Jackson v The Chief Executive of the Dept. of Justice and Community Safety and the Sentence Administration Board of the Australian Capital Territory [2009] ACTSC 102 (25 August 2009)

Last Updated: 22 September 2009

HUMAN RIGHTS ACT

WAYNE JACKSON v THE CHIEF EXECUTIVE OF THE DEPARTMENT OF JUSTICE AND COMMUNITY SAFETY and ANOR
[2009] ACTSC 102 (25 August 2009)

COSTS – application by the plaintiff for the defendant to consider and determine the plaintiff’s parole application forthwith – the Sentence Administration Board – the process for consideration of parole applications – non parole period – ordinary parole application – whether it was reasonable for the plaintiff to commence proceedings – consideration of the parole application expedited – continuation of proceedings unnecessary – costs follow the event – order that the respondent pay the plaintiff’s costs

Human Rights Act 2004 (ACT)
Administrative Decisions (Judicial Review) Act 1989 (ACT)
Court Procedures Rules 2006
Court Procedures Act 2004 (ACT)
Bail Act 1992 (ACT)
Crimes (Sentence Administration) Act 2005 (ACT)

No. SC 531 of 2009

Judge: Higgins CJ
Supreme Court of the ACT
Date: 25 August 2009

IN THE SUPREME COURT OF THE )
) No. SC 531 of 2009
AUSTRALIAN CAPITAL TERRITORY )

BETWEEN: WAYNE JACKSON

Plaintiff

AND: THE CHIEF EXECUTIVE OF THE DEPARTMENT OF JUSTICE AND COMMUNITY SAFETY

First Defendant

AND: THE SENTENCE ADMINISTRATION BOARD OF THE AUSTRALIAN CAPITAL TERRITORY

Second Defendant

ORDER

Judge: Higgins CJ
Date: 25 August 2009
Place: Canberra

THE COURT ORDERS THAT:

1. The respondent pay the plaintiff’s costs of and incidental to these proceedings.

1. On 4 June 2009, the plaintiff filed an originating application seeking orders, in reliance on the Human Rights Act 2004 (ACT), s 40C, s 17 of the Administrative Decisions (Judicial Review) Act 1989 (ACT), r 3554 of the Court Procedures Rules 2006 (ACT), s 62 Court Procedures Act 2004 (ACT) directing the Sentence Administration Board of the Australian Capital Territory (the Board) to forthwith consider the plaintiff’s application for parole. Section 18(6) of the Human Rights Act, r 3506 of the Court Procedures Rules 2006 and/or s 8(e) of the Bail Act 1992 (ACT) were alleged to be engaged by the application.
2. The background facts were not disputed. On 7 April 2009 Penfold J had, on appeal, resentenced the plaintiff to a term of imprisonment of two years from 6 January 2008 setting a non-parole period of 16 months. That non-parole period was due to expire on 5 May 2009.
3. On 23 April 2009 the plaintiff made application to the Sentence Administration Board for a grant of parole. The Board met on 5 May 2009 and decided to convene a hearing on 30 June 2009 to consider that application.
4. It was accepted that the plaintiff could not have applied for parole earlier than 7 April 2009 when the result of his appeal was handed down by Penfold J.
5. On 20 April 2009 the plaintiff received a letter from the Manager, Sentence Administration Section of ACT Corrective Services. It stated as follows (omitting formal parts):

I am writing to inform you of the process that applies in the ACT under the Crimes (Sentence Administration) Act 2005 for release to parole.
The Crimes (Sentence Administration) Act 2005 requires ACT offenders who have a non-parole period to submit a written application to the Sentence Administration Board requesting release to parole. The Act further requires that applications for parole not be submitted earlier than 6 months prior to the non-parole period expiry date.
As you are an ACT offender who has a non-parole period, an application for parole form is enclosed. Applications for parole take approximately 8 weeks to be processed by the Sentence Administration Board and will be processed in the order that they are received.
If you need further information contact the welfare officer in your correctional centre or the Secretary of the Sentence Administration Board on [phone no].

6. The formal application was received by the Board on 24 April 2009. The Board secretary, Ms Campbell-Ward did not respond until 7 May 2009. She advised that the Board had scheduled a hearing for 30 June 2009 and invited submissions by 24 June 2009.
7. On 13 May 2009, unaware of this, the plaintiff’s solicitor Ms Helen Cory, had written to Ms Campbell-Ward requesting advice of the date for the hearing and copies of relevant documents, including ‘all pre-release reports’.
8. There was a follow-up email from Ms Cory on 21 May 2009, but no response from the Board until later that morning (11:38 am), although Ms Campbell-Ward advised that a response had been sent on 19 May 2009. Though confirming the date for hearing of 30 June 2009, the email did state:

Should you wish the matter to be heard prior to this date, you will need to provide a submission to the board requesting this. The board will then consider such submission and make a decision as to whether or not to bring the matter forward to an earlier date.

9. The “response” referred to was an email attaching the notice of 7 May 2009. Ms Cory responded to that invitation stating:

The Board appears to not be giving effect to the sentence imposed by the Supreme Court on 7 April 2009. It is fair and reasonable for the Board to look at each prisoner’s personal circumstances and to move expeditiously if required. I am submitting that the Board should move expeditiously in Mr Jackson’s case.
I request the Board again to re-list the section 125 Parole Inquiry as soon as possible. I also request the Parole Hearing be listed as early as possible.

10. On 25 May 2009, the Board advised that the date for hearing would not be altered. On 28 May 2009, however, the Board advised:

... should the pre-release report be submitted early, the board will consider listing the inquiry at an earlier date.

11. On 2 June 2009, the Board advised that, at its meeting of 5 May 2009, it had requested a pre-release report. That would, it stated, take eight weeks from the date of request. It was, therefore, due on 24 June 2009.
12. On 3 June 2009, the case manager at the Alexander Maconochie Centre Ms Lisa Harvey, advised that she would endeavour to prepare her report concerning the plaintiff earlier than that if possible.
13. When this application came before me on 5 June 2009, the Board advised that it would meet on 9 June 2009. The solicitors for the plaintiff urged the first respondent to ensure that the Board would then be in a position to dispose of the application. The solicitors for the first respondent responded, quite properly, agreeing to do such things as were required to expedite the matter pointing out that it was the Board’s decision whether to grant or not a parole order.
14. Properly, the parties did so cooperate and parole was granted. Hence it became unnecessary further to proceed with this application.
15. Applications for parole are dealt with in the Crimes (Sentence Administration) Act 2005 (ACT). Under s 121 of that Act this was an “ordinary application”. Section 123 required the Board to notify the victim of the offence of the inquiry and, under s 124, invite her to make a submission on matters relevant to the making of a parole order. The period to be allowed to the victim to make a submission was not less than seven days.
16. The offender, under s 125, is to be allowed 14 days within which to make a submission to the Board.
17. Thus there are some statutory constraints upon the Board which would render it impossible to decide an application for parole immediately upon receipt. Further, available resources are relevant to determining the expedition which can be afforded to any particular application.
18. It would, normally, be appropriate for the Board to determine applications for parole in the order they are received. In most cases, having regard to s 121(1) of the Act, there will be five to six months notice of an application prior to an offender’s parole eligibility date.
19. However, the parole eligibility date is of central importance to applicants. If they are to be found eligible for parole then that decision ought to be made at the earliest date practicable and, in any event, before the parole eligibility date if possible.
20. In particular, any so-called rule that, regardless of the parole eligibility date, no parole application will be considered prior to any other application received earlier, could not be sustained. That was the initial impression the Board conveyed. Hence it was reasonable for the plaintiff to commence proceedings. That initial impression was, as a result, disavowed.
21. It follows that the plaintiff’s application was, in substance, successful. Costs should follow that event. The respondent will pay the plaintiff’s costs of and incidental to these proceedings, such costs to be assessed if not agreed.

I certify that the preceding twenty-one (21) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Chief Justice Higgins.

Associate:

Date: 25 August 2009

Counsel for the plaintiff: Mr J Purnell SC
Solicitor for the plaintiff: Ken Cush & Associates
Counsel for the 1st & 2nd defendants: Mr K Archer
Solicitor for the 1st & 2nd defendants: ACT Government Solicitor
Date of hearing: 5 and 10 June 2009
Date of judgment: 25 August 2009