Citation: DCU v State Parole Authority of New South Wales [2006] NSWSC 526
Court: Supreme Court of New South Wales, Common Law Division
Date: 2 June 2006
Judge(s): Johnson J
Background
The applicant was a convicted sex offender serving a total effective sentence of eight years and six months, with a six-year non-parole period. He had been found guilty by two separate juries of sexual offences committed against his 12-year-old niece in 1995 and a 26-year-old acquaintance in 1997. His appeals against conviction and sentence in each matter had been dismissed by the Court of Criminal Appeal.
Throughout his imprisonment, the applicant maintained his innocence of both offences. He refused to apply for the Custody-Based Intensive Treatment (CUBIT) program, a custodial sex offender rehabilitation program, on the basis that participation would require him to admit guilt. His non-parole period expired in November 2005, but the State Parole Authority (SPA) refused to order his release on parole.
The applicant sought review in the Supreme Court under s 155 of the Crimes (Administration of Sentences) Act 1999 (CAS Act). He contended that the SPA's refusal was founded on false, misleading or irrelevant information, specifically that the SPA had improperly treated his denial of guilt and his refusal to undertake the CUBIT program as grounds for refusing parole.
Legal Issues
- Whether the SPA's decision to refuse parole was based on false, misleading or irrelevant information within the meaning of s 155(1) of the CAS Act.
- Whether the SPA improperly took into account the applicant's denial of guilt in refusing parole.
- Whether the SPA improperly relied on the applicant's refusal to apply for the CUBIT program in making its decision.
- The proper scope of the Supreme Court's review function under s 155 of the CAS Act.
Decision
Johnson J confirmed that the review function under s 155 of the CAS Act is extremely limited. The Supreme Court has no power to set aside the SPA's decision, substitute its own decision, or remit the matter. The Court's role is confined to directing the SPA as to whether specific information before it was false, misleading or irrelevant. It does not assess the merits of the parole decision, the weight given to various factors, or whether the SPA drew correct inferences from the material before it.
On the question of the applicant's denial of guilt, the Court held this was not false, misleading or irrelevant information. The fact that an offender maintains innocence following conviction by a jury is a circumstance the SPA is entitled to consider. The conviction itself remained valid, and the denial of guilt was a relevant factor bearing on risk of reoffending and suitability for parole under s 135 of the CAS Act.
Regarding the CUBIT program, the Court found that the applicant's refusal to apply was also a matter the SPA could properly take into account. The SPA was not penalising the applicant simply for declining to admit guilt; rather, it was entitled to consider whether the applicant had engaged with rehabilitation programs relevant to the nature of his offending and the protection of the community.
The Court found no basis to conclude that the SPA had relied on information that was false, misleading or irrelevant in the sense required by s 155(1). The application was accordingly dismissed. Johnson J also noted, without deciding the point, that the grounds available in an application for prerogative relief under s 69 of the Supreme Court Act 1970 are wider than those available under s 155, though he expressed no view on whether any such grounds would have succeeded.
Orders Made
- Application dismissed.
Key Takeaways
- Section 155 of the CAS Act provides a narrow and specific statutory review mechanism. It does not permit the Supreme Court to assess the correctness or merits of a parole decision, or the weight the SPA attributed to particular information.
- A direction under s 155 will only be warranted where the Court is satisfied that information was false, misleading or irrelevant in substance, and that any earlier determination by the SPA to the contrary was plainly, not merely arguably, wrong.
- An offender's continued denial of guilt following a jury conviction is a circumstance the SPA may properly consider when assessing parole under s 135 of the CAS Act.
- Refusal to participate in a custodial rehabilitation program relevant to the nature of the offending is also a matter the SPA may take into account; it is not inherently irrelevant or unfairly prejudicial simply because participation would require the offender to admit guilt.
- The 2004 amendments to the CAS Act reinforced the significance of community protection and reoffending risk in parole decisions, and the Court observed that an offender who is not released on parole will ultimately be released into the community without supervision upon sentence expiry.
Legislation and Cases Referenced
Legislation:
- Crimes (Administration of Sentences) Act 1999 (NSW), ss 135, 135A, 155
- Crimes Act 1900 (NSW)
- Crimes (Sentencing Procedure) Act 1999 (NSW)
- Supreme Court Act 1970 (NSW), s 69
- Child Protection (Offenders Registration) Act 2000 (NSW)
Cases:
- McPherson v Offenders Review Board (1991) 23 NSWLR 61
- R v Naudi [2003] NSWCCA 160
- Radford v Parole Board [2002] NSWCCA 70
- McCallum v Parole Board [2003] NSWCCA 294
- Rozynski v Parole Board of New South Wales [2003] NSWCCA 214
- McCamley v Offenders Review Board (Court of Criminal Appeal, 9 February 1994, unreported)
- LMS v Parole Board (1999) 110 A Crim R 172
- R v DCU [2003] NSWCCA 173
- Galli v NSW State Parole Authority [2006] NSWSC 206
- Esho v State Parole Authority of New South Wales [2006] NSWSC 304
- Various interstate and overseas authorities including Varney v Parole Board (WA) (2000) 23 WAR 187, SB v Queensland Community Corrections Board [2005] QSC 155, and R v Secretary of State for Home Department; Ex parte Lillycrop [1996] EWHC Admin 281