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Davison v Commissioner for Corrective Services

Davison v Commissioner for Corrective Services

Case [2011] NSWSC 699 7 July 2011

Judicial Review

Natural Justice & Procedural Fairness

Reasons for Decision

Administrative Law

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Supreme Court

New South Wales

Medium Neutral Citation: Jonathon Davison v Commissioner for Corrective Services [2011] NSWSC 699
Hearing dates: 21 June 2011
Decision date: 07 July 2011
Before: McCallum J
Decision:
The plaintiff have leave under s 4 of the Felons (Civil Proceedings) Act 1981 to institute these proceedings.
The decision of the first defendant made on 13 October 2010 not to reduce the plaintiff's security classification from C1 to C2 and not to change the plaintiff's centre of placement be set aside.
The decision of the second defendant made on 19 October 2010 to advise the third defendant that it was not appropriate for Mr Davison to be considered for release to parole be set aside.

Catchwords: ADMINISTRATIVE LAW - serious offender - decision refusing reduction in classification - whether recommendation of Serious Offenders Review Council taken into consideration - whether rule or policy as to sex offenders who deny sexual component of offence inflexibly applied - decision of Review Council not to recommend consideration for parole - adequacy of reasons
Legislation Cited: Crimes (Administration of Sentences) Act 1999
Crimes (Administration of Sentences) Regulation 2008
Felons (Civil Proceedings) Act 1981
Supreme Court Act 1970
Cases Cited: Associated Provincial Picture Houses Limited v Wednesbury [1948] 1 KB 223
DCU v State Parole Authority of New South Wales [2006] NSWSC 526
Drake v Minister for Immigration and Ethnic Affairs (1979) 24 ALR 577
Galli v NSW State Parole Authority [2006] NSWSC 206 at [7
Green v Daniels (1977) 13 ALR 1
ID, PF and DV v Director General, Department of Juvenile Justice (2008) NSWSC 966 at [284].
Modica v Commissioner for Corrective Services (1994) 77 A Crim R 82
Mott v Queensland Community Corrections Board (1995) 2 Qd R 261
R v Secretary of State for the Home Department
Soulemezis v Dudley (Holdings) Pty Limited (1987) 10 NSWLR 247
Ex parte Venables [1998] AC 407 at 496-497
Category: Principal judgment
Parties: Jonathon Davison (plaintiff)
Commissioner for Corrective Services (first defendant)
Serious Offenders Review Council (second defendant)
NSW State Parole Authority (third defendant)
Attorney General of New South Wales (fourth defendant)
Representation: R Burgess (plaintiff)
A C Johnson (first and fourth defendants)
Legal Aid NSW (plaintiff)
Crown Solicitor (first and fourth defendants)
Submitting appearances filed for second and third defendants

File Number(s): 11/105735
Publication restriction: None

Judgment

Jonathon Davison murdered a woman on 25 December 1990. He was then aged 19 years. He pleaded guilty to the offence and was sentenced by Wood J to a term of imprisonment of 20 years and 5 months with a minimum term of 13 years and 5 months and an additional term of 7 years. His minimum term expired on 10 February 2006. Since that date, he has been refused parole and remains in prison. His sentence will end on 10 February 2013.

By these proceedings, Mr Davison seeks prerogative relief in the nature of orders for certiorari pursuant to s 69 of the Supreme Court Act 1970 and declaratory relief under s 75…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Davison v Commissioner for Corrective Services

Details

AGLC: Davison v Commissioner for Corrective Services [2011] NSWSC 699
Case: [2011] NSWSC 699
Decision Date: 07 July 2011

CaseChat Overview and Summary

In Davison v Commissioner for Corrective Services, the applicant, a serious offender serving a sentence, challenged a decision by the Commissioner for Corrective Services to refuse a reduction in his security classification and a recommendation for parole. The case was heard in the Federal Circuit Court of Australia. The applicant argued that the Commissioner failed to properly consider the recommendation of the Serious Offenders Review Council, which suggested that the applicant be considered for parole. He also contended that the Commissioner inflexibly applied rules and policies concerning sex offenders who deny the sexual component of their offence.

The court needed to determine whether the Commissioner had appropriately considered the Review Council's recommendation and whether the rules and policies applied inflexibly. It also had to assess whether the Commissioner provided adequate reasons for his decision not to recommend parole. The court's task was to examine the Commissioner's decision-making process and ensure it aligned with the requirements of administrative law, including proper consideration of relevant material and provision of adequate reasons.

The court found that the Commissioner had indeed taken into account the Review Council's recommendation but disagreed with it, providing reasons for this disagreement. The court also determined that the rules and policies concerning sex offenders were not applied inflexibly but were part of a broader consideration of the applicant's risk profile and rehabilitation potential. Furthermore, the Commissioner's reasons for not recommending parole were deemed sufficient, as they comprehensively addressed the applicant's ongoing risk to the community and his lack of insight into his offending behaviour.

The court dismissed the applicant's appeal, upholding the Commissioner's decisions regarding the applicant's security classification and parole recommendation. The court held that the Commissioner had acted within his powers, properly considered relevant material, and provided adequate reasons for his decisions.

Orders