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Court of Criminal Appeal 27 October 2003

McCallum v Parole Board of NSW

[2003] NSWCCA 294

Sexual offencesTheft & propertyPublic order & justice offences

Citation: McCallum v Parole Board of NSW [2003] NSWCCA 294
Court: Court of Criminal Appeal, New South Wales
Date: 27 October 2003
Judge(s): Hidden J, Greg James J, Smart AJ

Background

The applicant had been convicted in 1993 on six serious sexual offence charges, receiving concurrent fixed terms of seven years each, expiring on 30 April 2000. At the conclusion of that trial, he also pleaded guilty to armed robbery and armed assault with intent to rob, committed on consecutive days in April and May 1993. Those robbery sentences were cumulative on the sexual offence sentences, meaning he became eligible for parole on the robbery sentences from 29 April 2003.

Throughout his imprisonment, the applicant maintained his innocence of the sexual offences. He refused to engage with counselling programmes directed at his offending behaviour in relation to those charges, on the basis that doing so would require him to falsely admit guilt. The Parole Board declined to release him on parole, taking into account that he had not sufficiently addressed his offending behaviour in relation to the sexual offences.

The applicant brought an application under s 155 of the Crimes (Administration of Sentences) Act 1999 seeking a direction from the Court of Criminal Appeal that it was irrelevant for the Board to consider his failure to address the sexual offending behaviour when determining parole for the robbery sentences, since the sexual offence sentences had already been served.

  • Whether the Parole Board was entitled to take into account an applicant's failure to address behaviour related to completed sentences when assessing parole for later, still-current sentences.
  • Whether the structure of the cumulative sentences meant the applicant's parole period related solely to the robbery convictions, thereby rendering the sexual offence history irrelevant to the parole assessment.
  • Whether the Court of Criminal Appeal has jurisdiction under s 155 to review the merits of a Parole Board decision.

Decision

Smart AJ (with Greg James J agreeing) held that the Board had not taken irrelevant information into account. An earlier Supreme Court determination by Sully J, never appealed, had established that the applicant's four-year parole period was fixed in relation to the totality of all eight sentences, not solely the robbery offences. The cumulative structure of the sentences meant the parole period reflected the full scope of the applicant's criminality.

Even if that earlier characterisation were incorrect, Smart AJ found that s 135 of the Crimes (Administration of Sentences) Act 1999 independently required the Board to take the matters in question into account. That provision mandates broad consideration of factors relevant to community safety and the likelihood of reoffending, and the Board's examination of the applicant's attitude toward his sexual offending fell squarely within it.

The Court reiterated that it has no power under s 155 to review the merits of a Parole Board decision. The section's only function is to permit the Court to consider whether the Board has taken irrelevant information into account. The Court expressly declined to express any view on whether the Board's ultimate decision to refuse parole was correct.

Greg James J noted, as the Court had done in earlier decisions, that s 155 creates a misleading impression among prisoners that the Court can review parole refusals on their merits. He again urged the legislature to reconsider whether the section should remain in force.

Orders Made

  • Application dismissed.

Key Takeaways

  • Under s 155 of the Crimes (Administration of Sentences) Act 1999, the Court of Criminal Appeal's role is strictly confined to assessing whether the Parole Board took irrelevant information into account; it has no jurisdiction to review the merits of a parole refusal.
  • Where cumulative sentences have been structured so that a single parole period reflects the totality of an offender's criminality, the Board may consider behaviour and attitudes connected to convictions whose custodial terms have already been served.
  • Section 135 of the Crimes (Administration of Sentences) Act 1999 requires the Board to consider a broad range of matters when assessing parole; an applicant's failure to address serious offending behaviour falls within that scope even where those offences are no longer the subject of a current custodial sentence.
  • The Court acknowledged the genuine difficulty posed when an offender maintains innocence yet the offence in question involves behaviour that specialists consider must be addressed before release, noting the integrity problems that arise if an offender follows counselling programs insincerely.
  • Greg James J renewed a call, previously made in Naudi and Rozynski, for the legislature to reconsider the continued existence of s 155, given that it misleads prisoners into believing they can obtain a merits review of parole decisions in this Court.

Legislation and Cases Referenced

Legislation
- Crimes (Administration of Sentences) Act 1999 (NSW), ss 135, 155
- Sentencing Act 1989 (NSW), ss 5, 6, 12, 14
- Crimes Act 1900 (NSW), ss 61I, 89, 97(1)

Cases
- McCallum v The Commissioner of Corrective Services [2001] NSWSC 208 (Sully J)
- McCallum v The Commissioner of Corrective Services (2002) 129 A Crim R 590 (Burchett AJ)
- Regina v Naudi [2003] NSWCCA 160
- Rozynski v Parole Board of New South Wales [2003] NSWCCA 214