JUDGE:	Niall JA
WHERE HELD:	Melbourne
DATE OF HEARING:	1 December 2021
DATE OF JUDGMENT:	9 February 2022
CASE MAY BE CITED AS:	Donohue v Westin
MEDIUM NEUTRAL CITATION:	[2022] VSC 37

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ADMINISTRATIVE LAW – Judicial review – Application for review of decision of Deputy Commissioner, Custodial Operations acting as delegate of the Secretary to Department of Justice and Community Safety not to grant emergency management days – Whether decision maker failed to evaluate the material before her – Whether decision maker failed to give proper consideration to the Charter of Human Rights and Responsibilities Act 2006 – Whether decision maker acted unreasonably in comparing the level of disruption or deprivation suffered while in prison – Proceeding dismissed – Corrections Act 1986 s 58E.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr M Albert
For the Defendant	Ms S Fitzgerald	Victorian Government Solicitor’s Office

HIS HONOUR:

The plaintiff is currently on parole in relation to a sentence of imprisonment for various offences.[1] When he was in prison he applied for emergency management days (‘EMDs’) under s 58E of the Corrections Act 1986 (‘the Act’) which, if granted, would have reduced his non-parole period and/or the overall term of his sentence. They were not granted to the extent that he sought and he now seeks judicial review of the decision to refuse him EMDs on three grounds.
[1]On 25 September 2018, he was sentenced to 4 years and 5 months’ imprisonment. His non-parole period expired on 8 June 2021 and his sentence expires on 8 February 2023.

For the reasons that follow, none of the grounds of review have been made out and the proceeding must be dismissed.

The statutory context

The plaintiff was sentenced to a term of imprisonment which required him to be kept in prison in the custody of the Secretary to the Department of Justice and Community Safety (‘Secretary’).[2] He ceased to be in the Secretary’s legal custody when he was released on parole.[3]
[2]The Act, ss 6 and 6A.
[3]Ibid s 6C.

To an important extent, the conditions of his imprisonment were governed by the Act. Section 58E(1) of the Act provides:

58E Emergency management days
(1) The Secretary may, in accordance with the regulations, reduce the length of a sentence of imprisonment being served by a person or the length of the non-parole period (if one has been fixed in respect of the sentence) on account of good behaviour while suffering disruption or deprivation—
(a) during an industrial dispute or emergency existing in the prison or police gaol in which the sentence is being served; or

(b) in other circumstances of an unforeseen and special nature.

It is also relevant to mention reg 100 of the Corrections Regulations 2019 (‘the Regulations’),[4] which provides:

For the purposes of section 58E(1) of the Act, the Secretary…

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 Donohue v Westin

Details

AGLC: Donohue v Westin [2022] VSC 37
Case: [2022] VSC 37
Decision Date: 9 February 2022

CaseChat Overview and Summary

Donohue brought an application for judicial review of a decision made by the Deputy Commissioner, Custodial Operations acting as a delegate of the Secretary to the Department of Justice and Community Safety. The decision in question was the refusal to grant the applicant emergency management days. The application was heard in the Supreme Court of Victoria. The applicant sought a declaration that the decision was unlawful, an order of mandamus requiring the decision-maker to grant the applicant emergency management days, and an order of certiorari quashing the decision.

The primary legal issues before the court were whether the decision-maker failed to evaluate the material before her, whether the decision-maker failed to give proper consideration to the Charter of Human Rights and Responsibilities Act 2006, and whether the decision-maker acted unreasonably in comparing the level of disruption or deprivation suffered while in prison. The court had to determine if the decision-maker followed the correct legal framework and made the decision based on the relevant considerations.

The court found that the decision-maker had evaluated the material before her and had considered the relevant legislation and policy. The court held that the decision-maker did not fail to give proper consideration to the Charter of Human Rights and Responsibilities Act 2006, as the decision-maker had considered the relevant Charter principles. The court also found that the decision-maker had not acted unreasonably in comparing the level of disruption or deprivation suffered while in prison. The court held that the decision-maker had acted within the scope of their discretion and had made the decision based on the relevant considerations.

The proceeding was dismissed with costs. The court held that the decision-maker had followed the correct legal framework and had made the decision based on the relevant considerations. The court found that the applicant had not established that the decision was unlawful or that the decision-maker had acted unreasonably. The court also held that the decision-maker had not failed to evaluate the material before her or to give proper consideration to the Charter of Human Rights and Responsibilities Act 2006.

Orders