R v CHOI

R v CHOI - [2023] NSWLC 1 - NSWLC 2022 case summary — Zoe

[13]

Legislation

Section 19AU of the Act allows the Attorney-General or delegate to revoke a parole order. Section 19AV authorises the arrest of a person whose parole has been revoked and requires that person to be brought before a prescribed authority as soon as practicable. Section 19 AX(1) provides, inter alia, that where that person is brought before a prescribed authority the authority must, subject to satisfaction of stated criteria, order the detention of that person until completion of proceedings under section 19AW of the Act.
A Magistrate of a State or Territory is a 'prescribed authority' for the purposes of sec. 16 of the Act, for the issue of a warrant under s 19AW(1) fixing a new non-parole period.
Section 19AW of the Act is relevantly as follows: 19AW Where person on parole or licence notified of revocation (1) Where a prescribed authority before whom a person is brought under section 19AV because of an order revoking a parole order or licence is satisfied: (a) that the person is the person named in that revocation order; and (b) that the person was notified by the Attorney-General of the proposal to make the revocation order; and (c) that the revocation order is still in force; the prescribed authority must issue a warrant, in the prescribed form: (d) authorising any constable to take the person to a specified prison in the State or Territory in which the person was arrested; and (e) directing that the person be detained in prison in that State or Territory to undergo imprisonment for the unserved part of the sentence, or of each sentence, of imprisonment (in this section called the outstanding sentence or sentences) that the person was serving or had yet to serve at the time of his or her release; and (f) subject to subsections (3) and (3A), fixing a non-parole period in respect of the outstanding sentence or sentences. (2) If the prescribed authority cannot complete the hearing under subsection (1) immediately, the prescribed authority must issue a warrant for the remand of the person in custody pending completion of the hearing. (3) The prescribed authority is not required to fix a non-parole period under paragraph (1)(f) if: (a) the prescribed authority considers it inappropriate to do so because of the serious nature of the breach of the conditions of the order or licence that led to its revocation; or (b) the unserved part of the outstanding sentence or sentences is, or aggregates, 3 months or less. (3A) Before fixing a non-parole period under paragraph (1)(f) in respect of the outstanding sentence or sentences, the prescribed authority must have regard to the period of time spent by the person on parole or licence before the parole order or licence was revoked under subsection 19AU(1). (4) Where a prescribed authority issues a warrant, the prescribed authority must specify in the warrant the particulars of the unserved part of each outstanding sentence and, if a non-parole period is fixed, particulars of that period. (5) A non-parole period fixed under this section has effect as if it had been fixed by a court in respect of the outstanding sentence or sentences and section 19AL applies in relation to that non-parole period according to its terms. (6) Where a person brought before a prescribed authority under section 19AV is dealt with in accordance with this section, the unserved part of any outstanding sentence or sentences that the person was serving or had yet to serve at the time of his or her release, is to be reduced by any period of remand under subsection (2).
The purposes of parole are set out in sec. 19AKA, which is as follows: Purposes of parole The purposes of parole are the following: (a) the protection of the community; (b) the rehabilitation of the offender; (c) the reintegration of the offender into the community.

[14]

Principles

In Ahmad v Attorney-General (Cth) [2022] FCA 1270, Abrahams J heard an application under the principles of administrative law for judicial review of a decision to revoke parole. Her Honour described the operation of sec. 19AW in the following terms, at [44]: "If the decision is to revoke parole, or the decision of revocation made without notice is not rescinded, s 19AW applies. Section 19AW(3A) requires that, before the prescribed authority fixes a non-parole period, it must have regard to the period of time spent by the federal offender on parole or licence, before the parole order or licence was revoked. Moreover, the prescribed authority retains discretion when fixing a new non-parole period under s 19AW: see, for example, Cant v Commonwealth Director of Public Prosecutions [2014] QSC 62 at [25]; Dobie v Commonwealth [2013] FCA 1224; (2013) 216 FCR 300 at [40] (which includes fixing a non-parole period at zero months, which would result in immediate release of the offender)."
In Dobie v Commonwealth of Australia (2013) 216 FCR 300; [2013] FCA 1224, Rangiah J, said, at [40]: " …The discretion under s 19AW(3)(a) is apt to be exercised where the nature of the relevant breach of the conditions of the parole order or licence is so serious that the prescribed authority considers it inappropriate to fix a non-parole period. In other words, it operates where the prescribed authority considers that the offender should not be released on parole."
Cant v Commonwealth Director of Public Prosecutions [2014] QSC 62 was an appeal to the Supreme Court of Queensland from a decision of a Magistrate that had the effect of fixing a new non-parole period for sentences being served by the applicant for federal drug importation offences and which was said to be excessive. Daubney J said the following in relation to the sec. 19AW, at [8]: "Section 19AW relevantly provides that, if the magistrate was satisfied that the applicant was the person named in the Revocation Order, and that he had been notified of the proposal to make the Revocation Order, and that the Revocation Order was still in force, then the magistrate was required to issue a warrant in the prescribed form. The 'prescribed form', includes 'fixing a non-parole in respect of the outstanding sentence or sentences'. Such a warrant must specify the particulars of the unserved part of each outstanding sentence and, if a non-parole period is fixed, particulars of that period."
Concerning the merits of the appeal, and the nature of the breaches of parole, Daubney J said the following, at [23] to [24]: "[23] On the undisputed statement of facts which was before the learned magistrate, the applicant committed repeated breaches of his conditions of parole both by unauthorised interstate travel and by associating with persons connected with drugs. Despite the brevity of the learned magistrate's reasons, it is clear that her Honour had regard to the serious nature of the breaches of parole conditions, and the fact that the applicant had offered no circumstances of mitigation, beyond his admission of the breaches. The conditions which the applicant breached were obviously designed to reduce the risk of him returning to involvement in drug-related criminal activity. It is objectively a matter for concern that the applicant within 12 months of release on parole committed repeated breaches of his conditions of parole. This fact justifies the serious approach taken by the learned magistrate in setting the non-parole period. [24] It is also clear from the undisputed statement of facts that the breaches of parole conditions were deliberate and planned. The evidence of the applicant's interstate travel demonstrates that he employed a significant amount of deception, together with ongoing association with criminal associates, who had convictions for narcotics offences. On the basis of that evidence, the learned magistrate was clearly correct in her observation that: '... These breaches are multiple, they are aggravated because they occur in combination with one another, they occur in the context of a serious criminal history, they occur in context of no mitigating circumstances or any prosocial observations that are offered to the Court ...'"
The decision in Cant was further appealed to Queensland Court of Appeal; R v Cant [2014] QCA 334. The appeal was dismissed, and in doing so the Court approved the process of reasoning of the Magistrate at first instance as follows, at [17], and at [33]: "[33] The learned magistrate made a number of observations in the course of her reasons to conclude that 39 months was an appropriate non-parole period. They included: there were multiple occasions of breach; the applicant had a serious criminal history with significant periods in custodial settings; she inferred that the applicant well understood the criminal justice culture and the non-negotiable nature of his obligations to comply strictly with the rules; the breaches were not only multiple, but aggravated because they occurred in combination with one another, and in the context of a serious history, and also the context of no mitigating circumstances or any pro-social observations."

[16]

Relevant Considerations

Section 19AW does not by its terms, or by reference, set out the factors to be considered in determining the appropriate non-parole period. The provision is therefore of a kind considered by the High Court in Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24; [1986] HCA 40, at [40], in that sec. 19AW grants a discretion to set a new non-parole which, in its terms, is unconfined and for which the factors that may be taken in account are similarly unconfined. The approach to be adopted is set out by Mason J, at [15]: "In the context of judicial review on the ground of taking into account irrelevant considerations, this Court has held that, where a statute confers a discretion which in its terms is unconfined, the factors that may be taken into account in the exercise of the discretion are similarly unconfined, except in so far as there may be found in the subject matter, scope and purpose of the statute some implied limitation on the factors to which the decision-maker may legitimately have regard."
The determination under sec. 19AW concerning the setting of a non-parole period following the revocation of parole is an act of sentencing concerning the index offence exercising the judicial power of the Commonwealth and is to be clearly distinguished from the granting of parole by the Attorney-General or authorised delegate, which is an administrative act of the Executive, and the legislation and principles that apply in that context. While the determination under sec. 19AW affects whether, and if so when, a person may be eligible for release to parole care should be taken not to conflate the two quite separate and distinct decisions of setting a non-parole period as part of a sentence and whether and if so on what terms an eligible person is released to parole. While the Act contains multiple provisions concerning the grant of parole expressed through the purposes of parole in sec. 19AKA and the matters that may be considered in decisions about parole orders in sec. 19ALA, other than the purposes of parole, those matters are not relevant having regard to the scope, purpose, and subject matter of sec. 19AW, which is an act of sentencing for the index offence.
The Director submits, and I accept, that the Court should have regard to the following matters in determining a new non-parole period: 1. The nature and circumstances of the breach of parole that led to the revocation; 2. The purposes of parole; 3. So much of the sec. 16A factors as the Court considers relevant to determining how much further time the Respondent should serve by way of imprisonment; 4. Any other matter that the Court considers relevant having regard to the scope, purpose, and subject matter of sec. 19AW.

[18]

Conditions 2(b), (d) & (e)

The Respondent was released to parole on 26 April 2017. He was assessed to be compliant on parole until he failed to report in accordance with the conditions of his parole on 6 September 2019, which is a period of 2 years, 4 months and 11 days, or 863 days. The Respondent was absent and not compliant with parole between his disappearance on or about 6 September 2019 and his re-arrest on 8 April 2022, which is a period of 2 years, 7 months and 2 days, or 945 days. There is no dispute that the Respondent did not comply with Conditions 2(b), (d) and (e) between 6 September 2019 and his re-arrest on 8 April 2022 and the period of non-compliance with those conditions is therefore significantly greater than the period of compliance.
One matter relevant to the assessment of the seriousness of the established breaches of Conditions 2(b), (d) and (e) is any evidence in explanation or mitigation of those breaches. The only expression of the Respondent's explanation of his conduct in the evidence on this Application is the content of the written submissions by his solicitors in response to the Notice of Revocation dated 20 May 2022. The explanation is unsworn and is not otherwise supported by evidence. Matters of that kind require a level of proof greater than bare assertions, and bare assertions should be rejected; R v Cant [2014] QCA 334, at [31] and [32]. It follows that this Application is to be determined on the basis that the Respondent has offered no evidence of circumstances in explanation or mitigation of the proved breaches of parole and no pro-social observations. It should also be noted that even if that explanation could be accepted as true, the explanation would be unhelpful to the Respondent's position as it would provide a proper basis for two conclusions: 1. The Respondent was aware of the matters discovered by Police at the execution of the search warrant at his approved place of residence on parole, otherwise there could be no basis for the expressed fear that he might be charged for those matters; and 2. The Respondent thereafter deliberately absented himself and failed to comply with the conditions of his parole requiring supervision, reporting and residence at an approved place.
Senior Counsel for the Respondent submits that the Respondent demonstrated his 'capacity to comply with supervision while on parole' in the 863 days until 6 September 2019 as a relevant factor supporting the setting of a further non-parole period. That submission simply ignores the undisputed chronology of the Respondent's conduct while on parole and the fact that the period of non-compliance is: 1. The most recent demonstration of the Respondent's attitude to compliance with the conditions of his parole; and 2. Significantly longer than the period of assessed compliance.
The submission, as formulated, would be more readily understood in the context of an administrative decision whether to release an eligible person to parole at the end of the non-parole period, although even at that point the issue, properly understood, is the likelihood that the person will comply with the conditions of parole; see sec. 19ALA(1)(j). The assessed capacity of a person to comply with the conditions of parole is of marginal, if any, relevance to a determination under sec. 19AW.
The established breaches of Conditions 2(b), (d) and (e) are not only prolonged and multiple, but aggravated because they occurred in combination with one another, and in the context of a serious offence, and the context of, for the reasons set out above, no explanation, mitigating circumstances or any pro-social observations. The breaches are clearly, and plainly objectively serious breaches of the Respondent's parole conditions, and are alone, for the reasons expressed in Cant, of a sufficiently serious basis to find, for the purposes of sec. 19AW(3)(a), that it is inappropriate to fix a non-parole period.

[19]

Further Charges

The revocation of the Respondent's parole was also based on a satisfaction that there are reasonable grounds to suspect that there is a breach of Condition 1 by reason of the 2022 Charges. That ground is based on the terms of sec. 19AU(1) of the Act which expressly permits revocation if there are reasonable grounds for suspecting that the offender has at a material time failed to comply with a condition of parole or licence.
At issue in these proceedings is whether, and if so, the extent to which, the untried 2019 Charges and 2022 Charges can be considered in a determination under sec. 19AW. The issue only arises because this Application is before the Court for determination before the trial of the 2019 Charges and 2022 Charges. Of the published decisions under sec.19AW that involve an offender on parole being charged with further serious offences most have been determined after the resolution of the further charges. Sections. 19AQ and 19AR also provide a statutory mechanism for the revocation of parole where a person on parole is convicted and sentenced to certain terms of imprisonment.
The 2019 Charges and the 2022 Charges are currently in the early stages of the EAGP (Early Appropriate Guilty Plea) protocol, and I am told are unlikely to proceed to trial for some time. The Respondent apparently denies those charges, although the matters are not yet at the point where pleas may be entered.
Senior Counsel for the Respondent contends the Commonwealth Director's position places 'undue emphasis' on the 2022 Charges, the evidence of the allegations cannot establish that the alleged offences were in fact committed by the Respondent, and it would be wrong to use the allegations to support a conclusion that is both serious and adverse to the Respondent under sec. 19AW(3)(a) of the Act. That submission somewhat overstates the position of the Commonwealth Director in the written submissions, nor do I understand the Commonwealth Director to seek a finding that the fact of the 2019 Charges and 2022 Charges is a proper basis to find that the Respondent has committed those offences. Rather, the evidence of those matters was placed before the Court, without objection, as part of the factual matrix giving rise to the Application now made.
Section 19AW(3)(a) is relevant in the following terms: (3) The prescribed authority is not required to fix a non-parole period under paragraph (1)(f) if: (a) the prescribed authority considers it inappropriate to do so because of the serious nature of the breach of the conditions of the order or licence that led to its revocation; (Emphasis added.)
The section directs consideration of 'the breach of the conditions of the order or licence that led to its revocation', which are set out in the Revocation of Parole Notice dated 17 September 2019 and in the Notice of Revocation dated 20 May 2022. Those documents, properly understood, set out breaches of Conditions 2(b), (d) and (e) and a finding that there are 'reasonable grounds to suspect' that there is a breach of Condition 1 by reason of the 2022 Charges. As a matter of ordinary interpretation, and at its highest, a finding of a reasonable suspicion of a breach is not a finding of an actual breach of Condition 1, which would therefore not be a breach to which sec. 19AW(3)(a) directs consideration.
While sec.19AU(1) of the Act expressly permits revocation of parole by the Executive if there are reasonable grounds for suspecting that the offender has at a material time failed to comply with a condition of parole or licence, the terms of sec. 19AW(3)(a) do not permit consideration of them, as they are not findings of actual breaches leading to revocation. That conclusion is fortified by the absence of a statutory provision akin to sec. 19AU(1) within or applying to a determination under sec. 19AW. The differing approach might well be seen as incongruous, and it again highlights: 1. The differences between the administrative act of the Executive in revoking parole and the exercise of the judicial power of the Commonwealth by a court making a determination concerning a non-parole period under sec. 19AW; and 2. The difficulty that attends determining an application under sec. 19AW where the respondent has been charged but not yet tried for other serious offences.
The Respondent is also entitled to be presumed innocent of charges which he denies, at least and until a tribunal of fact returns verdicts of guilt, and it would not be appropriate to make adverse findings against him based only on the fact of the charges. For those reasons no weight is to be attached to the 2019 Charges and the 2022 Charges in making the determination under sec. 19AW concerning setting a non-parole period.

[21]

Section 16A Factors

Section 16A of the Act sets out matters to which the Court should have regard when sentencing, and the relevant considerations include: 1. The nature and circumstances of the offence, as assessed by the District Court when imposing the initial sentence (sec. 16A(2)(a)); 2. The extent to which the person has failed to comply with any obligation under a law of the Commonwealth (sec. 16A(2)(fa)(ii)); 3. The deterrent effect that any sentence or order may have on the person (sec. 16A(2)(j)) and on others (sec. 16A(2)(ja)); 4. The character, antecedents, age, means and physical or mental condition of the person (sec. 16A(2)(m)); and 5. The prospects of rehabilitation (sec. 16A(2)(n)).
The remarks on sentence of His Honour Solomon DCJ are Annexure A to the affidavit of Ms Perrin contained in Exhibit 1. His Honour described the nature and circumstances of, and the Respondents role in, the offence for which the Respondent was to be sentenced. It is clear from the remarks on sentence that His Honour considered that the offence 'is a most serious offence' and his assessment of the objective seriousness was based on the quantity of drugs, some 68 times the then commercial quantity, and his finding that the Respondent's role was 'critical to the success' of the importation. The sentence imposed was significant.
The uncontested evidence establishes that the Respondent has, between 6 September 2019 and 8 April 2022, breached Conditions 2(b), (d) and (e) of his parole in an objectively serious way, which are obligations under a law of the Commonwealth for the purposes of sec. 16A(2)(fa)(ii) of the Act.
In the context of the uncontested and unexplained breaches of parole specific deterrence is both relevant and necessary. General deterrence is also relevant, and there is nothing in the evidence that makes the Respondent's conduct not an appropriate case for general deterrence. The determination under sec. 19AW concerning a non-parole period can deter the Respondent from further offending or breaching any future parole order by increasing the amount of the initial sentence to be served by way of imprisonment, and it may also deter others from engaging in like conduct.
At the date of these reasons the Respondent is aged 48 years, 2 months, and 25 days. He was born and raised in Korea, lived briefly in Canada with his family, who then returned to Korea in 1986 before migrating to Australia in 1989. His antecedents are set out in the Criminal History Convictions Only report in Exhibit 1. The matter for which he was convicted and sentenced in the District Court is the most serious matter in his antecedents. The remarks on sentence refer to a psychological report and record his psychological difficulties. That material is now some 17 years old and there is no evidence in this Application concerning his current mental health. Nor is there any evidence concerning his means or physical health.
For the reasons set above, my assessment of his prospects of rehabilitation is pessimistic.

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