Doyle v State Parole Authority of NSW

[2019] NSWSC 774

Supreme Court

New South Wales

Medium Neutral Citation:	Doyle v State Parole Authority of NSW and Anor [2019] NSWSC 774
Hearing dates:	24 June 2019
Decision date:	24 June 2019
Jurisdiction:	Common Law
Before:	R A Hulme J
Decision:	1. An order directing the State Parole Authority pursuant to s 155 of the Crimes (Administration of Sentences) Act 1999 (NSW) that: a. The pre-release report of Community Corrections dated 15 October 2018 contained misleading information, being that the plaintiff's 13 outstanding charges were listed for hearing on 3 December 2018 (when the true position was that those charges were not listed for hearing at that date); and b. The effect of the Authority basing its decision on this misleading information is to give rise to a circumstance of "manifest injustice" within the meaning of s 137B of the Crimes (Administration of Sentences) Act 1999 (NSW). 2. No order as to costs. 3. That the proceedings are otherwise dismissed.
Catchwords:	ADMINISTRATIVE LAW – proper basis for directions pursuant to s 155 of the Crimes (Administration of Sentences) Act 1999 (NSW) – where satisfied that Community Corrections pre-release report contained misleading information – where satisfied that State Parole Authority’s decision to refuse parole based on misleading information gave rise to circumstance of “manifest injustice” – consent orders made
Legislation Cited:	Crimes (Administration of Sentences) Act 1999 (NSW) ss 137B, 155, 155(2) Crimes (Administration of Sentences) Regulation 2014 (NSW), cl 223
Cases Cited:	Doyle v R; R v Doyle [2014] NSWCCA 4
Category:	Principal judgment
Parties:	Philip William Doyle (Plaintiff) NSW State Parole Authority (First defendant) Attorney General for New South Wales (Second defendant)
Representation:	Counsel: Mr J Agius SC (Plaintiff) Mr M Dalla-Pozza (First and Second defendants)   Solicitors: Uther Webster & Evans (Plaintiff) Crown Solicitor’s Office (First and Second defendants)
File Number(s):	2019/88053

Judgment

1. HIS HONOUR: The plaintiff, Philip William Doyle, is serving a sentence for some 33 historical child sexual assault offences that were committed mostly in the period 1980 to 1990, but with three further offences in 2003. The sentence initially imposed upon him was, in part, quashed by the Court of Criminal Appeal in upholding a Crown appeal in Doyle v R; R v Doyle [2014] NSWCCA 4. The overall sentence to which Mr Doyle is now currently subject is one of 9 years with a non-parole component of 6 years, 6 months. His earliest parole release date was 3 January 2019.

2. The State Parole Authority (the Authority) considered whether Mr Doyle should be released on parole at its meeting on 1 November 2018. The Authority had regard to a Pre-Release Report by a Community Corrections officer that included the information that Mr Doyle had recently been charged with a multitude of further historical child sexual assault offences. The report included that those charges were "listed for hearing on 3/12/2018 at Sutherland Local Court". The Authority refused parole.

3. In its reasons for that refusal, the Authority made a number of references to the fresh charges being listed in the Local Court on 3 December 2018, including that, "Community Corrections do not recommend the release of the offender to parole given the outstanding matters to be heard at Sutherland Local Court on 3 December 2018." In its conclusion it said, "Given that the offender had outstanding matters listed for Sutherland Local Court on 3 December 2018 for which he is bail refused, it is not in the interests of the safety of the community that the offender be released to parole."

4. On 18 January 2019, the Authority declined to review its decision.

5. Mr Doyle commenced proceedings in this Court seeking prerogative relief, and, relevantly, sought a declaration that the decision of the Authority was infected by error in that it took into account "false, misleading or irrelevant information".

6. The Authority has filed a submitting appearance. The Attorney General has been granted leave to intervene to act as a contradictor.

7. Section 155 of the Crimes (Administration of Sentences) Act 1999 (NSW) (the Act) provides, relevantly:

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.

…

8. Material before the Court is to the effect that the charges laid by police in October 2018 were listed at Sutherland Local Court on 3 December 2018. So much was correct; but the fact was the charges were not listed for hearing. The Pre-Release Report by the Community Corrections officer was wrong in conveying that information; the charges were listed on that date for mention. The proceedings were at an early phase of indictable matters proceeding their way through the Local Court. A brief of evidence had not yet been served.

9. It would seem that the Pre-Release Report gave the impression to the Authority that these new charges would be resolved sooner rather than later. That would have had a bearing upon the time available for the plaintiff to engage in rehabilitation programmes which would be relevant to a decision to release him on parole before the expiry of his sentence in mid-2021.

10. The Authority noted that assessment of the plaintiff for sex offender programmes could not be undertaken "until the outstanding matters listed before Sutherland Local Court on 3/12/18 have been finalised". It further reasoned that there was sufficient time prior to the expiration of the plaintiff's sentence on 3 July 2021 to allow the offender to be assessed for sex offender programmes, for the assessment to be completed, and for a period of supervision prior to the expiration of the sentence. That tends to indicate that the Authority mistakenly inferred that the outstanding charges would be finalised on, or shortly after, 3 December 2018.

11. The Attorney General and the plaintiff agree on the terms of a direction that this Court might give pursuant to s 155(2) of the Act. I am satisfied that there is a proper basis to do so.

12. The effect will be, according to s 137B of the Act, that the Authority may give further consideration to the plaintiff's case at any time. That applies in circumstances that are prescribed by the regulations as constituting a “manifest injustice”. Clause 223 of the Crimes (Administration of Sentences) Regulation 2014 (NSW) provides that various circumstances could constitute a “manifest injustice” where parole has been refused; one of them is that if it becomes apparent that the decision to refuse or revoke parole was made on the basis of "false, misleading or irrelevant information". I am satisfied that is what occurred.

13. I make the orders set out in the minute of orders that has been provided to me which are as follows:

1. An order directing the State Parole Authority pursuant to s 155 of the Crimes (Administration of Sentences) Act 1999 (NSW) that:

a.   The pre-release report of Community Corrections dated 15 October 2018 contained misleading information, being that the plaintiff's 13 outstanding charges were listed for hearing on 3 December 2018 (when the true position was that those charges were not listed for hearing at that date); and

b. The effect of the Authority basing its decision on this misleading information is to give rise to a circumstance of "manifest injustice" within the meaning of s 137B of the Crimes (Administration of Sentences) Act 1999 (NSW).

2.   No order as to costs.

3.   That the proceedings are otherwise dismissed.

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Decision last updated: 25 June 2019