Attorney-General of NSW v George

Supreme Court of NSW|2020-11-09|Before: Garling J

Judgment

By Further Amended Summons filed by leave on 9 November 2020, the Attorney-General of NSW seeks orders by way of judicial review with respect to a decision of the State Parole Authority of NSW ("the Authority") to grant Mr Damien James George ("the defendant") parole.

The Parole Decision

At its meeting on 1 October 2020, the Authority decided that the defendant ought to be released on parole no earlier than 8 October 2020 and not later than 29 October 2020. It also imposed terms and conditions on the parole.
It stood over any further issue of parole to 7 April 2021, for the consideration of a Community Corrections Officer's Progress Report with respect to the defendant's progress on parole generally - including whether the electronic monitoring (which it had imposed as a condition of the parole) ought be removed.
The Parole Order noted that the electronic monitoring was to remain in force for the period "commencing on the date of release and terminating on 17 December 2022, unless it is revoked".
The first 11 terms and conditions were described as "standard conditions of parole". As well as those 11 conditions, the Authority imposed a further seven conditions which it described as "additional conditions". Only one of those was the subject of mention in the course of the hearing of this case. That was condition 12 which was in the following terms: "You must submit to electronic monitoring and comply with all instructions given by your officer in relation to the operation of monitoring systems inclusive of schedule."

Relevant History

The defendant is presently serving a sentence of 15 years and 2 months for one count of causing grievous bodily harm with intent to murder. The sentence was ordered to commence on 18 October 2007, and a non-parole period of 11 years and 5 months was specified. Accordingly, the defendant's earliest possible release date was 17 March 2019, and his sentence is due to expire on 12 December 2022.
The Authority considered the defendant's application for parole for the first time on 17 January 2019, which was in advance of his earliest possible release date. Parole was refused.
The Authority next considered the defendant's application for parole on 12 March 2020. This review and consideration was a routine one because 12 months had passed since the earliest possible date for release. As a general proposition, after the initial consideration of release on parole, the Authority considers any further issue of release on parole annually: s 137A of the Act.
At its meeting on 12 March 2020, the Authority formed the decision not to release the defendant to parole. It specified the following reason: "Needs to participate in external leave program."
It provided reasons for that decision. Included in those reasons were the following remarks: "The [defendant] is currently participating in community projects with positive reports as to his progress and participation. Given the lengthy term of imprisonment the [defendant] has served, the [defendant] is required to progress to C3 to enable access to the external leave program. A period of participation in pre-release leave would be beneficial to consolidate his re-integration into the community and ability to sustain stability along with self-medication compliance."
The reasons of the Authority then continued and expressed a conclusion in the following terms: "Conclusion The Authority is not satisfied that the release of the [defendant] is in the interests of the safety of the community [s135(1)]: Due to the length of time the [defendant] has served in custody, it would be of significant benefit for him to participate in the external leave program which first requires progression to C3 security classification. Until the [defendant] addresses his criminogenic issues through completion of appropriate programs, his release would pose an unacceptable risk to the safety of the members of the community [s.135(2)(a)]: The [defendant] would benefit from a period on pre-release leave prior to progressing to parole supervision in order to consolidate his reintegration to the community and ability to comply with self administration of his psychiatric medication. The [defendant] is required to take steps to deal with his criminogenic needs through program completion. Until this occurs, parole supervision is unlikely to reduce and address his risk of re-offending [s.135(2)(b)]: The [defendant] would benefit from a period on pre-release leave prior to progressing to parole supervision in order to consolidate his reintegration to the community and ability to comply with self-administration of his psychiatric medication. The [defendant] has sufficient time remaining for release to parole supervision upon completion of appropriate custodial programs, and parole refusal at this time would not be counter-productive to the safety of the community [s.135(2)(c)]: The [defendant] has 2 years 9 months remaining on his sentence which is sufficient time for the [defendant] to progress to C3 and participation in pre-release leave, while still allowing adequate time for parole supervision."
As was his entitlement, the defendant applied for a reconsideration of the Authority's decision and asked for a hearing which he could attend to make submissions. At its meeting on 14 May 2020, the Authority refused the defendant's application for a review hearing and determined that a review hearing was not warranted. Its decision of 12 March 2020 stood.
In notifying the defendant of that decision, the Authority recorded that: "It was open to the defendant to apply to be reconsidered for possible release on parole on the anniversary of the decision which it had given - namely, 17 March 2021."
Shortly prior to the consideration by the Authority on 12 March 2020 of the application for release on parole, the third defendant, the Commissioner of Corrective Services, who has filed a submitting appearance in these proceedings, received a recommendation from the Pre-Release Leave Committee with respect to the defendant in the following terms: "1. … current C2 (s.6.2 on/off complex/property) security classification be reduced to C3 (external leave programs at the discretion of the Governor) (including work release/education leave, day leave and weekend leave as per CSNSW External Leave Policies timeframes). 2. An external leave plan be submitted and approved prior to participation in any external leave. 3. Any external leave is to be taken in the Greater Sydney Metropolitan Area only."
The Commissioner declined to approve that recommendation, and made the following comment: "Has only been on sec 6.2 on/off since October '19 - review in four months."
It seems that the Commissioner's statement that the relevant C2 (s.6.2 on/off complex) classification had been in effect only since October 2019 was an error. According to a pre-release report from the Nowra Community Corrections Office dated 12 December 2018, the defendant was at that stage classified C2 (s6.2 on/off complex) and that he had progressed to that C2 minimum security classification on 6 March 2018. That report noted that the defendant's progression to a C3 minimum classification was, on 12 July 2018, supported and recommended by the Classification and Placement Officer, together with the Management at the South Coast Correctional Centre. That recommendation was not approved on 9 December 2018, and it was noted that the defendant should "complete six months utilisation of off complex permit prior to reapplying".
As was noted in the Commissioner's response to the Pre-Release Committee's recommendation, the security classification would be reviewed in four months, after the rejection of the recommendation by the Commissioner. That meant that at the time the Authority considered the defendant's release on parole in 12 March 2020, and refused it because he had not then engaged in an external leave program, it was known to the Authority that in light of its decision, the Commissioner would be reviewing the defendant's security classification in July 2020 with a view to reducing it to C3 classification and thereby enabling the defendant to undertake an external leave program.
On 26 March 2020, the third defendant, the Commissioner, issued Instruction No. 10 of 2020. It was issued in accordance with the provisions of s 235B of the Act. The effect of a Commissioner's Instruction is that it is a lawful order and staff members are obliged to comply with it.
The Instruction contained the following: "[The Act] makes provision under s 6(2) and s 26 for inmates in a range of circumstances to be temporarily absent from a correctional centre or correctional complex. As of midday 26 March 2020, external activities and programs facilitated under s 6(2)(c) and s 26 of the [Act] are to cease on a temporary basis. This includes:

any community work outside the correctional complex;
any education and training outside the correctional complex;
any employment-related activity outside the correctional complex;
all day and weekend leave;
… … These arrangements are in place to address the risk of transmission of COVID-19 and entry into the custodial environment."

On 1 July 2020, application was made to the Authority on behalf of the defendant by the Prisoners' Legal Service for a reconsideration of the defendant's release on parole because he submitted that "his present circumstances fulfil the provisions of Regulation 2231(b) of the Crimes (Administration of Sentences) Regulation 2014" ("the Regulation").
The application nominated two bases for a reconsideration of the March 2020 decision. The first was that: "It has become apparent that a matter that was relevant to the decision to refuse parole is no longer relevant, warranting reconsideration of the decision."
The second matter was: "The Commissioner of Corrective Services … made a decision to refuse his progress in classification based on incorrect or misleading information, as outlined below."
The application for reconsideration included this statement: "In the current COVID-19 environment with restrictions on movements of inmates and visitors to Correctional Centres, the External Leave Program has ceased. Notwithstanding the Commissioner's rejection of the PRLC's recommendations, the applicant submits that the issue of participating in the External Leave Program is no longer a relevant matter for the Authority's consideration, given that for reasons beyond his control, it is not available to the applicant, or any other inmate, for the foreseeable future. The applicant submits that even if he were to be approved by the Commissioner for C3 classification with external leave, he would not be able to derive any benefit from the reduced classification given the cessation of the program."
It is to be observed that throughout the documents which record the steps towards parole of the defendant, the terms Pre-Release Leave Program, External Leave Program, External Work Release Program and sometimes Work Release Leave are all used, and perhaps somewhat loosely by various authors, including the Authority. However, it is clear that they refer to substantially the same scheme given effect to by correctional officers for offenders to leave the correctional centres and re-enter the community for limited and defined periods for work, making preparations for their time on parole and, to some limited extent, re-establishing social contacts in the community into which they are to be released. I regard these terms as meaning the same thing for the purposes of this judgment. All have been suspended by the Commissioner's Instruction.
The application came before the Authority at its meeting on 6 July 2020. It noted the application and stood it over so that it could obtain a report from the Community Corrections Office and so as to enable it to give "parole consideration under manifest injustice" if appropriate. It fixed 20 August 2020 for its next consideration of the application.
Community Corrections produced a report dated 10 August 2020 in response to the request from the Authority. It was entitled "Pre-Release Report" with underneath that another title "Manifest Injustice". The report noted that Community Corrections had provided five earlier pre-release reports. It nominated the dates of those reports. The report covered a range of matters relevant to the making of a parole order. It concluded with the following assessment and recommendation: "[The defendant] has demonstrated a mixed response to custody. Despite being subject to depot injections for his mental health medication, he continues to express doubts about the validity of the current diagnosis and the efficacy of treatment. [The defendant] is yet to achieve his C3 classification or participate in pre‑release leave. As indicated in previous reports, due to the length of time [the defendant] has spent in custody, it would be of significant benefit for him to participate in the pre-release leave program prior to his release to parole. As such, Community Corrections does not recommend that a parole order is made for [the defendant]. However, if a parole order is made, the addition of the following conditions is recommended …"

Relevant Legislation

It is convenient to set out limited parts of the legislation relevant to the proceedings before the Court.
The Authority, when considering a decision to grant parole, is required to make that determination in accordance with s 135 of the Act. It is in the following form: "135 General duty of Parole Authority relating to release of offender (1) The Parole Authority must not make a parole order directing the release of an offender unless it is satisfied that it is in the interests of the safety of the community. (2) In considering whether it is in the interests of the safety of the community to release an offender, the Parole Authority must have regard to the following principal matters - (a) the risk to the safety of members of the community of releasing the offender on parole, (b) whether the release of the offender on parole is likely to address the risk of the offender re-offending, (c) the risk to community safety of releasing the offender at the end of the sentence without a period of supervised parole or at a later date with a shorter period of supervised parole. (3) In considering whether it is in the interests of the safety of the community to release an offender, the Parole Authority must also have regard to the following matters - (a) the nature and circumstances of the offence to which the offender's sentence relates, (b) any relevant comments made by the sentencing court, (c) the offender's criminal history, (d) the likely effect on any victim of the offender, and on any such victim's family, of the offender being released on parole, (e) if applicable, whether the offender has failed to disclose the location of the remains of a victim, (f) any report in relation to the granting of parole that has been prepared by a community corrections officer, (g) 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 or any other authority of the State, (h) if the Drug Court has notified the Parole Authority that it has declined to make a compulsory drug treatment order in relation to the offender's sentence on the ground that it is not satisfied as to the matters referred to in section 18D (1) (b) (vi) of the Drug Court Act 1998, the circumstances of that decision to decline to make that order, (i) that an application that has been made (but not determined) in respect of the offender - (i) for an extended supervision order or continuing detention order under the Crimes (High Risk Offenders) Act 2006 or the Terrorism (High Risk Offenders) Act 2017, or (ii) for a continuing detention order under Division 105A of Part 5.3 of the Commonwealth Criminal Code, (j) any other matters that the Parole Authority considers to be relevant. (4) … (5) … (6) A report prepared by a community corrections officer for the purposes of subsection (3) must address the matters prescribed by the regulations for the purposes of this section. (7) … (8) … (9) …"
The ability of an applicant for parole to seek a hearing outside of the ordinary annual review hearing is contained in s 137B of the Act, which is in the following form: "137B Consideration of parole so as to avoid manifest injustice The Parole Authority may consider an offender's case at any time after the date on which the offender first becomes eligible for release on parole, and without the need for an application, in such circumstances as may be prescribed by the regulations as constituting manifest injustice."
In this judgment, it is unnecessary to explore the issue of whether this is the only avenue for an applicant for parole to seek a review, outside of the ordinary annual review. It was not contended on behalf of the defendant, that there was any other basis for the Authority to exercise its power than s 137B of the Act.
Whenever the Authority is considering the release on parole of an offender, the Commissioner is entitled to make submissions. Section 141A, which so provides, is in the following terms: "141A Submissions by Commissioner (1) The Commissioner may at any time make submissions to the Parole Authority concerning the release on parole of an offender. (2) If the Commissioner 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 Commissioner 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 Commissioner under this section, including provisions relating to the application of this Subdivision in connection with any such submission."
Section 193C of the Act requires that the Authority cause a record of its reasons to be kept in the minutes of its meetings. The decisions for which it is required to keep a record of its reasons include a decision to grant parole: s 193C(1)(a) of the Act. The specific requirements are set out in s 193C(2) of the Act, which is in the following terms: "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."
The provisions of the Regulation are also relevant to this matter.
Clause 223 of the Regulation provides for the circumstances which constitute manifest injustice. It is in the following form: "223 Circumstances constituting manifest injustice (1) For the purposes of section 137B of the Act, the following circumstances are prescribed as circumstances of manifest injustice where parole has been refused or revoked (whether before or after release) - (a) if it becomes apparent that the decision to refuse or revoke parole was made on the basis of false, misleading or irrelevant information, (b) if it becomes apparent that a matter that was relevant to the decision to refuse or revoke parole is no longer relevant, (c) if it becomes apparent that a matter that was relevant to the decision to refuse or revoke parole has been addressed in a way that warrants reconsideration of the decision or can be so addressed by imposing additional conditions on parole, (d) …."

Plaintiff's Submissions

The plaintiff advanced eight grounds which, he contended, established a basis for the relief which he sought, namely, that the Court should make an order in the nature of certiorari quashing the decision of 1 October 2020 of the Authority. The first five of these grounds related to the same topic. Put generally, they can be grouped under the heading "manifest injustice".
As earlier noted, s 137B of the Act permitted the Authority to consider an offender's case in circumstances which constituted manifest injustice. Clause 223 of the Regulation provides for the circumstances which constitute manifest injustice.
The plaintiff's submissions contended that, with respect to the exercise by the Authority of jurisdiction to consider the defendant's application for parole, it had not proceeded correctly pursuant to s 137B of the Act. The plaintiff contended, in the first place, that the Authority's reasons do not contain any finding of the existence of any of the prescribed circumstances which constitute manifest injustice. Accordingly, he submitted, the basis upon which the Authority considered that it had jurisdiction is left "… utterly unclear". The plaintiff submitted that the Court should conclude that the Authority failed to address the relevant question and thereby fell into jurisdictional error.
Secondly, the plaintiff submitted that, this Court ought to find that the Authority proceeded on the basis that Regulation 223(1)(c) was applicable. If that was so, the plaintiff submitted that such conclusion was erroneous because there was no new material of a kind which warranted reconsideration of its March 2020 decision.
Thirdly, the Authority fell into jurisdictional error by proceeding to determine the parole application when it concluded that there was any circumstance of manifest injustice had been established.
In addition, the plaintiff submitted that the authority denied the Commissioner procedural fairness because in the circumstances where the application was based on cl 223(1)(b) of the Regulation, and the Authority proceeded to consider its power in accordance with cl 223(1)(c) of the Regulation, it had not afforded the Commissioner of Corrective Services an opportunity to make submissions with respect to the ground which it had established and upon which it relied.
The other submissions which were put as a basis for the relief sought can be encapsulated by a consideration of these matters.
The second principal basis upon which the plaintiff contended that he was entitled to the relief sought was constituted by two grounds which related to the provisions of s 135(2)(a) of the Act, and s 135(2)(c) of the Act. Putting it in summary form, the plaintiff submitted that the nominated sections contained matters which the Authority was mandated to consider by the terms of the Act, but that the Authority had failed to consider them. He submitted that any failure by the Authority to have regard to a mandatory consideration would constitute jurisdictional error, and would amount to a failure to exercise its decision-making power in accordance with its jurisdiction. The failure to consider each of these mandatory matters would amount to an error of law on the face of the record.
It was submitted that what was required on the part of a decision-maker with respect to its consideration of mandatory factors of the kind set out in s 135 of the Act was a clear statement that the mandatory factor had been considered, and that it would be apparent on the face of the record that the Authority had engaged in an active intellectual process in the consideration of that mandatory factor. Here it was submitted that the Authority had failed to consider the mandatory factors or engaged with them in an appropriate way. As an alternative to those grounds, a final ground was that the Attorney‑General contended that there had been a failure by the Authority to provide reasons with respect to those matters. Such a failure, it was contended, would give rise to the relief which was sought.

Manifest Injustice

The application relying upon the manifest injustice provision contained a statement which made it plain that one basis for the submission that a reconsideration of the defendant's application for parole was justified was cl 223(1)(b) of the Regulation. The application identified the removal of the External Leave Program, as a consequence of the Commissioner's Instruction, as being a basis for the invocation of that clause. The Commissioner's submissions to the Authority, which were made by his solicitor, argued that the threshold for consideration in cl 223(1)(b) of the Regulation was not met. It submitted that the suspension of the External Leave Program was not a fact which could fall within the clause because the impediment to the defendant taking external leave was his security classification which at all times remained the same.
It is readily apparent from the decision of the Authority in March 2020, that its refusal to grant parole at that time directly related to the fact that it was appropriate for the defendant to undertake the External Leave Program prior to progressing to parole supervision "… in order to consolidate his reintegration into the community and ability to comply with self-administration of his psychiatric medication". It also clear that the Authority recognised that for the defendant to participate in the External Leave Program, he was first required to be re-classified by the Commissioner to the C3 security classification.
However, it was clear to the Authority from the material before it that the Commissioner was intending to review the defendant's classification within a few months after its decision.
At the time the application for reconsideration was made by the defendant, the External Leave Program had been suspended, and was not available as a program to be accessed by any inmate as part of their preparation for release on parole. It was as if the Program had never existed.
Properly understood, when the March decision was considered by the Authority, the External Leave Program was available as a relevant factor when considering whether or not to release an applicant on parole. It so happened in the defendant's case that the Authority regarded participation in the External Leave Program as appropriate before a grant of parole could be made. Of course, his security classification needed to be changed. But, there is no reason to think that that would not have occurred by the Commissioner facilitating the Authority's requirement for the defendant to enable his release on parole.
By the time of the reconsideration application, the existence of, or the possibility of participation in, the External Leave Program was simply not available as a relevant matter for the Authority. No applicant for parole, nor any inmate whose annual review date fell for consideration, could engage in such a program. It was not available to anyone. The fact of such a program having once existed and being relevant meant that by the time of this application for reconsideration such a program was entirely irrelevant to the question of whether the Authority ought grant the defendant parole or not.
Accordingly, I am satisfied that the defendant established a circumstance of manifest injustice which accorded with cl 223(1)(b) of the Regulation, thus enabling the Authority to consider his case in accordance with s 137B. It was also a circumstance that was known to the Commissioner, and upon which the Commissioner had the opportunity to make submissions.
The plaintiff nevertheless contended that the real basis upon which the Authority was persuaded of manifest injustice was not the circumstance to be found in cl 223(1)(b) of the Regulation as I have just described, but rather that the Authority proceeded on a different basis, namely cl 223(1)(c) of the Regulation. He bases that submission on a note which is to be found in a document entitled "Judge's Paper" which contains notes of the presiding judicial member of the Authority - Judge Frearson.
Assuming that it is open to the plaintiff to call up and rely upon this document, a proposition about which there may be some doubt, the plaintiff's submission is not well-founded by reference to that document.
The note is as follows: "MI: external leave not available COVID-19 223(1)(c) now on forensic trt [treatment] order"
In my view, the only reasonable interpretation of that note is that the first line refers to the basis contended for in the reconsideration application of the defendant, namely that cl 223(1)(b) of the Regulation was invoked by the fact that the External Leave Program was not available due to COVID-19, and the second line represents an additional ground which would also be available for the Authority to exercise its power to reconsider the application.
It is unnecessary to consider whether the statement of the second ground was correct or not. Any one circumstance of manifest injustice is sufficient to enable the Authority, if it considers it appropriate, to exercise the power to reconsider the application.
I reject the grounds relied upon by the plaintiff that the Authority only proceeded in accordance with s 223(1)(c) and that the Commissioner had not had the proper opportunity to make submissions with respect to that ground. In my view, the Authority did not fall into jurisdictional error because of its failure to provide the Commission with an opportunity to make submissions in regards to s 223(1)(c).
This conclusion means that it is now necessary to consider the argument that the Authority failed to make any explicit finding that the defendant had established a circumstance of manifest injustice in order to ground the Authority's power to consider his application.
In my view, it is relevant in dealing with this ground to consider the underlying proposition, which is that the Authority failed to reach any conclusion in respect of the establishment of manifest injustice.
I reject the submission that there was any such failure. In the first place, the Authority is an experienced body in dealing with the proper bases of applications before it - whether they be initial applications to which s 137 applies, the annual review applications to which s 137A applies, or an application invoking s 137B, if circumstances of manifest injustice exist. There is no reason to think, and I would not infer, that the Authority did not turn its mind to that issue before embarking upon a full reconsideration of the defendant's application for reconsideration of a grant of parole.
Secondly, in seeking to see that such a decision was made, the notice on the Judge's Paper to which I have earlier referred clearly demonstrates that a finding was made of a circumstance of manifest injustice, of a kind which was not only open to the Authority, but which was in my opinion, a correct finding.
Thirdly, it is apparent, in my view from the reasons of the Authority, that it was proceeding to reconsider the parole application on the basis that "… due to the COVID-19 pandemic, the External Leave Program has been suspended. The [defendant] has no outstanding custodial interventions beyond external leave".
This passage appears immediately prior to the conclusion of the Authority in its reasons. It may have been preferable if this remark was specifically directed to noting that it was the finding of a fact which was a precondition to the exercise of the Authority's jurisdiction. Nevertheless, I am satisfied that this constitutes a sufficient finding to indicate the basis upon which the Authority was proceeding.
Accordingly, I reject the grounds relied upon by the plaintiff with respect to any issue surrounding the Authority exercising its power to consider the application by the defendant for parole pursuant to s 137B of the Act. I am satisfied that there was a circumstance of manifest injustice established, the Authority was satisfied that that was so, and proceeded on that basis to exercise its authority.

Mandatory Considerations

It can be seen from s 135(1) that the Authority is prohibited from making a parole order which directs the release of an offender "…unless it is satisfied that it is in the interests of the safety of the community".
It forms no part of the plaintiff's submissions in this case that the Authority did not reach that necessary state of satisfaction, nor that it did not expressly say so, nor that it failed to provide adequate reasons setting out the basis upon which it came to that conclusion.
Section 135(2) obliges the Authority to have regard to three "principal matters", when considering whether it reaches the state of satisfaction required by s 135(1). Those three matters are: "(a) the risk to the safety of members of the community of releasing the offender on parole; (b) whether the release of the offender on parole is likely to address the risk of the offender reoffending; and (c) the risk to community safety of releasing the offender at the end of the sentence without a period of supervised parole or at a later date with a shorter period of supervised parole."
On one view, any declaration by the Authority of its satisfaction of the interests of the safety of the community could not be reached unless it had considered at least these three principal matters. After all, they deal with the risk to the public of releasing the defendant on parole, whether the release of the defendant on parole would be a measure which addressed the risk of recidivism and whether it would be better to release the defendant on parole with respect to the safety of the community than to release him at a later date or without parole at all. These are each considerations which balance whether it can be in the interests of the safety of the community both in the shorter and longer term. The degree of satisfaction which the Authority must reach requires it to have regard to a range of other matters which are set out in s 135(3). No submission in made in this case that the Authority failed to have regard to those matters to the extent that they were relevant.
Whether or not the Authority had regard to the three mandatory matters, as set out in s 135(2), is also to be discerned from its reasons.
In coming to consider these reasons, it is important to bear in mind that it is an inappropriate approach to subject the reasons to minute examination or fine scrutiny with an eye attuned to the perception of error: see Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259 at [30].
In Attorney-General of NSW v NSW State Parole Authority [2006] NSWSC 865, McClellan CJ at CL said (at [49]): "49 It is important when considering the "reasons" of a body such as the Parole Authority that the court not adopt a "fine tooth comb" approach to its published reasons: see Brennan CJ, Toohey, McHugh and Gummow JJ in Minister for Immigration and Ethnic Affairs v Wu Shan Liang and Ors (1996) 185 CLR 259 at 272; Neaves, French and Cooper JJ in Collector of Customs v Pozzolanic (1993) 43 FCR 280 at 287; McAuliffe v Secretary, Department of Social Security (1992) 28 ALD 609 at 616. This principle is obviously appropriate to the reasons of the Authority."
Initially, it is appropriate to concentrate upon the submission of the plaintiff that the Authority had failed to have regard to, specifically, the provision of s 135(2)(a) of the Act, namely "The risk to the safety of members of the community of releasing the offender on parole".
The Authority's reasons contained this conclusion: "The Authority is satisfied that the release of the [defendant] is in the interests of the safety of the community [s.135(1)]: Due to the length of time the [defendant] has served in custody, as he has been unable to progress to C3 classification as recommended by the Pre-release Leave Committee, and with external leave programs having been suspended due to the Covid 19 pandemic, there are no further custodial pathways for the [defendant] to undertake. He has post release accommodation with his brother in a pro-social environment and is now stable on mental health medication (depot injection) supported by a Forensic Community Treatment order until at least February 2021. Release to parole at this juncture is preferable to parole refusal, resulting in the [defendant] being release with a shortened parole supervision period. The [defendant]'s release at this time is considered to be appropriate given the [defendant] can address his risk of re-offending while subject to parole supervision with the support of Community Corrections and other agencies as relevant [s.135(20(b)]. The Manifest Injustice Report outlines a detailed post-release supervision plan including strategies for managing the [defendant] in the community to support his mental health and his risk of re-offending via therapeutic programs and supervision. To refuse the [defendant] parole on this occasion would reduce the period of time remaining on parole supervision and such a refusal is considered to be counter-productive to the safety of the community given the benefits of parole supervision [s.135(2)(c)]."
It will be observed that this conclusion does not contain a specific reference to s 135(2)(a) of the Act. However, it is wrong to conclude, in the reasons of the Authority, that the mere failure to specifically identify that provision means that it has not been considered.
The Authority had before it, in addition to five sets of submissions from the third defendant (the Commissioner), the treatment report dated 26 October 2018, issued from the Violent Offenders Therapeutic Program and also a psychiatric report dated 30 May 2019. These documents had formed a part of the material which the Authority considered. In its reasons, the Authority referred to the following matters which are directly relevant to the risk to the safety of members of the community if the defendant was release on parole: 1. the fact, noted in the report provided by the Community Corrections officer on 10 August 2020, referred to at [32] above, that the defendant was better equipped to deal with anger since having completed the VOTP; 2. the report of the overseer of Community Projects at the South Coast Correctional Centre which stated that the defendant "… follows directions, requires little supervision and his attendance has been excellent"; 3. the fact that the defendant had been approved within the security classification B to be able to work externally to a main correctional centre; 4. the report of the VOTP, which noted that the defendant's "main risk factor for [defendant]s reoffending is in relation to his understanding and acceptance of the management and treatment of his mental illness". The Authority noted that the VOTP report clearly established a link between the defendant's non-compliance with his psychiatric medication and propensity towards violent behaviour; 5. the Authority's reasons recorded that the violence risk scale had been readministered after the defendant had completed the VOTP and that it placed the defendant "… in the lower end of the high range" and that otherwise he had been assessed as a high level of risk and need in accordance with the "level of service inventory - revived (LSR-I)"; and 6. the Authority's reasons addressed the accommodation which had been organised for the defendant upon release, which was with his brother who the Authority noted in its reasons was described by Community Corrections as a "pro-social influence".
In particular, the Authority noted the submissions of the Commissioner which opposed the defendant's release on parole. It is to be observed that those submissions identified four facts or matters which the Commissioner considered to be relevant for the Authority to take into consideration when considering the risk to the safety of members of the community pursuant to s 135(2)(a). They were: "(a) the commission of the index offence itself, which would lead to a conclusion that the defendant is capable of significant violence inflicted on a domestic partner; (b) the defendant's history prior to incarceration in the community, and in custody, had been marred by violent and aggressive behaviour; (c) although he had completed the VOTP in 2018, the defendant remained a high-risk offender and had been assessed at a high risk of reoffending according to the LSI-R; and (d) the defendant's insight and stability as regards his mental illness remained "… a matter of some concern."
On this final point, the submission of the Commissioner concluded: "Given the potential for the [defendant's] mental health stability to impact substantially upon his risk of reoffending, it is submitted that these circumstances demonstrate a real need for the [defendant] to be tested and monitored through a gradual transition to the unstructured environment out of custody."
Each of these matters, and in particular with respect to a further matter raised by the Commissioner, the currency of a new forensic treatment order, was taken into account by the Authority as its reasons demonstrate.
As is set out in [15], the Authority in its March decision, when considering this mandatory issue, said that the release of the defendant would pose an unacceptable risk to the safety of the members of the community unless he addressed his criminogenic issues through completion of the appropriate programs.
The Authority came to the conclusion that, in the absence of the only appropriate program, namely the pre-release leave program, it was nevertheless appropriate to release the defendant on parole. When viewed together with the addition of the electronic monitoring condition, this decision demonstrates clearly to me that the Authority engaged in the active intellectual consideration of the mandatory requirement to the extent necessary.
As well, it took into account each of the submissions of the Commissioner on this matter, and recorded that it knew of the facts and considered them.
To the extent that the plaintiff complains that the Authority fell into jurisdictional error by failing to comply with s 135(2)(a) of the Act, I reject that submission. I also reject the submission that the Authority's reasons failed to provide any reasons with respect to s 135(2)(a). In my view, it is plain from the conclusions reached, as set out above, that the Authority took these matters into account and considered them, particularly when dealing with s 135(1) and it's more general conclusions. This is clearly discernible from the Authority's reasons.
The challenge to the adequacy of reasons in this respect also fails.
The second matter which was the subject of challenge was a failure to consider and deal with s 135(2)(c).
There is no question but that the Authority referred to this provision in its reasons which are set out at [91] above. The substance of the submission to the Court is that those reasons do not demonstrate that there was any active intellectual engagement with the section.
I am unpersuaded by this submission. The provision is not one of any complexity. It requires the Authority, when considering the interests of the safety of the community, to balance the risk to community safety at the end of a sentence if no parole is granted with the risk to the community of releasing the defendant on parole. What the Authority here said in its brief but, in my view, entirely adequate reasons was that, having regard to the elapse of time since its March decision (namely about seven months), refusing the defendant parole "… on this occasion" would reduce the period of time remaining on parole supervision. The Authority stated found that this would be to such an extent that that would be counterproductive to the safety of the community when considered with the benefits which parole supervision would provide.
In my view, this statement clearly shows that the Authority has intellectually engaged in, and has determined, the balancing exercise to which it is required to have regard under s 135(2)(c) of the Act.
For all of these reasons, the plaintiff's case must fail.
It follows that I do not need to, and have not, considered the issue of materiality, which the defendant submitted would, had I been persuaded that there was any error of law, otherwise have rendered that error of law immaterial to the outcome.
It also follows from the conclusion which I have reached that the order of this Court made at the request of the Plaintiff to stay the implementation of the Parole Order of the Authority must be discharged. The effect of the order discharging the stay, and the order dismissing the plaintiff's claim is that the defendant is entitled to be released on parole forthwith in accordance with the Authority's Parole Order.

Orders

I make the following orders: 1. The Further Amended Summons dated 9 November 2020 is dismissed. 2. The order of the Court of 28 October 2020 staying the effect of the decision of the State Parole Authority dated 1 October 2020 to grant the First Defendant parole is discharged. 3. Plaintiff to pay the costs of the First Defendant.

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Judgment (9 paragraphs)

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