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Supreme Court 9 November 2007

Al Qatrani v Parole Authority of New South Wales

[2007] NSWSC 1270

Sexual offencesPublic order & justice offences
ADMINISTRATIVE LAW ERROR OF LAW ON FACE OF RECORD JURISDICTIONAL ERROR ADEQUACY OF REASONS CERTIORARI MANDAMUS

Citation: Al Qatrani v Parole Authority of New South Wales [2007] NSWSC 1270
Court: Supreme Court of New South Wales
Date: 9 November 2007
Judge(s): Harrison J

Background

The plaintiff was convicted of sexual intercourse without consent and re-sentenced, following a partial successful appeal, to an effective term of seven years imprisonment with a non-parole period of four and a half years. That non-parole period expired in April 2006. He made three separate applications for parole to the Parole Authority of New South Wales, all of which were refused.

The third refusal, delivered on 5 April 2007, is the subject of this decision. The plaintiff challenged that refusal in the Supreme Court, seeking prerogative relief in the form of certiorari (to quash the decision) and mandamus (to compel the Authority to re-determine his application according to law). Alternatively, he sought relief under s 155 of the Crimes (Administration of Sentences) Act 1999, which allows a court to give directions where a parole decision was based on false, misleading or irrelevant information.

The Parole Authority filed a submitting appearance, meaning it left the matter to the Court without opposing the application. The Attorney General for New South Wales intervened to act as contradictor, a course that had been adopted in similar proceedings.

  • Whether the Parole Authority's refusal of parole disclosed an error of law on the face of the record or a jurisdictional error, including by:
  • Refusing parole on the basis that no suitable post-release accommodation existed, when the Authority itself acknowledged that accommodation would be resolved upon the grant of a parole order
  • Failing to properly apply the mandatory criteria under s 135(2) of the Crimes (Administration of Sentences) Act 1999, including community safety, public confidence, the nature of the offence, and sentencing court comments
  • Taking into account irrelevant considerations and failing to take into account relevant ones
  • Refusing parole on the sole basis that the plaintiff had not addressed his sex offending behaviour
  • Whether the Authority's reasons for its decision were adequate
  • Whether the decision was based on information that was false, misleading or irrelevant under s 155 of the Act

Decision

Harrison J found that the Parole Authority's decision was affected by error of law and quashed it. The chairperson's reasons were brief, and the Court found they did not adequately address the statutory criteria under s 135(2) of the Act. While decision-makers are not required to produce reasons of elaborate length, the reasons given must be sufficient to demonstrate that the relevant statutory considerations have genuinely been engaged with.

The Court found particular difficulty with the Authority's treatment of accommodation. The chairperson expressly acknowledged that the plaintiff's lack of suitable post-release accommodation would be resolved almost immediately upon the grant of parole, yet the Authority still cited accommodation as a reason for refusal. Treating a consideration as a reason for refusal when the Authority simultaneously recognised it would not persist amounted to legal error.

The Court also found the reasons deficient in their treatment of the statutory criteria. The chairperson recited a number of the s 135(2) factors but did not explain how they were applied to the plaintiff's circumstances. Simply listing criteria without engaging with them in any substantive way is not enough to satisfy the obligation to give adequate reasons in the context of a decision affecting a person's liberty.

On the s 155 ground, Harrison J declined to grant relief. The statutory power under s 155 is narrow: a court can only direct that information before the Authority was false, misleading or irrelevant. The Court found it was not possible to characterise the relevant information in that way, nor was the determination "plainly" (rather than arguably) wrong, as the case law requires.

Orders Made

  • The determination of the Parole Authority of 5 April 2007 refusing the plaintiff parole was quashed.
  • The Parole Authority was directed to determine the plaintiff's eligibility for parole in accordance with law.
  • The question of costs was reserved for further hearing.

Key Takeaways

  • A parole authority's reasons must demonstrate genuine engagement with the statutory criteria, not merely recite them. Listing the relevant factors without applying them to the circumstances before the decision-maker is insufficient.
  • Relying on a factor as a reason for refusal while simultaneously acknowledging that the factor would not persist constitutes legal error. The Court found that the accommodation point fell into precisely that category.
  • Under s 155 of the Crimes (Administration of Sentences) Act 1999, a court's power is strictly limited to assessing whether information before the Authority was false, misleading or irrelevant. It cannot assess whether the Authority reached the right conclusion, drew correct inferences, or gave appropriate weight to the material before it.
  • Where a parole authority files a submitting appearance, the Attorney General may intervene as contradictor. This practice, confirmed here and in earlier decisions such as Esho and St Alder, ensures the court has adversarial argument on which to base its conclusions.
  • Quashing a refusal of parole does not result in the grant of parole. The remedy of mandamus requires the Authority to re-determine the application lawfully, not to reach any particular outcome.

Legislation and Cases Referenced

Legislation:
- Crimes (Administration of Sentences) Act 1999 (NSW), ss 135, 155, 193C
- Supreme Court Act 1970 (NSW), s 69

Cases:
- Attorney General for New South Wales v New South Wales State Parole Authority and Anor [2006] NSWSC 865
- Craig v The State of South Australia (1994-1995) 184 CLR 163
- DCU v State Parole Authority of New South Wales [2006] NSWSC 526
- Esho v Parole Board Authority of NSW [2006] NSWSC 304
- Galli v New South Wales State Parole Authority [2006] NSWSC 206
- Insurance Manufacturers of Australia Pty Ltd v Vandermeer [2007] VSC 28
- Kiama Constructions Pty Ltd v Davey (1996) 40 NSWLR 639
- LMS v Parole Board [1999] NSWCCA 371
- McPherson v Offenders Review Board (1991) 23 NSWLR 61
- Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24
- Mifsud v Campbell (1990-1991) 21 NSWLR 725
- Public Service Board of New South Wales v Osmond (1985-1986) 159 CLR 656
- Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 (2003) 77 ALJR 1165
- Regina v Naudi [2003] NSWCCA 160
- Sean Investments Pty Ltd v MacKellar (1981) 38 ALR 363
- Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247
- St Alder v State Parole Authority [2007] NSWSC 345
- The Queen v Australian Broadcasting Tribunal; Ex parte Hardiman (1980) 144 CLR 13