DCU v State Parole Authority of New South Wales

[2006] NSWSC 526

CITATION:	DCU v State Parole Authority of New South Wales [2006] NSWSC 526
HEARING DATE(S):	22 May 2006, 23 May 2006
JUDGMENT DATE :	2 June 2006
JUDGMENT OF:	Johnson J at 1
DECISION:	Application dismissed.
CATCHWORDS:	CRIMINAL LAW - parole - decision of State Parole Authority to refuse parole - repeat sexual offender - relevant considerations under s.135 Crimes (Administration of Sentences) Act 1999 - offender's refusal to admit guilt - offender's refusal to apply for custodial sex offenders rehabilitation program - whether decision of State Parole Authority made on basis of false, misleading or irrelevant information for the purposes of s.155(1) Crimes (Administration of Sentences) Act 1999
LEGISLATION CITED:	Crimes (Administration of Sentences) Act 1999 Crimes Act 1900 Crimes (Sentencing Procedure) Act 1999 Supreme Court Act 1970 Child Protection (Offenders Registration) Act 2000
CASES CITED:	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 Medical Board of Queensland v Thurling [2003] QCA 518 SB v Queensland Community Corrections Board [2005] QSC 155 Power v The Queen (1973) 131 CLR 623 R v Simpson (2001) 53 NSWLR 704 Mitchell v The Queen (1995-1996) 184 CLR 333 Mott v Queensland Community Corrections Board (1995) 2 QdR 261 R v Secretary of State for Home Department; Ex parte Lillycrop [1996] EWHC Admin 281 R v Secretary of State for Home Department; Ex parte Hepworth [1997] EWHC Admin 324 Walker v Corrective Services Commission (Qld) (1999) 104 A Crim R 127 Varney v Parole Board (WA) (2000) 23 WAR 187 Galli v NSW State Parole Authority [2006] NSWSC 206 Health Care Complaints Commission v Litchfield (1997) 41 NSWLR 630 Zaidi v Health Care Complaints Commission (1998) 44 NSWLR 82 Esho v State Parole Authority of New South Wales [2006] NSWSC 304 Green v Daniels (1977) 51 ALJR 463 Cummeragunga Pty Limited (In Liq) v Aboriginal and Torres Strait Islander Commission (2004) 210 ALR 612 Oakes v Corrective Services (Qld) (2004) 144 A Crim R 334 Green v R [2004] NTSC 65 R v Armfield (2005) 155 A Crim R 299 Director of Public Prosecutions v TP [2005] VSCA 88
PARTIES:	DCU (Applicant) State Parole Authority of New South Wales (Respondent)
FILE NUMBER(S):	SC PB0008/2006
COUNSEL:	Mr A Haesler SC (Applicant) Mr C Lonergan (Respondent)
SOLICITORS:	Legal Aid Commission of New South Wales (Applicant) Crown Solicitor's Office (Respondent)
LOWER COURT JURISDICTION:	State Parole Authority of New South Wales
LOWER COURT FILE NUMBER(S):	---
LOWER COURT JUDICIAL OFFICER :	---
LOWER COURT DATE OF DECISION:	10 November 2005
LOWER COURT MEDIUM NEUTRAL CITATION:	---

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

Johnson J

2 June 2006

PB0008/2006 DCU v State Parole Authority of New South Wales

JUDGMENT

1 JOHNSON J: The Applicant, DCU, is a convicted sex offender. He was found guilty by two separate juries of sex offences committed, two years apart (in 1995 and 1997), against his 12-year old niece and a 26-year old female acquaintance. A total effective sentence of imprisonment for eight years and six months was imposed with a non-parole period of six years. His appeal against conviction and sentence in each case was dismissed by the Court of Criminal Appeal.

2 The Applicant denies his guilt of these crimes. He has refused to apply for a custodial sex offender’s rehabilitation program. The non-parole period component of his sentence expired on 24 November 2005. The New South Wales State Parole Authority (“SPA”), the Respondent, refused to order the Applicant’s release on parole.

3 The Applicant contends that he has been refused parole because he denies his guilt and could not successfully complete the custodial sex offender’s rehabilitation program for that reason. He contends that this Court should intervene by way of statutory review under s.155 Crimes (Administration of Sentences) Act 1999 (“CAS Act”).

Nature of Application under s.155 CAS Act

4 Section 155 CAS Act is in the following terms:

“155 Application to Supreme Court by offender

(1) If:

(a) the Parole Authority decides that an offender should not be released on parole, and

(b) the offender alleges that the decision of the Parole Authority has been made on the basis of false, misleading or irrelevant information,
the offender may, in accordance with rules of court, apply to the Supreme Court for a direction to be given to the Parole Authority as to whether the information was false, misleading or irrelevant.

(2) The Supreme Court may give such directions with respect to the information as it thinks fit.

(3) An application under this section is to be considered by the Supreme Court if and only if it is satisfied that the application is not an abuse of process and that there appears to be sufficient evidence to support the application.”

5 Section 155 does not provide a form of appeal from a decision refusing parole: McPherson v Offenders Review Board (1991) 23 NSWLR 61 at 69. The Act does not permit the Court to set aside the SPA’s decision and either to substitute its own decision, or to return the matter to the SPA to hear the matter again. It provides for no more than a direction to the SPA that the information upon which it acted is of a particular character: McPherson at 69.

6 The role of the Court under s.155 CAS Act has been described as “extremely limited” and an application does not operate as a form of judicial review of an SPA decision: R v Naudi [2003] NSWCCA 160 at paragraph 19. On a s.155 application, the Court does not concern itself with questions pertaining to the merits of a decision nor with questions as to what weight is placed upon various factors: Radford v Parole Board [2002] NSWCCA 70 at paragraph 36; McCallum v Parole Board [2003] NSWCCA 294 at paragraph 33. In Rozynski v Parole Board of New South Wales [2003] NSWCCA 214, Greg James J (Hodgson JA and Simpson J agreeing) said at paragraph 13:

“For my part, I consider that action under the section will not be warranted unless the statutory conditions are met as a matter of substance. This means that information before the Board will not be characterised as false, misleading or irrelevant simply because it was challenged, even if challenged on such a basis before the Board and the challenge determined adversely to the applicant, nor if it is merely incorrect in detail but not false or misleading in substance. This court will need to be satisfied on appropriate (usually new) evidence that information was false or misleading in substance, and that the direction should be given. So far as there is a determination of the Board concerning information said to be false or misleading, before the court will so categorise that information, it will be necessary to satisfy the court that the Board's determination was plainly, not just arguably, wrong and further that the information was false or misleading and material to the Board's conclusion.”

7 The Court is concerned only with information which was before the SPA and upon which the SPA decided not to release the Applicant to parole. The Court is not concerned with whether the SPA acted in accordance with the statute. That is a matter for administrative law relief in the Court. Nor is the Court concerned with whether the SPA’s decision was right or wrong, or whether the SPA correctly interpreted or construed the information before it, or whether it drew the correct inferences from that information or whether it gave the correct weight to that information. The only powers available to the Court under s.155 are to give directions to the SPA as to whether the information upon which its decision was made was false, misleading or irrelevant and to give such further directions with respect to that information as it thinks fit: McCamley v Offenders Review Board (Court of Criminal Appeal, 9 February 1994, unreported); LMS v Parole Board (1999) 110 A Crim R 172 at 174-175.

The Applicant’s Offences

8 The Applicant was born on 24 October 1959. He has been in custody since 1999. Following a trial before his Honour Judge Sides QC and a jury in the Sydney District Court, he was convicted of having sexual intercourse without consent with a 26-year old woman in September 1997. The Applicant admitted that intercourse took place with the complainant but maintained that it was a consensual act. The Applicant was sentenced to five years’ imprisonment with a non-parole period of two-and-a-half years. An appeal against conviction was dismissed by the Court of Criminal Appeal. With respect to sentence, it was argued in the Court of Criminal Appeal that the sentence imposed was towards the top of the range for offences of this type. Grove J (Spigelman CJ and Kirby J agreeing) concluded that, given the circumstances of the offence, he was entirely unpersuaded that the sentence was outside of the range of the sound exercise of discretion. The appeal against sentence was dismissed.

9 On 25 February 2002, the Applicant was convicted following a trial before his Honour Acting Judge Downs QC and a jury in the Sydney District Court of two counts of sexual intercourse with a child under 16 years being under his authority contrary to s.66C(2) Crimes Act 1900 and one count of aggravated indecent assault contrary to s.61M(1) Crimes Act 1900. The victim in each offence was the Applicant’s 12-year old niece. The offences occurred at the Applicant’s home in January 1995 where the victim stayed for a period before the resumption of school. The offences were described in the following terms by Dowd J (Meagher JA and Barr J agreeing) in R v DCU [2003] NSWCCA 173 at paragraphs 6-9:

“6 The appellant's house had three bedrooms, two with single beds with the appellant's bedroom having a king-size waterbed in it. Each of the three children took turns in sleeping in the appellant's room, the complainant having slept in one of the smaller bedrooms during the week. On the last evening there was an argument between the three children as to who would sleep in the appellant's room, the appellant deciding that it was the complainant's turn.

7 The complainant got into the bed wearing a summer nightie and underwear. The appellant came into the bed, having locked the door of the bedroom, and watched television for about half an hour when the appellant asked the complainant to remove her nightie, which she did after initially refusing. After removing her nightie the complainant got back into bed, keeping on her underwear. The appellant came over and started licking and kissing her neck then ripped off her underwear and began touching her vagina with his fingers and rubbing her breasts for a period. These were the facts relied on in the first count.

8 The appellant then licked inside the complainant's vagina, rubbing her breasts at the same time. This constituted count 2. He next sat up on the side of the bed and asked the complainant to look at him, he having removed his pants, exposing his penis which he asked the complainant to touch. The complainant refused and moved to her side of the bed. The appellant then lay on her without putting his full weight on her and the complainant said that the appellant was endeavouring to push what felt like fingers or something a lot bigger inside her vagina. This act constituted count 3 in the indictment.

9 The complainant called out in pain several times, the appellant continuing his actions towards her for some thirty seconds to a minute but stopped at the complainant's last cry of pain. The complainant then went and slept on the floor.”

10 On 3 April 2002, his Honour Acting Judge Downs QC sentenced the Applicant to a fixed term of imprisonment of three years and six months on the s.61M(1) count to commence on 25 May 2002 and to expire on 24 November 2005. With respect to the two offences under s.66C(2), his Honour sentenced the Applicant to imprisonment for six years commencing on 25 May 2002 and expiring on 24 May 2008 with a non-parole period of three years and six months commencing on 25 May 2002 and expiring on 24 November 2005.

11 The Court of Criminal Appeal dismissed an appeal against conviction and, with respect to sentence, concluded that it had not been shown that the sentence was other than appropriate in all the circumstances: R v DCU at paragraph 31.

Functions of the SPA

12 The SPA is constituted under s.183 CAS Act. The functions of the SPA include the determination of matters with respect to the granting of parole and the conditions on which parole is granted: s.185(1)(a). The SPA is not bound by the rules of evidence, but may inform itself of any matter in such manner as it thinks appropriate: clause 11(4), Schedule 1, CAS Act.

13 The SPA consists of at least four judicial members, at least one police officer, at least one officer of the Probation and Parole Service and at least 10 community members who should reflect, as closely as possible, the composition of the community at large: s.183(2) CAS Act. Of the community members, at least one must be a person who, in the opinion of the Minister, has an appreciation or understanding of the interests of victims of crime: s.183(2A) CAS Act. Thus, the SPA comprises persons with a variety of interests and expertise including the expression of community views: Medical Board of Queensland v Thurling [2003] QCA 518 at paragraph 12; SB v Queensland Community Corrections Board [2005] QSC 155 at paragraph 13.

14 Where a court imposes a sentence of imprisonment for a term of three years or less, being a sentence that has a non-parole period, the court must make an order directing the release of the offender on parole at the end of the non-parole period: s.50 Crimes (Sentencing Procedure) Act 1999. Where the sentence of imprisonment exceeds three years, and a non-parole period is fixed, then the question whether the offender will be released on parole is one for consideration by the SPA. The sentencing court will fix a non-parole period which represents the minimum period for which the offender must be held in custody for the offence. The SPA has the authority to release an offender conditionally from confinement in accordance with the sentence imposed upon him. The full sentence of imprisonment stands and during its term the prisoner is simply released upon conditional parole: Power v The Queen (1973) 131 CLR 623 at 627-628; R v Simpson (2001) 53 NSWLR 704 at 716-717 (paragraphs 55-58). It is a misnomer to speak of a minimum sentence and a maximum sentence as there is, in truth, but one sentence, being that imposed by the trial judge, which cannot be altered by the paroling authority: Power v The Queen at 629. The grant of parole by a paroling authority is a privilege and not a right: McCallum v Parole Board at paragraph 28.

15 Section 135 CAS Act provides for the general duty of the SPA in determining whether a parole order will be made for an offender serving a sentence of imprisonment exceeding three years. Section 135 provides:

“135 General duty of Parole Authority

(1) The Parole Authority must not make a parole order for an offender unless it is satisfied, on the balance of probabilities, that the release of the offender is appropriate in the public interest.
(2) In deciding whether or not the release of an offender is appropriate in the public interest, the Parole Authority must have regard to the following matters:
(a) the need to protect the safety of the community,
(b) the need to maintain public confidence in the administration of justice,
(c) the nature and circumstances of the offence to which the offender’s sentence relates,
(d) any relevant comments made by the sentencing court,
(e) the offender’s criminal history,
(f) the likelihood of the offender being able to adapt to normal lawful community life,
(g) the likely effect on any victim of the offender, and on any such victim’s family, of the offender being released on parole,
(h) any report in relation to the granting of parole to the offender that has been prepared by or on behalf of the Probation and Parole Service, as referred to in section 135A,
(i) any other report in relation to the granting of parole to the offender that has been prepared by or on behalf of the Review Council, the Commissioner or any other authority of the State,
(j) such guidelines as are in force under section 185A,
(k) such other matters as the Parole Authority considers relevant.
(3) Except in exceptional circumstances, the Parole Authority must not make a parole order for a serious offender unless the Review Council advises that it is appropriate for the offender to be considered for release on parole.”

16 Section 135A, which is mentioned in s.135(2)(h), is in the following terms:

“135A Preparation of reports by Probation and Parole Service

A report prepared by or on behalf of the Probation and Parole Service for the purposes of section 135 must address the following matters:

(a) the likelihood of the offender being able to adapt to normal lawful community life,

(b) the risk of the offender re-offending while on release on parole, and the measures to be taken to reduce that risk,

(c) the measures to be taken to assist the offender while on release on parole, as set out in a post-release plan prepared by the Probation and Parole Service in relation to the offender,

(d) the offender’s attitude to the offence to which his or her sentence relates,

(e) the offender’s willingness to participate in rehabilitation programs, and the success or otherwise of his or her participation in such programs,

(f) the offender’s attitude to any victim of the offence to which his or her sentence relates, and to the family of any such victim,

(g) any offences committed by the offender while in custody, including in particular any correctional centre offences and any offence involving an escape or attempted escape,
(h) the likelihood of the offender complying with any conditions to which his or her parole may be made subject.”

17 Accordingly, the SPA must not make a parole order for an offender unless it is satisfied, on the balance of probabilities, that the release of the offender is appropriate in the public interest: s.135(1). With respect to the term “appropriate”, the High Court observed in Mitchell v The Queen (1995-1996) 184 CLR 333 at 346:

“The phrase ‘considers … appropriate’ indicates the striking of a balance between relevant considerations so as to provide the outcome which is fit and proper.”

18 The factors identified in s.135(2) CAS Act throw light on the meaning of the term “public interest” in the present statutory context.

19 The report prepared by the Probation and Parole Service under s.135A is intended to provide the SPA with information relating to the offender and his circumstances by reference to the matters set out in s.135A(a)-(h). Section 135A(a) coincides with the factor contained in s.135(2)(f) CAS Act. Beyond that, the matters referred to in s.135A relate to topics not expressly contained in s.135. Nevertheless, matters such as the risk of the offender reoffending on parole and the measures to be taken to reduce that risk (s.135A(b)), the offender’s attitude to the offence to which his sentence relates (s.135A(d)), the offender’s willingness to participate in rehabilitation programs and the success or otherwise of his participation in such programs (s.135A(e)) and the offender’s attitude to any victim of the offence to which his sentence relates and to the family of any such victim (s.135A(f)) touch upon some of the primary considerations in s.135(2) CSA Act.

20 All the matters referred to in ss.135 and 135A shed light upon the nature of matters which are relevant to the SPA’s decision whether it is satisfied, on the balance of probabilities, that an offender’s release is appropriate in the public interest.

Circumstances Surrounding Refusal of Parole to the Applicant

21 At the commencement of the hearing, I directed that the Applicant was to be referred to in these proceedings as “DCU”. He was referred to in that way by the Court of Criminal Appeal in 2003 (see paragraphs 9 and 11 above). To use the Applicant’s name would tend to identify his niece, a victim of his crimes. In referring to documents which were before the SPA, and the SPA hearing itself, I will substitute “DCU” for the Applicant’s name.

22 Given that the Applicant’s non-parole period was to expire on 24 November 2005, a pre-release report dated 19 August 2005 was prepared by Justin Warne, Probation and Parole Officer. The SPA must consider whether an offender should be released to parole at least 60 days before the offender’s parole eligibility date: s.137(1) CAS Act. Mr Warne’s report was prepared to facilitate this process.

23 Mr Warne’s report canvassed a number of issues relevant to the Applicant. For present purposes, attention might be confined to Mr Warne’s comments concerning the Applicant’s attitude to his offences and his willingness or otherwise to undertake a custodial rehabilitation program relating to his conduct as a sex offender. The Applicant denies entirely the offences committed upon his 12-year old niece. The Applicant has maintained that, although sexual intercourse took place with his adult victim in 1997, the act was consensual and not criminal.

24 With respect to the Applicant’s willingness to undertake offence-targeted psychological programs, Mr Warne stated (page 4):

“Telephone contact with the psychologist (MSPC Area 5/6) revealed that DCU was assessed using the static 99 in March 2000, while placed at Kirkconnell. According to the psychologist, he was assessed as medium/low on this tool, thus indicating that he may be eligible for the Moderate CUBIT program, an eight-month custodial-based sex offender program. However, to date DCU has not pursued a referral to take part in such program, despite recommendations from this Service, psychologists and the case management team to do so. DCU maintains that he would not be able to comply with the program’s requirement for participants to fully disclose their sexual offending because of his denial of the offences.”

CUBIT (Custody Based Intensive Treatment) is a prison-based residential therapy program for men who have sexually abused adults and/or children.

25 Mr Warne referred to a static risk assessment concerning the Applicant (pages 5-6):

“An LSI-R risk/needs assessment of DCU, which was carried out by this Service, places him at medium low level of intervention commensurate with the assessed risk and identified criminiogenic needs. However, DCU has been convicted of sex offences against both an adult and a child and due to the nature of the offences and the fact that he remains untreated; he must be supervised at a higher level. Accordingly, a medium level of intervention is appropriate.
As mentioned under Offence-Targeted programs, the Board is also advised that in 2000 DCU was assessed at ‘the high level of medium/low on the static 99’, an actuarial measure based on empirical factors found to be associated with sexual and violent recidivism.”

26 Mr Warne’s report concluded with the following summary and recommendations (page 7):

“DCU’s behaviour appears to have improved significantly over the past several years and he has received positive feedback from Correctional and Educational Officers in recent times. However, past reports of demanding and manipulative behaviour remain a concern given his status as a repeat sex offender who continues to deny his offences. Furthermore, DCU has thus far failed to undertake a custodial sex offender program despite recommendations to do so from this Service and the Correctional Centre case management team. DCU has adequate time to proceed with a CUBIT referral and to complete a relevant sex offender program prior to his sentence expiry. It is recommended therefore that he not be released to parole at this stage and that he be encouraged to address his offending behaviour by satisfactorily completing a program.”

27 Mr Ken Mayes, Unit Leader, at the Long Bay Parole Unit, supported Mr Warne’s recommendation in the following terms (page 7):

“DCU’s behaviour in custody has improved considerably and he has significant support in the community. However, he continues to deny his sexual offending, despite being convicted on two separate occasions, and makes himself unavailable for appropriate programs. His failure to acknowledge and address his offending indicates he remains an unacceptable risk to the community. Mr Warne’s recommendation is supported.”

28 On 6 September 2005, the Applicant provided a written submission to the SPA. He stated that he was not suitable to enter the CUBIT or CORE (CUBIT Out Reach) programs as he denied having committed his offences. He asserted that the CUBIT program had a low success rate. He provided the SPA with reports of Dr Olav Nielssen, psychiatrist, dated 18 August 2005 and Ms Anna Robilliard, psychologist, dated 30 August 2005.

29 Dr Nielssen had interviewed the Applicant on 28 July 2005 for the purpose of preparing a report. Dr Nielssen had been provided with a number of documents, including an earlier report of Ms Robilliard dated 23 November 1999. That report had been prepared for the purpose of sentencing proceedings following the Applicant’s conviction for the offence against the adult victim, but before he had been arrested for the offences against his 12-year old niece. Dr Nielssen noted, in passing, that the Applicant had told Ms Robilliard in 1999 that he had been subjected to sexual interference by a music teacher (who later became his soccer coach) when he was aged 10 or 11 years. Dr Nielssen concluded his report of 18 August 2005 (page 7):

“I believe DCU is a low risk offender with good prospects for returning to become a productive and law abiding member of society. I do not believe DCU requires any counselling or other treatment offered in custody or that a further period of imprisonment will in any way reduce the risk he would pose to the community.”

However, this opinion was expressed shortly after Dr Nielssen had observed (page 7):

“It is difficult to assess the risk of further offending because of the unusual combination of offences and other variables. The two offences are quite different and do not fit any kind of pattern.”

30 Ms Robilliard stated in her report of 30 August 2005 (page 4):

“The client has not undertaken courses in anger management, drug and alcohol or relapse prevention, as he does not see them as relevant personal issues. Nor has he applied to do the sex offenders programme. DCU continues to adhere to his original pleas of not guilty so he would not be seen as an appropriate candidate. At our meeting today DCU said he would rather serve out his entire sentence than submit to treatment designed for sexual offenders, as he does not see himself as a sexual offender.”

31 Ms Robilliard repeated later in her report that “the client is adamant that he will not apply to participate in the sex offender program because he continues to maintain that he is not a sex offender” (page 6). Ms Robilliard’s report does not proffer an opinion concerning the risk of the Applicant reoffending. At one point, she described the Applicant as having “self imposed boundaries” (page 7).

32 On 16 September 2005, the SPA formed an initial intention not to release DCU on parole: s.139(1) CAS Act. A hearing was fixed under s.139(5) for 27 October 2005 for the purpose of a decision being made under s.135(1) CAS Act. The reasons provided by the SPA for this initial decision were:

“Unable to adapt to normal lawful community life; risk of reoffending; need to address offending behaviour (sex offending).”

33 Mr Warne prepared a supplementary pre-release report dated 17 October 2005. Mr Warne stated (page 1):

“An attempt was made to interview DCU regarding his current situation and discuss program pathways, however he terminated the interview stating ‘You do not recommend anyone. It doesn’t matter what you say it’s a closed shop’.”

34 Mr Warne indicated that a further static risk assessment had been carried out with respect to the Applicant (page 2):

“At the request of this Service, the STATIC-99 was re-administered by MSPC psychologist, Ms Victoria Bel, on 13 October 2005. Ms Bel advised that DCU now falls within the high risk range of sexual re-offending. It is the recommendation of the Acting Coordinator of Sex Offender Programs that ‘a request be made by the Board for a full psychological risk assessment to be conducted’.”

35 Mr Warne had sought clarification concerning the Applicant’s suitability and eligibility for the CUBIT program (page 2):

“In order to clarify issues regarding DCU’s suitability and eligibility for custodial based CUBIT programs, telephone contact was made with the Therapeutic Manager of CUBIT, who indicated that DCU needed to give his consent for a CUBIT referral to proceed in order to assess him as suitable for program participation. The Therapeutic Manager confirmed that they will work with offenders expressing denial, hence the need for a full CUBIT referral to make a clear decision regarding DCU’s case. The psychologists in Area 5 MSPC confirmed that they had not informed DCU that he was unsuitable for CUBIT but had informed him that he was required to consent to a CUBIT assessment before such a decision could be made."

36 Mr Warne’s assessment and recommendation was in the following terms (page 2):

“The recommendation contained in the Pre Release Report dated 19 August 2005 remains unchanged. That is, it is recommended that DCU not be released to parole until he has completed a relevant sex offender program in custody. It is also recommended that the Board request a full psychological risk assessment prior to any future parole consideration, as recommended by the Acting Coordinator of Sex Offender Programs.”

37 Joanne Kennedy, the Manager of the Long Bay Parole Unit, supported Mr Warne’s recommendation in the following terms (page 3):

“With regard to static factors alone, DCU has been assessed as a High risk of sexual re-offending. His refusal to participate in a psychological assessment means that his dynamic risk factors remain unknown. While a comprehensive risk assessment may assist to elucidate these issues, this Service will continue to recommend that DCU participate in the CUBIT program. Mr Warne’s recommendation is supported.”

38 The SPA hearing was scheduled for 27 October 2005, but was adjourned to 10 November 2005 to meet the convenience of the Applicant’s counsel, Mr Wetmore.

39 At the SPA hearing on 10 November 2005, the Applicant and Mr Wetmore appeared. The SPA comprised the Chairperson, his Honour Judge Christie QC, and six members. The Chairperson indicated that the reason that the SPA had expressed an intention to refuse parole was “by reason of his need to address his offending behaviour” (T2.3). The Applicant stated that he maintained his innocence (T2.18). In the course of the Applicant’s evidence, he was asked by Mr Wetmore (T2.41):

“Q. Just so we’re clear on the record, you do not agree that you were appropriate [sic] convicted. Is that the case?
A. That’s right.

Q. You don’t wish to go into CUBIT, is that correct?
A. That’s right.”

40 The Applicant told his counsel that, should he be released, he was prepared to accept counselling and strict supervision (T4.14). A member of the SPA then directed questions to the Applicant concerning his willingness to accept post-release counselling and supervision but not to undertake a custodial rehabilitation program. In substance, the Applicant maintained an unwillingness to undertake the CUBIT program (T4.25-5.22). The Applicant indicated that he denied the offences, but said “I’m taking responsibility for what led me into gaol” (T5.30).

41 Mr Warne gave evidence at the SPA hearing. He adhered to the recommendations made in his reports (T7.8). He confirmed that he had seen Dr Nielssen’s report and stated that he was “quite surprised with the difference in assessments” (T7.27). Mr Warne agreed that Dr Nielssen was a highly respected psychiatrist (T7.37). Mr Wetmore asked Mr Warne (T8.3):

“WETMORE: Q. Otherwise in the refusal to admit offences, is it correct to say that’s the only real problem?
A. The other problem I guess is that he hasn’t undertaken any programmes whilst in custody to address his sexual offending.
Q. That would be CUBIT, wouldn’t it?
A. That’s correct.”

42 Mr Wetmore addressed the SPA and referred to the reports of Dr Nielssen and Ms Robilliard (T9.5). It is clear that the members of the SPA were aware of those reports and their contents. Following a short adjournment, the Chairperson said (T9.31):

“DCU, the Authority has considered all that you’ve said, all that’s been put on your behalf and obviously we’ve considered the evidence of the probation and parole officer and the contents of various reports and documentation contained within the file.
The Authority is of the view that parole will be refused for the reasons that were stated on 16 September 2005.
The Authority is prepared to stand the matter over for parole consideration to 10 November 2006.
The Authority in the meantime will seek all reports, including a full psychological assessment and report regarding risk.
The Authority will consider those reports, including that psychological report on 10 November 2006. You will not be required to attend that meeting but you will be advised of the outcome of that meeting shortly thereafter.”

43 A notification of determination of the SPA to refuse parole to the Applicant was issued by the Secretary to the SPA on 10 November 2005 to the following effect:

“TAKE NOTICE that the State Parole Authority, at its meeting on 10 November 2005 considered the case of the offender and determined that the offender not be released from a correctional centre until further reviewed by the State Parole Authority, for the following reasons:-
The State Parole Authority has sufficient reason to believe that if released form custody at this time the offender would not be able to adapt to normal lawful community life; risk of reoffending; need to address offending behaviour .
Stand over to 10 November 2006 for probation and parole officer’s report, correctional centre report and psychological assessment/report regarding risk for parole consideration.
Reports required not later than 23 October 2006 .”

Relevance to the Grant or Refusal of Parole of a Sex Offender’s Denial of Guilt and Refusal to Undertake Custodial Treatment Programs

44 It appears that a number of the issues raised on this application have arisen in other jurisdictions where a parole authority considers the grant of parole to a sex offender. Although my attention was not drawn to some of these authorities at the hearing of this application, it is appropriate that I refer to them before moving to consider the Applicant’s arguments in this case.

45 The decisions in question have been made in the United Kingdom, Queensland and Western Australia. Although there are some differences between the parole legislation considered in the various decisions to which reference will shortly be made and ss.135 and 135A CAS Act, there is a broad similarity between the statutory functions and criteria applicable in the various jurisdictions.

46 The following propositions emerge from the cases.

47 Firstly, the parole authority starts from the premise that the offender is guilty. It is not for the parole authority to seek to go behind the conviction in some way or to examine the trial process to assess the strength of the Crown case or to review the correctness of the verdict: Mott v Queensland Community Corrections Board (1995) 2 QdR 261 at 269-270 (Fitzgerald P); R v Secretary of State for Home Department; Ex parte Lillycrop [1996] EWHC Admin 281 at paragraph 15; R v Secretary of State for Home Department; Ex parte Hepworth [1997] EWHC Admin 324 at paragraphs 45-46.

48 Secondly, it would be erroneous to refuse parole solely because of a denial of guilt by the offender and a refusal or inability to undertake a custodial treatment program: Mott at 271, 275; Lillycrop at paragraphs 12, 18; Hepworth at paragraphs 45, 47; Walker v Corrective Services Commission (Qld) (1999) 104 A Crim R 127 at 134 [16] (refusal of remissions); Varney v Parole Board (WA) (2000) 23 WAR 187 at 205 [57], 209 [79] (Ipp J).

49 In Varney, Malcolm CJ (at 190 [3]) and Ipp J (at 204-205 [55]-[56]) observed that there might be many reasons why a prisoner would not accept his guilt. These include an unwillingness to accept that he had lied in the past, an unwillingness to confront loss of face in accepting what has previously been denied and the possibility that the prisoner had been wrongly convicted. In Galli v NSW State Parole Authority [2006] NSWSC 206, Adams J observed at paragraph 18 that there are a number of reasons why people do not admit their offences and amongst the strongest of those reasons is shame.

50 Thirdly, although a decision to refuse parole based solely upon the offender’s denial of guilt and refusal or inability to enter a rehabilitation program would be erroneous, these matters remain relevant to the decision whether to grant or refuse parole: Mott at 269-270 (Fitzgerald P), 271-272 (Davies JA), 275-276 (McPherson JA); Varney at 208 [71] (Ipp J).

51 In Mott, Davies JA said at 271.36:

“Neither the respondent’s denial of guilt nor his consequent unsuitability for participation in a sexual offender’s program was a reason for refusing parole. But, read in context, I do not think that the appellant’s reasons assert that either was. On the other hand his successful completion of that program, denied to him by his denial, would have been a factor in his favour. It was only in this negative sense that the appellant took the respondent’s denial of guilt into account. In taking it into account in this limited way I do not think that the appellant can be said to have taken into account an irrelevant consideration in arriving at its decision.”

Davies JA observed at 272.6:

“The true basis upon which the appellant thought that the respondent’s denial of guilt was relevant was that it denied the respondent the opportunity of participating in a program, successful completion of which may well have enhanced his case for parole.”

52 In Mott, McPherson JA at 275-276 pointed to the way in which denial of guilt and refusal or inability to undertake a rehabilitation program may be relevant to a parole decision:

“Within the limits marked out by these two extremes there is an area in which an applicant’s refusal to acknowledge guilt might have more or less significance to a decision whether to release on parole. I do not think the difficulty can be altogether resolved by saying that the Board is bound to accept and act upon the fact of the conviction alone. The question is not whether an applicant for parole has (as must always be the case) been convicted, but whether his refusal to acknowledge guilt may be regarded as a relevant consideration in assessing his application for parole. It is not difficult to see that in some circumstances it may be a factor relevant to the process of rehabilitation. An offender who has come to terms with his guilt, and is genuinely remorseful about it, would ordinarily be a more suitable candidate for parole than one who refuses to do so.
In the present case, it cannot be suggested that the Board adopted or acted upon a rule that the applicant must be refused parole simply because he failed to admit his guilt of the offence of murder of which he was convicted.”

53 In Varney, the Applicant had applied seven times unsuccessfully for admission to the custodial sex offender treatment program. It was accepted, in that case, that due to funding restrictions, that program was only available to persons who admitted their guilt (see 196 [24], 204-205 [55]-[56]). In this respect, Ipp J (Malcolm CJ and Wallwork J agreeing) said at 208 [71]:

“I accept that in coming to its decision the Board took into account the denial of guilt by the applicant and the fact that for that reason he was not admitted to and did not undertake the SOTP [Sex Offenders Treatment Programme] . In my view, the inference to be drawn from the words expressing the decision is that the Board had regard to these matters on the basis that both the denial of guilt and the non-participation in the SOTP were factors tending to render the applicant unsuitable for parole. In my view, the Board was entitled to regard these matters in that light and so take them into consideration: see Mott v Community Corrections Board (Qld) [1995] 2 Qd R 261 at 268-270, per Fitzgerald P; at 275-276, per McPherson JA; at 271, per Davies JA; R v Secretary of State for the Home Department; Ex parte Zulfikar ; R v Parole Board; Ex parte Zulfikar .”

54 In my opinion, the principles emerging from these cases represent a sound foundation for consideration of the present case.

55 The authorities from other jurisdictions make clear that an offender’s denial of guilt and refusal or inability to attend a custodial rehabilitation program may be relevant factors in a determination as to whether parole ought be granted or refused. It will be necessary for the parole authority to have regard to all the circumstances of the particular case. I now turn to the grounds advanced by the Applicant in this case.

The Applicant’s s.155 Grounds

56 Mr Haesler SC, for the Applicant, submitted that the decision of the SPA had been made on the basis of false, misleading or irrelevant information upon a number of grounds.

57 The first ground contended that the supplementary pre-release report of Mr Warne dated 17 October 2005 contained misleading, irrelevant and false information in the following respects:

“(a) The reliance on the Static 99 alone as a predictor of risk was misleading.

(b) The requirement that the applicant submit to a full psychological assessment was misleading and irrelevant as two full psychological reports had been provided.

(c) the recommendation that the applicant not be released to parole until he had completed a relevant sex offender course in custody created the false impression that the applicant could successfully complete the course and that such completion would reduce the risk of offending behaviour.

(d) The recommendation that the applicant not be released to parole until he had completed a relevant sex offender course involved the application of a blanket policy without proper reference to the individual circumstances of the applicant.

(e) The report failed to consider alternatives to refusal of parole including the risk to the community of the offender’s unsupervised release after completion of the balance of his sentence, the finding of the sentencing judge that parole be considered despite his denial of guilt.”

58 As there is a degree of overlap in the matters advanced by the Applicant in the first ground, it is useful to deal with a number of the arguments together. In doing so, I bear in mind the limited nature of the function which the Court exercises under s.155(1) CAS Act.

The Denial of Guilt Issue

59 Mr Haesler SC submitted that the Applicant’s denial of his criminal conduct meant that he would not be admitted into the CUBIT program or, if he was, he would be doomed to exclusion from the program. Mr Lonergan, for the SPA, submitted that the correct conclusion on the information before the SPA is that the Applicant refused to apply to enter the CUBIT program because he denied that he was a sex offender. This was not a case where the Applicant had applied for admission and had been rejected.

60 The information before the SPA was to the following effect:

(a) officers of the Probation and Parole Service, psychologists and the case management team had recommended to the Applicant that he apply for the CUBIT program;

(b) the Applicant refused to apply for the program as he maintained that he was not a sex offender;

(c) the fact that the Applicant denied his offences did not mean that he would be refused admission to the CUBIT program.

61 A document entitled “Institutional Programs for Sexual Offenders: CUBIT, CORE and Custodial Maintenance”, Version 02-2003, was tendered at the hearing before me. That document confirms that a person will not be admitted to the CUBIT program without his consent. The treatment targets of the program address a number of issues, including targeting denial and minimisation of offending behaviour, victim impact and empathy, changing sexual arousal and sexual regulation patterns and relationship and appropriate sexuality skills. It is apparent from these topics that denial and minimisation of offending behaviour is to be expected in some offenders. It does not disqualify an offender from eligibility for the program.

62 It appears that factors, such as shame (which may inhibit a sex offender from admitting his guilt) are the types of matters which the CUBIT program seeks to address. Recognition that the CUBIT program seeks to target denial and minimisation of offending behaviour confirms this view.

63 According to the document, in the initial stage of treatment, each participant is required to provide a full disclosure of his sexually offending behaviour and related issues. If an offender is unable to do so, he is likely to be unable to acknowledge and address the effects of his offending on his victims, understand his offence cycle and develop a viable relapse prevention plan to manage his risk for future offending. Ongoing failure to take responsibility for offending behaviour may lead to removal from treatment. It is these features of the CUBIT program which Mr Haesler SC emphasised in his submissions. He contended that the Applicant could not meet these requirements of the program and would be excluded from it for that reason. He submitted that the Applicant’s continuing denial of his offences ought not operate as a governing factor leading to refusal of parole.

64 The Applicant was convicted of serious sex offences following two separate trials. His appeals against conviction were dismissed by the Court of Criminal Appeal. The SPA exercises its statutory functions as part of the criminal justice process concerning sentence. The SPA is bound to approach its functions upon the basis that the offender is guilty of the crimes for which he was convicted and that the crimes involved the factual matters established by the trial and sentencing court. It is not for the SPA to go behind these findings of guilt: Mott; Lillycrop; Hepworth.

65 Accordingly, the SPA was to exercise its statutory functions with respect to the Applicant upon the basis that he had committed the acts referred to in paragraphs 8 and 9 above, which constituted serious criminal offences, but that the Applicant continued to deny that he had committed these crimes.

66 During the course of the hearing, I raised with counsel the fact that a similar issue has been considered in a different statutory context and for a different purpose. Where a medical practitioner has been deregistered for professional misconduct involving sexual misconduct with patients which was denied by the practitioner, the question of the practitioner’s approach to the misconduct is relevant if an application is made for re-registration at a later time. The function being undertaken by the Medical Tribunal in this respect is primarily for the protection of the public: Health Care Complaints Commission v Litchfield (1997) 41 NSWLR 630 at 637. A medical practitioner who has been deregistered because of proven misconduct is not required to confess before he is reinstated. However, continuing vigorous challenge to clearly established guilt may be indicative of continuing unfitness: Zaidi v Health Care Complaints Commission (1998) 44 NSWLR 82 at 100.

67 The Zaidi principle is broadly consistent with the approach taken in parole cases in other jurisdictions referred to above. An offender’s continuing denial of guilt ought not operate as an automatic disqualifying factor with respect to parole. Nevertheless, it is relevant to the parole decision. Likewise, a refusal to apply for entry to a custodial sex offender’s program is relevant to the parole decision. It is necessary, however, that the SPA consider all the circumstances of the case, including these features, in determining whether parole will be granted or refused.

68 The Applicant had been in custody since being sentenced in 1999. The SPA was required under ss.135 and 135A CAS Act to give direct consideration to the Applicant’s risk of reoffending and associated matters. There was, within the prison system, a treatment program available for sex offenders which assisted the process of risk assessment with respect to those offenders. It is understandable that the SPA would regard this program as being the primary method of assessing sex offenders in the interests of reducing the risk of reoffending and promoting rehabilitation. A refusal by an offender to apply to enter the program is a factor which the SPA is able to take into account.

69 The Applicant relied upon the decision of Adams J in Galli. It does not appear from an examination of his Honour’s judgment that the information provided to his Honour concerning eligibility for the CUBIT program was the same as that which was placed before me. I agree with his Honour’s observation at paragraph 7 that the question for the SPA is whether, in all the circumstances, an offender should be released to parole having regard to the criteria specified in the CAS Act. I agree with Adams J’s comment in Galli at paragraph 7 that the nature of the offending itself is of significant importance. However, there are significant factual differences between the present case and Galli. In Galli, the offence involved a single incident which was said to be out of character for the offender (paragraph 7). In the present case, the Applicant committed offences against two victims, with the 1995 offences involving a 12-year old female relative and the 1997 offence involving a 26-year old female acquaintance. This history of offending was one which Dr Nielssen considered made an assessment of the risk of reoffending a difficult one.

70 Unlike the Applicant in Galli, the present Applicant was a repeat sex offender with offences involving both adult and child victims. The repetition of serious offences sheds light upon the risk of reoffending. It is not the evidence in the present case that the Applicant has been refused access to the sex offender program because he has denied his guilt of the offences. In this respect, the Applicant is in a different position to the offender in Varney who had applied on seven occasions, unsuccessfully, for admission to the custodial sex offender’s treatment program. Rather, despite recommendations made by the Probation and Parole Service, psychologists and the case management team, the Applicant has refused to apply for the custodial sex offender program.

71 The Applicant relied upon the decision of Rothman J in Esho v State Parole Authority of New South Wales [2006] NSWSC 304 where his Honour observed at paragraph 48 that the offender (who was not a sex offender) had undertaken all custodial programs available to him except one for which he was unavailable because of his lack of English. I do not consider that there is any parallel with the present case, where the Applicant has declined to apply for the CUBIT program despite recommendations by relevant personnel that he should do so.

The Blanket Policy Issue

72 Mr Haesler SC submitted, by reference to Green v Daniels (1977) 51 ALJR 463, that the SPA applied an inflexible general rule to the Applicant which involved the taking into account of false and irrelevant material, being a blanket policy to refuse parole to sex offenders who had not undertaken the CUBIT program.

73 Green v Daniels was not a case of inflexible application of policy. Rather, Stephen J at 467, said that it raised the question whether the departmental policy or instructions revealed an attempt to substitute inconsistent departmental criteria for those which the Parliament had enacted: Cummeragunga Pty Limited (In Liq) v Aboriginal and Torres Strait Islander Commission (2004) 210 ALR 612 at 630.

74 In my opinion, the approach of the SPA does not reveal the application of a blanket policy to the Applicant’s case. The SPA has not attempted to substitute inconsistent criteria for those which the Parliament has enacted. Consideration of a sex offender’s preparedness to undertake a custodial sex offender’s program is not inconsistent with the statutory criteria in ss.135 and 135A. There is express reference in s.135A(e) to the offender’s willingness to participate in rehabilitation programs. Further, s.135(2)(k) enables the SPA to have regard to such other matters as the SPA considers relevant. This provision is one of considerable width as it allows the SPA to determine what is relevant: McCallum v Parole Board at paragraph 28. Of course, that determination would not permit the SPA to have regard to considerations which were entirely extraneous to the statutory decision to be made under s.135(1) CAS Act.

75 In assessing the Applicant’s submission based upon Green v Daniels, it is pertinent to refer to material which sheds light upon the purpose and object of ss.135 and 135A CAS Act. In the course of the second reading speech with respect to the Crimes (Administration of Sentences) Amendment (Parole) Bill 2004, being the legislation which established the SPA and enacted ss.135 and 135A in their present form, the Minister for Justice, Mr Hatzistergos said (Hansard, Legislative Council, 9 December 2004):

“Parole is a pivotal phase in the rehabilitation of an offender. The Government recognises, however, that not all offenders are eager to address their offending behaviour. The Government is of the view that an offender wanting parole should display a desire to behave lawfully and a willingness to address his or her offending behaviour. An underlying principle of the bill before the House is that parole is a privilege not a right.
…
The need to protect the community is a theme that flows through the bill. Proposed new section 135 relates to the general duty of the SPA. New section 135(2) contains several matters that previously the SPA did not have to take into account in deciding whether the release of an offender was in the public interest. The new matters that must be taken into account are the need to protect the community, the need to maintain confidence in the administration of justice, the nature and circumstances of the offence, and guidelines established by the SPA in consultation with the Minister in relation to the exercise of the SPA’s function.
…
New section 135A sets out matters to be addressed in a report provided to the SPA by the Probation and Parole Service in relation to the granting of parole to an offender. The SPA will also address these factors in its decision. The Probation and Parole Service must examine such things as the risk of the offender reoffending while on parole and the measures to be taken to reduce that risk. The offender’s willingness to participate in rehabilitation programs, and the offender’s success or otherwise in such programs must be commented upon. The report is to address the offender’s attitude to any victim of the offence, and to the family of any such victim. In section 135A the Government is ensuring that the SPA, which is essentially a decision-making body, is provided with the information that it needs from the Probation and Parole Service to make informed decisions.
…
The Government is of the view that the SPA is in the best position to determine whether an offender should be entitled to a review hearing. In some cases the SPA will recognise at the outset that a review hearing will be necessary in order to make a final decision in respect of parole. In other cases the onus will be placed rightly on the offender to satisfy the SPA by way of a written application that the offender‘s circumstances warrant a review hearing. Most people would agree, for example, that a sex offender should not be automatically entitled to a review hearing if the offender has refused to participate in the sex offender programs offered by the Department of Corrective Services. New sections 139 and 146 recognise, among other things, that the SPA has finite resources that should not be wasted on offenders who have made no attempt to address their offending behaviour.”

76 The SPA is the decision-making body for the purposes of ss.135 and 139 CAS Act. Both provisions are relevant to this case. The SPA must look to the terms of the CAS Act itself in determining the matters to take into account in its decision-making process. The Green v Daniels submission of the Applicant contends that the SPA is substituting criteria in its decision making which are inconsistent with the criteria which Parliament has enacted. The observations of the Minister in the second reading speech tend to confirm the relevance of factors such as an offender’s willingness to undertake a custodial sex offender’s program to the exercise of the SPA’s statutory functions. It is, of course, necessary for the SPA to consider all the circumstances of each case. Nevertheless, an offender’s willingness or unwillingness to undertake such a program is an important factor.

77 Against the background of these general observations, I return to the specific grounds raised by the Applicant.

The Applicant’s Specific Grounds

78 Ground 1(a) asserts that the SPA’s reliance on the Static 99 alone as a predictor of risk was misleading. Mr Haesler SC submitted that the SPA relied solely upon a static risk assessment and took no account of Dr Nielssen’s and Ms Robilliard’s risk assessments. He submits that, as a result, the SPA ‘s decision was made on the basis of irrelevant information for the purposes of s.155(1)(b) CAS Act.

79 Mr Lonergan submits that the SPA had before it all the information, including the reports of Dr Nielssen and Ms Robilliard, and that the SPA did not state that it was acting alone by reference to the static risk assessment. He submitted that it was but one criterion taken into account. There was limited material available to the SPA by way of dynamic risk assessment. Dr Nielssen’s report contained limited analysis and his opinion was expressed shortly after he had indicated that an assessment was difficult in the circumstances of this case. The SPA decided that it would not release the Applicant to parole and requested that a full psychological assessment and report be prepared for the next occasion when the Applicant’s case came before the SPA.

80 It is clear that the SPA had regard to all the information before it, including the reports of Dr Nielssen and Ms Robilliard. It was a matter for the SPA to form its own view with respect to the material in reaching a decision for the purpose of s.135(1) CAS Act. Ms Robilliard’s report did not contain a risk assessment. Dr Nielssen’s report expressed an opinion, but with limited explanation as to how the opinion had been formed. I am not satisfied that the SPA relied on the Static 99 risk assessment alone as a predictor. I note that Static 99 appears to be used in other jurisdictions as part of the risk assessment process for sex offenders. See, for example, Oakes v Corrective Services (Qld) (2004) 144 A Crim R 334 at 339; Green v R [2004] NTSC 65 at paragraph 19; R v Armfield (2005) 155 A Crim R 299 at 314 (SA); Director of Public Prosecutions v TP [2005] VSCA 88 at paragraph 17. It appears to be a common tool in risk assessment of sex offenders, although it forms only part of the process. I am not satisfied that the decision has been based on misleading information in the manner alleged in Ground 1(a).

81 Ground 1(b) contends that the SPA acted on misleading and irrelevant information by requiring that the Applicant submit to a full psychological assessment when there were two full reports (those of Dr Nielssen and Ms Robilliard) already provided to them. As I have noted, Ms Robilliard’s report contained no risk assessment concerning the Applicant and Dr Nielssen’s report was based upon the limited analysis contained in his report.

82 In my view, the SPA was not bound to act upon the reports of Dr Nielssen and Ms Robilliard. It was open to the SPA to determine that a full psychological assessment ought be obtained concerning the Applicant. It appears that the SPA’s view was that a dynamic risk assessment ought be provided with that assessment taking into account the Applicant’s response to a custodial treatment program. Although Dr Nielssen is an experienced forensic psychiatrist, his conclusion was based upon a single interview with the Applicant together with written material which had been provided to him. I am not satisfied that the SPA decision has taken into account misleading and irrelevant information by fixing a requirement that a full psychological assessment be provided with respect to the Applicant for future consideration. This course was open to the SPA in the discharge of its statutory functions concerning the Applicant and no basis for a direction under s.155 has been demonstrated in this respect.

83 Ground 1(c) contends that the recommendation that the Applicant not be released to parole until he had completed a relevant sex offender course in custody created the false impression that the Applicant could successfully complete the course and that such completion would reduce the risk of offending behaviour. Mr Haesler SC submitted that, even if the Applicant could be admitted to the CUBIT program, he could not complete it. Further, he submitted that the SPA acted upon the false impression that completion of the CUBIT program would reduce the risk of the Applicant reoffending. Mr Lonergan submitted this was an erroneous construction of what the SPA had done and that no basis for a s.155 direction arose in this respect.

84 The factors which the SPA identified as the reasons for refusing parole included the Applicant’s risk of reoffending, his need to address his offending behaviour and his inability to adapt to normal lawful community life. The SPA stood the matter over to 10 November 2006 with reports to be provided no later than 23 October 2006 being a Probation and Parole Officer’s report, a Correctional Centre report, and a psychological assessment/report regarding the Applicant’s risk of reoffending. Mr Haesler SC submits that these requirements necessarily demand that the Applicant undertake and complete the CUBIT program which can then be the subject of a psychological assessment and report with respect to his risk of reoffending. He contends that this is implicit in the SPA’s decision.

85 I accept that it is implicit in the SPA’s decision that the Applicant ought apply for and enter the CUBIT program in accordance with recommendations made to him. However, the Applicant has not demonstrated that the decision took into account false information for the purposes of s.155 of the Act. The information before the SPA was that it had been recommended that the Applicant undertake the CUBIT program. He declined to do so as he denied being a sex offender. Whether that attitude of denial is maintained should he be admitted to the program would depend upon the Applicant’s response to the program once admitted. It may be that the Applicant’s attitude would cause a problem for his continuation in the program. Then again, the Applicant’s attitude may change as a result of the processes to be undertaken as part of the program. That, after all, is one of the purposes of the program which includes the targeting of denial and minimisation of offending behaviour. In my view, the Applicant’s election not to enter the program ought not then be able to be utilised in his favour as a means of neutralising concerns about his risk of reoffending. On the information before the SPA, the Applicant had not accepted treatment for his offending behaviour whilst in custody.

86 Because the Applicant placed information before the SPA (in his 6 September 2005 submission) concerning the suggested low success rate of the CUBIT program, the SPA provided information to me, by way of submission, concerning that topic. I was informed that, between January 1999 and September 2005, 60% of those who commenced the CUBIT program had completed it. Following changes to the program which commenced in September 2005, it was expected that completion rates between September 2005 and May 2006 would be around 99%, namely a drop-out rate of 1%. I was informed that denial of certain aspects of offending (for example, denial of a particular sexual act) does not render an offender ineligible for the CUBIT program. Categorical denial (that is, absolute denial of any sexual or other contact with the victim) may result in ineligibility for CUBIT. It was noted that offenders who categorically deny their offending are unlikely to accept a referral to CUBIT, on account of accepting a referral to CUBIT is seen as “wanting treatment” for sexual offending.

87 It appears that the Applicant’s attitude up to the present time has fallen into the lastmentioned category, namely, that he does not want to be seen as wanting treatment for sexual offending. He says that he does not need it. In reference to other factors which may bear upon his eligibility for CUBIT, I note that the Applicant acknowledges an association with his two victims and, in one case, admits that sexual contact occurred. He accepts that he had sexual intercourse with the adult victim, but maintains that it was consensual. He denies any sexual offence with respect to his 12-year old niece, although, as a relative of the Applicant, she was no stranger to him.

88 Until the Applicant applies for entry to the CUBIT program, it cannot be known whether he will be refused entry or, if he is admitted, whether he will fail to complete it. It is an understandable position of the SPA that sex offenders, in particular repeat sex offenders against different victims, ought be encouraged to undertake the CUBIT program.

89 Information provided to the Court, by way of submission, indicates that the Static 99 risk assessment has a predictive accuracy of .71 which represents moderate prediction and a significant improvement on clinical opinion. It is said that risk assessment will be more robust when results of the Static 99 are provided in conjunction with a thorough analysis of dynamic risk factors.

90 I am not satisfied that the Applicant has demonstrated a basis for a s.155 direction arising from Ground 1(c).

91 Ground 1(d) asserts that the recommendation that the Applicant not be released to parole until he had completed a relevant sex offender course involved the application of a blanket policy without proper reference to the individual circumstances of the Applicant. I have mentioned earlier Mr Haesler SC’s reliance upon Green v Daniels. I am not satisfied that the principle in Green v Daniels operates in the Applicant’s favour in this case. I am not satisfied that the SPA applied a blanket policy in this case without proper reference to the individual circumstances of the Applicant.

92 All the material was before the SPA. Sections 135 and 135A require the SPA to have regard to a range of factors, including the Applicant’s risk of reoffending and the protection of the community. The utilisation of a custodial sex offender’s program in New South Wales, and the expectation that sex offenders involve themselves in such a program whilst in custody is not, in my view, an approach that is inconsistent with ss.135 and 135A of the Act. Whilst offenders remain in custody, there is an opportunity for extended assessment and counselling in the CUBIT program. It might be expected that many offenders will find that process troubling, difficult and uncomfortable. Many offenders may prefer not to do it at all. Nevertheless, it is open to the SPA to regard the undertaking of the CUBIT program by a sex offender as a most important matter bearing upon the decision whether to grant parole.

93 Ground 1(e) contends that the supplementary pre-release report failed to consider alternatives to refusal of parole including the risk to the community of the offender’s unsupervised release after completion of the balance of his sentence and the finding of the sentencing judge that parole be considered despite the Applicant’s denial of guilt. It is important to bear in mind that s.155 CAS Act directs attention to the question whether the SPA’s decision was made on the basis of false, misleading or irrelevant information. The supplementary pre-release report was but one piece of information, albeit an important one, which was before the SPA. Other information before the SPA included the reports of Dr Nielssen and Mr Robilliard and the evidence given at the SPA hearing on 10 November 2005. The SPA comprised seven members, including a judicial member, all of whom had been provided with the totality of the written material. Ground 1(e) does not contend directly that the decision of the SPA was based upon false, misleading or irrelevant material.

94 It was a matter for the SPA, based upon all the material before it, to form its own view as to whether it could reach the level of satisfaction on the balance of probabilities, required by s.135(1) CAS Act. The SPA had before it information about the Applicant’s proposed post-release arrangements. No basis has been demonstrated by reference to Ground 1(e) for a direction under s.155 CAS Act that the SPA’s decision was based upon false, misleading or irrelevant information.

95 Ground 2 contends that the SPA’s request that the Applicant undergo a full psychological report prior to the next hearing indicated that no proper consideration was given to the reports of Dr Nielssen and Ms Robilliard and that the SPA did not have sufficient cause to refuse parole. It is contended, inferentially, that false, misleading and irrelevant information was taken into account. The ground, in a sense, restates grounds which I have already determined.

96 In my view, that was no fundamental inconsistency in the SPA refusing the Applicant parole in the face of the reports of Dr Nielssen and Ms Robilliard. It was open to the SPA to conclude that those reports did not constitute a foundation for the requisite degree of satisfaction under s.135(1), after taking into account the factors set out in s.135(2) and s.135A CAS Act. It seems clear from the SPA’s decision that it was not prepared to accept, for the purposes of its statutory function, that Dr Nielssen’s single paragraph concerning the risk of reoffending was determinative of the Applicant’s parole application. In my view, the matters complained of in Ground 2 do not demonstrate that the decision of the SPA took into account false, misleading or irrelevant material for the purposes of s.155(1) CAS Act.

97 Ground 3 contends that the Applicant’s refusal to undertake the CUBIT program did not give the SPA sufficient cause to refuse parole and that this approach indicates that false, misleading and irrelevant material was taken into account. In my view, it was clearly relevant to the SPA’s determination that the Applicant had refused to apply for the CUBIT program despite recommendations having been made that he should do so. Some of the authorities which I have cited from other jurisdictions support this approach. The SPA, of course, was bound to approach the Applicant’s case upon the basis that he was a repeat sex offender. It was a matter for the SPA to determine, on all the information before it (which included the Applicant’s refusal to apply for the CUBIT program), whether it was satisfied, on the balance of probabilities, that parole ought be granted to the Applicant under s.135(1) CAS Act.

98 In my view, it was open to the SPA to form the conclusion that parole ought be refused. I am not satisfied that the decision of the SPA took into account information that was false, misleading or irrelevant for the purpose of s.155(1) in the manner alleged in Ground 3.

Conclusion

99 An application under s.155 CAS Act is, as the Court of Criminal Appeal has acknowledged, a limited form of review. The heads of argument which might be available on an application for prerogative relief under s.69 Supreme Court Act 1970 are wider than the available grounds under s.155(1). In drawing this comparison, it should not be taken that I am indicating that any basis for relief under s.69 Supreme Court Act 1970 would have been available in this case.

100 It is clear that the SPA is called upon to make difficult decisions involving the balancing of a number of factors arising under ss.135 and 135A CAS Act, where some of these factors may point in different directions. In McCallum v Parole Board, it was observed at paragraph 30 that the question of granting parole is usually one of considerable difficulty when the offender maintains his innocence and the crime committed is one which evinces matters which need to be addressed before the offender is released on parole.

101 The 2004 amendments to the CAS Act appear to have emphasised the importance of the protection of the public and the risk of reoffending in making a parole decision. No doubt, the SPA will bear in mind that, where an offender is not released on parole but serves his entire sentence, he will be released into the community without supervision.

102 It is true, as the Applicant pointed out in his submission to the SPA, that upon release, he will be subject to the provisions of the Child Protection (Offenders Registration) Act 2000. That Act imposes registration and reporting requirements for offenders who commit sexual offences against children. However, the requirements of that Act are significantly different to those arising from conditional release on parole as the final component of serving a sentence of imprisonment.

103 I am not satisfied that the Applicant has demonstrated any basis for a direction to be given under s.155(1) CAS Act.

104 The application is dismissed.

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