Citation: Sutton v NSW State Parole Authority [2011] NSWSC 935
Court: Supreme Court of New South Wales
Date: 26 August 2011
Judge(s): Garling J
Background
The applicant was an offender whose release on parole had been refused by the NSW State Parole Authority on two occasions: 12 November 2010 and 3 December 2010. On both occasions, the Authority cited an unlikely ability to adapt to normal community life, a risk of re-offending, a need to address offending behaviour through therapeutic programs, and the absence of suitable post-release accommodation.
The applicant sought a direction from the Supreme Court under s 155 of the Crimes (Administration of Sentences) Act 1999, alleging that the Authority's decision was based on false, misleading, or irrelevant information. The Attorney General for New South Wales was granted leave to intervene and acted as the contradictor, while the Authority filed a submitting appearance.
Legal Issues
- Whether the information before the NSW State Parole Authority was false or misleading in a legally sufficient sense under s 155 of the Crimes (Administration of Sentences) Act 1999
- Whether alleged inaccuracies in the materials before the Authority (including a statement about a previous parole breach) were errors of substance that formed the basis of the Authority's decision
- Whether the applicant's limited participation in therapeutic programs was irrelevant information, given that he argued his non-participation was caused by factors outside his control
Decision
Garling J dismissed the application, finding that the applicant had not established that any information before the Authority was false, misleading, or irrelevant in the legally relevant sense. His Honour began by confirming the tightly circumscribed nature of s 155 review. The section does not confer appellate jurisdiction, does not permit the Court to examine the merits of the Authority's decision, and does not allow the Court to consider the Authority's thought processes or the weight it gave to various factors.
On the allegation that the Authority had incorrectly recorded that the applicant had reoffended while on parole, Garling J accepted that there may have been an imprecise statement about timing. However, the applicant's criminal history, including conduct that attracted a custodial sentence following a previous parole order, was not disputed in substance. Any inaccuracy in the framing of that conduct did not rise to the level of a false or misleading statement going to the basis of the Authority's decision.
Other alleged errors in the pre-release and offender reports were examined and rejected. Garling J found that the applicant had not discharged the onus of demonstrating falsity by compelling evidence, and that those matters were not in any event part of the basis upon which the Authority declined to grant parole.
On the question of irrelevance, Garling J rejected the submission that the applicant's non-completion of therapeutic programs was irrelevant because circumstances outside his control had prevented his participation. The Authority was entitled to have regard to the fact that the programs had not been completed. The reason for non-completion was a separate matter that did not affect the relevance of the information itself.
Orders Made
- The application filed 17 February 2011 for directions pursuant to s 155 of the Crimes (Administration of Sentences) Act 1999 was dismissed.
Key Takeaways
- Section 155 of the Crimes (Administration of Sentences) Act 1999 provides a strictly limited avenue of review: the Supreme Court can only consider whether information before the Parole Authority was false, misleading, or irrelevant, and then only where that information formed the basis of the refusal to grant parole.
- An inaccuracy in the materials placed before the Authority will not ground a direction unless it is an error of substance. A minor imprecision in describing the timing of a prior parole breach, where the underlying conduct was not in dispute, does not meet that threshold.
- Under s 155, the Supreme Court has no jurisdiction to consider the merits of a Parole Authority decision, the weight given to particular factors, or the Authority's reasons and thought processes beyond the specific grounds in the section.
- Information that a prisoner has not completed therapeutic programs relevant to rehabilitation is a factual matter properly before the Authority. The applicant's explanations for non-completion do not render that information irrelevant to a public interest assessment.
- The applicant bears the onus of demonstrating, usually by evidence additional to what was before the Authority, that information was false or misleading in substance.
Legislation and Cases Referenced
Legislation
- Crimes (Administration of Sentences) Act 1999 (NSW), s 155
- Sentencing Act 1989 (NSW), s 23 (repealed; predecessor provision)
Cases
- McPherson v Offenders Review Board (1991) 23 NSWLR 61
- LMS v Parole Board (1999) 110 A Crim R 172
- R v Naudi [2003] NSWCCA 160
- Lee v State Parole Authority of New South Wales [2006] NSWSC 1225
- Radford v Parole Board [2002] NSWCCA 70
- McCallum v Parole Board of NSW [2003] NSWCCA 294
- DCU v State Parole Authority of New South Wales [2006] NSWSC 526
- McCafferty v Offenders Review Board (Court of Criminal Appeal, 19 June 1995, unreported)
- Attorney General for New South Wales v New South Wales State Parole Authority [2006] NSWSC 865
- Rozynski v Parole Board of New South Wales [2003] NSWCCA 214