Ghanem v State Parole Authority of New South Wales

Supreme Court of NSW|2014-11-17|Before: Hulme J, Hall J

Judgment 1R A HULME J: The plaintiff, Mohamed Ghanem, seeks a declaration and orders in the nature of certiorari and mandamus relating to a decision of the State Parole of Authority of New South Wales of 27 June 2014 to refuse to release him on parole. 2The Parole Authority filed a submitting appearance. The Attorney General is the active opponent. 3The plaintiff was convicted of offences committed on 10 August 2000 at Northcote Park, Greenacre, and on 30 August 2000 at Bankstown. 4He successfully appealed against conviction for the Bankstown offences (R v Chami, M Skaf, Ghanem, B Skaf [2004] NSWCCA 36) and was acquitted following a re-trial. He was not successful in his appeal against conviction for the Greenacre offences (R v Skaf, Ghanem & Hajeid [2004] NSWCCA 74). 5Following the acquittal for the Bankstown offences, an appeal in respect of the sentences for the Greenacre offences was upheld and the plaintiff was resentenced to imprisonment for 17 years with a non-parole component of 12 years: Ghanem v R [2008] NSWCCA 4. The non-parole component expired on 16 November 2013 and the plaintiff then became eligible for release on parole.

The offences 6The following summary of the Greenacre offences is taken from the judgment of Hall J in Ghanem v R at [12]: "1. On the evening of Thursday 10 August 2000, the complainants were together browsing in the shops in the mall at Chatswood. Around 9.00 pm, they were approached by a group of eight young men, which included the [plaintiff]. They agreed to accompany the young men on the understanding that they would be given some marijuana to smoke at a nearby location and that thereafter they would be given a lift to their homes. They got into a white van with four of the men while the remaining four, including the [plaintiff], got into a red car. Before leaving the car park of the shopping centre, the men in the red car spoke in Arabic with the men in the white van. 2. The two vehicles travelled from Chatswood to Northcote Park, Greenacre. During the course of the journey, the occupants of the white van maintained mobile telephone contact with the occupants of the red car. The white van was the first to arrive at the park. By this time it was after 11.00 pm. The park was an in [sic] isolated location unfamiliar to the complainants. 3. On arrival, Bilal Skaf [took] Ms A to one part of the park while a co-offender took Ms B to another part of the park. Subsequently, both complainants were sexually assaulted by being forcibly required to engage in acts of oral intercourse with various of the young men. Ms A had been assaulted in this fashion by Bilal Skaf before the red car, in which the [plaintiff] was travelling, arrived at the scene. 4. After Bilal Skaf had forced oral sex on Ms A, the four men from the red car ran towards her. One crash tackled her. When on the ground, some of the men kicked her about the legs. One of them picked her up on his shoulder and threw her into the bushes. The [plaintiff] was one of those men and he participated in these assaults on her. This led to his conviction on the fourth count on the indictment. The assaults were violent and were found to have caused fear and alarm in Ms A. 5. From this time until he left the area, the [plaintiff] jointed his co-offenders in detaining Ms A for advantage and in detaining Ms B for advantage. 6. After Skaf again had oral sex with Ms A a second time, the four men, including the [plaintiff], approached her, threatened her after which she had non-consensual oral sex with four men (including Hajeid and the [plaintiff]). 7. Ms B was dragged by a male to the toilet block who had oral sex with her. Later, the four men in the red car surrounded her and demanded oral sex. Hajeid then grabbed her and forced her to have oral sex with him. The [plaintiff], as noted earlier, was convicted of aggravated sexual intercourse with Ms B without consent."

Relief sought 7The plaintiff seeks the following relief: A declaration that there was an error (or errors) of law in the decision (and reason); An order in the nature of certiorari, quashing the determination on 27 June 2014; and An order in the nature of mandamus that the Parole Authority convene and fulfil its public duty. Costs. 8The plaintiff claims that the Parole Authority made a decision to refuse parole where there was an absence of evidence to satisfy essential statutory elements of the decision; by applying a policy without regard to merit; by failing to take into account mandatory considerations in accordance with s 135(2) of the Crimes (Administration of Sentences) Act (1999) (NSW); and by relying upon irrelevant considerations. 9These matters were referred to in the written submissions by counsel for the plaintiff, Mr Waterstreet, as "Grounds of Appeal". This is not an appeal; it is an application for judicial review. I mention that only because many of the submissions that were made were erroneously addressed to the merits of the decision. I do not intend to refer to submissions that fall within that category.

Legislative provisions relevant to the grant of parole 10The Parole Authority must not make a parole order for an offender unless it is satisfied, on the balance of probabilities, that the release of the offender is appropriate in the public interest: s 135(1) Crimes (Administration of Sentences) Act. 11In determining whether release would be in the public interest, the Parole Authority must have regard to certain matters listed in s 135(2): (a) the need to protect the safety of the community, (b) the need to maintain public confidence in the administration of justice, (c) the nature and circumstances of the offence to which the offender's sentence relates, (d) any relevant comments made by the sentencing court, (e) the offender's criminal history, (f) the likelihood of the offender being able to adapt to normal lawful community life, (g) the likely effect on any victim of the offender, and on any such victim's family, of the offender being released on parole, (h) any report in relation to the granting of parole to the offender that has been prepared by or on behalf of the Probation and Parole Service, as referred to in section 135A, (i) 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, the Commissioner or any other authority of the State, (ia) if the Drug Court has notified the Parole Authority that it has declined to make a compulsory drug treatment order in relation to an offender's sentence on the ground referred to in section 18D (1) (b) (vi) of the Drug Court Act 1998, the circumstances of that decision to decline to make the order, (j) such guidelines as are in force under section 185A, (k) such other matters as the Parole Authority considers relevant. 12The plaintiff is a "serious offender" in accordance with the definition of that term in s 3 of the Crimes (Administration of Sentences) Act. Included amongst the functions of the Serious Offenders Review Council (SORC) are the provision of advice and the making of recommendations to the Commissioner for Corrective Services as to the security classification and placement of serious offenders and the provision of advice to the Parole Authority concerning the release on parole of serious offenders: s 197(2). 13Another provision of s 135 that is relevant because of the status of the plaintiff as a "serious offender" is: (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.

The decision to refuse parole 14The plaintiff was aged 17 at the time of the Greenacre offences. He was taken into custody on 17 November 2001. His sentence was backdated to that date. As observed earlier, he became eligible for release on parole in November 2013. On 6 August 2013, SORC released an initial report advising that it was not appropriate for the Parole Authority to consider releasing the plaintiff to parole. It concluded: "Council is firmly of the opinion that this offender has to progress in classification to participate in a structured pre release program. This is so despite any expressions of self confidence by him. While it has to be acknowledged that program participation has been good, it cannot presently be said that his return to the community under supervision will be easy for the offender and thus risk free for the public. Council advises that it is not appropriate for SPA to consider the offender for release on parole on this occasion." 15There was a Pre-Release Report by Community Corrections officers dated 6 September 2013 that included the following: "Mr Ghanem presents as a quiet and unassuming individual who appears to continue to struggle with the impact his offending has had upon his victims, his family and his life. As outlined in this report, the offender has utilised his time in custody to his full advantage and completed all required offence targeted programs and interventions. In addition, the offender has accessed education on a regular basis and secured employment throughout his sentence, accruing positive reports from all disciplines. That notwithstanding and taking into account the offender's length of incarceration from such a young age and after careful consideration of his Judges Sentencing Remarks and the recommendations of his CUBIT treatment report, this Service cannot recommend release at this juncture. The Authority is advised that it is the recommendation of this Service that the offender progress to C3 and be slowly reintegrated into society via the day, weekend and works release leave programs." 16On 19 September 2013 the Parole Authority met to consider the question of releasing the plaintiff on parole. The abovementioned reports were among the documents before it. The Parole Authority issued a Notice of Intention to Refuse Parole. Under the heading "Consideration of matters under s 135" there was included: "Offender will benefit from external leave program as recommended in CUBIT report and SORC report." 17 Under the heading "Critical Issues" it stated: "Offender needs to have advice from SORC stating release is appropriate. The offender also needs to participate in the external leave program to assist with reintegration and reduce the effects of institutionalisation." 18 Under the heading "Conclusion" it stated: "Until such time as SORC advise that release to parole is appropriate or the offender demonstrates exceptional circumstances, the offender cannot be released to parole. The Authority believes it is important the offender participates in the external leave program to facilitate successful reintegration into the community." 19SORC prepared a "Supplementary Report" dated 13 May 2014. After referring to the plaintiff's progress since its previous report and the content of a number of other reports it stated: "[H]e must participate in an external leave plan before any recommendation can be made concerning his parole." 20A Supplementary Pre Release Report by a Unit Leader of Community Corrections dated 13 May 2014 concluded: "Despite his apparent frustration with the timeframes involved in his classification progression, Mr Ghanem was constructive in discussions with Community Corrections and willing to participate in Pre Release Leave Programs. Community Corrections maintains its recommendation against release at this time until Mr Ghanem has successfully participated in Pre Release Leave Programs." 21A Manager of Community Corrections supported that recommendation with an endorsement of the report dated 16 May 2014. She wrote: "Given that Mr Ghanem has been in custody for the majority of his adult life it is considered essential that he is afforded the opportunity of participating in Pre Release Leave Programs prior to release to conditional liberty. This will allow him gradual transition with support into community life thereby enhancing his prospects of successful reintegration." 22On 30 May 2014 the Parole Authority met and issued a Notice of Intention to Refuse Parole pursuant to s 146 of the Crimes (Administration of Sentences) Act in which it gave notice it would reconvene on 27 June 2014 to reconsider that determination. 23SORC met on 10 June 2014. A short report emanated which referred to the plaintiff's progress in his classification and placement in a less restrictive country correctional centre (Oberon) where he would be permitted to be outside the centre so as "to participate in escorted community projects off the complex, including town runs with officers". It foreshadowed that if reports remained positive, he could progress to C3 classification by December 2014. In that circumstance, SORC "would likely recommend he be approved for external leave programs" including "works release/education leave, day leave and weekend leave". 24The Commissioner for Corrective Services wrote to the Parole Authority on 26 June 2014 for the purpose of its hearing the following day. He noted the recommendation of SORC concerning the classification and placement of the plaintiff that would eventually "enable him to gradually reintegrate into the community by participating in escorted community projects off the complex". He said this would be considered in due course. He also referred to the plaintiff's further progression to C3 and participation in unescorted external leave programs and said this would be considered following further recommendations to him by SORC. It was his view that "a suitable period is required at each classification level to enable an offender's behaviour and compliance with correctional centre routine and/or external leave programs to be thoroughly assessed before further progression".

Parole Authority hearing on 27 June 2014 25The Parole Authority hearing on 27 June 2014 was attended by the plaintiff, his brother and a Community Corrections officer. The plaintiff was represented by a solicitor, Mr Edwards. 26Mr Edwards opened by indicating that s 135(3) applied but indicated that the plaintiff contended that there were exceptional circumstances warranting release on parole notwithstanding it was not supported by SORC. The plaintiff gave evidence concerning his placement and classification and his post-release plans. He said he had completed all of the programs that were available and the only remaining thing was for his classification to progress to C3 and for him to undertake an external leave program. His brother gave evidence about the plaintiff's family, their support for the plaintiff, and the employment he was offering the plaintiff if he was to be released. 27Mr Edwards made submissions. He referred to the various reports that were before the Parole Authority. He focussed on the risk of recidivism, in effect arguing that it was at a lower level than some assessments suggested. The Chairperson pointed out that the Court of Criminal Appeal had considered that the plaintiff was a medium to high risk of reoffending but Mr Edwards pointed out that the he had successfully completed a number of rehabilitative programs since that time. 28Reference was made in the delay in the plaintiff achieving a C3 classification (which would enable access to external leave programs) and submitted that at the current rate he might be held in custody for a further two years and only be released on parole when there was something like two and a half years left in his parole period. It was argued that expectations by SORC as to the plaintiff's progression had not been met because of decisions that had been taken by the Commissioner about placement and classification. 29Concluding his submissions, Mr Edwards referred to matters standing in the plaintiff's favour: reports about his behaviour and programs he had undertaken; his post-release plans; his family support; and the availability of employment. He argued that exceptional circumstances for the purposes of s 135(3) had been established. 30A short adjournment was taken following which the decision was announced: "HIS HONOUR: Mr Ghanem is in the course of serving a very long sentence for very serious crimes and unfortunately crimes committed when he was very young so that he has spent a lot of his adult years in custody, and that really is the nub of the problem. It is not a question of whether the Static 99 [risk of reoffending assessment] might be revisited, it is not so much a question of his assessment or the assessment of him as a danger to the community at this stage, it is a question of bringing him back into the community from which he has been absent for so long from such a young age, and that requires graduated progress. It is unfortunate, but we say no more than that, that his progress has been as slow as it has been. It is certainly the hope of this Authority that his progress in future is accelerated. It would be a good thing for him to be transferred to Oberon as quickly as possible, for him to start taking part in off complex activities as soon as possible. These are expressions of hope, that is all we can do, Mr Edwards. MR EDWARDS: Yes, your Honour. HIS HONOUR: But the circumstances are regrettably not such as to be categorised so exceptional as to justify this Authority over riding the recommendations of SORC. So the short order is that the decision to refuse taken on 19 September is confirmed, the reasons being the requirement for a recommendation from SORC and the requirement that your client take part in off complex activities."

The Parole Authority made a decision to refuse parole where there was an absence of evidence to satisfy essential statutory elements of the decision 31Some of the submissions for the plaintiff argued about the adequacy of the reasons of the Parole Authority. But no ground asserts error in that respect so those submissions may be put to one side. 32It was put in written submissions that no evidence was provided for the conclusion that the plaintiff would be unable to adapt to normal life before participating in off complex activities. This was crystallised, eventually, in oral submissions at the hearing as an assertion that there was an absence of evidence as to why external leave was necessary in this particular case. 33The submissions for the plaintiff cannot be accepted. The Parole Authority had before it the unanimous and repeated assessments of both Community Corrections and SORC to the effect that the plaintiff had been in custody for such a lengthy period of time, occupying virtually all of his adult years to date, that there was a need to test his ability to reintegrate into the community through a period of engagement in external leave programs in order to determine whether he was likely to adapt to normal lawful community life (s 135(2)(f)). An implicit concomitant consideration was the need to protect the safety of the community (s 135(2)(a)). 34There was no "absence of evidence" as asserted.

The Parole Authority made a decision of denying parole by applying a policy without regard to merit 35It was submitted for the plaintiff that the Crimes (Administration of Sentences) Act does not make it a requirement that an external leave program be undertaken by an inmate before parole can be granted. So much may be readily accepted. With this in mind, counsel referred to the State Parole Authority Operating Guidelines. In section 2 headed "Parole Consideration" there is included: 2.3 While there will be exceptions, in principle an inmate should achieve the following before being granted parole: ... (c) satisfactory completion of programs and courses aimed at reducing their offending behaviour; ... 2.6 Inability of inmates to access programs in custody: An inmate's inability to access programs because of prison location, protection status, gaps in service provision or any other reason may not solely be used to justify release to parole. In such situations, parole should only be granted where relevant factors in 2.3 are met and the Authority is of the view that having regard to Section 135 of the Crimes (Administration of Sentences) Act 1999 it is appropriate to make a parole order. 36Counsel for the plaintiff submitted that the guidelines are inconsistent with the legislation. Namely, the guidelines require that an offender satisfactorily complete programs and courses aimed at reducing his or her offending behaviour before being released (2.3(c)). It was submitted that it can be inferred that the Parole Authority applied this policy inflexibly in its decision, and no regard was given to the individual circumstances of the plaintiff. 37It was contended that there was a failure to have regard to a number of matters favourable to the plaintiff. This was said to give rise to an inference that the Parole Authority must have adopted an inflexible application of the policy in the Operating Guidelines thus fettering the proper exercise of the Parole Authority's discretion. There was a "lack of a real and genuine decision being made" and so "the decision is invalid". 38I am not persuaded that the Parole Authority applied the Operating Guidelines. No reference was made to them. There is nothing in the transcript of the hearing of the Parole Authority on 27 June 2014 that indicates anything other than that it was concerned with the specifics of the plaintiff's case. Moreover, it was not as if the Parole Authority had unilaterally determined that the plaintiff should participate in external leave programs because it felt constrained to do so because of some policy. The idea originated in the advice provided in the reports of Community Corrections and SORC. 39The Parole Authority did have regard to the plaintiff's circumstances. It had regard to the fact that he had completed various programs. That is clearly implicit in the statement of the Chairperson that "it is not so much a question of ... the assessment of him as a danger to the community at this stage". Regard was also had to the delay in the reduction of the plaintiff's security classification to a point where he would become eligible for external leave programs. That is clearly implicit in the statement that "it is unfortunate, but we say no more than that, that his progress has been as slow as it has been". 40This ground is not made out.

Failure to take into account mandatory considerations per s 135(2) 41The plaintiff submitted that the Parole Authority failed to consider the matters specified in s 135(2), in particular the need to protect the safety of the community, relevant comments by the sentencing court and the likelihood of the offender being able to adapt to normal community life: s 135(2)(a)(d) & (f). 42It was argued that there was no mention made of the plaintiff's prospects of employment; family and community support; positive progress in prison; or lack of request from victims regarding parole. But these are not matters listed in s 135 that the Parole Authority "must have regard to". I do not know what the lack of request from victims had to do with anything but the other matters were clearly accepted; there was no need to discuss them in any detail. 43When pressed at the hearing as to what was meant by the submission that there was a failure to take into account "any relevant comments by the sentencing court" (s 135(20(d)), Mr Waterstreet indicated that he was referring to the setting of the non-parole component of the sentence and that it expired in November 2013. I do not have any doubt that the Parole Authority was aware of that. Indeed, if it was not aware of it, it would not have been considering whether the plaintiff should, or should not, be released on parole. 44The need to protect the community and the plaintiff's ability to adapt to normal lawful community life were at the heart of the decision to refuse parole. The perceived need for a graduated reintegration of the plaintiff into the community by way of undertaking external leave programs was directed precisely towards those considerations. 45The "mandatory considerations" are those in s 135(2). There was no failure of the Parole Authority to take any relevant matter there listed into account.

Reliance upon irrelevant considerations 46In written submissions it was contended that in refusing parole, the Parole Authority said that the "nub of the problem" was the nature of the plaintiff's offences. Mr Waterstreet conceded at the hearing that this was wrong. The "nub of the problem" the Chairperson was referring to was the fact that the plaintiff had spent a lot of his adult years in custody (see the reasons quoted above at [30]). 47Nevertheless, it was submitted that this was an irrelevant consideration because "it was always going to be the case" that the plaintiff would have "spent a lot of his adult time serving his sentence". However that does not deny the legitimacy of the Parole Authority considering that this called for care in ensuring that he was capable of adapting to normal lawful community life. It cannot be characterised as "an irrelevant consideration". 48An attempt was made to liken the present case to that which came before this Court in Esho v Parole Board Authority of NSW [2006] NSWSC 304. There it was held that there was error in refusing parole on the basis that an inmate had not undertaken a course that would never under any circumstances have been available for him to undertake. Here, it was submitted, the plaintiff was refused parole upon the basis that he had not undertaken external leave programs that had not been available to him because of administrative decisions taken within Corrective Services as to his classification. There are a number of reasons for those decisions having been taken but it is unnecessary to delve into them. The distinguishing feature is that the situation in Esho was an absolute; here, it was simply a matter of unfortunate delay but with further time the desired program would become available. 49The Esho point was something of a distraction. The ground is that the Parole Authority relied upon irrelevant considerations. Two were identified. One was conceded to be erroneous. The other cannot be characterised as irrelevant. The perceived need for the plaintiff to participate in external leave programs, as recommended by both the Community Corrections and SORC, because of the length of time he had been held in custody was clearly relevant to whether he would be likely to adapt to normal lawful community life. There is no merit in this ground.

Orders 50I make the following orders: 1 Summons dismissed. 2 The plaintiff is to pay the costs of the second defendant.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 24 November 2014

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Judgment (12 paragraphs)

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Cases Cited (4)