Wray v NSW Parole Authority

[2007] NSWSC 1032

CITATION:	Wray v NSW Parole Authority [2007] NSWSC 1032
HEARING DATE(S):	20 August 2007
JUDGMENT DATE :	20 September 2007
JURISDICTION:	Supreme Court
JUDGMENT OF:	Rothman J
DECISION:	(i) Judgment for the defendant; (ii) Proceedings dismissed; (iii) No order for costs.
CATCHWORDS:	ADMINISTRATIVE LAW – parole authority – limited administrative review – prerogative writ – no error of law demonstrated.
LEGISLATION CITED:	Crimes (Administration of Sentences) Act 1999 (NSW)
CASES CITED:	Esho v Parole Authority [2006] NSWCCA 304
PARTIES:	Applicant: Garry Wray Respondent: NSW Parole Authority
FILE NUMBER(S):	SC PA0005/2007
COUNSEL:	Applicant: Self represented Respondent: B. Baker
SOLICITORS:	Applicant: Self represented Respondent: W. Abadee (Crown Solicitor's Office)

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION
ADMINISTRATIVE LAW LIST

ROTHMAN J

20 September 2007

PA 0005/2007


Garry WRAY v NSW STATE PAROLE AUTHORITY


JUDGMENT

1 ROTHMAN J: Garry Wray was sentenced in the District Court after being convicted by a jury of sexual offences and, having had all appeals dismissed, has served the entirety of his non-parole period. The NSW State Parole Authority having refused his application for parole, Mr Wray remains in prison.

2 From that refusal Mr Wray applied to this Court for relief, originally formulated as an appeal under section 155 of the Crimes (Administration of Sentences) Act 1999 (NSW) but more lately including application for prerogative relief or orders in the nature thereof: see Esho v Parole Authority [2006] NSWCCA 304.

Reasons of Parole Authority

3 The decision of the Parole Authority, made on 25 May 2007, somewhat formally recites the reasons as:

"The State Parole Authority 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 reoffending; need to further address offending behaviour (Sex offending)."

His application for parole was stood over to 14 September 2007 to receive a report from Probation and Parole and a Correctional Centre report for consideration.

4 The transcript of proceedings before the Parole Authority reveal the process that led to the formation of the opinion expressed in its decision. While it is impermissible to comb through transcript of exchanges for error, in this instance the transcript discloses the underlying rationale for the decision expressed.

5 While Mr Wray was unrepresented before this Court, he was represented before the Parole Authority. At page 10 of the transcript of the proceedings before the Parole Authority, the Chairperson asks of counsel for Mr Wray:

"Can I just ask this, Mr Simpson? The material I have in the file is perhaps a bit misleading - I understand that Mr Wray has always said he would do CUBIT if CUBIT would have him. He doesn't, as far as the Probation and Parole Service are concerned, overtly say he doesn't want to do it. He's been precluded from doing it because he's been on appeal - that's what the parole officer has said - there's some suggestion that you know, he in fact is staving off doing it but he hasn't directly said he won't do it; whereas this psychological report suggests he is hostile."

Counsel for Mr Wray then suggested that the Parole Authority ask Mr Wray. The Chairperson did; and the effect of the response was that Mr Wray stated that he had always been prepared to do the course but there was no longer any point to it for reasons associated with eligibility and history.

6 At or near the conclusion of the proceedings the Chairperson recites that the Authority has decided "to refuse parole for the reason we stated on 15 September 2006 except the need for the psychological report and we'll consider the due date. The effect of that Mr Simpson is that he will soon be re-assessed on the 12 month rule and he will have completed the programme that he is currently doing." (Emphasis added.)

Premise of Proceedings

7 The submission of Mr Wray in this Court was based upon the proposition that his parole was denied because he had not completed the CUBIT program. It was his submission that he had at all times sought entry into the program but such entry was refused by Corrective Services. The Parole Authority challenges that assertion.

8 The assertion is further complicated by a continuing campaign by Mr Wray to have the CUBIT program extended to include a program for persons who deny their guilt for the offences for which they were convicted. Such an extension was part of the program when originally designed overseas and part of the program offered overseas. That extension had, for reasons that are irrelevant to this current proceeding, been refused at the relevant times.

9 If it were necessary to determine whether Mr Wray has been refused parole because of the non-completion of a course that Corrective Services denied to him, evidence, probative of that assertion, would need to be adduced and the material, including material already adduced, tested in proceedings.

10 Mr Wray filed extensive written submissions and volumes of documents. Most of that material went to the refusal of Corrective Services to allow him to complete the course, the inappropriateness of the course as currently offered to persons who continue to deny their guilt, and the appropriateness of the extension of the course to such persons.

11 At the time of the proceedings before the Parole Authority, Mr Wray was undertaking a program entitled "Understanding Sexual Offending" which was a preparatory program that he was due to finish, and did finish, before the proceedings in this Court.

12 I take the view, based upon the transcript to which I have referred, that the decision of the Parole Authority was based upon the non-completion of the program in which Mr Wray was then enrolled, namely, the Understanding Sexual Offending course. As such, the necessary and fundamental premise, upon which the whole of this proceeding is based, is not made out.

Conclusion

13 Whether one is concerned with the provisions of section 155 of the Act or the issue of prerogative relief, it is, in these proceedings, the reasoning of the Parole Authority that is in question, not the appropriateness or otherwise of Corrective Services.

14 Section 155 of the Act requires Mr Wray to show that the Authority acted on misleading material. While the utility of orders under section 155 may be questioned, in this case no misleading material has been evidenced. It is insufficient to demonstrate material, controverted before the Authority, that may be objectively wrong.

15 Further, prerogative relief, which provides in this area a more useful remedy, is dependent on an error of law or an error of jurisdiction being demonstrated. Neither has been shown.

16 At the time of the publication of these reasons, I am unaware whether the review due to have been undertaken on 14 September 2007 has occurred and if so what was the result of it. Whatever its result, any challenge to it would be a matter for other proceedings that would challenge that later decision.

17 These proceedings, challenging as they do the decision of 25 May 2007, cannot succeed. It is not an error for the Parole Authority to require the completion of the program, in which he was then enrolled, prior to releasing him, where it considers, as is implicit in its reasons, that, without completion of such a course, Mr Wray would not be able to adapt to normal lawful community life.

18 In those circumstances, I make the following orders:

(i) Judgment for the defendant;
(ii) Proceedings dismissed;
(iii) No order for costs.

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