Citation: Whalan v State Parole Authority of New South Wales [2006] NSWSC 1214
Court: Supreme Court of New South Wales, Common Law Division
Date: 6 November 2006
Judge(s): Johnson J
Background
The applicant was serving a four-year sentence imposed in February 2005 for offences including robbery, stealing from the person, and break, enter and steal. His non-parole period expired on 10 June 2005, leaving a balance of sentence running to 10 June 2007.
The State Parole Authority refused parole on two separate occasions: first on 30 June 2005 and again on 21 April 2006. The applicant had previously challenged the first refusal in the Court of Criminal Appeal, which dismissed that application in December 2005. The present application challenged the April 2006 refusal.
The applicant appeared in person and raised concerns about specific information placed before the Authority, arguing that the Authority's decision rested on false, misleading or irrelevant information.
Legal Issues
- Whether the Supreme Court, on an application under s 155 of the Crimes (Administration of Sentences) Act 1999, has power to set aside or review the merits of a parole authority's decision to refuse parole
- Whether information before the Authority concerning the applicant's alleged violent behaviour was false or irrelevant
- Whether evidence given about the applicant's completion of Drug and Alcohol programmes was misleading
- Whether a history of alleged dirty urine tests constituted false, misleading or irrelevant information
Decision
Johnson J emphasised at the outset that the function conferred on the Supreme Court by s 155 is extremely narrow. Section 155 does not operate as a form of judicial review or appeal. The Court cannot set aside the Authority's decision, substitute its own view, or remit the matter for rehearing. The only available outcome is a direction to the Authority that the information upon which it acted was false, misleading or irrelevant.
On the violence-related information, the Court found that the Probation and Parole officer, Ms Maloney, did not herself assert that the applicant was a violent person. She drew attention to existing complaint histories. The Authority was also aware that the applicant disputed those matters, and his account was before it. The applicant's acceptance of a behavioural contract concerning violent conduct in January 2006 was found to be relevant material, even though the applicant denied it amounted to any admission.
On the Drug and Alcohol programme evidence, the Court found that Ms Maloney's comment that the applicant had not gained real benefit from programmes in terms of future relapse prevention was not a statement that he had gained nothing at all. Read in context, this was a comment about his preparation for community reintegration, not a misrepresentation of his participation. The Court was not satisfied that this evidence was false, misleading or irrelevant.
The Court concluded that the applicant had not demonstrated that the Authority's decision was made on the basis of false, misleading or irrelevant information on any of the grounds raised, and dismissed the application.
Orders Made
- Application under s 155 of the Crimes (Administration of Sentences) Act 1999 dismissed.
Key Takeaways
- Section 155 of the Crimes (Administration of Sentences) Act 1999 creates a very narrow statutory review mechanism: the Supreme Court's only power is to direct the Parole Authority that information before it was false, misleading or irrelevant, not to review the merits of its decision or substitute its own judgment.
- Parole is a privilege, not a right. The Parole Authority must be satisfied on the balance of probabilities that release is in the public interest before making a parole order.
- Where an officer draws attention to a history of complaints without personally asserting their truth, and where the offender's own account is also before the Authority, no false or irrelevant information is established merely because the underlying matters are disputed.
- Evidence about the limited benefit derived from rehabilitation programmes does not become misleading simply because it falls short of saying those programmes provided no benefit at all; context and precise wording of the evidence matters.
- In dismissing the application, the Court confirmed that its role under s 155 is entirely distinct from judicial review, and that dissatisfaction with the Authority's conclusions does not, of itself, ground any relief under that provision.
Legislation and Cases Referenced
Legislation:
- Crimes (Administration of Sentences) Act 1999 (NSW), ss 135, 135A, 155
Cases:
- Whalan v Parole Board of NSW [2005] NSWCCA 445
- DCU v State Parole Authority [2006] NSWSC 526
- McPherson v Offenders Review Board (1991) 23 NSWLR 61
- McCallum v Parole Board [2003] NSWCCA 294