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7
Court of Criminal Appeal 25 November 1999

LMS v Parole Board

[1999] NSWCCA 371

Also reported as 110 A Crim R 172
Other
CRIMINAL LAW SENTENCING ACT S23, LAW REFORM NEEDED

Citation: LMS v Parole Board [1999] NSWCCA 371
Court: Court of Criminal Appeal, New South Wales
Date: 25 November 1999
Judge(s): Stein JA, Hulme J, Greg James J

Background

The applicant was a prisoner who had been refused parole by the Parole Board following a review hearing on 19 July 1999. He was unrepresented, having been unable to obtain legal aid or private assistance. The Court granted him leave to appear in person, consistent with the principles from earlier decisions concerning analogous provisions.

The applicant challenged the Board's decision on the basis that it relied on information that was false, misleading, or irrelevant. Central to his application was a psychiatric report by Dr Blake dated 31 March 1999. That report suggested the applicant had been unwilling to undergo counselling, a characterisation the applicant contested.

The applicant also sought costs, but the Court rejected that application as entirely misconceived and beyond the Court's power to grant.

  • Whether the Court was satisfied, under s 23(2) of the Sentencing Act 1989, that the application was not an abuse of process and that sufficient evidence supported it
  • Whether leave should be granted under s 23(3) for the applicant to appear in person
  • Whether Dr Blake's report of 31 March 1999 was misleading in characterising the applicant's attitude toward counselling
  • What directions, if any, should be given to the Parole Board under s 23(1)

Decision

The Court granted leave to appear in person, having regard to the applicant's inability to obtain legal representation and the volume of material he had submitted. Drawing on McPherson v Offenders Review Board (1991) 23 NSWLR 61 and Schneidas v Jackson (1982) 2 NSWLR 969, the Court confirmed that some explanation for being unrepresented must exist before leave is granted. The circumstances here satisfied that requirement.

The Court reaffirmed the narrow scope of its jurisdiction under s 23. It is not an appeal court reviewing whether the Board's decision was correct or well-reasoned. The Court's only power is to direct the Board as to whether particular information before it was false, misleading, or irrelevant. It does not weigh competing evidence or review the Board's reasoning processes.

On the central question, the Court found that Dr Blake's report was misleading insofar as it suggested the applicant had been unwilling to undergo counselling. The Court directed the Parole Board accordingly. However, noting that the Board had expressed multiple reasons for refusing parole, the Court observed that the applicant might be better served waiting for the Board's next scheduled review rather than seeking an immediate further hearing on this direction alone.

Orders Made

  • The Parole Board is directed that, insofar as Dr Blake's report of 31 March 1999 suggested the applicant had been unwilling to undergo counselling, that report was misleading.
  • Liberty is reserved to the applicant to apply to the Court in the event that no further hearing of the Board is held within a reasonable time.

Key Takeaways

  • The Court of Criminal Appeal confirmed that its jurisdiction under s 23 of the Sentencing Act 1989 is narrowly confined to determining whether information before the Parole Board was false, misleading, or irrelevant. It does not extend to reviewing whether the Board's decision was correct, whether it drew proper inferences, or whether it gave appropriate weight to the material.

  • A prisoner seeking leave to appear in person under s 23(3) must provide some explanation for not being legally represented. Inability to obtain legal aid, confirmed in writing, was sufficient in the circumstances of this case.

  • Where the Parole Board has relied on a report that mischaracterises a prisoner's conduct or attitude, that report may qualify as "misleading" within the meaning of s 23(1), warranting a direction to the Board.

  • The Court added its voice to earlier judicial calls for Parliament to repeal or substantially reform ss 23 and 41 of the Sentencing Act 1989. The Court noted that three Supreme Court judges may be required to examine extensive material to assess whether a single piece of information was misleading, even where that information was not decisive and the Board may reconsider the matter in less time than it takes to bring proceedings in this Court.

  • The absence from the Sentencing Act 1989 of any provision clearly stating the intended effect of directions made under ss 23 and 41 was identified as a further unsatisfactory feature of those provisions.

Legislation and Cases Referenced

Legislation
- Sentencing Act 1989 (NSW), ss 22, 22J, 22K, 23, 41, Schedule 1, cl 11(3), cl 11(5)
- Supreme Court Act 1970 (NSW), s 48(i)(vii)

Cases
- McPherson v Offenders Review Board (1991) 23 NSWLR 61
- Schneidas v Jackson (1982) 2 NSWLR 969
- McCamley v The Offenders Review Board (unreported)
- Whiteley v Offenders Review Board (CCA, unreported, 11 September 1992)