NEW SOUTH WALES COURT OF CRIMINAL APPEAL
CITATION: McCallum v Parole Board of NSW [2003] NSWCCA 294
FILE NUMBER(S):
60175/03
HEARING DATE(S): 17 September 2003
JUDGMENT DATE: 27/10/2003
PARTIES:
John Darrin McCallum v Parole Board of NSW
JUDGMENT OF: Hidden J Greg James J Smart AJ
LOWER COURT JURISDICTION: Not Applicable
LOWER COURT FILE NUMBER(S): Not Applicable
LOWER COURT JUDICIAL OFFICER: Not Applicable
COUNSEL:
(A) In Person
(C) Mr R Bromwich
SOLICITORS:
(A) In Person
(C) I V Knight
CATCHWORDS:
Information to be taken into account by Parole Board when considering release of prisoner on parole - limited role of CCA on application from Parole Board - CCA has no power to review merits of Board's decision.
LEGISLATION CITED:
Crimes (Administration of Sentences) Act 1999
Sentencing Act 1989
DECISION:
Application dismissed
JUDGMENT:
IN THE COURT OF
CRIMINAL APPEAL
60175/2003
HIDDEN J
GREG JAMES J
SMART AJ
Monday, 27 October 2003
John Darrin McCALLUM v PAROLE BOARD
JUDGMENT
HIDDEN J:
GREG JAMES, J: I agree with Smart, AJ.
In Regina v. Naudi [2003] NSWCCA 160 and in Rozynski v. Parole Board of New South Wales [2003] NSWCCA 214, Simpson, J. and I both made comment on the lack of the utility of and the difficulties associated with, applications made under s.155, as have various judges of this court over the years.
The existence of the section suggests to prisoners the possibility of having their refusals of parole reviewed on the merits in this court. No such jurisdiction is conferred by that section.
I would again urge the legislature to re-consider whether the section should remain in force.
SMART AJ: Mr McCallum seeks a direction pursuant to s. 155 of the Crimes (Administration of Sentences) Act 1999 that it is irrelevant for the Parole Board to take into account when considering the grant of parole for sentences for robbery whilst armed and armed assault with intent to rob that he had not yet sufficiently addressed his offending behaviour as to six serious sexual assault offences when the sentences for those offences had been served.
The applicant stood trial before Freeman DCJ in September 1993 and a jury on six counts, namely, detain a woman against her will with intent to carnally know her contrary to s. 89 of the Crimes Act 1900, four counts of sexual intercourse without consent contrary to s.61 I and one account of attempted sexual intercourse without consent also contrary to s.61 I of the Act. He was found guilty on all counts and sentenced to a concurrent fixed term of imprisonment for 7 years on each count, starting on 1 May 1993 and ending on 30 April 2000.The maximum penalty for each offence was 14 years. All the sexual offences occurred during one episode on 28 November 1992 and involved the same victim.
At the conclusion of his trial the applicant pleaded guilty to a count of armed robbery with an offensive weapon, a replica .45 calibre pistol on 30 April 1993, when…
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- AGLC
- McCallum v Parole Board [2003] NSWCCA 294
- Case
- [2003] NSWCCA 294
- Decision Date
CaseChat Overview and Summary
The court examined the statutory provisions under which the Parole Board operates, specifically sections 126, 134, and 135 of the current Act. The court acknowledged the importance of the public interest in the decision-making process of the Parole Board and the factors that the Board must consider, such as the offender's antecedents and conduct during imprisonment. The court highlighted that while the decisions of Sully J and Burchett AJ had merit, the statutory provisions did not support the argument that the parole period of four years related to the totality of the appellant's criminality. The court also considered the applicant's conduct, particularly his reluctance to address his past offences and participate in rehabilitation programs, which the Board deemed significant in determining his suitability for parole.
The court concluded that the CCA did not have the power to review the merits of the Parole Board's decision. The statutory framework provided limited scope for the CCA to intervene in the Board's decision-making process. The court emphasised that the primary consideration for the Parole Board was the public interest, and the Board was entitled to consider the applicant's past criminal conduct and lack of rehabilitation progress as factors against his release on parole. Consequently, the court upheld the decision of the Parole Board denying the applicant's application for parole.
The final orders of the court affirmed the decision of the Parole Board, rejecting the applicant's appeal and upholding the Board's determination that the applicant was not suitable for release on parole at that time.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
Section 126 (1) of the Crimes (Administration of Sentences) Act provides that the offender may be released on parole in accordance with Part 6. Section 126 (2) is in substantially the same terms as s.14 of the Sentencing Act 1989. I attach much weight to the decisions of Sully J and Burchett AJ. However, in view of the statutory provisions it is not possible to hold that the parole period of 4 years relates to all the sentences. No parole period was fixed for the sentences for the sexual offences. The applicant was sentenced to fixed terms which have expired. Counsel for the Board while acknowledging the difficulties in the approach of Sully J and of Burchett AJ, stated that he had no instructions to make any concessions. Counsel mentioned that when he had appeared before Sully J for the Commissioner he had not advocated the approach taken by that judge, namely, that the parole period of four years relates to the totality of the appellant's criminality. Section 134 of the current Act which is in Division 2 of Part 6 provides that that Division applies to the making of a parole order for a sentence of more than 3 years for which a non parole period has been set. That is the equivalent of section 16 of the Sentencing Act 1989. Section 135 of the current Act provides: The Board was concerned that the applicant had tied up the victim of the sexual assault and the two ladies subjected to the armed robbery which occurred in their room at the hotel. This was significant and the Board was entitled to think that this indicated that something was seriously awry with the appellant. Section 135 provides that in deciding whether to release an offender on parole the public interest is of primary importance. That is the over-riding principle. Section 135(2) sets out a list of matters to which the Parole Board must have regard. Those include the offender's antecedents; that would encompass the six sexual offences. Section 135(2)(f) requires the Board to have regard to the offender's conduct to date while serving sentence, including the attitudes expressed by the offender and his willingness to participate in rehabilitation programmes. That provision probably relates to the sentence or sentences which the offender is serving. However, the provision is broad enough to pick up attitudes expressed by the offender during the sentence or sentences which he is serving to past matters in so far as they bear upon the offender's fitness to be released. The offender's attitudes of not wishing to address aspects of his offences was capable of bearing upon his fitness to be released. In the present case, the flaw which led to the tying up of the victim of the sexual offences could be seen as being present in the tying up of the ladies the victims of the armed robbery. The Board could also take the view that without the offender being prepared to address his offending behaviour in relation to women the likelihood of the offender, if granted parole, benefiting from participation in a rehabilitation programme, was low.