Rodgerson v Attorney-General

Mr Rodgerson's conviction and sentence

1. On 18 February 2021, the Melbourne County Court sentenced Mr Rodgerson to a term of six years and five months' imprisonment, commencing on 18 February 2021, for the following offences:
2. possessing substance, equipment or instructions for commercial manufacture of controlled drugs, namely Methylenedioxymethamphetamine (MDMA), contrary to s 308.4(1) of the Criminal Code Act 1995 (Cth);
3. trafficking marketable quantities of controlled drugs, namely MDMA, contrary to s 302.3(1) of the Criminal Code;
4. possessing controlled drugs, namely MDMA, contrary to s 308.1(1) of the Criminal Code; and
5. failing to comply with an order under s 3LA(2) of the Crimes Act, contrary to s 3LA(5) of the Crimes Act.
6. The court specified a non-parole period of three years and eight months, which, taking into account 107 days of presentence detention, expired on 2 July 2024.
7. Mr Rodgerson's head sentence will expire on 1 April 2027.
8. Mr Rodgerson appealed against his sentence to the Supreme Court of Victoria Court of Appeal. The Court of Appeal dismissed the appeal on 5 August 2022.

Refusal Decision

1. On 26 October 2023, Mr Rodgerson submitted a 30 day early release application, seeking to be released on parole on 2 June 2024 (being 30 days prior to the expiry of his non-parole period).
2. On 12 February 2024, CV prepared a parole assessment report in relation to Mr Rodgerson which was provided to the Commonwealth Parole Office. The CV report's ultimate recommendation was that Mr Rodgerson was unsuitable for parole.
3. On 3 May 2024, the CPO issued an "adverse comments letter" to Mr Rodgerson to provide Mr Rodgerson with an opportunity to respond to concerns held regarding his suitability for release on parole. The letter referred to the CV report, a psychological report of Mr Adam Kreuzer dated 4 July 2022, and the prosecution reports from 2020.
4. In a letter also dated 3 May 2024, Mr Rodgerson provided a response to the adverse comments letter. Mr Rodgerson also provided a letter from his sister, Mrs Nicole Trionfi, dated 10 May 2024.
5. On 2 June 2024, the delegate issued a notice refusing to release Mr Rodgerson on parole.
6. The refusal notice outlined the following in relation to the delegate's decision to refuse Mr Rodgerson's parole: In making my decision, I have taken into account submissions made by you or on your behalf. The order for refusal of parole has been made for the following reasons:
7. I have had regard to the nature and circumstances of your Commonwealth offending which involved possession substance, equipment or instructions for commercial manufacture, namely MDMA, trafficking marketable quantities of controlled drugs, namely MDMA, possessing controlled drugs, namely MDMA and person fails to comply with order as described. Taking into account the circumstances of your offending and the comments by the court, I consider your release on parole may pose a risk to community safety.
8. I consider that you do not currently have appropriate post-release plans for accommodation or employment. I also consider that you do not have adequate plans for further treatment in the community to address your rehabilitative needs including your mental health, drug use and insight into your offending. Without these plans I consider that your release into the community would not be in the best interests of your rehabilitation and reintegration, and you may pose an unacceptable risk to the community.
9. I consider that you have not identified strategies to avoid contact with anti-social associates. I note that Corrections Victoria determined through your risk assessment that your anti-social associations may increase your risk of reoffending. Based on this information, I consider that you are not well placed to successfully reintegrate into the community and that your release therefore poses an unacceptable risk to the safety of the community.
10. I have had regard to your criminal history which includes theft and 'unauthorised modification to cause impairment'. You have previously failed to comply with a Community Based Order which resulted in the order being cancelled and a fine. I consider your criminal history demonstrates a level of non-compliance with law enforcement and correctional authorities, and raises doubts about your willingness and ability to comply with the conditions of a parole order.
11. The refusal notice stated that the delegate would reconsider Mr Rodgerson for release on parole within 12 months of the notice. Under s 19AL(2)(b), where the Attorney-General refuses to make a parole order, the Attorney-General must reconsider the making of a parole order for the person within 12 months after the refusal (although an earlier review date may be set). This means that Mr Rodgerson will be considered for parole on potentially two more occasions, in 2025 and in 2026, before his head sentence expires (assuming he is not released to parole earlier).

STATUTORY FRAMEWORK CONCERNING PAROLE DECISIONS

1. The statutory context in which the grounds of review must be considered is the statutory scheme for parole of persons serving sentences of imprisonment for Commonwealth offences (federal offenders), which is contained in Part IB, Division 5 of the Crimes Act.
2. The legal principles underpinning the power to make or refuse to make a federal parole order have been canvassed in depth in a number of recent decisions of this Court, including, Khawaja v Attorney-General (Cth) (2022) 293 FCR 396; [2022] FCA 334 (Thawley J), Roberts v Attorney-General (Cth) (2022) 176 ALD 509; [2022] FCA 574 (Lee J), Pulini v Assistant Minister to the Attorney-General of the Commonwealth of Australia (2021) 397 ALR 192; [2021] FCA 1543 (Rangiah J), Stephens (Abraham J), Lodhi v Attorney-General (Cth) [2020] FCA 1383 (Bromwich J), Khazaal v Attorney-General [2020] FCA 448 (Wigney J) and in Lazarus v Attorney-General (Cth) [2024] FCA 1021 (Abraham J).
3. At the outset it can be observed the statutory scheme provides no entitlement to parole: Khawaja at [11]; Lazarus at [10].
4. Section 19AKA states the purposes of parole are: 19AKA Purposes of parole The purposes of parole are the following: (a) the protection of the community; (b) the rehabilitation of the offender; (c) the integration of the offender into the community.
5. While those three purposes "cover different ground", they interact and in some respects overlap: Khawaja at [15]. No pre-eminence or priority is given to any one purpose. That is, properly, a matter for the decision maker in the exercise of discretion.
6. The operative power to make, or refuse to make, a parole order is s 19AL of the Crimes Act: 19AL Release on parole - making of parole order (1) The Attorney-General must, before the end of a non-parole period fixed for one or more federal sentences imposed on a person, either make, or refuse to make, an order directing that the person be released from prison on parole (a parole order).
7. A non-exhaustive list of matters that may be considered in decisions about parole are set out in s 19ALA: 19ALA Matters that may be considered in decisions about parole orders (1) In making a decision under section 19AL in relation to a person, the Attorney‑General may have regard to any of the following matters that are known to the Attorney‑General and relevant to the decision: (a) the risk to the community of releasing the person on parole; (b) the person's conduct while serving his or her sentence; (c) whether the person has satisfactorily completed programs ordered by a court or recommended by the relevant State or Territory corrective services or parole agency; (d) the likely effect on the victim, or victim's family, of releasing the person on parole; (e) the nature and circumstances of the offence to which the person's sentence relates; (f) any comments made by the sentencing court; (g) the person's criminal history; (h) any report or information in relation to the granting of parole that has been provided by the relevant State or Territory corrective services or parole agency; (i) the behaviour of the person when subject to any previous parole order or licence; (j) the likelihood that the person will comply with the conditions of the parole order; (k) whether releasing the person on parole is likely to assist the person to adjust to lawful community life; (l) whether the length of the parole period is sufficient to achieve the purposes of parole; (m) any special circumstances, including the likelihood that the person will be subject to removal or deportation upon release. (2) Subsection (1) does not limit the matters that the Attorney‑General may consider in making a decision under section 19AL.
8. In summary, the following propositions emerge from that statutory framework:
9. the power to release or not release a federal offender on parole concerns the administration of criminal justice;
10. that power is conferred on a Minister of State (the Attorney-General), rather than some statutory body (such as a state parole authority);
11. s 19ALA, while setting out a wide range of factors that the Attorney-General can take into account, significantly, does not limit the factors to which the Attorney-General can have regard;
12. the legislation contains no process for how consideration of release on parole is to be undertaken. It is essentially a matter for the Attorney-General to determine a procedure that is reasonable and will avoid practical injustice or unfairness having regard to the circumstances of the particular case. This requirement for procedural fairness will generally include the requirement to make the person aware of the main factors or issues that could militate against the grant of parole, and will usually require making the person aware of specific adverse information that is credible, relevant and significant to the decision. What is required may vary having regard to what has already occurred and what is said or done during the process; and
13. when the Attorney-General refuses to release a federal offender on parole the Attorney-General must reconsider the decision within 12 months (there is no minimum period that must pass before the Attorney-General reconsiders a refusal). See Lazarus at [15]; Lodhi at [6]; Stephens at [17]; Khawaja at [21]; Khazaal at [55]-[60].
14. The process of determining whether or not to release a federal offender (ie, a person convicted of an offence against the law of the Commonwealth) on parole is considerably different to the equivalent process for a person convicted of an offence against State or Territory law. In Khazaal at [66], Wigney J stated: The main observation that may be made about the statutory scheme for the making of parole decisions in respect of federal offences is that, unlike the statutory schemes for the grant of parole in many of the States and Territories, there is no prescribed procedure that the Attorney must follow in considering and determining whether to make a parole order. There is certainly no requirement for a hearing, no express requirement for the Attorney to notify the person affected by the decision concerning parole to be notified of any particular information, and no express requirement that the person be given the opportunity to make submissions. There is no doubt, however, that the Attorney must afford procedural fairness to the person affected by the parole decision. As the statutory scheme does not prescribe any procedure, it is entirely a matter for the Attorney to determine a procedure that will afford procedural fairness to the person and avoid any unfairness or injustice.

Ground 1 - Procedural Fairness

1. Mr Rodgerson's complaint regarding procedural fairness appears to be that he was denied procedural fairness both (i) generally, and (ii) specifically in relation to the Parole Assessment Report prepared by CV.

Generally

1. Paragraph 4 and 6 of both the First Rodgerson Affidavit and the Second Rodgerson Affidavit state: It is claimed that the procedures and processes the respondent has in place to consider one's parole eligibility satisfies the requirements of procedural fairness. The applicant strongly disagrees with this statement… The applicant has serious concerns about the respondents' [sic] processes used in determining one's eligibility for parole.
2. Mr Rodgerson's complaint regarding the parole process appears to be particularly targeted at the lack of oral hearings provided to federal inmates. In particular, Mr Rodgerson stated in the Second Rodgerson Affidavit: Alternative methods such as oral hearings as per state parole boards should be available to federal inmates by the respondent to ensure procedural fairness. … Fair procedures which provide affected people with a sufficient chance to appear will increase the possibility that relevant material provided to officials who are, in turn, more likely to make informed and accurate decisions.
3. Mr Rodgerson relies on Johns v Release on Licence Board (1987) 9 NSWLR 103, however that case concerned the laws of the state of NSW. The process for determining whether or not to release a federal offender on parole is considerably different to the equivalent process for a person convicted of an offence against State or Territory law.
4. Notwithstanding, it is not in dispute that:
5. Mr Rodgerson was entitled to be afforded procedural fairness in relation to the Refusal Decision. Of course, "[a]s the statutory scheme does not prescribe any procedure, it is entirely a matter for the Attorney [or his delegate] to determine a procedure that will afford procedural fairness to the person and avoid any unfairness or injustice": Khazaal at [66] (Wigney J).
6. The delegate had an obligation to consider the case Mr Rodgerson put. That obligation required the delegate to consider any substantial and clearly articulated argument that Mr Rodgerson advanced, noting that "a finding by the Court that [a] Minister has not engaged in an active intellectual process will not lightly be made and must be supported by clear evidence, bearing in mind that the judicial review applicants carry the onus of proof": Lazarus at [35] (Abraham J), citing Carrascalao v Minister for Immigration and Border Protection (2017) 252 FCR 352; [2017] FCAFC 107 at [48] (Griffiths, White and Bromwich JJ).
7. In relation to the parole process generally, on 3 May 2024, the Attorney-General's Department sent what is usually described as an "adverse comments letter" to Mr Rodgerson. The letter stated: Federal offenders are not subject to a parole hearing. The decision making process occurs in accordance with the principles of procedural fairness… This requires that you be aware, or be made aware, of adverse information that is credible, relevant and significant to the decision whether to grant you parole, and that you are given the opportunity to address that information and respond to it. This letter is to give you the opportunity to respond to that information.
8. The adverse comments letter largely summarised the adverse matters contained in the CV report dated 12 February 2024.
9. Mr Rodgerson provided a response to the adverse comments letter, which also included a letter from his sister, Mrs Nicole Trionfi.
10. Paragraphs 57 to 86 of the Departmental Submission summarise the adverse comments letter and Mr Rodgerson's responses to the issues raised. The Departmental Submissions also attached Mr Rodgerson's response and Mrs Trionfi's letter.
11. It is also evident from the delegate's refusal notice itself that the delegate had regard to Mr Rodgerson's response. The refusal notice states "[i]n making my decision, I have taken into account submissions made by you or on your behalf".
12. In the context of the statutory framework concerning parole decisions for federal offenders, which does not prescribe a specific parole procedure, I am not satisfied that any procedural unfairness is disclosed in the decision-making process generally. Mr Rodgerson was informed of the adverse material weighing against him being released on parole, was provided with an opportunity to respond to that material, and that material was ostensibly taken into consideration by the delegate in deciding to refuse the grant of parole. While Mr Rodgerson may have preferred to have the opportunity for a hearing and to present his case orally, the failure to provide this opportunity did not amount to procedural unfairness.

Parole Assessment Report

1. Mr Rodgerson's specific complaints regarding the parole decision process are directed primarily at the CV report, and particularly, Mr Rodgerson's view that the information contained within the report was incorrect and that Mr Rodgerson's response to the information was not properly taken into consideration. Mr Rodgerson stated in his second affidavit: The applicant alleges that no fact checking of the information before the respondent is conducted prior to any parole decision being made. A multitude of inaccuracies and misinformation have been provided to the respondent by CV and it is claimed by the applicant this inaccurate information was highly influential in the decision to deny parole… The applicant has serious concerns for the amount of misinformation contained within the CV parole officers report… Although the applicant addressed some of these concerns it is alleged that they have not been taken into serious consideration when deciding the applicant parole eligibility [sic]. The applicant believes that the reasons provided for refusal by the respondent could not have been established if CV provided the respondent with accurate information or the applicants parole reply letter correcting these mistakes was taken into serious consideration.
2. Notwithstanding the reference to a "multitude of inaccuracies and misinformation", Mr Rodgerson provides only the following example: a. Prior Convictions and Behaviour on Previous Conditional Release - On 17 August 2005, at the Melbourne Magistrates Court Mr Rodgerson was convicted in relation to 'theft' and 'unauthorised modification to cause impairment'. b. Summary of Criminal History - on 27/05/2005, Mr Rodgerson appeared at the Melbourne Magistrate Court (MMC) for "Make an unwarranted demand with menaces" however this was struck out. He then appeared on 17/08/2005 at MCC [sic] for convictions related to "Theft and Unauthorised modification to cause impairment". He received a 12-month community-based order and 100 hours of unpaid community work. On 21/11/20[0]6, it was proven Mr Rodgerson failed to comply with his CBO which resulted in it being cancelled and he being fined $1700. C Dandenong Magistrates Court Extract - The report shows that the applicant received a non-conviction. d. Applicants Parole Reply Letter - The offence on 17 August 2005 I received a non-conviction and received a 12-month CBO. Due to work commitments, I could not complete the 100hrs of unpaid community work so returned to the court and requested that the hours be converted into a fine. The Magistrate did so and issued a $1700 fine and the matter was settled. (Original emphasis, footnotes omitted.)
3. I accept the Attorney-General's submission that this complaint is unjustified when regard is had to the adverse comments letter and Departmental Submission.
4. The adverse comments letter says: The decision-maker may be concerned by your criminal history and compliance with court orders and supervision. Information the decision-maker will consider includes:

• On 17 August 2005, at Melbourne Magistrates Court you were convicted in relation to 'theft' and 'unauthorised modification to cause impairment'. You received a 12-month Community Based Order (CBO) with conditions associated with reporting to the Oakleigh Police Station and performance of 100 hours of unpaid community work.
• On 21 November 2006, it was proven that you had failed to comply with your CBO which resulted in the order being cancelled and you were subsequently fined $1700. … Given the above information, the decision-maker may consider that your criminal history is indicative of your inability to be of good behaviour, not violate any law and comply with the conditions of a parole order while in the community. As such, the decision-maker may conclude that your release on parole at this time may pose a risk to the safety of the community.

1. Mr Rodgerson's response stated: The offence on 17 August 2005 I received a non-conviction and received a 12-month CBO. Due to work commitments, I could not complete the 100hrs of unpaid community work so returned to the court and requested that the hours be converted into a fine. The Magistrate did so and issued a $1700 fine and the matter was settled.
2. The Departmental Submission recorded Mr Rodgerson's comments as follows: Mr Rodgerson was advised that his prior criminal history raises concerns about his ability and willingness to live a law-abiding lifestyle, and that without further information about his rehabilitative progress and strategies that he has to minimise his risk of reoffending, the decision-maker may be concerned that his release into the community could pose a risk to community safety. Mr Rodgerson submitted:

• For the August 2005 offence he received a non-conviction and a 12 month Community Based Order. Under the Order he was required to complete 100 hours of community work however due to work commitments he asked the court to convert the hours into a fine. The Magistrate did so and he was fined $1700 and the matter was settled. … The CPO notes Mr Rodgerson's criminal history includes a conviction in relation to 'theft' and 'unauthorised modification to cause impairment' in 2005. He received a 12- month Community Based Order (CBO) with conditions associated with reporting to the Oakleigh Police Station and performance of 100 hours of unpaid community work. However, on 21 November 2006, it was proven that Mr Rodgerson had failed to comply with his CBO which resulted in the order being cancelled and he was subsequently fined $1700.

1. As noted above, the fourth reason provided by the delegate for the refusal of parole in the refusal notice states: I have had regard to your criminal history which includes theft and 'unauthorised modification to cause impairment'. You have previously failed to comply with a Community Based Order which resulted in the order being cancelled and a fine.
2. The reason provided by the delegate is an accurate summary of the information provided by Mr Rodgerson, employing language that is careful and precise. Mr Rogerson was charged with offences of theft and unauthorised modification to cause impairment. He received a community-based order which he did not comply with. That order was cancelled and a fine imposed.
3. I accept the Attorney-General's submission that if Mr Rodgerson is suggesting that the fourth reason in the refusal notice contains a factual error, he has not identified it.
4. In any event, simply relying on incorrect information is an error of fact and not necessarily an error of law. In CRU18 v Minister for Home Affairs (2020) 277 FCR 493; [2020] FCAFC 129 at [31], Wigney, Jackson and Snaden JJ observed: A discretionary administrative decision that is materially premised upon an error of fact will rarely be beyond the jurisdictional authority of its maker simply because of that error. More needs to be established. It is neither necessary nor prudent to attempt an exhaustive statement of what more would need to be shown but typical circumstances spring readily to mind: for example, that the error gave rise to the consideration of irrelevant material, that it bespoke a failure to take account of a mandatory consideration, that it involved unreasonableness, irrationality or illogicality …, that it revealed an impermissible denial of procedural fairness or that it otherwise reflected a failure to discharge the relevant statutory function. Additionally, it would need to be shown that the error was material …
5. I also accept the Attorney-General's submissions that it is evident that it was to the whole of Mr Rodgerson's criminal history (and not only his 2005 offending) that led the delegate to conclude that there are doubts about Mr Rodgerson's ability to comply with the conditions of a parole order. Relevant in this respect was the nature and circumstances of Mr Rodgerson's index offending, which is described in the first reason of the refusal notice (which included, relevantly, an offence of failing to comply with an order).
6. Mr Rodgerson raises a number of additional points, such as his disagreement with the view taken by CV in relation to the suitability of his proposed accommodation, and the view taken regarding the risk he poses to the community. However, these concerns do not go beyond Mr Rodgerson's disagreement with the views reached by CV and the delegate. They do not amount to matters concerning the procedural fairness of the Refusal Decision.
7. Additionally, while Mr Rodgerson contends that the delegate failed to take the material Mr Rodgerson submitted into proper consideration, there is little basis for reaching such a conclusion for the reasons already noted above at [38]-[39].

Ground Two - Apprehended bias

1. Mr Rodgerson also complains that the delegate "displayed an apprehended bias by not bringing an impartial and unprejudiced mind to the decision they were required to make".
2. Mr Rodgerson explains his complaint as follows in his second affidavit: One class of case where an appearance of bias can arise is cases 'where some direct or indirect interest in the proceedings, whether pecuniary or otherwise, gives rise to a reasonable apprehension of prejudgment'. The applicant believes that because of the serious decisions made by the Federal Parole Office stringent rules must be complied with by decision-makers. The rules that must be complied with by the decision-maker and the risks associated with making an incorrect decision create pressures leading to apprehended bias. The applicant believes that due to the culture that exists between inmates and corrective services apprehended bias by decision makers is unavoidable. Any submission made by an inmate is clearly given less consideration than any submissions made by a relevant administrative body. (Footnotes removed.)
3. It is well established that the test for apprehended bias is whether "a fair-minded lay observer might reasonably apprehend that the [decision-maker] might not bring an impartial mind to the resolution of the question the [decision-maker] is required to decide": Bullmore v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2024) 304 FCR 370; [2024] FCAFC 99 at [24] (Banks-Smith, Jackson, Feutrill JJ), citing Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337; [2000] HCA 63 at [6] (Gleeson CJ, McHugh, Gummow and Hayne JJ, Callinan J agreeing). An allegation of apprehended bias must be "firmly established": Bullmore at [31] (Banks-Smith, Jackson and Feutrill JJ).
4. I accept the Attorney-General's submissions that this complaint, expressed as it is in general terms, is without substance. The Departmental Submission contains a considered and detailed analysis of considerations in favour of, and against, Mr Rodgerson's release on parole, including the correspondence and material provided by him.
5. Accordingly, this ground of review must also fail.

disposition

1. While Mr Rodgerson is, understandably, disappointed by the Refusal Decision, his grounds of review are not made out. What Mr Rodgerson effectively seeks is an opportunity to review the Refusal Decision. Throughout the material submitted by Mr Rodgerson, and in oral submissions before me, he emphasised that he sought to review the Refusal Decision without having to go through a judicial review process, and that ultimately, no such avenue was available to him. For example, Mr Rodgerson's reply submissions state: If the respondent had an appeal process or a way in which a refusal could be challenged a much fairer and reasonable system would exist. Procedural fairness does not cease after a decision has been made… A decision whether to grant parole should not only be reviewable through the means of a Judicial Review which is beyond the means of most.
2. Mr Rodgerson's statement illustrates the difficulty in his application, which is that what Mr Rodgerson seeks is, in effect, merits review of the Refusal Decision. That is not the task before this Court. As Bromwich J stated in Lodhi at [43]: [T]he Attorney-General's role was to make the parole decision, and the role of this Court is to ensure that that was carried out within the proper exercise of the power bestowed, but not to second-guess the ultimate decision. A judge's personal view of the merits of the decision is irrelevant. Concepts such as fairness and reasonableness have a more confined meaning and operation than used in more general settings, such as making findings on the merits of a particular case, or asserting what those findings should be. It is not part of this Court's function even to consider whether parole should, or should not, have been granted to [the applicant].
3. For the reasons outlined above, the originating application will be dismissed with costs. I certify that the preceding sixty-one (61) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Anderson.