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Court of Criminal Appeal 29 July 2003

ROZYNSKI v. PAROLE BOARD OF NSW

[2003] NSWCCA 214

Public order & justice offences

Citation: Rozynski v Parole Board of NSW [2003] NSWCCA 214
Court: NSW Court of Criminal Appeal
Date: 29 July 2003
Judge(s): Hodgson JA, Simpson J, Greg James J (all agreeing)

Background

The applicant, a prisoner, sought a direction from the Court of Criminal Appeal after the Parole Board of New South Wales refused to release him on parole. He appeared in person, having been unable to secure Legal Aid or a private solicitor while held in isolation. The court granted him leave to appear and address the court on the substance of his application.

The applicant contended that the Board's refusal was based on information that was false, misleading or irrelevant. A central issue was his failure to complete the CUBIT programme (a sex offender rehabilitation course), which the Board regarded as significant. He also raised concerns about alleged inaccuracies in his criminal record, omissions regarding his course participation and employment history, and a disputed account from a parole officer regarding whether he had been wearing sunglasses on particular dates.

This application was heard alongside a similar matter, Naudi v Parole Board of New South Wales [2003] NSWCCA 160, decided shortly beforehand, and Greg James J applied the principles established in that decision.

  • Whether the Parole Board's decision not to release the applicant on parole was based on information that was false, misleading or irrelevant, within the meaning of s 155 of the Crimes (Administration of Sentences) Act 1999
  • Whether the Court of Criminal Appeal had jurisdiction to go beyond that narrow inquiry and conduct a broader review of the Board's decision
  • What evidentiary threshold an applicant must meet to obtain a direction under s 155

Decision

Greg James J, with whom Hodgson JA and Simpson J agreed, confirmed that the court's role under s 155 is strictly confined. The section does not permit the court to act as an appeal from, or a form of judicial review of, the Board's decisions. The court may only direct the Board as to whether particular information before it was false, misleading or irrelevant, and only where that information formed a basis for the Board's decision. Information that is merely incorrect in minor detail, or that was disputed before the Board and resolved against the applicant, does not automatically qualify as false or misleading.

Greg James J set out a substantive threshold for the section to operate: the applicant must satisfy the court, usually with new evidence, that the information was false or misleading in substance and material to the Board's conclusion. Where the Board itself has made a determination about contested information, the court will not characterise that information differently unless satisfied the Board's determination was plainly, not merely arguably, wrong.

Applying those principles, Greg James J found that the Board's conclusion that the applicant was unwilling to complete the CUBIT programme and had provided an inadequate explanation was open to it on the material before it. The parole officer's account about the sunglasses, while the court was not prepared to accept its accuracy, was not a matter upon which the Board's decision rested, and it was not capable of rendering the broader body of material false or misleading. Similarly, alleged inaccuracies in the criminal record and omissions regarding courses and work history did not, in the court's assessment, amount to false or misleading material upon which the refusal was based.

The court also reiterated the concerns expressed in Naudi about the limited practical utility of s 155, with Greg James J again drawing the legislature's attention to the history of the provision and questioning whether it merited reconsideration.

Orders Made

  • Application dismissed.

Key Takeaways

  • The Court of Criminal Appeal's jurisdiction under s 155 of the Crimes (Administration of Sentences) Act 1999 is narrowly confined to determining whether information before the Parole Board was false, misleading or irrelevant and material to its decision. It does not operate as an appeal or judicial review of Board decisions.
  • A high threshold applies: information that is merely challenged, disputed before the Board, or inaccurate in minor detail does not meet the standard. The court requires evidence that the information was false or misleading in substance and that any prior Board determination on the point was plainly wrong.
  • Where an applicant appears unrepresented, the court may grant leave to appear under s 157(1), but the absence of contradicting evidence before the court remains a practical difficulty for the applicant.
  • In dismissing the application, the court found that the Board's conclusions about the applicant's failure to complete the CUBIT programme were open on the available material, and that peripheral inaccuracies did not undermine the substance of the information on which the Board relied.
  • The Court of Criminal Appeal repeated earlier judicial criticism of s 155 as a provision of limited practical value, and Greg James J again invited legislators to reconsider whether the section should remain in force.

Legislation and Cases Referenced

Legislation
- Crimes (Administration of Sentences) Act 1999 (NSW), s 155, s 157(1)
- Crimes (Sentencing Procedure) Act 1999 (NSW)

Cases
- Naudi v Parole Board of New South Wales [2003] NSWCCA 160
- McPherson v Offenders Review Board (1991) 23 NSWLR 61
- LMS v Parole Board [1999] NSWCCA 371
- Rozynski [2001] NSWCCA 257