respondent. The further amended summons was dismissed; costs were reserved, with directions for agreed costs orders or a costs-resolution program to be filed within seven days, as applicable.
Key principles
Judicial review concerns the legality of the decision-making process, not whether the reviewing court considers the decision correct on its merits. Where the Review Council...
The Review Council’s assessment of the plaintiff’s classification history and whether he had sufficiently participated in external leave was an application of statutory criteria...
For a serious offender, s 135(5) restricts the Parole Authority from making a parole order unless the Review Council advises that release is appropriate, except in exceptional...
The Parole Authority’s recorded reasons for refusing parole could be read together with its earlier, expressly incorporated reasons. On that reading, the Court found that the...
Issues before the court
Whether the Review Council inflexibly applied policy and failed genuinely to consider the plaintiff’s parole application (ground 8).
Whether the Review Council gave undue weight to the plaintiff’s need to engage in pre-release leave (ground 11).
Plain English Summary
The Court dismissed Mawas’s remaining challenge to the Review Council’s advice against parole and the Parole Authority’s refusal decisions. It found the Council had considered the statutory factors, and that complaints about the weight given to external leave and other matters challenged the merits rather than the legality of the process. The Court also found that the Parole Authority’s decisions and reasons, read together, disclosed no reviewable error. Costs were reserved.
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Deep Dive
2,217 words · generated 02/10/2026
What happened
In Mawas v Commissioner of Corrective Services New South Wales [2020] NSWSC 319, Walton J considered a judicial review challenge to the Serious Offenders Review Council’s advice about parole and related decisions of the New South Wales Parole Authority. The Court dismissed the further amended summons. The Commissioner was initially a defendant, but Mawas discontinued his claim against the Commissioner at the hearing. As a result, the remaining grounds concerned the Review Council and the Parole Authority.
Whether the Parole Authority erred in not finding exceptional circumstances or gave undue weight to the Review Council’s report (grounds 12 and 13).
Whether the Parole Authority failed to give reasons for its 17 August 2018 decision (ground 14).
Cited legislation
6 cited instruments linked from this judgment.
Mawas was convicted of murder and sentenced on 29 August 2002 to a head sentence of 25 years’ imprisonment, with a non-parole period of 19 years commencing on 17 September 1999. The judgment states that his earliest possible release date was 16 September 2018 and that the head sentence would expire on 16 September 2024.
The facts relevant to the parole decision included a lengthy progression through custodial classifications. Mawas moved from C1 to C2 in May 2017, then from C2 to C3 in January 2019. A C2 classification allowed supervised work within the gaol; C3 meant that an inmate need not be confined by a physical barrier at all times or supervised. In May 2018, he was approved to work away from the gaol while retaining C2 classification.
On 19 June 2018, the Review Council advised that Mawas’s release to parole was not appropriate. Its report noted his work and program history, his custodial conduct, and his recent C2 off-site privileges. It also said that he had not yet participated in meaningful C2 off activity or C3 external leave programs, and that he needed to demonstrate stability and reintegration through external leave. The report’s conclusion was: “We advise that his release to parole is not appropriate.”
The Parole Authority formed an intention to refuse parole on 13 July 2018, communicating that position with detailed reasons on 24 July. On 17 August, it refused to hold a review hearing. The Authority stated that exceptional circumstances had not been established and that the reasons for refusal remained unaddressed. By the time of the hearing, Mawas had been reclassified to C3 and, according to his counsel, had begun engaging in release activity. Those later events did not alter the Court’s assessment of the legality of the challenged decisions.
The Court dealt with four remaining grounds: alleged inflexible policy application by the Review Council; undue weight given to pre-release leave; the Parole Authority’s treatment of exceptional circumstances and the Review Council’s report; and the alleged failure to give adequate reasons.
Why the court decided this way
A central distinction in the judgment is between reviewing the legality of a decision and reconsidering its merits. The Court did not decide whether parole ought to have been granted or whether the Review Council had reached the best assessment. It asked whether the statutory decision-making process involved reviewable error.
On ground 8, Mawas argued that the Review Council had applied policy inflexibly and had not genuinely considered his circumstances. He relied on the history of classification recommendations and the fact that earlier decisions had delayed his progression. The Court rejected that challenge. It considered the Review Council’s 19 June 2018 report as a whole and concluded that the Council had considered the matters required by s 198(2A) of the Crimes (Administration of Sentences) Act 1999 (NSW). That provision required consideration of matters including classification history, conduct in custody, rehabilitation participation and relevant reports.
The Court treated the Council’s attention to external leave as an assessment of the statutory factors against the facts then known. It did not regard it as proof that the Council had treated the policy as binding law. The earlier classification decisions were not themselves before the Court: the grounds challenging decisions by the Commissioner had been abandoned. The Court therefore did not reopen those decisions as part of the challenge to the later Review Council advice.
Ground 11 alleged that the Council gave undue weight to the need for pre-release leave. Walton J accepted the defendants’ position that the weight assigned to relevant factors was for the decision-maker. The judgment cited Attorney-General (NSW) v Quin and Minister for Immigration and Citizenship v SZJSS for the distinction between merits and legality, and for the proposition that weighing evidence is a matter for the decision-maker. Since the Council had considered the required factors, disagreement with the emphasis it placed on external leave did not establish legal error.
The exceptional-circumstances grounds also failed. Section 135(5) provides that, except in exceptional circumstances, the Parole Authority must not make a parole order for a serious offender unless the Review Council advises that release is appropriate. The Review Council had advised that release was not appropriate. The Court accepted the interpretation in Boatswain v State Parole Authority [2014] NSWSC 501 at [40]: absent exceptional circumstances, the Authority could not make a parole order in that situation.
The Court treated the Authority’s initial intention to refuse parole as implicitly reflecting that exceptional circumstances had not been found. It also concluded that the matters advanced by Mawas, including his classification progression and criticisms of material in the reports, did not enable the Court to reassess the merits of the Authority’s conclusion. In the Court’s view, the absence of exceptional circumstances meant there was no statutory obligation to hold a review hearing.
Finally, ground 14 alleged inadequate reasons. Section 193C(1)(a) required the Authority to keep a record of reasons for decisions refusing parole. The Court found that the August decision expressly referred to the reasons stated on 13 July, and that the records should be read together. The earlier reasons addressed the relevant statutory matters. The Court also found no statutory requirement to furnish the recorded reasons to Mawas and no statutory obligation to provide reasons for refusing an oral hearing.
Before and after state of the law
The judgment did not announce a new statutory test for parole or materially alter the words of the governing legislation. Its value lies in its application of existing statutory provisions and judicial review principles to this sequence of decisions.
Before the decision, the relevant statutory framework already distinguished the Review Council’s advisory function from the Parole Authority’s parole decision. Section 197(2)(b) empowered the Council to provide reports and advice about the release of serious offenders. Section 198(2A) identified matters the Council had to consider when exercising that function. Section 135 governed the Authority’s duty concerning release, including the public-safety considerations in subsections (1) to (3) and the serious-offender restriction in subsection (5).
After the decision, the statutory text remained unchanged by the judgment. The Court confirmed, for this case, that an allegation of “undue weight” does not by itself establish reviewable error where the required matters have been considered. It also treated a complaint that the decision-maker did not act “genuinely” or “properly” with caution where the substance of the challenge was that the result was wrong. The Court referred to Swift v SAS Trustee Corporation [2010] NSWCA 182 in discussing that distinction.
The judgment also explains how the reasons duty operated on these facts. The Court read an express reference to earlier reasons as incorporating them into the later record. This was an application of s 193C to the documents in this case, not a general determination that every later reference to an earlier decision will always be sufficient.
The Court referred to R v NK [2016] NSWSC 498 at [26(4)] for the observation that “exceptional circumstances” imposes a high test. The judgment applied that observation to the plaintiff’s challenge, but did not set out a comprehensive definition of the expression for every statutory setting.
Key passages with plain-English translation
The Review Council’s statutory task. Walton J concluded that the Council considered the relevant statutory factors and applied them to the facts, including Mawas’s classification history and participation in external leave. In plain English, the Court did not find that the Council mechanically followed a policy simply because it focused on pre-release activity.
The limits of judicial review. The judgment states that the weight given to the factors under s 198 was “a matter for the decision maker and not this Court”. In plain English, a reviewing court does not ordinarily substitute its own view about how important each relevant factor should have been. The question is whether the process was legally flawed.
The serious-offender parole restriction. Walton J accepted the statement from Boatswain that, absent exceptional circumstances, the Parole Authority cannot make a parole order where the Review Council advises that release is not appropriate. In plain English, the statutory exception may permit a different outcome, but the Authority’s power is restricted unless the exception is engaged.
The reasons record. The Court said it would be “artificial” to read the August decision without the July reasons, because the later record referred to them expressly. In plain English, the Court assessed the reasons documents together rather than treating the shorter later document as the complete explanation.
The review hearing. The Court found no statutory requirement for a review hearing where exceptional circumstances had not been established. This conclusion depended on the statutory scheme and the circumstances as the Court understood them; it was not a general statement that parole-related hearings are never required.
What fact patterns trigger this precedent
The reasoning is most relevant where a serious offender challenges a parole-related decision on the basis that an advisory body applied policy rigidly or gave one relevant consideration too much weight. Mawas indicates that a court will look for an identifiable error in the statutory process, such as failure to consider a required matter, rather than reassess the weight of matters that the decision-maker did consider.
It is also relevant where a serious offender argues that exceptional circumstances should have permitted the Parole Authority to depart from an adverse Review Council recommendation. The judgment treats the existence of exceptional circumstances as an evaluative question and applies a high threshold, while emphasising the statutory constraint in s 135(5).
The reasons analysis may be relevant where a later decision record refers expressly to earlier reasons. The Court’s approach was to read the documents together and examine whether the combined record disclosed the reasoning and statutory considerations. The factual detail matters: the Authority had provided detailed reasons with the July communication, and the later notification expressly referred back to those reasons.
The case is less directly informative where the challenge concerns the legality of an earlier classification decision itself. Mawas had discontinued the grounds directed to decisions of the Commissioner. The Court specifically treated those decisions as outside the remaining grounds, rather than deciding their lawfulness.
How later courts have treated it
The judgment supplied for this analysis contains no information about later judicial treatment of Mawas. It therefore does not establish whether subsequent courts have followed, distinguished, or questioned its reasoning.
The authorities that Walton J relied on in the judgment include Patsalis v State of New South Wales for the conclusion that leave under s 4 of the Felons (Civil Proceedings) Act 1981 (NSW) was not required to institute the proceedings. The Court also cited Quin and SZJSS on the distinction between legality and merits, and accepted the interpretation of s 135(5) given in Boatswain. These are authorities considered in Mawas, not evidence of how later courts treated Mawas itself.
The judgment also identifies R v NK as support for describing the exceptional-circumstances threshold as high. The source provided does not include any later case history or citation analysis. Any account of subsequent treatment would require checking later judgments and other legal sources not included here.
Still-open questions
The decision leaves open how “exceptional circumstances” should be applied across different factual settings. Walton J relied on the high-threshold observation in R v NK and concluded that Mawas had not established reviewable error. The judgment does not offer an exhaustive definition or a checklist for future cases.
The judgment does not decide what legal consequences might follow if a Review Council failed to consider one of the mandatory matters in s 198(2A), or if the Parole Authority misunderstood the relationship between its own statutory assessment and the Council’s advice. The Court found that the relevant factors had been considered on these facts.
Nor does the judgment resolve the circumstances in which a decision-maker’s reliance on a policy would become legally inflexible. The Court distinguished the facts before it from an inflexible application of policy, but did not formulate a comprehensive test for every policy-based decision.
The reasons discussion is similarly tied to the documents before the Court. The judgment found that express incorporation of the July reasons made it appropriate to read those reasons with the August decision. It does not determine how clear or specific a cross-reference must be in other cases, or what follows where the earlier reasons are unavailable, incomplete, or inconsistent with the later decision.
Finally, the decision does not resolve the merits of Mawas’s earlier classification complaints, because those grounds had been abandoned. It records that his classification later progressed to C3, but does not decide whether the timing of that progression affected the legality of the parole decisions under review.
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HIS HONOUR: By an amended summons filed 22 January 2019, Rabeeh Mawas ("the plaintiff"), an inmate at Parklea Correctional Facility, sought judicial review, pursuant to ss 69 and 70 of the Supreme Court Act 1970 (NSW), with respect to decisions of the Commissioner of Corrective Services New South Wales ("the Commissioner"), the Serious Offenders Review Council ("the Review Council") and the New South Wales Parole Authority ("the Parole Authority").
Those relevant decisions were as follows:
1. two decisions of the Commissioner dated 11 March and 10 November 2017, respectively, both of which concerned the classification and placement of the plaintiff;
2. a decision of the Review Council made on 19 June 2018, namely, that it was not appropriate that the plaintiff be considered for release on parole ("the Review Council decision"); and
3. decisions of the Parole Authority, which concerned the following::
1. an indication of an intention to refuse parole made on 13 July 2018;
2. a determination that no exceptional circumstances existed so as to warrant the plaintiff's release to parole made on 24 July 2018 ("the parole refusal decision"); and
3. a refusal of an application for a review hearing made on 17 August 2018 ("the review decision").
Leave was sought by the plaintiff to institute the proceedings, pursuant to s 4 of the Felons (Civil Proceedings) Act 1981 (NSW), and to bring the proceedings out of time pursuant to r 59.10 of the Uniform Civil Procedure Rules 2005 (NSW).
On 21 November 2018, prior to the hearing of the application, the Review Council and Parole Authority filed submitting appearances, and on 5 December 2018, the Attorney General for New South Wales ("the Attorney General") was granted leave to intervene, pursuant to s 23 of the Supreme Court Act, and was joined as the fourth defendant. (The Review Council, Parole Authority and Attorney General shall, collectively, hereinafter be referred to as "the defendants").
At the outset of the hearing of the amended summons, the plaintiff desisted from his action against the Commissioner. In the result, grounds 1 to 7 of the statement of grounds in the amended summons (there were 13 grounds in total) fell away, leaving grounds 8 to 11, which concerned the decision of the Review Council, and grounds 12 and 13, which related to the decisions of the Parole Authority.
By a further amended summons filed on 15 April 2019, the plaintiff sought leave to further amend his application, effectively bringing in a fourteenth ground of appeal, which concerned the Parole Authority. The further amended summons also reflected the abandonment of relief sought against the Commissioner (grounds 1 to 7) and part of the relief regarding the Review Council (grounds 9 and 10).
There was no objection to leave being granted for the plaintiff to move upon the further amended summons. There is no proper discretionary basis to refuse leave being given, in this respect, and it is granted.
The remaining issues of leave may be briefly dealt with ahead of the consideration of the respective merit grounds.
1. Firstly, no leave is required for the plaintiff to institute these proceedings pursuant to s 4 of the Felons (Civil Proceedings) Act: see Patsalis v State of New South Wales (2012) 81 NSWLR 742; [2012] NSWCA 307 at [41], [55] and [114].
2. Secondly, the defendants (properly in the circumstances of this matter) took no objection to the plaintiff being given leave to file the proceedings out of time. That leave is given.
This judgment concerns, therefore, the relief claimed in the further amended summons with respect to:
1. the Review Council decision (grounds 8 and 11);
2. the parole refusal decision (grounds 12 and 13); and
3. the review decision (ground 14).
[3]
GROUNDS
The remaining five grounds of appeal shall, for convenience, bear the numbers which correspond to the further amended summons. The statement of the remaining five grounds is extracted below:
STATEMENT OF GROUNDS
8. That the Second Defendant erred in applying an inflexible application of policy to the merits of the Plaintiff's application for Parole and did not genuinely consider the merits of his application.
11. The Second Defendant erred in considering the exercise of its functions under s[s] 197(2)(b) and 198(2A) of the Crimes (Administration of Sentences) Act 1999, by giving undue weight to the plaintiff's need to engage in pre-release leave.
12. The Third Defendant erred in failing to find exceptional circumstances under s 135(5) [of the] Crimes (Administration of Sentences) Act 1999.
13. The Third Defendant erred in placing undue weight on the Second Defendant's report dated 19 June 2018.
14. That the Third Defendant erred in failing to give reasons in its decision dated 17 August 2018 when determining whether the plaintiff had established exceptional circumstances on his application for parole.
[4]
Serious offender
The definition of "serious offender" in s 3 of the Crimes (Administration of Sentences Act) 1999 (NSW) ("the CAS Act") appears below:
serious offender means -
(a) an offender who is serving a sentence for life, or
(b) an offender who is serving a sentence for which a non-parole period has been set in accordance with Schedule 1 to the Crimes (Sentencing Procedure) Act 1999, or
(c) an offender who is serving a sentence (or one of a series of sentences of imprisonment) where the term of the sentence (or the combined terms of all of the sentences in the series) is such that the offender will not become eligible for release from custody, including release on parole, until he or she has spent at least 12 years in custody, or
(d) an offender who is for the time being required to be managed as a serious offender in accordance with a decision of the sentencing court, the Parole Authority or the Commissioner, or
(e) an offender who has been convicted of murder and who is subject to a sentence in respect of the conviction, or
(e1) a Commonwealth post sentence terrorism inmate, or
(e2) a NSW post sentence inmate, or
(f) an offender who belongs to a class of persons prescribed by the regulations to be serious offenders for the purposes of this definition.
[5]
Parole Authority
Part 6 of the CAS Act concerns "Parole". It applies to the granting of parole to those offenders who are subject to sentences of imprisonment. It deals with the following, inter alia, matters:
1. eligibility for release on parole, the conditions to which parole is subject, the general obligations of offenders who are on release on parole and other provisions applying generally to parole (Div 1);
2. procedures for parole orders for sentences of more than 3 years (Div 2);
3. procedures for parole orders for sentences of 3 years or less (Div 3); and
4. procedures for parole orders in exceptional circumstances (Div 4).
Section 3 provides that a "Parole Authority" means the State Parole Authority constituted by s 183 of the CAS Act.
Section 135 of the CAS Act concerns the general duty of Parole Authority relating to release of offender. It provides as follows:
135 General duty of Parole Authority relating to release of offender
(1) The Parole Authority must not make a parole order directing the release of an offender unless it is satisfied that it is in the interests of the safety of the community.
(2) In considering whether it is in the interests of the safety of the community to release an offender, the Parole Authority must have regard to the following principal matters -
(a) the risk to the safety of members of the community of releasing the offender on parole,
(b) whether the release of the offender on parole is likely to address the risk of the offender re-offending,
(c) the risk to community safety of releasing the offender at the end of the sentence without a period of supervised parole or at a later date with a shorter period of supervised parole.
(3) In considering whether it is in the interests of the safety of the community to release an offender, the Parole Authority must also have regard to the following matters -
(a) the nature and circumstances of the offence to which the offender's sentence relates,
(b) any relevant comments made by the sentencing court,
(c) the offender's criminal history,
(d) the likely effect on any victim of the offender, and on any such victim's family, of the offender being released on parole,
(e) if applicable, whether the offender has failed to disclose the location of the remains of a victim,
(f) any report in relation to the granting of parole that has been prepared by a community corrections officer,
(g) any other report in relation to the granting of parole to the offender that has been prepared by or on behalf of the Review Council or any other authority of the State,
(h) if the Drug Court has notified the Parole Authority that it has declined to make a compulsory drug treatment order in relation to the offender's sentence on the ground that it is not satisfied as to the matters referred to in section 18D (1) (b) (vi) of the Drug Court Act 1998, the circumstances of that decision to decline to make that order,
(i) that an application that has been made (but not determined) in respect of the offender -
(i) for an extended supervision order or continuing detention order under the Crimes (High Risk Offenders) Act 2006 or the Terrorism (High Risk Offenders) Act 2017, or
(ii) for a continuing detention order under Division 105A of Part 5.3 of the Commonwealth Criminal Code,
(j) any other matters that the Parole Authority considers to be relevant.
(4) Without limiting subsection (3) (e) or (j), if the offender has provided post-sentence assistance, the Parole Authority may have regard to the following -
(a) the nature and extent of the assistance (including the reliability and value of any information or evidence provided by the offender),
(b) the degree to which the offender's willingness to provide assistance reflects the offender's progress to rehabilitation.
(5) Except in exceptional circumstances, the Parole Authority must not make a parole order for a serious offender unless the Review Council advises that it is appropriate for the offender to be released on parole.
(6) A report prepared by a community corrections officer for the purposes of subsection (3) must address the matters prescribed by the regulations for the purposes of this section.
(7) The Parole Authority (and the Review Council when giving advice for the purposes of subsection (5)) must not have regard to the fact that either of the following may be made in respect of the offender -
(a) an application for an extended supervision order or continuing detention order under the Crimes (High Risk Offenders) Act 2006 or the Terrorism (High Risk Offenders) Act 2017,
(b) an application for a continuing detention order under Division 105A of Part 5.3 of the Commonwealth Criminal Code.
(8) The Parole Authority is not required to consider the matters specified by this section in relation to an offender if it determines under Division 3A that it cannot make a parole order for the offender.
(9) In this section -
post-sentence assistance means assistance in the prevention, detection or investigation of, or in proceedings relating to, any offence, provided by an offender to law enforcement authorities after the offender was sentenced and that was not taken into account or considered by the sentencing court.
[6]
Review Council
Part 9 of the CAS Act concerns the Review Council. Section 3 defines "Review Council" as the Serious Offenders Review Council constituted by s 195 of that Act. Part 9 deals with, inter alia, the following:
1. the constitution and functions of the Review Council (Div 1);
2. the powers of the Review Council in relation to inquiries conducted by it (Div 2); and
3. the establishment of the Serious Offenders Management Committee and its subcommittees (Div 3).
Section 197 sets out the functions of the Review Council and relevantly provides::
197 Functions of Review Council
(1) The Review Council has such functions as are conferred on it by or under this or any other Act or law.
(2) In particular, the Review Council has the following functions -
(a) to provide advice and make recommendations to the Commissioner with respect to the following -
(i) the security classification of serious offenders,
(ii) the placement of serious offenders,
(iii) developmental programs provided for serious offenders,
(b) to provide reports and advice to the Parole Authority concerning the release on parole of serious offenders.
Section 198 sets out the matters to be considered in relation to "certain advisory functions". It is extracted in full below:
198 Matters to be considered in relation to certain advisory functions
(1) When exercising its functions under section 197 (2) (a) in relation to a serious offender, the Review Council must consider the public interest and any other relevant matters.
(2) In the case of its function under section 197 (2) (a) (i), the Review Council must also consider, in accordance with the regulations -
(a) any submissions made by the State, and
(b) any submissions made by victims of the serious offender,
before advising or recommending that a serious offender should be given a less stringent security classification if it appears to the Review Council that the new classification would allow the offender to become eligible for unescorted leave of absence under a local leave permit or interstate leave permit.
(2A) When exercising its functions under section 197 (2) (b) in relation to a serious offender, the Review Council must consider the following matters -
(a) the public interest,
(b) the offender's classification history,
(c) the offender's conduct while in custody, both in relation to sentences currently being served and in relation to earlier sentences,
(d) the offender's willingness to participate in rehabilitation programs, and the success or otherwise of his or her participation in such programs,
(e) any relevant reports (including any medical, psychiatric or psychological reports) that are available to the Review Council in relation to the offender,
(f) any other matter that the Review Council considers to be relevant.
(3) Without limiting the generality of the meaning of public interest in subsections (1) and (2A), the Review Council is to take into account the following matters when considering the public interest -
(a) the protection of the public, which is to be paramount,
(b) the nature and circumstances of the offence,
(c) the reasons and recommendations of the sentencing court,
(d) the criminal history and family background of the offender,
(e) the time the offender has served in custody and the time the offender has yet to serve in custody,
(f) the offender's conduct while in custody, including the offender's conduct during previous imprisonment, if applicable,
(g) the attitude of the offender,
(h) the position of and consequences to any victim of the offender, including the victim's family,
(i) the need to maintain public confidence in the administration of criminal justice,
(j) the need to reassure the community that serious offenders are in secure custody as long as it is appropriate,
(k) the rehabilitation of the offender and the re-entry of the offender into the community as a law-abiding citizen,
(l) the availability to the offender of family, departmental and other support,
(m) such other factors as are prescribed by the regulations.
[7]
Crimes (Administration of Sentences) Regulation 2014
Part 3 of the Crimes (Administration and Sentences) Regulation 2014 (NSW) ("the Regulation") concerns the classification, placement and case management of inmates.
The Commissioner is to determine the inmate's classification in accordance with this Div 1 of Part 3 "[a]s soon as practicable after an inmate is first received into a correctional centre": cl 11(1) of the Regulation.
Every offender who enters custody is classified in accordance with the security classification levels set out in cll 12-14A of the Regulation. An inmate's classification under cll 12, 13 or 14 "is to be reviewed at least once every 12 months and at the other times the Commissioner determines": cl 11(2) of the Regulation.
Clause 12 concerns the classification of male inmates and is extracted below:
12 Classification of male inmates
(1) Each male inmate is to be classified in one of the following categories for the purposes of security -
Category AA, being the category of inmates who, in the opinion of the Commissioner, represent a special risk to national security (for example, because of a perceived risk that they may engage in, or incite other persons to engage in, terrorist activities) and should at all times be confined in special facilities within a secure physical barrier that includes towers or electronic surveillance equipment.
Category A1, being the category of inmates who, in the opinion of the Commissioner, represent a special risk to good order and security and should at all times be confined in special facilities within a secure physical barrier that includes towers or electronic surveillance equipment.
Category A2, being the category of inmates who, in the opinion of the Commissioner, should at all times be confined by a secure physical barrier that includes towers, other highly secure perimeter structures or electronic surveillance equipment.
Category B, being the category of inmates who, in the opinion of the Commissioner, should at all times be confined by a secure physical barrier.
Category C1, being the category of inmates who, in the opinion of the Commissioner, should be confined by a physical barrier unless in the company of a correctional officer or some other person authorised by the Commissioner.
Category C2, being the category of inmates who, in the opinion of the Commissioner, need not be confined by a physical barrier at all times but who need some level of supervision by a correctional officer or some other person authorised by the Commissioner.
Category C3, being the category of 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.
(2) Subject to clause 17, the Commissioner may at any time vary or revoke a classification under this clause.
(3) Male inmates who are classified in Category AA are prescribed to be serious offenders for the purposes of paragraph (f) of the definition of serious offender in section 3(1) of the Act.
[8]
FACTUAL BACKGROUND
The factual background was expressed in the written submissions for the plaintiff. That background was uncontentious and forms the backbone of what follows.
The plaintiff was convicted of murder and sentenced by Wood J on 29 August 2002 to a head sentence of 25 years' imprisonment and a non-parole period of 19 years to commence from 17 September 1999: R v Kanaan, Mawas, El Assaad [2002] NSWSC 774. The earliest possible release date was, therefore, 16 September 2018 and the expiration of the head sentence will occur on 16 September 2024.
[9]
Security Classification Progression: Category C1 to Category C2
The plaintiff was remanded into custody to serve his sentence. Initially, the plaintiff was classified as Category C1 ("C1"). A C1 classification concerns "the category of [male] inmates who, in the opinion of the Commissioner, should be confined by a physical barrier unless in the company of a correctional officer or some other person authorised by the Commissioner": cl 12(1) of the Regulation.
[10]
First Recommendation by the Review Council
On 8 November 2016, the Review Council recommended that the plaintiff progress in classification from C1 to Category C2 ("C2"). A C2 concerns "the category of [male] inmates who, in the opinion of the Commissioner, need not be confined by a physical barrier at all times but who need some level of supervision by a correctional officer or some other person authorised by the Commissioner": cl 12(1) of the Regulation. If accepted, such a progression (or reclassification) would provide the plaintiff with the capacity to engage in supervised work at the gaol.
On 14 November 2016, the Commissioner refused to reclassify the plaintiff. The plaintiff remained at Junee Correctional Centre and had his case plan adopted by the Commissioner as per the Review Council's recommendations.
For completeness, a "case plan" in relation to an offender is defined in cl 3 of the Regulation as follows: "a plan for the management of the offender that includes provisions that indicate the development programs in which the offender should be encouraged to participate and the services that the offender should be encouraged to make use of, and the offender's obligations in relation to the programs and services" (see also Div 3 of Pt 3 of the Regulation).
[11]
Second Recommendation by the Review Council
On 28 February 2017, the Review Council, once again, recommended that the plaintiff progress from C1 to C2, which, as mentioned above, would allow him to engage in supervised work at the gaol, as well as remain at Junee Correctional Centre and have his case plan adopted by the Commissioner.
On 11 March 2017, the Commissioner, again, refused to reclassify the plaintiff. It was confirmed that the plaintiff would remain at Junee Correctional Centre and have his case plan adopted.
[12]
The Commissioner reclassified plaintiff as C2
On 9 May 2017, the Commissioner reclassified the plaintiff from C1 to C2. As a result of that progression, the plaintiff was allowed to engage in supervised work within the gaol.
[13]
Further recommendations by the Review Council: "offsite" work
On 7 November 2017, the Review Council recommended that the plaintiff's classification remain at C2, but that he be allowed to essentially work "offsite" (or away from the gaol premises). The Commissioner did not approve the plaintiff to work away from the gaol on 10 November 2017.
On 8 May 2018, the Review Council, once again, recommended the plaintiff be allowed to work away from the gaol whilst still retaining the C2 classification. That recommendation was approved by the Commissioner on 12 May 2018.
[14]
The Review Council Decision
In the Review Council decision of 19 June 2018 (which incorporated a 26 page report), the Review Council recommended that the plaintiff's release to parole was not appropriate.
The report was authored by Mr John Favretto, Chairperson of the Review Council, titled, "Initial Report of the Serious Offenders Review Council" and dated 19 June 2018 ("the report"). The report was authenticated pursuant to cl 18 of Sch 2 of the CAS Act.
Under the heading "Advice of the Council to State Parole Authority (s 197(2)(b))", Mr Favretto recorded the following:
The forty-one (41) years old offender has progressed to C2 OFF privileges from 12 May 2018. His NPP expires on 16 September 2018, with an Additional Term of six (6) years. His assessed LSIR is Medium (7 December 2009). He has completed EQUIPS Aggression, Managing Emotions and Getting SMART as well as a number of vocational courses. His last institutional offence was in October 2012. He has been regularly employed with good reports. He has yet to participate in any meaningful C2 OFF activity, let alone approval for and participation in C3 External Leave Programs. We note that the Progress Report of 6 June 2018 foreshadows that release to parole will not be recommended because of his lengthy period in custody and need to engage in pre-release leave. We are similarly of the same view, especially considering his almost nineteen (19) years in custody. He will need to demonstrate stability and re-integration through external leave. We advise that his release to parole is not appropriate.
…
The report referred to the following matters:
1. Extracts of the primary judge's sentencing remarks, which detailed the plaintiff's role in the offence and his background.
2. Extracts of the judgment of the Court of Criminal Appeal dismissing the plaintiff's appeal against his conviction and sentence.
3. The plaintiff's classification and placement progress. The Review Council noted that in 16 reviews, between 22 July 2003 and 21 June 2011, the Review Council concluded that there should be no change in his classification. The Commissioner approved the Review Council's recommendations for a reduction in the plaintiff's classification on 16 January 2012, 30 June 2013 and on 2 April 2016. However, the Commissioner did not approve reductions in the plaintiff's classification on 14 November 2016 and 11 March 2017. The Commissioner approved another reduction in classification on 15 May 2017.
4. The programs the plaintiff had completed.
5. That the plaintiff self-refers on a needs basis to psychological services.
6. The plaintiff's employment history and his "excellent work reports".
7. That the plaintiff has not yet been approved to undertake external leave programs.
8. A report from Amy Refalo, Community Corrections Officer at the Parklea Community Corrections Unit ("the Refalo Report"), stating that:
Due to the offender's extended period in custody, it is recommended that he engage in some form of pre-release leave. He has not yet been able to display that he can live a law abiding lifestyle in the community. Mr Mawas is currently classified as a C2 and has recently been approved for his 6.2 off complex. Records indicated that on 5 June 2018 he attended an induction for Community Projects and he will be attending supervised work within the community.
At this stage I will not be recommending parole, given his extended period in custody and the need to engage in pre-release leave.
[15]
The Parole Refusal Decision
On 13 July 2018, the Parole Authority made a "decision" in relation to the plaintiff's parole, which was communicated in a document entitled "Notice of Intention to Refuse Parole" (which document shall hereinafter be referred to as "the Notice"). The Notice was described as "Form 2B(r) - Serious Offender" and referred, at the outset, to s 146 of the CAS Act. The Notice was plainly issued pursuant to s 144 of the CAS Act.
In the opening paragraph of the Notice, the following was stated:
The State Parole Authority met on 13 July 2018 and determined it is not satisfied that it is in the interests of the safety of the community for you to be released on parole.
The Notice also stated that an offender may apply for "a hearing to review [the Parole Authority's] intention to refuse [the offender's] release on parole". Provision was made for various fields of reasons demonstrating the need for a hearing, one of which was: "There are exceptional circumstances that the Parole Authority are unaware of".
That intention, as appeared on the Notice, was communicated to the plaintiff on 24 July 2018 in the parole refusal decision. At that time, the Notice was accompanied by detailed reasons setting out the matters the Parole Authority had regard to on 13 July 2018, even though that step was not required by s 146 of the CAS Act.
In the reasons given in the parole refusal decision, reference was made to matters required for consideration under s 135(3) of the CAS Act. As to the provisions of s 135(3)(j), the Parole Authority stated: "Not applicable".
As to s 135(5), the Parole Authority stated:
Consideration of matters under s 135(5) - Except in exceptional circumstances, the Parole Authority must not make a parole order for a serious offender unless the Review Council advises that it is appropriate for the offender to be released on parole.
Not applicable.
The parole refusal decision also stated:
Critical Issues
SORC need to advise that release to parole is appropriate prior to the Authority forming an intention to grant parole. Further, the offender needs to participate in external leave.
Conclusion
Taking into account the above the Authority is not satisfied in accordance with S135(1) that the release of the offender is in the interests of the safety of the community.
Unless the offender can demonstrate that exceptional circumstances exist, the Authority cannot form an intention to grant parole until SORC advise that release is appropriate. Further, the offender needs to participate in external leave to assist with reintegration.
Taking into account the above the Authority is not satisfied in accordance with S135(1) that the release of the offender is in the interests of the safety of the community.
[16]
The Review Decision
On 17 August 2018, the Parole Authority declined to conduct a hearing to review the parole refusal decision. That decision was earlier identified as the review decision.
The review decision was expressed in two documents:
1. The first was headed "Determination by the [Parole Authority] in respect of an intention to refuse parole". In that document, the Parole Authority stated that it considered the application for a review hearing, which was completed following the instructions in the Notice to refuse parole. Parole was refused, it was stated, because the plaintiff "needs to participate in external release program and SORC does not consider that release of the offender is appropriate".
2. In a further document, described as "Notification of Determination" (the defendants indicated it was issued on 18 August 2018 but it bears the date 17 August 2018), the Parole Authority determined:
[T]hat a review hearing is not warranted given: Exceptional circumstances not established and reasons for refusal remain unaddressed.
Parole is refused for the following reason(s) as stated on 13 July 2018.
Needs to participate in external leave program and SORC does not consider the release of the offender is appropriate.
In the result, the plaintiff remained at the C2 classification and was housed at the Parklea Correctional Centre until early 2019.
[17]
Security Classification Progression: Category C2 to Category C3
On 25 January 2019, the Commissioner reclassified the plaintiff, on recommendation from the Review Council (made on 22 January 2019), from C2 to Category C3 ("C3"). A C3 classification concerns "the category of [male] 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": cl 12(1) of the Regulation.
At the time of the hearing, the plaintiff was housed at Parklea Correctional Facility on a C3 classification.
In written submissions dated 28 March 2019, counsel for the plaintiff submitted that the plaintiff had not been reviewed for suitability for parole since August 2018 (namely, since the review decision). However, at the hearing, counsel for the plaintiff informed the Court: "my instructions are that pursuant to that classification [namely, C3] Mr Mawas has now been able to seek some release dates themselves and actually engaged in that process of being off the correctional centre and being released".
[18]
ISSUES
With the removal of the grounds concerning the Commissioner, the issues arising out of the further amended summons were broadly expressed by the plaintiff as follows:
1. Did the Review Council err in applying an inflexible policy to the merits of the plaintiff's application for parole and place undue weight on a report?
2. Did the Parole Authority place undue weight on the Review Council's report and fail to take into account the plaintiff's exceptional circumstances when considering his application for parole?
(Those issues shall hereinafter be referred to as "the first issue" and "the second issue", respectively).
The latter component of the first issue, namely, placing undue weight on a report, was caught by the abandonment of ground 9 on the amended summons and no longer occupied submissions of the parties as such.
Both the first and second issues had a second component raised by the defendants, namely, whether the Review Council decision, the parole refusal decision and the review decision were amenable to judicial review.
Lastly, as amended, an additional issue was introduced by virtue of the further amended summons, namely, ground 14. That additional issue concerned the failure of the Parole Authority to give reasons when determining whether the plaintiff had established exceptional circumstances on his application for parole ("the third issue").
Overall, the plaintiff's complaint was that a series of decisions (some of which concerned issues raised under grounds 1 to 7) thwarted the plaintiff's access to parole and, in particular, parole at the earliest possible release date.
[19]
Ground 8: That the Review Council erred in applying an inflexible application of policy to the merits of the plaintiff's application for parole and did not genuinely consider the merits of his application.
[20]
Submissions of the Parties
In summary, the plaintiff submitted:
1. The Review Council erred by inflexibly or rigidly applying the policy such that the merits of the plaintiff's application were not properly considered in reaching the in the Review Council decision.
2. The report took into account the offending itself and the history of the plaintiff in correctional facilities. In particular, it was submitted, the Review Council placed "great emphasis" on the plaintiff's initial years in custody (when he was having problems adjusting to prison life) and his behaviour problems in the maximum security section at the Goulburn Correctional Centre. It was contended that a more flexible approach would have seen the plaintiff progress through the classification system and receive a reduced classification earlier. In support of that contention, reference was made to the Review Council's earlier recommendations and observations:
1. On 8 November 2016, the Review Council made a recommendation that the plaintiff be reduced from C1 to C2 and "on complex". This is where the staging process of an offender, it was noted, is to continue to a point where he has progressed to C3 off the complex and then into the community. That process was described as the "gradations of release". Notwithstanding that recommendation, the Commissioner on 14 November 2016 did not allow that step down in classification and deferred it for six months.
2. The Review Council noted that "the offender continues to maintain excellent [work] reports" and also that his non-parole period expired in September 2018, which was well within the guidelines for C2. This demonstrates, it was submitted, that the Review Council stated, as early as 2016, that the plaintiff's work reports were excellent and that they were also giving consideration to the guidelines for C2. Those guidelines were in place with a point of reference in mind, namely, the earliest possible release date of September 2018.
3. The assessment by the Review Council on 17 February 2017 noted "the Committee advised the inmate that the Committee's position is to assist the inmate achieve his parole". The acknowledged role of the Review Council at that point, the plaintiff contended, was to facilitate the plaintiff's release.
4. Reference was also made to two further refusals of the Commissioner to approve the Review Council's recommended changes to the plaintiff's classification on 11 March and 10 November 2017, respectively.
1. The report made clear, it was contended, that what was stopping the plaintiff from progressing was the Commissioner who, without any significant reason being expressed, simply rejected the recommendations of the Review Council, including all other matters taken into account by the Review Council, such as, "excellent" reports and the conduct of the plaintiff. Thus, by the time he was eligible for parole, the only matter that was stopping him from getting that parole was that he had not been allowed to participate in the "C3 external leave programs".
2. Further, there was error in the advice of the Review Council (extracted above at [36]) where, despite the historical references to the plaintiff's progress going back some years, the finding of the Review Council was that the plaintiff had yet to participate in any meaningful C2 activity, let alone approval for and participation in "C3 external leave programs". It was submitted, in this respect, that the Review Council decision should have taken into account the fact that there was no meaningful way in which the plaintiff could have achieved a C3 classification. He had been recommended by the Review Council for release down at various stages but had been thwarted by the acts of Corrective Services.
3. The Review Council knew, prior to the earliest possible release date that an inmate had to follow a series of step down procedures. Therefore, by making recommendations that the plaintiff's classification be reduced, the Review Council conveyed that the plaintiff was someone to whom such a reduction was an "entitlement".
4. It was further contended that the Review Council was aware that the plaintiff was unable to engage in that process and, notwithstanding that fact, recommended strict and "inflexible" compliance with a policy, that the plaintiff could not meet. In doing so, the Review Council had taken a guideline and given it the weight of law, as opposed to a consideration of the plaintiff's other factors.
5. Overall, it was contended that a more flexible approach would have seen the plaintiff progress through the classification system and receive a reduced classification earlier; a course which would have enabled the plaintiff to be released to parole at the expiry of the non-parole period.
[21]
Conclusion: Ground 8
The defendants' submissions, in my view, are of real substance. When the report is considered in its entirety, I consider the Review Council did consider the merits of the plaintiff's application in accordance with the requirements of s 198(2A) of the CAS Act. The Review Council was required to consider the plaintiff's classification history, pursuant to s 198(2A)(6) of that Act, and did so consistently with his then classification and, more particularly, whether he had sufficiently participated in an external leave program. That consideration was not the application of the "policy" inflexibly but an application of the applicable criteria to a known factual situation. Complaints about the classification process itself were abandoned when grounds 1 to 7 were discontinued and cannot intrude into the issues raised by this ground.
Contentions directed to whether the plaintiff was disadvantaged by earlier classification decisions or whether the Review Council should have had regard to earlier "flawed" classification decisions were, in substance, an invitation to consider the correctness of the decision rather than the legality of the process.
Ground 8 is rejected.
[22]
Ground 11: The Review Council erred in considering the exercise of its functions under ss 197(2)(b) and 198(2A) of the CAS Act, by giving undue weight to the plaintiff's need to engage in pre-release leave.
[23]
Submissions of the Parties
The written submissions of the plaintiff dealt globally with grounds 9 to 11, but grounds 10 and 11 have the common feature in that it was contended that the Review Council gave "undue weight" to certain factors in reaching its decision. Ground 10, which was not pressed under the further amended summons, referred in this respect to reliance placed upon the Refalo Report. Ground 11 concerned reliance placed on the plaintiff's need to engage in pre-release leave.
Little is said in the plaintiff's written submissions on ground 11, save for a reference to Ms Refalo's reliance upon "the amount of time left to run on [the plaintiff's] non-parole period" and the need to have regard to the plaintiff's history, background and custodial record overall.
During the hearing, the plaintiff made the following submissions:
1. Section 198(3) of the CAS Act lists a reasonably wide discretionary set of factors contained within subs (3)(a)-(m). There is nothing within that legislation that would permit the Review Council to limit their functioning, in terms of providing reports about whether or not the plaintiff ought to be granted parole, to say that there has to be some pursuit of the C3 "off complex" classification before he could be granted parole.
2. Under the CAS Act, when performing its advisory functions, the Review Council must consider the matters set out in s 198(2A). The legislation gives a reasonably wide scope with s 198(2A)(f), which provision provides the Review Council may consider "any other matter that the Review Council considers to be relevant". Thus, there is a rather wide dimension to what the Review Council must consider, and there is no need for it to follow the C3 classification. The excellent reports of the plaintiff, his attendances on various programs and his interactions with the Review Council are highly relevant to the considerations that are required to be considered in the report.
3. Under the CAS Act, the consideration is not as simple as the plaintiff's classification history. It is a range of considerations, with a catchall of any other matter that the Review Council considers to be relevant. Thus, the plaintiff contended that the Review Council had impermissibly limited itself to one factor, placing too much weight on one consideration and, thereby, impermissibly recommending that the plaintiff not be granted parole.
[24]
Conclusion: Ground 11
I accept the defendants' submissions. The relevant factors under s 198 of the CAS Act were considered by the Review Council and the weight given to them is a matter for the decision maker and not this Court.
Ground 11 is rejected.
[25]
Grounds 12 & 13: the Parole Authority erred in failing to find exceptional circumstances under s 135(5) of the CAS Act and erred in placing undue weight on the Review Council's report dated 19 June 2018.
[26]
Submissions of the Parties
Counsel for the plaintiff made the following written submissions in this respect:
75. In the plaintiff's submission the Parole authority did not appropriately find exceptional circumstances when it came to deal with the application for parole. The plaintiff says that the delay in his progression through the classification system from C1 to C3, as well as the lack of reasons from the Commissioner and the undue weight and reliance given to the contents of the reports of The Council would amount to a finding of exceptional circumstances.
76. The plaintiff's progress through custody to a C3 classification has been lengthy and in the plaintiff's submission hindered by the inflexible nature of the determinations made against his favour by the Commissioner, the Council and the Authority.
During oral hearing, the plaintiff further submitted:
1. The Parole Authority "followed on from a previous error" by the Review Council. It was contended that the Review Council had fallen into error, because of its inflexible application of the policy, which error was then acted upon by the Parole Authority in the same manner. The following extract from the parole refusal decision, it was contended, demonstrates that once the Review Council makes a recommendation, the Parole Authority simply follows it:
Critical Issues
SORC need to advise that release to parole is appropriate prior to the Authority forming an intention to grant parole. Further, the offender needs to participate in external leave.
1. Section 135(5) of the CAS Act provides that "Except in exceptional circumstances, the Parole Authority must not make a parole order for a serious offender unless the Review Council advises that it is appropriate for the offender to be released on parole". The plaintiff contended the exceptional circumstances existed, namely, the matters earlier identified in the Review Council's report.
In summary, the defendants advanced the following submissions:
1. Grounds 12 and 13 relate to the decision of the Parole Authority to not grant the plaintiff parole, following the report by the Review Council that stated it was "not appropriate" for the plaintiff to be released on parole. Ground 12, it was submitted, appears to "quibble" with the merits of the parole refusal decision in that the plaintiff disagrees that there was "no exceptional circumstances", and ground 13 again goes to "undue weight", neither of which is a matter for this Court.
2. Where there is no statutory requirement for the Parole Authority to hold a review hearing, it was submitted, this was the opportunity for the plaintiff to point out any exceptional circumstances. The Parole Authority formed the intention to refuse parole. Implicit in that decision, it was contended, was that there were no exceptional circumstances at that point. That was why the Parole Authority asked the plaintiff, specifically, to disclose any exceptional circumstances that the Parole Authority was unaware of at that time.
[27]
Conclusion: Grounds 12 & 13
The exceptional circumstances which the plaintiff identified for the purpose of this application, as existing at the relevant time, were as follows:
1. When considering the plaintiff's release, the Review Council had before it and placed too much weight on material that was "false, misleading or irrelevant". That submission referred to statements in the Refalo Report, which, in summary, included:
1. that the plaintiff had an active role in the introduction of contraband into a correctional centre;
2. the plaintiff was an alleged assailant in an assault on another offender;
3. there were concerns about the plaintiff's behaviour, such as the possibility he was "still standing over other inmates"; and
4. the plaintiff's opportunities for employment on release were unable to be confirmed.
1. The plaintiff ought to be afforded the opportunity to be heard in relation to the Commissioner's rejection of recommendations to remove the plaintiff's designation as a high security inmate and to progress the plaintiff to a C2 "on complex" classification and then "off complex" classification.
2. Since the forming of the view that release to parole was not appropriate, as the plaintiff had yet to participate in any meaningful C2 off complex activity, the plaintiff had successfully completed numerous instances of off complex work/activity and attained positive reports from his supervisors. That material was not before the Review Council and, it was submitted, that had it been a different conclusion may have been reached.
There is no statutory requirement for the Parole Authority to hold a review hearing.
To the extent these grounds were sought to challenge the merits of any finding as to the existence of exceptional circumstances or the weight to be attached to particular factors, the challenge brought by the plaintiff is not available.
Further, I accept the view adopted by R A Hulme J in Boatswain v State Parole Authority [2014] NSWSC 501 at [40] where his Honour stated, "[w]hat [s 135(5) CAS Act] means is that, absent exceptional circumstances, if the Review Council advises that it is not appropriate for parole release to be considered, the Parole Authority cannot make a parole order".
Grounds 12 and 13 relate to the decision of the Parole Authority to not grant the plaintiff parole following a report by the Review Council that it was not appropriate for the plaintiff to be released on parole.
[28]
Ground 14: That the Parole Authority erred in failing to give reasons in its decision dated 17 August 2018 when determining whether the plaintiff had established exceptional circumstances on his application for parole.
Given the manner in which this issue was introduced, the plaintiff's submissions are exclusively in writing. Those submissions are extracted in full below:
6. The Parole Authority, exercising jurisdiction conferred on it by the [CAS Act], affects the "rights of subjects" and therefore acts "judicially": (Esho v Parole Board Authority of NSW [2006] NSWSC 304). Section 69(4) of the Supreme Court Act 1970 permits a grant of certiorari where there is an error on the face of the record which can include reasons for any decision.
7. Within exhibit 1, behind tab 12 and from page 99, the plaintiff's submissions to the Parole Authority seeking a hearing and a reconsideration of an intention to refuse parole can be found. Paragraph 10 on page 101 concludes with a submission made that there existed "exceptional circumstances justifying a release to parole".
8. At exhibit 1, behind tab 13 is a copy of the Parole Authority decision dated 17 August 2018 refusing a review hearing and parole to the plaintiff. It is stated, inter alia, "Exceptional circumstances not established and reasons for refusal remain unaddressed".
9. The plaintiff submits the lack of reasons exposed in consideration of whether or not he has "exceptional circumstances" reveals error by the Parole Authority. Further, it is submitted that absent clear reasons there is no explanation of the "actual path of reasoning in sufficient detail to enable a court to see whether the opinion does or does not involve any error of law": (Wingfoot Australia Partners Pty Ltd v Kocak [2013] HCA 43; 252 CLR 480 at [55]).
10. Section 135(5) of the [CAS Act] permits the Parole Authority, if it finds exceptional circumstances, to make a parole order for a serious offender even where such was not recommended by the Review Council (Serious Offenders Review Council).
11. In the absence of reasons, it is unclear whether the Parole Authority has made an error upon which its judgment to deny parole was based. Therefore, the plaintiff is denied the capacity to examine if the ultimate conclusion of the decision maker involves an "evaluative judgment, it may well not be practicable to provide a detailed articulation as to how specified (and conflicting) factors have been weighed in the balance": (Public Service Association and Professional Officers' Association Amalgamated Union (NSW) v Secretary of the Treasury [2014] NSWCA 112 at [46] per Bason JA, … (quoted by Beech-Jones J in BVT v Office of Children's Guardian [2017] NSWSC 1763 at [99]-[101]).
[29]
CONCLUSION
In the circumstances, the further amended summons should be dismissed. Upon the basis that costs follow the event, in the absence of any other consideration that might alter that approach, the fourth defendant, the Attorney General, should be granted costs on an ordinary basis, as against the plaintiff, with no order for costs for the second and third defendants given their submitting appearances. The position of the first defendant is less clear. In the result, I will reserve costs but make provision for the filing of consent orders as to costs if that position applies.
[30]
ORDERS
The Court makes the following orders:
1. The further amended summons is dismissed.
2. Costs are reserved.
3. In the event of an agreement being reached as to an order for costs, the parties have liberty to file short minutes of order reflecting the same within 7 days of the publication of this judgment. The orders shall be dealt with administratively in Chambers.
4. In the event of a dispute as to costs, the parties should submit a program for the resolution of issues as to costs within 7 days of the publication of this judgment.
[31]
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 2020
Parties
Applicant/Plaintiff:
Mawas
Respondent/Defendant:
Commissioner of Corrective Services New South Wales
Legislation Cited (6)
Crimes (Administration and Sentences) Regulation 2014(NSW)
The further amended summons was dismissed; costs were reserved, with directions for agreed costs orders or a costs-resolution program to be filed within seven days, as applicable.
Mawas v Commissioner of Corrective Services New South Wales [2020] NSWSC 319 | Case summary | Zoe
Subdivision 3 of Part 6 is titled: "Serious offenders". Sections 144 and 146 relevantly concern the formulation of the Parole Authority's "initial intention" and the provision of "notice" with respect to a parole order for a serious offender. They are extracted below:
144 Formulation of Parole Authority's initial intention
On or immediately after giving its preliminary consideration as to whether or not a serious offender should be released on parole, the Parole Authority must formulate and record its initial intention either -
(a) to make a parole order in relation to the offender, or
(b) not to make such a parole order.
146 Notice to serious offender of intention to refuse parole
(1) As soon as practicable after forming an initial intention not to make a parole order for a serious offender, the Parole Authority -
(a) must give notice of its intention to the offender, and
(b) must determine whether, in relation to any reconsideration of the matter -
(i) there will be a hearing, whether or not the offender requests a hearing, or
(ii) there will be a hearing only if the offender requests a hearing and the Parole Authority is satisfied that a hearing is warranted.
(2) The notice must inform the offender of the following matters -
(a) that the Parole Authority's initial intention is not to make a parole order in relation to the offender,
(b) that the offender may apply to the Parole Authority for the matter to be reconsidered,
(c) that, if the offender makes such an application -
(i) there will be a hearing, whether or not the offender requests a hearing, or
(ii) there will be a hearing only if the offender requests a hearing and the Parole Authority is satisfied that a hearing is warranted,
(d) that the Parole Authority will take into account any submissions by the offender when making its final decision on the matter.
(3) The notice -
(a) must indicate the address to which such an application should be sent, and the date by which such an application must be made, and
(b) subject to section 194, must be accompanied by copies of the reports and other documents intended to be used by the Parole Authority in making its final decision.
(4) An application by an offender under this section -
(a) may be accompanied by written submissions in support of the application, and
(b) if the notice to the offender states that there will be a hearing only if the application requests a hearing, may request a hearing.
(5) If there is to be a hearing, the Parole Authority -
(a) must set a date (occurring as soon as practicable) on which the hearing will be conducted, and
(b) must give notice to the Commissioner, the offender and, subject to and in accordance with the regulations, to those victims of the offender (if any) whose names are recorded in the Victims Register, of the date, time and place for the hearing.
(6) The notice to a victim under subsection (5) (b) must include the following information -
(a) that the Parole Authority's initial intention is not to make a parole order,
(b) that there will be a hearing for the purpose of reconsidering the matter,
(c) that, following the hearing, the Parole Authority could change its intention,
(d) that the victim will be entitled to make submissions at the hearing as to whether or not the offender should be released on parole,
(e) that other submissions may be made at the hearing by the State and by the offender.
The "policy" relied upon by the plaintiff in ground 8 concerned the timeframe guidelines for recommending progressions in an offender's security classification by the Commissioner. Those guidelines are set out in a document issued by Corrective Services NSW titled "Offender Classification and Case Management Policy and Procedures Manual" (which shall hereinafter be referred to as "the policy"). In speaking of the functions of the Review Council, the policy referred to the additional functions of the Review Council:
(1) For the purposes of section 197 of the Act, the functions of the Review Council include the provision, at the request of the Commissioner, of reports, advice and recommendations to the Commissioner with respect to:
a. The management of Serious Offenders, and
b. The probability to that a Serious Offender
i. Who is serving an existing life sentence, and
ii. Who has applied for a local leave permit,
Will be fit to be released on parole at the time the Council expects to advise the Parole Authority about release on parole (assuming the serious offender satisfactorily completes a pre-release development program to which the application relates of at least 12 months or other relevant period.
The policy also referred to the Review Council and Review Council Sub-Committees, at para 18.1.3, and stated:
The SORC refers to both a statutory body responsible for advising the Commissioner on the management of serious offenders as well as advising the Commissioner on specific management matters relating to any group of inmate referred to the SORC by the Commissioner. Currently there are three (3) sub-committees which have been so formed and which are not necessarily related to serious offenders, noting, however, that Clause 14 of the Crimes (Administration of Sentences Regulation 2014 requires the Commissioner to consider advice of the SORC when considering an 'E' classification cease.
Further, as to the functions of the Review Council, the policy stated (at para 18.1.5):
The main functions of the Council are to make recommendations to the Commissioner on the management of serious offenders and extreme high and high security inmates. It also makes recommendations to the Commissioner on the reduction in classification when public interest inmates apply for escorted or unescorted leave or for external work, programs or sporting activities and also makes recommendations on classification when escapees apply to have 'E' classification cease.
Under the heading, "Commissioner's Time-Frame Guidelines for Consideration for Progression in Classification", the policy recorded:
The Commissioner has set time-frame guidelines below to be used when considering progression in classification for serious offenders. Progression outside these guidelines may only be considered in special/exceptional circumstances. Special/exceptional circumstances must be clearly articulated.
There then appears a table referring to classification progression from "A2-B" to "C2-C3" (with progression over time within that classification).
The plaintiff made a two page submission to the Parole Authority on 14 August 2018. In that submission, it was contended, inter alia, that the plaintiff "ought to be granted an opportunity to be heard and make submissions" on various matters identified, including, "the existence of exceptional circumstances justifying a release on parole".
In summary, the defendants made the following submissions as to this ground:
1. It was accepted that the Review Council recorded that the plaintiff was yet to participate in any meaningful C2 off activity, let alone acquire approval for and participation in "C3 external leave programs". That was factually correct at the time of the Review Council decision. In coming to that view, it was submitted, the Review Council did not apply any policy - it was simply a statement of facts (as they stood at the time).
2. The previous decisions of the Review Council, regarding the plaintiff's classification, which were referred to by the plaintiff, predate the Review Council decision for which judicial review is being sought. With grounds 1 to 7 abandoned, those decisions are no longer before the Court for review. Review was not sought of the earlier classification decisions at that time, with the effect that by the time the Review Council was reviewing for parole, those decisions were in place. It was contended that the classifications were "factual matters" as opposed to "policy" that the Review Council itself was applying.
3. A review of the report, accompanying the Review Council decision, evidences that the Review Council considered all the matters which it was required to consider pursuant to s 198(2A) of the CAS Act. This is not, as was contended by the plaintiff, a typical "Drake-style" case of an inflexible application of policy. There was no complaint, and the plaintiff accepted, that the Review Council was required to consider the plaintiff's classification history under s 198(2A)(b) of the CAS Act,.
4. The report does not sustain the plaintiff's argument that the Review Council "did not genuinely consider the merits of [the plaintiff's] application". In any event, as Basten JA noted in Swift v SAS Trustee Corporation [2010] NSWCA 182 at [45], "[w]here a decision-maker does address the claim, by reference to the correct power, asking whether he or she did so 'properly' or 'genuinely', or 'realistically' may be taken, inappropriately, as an invitation to assess the correctness of the result, rather than the legality of the process".
As to ground 11, the defendants submitted that matters of "undue weight" go to the merits of the decision of the Review Council decision and are not subject to judicial review. Reliance, in that respect, was placed upon judgment of Brennan J in Attorney-General (NSW) v Quin (1990) 170 CLR 1 at 35-36, where his Honour stated:
… the court has no jurisdiction simply to cure administrative injustice or error. The merits of administrative action, to the extent that they can be distinguished from legality, are for the repository of the relevant power and, subject to political control, for the respository alone.
The defendants also relied upon the authority of Minister for Immigration and Citizenship v SZJSS (2010) 243 CLR 184, where it was stated (at [33]): "The weighing of various pieces of evidence is a matter for the [decision maker]".
I accept the submissions advanced by the defendants that where there is no statutory requirement for the Parole Authority to hold a hearing, the opportunity for the plaintiff to identify exceptional circumstances was at the time of his application. The Parole Authority formed the intention to refuse parole which at least implicitly represented a finding that there were no exceptional circumstances.
In a case considering the meaning of "exceptional circumstances" under the Crimes Act 1900 (NSW), Hall J in R v NK [2016] NSWSC 498 at [26(4)] stated that the requirement of exceptional circumstances "imposes a high test". That was the threshold that the plaintiff had to meet.
If nothing was put before the Parole Authority to that level of threshold, then there can be no proper challenge as to the finding and, in consequence, the ultimate conclusion that parole was refused, upon the basis that exceptional circumstances were not established.
To the extent the grounds relate to the decision not to hold a review hearing, that challenge must also fail. This is because a review hearing was not required to be held where no exceptional circumstances were found. In such circumstances, there was no statutory obligation to hold a review hearing.
Grounds 12 and 13 are rejected.
I do not accept the plaintiff has established this ground.
The Parole Authority must cause a record of its reasons for all decisions that result in the refusing of parole to be kept in the minutes of its meetings: s 193C(1)(a) of the CAS Act. There is, however, no statutory requirement that these reasons be furnished to the relevant offender.
In any event, the reasons for the Parole Authority's decision made on 18 August 2018 by express reference to its "reasons as stated on 13 July 2018" and thus the reasons at that meeting, included all the matters that were required to be addressed under s 193C(2)(a) of the CAS Act. It would be artificial to read the 18 August 2018 decision record without the 13 July 2018 reasons; with those earlier reasons having been incorporated by express reference.
Nothing further was required by the Parole Authority where it had already considered the matters referred to in s 135 of the CAS Act, and where the plaintiff failed to establish any exceptional circumstances as required by s 135(5) of that Act upon being notified of the Parole Authority's intention. In this situation, it is difficult to envisage what more the Parole Authority could have said other than that exceptional circumstances had not been established. The plaintiff complained that there was no explanation for the "actual path of reasoning", but to the contrary, the path of reasoning is entirely discernible from the reasons: after considering matters in s 135 of the CAS Act and the Review Council's recommendation on 13 July 2018, the Parole Authority formed an intention to refuse parole, and where the plaintiff's submission failed to establish exceptional circumstances thereafter, the Parole Authority refused parole (as it had to).
In relation to the decision to refuse an oral hearing, it should again be kept in mind that s 143C(2) of the CAS Act does not entitle the plaintiff, as a serious offender, to make submissions to the Parole Authority, such that s 190(1) of the CAS Act did not apply. Unlike a decision to refuse parole, there is no statutory requirement for reasons for a decision to refuse an oral hearing.
In any event, the Parole Authority provided reasons which were that "Exceptional circumstances [were] not established and reasons for refusal remain unaddressed". Where the plaintiff's submissions did not persuade the Parole Authority to find exceptional circumstances, such that it could depart from the Review Council's recommendation, it is difficult to see what more the Parole Authority could have said in stating a negative proposition.
Thus, in relation to the decision on 18 August 2018, refusing parole, the Parole Authority satisfied its statutory obligations to provide reasons under s 193C of the CAS Act by incorporating its detailed reasons of 13 July 2018, which contained all of the necessary material under s 193C(2) of the CAS Act, and by confirming that exceptional circumstances had not been established. In relation to the decision refusing a review hearing, there was no statutory obligation to provide reasons.