offences. There was a conviction for high range prescribed concentration of alcohol, too, and it appears that he was abusing alcohol. A condition of a series of four bonds granted to him in December 2000 was that he undertake alcohol and other counselling. Those bonds were in force when he committed the offences resulting in the current sentences. 5 When the Parole Authority made its decision on 15 December 2005 it had before it a Probation and Parole Pre-Release Report whose author had interviewed the plaintiff, the plaintiff's mother, a psychologist, an education officer and other concerned persons in the corrective services system and had read records of the sentence including the judge's remarks on sentence. The reporter noted that the plaintiff had no prior convictions for sexual offences but that a statement by the complainant contemporary with her complaint of rape asserted that some five months previously the plaintiff had committed an act of indecency in her presence and had indecently touched her. The reporter reviewed the plaintiff's abuse of alcohol and other drugs. She said that he described himself as a binge drinker but did not regard alcohol as a problem. His use of cannabis before and during the sentence was noted. Also the past use of amphetamines. The reporter observed that the plaintiff denied the offending behaviour and maintained that intercourse was consensual. He continued to claim that the complainant had fabricated the complaint, apparently to put things right with her boyfriend, and that the plaintiff saw himself as the victim. He had no empathy for the complainant or her family. The reporter noted two failed urine tests in gaol. In March 2003 he had declined to be assessed for alcohol and other drug counselling. In September of the same year he had participated, but reluctantly. In December of the same year he had participated. By August 2005 he was interested in alcohol and other drug courses such as relapse prevention. However, a case note recorded him as saying that the main reason for wanting to do so was for probation and parole. The plaintiff did not appear to have any psychiatric problems. He had a good work record and behaved himself generally. The reporter assessed him as presenting a medium-high risk of general re-offending and a medium-high risk of sexual re-offending. The reporter declined to support the application for parole until the plaintiff should undertake programs to reduce the risk of re-offending, particularly as to sexual offences, and to help him overcome his problems with alcohol and other drugs. 6 The Parole Authority refused parole for the following reasons - Unable to adopt to normal lawful community life; risk of re-offending; need to address offending behaviour (sex offending/AOD). 7 When the Parole Authority reconsidered the matter on 7 March 2006 it had before it in addition to the material I have reviewed a Supplementary Pre-Release Report. The reporter noted that after an assessment on 30 August 2005 it had been recommended that the plaintiff attend an alcohol and other drugs relapse prevention group. When a commencement date was set, he had failed to place his name on the waiting list, so he was not included in the course. Subsequently he had placed his name on a waiting list, but no commencement date had yet been fixed for another course. The plaintiff had been assessed by the Drug and Alcohol Community Youth Team at Port Kembla Hospital as suitable for counselling by that service. The reporter was concerned that the plaintiff was taking no responsibility for his offending and had not entered appropriate rehabilitation programs. In view of his failure to undertake programs offered to him in prison the reporter doubted whether he had the motivation to do so when released into the community. The reporter declined to recommend parole. 8 The plaintiff attended the hearing and was represented by a solicitor. There is a program for the rehabilitation of sexual offenders known by its acronym CUBIT. The plaintiff told the Parole Authority that he was not willing to enter the CUBIT program because he was maintaining his innocence. (It is a condition of entry into such a program that guilt be acknowledged). The plaintiff offered reasons why he had not participated in alcohol and other drug programs and stated his intention to enter an Alcoholics Anonymous program in the near future. He asserted that he would, if released, participate in the program at Port Kembla Hospital. 9 The Parole Authority noted that since the plaintiff was denying his offending he could not enter CUBIT. It noted the need for the plaintiff to come to terms with his offending behaviour and to do something constructive about his abuse of alcohol. The Parole Authority formally refused parole for reasons identical with those pronounced on the prior occasion.