Supreme Court of WA|2011-07-29|Before: Martin CJ

SUBOTIC -v- PRISONERS REVIEW BOARD [2011] WASC 177 (29 July 2011)

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

CITATION : SUBOTIC -v- PRISONERS REVIEW BOARD [2011] WASC 177

Administrative law - Judicial review - Decision by the Prisoners Review Board to refuse release on parole - Jurisdictional error - Irrelevant consideration - Wednesbury unreasonableness - Whether reliance on absence of a date for deportation - Whether inference may be drawn regarding consideration of circumstances of deportation - Adequacy of reasons - Sentence Administration Act 2003 (WA) s 5A, s 5B, s 115A

Miketic v Prisoners Review Board [2011] WASC 176

1 Mr Ilija Subotic (the applicant) has applied for the issue of a writ of certiorari quashing the decision of the Prisoners Review Board (the respondent) (the Board) to deny him parole, and a further order that the Board reconsider the question of his parole according to law. He seeks that relief on the ground that the Board took into account an irrelevant consideration - namely, that there was no confirmed date for his deportation to Serbia, alternatively that the Board failed to take account of relevant considerations being his circumstances in Serbia following his deportation, and in the further alternative, on the ground that the Board failed to discharge its obligation to provide him with an adequate statement of its reasons for refusing parole. Appropriately, the Board took no active part in these proceedings and filed a notice that it would abide their outcome, although it did provide limited discovery of documents as a consequence of an order which I made. Leave to intervene was granted to the Attorney General of Western Australia on the basis that he would act as contradictor. For the reasons which follow, I have concluded that none of the grounds upon which the applicant relies are made out, and that the application should be dismissed.

2 Mr Subotic's case was heard at the same time as the case brought by Mr Vladan Miketic. The facts of the two cases are similar in many respects, and the grounds upon which Mr Subotic relies are a subset of the grounds upon which Mr Miketic relied. Mr Miketic and Mr Subotic were represented by the same solicitors and counsel, and to the extent that their grounds were identical, the submissions advanced in support of those grounds, and in opposition by the intervener were identical.

3 My reasons for concluding that Mr Miketic's application should be dismissed will be published simultaneously with these reasons (Miketic v Prisoners Review Board [2011] WASC 176) (Miketic). To the extent that my reasons in that case are applicable to Mr Subotic's case, they should be taken to be incorporated by reference into these reasons. It is therefore only necessary to set out the particular facts of Mr Subotic's case for the purpose of identifying any relevant distinctions between those facts and the facts of Mr Miketic's case.

4 As in Mr Miketic's case, the findings of fact which follow are made on the basis of the evidence adduced which was not contentious on any relevant issue, and which took the form of affidavits and documents tendered without objection.

5 Mr Subotic was born in 1976 in what is now Serbia. In about June 2001 he travelled to Australia, gaining entry through the use of false documents.

6 On 1 May 2003, Mr Subotic was arrested in company with Mr Miketic at Perth airport. The circumstances of their arrest, and of the offence to which each pleaded guilty, the sentences imposed, their subsequent escape from legal custody in November 2005, their recapture in August 2006, and the additional sentences imposed following their recapture are all set out in my reasons in Miketic (at [4] - [7]). The date of Mr Subotic's eligibility for parole, and the date upon which his sentence is due to be completed are identical to those applicable to Mr Miketic. I made a similar order for discovery of documents by the Board to that which I make in Miketic. As in Miketic, counsel for Mr Subotic accepted that I should infer that documents discovered by the Board in this case and tendered in evidence were before it at the time it decided to refuse Mr Subotic parole (ts 70). I draw that inference. For convenience, I will refer to those documents by reference to the number which they bear in the index to that bundle of documents.

7 Document 17 is a form entitled 'Parole Plan' completed in manuscript by or on behalf of Mr Subotic. As I noted in Miketic, the form provides an opportunity for prisoners to advise the Board of their plans and circumstances in the event that they are released to parole. On the form Mr Subotic indicated that in the event that he was released, he would reside with his father in New Belgrade, and that he would receive support from his father, mother and sister in Serbia. In that portion of the form relating to employment following release, Mr Subotic indicated that he would be employed by 'LFH' Enterprise for Production Trade and Services.

8 Immediately under the place where Mr Subotic signed the form, the word 'deportation' is written in manuscript.

9 Also before the Board was a translation of a letter apparently written in Serbian on behalf of 'LFH' Enterprise for Production Trade and Services, confirming that Mr Subotic would be offered full-time employment upon his return to Serbia (Document 16).

10 Also before the Board was a document entitled 'Parole Review Checklist' which appears to have been generated by a computer (Document 11). The document sets out the various relevant dates relating to the sentences imposed upon Mr Subotic, and the circumstances of the offences giving rise to those sentences. Under the heading 'Deportation/Removal Issues' the document asks, 'Is the prisoner subject to Deportation/Removal order?', after which the form provides:

Yes

Comments: The Department of Immigration and Citizenship (DIAC) have identified Subotic as a deportee. At the completion of his custodial sentence, Subotic will be transferred to an Immigration Detention Centre until deportation.

11 The document recorded that Mr Subotic had not reported any medical, psychological or psychiatric issues, nor was there any record of any such issues on his file.

Release Plan

What is the prisoner's proposed address for release?

Subotic has provided the following address should he be released to parole:

(Address in New Belgrade)

Who resides at the proposed address? Comment on the nature of the relationship(s).

Subotic has indicated that he wishes to reside with his father, Mr Dusan Subotic, at the above address. Subotic appears to have a good relationship with his father. Records indicate that he telephones him on a daily basis.

If the prisoner requested a Remote Community Placement, has the corresponding regional CJS Centre been advised?

Not applicable.

Comments: The DIAC have identified Subotic as a deportee. At the completion of his custodial sentence, Subotic will be transferred to an Immigration Detention Centre until deportation.

Has this address been confirmed?

No.

Comments: Address details have not been confirmed as Subotic is an identified deportee. At the completion of his custodial sentence, Subotic will be transferred to an Immigration Detention Centre until deportation.

Are there any special travel arrangements required?

The Department of Immigration and Citizenship (DIAC) have identified Subotic as a deportee. At the completion of his custodial sentence, Subotic will be transferred to an Immigration Detention Centre until deportation.

Does the prisoner have proposed employment?

Yes

Comments: Subotic has presented a letter of employment from a company called 'LFH' who are based in Belgrade, Serbia. The company letter states that they deal in trade within Serbia and abroad.

Does the prisoner understand the obligations of parole and willing to comply?

No.

Comments: The obligations of Parole are not relevant to Subotic as he will be deported upon completion of his custodial sentence.

...

What is the officer's conclusion regarding release?

Subotic is a 34 year old serving a term of imprisonment for the above listed offences and becomes eligible for Parole on the 17/07/2010.

Subotic has no prior offences recorded in Western Australia or Interstate.

The Department of Immigration and Citizenship (DIAC) have identified Subotic as a deportee. At the completion of his custodial sentence, Subotic will be transferred to an Immigration Detention Centre until deportation.

Records indicate that Subotic has not had any previous Community Orders.

Subotic was assessed as not requiring participating in any rehabilitation program during his sentence.

Subotic has not been subject to any disciplinary convictions or subject to any loss of privileges or adverse incident reports during this sentence.

Subotic has been compliant within the prison environment and has good reports from both unit staff and his work instructor.

Parole is not a consideration as Subotic is confirmed as a Removee by DIAC.

Are there any special considerations that need to be applied?

Parole is not a consideration as Subotic is confirmed as a Removee by DIAC.

...

What is the Assistant Superintendent/Manager assessments conclusion?

Recommend that Subotic be release (sic) for the purpose of Deportation.

13 Also before the Board was a document entitled 'State Parole Assessment' prepared by an officer of the Department of Corrective Services (Document 10). That officer has sworn an affidavit in which she deposes to the circumstances in which she interviewed Mr Subotic prior to preparing the document. In her account, she relates a detailed interview which took approximately one hour and 15 minutes. However, an affidavit has been tendered from Mr Subotic in which he asserts that the interview was much shorter, and lasted only approximately five minutes. It is unnecessary to resolve that conflict in the evidence, as the only facts relevant to the grounds of review that have been pursued are the terms of the document presented to the Board. The circumstances of the interview which preceded the preparation of that document are irrelevant.

14 Document 10 deals with the circumstances of Mr Subotic's entry to Australia and the offences which he has committed in Australia. It reports a computer-generated assessment of the likelihood of Mr Subotic reoffending within the next two years, which is said to place him in the medium range. The author also reported:

Mr Subotic admits to making poor choices with regards to financial gain through illegal activities. It was evident that Mr Subotic has connections with people who are involved in the illicit drug trade, which he disclosed during the interview.

15 The document concludes with the following observations:

LIKELIHOOD OF COMPLYING WITH THE ORDER OBLIGATIONS AND REQUIREMENTS

It is noted that Mr Subotic is known to the Department of Immigration who have indicated that they will deport Mr Subotic upon his release, pending confirmation of his release date by the Prisoners Review Board. The Department of Immigration have also indicated that they may consider granting Mr Subotic a temporary visa to make his own departure arrangements.

It is a current observation of the writer that Mr Subotic may be a flight risk should he be required to make his own travel arrangements.

OTHER CONSIDERATIONS

Accommodation and Community Support

Mr Subotic has no proposed accommodation within Australia. Discussion held with the Department of Immigration indicated that he will return to his father's residence in Serbia immediately upon release.

No consideration for alternative accommodation has been sourced for Mr Subotic and the writer concedes that written information from the Department of Immigration has resulted in legal documents being obtained with the intent to coordinate Mr Subotic's immediate removal from Casuarina Prison.

Employment

Mr Subotic is classified as an illegal immigrant therefore legislation prohihits him from being employed within Australia.

Issues that May Impact Order Completion and Compromise Community Safety

Mr Subotic has demonstrated a good understanding of the justice system and has established reasons for wanting to return to Serbia. Mr Subotic is concerned about the care of his aging father and would like to return to his country of origin as soon as possible. It is noted that he does not have any family or social supports available to him within Australia which raises concern regarding his possible release in this country. His record of escape from a custodial institution supports the risk factors associated with accommodating Mr Subotic in Australia.

Mr Subotic would not be deemed suitable for consideration for a Visa due to his current offences.

RISK ASSESSMENT

Mr Subotic reports that he participated in the offence of trafficking cocaine to improve his financial situation. Given the nature of Mr Subotic's offences and his possible links to undesirable peers, the Immigration Department has determined that Mr Subotic may present as a flight risk. Arrangements are being made by the Immigration Department to deport Mr Subotic from Casuarina Prison when his release date is determined.

RECOMMENDATION

In light of the above information, release to parole for the purpose of facilitating deportation is supported.

16 The Board considered the question of whether or not Mr Subotic should be granted parole at its meeting on 16 June 2010. It was decided to refuse to grant Mr Subotic parole. A letter was prepared on behalf of the Board and signed by the registrar of the Board dated 16 June 2010, addressed to Mr Subotic, advising of the Board's decision, and of the reasons for that decision (Document 8). The reasons given are precisely identical to the reasons given by the Board to Mr Miketic: see Miketic [22]. Accordingly, they include the following:

Overseas court history which includes violence indicates you are a risk to the community safety.

17 This assertion seems curious, as there does not appear to have been any material before the Board which would have justified it - at least not in the documents tendered in evidence. It may be that the assertion is a mistaken reference to the material that was before the Board relating to Mr Miketic. At all events, nothing turns upon it, as in a subsequent letter to the Board to which I will refer (Document 6), Mr Subotic concedes that he had a conviction as a juvenile that could be classed as 'violent', and no issue has been taken with respect to that aspect of the Board's reasons.

18 The Department of Immigration and Citizenship wrote to Mr Subotic by letter dated 21 June 2010 (Document 7). The letter was in the following terms:

Once the Department of Immigration and Citizenship (DIAC) have been advised by the Prisoners Review Board of Western Australia of your expected Parole date we will contact the Serbian Embassy in Canberra, requesting that they issue you with a travel document to facilitate your return to Serbia. Please note that our department has already made contact with the Serbian Embassy and they will issue you with the travel document upon our request.

In addition to this, our department will make the appropriate travel bookings and arrangements to facilitate your request for a voluntary return to Serbia from Perth.

If the Prisoners Review Board provides our department with sufficient notice we will attempt to book your flights to coincide with you being released straight from Casuarina Prison to the Perth International airport. If this is not possible you will be held in Immigration Detention until such time as you are required to board the flight.

Due to your escape from legal custody in 2006, you will be escorted by security escorts for your return to Serbia.

19 Mr Subotic wrote to the Board by a letter which is undated by which bears a stamp suggesting that it was received by the Board on 2 July 2010 (Document 6). The letter sought to appeal from the decision made to deny his parole, in part upon the basis of the information that had now been provided by the department in the letter which I have set out above. Mr Subotic wrote:

I hope the Board will understand given the reasons for denying release on parole (to deportation) will only be relevant if I where (sic) to remain in Western Australia, that my now confirmable removal from this country at first possible opportunity would make those reasons null and void, therefore placing no risk to the community and no risk of re-offending.

I would also like to make it clear that I am not in any way trying to contest my deportation and will consent to my immediate deportation back to Serbia.

...

I just ask that The Board look at my case and at least re-consider the decision to deny my release. I hope you will take into account that if granted parole I would only be escorted to the Perth Airport Detention Centre until my final return back to my home country.

20 By letter dated 9 July 2010 (Document 5), the Deputy Chairperson of the Board wrote to Mr Subotic advising that his request for review had been considered but dismissed on the basis that none of the matters raised in his letter fell within the grounds of review set out in s 115A of the Sentence Administration Act 2003 (WA) (the Act).

21 By letter dated 22 September 2010, solicitors acting on Mr Subotic's behalf sought a further review pursuant to s 115A of the Act, on various grounds, including grounds related to Mr Subotic's deportation following the grant of parole (Document 3).

22 By letter dated 29 September 2010 (Document 2), the Deputy Chairperson of the Board responded, advising that even though s 115A provided for only one review of the Board's decision, he was nevertheless prepared to consider the additional information provided in the letter from Mr Subotic's solicitors. However, he went on to advise that having considered the information provided, he concluded that there had not been a change in circumstances, with the result that he affirmed the earlier decision of the Board to refuse Mr Subotic parole.

23 These proceedings were commenced in early November 2010.

24 A comparison of the facts which I have found in this case, compared to the facts which I found in Miketic reveals only three differences which might be material:

(a) there is no suggestion that Mr Subotic was suffering from any physical or mental illness, whereas in Mr Miketic's case, there was a reference to his previous treatment for depression;

(b) there is no suggestion that Mr Subotic is wanted in respect of any outstanding charges in Serbia; and

(c) the terms in which the arrangements relating to Mr Subotic's deportation have been expressed are slightly different to those used in respect of Mr Miketic, because of the reference in one document to the possibility that Mr Subotic might be given a temporary visa in order to make his own departure arrangements.

25 Because there is no suggestion that Mr Subotic has ever suffered from depression, the grounds and argument advanced on behalf of Mr Miketic in relation to that issue in his case have not been advanced in Mr Subotic's case.

26 In Miketic, there was reference in the materials before the Board relating to the possibility that Mr Miketic may be wanted in respect of charges pending against him in Serbia. However, as I noted in that case, although some submissions were advanced in relation to that issue, there was no ground of review referring to it. Accordingly, no material difference between the two cases arises in this respect.

27 Turning to the reference in Document 10 (entitled 'State Parole Assessment') to the possibility that Mr Subotic might be granted a temporary visa in order to make his own departure arrangements, it is to be noted that this assertion stands in contrast to many other assertions in the documents which were before the Board to the effect that Mr Subotic would either be taken directly from the prison to his flight to Serbia following release to parole, or in the event of any delay, detained in immigration custody pending deportation. When the documents are viewed as a whole, it must have been clear to the Board that it was highly likely that Mr Subotic would be deported to Serbia shortly after his release to parole, and that he would most likely be detained in custody prior to his deportation. Accordingly, when the documents are viewed as a whole, it does not appear to me that there is any material difference between the circumstances of Mr Subotic's case and that of Mr Miketic in this respect.

28 The grounds advanced in support of Mr Subotic's application, and the arguments advanced in support, and in opposition to those grounds, are identical to those in Mr Miketic's case, save for the omission of any grounds referring to the suffering of depression. As there is no material difference between the factual circumstances of Mr Subotic's case and Mr Miketic's case in relation to those common grounds, the reasons I have given in Miketic can be taken to be incorporated by reference into these reasons without variation or amendment, save for the omission of any reference to issues relating to the suffering of depression or the possibility of charges pending in Serbia.

29 For those reasons, I conclude that Mr Subotic has failed to make out any of the grounds upon which he has relied to establish that the decision of the Board to refuse him parole was invalid. The order nisi should be discharged and these proceedings dismissed.

Administration Act 2003

Miketic v Prisoners Review Board

At a glance

Court

Decision date

Before

Catchwords

Source

Catchwords

Judgment (44 paragraphs)

SUBOTIC -v- PRISONERS REVIEW BOARD [2011] WASC 177 (29 July 2011)

Parties

Legislation Cited (1)