Minister for Corrections NSW v Main

HER HONOUR: Robert Michael Main was sentenced on 11 March 1985 to two sentences of life imprisonment for offences of assault with intent to rob with the use of corporate violence. He was then aged 28 years.

Whilst in custody on remand, he murdered an inmate and was sentenced to a third term of imprisonment for life. That sentence was imposed on 28 May 1987. Mr Main is now aged 61 years and has spent the last 33 years in gaol.

The first two life sentences were re-determined by Adams J and have now been completed. The third life sentence was also re-determined by Adams J, resulting in the imposition of a non-parole period of 25 years commencing on 28 May 1987 and concluding on 27 May 2012. However, the balance of that sentence remained a term of imprisonment for life. It follows that Mr Main was first eligible for release to parole on 27 May 2012 but that the third life sentence continues to govern him for the rest of his natural life.

Mr Main was refused parole in 2012, 2013 and 2014. In October 2015, however, the State Parole Authority gave notice of its intention to grant parole. On 27 May 2016, following a public hearing, parole was granted.

The Minister for Corrections for the State of New South Wales has commenced urgent proceedings seeking judicial review of that decision. By way of interlocutory relief, the Minister seeks a stay of the parole authority's decision pending further order or, in the alternative, an injunction pursuant to s 66(4) of the Supreme Court Act 1970 (NSW) restraining the Commissioner of Corrective Services from acting on the Parole Authority's decision until further order of the Court.

The application for a stay has been heard by me this morning. There is, under the Crimes (Administration of Sentences) Act 1999 (NSW), an automatic stay if application is made to the Supreme Court within 14 days after a parole order is made. However, the present application was not made within that period.

The order of the Parole Authority made 27 May 2016 was that the prisoner should be released on parole not before 10 June 2016 and not after 17 June 2016, which is today. The summons was filed in Court before me as duty judge two days ago, on 15 June 2016, in the afternoon, and was stood over to today as being the first occasion on which the prisoner could be represented so as to defend the application.

I have determined that the application for a stay and the alternative application for an injunction should be refused. These are my reasons for reaching that conclusion.

The legislation which governs the decision-making process of the Parole Authority may be found in part 6 of the Crimes (Administration of Sentences) Act. Mr Main is a “serious offender” within the meaning of that Act and, accordingly, certain additional provisions apply to the parole decision in his case. Section 126 of the Act provides that offenders may be released on parole in accordance with part 6 of the Act. Section 131(1) provides that a parole order is sufficient warrant for any person having custody of the offender to release him in accordance with the terms of the order; s 131(2) provides that an offender who is released on parole under part 6 is to be released from custody on the day specified in the relevant parole order.

A consideration relevant to the assessment of the balance of convenience, to which I will return at the conclusion of this judgment, is that Mr Main has had an expectation since 25 May 2016, enduring until two days ago, that he would be released no later than today.

Section 135 of the Act states the duty of the Parole Authority not to make a parole order unless it is satisfied on the balance of probabilities that the release of the offender is appropriate in the public interest. Section 135(2) states a list of mandatory considerations for the Authority’s determination in reaching that conclusion.

In the case of a serious offender, additional mandatory considerations are stated in s 154 of the Act. That section provides:

Section 193C of the Act relates to the record of the Parole Authority's decisions. Subsection (2) of that section provides that, in recording its reasons for a decision that an offender should or should not be released on parole, the Parole Authority must address the matters referred to in s 135 and, in the case of a decision relating to a serious offender to whom s 154 applies, must refer to the matters referred to in that section.

The section does not state that a failure to refer to those matters does not invalidate the decision, a position which is to be contrasted with a number of provisions of the Crimes (Sentencing Procedure) Act relating to the failure of a court to refer to, or comply with, statutory provisions contained in that Act. It is probably appropriate on that basis (without having heard argument on the issue) to assume that the Parole Authority does not have authority to make a decision without referring in its reasons for decision to any mandatory considerations stated in s 135 or s 154, but that may be a debate for another day.

The Minister relied this morning on an amended summons which was filed in Court. The grounds for review stated in the amended summons are as follows:

The reasons stated by the Parole Authority for granting parole on 27 May 2016 were placed before the Court as annexure C to the affidavit of Nayomi Senanayake affirmed 15 June 2016. Those reasons do not expressly refer to s 154 of the Act. Two questions potentially arise in the substantive proceedings as to the proper construction of that section. The first is that the section, in terms, directs attention to any relevant recommendations, observations and comments made by "the sentencing court". That is a defined term. Section 3 of the Act provides:

In the case of a re-determined sentence, that section has been construed (without express reference to the definition in s 3) to include not only the remarks of the court originally passing sentence but also to the remarks of the court that re-determined the sentence creating the presently operative sentence: see Attorney General for New South Wales v New South Wales State Parole Authority [2006] NSWSC 865 at [60] per McClellan CJ at CL. Both parties proceeded today on the premise that that is the correct approach.

The second potential issue of construction raised by s 154 is the content of the mandatory consideration when regard is had to the words "any relevant recommendations, observations and comments" with emphasis on the words "any relevant". In my view, as a matter of procedural fairness and, arguably, as a matter of proper construction, the section would be construed to create a mandatory consideration only in respect of recommendations, observations and comments relevant to the exercise of the Parole Authority's function in the particular case. Further, arguably, the content of the requirements of procedural fairness would mean that it would be the obligation of the State, if parole was opposed, to identify any such recommendations, observations and comments; that is, those to which the State submitted the Authority was obliged to have mandatory regard.

At times during argument this morning, the proposition appeared to be that, regardless of what submissions might have been put to the Parole Authority, it is the duty of that Authority to "interrogate the judgments" given when sentence was passed (implicitly, for the purpose of discerning “any relevant” recommendations, observations and comments and giving them substantial weight).

It was accepted by the Minister in argument this morning that the written submissions put before the Parole Authority on behalf of the State in the present case (in accordance with the careful regime established by part 6, which makes statutory provision for the State to be heard in accordance with s 153 of the Act) made no reference to any particular "relevant recommendations, observations and comments".

In any event, in the present case, I do not think the resolution of either of those questions of construction makes any difference to the question whether the stay should be granted today. That is because I have reached the conclusion that, on any approach, the Minister's case is tenuous and the balance of convenience favours refusing the stay sought.

As already explained, the relevant sentence is the third life sentence (the other two sentences having been served). That sentence was imposed by Enderby J who, at the time of passing sentence, made only brief remarks, set out in full below:

The Minister today did not identify any individual recommendation, observation or comment from within those remarks on sentence to which it is alleged the Parole Authority failed to have regard. I think the proposition was put that it was necessary for the Authority to have regard to the whole of the remarks and expressly to say that it had done so. To the extent that the contention comprehended the proposition that a failure to give a formulaic incantation recording reference either to the remarks as a whole or to individual particularised remarks reveals error, that is a proposition which, in my view, must be rejected.

Authorities dealing with the question of judicial review of administrative decisions are replete with observations to the effect that it is appropriate to look at matters of substance rather than form and that it is inappropriate for a court reviewing such decisions to parse the reasons stated by the decision-maker with an eye attuned to finding error.

Leaving aside the original remarks of Enderby J, assuming the proper construction of s 154 requires the Parole Authority to have regard to the judgment given upon redetermination of a life sentence, there are, in this case, two relevant judgments, each of Adams J of this Court (one in 1999 and one in 2008). A consideration of what are the relevant recommendations, observations and comments made in those judgments is complicated by the fact that, over the period of nine years between the first and the second of those decisions, Adams J evidently reached a very different assessment of Mr Main. If s 154 is to be construed so as to require the Parole Authority to give "substantial weight" to all of those remarks, a real question would be raised as to how it should assess and weigh competing and even inconsistent remarks.

More importantly, however, in my view, the weakness of the Minister's application is demonstrated in the fact that, as already observed, the State did not at the parole hearing identify any particular recommendation, observation or comment of any of the sentencing courts to which it was contended the Authority had to have regard. The State's submissions filed pursuant to s 153 of the Act were annexed as annexure A to the affidavit relied upon by the Minister. Ms Goodhand, who appears for the prisoner today, submitted that the burden of the submissions put in that document was the point at paragraph 39 and 40 of the document, as follows:

In my view there is force in that submission. An application by the Minister for judicial review of the decision of an Authority with the expertise and experience of the State Parole Authority should not be allowed to become an opportunity for the State to reformulate the submissions put through the regime allowed by s 153 of the Act. Further, as already indicated, I do not think the Court should approach the task of review on the premise that the failure to give a formulaic incantation of the terms of the section in itself reveals error.

My consideration of the course of events taken in this difficult case and the ultimate conclusion reached relatively slowly by the Parole Authority that Mr Main is now entitled to be released on parole has persuaded me that, as submitted on Mr Main's behalf, there is a real likelihood that, if there was a failure to refer to any relevant observation or recommendation, it was merely a failure of form and one which, were the matter to be remitted to the Parole Authority, would result in nothing more than a better or more fully-articulated statement of reasons reaching the same result. In saying that, I do not mean to be understood to say that I think error is revealed, or even arguably revealed, in the existing reasons, but only to say that even if I am wrong in my assessment of the proper construction of the section, I do not think the error is one that would, if remitted to the Parole Authority, result in a different outcome.

Turning to the balance of convenience, as already noted the prisoner has had an expectation of being released to parole today since 27 May 2016. The Authority's decision on that date was reached after careful consideration over three hearing dates on 27 November 2015, 1 April 2016 and 27 May 2016. As put on the prisoner's behalf, it is not as if he has never been outside of the walls of the gaol over the past 33 years. He has had 30 occasions of weekend leave, 14 months of work release and has participated in the violent offenders’ treatment program in the community.

There is the further protection, as noted in the materials considered by the Parole Authority, that he is currently subject to a community treatment order which is directed to addressing the concern raised in the written submissions put before the Parole Authority by the State to which I have already referred. In the most recent supplementary pre-release report in respect of the prisoner, the following material was put before the Authority:

In all the circumstances I am not persuaded that the occasion for staying the decision of the Parole Authority has been demonstrated. Those are my reasons for refusing the application.