Background
Background to the litigation
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.
Decision
Reasons for decision
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; ando 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; ando 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.
Ratio Decidendi
Legal Principle Established
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.