Al Qatrani v Parole Authority of New South Wales

[2007] NSWSC 1270

CITATION:	Al Qatrani v Parole Authority of New South Wales [2007] NSWSC 1270
HEARING DATE(S):	5 November 2007
JUDGMENT DATE :	9 November 2007
JUDGMENT OF:	Harrison J
DECISION:	1. Quash the determination of the defendant of 5 April 2007 refusing the plaintiff parole. 2. Direct that the defendant determine the plaintiff's eligibility for parole in accordance with law.
CATCHWORDS:	ADMINISTRATIVE LAW - judicial review of administrative decision - error of law on face of record - jurisdictional error - adequacy of reasons - certiorari - mandamus - statutory relief - decision of parole authority - determination to refuse parole - exercise of power under Crimes (Administration of Sentences) Act 1999
LEGISLATION CITED:	Crimes (Administration of Sentences) Act 1999 - ss 135, 155, 193C Supreme Court Act 1970 - s 69
CASES CITED:	Attorney General for New South Wales v New South Wales State Parole Authority and Anor [2006] NSWSC 865 Craig v The State of South Australia (1994-1995) 184 CLR 163 at 181 DCU v State Parole Authority of New South Wales [2006] NSWSC 526 Esho v Parole Board Authority of NSW [2006] NSWSC 304 Galli v New South Wales State Parole Authority [2006] NSWSC 206 Insurance Manufacturers of Australia Pty Ltd v Vandermeer [2007] VSC 28 Kiama Constructions Pty Ltd v Davey (1996) 40 NSWLR 639 LMS v Parole Board [1999] NSWCCA 371 McPherson v Offenders Review Board (1991) 23 NSWLR 61 Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 Mifsud v Campbell (1990-1991) 21 NSWLR 725 Public Service Board of New South Wales v Osmond (1985-1986) 159 CLR 656 Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 (2003) 77 ALJR 1165 Regina v Naudi [2003] NSWCCA 160 Sean Investments Pty Ltd v MacKellar (1981) 38 ALR 363 Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 St Alder v State Parole Authority [2007] NSWSC 345 The Queen v Australian Broadcasting Tribunal; Ex parte Hardiman (1980) 144 CLR 13
PARTIES:	Imad Al Qatrani - Plaintiff Parole Authority of New South Wales - Defendant
FILE NUMBER(S):	SC 30094 of 2007
COUNSEL:	R Burgess - Plaintiff L Babb SC - Attorney General (intervening)
SOLICITORS:	S O'Connor, Solicitor for the Legal Aid Commission of New South Wales - Plaintiff I V Knight, Crown Solicitor - Attorney General (intervening)

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

HARRISON J

9 November 2007

30094 of 2007 IMAD AL QATRANI v PAROLE AUTHORITY OF NEW SOUTH WALES

JUDGMENT

Introduction

1 On 19 December 2002 the plaintiff was sentenced by his Honour Moore A-DCJ to a total effective term of 7½ years imprisonment commencing on 8 October 2001 with a non-parole period of 5 years following conviction by a jury of one count of sexual intercourse without consent in circumstances of aggravation (being in company) and one count of indecent assault. He appealed to the Court of Criminal Appeal, which quashed the verdict of guilty in respect of the count of sexual intercourse in circumstances of aggravation and substituted a verdict of guilty of sexual intercourse without consent. He was re-sentenced to an effective term of 7 years imprisonment, with a non-parole period of 4½ years, which expired on 7 April 2006. The plaintiff's application for Special Leave to Appeal to the High Court of Australia was refused in April 2004.

2 The plaintiff has made three applications for parole to the defendant. The first was heard on 11 April 2006 and was refused. The second was heard on 20 June 2006 and was also refused. The third was heard on 5 April 2007. The defendant refused that application and that refusal is the subject of challenge by the plaintiff in the present proceedings.

3 The plaintiff seeks orders in the nature of prerogative relief of certiorari and mandamus. Alternatively, the plaintiff seeks a direction under s 155 of the Crimes (Administration of Sentences) Act 1999 ("the Act") that the information upon which the defendant made its decision was irrelevant, false or misleading.

4 The defendant has filed a submitting appearance: see The Queen v Australian Broadcasting Tribunal; Ex parte Hardiman (1980) 144 CLR 13. In the absence of a contradictor to the plaintiff’s action, the Attorney General for New South Wales sought leave to intervene in the proceedings. That is a course that has been taken in other proceedings of this nature: see Esho v Parole Board Authority of NSW [2006] NSWSC 304; St Alder v State Parole Authority [2007] NSWSC 345. The plaintiff did not oppose this course.

5 In summary, the grounds upon which the plaintiff bases his claims for relief are as follows:

5.1 There is an error of law on the face of the record and/or jurisdictional error as the defendant refused the plaintiff parole on the basis that there was no suitable post-release accommodation.

5.2 There is an error of law on the face of the record and/or jurisdictional error as the defendant failed to have proper regard to the matters set out in s 135(2) of the Act, in particular, the need to protect the safety of the community, the need to maintain public confidence in the administration of justice and relevant comments made by the sentencing court.

5.3 There is an error of law on the face of the record and/or jurisdictional error as the defendant failed to have regard to a series of relevant considerations. (These are referred to below in more detail).

5.4 There is an error of law on the face of the record and/or jurisdictional error as the defendant took into account the erroneous and/or irrelevant matters. (These are referred to below in more detail).

5.5 There is an error of law on the face of the record and/or jurisdictional error as the defendant refused the plaintiff parole solely on a basis of the need to address his sex offending behaviour.

5.6 The defendant failed to give proper or adequate reasons for its decision. (This ground was added by amendment to the Summons made on the plaintiff's application during the course of the hearing for me. The Attorney General did not oppose that application).

5.7 The defendant's decision to refuse parole for the plaintiff was based upon information that was false and/or misleading and/or irrelevant. (These matters are referred to below in more detail).

6 The facts were not in dispute.

The decision

7 The defendant’s decision was delivered by the chairperson following a short hearing. It is expressed economically and for that reason it is convenient for present purposes to reproduce it in full:

"CHAIRPERSON: Thank you Ms Witmer for your submissions. Thank you Ms Jordan for your input here today. Mr Al-Qatrani, the Authority have considered the evidence you've given here today and what has been put on your behalf by your representative, Ms Witmer, and obviously we've taken into account the contents of the various reports contained within your file and the up-to-date evidence as I say, given today.

The Authority take on board what Mrs Witmer has said about the matters that the Parole Authority ought take into account in deciding whether or not to grant parole. The Authority in this particular instance have taken the view that parole ought be refused for the reasons that were stated on 1 February 2007. Those reasons being a need to address your offending behaviour, that is the sex offending behaviour and there was no suitable post-release accommodation.

The Authority recognises that when you are in receipt of a parole order, that accommodation situation would be resolved almost immediately and the Authority doesn't pretend otherwise. The Authority need to take into account of course the general duties of the Parole Authority as set out in section 135 and the Authority must be of the view that the release of the offender to parole is appropriate in the public interest. Subsection 2 of that section sets out various criteria that the Authority should consider in deciding whether or not to grant parole. I shan't deal with all of them except to say that the principal ones that have caused the Authority to have some concern is subsection 2(a) the need for the safety of the community, (b) the need for public confidence in the administration of justice, (c) the nature and circumstances of the offence, (d) any relevant comments made by the sentencing court.

It has been pointed out that his Honour, Judge Moore, envisaged that you would have a lengthy period of parole supervision but his Honour also envisaged no doubt that you would take some appropriate and significant steps to address the sort of behaviour with which he was dealing at the time that he sentenced you. The Authority have also taken into account as we must, any reports in relation to the granting of parole . . . produced . . . on behalf of the Probation and Parole Service and you will appreciate that those reports unanimously do not support your present release to parole.

I suppose one should say that one of the things that we have taken into account that appears to be in your favour, is your criminal history and we recognise that this particular offence appears to be completely out of kilter with any other manner in which you have conducted your life. The Authority will again consider your possible release to parole on the due date. That will be approximately early next year - that will be a parole consideration of the private meeting, you will not be required to attend. I anticipate it will take place in early February 2008 and you will be advised of the outcome shortly thereafter. Thank you, Mr Al-Qatrani."

8 The first ground upon which the plaintiff bases his challenge to the defendant's decision can be dealt with immediately. Although the decision is in terms expressed to be based upon the absence of suitable post-release accommodation, the decision also contains an explicit recognition that the question of the plaintiff's accommodation, if he were released to parole, would be immediately resolved. It seems clear on the face of the decision that the defendant did not refuse the plaintiff parole upon the basis that there was no suitable post-release accommodation even though it uses those words.

9 Further support for this conclusion can be found in the transcript of the proceedings on page 4, where the following extract appears:

"CHAIRPERSON: You may assume Ms Witmer that we would accepts your proposition that if [the plaintiff] were to be granted parole, Ms Jordan or somebody assisting her would soon locate him somewhere to live."

10 The plaintiff’s second ground involves a consideration of s 135 of the Act. That section is in the following relevant terms:

" 135 General duty of Parole Authority

(1) The Parole Authority must not make a parole order for an offender unless it is satisfied, on the balance of probabilities, that the release of the offender is appropriate in the public interest.

(2) In deciding whether or not the release of an offender is appropriate in the public interest, the Parole Authority must have regard to the following matters:


(a) the need to protect the safety of the community,

(b) the need to maintain public confidence in the administration of justice,

(c) the nature and circumstances of the offence to which the offender’s sentence relates,

(d) any relevant comments made by the sentencing court,

(e) the offender’s criminal history,

(f) the likelihood of the offender being able to adapt to normal lawful community life,

(g) the likely effect on any victim of the offender, and on any such victim’s family, of the offender being released on parole,

(h) any report in relation to the granting of parole to the offender that has been prepared by or on behalf of the Probation and Parole Service, as referred to in section 135A,

(i) . . .

(k) such other matters as the Parole Authority considers relevant.

(3) Except in exceptional circumstances, the Parole Authority must not make a parole order for a serious offender unless the Review Council advises that it is appropriate for the offender to be considered for release on parole."

11 The function of the Court in considering an application for prerogative relief is limited. Prerogative relief is only available if an error of law is established. In Attorney General for New South Wales v New South Wales State Parole Authority and Anor [2006] NSWSC 865 ("Hall"), McClellan CJ at CL observed at [74]:

"… I repeat, as I have already indicated that it is not for this Court to review the merits of the Authority’s decision. Whether or not an offender should be released is a decision vested by the Parliament in the Parole Authority. The only function of this Court is to consider whether in making that decision the Authority may have committed an error of law …."

12 It is not entirely clear how it is that the plaintiff contends the defendant "failed to have proper regard to the matters set out in s 135(2)" of the Act. The defendant's decision expressly had regard to matters described in s 135(2)(a)-(d) inclusive. The plaintiff makes no complaint about a failure by the defendant to consider any of the other matters to which the section refers. Furthermore, the plaintiff does not elucidate the proposition that the defendant failed to have proper regard to any matters referred to in the section, other than to submit that the absence of any reference in the decision to the evidence relevant to the matters required to be taken into account by the defendant, was itself indicative of error. The plaintiff submitted that the decision did not refer to relevant evidence or indicate why, taking into account the evidence, the defendant was not satisfied that it was appropriate in the public interest to release the plaintiff. The plaintiff submitted that, in the circumstances, more was required than a bald assertion that the point had been considered and that the failure to expose the process of reasoning resulted in a failure to satisfy the requirements of s 135.

13 In Hall (supra) at [49], McClellan CJ at CL also had this to say when dealing with a challenge to a decision of the defendant to grant parole:

"[49] It is important when considering the “reasons” of a body such as the Parole Authority that the court not adopt a “fine tooth comb” approach to its published reasons: see Brennan CJ, Toohey, McHugh and Gummow JJ in Minister for Immigration and Ethnic Affairs v Wu Shan Liang and Ors (1996) 185 CLR 259 at 272; Neaves, French and Cooper JJ in Collector of Customs v Pozzolanic (1993) 43 FCR 280 at 287; McAuliffe v Secretary, Department of Social Security (1992) 28 ALD 609 at 616. This principle is obviously appropriate to the reasons of the Authority."

14 In that case his Honour also noted that “[t]he Chairperson was careful to indicate that the Authority has given consideration to "all material including the State submission" and that in reaching its determination, the Authority has had regard to "all matters in s 135(2) of the Crimes (Administration of Sentences) Act 1999". A similar formulation appears in the present case. Indeed, the terms of s 135(2) are referred to specifically in the decision in order to identify the areas said to have been of particular concern. Even though a detailed formulation and elucidation of the path followed from the evidence to the conclusion would have been preferable and also presumably beyond criticism, the defendant’s abbreviated analysis is nevertheless unexceptionable. I do not consider that the plaintiff has shown that the defendant has failed to have proper regard for the matters to which s 135(2) directs its attention. The reference to the plaintiff’s need to address his sex offending behaviour appears clearly to be a conclusion arrived at following a consideration of at least those matters. It is not to the point that a decision favouring the grant of parole might itself have been unassailable.

15 Although the defendant did not express a concluded view as to whether granting parole would diminish public confidence in the administration of justice, it did state that this matter had caused it concern. The defendant was not required to express a finding as to every fact leading, or relevant, to its final determination of whether or not the plaintiff's release on parole was appropriate in the public interest. As was stated by Mahoney JA in Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 at 271:

"In my opinion, the law does not require that a judge make an express finding in respect of every fact leading to, or relevant to, his final conclusion of fact; nor is it necessary that he reason, and be seen to reason, from one fact to the next along the chain of reasoning to that conclusion."

16 I am not satisfied that this ground of challenge succeeds.

17 The plaintiff next alleges that the defendant failed to have regard to a series of relevant matters. They are as follows:

15.1 That the plaintiff had, prior to his earliest release date in September 2004 and in March 2005, been willing to participate in a sex offending program.

15.2 That the Department of Corrective Services had failed to provide to the plaintiff the opportunity to address his sex offending by participation in CUBIT prior to his earliest release date.

15.3 That the plaintiff had completed courses available to him that addressed his offending behaviour.

15.4 That the plaintiff had accepted responsibility for the offence.

15.5 That community-based counselling and treatment were available in the community and the plaintiff was willing to undertake such counselling whilst on parole.

15.6 That if the plaintiff were refused parole, he would not participate in CUBIT and would remain "untreated".

15.7 The concession by the Probation and Parole officer, Ms Jordan, that if the plaintiff did not participate in CUBIT, it may be better, in the community interest, that he be released to parole under supervision.

18 The plaintiff submitted that, while it was accepted by the defendant that the offences committed by the plaintiff were out of character and that his criminal history weighed heavily in his favour, it made no reference to the other factors that also assisted him. The fact that he refused to participate in CUBIT and was consequently deemed to be an "untreated sex offender" was the only factor which weighed in the balance against him. The fact that the plaintiff had been willing to participate in that program and the reason why he had ultimately declined to do so, together with the fact that the Department of Corrective Services had failed to provide him with a means to address his sex offending prior to his earliest release date, were in combination relevant considerations to which appropriate weight should have been given. The factual dispute as to whether or not he was offered a place in CUBIT in September or December 2005 was inconsequential. In either case, there was insufficient time for the plaintiff to complete a 10-month course prior to the expiration of his non-parole period on 7 April 2006.

19 The plaintiff relied upon a document published by the Department of Corrective Services which described the CUBIT program as a residential course offered to moderate to high risk offenders. It lasts for 10 months. The document specifies that there must be sufficient time remaining prior to the earliest release date to complete treatment or a willingness to delay parole and that a referral should be made as early as possible in the prisoner's sentence. That accorded with a document issued by the Acting Senior Assistant Commissioner Inmate and Custodial Services, John Klok, which included the following directive:

"It is not acceptable that an inmate's release date be delayed because s/he has not been able to participate in a program aimed at addressing criminogenic needs prior to her/his earliest possible release date."

The plaintiff submitted that he was entitled to refuse to participate in the program in the circumstance in which he found himself and that the defendant should have had particular regard to that circumstance.

20 Furthermore, the plaintiff submitted that he did not refuse to participate because he did not consider himself a sex offender. He had accepted responsibility for the offence, acknowledged that he may have made an error of judgment and expressed a desire to be more informed on issues regarding consent. He had participated in the Understanding Sexual Offences Program, and anger management and AOD courses which were available to him. He had demonstrated insight into the relationship between his anger and alcohol consumption. The plaintiff submitted that no consideration was given to the fact that he had addressed his offending behaviour whilst in custody by completing the courses or to his willingness to participate in therapeutic programs in the community.

21 Finally, the plaintiff submitted that the defendant had made no reference to the concession made by Ms Jordan at the hearing on 5 April 2007 that on balance it may be better, in the interest of the community, for the plaintiff to be released on parole under supervision if he did not participate in CUBIT. These were all matters relevant to the matters that the defendant was obliged to take into account under s 135(2), particularly the need to protect the community and the need to maintain public confidence in the administration of justice.

22 The present ground of review will only be made out if the plaintiff establishes that the defendant failed to take into account a matter that it was bound to consider in making its decision: see Sean Investments Pty Ltd v MacKellar (1981) 38 ALR 363 at 375; Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24. The factors that a decision maker is bound to consider will be determined by construing the statute that confers the discretion. If the statute sets out the considerations to be taken into account, it is necessary to determine whether those enumerated factors are exhaustive or merely inclusive: Peko-Wallsend (supra) per Mason J at 39. Section 135 (2) exhaustively outlines the matters to which the defendant was required to have regard in deciding whether or not the release of an offender is appropriate in the public interest. This is emphasised by s 135(2)(k): "such other matters as the Parole Authority considers relevant". As Rothman J said in Esho v Parole Board Authority of New South Wales [2006] NSWSC 304 at [37]:

"[37] The existence of the last criterion (“such other matters as the Parole Authority considers relevant”) has a significant effect. Firstly, on its face, it allows the Parole Authority to take into account matters that the Parole Authority itself considers relevant. In that regard it is not the objective relevance of a criterion to which challenge may be made but only whether it was open to the Parole Authority to consider it relevant: see, by analogy, Parisienne Basket Shoes Pty Ltd v Whyte (1938) 59 CLR 369 at 391. Secondly, by including that criterion and expressing it in that way, of necessity, sub-section 135(2) exhaustively adumbrates the criteria relevant to the public interest. This does not mean that there cannot be error because the tribunal has failed to take into account a relevant matter. Indeed, on one view, it makes more compelling addressing an error of that kind. On the other hand, it will be more difficult to substantiate a proposition that an irrelevant matter has been considered. The test will be, not whether the consideration is irrelevant, but whether it could not, as a matter of law, be relevant."

23 It was submitted on behalf of the Attorney General that the defendant was not bound to take into account any of the matters upon which the plaintiff relied, except to the limited extent that they were relevant to the matters set out in s 135(2). It was further submitted that if the defendant were bound to take those matters into consideration it did so, because they were addressed in submissions and the evidence at the hearing, in the pre-sentence and psychological reports concerning the plaintiff and in the remarks of the sentencing judge. The defendant referred in terms to the fact that it had regard to all of this material.

24 It is important at all times to bear in mind the proper constraints that are imposed upon a judicial review of an administrative decision. The merits of the plaintiff’s application to the defendant must be disregarded unless the decision that it is sought to impugn was so unreasonable that no decision maker could reasonably have come to it or it is irrational or illogical. See, for example, Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 (2003) 77 ALJR 1165. A decision to refuse to grant parole to an applicant based solely upon the fact that he or she had declined to undertake a particular course that would have extended beyond the earliest date of his or her entitlement to release on parole would qualify, in my opinion, as a decision that was so unreasonable that no decision maker could reasonably have come to it.

25 Moreover, as was said by Mason J in Peko-Wallsend (supra) at 40:

"Not every consideration that a decision maker is bound to take into account but fails to take into account will justify the court setting aside the impugned decision and ordering that the discretion be re-exercised according to law. A factor might be so insignificant that the failure to take it into account could not have materially affected the decision . . . The limited role of a court reviewing the exercise of an administrative discretion must constantly be borne in mind. It is not the function of the court to substitute its own decision for that of the administrator by exercising a discretion which the legislature has vested in the administrator."

26 It is not controversial in the present case that the plaintiff's attempts to undertake the CUBIT course of treatment were to some extent frustrated by circumstances beyond his control. However, it is not possible to say that the defendant's decision to refuse to grant parole was solely based upon or influenced by the fact that the plaintiff had failed to complete the course. Other material was available to the defendant capable of supporting a conclusion that the plaintiff had failed to address his sex offending behaviour. It could hardly be doubted that there was adequate scope, and strong evidentiary support, for the formation of a different view. However, there is no scope for the proposition that the view formed by the defendant was not at least an available view.

27 I am not satisfied that this ground of challenge succeeds.

28 The plaintiff next alleges that there is error of law on the face of the record and/or jurisdictional error as the defendant took into account the following erroneous and/or irrelevant matters:

28.1 That the plaintiff's moderate to high-risk level of re-offending deemed community-based treatment inappropriate.

28.2 That the sentencing judge envisaged that the plaintiff would take some appropriate and significant steps to address his offending behaviour.

29 In the supplementary pre-release report dated 7 June 2006, Darelle Williams stated that the plaintiff’s moderate to high risk level "deems" community-based treatment inappropriate. The plaintiff submitted that this is either a generalisation or otherwise unsupported and should not be permitted to constrain the defendant's decision without due or proper regard for the particular circumstances of the case. If the defendant treated that evidence as foreclosing upon its discretion, it fell into error. The defendant had an obligation to consider all of the evidence including the report of Jenny Howell and the concession by Ms Jordan to which earlier reference has been made. The plaintiff submitted that the defendant's failure to make reference to these matters is indicative of error. He submitted that the expressed opinion was a reflection of departmental policy and that a mechanical adoption of that policy could amount to a fetter upon the defendant’s discretion.

30 These arguments are attractive but in my opinion inapposite. It does not seem to me to be possible to elevate the opinion expressed by Ms Williams to such a level of significance in the defendant's decision-making process that it overrode or frustrated a proper consideration of all other potentially relevant matters. It did not adversely affect the defendant's ability properly to exercise its discretion.

31 The same can be said of the second matter. A reference by the defendant to the sentencing judge having "envisaged" something is not co-extensive with the sentencing judge having specifically referred to it in his remarks on sentence. In any event, the expression "also envisaged no doubt" appears to me to be more of an assumption than a conclusion. As was submitted on behalf of the Attorney General, it would be curious if his Honour had not envisaged that the plaintiff would take appropriate and significant steps to address this requirement prior to being released on parole. The evidence suggests that he attempted to do so. The language of the decision does not, in my opinion, bespeak relevant error.

32 I have already referred to the issue of whether or not the plaintiff needed to address his sex offending behaviour. In a separate context, however, the plaintiff contended, as a discrete ground of challenge, that the decision to refuse parole on this basis constituted an error on the face of the record and/or jurisdictional error. In Galli v New South Wales State Parole Authority [2006] NSWSC 206 at [7], Adams J said this:

"The question to be considered by the Parole Authority is not ultimately whether an offender has undertaken such a programme, assuming that he or she was convicted of a sexual offence. The question is whether in all the circumstances an offender should be released to parole having regard to the criteria specified in the Act, crucially whether there is or is not a real risk of re-offending. In considering this question a number of matters are relevant. Of course, the nature of the offending itself is of significant importance …."

33 In DCU v State Parole Authority of New South Wales [2006] NSWSC 526 Johnson J summarised the authorities which considered the refusal to grant parole to offenders who had not participated in CUBIT, or similar custody-based programs. His Honour said that a number of propositions emerged from the cases, including the following:

"[48] . . .it would be erroneous to refuse parole solely because of a denial of guilt by the offender and a refusal or inability to undertake a custodial treatment program: Mott at 271, 275; Lillycrop at paragraphs 12, 18; Hepworth at paragraphs 45, 47; Walker v Corrective Services Commission (Qld) (1999) 104 A Crim R 127 at 134 [16] (refusal of remissions); Varney v Parole Board (WA) (2000) 23 WAR 187 at 205 [57], 209 [79] (Ipp J).

[49] . . .

[50] Thirdly, although a decision to refuse parole based solely upon the offender’s denial of guilt and refusal or inability to enter a rehabilitation program would be erroneous, these matters remain relevant to the decision whether to grant or refuse parole: Mott at 269-270 (Fitzgerald P), 271-272 (Davies JA), 275-276 (McPherson JA); Varney at 208 [71] (Ipp J).

[51] In Mott , Davies JA said at 271.36:


'Neither the respondent’s denial of guilt nor his consequent unsuitability for participation in a sexual offender’s program was a reason for refusing parole. But, read in context, I do not think that the appellant’s reasons assert that either was. On the other hand his successful completion of that program, denied to him by his denial, would have been a factor in his favour. It was only in this negative sense that the appellant took the respondent’s denial of guilt into account. In taking it into account in this limited way I do not think that the appellant can be said to have taken into account an irrelevant consideration in arriving at its decision.'

Davies JA observed at 272.6:


'The true basis upon which the appellant thought that the respondent’s denial of guilt was relevant was that it denied the respondent the opportunity of participating in a program, successful completion of which may well have enhanced his case for parole.'


[52] In Mott , McPherson JA at 275-276 pointed to the way in which denial of guilt and refusal or inability to undertake a rehabilitation program may be relevant to a parole decision:



'Within the limits marked out by these two extremes there is an area in which an applicant’s refusal to acknowledge guilt might have more or less significance to a decision whether to release on parole. I do not think the difficulty can be altogether resolved by saying that the Board is bound to accept and act upon the fact of the conviction alone. The question is not whether an applicant for parole has (as must always be the case) been convicted, but whether his refusal to acknowledge guilt may be regarded as a relevant consideration in assessing his application for parole. It is not difficult to see that in some circumstances it may be a factor relevant to the process of rehabilitation. An offender who has come to terms with his guilt, and is genuinely remorseful about it, would ordinarily be a more suitable candidate for parole than one who refuses to do so.

In the present case, it cannot be suggested that the Board adopted or acted upon a rule that the applicant must be refused parole simply because he failed to admit his guilt of the offence of murder of which he was convicted.'

[53] In Varney , the Applicant had applied seven times unsuccessfully for admission to the custodial sex offender treatment program. It was accepted, in that case, that due to funding restrictions, that program was only available to persons who admitted their guilt (see 196 [24], 204-205 [55]-[56]). In this respect, Ipp J (Malcolm CJ and Wallwork J agreeing) said at 208 [71]:

'I accept that in coming to its decision the Board took into account the denial of guilt by the applicant and the fact that for that reason he was not admitted to and did not undertake the SOTP [Sex Offenders Treatment Programme]. In my view, the inference to be drawn from the words expressing the decision is that the Board had regard to these matters on the basis that both the denial of guilt and the non-participation in the SOTP were factors tending to render the applicant unsuitable for parole. In my view, the Board was entitled to regard these matters in that light and so take them into consideration: see Mott v Community Corrections Board (Qld) [1995] 2 Qd R 261 at 268-270, per Fitzgerald P; at 275-276, per McPherson JA; at 271, per Davies JA; R v Secretary of State for the Home Department; Ex parte Zulfikar; R v Parole Board; Ex parte Zulfikar.'

34 The plaintiff submitted that there were significant differences between the facts in DCU and the present case. The plaintiff in that case only made an application under s 155, which is a more limited form of review than prerogative relief under s 69 of the Supreme Court Act: see below. Moreover, the offender in that case continued to deny his guilt, declined to apply to participate in CUBIT and had not undertaken courses in anger management, drug and alcohol or relapse prevention, as he did not see them as relevant personal issues.

35 There is no doubt that DCU was different to the present case. However, an application of the principles summarised by Johnson J apply with no less force. No reading of the defendant's decision would lead a reasonable observer to conclude that it denied parole to the plaintiff upon the basis that, for whatever reason, he had not undertaken a sex offenders program. As I have earlier suggested, the material before the defendant extended well beyond that fact alone. For example, that finding is supported by the presentence and psychological reports concerning the plaintiff and by the fact that he continued to be assessed as having a moderate to high risk of re-offending. As I have attempted to emphasise, reasonable minds may differ upon the outcome that should flow from a consideration of these and other relevant factors. The fact that I, or anyone, may have a different view about what should have occurred is irrelevant and not of itself demonstrative of error.

36 The plaintiff next relied upon a contention that the defendant had erroneously failed to give proper or adequate reasons for its decision. In Public Service Board of New South Wales v Osmond (1985-1986) 159 CLR 656, the High Court of Australia established that no general rule of the common law or principle of natural justice requires reasons to be given for administrative decisions, even those made in exercise of a statutory discretion and liable adversely to affect the interests, or defeat the legitimate or reasonable expectations, of others. It emphasised that, while the giving of reasons may ordinarily be an incident of the judicial process, there is no justification for regarding rules that govern the exercise of judicial functions as necessarily applicable to administrative functions. The suggested principle that a body exercising discretionary administrative powers must give reasons to enable affected persons to seek judicial review “would undermine the rule, well established at common law, that reasons do not form part of the record, for the purposes of certiorari, unless the tribunal chooses to incorporate them”: per Gibbs CJ at 667 (emphasis added). There may of course be circumstances where, if the decision maker does not give any reason for his or her decision, a court may be able to infer that he or she has no good reason. That would not apply to the present case.

37 In Craig v The State of South Australia (1994-1995) 184 CLR 163 at 181, the High Court said “… that, in the absence of some statutory provision to the contrary, the record of an inferior court for the purposes of certiorari does not ordinarily include the transcript, the exhibits or the reasons for decision…” (emphasis added). See also s 69(4) of the Supreme Court Act 1970.

38 Ordinarily these principles would immediately dispose of this ground of challenge. However, two matters would appear to stand in the way of that result. First, the terms of s 193C of the Act. It is in the following relevant terms:

" 193C Parole Authority decisions

(1) The Parole Authority must cause a record of its reasons for the following decisions under Parts 6 and 7 to be kept in the minutes of its meetings:



(a) all decisions that result in the granting or refusing of parole,

(b) . . .

(2) In recording its reasons for a decision under Division 2 of Part 6 that an offender should or should not be released on parole, the Parole Authority must address:



(a) the matters referred to in section 135, and

(b) if the decision relates to a serious offender to whom section 154 applies, the matters referred to in that section, and

(c) such other matters as the Parole Authority is, under this Act or the regulations, required to take into account in making the decision.

(3) . . ."

39 Secondly, the italicised words in the sentence quoted from Gibbs CJ in Osmond (supra) at 667.

40 The defendant in fact gave reasons for its decision. It is unnecessary for present purposes to determine whether or not it did so in accordance with an apprehension that s 193C of the Act mandated such a course, or simply for the edification of the parties. As far as I am aware the interpretation of s 193C has not been judicially considered. It does not arise as a necessary matter for determination here. If it were necessary for me to decide, it would be my view that subs 193C(1)(a) and (2) impose an obligation upon the defendant to give reasons for its decision in the present case. However, the plaintiff argues that whatever the defendant’s motivation or obligation may have been, once it had given reasons for its decision, it was required (by analogy or otherwise) to provide them in conformity with the standard to be applied in the case of judicial decisions. This argument needs to be examined.

41 In Insurance Manufacturers of Australia Pty Ltd v Vandermeer [2007] VSC 28 Kaye J said:

"[11] The requirement that a judge or magistrate, in an appropriate case, give reasons for judgment is a well established and longstanding principle of law. The reasons given for that requirement are generally twofold. First, in cases in which an appeal lies, the provision of the reasons for judgment identifies for the appellate court the reasoning and basis upon which the decision under appeal was made. Thus in Pettitt v Dunkley , Moffitt JA stated:


'The reason why the judicial obligation to give reasons in an appropriate case exists, is, that where an appeal is provided, the trial at first instance does not exhaust the rights which parties have. Just as an express statutory requirement to find facts and give a decision on the particular question of law which arises is directed to ensuring that the right of appeal in case of error of law is effective, so any general judicial duty to give reasons is similarly directed. ... [T]he duty of the judge or court is not limited to hearing the case and entering a verdict. Not only has he a judicial duty to determine and enforce the rights of parties at a trial judicially conducted at first instance, but he also has a judicial duty which, within some limits, is directed to preserving and facilitating any rights of appeal from his decision which a party may have.'


[12] The second reason for the requirement to provide reasons is that a failure by a judge to provide such reasons can engender a real sense of grievance by the losing party, who is left ignorant as to why the decision, adverse to its interest, has been made. Allied to that reason is the public interest in maintaining public acceptance of judicial decisions and the integrity of the judicial process.

[13] Those two reasons led Gray J, who delivered the leading judgment of the Full Court of Victoria in Sun Alliance Insurance v Massoud , to identify the two fundamental criteria, which his Honour considered were critical to the provision of adequate reasons by a judicial officer. His Honour stated:


'In my opinion, the decided cases show that the law has developed in a way which obliges a court from which an appeal lies to state adequate reasons for its decision.
The adequacy of the reasons will depend upon the circumstances of the case. But the reasons will, in my opinion, be inadequate if ... -



(a) The appeal court is unable to ascertain the reasoning upon which the decision is based; or

(b) justice is not seen to have been done.

The two above stated criteria of inadequacy will frequent overlap. If the primary Judge does not sufficiently disclose his or her reasoning, the appeal court is denied the opportunity to detect error and the losing party is denied knowledge of why his or her case was rejected.'

[14] In Beale v Government Insurance Office of NSW , Meagher JA, in considering an appeal from a decision of a district court judge, stated that there are three fundamental elements of an adequate statement of reasons, namely: the judge should refer to relevant evidence; the judge should set out any material findings of fact and conclusions or ultimate findings of fact reached; and the judge should provide reasons for making the relevant findings of fact (and conclusions) and reasons in applying the law to the facts so found.

42 Similar principles were also discussed in Mifsud v Campbell (1990-1991) 21 NSWLR 725 and Kiama Constructions Pty Ltd v Davey (1996) 40 NSWLR 639.

43 In the present case it is not possible to ascertain the reasoning upon which the defendant's decision is based. This is in contradistinction to the conclusion, or reason why the plaintiff’s application for release on parole was refused. As I have observed earlier in these reasons, there is no clear pathway to the conclusion that is ultimately reached, and on one view it is heavily obscured if not totally absent. It cannot in my opinion be said that the defendant, other than in a perfunctory and limited way, made any reference to relevant evidence, set out any material findings of fact and conclusions or ultimate findings of fact reached, or that it provided any reasons for making findings of fact and conclusions, or reasons, in applying the law to the facts as found.

44 In my opinion, the defendant, whether by choice or obligation, delivered reasons for its decision. In the course of doing so it failed to provide reasons that properly or adequately explained that decision. It seems to me to be sensible, and not contrary to relevant authority, that an administrative body that chooses, or is required, to furnish reasons for a decision, should thereby become exposed to scrutiny in the same way as a judge or magistrate. The wisdom that informs the standard in the latter case could not sensibly be discarded when applied to the particular circumstances of the defendant in the present case. If it were otherwise, an obligation or decision to give reasons would have the potential to degenerate into formulaic repetition and the production of reasons of no practical use. Nor is this in conflict with the very important notion, explained by McClellan CJ at CL in Hall (supra), that reasons of an administrative body such as the defendant should not be examined with a fine tooth comb. In the circumstances, the plaintiff is entitled to an order requiring the defendant to remedy an error of law.

45 Finally, the plaintiff sought a direction pursuant to s 155 of the Act as to whether the defendant's decision was based upon information that was false, misleading or irrelevant. That section is in the following relevant terms:

" 155 Application to Supreme Court by offender

(1) If:


(a) the Parole Authority decides that an offender should not be released on parole, and

(b) the offender alleges that the decision of the Parole Authority has been made 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.

46 The principles dealing with applications under this section were recently dealt with by Johnson J in DCU (supra) at [6] and [7] as follows:

"[6] The role of the Court under s.155 CAS Act has been described as “extremely limited” and an application does not operate as a form of judicial review of an SPA decision: R v Naudi [2003] NSWCCA 160 at paragraph 19. On a s.155 application, the Court does not concern itself with questions pertaining to the merits of a decision nor with questions as to what weight is placed upon various factors: Radford v Parole Board [2002] NSWCCA 70 at paragraph 36; McCallum v Parole Board [2003] NSWCCA 294 at paragraph 33. In Rozynski v Parole Board of New South Wales [2003] NSWCCA 214, Greg James J (Hodgson JA and Simpson J agreeing) said at paragraph 13:


'For my part, I consider that action under the section will not be warranted unless the statutory conditions are met as a matter of substance. This means that information before the Board will not be characterised as false, misleading or irrelevant simply because it was challenged, even if challenged on such a basis before the Board and the challenge determined adversely to the applicant, nor if it is merely incorrect in detail but not false or misleading in substance. This court will need to be satisfied on appropriate (usually new) evidence that information was false or misleading in substance, and that the direction should be given. So far as there is a determination of the Board concerning information said to be false or misleading, before the court will so categorise that information, it will be necessary to satisfy the court that the Board's determination was plainly, not just arguably, wrong and further that the information was false or misleading and material to the Board's conclusion.'

[7] The Court is concerned only with information which was before the SPA and upon which the SPA decided not to release the Applicant to parole. The Court is not concerned with whether the SPA acted in accordance with the statute. That is a matter for administrative law relief in the Court. Nor is the Court concerned with whether the SPA’s decision was right or wrong, or whether the SPA correctly interpreted or construed the information before it, or whether it drew the correct inferences from that information or whether it gave the correct weight to that information. The only powers available to the Court under s.155 are to give directions to the SPA as to whether the information upon which its decision was made was false, misleading or irrelevant and to give such further directions with respect to that information as it thinks fit: McCamley v Offenders Review Board (Court of Criminal Appeal, 9 February 1994, unreported); LMS v Parole Board (1999) 110 A Crim R 172 at 174-175.

47 The plaintiff contends that the defendant’s decision to refuse parole was based on information that was either false or misleading or irrelevant in the following respects:

47.1 There was no post-release accommodation.

47.2 Because the plaintiff had not participated in CUBIT and was an "untreated sex offender" he should be refused parole.

47.3 The plaintiff’s moderate to high-risk level of re-offending deemed community-based treatment inappropriate.

47.4 The sentencing judge envisaged that the plaintiff would take some appropriate and significant steps to address his offending behaviour.

48 Ms Burgess of Counsel, on behalf of the plaintiff, did not abandon this ground of challenge to the defendant's decision but conceded, in my view quite properly, that she faced a not insignificant task having regard to the decision in DCU and in particular to the issues raised in the paragraphs extracted above. I was also referred to Regina v Naudi [2003] NSWCCA 160 per Simpson J at [19], McPherson v Offenders Review Board (1991) 23 NSWLR 61 and LMS v Parole Board [1999] NSWCCA 371. In my opinion, it is not possible to categorise the information referred to as false or misleading in substance or to find that the defendant's determination was plainly, not just arguably, wrong.

Orders

49 I make the following orders:

1. Quash the determination of the defendant of 5 April 2007 refusing the plaintiff parole.

2. Direct that the defendant determine the plaintiff’s eligibility for parole in accordance with law.

50 I will hear the parties on the question of costs at a time convenient to counsel by arrangement with my Associate.

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