Leslie John Gulliford v New South Wales State Parole Authority

[2006] NSWSC 1230

CITATION:	Leslie John Gulliford v New South Wales State Parole Authority [2006] NSWSC 1230
HEARING DATE(S):	13 November 2006
JUDGMENT DATE :	20 November 2006
JUDGMENT OF:	Barr J at 1
DECISION:	Application dismissed.
PARTIES:	Leslie John Gulliford New South Wales State Parole Authority
FILE NUMBER(S):	SC PB0011/06
COUNSEL:	P: N/A D: N L Sharp
SOLICITORS:	P: N/A D: Crown Solicitor's Office

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

GRAHAM BARR J

20 NOVEMBER 2006

PB0011/06 LESLIE JOHN GULLIFORD v NEW SOUTH WALES STATE PAROLE AUTHORITY

JUDGMENT

1 HIS HONOUR: The plaintiff, Leslie John Gulliford, is serving a sentence of three years and six months imprisonment which will expire on 24 January 2007. The non-parole period of two years and eight months expired on 24 March 2006. On 25 January 2006 the defendant, New South Wales Parole Authority (the Parole Authority), decided to refuse parole and issued a Notice of Intention to Refuse Parole. It invited the plaintiff to apply for a reconsideration of that determination. He did. As a result, a parole hearing was held on 27 April 2006. On the same day the Parole Authority determined not to release the plaintiff to parole. On 26 May 2006 the plaintiff commenced this proceedings. He applies for a direction to the Parole Authority that the information upon which it based its decision on 27 April 2006 was false, misleading and irrelevant. The direction is sought pursuant to s155 Crimes (Administration of Sentences) Act 1999.

2 The plaintiff filed no written submissions and did not attend the hearing before me. That was at his own request. Counsel for the Parole Authority tendered written submissions and addressed the Court.

3 The affidavit of Warren Abadee affirmed on 7 November 2006 shows the following. The plaintiff was born on 24 July 1961. He has a moderate record of offending. The record shows that he is violent on occasions and has assaulted women. He gets into trouble when he drinks alcohol. For present purposes the significant entries in the record are of the commission of an indecent assault in 1979 for which he was committed to an institution, a rape in 1981 for which he was sentenced to imprisonment for five years and an act of indecency in 1996 for which he was sentenced to imprisonment for nine months.

4 In July 2003 the plaintiff stood trial in the District Court on a number of charges. He was found guilty of breaking and entering a dwelling house and committing a serious offence, namely attempting to have sexual intercourse without consent. As a result, the sentence I have mentioned was imposed. His appeal to the Court of Criminal Appeal was dismissed.

5 One of the programs designed for the rehabilitation of sexual offenders during the service of their sentences is known by its acronym CUBIT. It is a condition of entry to the program that participants acknowledge their guilt of the offences of which they have been convicted. The plaintiff applied for entry to the program soon after his sentence commenced and it appears that he was kept waiting an inordinately long time for a response. However that may be, the plaintiff never qualified for entry to CUBIT because he always denied his guilt. He continues to assert his innocence.

6 When the Parole Authority made its consideration on 25 January 2006 it had before it a Probation and Parole Service Pre-Release Report. The report recorded that the plaintiff disagreed with the sentencing judge’s findings and asserted his innocence. He asserted that the complainant had been “put up to it” by her parents and the police in order to obtain compensation. It was recorded that following an Alcohol and Other Drugs Assessment the plaintiff had been required to participate in the Twelve-Step Program of Alcoholics Anonymous. He had not attended. His complaint about not being admitted into CUBIT was noted. The report recorded that he had been assessed in the medium range for re-offending and in the medium to high range for sexual re-offending. The reporter considered it of overwhelming importance that the plaintiff had committed three sexual offences and an assault but had not participated in relevant rehabilitation programs. The plaintiff appeared to have no appreciation of the effects of his latest offence on the complainant. Notwithstanding that he had completed other courses, including anger management, worked well and behaved himself, the reporter did not support the application for parole.

7 The Parole Authority decided to refuse parole on the basis that -

(a) the plaintiff was unable to adapt to normal lawful community life;
(b) the plaintiff’s risk of re-offending; and
(c) the plaintiff’s need to address offending behaviours (sex offending/alcohol and other drugs).

8 On its reconsideration of the matter on 27 April 2006 the Parole Authority had before it the report I have discussed together with a Supplementary Pre-Release Report. It also had a psychologist’s report. The author of the Supplementary Pre-Release Report commented upon the psychologist’s opinion that the plaintiff had “little insight into or strategies for managing his risk for relapse into problematic drinking”. The reporter observed that the plaintiff lacked problem solving skills and insight into factors contributing to his offending and noted that there was no psychiatric or psychological condition present that would have prevented his undertaking a sex-offender rehabilitation program. Parole was not recommended.

9 The plaintiff attended the Parole Authority hearing and was there represented by a solicitor. He gave evidence. I will not recount the detail of it. He complained about his conviction. He acknowledged his difficulty with alcohol and asserted an intention to attend Alcoholics Anonymous meetings. He said that he had attended skills courses and a meditation course. The Parole Authority decided to refuse parole for the reasons expressed on 25 January 2006 (with the exception of the need for a psychological report, which had in the meantime been received). The Parole Authority’s reasons are therefore as I have summarised.

10 Section 155 is as follows -

155 Application to Supreme Court by offender

(1) If:

(a) the Parole Authority decides that an offender should not be released on parole, and

(b) the offender alleges that the decision of the Parole Authority has been made on the basis of false, misleading or irrelevant information, the offender may, in accordance with rules of court, apply to the Supreme Court for a direction to be given to the Parole Authority as to whether the information was false, misleading or irrelevant.

(2) The Supreme Court may give such directions with respect to the information as it thinks fit.

(3) An application under this section is to be considered by the Supreme Court if and only if it is satisfied that the application is not an abuse of process and that there appears to be sufficient evidence to support the application.

11 The power under this section is narrow. It is not a judicial review. It is not concerned with the merits of the Parole Authority’s decision, nor with the weight to be placed on the factors the Parole Authority had to consider: R v Naudi [2003] NSWCCA 160; Galli v New South Wales Parole Authority [2006] NSWSC 206; DCU v State Parole Authority of New South Wales [2006] NSWSC 526.

12 The plaintiff must establish that there was false, misleading or irrelevant information before the Parole Authority and that the Parole Authority acted upon it in refusing to grant him parole. It has not been made to appear that any of the information before the Parole Authority was false, misleading or irrelevant. The application is dismissed.

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