Kramer v State Parole Authority - [2023] NSWSC 564

Supreme Court

New South Wales

Medium Neutral Citation: Kramer v State Parole Authority [2023] NSWSC 564
Hearing dates: 11 May 2023
Decision date: 31 May 2023
Jurisdiction: Common Law
Before: Ierace J
Decision:
The application filed on 14 April 2022 for directions pursuant to s 155 of the Crimes (Administration of Sentences) Act 1999 (NSW) is dismissed.

Catchwords:
ADMINISTRATIVE LAW – Parole – Refusal of parole on six occasions – Application for direction to Authority pursuant to s 155 of Crimes (Administration of Sentences) Act 1999 (NSW) – Whether decisions to refuse parole based on false, misleading or irrelevant information

Legislation Cited:
Crimes (Administration of Sentences) Act 1999 (NSW), ss 135, 137B, 155,
Sentencing Act 1989 (NSW), ss 23, 41

Cases Cited:
Attorney General for New South Wales v New South Wales State Parole Authority & Anor [2006] NSWSC 865
R v Kramer (Supreme Court (NSW), Dowd J, 29 November 1995, unrep)
Sutton v NSW State Parole Authority [2011] NSWSC 935

Category: Principal judgment
Parties: Karl Jon Kramer (Applicant)
NSW State Parole Authority (First Respondent)
Attorney General of NSW (Second Respondent)
Representation:
Counsel:
In person (Applicant)
Submitting appearance (First Respondent)
S Williams (Sol) (Second Respondent)
Solicitors:
Crown Solicitor’s Office (Second Respondent)

File Number(s): 2022/69354

JUDGMENT

HIS HONOUR: The applicant seeks a direction to the Parole Authority of New South Wales (the first respondent; the SPA), pursuant to s 155 of the Crimes (Administration of Sentences) Act 1999 (NSW) (the CAS Act), that the information on which it based its decision of 26 March 2021 to refuse parole to the applicant was, in the terms of s 155(1) of the CAS Act, “false, misleading or irrelevant”. The Attorney General of NSW was granted leave to intervene and has been joined as the second respondent by order of the Registrar on 1 June 2022. The first respondent has filed a submitting appearance, save as to costs.
The applicant is not legally represented in this proceeding.

The background to the application

The applicant’s relevant criminal offending

The applicant is presently aged 52. On 25 September 1996, when he was aged 26, he was convicted of the offence of murder, for which he received a sentence of imprisonment of 15 years with a non-parole period of 11 years. He was released on the expiration of his total sentence on 18 June 2009, not having qualified for parole.
On 25 September 2015, when aged 45, the applicant was sentenced by Haesler SC DCJ (the sentencing judge) to 4 years imprisonment for an offence of reckless wounding, as well as 8 years imprisonment for an unrelated offence of cause grievous bodily harm with intent. The offence of reckless wounding was committed on 4 January 2012, that is, two and a half years after the applicant was released back into the community. The offence of cause grievous bodily harm with intent was committed approximately two years later, on 21 December 2013.
The effective overall sentence for both offences was a total term of 10 years imprisonment,…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Kramer v State Parole Authority

Details

AGLC: Kramer v State Parole Authority [2023] NSWSC 564
Case: [2023] NSWSC 564
Decision Date: 31 May 2023

CaseChat Overview and Summary

In Kramer v State Parole Authority, the applicant, a prisoner, sought a direction from the court under section 155 of the Crimes (Administration of Sentences) Act 1999 (NSW) for the State Parole Authority to grant parole. The applicant argued that the Authority had refused parole on six occasions based on information that was either false, misleading or irrelevant. The dispute centred on the legality of the decisions made by the Authority and whether the applicant had grounds to challenge these decisions. The case was heard in the Supreme Court of New South Wales.

The primary legal issues that the court had to address were whether the parole decisions were indeed based on false, misleading or irrelevant information, and if such a basis rendered the decisions unlawful. The court had to determine whether the Authority had breached the applicant's procedural fairness rights and whether the decisions were so irrational or unreasonable as to be unjustifiable. The court also needed to examine the scope of the powers available under section 155 of the Act to provide the applicant with the relief sought.

In examining the decisions of the Authority, the court found that the information upon which the parole was refused was not false, misleading or irrelevant. It concluded that the Authority had followed the correct procedure and had acted within its statutory powers. The court determined that the applicant had not demonstrated that the decisions were irrational or otherwise unlawful. The court also held that section 155 of the Act did not provide the applicant with the relief sought, as it was limited to specific instances of jurisdictional error. Consequently, the court dismissed the application.

The court did not issue any direction to the State Parole Authority. The applicant's application was dismissed, and no further orders were made.

Orders