Federal Court of Australia

Lazarus v Attorney-General (Cth) [2024] FCA 1021

ORDERS

THE COURT ORDERS THAT:

1.    The application is dismissed.

2.    The applicant is to pay the costs of the respondent to be agreed or assessed.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

ABRAHAM J:

1    On 4 March 2022, Mr Lazarus was sentenced in the District Court of New South Wales to 6 years and 6 months’ imprisonment, commencing on 16 July 2020, with a non-parole period of 3 years and 9 months, for 13 offences contrary to the Criminal Code 1995 (Cth) (Criminal Code), being:

(1)    4 counts of using a carriage service to transmit indecent communication to a person under 16 years of age, contrary to s 474.27A(1);

(2)    1 count of possessing or controlling child abuse material obtained or accessed using a carriage service, contrary to s 474.22A(1);

(3)    4 counts of using a carriage service to cause child pornography material to be transmitted to himself, contrary to s 474.19(1)(a)(ii);

(4)    3 counts of using a carriage service to access child pornography material, contrary to s 474.19(1)(a)(i); and

(5)    1 count of using a carriage service to procure a person under 16 years of age, contrary to s 474.26(1).

2    The court also had regard to two further offences of using a carriage service to transmit indecent material to a person under 16 years of age, contrary to s 474.27A(1) of the Criminal Code pursuant to s 16BA of the Crimes Act 1914 (Cth) (Crimes Act).

3    An appeal against that sentence was dismissed: Lazarus v R [2023] NSWCCA 214.

4    The statutory scheme for parole of persons serving sentences of imprisonment for Commonwealth offences vests the power in the Attorney-General of the Commonwealth of Australia: s 19AL of the Crimes Act. On 13 April 2024, a delegate of the Attorney-General (Delegate) declined to release Mr Lazurus on parole (Refusal Decision). As required, the Delegate gave the applicant notice of that decision pursuant to s 19AL(2) of the Crimes Act (Refusal Notice). The effect of this decision is that the Attorney-General is required to reconsider whether to release Mr Lazarus on parole within 12 months of the date of the decision: s 19AL(2)(b) of the Crimes Act.

5    The applicant seeks judicial review of the Refusal Decision pursuant to the Administrative Decisions (Judicial Review) Act 1977 (Cth).

6    For the reasons below, the application is dismissed.

Material before the Court

7    The Court has before it the Refusal Notice dated 13 April 2024. It also has the submission from the Commonwealth Parole Office (CPO) to the Delegate (Departmental Submission), which comprises the material that was before the Delegate at the time he made the Refusal Decision.

8    The Departmental Submission is 215 pages, being a covering letter with 18 attachments including the remarks of the sentencing judge (Attachment A), the decision of the New South Wales Court of Criminal Appeal (Attachment B), pre-release reports issued by Corrective Services New South Wales (Corrective Services) (Attachments F and G) and correspondence and material provided to and from Mr Lazarus and his legal representatives (Attachments H-R).

The Refusal Notice

9    The Refusal Notice included as follows:

In making my decision, I have taken into account submissions made by you and on your behalf.

The order for refusal of parole has been made for the following reasons:

1.    I have had regard to the nature and circumstances of the Commonwealth offences to which your sentence relates.

Your offending involved engaging in sexually explicit conversations with an underage student while impersonating her teacher. You also engaged in sexually explicit conversations with 9 other victims that were under the age of 16 or that you believed to be under the age of 16 at the time. During these conversations, you attempted to procure a person under the age of 16 to engage in sexual activity. You were also found to be in possession of child abuse material.

At sentencing, the court noted that all of your offending was ‘very serious, involving as it did an extended period of predatory and persistent criminal behaviour over approximately five and a half years.’

Taking into account the nature and circumstances of your offending, and the comments by the sentencing court, I consider that your release on parole poses an unacceptable risk to community safety.

2.    I have had regard to your outstanding rehabilitative needs in relation to sex offending, alcohol use and insight, and your ongoing rehabilitative needs in relation to mental health.

I note that you have plans to engage with professional supports to address your rehabilitative needs in relation to alcohol use and mental health.

Noting the seriousness of your offending and the risk to the community if you were to reoffend, I consider it essential that you have confirmed and substantiated plans to engage in sex offender treatment with a suitably qualified professional. While you have plans to be assessed for sex offender treatment, there is no information available to confirm whether you will be referred to sex offender treatment in the community as a result of any such assessment.

Taking this information into account, I consider that your release on parole at this time would not be in the best interest of your ongoing rehabilitation and that you may pose an unacceptable risk to the safety of the community.

3.    I have had regard to your behaviour in custody.

Since entering custody, you have incurred 2 institutional misconduct charges. On 30 August 2020, you were charged with fighting or other physical combat. On 7 December 2021, you were charged with possessing or consuming alcohol. In addition, you have received a number of negative case notes.

Taking this information into account, I hold concerns with your ability to be of good behaviour, not violate any law, and comply with the conditions of a parole order. As such, I consider you may pose an unacceptable risk to the safety of the community.

4.    I have had regard to the short and long-term risk to community of you remaining in custody. I consider on the evidence above that your release on parole at this time poses a risk to the community.

In coming to this view, I have had regard to the matters that weigh in favour of your release on parole at this time, including your well-considered post-release plans for accommodation, employment, social supports, and to engage with professional supports to address your rehabilitative needs in relation to mental health and alcohol use.

Under paragraph 19AL(2)(b) of the Crimes Act, I am required to reconsider you for release on parole within 12 months of this notice being signed.

Statutory regime

10    There is no entitlement to parole; the power to release a prisoner on parole after the expiry of the non-parole period is a matter for the executive: Minogue v Victoria [2019] HCA 31; (2019) 93 ALJR 1031 at [17]. In the case of federal offenders, this is the Attorney-General.

11    The regime for the parole of persons serving sentences of imprisonment for Commonwealth offences (federal offenders) is contained in Part IB, Division 5 of the Crimes Act. The principles as to its application are well established, a summary of which appears in Stephens v Attorney-General [2021] FCA 204 (Stephens) at [11]-[17]; and see for example, Lodhi v Attorney-General (Cth) [2020] FCA 1383 (Lodhi) and Khazaal v Attorney-General [2020] FCA 448.

12    As I there described, s 19AKA states the purposes of parole being the protection of the community, the rehabilitation of the offender and the reintegration of the offender into the community.

13    Section 19AL, which addresses release on parole, is relevantly in the following terms:

19AL Release on parole—making of parole order

(1)    The Attorney‑General must, before the end of a non‑parole period fixed for one or more federal sentences imposed on a person, either make, or refuse to make, an order directing that the person be released from prison on parole (a parole order).

Note 1:    See subsection (5) if the person is subject to a State or Territory sentence.

Note 2:    See also sections 19ALA (matters that may be considered in decisions about parole orders) and 19ALB (decisions about parole orders—terrorism and control orders).

(1A)    If the Attorney‑General does not, under subsection (1), make, or refuse to make, a parole order for a person before the end of the non‑parole period referred to in that subsection, the Attorney‑General must, as soon as practicable after the end of that period, make, or refuse to make, a parole order for the person.

(2)    If the Attorney‑General refuses to make a parole order for a person under subsection (1) or (1A), paragraph (b) of this subsection, or subsection (2A), (6) or (7), the Attorney‑General must:

(a)    give the person a written notice, within 14 days after the refusal, that:

(i)    informs the person of the refusal; and

(ii)    includes a statement of reasons for the refusal; and

(iii)    sets out the effect of paragraph (b) of this subsection; and

(b)    reconsider the making of a parole order for the person and either make, or refuse to make, such an order, within 12 months after the refusal.

Note: See subsection (5) if the person is subject to a State or Territory sentence.

(2A)    If the Attorney‑General does not, under paragraph (2)(b), reconsider the making of a parole order for a person and either make, or refuse to make, such an order before the end of the 12 month period referred to in that paragraph, the Attorney‑General must, as soon as practicable after the end of that period, reconsider and either make, or refuse to make, a parole order for the person.

Contents of parole order

(3)    A parole order must:

(a)    be in writing; and

(b)    specify whether or not the person is to be released subject to supervision; and

(c)    if it is proposed that the supervision period for a person released on parole subject to supervision should end before the end of the person’s parole period—specify the day on which the supervision period ends.

Note 1:    For when a person is released on parole in accordance with a parole order, see section 19AM.

Note 2:    A person released on parole must comply with any conditions of the parole order during the parole period (see sections 19AMA, 19AN and 19AU).

(3A)    If the Attorney‑General considers that in all the circumstances it is appropriate to do so, the Attorney‑General may specify in a parole order that a person is to be released from prison on a day that is before the end of the non‑parole period, but is not earlier than 30 days before the end of the non‑parole period.

14    In making a decision under s 19AL, a non-exhaustive list of matters which may be considered is set out in s 19ALA:

19ALA Matters that may be considered in decisions about parole orders

(1)    In making a decision under section 19AL in relation to a person, the Attorney‑General may have regard to any of the following matters that are known to the Attorney‑General and relevant to the decision:

(a)    the risk to the community of releasing the person on parole;

(b)    the person’s conduct while serving his or her sentence;

(c)    whether the person has satisfactorily completed programs ordered by a court or recommended by the relevant State or Territory corrective services or parole agency;

(d)    the likely effect on the victim, or victim’s family, of releasing the person on parole;

(e)    the nature and circumstances of the offence to which the person’s sentence relates;

(f)    any comments made by the sentencing court;

(g)    the person’s criminal history;

(h)    any report or information in relation to the granting of parole that has been provided by the relevant State or Territory corrective services or parole agency;

(i)    the behaviour of the person when subject to any previous parole order or licence;

(j)    the likelihood that the person will comply with the conditions of the parole order;

(k)    whether releasing the person on parole is likely to assist the person to adjust to lawful community life;

(l)    whether the length of the parole period is sufficient to achieve the purposes of parole;

(m)    any special circumstances, including the likelihood that the person will be subject to removal or deportation upon release.

(2)    Subsection (1) does not limit the matters that the Attorney‑General may consider in making a decision under section 19AL.

15    The following propositions also emerge from the statutory framework governing the Attorney-General’s exercise of the power in s 19AL:

(1)    the power to release or not release a federal offender on parole concerns the administration of criminal justice;

(2)    that power is conferred on a Minister of State (the Attorney-General), rather than some statutory body (such as a state parole authority);

(3)    s 19ALA, while setting out a wide range of factors that the Attorney-General can take into account, significantly, does not limit the factors to which the Attorney-General can have regard;

(4)    the legislation contains no process for how consideration of release on parole is to be undertaken. It is a matter for the Attorney-General to determine a procedure that is reasonable and will avoid practical injustice or unfairness having regard to the circumstances of the case. What is required may vary having regard to what has already occurred and what is said or done during the process; and

(5)    when the Attorney-General refuses to release a federal offender on parole the Attorney-General must reconsider the decision within 12 months (there is no minimum period that must pass before the Attorney-General reconsiders a refusal).

And see Lodhi at [6]; Stephens at [17].

16    Those propositions inform the boundaries of the delegate’s power, within which there is an area of ‘decisional freedom’ that permits a decision-maker genuinely free discretion: Eden v Minister for Immigration and Border Protection [2016] FCAFC 28; (2016) 240 FCR 158 (Eden) at [62], citing Minister for Immigration and Citizenship v Li [2013] HCA 18; (2013) 249 CLR 332 (Li) at [29] and [66]. That is, within that area, reasonable minds might differ as to the correct decision or outcome, but any decision or outcome within that area is within the bounds of legal reasonableness: Eden at [62]; Li at [66]; Minister for Immigration and Border Protection v Stretton [2016] FCAFC 11; (2016) 237 FCR 1 (Stretton) at [7]. Such a decision falls within the range of possible lawful outcomes of the exercise of the power: Li at [105]; Stretton at [11].

17    As to the role of this Court, in Lodhi, Bromwich J observed at [43] that:

…the Attorney-General’s role was to make the parole decision, and the role of this Court is to ensure that that was carried out within the proper exercise of the power bestowed, but not to second-guess the ultimate decision. A judge’s personal view of the merits of the decision is irrelevant. Concepts such as fairness and reasonableness have a more confined meaning and operation than used in more general settings, such as making findings on the merits of a particular case, or asserting what those findings should be. It is not part of this Court’s function even to consider whether parole should, or should not, have been granted to Mr Lodhi.

18    As apparent from s 19AL(2), if the Attorney-General refuses to make a parole order, the Attorney-General must give the person a written notice that includes, relevantly, ‘a statement of reasons for the refusal’. The statutory framework dictates the nature and extent of this obligation: Lodhi at [85]. Relevantly, the obligation imposed on the delegate by s 25D of the Acts Interpretation Act 1901 (Cth) does not require him to make any particular findings of fact, but rather to do no more than to set out any findings of fact that he did in fact make that he considered material to the decision not to make a parole order: Lodhi at [87]; Stephens at [33]. That requirement gives effect to the words ‘for the refusal’ in s 19AL(2)(a)(ii): and see Stephens at [31]-[34].

Grounds of review

19    There are three grounds of review, which were generally addressed together.

20    Ground 1 alleges that in reaching the decision to refuse parole, the Delegate failed to give proper, genuine and realistic consideration to the submissions made by the applicant in his solicitor’s letter of 2 April 2024 (the Solicitor’s Letter), which contained comprehensive responses to each of the matters raised by the CPO in an “adverse comments letter” dated 12 March 2024. It is alleged the Delegate failed to carry out the statutory task imposed by Part IB, Division 5 of the Crimes Act which gives rise to jurisdictional error in failing to properly consider the arguments advanced by the applicant in respect of his release on parole being in the interests of community safety, the applicant’s ineligibility for custodial sex offender treatment, steps he had taken to secure community-based sex offender treatment, the extent to which the applicant’s isolated breaches of prison disciplinary rules bore upon his ability to be of good behaviour on parole, and the need to give effect to the sentencing court’s prescription that the applicant be subject to an extended period of supervision on parole.

21    Ground 2 alleges the Delegate failed to take account relevant factors about which material was provided by the applicant’s solicitor, being (a) the comments made by the sentencing court as to the need for rehabilitation and (b) parole and any report in relation to the granting of parole.

22    Ground 3 alleges that for the same reasons relied upon in respect of grounds 1 and 2, the making of the Refusal Decision was an improper exercise of the power conferred by Part IB, Division 5 of the Crimes Act in that the Delegate’s decision was illogical, irrational, and/or legally unreasonable.

23    The applicant submitted that the Refusal Notice included boilerplate statements that the Delegate had “taken into account submissions made by [the applicant] or on [the applicant’s] behalf” and that the Delegate had “had regard” to various matters, including those “that weigh in favour” of the applicant’s release. The applicant referred, inter alia, to the observations in Khawaja v Attorney-General (Cth) [2022] FCA 334; (2022) 293 FCR 396 (Khawaja) at [101] that “a generalised statement that ‘all submissions were taken into account’ will often not prove to be a reliable basis to infer that the decision-maker in fact took a particular submission into account in any meaningful way”. He submitted that there is no basis to infer that the Delegate had regard to the materials to which the Departmental Submission referred, including the Solicitor’s Letter and its attachments, as the Delegate signed a two-page Refusal Notice drafted for him by the CPO within two days of receipt and without making any changes to the document. In this context, the applicant submitted that the natural inference is that he did not consider the Solicitor’s Letter or the underlying materials in any detail. The applicant submitted that it was not sufficient to rely on the Departmental Submission, as it “selectively quoted and omitted critical information from the Solicitor’s Letter and at times misstated its content” to the applicant’s disadvantage: referring to Minister for Immigration, Citizenship and Multicultural Affairs v McQueen [2024] HCA 11; (2024) 98 ALJR 594 at [20].

24    The applicant alleged errors in the Delegate’s reasoning said to be evident in the Refusal Notice. In respect to paragraph 1, it was submitted that:

(1)    the Delegate’s reasoning that “the comments by the sentencing court” supported a conclusion that the applicant’s “release on parole poses an unacceptable risk to the community” was “irrational as it not only had no basis in the sentencing court’s remarks but was directly contrary to what that court found in relation to the necessity of parole”;

(2)    there was a failure to consider that five Corrective Services staff from all levels of the Corrective Services hierarchy had unanimously assessed that granting the applicant parole would best promote community safety, which was raised in the Solicitor’s Letter; and

(3)    there was a failure to properly consider the consequences of not granting parole for community safety.

25    In respect to paragraph 2, the errors as alleged are the failure to properly consider steps towards securing treatment in the community, his rehabilitation prospects and other matters.

26    In respect to paragraph 3, it is alleged that the Delegate failed to consider relevant matters in relation to the applicant’s behaviour in custody affecting the assessment of the likelihood of his ability to comply with conditions.

27    In respect to paragraph 4, that material referred to in the Solicitor’s Letter was not summarised in the Departmental Submission to the Delegate, and the Delegate’s finding in relation to community risks was irrational, illogical and legally unreasonable.

28    The applicant also submitted that the Refusal Decision (and the reasoning underpinning it) is irrational, illogical and legally unreasonable. Although many submissions were advanced, this is primarily based on the matters identified in grounds 1 and 2, recited above.

29    The respondent submitted, in essence, that the applicant’s submission relies on a failure to refer to material in the Refusal Notice as a basis for contending the Delegate did not consider (or properly consider) that material; takes statements out of context from the Refusal Notice, and the Departmental material before the Delegate; and that properly considered, the Delegate’s decision to refuse to release Mr Lazarus on parole, gave genuine and proper consideration to all relevant matters. The respondent contended that the Refusal Decision is not irrational, illogical and legally unreasonable.

Consideration

30    There are several observations to be made at the outset.

31    First, regard can be had to the Departmental Submission in determining the material before the Delegate, and assessing whether that material could support the inference that he had applied the wrong test or was not “in reality” satisfied of the requisite matters: Stephens at [6]; Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Palme [2003] HCA 56; (2003) 216 CLR 212 (Palme) at [16] and [20]; and see Alexander v Attorney-General (Cth) [2019] FCA 1829 at [18]; Roberts v Attorney General [2022] FCA 574; (2022) 176 ALD 509 (Roberts) at [25]. In having regard to the Departmental Submission, it should be read as a whole; parts should not be taken out of context: Palme at [28].

32    Second, the applicant did not cavil with those principles yet, at least at times, did not adopt that approach in advancing his case. Although the applicant took issue with that proposition, his submissions reflect that the applicant is relying on the Refusal Notice’s failure to refer to a matter, as evidence that the Delegate did not consider the matter or take it into account in his decision, a conclusion which does not follow. Moreover, by addressing each of the four paragraphs in the Refusal Notice individually, the applicant had a tendency at times to take a statement out of context. As Lee J observed in Salgado v Attorney-General (Cth) [2023] FCA 984 (Salgado) at [21]:

It was not incumbent upon the Delegate to refer to any particular circumstance in the Refusal Notice, nor was she required to refer to a shopping list of all or most factors raised on the material before her.

33    That approach adopted by the applicant also took the paragraphs in the Refusal Notice out of the context of the Departmental Submission. The applicant similarly sought to draw inferences from the failure of the Departmental Submission to refer to certain matters.

34    I also note the Court should be cautious in drawing inferences about what a decision-maker did or did not do, read or consider in exercising a statutory power, in the absence of any direct evidence about these matters: Roberts at [26], citing Stambe v Minister for Health [2019] FCA 43; (2019) 270 FCR 173 (Stambe) at [70]. That said, in this case, the purpose of the Departmental Submission was to provide the Delegate with information to make the decision: see Stambe at [74]-[75].

35    Given the applicant’s case relies heavily on drawing inferences from the material, it is appropriate to recall the observation of the Full Court in Carrascalao v Minister for Immigration and Border Protection [2017] FCAFC 107; (2017) 252 FCR 352 at [48]:

a finding by the Court that the Minister has not engaged in an active intellectual process will not lightly be made and must be supported by clear evidence, bearing in mind that the judicial review applicants carry the onus of proof.

This is important also, given the applicant’s oral submissions relied on the failure of the respondent to adduce evidence to rebut his submissions.

36    Third, although the applicant referred to various factors being mandatory considerations, it is to be recalled that s 19ALA does not impose a duty upon the Attorney-General to consider the factors before he exercises the power. Nor does the provision provide any hierarchy of importance to any of the factors, rather they are matters which the Attorney-General may, in his discretion, consider in assessing whether to grant parole: Stephens at [17]. The non-mandatory language in s 19ALA, must be read in the context of the statutory purposes. A decision-maker is at liberty to determine the factors of importance in this case and make the decision in view of those factors: Salgado at [21] and [27]. That is not to deny the observations in Khawaja at [92], that the responsible exercise of executive power in s 19AL(1) would generally involve consideration of, and an exercise of the power for, the purposes for which that power was conferred. Those purposes are set out in s 19AKA, referred to above at [12]: Salgado at [27].

37    Fourth, in DYS21 v Attorney-General (Cth) [2021] FCA 1331; (2021) 288 FCR 607 (DYS21), Bromwich J at [4] observed that:

the Attorney-General was entitled, upon being properly informed, to:

(a)    instead give greater and determinative weight to eliminating the low short term risk of the applicant reoffending during the balance of the term of his prison sentence; and

(b)    give no determinative weight to parole being used to manage and limit longer term risks to the community.

38    Those observations were made in a context where the:

material that was placed before the Attorney-General revealed that the New South Wales prison authorities … in substance considered that:

(a)    there was a low risk of the applicant reoffending during the balance of the term of his prison sentence, necessarily referring to that balance being served on parole in the community; and

(b)    the grant of parole was essential for the purpose of managing and limiting, and perhaps even practically eliminating, longer term risks to the community by reason of the applicant reoffending after the sentence had been completed when no parole or supervision controls would exist: DYS21 at [3].

39    As the respondent correctly observed, the matters reflect the decisional freedom reposed in the delegate by the statutory framework. I will return to DYS21 below at [70], to address the applicant’s submission that the error there found, also appears in his case. Suffice to say at this stage, I do not agree.

40    Finally, I note the well accepted proposition that the Court is not "astute to discern error" in the reasons of an administrative decision-maker: Plaintiff M1/2021 v Minister for Home Affairs [2022] HCA 17; (2022) 275 CLR 582 at [38]; Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259 at 271-272.

41    Against that background, I turn to the grounds of appeal. The applicant’s submission, which addressed the paragraphs of the Refusal Notice individually, as explained above at [32], is flawed. Nonetheless, I refer to each paragraph to address the submissions advanced.

42    It is evident from the Refusal Notice recited at [9] above, that the bases for refusing parole were, first, the nature and circumstances of the offences; second, that there were outstanding rehabilitative needs and the Delegate considered it was essential for the applicant to have confirmed and substantiated plans to engage in sex offender treatment with a suitably qualified professional; third, the applicant’s behaviour in custody gave rise to concerns about his ability to comply with the conditions of parole; and fourth, having regard to the short and long-term risks to the community of the applicant remaining in custody, on the evidence, “at [that] time”, release posed a risk to the community.

43    As referred to above, the applicant submitted that the dangers of generalised statements in the Refusal Notice that a decision-maker has “considered all relevant matters” are particularly acute in the present case. This was submitted to be because the Delegate signed the Refusal Notice on 13 April 2024, two days after the Departmental Submission, dated 11 April 2024. He submitted it was exceedingly unlikely that the Delegate had sufficient opportunity to “read, digest and understand” the nearly 200 pages of material before him in two days or less. Consequently, the applicant submitted that the absence of “sufficient time to engage in the active intellectual process required by law” casts doubt on the accuracy of a decision-maker’s generalised claim to have fully considered all relevant matters. In so far as this suggests an inference should be drawn that there was no appropriate consideration of the relevant matters based on the timeframe, I am not persuaded to do that. As the respondent submitted, it is in the best interests of a federal offender that such matters are to be addressed expeditiously. Contrary to the applicant’s submission, that is not to suggest that the parole decision is not conducted appropriately, but rather that priority would likely be given to it, given the consequences for a person’s liberty.

44    In a similar vein, the applicant relied on the fact that the Refusal Notice provided by the Department was signed without alteration and suggested that as there was no draft copy in evidence, it could be inferred that the Delegate did not amend the one provided to him. That was said by the applicant to reflect that the Delegate merely rubber stamped the refusal, without proper consideration. The respondent submitted there was an alteration to the Refusal Notice, which reflects active engagement with the matter, referring to Stephens at [36]. This is challenged by the applicant. There is a difference between the wording of paragraph 2 in the Refusal Notice, and the suggested terms of the refusal notice which appears at [152] of the Departmental Submission. It is unnecessary to resolve this dispute, as I am not persuaded, that even if the Refusal Notice was not altered, that its signing reflected a lack of proper consideration.

45    The Departmental Submission concluded with recommendations that the Delegate (1) refuse parole at this time; and (2) sign the attached notice informing him of the decision. The Delegate marked the Departmental Submission as approved and signed it. Regardless of whether it was altered, the Delegate also signed the Refusal Notice to be provided to the applicant informing him of the decision. There is nothing to suggest that the Delegate, in signing the Departmental Submission and Refusal Notice, did so without reading and considering its contents: see for example, Masri v Attorney-General (Cth) [2022] FCA 17; (2022) 398 ALR 509 at [7]; Roberts at [45].

46    As evident from the discussion below, in relation to the Refusal Notice and the Departmental Submission, the applicant submitted that aspects of them, without further information being included, were inaccurate, and involve illogical, irrational and unreasonable reasoning. It was submitted that in some respects, the Departmental Submission was apt to mislead. Those documents, when properly read, do not bear those characteristics.

47    Turning then to the submissions about the Refusal Notice.

48    As a starting point, the applicant is an untreated child sex offender. It was common ground that he is ineligible for custodial sexual offending treatment programs such as CUBIT, because of his “average” risk profile.

49    In respect to paragraph 1, the applicant reads the reference to sentencing remarks in isolation. He asserts the reference in the final sentence to the “comments by the sentencing court” is in a manner directly contrary to what the sentencing court found in relation to the necessity of parole. It was submitted that the Delegate’s reference to the sentencing court’s comments, without that further detail, is inaccurate. However, it is plain the paragraph (including the sentencing remarks quoted) is directed to the nature and circumstances of the Commonwealth offences to which the sentence relates. As evident from the reasons recited above at [9], so much is readily apparent from the first sentence of the paragraph.

50    The applicant’s attempt to characterise this paragraph as directed to unacceptable risk to community safety (as opposed to relating to the nature and circumstances of the offences) is an attempt to broaden its scope to accommodate his argument. For example, although the paragraph recorded a conclusion with reference to the risk to the community, the language immediately preceding it is “that the nature and circumstances of the offences were considered to pose an unacceptable risk to the community” (emphasis added), reinforcing the focus of the paragraph. I note that each paragraph in the Refusal Notice refers in some manner to unacceptable risk to community safety and the applicant’s submissions nonetheless described each of the other paragraphs in these instances by reference to its overarching focus or purpose.

51    I do not accept that the reference to “the comments by the sentencing court” in the Refusal Notice is inaccurate or reflects any misunderstanding on the part of the Delegate. The “comments” there referred to are those by the sentencing court describing the nature of the offences, as evident when reading the paragraph as a whole and particularly considering the immediately preceding sentence:

At sentencing, the court noted that all of [the applicant’s] offending was ‘very serious, involving as it did an extended period of predatory and persistent criminal behaviour over approximately five and a half years.

52    Nor do I accept the submission that:

the Refusal Notice misstates the sentencing court’s position by incorrectly attributing to it the view that the Applicant’s release on parole would create rather than reduce risk to community safety. (original emphasis.)

53    This submission misreads paragraph 1. Moreover, it considers that paragraph in isolation from the Departmental Submission which, as explained at [72] and [75] below, refers to the sentencing judge’s comments about supervision.

54    The observation of the sentencing court about parole, and the view of Corrective Services (which are addressed below), which are the matters the applicant submits were not considered in this paragraph because they were not referred to, are not directed to the nature of the offences. Issues of rehabilitation are addressed in paragraph 2 of the Refusal Notice. In any event, the failure to refer to those matters does not give rise to the inference that they were not considered by the Delegate in making the Refusal Decision.

55    In relation to paragraph 2, which addresses outstanding rehabilitative needs, I do not accept the applicant’s submission that the Delegate made an adverse finding about Mr Cook, a forensic psychologist he sought to engage for the purposes of being treated in the community. This was the first of the complaints the applicant addressed about this paragraph. By doing so, it takes the impugned statement out of context and fails to reflect the gravamen of the concern.

56    This submission is based on the following aspect in paragraph 2:

Noting the seriousness of your offending and the risk to the community if you were to reoffend, I consider it essential that you have confirmed and substantiated plans to engage in sex offender treatment with a suitably qualified professional. While you have plans to be assessed for sex offender treatment, there is no information available to confirm whether you will be referred to sex offender treatment in the community as a result of any such assessment.

57    It is evident from the Departmental Submission, that their concern was that the applicant have confirmed and substantiated plans to engage in sex offender treatment with a suitably qualified professional. The respondent’s submission refers to the Departmental Submission at [116]:

If granted parole, the CPO considers that Mr Lazarus may achieve further rehabilitative gains if he engages with suitably qualified professional supports for sex offender treatment. However, the CPO notes that it is unclear whether he will be able to access such treatment in the community.

58    Also relevant is the Departmental Submission at [142]:

As discussed under ‘Rehabilitation’, Mr Lazarus has outstanding rehabilitative needs in relation to sex offending, insight, and alcohol use, and ongoing rehabilitative needs in relation to mental health. While he has plans to engage with professional supports, he does not have confirmed plans to participate in sex offender treatment in the community. As such, the CPO considers that Mr Lazarus may not be able to manage his outstanding rehabilitative needs in the community (particularly in relation to sex offending), which poses a significant risk to community safety.

59    It is apparent that the focus in the above paragraphs is on the applicant having confirmed and substantiated plans to undertake treatment. The Departmental Submission at [115], also referred to Legal Aid’s confirmation that Mr Cook was available to treat the applicant in the community, but that he was unable to confirm an appointment until the applicant was released on parole. The Departmental Submission observed that Mr Cook is a forensic psychologist but noted that it was “unclear” whether he is suitably qualified to provide sex offender treatment and whether this support would be adequate to address Mr Lazarus’ significant rehabilitative needs.

60    Given the material before the Department, that observation is open. The applicant could have provided to the Department material to establish Mr Cook’s qualifications in relation to child sex offending but did not do so. It may be accepted that he is a forensic psychologist, however, that was the extent of the qualifications provided. Moreover, the applicant’s submission focusses on the issue of qualifications in isolation from the remainder of the sentence. It also proceeds on the basis that there was nothing to doubt that a forensic psychologist could administer the sexual offender treatment. However, the onus was on the applicant to establish this matter. That said, it is plain from the Departmental Submission that whatever the status of Mr Cook, the concern was that there were no confirmed or substantiated plans.

61    It should also be recalled that as there was no referral in place for the applicant to undertake sex offender treatment, it is unclear what that treatment would or might entail. His eligibility for treatment had not been assessed or confirmed. This supports the observation in the Departmental Submission as to whether what Mr Cook could provide is sufficient. Again, this reflects that the focus of the Departmental Submission was on the importance of a confirmed and substantiated plan.

62    Nor do I accept that it has been established that there is error in the Delegate’s conclusion that he needed to be satisfied that the applicant had “confirmed and substantiated plans” to undertake sex offender treatment. Although the passage in paragraph 2 is referred to above in full at [9], it is convenient to repeat the immediate context of the impugned finding:

Noting the seriousness of your offending and the risk to the community if you were to reoffend, I consider it essential that you have confirmed and substantiated plans to engage in sex offender treatment with a suitably qualified professional. While you have plans to be assessed for sex offender treatment, there is no information available to confirm whether you will be referred to sex offender treatment in the community as a result of any such assessment.

63    This commences by referring to the consideration addressed in paragraph 1. The sentence immediately following is also accurate, as the applicant eventually conceded. The conclusion requiring “confirmed and substantiated plans” was not, contrary to the applicant’s submission, irrational or illogical. The applicant may have had the intention to undertake treatment, and an inquiry had been made of Mr Cook as to his availability (which indicated he could not have an appointment for a month, although there may be a cancellation before that time). However, no further detail was provided as to whether the applicant would be referred to Mr Cook; if he was, when that would occur; if the applicant did attend an appointment, when a program (if undertaken) would commence thereafter; and what it may entail. As the respondent correctly submitted, more could have been done to demonstrate that the applicant had confirmed and substantiated plans on release. I note by way of contrast, given the applicant’s reliance on DYS21, the information provided by that applicant to the Department was more detailed than in this case. Given the applicant is an untreated sex offender, it was open to the Delegate to consider the short and long-term risks, in the absence of confirmed and substantiated plans.

64    The applicant repeatedly submitted that he had done all he could in relation to planning to undertake treatment on his release and therefore the conclusion was illogical, irrational or unreasonable. However, the material pointed to by the applicant in support of the submission is scant and does not go as far. It does not provide a factual foundation for submission. The submission also included that the reasoning in the Departmental Submission (and, to that extent, the Delegate’s) that the applicant should not be released on parole until he could do something that he could “only” do after being paroled (namely, obtaining a referral for sex offender treatment in the community), was irrational. Again, the material before the Delegate does not rise to that level. It does not establish the underlying proposition. It is not difficult to envisage the types of matters on which more information could have been obtained, which would confirm and substantiate that the applicant was going to undertake sex offending treatment on release.

65    In any event, even if all had been done, it does not, in the circumstances where the applicant is an untreated child sex offender, render the refusal of parole illogical, irrational or unreasonable: see for example, DYS21 at [4] recited above at [37].

66    The applicant ultimately accepted that, even on his own case, the Delegate had no information before him that suggested further information could not be obtained. It is difficult in those circumstances to understand how a decision could be irrational and illogical, if the basis (it being that no more could be done) was not known to the decision-maker. The premise of the submission is also that what has been done by the applicant must be accepted as enough. As evident, I do not accept the underlying premise.

67    In relation to paragraph 3, the applicant’s submission is that the Pre-Release Report and the Solicitor’s Letter placed the misconduct charges in their proper context and refer to the applicant’s explanations. The applicant also submitted that the Delegate ignored the unanimous assessment by Corrective Services that the applicant’s conduct in custody had been mostly compliant. It was submitted that there is no evidence these matters were considered by the CPO or by the Delegate in a more than cursory way (if at all). Those matters were summarised in the Departmental Submission. The Departmental Submission concluded that “[d]espite [the applicant’s submissions], the CPO considers that his poor behaviour in custody is significant enough to raise concerns about his ability to comply with parole conditions”: at [144]. There is no basis to suggest these matters were not considered. I note also, as the respondent submitted, the Refusal Notice refers to the dates of the institutional misconduct, such that the age of the incidents is evident. A failure to refer in the Refusal Notice to the explanations provided by the applicant, does not render it inaccurate. Nor does it give rise to the inference that they were not considered.

68    In relation to paragraph 4 the complaint is that there was no active consideration of the long-term risks to the community of denying parole. The applicant has not established that proposition. The Departmental Submission recognised the long-term risks where an offender has been released with parole. For example, at [148]:

The CPO considers that there are longer-term risks to the community when an offender is released without experiencing time in the community subject to parole supervision and conditions. Parole supervision and conditions can support an offender to participate in relevant rehabilitation with professional supports in the community, and to reintegrate into the community with support and monitoring from these professionals. The benefits of parole for Mr Lazarus would be to allow him to reintegrate into the community and address his outstanding rehabilitative needs. However, as discussed above, Mr Lazarus does not have confirmed plans to engage with sex offender treatment in the community. As such, the benefits of releasing him on parole at this time are likely to be reduced.

69    The Departmental Submission went on to refer to the fact that this was the applicant’s first parole consideration, and that he was not due for release until January 2027, and therefore if denied parole it would be reconsidered. If parole was refused, it was said that the applicant could consider the reasons and develop post-release plans, particularly in relation to sex offender treatment. There is no reason to suggest these matters were not considered.

70    The applicant’s reliance on DYS21 as being relevantly analogous in this context, is misplaced. The factual circumstances were different. In so far as it was submitted that the terms of the departmental submission recited in DYS21 in relation to risks is the same as in this case, the submission cannot be accepted. Further, in DYS21, significantly, the refusal of parole in practical terms meant that DYS21 would be released into the community with little supervision as there would only be 4 months left of his sentence at the time of the next parole reconsideration. The consideration by the Court of the content of the departmental submission, and the application for review in that case, was in that context. There, the Court concluded that the Attorney-General needed to be properly informed of that, or at least not actively misinformed: DYS21 at [30]. The Delegate in this case was aware of the length of the remaining sentence, and as evident from the paragraphs above, was cognisant of the benefit of parole to the risk to the community. Contrary to the applicant’s contention, the Delegate was not actively misled. There was no misinformation.

71    Ground 2 alleges the Delegate failed to consider relevant matters, being the comments of the sentencing judge in relation to rehabilitation and parole, and the recommendation by Corrective Services. This ground is again based primarily on inferences to be drawn from the Refusal Notice. I have generally addressed this issue above. In relation to these topics, I am not satisfied that these matters were not considered by the Delegate.

72    The sentencing judge’s comments emphasised by the applicant are:

In my view, supervision of the offender on parole over an extended period to ensure ongoing psychological intervention, and to assist his reintegration into the community will promote his prospects of rehabilitation and mitigate the risk of reoffending. This will be in the best interests of both him and the community.

73    That passage appeared at the conclusion of the remarks, addressing the minimum period to be served. It explained the length of the minimum period imposed.

74    That said, the sentencing judge’s remarks were summarised in the Departmental Submission, with the remarks attached as Attachment A. The Departmental Submission records that the sentencing court was satisfied that the applicant demonstrated “some insight into his offending”, that his “remorse and contrition [were] genuine”, assessed his “prospects of rehabilitation as laying somewhere between reasonable and good” and considered that “his rehabilitation will be dependent upon his ongoing willingness to engage in treatment when he is released”.

75    In summarising the applicant’s submission, the Departmental Submission recorded that:

[b]oth the sentencing and appeal courts ‘clearly directed that Mr Lazarus’ rehabilitation would need to take place under supervision in the community and that supervised rehabilitation ought to be for an extended period’.

Other issues relating to the applicant’s remorse, risk, sex offender treatment and rehabilitation were also recorded in the submission.

76    I am not satisfied that there is any proper basis to suggest the view of the sentencing court was not given active consideration. The submission that the Delegate ignored the sentencing court’s conclusion, or did not understand its significance, cannot be accepted.

77    As explained above at [68]-[69], it is patently clear that the Departmental Submission accepted and addressed the benefits for the long-term risk to the community if the applicant has rehabilitation in the community. It recognises the importance of parole for the applicant. The Delegate however considered that there needed to be substantiated and confirmed plans in place in relation to sex offender treatment. Given that the applicant is an untreated sex offender, that is not illogical, irrational or unreasonable.

78    In any event, there is an artificiality to the applicant’s submission. I note that the sentencing judge did not suggest (nor could he) that the applicant should be released as soon as his minimum term expires, or that he be released regardless of the circumstances then existing. Rather, the low minimum term was set to enable rehabilitation, and facilitate his return to the community. The sentencing court would have been aware that the grant of parole depends on the circumstances then prevailing. The refusal of parole on this application results in a further consideration by early 2025, which if granted, the applicant would be on parole thereafter for an extended period of supervision (as his sentence does not expire until January 2027). If refused in early 2025, he will again be considered for release by early 2026.

79    The applicant submitted that the Delegate’s conclusion that his continued detention would best promote community safety, was illogical and irrational for the further reason that he would continue to be ineligible for the sex offender program in custody. From that it was submitted that the “only logical conclusion was that the Applicant’s continued detention would exacerbate risks to community safety because it would result in his eventual release into the community without the Applicant having received any psychological intervention to address his sexual offending”. This submission reflects the artificiality of the applicant’s approach to this application. It has no factual basis. The Refusal Notice refers to refusal of parole “at this time”. The submission entirely ignores that the refusal at this stage will, as discussed above, lead to further consideration within 12 months, which as the Departmental Submission recognised, will be decided on the circumstances then existing.

80    As to the Corrective Services assessment, the report is Attachment F to the Departmental Submission, and it is summarised at [29]-[67] of that Submission. At [145] the Departmental Submission records:

In the Pre-Release Report, [Corrective Services] supported Mr Lazarus’ release on parole at this time because he has exhibited appropriate custodial behaviour, has expressed a willingness to engage with Community Corrections to address his offending behaviour, and is ineligible for custodial sex offender treatment. The CPO considers that weight should be placed on this recommendation as [Corrective Services] have engaged directly with Mr Lazarus during his parole interview, has expertise in assessing parole suitability, and will be responsible for managing him in the community if he is released on parole.

81    Again, the failure to refer to the Corrective Services assessment in the Refusal Notice is relied on. No inference can be drawn in this case from that absence, that the assessment was not actively considered. The applicant submitted that the “Delegate’s disregard of Corrective Services’ collective opinion that the Applicant was suitable for parole was inexplicable”. This submission presupposes that the Delegate disregarded the assessment, as opposed to considering the material, but for the reasons explained in the Refusal Notice in the context of the Departmental Submission, that in the absence of confirmed and substantiated plans to engage in sex offender treatment, parole at this stage would pose an unacceptable risk to the community. The Delegate, in exercising his decisional freedom, was entitled to place more weight on community protection.

82    In so far as the applicant submitted that to the extent the Delegate did consider matters (such as the sentencing court’s remarks and the Corrective Services assessment) but misunderstood their import, I do not accept the submission. The examples provided by the applicant in his written submission (which relate to paragraphs 1 and 2 of the Refusal Notice), which for reasons already given, have not been established.

83    I am not persuaded that the Delegate failed to give proper, genuine and realistic consideration to the submissions made by the applicant in his Solicitor’s Letter (ground 1) or failed to take account of relevant factors, about which, relevant material was provided by the applicant’s solicitor (ground 2).

84    I have addressed ground 3 in considering the applicant’s submissions in respect to grounds 1 and 2. The applicant’s submission in practical terms, is premised on the proposition that given the sentencing court’s remarks, the Corrective Services assessment and what he has done in planning for parole, the Delegate was bound to grant parole. To do otherwise was said to be irrational, illogical or unreasonable. In the circumstances of this case, I do not accept that submission.

85    The applicant has not established that the Delegate’s decision to refuse parole at this stage, is irrational, illogical or unreasonable.

86    On the material before the Delegate, given the applicant was an untreated child sex offender, there is nothing irrational, illogical or unreasonable to refuse parole in the absence of confirmed and substantiated plans to engage in sex offender treatment with a suitably qualified professional. As the respondent correctly submitted, this lack of such assurance was, no doubt, important in considering the protection of the community: s 19AKA(a). Even more so, the decision to refuse parole rests in the context of the seriousness of the applicant’s offences, the circumstances in which they were committed, and the concerns held as to his compliance with the terms of parole.

87    For the same reasons given above at [79], contrary to the applicant’s contention, the respondent’s submission that the decision was not illogical or irrational as the applicant is an untreated child sex offender does not involve circular reasoning. The assessment of parole must be against the background that the applicant is an untreated child sex offender, a matter not in dispute. It is also to be recalled, as explained above, that the refusal of parole leads to a reconsideration within 12 months of the decision, and that his sentence does not expire until January 2027.

Conclusion

88    As the applicant has failed to establish any of his grounds, the application is refused.

Associate:

Dated:    6 September 2024