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Court of Criminal Appeal 4 September 2001

Townsend v Parole Board

[2001] NSWCCA 379

Theft & property
ROBBERY ABUSE OF PROCESS CONDITIONS OF PAROLE ORDER

Citation: Townsend v Parole Board [2001] NSWCCA 379
Court: Court of Criminal Appeal, New South Wales
Date: 4 September 2001
Judge(s): Hodgson JA; Dowd J; Carruthers AJ

Background

The applicant was serving concurrent three-year sentences for robbery and demanding money with menaces, with sentences backdated to commence on 24 December 1999. When imposing the sentences, the sentencing judge directed that the applicant be released under Probation Service supervision and required to undertake psychiatric, psychological and vocational counselling.

The applicant was released on parole on 3 February 2001. He acknowledged the terms and conditions of that release by signing the parole order. He reported as required on two occasions but then failed to report and was found not to be residing at his recorded address.

The Parole Board revoked the parole order on 27 March 2001 for breach of conditions. At a subsequent review hearing, the applicant's solicitor admitted the breaches. The applicant then sought a direction from the Court of Criminal Appeal, arguing that the Parole Board had been given misleading information, specifically that his original parole was unconditional.

  • Whether the information provided to the Parole Board was false, misleading or irrelevant within the meaning of section 176 of the Crimes (Administration of Sentences) Act 1999
  • Whether the application met the threshold requirement under section 176(3) of that Act, namely that it was not an abuse of process and that there appeared to be sufficient evidence to support it

Decision

The Court identified at the outset that its function under section 176 is strictly limited. The sole question it may examine is whether the information placed before the Parole Board was false, misleading or irrelevant. It cannot, for example, assist an applicant in obtaining treatment or otherwise exercise a broader supervisory role over the Board.

Dowd J, delivering the primary judgment, found that the threshold condition in section 176(3) was not satisfied. The applicant's central contention was that his parole had been imposed unconditionally, yet the sentencing judge's remarks on sentence made clear that conditions had in fact been imposed. The applicant's own solicitor had conceded this before the Parole Board.

Because the Court could not be satisfied that the application was not an abuse of process, and because there was insufficient evidence to support it, the application was dismissed without the Court proceeding to examine the merits. Hodgson JA agreed, and added a brief observation that the applicant appeared to have difficulty understanding the conditions applying to his parole, and that representation at the forthcoming Parole Board hearing would be desirable both for the applicant and for the Board.

Orders Made

  • Application dismissed pursuant to section 176(3) of the Crimes (Administration of Sentences) Act 1999

Key Takeaways

  • Under section 176 of the Crimes (Administration of Sentences) Act 1999, the Court of Criminal Appeal's role in parole applications is confined to assessing whether information provided to the Parole Board was false, misleading or irrelevant; it does not extend to broader supervisory functions.
  • A threshold test applies before any such application can proceed: the court must be satisfied that the application is not an abuse of process and that there appears to be sufficient evidence to support it.
  • Where an applicant's own legal representative has conceded the relevant breach before the Parole Board, and the sentencing judge's remarks on sentence contradict the applicant's factual claims, the threshold test under section 176(3) is unlikely to be met.
  • In dismissing this application, the Court confirmed the approach taken in LMS v Parole Board (1999) and McCamley v Offenders Review Board (1994), that the section 176 jurisdiction is narrow and does not permit the court to substitute its own assessment of an offender's needs.
  • Hodgson JA's observation that representation at a forthcoming Board hearing would be desirable for an applicant who had difficulty understanding his parole conditions does not form part of any order but reflects the Court's recognition of the Board's role as the appropriate forum for addressing such matters.

Legislation and Cases Referenced

Legislation
- Crimes (Administration of Sentences) Act 1999 (NSW), ss 126, 174, 176
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 51

Cases
- LMS v Parole Board (1999) 110 A Crim R 172
- McCamley v Offenders Review Board (Unreported, NSWCCA, 9 February 1994)