Minister for Corrections v Cawthray and the State Parole Authority

By an amended summons filed on 17 August 2015 the plaintiff seeks the following orders:

I will refer to the first defendant as “the offender” and to the second defendant as “the Authority”.

The orders sought by the plaintiff are opposed by the offender. It is noted that the summons does not seek an order for costs. Senior counsel for the plaintiff confirmed at the conclusion of the hearing that in the event that the relief sought was granted, no order for costs would be sought. Counsel for the offender submitted that in the event that the plaintiff was not successful, an order for costs should be made in the offender’s favour.

When the matter came before me for hearing on 20 August 2015, it was pointed out that the effect of the Authority’s decision to grant the offender parole was that absent any order to the contrary, the offender would be released on that day. In those circumstances I granted a stay, pending further order, of the Authority’s decision.

The amended summons was supported by the following affidavits:

Each of the affidavits was read without objection. Mr Cosman gave oral evidence before me and I have referred to his evidence in more detail below.

A Court Book containing the documentary evidence was marked Ex. A.

The offender was born on 28 December 1942 and is presently 72 years of age. On 13 March 1986 he was sentenced by Kneipp J in the Supreme Court of Queensland to life imprisonment for the murder of his then de-facto partner. The sentencing remarks of Kneipp J were limited to stating the following:

Submissions made to the Authority on behalf of the State of NSW (“the State”) set out that the offender had planned to kill his de-facto partner and had purchased a shot gun for that purpose. On the day of the murder, the offender hit his former partner with the butt of the shot gun before tying her to a bed. He then shot her in the head, causing her death. He then re-loaded the weapon, placed the barrel in his own mouth and discharged it, as a consequence of which he lost the vision in his left eye.

Other evidence before the Authority contained exculpatory accounts given by the offender of the circumstances of the victim’s death. For example, in correspondence sent to the offender on 20 November 1998 (Tab 5 of Ex CB-1) it was recorded that the offender had previously told a Psychologist that he did not murder the victim, and that the incident was a “drunken accident”. On another occasion the offender had asserted that he and his partner were arguing, a struggle for the weapon ensued, they both fell onto a bed, and the gun then accidently discharged. Also before the Authority was a report of Dr Adrian Keller, Forensic Psychiatrist (Ex CB-1 at page 187-188) which recorded the following account of the incident given by the offender:

As discussed in more detail below, one of the issues raised by the plaintiff concerns an asserted failure on the part of the Authority to have regard to the nature and circumstances of the offence. In light of the fact that the offender was convicted of murder, the summary of the circumstances of the offending which was set out in the State’s submissions before the Authority appears, in light of the jury’s verdict, to be an accurate reflection of what in fact occurred. The offender’s various exculpatory accounts would seem inconsistent with such verdict.

On 23 December 2003 the offender was released on parole by order of the Queensland Community Corrections Board. In July 2004, his proposed relocation to NSW was approved and he was formally transferred to this State on 27 June 2005.

On 9 May 2009 the offender was charged with aggravated indecent assault, and with grooming a child for unlawful sexual activity. These charges led to the revocation of his parole on 15 May 2009. However on 20 August 2009 those charges were dismissed and the offender’s revocation of parole was rescinded.

In February 2010 the offender was charged with a “peep and pry” offence resulting in a further revocation of his parole on 18 February 2010. On 28 June 2010 he was convicted of this offence before the Wagga Wagga Local Court. A pecuniary penalty was imposed on that occasion.

In 2012 the offender was convicted of offences of sexual assault. However on 9 May 2013 the Court of Criminal Appeal quashed those convictions: Cawthray v R [2013] NSWCCA 105. Since 26 March 2012 the offender has been managed as a serious offender. On 13 August 2014 he was charged with an offence of “stalk/intimidate”. That charge was subsequently withdrawn and dismissed on 29 October 2014.

On 16 April 2015 the Authority formed an initial intention to grant the offender parole (subject to certain conditions) pursuant to s. 144 of the Crimes (Administration of Sentences) Act 1999 (“the Act”). The offender’s release was opposed by the State who, as previously indicated, made written submissions to the Authority setting out the grounds for such opposition. A review hearing was held on 28 May 2015, at which time the matter was stood over until 30 July 2015 pending receipt of a neuropsychological report setting out the offender’s cognitive status, and to allow Community Corrections to provide a report on the availability of accommodation at a rehabilitation facility.

When the matter came back before the Authority on 30 July 2015 the State maintained its opposition to the offender’s release on parole. However the Authority determined that the offender should be released. Such release was authorised to take place not earlier than 13 August 2015, and not later that than 20 August 2015.

Annexure B to the affidavit of Mr Butler of 14 August 2015 is a transcript of the proceedings before the Authority on 30 July 2015. That transcript incorporates ex-tempore reasons given by the Authority for its decision to release the offender on parole, those reasons having been given by the Chairperson. I have set out the relevant parts of the reasons when considering the various grounds relied upon by the plaintiff.

Mr Cosman, who is the Director and Secretary of the Authority, affirmed an affidavit on 19 August 2015 and gave evidence before me. Annexure D to Mr Cosman’s affidavit was a document headed “Reasons for granting parole”. In his affidavit (at paragraph 5) Mr Cosman described this document as “a copy of the Authority’s standard reasons for decision…”. In the course of his evidence (commencing at T4 L12) he described the document as a “tool”. It was also described in the evidence as a “checklist document”. I will refer to it as the “pro-forma document”.

At the commencement of the pro-forma document, under the heading “Reasons for granting parole”, the following appears:

There follow several headings, under which are various numbered paragraphs:

Annexure B to the affidavit of Mr Cosman was a document headed “JUDGES PAPERS”. That document was described by Mr Cosman (in paragraph 4(b) of his affidavit) as a “Cover Sheet”. It contains a record of the matter coming before the Authority on 30 July 2015. A handwritten notation on the document records the appearances before the Authority on that day, following which a further handwritten notation appears as follows:

In the course of his evidence, Mr Cosman explained (commencing at T4 L46) that what occurs in practice is that the Authority isolates, from paragraphs (1) to (30) of the pro-forma document, the reasons upon which it wishes to rely to support its decision to grant an offender parole. Accordingly, the numbers set out in the handwritten note in [22] above are to be read as being a reference to the corresponding paragraphs of the pro-forma document. Mr Cosman said (commencing at T5 L43):

The objects of the Act are set out in s. 2A as follows:

For present purposes, s. 135 is pivotal and is in the following terms:

Section 193C(2) of the Act imposes particular obligations upon the Authority in respect of it reasons:

Finally, in light of a submission made on behalf of the offender that relief should be refused as a matter of discretion, s. 153 of the Act is relevant:

A failure by the Authority to have regard to a mandatory consideration would, if made out, amount to a jurisdictional error, as it would amount to a failure to exercise the decision-making power in accordance with the terms on which jurisdiction was conferred: Attorney-General of NSW v Chiew Seng Liew [2012] NSWSC 1223 at [73] per Beech-Jones J; Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355 at [91] per McHugh, Gummow, Kirby and Hayne JJ. Having proper regard to the mandatory factors in s. 135 of the Act is a condition precedent to the exercise of the Authority’s jurisdiction conferred under that section.

What is required on the part of a decision-maker in respect of mandatory factors of the kind set out in s. 135 of the Act was explained by the Full Court of the Federal Court of Australia in Bat Advocacy NSW Inc v Minister for Environment Protection, Heritage and the Arts [2011] FCAFC 59 (at [44]):

It is important to bear in mind that when a court is asked to undertake judicial review of an administrative decision, it should not approach its task with the use of a “fine tooth comb”, or with “an eye keenly attuned to the perception of error”: Attorney-General for NSW v NSW State Parole Authority and Hall [2006] NSWSC 865 at [49]; Liew (supra) at [76]. The reasons of an administrative decision-maker are meant to inform. They are not meant to be scrutinised upon over-zealous judicial review by seeking to discern whether some inadequacy may be gleaned from the way in which they have been expressed: Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259. In particular, when determining whether an offender should be released on parole, the Authority is not required to express a finding as to every fact which leads, or which is relevant, to its final determination: Al Qatrani v Parole Authority of NSW [2007] NSWSC 1270 at [15].

Section 193C(2) of the Act which I have set out above requires the Authority’s reasons to address the various mandatory considerations affecting its decision, including those specified in s. 135(2). Although not determinative, the absence of any reference to such a matter in a decision-maker’s reasons may sustain an inference that it was not considered: Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30; (2001) 206 CLR 323 at [5] per Gleeson CJ; at [35] per Gaudron J; at [69] per McHugh, Gummow and Hayne JJ; Liew (supra) at [78].

The primary position of the plaintiff was that in each of the three instances relied upon, there had been jurisdictional error on the part of the Authority by failing to take into account a mandatory relevant consideration. In each instance, an alternative ground was relied upon alleging error of law on the face of the record. If jurisdictional error is made out in any individual instance, it will not be necessary for me to consider the alternative ground.

Commencing at T1 L 26, the Chairperson stated the following:

The Chairperson then explained (commencing T2 L36) the conditions upon which the offender was to be released before concluding (at T3 L10):

It was submitted on behalf of the plaintiff that s. 135(2)(b) of the Act required the Authority, when considering whether an offender should be released, to have regard to the need to maintain public confidence in the administration of justice. It was submitted that nowhere in the Authority’s determination in the present case was there any reference, be it express or implied, to that factor. This, it was submitted, gave rise to an inference that the issue raised by s. 135(2)(b) had not been the subject of any consideration.

It was further submitted that the Authority was under an obligation to consider the issue raised by s. 135(2)(b) from the perspective of the likely response, to the offender’s proposed release, of an informed member of the public. It was submitted that to the (limited) extent that the Authority’s reasons referred to the issue, the matters to which reference was made were of such a nature as would cause an informed member of the public to be concerned at the prospect of the offender being released on parole. Such matters, in the submission of senior counsel for the plaintiff, included the Chairperson’s reference to the offender’s “somewhat chequered history”.

Senior counsel for the plaintiff also relied on the fact that in written submissions provided to the Authority at the time of the original hearing, the State raised a number of matters in the context of s. 135(2)(b) including, in particular, the circumstances surrounding the offending. It was submitted that the Authority’s decision was completely silent in respect of those issues which were drawn to its attention.

It was submitted that for all of these reasons, there had been a failure on the part of the Authority to have regard to the provisions of s. 135(2)(b) of the Act and that this amounted to an error of law.

Counsel for the offender submitted that the category of material which was relevant to a consideration of the issue raised by s. 135(2)(b) was necessarily, and deliberately, wide. He submitted that it was evident from the Authority’s reasons that it had considered a number of matters relevant to the need to maintain public confidence in the administration of justice, including:

Counsel for the offender submitted that having considered these matters, the Authority had concluded that it was appropriate to grant parole and that, properly read, the reasons reflected the Authority having engaged in the necessary evaluative process.

Counsel for the offender also relied on the second of the three introductory paragraphs of the pro-forma document set out at [20] above. Although counsel did not submit that the contents of that paragraph formed part of the Authority’s reasons, he submitted that it was open to go beyond the reasons themselves in order to determine if there was error. He submitted that it was clear from the wording of that paragraph that the need to maintain public confidence in the administration of justice had been taken into account by the Authority as mandated by s. 135(2)(b) of the Act.

In responding generally to the various grounds relied upon by the plaintiff, counsel for the offender submitted that there was a danger in concluding that the Authority had failed to take a particular matter into account simply because there was no reference to it in the reasons. In this regard counsel drew my attention to the decision in Gamble v Emerald Hill Electrical Pty Limited [2010] VSC 611 where Ross J observed (at [32]) that the failure to advert to a material circumstance in written reasons was a “very unsure guide” in determining whether there was a failure to take that matter into account. Such observations were cited by French J (as his Honour then was) in W352 v Minister for Immigration and Multicultural Affairs [2002] FCA 398 at [32].

Counsel for the offender further submitted that not every consideration that a decision-maker is bound to take into account, but fails to take into account, will justify the court setting aside the impugned decision and ordering that the discretion be re-exercised. He submitted that there were circumstances in which a factor might be so insignificant that the failure to take it into account might not materially affect the decision: Minister for Aboriginal Affairs v Peko Wallsend Limited [1986] HCA 40; (1986) 162 CLR 24 at 39 per Mason J (as his Honour then was).

The Authority is charged with what is, on any view, an important public duty. Consistent with that important duty, the Parliament has seen fit, by enacting s. 135 of the Act, to require that certain matters be taken into account when the Authority is determining whether or not an offender should be released on parole. The Authority, as a decision-maker, is under an obligation to engage in an active intellectual process in respect of each mandatory factor in s. 135(2). It must do so in such a way as to give each factor genuine consideration. On the evidence before me, I am not satisfied that the Authority met this obligation in respect of the provisions of s. 135(2)(b) of the Act. I have come to that conclusion for a number of reasons.

Leaving aside the contents of the pro-forma document (which I have addressed at [49]-[51] below) there is no specific reference whatsoever in the Authority’s reasons to the need to maintain public confidence in the administration of justice. As I have pointed out, the absence of such reference may sustain an inference that the matter in question was not considered. That, of course, is not determinative. Considered alone it may, as Ross J observed in Gamble, be an unsure guide. However in the present case, such an inference is supported by other factors.

In Hall (supra) McClellan CJ at CL observed (at [45]) that s. 135(2)(b) mandates a unique matter for consideration, and requires the Authority to consider whether the release of an offender on parole might affect public confidence in the justice system. This raises for consideration the question of whether an offender’s release would diminish public confidence in the administration of justice, having regard to matters such as:

The matters identified by McClellan CJ at CL do not, of course, constitute an exhaustive list. However in the present case, the Authority’s reasons do no more than make reference to the fact of the offence and where it occurred. Nothing more was said, in circumstances where the State’s submissions which were before the Authority set out, in detail, the circumstances of the offending.

Further, although the Chairperson made reference to the offender’s history, he did so essentially by reciting it. He made no attempt to articulate how that history might bear upon the issue of public confidence in the administration of justice. Similarly, although reference was made to medical evidence, there was no proper consideration of the offender’s progress towards rehabilitation. Merely referring to bare facts falls short of engaging in the type of active intellectual process to which the Court referred in Bat Advocacy NSW (supra). Such a process requires not only a reference to the facts, but a consideration of how those facts impact upon the relevant issue.

The parties accepted that the pro-forma document could not be regarded as being incorporated into, or forming part of, the Authority’s reasons. However, even accepting that it is open to go beyond the reasons to determine whether an error has been made out, the contents of the pro-forma document do not assist the offender’s position in the present case. In Liang (supra) the plurality (Brennan CJ, Toohey, McHugh and Gummow JJ) observed (at 266):

The second of the three opening paragraphs in the pro-forma document does no more than make reference to the need to maintain public confidence in the administration of justice. There is nothing to suggest that the statement in that paragraph was used to guide the steps made towards the Authority’s decision in the present case. This is particularly so when there was no reference at all to the issue raised by s. 135(2)(b) in the Authority’s ex-tempore reasons.

In Hall a similar statement appeared in the document in which the reasons of the Authority were contained (at [45]). It was in these circumstances that McClellan CJ at CL found (at [47]) that such a statement constituted a clear acknowledgement that the matter raised by s. 135(2)(b) had in fact been considered. Those circumstances are obviously distinguishable from the present case. In particular, and unlike the position in Hall, the pro-forma document is not that in which the reasons of the Authority are contained.

Finally, I accept that there may be circumstances in which a matter is so insignificant that a failure to consider it may not materially affect a decision. However, this could not be said about the provisions of s. 135(2)(b) as they apply in the present case. When one bears in mind the nature of the responsibility conferred upon the Authority, the necessity to maintain public confidence in the administration of justice is obviously significant. The same can be said for the other two statutory provisions upon which the plaintiff relies in support of the relief sought, and which are discussed further below.

For all of these reasons ground 1 is made out. In those circumstances it is not necessary for me to consider ground 2, which was relied upon in the alternative.

That part of the reasons of the Authority relevant to this ground appears in the first paragraph in [33] above. That paragraph constitutes the sole express reference in the Authority’s reasons to the nature and circumstances of the relevant offence.

It was submitted on behalf of the plaintiff that the reference, in the Authority’s reasons, to the offence fell substantially short of a proper and genuine consideration of the issue raised by s. 135(2)(c). It was submitted that on any view, the nature of the offending constituted (inter alia) a serious act of violence, and that it was incumbent upon the Authority to properly consider all of the relevant circumstances when making its determination.

It was further submitted that the fact that this was not the first occasion on which the offender was released to parole did not relieve the Authority of its responsibility to consider all of the mandatory matters for which s. 135(2) of the Act provided.

Counsel for the offender acknowledged that the Authority’s reference to the nature and circumstances of the offending was (as he described it) “sparse”. However it was submitted that when read as a whole, the Authority’s reasons reflected the fact that the issue had received proper consideration. It was submitted that the fact that the Authority had made specific reference to the offender’s conviction and sentence meant that attention had been given to those matters.

Counsel for the offender also relied on the fact that in the course of its reasons, the Authority made specific reference to other evidence, including the report of Dr Keller. It was pointed out that the report of Dr Keller contained a more expansive description of the nature and circumstances of the offending which the Authority had obviously taken into account.

It was submitted that on these bases there was sufficient material contained in the Authority’s reasons to support a conclusion that it had properly considered the nature and circumstances of the offending. It was submitted that any lack of detail in the Authority’s reasons did no more than reflect the fact that the nature and circumstances of the offending had been given less weight when compared with issues such as the offender’s neuropsychological state and his post-release plans. It was emphasised that questions of weight remained a matter for the Authority.

In its reasons, the Authority did no more than make passing reference to the nature of the offence and the location at which it occurred. In my view, compliance with the provisions of s. 135(2)(c) required substantially more than that.

Firstly, compliance with s. 135(2)(c) required a proper consideration of the actual circumstances in which the offending occurred. Those circumstances were set out in the submissions of the State and are summarised in [9] above. Secondly, such compliance required the Authority to engage in an intellectual process in which the nature and circumstances of the offending, and their impact upon the decision which was to be made, were properly considered. In my view, the evidence overwhelmingly supports the conclusion that such a task was not undertaken.

In particular, I am unable to accept the submission of counsel for the offender that the Authority’s reference to the report of Dr Keller provides a basis for concluding that proper consideration was given to the factor set out in s. 135(2)(c). This is so for three reasons. Firstly, the reference to Dr Keller’s report was a passing one. Secondly, the reference was made in an entirely different context. Thirdly, the account of the offending given by the offender to Dr Keller (set out at [10] above) was at odds with the jury’s verdict in any event. A passing reference to a medical report, made in a context which is entirely different to that presently under consideration, provides little support for the conclusion that the circumstances of the offending were properly considered. This is particularly so where the report sets out an account of such offending which appears to be at odds with what in fact occurred.

For all of these reasons ground 3 is made out. In those circumstances it is not necessary for me to consider ground 4, which was relied upon in the alternative.

In the course of delivering the reasons of the Authority, the Chairperson (commencing at T2 L36) explained the various conditions to the offender, in the course of which he said:

Senior counsel for the plaintiff conceded that there were no submissions made to the Authority on behalf of the family of the victim. However, it was submitted that the provisions of s. 135(2)(g) of the Act required the Authority to consider the likely effect, upon the victim’s family, of the offender’s release, even in the absence of any such submissions being made.

It was submitted that pursuant to s. 145 of the Act it was incumbent upon the Authority to give notice of its intention to make an order for parole to any victim, or members of the victim’s family, whose names were recorded on the relevant register. It was conceded on behalf of the plaintiff that there were no persons on the register in relation to this offender. It was further conceded that whilst s. 145(2)(d) of the Act required the Authority to take into account any submissions made by a victim when considering its decision, no such submissions were made in the present case.

Nevertheless, it was submitted that as a matter of statutory construction, s. 135(2)(g) required the Authority to have regard to the likely effect, upon any victim or family member of a victim, of the offender being released on parole. It was further submitted that such a requirement was emphasised by s. 2A(2) of the Act, which provides that in the pursuit of the objects of the Act due regard must be had to the interests of victims of offences. It was submitted that the reasons of the Authority were bereft of any reference to this factor and that this was a clear indication that it had not been considered.

Counsel for the offender submitted that the issues raised by the plaintiff in respect of these grounds were answered completely by the terms of the condition which had been imposed. It was submitted that in order to impose that condition the Authority must have considered the issue, and must have concluded that a particular danger needed to be avoided. It was also pointed out that the condition in question was one which was over and above the “standard conditions” and that this provided a further indication that the provisions of s. 135(2)(g) had been considered.

The effect of the submission advanced on behalf of the offender is that I should infer, from the fact that the Authority imposed the condition in question, that the issue had been properly considered. Inherent in such a submission is an acknowledgment that there is no other reference to the matter in the Authority’s reasons. One of the difficulties in accepting that submission stems from the fact that s. 135(2)(g) is concerned with the effect, upon the family of a victim, of an offender being released. However, the assessment of that effect is not confined to conditions: Hall (supra) at [54].

In Hall the reasons of the Chairperson made it plain that the Authority was mindful of the concerns of the victim’s family. The subsequent imposition of conditions gave effect to those acknowledged concerns. In the present case, there was no such acknowledgment. Indeed, there was no reference at all to the matter. Section 135(2)(g) required the Authority to give consideration to the likely effect of the offender’s release upon any member of the victim’s family. That likely effect was required to be considered in light of conditions upon which the offender’s release could be granted: Hall (supra) at [54]. The requirement imposed by s. 135(2)(g) was underscored by the provisions of s. 2A(2). In my view it is apparent that the Authority did not give proper consideration to any of these matters.

For all of these reasons ground 5 is made out. In those circumstances it is not necessary for me to consider ground 6, which was relied upon in the alternative.

Counsel for the offender submitted that even if error was established, I should exercise my discretion to decline to grant the relief sought on the basis that s. 153 of the Act provided a mechanism for the plaintiff to challenge the Authority’s decision after it had been made. I am unable to accept that submission.

Regulation 222 of the Crimes (Administration of Sentences) Regulations 2014 provides as follows:

Section 153 permits the State to make submissions to the Authority regarding an offender’s release on parole. The Authority is given power under s. 130 of the Act to revoke a parole order. However, Regulation 222 prescribes the circumstances in which that power may be exercised. Such circumstances are inapposite to those in the present case.

It follows that in my view, in the circumstances of the present case, there is no statutory remedy available to the plaintiff. Accordingly, error having been found, there is no basis upon which to exercise the discretion to decline to grant the relief sought.

For the forgoing reasons, I make the following orders: