Ngati v NSW Parole Authority [2007] NSWSC 963

New South Wales Supreme Court

CITATION : Ngati v NSW Parole Authority [2007] NSWSC 963

HEARING DATE(S) : 27 August 2007

JUDGMENT DATE : 30 August 2007

JUDGMENT OF : Price J at 1

DECISION : Application dismissed.

CATCHWORDS : Criminal law - parole - decision of State Parole Authority to refuse parole - sub-section 155(3) threshold - necessity for evidence that refusal was based on false and misleading information.

LEGISLATION CITED : Crimes (Administration of Sentences) Act 1999 s 155, s 155(3),

CASES CITED : R v Naudi [2003] NSWCCA 160 Rozynski v Parole Board of New South Wales [2003] NSWCCA 214

PARTIES : William Ngati New South Wales Parole Authority

FILE NUMBER(S) : SC PA 0002/2007

COUNSEL : Ms Belinda Baker Solicitor Advocate for Crown Solicitor Mr Ngati - No appearance

LOWER COURT JURISDICTION : NSW Parole Authority

LOWER COURT DATE OF DECISION : 25 January 2007

IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

PRICE J

30 August 2007

PA 0002/2007 William Ngati v NSW Parole Authority

JUDGMENT 1 HIS HONOUR: On 23 January 2006 the applicant was sentenced by Sides DCJ to a term of imprisonment of three and a half years with a non-parole period of eighteen months for the offence of ongoing supply of heroin for financial and material reward. As the sentence commenced on 2 June 2005, the applicant was eligible for release on parole on 1 December 2006. Following a conviction in the District Court on 10 April 2006 for possession of a mobile phone by an inmate, the non-parole period was extended to 1 March 2007. The overall sentence will expire on 2 June 2008. 2 The New South Wales State Parole Authority ("SPA") at its meeting on 25 January 2007 considered the application for a review hearing by the applicant and determined that a review hearing was not warranted. The SPA refused the applicant's release on parole for the following reasons: "The Parole Authority has sufficient reason to believe that if released form (sic) custody at this time the offender would not be able to adapt to normal community life, risk of re-offending, need to address offending behaviour (AOD/violence and gambling), poor prison performance." 3 In an unsigned application for statutory review under s 155 Crimes (Administration of Sentences) Act 1999 ("CAS Act") the applicant contends that the SPA based its decision on information which was false and misleading. 4 The Court file reveals that a facsimile was sent by the Registrar of the Court on 2 August 2007 asking the applicant to indicate in writing whether he wished to attend the hearing. No response was received and the application was heard in the applicant's absence. As a result, the only material in the proceedings for the applicant is the application itself. One of the contentions made by the SPA is that the application should be summarily dismissed under subs 155(3) of the CAS Act. Due to other matters in the Duty Judge's list, I reserved my decision to enable the material before me to be properly considered. 5 It seems that the principal contentions of the applicant are that parole officers falsely or misleadingly reported to the SPA that: (1) the applicant refused to take part in parole reports; and (2) refused to undertake programs. 6 Section 155 of the CAS Act is as follows: " 155 Application to Supreme Court by offender (1) If: (a) the Parole Authority decides that an offender should not be released on parole, and (b) the offender alleges that the decision of the Parole Authority has been made on the basis of false, misleading or irrelevant information, the offender may , in accordance with rules of court, apply to the Supreme Court for a direction to be given to the Parole Authority as to whether the information was false, misleading or irrelevant. (2) The Supreme Court may give such directions with respect to the information as it thinks fit. (3) An application under this section is to be considered by the Supreme Court if and only if (emphasis added) it is satisfied that the application is not an abuse of process and there appears to be sufficient evidence to support the application." 7 Sub-section 155(3) provides a threshold which must be satisfied before a s 155 application is to be considered by the Court. Failure by an applicant to satisfy the Court that the application is not an abuse of process and that there appears to be sufficient evidence to support it will result in dismissal of the application. 8 The SPA does not contend that the application is an abuse of process and there is nothing to suggest that it is. The argument is that there is insufficient evidence to support the application. 9 In an application under s 155, the Court may only consider whether information given to the Board was "false, misleading or irrelevant". As was said by Simpson J in R v Naudi [2003] NSWCCA 160 at [19]: "It is implicit in the section that any information found to be false, misleading or irrelevant has also been information on which the Board's decision was based. It is not sufficient that there be false, misleading or irrelevant information, that information must also be part (at least) of the foundation for the decision." 10 Evidence is required to satisfy the Court that the information was false, misleading or irrelevant. A mere assertion that it was will not be sufficient. In Rozynski v Parole Board of New South Wales [2003] NSWCCA 214, Greg James J (Hodgson JA and Simpson J agreeing) said at [13]: "For my part, I consider that action under the section will not be warranted unless the statutory conditions are met as a matter of substance. This means that information before the Board will not be characterised as false, misleading or irrelevant simply because it was challenged, even if challenged on such a basis before the Board and the challenge determined adversely to the applicant, nor if it is merely incorrect in detail but not false or misleading in substance. This Court will need to be satisfied on appropriate (usually new) evidence that information was false or misleading in substance, and that the direction should be given." 11 In the present application for the Court to be satisfied under subs. 155(3) that there appears to be sufficient evidence to support the application, there must, in my opinion, be evidence capable of establishing that the SPA based the decision refusing the applicant's release on parole (at least in part) on false and misleading information. The applicant's assertions in the application for statutory review are not evidence. The documentary material tendered in evidence by the SPA does not support the application. The absence of the appearance of any evidence supporting the application means that the application does not pass the threshold and is not to be considered. 12 Orders The application is dismissed.