Charrouf v Parole Authority of New South Wales

[2016] NSWSC 877

Supreme Court

New South Wales

Medium Neutral Citation:	Charrouf v Parole Authority of New South Wales [2016] NSWSC 877
Hearing dates:	24 June 2016
Date of orders:	24 June 2016
Decision date:	24 June 2016
Jurisdiction:	Common Law
Before:	Campbell J
Decision:	Application dismissed
Catchwords:	ADMINISTRATIVE LAW – probation and parole – no question of principle
Legislation Cited:	Crimes (Administration of Sentences) Act 1999
Cases Cited:	The Queen v Australian Broadcasting Tribunal: Ex parte Hardiman (1980) 144 CLR 13
Category:	Principal judgment
Parties:	Bassam Charrouf (Aka Obeid) (Plaintiff) Parole Authority of New South Wales (Defendant)
Representation:	Counsel: Self represented (Plaintiff)    E Sullivan (solicitor) (Defendant)   Solicitors: Crown Solicitors Office (Defendant)
File Number(s):	2015/36664

Ex tempore Judgment- revised

1. The plaintiff, Mr Charrouf, by an application dated 1 December 2015, seeks relief under the provisions of s 155 of the Crimes (Administration of Sentences) Act 1999.

2. He is serving a sentence for armed robbery imposed upon him in the District Court by his Honour Judge Norrish QC on 10 May 2013. The offending occurred on 16 December 2011 and he was arrested on 26 March 2012. He pleaded guilty at the first available opportunity and came before Judge Norrish for sentence on 10 May 2013. It is unnecessary for me to go into the detail of Judge Norrish's reasons but his Honour imposed a term of imprisonment having a non-parole period commencing on 26 March 2012 and expiring on 25 January 2016 with an additional term of two years and two months expiring on 25 March 2018. In accordance with this sentence the plaintiff was first eligible for parole at the expiration of the non-parole period on 26 January 2016.

3. The question of his eligibility for parole in respect of this sentence was considered by the Parole Authority on 26 November 2015. At that time the Authority had available to it a pre-release report dated 19 October 2015. The Authority determined that it was not satisfied that the plaintiff's release on parole was in the public interest. In summary, the Authority considered that the plaintiff's release would not be appropriate until he had completed programs to address first his violence, secondly, issues of his drug and alcohol use, and thirdly, until he demonstrated his ability to behave appropriately in custody.

4. In relation to the first matter, the Authority considered information contained in the pre-release report that although he had commenced an Intensive Drug and Alcohol Treatment Program (IDATP) in August 2014, he had been excluded from that program for a number of reasons, including for violent behaviour, which had come to the attention of Corrective Services as a breach of prison discipline. The Authority was of the view that he had not undertaken any program to address his violent behaviour, and so far as his compliance with the requirements of prison discipline was concerned, the evidence in the pre-release report indicated that there were 11 institutional misconduct charges. Many of these related to possible drug use, including noncompliance with the provision of mandatory urine samples, and a then recent instance of failing a prescribed urine test. There were also charges of violence, one of which was as recent as October 2014. For those three reasons, parole was refused.

5. The plaintiff requested the Authority to hold a hearing to review its decision. That application was lodged with the Authority on 15 December 2015 which was after the commencement of the proceedings in this Court. On 14 January 2016 the Authority decided that a review hearing, was not warranted. There is some ambiguity on the face of its determination, however. The sole reason given for refusing the hearing was that the plaintiff had not participated in programs to address his history of violence. Having refused the review hearing, the Authority determined "the decision to refuse parole on 26 November 2015 is to stand". It re-stated the same three reasons as it had expressed on 26 November 2015, which I have summarised above.

6. In accordance with the principle arising out of the decision of R v Australian Broadcasting Tribunal: Ex parte Hardiman (1980) 144 CLR 13. The Parole Authority filed a submitting appearance in this Court. That being so, the Attorney General sought leave to intervene (which leave was granted) and she was joined as a second respondent by orders made on 4 February 2016. I express my gratitude to the lawyers at the Crown Solicitor's Office and in particular Miss Sullivan, who appears today, for the very helpful submissions that have been prepared to assist me to decide this case.

7. Very properly, with respect, the Attorney General accepted that by re-stating its reasons given for refusing parole in November 2015, the Authority acted on the basis of misleading information because between 26 November 2016 and 14 January 2016, Mr Charrouf did in fact complete a drug and alcohol program referred to as the EQUIP addiction program, and that that matter was apparently overlooked by the Authority. Therefore to that extent, as I say, it is conceded that the decision of 14 January 2016 to affirm the previous decision was made on the basis of, at least, misleading information.

8. There may be a question about whether that is a material error, given, as I have said, that there were three areas of concern considered by the Parole Authority as the basis of its decision to refuse parole in November 2015. However, I wish to record that when the Crown Solicitor's Office drew the attention of the Authority to the apparent error, the Authority decided an appropriate way to proceed was to conduct a further review. I am informed that that review has been set down for consideration on 30 June 2016. I understand that this is an earlier date for Mr Charrouf's application to be re-considered than otherwise would have been the case in the ordinary course of the Authority's administration of these matters.

9. Mr Charrouf has told me today that he has, in addition to the drug and alcohol program, undertaken an Equip aggression course to deal with his propensity toward violence and he has assured me that he has been able to mend his ways so that there have been no further breaches of prison discipline on his record. I have no reason to doubt what he says, but from the point of view of the Parole Authority's next review, there has been a new pre-release report prepared in accordance with the Act and any material change in circumstances since November, no doubt, will be fully recorded and documented in that report.

10. I have explained to Mr Charrouf that the Supreme Court has no power to consider the merits of the Parole Authority's decision: s 155(4). It may act only on the limited grounds set out in s 155(1). Accordingly, it is inappropriate for me to make any further comment in relation to his application for parole. But given the concession of the Attorney General (which I am satisfied is properly made), it seems to me that Mr Charrouf has made out a s 155(1) ground justifying him bringing these proceedings.

11. The powers of the Supreme Court are found in s 155(2) of the Act which is in these terms:

The Supreme Court may give such directions with respect to [any false,    misleading or irrelevant] information as it thinks fit.

12. The Attorney General has submitted that given that the Parole Authority has, in any event of its own motion, decided to give Mr Charrouf the opportunity to have his application for parole reconsidered next week, that in the exercise of my discretion, I should decline to make any direction. I am of the view that this is a sensible approach.

13. As I have said, there may have been a question, in any event, whether the misleading information as at January 2016 was dispositive of the Authority's exercise of its discretion. I need not descend further into that matter but I am satisfied that s 155(2) confers a discretionary power and in an appropriate case the Court may, notwithstanding the demonstration of a ground, decline to make an order. It seems to me that the best Mr Charrouf could do would be to obtain a direction that the Authority re-consider its decision by reference to the corrected information. I accept the submission of Miss Sullivan that there is no utility of making such a direction in this case, simply because the Authority is convening to re-consider Mr Charrouf's case, and when it does so, it will have regard to all relevant information which is now available to it, given the change in circumstances to which Mr Charrouf has pointed.

14. It is for these reasons I find that the decision of the Parole Authority on 14 January 2016 was made on the basis of misleading information but in the circumstances which have since transpired, I think it appropriate that I make no order.

15. My orders are:      

1. Application dismissed;

2. Direct the Registrar to provide a copy of these reasons to the New    South Wales Parole Authority.

3. No order as to costs.

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Decision last updated: 24 June 2016