Burridge v NSW State Parole Authority [2006] NSWSC 254

New South Wales Supreme Court

CITATION : Burridge v NSW State Parole Authority [2006] NSWSC 254

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 : Application refused.

CATCHWORDS : Parole - nature of proceedings before Parole Board - offender represented by solicitor - no attack made on certain factual assertions in report - whether Supreme Court should determine those facts - appropriate directions

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

David Anthony BURRIDGE (Applicant)

PARTIES : v

NSW State Parole Authority (Respondent)

FILE NUMBER(S) : SC PB0004/2006

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 : NSW State Parole Authority

Ex tempore - checked

THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

ADAMS J

MONDAY 20 MARCH 2006

PB0004/2006 - DAVID ANTHONY BURRIDGE v NSW STATE PAROLE AUTHORITY

JUDGMENT

1 HIS HONOUR: This is an application by David Anthony Burridge under s 155 of the Crimes (Administration of Sentences) Act 1999 following a determination of the Parole Authority on 10 November 2005 that he not be released on parole. The reason given in the determination is as follows: "The State Parole Authority 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 for psychological counselling; need to address offending behaviour; and poor prison performance." 2 Section 155 of the Crimes (Administration of Sentences) Act 1999 provides that an offender may apply to the Supreme Court for "a direction to be given to the Parole Authority as to whether information [forming the basis for the decision of the Parole Authority] was false, misleading or irrelevant where the offender has alleged that the decision of the Authority has been made on the basis of such information. 3 In this case Mr Burridge submits that indeed the Parole Authority refused his parole upon the basis of false and misleading information. On 5 June 1995 in the District Court Mr Burridge had pleaded guilty to 12 counts of armed robbery and one of attempting to commit an armed robbery and 13 counts of armed hold-up. These offences, it seems, were committed on 1 May 1994 shortly after being released on parole from a prior custodial sentence. I am unaware of the circumstances of these offences but their mere description shows a very high degree of criminality and endangerment to the public. Mr Burridge was sentenced to an additional term of 13 years with a non-parole period of 9 years commencing on 5 June 1995. Because of the effect of his crimes on a prior parole order which was revoked, he was only eligible for release on parole on or after 3 December 2005. 4 The Parole Board of NSW, having formed a view that parole should be refused, was required to conduct a hearing at which the parolee has an opportunity to present a case justifying the grant of parole. That hearing was held on 10 November 2005. Mr Burridge was represented by Mr Hails, a solicitor from the Prisoners' Legal Service. He gave evidence. Although he complains that his evidence was cut short in a number of respects, a careful reading of the transcript does not support this assertion. 5 Also called to give evidence was one Margaret Wheatley, a Probation and Parole officer with the Goulburn office of the Probation Service, who had prepared a number of reports concerning Mr Burridge, in particular, reports dated 1 September 2005 and 26 October 2005. Ms Wheatley was available for cross-examination by Mr Hails, who indeed did so. 6 Mr Burridge, in a number of extensive written communications, has made many complaints about the way he has been treated in prison and the way in which the reports and material that came before the Parole Board did not fairly represent his situation, his prison record or his prospects for rehabilitation. I have stated on the record the documents to which I have referred and I do not propose to set them out here. They are discursive in character and are plainly deeply felt. He says that they had been provided to various authorities, including the Parole Board, although I notice that a number of them post-date the hearing of 10 November 2005 and the decision of the Parole Board refusing parole. However, they are substantially repetitious and the later documents repeat much of the material contained in the earlier documents. 7 Mr Burridge complains that his solicitor did not bring a number of matters to the attention of the Board. In particular, he claims that he did not cross-examine the parole officer or the probation officer in respect to inaccuracies in her report, chiefly the over-reporting of complaints about his behaviour within the prison system, and did not call any evidence from prison officers or other prisoners whom he says would have verified his allegations that his alleged misbehaviour in prison was, to a significant degree, a response to incitement by inappropriate conduct of both prison officers and prisoners. 8 So far as material available to the Parole Board is concerned, including his own evidence and that of Ms Wheatley, I do not see how it can be regarded as an error in the Parole Authority to deal with the matter as it was placed before them. Furthermore, the alleged false and misleading material contained largely, as I have said, in the report of Ms Wheatley was capable of being the subject of concrete evidence if Mr Burridge's case had been conducted in that way. However, his solicitor really concentrated on the length of time that he had been serving, the fact that he suffered from a personality disorder which required psychological and psychiatric assistance and that such assistance would be available to him upon his release, all of which suggested that he would be better being released at an earlier stage and subject therefore to supervision rather than being left in prison, as it were, to the last moment, whereupon his release no supervision would be available to him. This strikes me as being a not unreasonable argument. It was an argument that addressed the substance of the problem that he was facing although, as Mr Burridge points out rightly, it did not deal with the detail of the complaints made against him and with which he wished to take issue. 9 On the material before me I am unable to determine - and I am not sure that it is appropriate that I should do so at all events - that what was given to the Parole Authority was false or misleading. It is not for this court to sit as a trier of facts which the Parole Authority must determine for the purposes of exercising its authority. Undoubtedly if facts alleged before the Parole Authority are clearly false, the court has a power to direct the Authority to further investigate the matter, if that should be appropriate or else to consider whether indeed the information was of that character and the court is empowered to give directions in respect of the information. 10 It seems clear to me that the information presently the subject of Mr Burridge's written material and what he has said orally in the court was all, one way or another, in substance before the Authority. It is true that that material raised a disputation with other material before the Authority but there is nothing before me that suggests that the Authority did not fairly and thoroughly consider the factual contentions on each side. Therefore, even if I were minded to characterise particular facts as being incorrect, I would not make a direction to the Parole Authority in respect of them because there is nothing before me that suggests that the Parole Authority made any wrong determination in relation to those or any other facts within its realm. 11 Accordingly, the application must be refused. **********