Supreme Court New South Wales Medium Neutral Citation: Harrison v NSW State Parole Authority [2019] NSWSC 1783 Hearing dates: 9 December 2019 Date of orders: 13 December 2019 Decision date: 13 December 2019 Jurisdiction: Common Law Before: Lonergan J Decision: (1) The plaintiff's application is dismissed. Catchwords: CRIMINAL LAW – parole – decision of State Parole Authority to refuse parole – whether decision made on basis of false, misleading or irrelevant information – application dismissed Legislation Cited: Crimes (Administration of Sentences) Act 1999 (NSW), s 155 Cases Cited: Clark v NSW State Parole Authority [2011] NSWSC 1220 Galli v NSW State Parole Authority [2006] NSWSC 206 Lee v NSW State Parole Authority [2006] NSWSC 1225 Marlin v NSW State Parole Authority [2009] NSWSC 68 Naden v NSW State Parole Authority [2017] NSWSC 479 Rozynski v Parole Board of NSW [2003] NSWCCA 214 Sutton v NSW State Parole Authority [2011] NSWSC 93 Category: Principal judgment Parties: Phillip Harrison (Plaintiff) NSW State Parole Authority (First Defendant) Attorney General of New South Wales (Second Defendant) Representation: Counsel: Self-represented (Plaintiff) Submitting appearance (First Defendant) J Emmett (Second Defendant) Solicitors: Self-represented (Plaintiff) Crown Solicitor's Office (First Defendant) Crown Solicitor's Office (Second Defendant) File Number(s): 2019/347349 Publication restriction: Nil Judgment 1. The plaintiff has made an application filed on 5 November 2019 for a direction to be given to the NSW State Parole Authority ("the Authority") in relation to a decision it made in September 2019 regarding the plaintiff. He asserts that the decision was made based on information that was false and misleading and that was "used against him" leading to his request for parole being denied and his classification being downgraded. 2. The Attorney General of New South Wales obtained leave to intervene and assist the Court with legal submissions by counsel. The plaintiff appeared for himself by audio-visual link ("AVL"). In his application he requested that he be given leave to appear in person "to explain his case better", but I found his appearance by AVL to be entirely satisfactory and he was able to well articulate the bases for his application. 3. For the reasons that follow, I reject the application as I am not satisfied that there was anything false, misleading or irrelevant regarding the two areas of information upon which the Authority relied which have been called into question by the plaintiff. Background facts 1. The plaintiff is currently serving a sentence of 20 years imprisonment for murder, with a non-parole period of 15 years. The sentence commenced on 10 September 2004 and the non-parole period expired on 9 September 2019. His head sentence will expire on 9 September 2024. 2. On 17 June 2019, the Serious Offenders Review Council ("SORC") provided a report to the Authority, advising that the plaintiff's release to parole was not appropriate. 3. On 11 July 2019 the plaintiff's application for parole was considered by the Authority at a private meeting and the Authority formed an intention to refuse parole. 4. Notification sent on 15 July 2019 by the Secretary of the Authority informed the plaintiff of the Authority's intention to refuse parole. The reasons stated in the notification are: "Need to complete a program to address offending behaviour of violence (not domestically related), poor prison performance — Regression in classification, the offender presents as an unacceptable risk to community safety and SORC does not consider the release of the offender is appropriate — as prescribed by s. 135(5)." 1. There was also a detailed statement of reasons set out in a four page attachment. 2. The plaintiff applied to the Authority for a review hearing. On 29 August 2019, the Authority refused that application, confirming its intention to refuse parole. The reasons stated are: "Need to complete a program to address offending behaviour of violence (not domestically related), poor prison performance — regression in classification, the offender presents as an unacceptable risk to community safety, and [SORC] does not consider the release of the offender is appropriate." Legal principles 1. Counsel for the Attorney General, Mr Emmett, accurately outlined the legal principles in his written submissions at [12]-[14] which have been reproduced below. 2. Section 155 of the Crimes (Administration of Sentences) Act 1999 (NSW) ("CAS Act") provides: (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. The authorities on how applications under s 155 of the CAS Act should be approached were collated and summarised by Garling J in Sutton v NSW State Parole Authority [2011] NSWSC 935 at [9] (adopted in Clark v NSW State Parole Authority [2011] NSWSC 1220 at [8] per Walmsley AJ and Naden v NSW State Parole Authority [2017] NSWSC 479 at [15] per Latham J): a. An application for a direction from this Court to the Authority is not an appeal, or any form of appeal against the decision of the Authority. 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. c. The role of this Court in considering an application of this kind is extremely limited. This Court 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. d. On the hearing of an application, this Court is not concerned with any questions as to the merits on the decision of the Authority, or with what weight the Authority placed on various factors. e. At the hearing of an application, the Court is not concerned with the thought processes of the Authority, or its findings based on the information before it. f. The term "information" 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. 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 1. The power in s 155(2) is to give directions "with respect to the information." In Lee v NSW State Parole Authority [2006] NSWSC 1225 at [11], Johnson J held that section did not permit a direction that the Authority reconsider its decision; see also Naden v NSW State Parole Authority [2017] NSWSC 479. In so holding, Johnson J rejected the approach taken by Adams J in Galli v NSW State Parole Authority [2006] NSWSC 206. The plaintiff's case 1. The plaintiff's application describes the information he seeks to challenge as: "The information around the incident and charge of disobey a direct order which led to my regression of classification and removal from Goulburn CC was false and misleading. This false information was used against me in the decision of my parole. My parole was also denied as it was stated that I had not completed courses. This is false as I have completed a number of courses in custody." 1. In his articulate and clear oral submissions the plaintiff expanded on these grounds. He said that a lot of the charges were taken out of context and have been made worse than what they are. He complained that he did not get a chance to defend a lot of the charges and was placed straight into segregation or was charged without any opportunity to explain. 2. In reply, he questioned how it can be that in 2018 he was progressed to C1 based on his good behaviour, but in 2019 was regressed to A2 based not only on the event in January 2019 but previous alleged bad behaviour in custody. 3. In respect of the courses completed issue, the plaintiff considers that the Authority proceeded on the basis that he has "never done courses". The plaintiff showed me certificates for the EQUIPS aggression program, the EQUIPS addiction program, a statement of attendance and award for continued effort in education sessions in 2010 and a certificate in Access to Work in training in 2010. 4. The plaintiff explained that it was true that he had twice refused attending the Violent Offenders Treatment Program ("VOTP") because it is "too closed in" for him, he gets bad stress, he cannot get his words out and it is "too stressful in the groups". He said that he tried to explain that but felt he was not being listened to. 5. The plaintiff explained further that he was having difficulty understanding "what was going on with all the reading", he would get lost in it and could not understand it properly. He knows this because he was battling to complete the EQUIPS course and had difficulty doing the reading for that. He explained that he was aware that the VOTP course is more intensive and he was concerned he would not be able to cope with it. He explained he has difficulty reading; he can read but it takes a long time and he gets help from people with reading. 6. With respect to the plaintiff's perception that the Authority was given misinformation about the fight in the yard at Goulburn, his written account was placed before the Authority: "I was hit with a gas canister and smoke and was incapacitated. I was asked to get up against the fence, but I was unable to see. I believe the officers became aggressive and swore at me, then I swore back. This escalated, I ended up on the ground. I was then charged and sent to segro. My classo was regressed and I was tipped to Lithgow. This exaggeration has affected my chances of parole and I don't believe this is fair. At the time of this event I was a C1 classo, but had not yet been moved to X-wing and was left in a maximum security area in Goulburn. If I had been moved, I would not have been in this situation." 1. There was no other contrary account before the Authority - for example, by the officer in question. 2. In his oral submissions to this Court, the plaintiff explained that two people were fighting, he had nothing to do with it, tear gas was used and he was shot in the head with it and could not see where the fence was. This is why he could not obey the instruction of the officer. Because of this, the officer swore at him and he swore back and then he was attacked by the officer, on his perception, and "things snowballed from there". No detail was given as to what followed or what behaviours comprised things "snowballing". The plaintiff was sent to segregation after this and his classification was downgraded, on his perception, in direct response to these events. He says that he was bashed in segregation and feels he was unreasonably punished for what was only a disobey direction, in circumstances that he did not create. He specifically denies inciting anyone. 3. The plaintiff also volunteered that he wanted to have a chance to be out of jail and that he had "done the bottom of his sentence", and wanted a chance to get out and see his family, even if he had to go to a Community Offender Support Program ("COSP") Centre to live. 4. With respect to his position about the VOTP, the plaintiff stated that because he has already done the EQUIPS which is a smaller version of the VOTP, it is the same thing and he will not get any benefit out of it; it is not going to help him and so he should not have to do it. Submissions of counsel for the Attorney General 1. Mr Emmett submitted that the information in question could not be considered to be irrelevant, so the issue is whether the information that was before the Authority was false or misleading. I agree with this approach. 2. First, it was noted that the plaintiff's statement setting out what he said happened and the things that he disagreed with was placed before the Authority. The statement of the officer that the plaintiff referred to was not before the Authority, but what was before them was the pre-sentence report and the report of the SORC. 3. In the pre-release report under the heading "Behaviour in custody", the following is stated "Within the past 12 months, charges have been laid for four of the 34 institutional misconduct charges, with the most recent charge occurring at Goulburn Correctional Centre on 13 January 2019 which related to an attempted assault of a correctional officer and inciting other inmates to assist. Mr Harrison was subsequently relocated to segregation from 13 January 2019 to 26 January 2019." 1. On 3 March 2019, the plaintiff was regressed from a C1 minimum security to an A2 maximum security inmate classification as per the SORC and the Assistant Commissioner's recommendation. This was as a result of poor custodial behaviour and the charge occurring on 13 January 2019, resulting in the plaintiff also being relocated to Lithgow Correctional Centre. 2. In the initial report of the SORC dated 17 June 2019 [1] it was noted: "On 13 December 2018 Harrison refused an offer to participate in the VOTP, (Violent Offenders Therapeutic Program) stating "don't want to, there's no reason to". On 9 April 2019 Harrison again refused an offer to participate in the VOTP – no reason given." 1. That same report also notes the programs that the plaintiff had completed. That list included all of the programs that the plaintiff referred to during the hearing of his application, as well as some others. 2. Mr Emmett submitted that the papers show that "clearly, the plaintiff's version of events was before the Authority when the Authority made its decision on 29 August 2019. While this version of events sought to minimise the extent of the plaintiff's wrongdoing, it accepted that the incident occurred and was consistent with the SORC Report's observation that it involved the plaintiff abusing and attempting to assault staff (albeit, he says, in circumstances where he perceived himself as provoked)." [2] Consideration 1. As stated by Greg James J in Rozynski v Parole Board of NSW [2003] NSWCCA 214 at [13], with whom Hodgson JA and Simpson J agreed (and cited with approval by Hislop J in Marlin v NSW State Parole Authority [2009] NSWSC 68 at [12]): "[13] …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. So far as there is a determination of the Board concerning information said to be false or misleading, before the court will so categorise that information, it will be necessary to satisfy the court that the Board's determination was plainly, not just arguably, wrong and further that the information was false or misleading and material to the Board's conclusion." 1. The two issues raised by the plaintiff – the conduct breach in January 2019 and the need to complete a VOTP – cannot be considered to be irrelevant. The question then is whether the plaintiff has established that there was false or misleading information that formed the basis of the Authority's decision. I have concluded that has not been established. 2. From what the plaintiff wrote and in his outline for the Court, he acknowledges that an altercation occurred and he was part of it. His account of it was before the Authority. There is no evidence any "information" was given that could be "false" or "misleading". The plaintiff took exception to the word "incite" but nothing he wrote or said gave me a basis to conclude that the word "incite" was a misleading way to describe parts of the altercation that he agreed occurred. 3. It is clear that the Authority did accurately note the courses the plaintiff had completed, so that ground is not made out. 4. Given those conclusions, there is no requirement for me to examine the reasons why the Authority did not consider release on parole appropriate, or to in any way justify or re-evaluate its decision-making process. Once I have determined that there was no false or misleading information before the Authority, there is no need for any further examination. Orders 1. The plaintiff's application is dismissed. Endnotes 1. At page 16. 2. Second Defendant's Written Submissions at [23]. 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: 13 December 2019