Karpatsis v Parole Authority of New South Wales

[2020] NSWSC 1326

Supreme Court

New South Wales

• Summary available

Medium Neutral Citation:

Karpatsis v Parole Authority of New South Wales [2020] NSWSC 1326

Hearing dates:

17 September 2020

Decision date:

30 September 2020

Jurisdiction:

Common Law

Before:

Rothman J

Decision:

(1)   Application dismissed;

(2)   Proceedings dismissed.

Catchwords:

ADMINISTRATIVE LAW – appeal under Crimes (Administration of Sentences) Act 1999 (NSW) – refusal of parole by State Parole Authority – whether decision based on false, misleading or irrelevant information – application dismissed

Legislation Cited:

Crimes Act 1900 (NSW), s 112(1)(a)

Crimes (Administration of Sentences) Act 1999 (NSW), ss 135, 137B, 139, 155

Cases Cited:

Burbank Australia Pty Ltd v Luzinat [2000] VSC 128

Esho v Parole Board Authority of NSW [2006] NSWSC 304

Fairfax Media Publications Pty Ltd v Cummings (2012) 269 FLR 182; [2012] ACTCA 36

Parisienne Basket Shoes Pty Ltd v Whyte (1938) 59 CLR 369; [1938] HCA 7

Category:

Principal judgment

Parties:

Spiros Karpatsis (Applicant)
Parole Authority of New South Wales (First Respondent)
Attorney General for New South Wales (Second Respondent)

Representation:

Counsel:
Self-represented (Applicant)
Submitting appearance (First Respondent)
P Aitken (Second Respondent)

Solicitors:
Self-represented (Applicant)
Crown Solicitor’s Office (Respondents)

File Number(s):

2020/222762

Judgment

1. HIS HONOUR: The applicant, Spiros Karpatsis, seeks, by a document entitled “Application For Direction To Parole Authority” filed on 30 July 2020, a direction from the Court, pursuant to s 155 of the Crimes (Administration of Sentences) Act 1999 (NSW) (hereinafter “the Act”). The direction sought is directed to the Parole Authority of New South Wales (hereinafter “the Authority”), which is the first respondent in these proceedings.

2. The direction sought is to the effect that certain information contained in a “Pre-Release Report, Manifest Injustice” prepared by a Community Corrections Officer, dated 2 July 2020 (hereinafter “the Report”), prepared for and submitted to the Authority for a manifest injustice application private meeting/hearing, held on 16 July 2020, was false, misleading and/or irrelevant.

3. Central to the applicant’s contention is that the Report stated that he was eligible to complete an Intensive Drug and Alcohol Treatment Program (hereinafter “IDATP”) offered at the Geoffrey Pearce Correctional Centre (formerly known as the OMPCC) and that completion would take him to a point in time near his parole eligibility date (asserted by the applicant to be November 2020) and that these statements were false or misleading in that the applicant was unable to be classified to the Geoffrey Pearce Correctional Centre and, therefore, could not complete the IDATP by November 2020.

4. The first respondent has filed a submitting appearance. The Attorney General for New South Wales (hereinafter “the respondent”) has been granted leave to intervene as the contradictor and is named as the second respondent in these proceedings.

Background

5. The applicant is currently serving an aggregate sentence of 6 years and 3 months’ imprisonment for seven counts of break, enter and steal in contravention of s 112(1)(a) of the Crimes Act 1900 (NSW). This sentence was imposed by Yehia SC DCJ on 11 May 2018. His non-parole period of 3 years and 3 months expired on 12 January 2020 and his head sentence is set to expire on 12 January 2023.

6. On 7 November 2019, the Authority refused the applicant’s application for release to parole on the asserted basis of his poor custodial behaviour. There had been a number of internal misconduct charges in custody.

7. The other matters upon which the Authority relied were the applicant’s continued drug use and inability to address this offending behaviour. The Authority came to the view that the applicant presented as an unacceptable risk to community safety. The applicant sought a review of that decision.

8. On 20 February 2020, at a Parole Review Hearing held to deal with the applicant’s application under s 139 of the Act, the Authority confirmed its decision to refuse to grant parole on the basis that the applicant needed (a) to develop coping skills within custody; (b) to demonstrate a longer period of good behaviour; (c) to complete programs to address his offending behaviour; and (d) to improve his classification in prison, prior to his release. The Review Hearing received evidence and submissions on behalf of the applicant.

9. The Review Hearing took evidence from a Community Corrections Officer. The judge’s notes from the hearing record the following entries:

1. “currently ineligible to IDATP due to classo [sic]”; and

2. “next classification review October 2020-they are held on a yearly basis”.

10. In April 2020, the applicant’s classification was altered to a minimum security C1 classification. This occurred prior to the Manifest Injustice Hearing, which is the subject of the application to this Court.

11. On 15 May 2020, the applicant’s legal representative filed a request under s 137B of the Act for a consideration of the applicant’s case so as to avoid manifest injustice (hereinafter “the Manifest Injustice Hearing”). Among other things, the applicant submitted that it would be manifestly unjust to require the applicant to serve a further five months in prison on the basis that he had achieved a C1 classification; demonstrated a period of seven months between internal charges; and participated in the only intervention program available to him, namely, the EQUIPS Addiction Program.

12. At the Manifest Injustice Hearing, held on 16 July 2020, the Authority considered the applicant’s request and refused to grant parole on the basis that (i) the Community Corrections Officer did not recommend the grant of parole; and (ii) the applicant had not addressed the reasons for refusal of the parole. The applicant’s application to this Court relates to the Manifest Injustice Hearing and the fact that the Report was before the Authority at the meeting.

13. The applicant was self-represented before the Court, as presently constituted, and filed a bundle of documents, all of which were admitted into evidence, notwithstanding that some of them, at least, were strictly inadmissible. The applicant relies upon the various documents in that bundle, all of which were annexed to the application and filed on 30 July 2020. There are also further materials that the applicant filed on 18 August 2020, upon which the applicant relies and of which the Court has had cognisance.

Applicant’s Submissions

14. The applicant, in the application filed on 30 July 2020, asserts that a statement in the Report alleged to have been to the effect that he would be “eligible to complete IDATP Program by November 2020” was false and misleading. This submission was agitated on the basis that, as at March 2020, and again as at 16 July 2020, the applicant could not be transferred to the Geoffrey Pearce Correctional Centre, which forms part of the John Morony Correctional Complex, now called the Francis Greenway Correctional Complex. That is the correctional facility or complex at which the Program is offered.

15. The IDATP Program takes a minimum of four months to complete. During the course of the Program the applicant would be required to be accommodated in a single cell for medical reasons. The applicant’s requests to be transferred were refused on the basis that a “one out” cell placement could not be accommodated at the Correctional Centre.

16. Further, the applicant asserts, in the submissions filed on 18 August 2020, that numerous pieces of information contained in the Report are false, misleading and/or irrelevant. The reasons for the information being “false, misleading and/or irrelevant” are:

1. The applicant contends that the statement in the Report alleged to have been to the effect that the applicant would be eligible to complete IDATP by November 2020 was “false and misleading as early as March 2020 I cannot be classified to the OMPCC”. This is the same allegation as was asserted in the application dated 30 July 2020. The applicant appears to be saying that it was misleading to say that the applicant was eligible for IDATP and that completion of it could be achieved “before his next parole eligibility date”.

2. The applicant also contends that the Report contains statements about the applicant’s offending and the victims which are “contradictive [sic] and attempt to show [the applicant] in a negative light”.

3. In his submissions, the applicant also contends that the Report falsely stated that the applicant had incurred “three institutional misconducts, this information being false as records will show the more serious of these offences Intimidation was dismissed”.

4. The applicant refers to comments on page 3 of the Report to the effect that:

“as a result of these charges, [the applicant] was placed on an eight week Behaviour Management Contract (BMC) from 2 May 2020 to 27 June 2020. The BMC required [the applicant] to remain free of illicit substances, comply with centre rules and routine, remain pro-social, seek and maintain employment and not incur any further charges. While [the applicant] completed his BMC, records detail his inappropriate behaviour and language towards Justice Health Staff during this time”.

5. The applicant asserts that the foregoing comments are “misleading and irrelevant since no institutional misconduct events occurred … since the 2nd May 2020”.

6. The applicant next contends that the Report fails to refer to aspects of the applicant’s mental health, which are described, in the submission of the applicant, in the Medical Certificate for a mental health single cell placement.

7. The next contention to which the applicant refers is that the Report contains a false and irrelevant assertion to the effect that the applicant “appears to have sufficient time remaining on his sentence to participate in pre-release leave programs”. This seems to be a confusing reference by the applicant to the time remaining in the non-parole period, as distinct from the head sentence.

8. The applicant submits that the recommendation that he would benefit from a pre-release program is misleading and irrelevant because of the recommendation of the sentencing judge that he be referred to the Compulsory Drug Treatment Program.

9. At page 4 of the applicant’s submissions, the applicant alleges that the Report’s summary of his behaviour and participation in prison, under the heading “Programs and services in custody”, is misleading and irrelevant, because it is, according to the applicant, contradictory as it contains both positive and negative aspects.

10. The applicant relies upon the IDATP discharge summary which, according to the applicant, contradicts the Report in identifying the applicant will not have sufficient time to complete IDATP. The applicant relied upon this aspect in detail in the course of the oral hearing and it will be dealt with later in these reasons.

11. The Report states that there is no program that is the equivalent of IDATP available in the community and the applicant maintains that this comment is “extremely false and misleading”. The applicant refers to community-based organisations such as Narcotics Anonymous and Alcoholics Anonymous and also refers to a recommendation in the IDATP discharge summary that the applicant engage in trauma and post-traumatic stress disorder counselling in the community.

12. The applicant complains as to a breach of trust because the material under the heading “psychological” in the Report is based upon information that was confidential to the relationship between psychologist and patient, being the applicant and his treating psychologist in prison.

13. The applicant complains about the statement in the Report (at page 4) that the applicant had not completed any other offence related programs, which, according to the applicant, was false and misleading. In support of this contention, the applicant has lodged and referred to a number of certificates produced in annexures to the submissions.

14. Next, the applicant complains about the comment in the Report that the applicant had not engaged in restorative justice and complains that this statement is misleading and irrelevant as it was not an option available to the applicant and, according to the applicant, had been included for the irrelevant purpose of showing the applicant in a negative light.

15. The next contention refers to a statement at page 5 relating to the applicant’s participation in driver knowledge tests on 16 June 2020 and the fact that, according to the Report, the applicant had not engaged in further educational programs.

16. There is a repetition of the first and other contentions.

17. The last contention is a complaint about the statements in the Report, to which some reference has already been made, in or to the effect that the applicant had only superficial contact with psychology services and displayed a lack of insight into his negative behaviours. The applicant relies upon certain attachments to his submissions, which, he argues, are to the opposite effect and asserts, as a consequence of those contradictory documents, that the statement in the Report must, therefore, be false and misleading.

Respondent’s Case

17. The respondent relies upon Affidavits of Courtney Lauren Raad, affirmed 8 September 2020 and Karen Barbara, sworn 8 September 2020, and the exhibits thereto; as well as the Affidavits of Scott Graham, sworn 9 September 2020; Catherine Kersivien, affirmed 7 September 2020; and Philip Hugill, affirmed 4 September 2020.

18. The respondent’s written submissions helpfully summarise the contentions of the applicant. Those contentions (or that summary) is in or to the effect of that summarised above. Essentially, the respondent refers to the principles associated with the jurisdiction under s 155 of the Act and submits to the Court that the applicant is required to establish to the requisite standard that:

1. factual information before the Authority on 16 July 2020 was false, misleading or irrelevant;

2. such information was false, misleading or irrelevant in substance; and

3. the material was at least part of the foundation for the decision.

19. Essentially, given the basis upon which a decision of the Parole Authority can be challenged under s 155 of the Act and the general duties of the Parole Authority in granting parole, the respondent submits that the application is misconceived. Further, the respondent submits that the matters raised by the applicant as “misleading or false” or “irrelevant” are, almost entirely, matters of professional judgement and, in the absence of evidence of lack of bona fides, the applicant cannot meet the requirements necessary for success under s 155 of the Act. Further again, the respondent submits that the applicant has not adduced evidence that could persuade the Court or satisfy the Court that the information was foundational to the Authority’s decision.

Legislation

20. Before considering the submissions of the applicant, it is necessary to deal with the principles that apply in an application under s 155 of the Act. The provisions of s 155 are as follows:

“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.

(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).”

21. Clearly, the Parole Authority has decided that the applicant should not be released on parole and the applicant alleges that the decision has been made on the basis of false, misleading or irrelevant information. As a consequence of the foregoing, the applicant had a right to apply to the Court for a direction to be given to the Parole Authority as to whether the information was false, misleading or irrelevant.

22. On such an application, pursuant to the terms of s 155(2) of the Act, the Court may give such directions in respect of the information as it thinks fit. The reference to “the information” is a reference to that described in s 155(1)(b) of the Act, namely, the information that is alleged to have been “false, misleading or irrelevant”.

23. The jurisdiction of the Court under s 155 of the Act is extremely limited. Were the Court satisfied that the Parole Authority had acted upon false, misleading or irrelevant information, the Court could give directions that the information not be considered or that further enquiry issue for obtaining information that is not false or misleading or irrelevant.

24. The foregoing presents examples for the fundamental proposition that an application under s 155 of the Act is not an appeal in the sense normally understood by the term and the Court is not in a position to correct findings of fact or errors of law. Nor is it in a position to substitute its own view of conclusions of fact and law that should or could arise from the material that has been adduced. The Court is not able to assess the correctness of the Authority’s determination or the applicant’s eligibility for parole.

25. The limited nature of the orders that may issue as a result of any proceedings under s 155 of the Act was the basis upon which the Court issued orders in the nature of certiorari and mandamus, rather than continue with the futile application of s 155, in EshovParole Board Authority of NSW. [1]

    1. Esho v Parole Board Authority of NSW [2006] NSWSC 304.

26. Ultimately, the task of the Parole Authority is to determine whether it is in the interests of the safety of the community for an applicant for parole to be released. The Parole Authority is disentitled from releasing a prisoner on parole, unless the Parole Authority is satisfied that it is in the interests of the safety of the community to release the prisoner.

27. Thus, it is not the objective fact of whether the offender could be released nor the objective conclusion that it would be in the interests of the safety of the community to release that would permit the Court to grant relief of the kind that issued in Esho. [2] Only questions regarding the satisfaction of the Parole Authority as to the preconditions for exercising its jurisdiction to release the offender, may enliven this type of relief, and not the objective existence of the fact or circumstances that it is in the interests of the safety of the community to release him or her.

    2. Ibid.

28. In those circumstances, it is only where the determination in s 135(1) of the Act is not open to the Parole Authority that there may exist jurisdictional error (leaving aside, for present purposes, error such as denial of procedural fairness and the like).

29. Further, by the provisions of s 135(2) of the Act, the Parole Authority is required to have regard to three principal matters: the risks of the safety of members of the community of releasing the offender on parole; whether the release of the offender is likely to address the risk of the offender reoffending; and the risk to community safety of releasing the offender at the end of the sentence without a period of supervised parole.

30. Further considerations are prescribed by s 135(3) of the Act and include: the nature and circumstances of the offence committed by the applicant; relevant comments of the sentencing court; the offender’s criminal history; the likely effect of the release of the offender on any victim of the offender or on the victim’s family; any report relating to the grant of parole that has been prepared by a Community Corrections Officer; any other report prepared by or on behalf of the Review Council; and any other matters that the Parole Authority considers to be relevant.

21. I have omitted from the above those considerations that are plainly irrelevant. The inclusion of the provisions of s 135(3)(j), which requires the Parole Authority to consider “other matters … [it] considers to be relevant” imposes a significant limitation on those matters that the Court can determine are irrelevant for the purposes of s 155 of the Act. A matter that cannot reasonably be considered to be relevant may be assessed by the Court as “irrelevant”, but, given the wording of s 135(3)(j) other matters are relevant so long as the Parole Authority considers them to be. [3]

    3. Parisienne Basket Shoes Pty Ltd v Whyte (1938) 59 CLR 369 at 391; [1938] HCA 7.

22. The foregoing analysis renders more important the consideration of a matter that is considered to be relevant by the Parole Authority. A failure to take into account a relevant matter may be the subject of an appropriate order. However, the terms of s 155 of the Act confine the role of the Court, under that section, to correcting the consideration of an irrelevant matter. It does not allow the Court to issue directions as to the consideration of a relevant matter that was not otherwise considered by the Parole Authority.

23. As earlier stated, unless unreasonable, irrational or illogical, once the Parole Authority considers a matter to be relevant, pursuant to the terms of s 135(3)(j) of the Act, a Court could not determine that the matter was irrelevant. Moreover, information is relevant if it may lead, directly or indirectly, to the satisfaction of the Parole Authority as to whether the release of an offender is in the interests of the safety of the community. This is an extraordinarily broad test. The foregoing ought not be taken as a criticism of the breadth of the test. It is an appropriate and essential test in dealing with release on parole. Nevertheless, as the Court is seeking to make clear, it makes a finding of a court that the matter was “irrelevant”, limited to an extremely narrow issue.

24. Further, the inclusion in mandatory criteria of the prescriptions in s 135(3)(f) and (g) of the Act, makes every report on the granting of parole, by any Community Corrections Officer or by any other authority of the State, to be information or matters that the Parole Authority is required to consider. Of course, consideration of the report does not require acceptance of its correctness. Nevertheless, the mere fact that such a report may have incorrect information or information that is not up-to-date does not seem to allow the Parole Authority to ignore the report.

25. As earlier stated, the applicant moves the Court under s 155 of the Act and has not sought orders in the nature of certiorari or mandamus. As a consequence, the Court is required to determine whether the application is an abuse of process and whether there is sufficient evidence to support the application, before determining whether the allegations of false, misleading or irrelevant information being taken into account have been made out.

Consideration

36. At its meeting on 7 November 2019, the Parole Authority determined not to release the applicant. That determination can be found in Exhibit CLR 1 at p 2 and the reasons for that determination commence at p 3. The whole of the reasons need to be read and understood.

37. The State Parole Authority came to the conclusion that the applicant had commenced the IDATP Program on 17 October 2018 and completed the first phase by 9 April 2019. However, according to the reasons of the Parole Authority, the applicant was placed on a Participant Support Contract in early June 2019, after he was observed to be drug-affected during a visit. As a consequence, the offender was discharged from the program.

38. Whilst engaged in IDATP, the applicant had been tested on 84 occasions and returned 48 positive results to illicit substances. The Parole Authority concluded:

“It was identified that there was not sufficient time for the offender to progress in classification to re-enter and complete IDATP. The IDATP Discharge Summary recommended that the offender complete the EQUIPS suite of programs and engage in psychological counselling. A referral to EQUIPS Addictions is yet to be made.”

39. The State Parole Authority also referred to the comments of the sentencing judge, albeit, at that stage, comments that must be qualified by the effluxion of time, as to the long-standing addiction and degree of immaturity of the applicant and the genuineness with which he wanted change and the degree to which he was prepared to work for it.

40. Critically, as the State Parole Authority commented:

“The offender’s drug use has continued whilst in custody as evidenced by positive urinalysis tests and was subsequently discharged early from IDATP and is yet to address this offending behaviour. His custodial behaviour has been very poor, resulting in misconduct charges, multiple regressions and segregation. He displays no insight and zero victim empathy.

Conclusion

The Authority is not satisfied that the release of the offender is in the interests of the safety of the community [s 135(1)]. Due to the offender’s poor custodial behaviour, continued drug use and inability to address this offending behaviour The Authority is not satisfied that the release of the offender is in the interests of the safety of the community. The offender presents as an unacceptable risk to community safety.”

41. The Discharge Summary from IDATP to which the Parole Authority was referring above can be found at p 82 of Exhibit CLR 1 to the Affidavit of Courtney Lauren Raad. At p 83 of that discharge summary the Services and Programs Officer and Acting Therapeutic Manager – Senior Psychologist noted:

“After Mr Karpatsis was placed on the support contract dated 11^th June 2019, he was involved in an incident in the correctional centre. Mr Karpatsis was charged with a misconduct of stealing which involved a correctional officer’s personal belongings. At the time of the charge Mr Karpatsis denied any wrongdoing and claimed he had mistaken the item for his own which was similar in appearance however, he did plead guilty of [sic] the charge. Mr Karpatsis was found guilty of the misconduct and as a result breached his contract. …”

42. Further under the heading conclusions and recommendations, the report or discharge summary says:

“Mr Karpatsis demonstrates difficulty in emotional regulation and trauma management. This presents a significant risk for Mr Karpatsis to relapse into Alcohol and Drug use and Criminal Conduct when he is released into the community. It is strongly recommended that he engages in individual counselling which focuses on dealing with Trauma and Post Traumatic Stress Disorder. Engaging in this therapy will allow Mr Karpatsis to continue to work on his difficulties with emotional regulation, trauma and AOD use. This will decrease his risk of substance abuse and offending behaviour.

Due to Mr Karpatsis’s earliest release date of 12 January 2020, he will not have sufficient time to return to complete the IDATP. Mr Karpatsis may be eligible to participate in the EQUIPS Suite of Programs.

Mr Karpatsis intends to reside in the Campbelltown area upon his release and will be able to have access to services in that area.”

43. The applicant argues that the finding of his failure to complete the addiction course is false or misleading and relies on a Summary Schedule which is Attachment 26 to Exhibit A and is entitled “My Plan”. The second item on the first page of Attachment 26, while referring to “other approved programs”, comments in the following terms:

44. “INTENSIVE DRUG AND ALCOHOL TREATMENT PROGRAM: Spiros commenced IDAPT [sic] 17/10/2018 and progressed to Phase 1. He was discharged 17/06/2019; without completing the program. He is now required to complete an alternative AOD course.”

45. The schedule lists the start date as 17 February 2020 and lists the status as “completed”. The inconsistency between the status of completed and the comment in the details of the program is relied upon by the applicant to show misleading or false information. He also submits that the inconsistency between the conclusion that the course had been “completed” and the statement of the reasons of the Parole Authority demonstrates that the Parole Authority relied upon misleading information. The term “completed” is infelicitous.

46. The course was not completed and it could no longer be attended, but the details of the program, even those provided in the schedule, show that the applicant was prevented from fully completing the program because of urinalysis issues. The information in the schedule, to the effect that the course was completed, was misleading or false, but it was misleading in the applicant’s favour. Further, it has not been shown to have been relied upon by the Parole Authority in refusing parole. Nor was the material irrelevant.

47. The applicant relies upon other issues. First, the applicant relies upon what is said to be misleading and irrelevant information as to institutional misconduct issues. The applicant claims that there have been no institutional misconduct issues since 2 May 2020. Nevertheless, on 2 May 2020 there were three institutional misconduct issues. There may have been four. One of the issues related to intimidation, a far more serious issue by comparison to the behaviour in custody issues otherwise described, and that charge was dismissed. Whether there were another two or another three does not affect the fact that there were misconduct issues.

48. Nevertheless, whether major or minor, there were at least two proved institutional misconduct charges. In some respects, were this not a prison system, the conduct in question may well have been understandable. It certainly was not criminal and related to the effect of COVID-19 restrictions.

49. Further, the applicant complains about the Report which fails to mention the applicant’s mental health issues. The failure to mention mental health issues, assuming it to be correct for the time being, might render the Report incomplete or fail to proffer an explanation for conduct but it almost certainly would not be a matter that rendered the report false or misleading or irrelevant.

50. Many of the complaints raised by Mr Karpatsis, the applicant, concern statements that are alleged by Mr Karpatsis to be wrong. The fact, assuming for present purposes that it is the fact, that an allegation or statement is “wrong” does not render the statement misleading or false or irrelevant, assuming, for present purposes that it is not otherwise in one or more of those categories.

51. For example, the applicant’s complaint in relation to the statement made about his capacity to complete the IDATP course before release, falls into this category. Mr Karpatsis takes issue with the statement on two fundamental bases: first, he submits that there is a misstatement of the release date available; and second, Mr Karpatsis submits that it is misleading or false to suggest that he would benefit from participation in a particular program, because the sentencing judge made comments to a different effect. Neither of those comments, and many of the complaints by the applicant are in this category, is irrelevant or misleading or false. Even where there is, by incompleteness of the information, for example, as to ineligibility for a course, the applicant has not satisfied the Court that it was a foundation for the Parole Authority decision to refuse parole.

52. In relation to the second aspect, there is a difference between a difference of professional opinion, on the one hand, and the determination of falsity, misleading or irrelevant information. Returning to the first, it should be added that the proposition underpinning some of the submissions of the applicant that the Parole Authority and Correctional Services have misunderstood his anniversary date for the purpose of parole hearings is not made out.

53. None of the foregoing comments should give the impression that the Court, as presently constituted, has no sympathy or empathy with the complaint of Mr Karpatsis. It is notorious that rehabilitation from a drug problem is extremely difficult and requires extraordinary discipline and, generally, much assistance.

54. Overwhelmingly, the reports on his rehabilitation suggest that he would benefit most by individual psychological attention. This would be more readily available after release on parole than it would be in the prison system.

55. The applicant submits that he has been drug-free for seven months. That seems to accord with the material that is before the Court. This is an extraordinary and gratifying achievement.

56. There is no doubt that the applicant’s circumstances require intensive counselling. The applicant is now employed in the prison system; he relies upon a report of May 2018 from Corrective Services relating to participation in the Young Adult Satellite Program (“YASP”) and the fact that he was chosen to be a mentor in the Program. [4]

    4. Exhibit A, Attachment 15.

57. As earlier stated, he has completed Phase 1 of the EQUIPS Addiction Program, a 20 session program, the Certificate of Compliance for which has been tendered and is relied upon by the applicant. He also received and relies upon a certificate of attainment certifying that he has successfully completed the “save-a-mate Alcohol and Other Drugs Emergencies Course with CPR Demonstration”; the RUSH Program (Real Understanding of Self-Help); the Materials Handling Program for Future Employment; he obtained a certificate as best all round recognition in the YASP Program; he completed programs in dynamic risk assessment; he completed a course in “crystal meth” addiction; and passed a number of drug test analyses performed without notice.

58. There is much to be said for the release of the applicant on parole as a means of rehabilitating the applicant and, perhaps, the only means of rehabilitating the applicant.

59. Nevertheless, that is not the role of the Court. The role of the Court is to determine the application under s 155 of the Act as to whether there has been false, misleading or irrelevant information that has caused the Parole Authority to determine the matter in the manner that it has.

60. Further and most importantly, the applicant will have had the benefit of a manifest injustice hearing on 24 September 2020. Most of the matters that are raised by the applicant in this application are matters that are more suited to a manifest injustice hearing than an application to the Court under s 155 of the Act.

61. In filing a further Manifest Injustice Application and separately pursuing the application to this Court, there is a strong suggestion that the proceedings in this Court are an abuse of process. [5] Where two applications are made in different forums in relation to the same or similar subject matter, that forum which offers the narrower relief, or the least appropriate or complete relief, may well have an application before it which is an abuse of process. [6]

    5. Section 155(3) of the Crimes (Administration of Sentences) Act.

    6. Burbank Australia Pty Ltd v Luzinat [2000] VSC 128 at [28]-[29].

62. The multiplicity of proceedings does not of itself amount to an abuse of process. Where all that can be achieved by the Court, in these proceedings, is able to be achieved at the Manifest Injustice Hearing, but more completely, then the application and prosecution of proceedings in this Court is, in my view, an abuse of process. [7]

    7. Fairfax Media Publications Pty Ltd v Cummings (2012) 269 FLR 182; [2012] ACTCA 36.

63. Ultimately, it is unnecessary for the Court to come to a view or to determine finally whether the application before the Court is an abuse of process. I am of the view that the applicant, while having some excellent bases for the grant of parole, has not made out that the Parole Authority acted on false, misleading or irrelevant information. Even where some of the material is wrong or incomplete, the applicant has failed to satisfy the Court that it was relied upon by the Parole Authority to refuse parole.

64. As a consequence of the foregoing, the Court makes the following orders:

1. Application dismissed;

2. Proceedings dismissed.

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Endnotes

Decision last updated: 01 October 2020