Naden v Parole Authority of New South Wales

[2017] NSWSC 479

Supreme Court

New South Wales

Medium Neutral Citation:	Naden v Parole Authority of New South Wales [2017] NSWSC 479
Hearing dates:	6 March 2017
Decision date:	27 April 2017
Jurisdiction:	Common Law
Before:	Latham J
Decision:	Application Dismissed
Catchwords:	ADMINISTRATIVE LAW – application under s155 Crimes (Administration of Sentences) Act) –whether Parole Authority for NSW relied on false, misleading or irrelevant information – scope of review of Parole Authority decisions – insufficient evidence advanced to support application - application dismissed.
Legislation Cited:	Court (Administration of Sentences) Act 1999 (NSW), s155
Cases Cited:	Attorney General for New South Wales v New South Wales State Parole Authority [2006] NSWSC 865 Clark v State Parole Authority of New South Wales and Anor [2011] NSWSC 1220 DCU v State Parole Authority of New South Wales [2006] NSWSC 526 Lee v State Parole Authority of New South Wales [2006] NSWSC 1225 McCafferty v Offenders Review Board (Court of Criminal Appeal, 19 June 1995, unreported) McCallum v Parole Board of NSW [2003] NSWCCA 294 McPherson v Offenders Review Board (1991) 23 NSWLR 61 R v Naudi [2003] NSWCCA 160 Radford v Parole Board [2002] NSWCCA 70 Rozynski v Parole Board of New South Wales [2003] NSWCCA 214 Sutton v New South Wales State Parole Authority [2011] NSWSC 935 Terry Sampson v NSW State Parole Authority [2012] NSWSC 933
Category:	Principal judgment
Parties:	Kyran Hubert John Naden (plaintiff) Parole Authority of New South Wales (first defendant) Attorney-General for New South Wales (second defendant)
Representation:	Counsel: J Davidson (second defendant)   Solicitors: Self represented (plaintiff) Crown Solicitor for New South Wales (second defendant)
File Number(s):	2016/00322466

Judgment

1. The plaintiff seeks a direction under s 155 of the Crimes (Administration of Sentences) Act 1999 (the CAS Act) to the Parole Authority of New South Wales (the first defendant) that the information on which its decision of 22 January 2016 was based was false, misleading or irrelevant.

2. The first defendant filed a submitting appearance. The Attorney-General for New South Wales was joined in these proceedings as the second defendant.

3. The plaintiff’s application does not adequately identify the information that is said to be misleading, false or irrelevant, beyond claiming that a “manifest injustice” arose from a false and misleading urinalysis report by the Intensive Drug and Alcohol Treatment Program (IDATP).

Background

4. The plaintiff was sentenced to a period of 7 years 8 months and 8 days imprisonment for offences of:

1. Aggravated break and enter with intent whilst a person was present (5 counts);

2. Aggravated break and enter and commit serious indictable offence whilst a person was present (4 counts);

3. Break and enter a dwelling with intent;

4. Larceny at a value of less than or equal to $2,000.00 (2 counts);

5. Break and enter a house and steal at a value of less than or equal to $60,000.00.

5. The plaintiff’s non parole period expired on 23 March 2017. The sentence is due to end on 23 March 2019.

6. The impugned decision, that the plaintiff’s application for parole be refused, was supported by the following reasons:-

Need to complete a program to address offending behaviour of alcohol and other drugs (IDAPT) and poor prison performance [positive urinalysis results (including failure to supply)] [sic].

7. In a Pre-Release Report dated 9 November 2015 Chelsea McMillen, Probation and Parole Officer, stated:

Mr Naden presented with a history of drug abuse issues which he is struggling to address as evidenced by his continued drug use in custody. This Service considers it imperative that the offender does not have a confirmed date of completion for this program, it is respectfully requested that the offender’s hearing be held over for an additional three month period to allow for the successful completion of the IDAPT program or otherwise seek an alternate program pathway in custody.

Should Mr Naden successfully complete a drug and alcohol targeted intervention in custody, he will benefit from the support of his partner and son, with whom he has approved accommodation on his release from custody.

8. The Unit Leader from Windsor Community Corrections, Cathy Van Ryn, agreed with the assessment made by Ms McMillen and her consequent recommendation.

9. The report also enumerates twelve institutional misconduct charges against the plaintiff whilst in prison and a number of positive results on urinalysis.

The Plaintiff’s Case

10. The plaintiff admitted that he asked to complete an IDAT program but did not complete this due to his “personal family problems”.

11. The plaintiff submitted that he has a full time job as a bricklayer waiting for him once he is released from prison and that he has family support. He also made a number of statements about wanting to be there for his son, and to support him as he grows older.

12. The plaintiff admitted that he “just stopped” the IDAT program. When asked why he did this, he said that his brother was murdered, and that “it’s just too much for me at the time, and like, the program wasn’t really working for me”. The plaintiff further stated that he “fell back into the habit inside” after the death of his brother.

13. Finally the plaintiff stated that:

[T]he urines, the pro caps, the send aways, like I know that IDATP wasn’t supposed to put them on my record, and I know that the parole, normal parole would have knocked me back because I’ve been, because of all them fail to attends and dirty urines, and yeah, that’s the reason why I reckon I got knocked back.

The Court’s Jurisdiction under s 155 of the CAS Act

14. Section 155 of the Crimes (Administration of Sentences) Act 1999 (NSW), states the following:

155   Application to Supreme Court by offender

(1)  If:

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

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

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

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

(4)  This section does not give the Supreme Court jurisdiction to consider the merits of the Parole Authority’s decision otherwise than on the grounds referred to in subsection (1).

15. The authorities in respect of how applications under s 155 are to be treated have been usefully collated by Garling J in Sutton v New South Wales State Parole Authority [2011] NSWSC 935 at [9] and cited with approval in Terry Sampson v NSW State Parole Authority [2012] NSWSC 933 per Hidden J at [11] and Clark v State Parole Authority of New South Wales and Anor [2011] NSWSC 1220 per Walmsley AJ at [8]:

(a)   An application for a direction from this Court to the Authority, is not an appeal, or any form of an appeal against the decision of the Authority: McPherson v Offenders Review Board (1991) 23 NSWLR 61 at [69C] per Hunt J (Meagher JA, Studdert J agreeing);

…

(c)   The role of this court in considering an application of this kind is extremely limited. It can only consider whether information given to the Authority was false, misleading or irrelevant. And then only if that information is a basis for the decision which was made: R v Naudi [2003] NSWCCA 160 at [19] per Simpson J (Hodgson JA and James J agreeing); Lee v State Parole Authority of New South Wales [2006] NSWSC 1225 per Johnson J;

(d)   On the hearing of an application, this Court is not concerned with any questions as to the merits of the decision of the Authority, or with what weight it placed on various factors: Radford v Parole Board [2002] NSWCCA 70 at [36], McCallum v Parole Board of NSW [2003] NSWCCA 294 at [33], DCU v State Parole Authority of New South Wales [2006] NSWSC 526 at [5]-[7] per Johnson J;

(e)   At the hearing of an application, this Court is not concerned with the thought processes of the Authority, or its findings based on the information before it: McCafferty v Offenders Review Board (Court of Criminal Appeal, 19 June 1995, unreported) per James J (Gleeson CJ and Ireland J agreeing);

(f) The term "information" in s 155 is not used in any broad sense. It is used in the sense of factual information, namely information going to the characteristics of the offence and the offender and all factual matters relevant to whether or not it may be appropriate to order a release on parole: Attorney General for New South Wales v New South Wales State Parole Authority [2006] NSWSC 865 at [73] per McClellan CJ at CL, Lee at [14];

(g)   In hearing an application, the Court needs to be satisfied that the information was false or misleading in substance. This will usually require evidence in addition to that which was before the Authority to discharge the onus on the applicant: Rozynski v Parole Board of New South Wales [2003] NSWCCA 214 at [13] per Greg James J (Hodgson JA and Simpson J agreeing).

16. Insofar as the plaintiff seeks reconsideration of parole on the merits, this is not a justiciable issue before this Court: DCU v State Parole Authority of New South Wales [2006] NSWSC 526 at [5]-[7]. The Court only has a limited jurisdiction to consider whether the first defendant has used false, misleading and irrelevant information in making their decision: DCU v State Parole Authority of New South Wales [2006] NSWSC 526 at [5]-[7].

17. The information provided in the Pre-release report for the purposes of the impugned decision is the sort of information that is routinely provided by Probation and Parole Officers within Pre-release reports. The plaintiff has not provided any affirmative evidence which contests the veracity of the details supplied in the Pre-release report.

18. Consequently, the application is dismissed on the basis that the plaintiff has not supplied sufficient evidence to ground the application: s 155(3) Crimes (Administration of Sentences) Act 1999 (NSW).

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Decision last updated: 27 April 2017