Plaintiff v First Defendant

2 The Originating Motion as filed sought relief in the nature of certiorari. The Amended Originating Motion added:

1. An Order that a write [sic] of habeas corpus issue, or alternatively, an Order directing the Second Defendant to release the Plaintiff, as a person restrained, from custody.

3 The grounds relied upon in the Amended Originating Motion are:

1. The Defendant erred, erred in law and/or committed jurisdictional error by cancelling the Plaintiff's parole.

1. That the Adult Parole Board's discretion to cancel the Plaintiff's parole extends to the protection of the community but not in the circumstances where the Parolee's actions are blameless in the alleged risk to the community; 2. The First Defendant alleges that the Plaintiff is merely the intended victim of acts of violence;

1. The Plaintiff submits that it is impermissible reasoning to impose custody in order to protect a prisoner or the community from the action of others.
2. The Defendant erred, erred in law and/or committed jurisdictional error by cancelling the Plaintiff's parole in circumstances that are unreasonable.

1. The Plaintiff contends that the decision to cancel his parole in the circumstances outlined is unreasonable. 2. The Plaintiff notes in the submissions of the First Respondent dated 25 July 2019 that the question of unreasonableness will be addressed in affidavit material to be supplied.

1. The Plaintiff will further address the issue of unreasonableness upon receipt of this affidavit material.

4 On 19 July 2018, the plaintiff was sentenced by his Honour Judge T Wraight in the County Court of Victoria to a total effective sentence of 3 years and 3 months and ordered to serve 2 years before he would be eligible for parole.[2] Five hundred and nineteen days were reckoned as a period of imprisonment already served under the sentence. It followed that the plaintiff was eligible for parole on or about 15 February 2019. On 5 March 2019, he was released on parole on conditions.

5 Although the plaintiff was required to live at a particular address, he changed that address with the authority of the Board. On the advice of Victoria Police, according to Ms Garde-Wilson, the plaintiff changed his address a total of five times. Those changes related to the safety of the plaintiff.

6 On 12 June 2019, the first defendant cancelled the plaintiff's parole under s 77(1) of the Corrections Act 1986 ('the Act') and issued a warrant for his arrest which was executed.

7 At her request, the first defendant provided Ms Garde-Wilson with reasons for the cancellation. The reasons are set out below:

The Board cancelled Mr Abdulrahim's parole under section 77(1) of the Corrections Act 1986. The Board had concluded that the risk to the community of Mr Abdulrahim remaining on parole had increased and outweighed the benefit to the community of Mr Abdulrahim remaining on parole, having regard to the requirement in section 73A of the Corrections Act 1986 for the Board to give paramount consideration to the safety and protection of the community in determining whether to cancel parole.

The power to cancel in section 77(1) of the Corrections Act 1986 does not depend on the existence of any breach by the prisoner of their parole conditions. In Mr Abdulrahim's case, information provided to the Board included that there have been three incidents since Mr Abdulrahim's release from custody in which it appears Mr Abdulrahim was the intended target of violence. These incidents were:

1. A drive by shooting in Brunswick where a number of rounds were shot into a premises close to Mr Abdulrahim's residence. The occupants of the premises and the neighbouring properties were put in considerable risk due to the incident.
2. A potential shooting occurred whilst Mr Abdulrahim's sister was driving a vehicle known to be driven by Mr Abdulrahim. Two males in another vehicle followed her and whilst beside her vehicle pointed a handgun at her. This incident put Mr Abdulrahim's sister at considerable risk of being shot by mistaken identity.

1. A shooting occurred at a house where the occupant indicated he was the cousin of Mr Abdulrahim. Four unknown offenders attended the address and three of these offenders fired shots into the premises narrowly missing occupants of the house.

1. Mr Abdulrahim has repeatedly changed address in an attempt to mitigate the risk; however, based on all of the information and advice provided to the Board, the Board has concluded that the risk to Mr Abdulrahim and to other members of the community is unacceptable and cannot adequately be mitigated if he were to remain on parole.[3]

8 In her affidavit, Ms Garde-Wilson further affirmed:

I am instructed that the matter referred to in paragraph a. was a shooting at a neighbouring property and is completely unrelated to the Plaintiff.

I am instructed that the Plaintiff has never driven his sister's vehicle and the said incident is without foundation. The sister has confirmed she reported a suspicious vehicle to 000 but not what is referred to in the correspondence .

The Applicant has no cousins or relatives whatsoever that have been the victim of a shooting as stated.

The Applicant has only moved places at the bequest of police and holds no concerns for his safety.[4]

9 The plaintiff had been on parole for about 3 months when his parole was cancelled.

10 The plaintiff will have served the whole of his sentence by about 19 April 2020. That is, he has about 9 months to serve on his sentence from now.

11 There is no suggestion that the plaintiff had not otherwise been satisfactorily completing his parole.

12 According to the Affidavit of Anita Lis, the Acting Chief Administrative Officer and Secretary of the Adult Parole Board:[5]

On 7 June 2019, the Board held two meetings to consider the plaintiff's parole. These meetings were convened due to information received by the Board in a CCS Risk and Compliance report (dated 7 June 2019) recommending the cancellation of the plaintiff's parole because the plaintiff, his family and the community were at risk of death or injury by shooting due to his presence in the community. This was highly confidential security information, which is subject to a claim of public interest immunity. The Board noted the information from CCS but decided to await further information before further considering cancelling the plaintiff's parole.

At a meeting of the Board on 12 June 2019, the Board considered a further CCS Risk and Compliance Report that referred to highly confidential security information, which is subject to a claim of public interest immunity (dated 12 June 2019).

The 12 June 2019 CCS Risk and Compliance Report indicated that the plaintiff's safety and the safety of his family in the community was of great concern, with multiple attempts on his and his family's lives having occurred since his release from prison. The report indicated that CCS had received credible information that the plaintiff was the intended target of the following:

• A drive by shooting on 10 March 2019 (five days after the plaintiff's release on parole) at 4 Barrow Street, Brunswick (the plaintiff was paroled to live at 6/2 Barrow Street, Brunswick);
• An attempted shooting of his sister, Natali Abdulrahim, on 23 May 2019; and
• A shooting at 3/176 Somerset Road, Campbellfield on 7 June 2019, the victims of which were described as his cousins.

The 12 June 2019 CCS Risk and Compliance Report recommended that the Board cancel the plaintiff's parole, based on the safety risk to him and to other members of the community and the inability of CCS to mitigate that risk.

On 12 June 2019, the Board decided to cancel the plaintiff's parole under section 77(1) of the Corrections Act 1986. The Board's notes of its decision were:

The Board has concluded that there is sufficient information linking you as a likely target of recent shootings, including 10/3/2019 and 7/6/2019, to require cancellation of your parole having regard to the Board's paramount consideration of the safety and protection of the community and the absence of a capacity to mitigate the risks to you and other members of the community if you were to remain on parole.[6]

13 It is also noted that, in the 'Record of Board Decision' exhibited by the defendants, the Board included under the dot point 'Reason':

Benefit to the community of the offender being on parole outweighed by the risk.[7]

14 It was submitted on behalf of the plaintiff that although the powers of the Board to both grant or cancel parole are not unfettered, reliance was placed on what Weinberg JA said in Mercorella v The Secretary to the Department of Justice[8]:

Although s 77(1) allows the Board, at any time before the end of the parole period, to cancel parole, it does so 'subject to this section'. Accordingly, the Board does not have, and so far as I am aware, never has had, an unfettered discretion to cancel parole for any reason, at its whim. Cancellation of parole is a most serious matter. Wrongful cancellation of parole has always been recognised as a basis upon which habeas corpus would lie.

There are a number of examples of cases where courts have granted habeas corpus in circumstances where the parole authority is said to have acted unlawfully. Of course, the courts do not assume the role of the Board, which is the body upon whom the discretion to grant parole has been conferred. There is no entitlement to release until the Board has so directed. It is not for the Court to second guess the Board in that respect. Nonetheless, habeas corpus does lie where parole has been granted, and for some reason the prisoner was not released in accordance with the terms of a parole order, or where he has been released and now challenges the legality of termination of parole.[9]

15 It should be noted that Weinberg JA was dealing with a case of cancellation based upon alleged further offending and that other sub-sections, such as s 77(6) and 77(6A), fell for consideration. It does not follow that the 'subject to this section' fetter on the s 77(1) discretion can have much, if any, application in the present case.

16 It is not suggested that the cancellation of parole is a result of any of the circumstances otherwise covered under s 77, or any breach of terms and conditions pursuant to s 78C.

17 It follows that the cancellation pursuant to s 77 is founded on the Board's general obligations under the Act:

73A Safety and protection of the community paramount in parole decisions

The Board must give paramount consideration to the safety and protection of the community in determining whether to make or vary a parole order, cancel a prisoner's parole or revoke the cancellation of parole.

18 It was submitted on behalf of the plaintiff that although that section is expressed in very wide terms, it should not be interpreted as authorising cancellation of parole of a person who has not in any way breached his or her parole conditions. That is, that section did not confer on the Board the power to cancel parole in the plaintiff's case.

19 It was sought to support that argument by reference to R v Roadley.[10] Roadley[11] was a case where a term of imprisonment had been imposed, at least in part, for the protection of the community. The Court of Criminal Appeal rejected that as a proper basis for sentencing.[12] It was cited in general support of the proposition that in Victoria we have not generally accepted "protective custody" either for the community or the individual.

20 The plaintiff further submitted that the decision was unreasonable. It was submitted that because this was a discretionary decision it must be exercised reasonably.[13]

21 In this case, it is submitted by the plaintiff that the alleged factual underpinning of the decision is based on inadequate or incomplete reasoning because there is little evidence to support the opinion that the three described incidents involved the plaintiff as the target. The plaintiff supports that contention by reference to what was set out in the affidavit of the plaintiff's solicitor.[14] Stated briefly, that is a denial by the plaintiff that the three incidents are connected to him. It is not possible to resolve such matters on a review such as this.

22 The plaintiff further submitted that the threats have not been shown to be dependent upon the plaintiff being in the community.

23 In support of the argument that the Board's was unreasonable, the plaintiff placed reliance upon what was said by the High Court in Minister for Immigration and Citizenship v Li:[15]

As to the inferences that may be drawn by an appellate court, it was said in House v The King that an appellate court may infer that in some way there has been a failure properly to exercise the discretion 'if upon the facts [the result] is unreasonable or plainly unjust'. The same reasoning might apply to the review of the exercise of a statutory discretion, where unreasonableness is an inference drawn from the facts and from the matters falling for consideration in the exercise of the statutory power. Even where some reasons have been provided, as is the case here, it may nevertheless not be possible for a court to comprehend how the decision was arrived at. Unreasonableness is a conclusion which may be applied to a decision which lacks an evident and intelligible justification.[16]

24 The defendant submitted that nothing done by either defendant was infected by error.

25 The defendant submitted that, in accordance with the Act, when exercising its functions, the Board is not bound by the rules of natural justice or by rules of evidence and it may inform itself on any matter as it sees fit.[17]

26 Emphasis was placed upon s 73A of the Act and the use of the words 'must give paramount consideration to the safety and protection of the community in determining whether to ... cancel a prisoner's parole'.

27 Reliance was placed upon the Explanatory Memorandum which in turn refers to the Callinan Report. It is clear that after the Callinan Report, the Act was changed to place greater emphasis on public safety in a number of ways, including both the granting and cancelling of parole.

28 It was further submitted that a person has no right to parole,[18] and in addition release on parole must be viewed as serving the interest of the community, as well as being to the benefit of the parolee. They are interests which must necessarily be believed.[19]

29 It should be noted that the remarks in Krasnov[20] were in the context that the Court was considering the possibility of a longer period of parole than that contemplated in the original sentence.

30 It was accepted by the defendants that the power to cancel parole was not unfettered. However, it was submitted that even if the Board's right not to afford natural justice produces unfairness, that will not be a basis for intervention by the Court.[21]

31 It was submitted that it flowed from Kotzmann[22] that it was not open for the plaintiff to challenge the accuracy of the report of the CCS on which the Board acted.[23]

32 It was submitted by the defendants, in relation to the specific grounds of review, that the plaintiff had failed to connect the complaint of lack of jurisdiction to the enabling statute.

33 It was further submitted that s 77(1) must be read in conjunction with s 73A, which directly imported into the power to cancel that the paramount consideration was protection of the community. It follows that the comment to the Board to have regard to protection of the community was predominant.

34 It was submitted that there is no reason why s 73A should be read so as to limit its operation to the actions of the prisoner himself or herself. It was submitted that the words are expressed widely and required wide application.

35 It followed that if the Board was satisfied that the presence of the plaintiff in the community gave rise to serous risk to the physical welfare of the plaintiff or, perhaps more particularly, others, then the Board was required to cancel parole. It was submitted that there was no basis to import words into the section because where Parliament had wished to identify actions or responsibilities of the parolee, it had done so and an example is to be found in s 74AAA(5)(ii) of the Act. As such, it was submitted that there is no basis which would satisfy the requisite conditions necessary before importing words into the section.[24]

36 It was submitted that there was no basis to conclude that the decision of the Board based on the CCS report was unreasonable as it was both plausible and justifiable. The information received was described and the steps taken to mitigate risk set out.

37 The question of habeas corpus was addressed according to a submission that the Secretary was not available since the matter of the plaintiff's detention could be best addressed by the first defendant's claim for relief. Alternatively, it could not be satisfactorily demonstrated that the plaintiff's detention was unlawful.

38 In oral argument, Mr Liam Brown, Crown Counsel, who appeared with Ms Sarala Fitzgerald for the defendants took me to some remarks made by Bongiorno JA in Marrogi v The Secretary to the Department of Justice.[25] His Honour had indicated that the power to cancel might well be wider than the breach of a condition of parole, which had been alleged in that case. For completeness, reference might also be made to what Emerton J (as she then was) said in an earlier decision relating to the same parties.[26]

39 I am satisfied that both of my colleagues must be correct. It cannot be that cancellation of parole can be dependent only upon reoffending or some other breach of conditions. I do not, however, extract anything from either of the decisions which would lead me to conclude that the judges were there contemplating actions by persons other than the parolee.

40 Emphasis was also placed upon what is set out in the Parole Manual ('Manual'). The Manual was tendered at the hearing. For present purposes the relevant section of the Manual is as follows:

Cancellation of Parole

6.1 General Principles

Section 77(1) of the Corrections Act 1986 provides the Board with the power to cancel parole at any time before the end of the parole period. On cancelling parole, the Board will issue a warrant for Victoria Police to arrest the parolee and to return them to custody.

Importantly, the power to cancel parole is independent of the existence of a breach of a parole condition.

The paramount consideration for the Board in deciding whether to cancel parole is the safety and protection of the community.

As explained earlier, release on parole is a concession made when the Board decides that the benefits accruing to the community by way of rehabilitation and the recognition of mitigating factors outweigh the danger to the community of relaxing the requirement of imprisonment.

Accordingly, the Board should cancel parole if the risks of the offender remaining on parole have come to outweigh the benefits of the offender remaining on parole.

In many cases, this change in the risk/benefit equation will have become apparent because the offender has failed to comply with one or more conditions of the parole order; but the Board should cancel parole if it becomes aware that the risk has escalated to an unacceptable level, even if the offender has not technically contravened any particular condition.

In some cases, a parolee's failure to comply with parole may be sufficiently serious to merit cancellation even in the absence of any evidence of an escalation of risk. The non-compliance may indicate that the community is deriving no benefit from the parole as the offender is making no effort to further their rehabilitation and their persistent or serious failure to comply is undermining the credibility of the parole system.

Conversely, there can be cases in which the parolee has contravened one or more parole conditions but the benefits to the community of the parolee remaining on parole continue to outweigh the risks.

41 It was submitted that this was a case of escalation of risk as indicated in the Record of Board Decision[27] which notes under 'Reason' (for cancellation):

Benefit to the community of the offender remaining on the parole outweighed by the risk.

42 The Record of Board Decision also sets out under the heading 'Benefit to the Community Other':

The Board has concluded that there is sufficient information linking you as a likely target of recent shootings, including 10/3/2019 and 7/6/2019, to require cancellation of your parole having regard to the Board's paramount consideration of the safety and protection of the community and the absence of a capacity to mitigate the risks to you and other members of the community if you were to remain on parole.

43 In the email sent to the plaintiff's solicitor, the Board's reasons were set out in more detail.[28] It can be noted that the 'benefit to the community' consideration was counterbalanced against 'risk to the community of Mr Abdulrahim remaining on parole had increased and outweighed the benefit...'.

44 In those reasons, a third incident not addressed earlier was added, namely, the incident said to involve the plaintiff's sister.

45 It was submitted that the material above demonstrates that the Board acted in accordance with the Manual and the proper interpretation of s 73A.

46 It was conceded in argument that the situation the plaintiff is faced with, although not necessarily unique, is unusual.

47 It is common ground that it is not alleged that there is anything which the plaintiff has done which would merit the cancellation of his parole. It is actions of a third party of parties.

48 In my view, the real issue which arises in the case turns on the nature of parole. It is true that the plaintiff at the time of cancellation was serving his sentence, but in the community.[29] The Board, in accordance with the provisions of the Act, is obliged when considering whether or not to grant or cancel parole to give paramount consideration to the safety and protection of the community. It was the defendants' case that the provision is wide in its terms and that, after the Callinan Report, there had been a change of emphasis in the Act strongly towards the protection of the community.

49 I make these observations about the position of the plaintiff. There are three incidents described as increasing risk, arising out of the plaintiff's presence in the community. There is nothing on the face of the material from which it appears that any of the actions were directed at the plaintiff in the sense that he was not actually confronted. The Board acted on advice that the plaintiff was the target of the three incidents. It is extremely difficult to see how that is so in relation to the second and third incident but ultimately nothing turns on that. There was evidence from which the Board could conclude that there were persons who bore significant animosity to the plaintiff and who were prepared to engage in criminal behaviour towards him.

50 It is not suggested that the plaintiff has done anything whilst on parole which has given rise to the supposed animosity towards him. If it be assumed that the plaintiff is a target, that fact exists whether or not he is on parole and if there is sufficient animosity towards him to leave open the possibility for action to be taken against him or his extended family whether he is in custody or not.

51 There is no evidence in this case that the risk to the plaintiff did not exist at some earlier time.

52 It has not been suggested that the plaintiff was the subject of any attack whilst in custody. Nothing is known about the circumstances of his custody, for instance, whether he had served all or any part of his sentence in protection.

53 The third incident referred to is more serious but there is a sense in which the plaintiff is being held responsible for the persistent, but unsuccessful, actions of others. In relation to the other two incidents, it is not alleged that the plaintiff was present.

54 It certainly demonstrates persistence and probably demonstrates an increase in risk in a general sense.

55 I am not satisfied that even taking the wide interpretation of the Act contended for by the defendants that it can cover the situation of any threat, or apparent threat, which is created by the actions of third parties in a situation which had nothing to do with acts of a parolee during the period of his parole.

56 The purpose of the Act in general, relating to the Board, is for the Board to decide who should be released on parole and to supervise those who are on parole to ensure that they satisfactorily complete the period of parole. It is implicit in that duty to have regard to the paramount consideration of the safety and welfare of members of the public.

57 In this case, I do not accept that mere presence of the plaintiff in the community in circumstances where it is not alleged that he has engaged in any conduct since release which has changed his position, can constitute sufficient reason for the cancellation of his parole. It does not require that words limiting s 73A be read into the section.

58 I am not satisfied that there is anything in s 77(1), read in conjunction with s 73A, which compels or authorises the Board to cancel parole as a result of actions taken by a third party or parties. The Board has clear responsibilities to prevent, as far as possible, those on parole engaging in conduct which endangers the safety and welfare of members of the public. I am not satisfied that the Board can or should take responsibility for the actions of third parties which are not connected to any act of a parolee. I said in argument and I conclude that, unless there is something which connects the increase of risk to the actions of the parolee, there is insufficient connection between the danger to the public and the Board's responsibilities.[30]

59 I am not satisfied that any of the other submissions made on behalf of the defendants would cause me to alter my concluded view about the interpretation and operations of the sections.

60 There is nothing in these reasons apart from my interpretation of s 77 which interferes with any action the Board may choose to take in the future.

61 Because of the views that I have taken, I do not regard it as necessary to deal with the ground of unreasonableness or the alternative basis for relief by way of habeas corpus.

62 In this case, I am satisfied that the Board acted beyond their powers cancelling the plaintiff's parole. I make an order in the nature of the writ of certiorari quashing the order made by the first defendant on 12 June 2019.

63 I order that the second defendant release the plaintiff from custody and for avoidance of doubt declare that the plaintiff's parole continue.

64 I order that the defendants' pay the plaintiff's costs.

[1] Matters taken from the Affidavit of the plaintiff's solicitor, Ms Zarah Garde-Wilson dated 17 July 2019. They are not contentious.

[2] He had pleaded guilty to culpable driving charges causing death, two charges of possession of a drug of dependence and the related summary charge of dealing with property suspected of being proceeds of crime and contravention of the Bail Act (committing an offence whilst on bail).

[3] Affidavit of Ms Zarah Garde-Wilson dated 17 July 2019, [7].

[5] Affidavit of Ms Anita Lis dated 7 August 2019.

[7] Exhibit AL-5 to the Affidavit of Ms Anita Lis dated 7 August 2019.

[8] [2015] VSC 18.

[9] Ibid [25]-[26] (citations omitted).

[10] (1990) 51 A Crim R 336.

[12] Such considerations are now covered by the Sentencing Act 1991, s 5(1)(e).

[13] Kruger v The Commonwealth [1997] HCA 27; (1997) 190 CLR 1, 56 (Brennan CJ); Abebe v The Commonwealth [1999] HCA 14; (1993) 197 CLR 510, 554 [116].

[14] Affidavit of Ms Zarah Garde-Wilson dated 17 July 2019.

[15] [2013] HCA 18; (2013) 249 CLR 332.

[16] Ibid 367 [76] (citation omitted).

[17] s 69(1), (2) and s 71 of the Act.

[18] Minogue v Victoria [2018] HCA 27, [17].

[19] R v Krasnov and Shlakht (1995) FLR 120, 125 ('Krasnov').

[21] As to both propositions see Kotzmann v Adult Parole Board (2008) 29 VAR 391 (Kotzmann').

[24] DPP v Leys [2012] VSCA 304; (2012) 44 VR 1, 19 [54], although the context of that provision is somewhat different from the present case.

[25] [2015] VSC 429.

[26] Marrogi v The Secretary to the Department of Justice [2015] VSC 300.

[27] Exhibit AL-5 to the Affidavit of Ms Anita Lis dated 7 August 2019.

[28] Exhibit ZGW-2 to the Affidavit of Ms Zarah Garde-Wilson dated 17 July 2019.

[29] Some emphasis was also placed on the fact that that plaintiff could apply for parole in the future, how that would be practical in this case is moot.

[30] If this is a case of ambiguity, which I doubt, then the statute should be interpreted in favour of the plaintiff, Beckwith v The Queen [1976] HCA 55; (1976) 135 CLR 569. It should also be noted that the High Court has said that penal statutes should not be construed widely. See Stevens v Kabushiki Sony Computer Entertainment [2005] HCA 58; (2005) 224 CLR 193, 210-211 [45].