Trinh v NSW State Parole Authority

[2006] NSWSC 1352

CITATION:	Trinh v NSW State Parole Authority [2006] NSWSC 1352
HEARING DATE(S):	20/11/2006
JUDGMENT OF:	Howie J at 1
EX TEMPORE JUDGMENT DATE:	11/20/2006
DECISION:	Application is dismissed.
CATCHWORDS:	Criminal Law - Parole administration - decision to revoke parole - whether based upon material that was false or misleading - failure of Authority to give adequate reasons - limited extent of Court's jurisdiction to grant relief.
LEGISLATION CITED:	Crimes (Administration of Sentences) Act 199 - s 176
CASES CITED:	Lee v The State Parole Authority of New South Wales (2006) NSWSC 1225
PARTIES:	Dinh Anh Khoa Trinh v NSW State Parole Authority
FILE NUMBER(S):	SC PB0018/2006
COUNSEL:	J. Overall - Applicant C. Morris - Defendant
SOLICITORS:	Ren Zhou Lawyers - Applicant Crown Solicitor's Office - Defendant

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

HOWIE J

MONDAY 20 NOVEMBER 2006

PB0018/2006 DINH ANH KHOA TRINH v NSW STATE
PAROLE AUTHORITY

JUDGMENT

1 HIS HONOUR: This is an application to this Court pursuant to s 176 of the Crimes (Administration of Sentences) Act 1999 (the Act) following a revocation order made by the Parole Authority on 2 June 2006 revoking the applicant’s release on parole effective as at 24 April 2006.

2 The short facts are that the applicant was released to parole on an order made in the Local Court. The parole order was subject to a number of prescribed conditions as to the applicant being of good behaviour and supervision conditions, including one to obey all reasonable directions of the officer of the Parole Service and another to report to the officer at such times and places as the officer may direct.

3 The applicant had been sentenced in the Local Court to concurrent terms of imprisonment, as a result of which he had a period of some fifteen months to serve on parole. The applicant was released to parole on 1 February 2006.

4 There are three reports that are before me and were before the Authority when dealing with the decision that brings the matter before this Court. The first was a report of 15 March 2006 that was placed before the Parole Authority on 16 March of that year. That report was prepared by Ms Chalmers, a probation and parole officer and dated 15 March 2006. That report recommended that a warning should be given to the applicant by the Authority that he should comply fully with the conditions of his parole order. As a result, the Authority gave such a warning to the applicant.

5 There was a further report dated 21 May 2006, again made by the probation and parole officer, Ms Chalmers. That report recommended that his parole order be revoked.

6 There was a further report dated 1 June 2006, again by Ms Chalmers and again recommending revocation of parole. The recommendation resulted in the revocation of his parole on 2 June.

7 The applicant was before the Authority on 3 August 2006 represented by Mr Overall who appears for the applicant before this Court. During the course of those proceedings the applicant gave evidence. Ultimately, after shortly considering what it should so, the Authority stated that it was unpersuaded that it should alter the order revoking his parole. In giving the reasons for the decision, the Chairman said on behalf of the Authority;

“The Authority is of the view that the revocation order of 2 June 2006 ought to stand for the reasons that were stated, those reasons being your drug use, your failure to report and your failure to obey directions.”

8 On 14 August 2006, the applicant made this application asserting that there were statements that were false or misleading in the reports that were placed before the Authority.

9 Section 176 is as follows:

176 Application to Supreme Court by offender
(1) If:
(a) the Parole Authority revokes a periodic detention order, home detention order or parole order, and
(b) the offender to whom the periodic detention order, home detention order or parole order relates alleges that the order has been revoked 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.

10 As far as I am aware, this Court has not yet considered this particular section. However, it is in the same terms as s 155 of that Act and that section has been reviewed on a number of occasions. The most recent review was carried out by Johnson J in a judgment handed down on 17 November 2006, being Lee v The State Parole Authority of New South Wales [2006] NSWSC 1225. In that judgment, Johnson J in some detail considers the section then before him, that is s 155, and a number of authorities, including some of his own, which have considered that section and the extent of the jurisdiction of this Court to review the material before the Authority in relation to the orders made by it.

11 It is unnecessary for present purposes to undertake a further review of the section or the powers of this Court. It is enough to acknowledge the very limited basis upon which this Court has to concern itself with the material placed before the Authority. It should be noted that the Court is not reviewing the actual order that the Authority made. It is not a court of appeal, concerned in any way with the correctness or otherwise of the order made by the Authority. Nor is it a court sitting as an administrative appeal against the proceedings before the Authority or the reasons given by the Authority for the order it made.

12 It is important to note that matter because there continues apparently to be a misunderstanding by persons who have been before the Authority as to the powers of this Court and as to the limited nature of the Court’s power to address the proceedings before the Authority. As I have indicated, the Court is limited to a review of the material before the Authority rather than conducting a review of the proceedings before, or the orders made by, the Authority.

13 In the present case the Court has been more fortunate than some other courts that have had to deal with this type of application because the applicant was represented by competent counsel who endeavoured to argue the case with a full appreciation of the limits of this Court’s jurisdiction and its powers to intervene in what is in effect the business of the Authority. The Court was much assisted by both oral and written arguments made on the applicant’s behalf.

14 Initially there are a number of bases upon which it was said that the material before the Authority contained either false statements or misleading statements but sensibly, if I might say so and with due respect to this Court’s jurisdiction, the applicant’s counsel sought only to argue a very limited number of the matters that had been initially set out as being misleading or false.

15 The applicant should understand that the only arguable matters were those put forward to the Court on the applicant’s behalf and a number of the matters raised initially were either simply unarguable or were irrelevant to the ultimate decision made by the Parole Authority and, therefore, could not be the subject of any relief given by this Court.

16 However, with due regard to the applicant’s concern that in some way he was mistreated by the Authority or that the Authority’s decision was inappropriate, I received a letter from the St Vincent De Paul Society, a letter that was before the Authority and was relevant to one of the significant issues before the Authority which has been the subject of complaint and that is, the applicant’s use of drugs while subject to the parole order. The letter, strictly speaking, was not admissible and counsel conceded so much. However, simply so that the applicant is aware that this Court understands his frustration with the decision of the Authority and why he believes it is unjust and inappropriate, I had received the letter and am aware of its contents and aware how that might reflect upon the material about which complaint is made.

17 The first matter that was raised on the applicant’s behalf was a complaint that a piece of information in the parole report dated 21 May 2006 was false. The particular statement about which complaint is made appears under the heading, “Response to Supervision”. The officer wrote,

“The applicant attempts to hide and minimise his illicit drug use.”

18 It was submitted generally that that statement was false because the applicant had both admitted and self-reported his drug use and sought to attend treatment for it during the course of his parole supervision. One of the difficulties in the present matter is that the officer preparing the report or her supervisor was not called to give evidence before the Authority. I am told from the bar table that it is not unusual that the officer making a report would give evidence and would be challenged as to statements in the report by a person appearing for the parolee or on his or her behalf. Apparently, for reasons that it is unnecessary to state, the officer and her supervisor were unavailable at the time of the hearing before the Authority.

19 This fact makes it difficult for this Court to determine that a statement made by an officer in a report, which has not been challenged by way of cross-examination of the officer, is false, particularly when the officer has not been given the opportunity to explain the basis upon which the statement was made and the evidence upon which she would have relied upon to justify the statement. However, that does not mean that it could not be shown objectively to be false, based on other material that was available to the Parole Authority or to the officer.

20 Here the complaint is that it was obvious from the report itself that the applicant had acknowledged that he was still using illegal drugs during the course of his parole on a not infrequent basis, that the officer was well aware of this and had in fact been party to him making an application for entrance into a drug rehabilitation programme. On the material in the report, that application was unsuccessful because the applicant had, on his own account, not used illegal substances in the five days preceding his attendance at the rehabilitation centre. He was, therefore, considered by the person assessing his application as being unsuitable for the programme.

21 The letter that I have received from St Vincent De Paul fleshes out a statement in evidence given by the applicant before the Authority that he had been accepted for entrance into a rehabilitation programme called the Maryfields Day Recovery Centre but unfortunately was rearrested before he was able to take that opportunity. As I say, this is material that was given by the applicant in evidence before the Authority and is supportive of his contention that at the time of his arrest for breach of parole he had been making an effort to overcome his drug addiction.

22 The difficulty of course, as the applicant’s counsel realised, is that I am not here to review the decision made by the Authority and, in particular, to determine for myself whether on the material the applicant ought to have been further granted parole on the basis that he was not shown to be a person who could not lead a law abiding life within the community.

23 In answer to the statement made by the officer in the parole report as to the applicant attempting to hide and minimise his illicit drug use, the applicant gave evidence before the Authority and there is a transcript before me. In effect the applicant told the Authority that, when he had attended the programme, he was told that he was ineligible as an applicant because he failed two of the pre-conditions upon which a person would be accepted into that rehabilitation programme. The first was that the person be a frequent user of drug and the second was that the drug be of a fairly significant amount. The applicant told the Authority that he failed to satisfy these criteria because he was not using sufficient drug and did not need to embark upon a withdrawal programme.

24 In support of the finding made by the officer that he was seeking to hide or minimise his drug use, counsel appearing for the Authority relied upon a statement in the parole report to the effect that the applicant had failed a urine test which had proved positive for drugs, notwithstanding that he had signed a statement stating that he was not using drugs at that particular time. The officer reports that the applicant refused to accept that he had “dirty urine” and refused to accept that he had been using drugs such that he would fail that test. It was put that this was sufficient to justify the finding by the officer that he was hiding or attempting to hide and attempting to minimise his drug usage.

25 The difficulty for this Court is that it is confronted by a statement in a report which may or may not be false, and yet there is insufficient information before this Court to determine whether it is false or misleading. This was a situation where on its face there is nothing to indicate that the statement is unreliable yet the parolee gives evidence before the Authority that it was false. I do not understand how this Court is supposed to determine that issue and I would have thought that it is a matter for the Parole Authority to resolve.

26 The problem in this case I think lies, with respect, in the reasons or lack of reasons given by the Parole Authority or by the Chairperson of the Authority on its behalf, in determining to allow the revocation order to remain. Notwithstanding that the applicant had given sworn evidence before the Authority in respect of his drug usage and what he was doing about it, the Authority simply indicated that one of the reasons why it was not persuaded to overturn the earlier decision was his drug usage. In those circumstances it is difficult to know whether or not the statement in the report was false or whether it was influential in the determination made by the Parole Authority in light of the fact that the applicant had given evidence before it. It may simply be that the Authority determined not to accept the applicant’s evidence in relation to his drug usage and what he had been telling the officer about it. The Authority simply says nothing about what it made of the evidence given by the applicant. This is unsatisfactory and I would have thought it a matter of common fairness that the Authority indicate in the face of evidence given by the parolee why it decided to maintain the revocation order in more particularity than it did on this occasion.

27 The same problem arises in relation to the next ground of complaint. It is said that the following statement in the report of 16 March 2006 was misleading. The officer, under the heading, “Response to Supervision”, stated concerns about the applicant’s failure to obey directions in relation to where he was to reside.

28 The following passage appears in the report of 15 March as follows,

“Following his release the day prior and whilst reporting to this office on 2 February 2006 the applicant persistently argued that he wanted to move residence immediately in order to reside with his fiancée who resided in Waterloo. His fiancée was allegedly a Chinese student who returned to Australia around the time of the applicant’s release.

The parolee was informed that such a request would be considered after a period of time during which he must demonstrate positive progress and compliance with the conditions of his parole obligations. The applicant did not accept such a direction and was reportedly staying overnight and away from his approved residence within days [of being released]. This Service has been unable to verify his whereabouts on those evenings other than to confirm he was staying with his fiancée. The parolee spent only two nights in his approved residence before seeking independent accommodation with his fiancée.

29 It has been noted that one of the conditions placed upon the applicant was that he not proceed to the central business district of Sydney without consent from his officer. Under dint of argument counsel for the applicant was driven to argue that the condition that the applicant reside with his parents, as opposed to his fiancée, was unreasonable and, therefore, the passage that I have read from the report of 15 March was misleading in that the Parole Authority would not have understood that the condition was unreasonable.

30 Counsel, however, did concede ultimately that the proper place for an argument to be raised about whether a condition of parole was unreasonable and, therefore, whether a breach of it should be considered as a reason for revoking parole was before the Parole Authority and not before this Court. It is not for me to determine, at least in these proceedings, whether a condition of parole is unreasonable and the argument, if it had any merit, fails on that basis alone.

31 There does not seem to me to be anything misleading at all in the statement that has been set out from that report. It seemed to reflect the true situation, that is, that in breach of a condition of his parole the applicant was insistent upon living in a place that was not approved and with a person who was not approved and therefore was in breach of that condition of his parole.

32 The next matter that was raised concerned the report of 21 May 2006. This was the first of the reports recommending that the applicant’s parole be revoked. The complaint arises from the first page of the report which states the date and details of the alleged breach. There it sets out seven matters in chronological order that are said to have been breaches of the parole.

33 The first is dated 20 March 2006 and it relates to the positive analysis of the applicant’s urine that he had refused to accept and to which reference has already been made. This is followed by a complaint that the applicant had been entering the Sydney CBD, in breach of his parole condition. The next alleged breach is that on 24 April the applicant failed to report to the Service. The next alleged that on 4 May 2006 the applicant admitted to using methamphetamine every two to three days in the previous month, that is April 2006.

34 The complaint is that the setting out of these breaches in this way was misleading because the 4 May 2006 breach was in fact a reference back to the details under 20 March 2006 because, in that respect, on 12 April 2006 the applicant admitted to using the drug known as “ice” over the previous two to three days. The argument is that this chronology would lead the Parole Authority to believe that the situation was worse than it was because of, in effect, the double counting of the breaches of the parole order during April 2006.

35 I do not accept the argument. It seems to me to be on its face a fair statement of the breaches that had occurred and it would be evident to anybody who read the report what were the true circumstances upon which the report was based and the breaches which were being relied upon.

36 The next complaint is again made about the breaches set out in that part of the report to which I have already referred. As part of those breaches are two dealing with the failure by the applicant to report to the service. The first is under the date of 8 May 2005 and the report alleges that the applicant breached his parole by failing to report to the service as directed. Particulars given are as follows.

The applicant sought permission to enter the Sydney CBD to meet with his solicitor. However, he failed to report to this officer as directed later the same day.

37 The second matter arose on 19 May 2006 when again the applicant was alleged to have failed to contact the service as directed. The particulars given are as follows.

On 18 May 2006 a home visit was conducted to the parolee’s approved place of residence. Access to the applicant’s apartment was gained through the assistance of the caretaker. A card was left under the parolee’s front door directing him to contact his supervising officer on 19 May 2006 without fail. He failed to do so.

38 The applicant gave evidence about these allegations before the Authority. There was some confusion in his mind about the two dates but it is obvious that the applicant was asserting that he had an explanation for each of the alleged failures to do what he ought to have done under the conditions of his parole in relation to either reporting or contacting the supervising officer. In relation to the first breach, that is 8 May, the applicant gave evidence that he did report to the officer later that day but that the officer who was supervising him had left. He claimed to have signed in at the office, indicating that he had reported as required. In effect, he was claiming that it was not his fault that the officer had left the office before he could attend. Therefore, on his behalf it was submitted the breach was a technical one, if in fact he had breached his parole condition at all.

39 In relation to the next breach, that is on 19 May, his explanation was that normally a card was placed in his letter box and he received it and complied with it demand. On this occasion, however, the card was placed under the door and went underneath a mat so that he was unaware that the card was present or the obligation to report or contact the office in accordance with the request until two days later when the card was found. He said that he spoke to the officer about this problem and she instructed him to come in the next day, which he did.

40 Again, one of the difficulties is that the parole officer was not called and so she was not cross-examined or questioned about these circumstances and as to whether or not there might have been be some substance in the explanations given by the applicant in evidence before the Authority. Once more the Authority did not deign to give reasons for rejecting the applicant’s evidence, if this is what it did. Once more the Authority can be criticised for failing to explain why, in light of the evidence given by the applicant, it determined to continue the revocation order.

41 On its face the statements about which complaint is made are neither false nor misleading. They might become so when one considers the evidence of the applicant and if it were accepted as being true. But even then it may simply be the case that a statement in a report has been explained in circumstances where the applicant is asserting that the apparent breach as set out in the report can be explained and, therefore, should be excused by the Authority. Such a situation does not enliven the jurisdiction of this Court under the relevant statutory provision where the Authority does not accept the explanation or excuse the breach.

42 But once again, notwithstanding that the applicant gave evidence about these matters, the Authority gave, as one of the reasons for taking the stand that it did, his “failure to report”. The Authority says nothing to explain why it came to the finding that he had failed to report or why if he did it should be considered as a breach of his parole in light of the evidence given by the applicant.

43 In argument counsel conceded that this was a difficulty for his client and that perhaps, if any relief were available against the orders made by the Authority, it would be relief of an administrative law nature based upon a complaint about the lack of appropriate or proper reasons being given by the Authority in light of the material that was before it. Whether or not such a complaint would in the circumstances of this matter be sufficient for this Court to interfere in the business of the Parole Authority is not for me to determine. I am simply trying to point out the limit of this Court’s power to make orders under this section or under s 155. It is however of concern that the Parole Authority gives what, with respect, appear to be insufficient reasons to explain how it came to its decision based upon the material before it. In any event, it does not seem to me that there is any merit in the complaint made in relation to the actual reports. If there is any justifiable complaint, it arises from the reasons given or not given by the Parole Authority to justify its decision.

44 It seems to me, therefore, notwithstanding that perhaps understandably the applicant may feel aggrieved with the situation and that his efforts of reform have gone unacknowledged and his efforts to comply with his parole conditions was not given sufficient weight by the Authority or by the officer perhaps, it is not a matter which can be reviewed by this Court on such an application as before it. Again, this is one of these cases that does raise questions about the effectiveness of this form of application as being any sort of relief to a parolee who has complaints about the procedure adopted or the reasons given or the decision made by the Authority.

45 Criticism of the appropriateness or the effectiveness of this type of procedure for reviewing the decisions of the Authority has been raised before by this Court and by Court of Criminal Appeal. However, it remains and it is for this Court to apply the provisions as best it can to determine the complaints falling under the relevant provisions for whatever good it might ultimately do.

46 In the present case I am of the view that the application should be dismissed.

47 HIS HONOUR: Is there any order for costs?

MORRIS: No, your Honour.

48 HIS HONOUR: I do not make any order for costs. I hand you back that letter.

**********