Citation: Parole Board of NSW v Lo [2005] NSWCCA 108
Court: NSW Court of Criminal Appeal
Date: 16 March 2005
Judge(s): Wood CJ at CL; Adams J; Bell J
Background
The applicant was serving a sentence of three years and four months imprisonment with a non-parole period of two years and two months. The Parole Board initially determined in December 2003, confirmed in February 2004, that he should not be released on parole. The Board cited a range of concerns including risk of reoffending, poor prison performance, failure to engage in rehabilitation programs, and an adverse psychological report that placed him in the "high risk/needs category" with a 99.2% chance of recidivism within one year of release.
The applicant sought a direction from the Court of Criminal Appeal under s 155 of the Crimes (Administration of Sentences) Act 1999. He argued that the psychological report on which the Board relied was "false and misleading." His core objection was that the psychologist's risk assessment was wrong because, based on his own knowledge of his character, he intended to remain law-abiding upon release.
Legal Issues
- Whether the psychological report relied on by the Parole Board contained information that was false or misleading so as to warrant a direction under s 155 of the Crimes (Administration of Sentences) Act 1999
- Whether the application was still capable of being considered by the Court given that a subsequent Parole Board decision had been made after the application was filed
Decision
Adams J (with whom Wood CJ at CL and Bell J agreed) dismissed the application on both the merits and procedural grounds.
On the merits, the court found that the applicant's criticisms of the psychological report did not disclose any error in the report itself. His objection amounted to a preference for his own self-assessment over the psychologist's professional judgment. A disagreement with an expert's opinion, grounded only in the subject's personal view of his own character, does not render that opinion false or misleading, and does not mean the Board was not entitled to rely on it.
On the procedural issue, the court found the application could not be entertained in any event. The Parole Board had made a further determination on or about 26 November 2004, which superseded the February 2004 decision under challenge. The original decision was no longer of any effect, and no application had been brought in relation to the later determination. There was therefore nothing left for the Court to direct.
Adams J also observed that it was "most regrettable" that the Board's legal representatives had not informed the Court of the supervening decision while the application remained outstanding before the Court.
Orders Made
- Application dismissed
Key Takeaways
- A mere dispute between an applicant and a psychologist over the psychologist's professional opinion does not establish that the information was "false and misleading" for the purposes of a direction application under s 155 of the Crimes (Administration of Sentences) Act 1999.
- An applicant's reliance on their own self-assessment of future behaviour does not undermine or invalidate a contrary expert risk assessment, nor does it deprive the Parole Board of the entitlement to rely on that assessment.
- Where a subsequent Parole Board decision supersedes the original decision under challenge, the earlier decision ceases to have effect and the Court of Criminal Appeal cannot grant a direction in respect of it.
- The Court of Criminal Appeal signalled that the Parole Board carries a responsibility to notify the court promptly of any supervening parole determination made while a s 155 direction application remains on foot.
- In dismissing the application, the court applied both substantive and procedural grounds independently, each of which was sufficient on its own to dispose of the matter.
Legislation and Cases Referenced
Legislation:
- Crimes (Administration of Sentences) Act 1999 (NSW), s 155
Cases cited: No cases were cited in the judgment.