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Court of Criminal Appeal 12 March 2002

Brett Stuart Radford v Parole Board

[2002] NSWCCA 70

Sexual offencesPublic order & justice offences
REVOCATION OF PAROLE

Citation: Brett Stuart Radford v Parole Board [2002] NSWCCA 70
Court: Court of Criminal Appeal, New South Wales
Date: 12 March 2002
Judge(s): Buddin J (primary judgment); Heydon JA and Dunford J (agreeing)

Background

The applicant had been sentenced in 1997 to five years imprisonment for a serious sexual assault committed in Tumut. He became eligible for parole in December 2000 and was released despite earlier reservations from the Parole Board and a parole unit manager about his readiness to reintegrate into the community.

Shortly after release, in February 2001, an incident occurred during a contact visit with the applicant's young daughter. The child alleged the applicant had attempted to pull down her pants during a walk. The applicant was subsequently charged with aggravated indecent assault on a person under 16, though that charge was later withdrawn. A separate "peep and pry" charge was also laid, and the applicant made an inculpatory statement to his supervising parole officer in connection with those circumstances.

Following these events, the Parole Board revoked the applicant's parole. The applicant sought review in the Court of Criminal Appeal, arguing the Board's decision to revoke parole was based on false, misleading or irrelevant information.

  • Whether the Parole Board's decision to revoke parole was based on "false, misleading or irrelevant information" within the meaning of s 155 of the Crimes (Administration of Sentences) Act 1999
  • Whether the Board's consideration of the withdrawn aggravated indecent assault charge constituted reliance on irrelevant information
  • Whether there was "sufficient evidence to support the application" so as to permit the Court of Criminal Appeal to consider it under s 155(3)

Decision

The Court refused the application on the basis that there was insufficient evidence to support it, as required by s 155(3) before the Court of Criminal Appeal can proceed to consider a s 155 application at all.

On the withdrawn charge, the applicant's counsel argued that the Board had continued to question the applicant about those allegations even after they were withdrawn. The Court examined the transcript of the Board hearing and found that the relevant exchange, read in context, did not demonstrate reliance on irrelevant information. The Board's chairman had expressly acknowledged that conduct falling short of a prosecutable standard could still be relevant, given the applicant's particular background and history as a sex offender.

The Court also noted that the revocation of parole had not in fact been triggered by the charge of aggravated indecent assault, which had been laid months earlier without prompting revocation at that time. Revocation came only after the Board became aware of the circumstances surrounding the peep and pry charge, including the applicant's own inculpatory statement to his supervising officer. This sequencing supported the inference that the withdrawn charge was not the critical factor in the Board's decision.

Because the Court found insufficient evidence to support the application, it did not go on to determine whether the application also constituted an abuse of process.

Orders Made

  • Application refused.

Key Takeaways

  • Under s 155(3) of the Crimes (Administration of Sentences) Act 1999, the Court of Criminal Appeal will only consider an application challenging a parole decision if it is satisfied both that the application is not an abuse of process and that there appears to be sufficient evidence to support it. Both conditions are threshold requirements.
  • A Parole Board is not confined to conduct that has resulted in a prosecution when reviewing a parolee's suitability for continued release. Conduct that falls short of a prosecutable standard may still be relevant, particularly where the parolee has a background involving relevant prior offending.
  • No error was established merely because a Board raised questions touching on a withdrawn charge during a hearing. The transcript in this case, read in context, showed the Board was exercising a legitimate inquiry into the parolee's conduct rather than relying improperly on the fact of the withdrawn charge itself.
  • The chronology of events can be significant in assessing what information actually drove a Board's decision. Here, the timing of revocation pointed clearly to the peep and pry circumstances and the applicant's inculpatory statement, not the earlier withdrawn charge.
  • Refusing the application made it unnecessary to resolve the abuse of process question, illustrating that the two s 155(3) conditions are independently capable of defeating an application.

Legislation and Cases Referenced

Legislation:
- Crimes (Administration of Sentences) Act 1999 (NSW), s 155
- Crimes Act 1900 (NSW), s 61M(1)
- Sentencing Act (NSW) (repealed)

Cases:
- McCamley v Offenders Review Board (NSWCCA, 9 February 1994, unreported)