Rodgerson v Attorney-General

Case [2024] FCA 1354

FEDERAL COURT OF AUSTRALIA

Rodgerson v Attorney-General [2024] FCA 1354

File number(s): VID 574 of 2024
Judgment of: ANDERSON J
Date of judgment: 25 November 2024
Catchwords: ADMINISTRATIVE LAW – application for judicial review of decision to refuse parole – statutory framework concerning parole decisions for federal offenders – whether the applicant was afforded procedural fairness both generally, and specifically – whether there was apprehended bias in the parole decision – no grounds for review made out – application dismissed.
Legislation: Crimes Act 1914 (Cth)
Cases cited:

Bullmorev Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2024) 304 FCR 370; [2024] FCAFC 99

Khawaja v Attorney-General(Cth) (2022) 293 FCR 396; [2022] FCA 334

Khazaal v Attorney-General [2020] FCA 448

Lazarus v Attorney-General (Cth) [2024] FCA 1021

Lodhiv Attorney-General(Cth) [2020] FCA 1383

Stephens v Attorney-General [2021] FCA 204

Division: General Division
Registry: Victoria
National Practice Area: Federal Crime and Related Proceedings
Number of paragraphs: 61
Date of hearing: 24 October 2024
Counsel for the Applicant: The Applicant appeared in person
Counsel for the Respondent: Mr T Glover SC
Solicitor for the Respondent: Australian Government Solicitor

ORDERS

VID 574 of 2024
BETWEEN:

PAUL RODGERSON

Applicant
AND:

ATTORNEY-GENERAL OF THE COMMONWEALTH OF AUSTRALIA

Respondent

ORDER MADE BY:

ANDERSON J

DATE OF ORDER:

25 NOVEMBER 2024

THE COURT ORDERS THAT:

1.The application for judicial review be dismissed.

2.The Applicant pay the Respondent’s costs of and incidental to the application, such costs to be agreed or, in default of agreement, to be fixed by a Registrar of the Court.

Note:   Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.


REASONS FOR JUDGMENT

ANDERSON J:

INTRODUCTION

  1. By originating application filed on 25 June 2024, the applicant, Mr Paul Rodgerson, seeks judicial review of the decision of a delegate of the Attorney-General of the Commonwealth of Australia, made on 2 June 2024, to refuse to release him on parole pursuant to s 19AL of the Crimes Act 1914 (Cth) (the Refusal Decision).

  2. Mr Rodgerson raises two grounds of review, being:

    (a)the Attorney-General failed to take relevant considerations into account in the exercise of power which resulted in a breach of procedural fairness; and

    (b)the Attorney-General displayed apprehended bias by not bringing an impartial and unprejudiced mind to the decision they were required to make.

  3. These grounds of review are expanded on and explained in Mr Rodgerson's affidavits affirmed on 21 June 2024 (First Rodgerson Affidavit) and 3 September 2024 (Second Rodgerson Affidavit).  There is considerable overlap between the affidavits.

  4. In these proceedings the Court has before it a bundle of material which was before the delegate at the time he made the Refusal Decision.

  5. The bundle includes a submission from the Attorney-General's Department to the delegate regarding relevant parole considerations in respect of Mr Rodgerson dated 31 May 2024 (Departmental Submission).

  6. Regard can be had to the Departmental Submission in determining the material before the…

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AGLC
Rodgerson v Attorney-General [2024] FCA 1354
Case
[2024] FCA 1354
Decision Date

CaseChat Overview and Summary

Mr Rodgerson sought judicial review of a decision by the delegate of the Commonwealth Parole Office to refuse him parole. The application was dismissed by the Federal Court, which found that no grounds for review were made out. The applicant contended that the delegate was biased against him, that the decision-making process did not accord with procedural fairness, and that the decision itself was unreasonable. The Court rejected these contentions. The decision maker was not biased. The applicant had not identified any material facts which could lead a fair-minded observer to conclude that the decision maker might not bring an impartial mind to the resolution of the questions the decision maker was required to decide. The decision-making process was procedurally fair, having regard to the statutory framework in which the decision maker was operating. The decision itself was not unreasonable, for reasons which included the seriousness of the applicant’s criminal offending, his failure to develop plans for post-release rehabilitation, and his failure to develop strategies for avoiding contact with anti-social associates. The application for judicial review was dismissed with costs.

Orders

Orders of the court

1. The application for judicial review be dismissed.

2. The Applicant pay the Respondent’s costs of and incidental to the application, such costs to be agreed or, in default of agreement, to be fixed by a Registrar of the Court.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

Background

Background to the litigation

For the reasons I’ve outlined below, the application for judicial review must be dismissed.BACKGROUND Mr Rodgerson’s conviction and sentence On 18 February 2021, the Melbourne County Court sentenced Mr Rodgerson to a term of six years and five months' imprisonment, commencing on 18 February 2021, for the following offences:(a)possessing substance, equipment or instructions for commercial manufacture of controlled drugs, namely Methylenedioxymethamphetamine (MDMA), contrary to s 308.4(1) of the Criminal Code Act 1995 (Cth);(b)trafficking marketable quantities of controlled drugs, namely MDMA, contrary to s 302.3(1) of the Criminal Code;(c)possessing controlled drugs, namely MDMA, contrary to s 308.1(1) of the Criminal Code; and(d)failing to comply with an order under s 3LA(2) of the Crimes Act, contrary to s 3LA(5) of the Crimes Act. The court specified a non-parole period of three years and eight months, which, taking into account 107 days of presentence detention, expired on 2 July 2024. Mr Rodgerson’s head sentence will expire on 1 April 2027. Mr Rodgerson appealed against his sentence to the Supreme Court of Victoria Court of Appeal. The Court of Appeal dismissed the appeal on 5 August 2022.Refusal Decision On 26 October 2023, Mr Rodgerson submitted a 30 day early release application, seeking to be released on parole on 2 June 2024 (being 30 days prior to the expiry of his non-parole period). On 12 February 2024, CV prepared a parole assessment report in relation to Mr Rodgerson which was provided to the Commonwealth Parole Office. The CV report’s ultimate recommendation was that Mr Rodgerson was unsuitable for parole. On 3 May 2024, the CPO issued an “adverse comments letter” to Mr Rodgerson to provide Mr Rodgerson with an opportunity to respond to concerns held regarding his suitability for release on parole. The letter referred to the CV report, a psychological report of Mr Adam Kreuzer dated 4 July 2022, and the prosecution reports from 2020. In a letter also dated 3 May 2024, Mr Rodgerson provided a response to the adverse comments letter. Mr Rodgerson also provided a letter from his sister, Mrs Nicole Trionfi, dated 10 May 2024. On 2 June 2024, the delegate issued a notice refusing to release Mr Rodgerson on parole. The refusal notice outlined the following in relation to the delegate’s decision to refuse Mr Rodgerson’s parole:In making my decision, I have taken into account submissions made by you or on your behalf.The order for refusal of parole has been made for the following reasons:1.I have had regard to the nature and circumstances of your Commonwealth offending which involved possession substance, equipment or instructions for commercial manufacture, namely MDMA, trafficking marketable quantities of controlled drugs, namely MDMA, possessing controlled drugs, namely MDMA and person fails to comply with order as described.Taking into account the circumstances of your offending and the comments by the court, I consider your release on parole may pose a risk to community safety.2.I consider that you do not currently have appropriate post-release plans for accommodation or employment. I also consider that you do not have adequate plans for further treatment in the community to address your rehabilitative needs including your mental health, drug use and insight into your offending.Without these plans I consider that your release into the community would not be in the best interests of your rehabilitation and reintegration, and you may pose an unacceptable risk to the community.3.I consider that you have not identified strategies to avoid contact with anti-social associates. I note that Corrections Victoria determined through your risk assessment that your anti-social associations may increase your risk of reoffending. Based on this information, I consider that you are not well placed to successfully reintegrate into the community and that your release therefore poses an unacceptable risk to the safety of the community.4.I have had regard to your criminal history which includes theft and ‘unauthorised modification to cause impairment’. You have previously failed to comply with a Community Based Order which resulted in the order being cancelled and a fine.I consider your criminal history demonstrates a level of non-compliance with law enforcement and correctional authorities, and raises doubts about your willingness and ability to comply with the conditions of a parole order.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

Mr Rodgerson appealed against his sentence to the Supreme Court of Victoria Court of Appeal. The Court of Appeal dismissed the appeal on 5 August 2022.Refusal Decision On 26 October 2023, Mr Rodgerson submitted a 30 day early release application, seeking to be released on parole on 2 June 2024 (being 30 days prior to the expiry of his non-parole period). On 12 February 2024, CV prepared a parole assessment report in relation to Mr Rodgerson which was provided to the Commonwealth Parole Office. The CV report’s ultimate recommendation was that Mr Rodgerson was unsuitable for parole. On 3 May 2024, the CPO issued an “adverse comments letter” to Mr Rodgerson to provide Mr Rodgerson with an opportunity to respond to concerns held regarding his suitability for release on parole. The letter referred to the CV report, a psychological report of Mr Adam Kreuzer dated 4 July 2022, and the prosecution reports from 2020. In a letter also dated 3 May 2024, Mr Rodgerson provided a response to the adverse comments letter. Mr Rodgerson also provided a letter from his sister, Mrs Nicole Trionfi, dated 10 May 2024. On 2 June 2024, the delegate issued a notice refusing to release Mr Rodgerson on parole. The refusal notice outlined the following in relation to the delegate’s decision to refuse Mr Rodgerson’s parole:In making my decision, I have taken into account submissions made by you or on your behalf.The order for refusal of parole has been made for the following reasons:1.I have had regard to the nature and circumstances of your Commonwealth offending which involved possession substance, equipment or instructions for commercial manufacture, namely MDMA, trafficking marketable quantities of controlled drugs, namely MDMA, possessing controlled drugs, namely MDMA and person fails to comply with order as described.Taking into account the circumstances of your offending and the comments by the court, I consider your release on parole may pose a risk to community safety.2.I consider that you do not currently have appropriate post-release plans for accommodation or employment. I also consider that you do not have adequate plans for further treatment in the community to address your rehabilitative needs including your mental health, drug use and insight into your offending.Without these plans I consider that your release into the community would not be in the best interests of your rehabilitation and reintegration, and you may pose an unacceptable risk to the community.3.I consider that you have not identified strategies to avoid contact with anti-social associates. I note that Corrections Victoria determined through your risk assessment that your anti-social associations may increase your risk of reoffending. Based on this information, I consider that you are not well placed to successfully reintegrate into the community and that your release therefore poses an unacceptable risk to the safety of the community.4.I have had regard to your criminal history which includes theft and ‘unauthorised modification to cause impairment’. You have previously failed to comply with a Community Based Order which resulted in the order being cancelled and a fine.I consider your criminal history demonstrates a level of non-compliance with law enforcement and correctional authorities, and raises doubts about your willingness and ability to comply with the conditions of a parole order.

Ratio Decidendi

Legal Principle Established

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