Mawas v Commissioner of Corrective Services New South Wales

1. [1]

   HIS HONOUR: By an amended summons filed 22 January 2019, Rabeeh Mawas (“the plaintiff”), an inmate at Parklea Correctional Facility, sought judicial review, pursuant to ss 69 and 70 of the Supreme Court Act 1970 (NSW), with respect to decisions of the Commissioner of Corrective Services New South Wales (“the Commissioner”), the Serious Offenders Review Council (“the Review Council”) and the New South Wales Parole Authority (“the Parole Authority”).

2. [2]

   Those relevant decisions were as follows:

   1. (1)

      two decisions of the Commissioner dated 11 March and 10 November 2017, respectively, both of which concerned the classification and placement of the plaintiff;

   2. (2)

      a decision of the Review Council made on 19 June 2018, namely, that it was not appropriate that the plaintiff be considered for release on parole (“the Review Council decision”); and

   3. (3)

      decisions of the Parole Authority, which concerned the following::

3. [3]

   Leave was sought by the plaintiff to institute the proceedings, pursuant to s 4 of the Felons (Civil Proceedings) Act 1981 (NSW), and to bring the proceedings out of time pursuant to r 59.10 of the Uniform Civil Procedure Rules 2005 (NSW).

4. [4]

   On 21 November 2018, prior to the hearing of the application, the Review Council and Parole Authority filed submitting appearances, and on 5 December 2018, the Attorney General for New South Wales (“the Attorney General”) was granted leave to intervene, pursuant to s 23 of the Supreme Court Act, and was joined as the fourth defendant. (The Review Council, Parole Authority and Attorney General shall, collectively, hereinafter be referred to as “the defendants”).

5. [5]

   At the outset of the hearing of the amended summons, the plaintiff desisted from his action against the Commissioner. In the result, grounds 1 to 7 of the statement of grounds in the amended summons (there were 13 grounds in total) fell away, leaving grounds 8 to 11, which concerned the decision of the Review Council, and grounds 12 and 13, which related to the decisions of the Parole Authority.

6. [6]

   By a further amended summons filed on 15 April 2019, the plaintiff sought leave to further amend his application, effectively bringing in a fourteenth ground of appeal, which concerned the Parole Authority. The further amended summons also reflected the abandonment of relief sought against the Commissioner (grounds 1 to 7) and part of the relief regarding the Review Council (grounds 9 and 10).

7. [7]

   There was no objection to leave being granted for the plaintiff to move upon the further amended summons. There is no proper discretionary basis to refuse leave being given, in this respect, and it is granted.

8. [8]

   The remaining issues of leave may be briefly dealt with ahead of the consideration of the respective merit grounds.

   1. (1)

      Firstly, no leave is required for the plaintiff to institute these proceedings pursuant to s 4 of the Felons (Civil Proceedings) Act: see Patsalis v State of New South Wales (2012) 81 NSWLR 742; [2012] NSWCA 307 at [41], [55] and [114].

   2. (2)

      Secondly, the defendants (properly in the circumstances of this matter) took no objection to the plaintiff being given leave to file the proceedings out of time. That leave is given.

9. [9]

   This judgment concerns, therefore, the relief claimed in the further amended summons with respect to:

   1. (1)

      the Review Council decision (grounds 8 and 11);

   2. (2)

      the parole refusal decision (grounds 12 and 13); and

   3. (3)

      the review decision (ground 14).

GROUNDS

1. [10]

   The remaining five grounds of appeal shall, for convenience, bear the numbers which correspond to the further amended summons. The statement of the remaining five grounds is extracted below:

Crimes (Administration of Sentences) Act 1999

1. [11]

   The definition of “serious offender” in s 3 of the Crimes (Administration of Sentences Act) 1999 (NSW) (“the CAS Act”) appears below:

2. [12]

   Part 6 of the CAS Act concerns “Parole”. It applies to the granting of parole to those offenders who are subject to sentences of imprisonment. It deals with the following, inter alia, matters:

   1. (1)

      eligibility for release on parole, the conditions to which parole is subject, the general obligations of offenders who are on release on parole and other provisions applying generally to parole (Div 1);

   2. (2)

      procedures for parole orders for sentences of more than 3 years (Div 2);

   3. (3)

      procedures for parole orders for sentences of 3 years or less (Div 3); and

   4. (4)

      procedures for parole orders in exceptional circumstances (Div 4).

3. [13]

   Section 3 provides that a “Parole Authority” means the State Parole Authority constituted by s 183 of the CAS Act.

4. [14]

   Section 135 of the CAS Act concerns the general duty of Parole Authority relating to release of offender. It provides as follows:

5. [15]

   Subdivision 3 of Part 6 is titled: “Serious offenders”. Sections 144 and 146 relevantly concern the formulation of the Parole Authority’s “initial intention” and the provision of “notice” with respect to a parole order for a serious offender. They are extracted below:

6. [16]

   Part 9 of the CAS Act concerns the Review Council. Section 3 defines “Review Council” as the Serious Offenders Review Council constituted by s 195 of that Act. Part 9 deals with, inter alia, the following:

   1. (1)

      the constitution and functions of the Review Council (Div 1);

   2. (2)

      the powers of the Review Council in relation to inquiries conducted by it (Div 2); and

   3. (3)

      the establishment of the Serious Offenders Management Committee and its subcommittees (Div 3).

7. [17]

   Section 197 sets out the functions of the Review Council and relevantly provides::

8. [18]

   Section 198 sets out the matters to be considered in relation to “certain advisory functions”. It is extracted in full below:

Crimes (Administration of Sentences) Regulation 2014

1. [19]

   Part 3 of the Crimes (Administration and Sentences) Regulation 2014 (NSW) (“the Regulation”) concerns the classification, placement and case management of inmates.

2. [20]

   The Commissioner is to determine the inmate’s classification in accordance with this Div 1 of Part 3 “[a]s soon as practicable after an inmate is first received into a correctional centre”: cl 11(1) of the Regulation.

3. [21]

   Every offender who enters custody is classified in accordance with the security classification levels set out in cll 12-14A of the Regulation. An inmate’s classification under cll 12, 13 or 14 “is to be reviewed at least once every 12 months and at the other times the Commissioner determines”: cl 11(2) of the Regulation.

4. [22]

   Clause 12 concerns the classification of male inmates and is extracted below:

FACTUAL BACKGROUND

1. [23]

   The factual background was expressed in the written submissions for the plaintiff. That background was uncontentious and forms the backbone of what follows.

2. [24]

   The plaintiff was convicted of murder and sentenced by Wood J on 29 August 2002 to a head sentence of 25 years’ imprisonment and a non-parole period of 19 years to commence from 17 September 1999: R v Kanaan, Mawas, El Assaad [2002] NSWSC 774. The earliest possible release date was, therefore, 16 September 2018 and the expiration of the head sentence will occur on 16 September 2024.

Security Classification Progression: Category C1 to Category C2

1. [25]

   The plaintiff was remanded into custody to serve his sentence. Initially, the plaintiff was classified as Category C1 (“C1”). A C1 classification concerns “the category of [male] inmates who, in the opinion of the Commissioner, should be confined by a physical barrier unless in the company of a correctional officer or some other person authorised by the Commissioner”: cl 12(1) of the Regulation.

2. [26]

   On 8 November 2016, the Review Council recommended that the plaintiff progress in classification from C1 to Category C2 (“C2”). A C2 concerns “the category of [male] inmates who, in the opinion of the Commissioner, need not be confined by a physical barrier at all times but who need some level of supervision by a correctional officer or some other person authorised by the Commissioner”: cl 12(1) of the Regulation. If accepted, such a progression (or reclassification) would provide the plaintiff with the capacity to engage in supervised work at the gaol.

3. [27]

   On 14 November 2016, the Commissioner refused to reclassify the plaintiff. The plaintiff remained at Junee Correctional Centre and had his case plan adopted by the Commissioner as per the Review Council’s recommendations.

4. [28]

   For completeness, a “case plan” in relation to an offender is defined in cl 3 of the Regulation as follows: “a plan for the management of the offender that includes provisions that indicate the development programs in which the offender should be encouraged to participate and the services that the offender should be encouraged to make use of, and the offender’s obligations in relation to the programs and services” (see also Div 3 of Pt 3 of the Regulation).

5. [29]

   On 28 February 2017, the Review Council, once again, recommended that the plaintiff progress from C1 to C2, which, as mentioned above, would allow him to engage in supervised work at the gaol, as well as remain at Junee Correctional Centre and have his case plan adopted by the Commissioner.

6. [30]

   On 11 March 2017, the Commissioner, again, refused to reclassify the plaintiff. It was confirmed that the plaintiff would remain at Junee Correctional Centre and have his case plan adopted.

7. [31]

   On 9 May 2017, the Commissioner reclassified the plaintiff from C1 to C2. As a result of that progression, the plaintiff was allowed to engage in supervised work within the gaol.

8. [32]

   On 7 November 2017, the Review Council recommended that the plaintiff’s classification remain at C2, but that he be allowed to essentially work "offsite" (or away from the gaol premises). The Commissioner did not approve the plaintiff to work away from the gaol on 10 November 2017.

9. [33]

   On 8 May 2018, the Review Council, once again, recommended the plaintiff be allowed to work away from the gaol whilst still retaining the C2 classification. That recommendation was approved by the Commissioner on 12 May 2018.

The Review Council Decision

1. [34]

   In the Review Council decision of 19 June 2018 (which incorporated a 26 page report), the Review Council recommended that the plaintiff’s release to parole was not appropriate.

2. [35]

   The report was authored by Mr John Favretto, Chairperson of the Review Council, titled, “Initial Report of the Serious Offenders Review Council” and dated 19 June 2018 (“the report”). The report was authenticated pursuant to cl 18 of Sch 2 of the CAS Act.

3. [36]

   Under the heading “Advice of the Council to State Parole Authority (s 197(2)(b))”, Mr Favretto recorded the following:

4. [37]

   The report referred to the following matters:

   1. (1)

      Extracts of the primary judge’s sentencing remarks, which detailed the plaintiff’s role in the offence and his background.

   2. (2)

      Extracts of the judgment of the Court of Criminal Appeal dismissing the plaintiff’s appeal against his conviction and sentence.

   3. (3)

      The plaintiff’s classification and placement progress. The Review Council noted that in 16 reviews, between 22 July 2003 and 21 June 2011, the Review Council concluded that there should be no change in his classification. The Commissioner approved the Review Council’s recommendations for a reduction in the plaintiff’s classification on 16 January 2012, 30 June 2013 and on 2 April 2016. However, the Commissioner did not approve reductions in the plaintiff’s classification on 14 November 2016 and 11 March 2017. The Commissioner approved another reduction in classification on 15 May 2017.

   4. (4)

      The programs the plaintiff had completed.

   5. (5)

      That the plaintiff self-refers on a needs basis to psychological services.

   6. (6)

      The plaintiff’s employment history and his “excellent work reports”.

   7. (7)

      That the plaintiff has not yet been approved to undertake external leave programs.

   8. (8)

      A report from Amy Refalo, Community Corrections Officer at the Parklea Community Corrections Unit (“the Refalo Report”), stating that:

5. [38]

   The “policy” relied upon by the plaintiff in ground 8 concerned the timeframe guidelines for recommending progressions in an offender’s security classification by the Commissioner. Those guidelines are set out in a document issued by Corrective Services NSW titled "Offender Classification and Case Management Policy and Procedures Manual" (which shall hereinafter be referred to as "the policy"). In speaking of the functions of the Review Council, the policy referred to the additional functions of the Review Council:

6. [39]

   The policy also referred to the Review Council and Review Council Sub-Committees, at para 18.1.3, and stated:

7. [40]

   Further, as to the functions of the Review Council, the policy stated (at para 18.1.5):

8. [41]

   Under the heading, “Commissioner’s Time-Frame Guidelines for Consideration for Progression in Classification”, the policy recorded:

9. [42]

   There then appears a table referring to classification progression from “A2-B” to “C2-C3” (with progression over time within that classification).

The Parole Refusal Decision

1. [43]

   On 13 July 2018, the Parole Authority made a “decision” in relation to the plaintiff’s parole, which was communicated in a document entitled “Notice of Intention to Refuse Parole” (which document shall hereinafter be referred to as “the Notice”). The Notice was described as “Form 2B(r) - Serious Offender” and referred, at the outset, to s 146 of the CAS Act. The Notice was plainly issued pursuant to s 144 of the CAS Act.

2. [44]

   In the opening paragraph of the Notice, the following was stated:

3. [45]

   The Notice also stated that an offender may apply for “a hearing to review [the Parole Authority’s] intention to refuse [the offender’s] release on parole”. Provision was made for various fields of reasons demonstrating the need for a hearing, one of which was: “There are exceptional circumstances that the Parole Authority are unaware of”.

4. [46]

   That intention, as appeared on the Notice, was communicated to the plaintiff on 24 July 2018 in the parole refusal decision. At that time, the Notice was accompanied by detailed reasons setting out the matters the Parole Authority had regard to on 13 July 2018, even though that step was not required by s 146 of the CAS Act.

5. [47]

   In the reasons given in the parole refusal decision, reference was made to matters required for consideration under s 135(3) of the CAS Act. As to the provisions of s 135(3)(j), the Parole Authority stated: “Not applicable”.

6. [48]

   As to s 135(5), the Parole Authority stated:

7. [49]

   The parole refusal decision also stated:

8. [50]

   The plaintiff made a two page submission to the Parole Authority on 14 August 2018. In that submission, it was contended, inter alia, that the plaintiff “ought to be granted an opportunity to be heard and make submissions” on various matters identified, including, “the existence of exceptional circumstances justifying a release on parole”.

The Review Decision

1. [51]

   On 17 August 2018, the Parole Authority declined to conduct a hearing to review the parole refusal decision. That decision was earlier identified as the review decision.

2. [52]

   The review decision was expressed in two documents:

   1. (1)

      The first was headed “Determination by the [Parole Authority] in respect of an intention to refuse parole”. In that document, the Parole Authority stated that it considered the application for a review hearing, which was completed following the instructions in the Notice to refuse parole. Parole was refused, it was stated, because the plaintiff “needs to participate in external release program and SORC does not consider that release of the offender is appropriate”.

   2. (2)

      In a further document, described as “Notification of Determination” (the defendants indicated it was issued on 18 August 2018 but it bears the date 17 August 2018), the Parole Authority determined:

3. [53]

   In the result, the plaintiff remained at the C2 classification and was housed at the Parklea Correctional Centre until early 2019.

Security Classification Progression: Category C2 to Category C3

1. [54]

   On 25 January 2019, the Commissioner reclassified the plaintiff, on recommendation from the Review Council (made on 22 January 2019), from C2 to Category C3 (“C3”). A C3 classification concerns “the category of [male] inmates who, in the opinion of the Commissioner, need not be confined by a physical barrier at all times and who need not be supervised”: cl 12(1) of the Regulation.

2. [55]

   At the time of the hearing, the plaintiff was housed at Parklea Correctional Facility on a C3 classification.

3. [56]

   In written submissions dated 28 March 2019, counsel for the plaintiff submitted that the plaintiff had not been reviewed for suitability for parole since August 2018 (namely, since the review decision). However, at the hearing, counsel for the plaintiff informed the Court: “my instructions are that pursuant to that classification [namely, C3] Mr Mawas has now been able to seek some release dates themselves and actually engaged in that process of being off the correctional centre and being released”.

ISSUES

1. [57]

   With the removal of the grounds concerning the Commissioner, the issues arising out of the further amended summons were broadly expressed by the plaintiff as follows:

   1. (1)

      Did the Review Council err in applying an inflexible policy to the merits of the plaintiff’s application for parole and place undue weight on a report?

   2. (2)

      Did the Parole Authority place undue weight on the Review Council’s report and fail to take into account the plaintiff’s exceptional circumstances when considering his application for parole?

2. [58]

   The latter component of the first issue, namely, placing undue weight on a report, was caught by the abandonment of ground 9 on the amended summons and no longer occupied submissions of the parties as such.

3. [59]

   Both the first and second issues had a second component raised by the defendants, namely, whether the Review Council decision, the parole refusal decision and the review decision were amenable to judicial review.

4. [60]

   Lastly, as amended, an additional issue was introduced by virtue of the further amended summons, namely, ground 14. That additional issue concerned the failure of the Parole Authority to give reasons when determining whether the plaintiff had established exceptional circumstances on his application for parole (“the third issue”).

5. [61]

   Overall, the plaintiff’s complaint was that a series of decisions (some of which concerned issues raised under grounds 1 to 7) thwarted the plaintiff’s access to parole and, in particular, parole at the earliest possible release date.

The First Issue

1. [62]

   In summary, the plaintiff submitted:

   1. (1)

      The Review Council erred by inflexibly or rigidly applying the policy such that the merits of the plaintiff’s application were not properly considered in reaching the in the Review Council decision.

   2. (2)

      The report took into account the offending itself and the history of the plaintiff in correctional facilities. In particular, it was submitted, the Review Council placed “great emphasis” on the plaintiff’s initial years in custody (when he was having problems adjusting to prison life) and his behaviour problems in the maximum security section at the Goulburn Correctional Centre. It was contended that a more flexible approach would have seen the plaintiff progress through the classification system and receive a reduced classification earlier. In support of that contention, reference was made to the Review Council’s earlier recommendations and observations:

   3. (3)

      The report made clear, it was contended, that what was stopping the plaintiff from progressing was the Commissioner who, without any significant reason being expressed, simply rejected the recommendations of the Review Council, including all other matters taken into account by the Review Council, such as, “excellent” reports and the conduct of the plaintiff. Thus, by the time he was eligible for parole, the only matter that was stopping him from getting that parole was that he had not been allowed to participate in the “C3 external leave programs”.

   4. (4)

      Further, there was error in the advice of the Review Council (extracted above at [36]) where, despite the historical references to the plaintiff’s progress going back some years, the finding of the Review Council was that the plaintiff had yet to participate in any meaningful C2 activity, let alone approval for and participation in “C3 external leave programs”. It was submitted, in this respect, that the Review Council decision should have taken into account the fact that there was no meaningful way in which the plaintiff could have achieved a C3 classification. He had been recommended by the Review Council for release down at various stages but had been thwarted by the acts of Corrective Services.

   5. (5)

      The Review Council knew, prior to the earliest possible release date that an inmate had to follow a series of step down procedures. Therefore, by making recommendations that the plaintiff’s classification be reduced, the Review Council conveyed that the plaintiff was someone to whom such a reduction was an “entitlement”.

   6. (6)

      It was further contended that the Review Council was aware that the plaintiff was unable to engage in that process and, notwithstanding that fact, recommended strict and “inflexible” compliance with a policy, that the plaintiff could not meet. In doing so, the Review Council had taken a guideline and given it the weight of law, as opposed to a consideration of the plaintiff's other factors.

   7. (7)

      Overall, it was contended that a more flexible approach would have seen the plaintiff progress through the classification system and receive a reduced classification earlier; a course which would have enabled the plaintiff to be released to parole at the expiry of the non-parole period.

2. [63]

   In summary, the defendants made the following submissions as to this ground:

   1. (1)

      It was accepted that the Review Council recorded that the plaintiff was yet to participate in any meaningful C2 off activity, let alone acquire approval for and participation in “C3 external leave programs”. That was factually correct at the time of the Review Council decision. In coming to that view, it was submitted, the Review Council did not apply any policy – it was simply a statement of facts (as they stood at the time).

   2. (2)

      The previous decisions of the Review Council, regarding the plaintiff’s classification, which were referred to by the plaintiff, predate the Review Council decision for which judicial review is being sought. With grounds 1 to 7 abandoned, those decisions are no longer before the Court for review. Review was not sought of the earlier classification decisions at that time, with the effect that by the time the Review Council was reviewing for parole, those decisions were in place. It was contended that the classifications were “factual matters” as opposed to “policy” that the Review Council itself was applying.

   3. (3)

      A review of the report, accompanying the Review Council decision, evidences that the Review Council considered all the matters which it was required to consider pursuant to s 198(2A) of the CAS Act. This is not, as was contended by the plaintiff, a typical “Drake-style” case of an inflexible application of policy. There was no complaint, and the plaintiff accepted, that the Review Council was required to consider the plaintiff's classification history under s 198(2A)(b) of the CAS Act,.

   4. (4)

      The report does not sustain the plaintiff’s argument that the Review Council "did not genuinely consider the merits of [the plaintiff's] application". In any event, as Basten JA noted in Swift v SAS Trustee Corporation [2010] NSWCA 182 at [45], "[w]here a decision-maker does address the claim, by reference to the correct power, asking whether he or she did so 'properly' or 'genuinely', or 'realistically' may be taken, inappropriately, as an invitation to assess the correctness of the result, rather than the legality of the process".

3. [64]

   The defendants’ submissions, in my view, are of real substance. When the report is considered in its entirety, I consider the Review Council did consider the merits of the plaintiff’s application in accordance with the requirements of s 198(2A) of the CAS Act. The Review Council was required to consider the plaintiff’s classification history, pursuant to s 198(2A)(6) of that Act, and did so consistently with his then classification and, more particularly, whether he had sufficiently participated in an external leave program. That consideration was not the application of the “policy” inflexibly but an application of the applicable criteria to a known factual situation. Complaints about the classification process itself were abandoned when grounds 1 to 7 were discontinued and cannot intrude into the issues raised by this ground.

4. [65]

   Contentions directed to whether the plaintiff was disadvantaged by earlier classification decisions or whether the Review Council should have had regard to earlier “flawed” classification decisions were, in substance, an invitation to consider the correctness of the decision rather than the legality of the process.

5. [66]

   Ground 8 is rejected.

6. [67]

   The written submissions of the plaintiff dealt globally with grounds 9 to 11, but grounds 10 and 11 have the common feature in that it was contended that the Review Council gave “undue weight” to certain factors in reaching its decision. Ground 10, which was not pressed under the further amended summons, referred in this respect to reliance placed upon the Refalo Report. Ground 11 concerned reliance placed on the plaintiff’s need to engage in pre-release leave.

7. [68]

   Little is said in the plaintiff’s written submissions on ground 11, save for a reference to Ms Refalo’s reliance upon “the amount of time left to run on [the plaintiff’s] non-parole period” and the need to have regard to the plaintiff’s history, background and custodial record overall.

8. [69]

   During the hearing, the plaintiff made the following submissions:

   1. (1)

      Section 198(3) of the CAS Act lists a reasonably wide discretionary set of factors contained within subs (3)(a)-(m). There is nothing within that legislation that would permit the Review Council to limit their functioning, in terms of providing reports about whether or not the plaintiff ought to be granted parole, to say that there has to be some pursuit of the C3 “off complex” classification before he could be granted parole.

   2. (2)

      Under the CAS Act, when performing its advisory functions, the Review Council must consider the matters set out in s 198(2A). The legislation gives a reasonably wide scope with s 198(2A)(f), which provision provides the Review Council may consider “any other matter that the Review Council considers to be relevant”. Thus, there is a rather wide dimension to what the Review Council must consider, and there is no need for it to follow the C3 classification. The excellent reports of the plaintiff, his attendances on various programs and his interactions with the Review Council are highly relevant to the considerations that are required to be considered in the report.

   3. (3)

      Under the CAS Act, the consideration is not as simple as the plaintiff’s classification history. It is a range of considerations, with a catchall of any other matter that the Review Council considers to be relevant. Thus, the plaintiff contended that the Review Council had impermissibly limited itself to one factor, placing too much weight on one consideration and, thereby, impermissibly recommending that the plaintiff not be granted parole.

9. [70]

   As to ground 11, the defendants submitted that matters of “undue weight” go to the merits of the decision of the Review Council decision and are not subject to judicial review. Reliance, in that respect, was placed upon judgment of Brennan J in Attorney-General (NSW) v Quin (1990) 170 CLR 1 at 35-36, where his Honour stated:

10. [71]

    The defendants also relied upon the authority of Minister for Immigration and Citizenship v SZJSS (2010) 243 CLR 184, where it was stated (at [33]): “The weighing of various pieces of evidence is a matter for the [decision maker]”.

11. [72]

    I accept the defendants’ submissions. The relevant factors under s 198 of the CAS Act were considered by the Review Council and the weight given to them is a matter for the decision maker and not this Court.

12. [73]

    Ground 11 is rejected.

The Second Issue

1. [74]

   Counsel for the plaintiff made the following written submissions in this respect:

2. [75]

   During oral hearing, the plaintiff further submitted:

   1. (1)

      The Parole Authority “followed on from a previous error” by the Review Council. It was contended that the Review Council had fallen into error, because of its inflexible application of the policy, which error was then acted upon by the Parole Authority in the same manner. The following extract from the parole refusal decision, it was contended, demonstrates that once the Review Council makes a recommendation, the Parole Authority simply follows it:

   2. (2)

      Section 135(5) of the CAS Act provides that “Except in exceptional circumstances, the Parole Authority must not make a parole order for a serious offender unless the Review Council advises that it is appropriate for the offender to be released on parole”. The plaintiff contended the exceptional circumstances existed, namely, the matters earlier identified in the Review Council’s report.

3. [76]

   In summary, the defendants advanced the following submissions:

   1. (1)

      Grounds 12 and 13 relate to the decision of the Parole Authority to not grant the plaintiff parole, following the report by the Review Council that stated it was “not appropriate” for the plaintiff to be released on parole. Ground 12, it was submitted, appears to “quibble” with the merits of the parole refusal decision in that the plaintiff disagrees that there was “no exceptional circumstances”, and ground 13 again goes to “undue weight”, neither of which is a matter for this Court.

   2. (2)

      Where there is no statutory requirement for the Parole Authority to hold a review hearing, it was submitted, this was the opportunity for the plaintiff to point out any exceptional circumstances. The Parole Authority formed the intention to refuse parole. Implicit in that decision, it was contended, was that there were no exceptional circumstances at that point. That was why the Parole Authority asked the plaintiff, specifically, to disclose any exceptional circumstances that the Parole Authority was unaware of at that time.

4. [77]

   The exceptional circumstances which the plaintiff identified for the purpose of this application, as existing at the relevant time, were as follows:

   1. (1)

      When considering the plaintiff’s release, the Review Council had before it and placed too much weight on material that was “false, misleading or irrelevant”. That submission referred to statements in the Refalo Report, which, in summary, included:

   2. (2)

      The plaintiff ought to be afforded the opportunity to be heard in relation to the Commissioner’s rejection of recommendations to remove the plaintiff’s designation as a high security inmate and to progress the plaintiff to a C2 “on complex” classification and then “off complex” classification.

   3. (3)

      Since the forming of the view that release to parole was not appropriate, as the plaintiff had yet to participate in any meaningful C2 off complex activity, the plaintiff had successfully completed numerous instances of off complex work/activity and attained positive reports from his supervisors. That material was not before the Review Council and, it was submitted, that had it been a different conclusion may have been reached.

5. [78]

   There is no statutory requirement for the Parole Authority to hold a review hearing.

6. [79]

   To the extent these grounds were sought to challenge the merits of any finding as to the existence of exceptional circumstances or the weight to be attached to particular factors, the challenge brought by the plaintiff is not available.

7. [80]

   Further, I accept the view adopted by R A Hulme J in Boatswain v State Parole Authority [2014] NSWSC 501 at [40] where his Honour stated, “[w]hat [s 135(5) CAS Act] means is that, absent exceptional circumstances, if the Review Council advises that it is not appropriate for parole release to be considered, the Parole Authority cannot make a parole order”.

8. [81]

   Grounds 12 and 13 relate to the decision of the Parole Authority to not grant the plaintiff parole following a report by the Review Council that it was not appropriate for the plaintiff to be released on parole.

9. [82]

   I accept the submissions advanced by the defendants that where there is no statutory requirement for the Parole Authority to hold a hearing, the opportunity for the plaintiff to identify exceptional circumstances was at the time of his application. The Parole Authority formed the intention to refuse parole which at least implicitly represented a finding that there were no exceptional circumstances.

10. [83]

    In a case considering the meaning of “exceptional circumstances” under the Crimes Act 1900 (NSW), Hall J in R v NK [2016] NSWSC 498 at [26(4)] stated that the requirement of exceptional circumstances “imposes a high test”. That was the threshold that the plaintiff had to meet.

11. [84]

    If nothing was put before the Parole Authority to that level of threshold, then there can be no proper challenge as to the finding and, in consequence, the ultimate conclusion that parole was refused, upon the basis that exceptional circumstances were not established.

12. [85]

    To the extent the grounds relate to the decision not to hold a review hearing, that challenge must also fail. This is because a review hearing was not required to be held where no exceptional circumstances were found. In such circumstances, there was no statutory obligation to hold a review hearing.

13. [86]

    Grounds 12 and 13 are rejected.

The Third Issue

1. [87]

   Given the manner in which this issue was introduced, the plaintiff’s submissions are exclusively in writing. Those submissions are extracted in full below:

2. [88]

   I do not accept the plaintiff has established this ground.

3. [89]

   The Parole Authority must cause a record of its reasons for all decisions that result in the refusing of parole to be kept in the minutes of its meetings: s 193C(1)(a) of the CAS Act. There is, however, no statutory requirement that these reasons be furnished to the relevant offender.

4. [90]

   In any event, the reasons for the Parole Authority’s decision made on 18 August 2018 by express reference to its “reasons as stated on 13 July 2018” and thus the reasons at that meeting, included all the matters that were required to be addressed under s 193C(2)(a) of the CAS Act. It would be artificial to read the 18 August 2018 decision record without the 13 July 2018 reasons; with those earlier reasons having been incorporated by express reference.

5. [91]

   Nothing further was required by the Parole Authority where it had already considered the matters referred to in s 135 of the CAS Act, and where the plaintiff failed to establish any exceptional circumstances as required by s 135(5) of that Act upon being notified of the Parole Authority’s intention. In this situation, it is difficult to envisage what more the Parole Authority could have said other than that exceptional circumstances had not been established. The plaintiff complained that there was no explanation for the “actual path of reasoning”, but to the contrary, the path of reasoning is entirely discernible from the reasons: after considering matters in s 135 of the CAS Act and the Review Council’s recommendation on 13 July 2018, the Parole Authority formed an intention to refuse parole, and where the plaintiff’s submission failed to establish exceptional circumstances thereafter, the Parole Authority refused parole (as it had to).

6. [92]

   In relation to the decision to refuse an oral hearing, it should again be kept in mind that s 143C(2) of the CAS Act does not entitle the plaintiff, as a serious offender, to make submissions to the Parole Authority, such that s 190(1) of the CAS Act did not apply. Unlike a decision to refuse parole, there is no statutory requirement for reasons for a decision to refuse an oral hearing.

7. [93]

   In any event, the Parole Authority provided reasons which were that “Exceptional circumstances [were] not established and reasons for refusal remain unaddressed”. Where the plaintiff’s submissions did not persuade the Parole Authority to find exceptional circumstances, such that it could depart from the Review Council’s recommendation, it is difficult to see what more the Parole Authority could have said in stating a negative proposition.

8. [94]

   Thus, in relation to the decision on 18 August 2018, refusing parole, the Parole Authority satisfied its statutory obligations to provide reasons under s 193C of the CAS Act by incorporating its detailed reasons of 13 July 2018, which contained all of the necessary material under s 193C(2) of the CAS Act, and by confirming that exceptional circumstances had not been established. In relation to the decision refusing a review hearing, there was no statutory obligation to provide reasons.

CONCLUSION

1. [95]

   In the circumstances, the further amended summons should be dismissed. Upon the basis that costs follow the event, in the absence of any other consideration that might alter that approach, the fourth defendant, the Attorney General, should be granted costs on an ordinary basis, as against the plaintiff, with no order for costs for the second and third defendants given their submitting appearances. The position of the first defendant is less clear. In the result, I will reserve costs but make provision for the filing of consent orders as to costs if that position applies.

ORDERS

1. [96]

   The Court makes the following orders:

   1. (1)

      The further amended summons is dismissed.

   2. (2)

      Costs are reserved.

   3. (3)

      In the event of an agreement being reached as to an order for costs, the parties have liberty to file short minutes of order reflecting the same within 7 days of the publication of this judgment. The orders shall be dealt with administratively in Chambers.

   4. (4)

      In the event of a dispute as to costs, the parties should submit a program for the resolution of issues as to costs within 7 days of the publication of this judgment.