Lee v State Parole Authority of New South Wales

[2006] NSWSC 1225

CITATION:	Lee v State Parole Authority of New South Wales [2006] NSWSC 1225
HEARING DATE(S):	6 November 2006, 7 November 2006
JUDGMENT DATE :	17 November 2006
JUDGMENT OF:	Johnson J at 1
DECISION:	Application under s.155 Crimes (Administration of Sentences) Act 1999 dismissed.
CATCHWORDS:	CRIMINAL LAW - parole - decision of State Parole Authority to refuse parole - application to Supreme Court by offender - limited nature of relief available under s.155 Crimes (Administration of Sentences) Act 1999 - convicted sex offender - offender's refusal to admit guilt - offender refused entry to custodial sex offenders treatment programme because of denial of guilt - parole refused - whether decision of State Parole Authority made on basis of false, misleading or irrelevant information
LEGISLATION CITED:	Crimes (Administration of Sentences) Act 1999 Parole of Prisoners Act 1966 Supreme Court Act 1970 Crimes Act 1900 Crimes (Sentencing Procedure) Act 1999 Crimes (Serious Sex Offenders) Act 2006
CASES CITED:	McCallum v Parole Board [2003] NSWCCA 294 Galli v NSW State Parole Authority [2006] NSWSC 206 DCU v State Parole Authority of NSW [2006] NSWSC 526 McPherson v Offenders Review Board (1991) 23 NSWLR 61 McCafferty v Offenders Review Board (Court of Criminal Appeal, 19 June 1995, unreported, BC9504950) Whalan v Parole Board of NSW [2005] NSWCCA 445 Segal v Waverley Council (2005) 64 NSWLR 177 Attorney General for NSW v NSW State Parole Authority [2006] NSWSC 865 R v Lee [2004] NSWCCA 133 Zaidi v Health Care Complaints Commission (1998) 44 NSWLR 82 Siganto v The Queen (1998) 194 CLR 656 Mott v Queensland Community Corrections Board (1995) 2 QdR 261 Varney v Parole Board (WA) (2000) 23 WAR 187 Meissner v The Queen (1994-1995) 184 CLR 132 Wong v Director of Public Prosecutions (2005) 155 A Crim R 37 Suresh v The Queen (1998) 72 ALJR 769 Attorney General for NSW v Gallagher [2006] NSWSC 340 Green v Daniels (1977) 51 ALJR 463
PARTIES:	Jim Lee (Applicant) State Parole Authority of New South Wales (Respondent)
FILE NUMBER(S):	SC PB0019/2006
COUNSEL:	Mr Lee (In Person) Ms C Morris (Respondent)
SOLICITORS:	Crown Solicitor's Office (Respondent)
LOWER COURT DATE OF DECISION:	---
LOWER COURT MEDIUM NEUTRAL CITATION:	---

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

Johnson J

17 November 2006

PB0019/2006 Jim Lee v State Parole Authority of New South Wales

JUDGMENT

1 JOHNSON J: In McCallum v Parole Board [2003] NSWCCA 294, the Court of Criminal Appeal observed (at [30]) that the question of granting parole is usually one of considerable difficulty where 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.

2 The present application is a further example of difficulties which arise in these circumstances. The Applicant, Jim Lee, is a convicted sex offender. He denies his guilt of the crime for which he was convicted. He has applied for entry to a custodial sex-offender’s rehabilitation programme but, because of his denial of guilt, he has been refused entry to such a programme.

3 The non-parole period component of the Applicant’s sentence expired on 11 September 2005. His total sentence will expire on 11 March 2008. On 22 September 2006, the State Parole Authority of New South Wales (“SPA”), the Respondent, refused to order the Applicant’s release on parole. The Applicant contends that this Court should intervene by way of statutory review under s.155 Crimes (Administration of Sentences) Act 1999 (“CAS Act”).

4 The issues raised on this application call, once again, for examination, of the approach adopted by the SPA with respect to an application for parole by a prisoner who has been convicted of a sexual assault offence, but who maintains his innocence and, for that reason, has been declined entry to a custodial sex-offender’s rehabilitation programme. It is not the first time that the Court has grappled with these issues: Galli v NSW State Parole Authority [2006] NSWSC 206; DCU v State Parole Authority of NSW [2006] NSWSC 526.

Nature of Application under s.155 CAS Act

5 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.”

6 The role of the Court under s.155 CAS Act is an extremely limited one. In DCU, I referred to authorities which demonstrated the confined nature of the jurisdiction ([5]-[7]):

“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.
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 In McPherson v Offenders Review Board (1991) 23 NSWLR 61 at 67, Hunt J (as he then was) (Meagher JA and Studdert J agreeing) examined the origin of the statutory provision now contained in s.155 CAS Act. Hunt J described the purpose which the provision was designed to serve as “obscure” (at 67C). Aspects of the parole decision-making function had been touched upon in the reports of the Royal Commission into New South Wales Prisons presided over by Nagle J (1978) and of the Committee to Review the Parole of Prisoners Act 1966 conducted by his Honour Judge Muir QC (1979). Hunt J observed that the legislature had apparently agreed with the views of the Review Committee, in rejecting a proposal of the Royal Commission that prisoners should have an appeal to a court from a decision of the Parole Board (at 69B-C). The conclusions of Hunt J concerning the narrow function served by s.155 CAS Act (and its statutory predecessors) have been applied in the various cases to which reference was made in DCU.

8 In McCafferty v Offenders Review Board (Court of Criminal Appeal, 19 June 1995, unreported, BC9504950), James J (Gleeson CJ and Ireland J agreeing) said with respect to the predecessor to s.155 CAS Act (at page 15):

“However, I will note that these decisions have uniformly emphasised the very limited function this Court has on an application under s23 of the Sentencing Act. This Court is not a court of appeal from a decision of the Board refusing parole, nor can it conduct an administrative review of a decision by the Board refusing parole. It is not within the competency of this Court to say that a decision by the Board refusing parole was wrong or that the Board erred in accepting some evidence which was before it, rather than other evidence which was before it. This Court is concerned only with the information which was before the Board, and not with the Board's thought processes or its findings based on the information which was before the Board. All that the Court is empowered to do is to consider whether information on which the Board based it decision was false, misleading or irrelevant, and if it determines that information on which the Board based its decision was false, misleading or irrelevant, to give such directions to the Board with respect to that information as it thinks fit. As to whether information is irrelevant, information which has some significance, even if marginal significance, cannot be described as ‘irrelevant’ and what weight it should be given is a matter for the Board (see especially McCamley at 7).”

I note that McCafferty is one of the few cases where the Court has determined to give a direction that certain information was irrelevant, with a bare direction to that effect being given.

9 More recently, in Whalan v Parole Board of NSW [2005] NSWCCA 445, Simpson J (Grove and James JJ agreeing) observed at [4]-[6]:

“Applications to this Court under s 155 are becoming more frequent. This Court has more than once commented upon apparent inefficacy of the powers conferred on it by s155: McPherson v Offenders Review Board (1991) 23 NSWLR 61; LMS v Parole Board [1999] NSWCCA 371, R v Naudi [2003] NSWCCA 160.
The difficulties in the legislation have been expressly drawn to the attention of those in Attorney General’s Department responsible for law reform as appropriate for legislative amendment. Reform is urgent. There is a tendency quite unfairly to mislead offenders to believe that this Court is able to provide a remedy.
Typically, as in the present case, the applicant is not legally represented, and is forced to do his or her best to present a case without legal experience or training. Given that the section itself is ‘obscure’, to quote Hunt J (as he then was) in McPherson , this creates even more difficulties than are usual in the case of unrepresented litigants.”

10 In the course of short additional comments in Whalan v Parole Board of NSW, Grove J said at [36]:

“I would like to also observe myself that the very limited jurisdictional power that we have is made more difficult to exercise because the reasons of the Board are so brief in expression and sometimes cryptic in their terms.”

11 In Galli, Adams J directed the SPA to reconsider the question of the then Applicant’s parole. In the present case, the Applicant, who appears unrepresented, has urged me to make orders and directions as given in Galli. Ms Morris, counsel for the SPA, has submitted that the decision in Galli is not in accord with decisions of the Court of Criminal Appeal concerning the limits of relief under s.155 CAS Act and ought not be followed. I am not bound by the decision of another single Judge but, as a matter of judicial comity, I ought follow that decision unless I am convinced that the judgment was wrong: Segal v Waverley Council (2005) 64 NSWLR 177 at 193 [57]. There is no reference in his Honour’s judgment in Galli to the various authorities which stand in the way of a broad construction of s.155(2) CAS Act. With respect, given the weight of authority (including binding authority), I disagree with his Honour’s conclusion that a direction to the SPA to reconsider its decision is open under the section.

12 I note that s.155(3) CAS Act purports to restrict the use of the provision so that an application under the section is to be considered by the 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. As Simpson J observed in Whalan v Parole Board of NSW, it is frequently (if not usually) the case that an applicant under this provision will be unrepresented. The practical task confronting judges on these applications will usually be most effectively and fairly undertaken by moving to the substance of the application, and dealing with it on the merits, rather than attempting to determine, on a threshold basis, whether there appears to be sufficient evidence to support the application. Section 155(3) provides limited, if any, practical assistance as a filter on applications of this type.

13 Reference should also be made to a rarely used provision in s.156 CAS Act by which, if the SPA decides that a serious offender should be released on parole, the Attorney General or the Director of Public Prosecutions may apply to this Court for a direction to be given to the SPA as to whether its decision to release on parole has been made on the basis of false, misleading or irrelevant information. Application has been made under s.156, as an alternative claim to relief under s.69 Supreme Court Act 1970 in Attorney General for NSW v NSW State Parole Authority [2006] NSWSC 865. There, it was contended that the SPA made its decision on information that was false or misleading in relation to the relevant legislative regime. In refusing to make a direction under s.156 CAS Act, McClellan CJ at CL said at [73]:

“In my opinion this submission must be rejected. It was a matter for the Authority to consider and apply the legislative regime provided by the Parliament. Although it was appropriate for it to receive submissions and, if persuaded that it should do so, act upon them, the nature of the submissions received did not provide information in the relevant sense. To my mind the information contemplated by s 156 is information going to the characteristics of the offence and the offender, and all matters relevant to whether or not it may be appropriate to allow their release. In the broadest sense the section has in contemplation factual information. The construction and appropriate application of the legislation does not fall into this category.”

14 The observations of the Chief Judge at Common Law concerning s.156 appear to have equal application to the term “information” in s.155 CAS Act. This construction serves to emphasise, once again, the limited nature of review which this Court can undertake under ss.155 and 156 CAS Act.

Functions of the SPA

15 It is necessary to bear in mind the functions of the SPA and the nature of the parole-granting function. In DCU, I said [12]-[14]:

“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.
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.
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.”

16 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:

“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.”

17 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.”

18 In DCU, I observed with respect to the statutory function of the SPA ([17]-[20]):

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

The Applicant’s Offence

19 On 25 March 2003, the Applicant was arraigned before his Honour Judge Patten in the District Court upon three counts:

(a) that on 14 December 2001 at Fairfield, he did take MC without her consent with the intention of obtaining an advantage (s.86 Crimes Act 1900 );

(b) that at the same time and place, he had sexual intercourse with MC without her consent, and knowing that she was not consenting, in circumstances of aggravation, in that at the time, actual bodily harm was inflicted upon her (two counts under s.61J Crimes Act 1900 ).

20 The Applicant pleaded not guilty to each charge and, following trial by jury, on 2 April 2003, the jury returned a verdict of not guilty upon the first and third counts and guilty upon the second count, an offence under s.61J Crimes Act 1900 punishable by a maximum of 20 years’ imprisonment. In his remarks on sentence on 16 May 2003, his Honour Judge Patten recounted the facts in the following way (ROS1-2):

“The Crown case at trial was that the prisoner came upon the victim who was walking in Smart Street, Fairfield in the early hours of 14 December 2001, forced her against her will into his car parked a short distance away, and drove her to the parking area of Fairfield Showground where he sexually assaulted her on two occasions. The jury’s verdict on the first charge indicates that it was not satisfied beyond reasonable doubt that he abducted the victim as alleged. It seems therefore that he must be sentenced on the basis that the victim went willingly in his car.
The Crown case on the second count, which the jury did accept beyond reasonable doubt, was that in the back seat of his car in a remote section of the car park at Fairfield Showground he forced the victim to lie down, forcibly removed her jeans and underpants and proceeded without her consent knowing she was not consenting to insert a hard object which she said felt like a metal or plastic pipe or pole into her vagina. He pushed it up and down on a number of occasions causing her considerable pain and injury. He refused to heed her pleas to desist from this behaviour.
The Crown case in relation to the third charge on the indictment was that shortly afterwards the prisoner without consent penetrated the victim’s vagina with his fingers. He was found not guilty in respect of this matter and nothing further need be said about it.
Medical examination of the victim a few hours later revealed, apart from minor injuries to other parts of her body, multiple scratch marks on her upper inner thighs, redness on her knee, redness adjacent to her right nipple, swelling about the vaginal area, fresh bleeding in the high vagina and abrasions on the posterial wall of the vagina. The victim was born on 9 September 1981 was aged twenty at the time of the offence.”

The Applicant’s Background

21 The Applicant was born in Iraq on 7 July 1979 and immigrated to Australia in July 1995 with an older brother and his family. According to the pre-sentence report before the District Court on 16 May 2003, the Applicant experienced a close and supportive upbringing in a Christian family. He sponsored his parents to come to Australia in 2000. The Applicant, at the time of sentence, had been in a close relationship with a girlfriend who was five years older than himself. The only matter recorded on his criminal history was a mid-range PCA offence for which, on 28 October 1999, he was sentenced in the Parramatta Local Court by way of a two-year recognisance under s.556A Crimes Act 1900. The learned sentencing Judge observed (ROS4):

“It is plain from references and from the evidence of his sister that in all respects, except for this offence, he has established himself as a very worthwhile man in the community and has a high reputation. He has been a caring family man and has accepted in recent years responsibility for looking after his parents since their arrival in Australia.”

The Applicant’s Sentence

22 With respect to the single count of which he was convicted, the Applicant was sentenced to a non-parole period of two-and-a-half years and a balance of term of two-and-a-half years with the non-parole period commencing on 12 March 2003 and expiring on 11 September 2005 and the balance of term expiring on 11 March 2008.

Appeal to Court of Criminal Appeal

23 On 7 May 2004, the Court of Criminal Appeal dismissed an appeal against conviction: R v Lee [2004] NSWCCA 133. The Applicant did not seek leave to appeal against sentence.

24 On appeal, the Applicant contended that the verdict in respect of Count 2 was unreasonable and could not be supported, or otherwise represented a miscarriage of justice, having regard to the evidence and to the verdicts of not guilty in respect of Counts 1 and 3. Having undertaken an assessment of the whole of the evidence, Smart AJ (Sully and Dowd JJ agreeing) concluded that it was open to the jury upon the whole of the evidence to be satisfied beyond reasonable doubt that the Applicant was guilty of Count 2 (at [95]). Although the Court acknowledged that there were substantial issues concerning MC’s account of the incident, it was also observed that “the jury obviously thought that [the Applicant’s] improbable version of events in the car was not reasonably possible” (at [92]).

The Applicant and Custodial Sex-Offenders Programmes

25 On 11 October 2004, the Applicant gave written consent to a sex-offender programme’s referral to CUBIT (Custody Based Intensive Treatment) or CORE (CUBIT Outreach) (Exhibit 1, page 121).

26 According to Programs for Sex Offenders, a document issued by the Offender Programs Unit, Department of Corrective Services (November 2005), assessment of sex offenders involves the following (page 2):

“The assessment of sex offenders should focus on the risk of recidivism. These assessments take into consideration both static (historical; non-changeable) factors and dynamic (changeable) risk factors. The risk assessment instruments used by DCS to assess sex offenders are the STATIC-99 (static factors) (Hanson and Thornton, 1999) and the Stable and Acute (formerly known as SONAR) to measure dynamic factors (Hanson and Harris, 2000).”

27 It was common ground at the hearing of the present application that the criteria for sex-offender programmes included the following (Exhibit 1, page 2):

“The Sex Offender Programs are only available to sentenced offenders. In addition, an inmate who is alleged to have committed an offence for a sexual reason (eg. convicted for break and enter, but information suggests motive was sexual) MUST be referred to the Regional Senior Psychologist, for a risk assessment. The Sex Offender Risk Assessment form must be completed by the Case Management Team and a copy of the form sent to the Statewide Clinical Co-ordinator Sex Offender Programs. An inmate assessed as presenting a low risk of re-offending in a sexual manner will normally not be required to participate in a Sex Offender Program and may progress through the normal case management process in the centre of placement.”

28 The same Department of Corrective Services document described CUBIT and CORE in the following way (Exhibit 1, page 2):

“CUBIT
This is an intensive residential therapy program for men who have sexually abused adults and/or children. It is offered at the MSPC to offenders assessed as having medium-high or high risk/needs and is primarily, though not solely, group based.
Offenders of medium-high risk/needs will be expected to remain in the CUBIT for approximately 10 months. Offenders of moderate risk needs will be expected to remain for about 8 months.
CORE
This is a medium intensity therapy program for men who have sexually abused adults or children and whose risk/needs fall in the medium-low range. It runs in a group format and is 5 months in length, with two half-days per week of group sessions. It is offered at the MSPC as an ‘outreach’ of the CUBIT.”

29 As part of his application on 11 October 2004, the Applicant was required to answer a number of questions:

“1. Answer the following questions re: your sexual offending.

* Briefly described what happened? She asked me if I want sex for money but I refyse [sic] .

* Whom has been affected? Me and my faimley [sic] .

* Who or what is responsible for sexual offending? There was no sexual offending.
2. What are your reasons for wanting to participate in the CUBIT/CORE/Custodial Maintenance Programme?
I respect the courtroom find me guilty that way.
3. What issues/problems do you think you need to address?
I have no issues.
4. What do you think you’ll gain from treatment?
I don’t no [sic] .
5. What treatment programs have you completed? For what kind of problems?
None.”

30 On 6 December 2004, Mr David Bright, Therapeutic Manager, CUBIT, Metropolitan Special Programs Centre, informed the Applicant that his application for admission to a programme had been refused (Exhibit 1, page 124):

“Re: Your Referral and Application for the CUBIT/CORE programmes .

Your referral and application for treatment has been reviewed by the Sex Offender Programme staff.

At this stage, you have been found unsuitable for institutional treatment programmes for sexual offenders for the following reasons:

To be found suitable for the CUBIT/CORE programme you need to acknowledge some of the behaviours that you have been convicted of (ie, the sexual convictions). It is apparent from your response to Part C of the referral package as well as from discussions with the psychologist who completed the referral, that you are actively denying the sexual offences for which you have been convicted.

The CUBIT/CORE programme is designed to help offenders work intensively on changing the thinking, attitudes and feelings which led to their offending behaviour. If you change your mind and decide to take responsibility for your sexual offending behaviour then you can be re-referred to CUBIT/CORE for treatment via the Case Management Team.”

Applicant’s Parole Refusal in 2005

31 On 15 July 2005, the Parole Board (as the SPA then was) formed a preliminary determination that the Applicant ought be refused parole. On 27 October 2005, a hearing took place before the SPA (with his Honour Judge Christie QC presiding) at which the question of the Applicant’s release on parole was further considered. The Applicant was represented at the hearing by Ms Voncina, solicitor.

32 Prior to the hearing on 27 October 2005, the Applicant’s solicitor had provided to the SPA a report of Dr Christopher Lennings, Psychologist, dated 2 July 2005 concerning the Applicant. In that report, Dr Lennings stated that he undertook “a comprehensive risk assessment (using more than the Static-99) and my assessment of his dynamic risk factors supports the view he is a low risk offender” (Exhibit 1, page 14). Dr Lennings observed that the Applicant “denies the offence, even when it seems contra-intuitive for him to do so, given such denial is likely to extend his time in gaol” (Exhibit 1, page 14). Dr Lennings concluded his report with the following statement (Exhibit 1, page 15):

“My own view, expressed in my report, is that Mr Lee shows low levels of criminogenic needs and low levels of risk factors for sexual recidivism. I have no way of knowing whether treatment would have lessened his risk of recidivism, but the reality is he has a low risk of recidivism in any case.”

33 In a further report also dated 2 July 2005, Dr Lennings said (Exhibit 1, page 22):

“Mr Lee continues to assert his innocence. After being imprisoned, Mr Lee did apply to enter Cubit on the recommendations, as I understand it, of a psychologist in gaol. However, he was rejected from Cubit because he continues to assert his innocence. He told me that although he believes he is not guilty, nonetheless, he respects the judgment of the court and that is the reason why he applied for the Cubit program. Whilst I note that the literature suggests denial, in and of itself, is not necessarily that something that should prevent someone from benefiting from treatment, the philosophy of the program at Long Bay is to exercise an exclusion where a person does not admit their offence.
It should also be noted that there is a distinction in literature between those people who refuse treatment, on the basis that they do not believe it is necessary for them, and those people who are refused treatment simply because they fail to meet the ideological perspectives of the program. Generally speaking, the literature indicates that there is a beneficial impact from treatment. Treatment effectiveness is still a contentious area, with some researchers suggesting that there is little impact for treatment and others arguing that there is, nonetheless, the larger studies have indicated that there is a beneficial effect for treatment and that, conversely, those people who have failed treatment (that is, initiated treatment but for some reason or another have not been able to proceed with it), have a somewhat worse aspect.”

34 Dr Lennings provided a detailed risk assessment with respect to the Applicant (Exhibit 1, pages 24-25). The application of Static-99 placed the Applicant in the medium-to-low risk group. Dr Lennings concluded that the Applicant appeared to have very few dynamic risk factors (Exhibit 1, page 25). Dr Lennings concluded (Exhibit 1, page 25A):

“Mr Lee is a young man of low cognitive function who shows high levels of sociability but also a considerable degree of naivety. He appears to be very pro-social; he appears to experience a considerable degree of distress as a result of his incarceration and still continues to assert his innocence. He reveals minimum risk factors for recidivism and in fact he would appear to have a low risk of recidivism. He appears to have an excellent rehabilitation prognosis, with good levels of psychosocial stability, opportunities for stable accommodation, stable relationship and stable employment.
It appears to me that Mr Lee would be a good risk for release, on parole, should that opportunity arise.”

35 The Applicant gave evidence at the SPA hearing on 27 October 2005. Dr Lennings was called to give evidence at the hearing. He confirmed his aggregate risk assessment that the Applicant was in a low-risk category (Exhibit A, Tab 3, page 6). In the course of his evidence, the Chairperson asked Dr Lennings (page 7.13):

““CHAIRPERSON: Thank you. Q. Dr, you realise, I imagine, that the Board proceeds on the basis that this inmate’s denied his offences as false?
A. I understand that. I also recognise the necessity to clear that, which I did, I think in one of the opening paragraphs of my report.”

36 Ms Reidler, Probation and Parole Officer, gave evidence at the SPA hearing on 27 October 2005. The Chairperson rejected a number of questions asked by Ms Voncina upon the basis that Ms Reidler was not a psychologist and was not qualified to answer questions concerning the risk of re-offending (page 11) nor was she “entitled to make an assessment of risk other than a reliance upon his failure to do the CUBIT program” (page 12.1).

37 After submissions from Ms Voncina, and following a short adjournment, the Chairperson indicated briefly that the SPA had considered the evidence of Dr Lennings and the contents of the reports and that parole was refused for the reasons stated on 15 July 2005. The matter was stood over for further consideration of the Applicant’s possible release to parole to 21 July 2006.

The Applicant’s 2006 Parole Hearing

38 A pre-release report was made to the SPA by Janiece Gallpen, Probation and Parole Officer, on 22 June 2006 (Exhibit A, Tab 5). In that report, Ms Gallpen stated (page 2):

“There has been no change in Mr Lee’s attitude towards his offence. He is therefore not suitable for the CUBIT program.
Mr Lee completed a Relaxation and Stress Management program in April 2005, Understanding Sexual Offending in September 2005 and Anger Management in January 2006. It is noted these programs are educational rather than therapeutic.”

39 Ms Gallpen’s report addressed the Applicant’s risk of re-offending in the following way (page 3):

“RISK OF RE-OFFENDING
Administration of Instruments
In accordance with LSIR, a standardised risk/needs assessment instrument, Mr Lee is assessed as being within the low category of re-offending.
The Static 99 instrument places Mr Thomas’ [sic] risk of sexual/violent recidivism in the medium to low range.
According to Service policy Mr Lee will be supervised at a medium to high level.”

40 Ms Gallpen concluded her report with the following summary and recommendations (page 3):

“Mr Lee continues to receive positive reports regarding his behaviour in custody. However, his denial regarding his offence remains of concern and he has failed to access Sex Offender Treatment programs in custody. Although Mr Lee has recently expressed a willingness to participate in community based individual therapy, the therapist indicated to this Service that such intervention would be pointless while he remains in denial. Additionally, custodial based treatment would be more intensive and this continues to be considered the most appropriate course of action for Mr Lee. Therefore, release to parole is not recommended.”

41 By letter dated 14 July 2006, the Applicant’s solicitor provided to the SPA two further psychological reports concerning the Applicant - a report of Terry Smith, Clinical Psychologist, dated 24 April 2006 and a report of Jenny Howell, Consulting Psychologist, dated 10 July 2006. The Applicant’s solicitor requested that the SPA take into account the reports of Dr Lennings, Mr Smith and Ms Howell in determining whether to grant parole to the Applicant.

42 In his report, Mr Smith adopted the following approach (Exhibit A, Tab 8, page 6):

“For the purpose of this report, it is assumed that the facts to which Mr Lee was found guilty are correct. Any comments made in this report about his account of his offending behaviour are made only when they have ramifications in terms of his acceptance of treatment and risk assessment.

The account of Mr Lee of the matters leading up to his plea of guilt [sic] and subsequent incarceration was consistent with the information as recounted in the Judge's Summation and the reports produced by the Probation and Parole officers and Mr Lennings, Clinical Psychologist. The documented position as it has eventuated is that he continues not to accept responsibility for his offending and that he has not participated in a Sex Offender rehabilitation programme. Thus, the Board has not received information about any change within this man and therefore cannot discern his ability to adapt to normal community life with a reduced likelihood of re-offending.

In summary, Mr Lee was found guilty of one moment of sexual sadism where he used an object, most probably a copper pipe or a piece of plastic conduit used by electricians, without any lubrication and inserted it into the vagina of the victim. The account is that he did not attempt sexual intercourse nor did he assault the victim in other ways. The bodily harm suffered by the victim relates to injuries sustained from the sexual assault by the object.”

43 Mr Smith moved to the issue of risk assessment of the Applicant (pages 7-9):

“The Risk Assessment of Mr Lee is a bit of a conundrum. On the one hand, he continues to deny responsibility and his refusal to accept that he is a ‘sex offender’ ordinarily might be cause for concern. In fact, the Risk Assessment using the STATIC-99 elevated his categorisation from the ‘low' to ‘low-medium' range because of this fact.

The other measure of ‘static variables' (i.e. characteristics that in and of themselves are unlikely to change in response to treatment) was a clinical interview focusing on personality constellation factors associated with intense psychological distress and antisocial behaviour. However, when a formal measure of personality is used and when a very lengthy history of stable and highly prosocial behaviour are considered, then another picture seems to emerge. Mr Lee's history of danger to the community pertains to one moment of sexual sadism that is completely at odds with his normal patterns of his living. Evidence as to his ‘normal patterns' of behaviour was presented to the Sentencing Hearing and factors that generally co-exist with such sadistic behaviour, inclusive of rage, impulse control problems, contempt of others for one reason or another, feelings of superiority/domination, distortions of sexual desire/ performance/attitude, distorted attitudes to the rights of others (inclusive of creed, race, minority groups), the torture of animals etc were strongly denied as ever having been aspects in his character. It would be impossible to hide such attributes from those around because of the elevated intensity of these impulses/attitudes and they would shape, colour and control behavioural patterns. So, in terms of ‘static' risk factors, the empirical evidence would suggest that this one moment of offending was extremely out of character and not consistent with ‘static factors' associated with recidivism.

Prior to considering ‘dynamic’ variables, the problematic issue is [sic] this case is understanding the motivation of the offender. In short the evidence is that he committed an incident of sexual assault in a callous and heinous way. It was accepted that his functioning was not impaired by alcohol or any other substance. His demeanour was reported as reasonable and this would rule out issues such as a ‘Brief Psychotic Episode', ‘temporary amnesia', dissociation or a fugue state. Thus, this man has perpetrated a momentary act of sexual sadism that was completely out of character in his functioning.

This being the case, then perhaps an answer to this question might lie in the ‘dynamic variables' leading up to his offending. The ‘dynamic variables' (i.e. those variables that can be moderated by treatment or supervision) are assessed using a structured clinical interview. Mr Lee appears to have very few Dynamic Risk Factors. He denied any sexual deviation such as fetishes, paraphilias and he has never used brothels or prostitutes. He does not appear to have a high libido and masturbates infrequently. He has stable accommodation and employment. He had good support systems and there was not any evidence of mental health issues. He does not have any history of significant criminality in his background. There is not a history of escalation of sexual offences (i.e. lack of offending whilst on bail). Whilst the victim alleged considerable violence by him there appears to be no other issue with violence in his life. He does not have antisocial peers nor does he endorse anti-social values. He has realistic future plans and is open to the prospect of treatment. It would seem that the only possible risk factor is his denial. Denial itself has never been shown to have any significant relationship to recidivism and alone this factor needs to be considered with caution. On the whole, the risk assessment of this man reveals a person of quite low risk of recidivism.

Mr Lee was prepared to participate in the sex offender programme because he viewed it as a requirement to demonstrate his much reduced potential for re-offending. He is openly prepared to continue in some form of psychotherapy should he be released on parole. He gained significant benefit from the time with Mr Lennings."

44 In her report, Ms Howell observed (Exhibit A, Tab 9, pages 5-6):

“Mr Lee applied to participate in the CUBIT program run at Long Bay. He was initially accepted but subsequently rejected from the program because of his denial that he sexually assaulted the victim. It should be stated that while Mr Lee does deny the offence he expresses [sic] respects the judgement of the court. Mr Lee stated that he believes he could benefit from a treatment program looking at his behaviour, the choices he made and the values he demonstrated.

I endorse Dr Lennings comment that denial has never been shown in the research literature to have any significant relationship to recidivism. It should not therefore be considered a risk factor for Mr Lee.”

45 Ms Howell provided the following analysis of static and dynamic risk factors concerning the Applicant (pages 6-7):

“ Static-99

The Static-99 (Hansen and Thornton, 1999) is an actuarial measure based on empirical factors found to be associated with sexual and violent recidivism. These factors include past sentencing dates (sexual and non sexual convictions), history of violence, and stability of relationships, an individual's age, and the nature of the sexual offence. The scores obtained on the Static-99 in consideration of sexual offences, which result in some form of criminal intervention or official sanction, are translated into risk categories determined by the authors of the instrument. The categories are low, medium-low, medium-high, and high. A classification of low cannot necessarily be interpreted, that the risk of reoffending is at the lowest possible level. Using the Static-99 it is not possible to designate someone with a previous conviction as no risk.

Mr Lee's score falls into the medium-low category. This is based on a score of three; the victim was a stranger, was unrelated and Mr Lee had never lived in an intimate relationship for a period of two years or more. A risk rating of medium-low places Mr Lee in a group where approximately 19% of individuals will reoffend over a fifteen year period. That is not to say that Mr Lee has a nineteen percent chance of re-offending, rather it indicates that the [sic] within the group the offence rate was approximately one in five.

Dynamic Risk Factors (Sex Offender Need Assessment Rating, SONAR )

The sex offender need assessment rating SONAR (Hansen and Harris, 2000) gives an estimate of the dynamic factors known to be associated with sexual recidivism. The items are divided into five relatively stable factors: intimacy deficits, negative social influences, attitudes tolerant of sexual offending, sexual self regulation, general self regulation, as well as four more acute factors: substance abuse, negative mood, anger and victim access.

Mr Lee does not score highly on the dynamic factors known to be associated with sexual recidivism. At the time of the offence he was in a stable intimate relationship. There is no history of serious criminal behaviour in his background, he does not appear to have anti social peers or endorse anti social attitudes. Mr Lee in fact appears to endorse very pro social attitudes and exhibits no behaviour supportive of sexual abuse. There is no evidence that Mr Lee demonstrated an escalation of sexual or violent behaviour. Mr Lee has always had stable employment and accommodation, most recently buying his own home and living with his parents. He enjoys positive family and social support and there is no evidence of mental health or substance abuse issues in his history.

Mr Lee indicated that he was willing to attend treatment although his denials have meant that he has been unable to access the CUBIT program while in prison. He stated that he remains willing to complete a community based program and both Dr Lennings and I are willing to see Mr Lee if he is granted parole.”

46 Ms Howell concluded her report as follows (page 7):

“Mr Lee is a twenty-seven year old man who appeared co-operative with the interview process, demonstrating logical and coherent thought processes. While he continues to assert his innocence, he demonstrates an awareness of the impact on the direct victim as well as his family members. Mr Lee presents as a low risk for sexual and violent recidivism, however, has indicated a willingness to attend psychotherapy in relation to his behaviour with an accredited psychologist.

He does not have a history of mental health concerns, drug and alcohol problems, or antisocial behaviour. There is no evidence to suggest that Mr Lee is a violent man, has anti social peers or endorses anti social attitudes; in fact, Mr Lee appears to hold strongly developed pro-social attitudes and values.

He has been described as a model prisoner who has negotiated his time in prison without incident and holds a work position of responsibility. Mr Lee has developed realistic plans for the future and has good psychosocial support.

In my opinion Mr Lee demonstrates excellent prospects for rehabilitation. If he were granted parole it would allow for ongoing monitoring of his attitudes, behaviour and progress in the community.”

47 At a meeting on 21 July 2006, the SPA expressed its intention to refuse parole to the Applicant. In a notice directed to the Applicant, the SPA indicated that his case would be further considered at a hearing on 1 September 2006 at which the SPA would give particular consideration to his “need to address offending behaviour (sex offending)” (Exhibit 2, page 8).

48 On 2 August 2006, the Applicant lodged an application under s.155 CAS Act in this Court.

49 A supplementary pre-release report dated 18 August 2006 was prepared by Simon West, Probation and Parole Officer (Exhibit A, Tab 4). Mr West’s report supplemented the report of Ms Gallpen dated 22 June 2006. Mr West’s report contained no adverse comment with respect to the Applicant but noted (page 1):

“He continues to deny guilt and therefore remains ineligible for CUBIT.”

50 Mr West’s summary and recommendations, which were supported by Michele Jordan, Unit Leader/Manager, Long Bay Parole Unit, were in the following terms (page 2):

“Mr Lee continues to deny his guilt and for this reason he remains illegible for Sex Offender Treatment programs in custody. An intensive program of this nature remains the most appropriate means of addressing his offending behaviour. There appear to be no significant changes in the inmate’s circumstances since Ms Gallpen’s report was submitted to the Authority on 22 June 2006 and consequently release to parole is not recommended.”

51 The SPA hearing scheduled for 1 September 2006 in fact proceeded on 22 September 2006. Mr Williams, solicitor, appeared for the Applicant. His Honour Judge Christie QC again presided as Chairperson of the SPA together with five members.

52 The Applicant gave evidence at the SPA hearing on 22 September 2006 (Exhibit A, Tab 3, pages 2-6). He told the SPA that he had consented to a referral for a custodial sex-offender’s programme and remained happy to undertake such treatment (page 4). The Applicant was asked by his solicitor about psychological examinations which had been undertaken on his behalf (pages 4-5):

“Q. Now you've seen a number of psychologists both within the prison system and also those that have been arranged by your legal representatives, is that correct?
A. That's right.

Q. You understand that Ms Howe [sic] , a clinical psychologist and your doctor, Chris Lennings, are prepared to provide treatment to you in the community if you are released to parole. Do you understand that?
A. Yes, I am happy to do that.

Q. You want that treatment, yes?
A. Yes, I would like that treatment.

Q. Do you think you would benefit from that form of treatment?
A. Yes, I would benefit from that treatment.

Q. How do you say you might benefit from that treatment?
A. I believe I will get new skills to avoid getting into any trouble in the future and also I will be able to discuss any problems that I might have in life with Ms Howe.

Q. You understand that parole is a form of conditional liberty, don't you?
A. Yes.

Q. You understand that if you are released to parole, in effect, you will still be serving a sentence but in the community. Do you understand that?
A. Yes.

Q. You understand that parole is a privilege not a right?
A. That's correct.”

53 The Applicant’s solicitor called Ms Howell to give evidence (pages 7-11). Ms Howell confirmed that she was prepared to undertake treatment of the Applicant in the community on a one-to-one basis and that, in her opinion, he would benefit from it (page 7.35). Ms Howell disagreed with the statement attributed to her in Ms Gallpen’s report of 22 June 2006 that she had indicated that community intervention would be pointless whilst the Applicant remains in denial. Ms Howell observed (T8.14):

“The current research is showing us that for those people who attend, participate and complete treatment there’s no difference in the outcome of reoffending risk between those who enter treatment admitting their offences and those who enter a treatment denying their offences, and that’s the research that’s coming from Canada currently.”

Ms Howell explained that the Canadian research emanated from Government programmes run in the Canadian federal prison system, in which Carl Hanson is the leading researcher. Mr Hanson is the author of the Static-99 risk-assessment instrument and Ms Howell had undertaken training with Mr Hanson in Canada (page 8). Ms Howell stated that Mr Hanson was the co-author of the SONAR instrument, a dynamic risk-assessment instrument (pages 8-9).

54 Ms Howell was asked concerning her psychological assessment of the Applicant (T9.7):

“Q. You did a full psychological assessment of Mr Lee?
A. Yes, I did.

Q. On the basis of that assessment, taking into account both the static factors and the dynamic factors, what is your opinion in relation to the risk of Mr Lee reoffending?
A. I believe Mr Lee's risk of future reoffending to be low. Mr Lee has very good social, pro-social attitudes, pro-social skills, he is a man who's had ongoing employment, he's had stable life experiences, he's been in a stable relationship, he's had stable family relationships, positive relationships. These are the factors that - he doesn't have any of the risk factors that are associated more acutely with recidivism.

Q. Just in relation to any different [sic] between group therapy and the treatment that you're proposing, one on one therapy, are you aware of any research in that regard?
A. I work as a private practitioner so all of my work is individual work. There has been a long held belief that group work is the best form of treatment but there's some controversy around that, there is no definitive research that says that group therapy produces better outcomes in terms of treatment outcomes. The reality is that group treatment is most cost effective and most easily provided in institutional settings and I think that that has a lot to do with why it's provided in institutional settings.
Q. That's to some extent, an economy of scale issue, you believe?
A. It is an economy of scale issue, yes.”

55 The Applicant’s solicitor asked Ms Howell about the relevance of denial to treatment (page 10.41):

“WILLIAMS: Q. Do you believe it's pointless to treat people who are in denial?
A. No, I don't, and the research is showing us that it is a treatment issue, it - look, it's harder to treat people who deny the whole offence because it's often - you need to build a relationship that allows you to at least get to some aspects of it. In Mr Lee's case, there are parts of the offence that Mr Lee is quite open about, having made bad decisions, inappropriate decisions, and that's a starting point for treatment.

Q. Is it your position that the remarks that have been drawn to your attention by one of the members of the Authority in Ms Galpin's [sic] report accurately reflect your position?
A. No, they don't reflect my position at all.

Q. Do you believe there's been some misunderstanding between your self and Ms Galpin [sic] in that regard?
A. Yes, because we have had discussions and certainly we have had tense discussions around denial but, as I say, most of the people that are referred to me come with some elements of denial.”

56 Mr West gave evidence at the SPA hearing (pages 12-13). He was asked by an SPA member (not the Chairperson) (page 12.24):

“Q. Mr West, you’ve read Dr Lennings report?
A. Yes.
Q. Mr Smith’s report?
A. Yes.
Q. You’re an experienced parole officer, you say that custodial based treatments are a preferred option?
A. Is the preferred option, yes.
Q. Why?
A. Well because it’s more intensive in my opinion.
Q. Yes, but medium/low risk persons?
A. I would still say that it would be preferable if he could go through some treatment process before his release.
Q. Why is the treatment process in gaol preferable to that on the outside offered by either a practitioner or by the department?

A. Well I suppose because it .. [not transcribable] .. the person to deal with issues before they’re back in the community and I think there’s some value in that occurring. I think the difficulty is that once a persons [sic] is released there’s a possibility of not cooperating with the treatment process because they’re then out and about and there’s no need to really make fundamental changes.
Q. But people assessed as low risk are able to do forensic psychology services treatment in the community?
A. Yes, they are.”

57 The Applicant’s solicitor asked Mr West the following questions (page 13.11):

“WILLIAMS: Q. Mr West, as an experience [sic] probation officer are you aware of the criteria for the custodial-based sex offender programs?
A. I am, yes.
Q. And I think as has been alluded to, it is not considered appropriate for an offender who is assessed as low risk to undertake a custodial-based program, is that correct. It’s part of the criteria?
A. To be honest I couldn't answer that absolutely. I don’t believe that Mr Lee has been excluded for that reason, he was excluded because he was in denial and ... not transcribable) .. having read the document in relation to his case it’s the reason that he was not admitted to the CUBIT program.
Q. But certainly on a Static 99 assessment you’re aware that he’s assessed as medium/low risk, correct?
A. Medium/low, yes.
Q. You’ve read the reports of Dr Lennings, you’ve indicated that, Ms Howe, Mr Smith. Do you accept their opinion that when you take into account other factors, in particular, dynamic factors, he is low risk?
A. Well I accept that he’s been assessed as medium to low risk, I can’t go very much farther than that.
Q. You’re not a psychologist or psychiatrist, I take it?
A. No, I’m not.
Q. You would defer to the opinions of the expert clinicians in that regard?
A. I accept that they’ve made an assessment but I can’t say anything more than that they’ve made an assessment, I’ve read their assessments. Their assessments seem competent, I don’t … [not transcribable] .. that.”

58 After submissions from the Applicant’s solicitor, the SPA members retired for a short time to consider their decision. Upon resumption, the Chairperson said (page 15.30):

“CHAIRPERSON: Mr Lee, the Authority have considered the contents of the numerous reports contained within your parole authority file, we’ve considered the submission made on your behalf and the evidence you’ve given here today. We have considered the competing views insofar as they are competing, from the professional persons who have provided various reports. We’ve obviously considered in depth the evidence given here this morning and we have obviously considered the contents of all the Probation and Parole reports.
Having considered all of those matters, the Authority retains concerns as to the possible treatment of yourself in the community as distinct from the custodial setting and the Authority has reached the view that parole ought be refused for the reasons that were stated on 21 July 2006. That reason being, the single reason, that there was a need for you to address your offending behaviour involving the sexual offending. That would normally lead to your eligibility to be again considered for parole would again arise in September 2007 and for that purpose you would normally be considered for parole about 60 days beforehand, in July of 2007.
The Authority, however, are of the view that the Authority’s determination and consideration of this particularly troublesome situation would be assisted with further information concerning available treatment and supervisions in the community and in reaching that decision the Authority relies upon section 219A of the Crimes (Administration of Sentences) Regulations which deal with the circumstances constituting manifest injustice. The Authority on this particular occasion invokes sub section (f) of those particular regulations. So the Authority is of the view that this is a situation where the Parole Authority has refused to grant parole because information on material reasonably required by the Authority to consider whether the offender should be released on parole is not presently available due to circumstances beyond your control and that information or material we feel may subsequently become available certainly before the anniversary of your non parole period in September of next year.
Consequently, the formal order of the Authority will be that parole is refused for the reason stated, 21 July 2006, but the matter is stood over for parole consideration to 2 February 2007. As I say, in standing it over to that date the Parole Authority invokes the section I have already quoted, 219A, sub section (f). The Authority in the meantime will seek a probation and parole report regarding the available treatment and supervisions of yourself in the community should you be released including a structured post release plan. Mr Lee, your possible release to parole will obviously be considered by the Authority at a private meeting on 2 February 2007. You will not be required to attend that meeting and the outcome of that meeting will be made known to you shortly thereafter.
INMATE: Excuse me, your Honour.
CHAIRPERSON: Q. Yes, Mr Lee, what is it?
A. Your Honour, I accept that the Board has refused my parole but I just want to say one thing to the members, to you and to the members. If you would give me an opportunity?
Q. It just depends what it is you want to say, sir?
A. If .. [not transcribable] .. Attorney General’s report [sic - should read Auditor General’s report] dated May 2006, page 27 state, “Department of Correction Service does not have program for people pleading not guilty, only pleading their innocence, and in that classification .. [not transcribable] .. inmate assessed as .. [not transcribable] .. at low risk of reoffending in a sexual manner .. [not transcribable] .. not be advised to participate in a sex offending program and may progress to a normal case management .. [not transcribable] .. expiration of the inmate’s earliest release. Your Honour, I tried everything, I tried my best, the only thing is .. [not transcribable] .. I have to lie and say that I am guilty and do the program. And many people say to me, use the system, tell them that you’re guilty even if you’re not guilty and do the program and go home but I choose to tell the court the truth and by saying that I end up refusing parole by you guys.
CHAIRPERSON: We understand your feelings. If you knock on the door of the studio now they will let you out of the studio.”

Relevance to the Grant or Refusal of Parole of a Sex Offender’s Denial of Guilt and Rejection of Entry into a Custodial-Treatment Programme

59 Until the Applicant was convicted by the jury, he was presumed innocent of each of the three crimes with which he was charged. He was convicted of one offence and acquitted on the other two counts. Where guilt is established to the criminal standard, public policy suggests that so long as the conviction stands, the facts necessarily established ought to be regarded as proved for the purpose of any civil proceedings: Zaidi v Health Care Complaints Commission (1998) 44 NSWLR 82 at 86E-F. This is all the more so with respect to parole decisions, where the civil standard applies (s.135(1) CAS Act) and where the decision to be made arises out of the criminal proceedings which have resulted in conviction. The decision to grant or refuse parole arises from the sentencing decision made after conviction.

60 At the sentencing stage, a person charged with a criminal offence is entitled to plead not guilty, and defend himself or herself, without thereby attracting the risk of the imposition of a penalty more serious than would otherwise have been imposed: Siganto v The Queen (1998) 194 CLR 656 at 663 [22].

61 In determining whether parole ought be granted under s.135 CAS Act, the SPA is not determining whether an offender should be punished or further punished for his or her offence. It is the sentencing court which has imposed punishment having regard, inter alia, to the purposes of sentencing in s.3A Crimes (Sentencing Procedure) Act 1999. See DCU at [12]-[14] extracted at paragraph 15 of this judgment.

62 In DCU, I recounted (at [47]-[50]) a number of propositions which are relevant to the question of parole where an offender denies his or her guilt:

“ 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.
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).
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.
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).”

63 At [51]-[53] in DCU, I recounted statements in a number of authorities as to the way in which a sex offender’s denial of guilt, and consequent unsuitability for participation in a sex-offender’s programme, was relevant to a parole decision. A parole authority is entitled to take into account that a prisoner’s successful completion of a sex offender’s programme, denied to him by his denial, would have been a factor in his favour, but that the absence of this factor is relevant to a parole determination: Mott v Queensland Community Corrections Board (1995) 2 QdR 261 at 271. A prisoner’s denial of guilt has been said to be relevant to a parole decision, in that it denies him the opportunity of participating in a programme, successful completion of which may well have enhanced his case for parole: Mott at 272. A prisoner’s refusal to acknowledge guilt may be regarded, in some circumstances, as a relevant consideration in assessing an application for parole. 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: Mott at 275-276. A parole authority is entitled to have regard to a prisoner’s denial of guilt, and non-participation in a sex-offender’s treatment programme, as being factors tending to render him unsuitable for parole: Varney v Parole Board (WA) (2000) 23 WAR 187 at 208.

64 In DCU, I said (at [66]-[67]):

“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.

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.”


Encouraging Offenders to Admit Guilt and Acknowledge Wrongdoing

Some General Observations

65 It has been observed that there may be many reasons why a person pleads guilty to a criminal charge in the first place. In Meissner v The Queen (1994-1995) 184 CLR 132, Dawson J said at 157:

“It is true that a person may plead guilty upon grounds which extend beyond that person's belief in his guilt. He may do so for all manner of reasons: for example, to avoid worry, inconvenience or expense; to avoid publicity; to protect his family or friends; or in the hope of obtaining a more lenient sentence than he would if convicted after a plea of not guilty. The entry of a plea of guilty upon grounds such as these nevertheless constitutes an admission of all the elements of the offence and a conviction entered upon the basis of such a plea will not be set aside on appeal unless it can be shown that a miscarriage of justice has occurred.”

See also Wong v Director of Public Prosecutions (2005) 155 A Crim R 37 at 45-46.

66 For the same pragmatic motives referred to by Dawson J in Meissner, a convicted offender may admit guilt, or reduce his level of denial, with respect to a sex offence for the practical purpose of entering a programme to obtain parole release. No doubt, those to whom the responsibility is given to assess prisoners in the custodial setting, and to make parole decisions under the CAS Act, will be alive to considerations of this type.

67 In Suresh v The Queen (1998) 72 ALJR 769, Kirby J criticised the approach whereby an offender would be denied parole because of refusal of entry to a sex-offender’s treatment programme resulting from denial of guilt. Kirby J said at 781 [61]:

“At least where appellate proceedings are outstanding, it may be hoped that some means will be found to relieve prisoners of the obligation to make such an admission, assuming it is indeed required and, if it is, that it is lawful. Enforced admissions of guilt, as the effective price of liberty, are not normally a feature of criminal justice in Australia. Whilst an acknowledgment of wrongdoing and the undertaking of such courses may be useful in particular cases, the extraction of admissions by the prospect of early release from custody will often lack integrity and may affront the dignity of the conscience even of a convicted person [See Fox, " Compulsion of Voluntary Treatment in Sentencing " (1992) 16 Criminal Law Journal 37 at 38-39; Pithers, " Maintaining Treatment Integrity With Sexual Abusers " (1997) 24 Criminal Justice and Behaviour 34 at 49; cf R v Tutchell [1979] VR 248 at 256] . A better means of encouraging participation in the treatment course should, in my view, be considered [The former co-ordinator of the sex offender programme at the Casuarina Prison has emphasised that the main criterion for admission is that ‘[t]he offender needs to want to change - not in order to get parole or any other form of inducement’: Cull, " The Treatment of Rapists: A Measure of Prevention " in Easteal (ed), Without Consent: Confronting Adult Sexual Violence (1993) 263 at 266. As the evidence before this Court stands, the stated goal would not be achieved by the practice adopted] . A discretion to accommodate the exercise of legal rights and also cases of conscientious objection (arguably manifested in this case at the price of the appellant's continuing detention in custody) would be highly desirable, if not legally required.”

68 In McCallum v Parole Board, Smart AJ (Hidden and Greg James JJ agreeing) said at [30]:

“It would be undesirable for an offender, in order to obtain parole, to follow the counselling course and appear to be doing what the counsellor or other specialist deems necessary when not in truth ascribing to it and believing it to be unnecessary. That would compromise any integrity which remains in the offender.”

69 Research in the field has pointed to the role of therapeutic jurisprudence with respect to corrections-based sex-offender treatment programmes: D Lievore, “Recidivism of Sexual Assault Offenders: Rates, Risk Factors and Treatment Efficacy”, Australian Institute of Criminology, 2004. Lievore points to the fact that the law can have both therapeutic and unintended anti-therapeutic consequences (at 75):

“On the one hand, legal procedures may facilitate rehabilitation through effective interventions and may mitigate harsh sanctions, such as prolonged incarceration, through justifying extended community supervision. On the other hand, the law may contribute to psychological dysfunction. For example, labelling of convicted sex offenders can become self-fulfilling prophecies as offenders come to see themselves as unable to change or to take responsibility for their actions. In addition, sex offender treatment that is mandated by a parole board may be anti-therapeutic because it becomes part of the punishment and because denial of choice can produce dissonance, conflict and ambivalence. Alternatively, treatment may be undertaken to accrue favourable parole outcomes. In both cases offenders may simply satisfy the requirements of the program without going through real change (Birgden & Vincent 2000; Glaser 2003).”

70 In the course of an overview of sex-offender treatment programmes throughout Australia, Lievore observed (at 80-81):

“ Voluntary Participation

Participation in sex offender treatment programs is open to all eligible offenders. Treatment is voluntary in most jurisdictions and requires the prisoner’s informed consent. Parole boards in some jurisdictions can insist on treatment, although informed consent is still desirable. Refusal to participate is taken into consideration when determining parole, and release authorities take a favourable view of program completion. While this coercive approach conflicts with the motivational approach of therapeutic staff and may have an anti-therapeutic effect, the harm inflicted by sexual assault is considered to justify mandated intervention. In reality, many prisoners participate for the extrinsic motivation of obtaining parole, so the criterion of voluntariness is often not met. While it is assumed that offenders are likely to be more receptive to interventions when they participate through choice, group therapy aims to increase the offender’s intrinsic motivation to stay in the program and avoid relapse. One meta-analysis found little difference in recidivism rates between prisoners undergoing mandated (10 per cent) and voluntary (12 per cent) treatment (Birgden & Vincent 2000).

Eligibility Criteria

To be accepted into a program offenders must have a recent history of behavioural stability. Prisoners are usually excluded if they deny the offence, have psychiatric diagnoses or below-functional intelligence, although Western Australia provides programs for intellectually disabled offenders. Inmates may be dismissed from programs if they fail to acknowledge and take responsibility for the offending behaviour, breach group confidentiality, or display aggressive or violent behaviour towards staff or other offenders. Participation is scheduled just prior to the end of the sentence to ensure maximum therapeutic effects on release, but the remaining sentence length must be sufficient to allow completion of the program.”

The Applicant’s Denial of Guilt

71 The evidence before the SPA in this case points to the Applicant’s denial of guilt as being the essential stumbling block to a grant of parole. As was made clear at the SPA hearing on 22 September 2006, all other aspects concerning the Applicant were favourable to a grant of parole. The one area which led to refusal of parole was his failure to undertake a custodial sex-offender’s programme which, in turn, was the product of his continuing denial of guilt with respect to the offence of which he was convicted.

72 The Applicant submitted, with some justification, that his case could be distinguished from DCU. In DCU, the Applicant was a repeat sex offender who refused to apply for entry to a custodial sex-offender’s programme. The present Applicant was sentenced for a single serious sex offence and was willing to undertake a custodial sex-offender’s programme. His denial, or level of denial, was such that he was refused admission to the custodial programme.

73 It is apparent that the SPA adopted the approach, at least up to 22 September 2006, that it was not prepared to grant the Applicant parole without him undertaking a custodial sex-offender’s programme. To do this, it is a prerequisite that the Applicant admit his guilt or, at least, demonstrate a less-active or less-adamant denial.

74 During the course of submissions by counsel for the SPA at the present hearing, I observed that there appeared to be a significant level of subjectivity in an assessment by relevant custodial personnel involving classification of persons who demonstrate an active, categorical or strong denial (leading to refusal of entry to a programme) or a lesser form of denial (which may possibly leave the door open to entry to a programme).

75 As Dr Lennings observed in his report, the position adopted by the Applicant is contra-intuitive. If the Applicant, in some way, reduces the level of his denial to a point where he is accepted into the custodial sex-offender’s programme, the pathway to release on parole may be open to him. This, of course, represents a form of inducement to a sex offender to acknowledge guilt or reduce the level of denial, even if that view is not genuinely held by the offender.

76 The evidence before the SPA, at its July and September 2006 meetings concerning the present Applicant, included a significant body of reputable psychological evidence, including oral evidence, explaining the process of risk assessment and the use of static and dynamic factors. That evidence also extended to the relevance of denial of guilt to risk assessment. Of course, the SPA would be well aware of the criteria for admission into custodial sex-offender programmes. On the evidence before the SPA concerning this Applicant, it appears that there is debate in the psychological community concerning the relevance of denial to risk assessment. It appears that the SPA has adopted the approach that treatment in the custodial setting was most important and, as a result, denial of guilt (of a particular level) was an important consideration given that it barred a prisoner from admission to a custodial treatment programme.

77 At the hearing before me, counsel for the SPA indicated that there were significant resource issues involved. Custodial sex-offender programmes, including CUBIT and CORE, involve group-counselling sessions. It was indicated that the involvement of a prisoner or prisoners who denied guilt would undermine the group-counselling process. It was indicated further, that resources within the prison system could not extend to the provision of one-on-one counselling of the type which may be appropriate to a sex offender who denied guilt. In effect, the type of treatment or counselling which Dr Lennings or Ms Howell could provide in the community was not available in the prison setting for resource reasons. I was informed that this approach contributed to the criteria for admission to the CUBIT and CORE programmes.

78 On the present application, the Applicant relied upon the Auditor General’s report by way of a performance audit of prisoner rehabilitation within the Department of Corrective Services (May 2006) (Exhibit 1, page 46). This appears to be the report to which the Applicant made mention at the end of the SPA hearing on 22 September 2006. In that report, the Auditor General stated (Exhibit 1, page 73 - page 27 of report):

“The department has projects under way to improve access to programs. For example, it will be developing a program for sex offenders who deny any wrongdoing.”

79 Accordingly, it appears that the issues involved in Galli, DCU and the present case may, at some time in the future, be remedied by the availability of any appropriate custodial programme for sex offenders who deny guilt. Such a programme, however, does not exist at present.

80 In DCU, I acknowledged (at [68]) that it was understandable that the SPA would regard a custodial treatment programme as being the primary method of assessing sex offenders in the interests of reducing the risk of re-offending and promoting rehabilitation, and that a refusal by an offender to apply to enter such a programme is a factor which the SPA is able to take into account. I acknowledged also (at [74]) the breadth of factors which the SPA may take into account under s.135 CAS Act. Following a reference to the second reading speech with respect to the Crimes (Administration of Sentences) Amendment (Parole) Bill 2004 (at [75]), I observed (at [76]) that the observations of the Minister in that second reading speech tended to confirm the relevance of factors such as an offender’s willingness to undertake a custodial sex-offender’s programme to the exercise of the SPA’s statutory functions.

81 The present Applicant has been willing to undertake a custodial sex-offender’s programme since he applied for entry to such a programme on 11 October 2004. Because he was “actively denying” the sexual offence for which he had been convicted, he was refused entry to such a programme on 6 December 2004.

The Applicant’s s.155 Grounds

82 The Applicant has sought to bring himself within s.155(1) CAS Act in a number of ways. To succeed in the present application, it is necessary for the Applicant to demonstrate that the decision of the SPA was made on the basis of false, misleading or irrelevant information. The submissions made by the Applicant in this respect include the following:

(a) a denial of guilt for the crime for which he was convicted is a false basis for the SPA’s determination not to release him on parole;

(b) the Applicant’s inability to complete a custodial sex-offenders programme due to his denial of guilt involves reliance by the SPA upon false, misleading or irrelevant information;

(c) the report of Ms Gallpen on 22 June 2006 referred to a risk assessment concerning a “Mr Thomas” and that this is not the Applicant - this involves reliance upon false, misleading or irrelevant information;

(d) the risk assessment of the Applicant upon which Ms Gallpen, Mr West and the SPA relied is confusing with, in some places, an indication of a “low” risk assessment and, in other places, a “low to medium” risk assessment - the requirement to undertake a custodial treatment programme does not apply to low-risk inmates - the SPA has relied upon false, misleading or irrelevant information in this respect;

(e) the SPA failed to have regard, or proper regard, to the substantial body of expert psychological evidence before it, in documentary and oral form, pointing to the limited relevance of denial of guilt to risk assessment - such an approach was said to involve reliance upon false, misleading or irrelevant information;

(f) the SPA failed to have regard, or proper regard, to the substantial body of expert psychological evidence from Dr Lennings, Ms Howell and Mr Smith indicating a satisfactory proposal for post-release treatment and counselling in the community in a manner which adequately addressed the risk of re-offending.

83 The material relied upon by the Applicant, and the arguments advanced by him, pointed ultimately to one or other of the arguments listed above in support of his claim for intervention by the Court under s.155 CAS Act. Of course, these grounds and submissions are overlapping. I will approach these matters as the Applicant’s grounds for relief.

84 In approaching the Applicant’s grounds, it is necessary, once again, to keep in mind the limited nature of the Court’s function under s.155 CAS Act.

85 With respect to Ground (a), I am not satisfied that the SPA has taken into account false, misleading or irrelevant information in having regard to the Applicant’s denial of guilt in considering whether to grant parole. It is clear that denial of guilt is capable of being relevant, directly or indirectly, to the assessment of the grant of parole: Mott; Varney; DCU. It is not clear to me that Adams J in Galli expressed a contrary view. If, however, that view is open on his Honour’s judgment I would, with respect, disagree with it. It appears that his Honour’s attention was not drawn to cases such as Mott and Varney.

86 It is apparent from the evidence before the SPA in this case that there is a dispute, and perhaps a sharp dispute, between psychologists concerning the significance of denial of guilt to risk assessment. I am not satisfied, however, that the Applicant has demonstrated a basis for a direction under s.155 CAS Act with respect to the manner in which the SPA had regard to his denial of guilt in its decision to refuse parole.

87 With respect to Ground (b), I am not satisfied that the SPA’s reliance upon the Applicant’s inability (because of his denial) to undertake a custodial sex-offender’s programme involved reliance by the SPA upon false, misleading or irrelevant information. The SPA was aware of the controversy concerning the significance to risk assessment of denial, and thus to its impact upon treatment, by way of the body of evidence before it including the reports (and oral evidence) of Dr Lennings, Ms Howell and Mr Smith. At least one member of the SPA asked questions of Ms Howell at the hearing on 22 September 2006 concerning issues related to this topic. It is for the SPA to exercise its statutory function under s.135(1) CAS Act, and to have regard to the broad range of factors relevant to that decision set out in s.135(2) and s.135A CAS Act.

88 As will be apparent from cases in other jurisdictions, including Queensland, Western Australia and the United Kingdom, the issues raised in this case, and in Galli and DCU, are not confined to this State.

89 With respect to Ground (c), it is correct that the report of Ms Gallpen of 22 June 2006 referred to a risk assessment of a “Mr Thomas”. No explanation has been proffered for this reference in the report, which otherwise relates to the Applicant. What is clear, however, is that no issue was taken concerning this matter at the SPA hearing on 22 September 2006 at which the Applicant was legally represented. It seems clear that all the participants at that hearing, including members of the SPA, the Applicant, his solicitor and the witnesses called, approached the matter upon the basis that the reference to “Mr Thomas” in this report was a typographical error and that the statement made by Ms Gallpen related to the Applicant.

90 Although it might be said that this unexplained reference to “Mr Thomas” in the report concerning the Applicant may have a tendency to confuse or mislead, it seems clear that no one, including the SPA, was misled by this reference. I am not satisfied that this ground demonstrates that the SPA took into account false, misleading or irrelevant information in the parole decision concerning the Applicant.

91 With respect to Ground (d), it seems clear, on all the material before the SPA, that the Applicant was considered to be a medium-to-low risk of re-offending.

92 As I understand it, CUBIT is aimed at offenders assessed as having medium-high or high-risk needs whilst CORE is aimed at offenders who fall in the medium-low range. It should be borne in mind that the various assessments of the Applicant by custodial personnel placed him no higher than the medium-low range of risk of re-offending. Upon the basis of the departmental criteria, it appears that the Applicant would be an appropriate candidate for CORE, and not CUBIT. It is not at all clear, on the material which was before the SPA, that this distinction was borne in mind. The pre-release report of Ms Gallpen, and the supplementary pre-release report of Mr West speak of the Applicant’s ineligibility for entry into the CUBIT programme. No reference is made to CORE. Prima facie, given his risk assessment, the Applicant would not be expected to enter CUBIT. It was the CORE programme which appeared to be appropriate, given his medium-low risk assessment.

93 The difficulty for the Applicant is that, according to Mr Bright’s assessment of 6 December 2004, the Applicant was unsuitable for entry into either the CUBIT or the CORE programmes because he was “actively denying” his offence. Taking a broader approach, it might be said that the SPA required the Applicant to undertake a custodial sex-offender’s programme (either CUBIT or CORE), but that the Applicant was rejected for both given his “active denial” of the offence.

94 Given the serious consequences that flow from the process of risk assessment and rejection of an application for entry to a custodial sex-offender’s programme, it might be thought that a level of clarity and precision is to be expected in the assessment process. The serious consequences flowing from this process include the prospects that an offender will not be released at all on parole and will be required to serve his entire sentence. It is evident that this has serious consequences for the offender. However, there are potential serious consequences for the general community as well. A prisoner who is detained for his entire sentence without participation in a custodial sex-offender’s programme will be released, without supervision, into the community at the completion of the sentence. The absence of an adequate period of supervision may limit the ability of an offender to integrate back into society: McCallum v Parole Board at [31]. The Crimes (Serious Sex Offenders) Act 2006, for good reason, is confined in its operation and will not apply to most offenders serving sentences for sex offences: Attorney General for NSW v Gallagher [2006] NSWSC 340 at [20]ff. Further, there is the financial cost to the community of extended full-time detention of prisoners until the completion of their entire sentences.

95 In making these observations, I am not expressing a view as to the desirability or otherwise of these consequences. The point of these observations is that the consequences for the offender and the community are such that an element of accuracy, clarity and precision in the assessment process is more than highly desirable. The SPA is required to consider whether it is satisfied that the release of an offender on parole is appropriate in the public interest: s.135(1) CAS Act. The various factors to which I have referred are capable of bearing upon the “public interest” in this context.

96 That said, I am not satisfied that the Applicant has established in this case that the SPA has acted upon false, misleading or irrelevant information with respect to his risk assessment.

97 With respect to Ground (e), it is clear that the SPA had a significant body of evidence before it with respect to the relevance of denial of guilt to risk assessment of sex offenders. It was for the SPA to form its own conclusions with respect to that and other issues which bear upon the decision, in the public interest, whether the Applicant should be released to parole under s.135(1) CAS Act. I am not satisfied that the Applicant has established that the SPA acted on false, misleading or irrelevant information in this respect.

98 With respect to Ground (f), this argument essentially goes to the weight which the SPA gave to evidence adduced by the Applicant in support of his claim for a grant of parole. As I have mentioned above, it is clear that the function of this Court under s.155 CAS Act does not extend to a merits review, rehearing or assessment of the weight which the SPA gave, or should have given, to particular factors and evidence. I am not satisfied that the Applicant has demonstrated that the SPA acted upon false, misleading or irrelevant information in this respect.

Conclusion

99 I have given careful consideration to the arguments advanced by the Applicant in this case. His position is different to that of DCU in that he is not a repeat sex offender, and he has not refused to apply for entry to a custodial sex-offender’s programme. He applied for entry to a custodial sex-offender’s programme, but his application for entry was refused.

100 Following the orders made on 22 September 2006, the SPA will again consider the Applicant’s case in February 2007. It is, of course, a matter for the SPA to determine whether the Applicant ought be granted parole. It is the obligation of the SPA to have regard to all the circumstances of the case, in exercising its statutory function under ss.135 and 135A CAS Act.

101 In DCU, I rejected an argument (at [72]-[76]) that, by reference to Green v Daniels (1977) 51 ALJR 463, the SPA acted on false or misleading information by acting on a so-called blanket policy to refuse parole to sex offenders who had not undertaken the CUBIT programme. The refusal or inability of an offender to undertake such a programme, as a result of denial of guilt, is relevant to a parole decision in the sense explained in Mott and Varney. Taking this factor into account does not give rise to the SPA acting on false or misleading information for the purpose of s.155 CAS Act. Nevertheless, the decision-making function with respect to parole is not intended by the CAS Act to be an inflexible and dogmatic process. The SPA is required to exercise its statutory function by reference to the multitude of factors that bear upon the particular offender and his offence or offences: DCU at [67], [76].

102 Before concluding this judgment, I must observe that there was a substantial body of expert psychological evidence before the SPA relating to this Applicant. The reports were prepared by reputable and experienced psychologists who had undertaken detailed assessments of the Applicant. The assessments had been undertaken upon the premise that the Applicant had committed the serious offence of which he was convicted. It is apparent that the SPA gave close consideration to the body of evidence before it on 22 September 2006. No doubt, it was for this reason that the Chairperson observed that, after “consideration of this particularly troublesome situation”, the provisions in s.137B CAS Act and clause 219A(1)(f) CAS Regulation ought be engaged to bring the Applicant’s case back before the SPA, at an earlier time than usual, in February 2007. It seems clear that there is substantial material which the SPA may take into account, in the exercise of its undoubted discretion to consider a grant of parole to this Applicant, in February 2007.

103 The Applicant has not established an entitlement to a direction under s.155 CAS Act. The application is dismissed.

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