Administrative Decisions (Judicial Review) Act 1977JGW25 v Attorney-General [2026] FCA 321 | Case summary | Zoe

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JGW25 v Attorney-General

[2026] FCA 321

Federal Court of Australia|2026-03-20|Before: Vandongen J

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At a glance

Source facts

Court

Federal Court of Australia

Decision date

2026-03-20

Before

Vandongen J

Source

Original judgment source is linked above.

Judgment (104 paragraphs)

[1]

The applicant is serving a sentence of 15 years' imprisonment, with a non-parole period of 11 years. His non-parole period is due to expire on 30 August 2027. That sentence was imposed after the applicant was convicted of several very serious offences concerning the unlawful importation of firearms into Australia.
The applicant made an unsuccessful application to the respondent, the Commonwealth Attorney-General, in 2019 to be released from prison on licence, pursuant to s 19AP of the Crimes Act 1914 (Cth) (first application). In June 2021, the applicant made a further application under s 19AP to be released on licence (second application). In February 2025, after an extraordinary delay of over three and a half years, and then only after the applicant made an application to this Court in November 2024 for judicial review of the respondent's failure to determine his second application to be released on licence, a delegate of the respondent eventually refused to grant the licence sought.
With the assistance of pro bono counsel, and pursuant to an amended originating application for judicial review, the applicant applies for judicial review of the decision made by the respondent's delegate. The applicant seeks an order in the nature of certiorari quashing that decision and an order of mandamus compelling the respondent to make a decision under s 19AP according to law. In the alternative, the applicant seeks orders to similar effect under the (Cth) ().

[13]

Having regard to ordinary sentencing principles, and to the factors courts are required to take into account under s 16A of the Crimes Act when sentencing a person for a federal offence, it is easy to understand why the Attorney-General might in a particular case be satisfied that one or a combination of those matters amount to exceptional circumstances justifying the grant of a licence.
It is important to appreciate that s 19AP(4) requires that, before granting a licence under s 19AP(1), the Attorney-General must be satisfied that exceptional circumstances exist which justify the grant of a licence. This means that the Attorney-General must be satisfied that the relevant circumstances exist, that those circumstances are exceptional, and that they justify releasing a person on licence in circumstances in which they have already been convicted and sentenced to a term of imprisonment.
Under s 19AP(2) a person who is serving a 'federal sentence of imprisonment', or another person acting on that person's behalf, may apply to the Attorney-General for a licence to be released from prison. However, there is nothing in the text used in s 19AP to suggest that the Attorney-General may only exercise the discretion in s 19AP(1) if an application has been made under s 19AP(2). Accordingly, the Attorney-General may of his or her own volition decide to grant a licence to a person serving a relevant sentence, provided that the Attorney‑General is first satisfied that exceptional circumstances exist that justify the grant.
If an application is made under s 19AP(2), then the application must 'specify the exceptional circumstances relied on to justify the grant of the licence' (emphasis added): s 19AP(3)(b). The evident purpose of the requirement to specify the exceptional circumstances that are relied upon is to ensure that there is a clearly identified framework within which the Attorney-General is to decide whether to grant a licence. This is reinforced by s 19AP(3)(a), which requires that an application to be released on licence be made in writing.
When s 19AP(3) is read with s 19AP(1) it may be seen that in exercising the discretion to grant a licence to a person serving a federal sentence, the Attorney-General must have regard to the particular circumstances that are specified in an application and are relied upon as exceptional circumstances justifying the grant of the licence made under s 19AP(2): Hasim at [49]; Cf Ng at [22]. In having regard to those circumstances, the Attorney-General is ordinarily required to consider them individually and in combination with each other.
It may be anticipated that where a prisoner applies under s 19AP(2) for early release on licence the written application that is required by s 19AP(3)(a) may not always clearly 'specify' the circumstances that are relied upon as exceptional circumstances justifying the grant of such a licence. Nevertheless, as the Attorney-General is required to have regard to such circumstances when deciding whether to grant a licence under s 19AP(1), it will be necessary for care to be taken to ensure that the Attorney-General correctly identifies those specified circumstances. A failure by the Attorney-General to correctly identify a specified exceptional circumstance relied on by a prisoner to justify the grant of a licence under s 19AP(1) is likely to be productive of a failure to have regard to a mandatory consideration and to thereby fail to carry out the statutory task required by s 19AP.
Based on the materials that are before this Court, the CPO did seek to ensure that it had correctly identified the specified exceptional circumstances on which the applicant relied. In that respect, the CPO wrote to the applicant on several occasions in what were termed 'adverse comments letters' that were sent to the applicant for the purpose of affording him natural justice. In each of those letters the CPO advised the applicant that his application was considered to be based on certain clearly articulated circumstances. I will come to discuss those circumstances later in these reasons.
The Attorney-General must consider an application made under s 19AP(2). Otherwise, the ability to make an application under s 19AP(2), and the requirement that such an application comply with the conditions in s 19AP(3), would be devoid of utility. Further, and as was made clear in Dalton v Attorney-General of the Commonwealth of Australia [2025] FCA 625 at [84], although s 19AP is silent as to the period within which a decision must be made after receipt of an application for a licence, there is a duty to consider such an application within a reasonable time.
Where an application is made under s 19AP(2) that complies with s 19AP(3), the Attorney‑General's consideration of whether relevant exceptional circumstances exist is not limited to the circumstances specified in that application. This is made clear by subss (4) and (4A) of s 19AP. Section 19AP(4) is concerned with the question of whether the Attorney‑General is satisfied that relevant exceptional circumstances exist, and not with a more limited question of whether the circumstances specified in a written application are exceptional circumstances that justify the grant of a licence. Further, s 19AP(4A) provides that the Attorney-General may have regard to three specific circumstances, but there is nothing to suggest that regard may only be had to those circumstances on condition that they are also specified in a written application.
As was observed in Hasim at [47]:

[15]

However, and as will be seen when I come to consider ground 5 of the application for judicial review, apart from any specified circumstances that are relied on by an applicant in a written application as exceptional circumstances justifying the grant of a licence made under s 19AP(3), I am of the view that the Attorney-General is not bound to have regard to any other matter in determining whether he or she is satisfied of the existence of exceptional circumstances justifying release on licence, as required by s 19AP(4). My view may be contrasted with the approach taken by Foster J in Cornwell v Attorney‑General of the Commonwealth of Australia [1993] FCA 497; (1993) 45 FCR 492 at 505, where his Honour appeared to conclude that the Attorney-General was obliged to take into account questions of public interest and public reaction in deciding whether exceptional circumstances exist and whether to exercise the discretion conferred by s 19AP.
Drawing together what I have said about the operation of s 19AP to this point, the Attorney‑General is obliged to consider an application made under s 19AP(2), which complies with s 19AP(3), and must do so within a reasonable time. Where a compliant application is made, the Attorney-General is required to consider whether he or she is satisfied that exceptional circumstances exist which justify the grant of a licence under s 19AP(1). In considering that issue, the Attorney-General is required to have regard to the circumstances specified in the application that are relied on as exceptional circumstances justifying the grant of a licence, both individually and in combination. However, the Attorney-General may also, but is not obliged to, have regard to any other matter, including those referred to in s 19AP(4A), in determining whether he or she is satisfied that exceptional circumstances exist which justify the grant of a licence. If the Attorney-General reaches the necessary satisfaction provided for in s 19AP(4), then he or she may exercise the discretion conferred by s 19AP(1) to grant a licence for the person to be released from prison.
It has been held that the exercise of the power conferred by s 19AP is conditioned by the requirements of procedural fairness and legal reasonableness: Dalton at [70]; and Ng at [22]. However, those requirements will ordinarily have little work to do. It will also generally be very difficult to challenge by way of judicial review a largely unfettered decision to decline to grant a licence under s 19AP(1): Ng at [22]. This difficulty is made even more acute if there is no requirement to provide reasons, as the applicant appears to accept was the case in the context of his application to be released on licence.
In this case, the delegate gave very short reasons for refusing to grant the applicant a licence under s 19AP(1). I will reproduce those reasons in full later in these reasons. However, before doing that it is necessary to note that in reaching his decision, the delegate had the benefit of the CPO submissions and its many annexures.
As will be seen, the applicant's case that the delegate fell into jurisdictional error depends largely upon inferences being drawn from the CPO submissions. The parties accept that the Court may have regard to the CPO submissions and to its various attachments in determining the material before the delegate and in assessing whether that material could support the inference that the delegate fell into jurisdictional error: Stephens v Attorney-General [2021] FCA 204 at [5] to [6]; Roberts v Attorney-General (Cth) [2022] FCA 574; (2022) 176 ALD 509 at [25]; and Lee v Attorney-General (Cth) [2023] FCA 952 at [16]. However, that material must be read as a whole and parts of it must not be read out of context: Stephens at [6]. Accordingly, it is necessary to summarise the CPO submissions in some detail.
It is also important to appreciate that there is a danger in drawing inferences about what a decision-maker did, read or considered in exercising a statutory power, in the absence of any direct evidence about these matters: Roberts at [26]; and Stambe v Minister for Health [2019] FCA 43; (2019) 270 FCR 173 at [70].

[20]

It may be seen that the first 'ground', as it was articulated by the CPO, focuses on the applicant's cooperation with a law enforcement agency before he was sentenced and on a contention that this cooperation was not taken into account by the sentencing court. In circumstances in which the CPO submissions had earlier noted that the sentencing judge did take the applicant's cooperation into account as a mitigating factor, this ground must be understood as a contention that the applicant's cooperation was not taken into account by the Court of Appeal when it resentenced him after the successful prosecution appeal against sentence.
The second 'ground' is concerned with the purported existence of a risk that the applicant may be the victim of violence because he had previously provided assistance to a law enforcement agency if he had to be transferred to Port Phillip Prison when he required medical treatment.
The third 'ground' is concerned with the treatment of the applicant's medical conditions. Read literally, this ground focuses on the capacity for the applicant's medical conditions to be adequately treated or managed within the prison system. However, it may be accepted that it also raises the related question of whether the applicant's medical conditions were being adequately treated or managed.
I will return to those grounds later in these reasons. Nevertheless, it should be noted at this stage that none of the grounds on which the applicant relies on this application for judicial review seek to challenge the way in which the CPO submissions articulated the grounds on which the applicant sought the grant of a licence under s 19AP.
The CPO submissions noted that the applicant's application for early release on licence consisted of a handwritten letter, correspondence with the Executive Director of 'Justice Health' (including attachments relating to the first application and correspondence regarding his medical conditions) and a freedom of information request seeking a copy of the applicant's medical records for a period of about four and a half years. The CPO submissions also noted that the applicant relied on substantially similar grounds to those on which he had previously relied when he made the first application in 2019.
Reference was made in the CPO submissions to the applicant's previous cooperation with a law enforcement agency, and it was noted that the applicant was provided with a 'medium value letter of assistance' for the purposes of sentencing. It was also said that this cooperation was taken into account when the applicant was originally sentenced in the County Court. However, the CPO submissions noted that the applicant asserted that his assistance was not taken into account when he was resentenced by the Court of Appeal.
The CPO submissions recorded that the applicant believed that information about him having cooperated with a law enforcement agency had been 'leaked' and that he was therefore at risk of violence. The CPO submissions noted that the applicant had expressed concerns that if he were to be transferred to Port Phillip Prison for medical treatment, he would then be at greater risk of violence and that he had consequently refused to be transferred to Port Phillip Prison so that he could receive medical treatment.
The applicant's numerous medical conditions were also spelled out in the CPO submissions, which contained a dot point summary of the applicant's complaints regarding the adequacy of the medical treatment that had been made available to him. Those complaints included assertions about excessive waiting times for operations to be carried out, failures to transfer him to hospital as required, failures to prove a reasonable standard of heath care that was comparable to the standard available in public health care, and failures to address his security concerns about being required to transfer to Port Phillip Prison for medical treatment.
The CPO submissions also referred to correspondence it had received from the applicant. It was noted that the applicant continued to complain in that correspondence about the adequacy of the medical treatment he had been receiving, and that he had provided examples of specific occasions on which he had received what he perceived to have been inadequate medical attention. The CPO submissions also recorded the applicant's claims that several of his medical conditions had worsened and that he had not received adequate health care to deal with the deterioration in these conditions.
The CPO submissions set out in some detail the input the CPO had received from Justice Health, which appears to have been the agency responsible for delivering health services to prisoners in Victoria, and from Corrections Victoria.
Justice Health provided two reports about the applicant, one in August 2021 and another in November 2023. Having regard to the issues raised by the applicant's grounds of review it is necessary to set out the relevant parts of the CPO submissions in which those reports were summarised:

[22]

Ÿ The primary health services which [the applicant] had access to in prison were equivalent to that provided in the general community. This included primary health care provided by registered nurses, and medical, dental and allied health practitioners. He had regular reviews of his chronic health conditions with the Health Promotions Nurses, including regular pathology to monitor his condition.

Ÿ Specialist services were available via referral to St Vincent's Hospital Melbourne (SVHM). An increasing number of these services were available to prisoners via telehealth, reducing the need for transfer to Melbourne for appointments. If a prisoner requires an in-person appointment with a specialist at SVHM, they will be transferred either to Port Phillip Prison, or in some circumstances may instead be transferred to the Melbourne Assessment Prison.

Ÿ [The applicant] had a number of appointments with various specialists at SVHM, both in person and via telehealth. He refused to attend a number of the in-person appointments, citing that he did not wish to go to Port Phillip Prison. Appointments were also cancelled either by the hospital or by the security provider, for a range of reasons. Wherever possible, appointments were conducted via telehealth facilities at [the prison in which the applicant was being held]. [The applicant's] medical treatment was adjusted by the medical practitioner at [the prison where he was being held] in accordance with the recommendations of the specialists.

Ÿ [The applicant] stated during a consultation with a registered nurse that he was going to refuse to go to any further appointments in Melbourne as it was a waste of his time. He has also failed to attend appointments booked with the medical practitioner at [the prison where he was being held].

Ÿ [The applicant's] pathology at the time, including examination of cholesterol, thyroid function, androgenic hormones, general biochemistry, glucose, and prostate specific antigens were essentially within normal limits. Arterial Doppler studies of his legs showed no evidence of deep vein thrombosis. Venous Doppler studies demonstrate the known issue of insufficiency. [The applicant] had his first COVID-19 vaccine, and was booked for the second. His blood pressure was maintained well within normal limits and his weight was approximately 40 kilograms lower than when he entered incarceration in 2016.

Ÿ [The applicant] had access to a full range of primary, secondary and tertiary health care available to him, his medical conditions were being cared for, as with any other prisoner, and within the limits that he himself sets. [The applicant's] health conditions are chronic in nature, and were well established prior to the commencement of his incarceration in 2016. Any change in his condition was managed in accordance with medical guidelines and appropriate referrals were made to specialist treatment clinics as required.

[27]

The CPO submissions also explained that input had been obtained from Corrections Victoria concerning the applicant's claims about the risk of violence were he to be transferred to Port Phillip Prison for medical treatment in Melbourne. It was recorded that, on 13 August 2021, Corrections Victoria had advised that because of the applicant's concerns with a placement at Port Phillip Prison, steps had been taken to ensure that if he should be required to return to metropolitan Melbourne for any reason, including any medical reason, the applicant would instead be returned via the Melbourne Assessment Prison.
The CPO submissions indicated that Corrections Victoria had also provided the CPO with several 'Parole Assessment Reports' relating to the applicant's application for early release on licence. The contents of those reports were then summarised, focusing on the applicant's personal circumstances, his risk of reoffending, his eligibility to participate in 'offence specific programs' and the fact that he had completed three short drug and alcohol programs. Detailed reference was also made to the applicant's post-release plans, noting concerns about the ability to monitor his risk to the community without electronic monitoring and that an addendum to a parole assessment report from 13 April 2023 stated that Corrections Victoria did not recommend that the applicant be released 'given the risks outweigh the benefits'.
As I have already mentioned, the Crown appealed against the sentence imposed on the applicant at first instance. In that appeal it was contended that both the total effective sentence and the non-parole period were manifestly inadequate. The CPO submissions recorded that the Commonwealth Director of Public Prosecutions (CDPP) had advised that the applicant's assistance to authorities was taken into account when he was resentenced by the Court of Appeal after the successful prosecution appeal. It is apparent that the CDPP provided advice to the CPO that, in effect, it was evident that the Court of Appeal took the applicant's assistance to authorities into account when it resentenced him because the Court did not interfere with any of the individual sentences imposed on the applicant, but resentenced him by making different orders for cumulation and concurrency.
The CPO submissions then set out the process that was adopted to ensure that the applicant was afforded procedural fairness. That process involved putting the applicant on notice of various matters that could be considered by the respondent to be adverse to the applicant's application for early release on licence. In that regard, the CPO submissions record that four 'adverse comments letters' were sent to the applicant on 11 August 2021, 13 July 2022, 4 November 2022 and 2 January 2025, respectively. It is not clear why this process took as long as it did, but that was not a matter that was raised before me and therefore I need say nothing more about it.
Pausing there, it is important to appreciate that, in each of those four adverse comments letters, the specified circumstances on which the applicant relied as exceptional circumstances justifying the grant of a licence were identified and articulated in essentially the same way in which they were identified in the CPO submissions, as recorded earlier in these reasons at [42].
The CPO submissions summarise in great detail the various responses the applicant gave the CPO in answer to the four adverse comments letters. However, it is not necessary for me to summarise those responses here. It is enough to note, at this stage at least, that in his responses the applicant gave further details about:

[29]

The CPO submissions concluded with a section headed 'Discussion'. Under that heading, the author of the CPO submissions identified the legal framework within which the delegate was required to decide whether to grant a licence under s 19AP(1) as well as the specified circumstances that the applicant relied on as exceptional circumstances justifying his release on licence. The author then analysed each of those circumstances before making a submission that the applicant's circumstances did not, either separately or in combination, constitute exceptional circumstances that would justify granting a licence under s 19AP(1). On that basis, the author recommended that the grant of a licence be refused.
The applicant contends, by ground 1 of his amended application for judicial review, that the delegate failed to constructively exercise his discretion under s 19AP(1) by failing to consider, and also by misunderstanding, the specified circumstances on which he applied for a licence. This means that it is necessary to look at this part of the CPO submissions in more detail.
The author of the CPO submissions commenced a discussion of the applicant's application with a summary of the legal framework within which the delegate was required to decide whether to exercise the discretion conferred by s 19AP(1). In that regard, the CPO submissions made it clear that, before granting a licence to the applicant, the delegate was required to be satisfied that 'exceptional circumstances' exist to justify the granting of the licence. The delegate was informed that he was required to decide whether the circumstances specified in the applicant's application for early release on licence together, or separately, constituted exceptional circumstances justifying the grant of a licence. The delegate was also informed that s 19AP(4A) sets out three non-exhaustive circumstances that could constitute exceptional circumstances.
The author of the CPO submissions summarised the specified circumstances on which the applicant sought early release on licence in the following way:

[31]

The CPO submissions then dealt with those circumstances under the headings of 'Cooperation with law enforcement', 'Medical grounds' and 'Mental health'. However, and as I have already noted, the CPO submissions must be read as a whole. Accordingly, the summary of the specified circumstances must be read in light of the circumstances that were articulated in each of the adverse comments letters as well as in the CPO submissions themselves: see [42] and [58] of these reasons.
Returning to the CPO submissions, under the heading 'Cooperation with law enforcement', it was noted that the applicant had submitted that 'he has significantly assisted law enforcement authorities and that his assistance was not appropriately taken into account in his sentencing'. The CPO submissions then recorded the following:
1. Cooperation with law enforcement authorities may be grounds for early release if that cooperation occurs after the person was sentenced or where the cooperation was not known to the sentencing court.
2. The CDPP advised the CPO that the Court of Appeal's sentence takes the assistance [the applicant] provided to law enforcement agencies into account. The CDPP advised that this is evident from the fact the Court of Appeal accepted the approach of the County Court, altering the County Court Judge's orders of cumulation (based on the principle of totality) rather than the sentences for individual offences due to the Court of Appeal's finding that the total sentence awarded by the County Court was manifestly inadequate.
3. Given the advice from the CDPP, the CPO considers that [the applicant's] claims that there is no reference to 'assistance' or 'cooperation' in the Court of Appeal's written decisions is due to the fact it was a silent hearing and irrelevant given the Court of Appeal accepted the approach of the County Court, which [the applicant] conceded did take into account the assistance he provided.
4. The CPO considers [the applicant's] assertion that he offered to continue cooperation with law enforcement post-sentencing and that this offer remained open is irrelevant and could not be said to constitute 'extensive cooperation with law enforcement provided after sentencing.' For these reasons, there is no information to suggest that [the applicant's] cooperation with law enforcement constitutes exceptional circumstances that justify his release on licence at this time.
It is apparent that the CPO submissions ultimately communicated to the delegate that one of the specific matters upon which the applicant relied as constituting an exceptional circumstance justifying the grant of a licence was that the assistance he provided to a law enforcement agency before he was originally sentenced in the County Court was not 'appropriately' taken into account when he was resentenced by the Court of Appeal. Further, the CPO submissions also referred to the applicant's contention that he offered to provide further cooperation to law enforcement agencies after he was sentenced.
Under the same heading, the CPO submissions also dealt with the applicant's concerns about his safety:
1. In relation to this ground, [the applicant] raised his concern that the assistance he provided to authorities is known and that his safety is at risk. In his response to the second adverse comments letter, [the applicant] submitted that in July 2020 he had human excrement thrown over him, 'a sure sign that [he] had been talking to law enforcement.' [The applicant] believed that his safety would be jeopardised if he transferred to Port Phillip Prison for medical treatment. [Corrections Victoria] was aware of [the applicant's] concerns and appear to have adequately addressed them by changing his interim placement classification and referring him to the Melbourne Assessment Prison if necessary, rather than Port Phillip Prison, as a protective measure. This is discussed in more detail below under 'Medical grounds'.
2. The CPO considers that the link between any security threat faced by [the applicant] and his cooperation with law enforcement appears to be speculative. The CPO considers that [the applicant's] security and custodial placement is a matter for [Corrections Victoria] to manage and monitor. The CPO does not consider that the concerns raised by [the applicant] are sufficient to establish exceptional circumstances in this case. For these reasons, the CPO considers that there is no information to suggest that [the applicant's] risk of being the victim of violence is of an extreme nature and that his claims are not exceptional circumstances that justify his release on licence.
The CPO submissions then dealt with the applicant's 'Medical grounds'. In that regard, the CPO submissions recorded that the applicant had submitted that,

[33]

It may be noted that, rather than focusing on the capacity for the applicant's medical conditions to be adequately treated or managed in prison, the CPO submissions characterised the applicant's complaint as one in which his medical conditions were not in fact being adequately treated or managed.
The CPO submissions recorded the following about the applicant's medical conditions:
1. In the information provided by Justice Health on 17 August 2021 and 22 November 2023, Justice Health provided assurances that [the applicant's] complex medical conditions are adequately managed within the correctional system and that he has not requested any services that are unable to be provided to him. As such, the CPO considers it could not be said that [the applicant's] conditions require a level of care or type of treatment that is not available through the prison medical system. Justice Health noted that [the applicant] had significant health problems prior to imprisonment and where his conditions have deteriorated or changed he has received appropriate treatment to stabilise his condition on site or has been referred to specialists for that treatment.
2. Justice Health advised that [the applicant] has access to a full range of primary, secondary and tertiary health care available to him, and his medical conditions are being cared for, as with any other prisoner, and within the limits that he himself sets. [The applicant's] health conditions are chronic in nature and were well established prior to the commencement of his incarceration in 2016. Any change in his condition has been managed in accordance with the current medical guidelines, and appropriate referrals made to specialist treatment clinics as required.
3. [The applicant's] condition prior to imprisonment is relevant in so far as it was taken into account by the sentencing court. The Court of Appeal noted that the County Court had held that [the applicant's] physical conditions made imprisonment more burdensome for him than for a prisoner of normal health and moderated the sentence that would have been imposed on account of this hardship. Specifically, in the Court of Appeal's sentence, [the applicant's health concerns] were all noted. The CPO considers that based on the information available, there does not appear to have been a significant change to [the applicant's] health condition since sentencing.
4. The CPO considers that there is no corroborated information to suggest that [the applicant's] medical conditions are not being treated appropriately in custody. The CPO considers that [the applicant's] health conditions were taken into account for sentencing and that information from Justice Health supports the conclusion that his conditions have not occurred, nor worsened significantly, due to his incarceration. The CPO considers that there is no information to support a view that [the applicant's] release on licence is necessary (as opposed to desirable) for his medical conditions. Indeed, the available information suggests that [the applicant] is receiving adequate health support and is managing his health conditions.
Finally, the CPO submissions dealt with the applicant's mental health:
1. [The applicant's] application also notes mental health as another reason for his release on licence.
2. [The applicant] submitted that the COVID-19 restrictions have had a negative impact on his mental health due to in-person visits being cancelled. The limitations on in‑person visits by [the applicant's] family have also had an adverse impact on his mental health.
3. The CPO considers that there is no information to suggest that the hardship being suffered by [the applicant] is of an extreme kind, and is not dissimilar to the experiences of families who are ordinarily significantly impacted by the imprisonment of one of their family members. Indeed, the impact of the COVID-19 pandemic on prison visits is a factor which affected the entire prison system and the CPO considers that limitations on prison visits are not hardships of an extreme kind.
Having dealt with the circumstances that were considered to have been specified in the applicant's application, and which were relied upon as exceptional circumstances justifying the applicant's early release on licence, the author of the CPO submissions then set out his or her conclusions. In essence, it was concluded that the circumstances relied on by the applicant did 'not satisfy release on licence at this time' and a recommendation was made that the application for early release on licence be refused because the applicant's circumstances do not, either separately or in combination, constitute exceptional circumstances justifying the grant of a licence under s 19AP(1) of the Crimes Act.
On the last page of the CPO submissions the following appears:

[47]

Ground 1: The delegate failed to constructively exercise jurisdiction in that:

1.1 he failed to consider (or genuinely consider) whether the Applicant's medical conditions were adequately treated or managed in custody.

1.2 he assessed whether the security threat faced by the Applicant raised exceptional circumstances rather than engaging with the Applicant's claim that his assistance to law enforcement led to security concerns which inhibited his ability to receive adequate medical treatment.

Ground 2: [I]t was legally unreasonable for the Respondent to conclude that the Applicant is receiving adequate health support and/or management of his health conditions.

Ground 3: The delegate fell into error, which was not immaterial, in relying on the CDPP's response received on 26 May 2020 that incorrectly represented the Court of Appeal as having 'accepted the approach of the County Court'.

Ground 4: It was legally unreasonable to conclude that the link between any security threat faced by the Applicant and his cooperation with law enforcement was speculative.

Ground 5: The delegate fell into error by applying the 'exceptional circumstances' test without considering the applicant's 'cooperation with law enforcement', 'medical grounds' and 'mental health' in light of, and together with, the Applicant's other relevant factors, including:

a. the Applicant's advanced age;

the Applicant's likelihood of dying in custody under the current term of his sentence;

the Applicant having been assessed as 'low risk of re‑offending over the medium to long term' in his pre-sentence psychological report;

the availability of suitable accommodation if released on license as assessed by Corrections Victoria in their Parole Assessment Report dated 20 March 2023;

[s]upportive family and social support from his long term partner;

his assistance to law enforcement which was given little to no weight by the Court of Appeal despite receiving a letter of assistance citing 'medium level' of assistance.

[53]

When the applicant's argument is set out in this way, it suggests that the applicant's real complaint is that the delegate made a decision that was legally unreasonable or that was infected by illogicality or irrationality. Indeed, in her oral submissions counsel for the applicant expressly contended that it would have been 'unreasonable' for the delegate to reject the applicant's claim, that the delegate 'could not have come to the decision he came to', and that it was 'unreasonable for [the delegate] to have come to that decision when there is no evidence [to] the contrary'.
Ground 2 is expressed in terms that directly raise a contention that it was legally unreasonable for the delegate to conclude that the applicant had been receiving 'adequate health support and/or management of his health conditions'. However, the written submissions in support of that contention essentially rely on the same steps in the argument raised in support of ground 1.1.
In my view, there are several fundamental difficulties with the applicant's argument, whether it is understood as a contention that the delegate constructively failed to exercise jurisdiction or as a contention that his decision was legally unreasonable. The first of those difficulties is concerned with the premise of both grounds of review. That premise is that the delegate did, in fact, reject the applicant's claim that his medical conditions were not being adequately managed or treated while he was in custody.
There is a material difference between, on the one hand, being satisfied of the existence of a circumstance on which an applicant for release on licence relies and, on the other hand, being satisfied that a circumstance found to exist amounts to an exceptional circumstance justifying the grant of a licence. In this case, the delegate's reasons reveal only that he was not satisfied of the latter of these two considerations. In that regard, the delegate said that he was 'not satisfied that there are exceptional circumstances that justify [the applicant's] release on licence for any of the grounds that you raise either in combination or individually'. Otherwise, there is nothing in the delegate's reasons to indicate whether he was also not satisfied that the applicant's medical conditions were not being adequately managed or treated.
I would not infer that the delegate necessarily rejected the applicant's claim that his medical conditions were being inadequately managed and treated. Although various arguments were made in the CPO submissions about why the applicant's claim should not be accepted, the delegate had before him the applicant's written application as well as his many letters and responses to the adverse comments letters, all of which contained information that very clearly conveyed the applicant's belief that the medical care he was receiving was inadequate. As the applicant himself submitted, he had provided very detailed information to the CPO about his personal experiences of the medical treatment he was receiving. In those circumstances it is entirely possible that the delegate accepted the applicant's own assessment of the adequacy of the medical treatment but, at the same time, was not satisfied that this constituted an exceptional circumstance that justified the applicant being released on licence, either on its own or in combination with any of the other grounds on which the applicant had relied.
This conclusion is a sufficient reason in and of itself to dismiss these grounds.
The second, and more fundamental difficulty with both of these grounds is concerned with the third and fourth steps in the applicant's argument and particularly with the contention that there was no evidence to contradict the applicant's claim that his medical conditions were not being adequately managed or treated.
The applicant's submissions focused on three medical reports provided by Justice Health to the CPO, which were dated 6 May 2020 (which report was prepared when the first application was made), 17 August 2021 (referred to incorrectly in the applicant's submissions as being dated 18 August 2021) and 15 November 2023 (referred to incorrectly in the applicant's submissions as being dated 3 November 2023), respectively. The applicant essentially submits that none of those reports addressed the 'pertinent question' of whether he was, in fact, receiving adequate medical care for his various conditions. The applicant says that the reports fail to provide any information about the treatment he requires for his various health conditions, whether those treatments have been provided to him and, if not, what the obstacles to treatment are, and whether these obstacles could be resolved while the applicant is in custody.
In the Justice Health report dated 17 August 2021, the following information appeared after a brief explanation about why the report was prepared and a summary of the applicant's current medical conditions:

[54]

The adequacy of, or any deficiencies in, [the applicant's] current medical treatment regime

The primary health services to which [the applicant] has access in prison are equivalent to that provided in the general community. This includes primary health care provided by medical practitioners, registered nurses, dental practitioner and allied health practitioners onsite at [the prison at which he was then situated]. He has regular reviews of his chronic health conditions with the Health Promotions Nurses, including regular pathology as indicated to monitor his condition.

Specialist services are available via referral to St Vincent's Hospital Melbourne (SVHM). An increasing number of these services are available to prisoners via telehealth, reducing the need for transfer to Melbourne for appointments. If a prisoner requires an in-person appointment with a specialist at SVHM, they will be transferred either to Port Phillip Prison, or in some circumstances may instead be transferred to the Melbourne Assessment Prison.

These appointments are then facilitated by secured transport, with certain arrangements such as handcuffs required according to the security rating of the prisoner.

[The applicant] has had a number of appointments with various specialists at SVHM, both in person and via telehealth. [The applicant] has refused to attend a number of the in-person appointments, citing that he did not wish to go to Port Phillip Prison. Appointments have also been cancelled either by the hospital or by the security provider, for a range of reasons. Wherever possible appointments are conducted via telehealth facilities at [the prison in which the applicant is being held]. [The applicant's] medical treatment is adjusted by the medical practitioner at [the prison where he is being held] in accordance with the recommendations of the specialists.

[The applicant] has stated during a recent consultation with a registered nurse that he was going to refuse to go to any further appointments in Melbourne as it was a waste of his time. He has also failed to attend appointments booked with the medical practitioner at [the prison in which he is being held].

Other relevant Information

[The report then set out details relating to the applicant's pathology, recent studies undertaken in respect of one of his conditions, his COVID-19 vaccination status, as well as his blood pressure and weight].

[The applicant] has access to a full range of primary, secondary and tertiary health care available to him, and his medical conditions are being cared for, as with any other prisoner, and within the limits that he himself sets. [The applicant's] health conditions are chronic in nature, and were well established prior to the commencement of his incarceration in 2016. Any change in his condition has been managed in accordance with the current medical guidelines, and appropriate referrals made to specialist treatment clinics as required.

[73]

That the CPO considered that these were the circumstances upon which the applicant relied is confirmed by the fact that those same circumstances were articulated in the CPO submissions.
The putative exceptional circumstance that is the subject of this ground is not precisely reflected in any of those three circumstances. Although the second circumstance referred to at [113] above is concerned with the existence of a link between the applicant's assistance to law enforcement agencies and him being transferred to Port Philip Prison for medical treatment, it is not concerned with a link between the applicant's assistance to a law enforcement agency and the adequacy of any medical treatment he did in fact receive.
It is significant to note that, despite the very many occasions on which the applicant corresponded with the CPO including in direct response to the four adverse comments letters, there is nothing in the materials before this Court to suggest that the applicant ever disputed the accuracy of the CPO's repeated articulation of its understanding of the specified exceptional circumstances on which he relied. There is also no evidence that the applicant ever sought to clarify that one of the circumstances on which he in fact relied as exceptional circumstances justifying the grant of a licence was the particular circumstance upon which he now says that he relied.
In that context the only rational conclusion is that, contrary to the contention that underpins this ground of review, the applicant did not, in his application made under s 19AP(2), rely on a specified circumstance concerning the adverse effect his assistance to a law enforcement agency had on his ability to access medical treatment because of the difficulties in him being transported to St Vincent's Hospital via Port Phillip Prison. This conclusion is fatal to this ground of review. The delegate was not required to have regard to a circumstance that was not specified in the applicant's application under s 19AP(2) as an exceptional circumstance on which he relied to justify the grant of a licence.
In any event, even if the circumstance which the applicant now says was a circumstance that was specified in his application under s 19AP(2) as an exceptional circumstance on which he relied, and the delegate did misunderstand and therefore failed to have regard to that circumstance, it does not follow that the delegate fell into jurisdictional error.
While a misunderstanding about the circumstances specified in an application made under s 19AP(2) that are relied on as exceptional circumstances justifying the grant of a licence may amount to jurisdictional error, any such error is subject to a requirement of materiality. This was explained in LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] HCA 12; (2024) 280 CLR 321, where Gageler CJ, Gordon, Edelman, Steward, Gleeson and Jagot JJ said at [14] to [16] (with whom Beech-Jones J at [38] agreed):

[74]

The question in these cases is whether the decision that was in fact made could, not would, 'realistically' have been different had there been no error. 'Realistic' is used to distinguish the assessment of the possibility of a different outcome from one where the possibility is fanciful or improbable. Though the applicant must satisfy the court that the threshold of materiality is met in order to establish that the error is jurisdictional, meeting that threshold is not demanding or onerous.

What must be shown to demonstrate that an established error meets the threshold of materiality will depend upon the error. In some cases, it will be sufficient to show that there has been an error and that the outcome is consistent with the error having affected the decision. Where the error is a denial of procedural fairness arising from a failure to put the applicant on notice of a fact or issue, the court may readily be able to infer that, if fairly put on notice of that fact or issue, the applicant might have addressed it by way of further evidence or submissions, and that the decision-maker would have approached the applicant's further evidence or submissions with an open mind. In those cases, it is 'no easy task' for the court to be satisfied that the loss of such an opportunity did not deprive the person of the possibility of a successful outcome. Importantly, a court called upon to determine whether the threshold has been met must be careful not to assume the function of the decision-maker: the point at which the line between judicial review and merits review is crossed may not always be clear, but the line must be maintained. This case affords an example.

In sum, unless there is identified a basis on which it can be affirmatively concluded that the outcome would inevitably have been the same had the error not been made, once an applicant establishes that there has been an error and demonstrates that there exists a realistic possibility that the outcome of the decision could have been different had that error not been made, the threshold of materiality will have been met (and curial relief will be justified subject to any issue of utility or discretion).

(footnotes omitted; original emphasis)

[85]

On the other hand, the total effective sentence was arrived at after the sentencing judge applied the 'totality principle'. The totality principle required that the sentencing judge evaluate the overall criminality involved in all of the offences to ensure there is no disproportion between the totality of the criminality and the totality of the effective length of the sentences imposed, and to avoid a 'crushing' total sentence. In that regard, the sentencing judge referred to the 'overlapping nature of the charges and also to [the need to] avoid imposing a crushing sentence on [the applicant], particularly given [his] age and physical health problems'.
The sentencing judge ultimately applied the totality principle by imposing as 'base sentence' of 5 years for one of the offences, by imposing separate sentences for each individual offence, and by making orders that parts of some of those individual sentences be served cumulatively on the base sentence.
The reasons of the Court of Appeal record that, in its appeal against the applicant's sentence, the prosecution only challenged the total effective sentence and the non-parole period that were imposed. The lengths of the individual sentences were not challenged. In fact, the Court of Appeal rejected an attempt made by the prosecution to amend its grounds of appeal during the hearing of the appeal. The significance of this is that there was no challenge made to the discount that was allowed by the sentencing judge when fixing the individual sentences, on account of the applicant's assistance to a law enforcement agency.
The Court of Appeal allowed the prosecution appeal, concluding that it was not reasonably open to the sentencing judge to impose the total effective sentence and the non-parole period that was imposed. However, it is important to appreciate that the Court of Appeal only set aside the sentencing judge's orders for cumulation. A higher total effective sentence was ultimately imposed because the Court of Appeal substituted its own orders for cumulation, and not because it interfered with any of the individual sentences.
Accordingly, while there is no doubt that the applicant was sentenced by the Court of Appeal to a higher total effective sentence, it does not follow that the mitigation that he was originally afforded for his cooperation with a law enforcement agency was not 'appropriately taken into account in his sentencing' by the Court of Appeal. The true state of affairs is that the Court of Appeal's decision did not affect the discounts the sentencing judge gave for all mitigating factors, including for the assistance the applicant had given to a law enforcement agency, which was reflected in the individual sentences imposed for each offence.
It follows that, contrary to the third step in the applicant's argument and the terms of ground 3 itself, the CDPP did not make any incorrect representation about the decision of the Court of Appeal. This is fatal to this ground.
The second difficulty with the last two steps in the applicant's argument is that, even if the CDDP did incorrectly represent that the Court of Appeal 'accepted the approach of the County Court', it does not follow that the delegate fell into jurisdictional error or that the delegate's decision was an improper exercise of the power conferred by s 19AP by failing to take a relevant consideration into account for the purposes of ss 5(1)(e) and 5(2)(b) of the ADJR Act.
The delegate had before him the CPO submissions, the CDPP's correspondence, the sentencing judge's remarks, and the Court of Appeal's decision as well as several documents that were taken to amount to the applicant's application under s 19AP(2). In the circumstances of this case it was for the delegate to determine, based on those materials, whether he was satisfied that the assistance provided by the applicant to law enforcement agencies was not appropriately taken into account in sentencing before then determining whether that, alone or in combination with other factors, amounted to an exceptional circumstance justifying the grant of a licence. If the CDPP made an incorrect representation about those circumstances, the delegate was not thereby, as the applicant's counsel put it in her written submissions, 'robbed of the opportunity to consider whether the failure by the Court of Appeal to give [the applicant a] significant discount for his assistance constituted, either alone or together with other matters, exceptional circumstances'. The delegate could not logically be said to have failed to have had regard to a circumstance specifically relied upon by the applicant as an exceptional circumstance justifying the grant of a licence under s 19AP(1) simply because the applicant now says that the materials that were before the delegate, and that were supplied by another source, were inadequate in some respect.
Ground 3 must be dismissed.

[93]

On that basis, I understand that the essence of the applicant's contention is that the delegate acted illogically or irrationally in reaching a finding of fact that the link between the applicant's cooperation with law enforcement agencies and any security threat that he faced was speculative, or that his conclusion in that regard was otherwise legally unreasonable, because it was not open on the documents referred to at [144] and [145] of these reasons. In those circumstances, and on the assumption that the delegate did reach that conclusion, contrary to what I have already found, the correct approach is to ask whether it was open to the delegate to draw that conclusion on the material that was before him: Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; (2010) 240 CLR 611 at [133] (Crennan and Bell JJ, with whom Gummow ACJ and Kiefel J agreed at [23]).
Noting that the required threshold of legal unreasonableness is usually high (Minister for Home Affairs v DUA16 [2020] HCA 46; (2020) 271 CLR 550 at [26]), it was well open to the delegate to reach a conclusion that any link between the applicant's cooperation with law enforcement agencies and security threats was speculative. The documents upon which the applicant relies do not demonstrate that such a finding, if it was made, was illogical or irrational, or that it was otherwise legally unreasonable. The email from the Department of Justice and Community Safety establishes only that alternative arrangements were made because the applicant had concerns about being sent to Port Phillip Prison when in Melbourne for medical treatment. Further, the entry in the Parole Assessment Report records only that the applicant held a belief that the incident described in that report occurred because other prisoners discovered that he had provided assistance to a law enforcement agency.
The applicant also sought to rely on s 5(1)(f) of the ADJR Act. However, as the applicant did not make any submissions to suggest that there was some other basis on which the delegate's decision involved an error of law, other than that it was legally unreasonable, his reliance on that provision does not add anything to ground 4.
Ground 4 must be dismissed.

[95]

By this ground the applicant contends that the delegate failed to discharge his statutory task because he erroneously limited his consideration of whether relevant exceptional circumstances existed to the specified circumstances on which the applicant relied as exceptional circumstances justifying the grant of a licence. The applicant says that this is what the delegate did can be inferred from the following matters: firstly, in the 'Discussion' section of the CPO submissions, the author of the submissions only analysed the three exceptional circumstances on which the applicant relied. Secondly, the CPO submissions suggested that the question for the delegate was whether the applicant's release on licence was 'necessary as opposed to desirable', which then invited a reasoning process that discounted other relevant factors. Thirdly, in his letter to the applicant dated 20 February 2025, the delegate said that he was not satisfied that there were exceptional circumstances justifying the grant of a licence 'for any of the grounds that [the applicant raised] either in combination or individually'.
The applicant argues that in considering whether exceptional circumstances existed, in addition to the circumstances that were specified in the applicant's written application, the delegate was bound to take into account 'all relevant factors' (emphasis added) including the applicant's age, the likelihood that he would die while in custody, his low risk of reoffending over the medium to long term, the availability of suitable accommodation, his supportive family and long-term partner, and the fact that he provided assistance to law enforcement authorities.
The applicant contends that, although the text used in s 19AP did not expressly require the delegate to take such relevant matters into account, including those factors referred to in the preceding paragraph of these reasons, an implication that the delegate was bound to take them into account can be drawn from the subject matter, scope and purpose of the Crimes Act: Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 at 39 to 40 (Mason J, with whom Brennan J agreed at 56); see also Hasim at [49]. In that regard, the applicant points only to the fact that s 19AP appears in the same division of the Crimes Act as the provisions concerned with release on parole of persons convicted of federal offences, and submits that it 'may be surmised that matters pertaining to the release on parole would be similarly relevant to an application for release on license' [sic].
The applicant claims that the delegate fell into jurisdictional error by 'misapplying the exceptional circumstances test' in s 19AP. The applicant also claims that the delegate's decision involved an error of law for the purposes of s 5(1)(f) of the ADJR Act. However, having regard to the applicant's submissions, it seems clear that his basal contention is that the delegate failed to take various relevant considerations into account.
A similar argument to the one propounded by the applicant was rejected in Hasim. There, the applicants argued that the relevant decision maker failed to have regard to several mandatory relevant considerations, which were concerned with a direction given by the Attorney-General to the CDPP in connection with the prosecution of certain people for people smuggling offences under the Migration Act 1958 (Cth). In setting out several 'organising principles' that were relevant to the grounds sought to be agitated in Hasim, Greenwood J said that, when taken in conjunction with s 19AP(1), the decision-maker is required by s 19AP(3) to take into account the circumstances specified by the applicant as exceptional circumstances justifying the grant of a licence. However, Greenwood J also said at [79]: