Citation: Lee v State Parole Authority of New South Wales [2006] NSWSC 1225
Court: Supreme Court of New South Wales, Common Law Division
Date: 17 November 2006
Judge(s): Johnson J
Background
The applicant was a convicted sex offender serving a sentence whose non-parole period had expired in September 2005, with the total sentence due to expire in March 2008. He consistently maintained his innocence of the offence for which he was convicted. As a result of that denial of guilt, he was refused entry to the Custody-Based Intensive Treatment (CUBIT) programme, a custodial sex offenders rehabilitation programme.
In September 2006, the State Parole Authority (SPA) refused to order his release on parole. The SPA acknowledged the complexity of his case, noting the substantial psychological evidence before it, and directed that his case return for further consideration in February 2007.
The applicant brought proceedings in the Supreme Court under s 155 of the Crimes (Administration of Sentences) Act 1999, arguing that the SPA's decision was based on false, misleading, or irrelevant information.
Legal Issues
- Whether the SPA's decision to refuse parole was made on the basis of false, misleading, or irrelevant information within the meaning of s 155 of the Crimes (Administration of Sentences) Act 1999
- Whether the SPA's reliance on the applicant's failure to complete the CUBIT programme (due to his denial of guilt) constituted reliance on false, misleading, or irrelevant information
- Whether the SPA applied a blanket policy against granting parole to sex offenders who had not completed the CUBIT programme, in a manner inconsistent with its statutory obligations
Decision
Johnson J dismissed the application. The court reaffirmed that the jurisdiction under s 155 is extremely limited. It does not function as an appeal from a parole refusal, does not permit the court to substitute its own decision, and does not allow review of the merits or the weight given to particular factors. Relief is available only where the SPA's decision was made on information that was, as a matter of substance, false, misleading, or irrelevant, and the Board's treatment of that information was plainly (not merely arguably) wrong.
The court found no basis for concluding that the SPA had acted on false, misleading, or irrelevant information. The applicant's inability to complete the CUBIT programme, arising from his denial of guilt, was a factor that the SPA was entitled to take into account. Treating that factor as relevant to a parole decision did not, of itself, amount to reliance on impermissible information under s 155.
The court also rejected the argument that the SPA had applied a rigid blanket policy. Consistent with previous decisions in Galli and DCU, the court noted that the CAS Act requires the SPA to exercise its function flexibly, by reference to all circumstances bearing on the particular offender. There was evidence that the SPA had done precisely that, engaging closely with a substantial body of expert psychological evidence before reaching its decision.
The court noted, without deciding the question of parole itself, that there appeared to be substantial material available to the SPA when it reconsidered the applicant's case in February 2007. That observation was directed at the SPA's own undoubted discretion, not at any finding by the court.
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 provides only a narrow statutory pathway to the Supreme Court: it is not an appeal from, or a merits review of, a parole refusal, and the court cannot substitute its own decision or remit the matter for rehearing.
- A direction under s 155 requires satisfaction that information before the SPA was false or misleading as a matter of substance, and that the SPA's treatment of it was plainly (not merely arguably) wrong.
- An offender's failure or inability to complete a sex offenders treatment programme due to denial of guilt is a factor the SPA may legitimately take into account when assessing a parole application, without that consideration amounting to reliance on false, misleading, or irrelevant information.
- The SPA is not entitled to apply an inflexible or dogmatic approach to parole decisions; the CAS Act requires it to consider the full range of circumstances particular to each offender, and Johnson J reiterated that principle from his earlier decision in DCU.
- This decision forms part of a line of authority, alongside Galli and DCU, addressing the recurring difficulty of parole decisions involving convicted sex offenders who maintain their innocence and are therefore excluded from custodial treatment programmes.
Legislation and Cases Referenced
Legislation:
- Crimes (Administration of Sentences) Act 1999 (NSW), particularly ss 135, 135A, 137B, and 155
- Crimes Act 1900 (NSW)
- Crimes (Sentencing Procedure) Act 1999 (NSW)
- Crimes (Serious Sex Offenders) Act 2006 (NSW)
- Supreme Court Act 1970 (NSW)
- Parole of Prisoners Act 1966 (NSW)
Cases:
- McCallum v Parole Board [2003] NSWCCA 294
- Galli v NSW State Parole Authority [2006] NSWSC 206
- DCU v State Parole Authority of NSW [2006] NSWSC 526
- McPherson v Offenders Review Board (1991) 23 NSWLR 61
- McCafferty v Offenders Review Board (CCA, 19 June 1995, unreported)
- Whalan v Parole Board of NSW [2005] NSWCCA 445
- R v Lee [2004] NSWCCA 133
- Mott v Queensland Community Corrections Board (1995) 2 QdR 261
- Varney v Parole Board (WA) (2000) 23 WAR 187
- Meissner v The Queen (1994-1995) 184 CLR 132
- Siganto v The Queen (1998) 194 CLR 656
- Attorney General for NSW v NSW State Parole Authority [2006] NSWSC 865
- Green v Daniels (1977) 51 ALJR 463