Lim v State Parole Authority and the Attorney General for New South Wales [2010] NSWSC 93 (16 February 2010)

Last Updated: 25 February 2010

NEW SOUTH WALES SUPREME COURT

CITATION:
Lim v State Parole Authority and the Attorney General for New South Wales [2010] NSWSC 93
This decision has been amended. Please see the end of the judgment for a list of the amendments.

JURISDICTION:
Civil

FILE NUMBER(S):
2009/298128

HEARING DATE(S):
15-16 February 2010


EX TEMPORE DATE:
16 February 2010

PARTIES:
Choon Lee Lim (Plaintiff)
State Parole Authority (1D)
Attorney General for NSW (2D)

JUDGMENT OF:
McClellan CJatCL

LOWER COURT JURISDICTION:
Not Applicable

LOWER COURT FILE NUMBER(S):
Not Applicable

LOWER COURT JUDICIAL OFFICER:
Not Applicable



COUNSEL:
A Haesler SC/N Mikhaiel (Plaintiff)
Submitting appearance (1D)
L Babb SC/Dr C Mantziaris (2D)


SOLICITORS:
Legal Aid Commission of NSW (Plaintiff)
Crown Solicitor's Office (1D & 2D)



CATCHWORDS:
ADMINISTRATIVE LAW
judicial review
reviewable decisions and conduct
State Parole Authority power to vacate final order for parole
ADMINISTRATIVE LAW
judicial review
reviewable decisions and conduct
ADMINISTRATIVE LAW
discretion to stay order quashing setting aside order vacating parole

LEGISLATION CITED:
Crimes (Administration of Sentences) Act 1999

CATEGORY:
Principal judgment

CASES CITED:
Minister for Immigration and Multicultural Affairs v Bhardwaj [2002] HCA 11; (2002) 209 CLR 597

TEXTS CITED:


DECISION:
1. I make orders 1 and 2 in the plaintiff’s summons. Those orders are:
(a) That the decision of the first defendant of 20 November 2009 to refuse the plaintiff parole be quashed.
(b) That the decision of the first defendant of 27 October 2009 to vacate its order of 1 October 2009 granting the plaintiff parole be quashed.
2. I stay the operation of those orders until 15 March 2010 or until further order of the court.
3. I dismiss the Attorney-General’s cross-summons.
4. I provide liberty to the parties to apply.



JUDGMENT:

THE SUPREME COURT

OF NEW SOUTH WALES

COMMON LAW DIVISION

ADMINISTRATIVE LAW LIST

McCLELLAN CJ at CL

TUESDAY, 16 FEBRUARY 2010

2009/298128 LIM v STATE PAROLE AUTHORITY OF NEW SOUTH WALES & ATTORNEY GENERAL FOR NEW SOUTH WALES

JUDGMENT

1 HIS HONOUR: The plaintiff Choon Tee Lim has brought a summons and the Attorney General of New South Wales a cross-summons which raise issues with respect to the current status of a decision by the Parole Authority to grant the plaintiff parole. Because the matter involves the liberty of the subject it has been expedited and I deliver these reasons following only a brief period of deliberation. I have confined my consideration of the matter to the issues raised by the parties and their respective submissions. It is important to emphasise that I have not been asked to and nor could I consider the merit of any decision made by the Authority. I am concerned only with the legal status of decisions which the Authority has made.

2 The plaintiff was convicted on 30 October 1992 after trial of the murder of Dr Victor Chang. He was sentenced on 22 December 1992 to a non-parole period of 18 years expiring on 11 November 2009 with an additional term of 6 years commencing on 12 November 2009 and expiring on 11 November 2015.

3 The plaintiff was born in Malaysia and is not an Australian citizen. On 7 January 1999 an order for his deportation was made by the delegate of the Minister of State responsible for the administration of the Migration Act 1958. The practical effect of the order is that upon his release from prison the plaintiff will be deported and returned to Malaysia.

The structure of the legislation

4 The Crimes (Administration of Sentences) Act 1999 (“the Act”) provides a comprehensive procedure for the consideration and granting of parole. Division 1 of Part 6 makes general provision with respect to eligibility and conditions which may be placed upon an offender who is released to parole. Division 2 makes specific provision where parole is granted to an offender who has been sentenced to more than 3 years imprisonment. Subdivision 3 of Division 2 relates to serious offenders.

5 Section 143 of the Act provides that the Parole Authority must consider whether or not a serious offender should be released on parole at least 60 days before the offender’s parole eligibility date. Provision is made for deferral in certain circumstances. Section 143A provides for an offender, who has not been granted parole, to make application after his or her first eligible date has passed for release on parole.

6 Provision is made in the Act for both the review of an offender’s situation and the examination of an offender (s 143B and s 143C). Section 144 provides for the formulation by the Authority of an “initial intention” to make a parole order in relation to an offender. When formulating an opinion as to whether an offender should be released on parole the Authority is required to have regard to the matters referred to in s 135 of the Act. These matters include a report prepared by Probation and Parole Service as provided by s 135A.

7 Section 145 provides for notice to be given to victims of an intention to grant parole. Section 147 provides that the Parole Authority may conduct a hearing where the offender and any victim may make submissions. Thereafter the Parole Authority is required to make a final decision as to whether or not to make a parole order. Section 148 provides the principles by which that order is to be considered. Section 148 is in the following terms:

“Principles on which Parole Authority’s final decision to be made

(1) The Parole Authority is to make its final decision as to whether or not to make a parole order on the following principles:

(a) that the Parole Authority will confirm its initial intention to make a parole order if there are no submissions to the contrary or if it is not required to seek victim submissions,

(b) that the Parole Authority will reconsider its initial intention to make a parole order if there are submissions to the contrary, and will in that event take into account any offender submissions,

(c) that the Parole Authority will confirm its initial intention not to make a parole order if there are no offender submissions,

(d) that the Parole Authority will reconsider its initial intention not to make a parole order if there are offender submissions, and will in that event take into account any other submissions.

(2) The Parole Authority must consider all submissions made in accordance with this Subdivision and, subject to section 185 (2), must disregard all other submissions.”

8 Section 149 provides for a decision to be made by the Authority after it has reviewed “all the reports, documents, submissions and other information placed before it.” Section 149 is in the following terms:

“Decision following review

(1) After reviewing all the reports, documents, submissions and other information placed before it, the Parole Authority must decide:

(a) whether or not the offender should be released on parole, or

(b) whether, for reasons specified by the Parole Authority in its minutes, the question of whether or not the offender should be released on parole should be deferred.

(2) The question of whether or not the offender should be released on parole:

(a) may be deferred once only, and

(b) may not be deferred for more than 2 months.

(3) If the Parole Authority decides than the offender should be released on parole, it must make an order directing the release of the offender on parole on a day occurring during a period specified in accordance with section 151.

(4) If the Parole Authority decides that the offender should not be released on parole, the Parole Authority:

(a) (Repealed)

(b) must cause notice that it does not intend to make a parole order to be served on the offender.”

9 Section 150 makes provision for the decision which must be made by the Authority in the event that there are no victim’s submissions or other submissions to the contrary of a release of the offender to parole including if it is not required to seek victim’s submissions. Section 150 is in the following terms:

“(1) The Parole Authority must confirm its initial intention to make a parole order if there are no victim submissions or other submissions to the contrary or if it is not required to seek victim submissions.

(2) The Parole Authority must confirm its initial intention not to make a parole order if there are no offender submissions.

(3) If the Parole Authority confirms its initial intention to make a parole order, it must make an order directing the release of the offender on parole on a day occurring during a period specified in accordance with section 151.

(4) If the Parole Authority confirms its initial intention not to make a parole order:

(a) (Repealed)

(b) it must cause notice that it does not intend to make a parole order to be served on the offender.”

10 Section 153 is of particular significance in the present case. It provides as follows:

“(1) The State may at any time make submissions to the Parole Authority concerning the release on parole of a serious offender.

(2) If the State makes any such submission before the Parole Authority makes a final decision concerning the release of the offender, the Parole Authority must not make such a decision without taking the submission into account.

(3) If the State makes any such submission after the Parole Authority makes a final decision concerning the release of the offender, but before the offender is released, the Parole Authority must consider whether or not it should exercise its power under section 130 to revoke the relevant parole order.

(4) The regulations may make provision for or with respect to submissions by the State under this section, including provisions relating to the application of this Subdivision in connection with any such submission.

(5) The powers of the State under this section may be exercised by the Commissioner and by any other authority of the State.”

11 A submissions made by the State pursuant to section 153(3) engages the power of the Authority to revoke a parole order which operates in accordance with relevant regulations. Section 130 is in the following terms:

(1) The Parole Authority may, by order in writing and in such circumstances as may be prescribed by the regulations, revoke a parole order at any time before the offender to whom the order relates is released under the order.

(2) Division 4 of Part 7 applies to the revocation of a parole order under this section in the same way as it applies to the revocation of a parole order under Division 3 of that Part.”

12 The relevant regulation is regulation 232 which is in the following terms:

“(1) For the purposes of section 130 of the Act, the following circumstances are prescribed as circumstances in which the Parole Authority may revoke a parole order:

(a) circumstances in which the offender requests that the order be revoked,

(b) circumstances in which the Parole Authority decides, before releasing the offender, that the offender is unable to adapt to normal lawful community life,

(c) circumstances in which the Parole Authority decides that satisfactory accommodation arrangements or post-release plans have not been made or are not able to be made,

(d) circumstances in which:

(i) a request is made under section 172 of the Act, or a direction is given by a court (whether or not under the Act), for the Parole Authority to consider whether the order should be revoked on a specified ground, and

(ii) the Parole Authority decides that the order should be revoked on that ground.

(2) The Parole Authority must send copies of an order under section 130 of the Act to the general manager of the correctional centre, or the general manager responsible for the periodic detention centre, in which the offender is kept.

(3) As soon as practicable after receiving the order, the general manager must ensure that:

(a) the order is read to the offender, and

(b) the effect of the order is explained to the offender in language that is capable of being readily understood by the offender, and

(c) the offender’s rights to a review of the revocation are explained to the offender in language that is capable of being readily understood by the offender, and

(d) a copy of the order is handed to the offender.

(4) The Parole Authority must send notice of the revocation of a parole order under section 130 of the Act to the Commissioner.”

13 Part 8 provides for the constitution and functions of the Parole Authority. Section 185(2)(b) requires the Authority when exercising its functions to “consider any submissions made by the Commissioner or any other person or body entitled to make such submissions.”

The sequence of events

14 On 10 September 2009 the Parole Authority met to consider the plaintiff’s case. Being convicted of the offence of murder the plaintiff is a “serious offender” for the purpose of the Act. Pursuant to s 144(a) of the Act the Authority formed the intention to make a parole order in relation to the plaintiff. Notice of this decision was given to the Department of Corrective Services. Because no victims were listed on the Victims Register no notification had to be or was in fact given to Dr Chang’s family (s 145). A review hearing date of Thursday, 15 October 2009 was fixed.

15 Before it formed the intention to grant parole the Authority received a report dated 18 August 2009 from the Serious Offenders Review Council which indicated that in the opinion of the Council the plaintiff was an appropriate person to release on parole. Because the plaintiff is a serious offender a recommendation in the terms provided by the Council was required before parole could be granted (s 135(3)).

16 The Act provides that having formed an initial intention the Parole Authority is to make a final decision as to whether or not to make a parole order. The principles upon which that decision are to be made are provided by s 148 of the Act.

17 Section 149 provides for the Authority to make a decision as to whether an offender should be released to parole after reviewing “all the reports, documents, submissions and other information placed before it.” If the Parole Authority decides that the offender should be released on parole it must make an order directing his or her release. The terms of that order must conform with s 151 of the Act.

18 By a communication dated 17 September 2009 a representative of the NSW Department of Corrective Services notified the Parole Authority that the State would not be making a submission in relation to the prospective release of the plaintiff. On 1 October 2009 the Parole Authority made its final decision to grant parole and stated as its reasons:

“Having regard to the principle that the public interest is of primary importance, the State Parole Authority has decided that the release of the offender is appropriate.

In making this decision the Parole Authority has had regard to the need to protect the safety of the community and the need to maintain public confidence in the administration of justice.”

19 The Parole Authority also said that it had regard to various matters relevant to s 135 of the Act which included the fact that both an officer of the Probation and Parole Service and the Serious Offenders Review Council had recommended the plaintiff’s release. The Authority also had regard to the fact that the plaintiff had been assessed as at low risk of re-offending and also that he was to be deported.

20 On 1 October 2009 the Parole Authority notified its decision to authorise the release of the plaintiff to the General Manager of the Parramatta Correctional Centre. The Authority confirmed that it had authorised and directed the plaintiff’s release to parole on 11 November 2009. A copy of the parole order and accompanying conditions was attached.

21 The order included the release details relevant to the plaintiff. It read as follows:

“After consideration of the offender’s case, the Parole Authority pursuant to the provisions of the Crimes (Administration of Sentences) Act 1999 directs that the offender be released on parole on 11 November 2009.

The order is to enforced for the period commencing on the date of release and terminating on 11 November 2015 unless it is revoked.”

22 The order included standard conditions with the following additional condition:

“The offender must submit to supervision by the NSW Probation and Parole Service until such time as the offender has been deported. If the offender returns to Australia before the expiry of his or her parole order, the offender must report to the NSW Probation and Parole Service within 7 days of his or her return to NSW.

23 By letter dated 27 October 2009 which was, of course, before the plaintiff was due for release the Executive Director Statewide Administration of Sentences and Orders wrote to the Authority in the following terms:

“This is a formal request as instructed by the Commissioner of Corrective Services for the State Parole Authority’s decision of 1 October 2009 to release the offender, Choon Tee LIM, on parole be vacated and the matter be stood over for a Revocation Prior to Release hearing on or about the 5 or 6 November 2009.

This office has been instructed by the Minister to make a State submission against release of this offender. A copy of the instructions to the Crown Solicitor’s office is attached for your reference.”

24 At its meeting of the same day ie 27 October 2009 the Authority determined to accede to the request, noted the letter from the Department of Corrective Services and decided to “vacate” its decision of 1 October 2009. It then determined to stand the matter over to 6 November for a review hearing and for the State submission to be lodged.

25 The solicitor from the Legal Aid Service of NSW acting for the applicant wrote to the Authority by letter dated 30 October 2009 requesting, inter alia: “to know pursuant to what power the Authority “vacated” its decision and ordered a further review hearing.”

26 He also asked that he be informed “if the Authority has made a decision to revoke the grant of Mr Lim’s parole prior to his release and, if so, upon what grounds was such a decision made.”

27 The Authority replied by letter dated 2 November 2009 confirming that following notification that there would be a State submission “the Authority vacated the decision of 1 October 2009 to allow the State’s submission to be heard at a review hearing.” The letter also confirmed that the Authority had not made a decision to revoke the plaintiff’s parole. It concluded by saying “the issue to be considered on 6 November 2009 is the “intention to grant parole” determination made on 10 September 2009.”

28 The Authority held a hearing on 6 November 2009 and considered a written submission from the Crown Advocate who appeared for the State of NSW. At that hearing the plaintiff was represented by a solicitor who questioned the nature of the hearing. Early in the proceedings the solicitor said to the chairperson of the Authority:

“But your Honour, just so that I can be clear, a notice that the letter sent from the Executive Director of the Statewide Administration of Sentencing and Orders dated 27 October refers to the matter being stood over for a revocation prior to release hearing. Well, I do not think that is what we are having is it?

Chairperson: It is not, no. It is a review hearing in relation to the decision by the Authority on 10 September, that decision being the forming of an intention to grant parole. It is a review hearing of that particular aspect of the matter.”

29 The course adopted by the chairperson was apparently taken upon the assumption that the decision to vacate the order for release to parole was operative. If it was, the Authority was able, as the chairperson apparently intended, to exercise the power provided by s 149 of the Act to determine having reviewed all relevant matters whether or not an offender should be released to parole.

30 Later in the transcript the chairperson said to the Crown Advocate:

“I would not limit any submission you would wish to make but you may assume that the Authority are possessed of the power to alter a decision of an intention to grant parole. That is why it is expressed only as intention. It is not a Parole order, it is an intention to grant parole and the purpose of this morning’s proceedings is to see whether the Authority maintained (sic) that intention and consequently converted into a parole order (sic) or whether the State of NSW persuaded the Authority that it should not do that.”

31 Later in the proceedings the solicitor for the plaintiff was able to make a comprehensive oral submission. Having put arguments relevant to the merits of the case he concluded his submission by saying “I believe that it could well be argued that the final decision has been made by the Authority and that the Authority is functus.” The chairperson responded by saying: “how could you possibly argue that?”

32 A discussion ensued in relation to sections 153(1) and 153(2) of the Act. No reference was made to s 153(3) either by the chairperson, the solicitor for the plaintiff or the Crown Advocate. It should have been considered particularly having regard to the letter from Corrective Services which foreshadowed an intention to seek a “Revocation Prior to Release hearing”.

33 Later the chairperson said in response to a submission that the “Authority is functus” that the submission was:

“clearly erroneous for this reason. The State are not limited in making submissions about matters that they feel that the Authority may not have considered. This is a review hearing, that is the Authority as constituted today is entitled to review whatever considerations we are taking into account on that date in September when an intention to grant parole was formed. Section 153(1), not only entitles to make the State to make submissions at any time but s 153(2) requires the State Parole Authority not to make a final decision concerning the release of a serious offender without taking those submissions into account. So that not only is the State entitled to make the submissions but the Authority pursuant to the relevant provision of the Act is obliged not to make a final decision until they take on board the content of those submissions.”

34 The Authority reserved its decision which was later published on 20 November 2009. The Authority decided to “refuse” the plaintiff parole. The plaintiff had not been released from prison and still remains in custody.

35 The written reasons of the Authority is headed “Decision of State Parole Authority following the review hearing on Friday 6 November 2009.” The Authority said in relation to the possible release of the plaintiff:

“The practical effect of such a release is to expunge the remaining years of the prisoner’s sentence and such a result must be taken to undermine public confidence in the administration of justice.

A majority of the Authority as consisted on 6 November 2009 are of the view that on the balance of probabilities the release of this particular offender at this stage is not appropriate in the public interest.”

36 Later the Authority recorded its order saying:

“The formal order is that parole is refused and the Parole Authority will otherwise consider due date (sic).”

37 The plaintiff seeks orders quashing the decision of the Authority of 20 November 2009 to refuse him parole. It also seeks an order that the decision of 27 October 2009 by which the Authority purported to vacate its order of 1 October 2009 be quashed.

38 Further orders declaring that the plaintiff is entitled to be released and declaring that an error of law occurred in the decision of 20 November 2009 are also sought.

39 The Attorney-General of NSW has brought a cross-summons seeking orders that the decision of the Authority on 1 October 2009 directing that the plaintiff be released on parole is effected by jurisdictional error and was ultra vires.

Resolution of the relevant issues

40 The Attorney-General accepts that the decision of 20 November 2009 by which the Authority purported to refuse the plaintiff parole is void. The Attorney General submitted that the Authority failed to provide the plaintiff with knowledge of submissions made by family members of Dr Chang and, accordingly, denied him procedural fairness. It follows that it was agreed that the plaintiff was entitled to an order that the decision of 20 November 2009 be quashed.

41 As I have indicated in the present case the Authority on 1 October 2009 made a final decision that the plaintiff should be released on parole. That decision followed the formation of an initial intention by the Authority to make a parole order on 10 September 2009. The decision made on 1 October 2009 confirmed its initial intention to grant parole, there being no submissions to the contrary.

42 When the Department of Corrective Services wrote to the Authority on 27 October 2009 it foreshadowed an intention by the Minister to make a submission and asked that the parole order which had been made “be vacated.” Although the Act in s 153(3) contemplates submissions by the State after a final decision for the release of an offender but before the offender has been released, the Act makes no provision for the Authority to unilaterally vacate a final decision to release an offender on parole. The final decision was not affected by any error and the principles discussed by the High Court in Minister for Immigration and Multicultural Affairs v Bhardwaj [2002] HCA 11; (2002) 209 CLR 597 do not arise for consideration. If a submission is made by the State pursuant to s 153(3) the Authority is required to consider whether to exercise its power to revoke parole under s 130. To my mind the Act otherwise contemplates that having made a final decision to release an offender to parole the Authority has exhausted its function.

43 The letter from the Department of Corrective Services is dated 27 October 2009. On the same day the Authority, without any reference to the plaintiff, decided to “vacate” its previous decision. As I have indicated that decision was made without power. Even if the Authority had a power to vacate a previous decision it would, at the very least, have had to afforded the plaintiff an opportunity to make submissions in relation to this prospective decision. There is no evidence that the plaintiff was told of the letter from Corrective Services or provided with an opportunity to make any representations to the Authority in relation to it. The decision to vacate should be declared void.

44 It was argued by the plaintiff that the consequence is that, unless it has been revoked pursuant to s 130 of the Act, the decision of the Authority to release the plaintiff on parole continues to operate. However, the Attorney General submitted in these proceedings that the earlier decisions of the Authority were vitiated by jurisdictional error. That error was said to arise in the circumstance because the State made a submission to the Authority in relation to the release of the plaintiff to parole. The proposition advanced, which can only be described as extraordinary, was that even if a submission has been made after a final decision by the Authority to grant parole, because the Authority is under an obligation pursuant to s 185(2)(b) to consider any submission made to it by the Commission, the earlier decisions are, without more, vitiated by jurisdictional error. The submission is without merit. It assumes that a decision, although valid when made, can be infected by jurisdictional error merely because at a later date a submission is made by the State. The submission is both inherently flawed and contrary to the carefully considered process provided by the legislation to resolve issues in relation to parole.

45 In the letter dated 27 October 2009 the Department foreshadowed that it would seek the revocation of the plaintiff’s parole and requested a “Revocation Prior to Release Hearing.” This must be a reference to s 153(3) although the letter does not refer to the section.

46 On 5 November the State prepared a written submission which was provided to the Authority at its hearing on 6 November 2009. The transcript of the hearing before the Authority on that day makes plain that the Authority was of the view that it had validly vacated its final decision to grant parole and could properly proceed to conduct a “review hearing”. Both the transcript of the hearing and its ultimate decision indicate that the Authority was of the view that it could determine again whether or not to make a final decision to release the plaintiff on parole.

47 Senior counsel for the plaintiff submitted to this Court that in addition to reconsidering its parole order the Authority at the same time determined, pursuant to s 153(3) of the Act that it would “not...exercise its power under s 130 to revoke the relevant parole order.” That submission was founded upon the discussion in the course of the hearing on 6 November 2009, between the plaintiff’s solicitor and the chairperson of the Authority to which I have previously referred.

48 That transcript confirms that at least the chairperson did not consider that the Authority was considering whether or not to exercise its power to revoke a parole order. Indeed, as I have indicated the chairperson adopted the view that there was no parole order but that the Authority was considering whether or not to confirm its previous intention to grant a parole order. He said “that the purpose of this morning’s proceedings is to see whether the Authority maintained that intention and consequently converted it into a parole order or whether the State of NSW persuades the authority that it should not do that.”

49 In these circumstances neither consideration of the transcript or the decision which ultimately issued from the Authority indicates that the Authority gave consideration to or made a decision as to whether or not to revoke parole. The plaintiff’s submission must accordingly be rejected.

50 It follows from my analysis of the relevant events that the final decision of the Authority that the plaintiff should be released on parole remains. The decision to vacate the final decision is void and it is conceded by the Attorney General that the decision by the Authority to refuse parole which it purported to make on 20 November is also void. The plaintiff should have been released on parole on 11 November 2009. However, that has not happened. If I proceeded to make orders quashing both the Authority’s decision to vacate and the decision to refuse parole, the plaintiff would be entitled to be immediately released and would be deported from Australia. In practical terms he would thereafter not be amenable to supervision under parole. Any decision to revoke his parole would be without practical effect.

51 The Attorney General submitted that in the event that I reached a conclusion which had the consequence that the plaintiff was entitled to immediate release I should stay the operation of my orders to enable the Authority to give proper consideration to a submission from the State that the plaintiff’s parole should be revoked at a time when, if the decision was made to revoke parole, it could be carried into effect. The plaintiff opposed this course.

52 The plaintiff submitted that if I acceded to the Attorney General’s submission the consequence must be that the State would be provided with an opportunity to make submissions seeking the revocation of the plaintiff’s parole order which was only available because the plaintiff had been unlawfully detained since 12 November last year. It was submitted that the State had already had an opportunity to make an appropriate submission. When the Authority indicated at the hearing on 6 November that it was proposing to proceed down an erroneous path it was submitted the State should have assisted the Authority to avoid error and give proper consideration to the application, which the State had foreshadowed, that the plaintiff’s parole be revoked.

53 The response from the Attorney General was that although an error may have occurred the intention of the State was always plain. It had within the appropriate time frame indicated that it would be asking the Authority to revoke its parole order. It was submitted that the public interest in the administration of justice was such that I should structure my orders so that a “real” opportunity was available for the Authority to properly consider the matter in accordance with the relevant legislative provisions. It was submitted that the proper administration of justice would be achieved by ensuring that there was an opportunity for the Authority to consider whether or not to exercise its statutory powers to revoke parole at a time when such a decision could have practical effect. A letter from the Authority was tendered in the proceedings which has indicated that the Authority would be able to give consideration to the question of revocation at a meeting proposed to be held on 17 February 2010.

54 I have not found this issue easy to resolve. Although I have not heard personally from the plaintiff there could be no doubt that having been informed that a final decision had been made for his release on parole the sequence of the events that followed would be distressing to him. That distress will no doubt be increased when he is informed that the decision to vacate his parole order was invalid and the Authority thereafter failed to proceed in accordance with the Act. However, there is considerable force in the argument that notwithstanding that an error has been made by the Authority, which was not assisted by appropriate submissions from the State, the Parliament intended that in appropriate circumstances, notwithstanding that a final decision to grant parole had been made, it could be revoked. If I do not stay my orders the likelihood is that the errors which have previously been made will effectively be compounded. As I have indicated if the Authority decided to revoke parole but the plaintiff had already been deported the decision would have no practical effect.

55 I should also indicate that I have formed no view and nothing which I have said should be understood as expressing an opinion as to whether or not the Authority may now make a valid decision to revoke the plaintiff’s parole. That question has not been argued before me. All that the State has asked is that I ensure the Authority has an opportunity to consider that question. Because the State made a submission to the Authority after a final decision concerning the release of the plaintiff was made but before he was released and he remains in custody, it has been argued that the power under s 130 is engaged with the consequence that the Authority may consider whether to revoke parole having regard to the matters referred to in Regulation 23. Of particular significance, so it was argued, is the issue of accommodation or post release plans referred to in Regulation 2321(c).

56 Notwithstanding the distress which the circumstances must cause to the plaintiff I have decided that I should structure my orders to provide an opportunity for the Authority, if it is so minded, to discharge its functions according to law. It must be remembered that the plaintiff was convicted of murder and sentenced to a period of full time custody of 18 years, provision being made for him to be granted parole if the relevant authority considered that to be appropriate during the final term of 6 years of his overall sentence of 24 years. The intention of the sentencing judge was that after he had served 18 years the plaintiff could be released to parole which would mean, in the ordinary course that he would remain subject to the authority of the State of NSW. By providing an opportunity for the Parole Authority to exercise its statutory functions at a time when its decision could have practical effect the intentions of the sentencing judge and the purpose of the legislation will be achieved. To my mind the public interest in the administration of justice requires that I take that course.

Orders

1. I make orders 1 and 2 in the plaintiff’s summons. Those orders are:

(a) That the decision of the first defendant of 20 November 2009 to refuse the plaintiff parole be quashed.

(b) That the decision of the first defendant of 27 October 2009 to vacate its order of 1 October 2009 granting the plaintiff parole be quashed.

2. I stay the operation of those orders until 15 March 2010 or until further order of the court.

3. I dismiss the Attorney-General’s cross-summons.

4. I provide liberty to the parties to apply.

I note that the parties are agreed that in the present circumstances I should make no order in relation to prayers 3 and 4 in the plaintiff’s summons.

**********

AMENDMENTS:


22/02/2010 - 30 October 1991 should read 30 October 1992 - Paragraph(s) 2


LAST UPDATED:
22 February 2010