Osman v Parole Authority of NSW

[2021] NSWSC 975

Supreme Court

New South Wales

Medium Neutral Citation:

Osman v Parole Authority of NSW [2021] NSWSC 975

Hearing dates:

3 August 2021

Date of orders:

3 August 2021

Decision date:

03 August 2021

Jurisdiction:

Common Law

Before:

Fagan J

Decision:

Summons dismissed.

Plaintiff pay the second defendant’s costs.

Catchwords:

ADMINISTRATIVE LAW — Judicial review — Decision of State Parole Authority — Standing over review of decision to revoke intensive correction order — Whether denial of procedural fairness — Whether predominant weight given to community protection — s 175 Crimes (Administration of Sentences) Act 1999 (NSW)

Legislation Cited:

Crimes Act1900 (NSW)

Crimes (Administration of Sentences) Act 1999 (NSW)

Crimes (Domestic and Personal Violence) Act 2007 (NSW)

Crimes (Sentencing Procedure) Act 1999 (NSW)

Evidence Act 1995 (NSW)

Category:

Principal judgment

Parties:

Kasam Osman (Plaintiff)
Parole Authority of NSW (First defendant)
Attorney General of NSW (Second defendant)

Representation:

Counsel:
E Özen SC with T Krayem (Plaintiff)
K Heath (Second defendant)

Solicitors:
Cordoba Legal (Plaintiff)
Crown Solicitor’s Office (Defendants)

File Number(s):

2021/209479

Publication restriction:

No

Judgment

1. This is the final hearing of an amended summons filed on 22 July 2021. The plaintiff seeks judicial review of a decision of the Parole Authority made on 21 July 2021. It was a decision to stand over the Authority’s review of its earlier revocation of an interim correction order to which the plaintiff is subject. The Parole Authority is the first defendant and it has filed a submitting appearance. The second defendant is the Attorney General, who has been represented in the proceedings and has made submissions through Ms Kathleen Heath of counsel. The relief claimed in the plaintiff’s amended summons includes an order in the nature of certiorari quashing the Authority’s decision to stand over the review proceedings and an order in the nature of mandamus requiring the Authority to determine whether it will rescind the revocation of the interim correction order.

2. On 16 November 2020 in the Local Court at Liverpool the plaintiff was sentenced to an aggregate term of nine months’ imprisonment commencing that day. The sentence was in respect of an offence of assault occasioning actual bodily harm in company with others, committed on 7 July 2019 contrary to s 59(2) of the Crimes Act 1900 (NSW), and an offence of stalk or intimidate with intent to cause fear or physical harm contrary to s 13 of the Crimes (Domestic and Personal Violence) Act 2007 (NSW). The evidence before the Court does not reveal who was the victim of the earlier offence of assault occasioning actual bodily harm.

3. Pursuant to s 7 and Pt 5 of the Crimes (Sentencing Procedure) Act 1999 (NSW) the magistrate at Liverpool ordered that the nine months term of imprisonment be served by way of interim correction order in the community (“ICO”). In accordance with s 73 of the Crimes (Sentencing Procedure) Act the ICO was subject to a standard condition that the plaintiff "must not commit any offence".

4. On 1 June 2021, while the ICO was still in force, the plaintiff was arrested on a charge that on that day he did take and detain, in company and with intent to ransom and with the infliction of actual bodily harm, one Dillon Mancuso. The charge is laid under s 86(3) of the Crimes Act. The plaintiff was also charged with participating in a criminal group contrary to s 93T(1) of the Crimes Act. He was remanded in custody on these charges from 1 June until 8 June 2021. On the latter date he was granted conditional bail in the Local Court at Bankstown and was released on that bail.

5. In the meantime, on 3 June 2021 a Community Corrections Officer acting under s 163(1) of the Crimes (Administration of Sentences) Act 1999 (NSW) concluded that the plaintiff had failed to comply with the condition of the ICO that he not commit any offence. Pursuant to s 163(3), on 3 June 2021 the officer referred the breach to the Parole Authority by way of a report of that date recommending that the ICO be revoked. Up until 1 June 2021 the plaintiff had complied with the terms of the ICO and had responded satisfactorily to supervision to the point where it had been found appropriate to suspend supervision on 19 February 2021. Sections 162, 164 and 164A of the Crimes (Administration of Sentences) Act make provision for the revocation of intensive correction orders as follows (extracted so far as relevant to the present issue):

162 Conduct of inquiry into suspected breach of obligations

(1)   If the Parole Authority has reason to suspect that an offender has failed to comply with the offender’s obligations under an intensive correction order, the Parole Authority may, whether or not the order has expired, conduct an inquiry into the matter.

(2)   The offender to whom the intensive correction order relates may make submissions to the Parole Authority in relation to the matters under inquiry.

164 Actions by Parole Authority on breach of intensive correction order

(1)   This section applies if the Parole Authority is satisfied that an offender has failed to comply with the offender’s obligations under an intensive correction order.

(2)   The Parole Authority may take any of the following actions—

[…]

(e)   make an order revoking the intensive correction order (a revocation order).

164A Revocation orders

(1A)   A revocation order under this Division may be made—

(a)   whether or not the offender has been called on to appear before the Parole Authority, and

(b)   whether or not the Parole Authority has held an inquiry.

(1)   A revocation order takes effect, or is taken to have taken effect, on the date on which it is made or on such earlier date as the Parole Authority thinks fit.

(2)   The earliest date on which the revocation order may take effect is the date of the first occasion on which it appears to the Parole Authority that the offender failed to comply with the offender’s obligations under the intensive correction order.

(3)   If an offender is not taken into custody until after the day on which the revocation order takes effect, the term of the offender’s sentence is, by this subsection, extended by the number of days the person was at large after the order took effect.

6. On 15 June 2021, without hearing from the plaintiff, the Parole Authority made an order revoking the ICO with effect from 1 June 2021. Pursuant to s 181 of the Act a warrant was issued for the plaintiff to be apprehended and delivered into the custody of Corrective Services. The warrant was executed on 15 June 2021. By the application of subs (3) of s 164A the term of the ICO has been extended by seven days, being the seven days for which the plaintiff was at large following his release on bail until his arrest under the Authority’s warrant. It is common ground that his sentence will now expire on 22 August 2021.

7. Upon the plaintiff’s arrest under the warrant and the commencement of full-time custody he was served with a statutory notice of revocation as required by s 173. Section 173(2)(b)(i) requires that the notice must state a date between 14 and 28 days after service of the notice upon which the Parole Authority will meet for the purpose of reconsidering the revocation of the intensive correction order. In compliance with that requirement the revocation notice served on the plaintiff nominated 21 July 2021 as the date for the review hearing. The plaintiff signed an acknowledgement that he had received the notice and that he wished to be legally represented at the hearing.

8. The constitution of the Parole Authority and the conduct of proceedings at its meeting that duly took place on 21 July are matters governed by the following provisions of the Crimes (Sentence Administration) Act:

174 Review of revocation

(1)   If an offender duly notifies the Secretary of the Parole Authority that the offender intends to make submissions to the Parole Authority, the Chairperson of the Parole Authority must convene a meeting of the Parole Authority, on the date set by the revocation notice, to conduct a hearing for either or both of the following purposes, as the case requires—

(a)   for the purpose of reconsidering the revocation of the intensive correction order or parole order, or

[…].

(2)   At the hearing, or at a hearing conducted at a subsequent meeting, the offender may make submissions to the Parole Authority with respect to the revocation of the intensive correction order or parole order.

175 Decision after review

(1)   After reviewing all the reports, documents and other information placed before it, the Parole Authority must decide whether or not—

(a)   to rescind the revocation of the intensive correction order or parole order concerned, or

[…]

(2)   In determining a review of the revocation of a parole order, and without limiting subsection (1), the Parole Authority may take into account any behaviour of the offender, including whether the offender is alleged to have committed any offences while released on parole or after the revocation of the parole order.

183 Constitution of Parole Authority

(1)   There is constituted by this Act a State Parole Authority.

(2)   The Parole Authority is to consist of the following members—

(a)   at least 4 (referred to as judicial members) are to be judicially qualified persons appointed by the Governor,

(b)   at least one is to be a police officer appointed by the Commissioner of Police,

(c)   at least one is to be an officer of Community Corrections appointed by the Commissioner of Corrective Services,

(d)   (Repealed)

(e)   at least 10 (referred to as community members) are to be persons, appointed by the Governor, who reflect as closely as possible the composition of the community at large.

[…]

(4)   Schedule 1 has effect with respect to the constitution and procedure of the Parole Authority.

Schedule 1

11 General procedure

(1) Except as otherwise provided by this Act or the regulations—

(a)   meetings of the Parole Authority are to be held at such times and places as are fixed by the Chairperson, and

(b)   the procedure for the convening of meetings of the Parole Authority and for the conduct of business at those meetings is to be as determined by the Chairperson.

(2)   The Parole Authority may from time to time adjourn its proceedings to such times, dates and places and for such reasons as it thinks fit.

(3)   The Parole Authority is not bound by the rules of evidence, but may inform itself of any matter in such manner as it thinks appropriate.

(4)   Proceedings before the Parole Authority—

[…]

(b)   are not to be conducted in an adversarial manner, and

(c)   are to be conducted with as little formality and technicality, and with as much expedition, as fairness to any affected person and the requirements of this Act permit.

(5)   A decision of the Parole Authority is not vitiated merely because of any informality or want of form.

9. The plaintiff’s present counsel, Mr Ozen, SC, appeared for him on 21 July 2021 before the Parole Authority. The material considered by the Authority included the following. In describing the material I will refer to some features of it that are relevant to the argument that has been presented to the Court on the hearing of the amended summons.

1. The plaintiff’s criminal history. This showed that the plaintiff’s prior matters included robberies whilst armed with a dangerous weapon in company, being offences committed in 2009 when he was aged 20 years. In September 2010 he was sentenced for those matters to a total effective term of 5 years with a non-parole period of 3 years and 6 months. That is the longest period of custody that he has previously served.

2. The police facts sheet in relation to the current charges. Police allege that seven or eight men, two of them armed, forced their way into a house in Bringelly where Mr Mancuso was residing with family members. This occurred at 3:00 am on 1 June 2021. The men removed Mr Mancuso forcibly and took him to a warehouse at 23/65 Marigold Street, Revesby. The plaintiff and one Yaseer Jaffar carry on a car and motorbike hire business at that location. One or more other businesses are carried on by other persons from the same address. The police facts do not allege that the plaintiff was one of the seven or eight men who seized Mr Mancuso. They do allege that the plaintiff attended the warehouse where Mr Mancuso was being detained at about noon on 1 June 2021, in company with two others. Police allege that the plaintiff and the two men accompanying him went inside the warehouse for a brief period. This was apparently observed by surveillance officers. It is alleged that the plaintiff and his two companions were arrested on leaving the premises. The precise role alleged against the plaintiff is not clear on the statement of facts. In June the Local Court ordered the prosecution to serve the police brief of evidence by 14 July 2021 but this had not occurred by the time the Parole Authority conducted its hearing on 21 July 2021.

3. Notice of further listing of the charge. The material before the Parole Authority showed that the plaintiff had been ordered to appear again before Bankstown Local Court on 3 August 2021, by which time it was expected that the police brief would have been served and that the defence would have been in a position to respond to it. On information provided to this Court this morning, prior to the matter being again mentioned in Bankstown Local Court it appears that police were proposing to seek from the magistrate today further time within which to serve the brief of evidence.

4. The breach report of the Community Corrections officer dated 3 June 2021. The officer expressed in that report the view that the plaintiff appeared to pose a risk to the community in light of the charges that were laid against him on 1 June 2021.

5. The sentencing assessment made by Community Corrections and dated 11 November 2020 which was provided to the Local Court at Liverpool when the plaintiff was sentenced by that Court on 16 November 2020.

6. The ICO dated 16 November 2020.

7. An affidavit from the plaintiff deposing that he was at home with his wife and five children when the kidnapping of Mr Mancuso is alleged to have occurred in the early hours of 1 June 2021. He also deposed to considerable financial, emotional and other needs of his family that are said to be adversely affected by his incarceration. These concerns include, as deposed in this affidavit, health issues with respect to his children and the prospect of the loss of the family’s right to continue residing in their present accommodation.

8. An affidavit of the plaintiff’s wife further elaborating the family’s needs and the adverse effect upon them of the plaintiff’s imprisonment.

9. Two affidavits of Yaseer Jaffar confirming the conduct of the car and motorbike hire business at the premises in Marigold Street, Revesby and contending that the profitability of the business has suffered due to the plaintiff’s incarceration.

10. At the hearing before the Authority on 21 July 2021 Mr Ozen referred to all of the above material and argued that the Authority should rescind its revocation order of 15 June 2021. For the purpose of the hearing on that day the Authority was constituted by his Honour Judge Moore as Chairman, Ms S Gilmour as appointee of the Corrective Services Commissioner, Ms J Sinclair as appointee of the Commissioner of Police and two community members. The evidence tendered in this Court in support of the amended summons includes a transcript of the proceedings before the Authority. It appears from the transcript that at the conclusion of Mr Ozen’s argument, which was thorough, lengthy and detailed, the Authority adjourned briefly to enable members to confer amongst themselves.

11. On resuming, the Chairman on behalf of the Authority referred to the lack of clarity in the materials that had been received regarding the police case on the current charges. His Honour made these remarks, addressing the plaintiff directly:

Of course, the fact sheet becomes somewhat vague as to whether it is the unit to which you say, through Mr Ozen, you were engaged in some form of employment or the unit where Mr Mancuso was being detained. The police statement of facts states that you and others alone, you entered the unit; again, that becomes somewhat unclear, and you very quickly thereafter removed yourself from the unit carrying the fast food that you entered within.

[..] It would have been of course most helpful if further material had have been made available by the informant in respect of the charge. […]

12. Shortly after those observations about the lack of certainty about the case against the plaintiff on the charges laid on 1 June 2021, the Chairman continued as follows:

We also, as I already indicated, must be of consideration of the principal terminology found in the legislation; that is the interest of the safety of the community. We go back to stating that you are serving a custodial sentence in the community for an act of violence in company. Again, the material observes that you potentially engaged or alleged you engaged in a further act of violence potentially in the company of others at the point in time.

We are not satisfied that it is in the interest of the community to return you back to the community. We are proposing, and I appreciate that Mr Ozen will not be supportive of this, but proposing to stand the matter over to 18 August for the results of 3 August [referring to the next listing at Bankstown Local Court]. We have a police representative here. Hopefully the police representative will be able to obtain more material that is in the hands of the informant.

The Chairman then announced that the hearing was stood over to 18 August.

13. The second defendant does not contest that the Court has jurisdiction to undertake a judicial review of the Authority’s administrative decision to adjourn its reconsideration of the revocation order from 21 July 2021 and thus to refrain from making a final determination on that date whether it would rescind the revocation. The grounds of review argued by the plaintiff, as defined by his amended summons, his counsel’s written submissions and the oral argument, are as follows:

1. There was a denial of procedural fairness in that the Authority did not canvass the possibility of an adjournment during Mr Ozen’s submissions and then adopted that course without offering the opportunity for the plaintiff to be heard directly against it.

2. It was a denial of procedural fairness for the Authority to stand the hearing over on the basis that the Police Commissioner’s appointee would make further enquiries about the prosecution case on the current charges.

3. The Authority was bound to decide the question of rescinding or not rescinding the revocation order at its hearing on 21 July and had no power to stand the question over.

4. The Authority wrongly gave predominant weight to the consideration of protection of the community.

Failure to hear the plaintiff regarding an adjournment

14. It is correct that the possibility of the Authority standing over its hearing was not discussed prior to the members adjourning for private discussions and then resuming to announce the course that would be taken. However, the only considerations that could be relevant to whether or not the review should be stood over had been fully exposed in the materials that bore upon whether the revocation order should be rescinded and every consideration relevant to adjournment had been fully agitated in Mr Ozen’s comprehensive submissions referring to that material. Self-evidently to the Authority and to all concerned in the hearing, the effect of standing over was that the plaintiff would in the meantime serve another month of his sentence by way of full-time custody instead of by way of an ICO in the community. The factual considerations and the arguments bearing upon adjournment and upon rescission of the revocation order were identical and inseparable.

14. Further, the relevant requirement of procedural fairness is that the affected party should have an opportunity to be heard. There was such an opportunity in that the Chairman stated that an adjournment was proposed, stated that he perceived Mr Ozen would “not be supportive” of that course and then proceeded to announce the adjourned date. With senior counsel present there was inherently an opportunity to make submissions in opposition to this. There is no formality in the proceedings of the Authority, as is apparent from cl 11 of Sch 1 to the Act and from the transcript. The Authority did not become functus officio by the Chairman pronouncing the standing over to 18 August. For the Authority there is no equivalent of the finality of entry of a dispositive order that is made in court proceedings. It was open to Mr Ozen to ask that he be heard further specifically on the subject of adjournment but no such request was made for the very sensible reason that no more could have been said when everything material to opposing the adjournment had been said in support of rescission.

Enquiries to be made by the Commissioner of Police appointee

16. Clauses 11(3) and 11(4)(b) and (c) of Sch 1 are a complete answer to the plaintiff’s complaint about the Chairman having foreshadowed that the “police representative” might be able to find out more about the prosecution case. The plaintiff submitted that the statutory power of the Authority to “inform itself of any matter in such manner as it thinks appropriate” has no greater effect than to exclude the rigour of the Evidence Act 1995 (NSW) and that it does not permit a member of the Authority to initiate enquiries. It is submitted that the Authority can only act upon materials that are placed before it by someone other than one of its members.

17. I find no basis for reading down cl 11 in Sch 1 in this way. Further, even if the plaintiff’s interpretation of cl 11 were correct I do not consider that any denial of procedural fairness would arise on this basis unless and until information should be gathered by the appointee of the Commissioner of Police and then relied be upon by the Authority in making a final decision about rescission without disclosing to the plaintiff what that material was or giving him an opportunity to meet it. Assuming at the highest that it is not open to a member of the Authority to initiate enquiries or to procure further information, doing so could not lead to procedural unfairness unless and until additional information was so procured and acted upon by the making of an order that would affect the plaintiff’s rights in a substantive way.

18. Further, upon the police representative making enquiries it would be expected that any further material that could be produced by police to enlighten the Authority about the current charges would indeed be placed before the Authority by a person or entity other than the Authority itself, namely, by the investigating police. This would appear to answer one of Mr Ozen’s submissions about the correct construction of cl 11 of Sch 1 to the Act.

The obligation of the Authority to decide upon rescission forthwith

19. The plaintiff submits that the mandatory terms of s 175(1) do not permit the Authority to stand over its review of a revocation order but require it to decide the matter on the hearing that must be scheduled, under s 173(2)(b)(i), on a date between 14 and 28 days after the notice of revocation has been served. This contention cannot stand with s 174(2) and cl 11(2) of Sch 1. Section 175(1) and cl 11(2) are reconcilable with each other. Section 175 does not purport to limit the “reports, documents and other information placed before” the Authority to those which may be to hand upon the initial hearing. It is consistent with ss 174(2) and 175(1) that the hearing may be stood over for the purposes of receiving further information and that only when all material is before it shall the Authority be bound to make its final decision. In any event, upon standing over the proceedings from 21 July 2021 the Authority in substantive effect did decide on that date not to rescind the revocation order at that time. If a decision under s 175 is mandatory it may be regarded as having been made, albeit that the Authority did not foreclose the possibility of making a rescission order at a later date.

Giving predominant weight to one consideration

20. The plaintiff accepted that in deciding whether to stand down the hearing the safety of the community is and was a relevant consideration that the Authority could take into account. This is a proper acknowledgement and in my view is clearly correct. The plaintiff submitted there was an error of law in the Authority treating this as a predominant or overwhelming consideration. I do not accept that the Authority did that. The Chairman’s words do not reveal any such reasoning. On the contrary the most significant consideration underlying the Authority’s decision appears to have been the lack of sufficient particulars of the plaintiff’s alleged involvement in the take and detain offence and the lack of clarity about the nature and strength of the evidence that the prosecution will rely upon to support those particulars.

21. This final ground, as articulated by the plaintiff, on my analysis resolves into a contention that too much weight was given to an admittedly relevant factor. This is not a valid basis for judicial review of administrative action and in any event the factual foundation is not made out, on a fair reading of the Chairman’s remarks.

Orders

1. For these reasons I do not find that any of the grounds of review raised by the plaintiff are substantiated and the summons must be dismissed.

2. [Counsel made submissions on costs]. It seems to me that the second defendant is entitled to its costs of the proceedings and I do not think the fact of the self-evidently criminal underpinnings of the case create an exception to that. I must order that the plaintiff pay the second defendant’s costs of the proceedings and I do so order.

Afterword

22. The above reasons were given orally at the end of the day on which the hearing of the amended summons took place. I add these observations. The Court’s power to intervene with respect to decisions such as that which was challenged in this case is limited to instances of the Authority exceeding its jurisdiction, failing altogether to exercise its powers, not according procedural fairness, making some error of law on the face of the record, or other recognised administrative law ground. The Court has no jurisdiction to re-assess the evidence before the Parole Authority in order to arrive at its own conclusion on the merits of rescinding the revocation of the ICO or of adjourning consideration of that issue.

23. However, the course taken, being to stand over determination of the issue for 28 days when the ICO had only 33 days to run, gave the appearance that the issue of rescission was for all practical purposes being resolved against the plaintiff but without the Authority saying so or providing reasons to justify that substantive outcome. To bring about a substantive result, adverse to an applicant, by the indirect mechanism of merely putting off substantive deliberation and decision-making, is bound to generate a sense of grievance and a loss of confidence in the administration of the law in any jurisdiction. This is a matter of particular concern in a field where liberty is affected and, as members of the Authority know better than anyone, grievances are keenly felt. The issue before the Authority on 21 July 2021 had much in common with an application for bail. Adjournment of a bail application, without explicit decision, for any significant period of time is bail refused for that duration.

24. To maintain confidence in the Authority’s decisions under s 175 of the Crimes (Administration of Sentences) Act such decisions need to be made promptly. If an adjournment to gather further information is necessary, it is highly desirable that that should be for a period that is very short relative to the remaining term of the sentence and the ICO. In respect of an offender who has been given the benefit of an ICO by a sentencing court, continuation of full-time custody by deferral of the decision of the Authority should be avoided altogether, or at least kept to an absolute minimum – and very much less than four weeks.

**********

Decision last updated: 05 August 2021