This is an application brought to the Supreme Court in the Duty List pursuant to s 155 of the Crimes (Administration of Sentences) Act 1999 (NSW) ("CASA") by the applicant, Mr Merkoreh. He has appeared for himself today, perfectly coherently and courteously.
Before I engage with the arguments of the parties, I propose to set out a reasonably extensive chronology of the background.
[2]
Background
Unless I am mistaken, the relevant events commence over seventeen years ago when (I believe in January 2004) there was a home invasion of some premises. Cannabis was being grown there, and there were some extremely serious injuries inflicted on the occupants. More than one of the female occupants was very gravely sexually assaulted.
The position of the applicant was that he pleaded guilty to some offences, there were some verdicts of guilty with regard to others, and there were also a number of verdicts of not guilty. The verdicts were returned on 26 June 2006.
The applicant had been in gaol for many months before that. Eventually his Honour Judge Ellis SC, on 28 August 2007, imposed a total head sentence of imprisonment for 20 years with a total non-parole period of 15 years, to date from 11 May 2004.
There were some results of that. The first was that the non-parole period expired on 10 May 2019, and the total head sentence will expire on 10 May 2024. Another result of that sentence having been imposed is that the applicant became a "serious offender" for the purposes of CASA. It also means that Mr Merkoreh has been in custody for almost exactly seventeen years.
On 12 March 2019 the State Parole Authority, ("the SPA"), indicated an intention to refuse Mr Merkoreh parole at the end of his non-parole period, which was approaching.
It did refuse parole on 3 May 2019. That meant that Mr Merkoreh's next parole review, in accordance with CASA, bearing in mind that he was a serious offender, would in the ordinary course occur a year later, in May 2020.
Again, in March 2020, the SPA expressed an intention to refuse parole.
On 9 April 2020, it did refuse parole again. In other words, by that stage the applicant had been refused parole at the end of his non-parole period, and also on the first anniversary of its expiry.
On 8 September 2020, the applicant sought an earlier review of his parole position on the basis that he had been subject to a manifest injustice. In a nutshell, my understanding of CASA is that the automatic statutory annual review can be brought forward if a manifest injustice is established: see s 143B. Even so, in the case of serious offenders, the circumstances in which that can occur are extremely limited.
The SPA convened on 25 September 2020. It decided to stand over the question of whether the parole should be reconsidered early, as it were, on the basis of manifest injustice until 8 January 2021, and called for some reports.
On 8 December 2020 the Serious Offenders Review Council ("SORC"), which by statute was involved in the care and consideration of the applicant, prepared a report that recommended against release. Submissions were received by the SPA, along with a separate report from Community Corrections.
The eventual result was that the SPA refused to conduct a manifest injustice hearing, in other words to bring a parole reconsideration forward. That was on 8 January 2021.
In the meantime, I believe the applicant lodged his application pursuant to s 155 of CASA in this Court.
To complete this chronological sketch, it seems that the SPA reconsidered his case on 12 March 2021, and has stood the matter over until 17 June 2021.
[3]
Submissions of applicant
I think the point is soundly made by the applicant that one might say that that is, on the one hand, only a little over two months away. On the other hand, every day that he spends in custody is painful. And one also appreciates that he might have expected that he might be released at the end of his non-parole period, which is getting on for two years ago.
Speaking more generally about the period of time that the applicant has spent in custody, he accepts that for a long time there were what I will call institutional problems in terms of his behaviour and conduct. But I accept what he has said; namely, that he spent years in maximum security, obviously, because of the length of his sentence, and in a sense his behaviour, even if it was negative, was a matter of "survival", to use his word.
He has also made the point, which I accept, that there has been a recent settling. He has also completed an anti-violence program which was residential (the VOTP), and he has kept that going by way of refreshers.
As well as that, at one stage there was talk of him living at a Community Offender Support Program (COSP), but he also retains the love and support of his wife after all these years, and his children. His point is that he has a home to go to in Maroubra, and he also has work to go to.
The sticking point here, I think, reflecting on the background that has led us to be here today, is that SORC and indirectly the SPA (which has so far accepted the recommendations of SORC), is of the view that, in light of the length of time this man has spent in custody, and in light of the fact that things did not go particularly well for quite some time, there should be a gradual, stepped reintroduction into the community. In particular, SORC has focused on works release as a very well established way of achieving that.
What happened last year is that the world was subject to a public health emergency unprecedented since World War II. Undoubtedly it was disruptive for billions of people, and in particular perhaps it was disruptive for people in prisons. For a while, I think it is fair to say, there was a fear that the virus could get completely out of control in the confined setting of a correctional centre. It is also well known that for a long time contact visits were completely prohibited for health reasons. I do not doubt that was extremely distressing to every single person in gaol and those on the outside who love them.
The particular effect that that had on the applicant is that again, as is well-known, the economy was very badly affected. Works release dried up, either because of businesses failing; or cutting back on staff; or indeed being concerned about taking new employees, especially perhaps those from gaol for health reasons.
Mr Merkoreh's position is that there was some sort of firm arrangement or informal "contract" in a sense between himself and SORC whereby, if he reached a particular classification, SORC would support his release.
Sitting here looking at a folder of papers, I am in no position to resolve that assertion. But I think that one can readily see from the most recent report of SORC that the position has been that he needs to do works release as a way to reintegrate, and that is an important part of SORC being happy to recommend his release to parole. But the objective reality is that for a long time works release has dried up, and it is only coming back "online" very gradually. If evidence is needed for that, it is to be found in the report of Ms Price, who speaks very highly of the applicant and simply explains that there is no work to be had.
[4]
Discussion
I think one can, with respect, soundly understand the distress and distraction that this state of affairs has caused to the applicant. I take as a compliment his respectful request for me to "do what is right", and try to stop spinning the vicious circle that he says he has been subject to, whereby: a statutory authority is saying that a precondition to his release being recommended is that he do something; he is ready, willing and able to do it; but for the time being at least, it just cannot be done.
I also think that to the extent that he has appeared for himself and come to the Supreme Court to try to cut that asserted vicious circle, one appreciates that if there are legal arguments placed against him that is not in any sense personally critical of him, in terms of the steps he has taken.
Even so, obviously as a judge it is incumbent upon me to apply the written law created by the State and Federal Parliaments as the repositories of democratic power in our country. It is obviously not open to me to decide things as I see fit personally, if my personal view happens to be contrary to the statutory structure that Parliament imposes.
[5]
Determination
I think Ms Heath of counsel, for the Attorney General intervening, has made some points that are legally sound in terms of the caution that I need to adopt here.
[6]
"False, misleading or irrelevant"
The first is that she said that the words themselves of s 155 of CASA are restricted indeed. The section is as follows:
155 Application to Supreme Court by offender
(1) If -
(a) the Parole Authority decides that an offender should not be released on parole, and
(b) the offender alleges that the decision of the Parole Authority has been made on the basis of false, misleading or irrelevant information, the offender may, in accordance with rules of court, apply to the Supreme Court for a direction to be given to the Parole Authority as to whether the information was false, misleading or irrelevant.
(2) The Supreme Court may give such directions with respect to the information as it thinks fit.
(3) An application under this section is to be considered by the Supreme Court if and only if it is satisfied that the application is not an abuse of process and that there appears to be sufficient evidence to support the application.
(4) This section does not give the Supreme Court jurisdiction to consider the merits of the Parole Authority's decision otherwise than on the grounds referred to in subsection (1).
She said that that arises not just from the words of s 155 themselves, but also from the authorities that have interpreted it: Sutton v NSW State Parole Authority [2011] NSWSC 935 (Garling J); Naden v Parole Authority of New South Wales [2017] NSWSC 479 (Latham J); Harrison v NSW State Parole Authority [2019] NSWSC 1783 at [12] (Lonergan J).
It is noteworthy that she has not relied on s 155(3). I might add that in my own opinion there is no suggestion of Mr Merkoreh's application being an abuse of process. And I think on the evidence one can well understand why he has brought it.
I also record that his position is, well, if he needs to show something is "false, misleading or irrelevant", it is misleading as a matter of common sense for SORC to request him to do something that he simply cannot do.
I see the point in that. But I also think there is force in what Ms Heath has written, and said today, in terms of the difficulty in the applicant fitting what has happened here within the precise terms of s 155.
[7]
Not a refusal to grant parole
The second point made by Ms Heath is that what has happened here, although it is perhaps a fine distinction, is not that Mr Merkoreh has been refused parole recently, in accordance within s 155(1)(a) of CASA. What has happened is that the SPA has refused to consider parole, by bringing it forward on the basis of manifest injustice.
Her position is that those two things may be similar in effect, but they are different in terms of the structure of the statute. It is clear that s 155(1)(a) is not talking about a refusal to bring things forward on the basis of manifest injustice. It is talking about a substantive decision to refuse parole.
One can respectfully understand the applicant's exasperation with that kind of legalism - of course I am not saying that critically of Ms Heath. His position is simply that, however one analyses the statute, the ultimate position is that, day after day, he remains in custody.
Even so, I think that that argument also has force, and that s 155 applies to a substantive decision and not to the ancillary decision that has been made here.
[8]
Serious offenders in CASA and its Regulation
The third point that is made by the Attorney General is that the operative section of CASA which pertains here to a manifest injustice application is not 137B, which relates to non-serious offenders. It is in fact s 143B, which is to be found in Subdivision 3, and which clearly applies to serious offenders such as the applicant.
The simple point of Ms Heath is that the result of that structure is that one does not look therefore in the Crimes (Administration of Sentences) Regulation 2014 (NSW) to cl 223(1). One is compelled to look at cl 223(2). She submits that the intent of that sub-clause, and the effect of it, is that all roads lead to the need for there to be a report from SORC as to the appropriateness of the applicant's release to parole.
I see the force in that, and I accept the force in that. I think that the simple fact is that Parliament has decided to draw a sharp distinction in CASA and its Regulation between prisoners who are serious offenders and non-serious offenders. Parliament has decided to make it much more difficult for a serious offender to have his or her reconsideration of parole brought forward on the basis of manifest injustice, if SORC stands in the way of that occurring.
In short, I think that the three legal arguments of Ms Heath are soundly based and determinative.
[9]
Reflection on potential for unreasonableness
Even so, I think there is an aspect of this matter whereby, as counsel for the Attorney General herself in hypothetical discussion with me agreed, if the applicant were being asked to perform something, namely works release, which he was simply incapable of performing, because it was simply not reasonably available, there would simply come a point where, first, it would be incumbent upon the SPA to regard that state of affairs as an exceptional circumstance that should lead it to "overrule" the recommendation of SORC: see s 135 of CASA.
Secondly, I think that there would also surely come a point whereby such a position - where someone was being called upon to perform something that they were simply, through no fault of their own, incapable of performing - would fall foul of what I will call gross unreasonableness of outcome for the purposes of judicial review: Minister for Immigration and Citizenship v Li (2013) 249 CLR 332; [2013] HCA 18.
[10]
Logistics
I think that it would be useful for the transcript of today, and this judgment once it is revised, to be supplied to the secretary of the SPA. Of course, if the applicant were represented one would expect his solicitor or barrister to be in a position readily to do that, but he is not represented. And as the start of today's hearing shows, documents can very easily go astray in custody. And of course, the applicant does not have access to email.
I think the better course and the most convenient course is that this judgment and this transcript should be provided by my associate to the SPA, cc'd to each of the parties of course, when it is available. On reflection, unless anyone is bitterly opposed, I think it should perhaps for convenience be provided to the secretary of the Serious Offenders Review Council as well.
[The parties agreed.]
[11]
Costs
The other aspect is that Ms Heath has not sought costs even if she were successful, as she has been. I think that is soundly appropriate. In all of the circumstances I have set out, I agree with that position.
[12]
Orders
For all of those reasons, and in particular because of the, with respect, force of the statutory analysis of Ms Heath, the orders that I make with regard to this application are:
1. The application pursuant to s 155 of the Crimes (Administration of Sentences) Act 1999 (NSW) is dismissed.
2. No order as to costs.
[13]
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Decision last updated: 21 April 2021