Duxerty v Minister for Justice and Customs

REASONS FOR JUDGMENT 1 The applicant seeks review pursuant to s 5 of the Administrative Decisions (Judicial Review) Act 1977 (Cth) ("the ADJR Act") of a decision made by the respondent on 3 July 2002 not to grant the applicant release on parole. It is common ground that this decision is a decision of an administrative character made under an enactment, viz s 19AL of the Crimes Act 1914 (Cth) ("the Crimes Act"), and that the applicant is a person who is aggrieved by that decision.

Background 2 On 21 September 1988 the applicant was sentenced to life imprisonment by a judge of the Supreme Court of NSW having been found guilty of conspiring to import a commercial quantity of heroin into Australia contrary to the provisions of s 233B of the Customs Act 1901 (Cth). The Court declined to set a minimum term. 3 The applicant subsequently made an application to the Supreme Court under s 28(1) of the Crimes Legislation Amendment Act (No 2) 1990 (Cth) to have a non-parole period fixed in respect of the sentence of life imprisonment. On 18 July 1996Newman J fixed a non-parole period of 13 years commencing on 21 September 1988 and expiring on 20 September 2001. In his reasons for decision, Newman J noted that the provisions of s 19AL of the Crimes Act make it clear that there is no guarantee that at the expiration of the non-parole period that parole will in fact be granted, and that at that time, the Attorney-General of the Commonwealth must consider, pursuant to s 19AL(2), (3) and (4) of the Crimes Act, whether in fact the applicant is to be released on parole. 4 On 9 January 2001 the applicant was arrested whilst he was on work release and charged with an offence under State law of supplying the drug commonly known as Ecstasy. He pleaded guilty to that charge, and on 15 June 2001 Moore DCJ sentenced the applicant to 4 years imprisonment, with a non-parole period of 18 months. The non-parole period expired on 8 July 2002. 5 Sections 19AL(2) and (3) of the Crimes Act provide as follows: "(2) Subject to section 19AM, where there has been imposed on a person a federal life sentence or a federal sentence of, or federal sentences aggregating, 10 years or more and a non-parole period has been fixed in relation to the person in respect of the sentence or sentences, the Attorney-General must, by order in writing: (a) direct that the person be released from prison on parole: (i) at the end of the non-parole period; or (ii) if the Attorney-General considers that in all the circumstances it would be appropriate to do so, on a specified day, not being earlier than 30 days before the end of the non-parole period; or (b) direct that the person is not to be released on parole at, or at any time before, the end of the non-parole period. (3) An order directing that a person not be released at, or at any time before, the end of the non-parole period: (a) must not be made later than 3 months before the end of the non-parole period; and (b) must include a statement of reasons why the order was made; and (c) if the Attorney-General proposes to reconsider, at a later time, the question of the release of the person on parole - must indicate when the Attorney-General proposes to reconsider the question; and a copy of the order must be given to the person within 14 days after it was made." The date by which any order directing that the applicant not be released at the end of his non-parole period was required to be made by s 19AL(3)(a) was 20 June 2001. 6 On 18 June 2001 a delegate of the Attorney-General directed under s 19AL(2)(b) of the Crimes Act that the applicant not be released from prison on parole on 20 September 2001. The instrument by which parole was refused included the following: "Further, under paragraph 19AL(3)(b) of the [Crimes] Act, I am required to give you reasons why the parole order was not made. This order for refusal of parole has been made for the following reasons: 1. You have been sentenced to a further term of imprisonment for a drug offence while you were serving a sentence for conspiracy to import a commercial quantity of heroin. 2. By that conduct you have failed to show evidence of rehabilitation or an ability to abide by parole conditions. 3. Your new State sentence of four years has a non-parole period of eighteen months which does not expire until 8 July 2002. Prior to that date updated prison and parole reports will be requested. Under paragraph 19AL(3)(c) of the [Crimes] Act, I advise you that after I have received the requested reports, I will reconsider you for release on parole on 8 July 2002." 7 By a letter dated 4 March 2002 the applicant made submissions to the Attorney-General "in the hope that they may assist you in the consideration of my parole". One of the matters which those submissions addressed was the offence committed by the applicant whilst on work release. The applicant characterised that offence as involving a "deplorable lapse of judgement on the spur of the moment [that] was entirely out of character". 8 A casework submission was prepared by officers of the Attorney-General's Department on 14 June 2002 for the Minister for Justice and Customs. The submission recommended that the Minister approve the release of the applicant on parole in accordance with subsection 19AL(2) of the Crimes Act and made some consequential recommendations. The submission incorporated a pre-release report prepared by the Department of Corrective Services on 11 April 2002 which recommended release on parole, and noted that on 2 May 2002 the NSW Parole Board decided to grant the applicant State parole from 8 July 2002. 9 On 3 July 2002 the Minister for Justice and Customs endorsed the submission with a notation that the recommendations were "not agreed" or "rejected". On 3 July 2002 the Minister forwarded a letter to the applicant notifying him of the decision not to grant release on parole. The letter provided as follows: "I refer to your letter of 4 March 2002 to Mrs Jackson of the Attorney-General's Department in which you asked for certain matters to be taken into account when the matter of whether you are to be released on parole was again considered. As you were informed last year, the Delegate agreed to reconsider your release on Commonwealth parole prior to you becoming eligible for release on State parole on 8 July 2002. I have considered your case as the Minister responsible for matters involving federal prisoners. I have taken into account the following matters in making a decision on your case: the parole reports prepared in 2001 and 2002, the Judge's remarks in sentencing you for the offence committed while you were on work release and your letter of 4 March. You were sentenced to a term of life imprisonment on 21 September 1988 for a serious offence, namely a sophisticated conspiracy involving the ongoing importation of commercial quantities of heroin. At that time the Court refused to set a minimum term. You were subsequently granted a non-parole period of 13 years by the Supreme Court in 1996, to commence on 21 September 1988. However, prior to the expiry of that non-parole period, you were arrested, charged and convicted of a further drug offence of supplying ecstasy, committed in January 2001, while you were on work release and serving a sentence for conspiracy to import a commercial quantity of heroin. You were convicted to a term of 4 years' imprisonment on 9 January 2001, while already serving a life term. In these circumstances I do not consider that it would be appropriate to grant you the benefit of release on parole so soon after re-offending in custody while serving a life sentence. Therefore, after careful consideration, I have decided not to grant you release on parole. I am prepared to reconsider you for possible release on 8 July 2003. I have asked officers of my Department to arrange for me to be provided with further prison and parole reports by 8 May 2003 so that I will be in a position to review your case."