Singh v Sentence Administration Board of the Australian Capital Territory [2004] ACTSC 74

Supreme Court of the ACT|2004-09-01|Before: Higgins CJ

1. The decision to revoke parole be quashed. It is open to the Board to re-consider, if it wishes to do so, the breaches of parole alleged in support of the notice to attend, originally listed for 20 April 2004, after a fair opportunity to be heard has been extended to the applicant.

1. This is an application, pursuant to the Administrative Decisions (Judicial Review) Act 1989 (ACT) ("ADJR Act"), s 5, seeking an Order of Review in respect of a decision by the Sentence Administration Board of the ACT ("the Board") to revoke a parole order previously made by it in favour of the applicant.

3. In addition to submission to supervision and direction by her parole officer the applicant was directed to (q) "totally abstain from illicit substances" and submit as directed to urine drug screening (e). She was also directed, in view of the undisputed evidence that the crime for which she had been sentenced had been caused or contributed to by her psychiatric illness at the time, to continue with and comply with psychiatric treatment (p).

4. Her supervision continued without incident until 23 May 2003. Urinalysis results for that date, 3 July 2003 and 22 September 2003 were positive for cannabis. She was referred by her supervisor for a drug and alcohol assessment on 13 October 2003. In his report of 17 November 2003 he concluded -

If the information Ms Singh has given me is correct, I do not believe she is dependant on cannabis but what concerns me is that she is socialising and in relationships with people who may not be in a healthy mental state.

5. He recommended maintenance of "regular counselling/psychotherapy with a focus on building self-esteem and developing a more positive self-evaluation".

6. The urinalysis reports indicated a breach of parole condition, formerly 7(c), then (q) - that is, "totally abstain from illicit substances".

7. The applicant was summoned to appear before a meeting of the Board on 18 December 2003. That was in response to an allegation of breach of condition (d) "must not use a prohibited substance, or abuse a prescribed substance that is lawfully obtained". Those precise words do not appear in the parole orders of 25 October 2001 (dated 21 August 2001) but do appear in the substituted order of 19 September 2002.

8. The substance of it is clear and use of cannabis would breach that condition as well as the requirement totally to "abstain from illicit substances".

9. At the hearing, the applicant admitted to cannabis use on two or three occasions and a failure to attend for urinalysis on 17 November 2003. She offered the excuse that she had been busy moving house on that latter date. She did point out cannabis remains detectable for "a very long time" after use. The Chair, Mr Chenoweth responded, "Yes I understand". There was some issue raised about creatinine levels in the urine, indicative of dilution of the sample. Apart from direct contamination, it appears that such dilution can be a result of drinking generous amounts of water.

10. The Board determined not to revoke the parole order. However, it did issue a "formal warning" in respect of the admitted breaches.

11. That warning was formally issued in writing on 19 January 2004 but it had been conveyed to the applicant quite clearly on 18 December 2003 at the conclusion of the hearing on that date.

12. On 22 January 2004, Ms Pauline Smith, the applicant's then current supervisor, reported that, on 6 January 2004, the applicant had admitted to cannabis use on 24 and 25 December 2003. She was directed to attend urinalysis before 9 January 2004. She did not attend, it seems, until re-directed to do so on 17 January 2004. The result was positive for cannabis (48 ug/L). There was dilution, indicated by creatinine levels of less than 2.0 mmol/L.

13. She was directed on 20 January 2004 to attend further urinalysis and counselling.

14. On 21 January 2004, a sample, found cannabis at 583 ug/L, creatinine 8.9 mmol/L. Further tests were reported:

9 March 2004 >1000 ug/L and methylamphetamine, creatinine 17.8 mmol/L

5 April 2004 111 ug/L and cocaine, creatinine 1.1 mmol/L

15. A further parole progress report was made on 13 February 2004. Ms Smith reported late attendances for urinalysis being the attendances in fact submitted to on 17 January and 21 January 2004. The 3 February 2004 attendance had been originally scheduled for 2 February 2004.

16. Nevertheless, it was reported that, otherwise, the applicant had been a "reliable and punctual reporter" generally but "ambivalent" in her desire to comply.

18. In the meantime, on 6 April 2004, the Board, having regard to the urinalyses up to 15 March 2004, resolved:

... to issue Ms Singh a DIRECITON [sic] TO ATTEND on 20 April 2004. The Board requested that NSW PPO Pauline Smith attend the hearing, and a preliminary Psychiatric report from Dr O'Dea be prepared for the hearing if possible.

19. This was the day after the urinalysis of 5 April but the report of that analysis was not delivered until 10 April 2004.

20. The direction to attend on 20 April 2004 was faxed to the applicant on 8 April 2004. The applicant acknowledged receipt of it on 14 April 2004 and on 15 April 2004.

21. On 16 April 2004, Mr Ron Ladlay, barrister, faxed Ms Donna Bean, assistant to the Secretary of the Board, in the following terms:

Further to our telephone discussion this morning, I represent Ms Anu Singh who has been directed to appear before the Board pursuant to s 84(2) of the Rehabilitation of the Offender [sic] (Interim) Act 2001 on Tuesday 20 April 2004.

I am instructed that Ms Singh did not receive notification of her requirement to attend the Board until Tuesday this week [that is, 13 April 2004] . I received instructions to represent Ms Singh yesterday evening.

I would seek the Board's indulgence to have the matter adjourned to a further date to enable the completion of psychiatrist's report by Dr Jennifer Thompson of St John of God Health Services Burwood who has been treating Ms Singh and also a report from Ms Singh's Drug and Alcohol counsellor, Mr Nicholas Lavidis from the Royal Prince Alfred Hospital. This would also allow me to take detailed instructions from Ms Singh after perusing any material on which the Board would rely.

I would see the aforementioned reports as helpful to the Board in making a determination of the matter.

I would also appreciate in due course, any material, which would assist me to take instructions and represent Ms Singh.

22. In response, on 16 April 2004, a substitute direction to attend was issued for 27 April 2004. On 19 April 2004, the acting Secretary (Ms Nicholls) reported to Mr Chenoweth that:

Mr Ladlay (Ms Singh's legal rep) has agreed for her hearing to be held over until the meeting on 27 April 2004 (1pm). We have sent out all relevant documentation (and then some) ... .

23. Mr Ladlay and Ms Nicholls corresponded on 22 April 2004. The first recorded item seems to have been an email from Mr Ladlay at 4.12 pm.

Further to our telephone discussions today. I note that the Board have requested that Ms Singh be examined by Dr O'Dea with a view of obtaining a psychological report for the hearing.

In view of the fact that the Board are seeking a psychological report Ms Singh will not be seeking a report from Dr Thompson who would be asking for professional fees to obtain same. In view of the fact Ms Singh is unable to see Dr O'Dea until 3 May I believe it would be beneficial to put the meeting of the 27th April off until this report is furnished by Dr O'Dea.

I have asked the [sic] Mr Nicholas Levities [sic] of Drug Health Services to provide a report on his observations as to Ms Singh's behaviour and treatment and Mr Lavidis is available to attend the meeting.

I am yet to received [sic] any document ion [sic] from the Board including any report from Ms Singh's parole officer. I will have my clerk check my post office box again this afternoon.

Your urgent advice as to the Board's position re the above would be appreciated so that I may make suitable arrangements and take further instructions.

24. The apparent contradiction with Ms Nicholl's note of 19 April is elucidated by two file notes of 22 April 2004. They are:

P/C to Mr Chris Chenoweth regarding Ms Singh's Barrister requesting a further adjournment of Ms Singh's hearing to allow for the production of psych report by Dr O'Dea. Mr Chenoweth gave instructions to inform Mr Ladlay the hearing would proceed as scheduled, as the alleged breaches were very serious and alleged to have been occurring for some time.

P/C to Mr Ron Ladlay, informed that the hearing would go ahead as scheduled. I explained to Mr Ladlay that the psych report was requested to assist in the case management aspect of Ms Singh's case not to gain material to assist in a hearing for alleged breach behaviour.

Although all information had been sent to Mr Ladlay he had not received it. He further stated that he was having difficulties with his fax machine. Assured him that all information would be provided again for him prior to COB 23 April 2004.

25. There is a further email, 23 April 2004 at 8.55 am, attaching transcript of the meeting 18 December 2003. It notes other material was being faxed "this morning".

26. Presumably that material included Ms Smith's reports and those of Mr Lavidis.

27. Ms Smith's final report was dated 23 April 2004.

28. As to drug use, she noted that "... Ms Singh now admits that she has had difficulty totally abstaining from cannabis use". She added however, "she is adamant that she has avoided amphetamine and cocaine use because of its known detrimental effects on her mental health".

29. In all other areas, Ms Smith reported that Ms Singh's reporting and cooperation had improved. She was now regarded as reliable and punctual. It was recommended that Ms Singh be given "a final warning".

30. Mr Nicholas Lavidis, clinical psychologist and counsellor, provided two further reports, one to Mr Ladlay and one to the Board. They were dated 23 April 2004.

31. In the report to Mr Ladlay, Mr Lavidis expressed the opinion that:

... it was evident [in January 2004] that Ms Singh was psychologically dependent on cannabis, given that Ms Singh was willing to jeopardise her liberty for the sake of smoking cannabis.

32. However, despite her resolve thereafter, he reported that she had unthinkingly inhaled a "joint" at the Gay and Lesbian Mardi Gras.

33. Mr Lavidis considered this to have been an understandable lapse in the circumstances but illustrative of a continuing psychological dependency. Overall, he considered that:

... Ms Singh is currently in the active phase of change, since Ms Singh has made modifications to her behaviour by stopping her daily cannabis smoking and attending counselling session [sic] on [sic] a regular and reliable manner with the view of not smoking cannabis and attempting to identify triggers that may led [sic] to her smoking.

34. It was his opinion that if further progress was to be effected, it was best done in the community setting:

... wear [sic] Ms Singh can be subjected to the triggers, so that she can also effectively put in to [sic] practice the skills obtained in counselling sessions. Failing to be subjected to the triggers may only assist in relapse rather then [sic] lapse.

35. The report to the Board, though differently expressed, was to similar effect.

36. It is, however, not clear whether those reports were seen by Mr Ladlay until 27 April 2004. It is clear that the four most recent pathology reports on urinalysis, were only received by Ms Smith, who attended on the Board by telephone, on 27 April 2004, just before the Board's meeting commenced. It is apparent that Mr Ladlay was similarly disadvantaged. Ms Smith attended the Board meeting by telephone.

37. Mr Chenoweth drew her attention to the new analysis reports. Her response was:

... the results of the 5th of the 4th is that the result has been diluted, it's positive to cocaine, also there's urine was provided at 6.30 in the afternoon - 6.32 pm - when Ms Singh was then requested - or directed by me to provide between 8 and 10 in the morning for reasons that are set out in my report.

I've spoken to Dr Meerkon ... in regards to the positive cocaine results and he told me that it was unlikely to be anything else other than a result of a cocaine use.

38. She had not had a chance to discuss the results with the applicant. Mr Chenoweth then asked, after further discussion of the more recent results:

... your recommendation there is that Ms Singh be given a final warning and you point to the fact that she has been regular in her attendance in supervision sessions.

Do you still hold the view that that's an appropriate recommendation?

Well sir, I only received these new results today, you know, an hour or two hours ago, so it's difficult for me - I guess it's - it does, you know, it certainly changes things, because as I said in my report, you know, there has been some improvement and one of the improvements that I found was that there's been no adulterated urine since 1 March, and now we have this one on 5 April, and also the fact that there's - appears to have been cocaine use, which given Ms Singh's history is very concerning.

... it's difficult for me at this stage ... (indistinct) ... to say, you know, what my recommendation would be, whether I change it or not. I guess it's the - it would be helpful, I suppose, to hear Ms Singh's account of, you know, why this urine is positive for cocaine.

39. Clearly, the central concern was the positive result for cocaine. Ms Smith did, in cross-examination, accept that the amphetamine result was possibly associated with the applicant's admitted use of cannabis at the Mardi Gras in that the cannabis might have been "laced" with amphetamine, a not unusual occurrence. She also agreed that the "adulteration" of samples could be explained by drinking a good quantity of water, say, in association with exercise at a gym.

40. She could not say if the results were deliberately adulterated or not. It was outside her area of expertise. She could not, for similar reasons, comment on the significance of the cocaine result or whether it could have resulted from a cold or flu medication.

41. She was referred to Mr Lavidis' view of Ms Singh's psychological dependence on cannabis. She was aware that Ms Singh had been referred to Dr O'Dea and understood Ms Singh had been so referred "for an independent psychiatric review". She did not suggest any more limited purpose. She did agree that cannabis use could cause "low levels" of the substance to remain in the body for "up to some six months". She had not discussed that question, however, with a pathologist.

42. Ms Smith was then asked to comment on Mr Lavidis' report. There was in that report the somewhat ambiguous reference to the applicant having been a daily user of cannabis, prior to starting counselling with Mr Lavidis and having lapsed thereafter only at the Mardi Gras. Ms Smith's understanding was that the applicant ceased daily use after the December meeting of the Board, though the applicant did admit lapsing on 24 and 25 December 2003. That struck Mr Chenoweth as "a conflict". It should not have done so. Mr Lavidis did not comment on whether he understood daily use to have continued up to 27 January 2004 or whether it had ceased at the time Ms Smith understood it to have ceased.

43. At this stage, it appears that, unexpectedly, Mr Lavidis was not made available to be questioned as to his reports. He was, presumably, unaware of the reports that had been put to Ms Smith.

44. His reports were before the Board. He did not regard the "lapses" of 24 and 25 December and March 2004 as being significantly adverse to the applicant's rehabilitation but he did flag the need for continuing psychological counselling.

45. Ms Singh then sought to explain the matters of concern. She made it clear that apart from the 9 March test result she could not interpret or explain the continuing results for the low levels of cannabis (THC) found in her urine samples.

46. It is apparent that the Board regarded those results as inconsistent with the single lapse in March. She could not explain the result positive for cocaine and was adamant she had not used it or, knowingly, amphetamine. She stated that she was working through the problem of susceptibility to cannabis use with Mr Lavidis.

47. Mr Ladlay (AB58) did remark, during the applicant's evidence:

... I did attempt to have Mr Levidis [sic] present today but unfortunately the unit that he works for wouldn't release him even by telephone hook up, so I think the board could have benefited, certainly, from questions of Mr Levidis [sic], particularly in light of the last sample that's come up, and I suppose given the fact that he hasn't even spoken to Ms Singh about that.

And also Ms Singh's psychiatrist, I was going to call her to see if she could give some evidence but unfortunately she was not in a position to attend either. But I note that there is an appointment made with psychiatrist Mr O'Day [sic] and I did ask that the matter be adjourned pending that report and whether that would benefit the Board in their determination but I've got nothing further to present the Board at this point in time.

48. That statement, at that stage, plainly highlighted the lack of information available to the Board to enable it to resolve, adversely to the applicant, her claim of two significant lapses in relation to cannabis use and as to cocaine use, or her prospects for successful rehabilitation from residual dependence on cannabis. The presence of those psychological factors and their prospects for favourable resolution, if relevant, could only be addressed by further information as had been indicated by Mr Ladlay.

49. The Board members did not comment on that statement. Members asked further questions of the applicant with Mr Chenoweth commenting, in relation to the meeting of 18 December 2003:

... I tried to make it as clear as possible the Board's concern about your failure to comply with conditions of parole, the question of cannabis use and the sort of answers you gave us there about changing relationships and putting all that behind you.

And yet here we have a significant pattern of use as indicated by the certificates.

50. There was, obviously, concern about the test reported as positive for cocaine. There was no material before the Board, of course, to indicate whether false positives can result from use of substances other than the illicit drug itself. The possibility was flagged, but not explored, that a sinus preparation could return a result positive for cocaine.

51. Mr Ladlay urged the Board to adopt Ms Singh's original recommendation. Indeed, but for the analysis reports finding cannabis and cocaine (once), such would have been a reasonable conclusion which the Board might have been expected to embrace. If not it might have adjourned to obtain further expert guidance on the unresolved questions that had been raised.

52. The Board adjourned for 39 minutes before delivering a decision to revoke the applicant's parole order.

53. The reasons were briefly expressed on 27 April 2004. More detailed reasons were delivered on 6 May 2004. The reasons, in summary, were:

s Admitted breaches (cannabis use) of 24 and 25 December 2003 and 6 March 2004;

s There had been "a number of other reports of cannabis use", the explanation for which "the Board finds unsatisfactory";

s There had been a previous "clear warning" about non-compliance with conditions of parole;

s There were other breaches relating to attendance for supervision "but those are matters with which the Board does not give as much weight to as the failures by Ms Singh to address her drug dependency".

54. In its more extensive reasons it was also stated:

The Board also took into account that Ms Singh's drug use had, on the evidence, escalated to the use of methylamphetamine and cocaine.

55. Mr Lavidis' reports were rejected as being "of limited assistance" as he was unaware of the fact, as the Board concluded it to be, of "continued use of cannabis and the use of other drugs as indicated by the urinalysis reports".

56. On 7 June 2004, the applicant applied for an order of review of this decision. On 5 August 2004, I directed that the order of revocation of 27 April 2004, be suspended.

57. The essence of the grounds relied on for review is whether the decision is rendered defective by breach of the rules of nature justice (s 5(1)(a), ADJR Act) or whether it was, within the meaning of s5(1)(e), an "improper exercise of the power" to revoke parole, (see also s 5(2)(a), (b) and (f)).

58. It was accepted that the rules of natural justice applied to the Board's proceedings (see Johns v Release on Licence Board (1987) 9 NSWLR 103). The issue was whether the Board by refusing or failing to adjourn proceedings to enable Mr Lavidis and Dr Thompson to be heard, particularly in light of the new material presented on the morning of the hearing and so as to enable Dr O'Dea to examine the applicant and report on her mental state relevant to cannabis use and, further, in failing to enquire as to whether the only conclusion to be drawn from the analysis reports was repeated cannabis use and an instance of cocaine use (the amphetamine use was explained - though the Board, contrary to the undisputed evidence, seems to have disregarded that explanation).

59. It is apparent that Mr Ladlay, both before and during the hearing, raised the issue of Mr Lavidis' attendance and that of either Dr Thompson or Dr O'Dea to report to the Board and be available for questioning. It is apparent that the issue of further and continuing drug use was of pivotal importance.

60. It was not clear that the Board had declined to adjourn the proceedings of 27 April 2004. The statement of a reason for not regarding Dr O'Dea's possible evidence as significant simply cannot be accepted. It is not reasonable to suppose he would not review and report on the mental health of the applicant, including responsibility for her admitted failures to abstain from drug use.

61. There was the issue of the urinalysis reports. Clearly, they raised concern as to whether there was unacknowledged drug use by the applicant. There remained an issue as to her moral culpability for such continued use. If it appeared that whatever use was found to have occurred presented a treatable problem and that the applicant was honestly addressing that problem then revocation of parole would not be called for. On the other hand, if the applicant was being deliberately defiant or simply could not be rehabilitated then revocation until those unfavourable indicators altered would be warranted.

62. By declining to permit an opportunity to further explore those issues the Board failed to afford natural justice to the applicant.

63. It is not necessary to go further in considering whether, by expressing definite conclusions upon the incomplete material it had before it the Board had engaged in an improper exercise of its power to revoke parole.

64. I would simply observe that, so far as Dr O'Dea was concerned, the mere fact that he could not see the applicant to report before 27 April 2004 was not itself sufficient to render the hearing unfair. It was the fact that the Board itself arranged for that consultation, then at the last moment, resiled from the suggestion that it perceived such a report as important. The reason expressed for not doing so did not make sense but, it did lead, as might be expected, to a last minute attempt to obtain a replacement report from Dr Thompson. That attempt was unsuccessful. It was apparent that the failure to place updated material of a critically relevant character before the Board was no fault of the applicant or her counsel.

65. It is true that Mr Ladlay could have been more insistent upon the necessity for an adjournment but, he was entitled to assume that the Board, if it was going to reject Ms Singh's evidence without consideration of whether that rejection could be supported simply on the basis of the urinalysis reports, would indicate that it was so minded and have invited Mr Ladlay, who had only received the seriously concerning report of 9 April that morning, to consider whether he wished to insist on the adjournment he had already proposed.

66. The admitted breaches of parole conditions certainly enlivened the Board's power to revoke parole. Such a decision, however, is a discretionary exercise to which the results of the examination to be conducted by Dr O'Dea were clearly relevant. So also was the proper interpretation of the urinalysis results. I express no view as to whether, after a fair and proper hearing, the Board might nevertheless have decided to revoke the parole order. The hearing of 27 April 2004 was, however, fatally flawed. It is unnecessary to consider the other grounds of objection.

67. The decision to revoke parole is quashed. It is open to the Board to re-consider, if it wishes to do so, the breaches of parole alleged in support of the notice to attend, originally listed for 20 April 2004, after a fair opportunity to be heard has been extended to the applicant.

I certify that the preceding sixty-eight (68) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Chief Justice Higgins.

Solicitor for the Respondent: ACT Government Solicitor

Decisions (Judicial Review) Act 1989

Offenders (Interim) Act 2001

Decisions (Judicial Review) Act 1989

Offenders (Interim) Act 2001

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