Minister for Corrections v Berwyn Rees

Grounds for review

1. The following grounds for review of the decision of the SPA were notified and pressed by the plaintiff: Ground 1: The Second Defendant fell into jurisdictional error by failing to take into account a relevant consideration to which it was required to have regard by s. 135(3)(d) of the Crimes (Administration of Sentences) Act 1999, namely, the likely effect on any victim of the offender, and on any such victim's family of the offender being released on parole. Ground 2: In the alternative, there is an error of law on the face of the record in that the Second Defendant failed to take into account a relevant consideration to which it was required to have regard by s. 135(3)(d) of the Crimes (Administration of Sentences) Act 1999, namely, the likely effect on any victim of the offender, and on any such victim's family, of the offender being released on parole. Ground 3: There is an error of law on the face of the record in that the Second Defendant failed to comply with its obligation to give reasons pursuant to s. 193C(2)(a) of the Crimes (Administration of Sentences) Act 1999, by failing to address the issue specified in s. 135(3)(d) of that Act in its reasons for decision.

Submissions of the plaintiff

1. The propositions of the plaintiff upon which the claim for relief is founded are as follows.
2. First, pursuant to s 135 of the Act, Parliament has enumerated a number of "matters" that the SPA "must have regard to" in considering whether to grant parole to a person in the position of the defendant. The section in its entirety is as follows: Section 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. (Emphasis added by italics)
3. Secondly, s 193C of the Act in its entirety is as follows: (1) The Parole Authority must cause a record of its reasons for the following decisions under Parts 6 and 7 to be kept in the minutes of its meetings: (a) all decisions that result in the granting or refusing of a re-integration home detention order or parole, (b) all decisions that result in the revocation of an intensive correction order, re-integration home detention order or parole order, (c) all decisions that result in the refusal to revoke an intensive correction order following a recommendation referred to in section 164AA, (d) all decisions that result in the refusal to revoke a parole order: (i) following a submission made under section 141A (3) or 153 (3), or (ii) following a recommendation referred to in section 170 (3) or 170B (2), (e) all decisions that result in a refusal to revoke a re-integration home detention order following a recommendation referred to in section 168E (2), (f) any other decisions following a submission or recommendation by the Commissioner or the State. (2) In recording its reasons for a decision under Division 2 of Part 6 that an offender should or should not be released on parole, the Parole Authority must address: (a) the matters referred to in section 135, and (b) if the decision relates to a serious offender to whom section 154 applies, the matters referred to in that section, and (c) such other matters as the Parole Authority is, under this Act or the regulations, required to take into account in making the decision. (2A) In recording its reasons for a decision relating to re-integration home detention for the purposes of this section, the Parole Authority must address the matters that it is required to consider when making the decision. (3) Copies of any records made under this section are to be supplied to the Minister, the Commissioner and Community Corrections, as they may request. (4) Subject to this Act, a decision by the Parole Authority under Part 6 or 7 is final. (Emphasis added by italics)
4. In a nutshell, by way of the combined operation of ss 135(3)(d) and 193 of the Act, Parliament has mandated that, before the SPA could grant parole to the defendant, the SPA needed to address in its reasons the process whereby it had had regard to the likely effect on the families of all of the deceased victims of the crimes of the defendant of him being released to parole.
5. Thirdly, whilst one should not subject the reasons of any decision-maker, including the SPA, to examination with a "fine toothed comb", nevertheless in demonstrating that it had had regard to that matter, it was incumbent upon the SPA, as a legal requirement of its exercise of jurisdiction, to demonstrate "an active intellectual process" of engagement with that mandatory statutory factor.
6. Fourthly, there is no, or no sufficient, engagement in the written reasons of the SPA with the statutory factor in question that complies with that requirement.
7. Fifthly, it is arguably true that the SPA engaged with the factor at the time when it expressed its intention to grant parole. But that was an earlier stage of the statutory sequence that focused upon a different question, and that engagement cannot be relied upon in substitution for what was subsequently required.
8. Sixthly, it is true that the final paragraph of the summary document referred to the mandatory factor to some degree. But the heading of the summary document speaks for itself: it does not purport to be separate or supplemental reasons for the decision. It asserts that it is merely a summary of the reasons document.
9. Seventhly and finally, failure to take into account a mandatory statutory consideration itself constitutes jurisdictional error. In the alternative, if I were not satisfied that jurisdictional error had been established, I would certainly find that an error of law on the face of the record (namely, the reasons document) had occurred. In the further alternative, if I were not satisfied of that, and I were satisfied that the SPA had had regard to the mandatory factor, still and all I would assess the reasons provided with regard to that process as being inadequate.

Submissions of the defendant

1. As I have said, a process of refinement occurred at the hearing, and counsel for the defendant helpfully clarified that many legal propositions were not in dispute, as follows.
2. First, he accepted that, if I were satisfied that legal error falling short of jurisdictional error had been established, I would nevertheless not refuse to quash the decision and remit the matter on that basis. In other words, he drew no significant distinction in this context between jurisdictional and non-jurisdictional error.
3. Secondly, he accepted that the test derived from many cases with regard to the question of whether a decision-maker has taken into account a mandatory factor is whether there has been an active intellectual process of engagement with that factor: see the discussion of principle in Tickner v Chapman (1995) 133 ALR 226 at 238 and 240 and Bat Advocacy NSW Inc v Minister for Environment Protection, Heritage and the Arts (2011) 180 LGERA 99; [2011] FCAFC 59 at [44]; recently applied in this particular statutory context in Attorney-General (NSW) v Liew [2012] NSWSC 1223 at [74] and Minister for Corrections v Cawthray and the State Parole Authority [2015] NSWSC 1188 at [29].
4. Thirdly, he accepted that, even where (as here) there had been no submissions made by the then-opponent in the form of the State to the SPA about this factor, there nevertheless needed to be an engagement with it by the decision-maker.
5. Fourthly, he accepted that the factor to be found in s 135(3)(d) of the Act extracted above can go beyond the mere physical safety of the members of the families of the deceased persons.
6. On the other hand, the following submissions were made by counsel in resistance to the orders sought by the plaintiff.
7. First, he submitted that it was incumbent upon the plaintiff to demonstrate that the SPA had not had regard to the factor. He submitted that, with regard to that "factual" question, I should take into account that the SPA had indeed considered it at an earlier stage of the development of the procedure whereby the defendant was ultimately granted parole. I should also take into account not only the written submissions from members of the families of the deceased persons that were received by the SPA, but also the statements that were read aloud at the oral hearing. Finally, I should take into account the further fact that the Chairperson responded with a detailed explanation of the development of the legal state of affairs that troubled many of their authors.
8. Secondly, the conditions of parole - which included prohibitions on the defendant having any contact with the families of the deceased persons, or even entering parts of New South Wales with which they may be connected - demonstrated that the mandatory factor was reflected upon by the SPA. In other words, it was submitted that the imposition of the conditions themselves demonstrates an engagement with the mandatory factor.
9. Thirdly, the Act does not require that all of the reasons of the SPA be in the one place. Accordingly, the summary document is able to be, and should be, understood as part of the reasons of the SPA. And, clearly enough, the final paragraph of that document does engage with the suffering that would be occasioned to members of the families of the deceased persons if the defendant were to be granted parole, not just the question of their physical safety.
10. Fourthly, nor does the Act require that the many mandatory factors to be found in s 135 be dealt with seriatim or mechanistically. So long as they are taken into account, the SPA can explain the ways in which it has done so as it sees fit. Here, it was said, the mandatory factor may not have been dealt with explicitly or discreetly; reading the reasons document as a whole, however, one can see that, at the least indirectly or implicitly, it indeed had been the subject of consideration by the SPA.
11. Fifthly, the fact that the State had made no submissions about the matter now complained of could inform one's approach to the reasons; at the least, as to whether the mandatory factor had been sufficiently dealt with in all the circumstances.
12. Sixthly, it cannot be denied that the SPA did deal at length in the reasons document with the risk of reoffending by the defendant, a topic within which the mandatory factor now complained about by the plaintiff was subsumed.
13. Seventhly, I should resist the temptation to apply a fine toothed comb to the reasons of the SPA; they are comprehensive, and so long as the factor was engaged with, whether it can be identified explicitly as a separate topic within them is neither here nor there.
14. Eighthly and finally, counsel for the defendant queried contingently whether, even if I was satisfied that a legal error had been committed by the SPA, there would be any utility in me quashing its order and remitting the matter for further hearing. That was on the simple basis that it is difficult to accept, in all of the circumstances of this case, that subsequent explicit, detailed, written engagement by the SPA with the factor in question could make any difference to its decision.

Determination

1. In my opinion, the plaintiff has failed to establish that the SPA neglected to have regard to the mandatory factor, in the sense that that phrase is used in common parlance. As a matter of objective fact, I think it almost inconceivable that it was overlooked. I say that chiefly because of: what appears in the summary document; the reading out loud of the statements of the family members; the explanation in response thereto of the Chairman; and the fact that this is a significant factor that is surely addressed, as a matter of administrative reality, very frequently indeed by the SPA.
2. But that is not the end of the matter. In accordance with the many authorities noted above, the parties were agreed that there needed to be an active intellectual engagement demonstrated by the SPA with regard to this particular factor.
3. My own view is that the factor in question is not to be understood as limited to simple questions of the physical safety of the families of the deceased persons. It must also encompass, as a matter of statutory construction of the subparagraph in the context of s 135 and the whole Act, the psychological or emotional effects on the family members if the defendant were to be released on parole. And there was certainly material with regard to that topic in the written submissions, and the documents read aloud, of the family members.
4. In my respectful opinion, the necessary level of engagement with the mandatory factor, broadly understood in that way, is not demonstrated in any of the material placed before me, even if one takes an expansive view of what constitutes the reasons of the SPA.
5. As for the consideration given to the topic at the earlier stage, I accept the submission of the plaintiff that, whilst not to be disregarded entirely, that cannot operate in substitution for what was required at the relevant stage of the process; that is, at the time of the decision actually to grant parole.
6. In short, I respectfully consider that the plaintiff has demonstrated that a mandatory factor was not the subject of active intellectual engagement by the SPA. The question of the emotional or psychological effect upon the members of the families of the deceased persons is not, or not sufficiently, "grappled with" or "balanced up" in the reasons of the SPA for the decision to grant parole.
7. If I be wrong in that assessment, for the same straightforward reasons, I would nevertheless intervene on the basis of ground three: if there has been the necessary process of engagement, I respectfully think that the reasons explaining it are inadequate.
8. That leaves the question of the utility of making the orders sought. If I were to remit this matter, and the decision-maker were to provide reasons clearly demonstrating a process of intellectual engagement with the effects on the members of the families of the deceased of a release to parole, one may query whether the SPA would come to a different decision, bearing in mind the fact that the defendant has been incarcerated for a period approaching four decades; is physically enfeebled to a degree; has been the subject of a plethora of psychological and psychiatric assessments over many years; has enjoyed day release for quite some time; and the proposal is that he live in reasonably rigorously supported accommodation on release.
9. But in my opinion, assessment of that factual question is not part of my task. And legal error having been established, I am not satisfied that I should refuse to make the orders sought on the basis that they would be futile on any legal basis: see Hossain v Minister For Immigration And Border Protection (2018) ALJR 780; [2018] HCA 34 at [74], and R v Commonwealth Court of Conciliation & Arbitration; Ex parte Ozone Theatres (Aust) Ltd (1949) 78 CLR 389; [1949] HCA 33 at [7].

Costs

1. It was made clear by counsel for the plaintiff that, if she were to succeed, her client did not seek an order for costs from the defendant of the proceedings before me.

Orders

1. In accordance with the above analysis, I make the following orders derived from the summons of the plaintiff: 1. Pursuant to s 69 of the Supreme Court Act 1970 (NSW), relief in the nature of certiorari quashing the decision of the Second Defendant of 21 February 2019 to release the First Defendant on parole; and 2. Pursuant to s 69 of the Supreme Court Act 1970 (NSW), relief in the nature of mandamus directing that the Second Defendant determine the First Defendant's application for parole in accordance with the law.

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: 23 May 2019