Sutton v NSW State Parole Authority [2011] NSWSC 935

Supreme Court New South Wales

Medium Neutral Citation: Sutton v NSW State Parole Authority [2011] NSWSC 935 Hearing dates: 01/08/2011 Decision date: 26 August 2011 Jurisdiction: Civil Before: Garling J Decision: Application dismissed Catchwords: CRIMINAL LAW - parole - decision of State Parole Authority to refuse parole - application to Supreme Court by offender - limited nature of relief available under s 155 Crimes (Administration of Sentences) Act 1999 - whether decision of State Parole Authority made on basis of false, misleading or irrelevant information -- Incorrect statement regarding timing of previous parole breach not error of substance - Other alleged errors did not form basis of decision - Limited participation in therapeutic programs not irrelevant Category: Principal judgment Parties: William Sutton (A) New South Wales State Parole Authority (1R) Attorney-General of New South Wales (2R) File Number(s):

Judgment 1William Lewis Sutton applies to the Court for a direction to the NSW State Parole Authority that the information on which the Authority based its decision to refuse his release on parole was false, misleading, or irrelevant. 2The application is permitted by the provisions of s 155 of the Crimes (Administration of Sentences) Act 1999. 3The Authority has filed a submitting appearance. The Attorney General for the State of New South Wales was granted leave to intervene and has been the contradictor on the application. 4For the reasons set out below I have decided that the application should be dismissed. Nature of application 5The application is brought solely pursuant to the provisions of s 155 of the Crimes (Administration of Sentences) Act . It is not an application for prerogative relief. 6It is necessary to understand the restrictive nature of an application of this kind. It is appropriate to commence with the legislation. 7Section 155 is in the following form: " 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 the rules of the court, apply to the Supreme Court for a direction to be given to the Parole Authority as to whether the information is 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 it is satisfied that the application is not an abuse of process and that there appears to be sufficient evidence to support the application. (4) This section does not give the Supreme Court jurisdiction to consider the merits of the Parole Authority's decision otherwise than on the grounds referred to in subsection (1)." 8The operative terms of this section are in substantially identical form to the terms of s 23 of the Sentencing Act 1989, which has now been repealed. However, there are a number of authorities dealing with those earlier provisions that are apt to apply to the section under consideration. 9The authorities establish these propositions: (a)An application for a direction from this Court to the Authority, is not an appeal, or any form of an appeal against the decision of the Authority: McPherson v Offenders Review Board (1991) 23 NSWLR 61 at [69C] per Hunt J (Meagher JA, Studdert J agreeing); (b)An application for a direction from this Court to the Authority is not concerned with whether the Authority acted in accordance with the statute, because it is not a proceeding in the nature of an administrative proceeding seeking prerogative relief: LMS v Parole Board (1999) 110 A Crim R 172 at [8] per Stein JA, Hulme and James JJ; (c)The role of this court in considering an application of this kind is extremely limited. It can only consider whether information given to the Authority was false, misleading or irrelevant. And then only if that information is a basis for the decision which was made: R v Naudi [2003] NSWCCA 160 at [19] per Simpson J (Hodgson JA and James J agreeing); Lee v State Parole Authority of New South Wales [2006] NSWSC 1225 per Johnson J; (d)On the hearing of an application, this Court is not concerned with any questions as to the merits of the decision of the Authority, or with what weight it placed on various factors: Radford v Parole Board [2002] NSWCCA 70 at [36], McCallum v Parole Board of NSW [2003] NSWCCA 294 at [33], DCU v State Parole Authority of New South Wales [2006] NSWSC 526 at [5]-[7] per Johnson J; (e)At the hearing of an application, this Court is not concerned with the thought processes of the Authority, or its findings based on the information before it: McCafferty v Offenders Review Board (Court of Criminal Appeal, 19 June 1995, unreported) per James J (Gleeson CJ and Ireland J agreeing); (f)The term "information" in s 155 is not used in any broad sense. It is used in the sense of factual information, namely information going to the characteristics of the offence and the offender and all factual matters relevant to whether or not it may be appropriate to order a release on parole: Attorney General for New South Wales v New South Wales State Parole Authority [2006] NSWSC 865 at [73] per McClellan CJ at CL, Lee at [14]; (g)In hearing an application, the Court needs to be satisfied that the information was false or misleading in substance. This will usually require evidence in addition to that which was before the Authority to discharge the onus on the applicant: Rozynski v Parole Board of New South Wales [2003] NSWCCA 214 at [13] per Greg James J (Hodgson JA and Simpson J agreeing) 10I will bear these principles in mind in considering this application. Decisions of NSW State Parole Authority 11The first decision by the NSW State Parole Authority was made on 12 November 2010. 12On that day it made a decision not to release the applicant on parole. 13It gave its reasons as follows: "REASON/S: Unlikely to adapt to normal community life [unwillingness to comply with conditions of parole, lengthy violent history, lengthy criminal history, previous offence similar to current index offence, prior revocations of parole and poor response on previous community supervision], risk of re-offending [reoffended and received a custodial sentence on last parole order and limited participation in relevant programs], needs to address offending behaviour (Therapeutic) [needs to participate in therapeutic program to address violence eg VOTP etc and needs to participate in therapeutic programs that address alcohol and other drugs problems eg Ngara Nura, Phoenix] and need for post release accommodation [no suitable post release accommodation]." 14On 22 November 2010 the applicant applied to the Authority to reconsider its decision to refuse his release on parole. In that application, the applicant included the following statement: "I do not agree with the information that has been given to the Parole Authority ...: Information used & conclusions made are incorrect. - eg - never reoffended on parole - eg - have never refused to comply with any future order of parole - eg - have never refused classification to proceed thru (sic) system." 15Other information was provided. 16On 3 December 2010, the Authority met to consider the application for a review hearing lodged by the applicant. 17It determined on that day that it was not satisfied, on the balance of probabilities, that Mr Sutton's release was appropriate in the public interest. Its decision then read: "In deciding that the release of the offender is not appropriate in the public interest, the Parole Authority has regard to the following matters: Unlikely to adapt to normal community life [unwillingness to comply with conditions of parole, lengthy violent history, lengthy criminal history, previous offence similar to current index offence, prior revocations of parole and poor response on previous community supervision], risk of re-offending [reoffended and received a custodial sentence on last parole order and limited participation in relevant programs], needs to address offending behaviour (Therapeutic) [needs to participate in therapeutic program to address violence eg VOTP etc and needs to participate in therapeutic programs that address alcohol and other drugs problems eg Ngara Nura, Phoenix] and need for post release accommodation [no suitable post release accommodation]. " 18It is to be observed that the Parole Authority has used precisely the same words to explain why it has refused to release Mr Sutton on parole on each of the two occasions, namely 12 November 2010 and 3 December 2010. 19The evidence on this application satisfies me that the factual material that was put before the Parole Authority was identical on each occasion with the exception that on the second occasion, the applicant's application for reconsideration was also before the Parole Authority. 20That material comprised: (a)NSW Police Force, Criminal history - bail report dated 28 September 2010; (b)Remarks on Sentence of O'Connor QC DCJ dated 3 November 2009; (c)Probation and Parole Service, Pre Release Report dated 1 November 2010; and (d)NSW Department of Corrective Services, Parole Authority Offender Report. 21Although in the course of argument before the Court neither party discriminated between the two decisions made by the Parole Authority, it is necessary in an application of this kind for the Court to have regard to one only of the decisions. It seems to me that the appropriate decision to which I ought to have regard for the purpose of identifying whether any of the information was false, misleading or irrelevant, is the second of the two decisions. That is, the decision which is the last in point of time, and finally determines the applicant's status. Information said to be false 22Mr Sutton submitted that there were a number of pieces of information said to be false upon which the Authority based its decision. It is appropriate to review each of these. "Offending during last parole period" 23As indicated in [ 17 ] above, the Authority's reasons disclosed that it was of the opinion that one basis for its decision that Mr Sutton's release was not appropriate in the public interest was that there was a risk of his re-offending. The basis of that conclusion was that he had " reoffended and received a custodial sentence on last parole order ". There was an additional reason, namely that he had engaged in relevant programs to a limited extent. 24Mr Sutton submits that the reference to the fact that he had re-offended and received a custodial sentence on his last parole order was incorrect. 25The Attorney General concedes that this was an incorrect statement. 26There was no information before the Authority which expressly stated that Mr Sutton had re-offended while subject to his last parole and had received a custodial sentence. The information before the Authority, on the contrary, indicated that he had last been sentenced to imprisonment by the District Court on 13 June 2003 for two offences of breaking and entering a building and stealing therefrom. For these offences he was sentenced, in total, to four years imprisonment with a non-parole period of two years. His sentence commenced on 25 February 2003. The earliest date upon which he could be released from prison on parole was 24 February 2005. The entire sentence concluded on 24 February 2007, namely, two years after he was released to parole. 27On the Parole Authority Offender Report before the Authority, it was indicated that Mr Sutton had been released to parole on 29 March 2006. That record also shows that he was taken back into custody on 26 March 2008. This was a period of time well after his parole period had expired. 28However, the records do disclose that on the occasion before his release on parole in 2006, after he had been released to parole on 18 October 2002 for a period of six months, Mr Sutton had re-offended and been arrested and returned to custody on 27 February 2003. 29As well, the material before the Authority indicated that on occasions in 1985, 1992, 1996, 1998, 2001 and, as I have just mentioned, in 2003, Mr Sutton had breached his parole conditions by committing further offences, and had been returned to custody. 30Hence it can be seen that the error, assuming it to be part of the factual information upon which the Authority acted, was not to have inserted the description " second-last " in referring to the parole order rather than the word " last ". 31Again, assuming without deciding, that this sentence represents information of the kind to which s 155 is addressed, I need to decide whether this is an error of substance or of mere form. 32The issue to be determined by the Authority, to which this information was relevant, was Mr Sutton's risk of re-offending. Having regard to Mr Sutton's appalling history of breaching parole and committing further offences on six occasions over 23 years, there was abundant evidence to support the conclusion made by the Authority that Mr Sutton had a risk of reoffending which meant that it should not release him to parole. 33In these circumstances, I am not satisfied that the error is one of substance. Whether the applicant reoffended whilst out on parole on the second-last, or last occasion, in light of his history was a peripheral not central issue. Probation and Parole Service Pre Release Report 34Mr Sutton submits that the Probation and Parole Pre Release Service Report contained information that was false or misleading. 35He submits that the Court ought to infer that the contents of the Report, and in particular, the erroneous and misleading parts of it, amounted to information which formed the basis of the Authority's decision. 36It is necessary to examine the material to see if that is so. 37On page four of the report, Mr John Bell, the Probation and Parole Officer who was the author of the report, records this: "Mr Sutton described the actual victim in unflattering terms and had nothing positive to say about him. He said his only mistake lay in allowing such a 'grub' into his life. He expressed some sympathy for the victim's partner and child." 38Mr Sutton contends in his submissions that he did not use the description " grub " to Mr Bell when he was describing the victim of his current offence. 39It is unnecessary for me to resolve the issue of whether or not Mr Sutton used the term because there is nothing about the contents of this extract that can be discerned as forming the basis for the Authority's decision. In other words, it is not demonstrated that this is a matter in which a direction can be given. 40On page five, Mr Bell records this: "He admitted to some cannabis use during his last period of parole however it was not identified as a factor in his offending behaviour." 41Mr Sutton submits that he did not say to Mr Bell that he had used cannabis and submitted that the fact was he had not used cannabis. 42Again, it is unnecessary for me to resolve this issue because the Authority did not use that statement, or the fact of cannabis use by Mr Sutton during his last period of parole as the basis for any decision which it made. 43On page six, Mr Sutton complains that the following entry "RISK OF REOFFENDING Administration of Instruments. The LSI-R (Level of Service Inventory - Revised) risk assessment instrument was administered to Mr Sutton in February 2010, recording a raw score of 42/54 (High)." is false because no risk assessment instrument was administered to him in February 2010 nor at any other time. 44Annexure H to Mr Robert Cosman's affidavit, which was read in these proceedings, is a series of case note reports obtained from the NSW Department of Corrective Services. These case note reports were not before the Parole Authority. 45One case note report, dated 1 February 2010, is said to describe an LSIR/CP interview of that day. It is an extensive note completed by the staff member. The note does not record that this or any other test was administered during the interview. 46On the contrary, it says this: "NB: I was somewhat distracted by inmate's resistance and disdain for current legal system and forgot to complete recent OIDF. However, it is likely that he would not have cooperated with interview (as has happened in the past). Given his presentation, I have partially completed OIDF based on info in his case history file such as recent psych report (Sept 09)." 47On the following day, 2 February 2010, a further note appears. It says: "Discussion with DM ... regarding case note 1/2/2010. She advised to complete LSIR/CP as info in case history and as long as it adequately reflects his level of risk." 48On 18 February 2010, a further case note appears apparently completed by a different staff member from the first two case notes. This note includes the following remarks: "Unable to vet LSI-R, as OIDF is incomplete ... File has been handed to supervising PPO to complete OIDF before vetting." 49The combination of these notes demonstrate clearly that the statement in Mr Bell's Report that the LSI-R Risk Assessment Instrument was " administered " to Mr Sutton is misleading, if what it intended to convey was that the administration of the instrument was done personally during the interview. What in fact occurred was that the instrument was not administered personally to him but rather information gathered in part from the interview and in part from his file, was combined in an unidentified way, to form the basis of the assessment. 50Neither the Parole Authority at the hearing, nor this Court on Mr Sutton's application, was given the actual assessment form. It is not possible, in the absence of that form, or some evidence about its content, to form any view about whether personal administration was a necessary, let alone essential, part of reaching the score recorded. 51In the absence of any evidence about whether personal administration, as opposed to calculation of a score based upon objectively ascertainable facts was a necessary or integral part of the assessment process, I cannot conclude that this " misleading " statement was in any way relevant to, let alone that it formed, the basis for the Authority's determination. 52Whilst the risk of re-offending was one of the matters to which the Parole Authority had regard in deciding against the release of Mr Sutton, the form of the Parole Authority's decision does not clearly identify what information that conclusion was based upon. There was clearly much material available to the Authority upon which to come to that conclusion. In those circumstances, I would not be prepared to conclude that such information as formed the basis of the Authority's decision, was misleading. 53Mr Sutton raised a number of other complaints about the contents of this report including that he had not expressed any interest in the Restorative Justice Program, that his employment history was incorrect and that he had failed to initiate an assessment by a psychologist. 54I am not satisfied that to the extent that these matters are reported, they are in error and that falsity has been demonstrated by compelling evidence. The comments made in the report are, in any event, not relevant to the basis for the Parole Authority's decision. Irrelevant material 55Mr Sutton submitted that the Parole Authority had relied upon irrelevant material. The Parole Authority's decisions includes reference to Mr Sutton's limited participation in relevant programs and the fact that he needed to address his offending behaviour by participating in therapeutic programs which addressed violence, alcohol and other drug problems. 56Mr Sutton submitted, at length, that this material was irrelevant because he had been prevented from undertaking those programs by one or more factors, including the lack of availability of the programs, the timing of the programs being unsuitable having regard to his earliest release date from custody, the fact that entry into the programs was dependant upon a referral from a psychologist and he was not able to organise such a referral and, lastly, that his classification within the prison system meant that he was confined in institutions where the courses were not readily available, particularly for prisoners of his classification. 57I do not think that these submissions demonstrate that the information is not relevant. What is clearly relevant to a decision on parole is not why Mr Sutton did not do the courses but rather that he had not done them. From the point of view of the Parole Authority, which is considering whether it is appropriate in the public interest to release Mr Sutton on parole, it is entitled to have regard to the completed courses which may assist in his rehabilitation into the community. The fact is, and remains, that he has not completed the various courses. That was a relevant matter for the Parole Authority to have regard. It did so in a wholly unexceptional way. Conclusion 58I am not satisfied that in any respect the information before the State Parole Authority was false or misleading, in a way which satisfies the legal principles applicable to applications under s 155 of the Crimes (Administration of sentences) Act . Orders (a)The application filed 17 February 2011 for directions pursuant to s 155 of the Crimes (Administration of Sentences) Act 1999 is dismissed.