Ahmad v Commonwealth Director of Public Prosecutions

1. [1]

   HER HONOUR: On 2 June 2023 the appellant, Youssef Ahmad, filed an Amended Summons commencing an appeal against a decision made on 3 February 2023 by a prescribed authority declining to fix a non-parole period (“NPP”) when issuing a warrant pursuant to s 19AW(1) of the Crimes Act 1914 (Cth). The appeal is brought pursuant to s 19AY(1)(c) of the Act and raises three grounds:

   1. (1)

      The magistrate misunderstood the facts by finding that the appellant had breached his parole and that such a breach was serious for the purposes of ss 19AW(1)(f) and (3)(a) of the Crimes Act;

   2. (2)

      The magistrate acted on a wrong principle insofar as he considered that s 19 AW(3)(a) of the Crimes Act required the Court only to assess the breach of parole “as decided by the Attorney-General in accordance with s 19AU(1) of the Crimes Act”;

   3. (3)

      The magistrate’s refusal to set a non-parole was unreasonable or plainly unjust in all of the circumstances.

2. [2]

   The appellant asks this Court to allow his appeal and vary the warrant issued in February 2023 such that a non-parole period of zero days is fixed, making his immediate release possible.

3. [3]

   In support of his appeal, he relies upon an affidavit of his solicitor Hisham Karnib, annexing the material that was before the prescribed authority, and additionally, Case Notes concerning the appellant held by Corrective Services New South Wales (“CSNSW”), for the period 18 November 2021 to 1 December 2022.

Procedural Background

1. [4]

   It is important to the overall understanding of the issues in this appeal to set out the background to it, which commenced on 9 June 2016 when the appellant was charged with several criminal offences, including offences of attempting to possess a marketable quantity of a border controlled drug, contrary to s 11.1(1) and s 307.6(1) of the Criminal Code Act 1994 (Cth) (“the Code”) and attempting to import a marketable quantity of a border controlled drug, contrary to s 11.1(1) and s 307.2(1) of the Code. In each instance the border controlled drug was cocaine.

2. [5]

   Ultimately, the appellant pleaded guilty to the Federal charges, also entering pleas of guilty to a number of offences contrary to New South Wales law. He was sentenced by Judge King SC in the District Court of New South Wales on 6 April 2018. The applicable sentencing regime for the two Code offences was Part IB of the Crimes Act.

3. [6]

   For the offence of attempting to possess a marketable quantity of a border controlled drug a sentence of 3 years imprisonment commencing on 9 June 2017 was imposed. For the remaining Code offence, a term of 5 years imprisonment was imposed, with a commencement date of 9 June 2018 fixed. In compliance with s 19AB of Division 4 of Part IB of the Crimes Act, his Honour fixed a single date for release to parole for the two Federal offences, being 8 June 2021. The effective NPP for State and Federal offending was 5 years and the balance of the total effective term was 2 years imprisonment.

4. [7]

   An appeal against that sentence was dismissed: Ahmad v R [2019] NSWCCA 198.

5. [8]

   The earliest date upon which the appellant became eligible for parole was 8 June 2021. As at that date, the sentences imposed for the State offences had expired.

6. [9]

   On 28 May 2021, shortly before the expiration of the NPP, a delegate of the Attorney-General of Australia (“the Attorney”) directed that the appellant be released to parole on 8 June 2021. The parole order was made pursuant to s 19AL of the Crimes Act, a provision which appears in Division 5 of Part IB of the Act. Division 5 deals with “Conditional release on parole or licence”. Section 19AL provides, relevantly:

7. [10]

   On 8 June 2021 the appellant was released to parole. A condition of parole was that he “be of good behaviour and not violate any law” (“the condition of parole”).

8. [11]

   [REDACTED].

9. [12]

   [REDACTED].

10. [13]

    On 25 July 2022 the Attorney’s delegate revoked parole, pursuant to s 19AU(1), the Attorney (by his delegate) having concluded that there were reasonable grounds for suspecting that the appellant had failed to comply with the condition of parole. Revocation was without notice, as provided for by s 19AU. The section is in these terms:

11. [14]

    Parole having been revoked, an arrest warrant issued for the appellant’s arrest pursuant to s 19AV(2) of the Act, and he was arrested on 5 August 2022. The appellant was brought before “a prescribed authority”, the authority being the Local Court of New South Wales, and an order was made pursuant to s 19AX(1)(b) of the Act, with the effect that the appellant was ordered to be detained in custody until the revocation order was rescinded by the Attorney, or proceedings under s 19AW were completed.

12. [15]

    [REDACTED].

13. [16]

    Instead, the applicant sought to challenge the Attorney’s decision to revoke his parole and the order of the prescribed authority to detain him that was made in the Local Court, filing applications in the Federal Court of Australia for judicial review and the issue of a writ of habeas corpus. The matter was heard on 6 October 2022, with orders made by the Federal Court on 27 October 2022 dismissing the application: Ahmad v Attorney-General (Cth) [2022] FCA 1270.

14. [17]

    What occurred following the decision of the Federal Court is the subject of this appeal.

The Factual Background to the Appeal

1. [18]

   On 25 November 2022 a determination was made by the Attorney’s delegate pursuant to s 19AX(4) of the Crimes Act not to rescind the order revoking the appellant’s parole.

2. [19]

   Consequentially, pursuant to s 19AV(3) the appellant was brought before the Local Court (as the prescribed authority) to make an order pursuant to s 19AW(1) of the Act. Section 19AW provides:

3. [20]

   The matter came before Magistrate Peach on 3 February 2023. His Honour heard the matter and gave ex tempore judgment that same day. The Magistrate found that the breach of parole was a serious one and made an order noting that it was inappropriate to fix a non-parole period. He issued a warrant under section s 19AW(1), directing that the appellant be detained for the unserved portion of his sentence.

4. [21]

   By these proceedings, the appellant challenges three aspects of the decision of Magistrate Peach.

The Appeal

1. [22]

   The appeal against the orders of Magistrate Peach refusing to fix a NPP when issuing a warrant pursuant to s. 19AW of the Crimes Act, is brought under s 19AY of the Act. The section relevantly provides:

2. [23]

   The appeal was brought within time, and proceeds as a re-hearing. The evidence before the Court was that before the prescribed authority, as set out in summary above, together with some additional evidence, being the case management notes also referred to above. There was no issue as to the nature of the proceedings and the Court approaches its task on the basis that the rehearing referred to in s 19AY(3) is of the third kind described in Lacey v Attorney-General (Qld) (2011) 242 CLR 573; [2011] HCA 10, at [57], as follows:

3. [24]

   The appellant raises three grounds of appeal, set out above.

4. [25]

   By the first ground the appellant contends that the Magistrate mistook the facts when making the determination required by s 19AW(1)(f), and thus fell into error of the type referred to in House v The King (1936) 55 CLR 499; [1936] HCA 40 at 505.

5. [26]

   Ground 2 is related to and builds upon ground 1. It is based upon the same contention as ground 1, that is, that the Magistrate was performing a sentencing function and was required to determine the fact of the breach of parole for himself, but argues that, in refusing to consider whether the breach and its seriuousness had been proven to the criminal standard, his Honour acted on a wrong principle. Acting on a wrong principle is another of the bases of error referred to in House v The King.

6. [27]

   The appellant contends that, in considering whether to fix a NPP, the Magistrate was making a decision that formed part of the sentencing process, with the fixing of a NPP having the same meaning in the context of s 19AW as it does in s 16 of the Crimes Act. He argues:

7. [28]

   These arguments must be rejected.

8. [29]

   Section 19AW(1)(f) provides for the prescribed authority, when issuing a warrant of detention, to fix a non-parole period in respect of the outstanding portion of the sentence. That requirement is, relevantly, subject to sub-section (3), which is to the effect that a NPP need not be fixed where the prescribed authority considers it “inappropriate” to do so “because of the serious nature of the breach”.

9. [30]

   In circumstances where the appellant did not concede that he was in breach of parole, he contends that s 19AW(3) required the Magistrate to determine as a matter of fact that there had been a breach, and/or, alternatively, to consider evidence of the conduct constituting the breach to determine its gravity. He argues that, to fulfill those requirements, the Magistrate was obliged to examine evidence concerning the breach and be satisfied to the criminal standard as to the breach having occurred and/or, that it was serious. Having failed to approach the task in that way, the appellant contends that the Magistrate fell into error.

10. [31]

    [REDACTED]. It is submitted that the Magistrate misunderstood the evidence in concluding that the decision of the Attorney that there were reasonable grounds for suspecting that the appellant had failed to comply with a condition of parole established the fact and nature of the breach and, had there not been a misunderstanding of this nature, there could have been no acceptance that a breach had occurred.

11. [32]

    The appellant’s analysis of the statutory provisions underpinning these grounds is, in my conclusion, flawed. Applying the legislation correctly, as the Magistrate did, there was no misapprehension of the law or facts, and his Honour’s conclusions were entirely open to him.

12. [33]

    The appellant sought to characterize the nature of the power exercised by the Magistrate under s 19AW of the Crimes Act as a judicial power akin to that employed by a court when re-exercising the sentencing discretion. However, it seems reasonably clear from the structure and text of the legislation that the power is personal rather judicial, and unconnected with the sentencing power exercised by a sentencing court pursuant to Division 4 of the Crimes Act.

13. [34]

    In any exercise involving statutory construction a purposive interpretation, and one that gives primacy to the text and structure of the legislation, is required: Certain Lloyd’s Underwriters Subscribing to Contract IHOOAAQS v Cross [2012] 293 ALR 412, [2012] HCA 56, at [25]; Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (2009) 239 CLR 27 at 46 [47]; [2009] HCA 41.

14. [35]

    The purpose of Division 5 of Part IB is to administer the Federal parole scheme. Parole is intended to facilitate a parolee’s rehabilitation and reintegration into the community, but also to protect the community: s 19AKA of the Act. Matters connected with parole differ from matters connected with the imposition of a sentence by a court.

15. [36]

    It is not without significance that the functions of fixing a NPP and making recognizance release orders are governed by Division 4 of Part IB of the Crimes Act and exercised by a sentencing court, whilst the functions of making decisions concerning the administration of parole are governed by a separate Division, Division 5 of Part IB of the Act, and exercised by the Attorney or other specified office holders, such as “a constable”, or, as in s 19AW, “a prescribed authority”. The very structure of Part IB supports a conclusion that the powers exercised under the two Divisions to the Part are separate, the former being judicial in nature and the latter executive.

16. [37]

    The power provided by s 19AW is one that can only be exercised by a “prescribed authority” pursuant to the statutory framework of Division 5 of Part IB of the Crimes Act. Section 16 of Division 1 of Part IB contains definitions applicable to the Part. A “prescribed authority” is defined (relevantly) as:

17. [38]

    Section 21F(1)(a), which appears in Division 10 of Part IB of the Act, is in these terms:

18. [39]

    The effect of those provisions taken together is that a Magistrate of the Local Court of this State is a prescribed authority by virtue of holding office as a Magistrate. Although it is not necessary to determine this aspect of the matter to determine ground 1, in my conclusion the power is personal to the Magistrate as office holder, and it is derived from the statute. The power is not a judicial power exercised in the context of or akin to the sentencing process, as the appellant contends.

19. [40]

    Sentence having been determined by the sentencing court, that process is at an end. Decisions concerning release to parole, revocation of parole, and the fixing of any NPP after revocation, are all powers derived from Division 5 of Part IB, and distinct from the sentencing process. The Director referred the Court to a decision of the High Court in that regard which, although dealing with the parole regime in Victoria, under Victorian state legislation, is apposite. In Minogue v Victoria (2019) 268 CLR 1; [2019] HCA 31, the plurality (Kiefel CJ, Bell, Keane, Nettle and Gordon JJ) said (omitting footnotes), at [14]:

20. [41]

    In the context of the Federal parole scheme it is the Attorney who exercises the power to determine whether an offender will be released to parole and, where parole has been granted, who exercises the power provided by s 19AU to revoke parole. Parole may be revoked by the Attorney where “there are reasonable grounds for suspecting” that there has been a breach of parole. The only other limitation upon the exercise of the power to revoke a parole order is that provided by s 19AU(2), which is itself subject to the operation of s 19AU(3). The Act does not provide for any statutory review of the Attorney’s decision, or appeal against it.

21. [42]

    That decision having been made in the appellant’s case, the process, and the power exercised concerning revocation of parole, was at an end. The power exercised by a prescribed authority to issue a warrant is a later step under the statutory framework. Section 19AW does not require or permit review of the Attorney’s decision; the decision is a statutory fact. In my conclusion the Magistrate was correct in his approach to his task, with respect to which his Honour said:

22. [43]

    That analysis must be correct. It would be anomalous, as well as likely unworkable, for s 19AW(3) to operate as a de facto appellate or review provision, by requiring the prescribed authority to satisfy itself to the criminal standard that there had been a breach of parole or, alternatively and on the basis of a breach proved to that standard, to consider if the breach as proved was serious in nature.

23. [44]

    If that was the proper construction of s 19AW(3), there would likely be a highly circular and self-defeating process in which the Attorney revoked a grant of parole because there existed reasonable grounds for suspecting a failure to comply with its terms, only to have a prescribed authority effectively reinstate parole by ordering a NPP of zero days because it could not be satisfied to the higher standard of proof beyond reasonable doubt that parole had been breached, and in a serious manner.

24. [45]

    Whilst the appellant argued that it was open to the respondent to place evidence to substantiate the breach before the prescribed authority, mandating such an approach to s 19AW does not provide for those cases that fall within s 19AU(1)(b) where the evidence establishes only a reasonable suspicion. It would also make any decision of the Attorney pursuant to s 19AU(1)(b) futile, as a matter of practical reality. That cannot have been the intention of the legislature.

25. [46]

    Once the Attorney’s decision is made, the power of the prescribed authority is as provided by s 19AW, and it is clear that the section does not authorise or empower an investigation or re-hearing of the decision already made by the Attorney when revoking parole pursuant to s 19AU(1)(b). The Attorney’s decision, once made, is a statutory fact. The prescribed authority proceeds on the basis of that statutory fact to execute its duties under s 19AW.

26. [47]

    Here, the Magistrate proceeded in precisely that way, upon an acceptance of the Attorney’s decision to revoke parole because there were reasonable grounds to suspect that the appellant had failed to comply with it. It was not for the prescribed authority to examine the correctness of that decision, or to require the respondent to prove the breach to the criminal standard. The functions exercised under s 19AW were properly exercised on the basis that the breach had been established within the meaning of s 19AU, and the prescribed authority was thereafter obliged to be satisfied of those matters in s 19AW(1)(a) – (c) inclusive, before issuing a warrant in the prescribed form.

27. [48]

    The effect of an order to issue a warrant is to authorise any constable to take the person to a prison, direct that the person is detained, and fix a NPP relevant to the outstanding sentence. The requirement to fix a NPP is made subject to ss (3). There is no requirement to fix a NPP where the prescribed authority “considers it inappropriate to do so because of the serious nature of the breach”. The breach the seriousness of which is to be assessed, is the breach upon which the Attorney made the decision to revoke parole. A requirement to “consider” whether it is “inappropriate” to fix a NPP having regard to the seriousness of the breach does not require proof to the criminal standard of the breach alleged. The assessment of the gravity of the breach is with respect to the breach upon which the Attorney made the decision to revoke parole.

28. [49]

    The prescribed authority is to consider the nature of the breach and its gravity by reference to the decision of the Attorney. A decision not to fix a NPP proceeds from a relatively low bar: the authority need only consider it “inappropriate” to fix a NPP because of the seriousness of the breach, the breach being that determined by the Attorney to have met the statutory criteria provided by s 19AU(1).

29. [50]

    In the appellant’s case, by reference to the reasonable suspicion of the Attorney that the appellant had breached a condition of parole [REDACTED], and having concluded that the breach was a serious one, his Honour next considered whether it was appropriate to fix a parole period. He said:

30. [51]

    The Magistrate considered evidence of a more positive nature from NSWCS that was before the court, as to the appellant’s efforts when at liberty to address his past criminal conduct and risk factors, but was not satisfied that this information outweighed the need to protect the community, given the very serious nature of the breach alleged.

31. [52]

    There is no error in the conclusions reached by the Magistrate, and no misapprehension of the facts in proceeding as his Honour did.

32. [53]

    Ground 2 must fail for precisely the same reasons as ground 1; it mistakes the function of the prescribed authority pursuant to s 19AW, and in determining whether to fix a NPP, and overlooks the limited statutory powers exercised by the prescribed authority in carrying out that function.

33. [54]

    It is plain that the prescribed authority was not fixing a NPP in the same way as does a sentencing court under Division 4 of Part IB of the Crimes Act, a division that applies to the sentencing court. In relation to the appellant, the sentencing court was the District Court, and the NPP fixed by the sentencing court pursuant to s 19AB, as part of the sentencing procedure, was an effective term of 5 years imprisonment. That NPP had expired on 7 June 2021.

34. [55]

    The Magistrate was not re-exercising the judicial power of the District Court in a sentencing exercise because the sentencing process was at an end. It had concluded on the day sentence was imposed and a NPP was fixed as part of that sentence.

35. [56]

    The matter came before the prescribed authority for a different purpose, pursuant to the power provided by s 19AW, found in Division 5 of Part IB, a division that does not regulate the sentencing process, but matters that might arise once the sentencing process is at an end. Parole having been revoked, the prescribed authority is to fix a NPP “in respect of the outstanding sentence or sentences”: s 19AW(1)(f). The task is not to fix a NPP relevant to the sentence as it was originally imposed, but with respect to what remained of it to be served.

36. [57]

    [REDACTED]. The decision of the prescribed authority that, having regard to the serious nature of the breach, it was inappropriate to fix a NPP was open and, in my conclusion, correct.

37. [58]

    Like ground 1, ground 2 has not been made out.

38. [59]

    Ground 3 was described as akin to a complaint of manifest excess in an appeal against sentence, where there is a contention that the relevant order is “unreasonable or unjust”. As already observed, since the order under challenge was not a sentencing decision, there is no utility in approaching this appeal as if it were an appeal against sentence and a manifestly excessive NPP. The question is whether, on the whole of the information before the prescribed authority and having regard to the additional evidence placed before this Court, there was error, and some other decision should have been made.

39. [60]

    A breach of parole made out by [REDACTED], constitutes a very serious breach of parole indeed. That is particularly so when one of the purposes of parole is the protection of the community. [REDACTED].

40. [61]

    Having regard to the extreme dangerousness of the conduct reasonably suspected by the Attorney of the appellant, the only proper conclusion is that it is inappropriate to fix a NPP, that being the conclusion of the prescribed authority.

41. [62]

    The appellant complained that the Magistrate did not give adequate attention to the relatively positive reports of his conduct when subject to parole that were made by the parole supervisors, but I am unable to conclude that the material that was before the prescribed authority that gave a favourable account of his attempts to rehabilitate himself were such as to outweigh the grave nature and dangerousness of the suspected breach.

42. [63]

    Nor do the CSNSW Case Management notes tendered in support of the appeal alter that view. Annexure K to the affidavit of Hisham Karnib of 8 May 2023 are printouts of regular case management computer entries made by officers of CSNSW who supervised the appellant when he was at conditional liberty subject to parole and following the revocation of parole, from 18 November 2021 to 1 December 2022.

43. [64]

    The case notes are generally positive and indicated progress towards rehabilitation. The entry for 18 November 2021, for example, notes that the appellant reported that his children provided motivation to him to “do good things”, and even recent interactions between his family members and police had not disturbed that. The appellant’s father died in December 2021 and this was noted to further strengthen his resolve to be a good father to his own children.

44. [65]

    The appellant reported enjoying his employment and taking steps from time to time to improve his skills and qualifications.

45. [66]

    The appellant seemed to engage well with supervising officers (apparently mainly by telephone or WhatsApp, perhaps due to restrictions during the pandemic) and reported as required. He had accepted assistance from a psychologist and attended a number of therapeutic appointments until such time as the treatment was deemed unnecessary (p. 93 of 92, Annexure K). He demonstrated insight into the role of drugs, alcohol, and “the wrong people” in his involvement in crime and expressed his determination to do better in the future.

46. [67]

    However, the appellant also demonstrated some internal conflict with respect to his expressed desire to remain apart from persons involved in criminal conduct, and his family connections. On 10 February 2022 the appellant expressed some insight into the dangerousness of associating with “high risk people” but when asked if he had any such people in his life he was not able to answer for a time. Eventually,

47. [68]

    [REDACTED], if not fully acknowledged by the appellant.

48. [69]

    The need to restrict contact with close family and former criminal associates seems to have been an ongoing dilemma for the appellant, with discussions from time to time between him and his supervisor as to the need to “control contact with certain people” (p. 80 of 92; Annexure K). The need to “remain resilient” concerning “high risk or toxic” people was revisited in the notes throughout the period of conditional liberty covered. Even the advent of Ramadan, however, could cause difficulties for the appellant, since attending events connected with the celebrations at Bankstown exposed him to such individuals (p. 82 of 92, Annexure K).

49. [70]

    [REDACTED].

50. [71]

    [REDACTED].

51. [72]

    Suspension of active supervision was contemplated, and enacted on 7 June 2022, despite the ongoing activity surrounding the appellant and his family consequent upon the murder of two family members. Plainly, his supervisors were satisfied of the appellant’s progress.

52. [73]

    The remaining notes in Annexure K were made after the appellant’s parole was revoked. In a note of 1 September 2022 the appellant was referred to as “a member of O[rganised] C[riminal] N[etwork]”.

53. [74]

    Whilst the appellant was positively reviewed by officers from CSNSW during November 2021 to June 2022, [REDACTED], and the assessment recorded on 1 September 2022 to the effect that the appellant was at that date a member of an organised crime network.

54. [75]

    When all of the information is considered, and with the benefit of the additional material provided as Annexure K to the affidavit of Mr Karnib, I cannot conclude that the prescribed authority was wrong in the decision made as to the inappropriateness of fixing a NPP for the outstanding sentence. [REDACTED], the safety of the community must prevail over the legitimate interests of the appellant in release to parole.

55. [76]

    I cannot conclude that Magistrate Peach was in error in the decision he made pursuant to s 19AW(3)(a), and nor would the Court make a different decision on the information presently available.

56. [77]

    For these reasons, the Amended Summons should be dismissed.