NEIL ROBERTSON (as Delegate of the Secretary to the Department of Justice and Regulation)
First Defendant
COMMISSIONER FOR CORRECTIONS
Second Defendant
SECRETARY TO THE DEPARTMENT OF JUSTICE AND REGULATION
Third Defendant
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JUDGE:
McDonald J
WHERE HELD:
Melbourne
DATE OF HEARING:
10, 16 and 31 May 2019
DATE OF JUDGMENT:
26 June 2019
CASE MAY BE CITED AS:
Kheir v Robertson & Ors
MEDIUM NEUTRAL CITATION:
[2019] VSC 422
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ADMINISTRATIVE LAW – Application for judicial review of a decision of the delegate of the Secretary to the Department of Justice and Regulation refusing an application for emergency management days – Whether plaintiff denied procedural fairness – Whether decision of delegate tainted by apprehended bias – Whether delegate gave inadequate reasons – Whether delegate failed to take relevant considerations into account – Whether delegate took irrelevant considerations into account – Whether decision unlawfully delayed – Whether rights under Charter breached – Application dismissed – Charter of Human Rights and Responsibilities Act 2006 ss 21, 22, 39 – Corrections Act 1986 ss 6, 8, 58E – Supreme Court (General Civil Procedure) Rules 2015 Order 56.
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APPEARANCES:
Counsel
Solicitors
For the Plaintiff
Mr P G Nash QC with Ms J Swiney
Access Law
For the First Defendant
Mr L Brown
Victorian Government Solicitor’s Office
For the Second Defendant
Ms S M C Fitzgerald
Victorian Government Solicitor’s Office
For the Third Defendant
No appearance
HIS HONOUR:
On 27 June 2013, the plaintiff was convicted and sentenced to an aggregate of nine years and six months’ imprisonment with a non-parole period of seven years for aggravated burglary, armed robbery, recklessly causing injury and blackmail. The plaintiff’s earliest eligible parole date is 21 August 2019.
From the commencement of his sentence until 2 July 2015, the plaintiff was imprisoned at the Metropolitan Remand Centre (‘MRC’). On 30 June 2015 and 1 July 2015, a riot occurred at the MRC. The plaintiff was transferred to Barwon Prison on 2 July 2015, where he was held in a high security unit and confined to his cell for long periods each day. The plaintiff remained there until his transfer on 11 May 2017 to Port Phillip Prison, where he is held in a mainstream unit.
The plaintiff was charged with riot and sabotage on 22 December 2015. Detective Leading Senior Constable Glen Hatton (‘informant’) filed the charge. At the committal mention on 13 to 15 February 2017, the charge of sabotage was withdrawn and, on 10 August 2017, the prosecution discontinued the charge of riot against the plaintiff.
On 24 August 2017, the plaintiff applied for emergency management days (‘EMDs’) to reduce his non-parole period and sentence pursuant to s 58E of the Corrections Act1986 (‘Corrections Act’) (‘s 58E application’). The length of a non-parole period or, if a non-parole period has not been fixed, the length of a sentence…
Grounds of appeal
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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AGLC
Kheir v Robertson [2019] VSC 422
Case
[2019] VSC 422
Decision Date
CaseChat Overview and Summary
The plaintiff, Kheir, sought judicial review of a decision made by the delegate of the Secretary to the Department of Justice and Regulation, which refused an application for emergency management days. The application was heard by the court which was required to determine whether the plaintiff was denied procedural fairness, whether the delegate's decision was tainted by apprehended bias, whether the delegate gave inadequate reasons, whether the delegate failed to take relevant considerations into account, whether the delegate took irrelevant considerations into account, whether the decision was unlawfully delayed, and whether the plaintiff's rights under the Charter of Human Rights and Responsibilities Act 2006 were breached. The court found that the delegate's decision was not tainted by apprehended bias, that the reasons given were adequate, that all relevant considerations were taken into account and no irrelevant considerations were considered, that the decision was not unlawfully delayed, and that the plaintiff's rights under the Charter were not breached. The application for judicial review was dismissed.
The court considered the evidence and submissions made by both parties and concluded that the delegate's decision was based on a thorough consideration of all relevant factors and was not influenced by any irrelevant considerations. The court found that the reasons provided by the delegate were sufficient to justify the decision and that there was no procedural unfairness or breach of the Charter. The court also found that the decision was not unlawfully delayed and that there was no apprehended bias on the part of the delegate. The court held that the application for judicial review was without merit and dismissed the application. The court did not make any orders as to costs.