DYS21 v Attorney-General (Cth)

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FEDERAL COURT OF AUSTRALIA

DYS21 v Attorney-General (Cth) [2021] FCA 1331  

File number: NSD 717 of 2021
Judgment of: BROMWICH J
Date of judgment: 1 November 2021
Catchwords: ADMINISTRATIVE LAW – application for judicial review of Commonwealth Attorney-General’s decision to refuse to grant parole – whether the making of the decision was an improper exercise of the power conferred or a jurisdictional error occurred in connection with the making of the decision – held: decision set aside by reason of improper exercise of power and corresponding jurisdictional error.  
Legislation:

Administrative Decisions (Judicial Review) Act 1977 (Cth) ss 5(1)(a), 5(1)(e)

Crimes Act 1914 (Cth) pt IB div 5 subdiv A, ss 19AKA, 19AL(1)

Criminal Code (Cth), contained in the Schedule to the Criminal Code Act 1995 (Cth) ss 474.19(1)(a)(iiii), 474.20(1)

Judiciary Act 1903 (Cth) s 39B

Cases cited:

Carrascalao v Minister for Immigration and Border Protection [2017] FCAFC 107; 252 FCR 352

Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd (1994) 49 FCR 576

Khazaal v Attorney-General (Cth) [2020] FCA 448

Lodhi v Attorney-General (Cth) [2020] FCA 1383

Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24
Division: General Division
Registry: New South Wales
National Practice Area: Federal Crime and Related Proceedings
Number of paragraphs: 41
Date of hearing: 1 October 2021
Counsel for the Applicant: G Lewer
Solicitor for the Applicant: JE Justice Legal
Counsel for the Respondent: T Glover
Solicitor for the Respondent: Australian Government Solicitor

ORDERS

NSD 717 of 2021
BETWEEN:

DYS21

Applicant
AND:

ATTORNEY-GENERAL OF THE COMMONWEALTH

Respondent

ORDER MADE BY:

BROMWICH J

DATE OF ORDER:

1 NOVEMBER 2021

THE COURT ORDERS THAT:

1.The respondent’s refusal of parole decision made on 22 June 2021 be set aside.

2.The respondent reconsider the decision to make, or refuse to make, an order that the applicant be released on parole in accordance with section 19AL of the Crimes Act 1914 (Cth).

3.The proceeding be adjourned for a case management hearing at 9.00 am on 29 November 2021, or such other date as may be fixed, at which time the respondent:

(a)advise the Court as to whether a decision has been made in accordance with order 2; and

(b)if such a decision has not been made, show cause why an order in the nature of a writ of mandamus should not be made, compelling the respondent to make or refuse to make an order that the applicant be released on parole in accordance with subsection 19AL(1) of the Crimes Act 1914 (Cth) within a stipulated time, having regard to the terms of that provision.

4.Either party or both parties have leave to approach the associate to Justice Bromwich by email to seek any variation or vacation of order 3.

5.The respondent pay the applicant’s costs of and incidental to the proceeding, including the costs of any future case management hearing.

Note:   Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.


REASONS FOR JUDGMENT

BROMWICH J:

Introduction

  1. On 17 April…

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Details
Case
[2021] FCA 1331
Decision Date

CaseChat Overview and Summary

In the case of DYS21 v Attorney-General (Cth), the Federal Court was asked to review the decision of the Commonwealth Attorney-General to refuse parole to the applicant, who was serving a sentence for possessing and controlling child pornography material. The applicant argued that the decision was an improper exercise of power and that a jurisdictional error occurred. The key issue was whether the Attorney-General was properly informed about the risks to the community associated with parole and the period after the sentence was served.

The court found that the Attorney-General's decision-making process was flawed due to misleading information. The recommendation memorandum suggested that there were no risks if parole was refused, which ignored the potential risks to the community after the sentence was served. The court held that the Attorney-General's decision was influenced by this misleading information, and as such, the decision was not properly informed. The court set aside the decision and ordered the Attorney-General to reconsider the parole decision.

The court further ordered that the proceeding be adjourned for a case management hearing to ensure that the Attorney-General made a decision in accordance with the law. The applicant was granted costs of the proceeding, and either party was allowed to seek any variation or vacation of the case management hearing order by email. The decision highlights the importance of ensuring that decision-makers are properly informed to avoid jurisdictional errors and improper exercises of power.

Orders

Orders of the court

1. The respondent’s refusal of parole decision made on 22 June 2021 be set aside.

2. The respondent reconsider the decision to make, or refuse to make, an order that the applicant be released on parole in accordance with section 19AL of the Crimes Act 1914 (Cth).

3. The proceeding be adjourned for a case management hearing at 9.00 am on 29 November 2021, or such other date as may be fixed, at which time the respondent:

(a) advise the Court as to whether a decision has been made in accordance with order 2; and

(b) if such a decision has not been made, show cause why an order in the nature of a writ of mandamus should not be made, compelling the respondent to make or refuse to make an order that the applicant be released on parole in accordance with subsection 19AL(1) of the Crimes Act 1914 (Cth) within a stipulated time, having regard to the terms of that provision.

4. Either party or both parties have leave to approach the associate to Justice Bromwich by email to seek any variation or vacation of order 3.

5. The respondent pay the applicant’s costs of and incidental to the proceeding, including the costs of any future case management hearing.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

The reference to the protection of the community in s 19AKA(a) is not in terms, or by any reasonable implication, confined to the period of the prison sentence, including in particular any part served on parole. Rather, it extends to the period after a sentence has been served, and the offender is at liberty in the community without any conditions or restrictions associated with that sentence. I did not understand this interpretation of s 19AKA(a) to be in dispute, having raised it at the hearing without any disagreement being expressed by counsel for the Attorney-General.The decision-making process and result At the time of making the decision to refuse the applicant parole, the Attorney-General had before her a recommendation memorandum from an officer of the Attorney-General’s Department dated 22 June 2021 principally recommending that parole be granted, but also offering the alternative of refusal, and listing the documents that were attached as follows:• Attachment A – Draft parole order• Attachment B – Draft parole refusal notice• Attachment C – Departmental analysis• Attachment D – Sentencing remarks• Attachment E – Statement of agreed facts• Attachment F – Pre-release report • Attachment G – Department’s letter to [the applicant]• Attachment H – Submission package provided on behalf of [the applicant] After describing the offences and sentence, the text of the recommendation memorandum was as follows (emphasis added to the last sentence):Key Issues: On 17 April 2019, the District Court of NSW sentenced [the applicant] to a term of 3 years and 6 months’ imprisonment for one count of possessing or controlling child pornography material for use through a carriage service contrary to subsection 474.20(1) of the Criminal Code Act 1995 [sic] (the Criminal Code), and one count of using a carriage service to solicit child pornography material contrary to subparagraph 474.19(1)(a)(iiii) of the Criminal Code. The court specified a non-parole period of two years and three months which expires on 16 July 2021. [The applicant]’s head sentence will expire on 16 October 2022.The department considers that the purposes of parole, being [the applicant]’s rehabilitation, his successful reintegration into the community and the long-term protection of the community, would best be served by his release on parole at this time. This is consistent with the recommendation of Corrective Services NSW. This would allow him to engage with appropriate treatment and programs and be supervised in the community while subject to appropriate conditions. If released, [the applicant] would be on parole until his head sentence ends on 16 October 2022.If you disagree with the recommendation to release [the applicant] on parole then the department considers that you may refuse his release on parole on the grounds of the nature and circumstance of the offending, his status as an untreated sex offender and the possible risk to community safety posed by his release. [The applicant] will be considered for release on parole once more before his sentence expires.Key Risks and Mitigation: Based on the information received, the department considers that the risk to the community presented by [the applicant]’s release on parole will be effectively mitigated by parole conditions and supervision. Alternatively, there are no risks if parole is refused.

Ratio Decidendi

Legal Principle Established

The Attorney-General was legally entitled to take the decision to refuse parole in these circumstances notwithstanding the potentially greater risk to community safety posed by that course. She was entitled to conclude that elimination of risk to the community in the short term was more important than managing risk to the community in the longer term going well beyond the duration of the sentence. However, it was most important that she was informed that this was the true nature of the dichotomy that she was faced with based on the material that was before her. It was only fair to her that such a decision was properly informed, or at least not actively misinformed. Consideration Consideration of the Attorney-General’s reasons for refusing parole, in the context of the advice provided and in part clearly followed as to the alternative recommendation that parole be refused, commences with the conclusion to the recommendation memorandum. As noted above, the recommendation memorandum passage reproduced above concludes by stating:Based on the information received, the department considers that the risk to the community presented by [the applicant]’s release on parole will be effectively mitigated by parole conditions and supervision. Alternatively, there are no risks if parole is refused. The following observations may be made about that paragraph. The reference in the first sentence to the risk to the community being effectively mitigated by release on parole fails either to acknowledge, or to dispute, the views of CSNSW that parole conditions and supervision would not just mitigate risk to the community during the parole period, but be more likely to reduce the risk to the community in the long term. To that extent, the Attorney-General made her decision based on misleading information. The second sentence then seriously compounds the problem. It focuses on elimination of risk for the balance of the sentence of imprisonment by ensuring that most, if not all of it, would be served in custody. It simultaneously, albeit not obviously, ignores or perhaps overlooks what might then follow after the sentence was concluded when there was no mechanism for conditions or supervision upon release. The Attorney-General was free to make a decision upon that basis, and take that risk, but it had to be one that was properly informed. Otherwise the false statement in the second sentence above might well have been taken literally by her, there being little by way of context to suggest she should approach it otherwise. That is, she might reasonably have understood that she was being told that there was no risk at all in refusing parole, when that was only true for the balance of the sentence to be served. It was plainly not the case when the period after completion of the sentence was taken into account, a temporal dimension that was wholly overlooked or ignored, or perhaps simply not understood. There was no evident and intelligible justification for the final statement in the recommendation memorandum that there was no risk in refusing parole. It is not a sentence that is assisted by a beneficial reading because of the real risk of it being misunderstood. While that was not repeated in the reasons given by the Attorney-General for refusing parole, it is impossible to separate it from the reasons that were given, because of the importance of that obviously material error. At the very least it helps to explain why [4] of those reasons made no reference to the risk to community safety in not granting parole.