Boatswain v State Parole Authority

Supreme Court of NSW|2014-04-08|Before: Hulme J

Judgment 1HIS HONOUR: Warwick Boatswain ("the plaintiff") challenges a decision of the State Parole Authority ("the Parole Authority") made on 2 July 2013 to refuse to release him on parole. 2The Parole Authority is the first defendant and has filed a submitting appearance. The second defendant is the Attorney General of New South Wales and is the active opponent.

Background 3The plaintiff was sentenced on 18 December 1992 in respect of a number of very serious offences including seven counts of aggravated sexual assault and two counts of robbery. He was on parole at the time those offences were committed. The total effective sentence imposed upon him was one of imprisonment for 23 years with a non-parole period of 15 years. 4The plaintiff became eligible for release on parole on 29 July 2006 but the Parole Authority has refused all applications for release. The total term of the sentences is due to expire on 29 July 2014. 5The Serious Offenders Review Council ("the SORC") was constituted under the Crimes (Administration of Sentences) Act 1999 (NSW) ("the Act"): s 195. One of its various functions is "to provide reports and advice to the Parole Authority concerning the release on parole of serious offenders": s 197(2)(b). 6The plaintiff is within the definition of a "serious offender" because his non-parole period was "at least 12 years": s 3. 7On 16 April 2013, the SORC provided a report to the Parole Authority in which it advised: "[I]t is appropriate for the [plaintiff] to be considered now for release on parole". 8Subdivision 3 of Pt 6 Div 2 of the Act deals with the consideration of parole in respect of serious offenders. It provides that on or immediately after giving its preliminary consideration as to whether or not a serious offender should be released on parole, the Parole Authority must formulate and record its initial intention either to make a parole order or not: s 144. 9On 30 May 2013 the Parole Authority formulated an initial intention to grant parole. It was then required, by s 145, to notify any victims whose names are recorded on the Victims Register (that is, victims who have requested to be given notice of the possible parole of the offender). It is not apparent that any of the plaintiff's victims had made such a request and were recorded on the Victims Register. Certainly there is nothing to indicate that any such victim sought to be heard on the matter. 10The State of New South Wales has a right to make submissions to the Parole Authority concerning the release on parole of a serious offender: s 153. After having formulated its initial intention to release the plaintiff on parole, the matter was adjourned to 2 July 2013 to allow the State the opportunity to do so if it wished. 11Written submissions by the State were filed on 1 July 2013. It opposed the plaintiff's release on parole, based on the offender's "prior history of serious violent sexual offences and his considerable difficulty in engaging in programs to assist with his rehabilitation and continuation of drug abuse and aggressive behaviour whilst in prison". 12The hearing on 2 July 2013 involved the plaintiff appearing by audio-visual link and without representation (a matter of his choice). He gave sworn evidence and made submissions. Short evidence was also taken from a Probation and Parole Officer and further oral submissions were made on behalf of the State. The hearing culminated with the Parole Authority announcing that its decision was to refuse parole and that it would provide reasons on 16 July 2013. 13On 16 July 2013 there was a brief hearing. Written reasons for the decision refusing parole were provided to the parties.

The proceedings 14These proceedings were commenced by the filing of a Summons on 29 January 2014. There was some explanation proffered at the hearing for the delay but it is unnecessary to refer to it. 15An amended summons (filed by leave at the hearing without objection) sets out the relief sought by the plaintiff in the following terms: 1. Leave to institute the proceedings under s 4 of the Felons (Civil Proceedings Act) 1981 (NSW). 2. A declaration under s 155 of the Crimes (Administration of Sentences) Act 1999 (NSW) that the Parole Authority relied on false, misleading or irrelevant information in the decision, and the reasons therefore. 3. An order in the nature of certiorari pursuant to s 69 of the Supreme Court Act 1970 (NSW) quashing the decision of the Parole Authority refusing to order the release of the plaintiff on parole. 4. An order in the nature of mandamus pursuant to s 69 and pursuant to the terms of s 65 of the Supreme Court Act that the Parole Authority convene and fulfil its public duty by determining the plaintiff's application for parole in accordance with the law.

Preliminary considerations 16An application under s 155 of the Act "is to be considered by the Supreme Court if and only if it is satisfied that the application is not an abuse of process and that there appears to be sufficient evidence to support the application": s 155(3). 17I was satisfied that the application was not an abuse of process and there was sufficient evidence to support it and so the application under s 155 was considered. The Attorney General did not contend otherwise. 18Section 4 of the Felons (Civil Proceedings) Act 1981 (NSW) is in the following terms: "A person who is in custody as a result of having been convicted of, or found to have committed, a serious indictable offence may not institute any civil proceedings in any court except by the leave of that court granted on application." 19Section 5 of that Act provides that: "A court shall not, under section 4, grant leave to a person to institute proceedings unless the court is satisfied that the proceedings are not an abuse of process and that there is prima facie ground for the proceedings." 20Mr Boatswain was convicted of a serious indictable offence, meaning an indictable offence that is punishable by imprisonment for life or for a term of 5 years or more: s 4 Crimes Act 1900 (NSW). Patsalis v State of New South Wales [2012] NSWCA 307 supports the view that leave is not required to bring judicial review proceedings where, inter alia, they are concerned with a question of parole release. The Attorney General did not oppose leave being granted, but I am not satisfied that it is required.

A declaration under s 155 of the Crimes (Administration of Sentences) Act that the Parole Authority relied on false, misleading or irrelevant information in the decision, and the reasons therefore 21Section 155 is in the following terms: "(1) If: (a) the Parole Authority decides that an offender should not be released on parole, and (b) the offender alleges that the decision of the Parole Authority has been made on the basis of false, misleading or irrelevant information, the offender may, in accordance with rules of court, apply to the Supreme Court for a direction to be given to the Parole Authority as to whether the information was false, misleading or irrelevant. (2) The Supreme Court may give such directions with respect to the information as it thinks fit. (3) An application under this section is to be considered by the Supreme Court if and only if it is satisfied that the application is not an abuse of process and that there appears to be sufficient evidence to support the application. (4) This section does not give the Supreme Court jurisdiction to consider the merits of the Parole Authority's decision otherwise than on the grounds referred to in subsection (1)." 22The terms of sub-s (1) clearly indicate that the provision is concerned with information upon which the decision of the Parole Authority is based. It is not concerned with the findings of fact made by the Parole Authority or the conclusions that it draws that are based upon such findings. 23The second ground set out in the amended summons contends as follows: "In its decision of 2 July 2013 the first defendant erred in law by relying on false, misleading or irrelevant information concerning: a. the plaintiff's conduct in custody, participation in treatment and motivation to do same; b. the potential for the plaintiff to participate in day/weekend leave; and c. the potential for proceedings under the Crimes (High Risk Offenders) Act 2006 (NSW)." 24Counsel for the plaintiff raised a number of issues about certain findings of fact and conclusions drawn by the Parole Authority concerning those matters. However those findings and conclusions are more for consideration in relation to the plaintiff's other grounds. Counsel was unable to identify any information in the oral or documentary evidence that was before the Parole Authority that could be characterised as "false, misleading or irrelevant". For that reason, this ground must fail.

Prerogative relief sought in four respects 25The orders sought by the plaintiff are certiorari and mandamus. Rothman J in Esho v Parole Board Authority of NSW [2006] NSWSC 304 ("Esho") provided the following summary of certiorari and mandamus in this context: "[29] Certiorari will issue against any body having authority under the law to determine issues affecting the rights of subjects, which body, having the right to act judicially, act otherwise than in accordance with its legal authority so to do: see R v Electricity Commissioners [1924] 1 KB 171 at 205 per Atkin LJ. Section 69 of the Supreme Court Act 1970 allows the issue of orders in the nature of certiorari and ameliorates some of the technicalities associated, historically, with the issue of the writ. Sections 65 and 69 of the Supreme Court Act 1970 do the same in relation to mandamus. There can be no doubt that the Parole Authority, in exercising the jurisdiction conferred upon it by the Crimes (Administration of Sentences) Act 1999, as amended, is amenable to such prerogative writs: LMS v Parole Board (1999) 110 A Crim R 172. Further, the capacity to grant or refuse parole is a matter which "affects the rights of subjects" as it has been interpreted in modern times: see Banks v Transport Regulations Board (1968) 119 CLR 222 and R v Victorian Industrial Appeals Court; ex parte Victorian Chamber of Manufactures [1975] VR 84. [30] There are four essential grounds for the grant of certiorari being: jurisdictional error; denial of natural justice; fraud; and error of law on the face of the record. There are nice questions as to whether a denial of natural justice is, in any event, a jurisdictional error, but the question is of academic interest only, in a case such as this where no privative clause exists. Under the common law, certiorari would issue only for an error of law on the face of the record, which record did not include the reasons for decision: see Craig v SA (1995) 184 CLR 163. By the operation of sub-section 69(4) of the Supreme Court Act 1970 the legislature has defined the face of the record to include the reasons for any decision. [31] Mandamus, on the other hand, will issue only for jurisdictional error being an actual or constructive refusal to exercise jurisdiction. However, once certiorari has issued to quash a relevant decision, then the public duty reposed in the body remains unexercised and mandamus will issue." 26His Honour continued (at [33]) that while certiorari may lie for error of law on the face of the record: "it is not every error for which certiorari will issue. It must be an error upon which the judgment is based and it must be an error of a kind that affects the task undertaken by the tribunal. Of course, it can be an error of law which is not jurisdictional. An administrative tribunal lacks authority to determine questions of law authoritatively or bindingly or to make an order or decision otherwise in accordance with the law. 'If such an administrative tribunal falls into an error of law which causes it to identify a wrong issue, to ask itself a wrong question, to ignore relevant material, to rely on irrelevant material or, at least in some circumstances, to make an erroneous finding or to reach a mistaken conclusion and the tribunal's exercise or purported exercise of power is thereby affected, it exceeds its authority or powers. Such an error of law is jurisdictional error which will invalidate any order or decision of the tribunal which reflects it.' (Craig (1995) 184 CLR 163 at 179)". 27It follows from this that certiorari will lie only if the Parole Authority has made an error upon which its judgment was based or if the error was of a kind that affected the duties imposed on it by the legislature. 28The third and fourth prayers for relief, that is, the orders for certiorari and mandamus, relied upon four aspects in which it is contended that the Parole Authority fell into jurisdictional error in determining the plaintiff's application for parole. They will be dealt with in turn.

Contrary to s 152 of the Crimes (Administration of Sentences) Act the Parole Authority made its final decision on 2 July 2013 before allowing the SORC to make submissions about the rejection of its advice. This was an error going to jurisdiction and constituted a failure to take into account a relevant consideration 29Section 152 is in the following terms: (1) If the Parole Authority rejects the advice of the Review Council concerning the release on parole of a serious offender, the Parole Authority must state in writing its reasons for rejecting that advice. (2) The Parole Authority must forward a copy of those reasons to the Review Council. (3) The Review Council may make submissions to the Parole Authority concerning the rejection of its advice within 21 days of that rejection. (4) The Parole Authority is not to make a final decision concerning the release of the offender during the period referred to in subsection (3). 30The first issue is to identify what "advice" was provided to the Parole Authority by the SORC. I have mentioned it earlier; it was that the plaintiff be "considered now for release on parole". It is noteworthy that the advice did not "recommend" parole release, simply that it be "considered". 31The SORC report began by referring to its previous reports in the period 2006 to 2012. In each of the years 2006 to 2009 it had advised that it was "not appropriate for the plaintiff to be considered for release on parole". In 2010 it "deferred its recommendation pending further assessment". In 2011 it advised that it was appropriate for the plaintiff to be considered for release on parole. But in 2012 it advised that it was "not appropriate for the offender to be considered for release on parole". (Emphasis added.) 32The report then reviewed various assessments of the plaintiff since its last report. They concerned matters such as his classification and placement, drug use issues, and engagement with rehabilitation programs. It noted (at paragraph 10) a report by a community corrections officer of 8 April 2013 in which it was said, in part, that "a decision regarding parole recommendation remains pending at this stage and may be more likely within approximately 4 weeks time". 33The report concluded with "Advice of the Council to State Parole Authority" and I will reproduce what was said in full: "Council notes paragraph 10. However it is of the view that the offender's capacity to be supervised in the Community should be tested. He has overall changed in a positive way. It is noted that 'extended supervision' only is being looked at. Council advises that it is appropriate for the offender to be considered now for release on parole, taking into account the expiry date of his sentence. In preparing this advice the Review Council has had regard to the matters to be considered under sections 197 & 198 of the Crimes (Administration of Sentences) Act 1999. Authenticated pursuant to Clause 18 of Schedule 2 of the Crimes (Administration of Sentences) Act 1999 as a member of the Serious Offenders Review Council presiding at the meeting of the Council held on 16 April 2013 when this report was approved."

Submissions 34In written submissions, counsel for the plaintiff contended that by refusing parole on 2 July 2013 the Parole Authority had "rejected" the advice of the SORC. Section 152 required it to provide written reasons for such rejection so as to allow the SORC to make submissions before any final decision was made. As a result, there was jurisdictional error in making a final decision contrary to the requirements of s 152. Further, the Parole Authority failed to have regard to a relevant consideration, namely further submissions (if any) of the SORC. 35In relation to the SORC advising in terms that parole release should be "considered", counsel submitted that the overall tenor of the SORC report amounted to positive support for a favourable decision. Saying that parole should be "considered" should be regarded as an indication that the SORC thought that it should happen. The use of the term "considered" should be understood in the context of s 135(3) (as to which, see below). 36Both parties devoted considerable attention to the respective roles and functions of the Parole Authority and the SORC and the matters each was required to consider on the question of a serious offender being released on parole. There was no real dispute about these matters; they are readily apparent from the text of the various provisions of the Act to which counsel referred. All that is necessary to note is that it was common ground that it is the role of SORC, amongst other things, to provide advice to the Parole Authority concerning parole for serious offenders (s 197(2)(b)) and it is the role of the Parole Authority to determine questions of parole (s 185(1)(a)). 37It was submitted for the Attorney General that the Parole Authority had the report of the SORC before it when it formulated its initial intention to grant parole. It did accept the SORC's advice to "consider" parole and formed an intention to grant it. It was not required to advise the SORC of its final determination.

Determination 38There is nothing in the Act that prevents the SORC advising the Parole Authority in terms that it recommends that parole be granted. 39Section 135 sets out the "General duty of Parole Authority" in considering whether to make a parole order in respect of a sentence for which a non-parole period of more than 3 years has been set by the sentencing court. It provides in sub-s 2 a list of matters to which the Parole Authority "must have regard". One matter in that list (in s 135(2)(i)) is any report "in relation to the granting of parole to the offender that has been prepared by or on behalf of the [Serious Offenders] Review Council". Subsection 3 provides: "(3) Except in exceptional circumstances, the Parole Authority must not make a parole order for a serious offender unless the Review Council advises that it is appropriate for the offender to be considered for release on parole." 40What that means is that, absent exceptional circumstances, if the SORC advises that it is not appropriate for parole release to be considered, the Parole Authority cannot make a parole order. That is all the provision entails. It is a form of gateway provision. It does not constrain the nature of the advice that the SORC can provide. There is nothing to prevent the SORC advising that parole should be granted. The final decision remains one for the Parole Authority. If the SORC advises that it is appropriate for parole to be considered, all it is doing is saying, in effect, that there is no bar to the making of a parole order but whether such an order should be made is a matter for the Parole Authority. 41In relation to s 135, counsel for the plaintiff referred to the second reading speech of the Hon John Hatzistergos, Minister for Justice and Minister Assisting the Premier on Citizenship in relation to the Crimes (Administration of Sentences) Amendment (Parole) Bill 2004: New South Wales Legislative Council, Parliamentary Debates (Hansard), 9 December 2004 at 13,815. The Minister said: "The Government is of the view that the emphasis of the parole system should be on what is right for the community. The provisions of the Crimes (Administration of Sentences) Amendment (Parole) Bill 2004 will closely align the parole system with the expectations of the community. A particular focus for the Government has been on the interests of victims of crime. ... The need to protect the community is a theme that flows through the bill. Proposed new section 135 relates to the general duty of the SPA [the Parole Authority]. New section 135(2) contains several matters that previously the SPA did not have to take into account in deciding whether the release of an offender was in the public interest. The new matters that must be taken into account are the need to protect the community, the need to maintain confidence in the administration of justice, the nature and circumstances of the offence, and guidelines established by the SPA in consultation with the Minister in relation to the exercise of the SPA's functions. ... In keeping with the emphasis on the protection of the community, new section 135(3) provides that except in exceptional circumstances the SPA is not to release a serious offender on parole unless the Serious Offenders Review Council [SORC] advises the SPA that it is appropriate for the offender to be considered for release on parole. This provision recognises the fact that the information on which the SORC relies to prepare reports and to provide advice concerning the release on parole of an offender is accumulated over a lengthy period." 42The provision of s 135(3) was clearly one of the measures intended to promote protection of the community. It was designed to prevent the release on parole, absent exceptional circumstances, of serious offenders in respect of whom the SORC considers such release would be inappropriate. That is as far as it goes. 43The advice of the SORC was not "rejected" by the Parole Authority. It did "consider" making a parole order when it formulated its initial intention to grant parole and in its final decision to refuse parole. A requirement for it to permit the SORC to make submissions pursuant to s 152 did not arise.

There was an insufficient evidentiary basis for the Parole Authority's conclusions about the plaintiff's conduct in custody, participation in treatment and motivation in relation to treatment. The plaintiff was denied procedural fairness in relation to the latter. The absence of evidence for the conclusions reached constituted an error of law 44This contention of error related, in part, to a portion of the reasons of the Parole Authority delivered on 16 July 2013 that the plaintiff had: "for the balance of his incarceration continued to use illicit substances, not complied with prison discipline and has declined to undertake programs that may have assisted [him] to be rehabilitated". 45It was argued that this statement was wrong because the plaintiff's last disciplinary offence for using illicit substances was on 22 February 2012; he had not been charged with any internal disciplinary offence in the period since the last parole hearing in 2012; a community corrections officer's report included that he had complied with prison discipline; and he had completed some rehabilitation programs, one in 2009 and another in 2013. 46What the Parole Authority meant in the passage quoted above must be understood by reference to its use of the term "balance of his incarceration" and by reference to the reasons as a whole. In various passages of the reasons there is reference to the change in attitude by the plaintiff in the previous 18 months or so. For example: "A review of reports prior to 2011 reveals the Offender was less than co-operative as an Inmate. He was on a not irregular basis subject to institutional discipline and charges. He remained resistant to addressing his offending behaviour and elected not to participate in programs. In early 2011, he refused to participate in psychological treatment stating he had dealt with his issues of offending. He refused to participate in CUBIT and was unwilling to sign onto SMAP, as he did not want to be housed with 'child molesters'. He said 'why participate if participation brings no benefits'. It is further apparent from records the Offender elected sometime during late 2011, early 2012 to address his rehabilitation, that is he elected to address his rehabilitation toward the end of his Head Sentence. ... Mr Bolton [community corrections officer] reported that since the previous Pre-release report the Offender had not been subject to any internal discipline and that case notes indicate the Offender had demonstrated an improved prison performance and caused little concern for correctional centre management. He reported the Offender had completed the Getting SMART program and achieved a favourable report and further the Offender would be referred to Forensic Psychology Services for participation in the CUBIT Maintenance Program." 47It is quite apparent that when the Parole Authority spoke of the plaintiff having "continued to use illicit substances, not complied with prison discipline and ... declined to undertake programs" it was talking about the period prior to late 2011- early 2012. That explains the reference to "balance of his incarceration". It follows from this that there was not an absence of evidence for the conclusions reached by the Parole Authority regarding the plaintiff's conduct in custody, participation in treatment programs and motivation to undertake treatment for the "balance of his incarceration". It was open to the Parole Authority to reach the conclusions it did based on the evidence before it. 48There was, however, an error in finding that at the hearing the offender indicated a lack of motivation for undertaking therapy or rehabilitation. It related to something he said in his evidence (referred to as "submissions"). What he said was: "[S]ince 2012, in February, I cleaned my act up. I stayed out of trouble, I stopped using, you know, I put my head down and I didn't want to get to the end of my sentence and then be taken to the Supreme Court and have my sentence extended, really, like seven years is a long time to be over my parole period and if you weigh up not the original offences, which are - well, no matter what sentence you give me, no one would ever be satisfied, but I done a lot of therapy, a lot of rehabilitation. You can't please everyone. You try. You do your best and sometimes other circumstances arise which puts you in a bad light and it's not down to me sometimes, but it's just the nature of the system." 49After referring to the reports and records indicating a more improved attitude and response by the plaintiff since "sometime during late 2011, early 2012" the reasons of the Parole Authority continued: "The State submits his change of attitude was purely for the benefit of obtaining Parole and not for the purpose of true rehabilitation. Further the State submits the Offender has a long standing illicit substance problem and such is reflected and observed by the Authority when perusing records of his institutional misconduct and the level of prescribed daily methadone, despite having spent in excess of 20 years in custody. The State Submission gains some support from the sworn submissions of the Offender this day. The Offender in his submission stated he cleaned his act up in February 2011. He stopped using. He did not want to be taken to the Supreme Court and have his sentence extended. He further stated he did not want therapy or rehabilitation and that he was trying to do the right thing and not waste his life further." (Reasons pp 2-3) (Emphasis added) 50Towards the end of the reasons it was stated: "He elected to undertake programs, comply with discipline and cease using illicit substances when it became apparent to [him] that he was nearing the completion of his Head Sentence. The Offender asks the Authority to accept he 'saw the light' and elected to reform. The Authority has severe reservations such is the case, particularly when the offender in his sworn submissions this day stated that he did not want to be taken to the Supreme Court and have his sentence extended and did not want to undergo therapy or rehabilitation. It is apparent to the Authority based on those statements the Offender would be highly unlikely to participate in ongoing programs ... ." (Reasons pp 4-5) (Emphasis added) 51The Attorney General conceded that what the Parole Authority said about the plaintiff's motivation to undergo therapy or rehabilitation was "a mistake". But it was submitted that it was apparent from what was said in other passages of the reasons that the Parole Authority was aware that the plaintiff had undergone rehabilitative programs. It had various reports and other evidence concerning those programs. For that reason, it was submitted that I should conclude that the misstatement as to the effect of the plaintiff's evidence was not material to the Parole Authority's conclusion. 52I am not persuaded that the misstatement was immaterial. 53Towards the end of the reasons (p 4.8) it was stated that the Parole Authority was not satisfied the community would be safe or protected or that public confidence in the administration of justice could be maintained if the plaintiff was released on parole. These were undoubtedly references to the mandatory criteria in s 135(2)(a) and (b). The reasons conclude as follows: "The Authority determines it is inappropriate for the Offender to be Paroled as it cannot be satisfied for the safety of the community." (Reasons p 5.5) 54A motivation and willingness to continue to engage in rehabilitation programs would undoubtedly have been relevant and influential in the Parole Authority's assessment of the criterion concerning the protection of the safety of the community. But it formed a negative view that was founded to a significant extent upon a complete misapprehension of the evidence before it. 55That this issue of preparedness to engage in rehabilitation problems was influential in the ultimate decision can be seen in the reference to the evidence of the plaintiff providing support for the submission of the State that the plaintiff's change of attitude was not for the purpose of true rehabilitation. It can also be seen by the Parole Authority having "severe reservations" about the plaintiff's claim to have "'seen the light' and "elected to reform". 56A similar error was identified in Esho. In that case there were expert reports before the Parole Authority that indicated that the offender had a low to moderate likelihood of re-offending. Rothman J said (at [56]): "In those circumstances there is no basis, on the evidence, upon which the Parole Authority could possibly have found the claimant was not 'able to adapt to normal lawful community life' ... The finding of the Parole Authority, in the absence of evidence, is an error of law." 57There was no evidence before the Parole Authority that the offender lacked motivation in relation to treatment and accordingly there was an error of law. 58The plaintiff also claimed that the conclusion of the Parole Authority on this point was never raised with the plaintiff at the hearing, constituting a denial of procedural fairness. "When a statute confers power upon a public official to destroy, defeat or prejudice a person's rights, interests or legitimate expectations, the rules of natural justice regulate the exercise of that power unless they are excluded by plain words of necessary intendment": Annetts v McCann [1990] HCA 57; 170 CLR 596 at 598 (Mason CJ, Deane and McHugh JJ). 59One of the rules of natural justice is that the person has an opportunity to be heard. The contention that the plaintiff lacked motivation in relation to treatment was never put to him during the hearing and accordingly the Parole Authority denied the plaintiff an opportunity to be heard on that point. I accept that there was a denial of procedural fairness.

The potential for the plaintiff to participate in day/weekend leave was an irrelevant consideration 60The Parole Authority referred to the fact that the plaintiff had not been afforded an opportunity to participate in daily, nightly or weekend leave. That was because his security classification had never been reduced to the level where such leave could be permitted. 61It was submitted that it was wrong for this to be taken into account because it had been an impossibility. Counsel for the plaintiff sought to liken it to the unavailability of a rehabilitation program because of a language barrier in Esho. There, Rothman J held that taking into account the possibility of treatment which was not available, the Parole Authority had taken into account an irrelevant consideration, thereby erring in law and in the exercise of its jurisdiction. 62The situation in Esho is not entirely analogous. There, the plaintiff's English language skills were so limited that the program in question was not, and never would be, available to him. In the present case, temporary leave from prison was theoretically available to the plaintiff. The fact that he had not progressed to the appropriate security classification to render it potentially available was largely a product of his conduct in previous years. 63More fundamentally, however, when the reasons of the Parole Authority are read as a whole, it is plain that the question of leave was discussed in the context of its reference to the plaintiff being "institutionalised". An assessment of his capability of adapting to normal lawful community life (s 135(2)(f)) had to be made in the absence of any demonstration of how he might conduct himself in the community. Thus it was stated: "It could not be said the Authority is in any position to determine [whether] the Offender would be able to adapt to normal community life." (Reasons p 4.3) 64Further, it needs to be borne in mind that the Parole Authority was concerned about the level of risk of further offending. It was a relevant consideration that there was no evidence about how he might perform when back in the community.

The potential for proceedings under the Crimes (High Risk Offenders) Act 2006 (NSW) was an irrelevant consideration 65It was submitted for the plaintiff that "it is clear from the Parole Authority's decision that it placed weight on the fact that if parole was not granted, the prospect of the plaintiff being released into the community without ever having been granted leave from prison could be alleviated through the State making an application under the Crimes (High Risk Offenders) Act". This, it was submitted, was an irrelevant consideration. 66Counsel for the plaintiff contended that the task of the Parole Authority pursuant to s 135 was to decide whether or not parole release "is appropriate in the public interest". Consideration of matters that may, or may not, occur in the future had no bearing upon whether or not it "is" (counsel emphasised the present tense) appropriate for an offender to be released. 67It was submitted that the way in which the Parole Authority took this factor into account was a prominent feature of its consideration of the plaintiff's parole application. 68An alternative point was sought to be made and that is that by giving attention to the potential availability of an extended supervision order being made under the Crimes (High Risk Offenders) Act, the Parole Authority failed to ask itself the correct question: whether or not it was presently in the public interest to grant the plaintiff parole. 69The reasons of the Parole Authority refer to this issue twice: "It is further observed Corrections are considering a possible application for an extended order under the Crimes (High Risk Offenders) Act. Because of the limited time prior to the Offender being released whether on Parole or at the expiration of his Head Sentence the Authority urges such application be made, particularly when one considers the Offender is deemed a high risk and because of the statements he made during his sworn submissions." (Reasons at p 4.7) 70The reference to "statements he made during his sworn submissions" can only be taken to be another reference to the mistaken understanding that the plaintiff said he did not want to undergo therapy or rehabilitation. 71The penultimate paragraph of the reasons included the second reference to this topic: "There is little doubt there is concern that if the Offender was not Granted Parole the community would be placed in a position whereby a High Risk Sexual Offender would be released into the community without supervision and adversely affect the safety of the community. Equally, the Authority is concerned that if Parole was Granted this day the Offender would also be a danger to the community and adversely impact the safety of the community. Parliament has passed legislation that goes someway to alleviating situations such as that found in respect of the Offender and the Authority has already expressed its view respecting such." (Reasons p 5.4) 72The submissions for the Attorney General were that the reference to the possibility of an extended supervision order being made was not material to the Parole Authority's determination. It should be characterised as something that was observed but did not contribute to the decision made. The key issue underlying the decision was the protection of the safety of the community as at July 2013. What the situation might be at the end of the plaintiff's sentence in a year's time, and whether or not he may be made the subject of an extended supervision order was accepted to be irrelevant to that key issue. I asked counsel why, then, did the matter warrant mention in the reasons at all (let alone twice), to which there was the reply: "I don't know why the authority felt the need to mention it ... because that is not something for which they needed to consider themselves". 73In my view it seems more likely that the Parole Authority was primarily concerned about community safety and was making incidental observations in that context. There is nothing wrong with a suggestion being made that consideration ought be given to an application under the Crimes (High Risk Offenders) Act in relation to an offender who presents a significant risk of further sexual or violent offending (albeit a consideration in this case that was influenced by an erroneous finding). I do not accept that this topic was a material consideration in the decision to refuse parole.

Conclusion 74I have found in favour of the plaintiff in relation to the error of the Parole Authority in mistakenly finding that the plaintiff was unwilling to undergo therapy and rehabilitation. Further, that this finding was not put to the plaintiff at the hearing which constituted a denial of procedural fairness. 75It was conceded by counsel for the Attorney General that if any of the grounds were made good the Court should not exercise its discretion to refrain from making the orders sought.

Orders 76I make the following orders:

An order in the nature of certiorari, pursuant to the terms of s 69 of the Supreme Court Act 1970, quashing the decision of the State Parole Authority made on 2 July 2013 in relation to Warwick Boatswain.
An order, in the nature of mandamus, pursuant to the terms of s 65 and s 69 of the Supreme Court Act 1970, that the State Parole Authority convene and fulfil its public duty by determining the application for parole by Warwick Boatswain in accordance with law.
The second defendant is to pay the costs of the plaintiff as agreed or assessed.

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