Minister for Corrections v Cawthray and the State Parole Authority

[2015] NSWSC 1188

Supreme Court

New South Wales

Medium Neutral Citation:

Minister for Corrections v Cawthray and the State Parole Authority [2015] NSWSC 1188

Hearing dates:

20 August 2015

Date of orders:

25 August 2015

Decision date:

25 August 2015

Jurisdiction:

Common Law

Before:

Bellew J

Decision:

1. The order granting a stay of the decision of the second defendant to grant parole to the first defendant is vacated.

 

2. The decision of the second defendant to grant parole to the first defendant is quashed.

 

3. The matter is remitted to the second defendant for determination according to law.

 4. There is no order as to costs.

Catchwords:

ADMINISTRATIVE LAW – Judicial review – Where legislation mandated that particular factors be taken into account when determining whether an offender should be granted parole – Where decision of relevant authority contained no express reference to some mandatory factors – Where there was passing reference to other mandatory factors – Whether proper consideration of mandatory factors could be inferred or implied – Necessity for there to have been a proper intellectual process which gave genuine consideration of mandatory factors – Errors of law established – Matter remitted to the authority to be dealt with according to law

Legislation Cited:

Crimes (Administration of Sentences) Act 1999
Crimes (Administration of Sentences) Regulations 2014
Supreme Court Act 1970 (NSW)

Cases Cited:

Al Qatrani v Parole Authority of NSW [2007] NSWSC 1270
Attorney-General of NSW v Chiew Seng Liew [2012] NSWSC 1223
Attorney-General for NSW v NSW State Parole Authority and Hall [2006] NSWSC 865
Bat Advocacy NSW Inc v Minister for Environment Protection, Heritage and the Arts [2011] FCAFC 59
Gamble v Emerald Hill Electrical Pty Limited [2010] VSC 611
Cawthray v R [2013] NSWCCA 105
Minister for Aboriginal Affairs v Peko Wallsend Limited [1986] HCA 40; (1986) 162 CLR 24
Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259
Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30; (2001) 206 CLR 323
Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355
W352 v Minister for Immigration and Multicultural Affairs [2002] FCA 398

Category:

Principal judgment

Parties:

Minister for Corrections - Plaintiff
Hilton Cawthray – First defendant
State Parole Authority – Second defendant
Commissioner for Corrective Services – Third defendant

Representation:

Counsel:
Ms N Adams SC – Plaintiff
Mr S Beckett - First defendant
Submitting appearances for second and third defendants

  Solicitors:
Crown Solicitor for NSW - Plaintiff
Legal Aid NSW - First defendant

File Number(s):

2015/238578

Publication restriction:

Nil

Judgment

INTRODUCTION

1. By an amended summons filed on 17 August 2015 the plaintiff seeks the following orders:

1. relief pursuant to s. 69 of the Supreme Court Act 1970 (NSW) in the nature of certiorari quashing the decision of the second defendant of 30 July 2015 to grant parole to the first defendant;

2. relief pursuant to s. 69 of the Supreme Court Act 1970 (NSW) in the nature of mandamus directing that the second defendant determine the first defendant’s application for parole according to law;

3. a stay of the decision of the second defendant of 30 July 2015 or, in the alternative, an injunction pursuant to s. 66(4) of the Supreme Court Act 1970 (NSW) restraining the third defendant from acting on the decision of the second defendant until further order of the court;

4. such other order(s) as the court thinks fit.

2. I will refer to the first defendant as “the offender” and to the second defendant as “the Authority”.

3. The orders sought by the plaintiff are opposed by the offender. It is noted that the summons does not seek an order for costs. Senior counsel for the plaintiff confirmed at the conclusion of the hearing that in the event that the relief sought was granted, no order for costs would be sought. Counsel for the offender submitted that in the event that the plaintiff was not successful, an order for costs should be made in the offender’s favour.

4. When the matter came before me for hearing on 20 August 2015, it was pointed out that the effect of the Authority’s decision to grant the offender parole was that absent any order to the contrary, the offender would be released on that day. In those circumstances I granted a stay, pending further order, of the Authority’s decision.

THE EVIDENCE

5. The amended summons was supported by the following affidavits:

1. Christopher Butler of 14 August 2015;

2. Christopher Butler of 17 August 2015 (along with Ex CB-1);

3. Christopher Butler of 19 August 2015; and

4. Robert Cosman of 19 August 2015.

6. Each of the affidavits was read without objection. Mr Cosman gave oral evidence before me and I have referred to his evidence in more detail below.

7. A Court Book containing the documentary evidence was marked Ex. A.

THE FACTUAL BACKGROUND

The offending

8. The offender was born on 28 December 1942 and is presently 72 years of age. On 13 March 1986 he was sentenced by Kneipp J in the Supreme Court of Queensland to life imprisonment for the murder of his then de-facto partner. The sentencing remarks of Kneipp J were limited to stating the following:

“Hilton John Cawthray, you have been convicted of the crime of murder. There is only one sentence which can be imposed on you for that crime. You are sentenced to imprisonment with hard labour for life.”

9. Submissions made to the Authority on behalf of the State of NSW (“the State”) set out that the offender had planned to kill his de-facto partner and had purchased a shot gun for that purpose. On the day of the murder, the offender hit his former partner with the butt of the shot gun before tying her to a bed. He then shot her in the head, causing her death. He then re-loaded the weapon, placed the barrel in his own mouth and discharged it, as a consequence of which he lost the vision in his left eye.

10. Other evidence before the Authority contained exculpatory accounts given by the offender of the circumstances of the victim’s death. For example, in correspondence sent to the offender on 20 November 1998 (Tab 5 of Ex CB-1) it was recorded that the offender had previously told a Psychologist that he did not murder the victim, and that the incident was a “drunken accident”. On another occasion the offender had asserted that he and his partner were arguing, a struggle for the weapon ensued, they both fell onto a bed, and the gun then accidently discharged. Also before the Authority was a report of Dr Adrian Keller, Forensic Psychiatrist (Ex CB-1 at page 187-188) which recorded the following account of the incident given by the offender:

“Mr Cawthray stated that (his partner’s) teenage son … had wanted to acquire a gun for shooting and hunting with his friends so he went out and bought a small calibre shotgun which he kept in their home. He reported that one day there was an altercation between himself and (his partner). He reported that he was loading the firearm and (his partner) entered the room and she started an argument with him. He reported that both of them were fighting over the gun, grabbing it when it went off and she was fatally shot through the back of the head”.

11. As discussed in more detail below, one of the issues raised by the plaintiff concerns an asserted failure on the part of the Authority to have regard to the nature and circumstances of the offence. In light of the fact that the offender was convicted of murder, the summary of the circumstances of the offending which was set out in the State’s submissions before the Authority appears, in light of the jury’s verdict, to be an accurate reflection of what in fact occurred. The offender’s various exculpatory accounts would seem inconsistent with such verdict.

The offender’s initial release on parole and subsequent events

12. On 23 December 2003 the offender was released on parole by order of the Queensland Community Corrections Board. In July 2004, his proposed relocation to NSW was approved and he was formally transferred to this State on 27 June 2005.

13. On 9 May 2009 the offender was charged with aggravated indecent assault, and with grooming a child for unlawful sexual activity. These charges led to the revocation of his parole on 15 May 2009. However on 20 August 2009 those charges were dismissed and the offender’s revocation of parole was rescinded.

14. In February 2010 the offender was charged with a “peep and pry” offence resulting in a further revocation of his parole on 18 February 2010. On 28 June 2010 he was convicted of this offence before the Wagga Wagga Local Court. A pecuniary penalty was imposed on that occasion.

15. In 2012 the offender was convicted of offences of sexual assault. However on 9 May 2013 the Court of Criminal Appeal quashed those convictions: Cawthray v R [2013] NSWCCA 105. Since 26 March 2012 the offender has been managed as a serious offender. On 13 August 2014 he was charged with an offence of “stalk/intimidate”. That charge was subsequently withdrawn and dismissed on 29 October 2014.

The proceedings before the State Parole Authority

16. On 16 April 2015 the Authority formed an initial intention to grant the offender parole (subject to certain conditions) pursuant to s. 144 of the Crimes (Administration of Sentences) Act 1999 (“the Act”). The offender’s release was opposed by the State who, as previously indicated, made written submissions to the Authority setting out the grounds for such opposition. A review hearing was held on 28 May 2015, at which time the matter was stood over until 30 July 2015 pending receipt of a neuropsychological report setting out the offender’s cognitive status, and to allow Community Corrections to provide a report on the availability of accommodation at a rehabilitation facility.

17. When the matter came back before the Authority on 30 July 2015 the State maintained its opposition to the offender’s release on parole. However the Authority determined that the offender should be released. Such release was authorised to take place not earlier than 13 August 2015, and not later that than 20 August 2015.

The reasons of the Authority

18. Annexure B to the affidavit of Mr Butler of 14 August 2015 is a transcript of the proceedings before the Authority on 30 July 2015. That transcript incorporates ex-tempore reasons given by the Authority for its decision to release the offender on parole, those reasons having been given by the Chairperson. I have set out the relevant parts of the reasons when considering the various grounds relied upon by the plaintiff.

19. Mr Cosman, who is the Director and Secretary of the Authority, affirmed an affidavit on 19 August 2015 and gave evidence before me. Annexure D to Mr Cosman’s affidavit was a document headed “Reasons for granting parole”. In his affidavit (at paragraph 5) Mr Cosman described this document as “a copy of the Authority’s standard reasons for decision…”. In the course of his evidence (commencing at T4 L12) he described the document as a “tool”. It was also described in the evidence as a “checklist document”. I will refer to it as the “pro-forma document”.

20. At the commencement of the pro-forma document, under the heading “Reasons for granting parole”, the following appears:

“Having regard to the principle that the public interest is of primary importance, the State Parole Authority has decided that the release of the offender is appropriate.

In making this decision the Parole Authority has had regard to the need to protect the safety of the community and the need to maintain public confidence in the administration of justice.

The Parole Authority also had regard to the following matters relevant to s. 135 of the Crimes (Administration of Sentences) Act 1999 (No.93).”

21. There follow several headings, under which are various numbered paragraphs:

Sentencing Court

1. The Judge found special circumstances in fixing the non-parole period.

2. The Judge found a need for an extensive period of parole supervision.

Offender antecedents

3. The age of the offender at the time of offence.

4. The offender has a short history of re-offending.

5. It is the offender’s first time in prison.

6. The offender has previously completed a parole period successfully.

State/Commissioner   

7. There is no report prepared on behalf of the State (serious offenders only).

8. The Parole Authority, having regard to a submission prepared on behalf of the State / Commissioner considers the public interest is better served by the benefits accruing from parole supervision.

Reports

9. Parole is recommended by Community Corrections in the Pre Release Report.

10. Parole is recommended by the Serious Offender Review Council (SORC).

Offender’s conduct and attitude

11. The offender has had excellent prison performance (eg. Minimum security classification, external programs, nil punishments).

12. The offender has had satisfactory prison performance.

13. The offender has had a recent improvement in prison performance.

14. The offender has achieved a low prison security classification.

15. The offender has participated in external leave programs;

  a. Day Leave

  b. Weekend Leave

  c. Works Release

16. The offender has participated in work outside the prison perimeter.

17. The offender has participated in relevant programs / counselling to address offending behaviour.

18. The offender is under on going psychiatric supervision and is stable on medication.

19. The offender is undertaking an ongoing supervised medical program to address their offending behaviour (methadone, buprenorphine etc…).

Post release plans

20. The offender has suitable post release plans in the community.

21. The offender has been accepted to a residential rehabilitation centre upon release.

22. The offender has employment upon release.

23. There are appropriate interventions for the offender to participate in upon release and the offender is willing to engage in them.

Special circumstances

24. The offender has limited to access to programs / counselling in custody.

25. The offender’s circumstances satisfy s. 160 of the Act.

Other relevant matters

26. There is a need for the offender to have a period of parole supervision prior to the expiry of the sentence in order to:

 a. Minimise the effects of institutionalisation;

 b. Facilitate contact with appropriate community support services.

27. The nature of the offence creates a need for the offender to undergo long term rehabilitation and supervision in the community.

28. The offender has previously participated in relevant intervention prior to sentencing or incarceration.

29. Other………………………………………………………………………

Section 154 – Serious Offenders

30. In accordance with s. 154 of the Crimes (Administration of Sentences) Act No 93, for serious offenders whose sentence for life is the subject of a determination under Schedule 1 of the Crimes (Sentencing Procedure) Act 1999, the Parole Authority has had regard to and given substantial weight to any relevant recommendations, observations and comments made by the sentencing Court. The Parole Authority has also given consideration to adopting or giving effect to any such recommendations and to the intention of the sentencing Court when making them.

31. Other………………………………………………………………………

22. Annexure B to the affidavit of Mr Cosman was a document headed “JUDGES PAPERS”. That document was described by Mr Cosman (in paragraph 4(b) of his affidavit) as a “Cover Sheet”. It contains a record of the matter coming before the Authority on 30 July 2015. A handwritten notation on the document records the appearances before the Authority on that day, following which a further handwritten notation appears as follows:

“Reasons 8 9 10 12 20 23”

23. In the course of his evidence, Mr Cosman explained (commencing at T4 L46) that what occurs in practice is that the Authority isolates, from paragraphs (1) to (30) of the pro-forma document, the reasons upon which it wishes to rely to support its decision to grant an offender parole. Accordingly, the numbers set out in the handwritten note in [22] above are to be read as being a reference to the corresponding paragraphs of the pro-forma document. Mr Cosman said (commencing at T5 L43):

“When members are considering matters, having this sheet, this tool and also the tool for refusals and that is to assist them in ascertaining the reasons for either granting or refusing so they will use the full sheet.”

THE RELEVANT LEGISLATION

24. The objects of the Act are set out in s. 2A as follows:

2A Objects of Act

(1) This Act has the following objects:

(a) to ensure that those offenders who are required to be held in custody are removed from the general community and placed in a safe, secure and humane environment,

(b) to ensure that other offenders are kept under supervision in a safe, secure and humane manner,

(c) to ensure that the safety of persons having the custody or supervision of offenders is not endangered,

(d) to provide for the rehabilitation of offenders with a view to their reintegration into the general community.

(2) In the pursuit of these objects, due regard must be had to the interests of victims of the offences committed by offenders.

(3) Nothing in this section gives rise to any civil cause of action or can be taken into account in any civil proceedings.

25. For present purposes, s. 135 is pivotal and is in the following terms:

135 General duty of Parole Authority

(1) 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.

(2) In deciding whether or not the release of an offender is appropriate in the public interest, the Parole Authority must have regard to the following matters:

(a) the need to protect the safety of the community,

(b) the need to maintain public confidence in the administration of justice,

(c) the nature and circumstances of the offence to which the offender’s sentence relates,

(d) any relevant comments made by the sentencing court,

(e) the offender’s criminal history,

(f) the likelihood of the offender being able to adapt to normal lawful community life,

(g) the likely effect on any victim of the offender, and on any such victim’s family, of the offender being released on parole,

(h) any report in relation to the granting of parole to the offender that has been prepared by or on behalf of the Probation and Parole Service, as referred to in section 135A,

(i) any other report in relation to the granting of parole to the offender that has been prepared by or on behalf of the Review Council, the Commissioner or any other authority of the State,

(ia) if the Drug Court has notified the Parole Authority that it has declined to make a compulsory drug treatment order in relation to an offender’s sentence on the ground referred to in section 18D (1) (b) (vi) of the Drug Court Act 1998 , the circumstances of that decision to decline to make the order,

(j) such guidelines as are in force under section 185A,

(k) such other matters as the Parole Authority considers relevant.

(2A) Without limiting subsection (2)(k), if the offender has provided post-sentence assistance, the Parole Authority may have regard to the nature and extent of the assistance (including the reliability and value of any information or evidence provided by the offender) and the degree to which the offender’s willingness to provide such assistance reflects the offender’s progress to rehabilitation.

(2B) In subsection (2A):

"post-sentence assistance" means assistance in the prevention, detection or investigation of, or in proceedings relating to, any offence, provided by an offender to law enforcement authorities after the offender was sentenced and that was not taken into account or considered by the sentencing court.

(3) 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.

26. Section 193C(2) of the Act imposes particular obligations upon the Authority in respect of it reasons:

193C Parole Authority decisions

(1) …

(2) In recording its reasons for a decision under Division 2 of Part 6 that an offender should or should not be released on parole, the Parole Authority must address:

(a) the matters referred to in section 135, and

(b) if the decision relates to a serious offender to whom section 154 applies, the matters referred to in that section, and

(c) such other matters as the Parole Authority is, under this Act or the regulations, required to take into account in making the decision.

(3) Copies of any records made under this section are to be supplied to the Minister, the Commissioner and the Probation and Parole Service, as they may request.

(4) Subject to this Act, a decision by the Parole Authority under Part 6 or 7 is final.

27. Finally, in light of a submission made on behalf of the offender that relief should be refused as a matter of discretion, s. 153 of the Act is relevant:

153 Submissions by State

(1) The State may at any time make submissions to the Parole Authority concerning the release on parole of a serious offender.

(2) If the State makes any such submission before the Parole Authority makes a final decision concerning the release of the offender, the Parole Authority must not make such a decision without taking the submission into account.

(3) If the State makes any such submission after the Parole Authority makes a final decision concerning the release of the offender, but before the offender is released, the Parole Authority must consider whether or not it should exercise its power under section 130 to revoke the relevant parole order.

(4) The regulations may make provision for or with respect to submissions by the State under this section, including provisions relating to the application of this Subdivision in connection with any such submission.

(5) The powers of the State under this section may be exercised by the Commissioner and by any other authority of the State.

THE RELEVANT PRINCIPLES

28. A failure by the Authority to have regard to a mandatory consideration would, if made out, amount to a jurisdictional error, as it would amount to a failure to exercise the decision-making power in accordance with the terms on which jurisdiction was conferred: Attorney-General of NSW v Chiew Seng Liew [2012] NSWSC 1223 at [73] per Beech-Jones J; Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355 at [91] per McHugh, Gummow, Kirby and Hayne JJ. Having proper regard to the mandatory factors in s. 135 of the Act is a condition precedent to the exercise of the Authority’s jurisdiction conferred under that section.

29. What is required on the part of a decision-maker in respect of mandatory factors of the kind set out in s. 135 of the Act was explained by the Full Court of the Federal Court of Australia in Bat Advocacy NSW Inc v Minister for Environment Protection, Heritage and the Arts [2011] FCAFC 59 (at [44]):

“The obligation of a decision-maker to consider mandatory relevant matters requires a decision-maker to engage in an active intellectual process, in which each relevant matter receives his or her genuine consideration (see Tickner v Chapman (1995) 57 FCR 451 at 462 and Minister for Immigration and Multicultural Affairs v Jia (2001) 205 CLR 507 at [105]). However, in the absence of any statutory or contextual indication of the weight to be given to factors to which a decision-maker must have regard, it is generally for the decision maker to determine the appropriate weight to be given to them. The failure to give any weight to a factor to which a decision-maker is bound to have regard, in circumstances where that factor is of great importance in the particular case, may support an inference that the decision-maker did not have regard to that factor at all. Similarly, if a decision-maker simply dismisses, as irrelevant, a consideration that must be taken into account, that is not to take the matter into account. On the other hand, it does not follow that a decision-maker who genuinely considers a factor but then dismisses it as having no application or significance in the circumstances of the particular case, will have committed an error. The Court should not necessarily infer from the failure of a decision-maker to refer expressly to such a matter, in the reasons for decision, that the matter has been overlooked. But if it is apparent that the particular matter has been given cursory consideration only so that it may simply be cast aside, despite its apparent relevance, then it may be inferred that the matter has not in fact been taken into account in arriving at the relevant decision. Whether that inference should be drawn will depend on the circumstances of the particular case (see Minister for Immigration and Citizenship v Khadgi (2010) 274 ALR 438 at [58]-[59])”(emphasis added).

30. It is important to bear in mind that when a court is asked to undertake judicial review of an administrative decision, it should not approach its task with the use of a “fine tooth comb”, or with “an eye keenly attuned to the perception of error”: Attorney-General for NSW v NSW State Parole Authority and Hall [2006] NSWSC 865 at [49]; Liew (supra) at [76]. The reasons of an administrative decision-maker are meant to inform. They are not meant to be scrutinised upon over-zealous judicial review by seeking to discern whether some inadequacy may be gleaned from the way in which they have been expressed: Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259. In particular, when determining whether an offender should be released on parole, the Authority is not required to express a finding as to every fact which leads, or which is relevant, to its final determination: Al Qatrani v Parole Authority of NSW [2007] NSWSC 1270 at [15].

31. Section 193C(2) of the Act which I have set out above requires the Authority’s reasons to address the various mandatory considerations affecting its decision, including those specified in s. 135(2). Although not determinative, the absence of any reference to such a matter in a decision-maker’s reasons may sustain an inference that it was not considered: Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30; (2001) 206 CLR 323 at [5] per Gleeson CJ; at [35] per Gaudron J; at [69] per McHugh, Gummow and Hayne JJ; Liew (supra) at [78].

THE GROUNDS RELIED UPON BY THE PLAINTIFF

32. The primary position of the plaintiff was that in each of the three instances relied upon, there had been jurisdictional error on the part of the Authority by failing to take into account a mandatory relevant consideration. In each instance, an alternative ground was relied upon alleging error of law on the face of the record. If jurisdictional error is made out in any individual instance, it will not be necessary for me to consider the alternative ground.

Ground 1 – The Authority fell into jurisdictional error by failing to take into account a relevant consideration to which it was required to have regard by s. 135(2)(b) of the Crimes (Administration of Sentences) Act 1999, namely, the need to maintain public confidence in the administration of justice.

Ground 2 – In the alternative, there is an error of law on the face of the record in that the Authority failed to take into account a relevant consideration to which it was required to have regard by virtue of s. 135(2)(b) of Crimes (Administration of Sentences) Act 1999, namely, the need to maintain public confidence in the administration of justice.

The reasons of the Authority

33. Commencing at T1 L 26, the Chairperson stated the following:

“Mr Cawthray has a somewhat chequered history. He was convicted and sentenced to life in Queensland for a murder committed in 1985. He was admitted to parole in Queensland in 2003, with permission came to New South Wales, and ultimately his parole was transferred to this State.

There were some allegations of sexual impropriety, aggravated indecent assault, and so on, made against him, and in consequence his parole was revoked by this Authority on 14 May 2009. Those charges were withdrawn and the revocation recorded was rescinded on 19 August 2009. There were some other proceedings before the Authority during which Mr Cawthray sought to have certain conditions removed from his parole but hose attempts were unsuccessful.

He was then charged with peep and pry on 12 February 2010, the victim being a friend of his daughter who had taken him in and provided accommodation. On that basis his parole was again revoked on 18 February 2010. He pleaded guilty to that charge and was fined. However that conviction and reports from custody about his sexually inappropriate behaviour toward female professionals saw the inmate kept in custody.

Then further allegations of sexual misbehaviours arose. A series of proceedings involving trials, appeals and further trials have all resulted in ultimately in (sic) there being no further conviction recorded against the inmate. The last remaining allegations were withdrawn on 29 October 2014…

Community Corrections recommended release to parole in the report of 6 November 2014. This Authority stood the matter over for a psychiatric report, and that was provided by Dr Keller on 16 February 2015. The Authority formed an intention to grant parole on 16 April but that was in fact opposed by the Commissioner on the basis, amongst other things, that Dr Keller had identified areas of potential concern that Mr Cawthray may not have the ability to live independently and that he was at risk of further deterioration of his cognitive capacity.

The Authority sought to have this matter clarified by obtaining a neuropsychological report. That report, as Ms Psaltis, who appears for the inmate this morning, indicates that Mr Cawthray does not show any sign of either Alzheimer’s or vascular dementia and that he does have, in that expert’s opinion, the capacity to live independently and he is at no greater risk of cognitive deterioration than any other 72 year old man who smokes and who already suffers from sclera vascular disease. Notwithstanding then the submissions made by the Commissioner, it seems to this Authority that it is appropriate to grant parole, such a course having been endorsed by the Serious Offenders Review Council in its report, subject, of course, to those two matters to which I have just referred being clarified.

Accordingly, it seems to us that a grant should be confirmed. This Authority, however, is concerned about the fact that whilst Mr Cawthray will be going into the COSP that is of necessity a relatively temporary form of accommodation. Given his history, to which I have made such brief reference this morning, it seems to us that there is a requirement that he be monitored electronically in the community once he has been release from the COSP and it is important that that condition be imposed now.”

34. The Chairperson then explained (commencing T2 L36) the conditions upon which the offender was to be released before concluding (at T3 L10):

“The reasons for this are that notwithstanding the submissions made (sic) the Commissioner, the Authority believes that it is in the public interest to have Mr Cawthray supervised in conditions which are proposed that his release is recommended by Community Corrections. It is recommended by the Serious Offender Review Counsel that his performance in custody has been satisfactory, that there are suitable post release plans for him and there are appropriate interventions to participate in upon release and he is willing to engage in them. For those reasons parole is granted on the conditions indicated. He is to be released not earlier than 13 August and not later than 20 August 2015.”

Submissions of the plaintiff

35. It was submitted on behalf of the plaintiff that s. 135(2)(b) of the Act required the Authority, when considering whether an offender should be released, to have regard to the need to maintain public confidence in the administration of justice. It was submitted that nowhere in the Authority’s determination in the present case was there any reference, be it express or implied, to that factor. This, it was submitted, gave rise to an inference that the issue raised by s. 135(2)(b) had not been the subject of any consideration.

36. It was further submitted that the Authority was under an obligation to consider the issue raised by s. 135(2)(b) from the perspective of the likely response, to the offender’s proposed release, of an informed member of the public. It was submitted that to the (limited) extent that the Authority’s reasons referred to the issue, the matters to which reference was made were of such a nature as would cause an informed member of the public to be concerned at the prospect of the offender being released on parole. Such matters, in the submission of senior counsel for the plaintiff, included the Chairperson’s reference to the offender’s “somewhat chequered history”.

37. Senior counsel for the plaintiff also relied on the fact that in written submissions provided to the Authority at the time of the original hearing, the State raised a number of matters in the context of s. 135(2)(b) including, in particular, the circumstances surrounding the offending. It was submitted that the Authority’s decision was completely silent in respect of those issues which were drawn to its attention.

38. It was submitted that for all of these reasons, there had been a failure on the part of the Authority to have regard to the provisions of s. 135(2)(b) of the Act and that this amounted to an error of law.

Submissions of the offender

39. Counsel for the offender submitted that the category of material which was relevant to a consideration of the issue raised by s. 135(2)(b) was necessarily, and deliberately, wide. He submitted that it was evident from the Authority’s reasons that it had considered a number of matters relevant to the need to maintain public confidence in the administration of justice, including:

1. aspects of the offender’s criminal history;

2. his neuropsychological state;

3. his capacity to live independently;

4. the recommendation of the SORC that parole be granted;

5. the offender’s satisfactory performance in custody; and

6. the preparation of a suitable post-release plan for the offender.

40. Counsel for the offender submitted that having considered these matters, the Authority had concluded that it was appropriate to grant parole and that, properly read, the reasons reflected the Authority having engaged in the necessary evaluative process.

41. Counsel for the offender also relied on the second of the three introductory paragraphs of the pro-forma document set out at [20] above. Although counsel did not submit that the contents of that paragraph formed part of the Authority’s reasons, he submitted that it was open to go beyond the reasons themselves in order to determine if there was error. He submitted that it was clear from the wording of that paragraph that the need to maintain public confidence in the administration of justice had been taken into account by the Authority as mandated by s. 135(2)(b) of the Act.

42. In responding generally to the various grounds relied upon by the plaintiff, counsel for the offender submitted that there was a danger in concluding that the Authority had failed to take a particular matter into account simply because there was no reference to it in the reasons. In this regard counsel drew my attention to the decision in Gamble v Emerald Hill Electrical Pty Limited [2010] VSC 611 where Ross J observed (at [32]) that the failure to advert to a material circumstance in written reasons was a “very unsure guide” in determining whether there was a failure to take that matter into account. Such observations were cited by French J (as his Honour then was) in W352 v Minister for Immigration and Multicultural Affairs [2002] FCA 398 at [32].

43. Counsel for the offender further submitted that not every consideration that a decision-maker is bound to take into account, but fails to take into account, will justify the court setting aside the impugned decision and ordering that the discretion be re-exercised. He submitted that there were circumstances in which a factor might be so insignificant that the failure to take it into account might not materially affect the decision: Minister for Aboriginal Affairs v Peko Wallsend Limited [1986] HCA 40; (1986) 162 CLR 24 at 39 per Mason J (as his Honour then was).

Consideration and conclusion

44. The Authority is charged with what is, on any view, an important public duty. Consistent with that important duty, the Parliament has seen fit, by enacting s. 135 of the Act, to require that certain matters be taken into account when the Authority is determining whether or not an offender should be released on parole. The Authority, as a decision-maker, is under an obligation to engage in an active intellectual process in respect of each mandatory factor in s. 135(2). It must do so in such a way as to give each factor genuine consideration. On the evidence before me, I am not satisfied that the Authority met this obligation in respect of the provisions of s. 135(2)(b) of the Act. I have come to that conclusion for a number of reasons.

45. Leaving aside the contents of the pro-forma document (which I have addressed at [49]-[51] below) there is no specific reference whatsoever in the Authority’s reasons to the need to maintain public confidence in the administration of justice. As I have pointed out, the absence of such reference may sustain an inference that the matter in question was not considered. That, of course, is not determinative. Considered alone it may, as Ross J observed in Gamble, be an unsure guide. However in the present case, such an inference is supported by other factors.

46. In Hall (supra) McClellan CJ at CL observed (at [45]) that s. 135(2)(b) mandates a unique matter for consideration, and requires the Authority to consider whether the release of an offender on parole might affect public confidence in the justice system. This raises for consideration the question of whether an offender’s release would diminish public confidence in the administration of justice, having regard to matters such as:

1. the offence committed;

2. the offender’s history since incarceration; and

3. the offender’s progress towards rehabilitation:

47. The matters identified by McClellan CJ at CL do not, of course, constitute an exhaustive list. However in the present case, the Authority’s reasons do no more than make reference to the fact of the offence and where it occurred. Nothing more was said, in circumstances where the State’s submissions which were before the Authority set out, in detail, the circumstances of the offending.

48. Further, although the Chairperson made reference to the offender’s history, he did so essentially by reciting it. He made no attempt to articulate how that history might bear upon the issue of public confidence in the administration of justice. Similarly, although reference was made to medical evidence, there was no proper consideration of the offender’s progress towards rehabilitation. Merely referring to bare facts falls short of engaging in the type of active intellectual process to which the Court referred in Bat Advocacy NSW (supra). Such a process requires not only a reference to the facts, but a consideration of how those facts impact upon the relevant issue.

49. The parties accepted that the pro-forma document could not be regarded as being incorporated into, or forming part of, the Authority’s reasons. However, even accepting that it is open to go beyond the reasons to determine whether an error has been made out, the contents of the pro-forma document do not assist the offender’s position in the present case. In Liang (supra) the plurality (Brennan CJ, Toohey, McHugh and Gummow JJ) observed (at 266):

“A statement of reasons for a decision …… is not invalid merely because it employs a verbal formula that is routinely used by persons making similar decisions. If the formula is used to guide the steps in making the decision and reveals no legal error, the use of the formula will not invalidate the decision. On the other hand, if a decision maker uses the formula to cloak the decision with the appearance of conformity with the law when the decision is infected by one of the grounds of invalidity … the incantation of the formula will not save the decision from invalidity”.

50. The second of the three opening paragraphs in the pro-forma document does no more than make reference to the need to maintain public confidence in the administration of justice. There is nothing to suggest that the statement in that paragraph was used to guide the steps made towards the Authority’s decision in the present case. This is particularly so when there was no reference at all to the issue raised by s. 135(2)(b) in the Authority’s ex-tempore reasons.

51. In Hall a similar statement appeared in the document in which the reasons of the Authority were contained (at [45]). It was in these circumstances that McClellan CJ at CL found (at [47]) that such a statement constituted a clear acknowledgement that the matter raised by s. 135(2)(b) had in fact been considered. Those circumstances are obviously distinguishable from the present case. In particular, and unlike the position in Hall, the pro-forma document is not that in which the reasons of the Authority are contained.

52. Finally, I accept that there may be circumstances in which a matter is so insignificant that a failure to consider it may not materially affect a decision. However, this could not be said about the provisions of s. 135(2)(b) as they apply in the present case. When one bears in mind the nature of the responsibility conferred upon the Authority, the necessity to maintain public confidence in the administration of justice is obviously significant. The same can be said for the other two statutory provisions upon which the plaintiff relies in support of the relief sought, and which are discussed further below.

53. For all of these reasons ground 1 is made out. In those circumstances it is not necessary for me to consider ground 2, which was relied upon in the alternative.

Ground 3 – The second defendant fell into jurisdictional error by failing to take into account a relevant consideration to which it was required to have regard by s. 135(2)(c) of Crimes (Administration of Sentences) Act 1999, namely, the nature and circumstances of the offence to which the offender’s sentence relates.

Ground 4 – In the alternative there is an error of law on the face of the record in that the second defendant failed to take into account a relevant consideration to which it was required to have regard by s. 135(2)(c) of the Crimes (Administration of Sentences) Act 1999, namely the nature and circumstances of the offence to which the offender’s sentence relates.

The reasons of the Authority

54. That part of the reasons of the Authority relevant to this ground appears in the first paragraph in [33] above. That paragraph constitutes the sole express reference in the Authority’s reasons to the nature and circumstances of the relevant offence.

Submissions of the plaintiff

55. It was submitted on behalf of the plaintiff that the reference, in the Authority’s reasons, to the offence fell substantially short of a proper and genuine consideration of the issue raised by s. 135(2)(c). It was submitted that on any view, the nature of the offending constituted (inter alia) a serious act of violence, and that it was incumbent upon the Authority to properly consider all of the relevant circumstances when making its determination.

56. It was further submitted that the fact that this was not the first occasion on which the offender was released to parole did not relieve the Authority of its responsibility to consider all of the mandatory matters for which s. 135(2) of the Act provided.

Submissions of the offender

57. Counsel for the offender acknowledged that the Authority’s reference to the nature and circumstances of the offending was (as he described it) “sparse”. However it was submitted that when read as a whole, the Authority’s reasons reflected the fact that the issue had received proper consideration. It was submitted that the fact that the Authority had made specific reference to the offender’s conviction and sentence meant that attention had been given to those matters.

58. Counsel for the offender also relied on the fact that in the course of its reasons, the Authority made specific reference to other evidence, including the report of Dr Keller. It was pointed out that the report of Dr Keller contained a more expansive description of the nature and circumstances of the offending which the Authority had obviously taken into account.

59. It was submitted that on these bases there was sufficient material contained in the Authority’s reasons to support a conclusion that it had properly considered the nature and circumstances of the offending. It was submitted that any lack of detail in the Authority’s reasons did no more than reflect the fact that the nature and circumstances of the offending had been given less weight when compared with issues such as the offender’s neuropsychological state and his post-release plans. It was emphasised that questions of weight remained a matter for the Authority.

Consideration and conclusion

60. In its reasons, the Authority did no more than make passing reference to the nature of the offence and the location at which it occurred. In my view, compliance with the provisions of s. 135(2)(c) required substantially more than that.

61. Firstly, compliance with s. 135(2)(c) required a proper consideration of the actual circumstances in which the offending occurred. Those circumstances were set out in the submissions of the State and are summarised in [9] above. Secondly, such compliance required the Authority to engage in an intellectual process in which the nature and circumstances of the offending, and their impact upon the decision which was to be made, were properly considered. In my view, the evidence overwhelmingly supports the conclusion that such a task was not undertaken.

62. In particular, I am unable to accept the submission of counsel for the offender that the Authority’s reference to the report of Dr Keller provides a basis for concluding that proper consideration was given to the factor set out in s. 135(2)(c). This is so for three reasons. Firstly, the reference to Dr Keller’s report was a passing one. Secondly, the reference was made in an entirely different context. Thirdly, the account of the offending given by the offender to Dr Keller (set out at [10] above) was at odds with the jury’s verdict in any event. A passing reference to a medical report, made in a context which is entirely different to that presently under consideration, provides little support for the conclusion that the circumstances of the offending were properly considered. This is particularly so where the report sets out an account of such offending which appears to be at odds with what in fact occurred.

63. For all of these reasons ground 3 is made out. In those circumstances it is not necessary for me to consider ground 4, which was relied upon in the alternative.

Ground 5 – The Authority fell into jurisdictional error by failing to take into account a relevant consideration to which it was required to have regard by s. 135(2)(g) of the Crimes (Administration of Sentences) Act 1999, namely the likely effect on any victim of the offender, or on any such victim’s family, of the offender being released on parole.

Ground 6 – In the alternative, there is an error of law on the face of the record in that the second defendant failed to take into account a relevant consideration to which it was required to have regard by s. 135(2)(g) of the Crimes (Administration of Sentences) Act 1999, namely, the likely effect on any victim of the offender, or on any such victim’s family, of the offender being released on parole.

Reasons of the Authority

64. In the course of delivering the reasons of the Authority, the Chairperson (commencing at T2 L36) explained the various conditions to the offender, in the course of which he said:

“… that you do not contact, communicate with, stalk, harass or intimidate the victim’s family”.

Submissions of the plaintiff

65. Senior counsel for the plaintiff conceded that there were no submissions made to the Authority on behalf of the family of the victim. However, it was submitted that the provisions of s. 135(2)(g) of the Act required the Authority to consider the likely effect, upon the victim’s family, of the offender’s release, even in the absence of any such submissions being made.

66. It was submitted that pursuant to s. 145 of the Act it was incumbent upon the Authority to give notice of its intention to make an order for parole to any victim, or members of the victim’s family, whose names were recorded on the relevant register. It was conceded on behalf of the plaintiff that there were no persons on the register in relation to this offender. It was further conceded that whilst s. 145(2)(d) of the Act required the Authority to take into account any submissions made by a victim when considering its decision, no such submissions were made in the present case.

67. Nevertheless, it was submitted that as a matter of statutory construction, s. 135(2)(g) required the Authority to have regard to the likely effect, upon any victim or family member of a victim, of the offender being released on parole. It was further submitted that such a requirement was emphasised by s. 2A(2) of the Act, which provides that in the pursuit of the objects of the Act due regard must be had to the interests of victims of offences. It was submitted that the reasons of the Authority were bereft of any reference to this factor and that this was a clear indication that it had not been considered.

Submissions of the offender

68. Counsel for the offender submitted that the issues raised by the plaintiff in respect of these grounds were answered completely by the terms of the condition which had been imposed. It was submitted that in order to impose that condition the Authority must have considered the issue, and must have concluded that a particular danger needed to be avoided. It was also pointed out that the condition in question was one which was over and above the “standard conditions” and that this provided a further indication that the provisions of s. 135(2)(g) had been considered.

Consideration and conclusion

69. The effect of the submission advanced on behalf of the offender is that I should infer, from the fact that the Authority imposed the condition in question, that the issue had been properly considered. Inherent in such a submission is an acknowledgment that there is no other reference to the matter in the Authority’s reasons. One of the difficulties in accepting that submission stems from the fact that s. 135(2)(g) is concerned with the effect, upon the family of a victim, of an offender being released. However, the assessment of that effect is not confined to conditions: Hall (supra) at [54].

70. In Hall the reasons of the Chairperson made it plain that the Authority was mindful of the concerns of the victim’s family. The subsequent imposition of conditions gave effect to those acknowledged concerns. In the present case, there was no such acknowledgment. Indeed, there was no reference at all to the matter. Section 135(2)(g) required the Authority to give consideration to the likely effect of the offender’s release upon any member of the victim’s family. That likely effect was required to be considered in light of conditions upon which the offender’s release could be granted: Hall (supra) at [54]. The requirement imposed by s. 135(2)(g) was underscored by the provisions of s. 2A(2). In my view it is apparent that the Authority did not give proper consideration to any of these matters.

71. For all of these reasons ground 5 is made out. In those circumstances it is not necessary for me to consider ground 6, which was relied upon in the alternative.

REFUSAL OF RELIEF ON DISCRETIONARY GROUNDS

72. Counsel for the offender submitted that even if error was established, I should exercise my discretion to decline to grant the relief sought on the basis that s. 153 of the Act provided a mechanism for the plaintiff to challenge the Authority’s decision after it had been made. I am unable to accept that submission.

73. Regulation 222 of the Crimes (Administration of Sentences) Regulations 2014 provides as follows:

222 Revocation of parole orders before release

(1) For the purposes of section 130 of the Act, the following circumstances are prescribed as circumstances in which the Parole Authority may revoke a parole order:

(a) if the offender requests that the order be revoked,

(b) if the Parole Authority decides, before releasing the offender, that the offender is unable to adapt to normal lawful community life,

(c) if the Parole Authority decides that satisfactory accommodation arrangements or post-release plans have not been made or are not able to be made,

(d) if:

(i) a request is made under section 172 of the Act, or a direction is given by a court (whether or not under the Act), for the Parole Authority to consider whether the order should be revoked on a specified ground, and

(ii) the Parole Authority decides that the order should be revoked on that ground.

74. Section 153 permits the State to make submissions to the Authority regarding an offender’s release on parole. The Authority is given power under s. 130 of the Act to revoke a parole order. However, Regulation 222 prescribes the circumstances in which that power may be exercised. Such circumstances are inapposite to those in the present case.

75. It follows that in my view, in the circumstances of the present case, there is no statutory remedy available to the plaintiff. Accordingly, error having been found, there is no basis upon which to exercise the discretion to decline to grant the relief sought.

ORDERS

76. For the forgoing reasons, I make the following orders:

1. The order granting a stay of the decision of the second defendant to grant parole to the first defendant is vacated.

2. The decision of the second defendant to grant parole to the first defendant is quashed.

3. The matter is remitted to the second defendant for determination according to law.

4. There is no order as to costs.

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Decision last updated: 25 August 2015