McKenzie v Attorney General for New South Wales

Court of Appeal (NSW)|2024-06-18|Before: Ward P, Campbell J

[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]

Statutory scheme

In order to explain the nature of the proceeding before the primary judge, it is convenient to set out in full the statutory provision under which the Authority operated, being s 170 of the Crimes (Administration of Sentences) Act 1999 (NSW) (the Act) as it stood on 2 September 2016, being the date the revocation order was made. 170 Revocation of parole order (1) The Parole Authority may make an order (a revocation order) revoking a parole order: (a) if it is satisfied that the offender has failed to comply with the offender's obligations under the order, or (a1) in the case of an offender who has been granted parole on the grounds that he or she is in imminent danger of dying or is incapacitated to the extent that he or she no longer has the physical ability to do harm to any person, as referred to in section 154A (3), if it is satisfied that those grounds no longer exist, or (a2) in the case of an offender who has been granted parole under section 160 on the grounds that he or she is dying or because of exceptional extenuating circumstances, if it is satisfied that those grounds or circumstances no longer exist, or (b) if the offender fails to appear before the Parole Authority when called on to do so under section 180, or (c) if the offender has applied for the order to be revoked, and may do so either on its own initiative or on the recommendation of the Commissioner or a probation and parole officer. (2) A revocation order may be made: (a) whether or not the offender has been called on to appear before the Parole Authority, and (b) whether or not the Parole Authority has held an inquiry. (3) A revocation order must state the reason for which it is made. (4) If it is satisfied that the offender has failed to comply with the offender's obligations under a parole order but is not of the opinion that the order should be revoked, the Parole Authority may instead impose further conditions on the order, or vary any of the existing conditions of the order, in accordance with section 128.
This provision may be summarised as involving four limbs, namely, (i) the initiation of the process, (ii) the precondition to the power to revoke, (iii) the material which may be sufficient to engage the precondition, and (iv) the obligation of the Authority to act reasonably.
As to (i), it is apparent that there are three bases upon which the power of the Authority may be invoked. First, and perhaps most rarely, the offender may seek to have a parole order revoked: s 170(1)(c). Secondly, the Authority is entitled to invoke the power to make an order "on its own initiative". Thirdly, and no doubt most commonly, the authority's power may be invoked by the Commissioner of Corrective Services or a probation and parole officer (also known as a community corrections officer) making a recommendation to the Authority that parole be revoked. In the present case, the process was invoked by a recommendation of the officer who lodged the breach report. The relevance of that fact, which was not itself in dispute, will be identified shortly.
As to (ii), it was common ground that a precondition to the making of a revocation order, at least in so far as s 170(1)(a) was concerned, was the satisfaction of the Authority as to the criterion specified in that provision. That state of satisfaction was described before the primary judge as a "subjective jurisdictional fact". Ground 2 alleged that the primary judge erred in finding that the Authority was in fact satisfied as to the relevant criterion, namely that the applicant had "failed to comply with [his] obligations under the [parole] order".
If it were to be dealt with in its logical order, ground 2 would be addressed first. This was not the order in which the submissions addressed the question, but that was because the real issue was that identified in ground 1. To the extent that there was a separate factual issue involved in ground 2, it would not be a matter warranting a grant of leave to appeal if it were taken in isolation.
As to (iii), quite separately from the existence of a recommendation that parole be revoked, the Authority must have before it some material to form the basis of a state of satisfaction as to the criterion of failure to comply with a condition of parole under s 170(1)(a). The legal issue sought to be raised by ground 1 was based on the proposition that the primary judge treated the "recommendation" of the officer as a sufficient basis for achieving a state of satisfaction as to failure to comply with a parole obligation. It is, however, reasonably clear that neither the Authority nor the primary judge made that error. The material relied upon by the Authority was the breach report prepared by the officer, which accompanied the recommendation. That, in particular passages noted below, the primary judge elided the distinction between the recommendation and the contents of the breach report does not provide a basis for concluding that he misunderstood the nature of the statutory criterion.
As to (iv), it is undoubtedly a requirement imposed by the general law that the power to revoke a parole order not be exercised arbitrarily, irrationally, or legally unreasonably. That does not mean that, if a court thinks that it would have been unreasonable to make the order, it was invalid; rather the court must be persuaded that it was not open to the Authority (acting reasonably) to form the view that such an order was available in the circumstances. This is a stringent standard, and, as will appear, the primary judge did not err in concluding that it had not been met.

Approach to leave application

The approach taken by the Court to applications for leave to appeal is not in doubt and has been restated on numerous occasions. In Secretary, Department of Family and Community Services v Smith, [2] Gleeson JA stated: "28 Only if the decision is attended with sufficient doubt to warrant its reconsideration on appeal will leave be granted: Sharpe v Heywood [2013] NSWCA 192 at [34]; McMahon v Permanent Custodians Ltd [2013] NSWCA 275 at [57]. Ordinarily, it is only appropriate to grant leave where there is an issue of principle, a question of general public importance, or an injustice which is reasonably clear, in the sense of going beyond what is merely arguable: Jaycar Pty Ltd v Lombardo [2011] NSWCA 284 at [46]. It is well established that it is not sufficient merely to show that the trial judge was arguably wrong: Be Financial Pty Ltd as Trustee for Be Financial Operations Trust v Das [2012] NSWCA 164 at [32]."
The various elements of this approach will call for greater or lesser weight in a particular case or statutory context. The different factors, although stated in the alternative, will commonly overlap and may reinforce each other. Generally, the possibility of error on the part of the court below must go beyond that which is merely arguable. On the other hand, there may be an issue of principle, but the particular case may provide an inappropriate vehicle for its resolution.
In the present case, the applicant relied upon a two-fold test, namely that (i) the primary judge's error involved an issue of statutory construction and therefore an error of principle, and (ii) the result was an injustice to the applicant in a matter involving the liberty of the individual.
As to (i), issues of statutory construction do not necessarily involve issues of principle. It must be shown that there was an apparent error in the reasoning below which is more than merely arguable. As to (ii), although it may be accepted that revocation of parole infringes the liberty of the offender, so did the imposition of a sentence of imprisonment. It does not follow that in a particular case there is an issue of principle, or that the correct result has any wider significance than the liberty of the applicant. That is not to say the liberty of the individual is not significant, but rather to recognise that the power to determine whether he or she remains at liberty is vested in the Authority and not in the court. Although counsel for the applicant referred to the various purposes of the Act, including to provide for "the rehabilitation of offenders with a view to their reintegration into the general community" (s 2A(1)(d)), that does not mean that offenders subject to a sentence of imprisonment and enjoying qualified liberty, should not be returned to custody in circumstances where the Authority is satisfied that there has been a significant breach of a condition.

Proposed ground 1

To support the contention that the primary judge misunderstood the operation of s 170(1), the applicant relied upon three passages in which it was said the judge conflated the existence of a recommendation with satisfaction of the criterion, namely breach of a condition of parole. The first passage occurred as the final sentence in the following paragraph (italicised), but to understand it in context, it is desirable to set out the whole paragraph: "43 I accept the argument of the Attorney General that the pre-condition to the exercise of the Revocation Power in s 170(1)(a) is the existence of a subjective state of mind on the part of the [Authority]. This subjective jurisdictional fact is not whether it had been objectively established that the plaintiff had failed to comply with his parole order obligations but whether the [Authority] formed that state of mind. The [Authority's] satisfaction involved an evaluative judgment formed on the basis of limited materials. The statutory state of satisfaction that an offender had failed to comply with the parole order is legally able to be formed on no more than the recommendation of CCO Webster, which recommendation the evidence before me establishes had been made."
This passage, the applicant contended, should be read as if the Authority had delegated to the officer the formation of the state of satisfaction. That was because, it was submitted, it was the recommendation and not the content of the breach report which was the subject of the judge's observation.
The submission cannot be accepted as arguable when the passage is read in context, both by reference to the rest of the paragraph and to what followed. In the immediately succeeding paragraphs, the primary judge discussed the circumstances in which a court might review a subjective state of satisfaction, as discussed by Gibbs J in Buck v Bavone [3] and by Dixon J in Avon Downs Pty Ltd v Federal Commissioner of Taxation. [4] The next paragraph then read: "46 It is important to bear in mind that the only material that the SPA had available to it and upon which it made its decision to revoke was CCO Webster's breach report. It set out the information available to CCO Webster that police had informed him that Mr McKenzie would be charged with contravening the ADVO for the protection of the victim of his offending and one of her children and set out the facts that had been relayed to him by the police officer underpinning the alleged offending. Mr Webster recommended that the parole order be revoked, and his recommendation was supported by his superior. This was legally sufficient for the satisfaction of the subjective jurisdictional fact established by s 170(1)(a). I am not persuaded that I should draw the inference that the SPA was not 'satisfied' as required by s 170. I am of the view that despite the absence of an express statement to that effect in the revocation order, the only persuasive inference from the content of it, the content of the notice to the general manager of Glen Innes Correctional Centre and the notice to and the form of notice to Mr McKenzie is that the SPA was subjectively satisfied that Mr McKenzie had failed to comply with his obligations on the basis of the recommendation of CCO Webster and Ms Porter."
Although the first sentence set out above referred to the officer's "breach report", and the last sentence referred to the "recommendation" of the officer (and his superior), it is clear that the sufficiency of the state of satisfaction of the Authority was based upon the material contained in the breach report/recommendation, and not the mere existence of the recommendation.
The second passage upon which the applicant relied appeared in the following paragraph [47], where the judge referred to the Authority being authorised to act "on the basis of the recommendation of CCO Webster alone and without more." However, that passage was dealing with a submission that the Authority acted unfairly because the applicant had not been asked to respond to the allegation. The judge rejected the submission, observing that pursuant to s 170(2) the Authority was entitled to act without calling on the offender to appear, and without holding an inquiry. In the following paragraph [48] the judge addressed a separate complaint that the breach report did not involve a statement by the officer as to his state of satisfaction that the applicant was in breach of the parole order, and the revocation order itself did not state that the Authority had formed the relevant state of satisfaction. The judge was satisfied that the Authority had formed the necessary state of satisfaction, on the evidence before him, and that, "were it legally necessary" he was satisfied that the officer's use of the expression "it appears" implied that he too was satisfied there had been a breach: [48]-[50]. Reading these passages together, no error is discernible.
Finally, in discussing "legal unreasonableness", the applicant pointed to the last sentence in the following paragraph (italicised) as confirming the elision: "69 It was also argued on behalf of the plaintiff that the material before the [Authority] when it made the revocation order was legally insufficient to satisfy a reasonable authority that Mr McKenzie had breached his parole. It was said the material was not capable of rising above the level specified in s 169 of 'reason to suspect' that he had failed to comply with his obligations under the parole order and that the only reasonable exercise of power was to decide to conduct an inquiry into the matter. At the risk of repeating myself even further, I am unpersuaded by this argument, especially as s 170(1)(a) authorised the [Authority] to make the revocation order on the basis of CCO Webster's recommendation contained in his breach report."
At [14], the primary judge set out three conditions to which the parole order was subject, namely that the offender, (2) "must not, while on release, commit any offence", (3) "must, while on release on parole, adapt to normal community life", and (16) "must not contact, communicate with, watch, stalk, harass or intimidate Melanie Hammond". The breach report contained allegations set out in full by the primary judge, namely that whilst Ms Hammond was with her children watching her husband play rugby, she saw the applicant "when he was approximately 10 metres from her, looking and walking towards her… [so that he] passed within one metre from where she was standing causing her to feel intimated". [5] The passages relied on by the applicant as revealing error must be understood in the light of these undisputed facts. There is no substance in the proposition that the primary judge considered the Authority had not formed its own view about the existence of a breach of parole, and that it had simply relied upon a "recommendation" by an officer.
No complaint was made that, if the relevant precondition to the making of a revocation order were satisfied, the Authority erred in the exercise of its discretion in making the order. That is understandable when, within months of his release on parole, the man who had wounded her with intent to cause grievous bodily harm had, apparently deliberately, seen her at a sports ground and walked towards her, looking at her and passing within a metre of her.

Proposed grounds 2 and 3

Ground 2, dealing with the state of satisfaction of the Authority, has been addressed. There was no basis for the contention that the primary judge either had not made a finding that the Authority reached the relevant state of satisfaction, or that, in any event, it was arguable that the Authority was not in fact satisfied as to there having been a breach of the parole conditions specified in the revocation order (which was not before this Court).
There remained a question as to whether the judge should have found the Authority's state of satisfaction to be legally unreasonable: ground 3. The primary judge noted the reference by Kiefel CJ in Minister for Immigration and Border Protection v SZVFW [6] to the joint judgment in Minister for Immigration and Citizenship v Li, [7] explaining that "a decision made in the exercise of a statutory power is unreasonable in a legal sense when it lacks an evident and intelligible justification". The Chief Justice further observed that the "test for unreasonableness is necessarily stringent". [8] Various passages in SZVFW noted that the standard of legal reasonableness, within which it is open to the decision-maker to determine for itself the justice of the case, will depend upon the scope, purpose and subject-matter of the statute conferring the relevant power. There is no suggestion that the primary judge misunderstood the relevant legal principles.
At its highest the contention appears to have been that the state of satisfaction required to engage the power to revoke a parole order must have involved more than merely having "reason to suspect" that there had been a breach of parole, because that test engages the power of the Authority to conduct an inquiry into the matter: s 169(1). There was no material to suggest that the Authority had no more than a suspicion, but the applicant sought to have the court draw an inference that it could have had no more than a reasonable suspicion, based on the report of the officer. As the primary judge correctly pointed out, the Authority was entitled to act upon hearsay reports and was not bound by the rules of evidence.
The question of legal unreasonableness is usually directed to the exercise of a discretionary power, rather than an exercise in fact-finding. As explained by Aronson, Groves and Weeks [9] (perhaps more definitively than judicial authority would warrant), legal unreasonableness "now applies not just to discretionary choices between outcomes …, but also to the processes by which decision-makers have declared whether they are 'satisfied' of requisite criteria". [10] The authors state, "[t]hat recognition was implicit in Li but explicit in SZVFW". For example, in SZVFW there was reference to an abuse of statutory power which is "not closed or limited by particular categories of conduct, process or outcome". [11]
It could not be convincingly argued that the contents of the breach report did not provide an adequate basis for the Authority's state of satisfaction. There was nothing irrational or bizarre about a conclusion based on that material, nor could it be said to lack "an evident and intelligible justification". The primary judge rejected the challenge to the subjective state of satisfaction of the Authority on the basis that it was legally unreasonable: he was correct to do so.

Conclusion

For these reasons, the application for leave to appeal was dismissed with costs.

Endnotes

McKenzie v Attorney General for New South Wales [2023] NSWSC 1639.
(2017) 95 NSWLR 597; [2017] NSWCA 206 (Macfarlan and Payne JJA agreeing).
(1976) 135 CLR 110 at 118-119; [1976] HCA 24.
(1949) 78 CLR 353 at 360; [1949] HCA 26.
Primary judgment at [15].
(2018) 264 CLR 541; [2018] HCA 30 (SZVFW) at [10].
(2013) 249 CLR 332 at [76]; [2013] HCA 18.
SZVFW at [11].
M Aronson, M Groves and G Weeks, Judicial Review of Administrative Action and Government Liability (7th ed, 2022, Lawbook Co).
Ibid, [6.30], p 275.
SZVFW at [81] (Nettle and Gordon JJ). 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: 20 June 2024

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