Dunstan v Sentence Administration Board of the ACT [2006] ACTSC 63 (25 May 2006)

Last Updated: 12 February 2007

COLIN GEORGE DUNSTAN v SENTENCE ADMINISTRATION BOARD

OF THE ACT [2006] ACTSC 63 (25 MAY 2006)

EX TEMPORE JUDGMENT

No SC 817 of 2005

Judge: Crispin J

Supreme Court of the ACT

Date: 25 May 2006

IN THE SUPREME COURT OF THE )

) No SC 817 of 2005

AUSTRALIAN CAPITAL TERRITORY )

BETWEEN: COLIN GEORGE DUNSTAN

Applicant

AND: SENTENCE ADMINISTRATION BOARD OF THE ACT

Respondent

REASONS FOR JUDGMENT

Judge: Crispin J

Date: 25 May 2006

Place: Canberra

1. These proceedings concern two separate applications. The first is an application for leave to apply out of time for an order of review, presumably pursuant to the Administrative Decisions (Judicial Review) Act 1989, of certain decisions taken by the respondent which is the Sentence Administration Board of the Australian Capital Territory. The second is an application for prerogative and other relief pursuant to s 34B of the Supreme Court Act 1933.

2. The application for an extension of time to bring proceedings for review, which I will refer to hereafter simply as "the review application", seeks a review of a decision of 20 January 2004 to refuse an order that the applicant be released on parole pursuant to s 52 of the Rehabilitation of Offenders (Interim) Act 2001 and a review of a similar decision made on 15 September 2004.

3. The application for prerogative and other relief, which I will simply refer to hereafter as "the prerogative application", seeks an order of or in the nature of certiorari quashing the decision of 15 September 2004, an order in the nature of mandamus requiring the respondent to conduct a further hearing according to law and such further orders that may be considered appropriate.

4. The applicant, who appears in person, has addressed the review application and indicated that he does not wish to make any further submissions specifically directed to the prerogative application. Hence, I have assumed that the same issues arise in relation to each of these applications.

5. It is unnecessary for the applicant to obtain any order extending the time within which the prerogative application may be brought though, of course, a substantial delay of bringing such an application may nonetheless be relevant to the exercise of discretion.

6. The context in which these applications have been brought is substantially disclosed in the amended applications for the order of review, which was filed on 12 April 2006 though subsequently amended by a further document filed in court by leave on 21 April 2006.

7. The first of those documents recounts the fact that on 26 April 2000, Higgins CJ sentenced the applicant to an effective term of imprisonment of nine years and fixed a period of five years as the non-parole period. These sentences must have been backdated, because I have been informed that the non-parole period expired on 25 May 2004. It appears that even prior to the expiration of the non-parole period, the applicant had applied for release on the ground of exceptional circumstances and it was that application that was dealt with by the respondent in its decision of 20 January 2004. That decision and the subsequent decision in September 2004 were said to have constituted a purported exercise of the power conferred by s 50 of the Rehabilitation of Offenders (Interim) Act. As a consequence of those decisions and at least one subsequent decision, the applicant has not been released on parole but remains in prison.

8. The first ground of the review application is that the making of the decision was an improper exercise of the power conferred by s 50 of the Act, in that, the respondent failed to take into account a relevant consideration. The particulars of that ground allege that the respondent regarded the issue of the risk of the applicant re-offending if released on parole as fundamental to the performance of the relevant statutory function, but that it failed to have regard to reports prepared by the NSW Department of Corrective Services and forwarded to the respondent which expressly addressed that issue. The particulars of the allegation refer to three reports by psychologists, one provided by Mr Thomas and two by Ms Moore.

9. I should say that I have carefully considered the submissions that the applicant has made in relation to these reports, but it does not seem to me that the respondent failed to have regard to them. It appears, rather, that the respondent formed the view that they were inadequate and that further expert evidence should be sought in relation to this issue. Accordingly, I am not satisfied that this ground has been established.

10. The second ground is that the making of the decision was an improper exercise of the power conferred by s 50 of the Act in that it was unreasonable in the sense referred to in subsection (5)(2)(g) of the Administrative Decisions (Judicial Review) Act. The particulars of that allegation allege that the respondent required, as a precondition to its full consideration of the applicant's entitlement to parole, the preparation of a psychiatric report by the New South Wales Corrections Health Service in circumstances where the material supplied by the respondent to the reporter were not disclosed to the applicant, and were, to the knowledge of the respondent, incomplete to the detriment of the applicant and in circumstances where there was an abundance of reports dealing with the issues concerned with the applicant. A further particular alleges that the report required by the respondent was not available for hearing and that the respondent attributed responsibility for the absence of the report to uncooperative conduct by the applicant.

11. It should be observed that the concept of unreasonableness applies only to exercises of power that are so unreasonable that no reasonable person could be expected to have so exercised the power.

12. In the present case it seems to me there is no evidence that would establish unreasonableness in the relevant sense. There is clearly evidence that relevant documents have not been disclosed to the applicant, but those documents generally appear to have been of the kind described within s 96 of the Act and, accordingly, could not have been lawfully disclosed to the applicant. Furthermore, even if there were some inappropriate omissions in the provision of material to the applicant, or even, for that matter, to the psychiatrist engaged to conduct the relevant assessment, that would not, of itself, establish that the subsequent decision to refuse parole was attended by unreasonableness. An administrative error does not necessarily vitiate a subsequent decision or support a contention that it was made unreasonably.

13. It does appear that there was an entry on the file which suggested that the absence of the requested report was attributable to uncooperative conduct by the applicant and the applicant has submitted that this note was incorrect. For present purposes I am prepared to accept that it was, but the fact that the respondent may have acted upon an erroneous notation again provides no ground for the contention that its decision has been vitiated on the basis of unreasonableness in the relevant sense.

14. The third ground is that the decision involved an error of law, but the particulars relied upon for that allegation are the same as those provided in support of grounds 1 and 2 which I have already dealt with.

15. The fourth ground is that a breach of the rules of natural justice occurred in connection with the decisions. The rules of natural justice, of course, require an unbiased tribunal and the opportunity for a person who may be adversely affected by the relevant decision to be heard in relation to it. In the present case, the applicant relies upon three particulars said to constitute a breach of these rules.

16. First, the respondent required, as a pre-condition to full consideration of the applicant's entitlement to parole, the preparation of a psychiatric report by New South Wales Corrections Health Service in circumstances where the materials supplied to the reporter were not disclosed to the applicant were to the knowledge of the respondent incomplete to his detriment. The evidence does not, in my opinion, establish that the materials supplied to the psychiatrist were incomplete but, even if they were, that fact would not of itself support the further allegation that this was, to the knowledge of the respondent, to the detriment of the applicant. I should interpolate the comment that it does not seem to me that the respondent's decision to seek such a report could in any sense be regarded as a breach of natural justice. I accept that the applicant is of the view, indeed strongly of the view, that the decision was unwarranted, but that does not demonstrate a breach of the rules of natural justice.

17. Secondly, it is accorded responsibility for the absence of the report to uncooperative conduct by him without considering evidence relating to reasons for the absence of the report. Again, I am unable to see how that could have constituted a breach of natural justice. It is not incumbent upon the respondent to inquire into the accuracy of every notation in departmental records.

18. Third, it concluded the inquiry into the applicant's eligibility for parole rather than adjourning the application to allow full disclosure of the applicant and the remedying of the incomplete nature of the material supplied to the New South Wales Corrective Services Health Service. I note that these particulars were contained in the amended notice of motion which related to the hearing on 15 September 2004, (at least before the further amendment to address the earlier hearing), and they presumably relate to the September hearing. The evidence before me does not demonstrate that the decision to conclude the inquiry, in circumstances where it remained open to the applicant to make a further application, did constitute a breach of the rules of natural justice. Whether or not the matter should have been adjourned or dismissed was a matter within the discretion of the respondent, a discretion that it was required to exercise in the context of all the prevailing circumstances.

19. The further amendment raises a fifth ground, namely that the making of the January 2004 decision was an improper exercise of the power conferred by s 52 of the Act, in that the respondent failed to take into account a relevant consideration in the exercise of the power. The particulars of that ground allege that the respondent on 20 January 2004 requested that comprehensive documentation to be added to the applicant's file, including details about the consideration of his prison application for a C3 classification, but did not wait for those details to be provided before making a decision. I should explain that a C3 classification is a minimum security classification and it is apparently a pre-requisite within the New South Wales Prison Service for participation in external programs and day release. The particulars also allege that the respondent considered a memorandum from the victim liaison officer dated 15 January 2004 and did not take into account the fact that the applicant had raised as an exceptional circumstance interference by that officer in the application for a C3 classification.

20. Whilst I have had the benefit of very extensive submissions from the applicant, I must say that I am unable to see that the manner in which the respondent approached these issues involved an improper exercise of the power provided by section 52 of the Act. The respondent was, of course, obliged to take into account a range of diverse and perhaps sometimes competing considerations. Even if the applicant's contentions had been proven, the mere fact that he had been denied a C3 classification in inappropriate circumstances would not have required his release on parole.

21. I should explain that Mr Dunstan's submissions have been somewhat discursive and have ranged over quite a number of topics, some of which have been related only peripherally, if at all, to the particular grounds that have been set out in pleadings.

22. He has raised some apparently valid points. For example, he has already remained in prison for two years after the expiration of his non-parole period. Furthermore, any risk that he might re-offend if released on parole must ultimately be balanced against the competing risk involved in keeping him in custody for some further period and then releasing him without prior participation in rehabilitation programs and without the continuing supervision that a parole order would permit. However, these are matters for the respondent which, I understand, is due to consider a further application for his release on parole on 27 June next. They are not matters that I can consider in the context of the proceedings raised by either of the present applications.

23. There are, however, a number of other issues that the applicant has raised in argument that I should perhaps address briefly.

24. The first is his submission that evidence that a judicial member of the respondent had made various documents secure under s 96 of the Rehabilitation of Offenders (Interim) Act 2001 revealed a measure of pre-judgement on the part of at least one member of the respondent. I have had the opportunity of inspecting the documents in question and, subject to a few documents which I understand will now be disclosed to Mr Dunstan, it seems clear that they are documents which would fall in s 96(1) of the Act in that they contain relevant details about victims. Accordingly, the section precludes their disclosure to the applicant and no exercise of discretion is required. In any event, the mere fact that a judicial member expresses an opinion of the kind required by subs (2) of that section would not, of itself, indicate any pre-judgement of a kind sufficient to give rise to a reasonable apprehension of bias or to otherwise make it inappropriate for that member to participate in a subsequent hearing. Such a step merely involves the formation of an opinion of a kind required for the operation of the relevant statutory provision. In any judicial or quasi-judicial proceedings, it may be necessary for a judicial officer to form opinions as to whether to exercise discretion in relation to matters of evidence or procedure but that does not, of itself, warrant concern about his or her judicial impartiality.

25. The second is the submission that the respondent considered an irrelevant consideration, namely the public interest. That submission is based upon the fact that the applications were made under s 52 of the Act, subsection (1) of which provides that if the respondent is satisfied that there are exceptional circumstances justifying the release on parole of a sentenced offender under this section, the respondent may make a written order directing the release of the offender on parole. Subsection (4) provides:

Division 3.3.3 (Making Decisions About Release on Parole): Other than section 46 (The Board to Seek Views of Victims) and section 51(2), 2(4) (General Duty of Board in Making Parole Decisions) does not apply to a parole order under this section.

26. As Mr Dunstan points out, that would appear to exclude the operation of s 51(1) to applications of that kind. Section 51(1) provides that:

The board may make a parole order for a sentenced offender only if it has decided that the release of the offender is appropriate, having regard to the principle that the public interest is of primary importance.

27. Mr Dunstan submits that since that consideration does not apply to a parole made in circumstances where the applicant has relied upon exceptional circumstances, it follows that the respondent fell into error in considering the public interest. I am unable to accept that submission.

28. Subsection (1) has the effect of making the public interest of primary importance. The fact that that section does not apply to an application under s 52 does not, in my view, mean that the public interest must be excluded altogether from consideration. Whilst the respondent is relieved of the obligation to regard it as being of primary importance, it is nonetheless a factor that may be taken into account, though the weight which it may be accorded will vary according to the circumstances and it will need to be balanced against other considerations including, of course, the exceptional circumstances relied upon by the applicant.

29. In the present case, I think that the point is, in any event, somewhat moot because many of the circumstances relied upon by Mr Dunstan, whilst no doubt matters of acute concern to him, are not in my opinion exceptional. The deprivation of home life, loss of employment and concern at the adverse consequences for other family members are, I regret to say, among the unfortunate consequences of confinement that befall many people within a prison system, no matter how enlightened. Viewed overall, the issues raised were not, in my opinion, sufficiently exceptional to invoke the provisions of s 52.

30. A further consideration raised by Mr Dunstan was the perceived failure of the respondent to adequately comply with s 46(3) of the Act. That subsection provides that the Board must give each victim, contacted prior to considering whether or not a sentenced offender should be released on parole, information about the offender necessary for that victim to exercise his or her rights under the section. Paragraph 46(4)(a) refers, as an example, to information about the offender's conduct to date while serving his or her sentence and the standard conditions for parole prescribed by the regulations. The applicant points out that in the present case, submissions were received from victims prior to the full psychological reports being obtained and that those reports were not made subsequently available to the victims to inform them before they prepared their submissions. Whilst that may have been a regrettable oversight, it does not seem to me that any such administrative failure could have had the effect of vitiating the orders in question.

31. Whilst I have considered all of Mr Dunstan's submissions carefully, and have myself examined a great deal of the records available, I have not been able to find any ground upon which either of the applications could be sustained. I accept that the delay in bringing the review proceedings has been at least partially explained, though it remains a factor at least in relation to the prerogative application, but I can see no reasonable prospects of the applicant succeeding on either application.

32. I must also say that there would appear to have been no utility in granting the relief sought, even if some arguable ground had emerged. The relief sought in each case involved remitting the matter to the respondent to be dealt with according to the law. The matter is, however, due to be reconsidered on 27 June 2006 and the respondent has been at least partially reconstituted since the earlier hearings. There is nothing in the evidence that gives me any reason to doubt that the proceeding will be conducted in accordance with the law.

33. There remains a sticking point for the applicant in that he remains unwilling to participate in further psychiatric assessment pursuant to an arrangement with Professor Greenberg to assess the risk of him re-offending should he be released on parole. I urge him for his own sake to reconsider that attitude since it may well prejudice his prospects at the further hearing, but that I am afraid is a matter for him. For the present purposes, I am obliged to dismiss these proceedings.

34. If there is nothing further gentlemen, I'll adjourn.

35. MR WALKER: Your Honour, I am actually instructed to make an application of costs in this case. I understand what, your Honour, might be the instinctive response to that, but I wish to say something in support of it.

(ARGUMENT NOT TRANSCRIBED)

36. HIS HONOUR: Mr Walker, in other circumstances I might readily accede to that submission but there are, I think, four matters that incline me to take a different view. The first, that you've already mentioned, is that this is a case of a man held in custody seeking to regain his liberty, and furthermore doing so in circumstances in which his non parole period expired more than two years ago. One can understand him having a degree of desperation about it. The second is that one can understand his concern at the fact that documents have been kept from him, albeit it now seems for perfectly sound legal reasons. The third is that he apparently did have advice from senior counsel about this application and the amended application was settled by solicitors engaged on his behalf. The fourth is that your client's concern about the possible extent of a psychological illness keeps him in custody and, given the weight of that concern, it seems to me that the possibility of him labouring under a such significant illness should also be taken into account in considering whether he should be made subject to the sanction of a costs order.

37. In all the circumstances, I refuse your application.

I certify that the preceding thirty-seven (37) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Justice Crispin.

Associate:

Date: 26 June 2006

Counsel for the Applicant Self represented litigant

Counsel for the Respondent Mr P Walker

Solicitor for the Respondent Australian Capital Territory Government Solicitor

Date of hearing 24 May 2006, 25 May 2006

Date of judgment 25 May 2006