Blundell v Sentence Administration Board [2010] ACTSC 10 (9 February 2010)

Last Updated: 19 February 2010

HUMAN RIGHTS ACT

PAUL ANTHONY BLUNDELL V SENTENCE ADMINSTRATION BOARD AND ANOR

[2010] ACTSC 10 (9 FEBRUARY 2010)

Crimes (Sentence Administration) Act 2005 (ACT) s150

Administrative Decisions (Judicial Review) Act 1989 (ACT) s16,

Human Rights Act 2004 (ACT), s40(C)

EX TEMPORE JUDGMENT

No. SC 98 of 2010

Judge: Refshauge J

Supreme Court of the ACT

Date: 9 February 2010

IN THE SUPREME COURT OF THE )

) No. SC 98 of 2010

AUSTRALIAN CAPITAL TERRITORY )

BETWEEN: PAUL ANTHONY BLUNDELL

Plaintiff

AND: SENTENCE ADMINISTRATION BOARD, AND ANOR

Defendant

ORDER

Judge: Refshauge J

Date: 9 February 2010

Place: Canberra

THE COURT ORDERS THAT:

1. The Chief Executive of the Department of Justice and Community Safety be added as a third defendant to the proceedings and the originating application be amended accordingly.

2. Under s 16 of the Administrative Decisions Judicial Review Act 1989 (ACT), the operation of the order of the Sentence Administration Board made today cancelling the parole order of 28 July 2009 made in favour of the plaintiff be suspended and all proceedings under that order be stayed on conditions that

(i) the plaintiff comply with each condition of the parole order, and

(ii) the Chief Executive continues supervision of the plaintiff in accordance with the parole order until further order.

3. The plaintiff lodge an amended originating application by 10 am, 10 February 2010 showing,

(i) the third defendant as a party;

• (ii) an amendment to Order 3 to refer to s 5 instead of s 17;

• (iii) a return date of 9:30am, 17 February 2010 .

The Registrar is to issue that originating application as a matter of urgency.

4. The plaintiff serve the defendants with a sealed copy of the amended originating application, the two affidavits read today and a copy of the transcript of today’s proceedings on or before close of business on 12 February 2010.

5. A transcript of the proceedings today be made as a matter of urgency and a copy delivered to the plaintiff.

6. The proceedings be listed before me at 9.30 am on 17 February 2010 for directions.

7. There be liberty reserved to any party to apply on short notice;

8. The question of costs be reserved.

1. This is an application for interim relief made by the plaintiff, Paul Anthony Blundell. Mr Blundell was sentenced by the ACT Supreme Court on 28 May 2008 for various offences that were committed in the Australian Capital Territory. He was granted parole on 28 July 2009.

2. On 4 November 2009, Mr Blundell was sentenced by Justice Toner, of the New South Wales District Court at Queanbeyan for offences that were committed in 2006. That is, in fact, in time earlier than the offences for which he was sentenced by the ACT Supreme Court, and at a time before he was granted parole. As a result of the provisions of s 150 of the Crimes (Sentence Administration) Act 2005 (ACT), (the Sentencing Administration Act) the Parole Board initiated an inquiry

3. That section provides, in substance, that where a person who has been released on parole is convicted of an offence for which he is liable to be sentenced for imprisonment, the Sentence Administration Board is required to cancel the parole order. Nothing in the section expressly refers to whether the offence for which that cancellation is made or the offence for which the conviction is recorded, following which the cancellation order is made, is an offence that has been committed during the period of parole, between the sentencing and the grant of parole or even earlier.

4. The Parole Board conducted an inquiry and met today to consider the situation of Mr Blundell. As I understand the material before me, the Parole Board felt constrained by the terms of s 150 of the Sentence Administration Act and cancelled Mr Blundell’s parole.

5. This is an urgent application for interim relief, pending an application for review of that decision. That review broadly has three aspects. The first is a challenge under the Administrative Decisions (Judicial Review) Act 1989 (ACT) (ADJR Act) to review the decision on grounds that are not entirely clear to me at the moment, but, presumably at least for error of law, for failing to construe s 150 to be limited to convictions for offences that were committed while the parolee is on parole.

6. Second, the review is for an order under s 40(C) of the Human Rights Act 2004 (ACT) (Human Rights Act) that the Sentence Administration Board, being a public authority, comply with the obligation under the Human Rights Act, to construe s 150 consistently with the Human Rights Act and, indeed, internal provisions of the Sentence Administration Act, which set out the purposes of the Act and which might appear to be inconsistent with the construction of the section given by the Sentence Administration Board, and limit its reach to offences committed while the parolee was on parole and then to comply with the terms of that order.

7. Third, if the court is not satisfied that that construction of the Act can be given to s 150 by virtue of the operation of the Human Rights Act then to make a declaration of incompatibility.

8. These issues are not currently before me in the sense that all I am asked to do is give appropriate interim relief. Before I do so, I have to be satisfied that there is an arguable case, and given that the effect of interim relief would be to release Mr Blundell into the community, that there is at least a strongly arguable case.

9. The prejudice that the plaintiff, Mr Blundell, will suffer if an order is not made is that if the order of the Sentence Administration Board is quashed, he will have spent a period of imprisonment, which he should not have otherwise served. The minimum period that he will serve is until 23 March 2010: that is because, while an oral application was made to the Board today following the cancellation order for further parole for Mr Blundell, the Board adjourned that for inquiry to 23 March 2010. It would appear likely, on good criminological grounds, that in the circumstances, further parole would be granted to Mr Blundell, but that cannot be guaranteed, and things can change in the meantime.

10. The maximum period would be until the order of imprisonment expires. I understand this to be September 2010. Alternatively, it would be until any other order of the court is made, for example, quashing the decision of the Sentence Administration Board.

11. Of course, it is possible that the Court, in hearing the full application, will decide that the Sentence Administration Board’s construction of s 150 is, in fact, correct and that the Board was correct in cancelling Mr Blundell’s parole. It may or may not make a declaration of incompatibility, but such a declaration, although it is part of the important dialogue model of human rights that we have in this Territory, could not affect the validity of the cancellation. It would only raise before the Legislative Assembly the need to consider whether a provision in an Act, which has been held by the Supreme Court to be inconsistent with the Human Rights Act, should be amended in some way or repealed.

12. I have heard helpful submissions from Mr Kukulies-Smith on behalf of Mr Blundell. He has satisfied me that there is an arguable case that the provisions of s 150 of the (Sentencing Administration Act should be construed in a way that would not require the Sentence Administration Board to have cancelled Mr Blundell’s parole at the meeting of the Board today. Accordingly, I propose to consider whether interim relief should be granted.

13. A difficulty with interim relief is that the regime for parole supervision involves not only Mr Blundell complying with obligations set out in the parole order, but also requires supervision from the Chief Executive and officers delegated by her.

14. The first problem is that the Chief Executive is not a party to these proceedings, although the Territory is. But, I am not convinced that making the Territory a party to these proceedings would necessarily mean that any orders that I made against the Territory would be effective against a person who has statutory authority and statutory obligations.

15. Accordingly, I propose to direct that the Chief Executive of the Department of Justice and Community Safety be added as a defendant. I have given careful consideration to the options, and I believe that under s 16 of the ADJR Act, I have authority to make orders suspending the order of the Sentence Administration Board and staying all proceedings and to impose such conditions as I consider are appropriate.

16. I am not convinced that the conditions I propose to order will ultimately be effective. Nevertheless, since I propose to make an early return date for the originating application so that further directions can be given in this matter, the issue of whether those conditions are effective or other conditions should be made or given can be satisfactorily dealt with at that time. The short period between today and when that return date is granted will protect the community.

I certify that the preceding sixteen (16) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Justice Refshauge.

Associate:

Date: 15 February 2010

Counsel for the applicant: Mr M Kukulies-Smith

Solicitor for the applicant: Ken Cush & Associates

Date of hearing: 9 February 2010

Date of judgment: 9 February 2010