Merkoreh v State Parole Authority - [2021] NSWSC 371

Supreme Court

New South Wales

Medium Neutral Citation: Merkoreh v State Parole Authority [2021] NSWSC 371
Hearing dates: 9 April 2021
Decision date: 09 April 2021
Jurisdiction: Common Law
Before: Button J
Decision:
(1) The application pursuant to s 155 of the Crimes
(Administration of Sentences) Act 1999 (NSW) is dismissed.
(2) No order as to costs.

Catchwords:
CRIMINAL LAW — parole — statutory interpretation — application for direction to State Parole Authority that information relied upon is false, misleading or irrelevant — applicant a serious offender as defined — where applicant impugns decision of parole authority to refuse to bring forward consideration of parole on the asserted basis of manifest injustice — whether information from Serious Offenders Review Council (SORC) shown to be false, misleading or irrelevant — whether refusal to bring forward consideration of parole is refusal to grant parole — whether combined effect of Act and its Regulation permits early consideration of release to parole of serious offender on asserted basis of manifest injustice when SORC opposes release to parole

Legislation Cited:
Crimes (Administration of Sentences) Act1999 (NSW), ss 135, 137B, 143B, 155
Crimes (Administration of Sentences) Regulation 2014 (NSW) cl 223(1), (2)

Cases Cited:
Harrison v NSW State Parole Authority [2019] NSWSC 1783
Minister for Immigration and Citizenship v Li (2013) 249 CLR 332; [2013] HCA 18
Naden v Parole Authority of New South Wales [2017] NSWSC 479
Sutton v NSW State Parole Authority [2011] NSWSC 935

Category: Principal judgment
Parties:
Michael Merkoreh (Plaintiff) (self-represented)
Attorney General of NSW (Interested party 1; Defendant 2)
Representation:
Counsel:

K Heath (Interested party 1; Defendant 2)

Solicitors:
Crown Solicitor’s Office (Interested party 1; Defendant 2)

File Number(s): 2021/00039352
Publication restriction: Nil

EX TEMPORE Judgment - revised

Introduction

This is an application brought to the Supreme Court in the Duty List pursuant to s 155 of the Crimes (Administration of Sentences) Act 1999 (NSW) (“CASA”) by the applicant, Mr Merkoreh. He has appeared for himself today, perfectly coherently and courteously.
Before I engage with the arguments of the parties, I propose to set out a reasonably extensive chronology of the background.

Background

Unless I am mistaken, the relevant events commence over seventeen years ago when (I believe in January 2004) there was a home invasion of some premises. Cannabis was being grown there, and there were some extremely serious injuries inflicted on the occupants. More than one of the female occupants was very gravely sexually assaulted.
The position of the applicant was that he pleaded guilty to some offences, there were some verdicts of guilty with regard to others, and there were also a number of verdicts of not guilty. The verdicts were returned on 26 June 2006.
The applicant had been in gaol for many months before that. Eventually his Honour Judge Ellis SC, on 28 August 2007, imposed a total head sentence of imprisonment for 20 years with a total non-parole period of 15 years, to date from 11 May 2004.
There were some…

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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Details

Case: [2021] NSWSC 371
Decision Date: 09 April 2021

CaseChat Overview and Summary

In the case of Merkoreh v State Parole Authority, the applicant, a serious offender, sought a direction from the court to the State Parole Authority that the information relied upon in the refusal to bring forward consideration of parole was false, misleading or irrelevant. The applicant contested the decision of the Parole Authority, asserting that the refusal to bring forward parole consideration constituted a refusal to grant parole and that the information from the Serious Offenders Review Council (SORC) was flawed. The legal issues before the court included the interpretation of the relevant legislation and regulation, the definition of a "serious offender," and the scope of the court's authority to intervene in the parole process.

The court examined the statutory provisions and found that the applicant qualified as a serious offender. The key issue was whether the information from the SORC was indeed false, misleading, or irrelevant. The court noted that the Act and its regulation did not permit early consideration of parole for serious offenders when the SORC opposed such a release. The court held that the applicant's claim of manifest injustice did not extend to the court's authority to intervene in the parole decision-making process, given the legislative framework. The applicant's argument that the refusal to bring forward parole consideration was effectively a refusal to grant parole was rejected, as the court determined that the statutory scheme did not allow for such an interpretation.

Consequently, the court dismissed the application, finding that the applicant had not demonstrated that the information relied upon by the Parole Authority was false, misleading, or irrelevant. The court also held that the applicant's assertion of manifest injustice did not warrant intervention in the parole decision-making process. No direction was issued to the State Parole Authority, and the applicant's application was rejected in its entirety.

Orders