Citation: Whalan v Parole Board of NSW [2005] NSWCCA 445
Court: Court of Criminal Appeal
Date: 15 December 2005
Judge(s): Simpson J (with Grove J and James J agreeing)
Background
The applicant, a sentenced offender, had his parole application refused by the Parole Board of NSW on 30 June 2005. He had been convicted in the District Court of stealing from the person and robbery, and became eligible for parole at the expiry of his two-year non-parole period. Probation and Parole Service reports did not support his release, and the Board cited risk of re-offending, past parole failures, a need to address alcohol and other drug (AOD) offending behaviour, and the absence of a structured post-release plan as reasons for refusal.
Acting without legal representation, the applicant sought a direction from the Court of Criminal Appeal under s 155 of the Crimes (Administration of Sentences) Act 1999. He contended that the Board's refusal was based on false, misleading, or irrelevant information, including allegations of stand-over behaviour against other inmates and a finding that he had not addressed his AOD offending behaviour.
Legal Issues
- Whether the application met the threshold requirements under s 155(3): that it was not an abuse of process and that there appeared to be sufficient evidence to support it.
- Whether the Board's stated reason that the applicant needed "to address offending behaviour (AOD)" was factually incorrect, given evidence that he had completed an AOD awareness course.
- Whether allegations of stand-over behaviour in the Probation and Parole report constituted false information on which the Board's decision was based.
- Whether this Court had power to grant any effective remedy under s 155 in the circumstances.
Decision
Simpson J identified a factually incorrect finding in the Board's reasons. A certificate of achievement for an AOD awareness course, dated 20 February 2005, had been placed before the Board and the applicant had given evidence about it. The Board's stated reason that the applicant needed "to address offending behaviour (AOD)" was therefore unsupported, and the Court considered this demonstrated a factually incorrect finding by the Board.
However, that finding alone could not save the application. Section 155 permits the Court to give a direction only that a decision was made on the basis of false, misleading, or irrelevant information. Even accepting the AOD finding was incorrect, the Board had multiple other stated reasons for its refusal. The Court could not conclude, on the material before it, that the decision as a whole was based on that false information.
On the stand-over allegations, the Probation and Parole officer had carefully recorded that these remained unproven allegations and noted no correctional charges had been laid. Critically, the Board's own reasons made no reference to those allegations. The Court found it was not possible to conclude the Board had relied on them, and therefore no direction could be given on that basis.
The Court reiterated a concern expressed in several prior decisions: s 155 confers very limited jurisdiction, and the Court has no power to review the merits of a parole decision or to grant relief simply because an applicant has been dealt with unfairly. Grove J also noted that the Board's brief and sometimes cryptic reasons made the already narrow jurisdiction harder to exercise.
Orders Made
- The application was dismissed.
Key Takeaways
- Under s 155 of the Crimes (Administration of Sentences) Act 1999, a court direction is only available where false, misleading, or irrelevant information forms part of the basis of the Board's decision. It is insufficient that false information was merely placed before the Board.
- A factually incorrect finding by the Parole Board does not, by itself, ground a direction under s 155 if the Board had multiple independent reasons for its refusal and the court cannot conclude the incorrect finding drove the decision.
- Allegations in a Probation and Parole report that were expressly described as unproven, and which did not appear in the Board's reasons, could not constitute information on which the Board's decision was based.
- The Court of Criminal Appeal again signalled that s 155 confers extremely narrow jurisdiction with no power to review the merits of a parole refusal, and repeated prior calls for urgent legislative reform. Simpson J asked the Crown's representative to convey the Court's views to the relevant legislative body.
- Unrepresented applicants face a compounded disadvantage in s 155 proceedings: the provision is, in the Court's own words, "obscure," and its limited operation frequently misleads offenders into believing the Court can provide a remedy it has no power to grant.
Legislation and Cases Referenced
Legislation:
- Crimes (Administration of Sentences) Act 1999 (NSW), s 155
Cases:
- McPherson v Offenders Review Board (1991) 23 NSWLR 61
- LMS v Parole Board [1999] NSWCCA 371
- R v Naudi [2003] NSWCCA 160