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7
Court of Criminal Appeal 30 June 2003

Regina v Naudi [2003] NSWCCA 160 revised - 19

[2003] NSWCCA 160

Sexual offencesAssault & violence

Citation: Regina v Naudi [2003] NSWCCA 160 revised - 19/08/2003
Court: NSW Court of Criminal Appeal
Date: 30 June 2003
Judge(s): Hodgson JA, Simpson J, Greg James J

Background

The applicant had been convicted by a jury on ten counts of sexual assault, one count of assault occasioning actual bodily harm, and one count of assault, all involving a young female who had lived in his household after the death of her mother. He was sentenced to a minimum term of six years with an additional term of two years. Offending spanned roughly 1990 to 1994.

When the applicant's minimum term expired in February 2003, he sought release on parole. The Parole Board declined, citing his risk of re-offending, his failure to address his offending behaviour, and his continued denial of guilt, which prevented him from accessing sex offender treatment programmes.

The applicant brought proceedings in the Court of Criminal Appeal under s 155 of the Crimes (Administration of Sentences) Act 1999, alleging that the Parole Board's refusal was based on false, misleading, or irrelevant information.

  • Whether the information before the Parole Board, including pre-release reports and officer recommendations, was false, misleading, or irrelevant within the meaning of s 155 of the Crimes (Administration of Sentences) Act 1999
  • Whether the application met the threshold under s 155(3) to warrant the Court giving directions to the Parole Board

Decision

Simpson J (with whom Hodgson JA and Greg James J agreed) examined the reports and evidence before the Parole Board in detail. The Board had before it pre-release reports from a probation and parole officer, a supplementary report, a pre-sentence report, and the applicant's criminal history. The applicant's continued denial of guilt was identified as a key barrier to treatment, and the reports consistently recommended against parole on that basis.

The Court found that the applicant had not established that the Board's decision was based on any information that was false, misleading, or irrelevant. The reports and recommendations were grounded in legitimate assessments of risk and the applicant's failure to engage with available programmes. No direction to the Parole Board was warranted.

Simpson J also noted ongoing judicial concern about s 155 itself, observing that the section reproduces the effect of s 23 of the Sentencing Act 1989, a provision that courts had previously criticised as serving little practical purpose. Despite explicit calls for legislative reform in earlier decisions, the provision was re-enacted without amendment and without any clear statement of what effect the Court's directions are intended to have. Greg James J added his own call for legislators to reconsider whether the section should remain in force.

Orders Made

  • Application dismissed.

Key Takeaways

  • Under s 155 of the Crimes (Administration of Sentences) Act 1999, an applicant bears the burden of establishing that the Parole Board's decision was based on information that was false, misleading, or irrelevant; it is insufficient to dispute the weight or conclusions drawn from that information.
  • In dismissing the application, the Court of Criminal Appeal confirmed that a continuing denial of guilt, and the resulting inability to access treatment programmes, can lawfully form part of the basis for a Board's decision to refuse parole.
  • A parole officer's assessments and recommendations, even where mixed in their content, do not become false or misleading simply because an applicant disagrees with the officer's conclusions.
  • The Court expressed notable institutional frustration with s 155, noting it reproduces a provision previously criticised as having little practical utility, and that Parliament enacted it without resolving the ambiguity about what the Court's directions are meant to achieve.
  • Both Simpson J and Greg James J called, separately, for legislators to reconsider the provision, continuing a line of judicial commentary dating back to at least 1991.

Legislation and Cases Referenced

Legislation:
- Crimes (Administration of Sentences) Act 1999 (NSW), s 155
- Sentencing Act 1989 (NSW), s 23

Cases:
- McPherson v Offenders Review Board (1991) 23 NSWLR 61
- LMS v Parole Board [1999] NSWCCA 371 (unreported, 25 October 1999)