Clark v State Parole Authority of New South Wales and Anor [2011] NSWSC 1220

Supreme Court New South Wales

Medium Neutral Citation: Clark v State Parole Authority of New South Wales and Anor [2011] NSWSC 1220 Hearing dates: 20 September 2011 Decision date: 14 October 2011 Jurisdiction: Common Law Before: Walmsley AJ Decision: Direction to be given to the first respondent. Catchwords: Serious offender - Misleading information acted on by State Parole Authority when refusing parole - Direction given to Authority Legislation Cited: Crimes (Administration of Sentences) Act 1999 Cases Cited: DCU v State Parole Authority of New South Wales [2006] NSWSC 526 McCallum v Parole Board of NSW [2003] NSWCCA 294 McPherson v Offenders Review Board (1991) 23 NSWLR 61 Rozynski v Parole Board of New South Wales [2003] NSWCCA 214 Sutton v New South Wales Parole Board [2011] NSWSC 935 Category: Principal judgment Parties: Wayne Scott Clark (Applicant) State Parole Authority of New South Wales (First respondent) Attorney General of New South Wales (Second respondent) Representation: P Segal (Applicant) A C Johnson (Second respondent) In person (Applicant) I V Knight, Crown Solicitor (Respondents) File Number(s): 2010/410464

Judgment

The Background 1Section 183 of the Crimes (Administration of Sentences) Act 1999 (the Act) created a body called the State Parole Authority (the Authority). The Authority has functions which include granting parole to criminal offenders who are subject to a sentence of imprisonment, and deciding on the conditions on which parole is to be granted. 2By section 195 of the Act, another body, called the Serious Offenders Review Council, (SORC) was created. Its functions include providing reports and advice to the Authority about the release on parole of serious offenders. 3By section 185 of the Act, the Authority in exercising its functions "in respect of which...[SORC]...has furnished advice...must have regard...to that advice..." Section 135(2)(i) also contains this obligation. Further, if SORC advises it is not appropriate for an offender to be considered for release to parole, section 135 (3) of the Act provides that a parole order must not be made save in "exceptional circumstances". 4Section 155 of the Act provides: 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 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). 5The applicant is a serious offender whom the Authority on 31 March 2010 and again on 10 February 2011, decided should not be released to parole. He has brought this application under section 155(1)(b). He alleges each of the Authority's decisions was made on the basis of false, misleading or irrelevant information. He has, accordingly, applied for a direction to be given to the Authority as to whether that information was false, misleading or irrelevant. 6The Authority has filed a submitting appearance. The Attorney General of New South Wales was joined as second respondent and has appeared as the contradictor.