Challenge to the parole granted on 18 July 2006
104 In the present proceedings, the plaintiff relied upon the approach taken in Esho (supra) in which Rothman, J. concluded that the approach taken by the Authority in that case was affected by error. In this respect, reliance was placed upon observations by Rothman, J. at [55] and [56].
105 The circumstances of that case are quite different from those of the present. On the evidence in that case, the offender had suitable accommodation and employment and had attended and passed anger management courses. Additionally, the expert reports before the Authority were all to the effect that he had a low to moderate likelihood of re-offending and recommended release on parole subject to the condition of one to one treatment which was unavailable in prison. It was in those circumstances that Rothman, J. concluded "… 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 law community life …".
106 In the present matter, the withdrawal of the offer of accommodation at Foley House was a legitimate matter for the Authority to take into account in the decision not to rescind the revocation order. The fact that Foley House considered that it was necessary to withdraw that support in the circumstances in which it did, was, of course, unfortunate, although, on the evidence, it was a decision that it considered had to be taken in the interests of other inmates.
107 The point at issue in relation to Ground 5, however, is whether the decision made on the review is vitiated by the Authority's reliance upon the "newly devised treatment plan" referred to in paragraph [5] of the SORC supplementary memorandum of 5 September 2006, given the earlier decision of the Parole Authority on 18 July 2006.
108 Upon close analysis, I do not consider that it can be said that the Parole Authority was "… deflected by an irrelevant consideration, namely the most optimum basis upon which the plaintiff could be released to the community …".
109 The decision of the Authority given on 21 September 2006 is essentially to be found at p.24 of the transcript of that date. The chairperson commenced the discussion leading to the decision at p.18 of the transcript and referred to the earlier history of the matter. The chairperson gave considerable attention to the submissions made on behalf of the Commissioner and quoted extensively from those submissions which, inter alia, addressed matters that were considered at the hearing conducted on 18 July 2006. The submissions drew attention to apparent deficiencies in the earlier decision-making process in relation to the grant of parole. In paragraph [14] of the Commissioner's submissions dated 19 September 2006, the following appears:-
"The Parole Authority's decision relies on the quality of the information provided to it, particularly by the Probation and Parole Service and, in regard to serious offenders, by the Review Council. Unfortunately, in this case, it is my submission that some of the information provided to the Parole Authority by Probation and Parole and the Review Council has been deficient and, to a certain extent, the Department of Corrective Services accepts some responsibility for this situation."
110 The chairperson in delivering the decision of the Authority on 21 September 2006, accordingly, did have regard, through his consideration of the submissions of the Commissioner, to the earlier history and to the circumstances that led to the decision of 18 July 2006 in favour of parole.
111 In oral submissions, Mr. Lakatos contended that the "new treatment", as desirable as it may be, merely went to improving the prospects of the plaintiff's reintegration upon release into the community.
112 In the circumstances, I do not consider that the Authority was bound by the statutory provisions under which it was acting to undertake a balancing exercise between the new information as to the proposed treatment plan against the particular matters relied upon and which led to the decision given on 18 July 2006. The tenor of the advice was that, in the circumstances that existed, there remained a need for the plaintiff who had been segregated for some time and whose case was "a serious complex case" to be provided with treatment in accordance with the "plan". Those circumstances amounted to advice that such a programme or plan was considered necessary. The advice could not be characterised in terms, as in Esho (supra) as being advice as to "the most optimum basis" upon which the plaintiff could be released to parole. Ground 6 is, accordingly, dismissed.