Jackson v Minister for Justice
[2011] FCA 831
•26 July 2011
FEDERAL COURT OF AUSTRALIA
Jackson v Minister for Justice [2011] FCA 831
Citation: Jackson v Minister for Justice [2011] FCA 831 Parties: PETER F JACKSON v MINISTER FOR JUSTICE File number: QUD 536 of 2010 Judge: COLLIER J Date of judgment: 26 July 2011 Catchwords: ADMINISTRATIVE LAW – application pursuant to s 5(1) Administrative Decisions (Judicial Review) Act 1977 (Cth) for order of review – applicant currently serving prison sentence following conviction related to importation of cocaine – federal offence pursuant to s 233B(1) Customs Act 1901 (Cth) – decision of Minister to refuse application to grant licence for early release from prison pursuant to s19AP Crimes Act 1914 (Cth) – Minister found exceptional circumstances existed justifying grant of licence – no dispute that decision was made despite some ambiguity in reasons for decision – whether breach of rules of natural justice – whether failure to distinguish between custody and parole in determining reduction of sentence – whether immigration status of applicant a relevant consideration – whether precedents in respect of discount of sentence were properly considered by Minister Legislation: Administrative Decisions (Judicial Review) Act 1977 (Cth) ss 5(1), 7
Crimes Act 1914 (Cth) s 19AP
Customs Act 1901 (Cth) s 233B(1)(aa)Cases cited: Attorney-General of the Commonwealth v Foster (1999) 84 FCR 582
Cornwell v Attorney-General of the Commonwealth of Australia (1993) 45 FCR 492
Duxerty v Minister for Justice and Customs (2002) FCA 1518
Martens v Commonwealth (2009) 174 CLR 114
Minister for Aboriginal Affairs v Peko Wallsend Ltd (1986) 162 CLR 24
R v Gladkowski (2000) QCA 352
R v Jackson [2003] QCA 31
Zoeller v Attorney-General of the Commonwealth (1987) 16 FCR 153Date of hearing: 4 May 2011 Place: Brisbane Division: GENERAL DIVISION Category: Catchwords Number of paragraphs: 44 Counsel for the Applicant: The Applicant appeared in person Counsel for the Respondent: Mr SA McLeod Solicitor for the Respondent: Australian Government Solicitor
IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY
GENERAL DIVISION
QUD 536 of 2010
BETWEEN: PETER F JACKSON
ApplicantAND: MINISTER FOR JUSTICE
Respondent
JUDGE:
COLLIER J
DATE OF ORDER:
26 JULY 2011
WHERE MADE:
BRISBANE
THE COURT ORDERS THAT:
The application be dismissed with costs to be taxed if not otherwise agreed.
Note:Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
The text of entered orders can be located using Federal Law Search on the Court’s website.
IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY
GENERAL DIVISION
QUD 536 of 2010
BETWEEN: PETER F JACKSON
ApplicantAND: MINISTER FOR JUSTICE
Respondent
JUDGE:
COLLIER J
DATE:
26 JULY 2011
PLACE:
BRISBANE
REASONS FOR JUDGMENT
This is an application for judicial review of a decision of the Minister for Justice pursuant to the Administrative Decisions (Judicial Review) Act 1977 (Cth) (the ADJR Act). In that decision the Minister refused the request of the applicant, Mr Jackson, that he be granted early release from prison under licence pursuant to s 19AP of the Crimes Act 1914 (Cth) (the Crimes Act).
The grounds of the application are:
1.That a breach of the rules of natural justice occurred in making the decision.
2.That the making of the decision was an improper exercise of power in that the Minister failed to take into account relevant considerations.
3.That the Minister failed to properly consider well established legal precedents with regards to applying discounts of sentence for cooperation with the authorities.
Mr Jackson seeks orders that the matter be remitted to the Minister for further consideration according to law, and costs.
As a preliminary issue I note that s 19AP empowers the Attorney-General to grant a licence. However it is not in dispute in this case that, by administrative order, both the Attorney-General and the Minister for Justice are empowered to administer the Attorney-General’s Department, including administration of the Crimes Act. There is extensive authority to support the propositions that the administration of the Attorney-General’s Department is not limited to the Attorney-General, and that the exercise of power pursuant to s 19AP of the Crimes Act is also exercisable by the Minister for Justice: Zoeller v Attorney-General of the Commonwealth (1987) 16 FCR 153 at 165, Attorney-General of the Commonwealth v Foster (1999) 84 FCR 582 at [39]-[41], Martens v Commonwealth (2009) 174 CLR 114 at [26]-[31]. To that extent, there is no dispute that a decision pursuant to s 19AP can properly be made by the respondent the Minister for Justice.
Further, I note that Mr Jackson’s application as filed named the respondent as “the Minister for Home Affairs”. All relevant decisions were made by the Minister in his capacity as the Minister for Justice. Accordingly, at the hearing on 4 May 2011, I ordered by consent that the Minister for Justice be substituted as the respondent to these proceedings.
Background
Mr Jackson, an American citizen, pleaded guilty to importing a quantity of cocaine by yacht into Moreton Bay, Queensland on 3 May 2001 contrary to s 233B(1)(aa) of the Customs Act 1901 (Cth). On 15 August 2002 he was sentenced in the Supreme Court of Queensland to a period of imprisonment of 25 years with a non-parole period of 13 years. Mr Jackson appealed unsuccessfully against the severity of his sentence to the Queensland Court of Appeal (R v Jackson [2003] QCA 31).
Mr Jackson claims that in about August 2007 he was approached by the Australian Federal Police (AFP) to give evidence against one of his co-accused, Mr Velarde Silva. Mr Jackson provided the AFP with a signed statement, and gave evidence at a committal hearing and at Mr Velarde Silva’s trial.
In a letter to the Commonwealth Attorney-General’s Department dated 21 July 2009, Mr Glen Rice SC of the Commonwealth Department of Public Prosecution (CDPP) acknowledged Mr Jackson’s cooperation, the fact that the case against Mr Velarde Silva was heavily reliant on Mr Jackson’s evidence, and supported the grant of licence pursuant to s 19AP of the Crimes Act to reduce Mr Jackson’s prison sentence. Mr Rice stated that the CDPP would have supported a one-third reduction in sentence had Mr Jackson cooperated prior to sentencing. Mr Jackson submits in his affidavit material that there had been an implied promise from the CDPP of a 30% reduction of sentence for testifying at Mr Velarde Silva’s committal hearing and trial.
On 16 September 2009 the solicitors for Mr Jackson, Robertson O’Gorman, wrote to the Federal Offenders Unit in the Attorney-General’s Department requesting the release on licence of Mr Jackson pursuant to s 19AP of the Crimes Act. Section 19AP reads as follows:
(1) Where a person is serving a federal sentence (whether or not a non-parole period has been fixed, or a recognizance release order made, in relation to that sentence), the Attorney-General may grant a licence under this subsection for the person to be released from prison.
(2) A person who is serving a federal sentence of imprisonment (whether or not a non-parole period has been fixed, or a recognizance release order made, in relation to that sentence), or another person acting on that person's behalf, may apply to the Attorney-General for a licence under this subsection for the first-mentioned person to be released from prison.
(3) An application under subsection (2) must:
(a) be in writing; and
(b) specify the exceptional circumstances relied on to justify the grant of the licence.
(4) The Attorney-General must not grant a licence under this section unless he or she is satisfied that exceptional circumstances exist which justify the grant of the licence.
(5) The Attorney-General is not required to consider an application under subsection (2) in respect of a person if an application has been made under that subsection in respect of that person within one year before the first-mentioned application.
(6) A licence in relation to a person:
(a) if the person is subject to a federal life sentence--must specify the day on which the licence period ends, being a day not earlier than 5 years after the person is released on licence; and
(b) if it is proposed that, for any part of the licence period, the person should be subject to supervision--must specify the day on which the supervision period ends, being a day fixed in accordance with the requirements of the definition of supervision period in subsection 16(1).
(7) A licence:
(a) is subject to the condition that the offender must, during the licence period, be of good behaviour and not violate any law; and
(b) if, under subsection (6), the day on which a supervision period ends is fixed in the licence--is subject to the condition that the offender must, during the supervision period, be subject to the supervision of a person specified in the licence and obey all reasonable directions of that person; and
(c) is subject to such other conditions (if any) as the Attorney-General specifies in the licence.
(8) The Attorney-General may, at any time before the end of the licence period, by order in writing, amend a licence by varying or revoking a condition of a licence or by imposing additional conditions on a licence or by any or all of those means.
(9) An amendment of a licence does not have effect until notice of the amendment is given to the offender, being notice given before the end of the licence period.
(10) A licence directing that the offender be released from prison is sufficient authority for the release.
As is clear from the terms of s 19AP, the applicant must satisfy the Minister that exceptional circumstances exist which justify the grant of the licence (cf comments of Foster J in Cornwell v Attorney-General of the Commonwealth of Australia (1993) 45 FCR 492). In its letter, Robertson O’Gorman claimed three exceptional circumstances in relation to Mr Jackson’s matter:
1.The value of Mr Jackson’s evidence given at the trial of his co-accused Mr Velarde Silva, resulting in Mr Velarde Silva’s conviction and sentence to a lengthy term of imprisonment.
2.The resultant risk to Mr Jackson’s safety as an informant within prison and particularly on his release from custody, including a risk to the safety of his family (Mr Jackson has been allegedly subject to death threats from cartels in Mexico and Columbia).
3.Mr Jackson’s failing health and advancing age, given the additional penalty of serving a term of imprisonment in a foreign country (Mr Jackson was diagnosed with a severe and rare form of cancer in 2007, and suffered a stroke in the same year).
Decision of the Minister
In a letter dated 27 October 2010 the Acting Assistant Secretary, Border Management and Crime Prevention Branch, Attorney-General’s Department wrote to Mr Jackson in relation to his application for early release on licence under s 19AP. So far as relevant the letter stated:
After considering all relevant material, including your application and information from the Commonwealth Director of Public Prosecutions and the Australian Federal Police, the Minister decided not to grant a licence for your early release at this time.
However the Minister has asked the Attorney-General’s Department to resubmit the case to him in mid-2012, with a view to determining whether to grant you early release from 2 August 2012, which is one year and nine months prior to the expiry of your non-parole period. Any changes to your circumstances, and your conduct in custody between now and 2012, will be taken into account at that time.
You do not need to make a further application for early release. However, you may make further submissions in support of the application in early 2012 if there are additional matters that you would like the Minister to consider at that time.
The Department will write to you again when the case has been reconsidered in 2012 and a decision on your release has been made…
In a subsequent letter, undated but stamped “Received 07 December 2010”, the Minister noted that Mr Jackson had written on 3 November 2010 asking for a statement of reasons of the Minister’s decision concerning Mr Jackson’s application for early release on licence under s 19AP of the Crimes Act. The Minister’s letter is five pages in length. Key aspects of the Minister’s letter are as follows:
·In making his decision in relation to early release on licence, the Minister considered:
o the application made on Mr Jackson’s behalf by Robertson O’Gorman solicitors dated 16 September 2009;
o comments on that application by the CDPP dated 21 July 2009 and the AFP dated 28 April 2010;
o advice from Queensland Corrective Services on Mr Jackson’s classification and conditions at Wolston Correctional Centre;
o a report from Queensland Offender Health Services 21 April 2010;
o a letter from Mr Jackson’s son received by the Attorney-General’s Department on 2 April 2010;
o remarks of Chesterman J in sentencing Mr Jackson in the Supreme Court of Queensland on 15 August 2002; and
o the judgment of the Court of Appeal of Queensland in R v Jackson [2003] QCA 31.
·The Minister noted that the application for early release was based on compassionate grounds raised by Mr Jackson’s son, as well as Mr Jackson’s:
o post-sentence cooperation with law enforcement officials;
o ill health; and
o imprisonment in a foreign country.
·The Minister considered that Mr Jackson’s post-sentence cooperation with law enforcement authorities was an exceptional circumstance that justified Mr Jackson’s release on licence prior to the expiry of his non-parole period.
·The Minister did not regard the other matters raised in Mr Jackson’s application as constituting exceptional circumstances justifying his early release from prison because:
o none of the medical reports provided indicated that Mr Jackson was suffering from a life threatening illness at the time or that he required medical treatment that could not be provided while he remained in custody;
o imprisonment in a foreign country is an unavoidable result of people committing offences in foreign jurisdictions, and is not an exceptional circumstance;
o separation from family is an inevitable result of imprisonment and affects the families of most prisoners.
·In considering the quantum of sentence discount appropriate in all the circumstances, the Minister had regard to:
o the sentence of 25 years imprisonment (including a non-parole period fixed at 13 years) imposed by the Supreme Court of Queensland;
o sentences imposed on co-offenders;
o the fact that Mr Jackson had cooperated with law enforcement authorities including giving evidence at Mr Velarde Silva’s committal and trial, and the advice from the CDPP that Mr Jackson contributed materially to the conviction of Mr Velarde Silva;
o advice from Queensland Corrective Services that there is a threat to Mr Jackson’s personal safety as a result of his cooperation, that he is serving his sentence in protective custody, that conditions in protective areas of prisons are significantly more onerous than those in prisons generally, and Mr Jackson’s fears for his personal safety and that of his family members in the United States;
o the statement of the CDPP in its letter of 21 July 2009 that had the cooperation occurred before Mr Jackson was sentenced it would have supported the Court reducing his sentence by one-third for his assistance, being a discount of eight years and four months on his 25 year sentence, and the fact that such reductions are publicly known;
o the fact that neither the CDPP nor the AFP made any recommendation about the amount of discount that it might be appropriate for the Minister to grant;
o the fact that previous Ministers have recognised the benefits to law enforcement agencies of post-sentence cooperation and have usually granted a licence under s 19AP of the Crimes Act to prisoners who have provided significant cooperation, and that such discounts were more modest than discounts given by the courts;
o advice from the Department of Immigration and Citizenship that Mr Jackson is liable to be removed from Australia when he is released on parole, and which means that, due to Mr Jackson’s removal from Australia on his release to parole or licence, the parole period of 12 years set by the sentencing court will not be enforced, as it cannot be enforced once Mr Jackson leaves Australia. This is in contrast with the position if Mr Jackson were an Australian citizen, namely that he would have been obliged to obey parole or licence conditions for five years and to be under supervision in the community for three years. In particular the Minister said:
I noted that, even if you are not granted early release, you will serve only 52% of the full sentence imposed by the sentencing Court. The grant of a licence would further reduce the proportion of the sentence that you will actually be required to serve. I noted that if you received a discount comparable to the discount that you may have received had your cooperation occurred pre-sentence and the Court adopted the CDPP’s recommendation of a one-third discount from your head sentence (as outlined at (5), above), you would serve 45% of your head sentence. Accordingly, I noted that, due to your immigration status, you would receive a sentence discount that is significantly greater than the one-third discount from your head sentence that the CDPP suggested that the court may have granted.
However the Minister also noted that if Mr Jackson were denied early release based on the effect that this would have on the sentence to be actually served, this may discourage offenders from providing post-sentence cooperation in future cases, and that this was a matter of particular concern given the high proportion of federal offenders who are liable for removal from Australia on release from prison.
o the conflicting policy aims in favour of, and against, granting Mr Jackson early release, namely the need to encourage offenders to cooperate with law enforcement authorities to secure the conviction of other offenders and the need to maintain public confidence in the criminal justice system by ensuring that sentences set by the courts for serious offences are appropriately enforced. The Minister stated:
I considered that granting you early release on licence would recognise the value of your cooperation and would be consistent with past practice of granting discounts for cooperation. I considered that, if you were not given any discount for your cooperation and that decision became known to other prisoners and their solicitors, they may decide not to co-operate with the authorities, thereby making it more difficult to obtain convictions against serious offenders.
The decision of the Minister was stated in the final paragraph of his letter as follows:
Taking all relevant considerations into account, I decided that your case involves exceptional circumstances that justify your release on licence prior to the expiry of your non-parole period, but that those circumstances do not justify the grant of a licence authorising your release at this time. However I decided that the relevant Minister at the time should reconsider your case in mid-2012, so that he or she could decide at that time whether to grant you a discount of one year and nine months off your non-parole period. This would give you a release date of 2 August 2012, rather than 2 May 2014. I regarded this as a generous executive discount, which would result in you serving only 45% of the head sentence imposed by the sentencing Court. I considered that my decision did not unduly fetter any future decision-maker and would allow the decision-maker to take into account any relevant changes in your circumstances that occur prior to mid-2012.
The ADJR Act
Section 5(1) of the ADJR Act allows a person who is aggrieved by a decision to which the Act applies to apply to the Court for an order of review in respect of the decision on any one or more of the following grounds:
(a)that a breach of the rules of natural justice occurred in connection with the making;
(b)that procedures that were required by law to be observed in connection with the making of the decision were not observed;
(c)that the person who purported to make the decision did not have jurisdiction to make the decision;
(d)that the decision was not authorised by the enactment in pursuance of which it was purported to be made;
(e)that the making of the decision was an improper exercise of the power conferred by the enactment in pursuance of which it was purported to be made;
(f)that the decision involved an error of law, whether or not the error appears on the record of the decision;
(g)that the decision was induced or affected by fraud;
(h)that there was no evidence or other material to justify the making of the decision;
(i)that the decision was otherwise contrary to law.
As I noted earlier in this judgment, the grounds of review advanced by Mr Jackson were:
1.A breach of the rules of natural justice occurred in making the decision.
2.That the making of the decision was an improper exercise of power in that the Minister failed to take into account relevant considerations.
3.That the Minister failed to properly consider well established legal precedents with regards to applying discounts of sentence for cooperation with the authorities.
In substance these grounds of review are referable to s 5(1)(a) (ground 1) and s 5(1)(e) (ground 2) of the ADJR Act.
Contentions of the parties
In respect of ground 1, Mr Jackson submits in summary:
·The Minister’s decision to not grant a licence for release at that time is a breach of the rule of natural justice and procedural fairness in that the Minister did not give adequate regard to fundamentals of the particular case.
·The AFP led the applicant to believe that a one third or greater discount would be forthcoming and that the applicant agreed to cooperate on that basis.
·The Minister’s proposal of a possible release date in August 2012 ignores the probable reduction of the non-parole period that the Court may have granted and which the Minister acknowledges. It amounts to half the anticipated reduction rather than the 33% suggested by the CDPP.
·The Minister did not take into account the recommendation of CDPP.
The respondents claim that Mr Jackson’s contention that there was an implied promise was no more than a mere assumption held by him unsupported by any evidentiary basis. The respondents submit that there has been no breach of natural justice and this ground has no substance.
In respect of ground 2, Mr Jackson submitted in summary that the decision of the Minister was unreasonable and an improper exercise of power because:
·The Minister failed to take into account relevant considerations and took into account irrelevant considerations.
·As a foreigner liable to deportation, his immigration status was clearly evident before the sentencing judge and should not be considered as an impediment to grant a licence.
·Neither deportation nor parole can be considered as a sentence discount. The decision fails to distinguish between parole/deportation time and time served. The potential discount would be less than the range recognised in well established legal precedents. Immigration status should not be a reason not to grant a discount.
·The Minister erred in taking into account the fact that the early release applied for in August 2009 would result in Mr Jackson serving only 35% of the sentence imposed by the Court.
·The Minister’s argument is logically flawed because it assumes that a 25 year sentence is the appropriate sentence in all circumstances, whereas taking into account the cooperation, it is more likely to be 16 years 8 months (accepting what the CDPP states in its letter). This would amount to a custodial period of 8 years, 4 months. The applicant has already served 10 years imprisonment.
·To date, every deportable offender with a similar federal offence and sentence, with neither cooperation nor guilty plea, has been deported after serving the non-parole period of the sentence. Usually 50% of the sentence is imposed.
·By taking into account the parole period as though it were time spent in custody, the Minister inflates the total benefits the applicant could received.
·Mr Jackson submits that there is no reason why reductions of sentence approved by the Minister should be less than those given the Courts. The Minister however does note that neither the CDPP nor the AFP made any recommendation about the amount of discount that might be appropriate, but he ignored the one third reduction suggested by the CDPP and Mr Rice’s offer of information and assistance.
The Minister submitted, in summary:
·Mr Jackson’s allegation concerning the Minister’s failure to take into consideration the distinction between custody and parole is not supported by the fact that the Minister was plainly aware of the sentencing judge’s remarks, particularly the non-parole period.
·The Minister was entitled to have regard to the fact that the applicant was liable to be removed from Australia when released on parole.
·As is clear from the statement of reasons the Minister had regard to established precedents that when sentencing offenders who have cooperated with law enforcement agencies, it may be appropriate for a court to discount the sentence that would have otherwise been imposed by 20-50%.
·The Minister’s reasons when read as a whole are not unreasonable in the Wednesbury sense.
In respect of the third ground Mr Jackson submitted in summary that:
·The Minister failed to properly consider well-established legal precedents by reference to the principles set out in R v Gladkowski (2000) QCA 352 when applying discounts of sentence for substantial cooperation with authorities.
·In declining Mr Jackson’s prompt release, the Minister erred in failing to properly consider the particular circumstances either in terms of cooperation or the inherent dangers involved (as Mr Jackson gave evidence at a public hearing).
The Minister submitted in summary that he did not regard the previous Ministerial decisions as determinative of the approach that the respondent should adopt in Mr Jackson’s case, as they are a guide only.
Finally, the Minister submitted that Mr Jackson has failed to demonstrate any error on behalf of the respondent apt to vitiate the Ministers decision, and that the application should be dismissed with costs.
Consideration
For the purposes of the application before me the defining subsections of s 19AP are subs (1) and subs (4). Specifically, the Minister may grant a licence under subs (1) for the person to be released from prison, but pursuant to subs (4) the Minister must not grant a licence under this section unless he or she is satisfied that exceptional circumstances exist which justify the grant of the licence. It is clear that the Minister has a discretion whether a licence may be given but lacks the power to do so if he or she is not satisfied of the existence of exceptional circumstances.
In this case, the Minister was satisfied that exceptional circumstances existed which justified the grant of the licence. The Minister decided however to refuse, at that time, to grant a licence to Mr Jackson under s 19AP. Despite some ambiguity in the statement of reasons, it is not in dispute that the decision of the Minister was to refuse to grant a licence to Mr Jackson primarily because the Minister considered that an early release meant that Mr Jackson, a US citizen, would not only be immediately deported, but would immediately be, effectively, a free man as the period of parole contemplated by the Court could not be enforced. The Minister also indicated however that he would look favourably on an application for a licence in mid-2012. I am satisfied that the Minister has exercised his discretion pursuant to s 19AP(1), and has not merely deferred a final decision until mid-2012 (which in itself would have supported an application pursuant to s 7 ADJR Act). In this respect I note that there are some similarities between the facts before me and those in Duxerty v Minister for Justice and Customs (2002) FCA 1518 where Hely J found in similar circumstances that, in fact, a decision had been made.
I now turn to the grounds of review.
Ground 1
In substance, Mr Jackson’s claim that the Minister breached the rules of natural justice in making the decision is a complaint that the Minister’s decision fails to fulfil an alleged agreement Mr Jackson made with the AFP and the CDPP. As Mr Jackson claimed in written submissions:
The AFP led the applicant to believe that a one third or greater discount would be forthcoming, and agreed to cooperate on that basis. The applicant fulfilled his obligations in terms of his agreement with the AFP and CDPP and testified at the appropriate committal and trial… These facts were apparently ignored by the Minister’s Department in making their report. The implied promise from the AFP and the applicant’s legitimate expectations were arbitrarily violated.
The Minister states in his reasons for decision that neither the CDPP nor the AFP made any recommendation about the amount of discount that it might have been appropriate for him to grant. However the Minister noted the 21 July 2009 letter of the CDPP, where the CDPP wrote that that it would have supported the Court reducing the sentence by one-third for Mr Jackson’s assistance had the cooperation occurred before sentence.
There is no evidence before me as to the existence of the agreement claimed by Mr Jackson between himself and the CDPP and the AFP, or any implied promise from the AFP. Even if there had been such an agreement (and, indeed, the fact that Mr Jackson was prepared in 2007 to cooperate with the law enforcement authorities and give evidence in proceedings against Mr Velarde Silva suggests that Mr Jackson believed in the existence of some form of agreement) there is no material before me to suggest that the Minister would have been legally bound by it in any way. Any support by the CDPP for reduction in sentence, either before or after the sentence, would have been in the nature of a recommendation rather than a binding commitment on behalf of either the Court (before sentence) or the Minister (after sentence). I make no comment in respect of policy or ethical issues which would have been relevant if implied promises have been made as alleged by Mr Jackson: the consequences which potentially flow from any subsequent failure of Ministerial decisions to give effect to promises (implied or otherwise) made by law enforcement authorities in such circumstances are in the realm of policy, not judicial review. I note however that the Minister in his decision took into account the criminal justice policy consideration of encouraging offenders to cooperate with law enforcement authorities to secure the conviction of other offenders, and the comments of the CDPP in respect of possible reduction in sentence had the cooperation occurred prior to sentence.
Mr Jackson submits that the Minister’s consideration of a possible release date in August 2012 ignores the probable reduction of the non-parole period that the Court may have granted. It is clear however that, in his decision, the Minister had regard to established precedents, which indicate that, when sentencing offenders who have co operated with law enforcement agencies, it is open to the Court to discount sentence by 20-50%.
I am not persuaded that a breach of the rules of natural justice has occurred in respect of the Minister’s decision.
Ground 2
In substance in respect of this ground of review, Mr Jackson contended that the Minister failed to distinguish between custody and parole in determining an appropriate reduction of sentence, and to that extent the Minister in declining to exercise his discretion to grant a licence to Mr Jackson at that time was wrong to take into account the fact that Mr Jackson was a foreigner liable to deportation once released from prison on parole. Mr Jackson also submitted that the Minister failed to take into account the suggestion of the CDPP in respect of a reduction of sentence.
As I have already observed, it is clear from the Minister’s reasons that the Minister was significantly influenced by the consideration that Mr Jackson was not an Australian citizen and that, once released, the parole period of 12 years set by the sentencing Court in respect of Mr Jackson would not be enforced.
The Minister noted that the sentencing remarks did not indicate that the sentencing Court had regard to Mr Jackson’s immigration status when it imposed sentence. The Minister observed that, even if Mr Jackson was not granted early release, he would serve 52% of the full sentence imposed, and that if his cooperation had occurred pre-sentence and he had received a one-third discount as the CDPP had discussed in its letter of 21 July 2009, Mr Jackson would only have served 35% of the head sentence.
In my view the fact that Mr Jackson was liable to be removed from Australia when released on parole, and would therefore not be subject to enforceable parole, was a relevant factor for the Minister to consider when making a decision whether Mr Jackson’s application for a licence for early release ought be granted. That this appeared to be a determinative issue for the Minister in making his decision is not a reason to provide relief to Mr Jackson. It is clear that the weight the Minister gave to this issue in making a decision under s 19AP was properly a matter for the Minister: Minister for Aboriginal Affairs v Peko Wallsend Ltd (1986) 162 CLR 24 at 40-42 per Mason J. As Mason J explained in that case, a court should proceed with caution when reviewing an administrative decision on the ground that it does not give proper weight to relevant factors, lest it exceed its supervisory role by reviewing the decision on its merits (at 42).
Further, I am not persuaded that, in giving weight to the fact that the early release of Mr Jackson would mean that he would not be subject to parole, and taking this factor into account in assessing the time Mr Jackson would be subject to law enforcement procedures in this country, the Minister acted unreasonably so as to warrant relief in respect of his decision.
Mr Jackson also contended that the Minister’s argument was logically flawed because:
·it assumes that a 25 year sentence was the appropriate sentence in all circumstances;
·however, taking into account the cooperation of Mr Jackson, it is more like that he should serve 16 years 8 months (accepting what the CDPP states in its letter dated 21 July 2009), which would amount to a custodial period of 8 years, 4 months;
·the applicant has currently served 10 years.
However, the CDPP also stated, accurately, that in the circumstances it is for the Minister to consider a reduction in sentence under s 19AP of the Crimes Act, as cooperation occurred several years after sentencing, and that Gladkowski was authority that a one-third reduction in sentence would have been appropriate had the cooperation occurred prior to sentencing.
Although Mr Jackson relies on Gladkowski the case is not relevant to a decision by the Minister under s 19AP. That case explains principles relevant to appropriate discount of sentence in the criminal courts. As I have already observed, Mr Jackson unsuccessfully appealed to the Queensland Court of Appeal against his sentence: R v Jackson [2003] QCA 31. I do not consider that the Minister is bound by principles articulated in Gladkowski or was bound to take them into consideration.
I am also not satisfied that the Minister failed to take into account the views of the CDPP in respect of a reduction of sentence. Setting aside the question whether the Minister was bound to take into account the views of either the CDPP or the AFP (and there is nothing under the statute which suggests that he does), it is clear that the Minister did take their views into consideration. However in any event the views expressed by the CDPP in respect of sentence discounts were qualified by reference to cooperation prior to sentencing, which was not the case here.
Ground 3
Finally, I am not satisfied that, as claimed by Mr Jackson, the Minister failed to properly consider well established legal precedents relevant to discounts of sentence for substantial cooperation with authorities. That this claim cannot be substantiated is clear by reference to the Minister’s statement of reasons. I have already noted the Minister’s consideration of the CDPP letter of 21 July 2009 and recognition of principles applicable in respect of cooperation of an accused prior to sentencing. There is also lengthy consideration in the Minister’s statement of reasons of discounts granted by previous Ministers where licences have been granted under s 19AP.
Mr Jackson has submitted that this consideration was flawed because the Minister’s summary did not make any reference to such details as the length of sentences in respect of which previous Ministers had granted licences or the percentage of the sentence by which an early release discounted the period of time in custody. In my view however this allegation is answered by the Minister’s comment in the statement of reasons that he:
did not regard previous Ministerial decisions as determinative of the approach that I should adopt in your case. Previous decisions may serve as a guide only and each case needs to be considered on its merits.
In my view no error is disclosed by this approach.
Conclusion
I am not satisfied that Mr Jackson’s grounds of review are established. The application is dismissed.
I certify that the preceding forty-four (44) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Collier. Associate:
Dated: 26 July 2011
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