Parole Board of NSW v Lo

[2005] NSWCCA 108

CITATION:	Parole Board of NSW v Lo [2005] NSWCCA 108
HEARING DATE(S):	16 March 2005
JUDGMENT DATE:	16 March 2005
JUDGMENT OF:	Wood CJ at CL at 1; Adams J at 2; Bell J at 10
DECISION:	Application dismissed

CATCHWORDS:	Parole - refusal by Parole Board to grant application for direction - decision superceded by subsequent decision - directions irrelevant - psychological report - conclusions disputed by applicant - mere dispute over opinion not basis for direction
LEGISLATION CITED:	Crimes (Administration of Sentences) Act 1999 s155
PARTIES:	Parole Board of New South Wales v Moses LO (Applicant)
FILE NUMBER(S):	CCA 1758/04
COUNSEL:	W M Abadee (Solicitor) Applicant self-represented
SOLICITORS:	State Crown Solicitor Applicant self-represented

LOWER COURT JURISDICTION:

IN THE COURT OF

CRIMINAL APPEAL

1758/04

WOOD CJ AT CL

ADAMS J

BELL J

WEDNESDAY 16 MARCH 2005

PAROLE BOARD OF NEW SOUTH WALES v MOSES LO

JUDGMENT

1 WOOD CJ AT CL: I will ask Adams J to deliver the first

judgment.

2 ADAMS J: The applicant, Moses Lo, is serving a sentence of imprisonment of three years and four months with a non-parole period of two years and two months. That will expire on 8 April next. The Parole Board considered whether he should be released on parole last year, but on 12 February 2004 made a determination that he not be released. The determination was made on 5 December 2003 initially. The reasons for refusing parole were given as –

“The Board has sufficient reason to believe that if released from custody at this time the offender would not be able to adapt to normal lawful community life; risk of re-offending; need for further alcohol and other drug counselling; need for psychological counselling/report; inappropriate in the public interest; need to address offending behaviour - Violent Offender Therapeutic Program; poor prison performance.”

The Board considered the way in which the applicant had coped with imprisonment and, amongst other things, his failure to participate in available programs to assist his rehabilitation. It appears that significant weight was placed upon a psychological report dated 10 February 2004 which was, generally speaking, adverse to the applicant.

3 The applicant applied to this Court under s155 of the Crimes (Administration of Sentences) Act 1999 for a direction to be given to the Parole Board that the information upon which it relied was, “false and misleading”. No grounds were given in his application but, by letter dated 7 May 2004, the applicant informed the solicitor for the Board of the following grounds –

“My reasons.

The psychologist evaluated me as a 99.8% risk of re-offending.

I found it to be genuinely misleading and false.

She has portrayed me as a figment of her imagination and not basing it on real facts which is once again misleading and false.

To complete the assessment a second psychologist was needed. I put her credibility in question and her judgment.

These are just some reasons, some valid enough to bring forth a hearing date in plea to reconsider.

I have a good and bright future ahead.”

Broadly speaking, the applicant suggested that the psychologist’s opinion was flawed because it relied upon the outcome of a test described as the Level Of Service Inventory-Revised in which he was said to have scored in the, “high risk/needs category with a 99.2% chance of recidivism within one year of release”. That report also identified certain areas of need relating to his rehabilitation which he should address. This test is said by the applicant to be “nonsense” principally upon the basis, as I understand it, that he intends not to commit any further offences when he leaves prison and that when he is on parole he would be able to remain of good behaviour. This information comes from his own knowledge of his character and attributes.

4 The basis for criticising the test relied on in part by the psychologist does not disclose any error in the psychologist’s report. Still less, does it disclose that the Board was in error in relying upon that report. Although there is also an attack on the, “real facts” upon which the psychologist relied, as I understand the applicant’s case, the essential criticism he makes is of her judgment concerning his ability to remain of good behaviour upon release.

5 There is nothing in the report itself that suggests that the recommendations of the psychologist are not reasonable recommendations, although I understand that the applicant might not agree with them. The fact that he relies upon his own judgment of himself is not unreasonable, but it does not render her report either misleading or false. Still less, does it mean that the Board was not entitled to rely on it.

6 It follows from this that the application must fail. However, at all events, as it seems to me, the application cannot be considered by this Court because it has been superseded by a further decision of the Board made on or about 26 November 2004, with the result that the decision of which the applicant complains is not now of any effect. This Court does not know what material the Board relied on in that latter determination, although it seems likely that it did rely, to some degree or other, on the report to which I have referred, perhaps reinforced by other material, including possibly a further psychologist’s report. No application is made by the applicant in respect of that determination.

7 The consequence is that the present application must fail, both on the merits and because of the procedural difficulty to which I have referred.

8 I feel bound, however, to bring to the attention of the Board the necessity to inform the Court of any supervening decision concerning parole where there is an outstanding application for this Court’s consideration. It is most regrettable that this was not done in this case. The application must be dismissed.

9 WOOD CJ AT CL: I agree.

10 BELL J: I also agree.

11 WOOD CJ AT CL: The order of the court will therefore be as Adams J has proposed.

**********