Citation: Ngati v NSW Parole Authority [2007] NSWSC 963
Court: Supreme Court of New South Wales, Common Law Division
Date: 30 August 2007
Judge(s): Price J
Background
The applicant was sentenced in January 2006 to three and a half years imprisonment with an eighteen-month non-parole period for ongoing supply of heroin for financial and material reward. A subsequent District Court conviction for possessing a mobile phone in prison extended his non-parole period to 1 March 2007, with his overall sentence due to expire on 2 June 2008.
On 25 January 2007, the NSW State Parole Authority (SPA) refused to release the applicant on parole. The SPA cited concerns about his ability to adapt to community life, his risk of re-offending, his failure to address offending behaviour (including drug and alcohol issues, violence, and gambling), and his poor prison performance.
The applicant sought statutory review under s 155 of the Crimes (Administration of Sentences) Act 1999, alleging that the SPA's decision rested on false and misleading information. Specifically, he alleged parole officers had falsely reported that he refused to participate in parole reports and refused to undertake programs. The applicant did not appear at the hearing, and his application alone was before the court.
Legal Issues
- Whether the applicant's application satisfied the threshold under s 155(3) of the Crimes (Administration of Sentences) Act 1999, requiring the Supreme Court to be satisfied the application is not an abuse of process and that there appears to be sufficient evidence to support it.
- Whether an unsupported assertion in a statutory review application constitutes sufficient evidence that the SPA based its decision on false or misleading information.
Decision
Section 155(3) of the Crimes (Administration of Sentences) Act 1999 imposes a mandatory threshold: the Supreme Court may consider a parole review application only if it is satisfied the application is not an abuse of process and that there appears to be sufficient evidence to support it. The SPA did not argue the application was an abuse of process, so the sole question was whether sufficient evidence existed.
Price J confirmed that the court's role under s 155 is limited to determining whether information given to the SPA was false, misleading, or irrelevant, and whether that information formed at least part of the basis for the decision. Drawing on R v Naudi [2003] NSWCCA 160, his Honour noted it is not enough that false or misleading information existed; it must also have founded the SPA's decision, at least in part.
His Honour further applied the principle from Rozynski v Parole Board of New South Wales [2003] NSWCCA 214, which confirmed that a bare challenge to information before the Board does not suffice. The court must be satisfied on appropriate evidence, usually new evidence, that the information was false or misleading in substance.
In this case, the applicant's assertions in his unsigned application were not evidence. The documentary material tendered by the SPA did not support the application. No evidence capable of establishing that the SPA based its decision on false or misleading information was before the court, and the application therefore failed to pass the s 155(3) threshold.
Orders Made
- The application is dismissed.
- A copy of the judgment to be provided to the applicant by the Registrar of the Court.
Key Takeaways
- Under s 155(3) of the Crimes (Administration of Sentences) Act 1999, an application for Supreme Court review of a parole refusal must clear a mandatory threshold: the court must be satisfied the application is not an abuse of process and that sufficient evidence appears to support it.
- A bare assertion in a statutory review application that information before the SPA was false or misleading does not constitute evidence for the purposes of that threshold.
- The Court of Criminal Appeal confirmed in Rozynski that information is not characterised as false or misleading merely because it was challenged, even if that challenge was raised before the Board itself.
- In dismissing this application, Price J affirmed that the false or misleading information must also have formed at least part of the foundation of the SPA's decision, not merely appeared in the material before it.
- Applicants who do not appear at hearings and file no supporting evidence beyond their application face significant difficulty satisfying the s 155(3) threshold.
Legislation and Cases Referenced
Legislation:
- Crimes (Administration of Sentences) Act 1999 (NSW), ss 155, 155(3)
Cases:
- R v Naudi [2003] NSWCCA 160
- Rozynski v Parole Board of New South Wales [2003] NSWCCA 214