Hall v NSW State Parole Authority

[2006] NSWSC 1411

CITATION:	HALL v. NSW STATE PAROLE AUTHORITY & ANOR [2006] NSWSC 1411
HEARING DATE(S):	14 and 15 December 2006
JUDGMENT DATE :	20 December 2006
JURISDICTION:	Administrative Law
JUDGMENT OF:	Hall J at 1
DECISION:	The summons filed on 23 November 2006 is dismissed.
CATCHWORDS:	ADMINISTRATIVE LAW – application for prerogative relief in relation to the decision of the State Parole Authority revoking the plaintiff’s order for parole – alternative form of relief sought in the form of a direction pursuant to s.176 Crimes (Administration of Sentences) Act 1999 that information upon which the Authority made its decision was false and/or misleading – question before the Authority was whether or not to rescind the revocation of the plaintiff’s parole order – no legal error discerned in the Authority’s decision not to rescind the revocation of the plaintiff’s parole order.
LEGISLATION CITED:	Crimes (Administration of Sentences) Act 1999 Crimes (Administration of Sentences) Regulation 2001 Crimes (Sentencing Procedure) Act 1999
CASES CITED:	Attorney General for NSW v. NSW State Parole Authority & Anor [2006] NSWSC 865 Esho v. State Parole Authority [2006] NSWSC 304 Minister for Aboriginal Affairs v. Peko Wallsend Limited (1986) 162 CLR 24 Minister for Immigration & Multicultural Affairs v. Wu Shang Liang (1996) 185 CLR 259
PARTIES:	MADDISON HALL v. NSW STATE PAROLE AUTHORITY & ANOR
FILE NUMBER(S):	SC No. 30160 of 2006
COUNSEL:	Plaintiff: P.I. Lakatos, SC. 1st Defendant: Submitting appearance 2nd Defendant: N. Perram, SC./A. Mitchelmore
SOLICITORS:	Plaintiff: Legal Aid Commission Defendants: I.V. Knight

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

HALL, J.

WEDNESDAY 20 DECEMBER 2006

No. 30160 of 2006

MADDISON HALL v. NEW SOUTH WALES STATE PAROLE AUTHORITY & ANOR

JUDGMENT

1 HIS HONOUR: The plaintiff commenced proceedings by way of summons filed on 23 November 2006. The relief claimed is in the form of orders in the nature of certiorari and mandamus in relation to the decision of the State Parole Authority given on 21 September 2006 revoking the plaintiff’s order for parole.

2 The terms of the order made on 21 September 2006, although not expressed in precise terms (see paragraph [30] of the transcript of the proceedings before the Parole Authority on 21 September 2006), is taken to have been an order which had the effect of confirming the revocation by the Parole Authority of the parole order made on 18 July 2006, the revocation order having been made on 25 August 2006.

3 In addition, in the summons, an alternative form of relief was sought in the form of a direction under s.176 of the Crimes (Administration of Sentences) Act 1999 that the information upon which the Authority made its decision was false and/or misleading.

4 On 1 December 2006, an order was made for the hearing of the proceedings to be expedited.

5 The proceedings were listed before me on 13 December 2006. Mr. P.I. Lakatos, SC. appeared on behalf of the plaintiff and Mr. N. Perram, SC. with Ms. A. Mitchelmore of counsel appeared on behalf of the second defendant, the Commissioner of Corrective Services.

6 On 13 December 2006, a submitting appearance was filed on behalf of the first defendant, the Authority.

7 The plaintiff asserts legal error on the part of the first defendant in a number of respects. The plaintiff’s written submissions were dated 8 December 2006 and these identify the specific grounds relied upon. They are referred to below. The written submissions on behalf of the Commissioner dated 13 December 2006 responded to the plaintiff’s written submissions.

Grounds

8 In the plaintiff’s written submissions, a number of asserted legal errors are identified in the following terms:-

“1. The first defendant reviewed the merits of granting parole to the plaintiff or permitted an appeal against an earlier decision to grant parole contrary to s.175 of the Act.
2. The first defendant had regard to submissions of the second defendant in relation to the plaintiff (who was a serious offender) when it was limited to receiving submissions from the State pursuant to s.153 and s.185 of the Act.
3. The first defendant had regard to the advice of the Serious Offenders Review Council in relation to the plaintiff when the functions of the Review Council pursuant to s.197, were limited to providing advice regarding an inmate’s release to parole and not to the revocation of parole.
4. The first defendant failed to take into account a relevant consideration ie., ‘the need to maintain public confidence in the administration of justice’ pursuant to s.135(2)(b) of the Act.
5. The first defendant failed to take into account relevant considerations, namely, the matters upon which its decision of 18 July 2006 that parole should be granted, were based.
6. The first defendant, in making its decision based upon the new treatment programme, took into account an irrelevant consideration, namely, the most optimum basis upon which the plaintiff could be released to the community.
7. The first defendant applied an incorrect standard of proof.
8. The first defendant construed its functions too narrowly rather than in terms of s.135(2) of the Act.
9. The first defendant took into account an irrelevant consideration, namely, the incorrect submission by Commissioner of Corrective Services at paragraphs 33 and 40 of the Commissioner’s submissions.
10. Alternatively, the decision of the first defendant pursuant to s.130 of the Act was based on information that was false and/or misleading, namely, the incorrect submission by Commissioner of Corrective Services at paragraphs 33 and 40 of the Commissioner’s submissions.”

Background matters

9 On 10 December 1990, the plaintiff was found guilty of murder and sentenced to penal servitude for life. On 29 November 2001, the life sentence was redetermined by McClellan, J. (as he then was) to 22 years imprisonment with a non-parole period of 16 years and six months. The head sentence commenced on 1 August 1989 and will expire on 31 July 2011. The non-parole period expired on 31 January 2006.

10 The plaintiff has been held in full-time detention in accordance with the provisions of Part 2 of the Act. By reason of a determinant sentence having been set by McClellan, J. (as he then was) for the plaintiff pursuant to Schedule 1 of the Crimes (Sentencing Procedure) Act 1999 (NSW), the plaintiff came within a special category of offender serving a sentence of full-time detention, namely, that of “serious offender” (defined in s.3(b) of the Act). The plaintiff’s special status in this respect necessitated the Serious Offenders’ Review Council (SORC) becoming involved in her case.

11 Following upon the redetermination of the plaintiff’s life sentence, her prison classification in March 2002 was reduced from B to C1 (male). The plaintiff remained in the male system until her gender realignment surgery in May 2003 when she was transferred to Mulawa. Her classification changed from category C1 to category C3 (female). The plaintiff has been held in segregation since November 2004, that is to say, she has been confined for up to 23 hours per day, subject to her being permitted to attend work in gaol.

12 The plaintiff relied upon the affidavit of her solicitor, William Graham Hutchins sworn 23 November 2006. That affidavit referred to Exhibits A to S. They comprise documentation relevant to the present proceedings and will be referred to shortly.

The recent history

13 On 8 December 2005, the Parole Authority, in private meeting, issued an intention to refuse parole on the grounds that:-

(a) The plaintiff was unable to adapt to normal lawful community life.

(b) The risk of re-offending.

(c) The need for further psychological counselling.

(d) The unconfirmed post-release plans and the need to participate in an external leave programme (see Exhibit N). Neither the Probation & Parole Service (PPS) nor the SORC recommended parole (see Exhibits L and M).

14 On 16 February 2006 in a public hearing to reconsider that decision, the Parole Authority refused parole. That refusal was based upon the lack of post-release plans and the fact that the plaintiff had not progressed through the prison classification system to permit her to have unescorted leave. Due to the plaintiff’s custodial situation, the prospect of unescorted leave is said to have been unlikely. However, the Parole Authority adjourned the matter until 8 June 2006 to permit a re-consideration and requested a report concerning a structured post-release plan.

15 On 8 June 2006, the Parole Authority in private meeting, issued an intention to grant parole (see Exhibit Q). Both the PPS and SORC recommended that parole be granted (see Exhibit P).

16 On 18 July 2006, the Parole Authority, in a public hearing, granted parole to take effect between 1 and 22 August 2006 (pursuant to s.151(1)(b) of the Crimes (Administration of Sentences) Act 1999 (NSW).

17 On 31 July 2006, the Attorney General filed a summons in this Court challenging the grant of parole by way of prerogative relief and also on the basis of the provisions of s.156 of the Act. By reason of s.151(2), the parole order was suspended until the proceedings were completed.

18 The proceedings were heard by McClellan, CJ. at CL. in mid August 2006. On 25 August 2006, his Honour delivered judgment dismissing the summons.

19 The plaintiff was due for release on 25 August 2006 but, on that date, the Parole Authority revoked the parole order before release by reason, it is said, that the approved accommodation for the plaintiff upon release had been withdrawn as a result of it being revealed in the media.

20 The action taken in this respect was taken pursuant to s.130 of the last mentioned Act and clause 219 of the Regulation on the basis that the plaintiff was adjudged to be “unable to adapt to normal lawful community life” (see Exhibit C).

21 On 5 September 2006, SORC submitted a report to the Parole Authority advising that it was appropriate for the plaintiff to be considered for parole but that the grant of parole not be recommended (see Exhibit F). That recommendation was based upon both a lack of suitable accommodation and the need for the implementation of a treatment strategy to which further reference is made below.

22 On 21 September 2006, a public hearing took place in which the Parole Authority considered whether or not to rescind the revocation of the plaintiff’s parole order (see Exhibit K). This hearing was one authorised under s.174(1) of the Act. The Commissioner of Corrective Services made written and oral submissions, the effect of which was that it was open to the Parole Authority to re-open the question of whether the original parole order should have been made (see Exhibit J). The argument was put that if the matter was re-opened, the Parole Authority should not rescind the revocation. It was said that this would permit the plaintiff to undertake a new treatment programme.

23 The programme or “plan” in question was said, on behalf of the plaintiff, to have been in its formative stages. It was to involve “200 hours of face-to-face clinical work” which would last approximately two years (see Annexure A to SORC report, paragraph 12, Exhibit F).

24 The Parole Authority accepted that it was appropriate to re-open the issue of the grant of parole and determined that the revocation order should stand. Counsel appearing for the plaintiff before the Parole Authority initially accepted that it was open to the Acting Commissioner to consider the merits of the Parole Authority’s decision of 18 July 2006. At a later stage in the hearing, counsel withdrew from that position. The Authority fixed the date of the next parole consideration as 6 December 2007 on the basis that an earlier date would be of no utility.

The statutory scheme under the Crimes (Administration of Sentences) Act 1999 and the Crimes (Administration of Sentences) Regulation 2001

25 The statutory scheme draws a distinction between “offenders other than serious offenders” and “serious offenders”.

26 The provisions constituting the scheme in relation to the grant and revocation of parole are to be found set out in Parts 6, 7 and 8 of the above Act and the 2001 Regulation.

27 The provisions relating to a parole order for a sentence of more than three years for which a non-parole period has been set are contained within Part 6, Division 2 – Parole orders for sentences of more than three years.

Power to make a parole order

28 Section 135, which is found in that subdivision, provides that 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.

29 Section 135(2) specifies that in deciding whether or not the release of an offender is appropriate in the public interest, the Parole Authority must have regard to the matters set out in s.135(2)(a) to (k).

30 Section 135(3) provides:-

“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.”

31 Section 135A provides that a report prepared by or on behalf of the Probation & Parole Service for the purposes of s.135 must address the matters set out in sub-paragraphs (a) to (i) of that section. These include the likelihood of the offender being able to adapt to normal lawful community life (sub-paragraph (a)) and the risk of the offender re-offending whilst on release on parole and the measures to be taken to reduce that risk. I note that the concept in s.135A(a) is also reflected in Regulation 219(1)(b) of the Crimes (Administration of Sentences) Regulation 2001 which is reproduced in paragraph [41] below.

32 In relation to serious offenders, the provisions governing consideration and the grant of parole include the following. In accordance with s.144, on or immediately after giving its preliminary consideration as to whether or not a serious offender should be released on parole, the Parole Authority must formulate and record its initial intention either:-

(a) to make a parole order in relation to the offender; or

(b) not to make such a parole order.

33 Section 147 is concerned with the conduct of a hearing by the Parole Authority of an application under either s.145 of s.146 of the Act.

34 Section 148 sets forth the principles on which the Parole Authority’s final decision is to be made.

35 The State may make submissions pursuant to s.153 of the Act at any time to the Parole Authority concerning the release on parole of a serious offender. Such submissions must be considered by the Parole Authority.

36 Part 6, subdivision 4, contains provisions in relation to statutory appeals. Section 155 is concerned with an application to the Supreme Court by an offender if the Parole Authority decides that an offender should not be released on parole and “the offender alleges that the decision of the Parole Authority has been made on the basis of false, misleading or irrelevant information”.

37 The Attorney General or the Director of Public Prosecutions may make application to the Supreme Court if the Parole Authority decides that a serious offender should be released on parole and the Attorney or Director alleges that the decision of the Parole Authority has been on the basis of false, misleading or irrelevant information.

38 The statutory scheme distinguishes between the revocation of a parole order made before the release of an offender and the revocation of a parole order made in respect of an offender who has been released, but who has contravened a condition of the parole order.

Revocation of parole orders before release

39 Section 130 is a key provision in relation to the revocation of parole orders before release and is central to the determination of the issues in the present proceedings.

40 Section 130 provides:-

“(1) The Parole Authority may, by order in writing and in such circumstances as may be prescribed by the regulations, revoke a parole order at any time before the offender to whom the order relates is released under the order.
(2) Division 4 of Part 7 applies to the revocation of a parole order under this section in the same way as it applies to the revocation of a parole order under Division 3 of that Part.”

41 Clause 219 of the Crimes (Administration of Sentences) Regulation 2001 prescribes as follows:-

“(1) For the purposes of s.130 of the Act, the following circumstances are prescribed as circumstances in which the Parole Authority may revoke a parole order:-
(a) circumstances in which the offender requests that the order be revoked;
(b) circumstances in which the Parole Authority decides, before releasing the offender, that the offender is unable to adapt to normal lawful community life ;
(c) (not relevant to the present proceedings).” (emphasis added)

42 The relevant provision of this clause to the circumstances of the present case is that contained in Clause 219(1)(b) above.

Rights of appeal and power to review

43 Division 4 of Part 7 referred to in s.130(2) is entitled Post-revocation procedures and rights of appeal.

44 Section 173(1) of the Act requires the Parole Authority to cause a notice (a revocation notice) to be served on an offender if the Parole Authority revokes the offender’s parole order. Specific provisions are set out in respect of the service of such notice and the formalities required in respect of it. In the present proceedings, the relevant notice is dated 25 August 2006 and contains a heading entitled “Order revoking a parole order before release”. The notice was in the following terms:-

“After consideration of the case of HALL, Maddison (DOB: 4 December 1963)
The State Parole Authority, pursuant to the provisions of the Crimes (Administration of Sentences) Act 1999 hereby orders that the parole orders made with respect to the offender on 18 July 2006 be revoked for the following reason:-
Unable to adapt to normal lawful community life .”

45 Section 174 is an important provision in relation to the review of a revocation. It is in the following terms:-

“(1) If an offender duly notifies the Secretary of the Parole Authority that the offender intends to make submissions to the Parole Authority, the Chairperson of the Parole Authority must convene a meeting of the Parole Authority, on the date set by the revocation notice, to conduct a hearing of either or both of the following purposes, as the case requires:-
(a) for the purpose of reconsidering the revocation of the … parole order, or
(b) (not relevant to the present proceedings),
(2) At the hearing, or at a hearing conducted at a subsequent meeting, the offender may make submissions to the Parole Authority with respect to the revocation of the … parole order.”

46 Section 175 provides that, after reviewing all the reports, documents and other information placed before it, the Parole Authority must decide whether or not:-

“(a) To rescind the revocation of the … parole order concerned.
…”

47 This was the power that was exercised in the present case on 25 August 2006.

Functions of the Parole Authority

48 Section 183(1) of the Act provides:-

“There is constituted by this Act a State Parole Authority. The Authority is constituted as provided for in s.183(2).”

49 Section 185(1) specifies the functions of the Authority. These include:-

(a) To determine matters with respect to the granting of parole and the conditions on which parole is granted.

(b) To determine matters with respect to the revocation of periodic detention orders, home detention orders and parole orders (Emphasis added).

50 Section 185(2) provides that in exercising all its functions, the Parole Authority:-

(a) Must have regard to the fact that the Commissioner has the care, control and management of all offenders who are held in custody in accordance with Part 2, 3 or 4.

(b) Must consider any submissions made to it by the Commissioner or by any other person or body entitled to make such submissions.

51 The Serious Offenders Review Council (SORC) is established pursuant to s.195 of the Act and its functions are set out in s.197 of the Act.

52 The latter section identifies the following functions:-

(a) To provide advice and make recommendations to the Commissioner with respect to the following:-

(i) the security classification of serious offenders,

(ii) the placement of serious offenders,

(iii) developmental programmes provided for serious offenders.

(b) To provide reports and advice to the Parole Authority concerning the release on parole of serious offenders.

53 When discharging its functions pursuant to s.197(2)(b), the SORC is required to have regard to specified matters. In this respect, s.198(2A) specifies that when exercising its functions under s.197(2)(b) in relation to a serious offender, the SORC must consider the following matters:-

(a) The public interest.

(b) The offender’s classification history.

(c) The offender’s conduct whilst in custody, both in relation to sentences currently being served and in relation to earlier sentences.

(d) The offender’s willingness to participate in rehabilitation programmes and the success or otherwise of his or her participation in such programmes.

(e) Any relevant reports (including any medical, psychiatric or psychological reports) that are available to the SORC in relation to the offender.

(f) Any other matter the SORC considers to be relevant.

54 Section 198(3) also provides, in respect of the public interest as follows:-

“Without limiting the generality of the meaning of public interest in subsections (1) and (2A), the Review Council is to take into account the following matters when considering the public interest:-
(a) the protection of the public, which is to be paramount;
(b) the nature and circumstances of the offence;
(c) the reasons and recommendations of the sentencing court;
(d) the criminal history and family background of the offender;
(e) the time the offender has served in custody and the time the offender has yet to serve in custody’
(f) the offender’s conduct while in custody, including the offender’s conduct during previous imprisonment, if applicable,
(g) the attitude of the offender,
(h) the position of and consequences to any victim of the offender, including the victim’s family,
(i) the need to maintain public confidence in the administration of criminal justice,
(j) the need to reassure the community that serious offenders are in secure custody as long as it is appropriate,
(k) the rehabilitation of the offender and the re-entry of the offender into the community as a law-abiding citizen,
(l) the availability to the offender of family, departmental and other support,
(m) such other factors as are prescribed by the Regulations.”

Consideration

55 As noted earlier, the legislation prescribes separate processes in relation to the making of a parole order and the revocation of a parole order by the Parole Authority.

(a) The process of granting parole – serious offenders

56 As to the former, the process is, as submitted by Mr. Perram, SC., an inclusive one affording both the offender and other interested persons or authorities the opportunity to be heard before a final decision is made in a particular case.

57 The provisions relevant to the granting of parole to the plaintiff as a “serious offender” are in subdivision (3) of Division 2 of Part 6. These provisions provide for a two stage process before a parole order may be made.

58 Firstly, the Parole Authority must consider the serious offender’s case and form an initial intention to grant or refuse parole (s.143, s.144). Secondly, before making a decision in respect of the grant of parole, the Authority “must” give notice to those who may be affected by the order (primarily the offender and the victim, depending upon the initial intention of the Parole Authority: see s.145 and s.146) of its initial intention and provide such persons with an opportunity to make submissions. The State is entitled to make submissions even after the Parole Authority has made a final decision: s.153.

59 The Parole Authority has the power under s.149 to make a final decision as to whether the offender should be released on parole, applying the criteria in s.135 of the Act.

(b) Revocation of parole

60 The process involving the revocation by the Parole Authority of parole also involves a two stage process. It is also one designed to afford the opportunity to interested parties to be heard and to make submissions. Section 130(1) of the Act, as previously noted, is a pivotal provision. It expressly permits the Parole Authority to revoke a parole order “at any time before the offender to whom the order relates is released under the order” (emphasis added).

61 The Parole Authority’s power to revoke a parole order before release is conditional upon the occurrence of “such circumstances as may be prescribed by the regulations” (Clause 219(1) of the Crimes (Administration of Sentences) Regulation 2001. That clause, as earlier noted, has been reproduced in paragraph [41].

62 Section 130(2) stipulates that Division 4, Part 7 of the Act applies to the revocation of a parole order under s.130 in the same way that it applies to the revocation of a parole order under Division 3 of that Part. Section 130 is, accordingly, the source of the post-revocation procedures. The first step involves the giving of notice to the offender if the Parole Authority revokes the parole specifying a date upon which the Authority is to meet, inter alia, “for the purpose of reconsidering the revocation of the … parole order” (s.173(2)(a)).

63 If the offender notifies the Authority that he or she intends to make submissions (as occurred in this case) then the chairperson must convene a meeting of the Authority on the appointed day for the purpose set out in s.173(2)(a) and s.174(1)(a). On that occasion, the offender is entitled to make submissions to the Parole Authority with respect to the revocation of the parole order (s.174(2)).

THE GROUNDS RELIED UPON BY THE PLAINTIFF

Ground 1: The parole authority reviewed the merits of granting parole to the plaintiff or permitted an appeal against an earlier decision contrary to s.175 of the Act

64 The primary submission on behalf of the plaintiff was that the Parole Authority erred in law in holding that the revocation order made by it on 25 August 2006 enabled it to consider the merits of the decision to grant parole on 18 July 2006.

65 In this respect, it was contended (paragraph [51] of the plaintiff’s written submissions):-

“The terms of s.175 direct the Parole Authority to decide whether or not to rescind the revocation of the parole order; they do not provide for an appeal against an earlier decision of the Parole Authority to grant parole. Nor do they allow a review on the merits.”

66 It was further contended on behalf of the plaintiff that a review under s.175 is directed to a consideration of matters relevant to the decision to rescind the revocation and matters on which the revocation is based. It is not, it was submitted, directed to any matter relevant to the grant of parole. It was conceded that there may be an overlap in the facts going to each of the alternatives, but that to permit a review on the merits of granting parole in the first place would be “a wider enquiry than the words of s.175 allow” (paragraph [54] of the plaintiff’s written submissions).

67 The nature and scope of decision-making involved by way of review under s.175 of the Act is a foundational issue in determining Ground 1. In that respect, the following matters are noted:-

(a) The subject for decision under s.175 is the “revocation” of the parole order and whether or not it should be rescinded.

(b) The review under s.175 must necessarily examine the basis for or the grounds of the revocation.

(c) The examination to be undertaken must be one directed to determining whether or not a proper basis existed for the revocation.

(d) The act of revocation of a parole order under s.130 must be based on information that indicates that the offender is “unable to adapt to normal lawful community life” within the meaning of Clause 219 of the Crimes (Administration of Sentences) Regulation 2001 .

(e) An offender in a particular case may be unable to adapt to normal lawful community life for one or more than one reason.

(f) Such reasons may arise from one relevant circumstance or from a combination of circumstances or factors. Those reasons may be personal to the offender (eg., a propensity to violence) or they may be external to the offender (eg., the unavailability of appropriate accommodation or the lack of support services or facilities or a combination of both).

(g) Support services or facilities as referred to in the preceding paragraph may, in a particular case, have existed at the time of making the grant of parole but unavailable for later supervening circumstances (what might be termed “changed circumstances” ).

(h) Alternatively, such support services or facilities may have been assumed at the time of granting parole by the Parole Authority to be available to an offender as at the date he or she is scheduled to be released to parole. However, it may subsequently be revealed that the assumption was erroneous and such services or facilities may, in fact, not be available (what may be termed an incorrect assumption of fact ). In other circumstances, the facilities assumed to be available are available but shortcomings or inadequacies are later identified.

(i) The matters referred to in the preceding paragraphs are each matters that may bear upon both the grant of parole and the revocation of parole and hence are potentially relevant to the merits of either process.

(j) Accordingly, the revocation of a grant of parole may conceivably be based upon changed circumstances or may be founded upon the identification of error having been made at the time the order granting parole was made.

68 In the present matter, the Parole Authority’s decision to revoke parole was prompted by the supplementary report from the Probation and Parole Service dated 21 August 2006, which indicated that the temporary accommodation that had been arranged for the plaintiff upon her release at Foley House was no longer available. The accommodation arrangements had been pivotal in the Parole Authority’s decision to grant parole and it formed the basis for its decision to revoke parole in the sense that without the accommodation, the plaintiff would have been “unable to adapt to normal lawful community life”. It was accepted by the Parole Authority at the hearing held on 21 September 2006 that the accommodation issue had been effectively resolved. This was a matter to which Mr. Lakatos drew attention in the hearing in the present proceedings. He relied upon paragraph [3], p.2 of the SORC report dated 5 September 2006 as evidence of the fact that the accommodation issue had been resolved. That essentially left the issue of the “treatment plan” referred to in paragraphs [22] as the basis upon which the Authority determined that it would not rescind the revocation order.

69 The Parole Authority’s function under s.175 is not restricted to a consideration of facts post-dating the grant of parole. Additionally, it is difficult to conceive, as the above discussion emphasises, how consideration of a revocation order can be divorced from the circumstances relevant to the grant of parole and later facts that may falsify the original basis for the grant. Such “facts” may be relevant to both the validity of the grant of parole and to its later revocation. The initial decision to grant parole may provide, as Mr. Perram, SC. submitted, at least “a yardstick” against which to assess the later revocation.

The review process

70 Section 173 provides for an administrative process in the event that the Parole Authority revokes an offender’s parole order. The process is one involving a “hearing” for the purpose of reconsidering the revocation, inter alia, of a parole order. In a particular case, the offender concerned, following notification of the revocation, has a right to make submissions with respect to it.

71 The process is described in the sub-title to s.174 as a “review”. Section 173(2) of the Act specifies that a revocation notice must set a date on which the Parole Authority is to meet, inter alia, for the purpose of “re-considering the revocation of the … parole order”. The purpose of the “hearing” is stated in s.174(1)(a) and (b) as similarly to be for the purpose of “re-considering the revocation”, in this case, of the parole order.

72 Section 175 simply states that after reviewing “… the reports, documents and other information placed before it, the Parole Authority must decide, inter alia, whether or not ‘(a) to rescind the revocation of the … parole order concerned”.

73 Importantly, in performing its review task of “reconsidering the revocation” and deciding whether or not to rescind a revocation order under s.175(1)(a), it is to be noted that s.185(1)(b) provides that the Parole Authority has the function “to determine matters” and then proceeds to state “with respect to the revocation of, (inter alia), parole orders”.

74 The expression “to determine matters with respect to” a reconsideration of a parole revocation raises the question as to the nature and scope of such “matters”. The expression “with respect to” has a broad reach. The function of the Authority under s.185(1)(b) is not restricted to the particular matters in existence at the time of and upon which the revocation was based. The broader formulation in s.185(1)(b) (“determine matters with respect to”) must be taken as one that intentionally confers a mandate in the Authority to examine and determine all such “matters”.

75 I am of the opinion that the function of the Parole Authority may include a consideration of relevant matters that either existed at the date of the making of the parole order and/or that occur thereafter.

76 In his oral submissions, Mr. Lakatos, SC. emphasised that the submissions made by the Commissioner dated 19 September 2006 did not seek to address what he termed “a change of circumstances”. He contended, rather, that the submissions of the Commissioner went to “deficiencies” in the way in which the Probation and Parole Service had dealt with the matter as well as “deficiencies in SORC’s dealing with the plaintiff’s case … deficiencies in the State Parole Authority previously dealing with the plaintiff’s case … and deficiencies in which the plaintiff’s solicitor was said to have also become involved …” (transcript p.22).

77 Mr. Lakatos referred to the transcript of 21 September 2006 where Mr. Nash, Executive Director, Legal Services and Corporate Counsel stated to the Parole Authority:-

“… I did mention in my submissions at point 14, I had some criticism of the information and advice that had been provided to the Parole Authority by the Serious Offenders Review Council and the Probation and Parole Service but I also said to a certain extent the Department of Corrective Services must accept some responsibility for this situation and what I was alluding to there was that I accept that perhaps, we should have done more to ensure that such a plan was available for this inmate because we have been aware of the complexity of her needs and it’s only been in recent times that plan has been able to be put together.”

78 Mr. Lakatos also referred to the submissions made on behalf of the Commissioner to the effect that incorrect information had been provided to the Authority prior to the decision to grant parole. He also observed that no explanation had been provided to the Authority as to why the plan had only been formulated “in recent times”.

79 In oral submissions, Mr. Lakatos contended that there had been no “change of circumstances”. In this respect, he submitted (transcript p.34):-

“… that, as I have said before, nothing the plaintiff did or didn’t do between July and September 2006 changed her ability to adapt to lawful life. Things remained static. What occurred was outside matters, accommodation and (the) treatment programme came into the equation.”

80 I am of the opinion that, upon its proper construction, s.175 permits a review of matters that were taken into account as specified in s.135 of the Act (as, for example, where later events reveal that such “matters” have been erroneously assessed) and matters in relation thereto. In the present matter, the change of circumstances in which accommodation at Foley House became unavailable, provided a basis upon which the Parole Authority was entitled to rescind the parole order made. The subsequent information as to the “treatment plan” was an additional matter that the Authority was, in my opinion, entitled to take into account in its reconsideration of the revocation order.

81 I, accordingly, am unable to accept the submission made that the Authority erred in law in holding or proceeding upon the basis that the revocation order made on 25 August 2006 enabled it to consider or examine the merits of the decision to grant parole on 18 July 2006 in light of matters such as the “deficiencies” claimed by the Commissioner with respect to the processes that preceded the decision to grant parole and the submissions made as to the “treatment plan” and the need for such a “plan” to be implemented on a full-time custodial basis. I do not, in particular, accept the submissions that the only remedy in cases where “deficiencies” in earlier processes have been revealed lies in the statutory remedies available from the Supreme Court under s.155 and s.156 of the Act. The power to revoke a parole order under s.130/Clause 219 is a comparatively broad and significant power.

Grounds 2 and 3: The Parole Authority wrongly had regard to the submissions of the Acting Commissioner and the Review Council

82 The plaintiff, firstly, challenges the right of the Parole Authority to consider the submissions made by the Acting Commissioner and the advice of the SORC in determining whether to rescind a parole order under s.175.

83 The plaintiff contrasted:-

(a) The express right of the Commissioner to make submissions to the Parole Authority concerning the release on parole of an offender: s.141A ( “offenders other than serious offenders” ).

(b) The fact that s.153(5) (which relates to serious offenders ) indicates there is no “joint right” in the State and the Commissioner to make submissions concerning the release on parole of such offenders.

84 The argument advanced for the plaintiff was that s.185(2) and (3) do not expand the scope of the exercise under s.175. Section 185(2) should not be read as itself conferring an authority to the Commissioner to make submissions at large. The submission was that there was an obligation on the Parole Authority to consider any submissions made to it by the Commissioner only where the latter is specifically authorised or entitled to make submissions. That authority was not to be found in s.185.

85 I am unable to accept the submission. The statute in several places identifies the Commissioner in terms that make it clear that the person occupying that office plays a central role under the statute in relation to matters concerning the release of offenders to parole and otherwise.

86 The fact that s.141A expressly provides a right upon the Commissioner to make submissions in relation to the grant of parole is not supportive of the proposition that there must also be found in the Act an independent conferral of power to make submissions upon the Commissioner with respect to revocation matters.

87 If the plaintiff’s submission was correct, there would be no need for the section to refer to “any submissions made to it by the Commissioner or by any other person or body entitled to make such submissions”. There would be no purpose to including the phrase “by the Commissioner” if it was not intended to confer a right on the Commissioner to make submissions. It would simply have been sufficient to refer “to persons authorised to make submissions”.

88 As to the advice provided by the SORC, the Review Council is constituted by s.195 of the Act and its functions are specified in s.197. In particular, s.197(1)(b) provides that the Council’s functions include:-

“To provide reports and advice to the Parole Authority concerning the release on parole of serious offenders.”

89 By s.198(2A), when exercising such a function in relation to a serious offender, the SORC must consider, inter alia:-

“e. Any relevant reports (including any medical, psychiatric or psychological reports) that are available to the Review Council in relation to the offender.”

90 The Review Council in the present matters was provided with a report by the Department of Corrective Services which was relevant to the rehabilitative prospects of the plaintiff as a serious offender whose parole was, at the time, under consideration by the Parole Authority.

91 That report was influential in giving rise to the advice that was provided by the Review Council to the Parole Authority. It related to the opportunity of the plaintiff to be rehabilitated, having regard, in particular, to her protective status in custody and the requirement for strict supervision.

92 A practical interpretation of the relevant provisions concerning the Review Council and the functions of the Parole Authority would indicate that such material may legitimately be taken into account by the Authority when considering a grant of parole and a question as to a reconsideration of the revocation order. I, accordingly, am unable to accept the submissions made in relation to Grounds 2 and 3.

Ground 4: The Parole Authority wrongly ignored the need to maintain public confidence in the administration of justice

93 In the written submissions for the plaintiff, reliance was placed upon dicta of McClellan, CJ. at CL. in Attorney General for New South Wales v. New South Wales State Parole Authority & Anor [2006] NSWSC 865 at paragraphs [45] and [46] of the judgment in that case.

94 Emphasis was given to the emphasis in the above passages to the interests of justice and what is involved in a consideration of that concept.

95 The plaintiff’s argument in this respect, however, in my opinion must be rejected. It takes as its central premise the matter referred to in s.135(1)(b) “the need to maintain public confidence in the administration of justice”.

96 The plaintiff maintained that the Authority failed to have regard to the need to maintain public confidence in the administration of justice by failing to ensure that she was treated fairly in the circumstances.

97 In this latter respect, it was argued that what prompted the revocation of parole was not any action by the plaintiff but the failure by the Department to provide the treatment programme in question in a timely fashion.

98 The short answer, in my opinion, is that there was only one matter that the power to revoke turned upon and that was the power conferred by s.130. That provision did not bring forward for consideration at that time the administration of justice question being a question that arises in the context of s.135, not s.130. It was, rather, a question under s.130 as to whether the plaintiff was “unable to adapt to normal lawful community life”: Clause 219.

99 Accordingly, Ground 4 impermissibly assumes the relevance of s.135 to the matter that fell for determination under s.130. Section 135 applies to the grant of a parole order, not to its revocation.

Ground 5: The Parole Authority failed to take into account as a relevant consideration matters supporting the original decision to grant parole

100 This ground sought to challenge the Parole Authority’s decision not to rescind its revocation of the plaintiff’s parole upon the basis that it wrongly focused upon the new treatment programme “as the most optimum basis” upon which the plaintiff could be released to the community without regard to the fact that the Authority itself had previously determined, on the balance of probabilities, that the plaintiff’s release to parole was appropriate in the public interest. It was contended that the supplementary report of the SORC dated 5 September 2006 and the report of 4 September 2006 from Kevin O’Sullivan as to the ability of the Department to develop a new treatment programme were effectively regarded as decisive in circumstances in which neither of the reports addressed or invalidated the early conclusions of the Parole Authority that the plaintiff was suitable for release. At the highest, the conclusions expressed in these reports, amounted, so it was argued, to “… no more than the proposition that the treatment programme may benefit the plaintiff but did not call into question the proposition that she was suitable for release in August 2006” (plaintiff’s written submissions, paragraph [76]).

101 Reliance was placed upon the observations of Rothman, J. in Esho v. State Parole Authority [2006] NSWSC 304, in particular at [55] and [56].

102 On behalf of the Commissioner of Corrective Services, it was contended that in deciding not to rescind its revocation of the plaintiff’s parole, the Parole Authority was not obliged to consider all of the matters that it considered in granting parole in the first place. It was observed that its decision to revoke parole was made in the exercise of a completely separate function in respect of which it was guided by s.130 and s.175 of the Crimes (Administration of Sentences) Act 1999 and Clause 219 of the Crimes (Administration of Sentences) Regulation 2001, together with the overriding obligation to consider any submissions made by the Commissioner as provided for in s.185(2) of the Act. In this respect, it was contended (written submissions on behalf of the Commissioner of Corrective Services, paragraph [26]):-

“… although the Parole Authority clearly had regard to its initial decision – indeed it needed to do so in order to place the new information in context – the Authority did not need to weigh the new information against the considerations it was bound to take into account in making the initial decision, which had prevailed upon it to decide in the plaintiff’s favour.”

103 In support of this submission, reliance was placed upon the dicta of Mason, J. (as his Honour then was) in Minister for Aboriginal Affairs v. Peko-Wallsend Limited (1986) 162 CLR 24 at 39 concerning the question of a failure to take into account a relevant consideration where his Honour, inter alia, stated that such a failure can only be made out “if a decision-maker fails to take into account a consideration which he is bound to take into account in making that decision”. In that respect, Mason, J. observed that, where a discretion is unconfined by the terms of the statute, a Court will not find that the decision-maker is bound to take a particular matter into account unless an implication that he is bound to do so is to be found in the subject-matter, scope and purpose of the Act.

Challenge to the parole granted on 18 July 2006

104 In the present proceedings, the plaintiff relied upon the approach taken in Esho (supra) in which Rothman, J. concluded that the approach taken by the Authority in that case was affected by error. In this respect, reliance was placed upon observations by Rothman, J. at [55] and [56].

105 The circumstances of that case are quite different from those of the present. On the evidence in that case, the offender had suitable accommodation and employment and had attended and passed anger management courses. Additionally, the expert reports before the Authority were all to the effect that he had a low to moderate likelihood of re-offending and recommended release on parole subject to the condition of one to one treatment which was unavailable in prison. It was in those circumstances that Rothman, J. concluded “… there is no basis, on the evidence, upon which the Parole Authority could possibly have found the claimant was not ‘able to adapt’ to normal law community life …”.

106 In the present matter, the withdrawal of the offer of accommodation at Foley House was a legitimate matter for the Authority to take into account in the decision not to rescind the revocation order. The fact that Foley House considered that it was necessary to withdraw that support in the circumstances in which it did, was, of course, unfortunate, although, on the evidence, it was a decision that it considered had to be taken in the interests of other inmates.

107 The point at issue in relation to Ground 5, however, is whether the decision made on the review is vitiated by the Authority’s reliance upon the “newly devised treatment plan” referred to in paragraph [5] of the SORC supplementary memorandum of 5 September 2006, given the earlier decision of the Parole Authority on 18 July 2006.

108 Upon close analysis, I do not consider that it can be said that the Parole Authority was “… deflected by an irrelevant consideration, namely the most optimum basis upon which the plaintiff could be released to the community …”.

109 The decision of the Authority given on 21 September 2006 is essentially to be found at p.24 of the transcript of that date. The chairperson commenced the discussion leading to the decision at p.18 of the transcript and referred to the earlier history of the matter. The chairperson gave considerable attention to the submissions made on behalf of the Commissioner and quoted extensively from those submissions which, inter alia, addressed matters that were considered at the hearing conducted on 18 July 2006. The submissions drew attention to apparent deficiencies in the earlier decision-making process in relation to the grant of parole. In paragraph [14] of the Commissioner’s submissions dated 19 September 2006, the following appears:-

“The Parole Authority’s decision relies on the quality of the information provided to it, particularly by the Probation and Parole Service and, in regard to serious offenders, by the Review Council. Unfortunately, in this case, it is my submission that some of the information provided to the Parole Authority by Probation and Parole and the Review Council has been deficient and, to a certain extent, the Department of Corrective Services accepts some responsibility for this situation.”

110 The chairperson in delivering the decision of the Authority on 21 September 2006, accordingly, did have regard, through his consideration of the submissions of the Commissioner, to the earlier history and to the circumstances that led to the decision of 18 July 2006 in favour of parole.

111 In oral submissions, Mr. Lakatos contended that the “new treatment”, as desirable as it may be, merely went to improving the prospects of the plaintiff’s reintegration upon release into the community.

112 In the circumstances, I do not consider that the Authority was bound by the statutory provisions under which it was acting to undertake a balancing exercise between the new information as to the proposed treatment plan against the particular matters relied upon and which led to the decision given on 18 July 2006. The tenor of the advice was that, in the circumstances that existed, there remained a need for the plaintiff who had been segregated for some time and whose case was “a serious complex case” to be provided with treatment in accordance with the “plan”. Those circumstances amounted to advice that such a programme or plan was considered necessary. The advice could not be characterised in terms, as in Esho (supra) as being advice as to “the most optimum basis” upon which the plaintiff could be released to parole. Ground 6 is, accordingly, dismissed.

Ground 7: Incorrect standard of proof

113 This ground is directed to the following paragraph which is recorded at p.7 of the transcript of 21 September 2006:-

“CHAIRPERSON: You may rest assured that this Authority could never release a prisoner of this background unless this Authority were convinced beyond any possible reasonable doubt that every possible check and balance had been placed. We’ll leave that aside for the moment because I think that I am probably talking to the converted when I say that there is no prospect of a parole order being made today simply by reason of the lack of accommodation …” .

114 The criticism in respect of this statement is, firstly, that s.135(1) sets the standard of proof to be applied by the Parole Authority in granting parole as satisfaction “on the balance of probabilities, that the release of the offender is appropriate in the public interest”.

115 It was submitted that the approach reflected in the above statement by the chairperson exhibits error for two reasons. Firstly, by the application of a higher standard of proof than the Act (by reason of s.135(2)) requires. Secondly, because the comment is directed to “issues of checks and balances on an offender’s situation upon release and not to, for example, matters which disadvantage an offender such as proof of the various offences against the plaintiff …” (plaintiff’s written submissions, paragraph [81]).

116 I do not consider it can be said that the above statement, which occurred in the course of an exchange during submissions with counsel for the plaintiff, can be said to have formed part of the reasons for decision of the Tribunal commencing at p.18 of the transcript.

117 It is necessary for the Court to bear in mind the principle that it is important that this Court not overanalyse expressions employed in a decision of a tribunal as if it were a judgment of the Court. In this respect, the High Court cautioned in Minister for Immigration and Multicultural Affairs v. Wu Shang Liang (1996) 185 CLR 259 at 272 (Brennan, CJ., Toohey, McHugh and Gummow, JJ.):-

“These propositions are well settled. They recognise the reality that the reasons of an administrative decision-maker are meant to inform and not to be scrutinised upon over-zealous judicial review by seeking to discern whether some inadequacy may be gleaned from the way in which the reasons are expressed …”

118 As I have previously stated, the observations made by the chairperson as extracted above, did not, in any event, form part of the decision subsequently given.

119 Accordingly, I am of the opinion this ground should be dismissed.

Ground 8: Parole Authority erred in construing its responsibilities too narrowly

120 At p.20 of the transcript of 21 September 2006, the chairperson, in the course of providing the reasons for the Authority’s decision, stated (at p.29):-

“Without going to the particular sections of the relevant legislation, this Authority must bear in mind that its basic responsibilities are directed to the public safety and the good of the community …”

121 It was contended on behalf of the plaintiff that this was a narrow formulation of the Authority’s basic responsibilities in terms of public safety and the good of the community and fails to acknowledge or give weight to the matters set out in s.135(1) and (2) (particularly (2)(b), (f) and (g)). Reliance was placed upon the finding by Rothman, J. in Esho (supra) at [49] that the test propounded by the Authority in that case that it “may only make a parole order if it is in the interests of the community” was an incorrect test.

122 It is to be borne in mind that the point addressed by Rothman, J. in the last-mentioned case arose in the context of an application for parole and that the Parole Authority had incorrectly stated the test that was to be applied in relation thereto under s.135 of the Act. The incorrect formulation of the test was a matter which was directly material to the question for determination in that case but not in the present.

123 In the context of the present matter involving the application of s.130, the question was whether there was material that supported the proposition that the plaintiff was an offender who was unable to adapt to normal lawful community life within the meaning of Regulation 219(1)(b).

124 It is necessary to take the context in which the above statement by the chairperson appears. In the paragraph which precedes it, there is reference made to the submission, which the chairperson stated he considered should be taken as a submission made by the plaintiff herself, which advanced the proposition that the proposed treatment programme was no more than a pretext or an expediency for the decision to revoke the parole. The chairperson in the statement in question, is evidently responding to that submission. In doing so, he adverted to the issue of “the public safety and the good of the community”, having regard to the position of the Authority having been furnished with information that there existed what he described as “a valuable course that may and indeed it is said to be likely to assist the re-integration of Ms. Hall eventually into the community” (t.20 to 21). Implicitly, the statement was referring to a proposition that it was not in the interests of the community for the plaintiff to be released to parole if, as the information suggested, there was a need for the plaintiff to have the benefit of the proposed treatment plan.

125 I do not consider that the reference to the issue of public safety and the good of the community as “basic responsibilities” of the Authority can be said to mis-state or misconstrue the function required of the Authority. The concept in Clause 219(1)(b) does, in my opinion, raise issues as to the capacity of an offender to make an adaptation necessary for an offender to participate in community life in a way which could be said to be both “normal” and “lawful”. Issues of “public safety” and “the good of the community” are not concepts, in my opinion, that are foreign to the matters to which Clause 219(1)(b) directs attention.

126 Accordingly, I do not consider that the chairperson’s statement is reflective of error on his part.

Grounds 9 and 10: Irrelevant consideration, namely, the incorrect submission by Commissioner of Corrective Services at paragraphs [33] and [40] of the Commissioner’s submissions and false/ misleading information

127 In the Commissioner’s submissions to the Authority, the following statements appear:-

“33. In relation to the Review Council’s report of 28 April 2006, it is submitted that the Review Council provided irrelevant information to the Parole Authority; namely, the Review Council’s advice that ‘any further time spent by the inmate in full-time custody is unlikely to advance her rehabilitation’.”

128 Paragraph [40] of the Commissioner’s written submissions stated:-

“40. Further, the Review Council’s advice of 28 April 2006, that ‘… it would seem to be in both the inmate’s and the community’s interest that she be released on parole under such strict supervision, rather than serve out the remainder of her term in custody and then be released without supervision …’ is misleading because it falsely suggests that if Ms. Hall is not released on parole now she will have to serve the remainder of her sentence in custody.”

129 On behalf of the plaintiff, Mr. Lakatos, SC. observed that the Parole Authority specifically quoted paragraph [33] as well as paragraphs [34] to [38] and [40] and [44] of the submissions with approval.

130 Such advice from the Review Council was authorised by s.197(2)(b) which is in the following terms:-

“(1) The Review Council has such functions as are conferred on it by or under this or any other Act or law.
(2) In particular, the Review Council has the following functions:-

…
(b) to provide reports and advice to the Parole Authority concerning the release on parole of serious offenders.”

131 Section 198(2A) of the Act sets out the matters to be considered by SORC in the exercise of its functions under s.197(2)(b) in relation to a serious offender.

132 The submissions which the Commissioner may make in accordance with the provisions of s.185(2)(b) are not restricted to prescribed or particular matters. No doubt, that said, the submissions should relate to relevant matters.

133 The issue raised in paragraph [33] essentially related to the question as to whether further time spent in full-time custody was or was not likely to advance the plaintiff’s rehabilitation. The Commissioner was taking issue with the Review Council’s conclusion that it was unlikely to advance her rehabilitation asserting that that amounted to “irrelevant information to the Parole Authority”.

134 The question as to further time spent in custody was essentially linked in the submissions to the question of the availability of the treatment programme which has been recommended for the plaintiff and that time spent in custody would enable the programme to be implemented. Given the terms of s.185(2)(a) and (b), it was open, in my opinion, for the Commissioner to express a view as to the matter relied upon by the Review Council. I do not consider that, insofar as the Authority had regard to and/or approved the statement of the Commissioner, that that constituted legal error.

135 In relation to the Commissioner’s submissions in paragraph [40] of the written submissions, it was contended that the advice that it would be both in the interests of the community and the inmate to be released on parole rather than serve out the remainder of her term in custody was misleading because it falsely suggested that if she were not released on parole now, she would serve the remainder of her term in custody. It is said that that assertion also cannot be sustained and that it contained a proposition which was misleading or false

136 Whilst the expression in paragraph [33] “provided irrelevant information” may well not be an appropriate formulation or mode of expression, the essential point made, was not as contended in the written submissions that advice concerning an inmate’s rehabilitation was irrelevant information but that the statement, in the Commissioner’s opinion, was not to the point in light of the later information that came forward in September 2006 as to the “proposed treatment strategy”.

137 In relation to the statement in paragraph [40] of the Commissioner’s written submissions, whether or not the statement can be said to be accurate or not, it was not a matter which assumed decisive importance.

138 Again, the mode of expression in paragraph [44] “the irrelevance of the information …” may be criticised, but the essential point that the paragraph would appear to make is that the information provided by the Review Council to the Parole Authority on 28 April 2006 had effectively been displaced or offset by the later information as to the proposed treatment strategy. It is to be borne in mind that the process involved the performance of the Parole Authority of its function “to determine matters with respect to the revocation of … parole orders” which permits a degree of flexibility such that the Parole Authority is entitled to have regard to matters that may be raised by the Commissioner even if such matters were not evident at the time of the grant of parole.

139 I do not, therefore, consider that the Parole Authority, in the respects contended for, took into account irrelevant considerations which resulted in legal error.

General matters

140 Mr. Lakatos, in his written submissions (paragraph [94]), observed that the events in question and their timing exhibit a significant degree of unfairness in the way the plaintiff has been dealt with. He referred to the Parole Authority’s “unquestioning acceptance of the matters put to it relating to the treatment course – as it stated it was to a significant degree not only obliged but intellectually dependent to some extent on the views of those conducting the course and the consequential decision to defer the next parole consideration to 6 December 2007 works a significant injustice on the plaintiff”.

141 Whilst it might be said as a matter of general observation that a decision to grant parole followed by advice to an offender that he or she will be eligible for release on a certain date which is then reversed by the revocation of such a grant is a situation that should only arise in compelling circumstances, the nature of the present proceedings confines the question for this Court to an issue as to whether the decision of the Parole Authority not to rescind the revocation of parole is vitiated by legal error. This Court, in other words, is not involved in a review of the decision of the Parole Authority on the merits. That is a matter which is the statutory responsibility of the Parole Authority. No doubt the way in which that responsibility is discharged is potentially a matter that can affect the administration of justice in the manner in which the parole system is administered.

142 In the present matter, the Authority has determined that it should act upon the information available to it and upon the submissions made on behalf of the Commissioner. Ultimately, the responsibility remains with the Authority to determine whether or not the “proposed treatment strategy” intended for the plaintiff is one that will be properly developed and implemented by the specialists referred to in the memorandum written by Mr. O’Sullivan dated 4 September 2006 who it seems are yet to address the actual content of the treatment plan considered necessary and suitable for the plaintiff and the proper and appropriate time scale for its implementation having due regard to the plaintiff’s legitimate interests and the public interest.

Orders

143 The summons dated and filed 23 November 2006 is dismissed.

144 The proceedings may be listed by arrangement with my associate for the purposes of any ancillary or consequential orders.

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