K v Commissioner for Corrective Services

Supreme Court of NSW|2017-03-10|Before: Latham J

Judgment

By way of a Further Amended Summons filed 12 December 2016, the plaintiff seeks judicial review of a decision of the Commissioner for Corrective Services regarding the plaintiff's classification, and judicial review of a decision of the NSW State Parole Authority, or in the alternative, a direction under s 155 of the Crimes (Administration of Sentences) Act 1999 (NSW) (the CAS Act) that the information upon which the Parole Authority made its decision was irrelevant, misleading or false.
The State Parole Authority (SPA) has filed a submitting appearance. The Attorney General was joined as the third defendant for the purposes of these proceedings and has addressed the plaintiff's lengthy written submissions in relation to his parole. Separate submissions were received addressing the plaintiff's arguments in relation to the decision of the Corrective Services Commissioner.

The Plaintiff's Classification

The plaintiff's relevant classification history commences with a recommendation by the Serious Offenders Review Council (SORC) on 18 March 2014 that the plaintiff's classification be reduced from C1 to C2. On 22 March the Commissioner determined not to approve this recommendation. However, the plaintiff progressed to C2 classification in November 2014.
On 10 December 2014, the Commissioner approved the plaintiff for work outside the Correctional Centre, but within the correctional complex. On 2 May 2015, the Commissioner rejected a recommendation by SORC that the plaintiff be given a permit to perform work outside the correctional complex.
On 7 September 2015, the Commissioner approved the permit to allow the plaintiff to work outside the correctional complex and on 14 September 2015, the Commissioner approved a permit which allowed the plaintiff to leave the correctional complex for purposes other than the performance of work.
On 20 May 2016, the Commissioner rejected a recommendation by SORC of 10 May 2016 that the plaintiff's security classification be reduced from C2 to C3. On 22 November 2016 SORC reviewed the plaintiff's classification and again recommended a progression from C2 to C3, with external leave programs at the discretion of the General Manager. On 26 November 2016, the Commissioner approved that recommendation but with day leave only. In addition, the Commissioner recommended that the plaintiff's leave be reviewed in six months and that the victims' register was to be notified of the Commissioner's decision and to communicate personally with the victims. This latter decision by the Commissioner is the impugned decision for the purposes of judicial review. This is expressed as Ground 2 in the Further Amended Summons. On the hearing of the application, Ground 1 was not pressed.

The Refusal of Parole

Grounds 3, 4, 5 and 6 relate to five decisions of the State Parole Authority.
Of the five decisions that the plaintiff seeks to challenge, only one is relevantly amenable to judicial review. That is the decision of 15 April 2016 to refuse parole (Ground 3). The decision of 24 June 2016, which was an intention to refuse parole (Ground 4) and which has not been acted upon, and two decisions to stand over the plaintiff's matter (Grounds 5 and 6) do not, for the reasons given below, constitute decisions to refuse parole and do not affect the plaintiff's substantive legal rights. The remaining decision to refuse parole on 2 July 2015 has already been declared invalid in separate proceedings brought by the plaintiff. Indeed, it was that conceded invalidity that was addressed by the decision to refuse parole on 15 April 2016.
The events leading up to the refusal of parole on 15 April 2016 are as follows.
A SORC report to SPA dated 12 May 2015 noted that at its meeting of 28 April 2015, SORC recommended that the plaintiff's security classification be extended from C2 to include an off complex/property permit, and that his centre placement remain the Metropolitan Special Programme Centre.
SORC extracted the plaintiff's CUBIT treatment report dated 21 November 2014, which recommended that the plaintiff "might benefit from a step-down process prior to his release (e.g. day leave to attend the community-based maintenance program conducted at Forensic Psychology Services in Surry Hills)" based upon his age at the time of incarceration, the length of sentence and his behaviour in custody. SORC noted that the plaintiff had not yet had the opportunity to participate in external leave programs and that "it would be better if he were reintroduced to the community gradually". SORC considered that it was not appropriate to consider his release to parole at that time.
On 2 July 2015, SPA declined to grant parole. This is the decision which was vitiated by jurisdictional error and lead to a reconsideration of the plaintiff's case.
At a hearing on 15 April 2016, SPA reconsidered the plaintiff's case and reviewed its reasons for the decision of 2 July 2015. However, SPA determined not to grant parole on the basis that the plaintiff's gradual reintegration into the community was yet to be achieved by allowing the plaintiff day leave from prison. The SORC recommendation of 12 May 2015 was taken into account.
Since the decision to refuse parole on 15 April 2016, the following has occurred.
In a supplementary report to SPA dated 24 May 2016, SORC noted that at its meeting on 1 September 2015, SORC recommended that the plaintiff's classification be extended to include an off complex/property permit and a permit to allow the plaintiff to attend a community-based CUBIT program. The Commissioner approved that recommendation. However, the recommendation that the plaintiff progress to C3 classification was not approved by the Commissioner, although the Commissioner requested a review in 10 months. SORC was of the view that it was at that point appropriate to consider the plaintiff's release to parole.
On 24 June 2016, SPA considered the plaintiff's case and expressed its intention not to release him to parole. SPA remained of the view that the plaintiff would benefit from participation in external leave programs to assist with his reintegration into the community before his release to parole.
On 30 August 2016 the plaintiff gave evidence in the course of an SPA hearing, the result of which was that SPA determined not to confirm the decision to refuse parole, but instead to stand the matter over to 29 November 2016.
On 29 November 2016, SPA decided to stand the plaintiff's case over until 28 March 2017. Once again SPA expressed a concern that the plaintiff required gradual reintroduction into the community and that some progress had been made towards that end in light of the fact that the plaintiff had been granted C3 day leave.
Since the hearing of the application, the plaintiff's matter has again been stood over to 6 April 2017. Thus, as things presently stand, the plaintiff's latest application for release to parole remains on foot and is unaffected by the decision of 24 June 2016.

The Commissioner's Powers

The CAS Act invests the Commissioner with the care, control and management of all inmates who are in custody pursuant to Part 2 of that Act. The General Manager of a Correctional Centre has the care, direction, control and management of the Correctional Centre, subject to the direction and control of the Commissioner.
Pursuant to s 197(2)(a)(i) of the CAS Act, SORC's functions relate to the provision of advice and the making of recommendations to the Commissioner in relation to the classification of serious offenders. The factors to be taken in into account by SORC include the protection of the public, which is the paramount interest, together with "the need to reassure the community that serious offenders are in secure custody as long as it is appropriate": s 198(3)(j).
The Commissioner must determine and review an inmate's classification pursuant to the Crimes (Administration of Sentences) Regulations 2014 (NSW). Each male inmate must be classified in one of the specified categories "for the purposes of security": Cl 12(1). C2 classification applies to those inmates who, in the opinion of the Commissioner, need not be confined by a physical barrier at all times but who require some level of supervision by a correctional officer or some other person authorised by the Commissioner. C3 categorisation applies to those inmates who in the opinion of the Commissioner need not be confined by a physical barrier at all times and who need not be supervised. Pursuant to Clause 17 of the Regulation the Commissioner may vary an inmate's classification at any time.
Clause 17 of the Regulation provides that the Commissioner must not cause a serious offender to have his or her classification altered without seeking and considering the recommendations of SORC. The Commissioner is required to notify SORC if he varies an inmate's classification in a way contrary to SORC's recommendations. There is no statutory requirement for reasons in respect of any classification decision.

The State Parole Authority - Part 6 of the CAS Act

As a serious offender, the plaintiff is governed by Subdivision 3 of Division 2 of Part 6 of the CAS Act. After an initial consideration when a serious offender first becomes eligible for parole, the scheme provides for an annual review of eligibility for parole, providing the offender applies to be released: s 1403A.
Section 144 of the CAS Act requires the SPA to formulate and record its initial intention, either to make or not to make a parole order. The SPA must not make a parole order unless it is satisfied on the balance of probabilities that the release of the offender is appropriate in the public interest: s 135(1). In deciding that issue, SPA must have regard to the matters set out in s 135(2). If SPA forms an intention not to make a parole order, s 146 requires the offender to be notified of that intention and various other matters.
Section 148 of the CAS Act sets out the principles upon which a final decision is to be made, including relevantly that the SPA will reconsider its initial intention not to make a parole order if there are offender submissions and will in that event take those submissions into account. Following a review of all reports, documents and submissions placed before it, SPA must make a decision pursuant to s 149(1). If SPA rejects SORC's advice concerning the release to parole of the serious offender, SPA must state the reasons for rejecting that advice in writing; s 152(1). Section 193C mandates the matters that must be addressed by SPA in making a decision that an offender should or should not be released to parole.

The Plaintiff's Argument on Ground 2

The plaintiff claims that the Commissioner's decision of 26 November 2016 to grant the plaintiff C3 day leave, in lieu of full C3 external leave status, was decided in bad faith and/or for an improper purpose, namely to further delay his release to parole and his rehabilitation. The plaintiff's principal argument on this ground is that full C3 external leave would enable him to be gradually reintroduced into the community. The plaintiff also relies upon his case notes in support of the proposition that he has participated in day leave since 26 November 2016, including trips to Bondi Junction and Manly in December 2016 and January 2017 and at his mother's home on 20 February 2017. The plaintiff also complains that when his classification is reviewed, there is no guarantee that his C3 day leave will be extended to include weekends or other external leave.

Resolution of Ground 2

Beyond the plaintiff's assertion that the Commissioner acted in bad faith and/or for an improper purpose, there is nothing to suggest that the Commissioner made the decision on 26 November 2016 on anything other than appropriate criteria. The plaintiff's current classification allows for his gradual reintroduction into the community, albeit at a more measured pace than full C3 classification. The plaintiff's case notes in fact demonstrate that this is occurring. Any apprehension on the part of the plaintiff that the review of his classification will not result in any improvement does not of itself demonstrate bad faith or improper purpose in relation to the decision of 26 November 2016.
The hurdle faced by the plaintiff in establishing this ground in the absence of any evidence supporting an inference of bad faith or improper purpose is reinforced by those authorities which caution against any interference by the courts in the administration of prisons and management of prisoners. The exercise of a discretion in relation to the leave entitlements of inmates is generally not susceptible to judicial review, in circumstances where there is no evidence that such decisions result from an abuse of power: see Kelleher v Commissioner, Department of Corrective Services [1999] NSWSC 86 at [39]; Clark v Commissioner for Corrective Services [2016] NSWCA 186 at [86] per Emmett AJA; Georgiou v Commissioner for Corrective Services [2016] NSWSC 1337 at [35].
This ground of the Further Amended Summons is not made out.

The Plaintiff's Argument on Ground 3

The plaintiff's Further Amended Summons discloses five broad complaints. They are that the impugned decision was made in the absence of evidence, that there was a failure to take into account relevant considerations, that irrelevant considerations were taken into account, that the incorrect test was applied, and that the reasons given were inadequate. Whilst these complaints are directed variously to a number of decisions, for the reasons outlined in [10] above they are addressed with respect to the decision of 15 April 2016.
On the "no evidence" ground, the plaintiff maintains that there was no evidence to support the Authority's decision that there was a need for the plaintiff to participate in external leave. The plaintiff relies upon Murray v State Parole Authority [2008] NSWSC 962. In that case, Rothman J determined that the Authority had acted upon the wrong test for revocation of the offender's parole, and that, in those circumstances, there was no evidence that supported satisfaction of the correct test.
On the failure to take into account relevant considerations, the plaintiff nominates those relevant considerations as:- 1. the likelihood that he would adapt to community life without participating in external day leave, 2. the Commissioner's deliberate delay of his progression to external leave, 3. the potential availability of electronic monitoring, 4. the completion of education programmes, 5. his strong family support, 6. alternatives to external leave, 7. his completion of seven external leave permits, 8. the fact that external leave is not an essential pre-requisite to the grant of parole, 9. the need to maintain public confidence in the administration of justice, 10. the nature and circumstances of the offence to which his sentence relates, 11. his criminal history, and 12. his willingness to participate in rehabilitation programmes and the success or otherwise of that participation.
The considerations (ix) to (xii) inclusive are mandated by s 135(2)(b), (c) and (e) and s 135A(e) of the CAS Act.
The allegation that the Authority took into account irrelevant considerations rests upon the submission that the need to participate in external leave was an irrelevant consideration.
On the "wrong test" ground, the plaintiff maintains that the Authority did not consider the likelihood that he could adapt to normal community life without external leave, rather the Authority addressed itself to the necessity of external leave as a pre-requisite to adaptation to normal community life.
The plaintiff further alleges that the Authority failed to give adequate reasons for its decision that he participate in external leave and failed to adequately explain how he should participate in external leave.

Resolution of Ground 3

The plaintiff's contention that there was no evidence to support the Authority's decision that there was a need for the plaintiff to participate in external leave cannot be sustained. There was clearly evidence before SPA on 15 April 2016 that the plaintiff needed to undertake some form of external leave for some period of time in order to advance his reintegration into the community.
A pre-release report prepared by a Community Corrections Officer dated 14 May 2015 did not include a recommendation supporting release on the grounds that the plaintiff had never lived in the community as an adult and his capacity to do so remained untested. The report noted that the preferred release pathway for the plaintiff was "a gradual step down towards release". The report went on to note that whilst the plaintiff had expressed confidence in his ability to reintegrate into the community without external leave, Community Corrections supported a period of leave that would allow the plaintiff's performance to be monitored. In the event that Community Corrections was satisfied that the plaintiff could manage and comply with directions in the community, a recommendation supporting release could more confidently be made.
The Manager of the Long Bay Parole Unit supported the report's recommendation, noting that it was "imperative that the inmate be tested in the community due to his lengthy time in gaol."
In the course of the decision of 15 April 2016, SPA's Chairperson stated that the plaintiff's age and the length of time in custody supported the "universally accepted" view that the plaintiff required some gradual reintegration and reintroduction to the community as an adult.
Insofar as this constitutes an expression of opinion about the plaintiff's capacity to adapt to normal community life, it may be characterised as an evaluative judgment rather than a finding of fact: L & B Linings Pty Ltd v WorkCover Authority of New South Wales [2012] NSWCA 15; Attorney General (NSW) v Chiew Seng Liew [2012] NSWSC 1223 at [88]. It is "difficult, if not impossible, [in those circumstances] to establish a 'no evidence' ground of review": per Basten JA in L & B Linings Pty Ltd v WorkCover Authority of NSW [2012] NSWCA 13 at [34].
It is arguable that the Authority's opinion relating to the plaintiff's need for participation in external leave is a finding of fact forming part of the determination of a state of satisfaction on which the exercise of the power of the Authority depends. Without deciding this issue, it is in any event not reviewable unless "the determination [to refuse parole] was irrational, illogical and not based on findings or inferences of fact supported by logical grounds": Insurance Australia Ltd v O'Shannessy (2015) 72 MVR 1; [2015] NSWSC 1047 at [59], per Beech-Jones J.
On either basis, the plaintiff has not established that the Authority acted upon an absence of evidence.
The principal obstacle faced by the plaintiff in making good his contention that the Authority failed to take into account the asserted relevant considerations (i) to (viii) is that this ground can only be made out if the Authority has failed to take into account a consideration that it was bound to take into account in making the decision: Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24. There is no obligation upon the Authority to consider every piece of evidence presented; Allianz Australia Insurance Ltd v Cervantes (2012) 61 MVR 443; [2012] NSWSC 224 at [22], per Basten JA (McColl and Macfarlan JA agreeing).
The expression of a preference for some evidence over other evidence does not constitute a failure to take into account a relevant consideration; Minister for Immigration and Citizenship v SZJSS (2010) 243 CLR 164; [2010] HCA 48. Nor can the failure to take into account a relevant consideration be established simply because a piece of evidence which the Authority was bound to consider was not mentioned in stated reasons; Minister for Immigration and Citizenship v SZGUR (2011) 241 CLR 594; [2011] HCA 1.
In effect, the plaintiff's argument consists of an enumeration of matters (i) to (viii) which might conceivably be regarded as relevant, followed by an attack upon the Authority's decision on the ground that one or more of them was not specifically taken into account. Such an approach does not constitute a ground of judicial review; Sean Investments Pty Ltd v MacKellar (1981) 38 ALR 363; [1981] FCA 191.
The matter enumerated in (ix) to (xii) stand in a different category. However, the plaintiff has not established that the Authority failed to have regard to these matters.
Taking these matters in order, it is acknowledged that the Chairperson's remarks of 15 April 2016 do not expressly refer to the need to maintain public confidence in the administration of justice as a relevant consideration. However, the failure to expressly refer to this factor is not determinative of the question whether it was taken into consideration: Minister for Corrections v Cawthray and the State Parole Authority [2015] NSWSC 1188, applying Attorney General for NSW v NSW State Parole Authority and Hall [2006] NSWSC 865. In Hall, McClellan CJ at CL suggested that s135(2)(b) raised the question whether an offender's release would diminish public confidence in administration of justice having regard to matters such as the nature of the offence, the offender's history since incarceration and the offender's progress towards rehabilitation.
Having regard to the fact that the Chairperson in his remarks referred to the nature of the offence, the plaintiff's successful progress in the programs he has undertaken whilst in custody, and the need for the plaintiff's gradual reintegration into the community, I would not infer that the need to maintain public confidence in the administration of justice was not taken into account.
The nature and circumstances of the offences committed by the plaintiff and the plaintiff's criminal history were obviously taken into account, given that at its meeting on 15 April 2016 the Authority had both Sully J's sentencing remarks and the judgment of the Court of Criminal Appeal relating to the plaintiff's appeal. In his remarks of 15 April 2016, the Chairperson referred explicitly to the sentences imposed for a series of "vile crimes regarded by the sentencing judge and accepted by the Court of Criminal Appeal is being in the worst-case category for crimes of that description". The Chairperson further noted that the plaintiff was "very young" when the crimes were committed.
Section 135A(e) does not impose a requirement on the Authority to consider the plaintiff's willingness to participate in rehabilitation programmes. That provision is directed to the content of a report by Community Corrections for the consideration of the Authority.
The submission that the Authority took account of an irrelevant consideration, namely the need to participate in external leave, may be briefly dealt with. It has already been noted that this was an identified need according to the report of a Community Corrections Officer and that it was part of the evaluative judgment made by the Authority in refusing parole. It was not an irrelevant consideration, rather it was inextricably linked with the plaintiff's young age when he entered custody, the length of his sentence and the risks associated with an abrupt release to parole.
Section 135(2)(f) requires the Authority to consider the likelihood that the offender is able to adapt to normal community life. This does not constitute a test. It is but one of many factors that are weighed in the balance. By analogy, there is no test that requires the Authority to determine whether the plaintiff can adapt to normal community life without external leave. The plaintiff has failed to establish that the Authority applied the wrong test.
Lastly, the alleged failure to give adequate reasons for the decision that the plaintiff undertake external leave would not, assuming it is made out, vitiate the decision to refuse parole. What is required by way of reasons is governed by the CAS Act. Section 193C provides that the Parole Authority must cause a record of its reasons for certain decisions under Parts 6 and 7 to be kept in the minutes of its meetings. It complies with its obligations under s 193C where it sets out the matters it considers significant to the decision to grant or refuse parole, taking into account the public interest and the matters enumerated in s 135(2): Attorney General of NSW v Chiw Seng Liew [2012] NSWSC 120 at [98]. There is no express requirement to record findings of fact, nor to set out every finding relevant to a determination: Liew at [96].
The Authority is not a tribunal exercising judicial functions. Thus there is no common law duty to fully expose the reasoning process that leads to a decision: Liew at [104]-[105]. The plaintiff relies upon the decision of Harrison J in Al Qatrani v Parole Authority of NSW [2007] NSWSC 1270 in support of this ground. To the extent that Harrison J suggests at [44] that "an administrative body that chooses, or is required, to furnish reasons for a decision, should thereby become exposed to scrutiny in the same way as a judge or magistrate", I would respectfully doubt the breadth of that proposition. That remark was immediately preceded by reference to authorities which were solely concerned with the duty to provide reasons by bodies exercising judicial power and from which an appeal lay: at [41].
In any event, the Authority did provide adequate reasons for its decision to refuse parole on 15 April 2016. It is not necessary to repeat here the numerous references in the reports that were before the Authority to the legitimate concerns regarding the plaintiff's capacity to live in the community as an adult, absent the opportunity to gradually develop relevant coping mechanisms. The Chairperson reflected and endorsed these concerns in the Authority's decision.
Ground 3 is not made out.

Grounds 4, 5 and 6

The availability of relief in the nature of certiorari is dependent upon the identification of a decision "which has discernible or apparent legal effect upon rights"; Hot Holdings Pty Ltd v Creasy (1996) 185 CLR 149 at 159 per Brennan CJ, Gaudron and Gummow JJ. The plurality in Hot Holdings went on to note that if a decision made at a preliminary or recommendatory stage of a decision making process sufficiently determines or is connected with the ultimate decision, the preliminary decision may be taken to have legal effect in the sense that it has a necessary effect on the final or ultimate decision.
The intention to refuse parole and the stand over decisions are clearly decisions of a preliminary or recommendatory type. Those decisions in no way determine whether the plaintiff will ultimately receive a grant of parole or a refusal of parole.
The formulation of an intention to refuse parole pursuant to s 144 of the CAS Act is a preliminary step in an administrative process leading to the ultimate decision, that is, the grant or refusal of parole. The Authority is required to formulate its initial intention to grant or refuse parole and then to confirm that intention if there are no offender submissions; s 148(1)(c). If there are such submissions the Authority is required to reconsider its initial intention: s 148(1)(d). Thus the formulation of an intention to refuse parole is a decision which satisfies a condition precedent to the exercise of the power that affects legal rights.
The stand over decisions are even more remote from the ultimate decision to grant or refuse parole. These decisions have no discernible effect on the ultimate decision. Furthermore, any relief, were it available, would be futile in view of the further parole hearing listed for 6 April 2017.
These grounds cannot be sustained.
It follows that the Further Amended Summons is dismissed.

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: 30 March 2017

Crimes (Administration of Sentences) Regulations 2014(NSW)

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