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. The statutory framework 1. Part 6 of the Act deals with "Parole". Section 126 provides that "Offenders may be released on parole in accordance with this Part." Section 132 confirms that the offender's sentence continues to run while the offender is on parole. Division 2 of Part 6 deals with "Parole orders for sentences of more than 3 years". Section 135(1) provides that the Authority must not make a parole order unless satisfied that the release of the offender is appropriate in the public interest. Section 135(2) sets out criteria to which the Authority must have regard when considering whether it is so satisfied, including the following: (a) the need to protect the safety of the community, (b) the need to maintain public confidence in the administration of justice, (c) the nature and circumstances of the offence to which the offender's sentence relates, (d) any relevant comments made by the sentencing court, (e) the offender's criminal history, (f) the likelihood of the offender being able to adapt to normal lawful community life, (g) the likely effect on any victim of the offender, and on any such victim's family, of the offender being released on parole, (h) any report in relation to the granting of parole to the offender that has been prepared by or on behalf of the Probation and Parole Service, as referred to in section 135A, (i) any other report in relation to the granting of parole to the offender that has been prepared by or on behalf of the Review Council, the Commissioner or any other authority of the State, …" 1. Section 135(3) of the Act provides that, except in "exceptional circumstances", the Authority must not make a parole order for a serious offender unless the Serious Offenders Review Council (SORC) advises that it is appropriate for the offender to be considered for release on parole. The term "serious offender" is defined by s 3(1) of the Act to include offenders (such as the applicant) who have been convicted of murder or who are serving a life sentence. Section 135A sets out the matters to be addressed in a report by the Probation and Parole Service for the purposes of s 135(2)(h), including the likelihood of the offender being able to adapt to normal lawful community life (s 135A(a)); the risk of the offender re-offending while on release on parole, and the measures to be taken to reduce that risk (s 135A(b)); the offender's attitude to the offence to which his or her sentence relates (s 135A(d)); the offender's willingness to participate in rehabilitation programs, and the success or otherwise of his or her participation in such programs (s 135A(e)). 2. Subdivision 3 of Division 2 of Part 6 deals with "Serious offenders". Section 143 provides that, except as otherwise provided, the Authority must consider the question of parole at least 60 days before the date on which the offender first becomes eligible for release on parole (the "parole eligibility date"). The applicant first became eligible for parole on 4 April 2010. 3. Section 143A deals with consideration of parole in subsequent years and provides: 143A Consideration of parole in subsequent years (1) At any time within 90 days before an offender's annual review date, the offender, if still eligible for release on parole, may apply to be released on parole. (1A) For the purposes of this section, an offender's annual review date occurs on each anniversary of the offender's parole eligibility date. (2) After receiving such an application, but not more than 60 days before the offender's annual review date, the Parole Authority must consider whether or not the offender should be released on parole. (3) Despite subsection (2): … (c) in any case, the Parole Authority may decline to consider an offender's case for up to 3 years at a time after it last considered the grant of parole to the offender. 1. Section 144 provides: Formulation of Parole Authority's initial intention On or immediately after giving its preliminary consideration as to whether or not a serious offender should be released on parole, the Parole Authority must formulate and record its initial intention either: (a) to make a parole order in relation to the offender, or (b) not to make such a parole order. 1. Section 146 provides for notice to be given to a serious offender of the Authority's intention to refuse parole. Section 148 provides for the principles on which the Authority's final decision is to be made. 2. Section 155 of the Act relevantly 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). 1. Section 155 does not provide a form of appeal from a decision refusing parole. The Court, in exercising its jurisdiction under s 155, does not concern itself with the merits of a decision or with the weight to be placed on the factors the Authority has to consider in arriving at its decision: S v New South Wales Parole Authority [2007] NSWSC 1287 at [9], [15] per Barr J. Before a direction can be made under s 155, information must be identified that is false, misleading or irrelevant and, it must be shown that the decision was based on that information: R v Naudi [2003] NSWCCA 160 per Simpson J at [19] (Hodgson JA and James J agreeing). Background facts 1. The applicant is presently in custody in Bathurst Correctional Centre, serving a life sentence for murder with a non-parole period of 13 years, which commenced on 4 April 1997. He committed the offence on 1 February 1997, with another offender, Juma. The victim resided at a flat near the home of a woman whom the applicant and Juma were visiting. The applicant used a knife to gash the victim's stomach, cut his penis, stab his scrotum, and cut him across his throat. 2. In the sentencing remarks delivered on 25 November 1998, MacKenzie J described the offence as a "brutal and terrible crime" and the savagery of the attack as "beyond comprehension". His Honour said: "Because of the horrific nature of the crime, when the authorities come to consider your case, many years from now, I hope that they make absolutely certain that neither of you is a danger to the public before any decision is made that you be released into the community." 1. The applicant's appeals against conviction and sentence were dismissed on 16 July 1999: The Queen v Cumberworth [1999] QCA 249. In June 2006, after a period of custody in Queensland, he was transferred to New South Wales in order to be closer to his family. 2. The applicant first became eligible for parole on 4 April 2010. As he was convicted of murder and was serving a sentence for life he was a "serious offender". At no time has SORC advised the Authority that it is appropriate for the applicant to be released on parole. 3. The applicant's first application for parole was refused, as were further applications made between 2010 and 2013. On 22 May 2014 the applicant notified the Authority that he was seeking consideration for parole for possible release in 2014. On 6 June 2014 the Authority published a notice indicating that his parole application would be considered on 31 July 2014 and stating that reports (from Community Corrections and SORC) were required by 21 July 2014. On 31 July 2014, as required by ss 143C and 144 of the Act, the Authority met to give preliminary consideration to the application. 4. The documents which the Authority had before it on 31 July 2014 included the applicant's criminal history in New South Wales, Queensland and Western Australia, MacKenzie J's sentencing remarks and the Queensland Court of Appeal judgment, various reports from psychologists, reports from Community Corrections (Probation & Parole Service), correspondence from the applicant, and reports from SORC. Neither SORC nor Community Corrections supported his release on parole. The SORC report dated 8 July 2014 contained the following passage: "Council notes the report dated 27 June 2014 from Senior Community Correctional Officer, Cheryl Robinson and agrees that the inmate requires a period of time in various external leave programs and further agrees that the inmate's participation in the VOTP program and willingness to participate in the Weekend Leave program has oscillated. Council has a further concern raised in a report dated 4 June 2014 from June Wong, Psychologist, VOTP, in her VOTP treatment report, that where the offender acknowledges his mental health issues and says he is compliant with his medication, a urinalysis test made while on the program did not detect the presence of such medication. Council advises that until the issues of the external leave programs are resolved it is not appropriate to grant parole." 1. The Authority formed an initial intention to refuse parole. It notified the applicant of its intention. It recorded its reasons as follows: "Needs to further address offending behaviour (General) [needs to complete program(s) that address alcohol and other drugs problems], need for post release plans [structured post release plans in the community], need for post release accommodation [no suitable post release accommodation], needs to participate in the external leave program and SORC advised that it is not appropriate for the offender to be considered for release on parole." 1. After listing the material the Authority had considered, the notice continued as follows: "Material Facts Offender is now 38 years old and is serving a life sentence for the stabbing and violent murder of a male victim in the company of a co-offender that occurred when he was 19 years old. Started Ngara Nura in January 2012 and was removed 23 July 2012 given disruptive behaviour. Was found unsuitable for the Intensive Drug and Alcohol Treatment Program. Offender completed Getting SMART in 2008 and CALM in 2010. Commenced the Violent Offenders Therapeutic Program (VOTP) in August 2010 and finalised the assessment and readiness phase in December 2010. In January 2012 was discharged from the VOTP given threats he made to the life of an officer and has since been referred to the Serious Offenders Assessment Unit (SOAU). In April 2014, the offender completed the VOTP and has been attending VOTP Maintenance and SMART Recovery. Is purported to be on medication for schizophrenia, however, this is not being found in urinalysis testing. Does not have approved accommodation or post release plans. Consideration of matters in s135 Offender received a life sentence for murder Sentencing judge started, "The injuries which were inflicted on (the victim) were quite horrible and the savagery with which the attack must have been pursued is something that is really beyond comprehension." Sentencing judge stated, "Because of the horrific nature of the crime, when the authorities come to consider your case, many years from now, I hope that they make absolutely certain that neither of you is a danger to the public before any decision is made that you be released to the community". Offender needs to participate in external leave programs to assist with reintegration into the community and develop a structured post release plan upon release. Community Corrections and the Serious Offenders Review Council do not support release to parole at this time. Critical issues SORC have advised that release to parole is not appropriate at this time. Offender needs to work towards reintegration into the community through external leave program and appropriate post release plans. The offender would also benefit from continued attendance at AOD programs. Conclusion Unless the offender can demonstrate that exceptional circumstances exist, the Authority cannot form an intention to grant parole until such time as SORC advise release to parole is appropriate. The offender is currently serving a life sentence for murder and entered custody at a young age. The offender would benefit from continued participation in AOD program and participation in external leave programs." 1. On 14 August 2014 the applicant applied to the Authority for a hearing to review its intention to refuse parole. At its meeting on 28 August 2014 the Authority determined that a review hearing was not warranted, reconsidered its initial intention to refuse parole and determined to refuse parole. In its written Determination of the same date, the Authority said: "The State Parole Authority is not satisfied, on the balance of probabilities, that the release of the offender is appropriate in the public interest." 1. The Notice stated that parole was refused for the reasons as stated on 31 July 2014, which were repeated in the Notice. The Notice further stated that, in deciding that the release of the offender was not appropriate in the public interest, the Authority had regard to the matters then specified in the Notice. These matters were, in substance, the same as those in the Notice set out above. The grounds of the application 1. In support of his application under s 155, the applicant relied on three instances of allegedly misleading information and three instances of allegedly irrelevant information. These will be considered in turn. Alleged misleading information (1): alleged failure to continue VOTP programs 1. The applicant alleged that the Authority was misleading in painting him in an unfavourable light in its Determination of 28 August 2014 by relying on his failure to continue VOTP maintenance programs when his non-attendance was the result of illness and other matters outside his control such as correctional centre operational requirements; and he had undertaken to continue the maintenance program while in the community. 2. The Determination relevantly states: "[The Applicant] Commenced the Violent Offenders Therapeutic Program (VOTP) in August 2010 and finished the assessment and readiness phase in December 2010. In January 2012 was discharged from the VOTP given threats he made to the life of an officer and has since been referred to the Serious Offenders Assessment Unit (SOAU). In April 2014, the offender completed the VOPT and has been attending VOTP Maintenance and Smart Recovery." 1. The Determination not only does not contain the allegedly misleading information, but also it records that the applicant had in fact completed VOPT and had been attending the maintenance program. This ground is not made out. Alleged misleading information (2): alleged lack of completion of an External Leave Program 1. The applicant accepted that he had not completed an External Leave Program but contended that he had been unable to do so because of his security classification. He submitted that he had not been charged with institutional misconduct since 14 January 2014 and that there were no adverse case notes in the Community Corrections pre-release report of 31 July 2014. 2. Whether an applicant for parole has engaged in pre-release leave is relevant to the decision whether to grant parole since it is germane to readiness and suitability for release into the community. The Pre-release report dated 17 July 2014 prepared by Cheryl Robinson of Community Corrections stated: "Given the length of time that Mr Cumberworth has spent in custody to date, Community Corrections considers it imperative that he participate in all aspects of the external leave program, including work release and day/weekend leaves in order to assist him with his long term reintegration." 1. This ground is not made out since no "information" that could be said to be "misleading" has been identified. Alleged misleading information (3): the applicant's removal from the Ngara Nura program 1. The third matter relied on by the applicant is a reference in the Determination, under the sub-heading of 'material facts', to the applicant's removal in 2012 from the Ngara Nura program, which is a custodial-based residential drug and alcohol treatment program. The material fact was that the applicant: "Started Ngara Nura in January 2012 and was removed 23 July 2012 given disruptive behaviour". 1. This fact, which the applicant did not challenge, was established by material that was before the Authority, such as the Pre-release report of Ms Emma Albertini dated 25 January 2013, which stated: "The offender commenced the Ngara Nura program in January 2012, perusal of the Offender Integrated Management System (OIMS) revealed Mr Cumberworth's initial response to the program was considered good, noting a general positive attitude towards the program. However at the beginning of July 2012, there appeared to be a noted decline in the offender's engagement and attitude within the program which coincided with Mr Cumberworth's relapse into drug use. Subsequently he was removed from the program on 23 July 2012." 1. I reject the applicant's contention that, as he had not been required to undertake the program, it was misleading to take into account that he had been removed from it. Moreover, there is no "information" that can properly be said to be "misleading" and, accordingly, the third matter is not a matter that could properly be the subject of a direction under s 155 of the Act. Alleged irrelevant information (1): that the applicant has not provided post-release plans 1. The applicant contended that the fact in the Determination that "post release plans have not been provided by the applicant" was irrelevant since he had previously provided details of post-release accommodation and employment, including employment with a Mr Kevin Sullivan at Adaptable Plant Hire Cronulla which he provided by letter dated 21 July 2009. 2. In its Determination dated 28 August 2014, the Authority referred to the "need for post release plans [structured post release plans in the community], [and the] need for post release accommodation [no suitable post release accommodation]". 3. The Community Corrections report dated 17 July 2014 recorded that the applicant refused to sign a release of information form that would permit its staff to make third party enquiries to verify some of the information reported by the applicant, including in respect of employment and other post-release support. The report referred to earlier contact which had been made with someone whom the applicant had identified as a potential employer and said: "Due to the offender refusing to sign the release of information, it is unknown if indeed this work continues to be available to Mr Cumberworth." 1. The report addressed the extent of the applicant's assistance in the preparation of the report as follows: "During preparation of this report, Mr Cumberworth presented as somewhat disinterested in the process; citing that he had other things he needed to do which included eating his breakfast. His refusal to sign the release of information form, advising that he did not give consent for Community Corrections to make third party enquiries as he was not going to be "trapped" again, has hampered any ability to confirm some of the limited information he provided. His demonstrated [resistance] to engage with Community Corrections is concerning and raises the question about his willingness long term to work with his staff who will be involved in preparing him to return to the community." 1. The report noted that a pre-release home visit (with a view to considering the suitability of proposed post-release accommodation) had not been undertaken "at this juncture as a result of the length of time that he has spent in custody and the previous recommendations by the Authority. It is evident that the offender will need to participate in the external leave program, amongst other things, prior to receiving a positive recommendation towards release to parole." 1. The applicant has not established that there was any such "information" about his post-release plans that was "irrelevant" for the purposes of s 155 or that any such information was (wrongly) acted upon by the Authority. This ground of complaint has not been made out. Alleged irrelevant information (2): failure to test positive for prescribed medication 1. The applicant alleged that the SORC report dated 8 July 2014 described him as failing to test positive for antipsychotic medication that had been prescribed for schizophrenia as follows: "Council has a further concern raised in a report dated 4 June 2014 from June Wong, Psychologist, VOTP, in her VOTP treatment report, that where the offender acknowledges his mental health issues and says he is compliant with his medication, a urinalysis test made while on the program did not detect the presence of such medication." 1. He did not contend that the SORC report (which was supported by the VOTP treatment report) was not accurate in this respect. He emphasised that (as is apparent from the wording of the report) this conclusion was based on a single failed urine test on 10 December 2013. He submitted that this information was irrelevant and that the Authority acted on the basis of it in refusing his application for parole. 2. Whether the applicant was compliant with anti-psychotic medication was plainly relevant to the determination whether parole ought be granted since his underlying condition (schizophrenia) could lead to further offending on release if not adequately controlled by medication. This ground has not been made out. Alleged irrelevant information (3): the applicant's need to address further his offending behaviour 1. The applicant contended that the statement in the Determination that he "needs to further address offending behaviour (General)" was irrelevant. He submitted that the SORC report did not canvas any issues of offensive behaviour and, indeed, contained a reference to an absence of offences in custody. 2. I accept Mr Kell's submission that this ground misapprehended the Authority's remarks. The relevant passage in the following terms referred to the applicant needing further to: "address offending behaviour (General) [needs to complete program(s) that address alcohol and other drug problems]…" 1. I am satisfied that the phrase "offending conduct" was a reference to the murder and other crimes which the applicant had committed before his incarceration and was not intended to include fighting or violence while in custody. The recommendation of the SORC report was that the underlying causes of the offending conduct could be further addressed: for example, by participation, or continued participation, in the VOTP maintenance program and drug and alcohol programs. The extent to which the applicant could properly be regarded as having addressed his offending behaviour was plainly a relevant matter for the Authority to consider. In any event, there was no "information" identified that was "irrelevant" and to which regard was had by the Authority. Accordingly, it is not a matter for a direction under s 155. Section 155(3) considerations 1. Section 153(3) provides that this Court is only to consider an application under s 155 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. In order to determine whether the application is an abuse of process and whether there appears to be sufficient evidence to support it, it has been necessary for me to consider each of the grounds of the application. Although I am persuaded that none of the grounds has been made out and that the application ought be dismissed, I was obliged to consider it because I was satisfied that it was not an abuse of process, although there was insufficient evidence to support it. Orders 1. I make the following order: 1. Application dismissed. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 11 May 2015