Dylan Hurst v NSW State Parole Authority

[2019] NSWSC 901

Supreme Court

New South Wales

• Amendment notes

Medium Neutral Citation:	Dylan Hurst v NSW State Parole Authority [2019] NSWSC 901
Hearing dates:	28 May 2019
Decision date:	28 May 2019
Jurisdiction:	Common Law
Before:	Hamill J
Decision:	(1) Application dismissed.
Catchwords:	ADMINISTRATIVE LAW – judicial review – decision of State Parole Authority - allegation that parole was revoked on the basis of false, misleading or irrelevant information – extremely circumscribed power of the Court to review decision – sad and compelling features of case already considered by State Parole Authority
Legislation Cited:	Crimes (Administration of Sentences) Act 1999 (Cth)
Category:	Principal judgment
Parties:	Dylan Hurst Crown Solicitor’s Office
Representation:	Counsel: J E Davidson (Defendant)   Solicitors: Crown Solicitor’s Office (Defendant)
File Number(s):	2019/00097361
Publication restriction:	Nil

EX TEMPORE Judgment

1. HAMILL J: Dylan Hurst seeks an order under the Crimes (Administration of Sentences) Act 1999 (Cth) directing the State Parole Authority to revisit a decision or perhaps two decisions by which Mr Hurst’s parole was revoked. As a consequence of the revocation of parole, Mr Hurst is currently serving out the entirety of his sentence, which was at one stage subject to a statutory parole order, it being a sentence of less than three years.

2. The first decision which is impugned was made on 30 January 2019. That was a decision to revoke Mr Hurst’s parole. The second decision, and the one that is truly or in reality the subject of this application, was made on 7 March 2019. That was a decision confirming the earlier revocation order made, as I said, on 30 January 2019.

3. This Court’s jurisdiction to consider Mr Hurst’s application is governed by s 176 of the Crimes (Administration of Sentences) Act, which is:

1. If:

1. the Parole Authority revokes an intensive correction order or parole order, and

2. the offender to whom the intensive correction order or parole order relates alleges that the order has been revoked on the basis of false, misleading or irrelevant information, the offender may, in accordance with rules of court, apply to the Supreme Court for a direction to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.

4. This section does not give the Supreme Court jurisdiction to consider the merits of the Parole Authority's decision otherwise than on the grounds referred to in subsection (1).

4. Both the terms of the above section and the authorities that have been decided under it provide that the Court’s power to interfere with, overturn, or demand that the parole authority reconsider decisions that it has made is extremely confined. [1] As Ms Davidson submitted, who appears for the Attorney General intervening. It is even more retrospective than in the ordinary case of judicial review. The position of the Attorney General is that the application ought not to be considered because there does not appear to be sufficient evidence to support the application: s 176(3).

   1. Townsend v Parole Board [2001] NSWCCA 379; LMS v Parole Board (1999) 110 A Crim R 172.

5. The background to the matter is that on 8 August 2018 Mr Hurst was sentenced for an offence of receiving to a term of imprisonment of 1 year and 8 months with a non-parole period of 9 months. That sentence was backdated to the date of his arrest, being 18 November 2017. The whole of the sentence expires on 17 July 2019. Mr Hurst was released to parole on 17 August 2018. It seems he complied with the parole order for a number of months but on 1 December 2018 he was arrested after police found some drugs and equipment for administering those drugs on him or on his premises. He pleaded guilty to three drug offences and was fined $330 for each of those offences.

6. Then on 4 January 2019 a Community Corrections Officer made the decision to file a breach of parole report, which detailed his purported failure to engage in interventions to address his criminogenic needs and his failure to maintain contact with Community Corrections. That officer recommended that the parole be revoked.

7. It was on 30 January 2019 that the parole authority considered the breach report and revoked Mr Hurst’s parole on the grounds that he had breached certain conditions of the parole order, they being numbered 5 and 6. There was then an application to review that decision which was heard on 7 March 2019.

8. I have reviewed the transcript of that decision. Mr Hurst provided an explanation for his failing to comply with the parole order and his resort to drugs. Those reasons are sad and compelling and concern deaths of his younger sibling and his grandfather. Those deaths occurred within a few months of each other and resulted in a great deal of, as he put it, emotional pain and distress for both him and his mother. He found himself suffering from severe depression and anxiety and it was in that context that he, as he put it, self-medicated by using methylamphetamine.

9. In spite of that information and submissions made on his behalf, the parole authority made the decision, whilst expressing its “sympathy” for him, to confirm its earlier order revoking parole, the result of which is that Mr Hurst is still in custody and almost inevitably, it seems from the practical information that I have been provided with today, will serve out the whole of his sentence without any period on parole, without any supervision or support from the parole authorities and will simply be released at the conclusion of the entirety of the sentence.

10. As I have said, the power of this Court to intervene in a case like this is extremely circumscribed and requires there to be evidence that the parole authority was somehow misled, provided with irrelevant information or false information. It might also be the case that if there is new information whereby it could be said that the authority was misled, then the Court could make orders under s 176.

11. What this Court is simply not permitted to do is to conduct a merits review of what happened at the parole authority. The reality is that Mr Hurst is indeed inviting the Court to engage in a merits review. He is relying on the same sad and compelling features of his case, which he relied upon before the parole authority.

12. At the very conclusion of the hearing before the parole authority, the presiding judicial officer said this:

“You can make an application for manifest injustice. That will be explained to you but for now we decline to rescind.”

13. Ms Davidson puts to me, and I accept that, that was a reference to s 137B Crimes (Administration of Sentences) Act, which states that:

The Parole Authority may consider an offender's case at any time after the date on which the offender first becomes eligible for release on parole, and without the need for an application, in such circumstances as may be prescribed by the regulations as constituting manifest injustice.

14. For present purposes it is unnecessary to go to the regulations to consider that further, but Mr Hurst has said to me today that he in fact thought today was the “manifest injustice” hearing. Of course it is not, it is the strictly confined review allowed by ss 136 and 176.

15. I have some views about the decisions taken by the Parole Board but those views are not relevant to this application. I have a great deal of sympathy for Mr Hurst and think it would be much better for the community and for him if he was on parole and receiving some assistance. However, the statutory provision under which I am bound to act does not allow me to give expression by orders to those opinions.

16. Accordingly, the position taken by the Attorney General which is to dismiss the application under s 176 must carry the day and the application is dismissed.

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Endnote

Amendments

15 July 2019 - Defendant amended