Hzaife v Manager of the Therapeutic CUBIT Program, Corrective Services NSW; Bilal v Manager of the Therapeutic CUBIT Program, Corrective Services NSW

1. [1]

   These proceedings concern applications for judicial review brought by the two plaintiffs based on their contention that a decision not to allow them to participate in the Custody Based Intensive Treatment Program for offenders who have sexually assaulted adults or children (“CUBIT Program”) has the practical effect of preventing both plaintiffs from progressing to a lower security classification and thus release on their earliest possible release dates (“EPRD”). They seek relief against the manager of the CUBIT Program and the Commissioner of Corrective Services of NSW.

2. [2]

   The manager of the CUBIT Program has filed a submitting appearance. The Commissioner was represented by counsel and opposed the applications. The Commissioner’s position is in effect that the plaintiffs are on the wait list for the program, but demand exceeds supply and the wait list is prioritised by proximity to EPRD. Each plaintiff appeared for himself, and had filed a Summons on his own behalf.

3. [3]

   Given the common issues, and with the consent of the parties, the matters were heard together, with evidence and submissions in one proceeding to be evidence and submissions in the other. Written submissions were provided by both plaintiffs and the Commissioner. Oral submissions were also made.

4. [4]

   The plaintiffs seek review pursuant to the Supreme Court Act 1970 (NSW) ss 23, 65, 69 and 75.

5. [5]

   Mr Hzaife’s sentence expires in April 2023 and his EPRD is April 2019. He seeks relief in the form of “declarations, directions, recommendations” upon the following grounds:

6. [6]

   Specific relief sought by Mr Hzaife was as follows:

   1. (1)

      (A) A declaration that the decision of the Manager of CUBIT program to delay the admission to the CUBIT program until 2018:

7. [7]

   Mr Bilal’s sentence expires in October 2022 and his EPRD is October 2017. His grounds for review traversed similar territory but were in slightly different form.

   1. (1)

      The decision of Corrective Services NSW Manager of Therapeutic CUBIT program consistently deferring his admission into the program is contrary to the primary objective of the Crimes (Administration of Sentences) Act 1999 (NSW) s 2A(1)(d) which is to provide the rehabilitation of the offenders with a view to their reintegration into the general community;

   2. (2)

      The decision to defer his admission to CUBIT was made in bad faith and for an improper purpose to delay his parole, and expiry of his EPRD has already prevented him from achieving C3 external leave before expiry of his EPRD which is not in the interests of administration of justice in New South Wales;

   3. (3)

      The decision of Corrective Services NSW Manager of Therapeutic CUBIT program consistently deferring his admission into the CUBIT program with insufficient time for him to complete the program before his EPRD will make him unable to achieve his parole on his parole expiry date;

   4. (4)

      The decision to defer his admission to CUBIT program with insufficient time for him to complete the program is contradictory to the information provided by the CS Manager to the Ombudsman and Justice Action;

   5. (5)

      The decision to continuously defer his admission into CUBIT program is so unreasonable and unjust that no reasonable person could come to such conclusion;

   6. (6)

      The Commissioner of Corrective Services who has control and authority over all decisions regarding programs availability and progression in classification under Crimes (Administration of Sentences) Act 1999 and Crimes (Administration of Sentences) Regulation 2014 has failed to provide him with the admission into CUBIT with sufficient time to further address his offending behaviour and progression to C3 external leave for reintegration back into the community before my EPRD.

8. [8]

   The relief sought by the Mr Bilal was described as follows:

Mr Hzaife’s evidence and written submissions

1. [9]

   Mr Hzaife tendered an affidavit sworn by him on 30 January 2017. The affidavit also contained his written submissions. Annexed to the affidavit is a series of correspondence to and from Corrective Services, the NSW Ombudsman and Justice Action dated 2015 and 2016 setting out his requests and replies regarding admissions to the CUBIT Program, a copy of the External Leave programs from the Offender Classification and Case Management Policy & Procedures Manual and various certificates of achievement for courses completed by Mr Hzaife whilst in custody.

2. [10]

   Mr Hzaife also relied upon a letter dated 17 February 2017 from Corrective Services which provided as follows:

3. [11]

   The reply correspondence broadly notes that commencement in the CUBIT Program is prioritised according to the EPRD and that commencement of a program would usually be around 12 months prior to the EPRD. In the case of the Ombudsman correspondence, it was noted that given the EPRD of April 2019, his complaint was considered to be premature. In his written submissions, Mr Hzaife argued that the Corrective Services Policies and Procedures Manual, 20.2.9 stated that no inmate can progress to C3 external leave classification unless he completes a CUBIT Program or is assessed as low-risk. He submitted that the CUBIT Program is the only relevant program he has not completed and it has not been made available to him, thus preventing him from progressing to C3 external leave.

Mr Bilal’s Evidence and written submissions

1. [12]

   Mr Bilal relied upon his affidavit sworn 21 February 2017. That affidavit attaches a series of correspondence relating to requests made by Mr Bilal for access to the CUBIT Program as well as a letter noting he is not eligible for the CORE Moderate Program and noting his participation in programs to date and his positive wing and work reports. The letters broadly indicate that referrals to the CUBIT Program are prioritised by EPRD, and noting Mr Bilal’s EPRD of 15 October 2017, and that at the time the letters were written, his referral had not yet been processed or the letters confirmed that he was on the wait list.

2. [13]

   In his written submissions, Mr Bilal drew attention to the letter of the State Parole Authority dated 15 December 2015 that recorded that the State Parole Authority is “not inclined to release offenders that are halfway through therapeutic treatment despite the delays that have occurred as a result of program unavailability”. Mr Bilal also highlighted Chapter 20.2.9 of the Corrective Services NSW Offender Classification and Case Management Policy and Procedures Manual (July 2015), regarding processing applications for inmates identified as sex offenders that notes that prior to participation in the unescorted external leave program, the case management team must ensure that a risk assessment has been undertaken and all other Corrective Services NSW policy requirements regarding unescorted external leave have been fulfilled. He drew particular attention to the note, “The results of the risk assessment must indicate that the inmate is not eligible/required to participate in a sex offender program or inmate has successfully completed a CSNSW Therapeutic Sex Offender Program to be considered for progression to C3/Category 1”.

3. [14]

   Mr Bilal submitted that he has completed every program available to rehabilitate and progress himself other than the CUBIT Program which has not been made available to him despite numerous requests. He submitted that the CUBIT program is the most critical program for him to further address his offending behaviour and without finishing that program he states that he will not be able to be released on parole and the letter from the State Parole Authority referred to above confirms that. He submitted that he has been a C2 Category for the last 2 years, and his ability to progress and further rehabilitate himself has been strongly affected by the decision of the manager of CUBIT to “consistently defer” his admission into the CUBIT Program. He is concerned that the program requires participation for 6 to 10 months, and his EPRD is coming up in October 2017.

4. [15]

   In reply to the submissions filed on behalf of the Commissioner, Mr Bilal argued that the inherent power of the Supreme Court pursuant to the Supreme Court Act s 23 gives the Court power to provide judicial review if decisions were made in bad faith, for an improper purpose, or in denial of natural justice. He referred to Hamilton v Director of Public Prosecutions [2012] NSWSC 1365 as authority for the proposition that it is not the decision itself where denial of procedural fairness occurs, but rather it is the decision making process. He argued that there was no procedural fairness because the list of inmates entitled to access to the CUBIT Program before him was not provided, so he cannot determine whether the list is processed in a fair and just way. He also argued that the Commissioner is required under the Crimes (Administrations of Sentences) Act 1999 (NSW) to provide every opportunity and resource to inmates for entry into the CUBIT Program or any other rehabilitation programs before their EPRD. He states that it is unjust that he has to do “extra time” after his EPRD.

5. [16]

   Mr Bilal referred to Leech v Deputy Governor of Parkhurst Prison [1988] AC 533, submitting that the Court held there that judicial review was available for such decisions that could affect the liberty of the subject by extending the period he spent in gaol, noting that at p 579, per Lord Oliver stated that it is not the label of administration or management that determines the existence of jurisdiction in the Court to review the decision under challenge, but the “quality and attributes of the decision”.

6. [17]

   Mr Bilal argued that the Commissioner disseminated misleading information into the public domain by giving the media statements that every opportunity and resource is given for inmates to access programs to address their offending behaviour before their EPRD, for example, Channel 7 News on 18 March 2017. Mr Bilal submitted that the Commissioner’s submission that inmates are prioritised according to their EPRD is false and misleading because he is aware of other inmates who were admitted into the program some years prior to their EPRD and he cited that as an indication that there is a denial of procedural fairness in the way the list is managed. He asserted that his progress has been at a standstill for the last two years because of the failure to admit him to the CUBIT Program which is the only way he can be given eligibility for the C3 external leave program and thus release on parole. Mr Bilal also noted that it would be a “double standard” and “hypocritical” if the Commissioner delays his entry into the program but then invokes the Crimes (High Risk Offenders Act) 2006 to seek a continuing detention order against him.

Plaintiffs’ Oral Submissions

1. [18]

   Mr Bilal made oral submissions on behalf of himself and Mr Hzaife as follows:

   1. (1)

      The objects of the Crimes (Administration of Sentences Act) 1999 provides in s 2A(1)(d) that the Act is to provide for the rehabilitation of offenders with a view to their reintegration into the general community, and that should be emphasised in the context of the points the plaintiffs raise in these proceedings.

   2. (2)

      The whole proceeding and decision making is in effect a denial of natural justice and a denial of procedural fairness because the plaintiffs had been told they cannot attend the program or at least not access it in sufficient time before their EPRD, yet they have not been given information about who is on the list to attend the program, how the list works and what the criteria are.

   3. (3)

      There had in fact been a denial of natural justice and procedural fairness by virtue of the fact that it was already too late for Mr Bilal to join the program and complete it given the course is 6 to 10 months long but his EPRD is 6 October 2017.

   4. (4)

      Denial of natural justice and procedural fairness is established as jurisdictional error in numerous cases by the High Court, for example Smith v Commissioner for Corrective Services [1978] 1 NSWLR 317.

   5. (5)

      There is a contradiction in the situation that the procedure outlined in 2.3 of the Procedure Manual suggests parole cannot be obtained without having done the Sex Offenders Program because both plaintiffs have been assessed as moderate to high risk but because there is no other way to be accepted into the program other than if a person is high risk, release on parole is in effect not available until they complete the program.

   6. (6)

      There has been insufficient consideration of fitness for the CORE program which is one that can be done in the community and can be done after parole has been granted. Supplementary to that, no reassessment of fitness for the CORE program has been carried out since the plaintiffs were assessed in 2011.

   7. (7)

      Failure to provide access to the program and the result that parole was “unavailable” is a decision that must be invalid and must be one made in bad faith for an improper purpose because the main object of imprisonment is to provide rehabilitation and if that is not going to be provided, there should be no non-parole periods because the non-parole periods reflect an intention to provide incentive to behave and address behaviour in prison with a reward of early release.

   8. (8)

      It is unreasonable, unjust and unfair to the inmates and does not serve the interests of the community if programs are not provided before release. The letter from the parole board (referred to in paragraph 13 of the judgment) makes it clear that they will not be inclined to permit release if the programs are not completed, despite the fact that it is not the plaintiffs’ fault that the program has been unavailable to them.

   9. (9)

      The Cessnock facility was closed and 40 beds were thus closed. Given the knowledge that more than 1,400 people need the Sex Offenders Program but there are only 80 beds in New South Wales for the program, it was inappropriate that the Cessnock facility was closed.

Submission by the second defendant to an order setting aside the classification decision re Mr Bilal recorded in their letter dated 8 April 2016

1. [19]

   One of the complaints raised by Mr Bilal is the failure by the Commissioner to reclassify him as a C3 inmate. A request was made by him on 8 April 2016 which was responded to by an annotation dated 8 April 2016, “Inmate to complete recommended SOP prior to C3 consideration”. The Commissioner in his supplementary written submissions identified an argument available to Mr Bilal on the face of the document that the refusal involved the rigid application of rules without consideration of the circumstances of the individual case as was found to be the situation by McCallum J in Davison v Commissioner for Corrective Services [2011] NSWSC 699, where her Honour set aside a decision as to classification on this ground, see in particular paras [34]-[42] of that judgment.

2. [20]

   The submission was made that the Commissioner did not accept that the decision in relation to Mr Bilal was infected by this error, and that Davison should be read alongside Clark v Commissioner for Corrective Services [2016] NSWCA 186, where Basten JA at [31] stressed:

3. [21]

   The Commissioner, to avoid unnecessary argument on the point, indicated that he was prepared to submit to an order for the decision recorded on the 8 April 2016 document to be set aside and remitted for further consideration.

4. [22]

   I am not of the view that such an order is warranted or that I have a sufficient evidentiary basis to make that order. Nor is such an order sought by way of specific relief by Mr Bilal. In the circumstances, I decline to make such an order, however this should not be seen as preventing the Commissioner from, on his own initiative, revisiting and reviewing the previous decision regarding application for C3 classification.

Evidence relied upon by the Commissioner

1. [23]

   The Commissioner relied upon the State Parole Authority Operating Guidelines issued in June 2016, as well as an affidavit of Danielle Matsuo. Ms Matsuo, registered psychologist, had previously been the Director of Sex and Violent Offenders Therapeutic Programs 2010–2014, progressing to State-wide Manager of Programs in January 2014. Her affidavit outlines the content and functions of the CUBIT Program, the basis of entry into it and the fact of referral of each of the plaintiffs to that program. Significantly, she states:

2. [24]

   Ms Matsuo deposed in her affidavit to the fact that, when the assessment occurs and when the inmate is placed on the waiting list is determined not by when consent to referral is received, but rather by reference to the inmate’s EPRD; that is, most commonly, the earliest date on which he might become eligible for a grant of parole. For that reason, if an inmate consents to a referral early in his sentence, there may be a significant delay between the giving of consent and the inmate being referred to the CUBIT Program. To give a rough indication, referrals for inmates within 12 months of their EPRD are presently being processed.

3. [25]

   She deposed to other factors that may be considered in determining an inmate’s place in the CUBIT waiting list, so inmates who are subject to a court-based release date may be prioritised because it is very important that inmates in that position have completed the program if at all possible before they are reintegrated into the community. It is possible that inmates are assessed as being at a higher risk of sexual reoffending, or those who are managed by the Serious Offenders Review Council may be prioritised, although she noted that there were currently no inmates in the waiting list in that position. She also noted that because of the inherent urgency involved, inmates that are or may be subject to an order under the Crimes (High Risk Offenders) Act 2006 may be prioritised, although she noted that due to the nature of orders available under that Act, the inmates in that position would generally be approaching or past their EPRD in any case.

4. [26]

   Ms Matsuo deposed to Mr Bilal being currently 33rd on the CUBIT waiting list at the time of swearing her affidavit on 22 March, noting that the list is dynamic, changes rapidly, often on a daily basis, and it is not possible to predict when a place will become available to Mr Bilal, and that currently all of the 32 inmates ahead of Mr Bilal on the waiting list have an earlier EPRD. Ms Matsuo prepared a similar affidavit for the Hzaife matter sworn on 24 March 2017, and in that case noted that Mr Hzaife was currently 50th on the CUBIT waiting list, and that all 49 inmates ahead of him had an earlier EPRD.

5. [27]

   The plaintiffs sought leave to cross-examine Ms Matsuo on her affidavit and I granted that leave. She clarified that the Cessnock facility raised by Mr Bilal in his submissions was not in fact closed, but was simply relocated to the minimum security area of Long Bay where the CUBIT Program was currently operating, and that unit was, in effect, doubled in capacity, so no capacity for treatment places was lost. She confirmed that there was still more demand for the CUBIT Program than there were available places within it, and that has been the case for as long as she had been in her relevant role, so for about the last 5 years. Ms Matsuo was asked why Mr Bilal had not been reassessed in terms of risk of committing another sex offence, and she explained that it is a static risk, and none of the courses he had done in custody between 2011 when the assessment was done and 2016 would alter that assessment. In response to a question from Mr Hzaife as to why he was given different potential access to CUBIT Program dates, Ms Matsuo gave evidence that the alteration in his expected access to the CUBIT program is explained by the fluid or dynamic nature of the waiting list.

Relevant legislation

1. [28]

   The Crimes (Administration of Sentences) Act 1999 makes provision for the administration of sentences and other associated purposes including, relevantly to the plaintiffs’ complaints, the roles and duties of the Parole Authority. Section 2A titled ‘Objects of Act’ provides as follows:

2. [29]

   Section 135 of the Act provides for the general duty of the Parole Authority as follows:

3. [30]

   I also note s 185A of the Act which refers to establishment of guidelines:

4. [31]

   Section 135A deals with the preparation of reports by Community Corrections which address the type of matters that the Parole Authority needs to take into account in determining whether the release of the offender is appropriate in the public interest.

5. [32]

   Regulation 60 of the Crimes (Administration of Sentences) Regulations 2014 provides for inmate services and programs, noting that the Commissioner may provide an inmate with services and programs which may include psychological and counselling services, amongst other things.

6. [33]

   Relevant extracts from the State Parole Authority Operating Guidelines were tendered on behalf of the Commissioner. These operating guidelines are noted to have been “developed to assist Authority members in making their determinations. They are not intended to outweigh the objective evidence placed before the Authority or to inhibit Authority members in exercising their discretion”. The Guidelines also note at para 1.2 that:

7. [34]

   Of particular relevance are guidelines 2.3 and 2.6 which provide as follows:

8. [35]

   The plaintiffs’ bases for seeking judicial review were professed to be in reliance upon ss 23, 65, 69 and 75 of the Supreme Court Act. Those provisions are as follows:

Submissions of the second defendant

1. [36]

   The CUBIT program is not strictly pre-conditioned to the grant of parole. However, the Commissioner accepted that as a general matter, a sexual offender’s prospects of being granted parole are increased by having participated in the CUBIT program and that is likely to be the case even if the inmate was willing to participate in the program but the program has not yet been made available to him.

2. [37]

   Attention was drawn to those guidelines which relevantly provided at paragraph 2.3(c) and 2.6 that whilst there will be exceptions, in principle, an inmate should achieve satisfactory completion of programs and courses aimed to reducing their offending behaviour before being granted parole.

3. [38]

   This Court is not in a position to speculate as to what a Parole Authority might decide in relation to the plaintiffs. It remains open to the plaintiffs to submit to the Parole Authority that they have completed such programs as have been made available to them.

4. [39]

   The only grounds amongst those asserted by the plaintiffs that would provide a basis for judicial review of any of the defendants’ decisions are those relating to the assertion that the decision was made in bad faith for an improper purpose or it was so unreasonable, unjust and unfair that no reasonable person could come to such a conclusion.

5. [40]

   The defendants have ordered the wait list by reference to the EPRDs of applicants for the program. This was a natural way to prioritise applicants given the relevance of the CUBIT program to the grant of parole and its role in preparing inmates for release to the community. The plaintiffs are being treated in the same way as all other applicants in that regard.

6. [41]

   There are exceptions to the EPRD priority list and these can be made on various grounds not relevant to these plaintiffs’ applications.

7. [42]

   The defendants relied upon the assertion of Ms Matsuo in her affidavit that all the persons ahead of each of the plaintiffs had earlier ERPDs than the plaintiffs. It is argued that it cannot be regarded as being in bad faith, or driven by an improper purpose that the defendants had chosen not to give the plaintiffs any different or particular priority. Not admitting the plaintiffs to the program to date is not so irrational or unreasonable that no reasonable decision maker could have come to that conclusion.

8. [43]

   The other grounds for review raised no independent basis for the court’s intervention, i.e. the assertions that the “deferral” of admission to CUBIT:

   1. (1)

      Will prevent the plaintiffs from addressing offending behaviour contrary to the administration of justice;

   2. (2)

      Is contrary to information provided by the Commissioner regarding admission to the program (presumably a reference to earlier correspondence that spoke of a 2016 or 2017 entry date); and

   3. (3)

      Does not provide the plaintiffs with sufficient time to address their offending behaviour and progress to C3 external leave for reintegration back into the community before their EPRDs.

9. [44]

   These “grounds” are in the nature of comments or asserted consequences of the defendants’ exercise of powers as opposed to formulating any properly grounded bases for review.

Consideration and determination of issues

1. [45]

   As stated in Clark v Commissioner for Corrective Services [2016] NSWCA 186 at [85] per Emmett AJA:

2. [46]

   When considered collectively, the plaintiffs’ submissions proceed on the basis that there is an entitlement to release on the EPRD as of right. This is not so, as clearly evidenced by the Crimes (Administration of Sentences) Act 1999 (NSW) s 135, and the considerations required to be applied by the Parole Authority in making any such decision.

3. [47]

   The plaintiffs also proceed on the basis, it seems, that s 2A of the Act provides primacy to s 2A(1)(d) regarding rehabilitation of offenders, and that this primacy gives some entitlement to remedy when, as in this case, access to the CUBIT Program has not been granted. Quite apart from sub-s (3) which provides that “nothing in this section gives rise to any civil cause of action or can be taken into account in any civil proceedings”, the provision for rehabilitation of offenders is but one of the identified objects of the Act, although clearly an important matter.

4. [48]

   To ground a basis for judicial review, the plaintiffs would need to demonstrate that the decision made or, in effect, the keeping of them on a waitlist yet to access the CUBIT program was made in bad faith and for an improper purpose or is so unjust, unfair, and unreasonable to constitute Wednesbury unreasonableness (Associated Provincial Picture Houses Ltd v Wednesbury [1948] 1 KB 223).

5. [49]

   In Mr Hzaife’s case, his EPRD is not until April 2019. Even if there was a valid argument that Mr Hzaife was entitled to be admitted to and complete the CUBIT Program prior to his EPRD, there currently remains a 20 month period for that to take place. Accordingly, the argument that the asserted delay is one that comes from a decision made in bad faith or for an improper purpose to delay his rehabilitation and parole on the EPRD has no force. Even if it did, the evidence is clear that there is more demand for places in the program than available places, and that therefore prioritisation based on EPRDs could not be said to be a decision made in bad faith or for an improper purpose, or to evidence the degree of irrationality or unreasonableness required for a finding of Wednesbury unreasonableness.

6. [50]

   The position is somewhat different in Mr Bilal’s case in that his EPRD is October 2017, and given the professed course length of 6 – 10 months, even if Mr Bilal commenced the course now, it would not be able to be completed by October, thus allowing progression to C3 external leave for reintegration back into the community prior to October. The fact that this is the effect of Mr Bilal having been unable to access the CUBIT Program to date does not mean that I should be satisfied that the decision was made in bad faith or for an improper purpose or was so irrational or unreasonable that I should intervene to grant the relief sought. Nor does the submission that the Commissioner has some obligation to reveal to Mr Bilal the contents of the list for him to assess whether he is satisfied the persons on it have an earlier EPRD than him have any foundation.

7. [51]

   I have no reason to doubt the sworn evidence of Danielle Matsuo regarding the current position of both plaintiffs on the waitlist for CUBIT, nor do I have any reason to doubt the fact that the list can change rapidly, even on a daily basis, and that it is not possible to predict when a place will become available to Mr Bilal or Mr Hzaife. The fact that the demands on the program mean that Mr Bilal has not accessed the program before his EPRD does not, of itself, indicate a denial of natural justice or a denial of procedural fairness as he has asserted.

8. [52]

   As submitted on behalf of the Commissioner, there is no absolute preclusion from Mr Bilal being released on parole because he has not completed the CUBIT Program, and even if he had, there are a number of factors set out in s 135 of the Act which would make any decision to release on parole multi-factorial.

9. [53]

   In the circumstances, I am not persuaded that there is any basis for concluding that either of the defendants have exercised their powers in a way that warrants judicial review, and I am not persuaded that there is any basis for any remedy under s 69 of the Supreme Court Act 1970 (NSW).

Application to introduce new evidence after close of the case

1. [54]

   On 10 May 2017, 5 weeks after I reserved judgment, some handwritten submissions were received from Mr Bilal, as well as a handwritten document and an index from an Operational Procedures Manual, and leave was requested to take this new material into consideration.

2. [55]

   Quite apart from questions of admissibility, I am of the view that the provision of this material late has a tendency to delay the completion of the proceedings and delivery of my judgment, and would comprise an undue waste of Court time. In the circumstances, I decline to accede to the application for fresh evidence made by Mr Bilal.

3. [56]

   My orders are:

   1. (1)

      The Summons in proceedings 2017/53883 filed on 20 February 2017 is dismissed.

   2. (2)

      The Summons in proceedings 2017/56190 filed on 22 February 2017 is dismissed.