Naden v Parole Authority of New South Wales

1. [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. [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. [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

1. [4]

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

   1. (1)

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

   2. (2)

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

   3. (3)

      Break and enter a dwelling with intent;

   4. (4)

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

   5. (5)

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

2. [5]

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

3. [6]

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

4. [7]

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

5. [8]

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

6. [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

1. [10]

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

2. [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.

3. [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.

4. [13]

   Finally the plaintiff stated that:

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

1. [14]

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

2. [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]:

3. [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].

4. [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.

5. [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).