GALLI v NSW STATE PAROLE AUTHORITY [2006] NSWSC 206

New South Wales Supreme Court

CITATION : GALLI v NSW STATE PAROLE AUTHORITY [2006] NSWSC 206

HEARING DATE(S) : 20 March 2006

JUDGMENT DATE : 20 March 2006

JURISDICTION : Common Law

JUDGMENT OF : Adams J at 1

EX TEMPORE JUDGMENT DATE : 03/20/2006

DECISION : The Authority to reconsider the question whether the refusal of the applicant to admit guilt and consequential exclusion from sexual offender treatment programmes is misleading in relation to the statutory criteria for the grant of parole.

CATCHWORDS : Parole - determination by Parole Authority - misleading information - sex offender - risk of re-offending - refusal to admit guilt - exclusion from sexual offender programmes - other assessment that low risk - offender's refusal to admit guilt characterised as refusal to accept parole - powers of Supreme Court

LEGISLATION CITED : Crimes (Administration of Sentencing) Act 1999 s 155

Juan Carlos GALLI (Applicant)

PARTIES : v

New South Wales State Parole Authority (Respondent)

FILE NUMBER(S) : SC PB0007/2007

COUNSEL : Applicant in person Ms D M L Woodburne (Respondent)

SOLICITORS : Ms J K Witmer (Legal Aid Commission of NSW) Mr W Abadee (Crown Solicitor's Office)

LOWER COURT JURISDICTION : Parole Authority

LOWER COURT DATE OF DECISION : 03/20/2006

Ex tempore - checked

THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

ADAMS J

MONDAY 20 MARCH 2006

PB0007/2007 - JUAN CARLOS GALLI v NSW STATE PAROLE AUTHORITY

JUDGMENT

1 HIS HONOUR: This is an application under s 155 of the Crimes (Administration of Sentencing) Act 1999 which provides for an application to the Supreme Court by an offender where the Parole Authority decides that he or she should not be released on parole and where the offender alleges that the decision of the Parole Authority has been made on the basis of false, misleading or irrelevant information. In that event the Supreme Court may, in the exercise of its discretion, give a direction to the Parole Authority as to whether the information was false, misleading or irrelevant and make such directions with respect to the information as it thinks fit. 2 This provision does not, of course, give the Supreme Court any power to reconsider the decision entrusted by the Act to the Parole Authority. In this particular case the Parole Authority refused to grant the offender parole for 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 lawful community life; risk of re-offending; need to address offending behaviour (sexual offending); unconfirmed post-release accommodation. The matter has therefore been stood over to 17 August 2006 for a report from the Probation and Parole officer to enable reports to be obtained for parole to be considered." 3 It seems to me that the standing over for some ten months of an application for a further review by the Board is, in substance, a refusal to grant parole. It may be assumed that the Authority expects that the Correctional Centre report and Probation and Parole officer's report, in addition to addressing the issues generally relevant to the question of parole, will in particular address those matters identified by that Authority as justifying the refusal to release the offender on parole on 7 October 2005. 4 It is difficult to believe that the Parole Authority would have regarded the fact that the offender's post- release accommodation was unconfirmed as decisive. It is obvious that the question of the availability of such accommodation could have been quickly and easily addressed. Indeed, as I understand it, this has now been done and it is clear that accommodation for the applicant on his release is available. 5 So far as his ability to adapt to normal community life, it is obvious from the report of the Probation and Parole officer that the only question in this regard is the risk of re-offending. It is not suggested anywhere in the report (which was apparently accepted by that Board) that there are other significant difficulties affecting his ability to adapt to normal lawful community life. 6 The risk of re-offending is linked to the need to address the offending behaviour which was of a sexual character. The pre-release report of the probation officer makes it clear that the applicant was refused participation in the sexual offender programmes otherwise available to offenders because he refused to admit his guilt of the offences for which he was convicted. Although the language in the report is that he refused to participate in the programmes, this is double-speak. It is a condition of entry into those programmes that the applicant admit his guilt. It is easy to understand why this should be so. If you are attempting to address particular behaviours of an individual, a denial by that person that they have exhibited those behaviours means that treatment is unlikely to be useful. It is, therefore, not a criticism of the particular sex offender programmes that are offered to offenders such as the applicant that they are not seen as useful where the individual does not accept his or her guilt. 7 The question to be considered by the Parole Authority is not ultimately whether an offender has undertaken such a programme, assuming that he or she was convicted of a sexual offence. The question is whether in all the circumstances an offender should be released to parole having regard to the criteria specified in the Act, crucially whether there is or is not a real risk of re-offending. In considering this question a number of matters are relevant. Of course, the nature of the offending itself is of significant importance. The objective facts and circumstances are set out in the reasons for sentence of Stewart ADCJ of 25 August 2000 and I do not propose to set them out here. In the course of his Honour's reasons, he said: "One of the problems in this case is the problem of rehabilitation. The prisoner still maintains his innocence. This makes this issue difficult to grapple with. However, despite the prisoner's attitude I think that the prospects of rehabilitation are reasonably good."