Kramer v State Parole Authority

1. [1]

   HIS HONOUR: The applicant seeks a direction to the Parole Authority of New South Wales (the first respondent; the SPA), pursuant to s 155 of the Crimes (Administration of Sentences) Act 1999 (NSW) (the CAS Act), that the information on which it based its decision of 26 March 2021 to refuse parole to the applicant was, in the terms of s 155(1) of the CAS Act, “false, misleading or irrelevant”. The Attorney General of NSW was granted leave to intervene and has been joined as the second respondent by order of the Registrar on 1 June 2022. The first respondent has filed a submitting appearance, save as to costs.

2. [2]

   The applicant is not legally represented in this proceeding.

The background to the application

1. [3]

   The applicant is presently aged 52. On 25 September 1996, when he was aged 26, he was convicted of the offence of murder, for which he received a sentence of imprisonment of 15 years with a non-parole period of 11 years. He was released on the expiration of his total sentence on 18 June 2009, not having qualified for parole.

2. [4]

   On 25 September 2015, when aged 45, the applicant was sentenced by Haesler SC DCJ (the sentencing judge) to 4 years imprisonment for an offence of reckless wounding, as well as 8 years imprisonment for an unrelated offence of cause grievous bodily harm with intent. The offence of reckless wounding was committed on 4 January 2012, that is, two and a half years after the applicant was released back into the community. The offence of cause grievous bodily harm with intent was committed approximately two years later, on 21 December 2013.

3. [5]

   The effective overall sentence for both offences was a total term of 10 years imprisonment, backdated to commence on 30 July 2013 and expiring on 29 July 2023, with a non-parole period of 7 years, which expired on 29 July 2020.

4. [6]

   The SPA has not granted the applicant parole, having met to consider the issue on five occasions, most recently on 12 July 2022. The applicant was first considered for release to parole at a meeting of the SPA on 28 May 2020. Parole was refused, for four stated reasons in the notice of its decision, dated 2 July 2020:

5. [7]

   The SPA identified the following material that it took into account in making its determination:

6. [8]

   The SPA explained its decision thus, under the heading “Material Facts”:

7. [9]

   Under the heading “Critical Issues”, the SPA stated:

8. [10]

   On 12 October 2020, pursuant to s 137B of the CAS Act, the applicant sought what he described as a “reconsideration of decision to refuse parole”, accompanied by 45 pages of submissions (the October 2020 submissions). The substantive part, which commences at p 8, challenged the SPA’s understanding of the principles that are applied to a determination of parole.

9. [11]

   On pp 9 and 10, the applicant stated that reason 4 of the SPA’s reasons for refusing parole on 28 May 2020 (“the offender does not seek release to parole at this time”), was “false and misleading”. The applicant’s explanation, as developed on those pages, is difficult to follow, but has something to do with interviews of him not being electronically recorded, which meant that his responses would be open to being misrepresented. In addition, there would be an absence of confidentiality. In short, the applicant appears to be arguing that he did not participate in the process, and these were his reasons for that decision.

10. [12]

    Pages 11 to 27 constitute criticisms of the content of a pre-release report that had been prepared for the SPA, dated 27 April 2020 (the Report). The author of the Report noted at the outset that the applicant had refused to be interviewed. Under the various standard sub-headings of topics canvassed in such reports, the author stated that the applicant had “refused to engage with community corrections”.

11. [13]

    In his submissions, the applicant made certain observations in respect of each subheading in the Report. He accused the author of “bias” and questioned his “competency”. He criticised the risk assessment tool that had been applied to him in the past, the results of which were related in the Report, which he described as a “flawed calculation, flawed application [and] flawed process”. The Report proposed that if parole was refused, the applicant should participate in a VOTP program. In his submissions, the applicant stated that he could not do that, because he planned on appealing his convictions (I note that such appeals would require leave, since the convictions were in 2015).

12. [14]

    At many junctures in his submissions, in particular from pp 33 to 45, the applicant made submissions as to what he regarded as his strengths in an application for parole.

13. [15]

    On 8 December 2020, the SPA reconsidered the question of the applicant’s parole. The author of the Report was questioned by the applicant. The SPA determined that its decision of 28 May 2020 would stand, repeating reasons (1), (2) and (4).

14. [16]

    On 26 March 2021, the SPA again reconsidered the question of parole and again determined that its decision of 28 May 2020 would stand, repeating reasons (1) and (2) and adding a further reason: “it is unlikely that the offender will be willing to comply with parole conditions”.

15. [17]

    The Chairperson made the following ex tempore remarks in confirming the decision to refuse parole:

16. [18]

    On 1 July 2021, the SPA reconsidered and reaffirmed its decision, citing the following reasons:

17. [19]

    A third reason was identified in the “Material Facts” that were produced following the meeting, namely, that it was considered unlikely that the applicant would be willing to comply with parole conditions. The SPA stated:

18. [20]

    Under the heading “Critical Issues”, the SPA noted:

19. [21]

    At its meeting on 5 August 2021, the SPA considered an application by the applicant for a review hearing, dated 21 July 2021. The Authority determined that a review hearing was not warranted and that the decision to refuse parole on 1 July 2022 would stand, for the following reasons:

20. [22]

    On 2 June 2022, the SPA again refused parole, citing reasons (1) and (2). The decision was confirmed at a further hearing on 12 July 2022.

The application for a direction

1. [23]

   By way of a hand-written request dated 14 April 2022 that was posted to the Supreme Court, the applicant gave notice of his intention to apply for a direction pursuant to s 155(b) of the CAS Act (the application). The application did not identify the particular SPA decision or decisions in respect of which he was seeking the direction. I note that the most recent SPA determination at the time of the application was that of 5 August 2021, that is, some eight months before the application was made.

2. [24]

   Section 155 of the Act provides as follows:

3. [25]

   It is also relevant to note the statutory powers and responsibilities of the SPA in making a determination in respect of parole. Section 135 of the CAS Act provides:

4. [26]

   The hearing of the application initially came before Walton J on 28 March 2023, who inquired of the parties as to why it was that the application had taken so long to come on for hearing. Reference was made to a delay in organising a computer for the applicant, who has been legally unrepresented throughout the process, so that he could review certain documentation.

5. [27]

   Walton J asked the applicant if he wished to amend his application to incorporate the SPA decisions of 2 June and 12 July 2022; the applicant declined to do so. The matter was stood over to 12 May 2023, to enable the applicant to consider and respond to further written submissions filed by the second respondent that had not made their way to the applicant through the prison system in a timely manner.

The relevant principles

1. [28]

   In Sutton v NSW State Parole Authority [2011] NSWSC 935, Garling J distilled propositions from cases that considered the counterpart provisions to s 155 of the CAS Act in the legislation that preceded it (the Sentencing Act 1989 (NSW), ss 23(1), (2) and 41(1)). His Honour said, at [9]:

The hearing of the application

1. [29]

   The applicant appeared at the hearing before me via audio visual link from the prison complex where he is presently being held. He gave sworn evidence in support of his application, essentially challenging the accuracy of propositions in the Report.

2. [30]

   I proceed on the basis that the applicant is challenging the SPA decisions of 28 May 2020, 12 October 2020, 8 December 2020, 26 March 2021, 1 July 2021 and 5 August 2021.

3. [31]

   The applicant filed two sets of written submissions before the hearing and sought leave to file a third set at the hearing. Leave was granted to the applicant to do so, with further time being granted to the second respondent to file further written submissions in response if it wished to do so. The second respondent subsequently indicated it did not wish to make any further submissions.

4. [32]

   On 11 April 2023, the applicant filed written submissions, pursuant to the timetable set by Walton J.

5. [33]

   The applicant stated:

6. [34]

   The substance of the applicant’s written submissions are difficult to understand. He appears to be stating the following.

7. [35]

   The applicant requested the Court to “embark on learned discovery” as to the source of information that was before the SPA to determine whether “references to the source information are false, misleading [or] irrelevant”.

8. [36]

   The applicant called upon Corrective Services NSW to “produce all and every file and document in existence within Corrective Services NSW relating to the applicant”.

9. [37]

   Under a sub-heading “Case history – application history”, the applicant made a series of complaints against the Registrar for perceived injustices in relation to prior applications to produce documents.

10. [38]

    The applicant made submissions concerning the SPA’s reasons for its decision on 28 May 2020, in particular, the following passage:

11. [39]

    The applicant submitted that each of the propositions in this passage was false, but did not elaborate further on why or how that was so.

12. [40]

    The applicant referred to the following sentence from the same document: “Community Corrections were unable to verify with [the applicant] if he was suffering from a mental illness at the time of the offences”. The applicant submitted:

13. [41]

    The applicant submitted that there should have been no reference to his murder conviction in the absence of the sentencing remarks for that offence being before the SPA, since without them, the references were misleading.

14. [42]

    The applicant submitted that the references to the types of offences he committed, and the references to him failing to comply with the Correctional Centre routine and engage in programs, were “false, misleading”, with no further elaboration.

15. [43]

    He submitted that reference to him examining the author of the Report on 8 December 2020 was also false and misleading, because when he attempted to do so, the Chairperson stopped him from questioning the author on the source of his information.

16. [44]

    The applicant submitted that the requirement that he complete a VOTP program was inappropriate, because the preconditions exclude offenders who are appealing their conviction and he claims that there is no evidence that the program is effective.

17. [45]

    In relation to the “material facts” for the SPA decision of 1 July 2021, the applicant submitted that a reference that “he has not engaged in employment” was incorrect or misleading for two reasons. He had been employed in the prison system in 2013, and since then, there have been classifications and placements where employment was not available. The applicant submitted the reference in the same document to referrals for him to engage in the EQUIPS program remaining open is “false”. He submitted that he would be prepared to do e as a condition of parole.

18. [46]

    As to the relevant principles of law on the application, the applicant submitted that he “strongly objects” to the proposition that the Court cannot engage in an assessment of the merits of the SPA’s decision.

19. [47]

    At the conclusion of his submissions, the applicant reiterated his request that the Court engage in a process of discovery of all relevant material.

20. [48]

    The applicant criticised the second respondent for its submission before Walton J that the delay in the hearing was partly due to a difficulty in providing the applicant with a computer.

21. [49]

    The applicant notes a submission made by the second respondent that, as noted by McClellan CJ at CL in Attorney General for New South Wales v New South Wales State Parole Authority & Anor [2006] NSWSC 865 at [49], the Court should not consider the SPA’s reasons “with a fine tooth comb”. The applicant submitted again that the Court should embark on its own discovery of documents in order to determine the extent of falsehoods in the material upon which the SPA’s decisions were based.

22. [50]

    The applicant disputed the relevance of the LSI-R, which was a risk assessment tool applied to him.

23. [51]

    This is a 20-page document which I was unable to make sense of. It contained references to the Australian Constitution providing a form of protection to the applicant and repetition of some of the material in the earlier submissions.

24. [52]

    The applicant stated that he wished to give oral evidence in support of his application, which he anticipated would consume about three days of court time. He was advised that the matter had a two-hour estimate, so that was not possible, but if he wished, the matter could be stood over to allow him to file affidavit evidence. He indicated that he wished to give oral evidence, and that he could do so within the allocated time frame.

25. [53]

    I note that it transpired that the applicant’s “evidence” was essentially submissions. I determined to approach the exercise with a considerable degree of latitude to the applicant.

26. [54]

    I note that the applicant’s evidence was either a repetition or elaboration of the content of his written material. To the extent that the applicant advanced additional material or submissions, I note the following. The applicant disputed that he had refused to engage with Community Corrections, stating that he only wanted their conversations to be recorded. It was “false, misleading and irrelevant” to say that he would not cooperate with parole conditions, since his submissions to the SPA demonstrated a commitment to parole. To paraphrase the applicant’s next point, it was “misleading” for the SPA to have regard to his prior offence of murder without also having access to the remarks on sentence, because it was a felony murder (my term, not the applicant’s) which, he submitted, cast him in a less culpable light for the offence. It was misleading for the SPA to have regard to his convictions for drug-related offences, because he wanted to appeal those convictions and his correspondence with Legal Aid on that topic should have been before the SPA. The applicant strongly disputed the facts on sentence for the offences leading to his current incarceration. As noted, he wished to appeal those convictions. He also disputed the version of facts in the Report which, he said, were not those before the sentencing judge.

27. [55]

    The second respondent submitted that it is apparent from the terms of s 155 that the Court does not engage in an assessment of the merits of the SPA’s decision or its findings in reaching that decision, but rather upon the information that based the SPA’s decision, which is ascertained by the SPA’s reasons for its determination. The SPA’s reasons identify the issues in a particular case that weighed most heavily in the application of the test pursuant to s 135.

28. [56]

    The second respondent submitted that the reasons for the SPA’s decisions, which are relevant to this application, are as follows:

29. [57]

    The relevant material (information) is that which informed these three reasons. The onus is on the applicant to demonstrate, ordinarily by adducing evidence in addition to that which was before the SPA, that the information before the SPA was false, misleading or irrelevant.

Consideration and determination

1. [58]

   It is apparent from the principles that were distilled in Sutton v NSW State Parole Authority that the applicant has the onus of establishing that the information upon which the SPA’s determination was based, was false, misleading or irrelevant.

2. [59]

   The applicant’s evidence in support of his submission that the SPA’s reasons in refusing him parole were based on information that was false, misleading or irrelevant are his assertions, on oath, to that effect.

3. [60]

   The three reasons extracted by the second respondent are those that recur in the SPA’s determinations from 28 May 2020 until 5 August 2021, which was the most recent determination before the applicant sought a direction from this Court.

4. [61]

   The first of the SPA’s reasons is that there is a need for the applicant to address the risks associated with his offending through undertaking appropriate program interventions. By reference to the “Material Facts” of the SPA’s determination on 28 May 2020, it is apparent that it was based on the applicant’s “lengthy history of violent and aggressive behaviour” reflected in his criminal history and disciplinary history in custody, including his classification at that time, together with the fact that he had not participated in “offence targeted programs”.

5. [62]

   The applicant’s submission is that his criminal record alone only tells part of the story as to whether his offending is violent, and the SPA should also have had regard to the remarks on sentence. He further submits that the SPA should have also taken into account that he could not attend the VOTP program because he is intending to appeal his most recent convictions.

6. [63]

   I note that, for the meeting on 28 May 2020, the SPA did have the remarks on sentence by the sentencing judge for the more recent offences for which he was sentenced in 2015. His submission that the murder conviction was for a felony murder overlooks the inherently violent nature of that offence in any event. The felony was an armed robbery of a fast food outlet in which one of the offenders was armed with a loaded shotgun that was discharged, killing a young staff member: R v Kramer (Supreme Court (NSW), Dowd J, 29 November 1995, unrep).

7. [64]

   The applicant has offered reasons as to why he has not participated in a program, including that he is precluded because he intends to appeal his convictions, and he is prepared to partake in such a program in the community as a condition of parole. Given that it is now more than seven years since his sentence was imposed, a degree of scepticism is appropriate as to his stated intention to seek leave to appeal his convictions. In any event, neither submission establishes that the SPA’s reason was based on information that was false, misleading or irrelevant.

8. [65]

   The second reason for the SPA’s decision was the need for suitable post release planning to ensure that the applicant’s risks can be adequately managed in the community. It is self-evident that proper planning can only occur in the context of a discussion taking place between Corrective Services staff and the applicant. He has refused to partake in discussions, unless his requirements are met, including the electronic recording of those discussions. The applicant’s submission provides an explanation for his decision to not cooperate with Corrective Services staff, but does not establish that the information for the SPA’s reason was false, misleading or irrelevant.

9. [66]

   The same observations apply to the SPA’s third reason, that it could not be satisfied that the applicant was willing and able to comply with the conditions of parole and meaningfully engage with supervision. The applicant has a belief that by putting forward on paper his proposal for parole he has done as much as the SPA could reasonably expect of him in that regard. This discloses a rigid, inflexible and unrealistic approach to the essence of supervision. It does not demonstrate a flaw in the information upon which the SPA’s reason was based.

Order

1. [67]

   Accordingly, for the preceding reasons, I order that the application filed on 14 April 2022 for directions pursuant to s 155 of the Crimes (Administration of Sentences) Act 1999 is dismissed.