Allen v Secretary to the Department of Justice & Anor
[2008] VSC 288
•1 August 2008
| IN THE SUPREME COURT OF VICTORIA | Not Restricted | |
AT MELBOURNE
COMMON LAW DIVISION
No. 4865 of 2008
| PETER JOHN ALLEN | Plaintiff |
| v | |
| SECRETARY TO THE DEPARTMENT OF JUSTICE and ATTORNEY-GENERAL OF VICTORIA | Defendants |
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JUDGE: | HANSEN J | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 16 April 2008 | |
DATE OF JUDGMENT: | 1 August 2008 | |
CASE MAY BE CITED AS: | Allen v Secretary to the Department of Justice | |
MEDIUM NEUTRAL CITATION: | [2008] VSC 288 | |
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JUDICIAL REVIEW – Adult Parole Board – Parole granted on conditions – Urine tests reveal drug use – Cancellation of parole – Plaintiff taken back into prison to resume serving sentence – Complaint by plaintiff that imprisoned without charge, conviction and sentence – Powers of Board – Whether decision to cancel authorised by Corrections Act 1986 – Board not a public authority for purposes of Charter of Human Rights and Responsibilities – Corrections Act 1986, s 69(2), s 77.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | In person | |
| For the Defendants | Mr P J Hanks QC | John Cain, Victorian Government Solicitor |
HIS HONOUR:
Peter John Allen, who is presently serving a period of imprisonment at the Loddon Prison, filed an originating motion on 19 February 2008 against the Office of Corrections Victoria and the Attorney-General of Victoria in which he seeks orders:
(a)That a Writ of Prohibition be issued ordering the Office of Corrections and their “body” the Adult Parole Board be prohibited from processing the Plaintiff in this unlawful manner again.
(b)That a Writ of Mandamus be issued to order the Attorney-General to charge the Plaintiff with an offence of drug use or that the Attorney-General enter a nolle prosequi in respect of this allegation.
(c)That a Writ of Habeas Corpus be issued ordering the Office of Corrections to present the Plaintiff in person to the Supreme Court to hear this case.
(d)That the imprisonment of the plaintiff be declared illegal and the Plaintiff be released from custody.
At the outset of the hearing I ordered that the Secretary to the Department of Justice be substituted as defendant in lieu of the Office of Corrections Victoria. I made that order at the suggestion of counsel for the defendants who also consented to the order on behalf of the Secretary to the Department of Justice. The order was appropriate as the Office of Corrections Victoria is not a legal person, and the Secretary has the legal custody of Mr Allen pursuant to s 6A of the Corrections Act 1986 (“the Act”).
Another point to note is that the Adult Parole Board is not a party and counsel for the defendants did not appear for it.
Mr Allen swore six affidavits in support of his application. These affidavits and the grounds stated in the originating motion disclose that Mr Allen’s concern is with two matters, broadly stated. They are the correct calculation of his sentence, and his arrest and detention without further charge on cancellation of his parole by the Adult Parole Board.
The first matter, of the calculation of his sentence, was raised by Mr Allen in an application for a writ of habeas corpus filed by him on 9 January 2007 in proceeding 1422 of 2007. The papers came before Bongiorno J who by order made on the court’s own motion on 21 February 2007 appointed Mr B Kissane of counsel to conduct an independent audit of all sentences passed by all courts in Victoria upon Mr Allen and all sentences served by him between 21 May 1985 and 21 February 2007 for the purpose of assisting the court to determine whether Mr Allen is or has ever been, during that period, detained in custody otherwise than according to law. Pursuant to the order Mr Kissane reported his opinion in writing to the court on 8 March 2007. His opinion was that the completion date of Mr Allen’s head sentence was 12 April 2009 subject to a reduction of several days. That is, Mr Allen was still under sentence.
A copy of Mr Kissane’s opinion was provided to Mr Allen together with advice that his application would be heard on 27 March 2007. Having heard Mr Allen on that day Bongiorno J ordered that on or before 24 April 2007 Mr Allen file and serve an affidavit concisely setting out each fact in the report of the auditor with which he disagreed with provision for the respondents to file and serve any affidavit in reply, and the proceeding was adjourned to a date to be fixed. The proceeding has not been further heard although on 12 November 2007 and later in December and again in January this year Mr Allen has written to the court concerning the matter.
Mr Allen was released on parole on 26 March 2007. This may, and doubtless does, explain why Mr Allen took no action in his habeas corpus proceeding following the order made on 27 March 2007 until he wrote to the court on 12 November 2007. Strictly speaking that proceeding remains pending but it is not before me for determination. I am concerned only with resolution of the originating motion filed on 19 February 2008. That was emphasised by Mr Allen in his oral submissions when he said that he did not want the habeas corpus proceeding brought into the present application. Nevertheless the habeas corpus proceeding has had the virtue of producing the audit of Mr Allen’s sentences.
In my view the audit may be taken, at least for present purposes, as establishing the sentences imposed upon Mr Allen and the completion date of the head sentence. Certainly, I heard no cogent argument to the contrary.
I turn then to the second broad issue which arises out of the cancellation of Mr Allen’s parole.
The order of the Adult Parole Board that Mr Allen be released on parole was made under s 74(1) of the Act. The order directed that Mr Allen be released on parole on 26 March 2007 subject to eight standard conditions which included as condition 1 “That you do not break any law”, and three special conditions, including –
“That you undergo assessment and treatment for alcohol or drug addiction or submit to medical, psychological or psychiatric assessment and treatment as directed by the Centre Manager.”
The order also advised Mr Allen that he was “still under sentence”, that the Board may cancel the parole at any time before the end of the parole period or at any later time if he was sentenced to imprisonment for more than three months in respect of one or more offences committed during the parole period,[1] and that
“Otherwise, if you observe the conditions of the Parole order, your parole will expire on 12 April 2009.”
The order concluded with a direction to Mr Allen that within two clear working days he report to Frankston Community Correctional Services at an address stated.
[1]Sections 77(1) and (5).
The advice to Mr Allen that he was “still under sentence” was based on s 76 of the Act the effect of which is that until the parole period elapses “the person released on parole is to be regarded as being still under sentence”.
It is convenient at this point to note the following provisions of s 77 of the Act.
“(1)If a prisoner is released on parole the Board may at any time before the end of the parole period by order cancel the parole.
(2) - (4) …
(5)If the prisoner is sentenced to another prison sentence for more than 3 months in respect of one or more offences committed during the parole period, whether in Victoria or elsewhere, the Board may by order cancel the prisoner’s parole, although the parole period may already have elapsed.
(6) If a prisoner’s parole is cancelled … the Board may —
(a)authorize any member of the police force, by warrant signed by the Secretary or a member of the Board … to arrest the prisoner and return the prisoner to prison; or
(b)…
(7) If a prisoner’s parole is cancelled … —
(a)the original warrant to imprison or other authority for the person’s imprisonment is to be regarded as again in force; and
(b)any period during which the parole order was in force is not to be regarded as time served in respect of the prison sentence unless subsection (7A) applies.
(7A)The Board may direct that some or all of the period during which a parole order that has been cancelled … was in force is to be regarded as time served in respect of the prison sentence.
(8)The Board in determining whether to make vary or cancel a parole order, may arrange for the examination of the prisoner by a [registered] medical practitioner … and may require the registered medical practitioner … to give a report in writing to the Board.”
It is to be noted that the power to cancel parole in s 77(1) is not confined by reference to the circumstances in which it may be exercised. As to this it is important to note s 69(2) which provides that in exercising its functions the Board is not bound by the rules of natural justice.
Following his release on parole, Mr Allen reported directly to his supervising community corrections officer at Frankston. The Board monitored the parole and as part of this process wrote to Mr Allen on 3 April, 2 May, 8 August and 25 October 2007. As part of his parole supervision Mr Allen submitted to three urine tests conducted by Dorevitch Pathology, the results of the first two of which were reported to the Frankston office on 20 August and 16 October respectively. The August test recorded a positive reading for benzodiazepines, and the October test for amphetamine and methylamphetamine. Following these tests the Frankston office submitted a Breach Report to the Board which requested a further urine test which was collected from Mr Allen on 29 October 2007. That test, which was reported on 1 November 2007, recorded a positive reading for amphetamine.
On 1 November 2007 the Board cancelled Mr Allen’s parole and pursuant to s 77(6) of the Act issued a warrant for his apprehension and return to prison.
Mr Allen was duly arrested on 2 November 2007 and returned to prison where he remains serving his outstanding sentence.
By reason of the time when Mr Allen was on parole being added to the period to be served in accordance with s 77(7), Mr Allen’s sentence end date has increased to 12 November 2009. That is deposed to in an affidavit sworn by Michael Francis Carroll, Assistant Commissioner, Offender Management Services of Corrections Victoria.
I have earlier set out the orders sought in the Originating Motion. The orders are sought on the grounds, 13 in all, specified in the originating motion. Ground 1 states that:
“The Office of Corrections and their ‘body’ the Adult Parole Board acting on behalf of the State of Victoria breached a duty of care in that they impaired or did an act that cuts across the rule of self-incrimination and medical privilege resulting in the plaintiff being unlawfully imprisoned by an allegation of drug use.”
Ground 2 complained that between 13 September 2007 and 1 November 2007 the Office of Corrections breached a duty of care and impugned Mr Allen’s right to privacy and not to incriminate himself by, without lawful excuse, procuring the release of the Dorevitch medical file, and denying him due process of law. It is then stated in ground 3 that the actions of the Office of Corrections and their “body” the Adult Parole Board offended the Westminster system, 800 years of the English Common Law and the Victorian system of due process under s 70 of the Drugs, Poisons and Controlled Substances Act 1981, the Sentencing Act 1991, the Corrections Act 1986 and the Victorian Charter of Human Rights and Responsibilities. In the further grounds it is complained that the Office of Corrections through their Adult Parole Board circumvented due process of law in that they made an allegation against Mr Allen (of drug use), cancelled his parole and imprisoned him without charge, trial or sentence under law. In these circumstances Mr Allen complains that his arrest and detention in prison is unlawful. Mr Allen further complains that despite having drawn his unlawful treatment to the attention of the Attorney-General, the Attorney-General had not done his duty to correct the abuse of due process of law, and had abused his duty of care to Mr Allen under the Charter of Human Rights and Responsibilities.
Several points arise on the face of the orders sought and the grounds advanced by the plaintiff which it is convenient to deal with now.
The first point is that the Adult Parole Board is established by s 61 of the Act as an independent body with the powers and functions set out in the Act. The Board is not “a body” of the “Office of Corrections” as referred to in the originating motion.
The second point is that neither by the Act nor otherwise does the Attorney-General have power to review, set aside or vary decisions or orders of the Board.
The third point is that pursuant to s 4(1)(k) of the Charter of Human Rights and Responsibilities the Board has been declared not to be a public authority for the purposes of the Charter; see the Charter of Human Rights and Responsibilities (Public Authorities) (Interim) Regulations 2007. Furthermore, the Charter of Human Rights and Responsibilities does not impose on the Attorney-General a duty of care to Mr Allen. Nor in my view does the Attorney-General owe a duty to Mr Allen as contended in the grounds.
The fourth point is that the application for a writ of habeas corpus may be put to one side. In the usual way a gaol order was signed and Mr Allen attended the hearing and argued his case.
In oral submissions Mr Allen developed his contentions in support of the orders sought (other than for a writ of habeas corpus). In addition to those submissions I also have regard to all that is stated in the originating motion and the affidavits in support.
Pointing to the preservation of his statutory and common law rights in s 47(2) of the Act, he submitted that nothing in the Act relating to the performance of its functions by the Board could affect his rights such as the right to be heard, to remain silent, not to self-incriminate and to a fair trial. Hence, he submitted, when he was arrested and returned to custody without being charged with an offence and convicted in accordance with the law, including being sentenced in conformity with the Sentencing Act, he was denied his rights in and pertaining to the usual curial process including the right of appeal. Having been dealt with in an “unlawful manner”, his imprisonment was and should be declared illegal and he should be released from custody.
An alternative head of relief was that the Attorney-General should charge him with an offence of drug use or enter a nolle prosequi in respect of any such alleged offence. It was appropriate to order the Attorney-General to so act as he was responsible to maintain the rule of law and he should act where the Board had subjected Mr Allen to arbitrary treatment.
The answer to these submissions lies in the power of the Board to cancel parole considered in the context of the relevant facts and circumstances. Those facts and circumstances are the conditions on which parole was granted, in particular condition 1 and the special condition quoted earlier, the positive reading for drugs in the results of the urine tests and the Breach Report to the Board.
As to the three urine tests it is important to note the following. First, both the quoted special condition and s 77(8) authorised the Board to require the third urine test and to require that the medical practitioner report to the Board. The third test again recorded a positive reading for amphetamine. Secondly, the use of drugs as disclosed by the urine tests indicated a breach of condition 1, that Mr Allen not break any law. It was also pertinent to whether assessment and treatment for drug addiction was appropriately to be managed on parole.
In these circumstances the Board had a clear basis on which to cancel Mr Allen’s parole and issue the warrant for his arrest and return to prison. In accordance with s 77(7), on the parole being cancelled the original authority for his imprisonment was again in force. Thus, since Mr Allen’s arrest and return to prison his continued detention has been pursuant to the sentences previously imposed under which, as mentioned earlier, the head sentence had until a little before 12 April 2009 to run. This being the case, although Mr Allen may have committed an offence or offences in relation to the possession and use of drugs in the period while he was on parole, he has not been charged with any such offence and his continued detention is not as and by way of punishment for any such offence. His return to, and continuance in, detention is due to the cancellation of his parole which was within the power of the Board to order in the circumstances. Furthermore, in so ordering the Board was not bound to observe the rules of natural justice.
For these reasons the orders sought by Mr Allen and set out at para [1(a) and (d)] above must be refused. So also must the order set out at para [1(b)] above be refused. This seeks a writ of mandamus against the Attorney-General. In the first place, it lies within the province of the prosecuting authorities as a matter of administrative discretion to charge a person with an offence or enter a nolle prosequi. For that reason and because the Attorney-General is not under a public duty to lay criminal charges or enter a nolle prosequi, mandamus could not be ordered. In any event, the real issue in the case concerns the Board’s actions which were authorised by the Act.
The originating motion will be dismissed.
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