Federal Court of Australia

Coen v Attorney-General (Cth) [2026] FCA 1440

ORDERS

THE COURT ORDERS THAT:

1.    Pursuant to s 16(1)(a) of the Administrative Decisions (Judicial Review) Act 1977 (Cth), the decision dated 24 February 2026 refusing to grant parole to the applicant be set aside.

2.    The respondent pay the applicant’s costs of the proceeding as agreed or assessed.

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

REASONS FOR JUDGMENT

KENNETT J:

Background

1    This is an application for judicial review of a decision by a delegate of the respondent (the Attorney-General) under s 19AL(1) of the Crimes Act 1914 (Cth) (the Crimes Act) to refuse to grant the applicant (Mr Coen) parole.

2    Mr Coen pleaded guilty to charges of using a carriage service to groom a person with the intention to procure a person under 16 to engage in sexual activity (contrary to s 474.27AA(1) of the Criminal Code Act 1995 (Cth) (the Criminal Code)) and possessing or controlling child abuse material obtained using a carriage service (contrary to s 474.22A(1) of the Criminal Code). On 23 April 2025, Mr Coen was sentenced by a judge of the District Court of New South Wales (the sentencing judge) to a term of three years and four months of imprisonment, with a non-parole period of one year and eight months.

3    Commencement of the sentence was backdated to 26 June 2024 to recognise a prior period in custody. The non-parole period therefore expired on 25 February 2026 and the balance of the sentence expires on 25 October 2027. One of the consequences of backdating the sentence, noted in the sentencing judge’s remarks on sentencing (the sentencing remarks), was that Mr Coen would not be incarcerated for a long enough period to qualify for rehabilitation programs in prison aimed at child sex offenders.

4    On 8 January 2026 an officer of the Commonwealth Parole Office (CPO) sent Mr Coen a letter advising him that the Attorney-General or a delegate would make a decision whether to grant or refuse his release on parole and referring to information that might be regarded as weighing against his release (the adverse comments letter). Mr Coen provided a written response to that letter on 2 February 2026 (the response). A detailed submission was provided to the delegate on 18 February 2026 by officers of the CPO (the CPO submission). The delegate signed a notice refusing to grant Mr Coen parole (the refusal notice) on 24 February 2026.

The statutory scheme

5    Division 5 of Part IB of the Crimes Act deals with conditional release on parole or licence. Section 19AKA sets out the purposes of parole as follows.

19AKA Purposes of parole

The purposes of parole are the following:

(a)    the protection of the community;

(b)    the rehabilitation of the offender;

(c)    the reintegration of the offender into the community.

6    Section 19AL(1) provides that, before the end of a non-parole period fixed for a federal sentence imposed on a person, the Attorney-General must make or refuse to make an order directing the person to be released on parole (a parole order). If such a decision is not made before the end of the relevant non-parole period, it must be made as soon as practicable thereafter (s 19AL(1A)). Section 19AL(2) imposes the following requirements when a parole order is refused.

(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.

7    Section 19ALA lists considerations which may be taken into account in deciding whether to grant a parole order. It provides as follows.

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.

The present case

8    The CPO submission included a suggested statement of reasons for a decision to refuse parole. The delegate, however, added a comment to the end of the submission which said:

I have amended the parole refusal notice, including to remove the details of the court’s sentencing remarks as these were not included in the adverse comments letter sent to Mr Coen.

9    The text proposed in the submission, with the passages deleted by the delegate struck through, is as follows.

1.    I have had regard to the nature and circumstances of the Commonwealth offences to which your sentence relates, including using a carriage service to groom another person with the intention to make it easier to procure a person under 16 to engage in sexual activity and possessing or controlling child abuse material obtained or accessed using a carriage service. I note that your offending involved travelling to a location to meet with a fictitious mother and daughter.

I note that the sentencing court found that the sexual activity envisaged in the conversation was broad and graphic, the offending was a course of conduct rather than a one off incident and that your use of a carriage service to groom someone under 16 was a particularly serious form of the offence. I note that the sentencing court found that in your case, less weight should be placed on rehabilitation than general deterrence.

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

2.    I have had regard to your outstanding rehabilitative needs for sex offending.

You are an untreated sex offender who is diagnosed with non-exclusive paedophilic disorder. Although it appears you have engaged in some form of counselling for your sex offending, you have not provided details of that counselling to support your parole consideration. I consider you have insufficient plans for professional supports to manage your needs in the community. You have not provided confirmed and substantiated plans for ongoing sex offender treatment in the community to mitigate your risks. You have not provided details of the program or practitioner you plan to engage with for treatment, your treatment plan or evidence of your confirmed enrolment.

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 you may pose an unacceptable risk to the safety of the community.

3.    I have had regard to your inadequate post-release plans.

Your plans for social supports, leisure and associates are limited and your plans for professional supports do not contain information about the frequency, duration and commencement of your engagement with those supports.

Taking this information into account, I consider that your release on parole at this time would not be in the best interest of your reintegration and 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 suitable accommodation and your apparent willingness to engage in post-release intervention for your rehabilitative needs.

10    This text, with the struck through passages removed, was included as the delegate’s reasons in the refusal notice.

11    Aspects of the material before the delegate that are relevant to the issues raised by Mr Coen’s grounds of review will be mentioned below.

The grounds of review

12    The applicant relies on the Administrative Decisions (Judicial Review) Act 1977 (Cth) (the ADJR Act) or alternatively s 39B of the Judiciary Act 1903 (Cth) (the Judiciary Act). His amended originating application set out four grounds of review. However, six grounds were advanced in his written submissions. The parties joined issue on the grounds set out in the written submissions and counsel for the Attorney-General did not make any complaint about the additional grounds.

13    The grounds ultimately pressed were therefore as follows.

(1)    Mr Coen was denied procedural fairness, in that the aspects of the sentencing remarks which were considered to weigh against a grant of parole were not put to him.

(2)    The decision lacks an evident and intelligible justification. The reasons given in the refusal notice do not engage with the matters that Mr Coen put in the response, the rationale of the sentencing judge for the fixing of the non-parole period, the recommendations of Correctional Services New South Wales (CSNSW) or the potential longer term risk to the community arising from Mr Coen remaining in custody – and without targeted treatment – for a longer period.

(3)    The statement of reasons contained in the refusal notice did not comply with s 19AL(2)(a)(ii) of the Crimes Act, read with s 25D of the Acts Interpretation Act 1901 (Cth) (the Acts Interpretation Act).

(4)    The delegate failed to take into account relevant considerations, in that she did not give proper, genuine and realistic consideration to substantial and clearly articulated submissions, the rationale of the sentencing judge or the recommendation of CSNSW.

(5)    The delegate erred in characterising Mr Coen as an “untreated sex offender”.

(6)    The CPO submission misinformed the delegate as to the purpose of parole set out in s 19AKA(a) of the Crimes Act.

Ground 1: procedural fairness

14    Mr Coen’s submissions on this ground begin from the proposition that procedural fairness required him to be made aware of adverse information that was credible, relevant and significant, and to be afforded a real opportunity to respond to that information. He complains that point 1 of the reasons set out in the refusal notice included an observation that release on parole presented an unacceptable risk “Taking into account the nature and circumstances of your offending, and the comments by the sentencing court”; yet the sentencing remarks had not been included or particularised in the adverse comments letter.

15    The first of the “adverse matters” referred to in the adverse comments letter as potentially weighing against release on parole was the “Nature and circumstances of your offending and comments by the court”. Under this heading, the letter said:

The decision-maker will have regard to the comments made by the courts, however as there appears to be a non-publication order attached to these proceedings, the comments will not be reproduced here.

The decision-maker may consider that, taking into account the nature and circumstances of your offending and the comments of the sentencing court and appeal courts, your release on parole presents an unacceptable risk to community safety.

16    The CPO submission summarised Mr Coen’s offending and the comments by the sentencing judge at some length as part of its exposition of the background. The discussion of the issues that followed (beginning at [76]) referred to the sentencing remarks only sparingly. At [77] the submission said:

77. The sentencing court noted that Mr Coen was diagnosed with a non-exclusive paedophilic disorder and that although he was assessed as being a below average or low risk of recidivism, the diagnosis of paedophilic disorder means that the confidence in that assessment of risk must be somewhat guarded. The court further noted that Mr Coen requires a stiff reminder that his sexual interests in children is so frowned upon by the community, so contrary to its norms and expectations that he must keep it under total check or face serious punishment. When discussing the duration of Mr Coen’s sentence, the court noted that in his case, rehabilitation should be given less weight than deterrence. The sentencing court had regard to the fact Mr Coen had psychological counselling with Mr Montoya which focused in part on recidivism prevention.

17    This paragraph contained two points that potentially weighed against a grant of parole. One was that the sentencing judge had observed that the assessment of Mr Coen’s risk of recidivism “must be somewhat guarded”. The other was his Honour’s apparent acceptance that in the circumstances of the case “rehabilitation should be given less weight than deterrence”. The second of these observations has some potential significance here, because it potentially supported a decision to refuse parole even though a grant of parole would be likely to advance the objective of rehabilitation.

18    As noted earlier, the delegate omitted from the refusal notice some of the text in point 1 of the proposed statement of reasons in the CPO submission, observing that the detail of the sentencing remarks had not been put to Mr Coen. Part of what she deleted repeated the point that the sentencing judge had regarded deterrence as calling for more weight than rehabilitation. By making this change and explaining it in the way that she did, the delegate showed an appreciation that questions about compliance with the principles of procedural fairness could arise if she relied on aspects of the sentencing remarks that had not been drawn to Mr Coen’s attention. That appreciation was well-founded.

19    The sentencing remarks had been made in Mr Coen’s presence. Although there is a suggestion that non-publication orders were made, any such orders would have been highly unlikely to prevent the transcript of the remarks being provided to Mr Coen and his solicitors. I have proceeded on the basis that Mr Coen either knew or was in a position to know all of the contents of the sentencing remarks. However, the sentencing remarks occupied around 14 pages of transcript and were not by any means wholly adverse to a grant of parole; indeed, his Honour’s reason for fixing the non-parole period at one year and eight months appears to have been a recognition that the assistance Mr Coen would receive under supervision on parole was important.

20    If the sentencing remarks were to be relied upon adversely to Mr Coen in these circumstances, procedural fairness required him to have been given some notice of which aspects of those remarks might be regarded as adverse. That principle, which is reflected in Khazaal v Attorney-General (Cth) [2020] FCA 448 at [66]-[68] (Wigney J) and Khawaja v Attorney-General (Cth) [2022] FCA 334; 293 FCR 396 at [19]-[21] (Thawley J), can be traced back at least to Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd (1994) 49 FCR 576 (Alphaone), where the Court (Northrop, Miles and French JJ) said at 591-592:

Where the exercise of a statutory power attracts the requirement for procedural fairness, a person likely to be affected by the decision is entitled to put information and submissions to the decision-maker in support of an outcome that supports his or her interests. That entitlement extends to the right to rebut or qualify by further information, and comment by way of submission, upon adverse material from other sources which is put before the decision-maker. It also extends to require the decision-maker to identify to the person affected any issue critical to the decision which is not apparent from its nature or the terms of the statute under which it is made. The decision-maker is required to advise of any adverse conclusion which has been arrived at which would not obviously be open on the known material.

21    Whether a decision is vitiated by a denial of procedural fairness is to be considered from the standpoint of the actual decision. If potentially adverse material plays no role in the decision-making process, the failure to bring it to the attention of an affected person does not deny that person the possibility of a successful outcome and is not material (cf eg Minister for Immigration and Border Protection v WZARH [2015] HCA 40; 256 CLR 326 at [56] (Gageler and Gordon JJ); Minister for Immigration and Border Protection v SZMTA [2019] HCA 3; 264 CLR 421 at [38], [61]-[63], [72] (Bell, Gageler and Keane JJ)). The question that arises here, therefore, is whether there was a material denial of procedural fairness in circumstances where aspects of the sentencing remarks were brought to the delegate’s attention but she expressly deleted the reference to these aspects from her reasons.

22    One possible reading of the note that the delegate added to the CPO submission is that she had regard to the circumstances of the offending and the detail of the sentencing remarks (as the CPO submission invited her to do), but thought it preferable not to mention these matters in her reasons. However, if the note were read in that way, it would follow that the delegate’s reasons were consciously misleading (and the attempt to conceal that dishonesty was rather inept). I would not draw that inference without a convincing reason to do so. I therefore take the delegate’s note to mean that she did not consider it proper to place any reliance adverse to Mr Coen on the points mentioned in the text that she struck out and that she therefore put these matters to one side.

23    The problem, however, is that the text as amended and adopted by the delegate in the refusal notice still included reference to “nature and circumstances of [Mr Coen’s] offending, and the comments by the sentencing court,” (emphasis added) as the basis for an apprehension that releasing Mr Coen on parole involved an “unacceptable risk to community safety”. Mr Coen’s attention had not been directed to any aspect of the sentencing remarks that was thought to support that view.

24    The Attorney-General submits that the remaining reference in the refusal notice to the “comments by the sentencing court” should be seen as an infelicity of expression or editorial oversight. As to infelicity of expression, I do not consider that this can be categorised as “looseness in the language” or “unhappy phrasing” in the delegate’s reasons in the sense discussed in Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272 (Brennan CJ, Toohey, McHugh and Gummow JJ): this was a case of a specific piece of evidence, to which the decision-maker might or might not have chosen to refer, being referred to. As to editorial oversight, while it is possible that the delegate intended to remove all references to the sentencing remarks and overlooked this one, I am reluctant to apply a form of slip rule to the delegate’s reasons unless the inference that the suggested slip actually occurred is irresistible. It was within the power of the Attorney-General to adduce evidence on this point.

25    The Attorney-General also points out that the sentencing remarks proceeded on the basis of agreed facts concerning Mr Coen’s offending and his acceptance of responsibility for it; so that any conclusion about the circumstances and nature of his offending that was drawn from the sentencing remarks would be an “obvious and natural evaluation of that material” (Alphaone at 591). However, the sentencing remarks covered other topics such as Mr Coen’s insight into his offending, his diagnosis of a paedophilic disorder, the counselling that he had undertaken while on bail and the implications of him not having access to specific treatment in prison. Where a person has not been given notice of a potentially relevant issue and has therefore not been heard on it, it is “no easy task” for the Court to be satisfied that the loss of that opportunity did not deprive the person of the possibility of a successful outcome (LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] HCA 12; 280 CLR 321 at [15] (Gageler CJ, Gordon, Edelman, Steward, Gleeson and Jagot JJ)). To the extent that the sentencing remarks or their contents were given weight in addition to the circumstances and nature of the offending (as the refusal notice suggests they were), there were things that Mr Coen might have said if given proper notice of such reliance.

26    For these reasons, the refusal notice must be set aside.

The other grounds of review

27    My conclusion on ground 1 makes it strictly unnecessary to consider the other grounds advanced by Mr Coen. I would reject those grounds for the reasons set out below. It is convenient to address the specific complaints in grounds 3 to 6 before turning to the assertion of unreasonableness in ground 2.

Ground 3: reasons

28    Section 25D of the Acts Interpretation Act provides as follows.

25D Content of statements of reasons for decisions

Where an Act requires a tribunal, body or person making a decision to give written reasons for the decision, whether the expression “reasons”, “grounds” or any other expression is used, the instrument giving the reasons shall also set out the findings on material questions of fact and refer to the evidence or other material on which those findings were based.

29    The “findings” referred to in s 25D are the findings that the decision-maker actually makes. While the absence of any finding on an issue may give rise to an inference that the decision-maker did not consider the issue to be “material” (which may in turn suggest that some error occurred: Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30; 206 CLR 323 at [5] (Gleeson CJ), [35], [37] (Gaudron J), [69] (McHugh, Gummow and Hayne JJ)), provisions of this kind do not in themselves impose any duty to make findings on particular questions: Lodhi v Attorney-General (Cth) [2020] FCA 1383 at [86]-[87] (Bromwich J). Further, the evidence required to be referred to is the evidence on which the findings made by the decision-maker are based. The decision-maker is not required to set out a detailed rebuttal of evidence that is not accepted (although if the rejection of evidence is central to the reasoning that should be explained): Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham [2000] HCA 1; 74 ALJR 405 at [65] (McHugh J).

30    It has also been observed in connection with s 19AL(2)(a)(ii) of the Crimes Act that what must be delivered is reasons “for the refusal”; so that there is not an obligation to refer to every factor that was considered (Salgado v Attorney-General (Cth) [2023] FCA 984 at [11], [21] (Lee J); Lazarus v Attorney-General (Cth) [2024] FCA 1021 at [32] (Abraham J)).

31    A further important point which must be kept in mind is that, although a failure to comply with an obligation to give reasons is an error of law which may form the basis for an order under s 16 of the ADJR Act, the provision of reasons is a distinct step from the making of a decision; and it is not self-evident that a deficiency in the reasons justifies an order setting aside the decision (Transcon Holding Pty Ltd v Aged Care Quality and Safety Commissioner [2023] FCAFC 60; 297 FCR 39 at [100]-[101] (Perry, Meagher and Kennett JJ)). If the only deficiency that is established is a failure to explain the decision in accordance with s 25D, the appropriate remedy is likely to be an order requiring the provision of compliant reasons. Mr Coen did not seek an order of that kind.

32    For these reasons, the complaint that the refusal notice did not comply with s 25D does not assist Mr Coen. The more significant issue is whether omissions from the reasons justify an inference that the delegate failed to consider some matter to which she was required to have regard.

Ground 4: failure to consider relevant matters

33    Mr Coen submits that the delegate failed to take into account:

(a)    matters of substance raised in the response;

(b)    the rationale of the sentencing court, namely the importance of supervised treatment in the community; and

(c)    the recommendation of CSNSW.

Matters raised in the response

34    In contrast to a provision such as s 501CA(4) of the Migration Act 1958 (Cth), where the duty to make a decision is triggered by a party making representations (and the relevant evaluation must implicitly be made by reference to the issues raised in those representations – see eg Viane v Minister for Immigration and Border Protection [2018] FCAFC 116; 263 FCR 531 at [66] (Colvin J)), s 19AL(1) of the Crimes Act requires a decision about parole in every case regardless of whether the prisoner makes any submission. The application of principles of procedural fairness is implicit in Division 5 of Part IB and there is no express reference to submissions or representations. For these reasons, to the extent that there is a duty in the parole context to consider submissions advanced by a party (as discussed in, eg, Pulini v Assistant Minister to the Attorney-General (Cth) [2021] FCA 1543 at [31]-[38] (Rangiah J)), that duty is to be understood as an aspect of the principles of procedural fairness rather than as a statutory obligation to give those submissions weight in the exercise of the discretion. The arguments raised by a party may be (or may be considered by the decision-maker to be) misconceived or irrelevant; and the decision-maker, having heard and understood those arguments, would not err by putting them to one side.

35    An evidentiary issue also arises here. Because the delegate was required only to give reasons for the decision that she made, and therefore was not under a duty to give a detailed rebuttal of evidence or arguments that were not accepted, absence of engagement in the reasons with an argument advanced by Mr Coen does not necessarily mean that the delegate ignored or was unaware of that argument. Whether that inference arises depends on an analysis of the reasons in the context of the other evidence in the case: see eg Warren v Chief Executive Officer, Services Australia [2024] FCAFC 73; 305 FCR 268 at [2] (Katzmann and Kennett JJ)). A significant issue in that analysis is whether the reasons appear to have been intended to give a comprehensive account of all the evidence before the delegate and all the arguments considered. Another significant issue is what materials and briefings were before the delegate and what the delegate appears to have read.

(a)    As to the first of these points, the reasons contained in the refusal notice are brief and state conclusions at a fairly high level of generality. They do not purport to give a detailed or comprehensive account of the arguments the delegate rejected or the potentially relevant factors that she discounted.

(b)    As to the second point, the delegate had before her the CPO submission, which was relatively detailed, together with the adverse comments letter, the response, the sentencing remarks and the pre-release report prepared by CSNSW. This was a manageable volume of material and the proper inference is that the delegate read it within the six days that it took to make her decision. The conclusion that the delegate engaged with the contents of the documents is reinforced by the fact that she identified points in the proposed reasons in the CPO submission that had not been put to Mr Coen in the adverse comments letter and amended her reasons accordingly.

The rationale of the sentencing court and the position of CSNSW

36    The Attorney-General is expressly authorised by s 19ALA(1)(f) of the Crimes Act to take into account any comments made by the sentencing court. Similarly, s 19ALA(1)(h) permits regard to be had to reports or information provided in relation to the grant of parole by a State or Territory corrective service or parole agency.

37    However, it is clear from the chapeau of s 19ALA(1) that the considerations listed in that subsection are permitted rather than mandatory. I was not taken to any authority indicating that there are mandatory considerations that arise from the subject-matter, scope and purpose of Division 5 of Part IB, although counsel for the Attorney-General accepted that the three purposes of parole set out in s 19AKA probably have that character. I am therefore not persuaded that a failure to take into account the reasoning expressed by the sentencing court or reports from CSNSW would constitute an error going to jurisdiction for the purposes of s 39B of the Judiciary Act or an error capable of founding a grant of relief under the ADJR Act.

38    In any case, I would not find as a matter of fact that the delegate failed to engage with the reasoning expressed in the sentencing remarks concerning rehabilitation in the community. As noted above, the reasons contained in the refusal notice are brief and do not give a detailed account of everything considered by the delegate. The CPO submission provided the delegate with a detailed summary of the sentencing remarks at [20]-[22] and those remarks in their entirety were also before the delegate. The CPO submission framed the issue that arose in respect of rehabilitation in the following way (at [75]).

When determining whether this factor weighs in favour or against a person’s release on parole at this time, the CPO considers important considerations are what rehabilitative gains the person can make if they are refused parole and required to serve up to a further 12 months in prison versus what rehabilitative gains they can make if they are granted parole and released into the community.

39    The CPO submission expressly acknowledged (eg at [78]) that Mr Coen had not participated in offence related programs in prison due to the backdating of his sentence and that if released on parole he would be referred to a CSNSW psychologist. The consideration that refusal of parole would delay Mr Coen’s access to rehabilitative treatment was thus squarely raised for the delegate’s attention. The refusal notice itself recorded that the delegate had had regard to Mr Coen’s rehabilitative needs but had concluded that his plans for receiving treatment in the community and minimising risks were not sufficiently developed.

40    Similarly, the CSNSW report was attached to the CPO submission and mentioned at several points in that document. It was noted at [45] that:

CSNSW recommended that Mr Coen be released as he has shown positive custodial behaviour, he demonstrates an appropriate level of insight into his offending, and he is willing to engage in interventions to address his offender behaviour should he be released.

41    The fact that the delegate arrived at a different view does not mean that she ignored this recommendation.

Ground 5: the “untreated sex offender” characterisation

42    The refusal notice at point 2 refers to Mr Coen as an “untreated sex offender”. This is said to have been inaccurate because Mr Coen had attended seventeen counselling sessions with a psychologist, Jacob Montoya. These sessions took place before Mr Coen was imprisoned and were mentioned in the sentencing remarks.

43    “Untreated sex offender” was not said to be a defined term or a term of art. I am not satisfied that the delegate intended to use it as a precise description or to give it any specific legal content. It was not inapt. One thing that the material before the delegate established very clearly was that Mr Coen had not had access to treatment in prison and that he needed treatment and supervision in order to minimise the risk that he posed and help him to reintegrate into the community. Indeed, the main thrust of his case in this Court is that the delegate had insufficient regard to his need for treatment and his inability to obtain it in prison.

Ground 6: misinformation as to s 19AKA(a)

44    In DYS21 v Attorney-General (Cth) [2021] FCA 1331; 288 FCR 607 (DYS21), the submission to the Attorney-General included an observation that the risks to the community presented by the applicant’s release on parole would be effectively mitigated and that “Alternatively, there are no risks if parole is refused”. Bromwich J described this statement as “at best dangerously misleading and at worst plainly and dangerously wrong” (at [15]). His Honour elaborated on this conclusion, and explained why it led to a finding of error vitiating the Attorney-General’s decision, at [32]-[40]. It arose from the construction of s 19AKA(a) of the Crimes Act, which his Honour had explained as follows at [12].

The reference to the protection of the community in s 19AKA(a) is not in terms, or by any reasonable implication, confined to the period of the prison sentence, including in particular any part served on parole. Rather, it extends to the period after a sentence has been served, and the offender is at liberty in the community without any conditions or restrictions associated with that sentence.

45    Mr Coen submitted that there was a similar error here. The CPO submission included the following statement at [140]:

140. If Mr Coen remains in custody the risk of his engaging in further offending is reduced to almost nil. The CPO considers that there is a substantial and appreciable difference in the risk Mr Coen poses while in custody compared to the risk he poses in the community. While parole conditions can be imposed to enforce his compliance with intervention and supervision, the risk of his reoffending is largely dependent on his willingness and ability to comply with those conditions.

46    However, the present case has the following differences from DYS21 which have led me to reject this submission.

47    First, the CPO submission did not express itself in terms of there being “no risks if parole is refused”. Rather, the better reading of the passage at [140] set out above is that it was comparing the risks posed by Mr Coen while he remained in custody (which he would do until October 2027 in the absence of a grant of parole) with the risks posed if and when he is released. The CPO submission went on at [141] and [142] to refer to “the short- and long-term risk to the community”, which indicates an understanding of the point that Bromwich J made in DYS21.

48    Secondly, the delegate in her reasons referred to having considered “the short and long term risks of you remaining in custody”. This echoed the terminology of [141] and [142] of the CPO submission and fairly clearly expressed an understanding that there were potential longer term risks arising from Mr Coen remaining in custody for the remainder of his sentence. This reflects a correct understanding of the scope of the “protection of the community” referred to in s 19AKA(a) of the Crimes Act.

Ground 2: legal unreasonableness

49    Mr Coen’s submission on this ground is as follows.

The Refusal Notice does not disclose an evident and intelligible justification. The four numbered reasons are in substance a recitation of the section 19ALA(1)(a), (e), (f), (g) and (h) factors. They do not engage with - and they materially misstate - the matters that the Applicant put in his Response. They do not engage at all with the express rationale of the sentencing court for the fixing of the non-parole period. They do not engage with the unqualified CSNSW recommendation including a supervision plan. They do not engage with the differential long-term risk to the community of release with supervision for a reduced period to that contemplated by the sentencing court or without supervision.

Taken together, the Refusal Notice is properly characterised as lacking any logical or rational connection between the materials before the delegate and the conclusions reached. The decision is therefore legally unreasonable: [Minister for Immigration and Citizenship v] Li [[2013] HCA 18; 249 CLR 332] at [76]; MZAFS v Minister for Immigration and Border Protection [2016] FCA 75 at [7].

50    The fundamental complaint here appears to be a failure by the delegate to “engage” with opinions expressed in the material before the delegate which (in Mr Coen’s view) should have been regarded as persuasive. The difficulty, however, is (as the Attorney-General submits) that engaging with these opinions was not a requirement imposed on the Attorney-General by the statutory scheme. Rather than demonstrating an absence of “evident and intelligible justification” or of “logical or rational connection between the materials before the delegate and the conclusions reached”, the complaint of a failure to engage simply points to disagreement with the outcome (cf Minister for Immigration and Multicultural Affairs v Eshetu [1999] HCA 21; 197 CLR 611 at [30] (Gleeson CJ and McHugh J)).

51    It can be accepted that the fact that specific rehabilitation programs were not available to Mr Coen in prison was a significant factor in favour of a grant of parole: while on parole Mr Coen could be required to undertake relevant treatment which, at least potentially, would advance his rehabilitation and reduce the risk that he posed to the community in the longer term. In DYS21 at [36], Bromwich J said of a decision to refuse parole in similar circumstances that:

It creates an absurd situation where, if the applicant had committed more serious offences and was at a greater risk of reoffending, then he probably would have been eligible to attend a sex offender course and this would not have been a consideration able to be raised as a reason to refuse parole.

52    Despite that, the delegate was required to make the decision that she considered best advanced the purposes in s 19AKA in the present case rather than reflect on the different results in other cases that might flow from the resources available for sex offenders in New South Wales prisons. The CPO submission noted that Mr Coen would be ineligible for sex offender treatment programs if he remained in custody but might make rehabilitative gains if released to parole (at [82]-[83]). However, the CPO submission expressed reservations as to whether his plans for things such as professional supports (including for mental health and alcohol abuse) and social supports were sufficiently developed. This led to the observations at [140] (set out at [45] above) and then to the following observations (at [141]-[143]).

141. The CPO considers that both the short- and/or long-term risk to the community is served by Mr Coen staying in custody so that he can consider his post release plans.

142. Mr Coen still has 1 year and 9 months’ to serve on his Commonwealth sentence – which expires on 25 October 2027 – to be considered for parole. As such, the CPO considers additional time in custody to undertake treatment, rectify rehabilitative needs and establish suitable reintegration plans, will be of significant benefit as he will be better placed to undertake parole. The CPO considers that both the short and long-term risk to the community is served by Mr Coen staying in custody so that he can consider his post-release plans.

143. Based on the above information, the CPO considers Mr Coen is likely to pose an unacceptable risk to the community, a consideration that weighs against his release on parole.

(Original emphasis.)

53    As is apparent from points 2 and 3 of the reasons contained in the refusal notice, the delegate accepted the suggestion that Mr Coen’s “post-release plans” were not sufficiently developed. What followed, according to the delegate, was that Mr Coen’s “release on parole at this time” would not be in the interests of his rehabilitation, reintegration and the safety of the community. This was in circumstances where, pursuant to s 19AL(2)(b) of the Crimes Act, the Attorney-General would be required to reconsider the making of a parole order within 12 months of the refusal (ie, before 24 February 2027). While the correctness of the delegate’s decision is obviously debatable, it was not one that lacked an evident and intelligible justification.

Disposition

54    Because the decision of the delegate involved a denial of procedural fairness to Mr Coen, the decision must be set aside.

55    The originating application sought additional orders, the overall effect of which was equivalent to a traditional writ of mandamus. The Attorney-General would be ordered to make a new decision within a specified period and then make a return before the Court either advising that a new decision had been made or showing cause why peremptory mandamus should not issue. These orders are unnecessary in circumstances where, as a result of the decision being set aside, the Attorney-General will be under a statutory obligation to make a decision on parole “as soon as practicable” (s 19AL(1A)) and there is nothing to indicate an unwillingness to comply with that duty.

56    Mr Coen also sought costs. The Attorney-General did not seek to be heard on costs in the event that Mr Coen was successful and there is no apparent reason why costs should not follow the event.

Associate:

Dated:    2 October 2026