Narroway v Parole Board of South Australia
[2023] SASC 100
•14 July 2023
SUPREME COURT OF SOUTH AUSTRALIA
(Civil: Judicial Review)
NARROWAY v PAROLE BOARD OF SOUTH AUSTRALIA
[2023] SASC 100
Judgment of the Honourable Justice McIntyre
14 July 2023
ADMINISTRATIVE LAW - JUDICIAL REVIEW - GROUNDS OF REVIEW - ERROR OF LAW
ADMINISTRATIVE LAW - JUDICIAL REVIEW - POWERS OF COURTS UNDER JUDICIAL REVIEW LEGISLATION
ADMINISTRATIVE LAW - JUDICIAL REVIEW - GROUNDS OF REVIEW - ERROR RELATING TO FACTS
ADMINISTRATIVE LAW - JUDICIAL REVIEW - REVIEWABLE DECISIONS AND CONDUCT - DECISIONS TO WHICH JUDICIAL REVIEW LEGISLATION APPLIES - DECISIONS UNDER AN ENACTMENT
ADMINISTRATIVE LAW - JUDICIAL REVIEW
The applicant, Mr Samuel Mark Narroway seeks a review of the decisions of the Parole Board of South Australia refusing to release him on parole under s 67 of the Correctional Services Act 1982 (SA) and refusing to accept a further application for parole from the applicant prior to 17 January 2024.
Held:
1. The application is dismissed.
Correctional Services Act 1982 (SA) s 67, referred to.
Minister for Immigration and Multicultural Affairs v Bhardwaj (2002) 209 CLR 597; Bain v The State of South Australia [2020] SASC 234; Re Minister for Immigration and Multicultural Affairs ex parte applicant s 20/2002 (2003) 198 AR 59; Australian Broadcasting Tribunal v Bond [1990] 170 CLR 321; Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24; Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) CLR 259; Agius v The Parole Board of South Australia [2020] SASC 225, considered.
NARROWAY v PAROLE BOARD OF SOUTH AUSTRALIA
[2023] SASC 100Civil: Application
McIntyre J:
The applicant, Mr Narroway, challenges decisions of the respondent, the Parole Board of South Australia, refusing to release him on parole under s 67 of the Correctional Services Act 1982 (SA) (“the CSA”) and refusing to accept a further application for parole from the applicant prior to 17 January 2024.
The applicant seeks orders that the decisions of the Parole Board be set aside, and a writ of mandamus be issued ordering the Parole Board to reassess his application for release, taking into account all evidence and applying procedural fairness. The applicant relies on 19 grounds, set out in the statement of facts, issues and contentions (“SFIC”) annexed to his application.
For the reasons that follow I dismiss the application.
Background
The applicant has an extensive history of offending in both South Australia and interstate.[1] He is currently serving a sentence of imprisonment related to three sets of offending. These are:
·between 1 July 2019 and 2 August 2019, he committed the offence of dishonestly taking property without consent (theft offence);
·on 2 July 2019, he committed the offence of deceiving another to benefit self or a third person (deception offence); and
·on 6 September 2019, he committed three counts of falsely representing a Police Officer, one count of aggravated deception and one count of false imprisonment arising out of three separate sets of offending on the same day (the September offences).
[1] Affidavit of Eleanor Frances Nelson KC sworn on 6 April 2023, FDN 18, exhibits EFN3 and EFN 4.
The applicant was arrested on 7 September 2019. On 6 November 2020, he was sentenced by Tracey DCJ to four years imprisonment with a non-parole period of two years and eight months, backdated to 7 September 2019 for the September offences.[2] Once eligible, the applicant applied for parole. On 10 February 2022 the Parole Board resolved to release the applicant on parole on 6 May 2022.
[2] FDN 18, exhibit EFN 6.
The applicant was then sentenced on 25 February 2022 for the deception offence by Magistrate Nitschke to 12 months imprisonment to be served cumulative upon the sentence imposed by Tracey DCJ. His non-parole period was extended by two weeks.[3]
[3] FDN 18, exhibit EFN 7.
Following this, on 8 March 2022 the Parole Board revoked its decision dated 10 February 2022 and resolved to make the applicant ineligible for automatic release, noting that he was able to submit an application for release on parole at any time. The following day, 9 March 2022, the applicant applied for release on parole; and on 12 May 2022, the Parole board resolved to interview the applicant in relation to his application.
Prior to this interview, on 22 August 2022, the applicant was sentenced for the theft offence by Magistrate Millard to two months imprisonment to be served cumulative upon the sentence imposed by Tracey DCJ and extended by Magistrate Nitschke; with no change to his non-parole period. Also on that date, he was sentenced for three counts of failing to hold a licence or learners permit and one count of using or having possession of a prohibited weapon committed during the period immediately surrounding the September offences. He was discharged without penalty on those matters.
The applicant is therefore serving a total sentence of imprisonment of five years and two months with a non-parole period of two years, eight months, and 14 days. The expiry date for the head sentence is 5 November 2024. His non- parole period expired on the 19 May 2022.
The applicant subsequently supplied further material to the Parole Board including a potential parole address. On 23 August 2022, the Parole Board interviewed the applicant. On the same date, the Parole Board purported to resolve that the applicant’s release on parole was not approved and that the applicant could not reapply for parole until 23 August 2023 (the purported decision). On 7 September 2022 the Board prepared reasons for its purported decision.
On 30 September 2022 the applicant commenced proceedings in the Supreme Court seeking to have the purported decision to refuse his application for parole reviewed. On 22 December 2022 the respondent, through counsel, advised the Court that the decision purportedly made on 7 September 2022 was infected with jurisdictional error because one member of the Board was not present as she had recently been exposed to a person infected with COVID-19. Accordingly, the Board had not determined the applicant’s application for parole.
On 23 December 2022, the Board invited the applicant to make further submissions on his application for parole if he wished to do so. On 28 December 2022, the Board received further submissions from the applicant via a social worker at Yatala Labour Prison. His submissions were dated the 26 December 2022.[4]
[4] FDN 18, exhibit EFN 36.
On 17 January 2023, the applicant’s application for parole was refused by the Board (the refusal decision) and on the same date the respondent resolved not to accept any further applications for release on parole from the applicant until 17 January 2024 (the reapply decision). On 20 February 2023, the Board prepared reasons for decision which were signed by the presiding member. A board advice slip dated 24 February 2023 recorded the decisions.
Identifying the decisions under review
The applicant, who is self-represented, seeks review of the respondent’s purported decision which he describes as the “first decision”.
In making the purported decision the respondent failed to comply with s 60(5) of the CSA by sitting as a division with only two members present. Accordingly, the purported decision was infected with jurisdictional error and was of no legal effect.[5] The respondent, on becoming aware of this issue through the institution of these proceedings, advised the Court that it would determine the applicant’s application for parole as a matter of urgency.
[5] Minister for Immigration and Multicultural Affairs v Bhardwaj (2002) 209 CLR 597.
The respondent made the refusal decision after sitting as a properly constituted division on 17 January 2023. On the same date the respondent also made the reapply decision. Accordingly, the refusal decision and the reapply decisions are the only decisions that are properly the subject of the within proceedings.
September 2022 reasons
In its reasons for refusal dated 20 February 2023 the respondent refers to and annexes a copy of the reasons for the purported decision. The applicant takes issue with this saying that “this decision was not legally constituted and thus the reasons are void and can’t further be cited”.[6]
[6] Applicant’s affidavit sworn on 8 March 2023 paragraph 13(b).
The reason the purported decision was void was due to a jurisdictional error rather than a content error. The factual matters discussed in the September 2022 reasons were drawn from material before the respondent and its interview with the applicant. These matters are relevant to the consideration of the applicant’s application for release on parole. They can be considered by the Parole Board in making the refusal decision under s 67(4)(h) of the Act. There is nothing improper in referring to those reasons in the reasons for refusal dated 20 February 2023. I reject the applicant’s submission that the Board should not have referred to those reasons.
The legislation
In determining the applicant’s application for parole, the respondent was required to consider the matters set out in s 67(4) of the CSA. The paramount consideration is “the safety of the community”.[7] The respondent has a range of powers and, subject to the Act, may conduct its proceedings as it thinks fit. Its discretion whether to grant or refuse parole is wide.[8] The granting of parole is a privilege, not a right.[9] A non-parole period merely identifies the time at which a prisoner may apply for parole.[10] The respondent has a discretion to grant or not grant parole but only in accordance with the Act.
[7] Section 67(3a).
[8] Bain v The State of South Australia [2020] SASC 234.
[9] Minogue v Victoria [2019] 93 ALJR 1031.
[10] Section 67(1) 2(8)
The respondent considered the matters as it was required to consider under s 67(3a) and (4) and found that:
·the applicant has an unaddressed capacity to deceive;
·the applicant had not organised or pursued intervention appropriate to his needs in the community in the past;
·the applicant likely would not comply with his parole conditions in the light of his history of breaching parole;
·the applicant needed to explore the underlying motivation for his offending in the light of his complex issues; and
·the applicant had insufficient intervention to deal with his substance abuse and anti-social personality disorder.
The respondent was further not satisfied that the applicant has true empathy or remorse. In the light of those matters the respondent was not sufficiently confident that the applicant could be managed safely within the community and accordingly declined to grant parole.
The submissions
The applicant set out 19 issues in his Statement of Facts, Issues and Contentions (SFIC) which I take to be his grounds of review. The written submissions of the applicant do not generally address the issues identified in SFIC. The applicant addressed some of these issues in oral submissions but abandoned others. His oral submissions raised additional issues. Overall, it appears that the applicant is complaining about a number of factual conclusions within the respondent’s reasons for decision. Several of the issues raised in his SFIC appear to seek an impermissible merit review. The respondent contends that the factual matters identified do not rise to the level of an error of law and are not amenable to judicial review.[11] In his oral submissions, the applicant appeared to accept that this was correct but made the submission that it was necessary for the Court to look at the whole of the decision and implicitly submitted that the totality of the factual errors he asserts have been made by the respondent amounts to an error of law. I have considered the grounds individually and in combination. I do not consider that the applicant has demonstrated an error of law.
[11] Re Minister for Immigration and Multicultural Affairs ex parte applicant s 20/2002 (2003) 198 AR 59 and Australian Broadcasting Tribunal v Bond [1990] 170 CLR 321.
I will deal first with the refusal decision and then with the reapply decision.
The refusal decision
Ground 2: Purported Decision
The applicant says that the reasons for refusal do not address any new consideration “they only state their original decision of 7 September 2022 (which is not a lawful decision) and should not be referred to in totality”.
I have already dealt with the reasons for the purported decision above. It is my view, that it was appropriate for the respondent to refer to those reasons.
It is not entirely clear what the applicant means by his submission that the Board does not address any new considerations. The considerations that the Board is required to address are set out in the legislation. The reasons for the refusal decision and the Parole Board advice form relating to that decision indicate that the Board had regard to all material provided to it, including material provided after the purported decision. I dismiss this ground of appeal.
Ground 3 – failure to reinterview
In ground 3, the applicant complains that the respondent did not reinterview him prior to making the refusal and reapply decisions. The Board was not obliged to reinterview the applicant. He had been interviewed prior to the purported decision. He was provided with the opportunity to make further submissions to the Board and to provide any additional material. He availed himself of that opportunity. I dismiss this ground of appeal.
Grounds 4, 5, 9, 10, 13, 14, 15 and 17: Failure to consider relevant matters
These grounds appear to be complaints that the respondent failed to consider relevant matters in determining the applicant’s application.
Failure to have regard to a consideration only vitiates a decision where the Act binds the decision maker to have regard to that consideration.[12] The Board was obliged to address relevant mandatory considerations set out in s 67 (3a) – (4) of the Act. It is apparent from the decision that these mandatory matters were considered.
[12] Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 at [39] (Mason J).
In ground 4, the applicant complains about reliance on a psychological report of Dr Lorraine Lim dated 3 June 2020. In particular the applicant complains about the respondent’s reliance on Dr Lim’s report about “questioning the applicants self-reports”. This appears to be a reference to Dr Lim’s comment that:
The veracity of most of his self-reports were also deemed to be questionable, except where corroborating medical information was available, given his well-established propensity to misrepresent the truth, omit information (e.g., with regards to his drug use when speaking to professionals), and embellish his personal stories.[13]
[13] Report of Dr Lim dated 3 June 2020 (FDN 18, exhibit EFN-5).
The respondent is required to consider reports on the psychological and psychiatric condition of the applicant under s 67 (4)(f)(i). It is noteworthy that the applicant also relied upon aspects of Dr Lim’s report in a submission to the respondent.[14]
[14] Submission on release on parole Exhibit A to the Affidavit of Samuel Mark Narroway sworn on 8 March 2023 (p. 29).
The applicant disputes Dr Lim’s assessment of the veracity of his self-reports. He contends that his self-reports are corroborated by evidence which has been provided to the respondent on numerous occasions. It is not clear specifically what issues the applicant is referring to however, the Board did satisfy itself concerning his veracity as is evident from its reasons for refusal. To enquire further into this topic would be to undertake an impermissible merits review of the refusal decision.
Ground 5 is a complaint about the respondent’s failure to consider the views of others including the sentencing Judge, Dr Lim and community correction officers. Section 67(2) requires the respondent to determine applications for parole. It is required to take the remarks of a sentencing Judge into consideration when making a decision, it is not however bound to accept those recommendations.[15] In relation to Dr Lim as noted above, the respondent is required to consider psychological and psychiatric reports, but it is not bound to accept the recommendations contained in those reports.
[15] Bain v The State of South Australia [2020] SASC 234 at [48] (Stanley J).
The reference to Community Corrections was identified in the applicant’s oral. He contends that the refusal decision does not consider remarks made on 17 June 2019 in his Department for Correctional Services Offender Case Notes whereby Ms Carlton states:
Mr Narroway was released onto parole on 13/12/18. During this time he breached his no-drugs condition and was returned to custody (18/02/19 – 25/02/2019). He commenced relapse prevention counselling with Drug Arm but it is doubtful he will continue after today. Mr Narroway’s attitude was not always positive, and he made many attempts to control supervision and his reporting times. He was challenged on this several times. Overall, Mr Narroway would be considered suitable for further supervision if brought before the Courts again.
The respondent is not bound to consider or accept the Offender Case Notes in determining applications for parole.
In ground 9, the applicant states that the respondent made a decision that “his (the applicant) statements are (not) capable of being supported by objective evidence.” The applicant contends that such evidence was in fact provided but not mentioned by the respondent. To the extent that the applicant’s complaint is that the respondent failed to consider “evidence” he provided, it is clear that the respondent did consider the material provided by the applicant with his application. The respondent also afforded him the opportunity to make further submissions in December 2022 and January 2023. He does not particularise the evidence that he contends the respondent failed to consider.
Grounds 10 and 17 relate to the availability of rehabilitative services. In those grounds the applicant contends that the respondent failed to consider the rehabilitative options available to him in custody. The respondent is an independent statutory body. It is not the Department for Correctional Services. The capacity of that Department to offer rehabilitation to the applicant is not a matter within the respondent’s control. The respondent is obliged to consider the matters appearing in s 67 (3a) and (4) of the Act. The respondent is not bound to consider the availability of rehabilitation in custody in determining applications for parole.[16] The respondent’s stated concern was the fact of the applicant’s non-completion of rehabilitation. It was not obliged to determine whose fault the non-completion might be. The paramount consideration for the respondent in determining applications for parole is the safety of the community. The respondent determined that the applicant had had insufficient intervention to deal with his issues and was not confident he could be managed safely in the community. This finding was open to the respondent in the light of the matters under consideration including the applicant’s prior history of deception and fraud-based offending, and his behaviour twice previously on parole.
[16] Bain v The State of South Australia [2020] SASC 234 at [50].
In grounds 13, 14 and 15, the applicant contends that the Board has failed to take into account multiple rehabilitative efforts on his part. I reject this contention. The documentary evidence of the applicant’s rehabilitative efforts was before the respondent when it was determining his application for parole. It appears that the respondent did consider the material but deemed the rehabilitation insufficient. That finding was open to the respondent on the material before it. Again, to investigate this complaint further, would be to undertake an impermissible merits review.
I therefore reject grounds 4, 5, 9, 10, 13, 14, 15 and 17.
Ground 6: Adequacy of reasons
Ground 6 contends as follows:
If it is determined that the refusal dated 20 February 2023 is the “sole refusal” (as the 7 September 2022 refusal was not lawful) the new reasons for refusal letter doesn’t actually state any reasons. It merely states what I said in my submissions.
As indicated above, it is my view there was nothing improper in the Board annexing the reasons for the purported decision as part of its refusal decision. The reasons for the refusal decision are constituted of both the 7 September 2022 reasons and the reasons for refusal dated 20 February 2023.
The reasons are not inadequate. The statement of reasons clearly sets out the basis for the respondent’s decision as to why the applicant was not suitable for release on parole. The purpose of written reasons of an administrative decision maker is to “inform and not to be scrutinised upon by overzealous judicial review seeking to discern whether some inadequacy may be gleaned from the way in which the reasons are expressed”.[17] I dismiss this ground of appeal.
[17] Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) CLR 259 at [272].
Ground 7, 8 and 16: Purported error of law – sentences
Grounds 7 and 16 of the SFIC appear to be essentially the same.
Ground 7 reads:
The PBSA’s reasons for refusal are based on multiple sentences being assumed to be separate offending events rather than concurrent single offending.
Ground 16 reads:
The board considered all sentences as separate offending rather than concurrent sentence.
There is nothing in the reasons for refusal that suggests that this contention is correct. The parole board merely states the appellant has a history of deception and dishonesty. In any event, whilst some sentences imposed upon the applicant were ordered to be served concurrently, there was in fact no “concurrent single offending”. The fact that a sentence of imprisonment is ordered to be served concurrently does not change the fact that a sentence of imprisonment has been ordered for a distinct offence or set of offences charged under one Information. There is no error of law.
Ground 8 states “reasons for refusal contain fictitious and false information about sentencing in June 2019”.
The respondent did err in recording the date upon which the applicant was convicted of 27 offences and a breach of a suspended sentence bond. This is an error that carried through from the remarks on penalty of Magistrate Nitschke.[18] The date was in fact in 2011 not 2019 as stated in the sentence and repeated in the respondent’s reasons. This is a minor error that had limited significance. It is not an error of law which invalidates the refusal decision. This is the only error identified by the applicant.
[18] Remarks on penalty dated 25 February 2022 (FDN 18, exhibit EFN-7).
I dismiss grounds 7, 8 and 16.
Ground 11: Consideration of irrelevant matters
Ground 11 is a complaint about the reasons for the purported decision. The respondent says:
The applicant told the Parole Board he did not understand why he did some things, and he wished to work with a psychologist and the Board would certainly encourage him to do that. He said that most of his offending has been for financial gain, however, the impersonation of a Police Officer was not only premeditated but resulted in no financial gain. It seemed to the Board more like an indulgence in power on the part of “the applicant” but those are matters he needs to explore with someone who is qualified to deal with his complex issues.
The respondent accepts that in relation to one of the three counts of falsely representing a Police Officer, the applicant did obtain a financial benefit. However, two of the applicant’s three counts of impersonating a Police Officer did not result in financial gain. [19] To the extent that the motive for those offences is unexplained, it was open to the respondent to view that as a relevant consideration. This is particularly so in view of the applicant’s statement to the respondent that he does not understand why he did some things and his further statements to Dr Lim that he and his co-accused offended in this way “just for fun”.[20]
[19] Sentencing remarks of Tracey J dated 6 November 2020 (FDN 18, exhibit EFN-6) (p. 66).
[20] Report of Dr Lim (FDN 18, exhibit EFN-5).
The motivation for an applicant’s offending is a relevant consideration, in circumstances where the respondent’s paramount consideration in determining applications for parole is the safety of the community. The respondent is bound to consider the likelihood of compliance with parole conditions. In any event this is an error of fact which does not rise to the status of an error of law. I dismiss this ground of appeal.
Grounds 18 and 19: Legal unreasonableness
In these grounds the respondent contends as follows:
18. The refusal was unfair, unjust, and un-ethical and was manifestly excessive,
19. The decision was totally unreasonable and can’t be made by the Parole Board property exercising its jurisdiction.
When exercising its discretion to grant release on parole under s 67 of the Act, the respondent is constrained by an implied obligation of reasonableness.[21] These principles are conveniently summarised by Doyle J in Agius.[22]
[21] Agius v The Parole Board of South Australia [2020] SASC 225 at [42].
[22] See [42] to [50].
It is my view that the decision to refuse the application for parole was open on the basis of the material before the respondent. Amongst other things, that material supported the board’s findings that:
·the applicant is incarcerated for serious offending and has a history of criminal offending relating to deception and dishonesty;
·the applicant’s recent expressions of remorse can be viewed with scepticism;
·the offending for which he is incarcerated was committed after expressions of regret and remorse for earlier offending of a similar kind;
·the applicant lacks insight into his own behaviour and the full extent of his risk factors;
·the applicant has previously breached parole and his response to supervision in the past has been poor;
·the applicant still requires intervention to deal with his substance abuse and anti-social personality traits; and
·the applicant is at high risk of reoffending in a similar manner to his previous offending.
It is my view that the refusal decision was clearly open to a reasonable decision maker and does not lack an evident and intelligible justification. I dismiss these two grounds of appeal.
Ground 12: Safety of the Community
In Ground 12 the applicant contends as follows:
The board states I can’t be managed in the Community, in contradiction to the functions of Community Corrections Offices.
The applicant also made oral submissions in support of this proposition. In particular he questioned how leaving him in custody until the end of his sentence and then releasing him with no supervision is to the benefit of the community. This is a relevant consideration. The paramount consideration of the respondent in the determination of applications for parole is the safety of the community. It is clear that the board had this firmly in mind in making the refusal decision. The respondent, in making that decision, was not satisfied that the applicant could be managed safely within the community, and accordingly declined to grant parole. I dismiss this ground of appeal.
Other issue raised in submissions
The applicant contended in his oral submissions that the respondent has not followed the Act because they did not inform him of ways to improve his application on the next occasion. The reasons for the purported decision state, “we would encourage [Mr Narroway] to work on his outstanding treatment needs.” The refusal decision includes, as outlined above, the purported decision. The treatment needs were identified in the reasons for both the purported decision and the refusal decision. It is my view that the Parole Board has complied with its obligation to provide the applicant with the necessary ways to improve his application.
The reapply decision
Ground 1 of the applicant’s appeal says that the reasons for refusal by the respondent do not address reapply dates.
The respondent is under an obligation to set a re-apply date and notify the prisoner in writing of that date.[23] There is no obligation that such a date be included in the written reasons for refusal. The applicant was notified in writing of the reapply decision on or around 28 February 2023.
[23] Section 67(9).
In submissions that applicant contended that the reapply decision should not have been made and the date on which he could reapply for parole should remain 23 August 2024 as was the case with the purported decision. The reapply decision was made in the face of the respondent’s obligation to provide a date not less than six months but no longer than one year before which the respondent would accept any further applications by the applicant before release on parole. That obligation only arises following the refusal of an application for parole. The respondent was bound by s 67(9)(c) to determine a relevant date following the refusal of the applicant’s application on 17 January 2023. This is discretionary decision-making power. The applicant has not identified any basis on which that discretion miscarried. The reapply decision is valid. I dismiss this ground of appeal.