Townsend v Parole Board

[2001] NSWCCA 379

CITATION:	Townsend v Parole Board [2001] NSWCCA 379
FILE NUMBER(S):	CCA 60355/01
HEARING DATE(S):	4/9/2001
JUDGMENT DATE:	4 September 2001
PARTIES :	Luke William Townsend Parole Board of New South Wales
JUDGMENT OF:	Hodgson JA at 1; Dowd J at 2; Carruthers AJ at 22

LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S) :	98/21/1302
LOWER COURT JUDICIAL OFFICER :	Phelan DCJ

COUNSEL :	Applicant in person Mr PM Strickland- Crown
SOLICITORS:	Mr IV Knight- Crown
CATCHWORDS:	Application for direction to the Parole Board - Robbery - Abuse of process - Conditions of parole order - False, misleading or irrelevant information
LEGISLATION CITED:	Crimes (Administration of Sentences) Act 1999 Crimes (Sentencing Procedure) Act 1999
CASES CITED:	LMS v Parole Board (1999) 110 A Crim R 172. McCamley v Offenders Review Board (Unreported, NSWCCA, 9 February 1994).
DECISION:	1. Application dismissed pursuant to s176(3) of the Crimes (Administration of Sentences) Act 1999.

HODGSON JA

DOWD J
CARRUTHERS AJ


4 September 2001

Luke William TOWNSEND v Parole Board of New South Wales

JUDGMENT

1 HODGSON JA

: I will ask Dowd J to give the first judgment.

: This is an application by Luke William Townsend for a direction to be given by this Court to the Parole Board under s176 of the Crimes (Administration of Sentences) Act 1999 (‘the Act’), that the information provided to the Parole Board was misleading when the Board made a decision to revoke a parole order on the ground that the parole originally imposed was unconditional.

3 If this Court finds information to be false, misleading or irrelevant, the Court may then give such directions with respect to the information provided to the Board as it thinks fit.

4 Section 176 of the Act requires the Court in applications such as this, to consider:

"If and only if the application is not an abuse of process and that there appears to be sufficient evidence to support the application".

5 On 6 October 2000, Judge Phelan in the District Court imposed two concurrent sentences on the applicant, each of three years imprisonment, with a non-parole period of twelve months. The sentence was imposed following the entry of a plea of guilty to a charge of robbery on 27 July 1998.

6 The second sentence was imposed following a plea of guilty entered by the applicant to a charge of demanding money with menaces on 29 July 1998. On that latter sentence, His Honour took into account eleven matters on a Form 1.

7 The sentences were backdated to reflect periods of pre-sentence custody and commenced on 24 December 1999, the non-parole period expiring on 23 December 2000. The actual sentence expired on 23 December 2002. At the time of the sentences imposed by Judge Phelan, the applicant was serving a number of sentences, but in particular, the applicant was sentenced on 5 May 2000 to a period of six months imprisonment to commence on 4 August 2000 and to expire on 3 February 2001.

8 In imposing the sentences, His Honour, pursuant to s51 of the Crimes (Sentencing Procedure) Act 1999 said:

"When he becomes eligible for release, he is to be released under the supervision of the Probation Service and in particular, is to accept such psychiatric and psychological and vocational counselling as they direct".

9 As the period of imprisonment for assault concluded on 3 February 2001, by virtue of s126 of the Act, that was the earliest date the applicant was eligible for release to parole.

10 The applicant had signed a parole order acknowledging that he understood the terms and conditions upon which he was being released on parole, and a copy of that order was furnished to him. Two of the conditions of the parole order were; first, that the applicant was required to report to the Probation and Parole officer at such times and places as he may be directed and; secondly, the applicant was required to reside at an address agreed to by the officer.

11 On 3 February 2001, the applicant was released to parole and on two subsequent dates reported as required by the conditions of parole, but then failed to report, and there was evidence before the Parole Board to indicate that he was not resident at his recorded address.

12 On 27 March 2001, the Parole Board, after considering two probation and parole reports, revoked the applicant's parole for breaches of the conditions set out above. After the applicant was returned to custody on 25 May 2001, there was a review of the revocation order pursuant to s174 of the Act, at which hearing the solicitor for the applicant admitted the breaches of the terms of the parole order. The Parole Board determined that the order for revocation should stand.

13 It has been contended before this hearing, and in a letter to this Court and, indeed, in a letter tendered by the applicant before the Court today, that he had been deceived into signing the parole terms and conditions, and that it was not explained to him.

14 The applicant is obviously very unhappy and wishes to have treatment, although he does tell the Court today that in fact he is on Largactil. He has a long and sorry history of psychiatric medical conditions and treatment.

15 The function of this Court, however, is a very limited one, as was held in LMS v Parole Board (1999) 110 A Crim R 172, which approved a judgment of the then Chief Judge in Common Law, Hunt J, in McCamley v Offenders Review Board (Unreported, NSWCCA, 9 February 1994), in which it set out the powers of the Court, but, it made it clear that the function of the Court was to examine the information provided to the Parole Board as to whether it was false, misleading or irrelevant.

16 Although the applicant has made it clear that he wishes the Court to assist him in obtaining treatment, it is not the function of this Court on an appeal under s176 of the Act, to provide that assistance. That assistance is provided by the Parole Board itself.

17 In LMS v Parole Board (supra), the only powers of the Court to give a direction was concerning whether the information to the Board was false or misleading. There are no other issues raised.

18 It is my view, notwithstanding the obvious need of the applicant for assistance, that the Court should, before examining this application, first examine the threshold question posed by s176(3) of the Act. The applicant has conceded that he has now read the terms of Judge Phelan's judgment. He has not heard the tape and it does not accord with his recollection, but the Remarks on Sentence have been available to the Court, and make it clear, as was conceded by his solicitor before the Parole Board, that this was not an unconditional sentence, and in fact, terms and conditions were imposed.

19 Unfortunately, therefore, I do not consider that the Court can be satisfied that the application is not an abuse of process and that there appears to be insufficient evidence to support the application. I would, therefore, consider that the Court should not consider this appeal.

20 HODGSON JA: I agree. I would add the further remark that during the hearing the Court was told that there was to be a further hearing before the Parole Board concerning Mr Townsend this Friday. Parole was fixed by the Learned Sentencing Judge on the basis that Mr Townsend was in need of relatively long term psychiatric rehabilitation.

21 It does seem that Mr Townsend has some difficulty understanding matters affecting his parole, and the conditions applying to it, and in my view it would be desirable, both in Mr Townsend's interests, and for the assistance of the Parole Board, that if at all possible he have some assistance and representation for the purposes of that hearing.

22 CARRUTHERS AJ: I agree.

23 HODGSON JA: The order of the Court is pursuant to s 176(3) of the Crimes (Administration of Sentences) Act 1999. The application is dismissed.

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