Cumberworth v Parole Authority of NSW [2015] NSWSC 538

Supreme Court New South Wales

Medium Neutral Citation: Cumberworth v Parole Authority of NSW [2015] NSWSC 538 Hearing dates: 6 May 2015 Decision date: 11 May 2015 Jurisdiction: Common Law Before: Adamson J Decision: Application dismissed Catchwords: CRIMINAL LAW – parole – decision of State Parole Authority to refuse parole – whether decision made on basis of false, misleading or irrelevant information – no question of principle – application dismissed Legislation Cited: Crimes (Administration of Sentences) Act 1999 (NSW) Cases Cited: R v Naudi [2003] NSWCCA 160 S v New South Wales Parole Authority [2007] NSWSC 1287 The Queen v Cumberworth [1999] QCA 249 Category: Principal judgment Parties: Nigel Gordon Cumberworth (Applicant) Parole Authority of NSW Representation: Counsel: J Crowley (Applicant) D Kell (Intervener, Attorney General for NSW)

Solicitors: Crown Solicitor: (Attorney-General for NSW) File Number(s): 2014/323230

Judgment

Introduction 1. By application filed on 31 October 2014 Nigel Cumberworth (the applicant) sought that a direction under s 155 of the Crimes (Administration of Sentences) Act 1999 (NSW) (the Act) be given to the respondent, the State Parole Authority (the Authority), that the information on which the Authority based its decision that the applicant should not be released on parole was misleading and irrelevant. No other relief was sought. All references in these reasons to statutory provisions are to the Act unless otherwise indicated. 2. Although the application was directed at the Authority's decision made on 31 July 2014, that 'decision' was the formation of an initial 'intention' to refuse parole. It was common ground that the operative decision to refuse parole was made by the Authority on 28 August 2014. The documentation before the Authority was, on each occasion, substantially the same. 3. A further application was filed in this Court on 17 December 2014. This second application was, in substance, a complaint about the applicant's security classification within the prison system, which is not a matter determined by the Authority and does not fall within s 155. Mr Crowley, who appeared on behalf of the applicant, confirmed that it ought be treated as a submission rather than as a separate application. 4. The Authority has filed a submitting appearance, save as to costs. To ensure that there is a contradictor, the Attorney-General, for whom Mr Kell appeared, was granted leave to intervene in the proceedings. The Attorney-General did not seek costs. 5. Before setting out the background facts and addressing the grounds of the application, I propose to set out the statutory framework and the relevant principles that apply to an application under s 155.