Attorney General for New South Wales v New South Wales State Parole Authority - [2006] NSWSC 865

No judgment structure available for this case.

CITATION: Attorney General for New South Wales v New South Wales State Parole Authority & Anor [2006] NSWSC 865

HEARING DATE(S): 14 & 17 August 2006

JUDGMENT DATE :
25 August 2006

JURISDICTION: Administrative Law List

JUDGMENT OF: McClellan CJatCL

DECISION: 1. Summons dismissed; 2. Plaintiff to pay second defendant's costs.

CATCHWORDS: ADMINISTRATIVE LAW - JUDICIAL REVIEW - error of law on the face of the record - jurisdictional error - mandamus - certiorari - statutory relief - decision of the Parole Authority - determination to release on parole - serious offender - exercise of power under the Crimes (Administration of Sentences) Act 1999 - legislation amended in 2004 - interpretation of transitional provisions - whether the legislation applied as amended - meaning of “pending” - meaning of “commenced consideration” - process for considering release on parole by the Parole Authority - steps taken and reports received in administrative process - reasons stated for determination - whether Authority considered all relevant matters - safety of the community - need to maintain public confidence in the administration of justice - meaning of “public confidence” - nature and circumstances of the offence - likely effect on victim’s family of the offender being released on parole - whether Authority considered relevant recommendations, observations and comments made by the sentencing court - meaning of “sentencing court” where a life sentence was redetermined - timing of reconsideration of decision not to grant parole - whether timing complied with statutory scheme - power to reconsider parole if circumstances of manifest injustice - whether Authority considered false or misleading information

LEGISLATION CITED: Crimes (Sentencing Procedure) Act 1999
Crimes (Administration of Sentences) Act 1999
Crimes (Administration of Sentences) Amendment (Parole) Act 2004
Crimes (Administration of Sentences) Regulation 2001

CASES CITED: Collector of Customs v Pozzolanic (1993) 43 FCR 280
McAuliffe v Secretary, Department of Social Security (1992) 28 ALD 609
McGuinness v Cowie (2002) 29 Fam LR 441
Melhero Pty Ltd v Club X (No 2) (1997) 37 IPR 203
Minister for Immigration and Ethnic Affairs v Wu Shan Liang and Ors (1996) 185 CLR 259
R v Hall [2001] NSWSC 1125

PARTIES: Attorney General for NSW (Pltf)
NSW State Parole Authority (1D)
Maddison Hall (2D)

FILE NUMBER(S): SC 30095/06

COUNSEL: R Cogswell SC/A M Mitchelmore (Pltf)
J Galluzzo (1D)
A Haesler SC (2D)

SOLICITORS: Crown Solicitor (Pltf)
J P Gould (1D)
Legal Aid Commission of NSW (2D)

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION
ADMINISTRATIVE LAW LIST

McCLELLAN CJ at CL

FRIDAY 25 AUGUST 2006

2006/30095 ATTORNEY-GENERAL FOR NEW SOUTH WALES v NEW SOUTH WALES STATE PAROLE AUTHORITY & ANOR
JUDGMENT

1 HIS HONOUR: Ms Maddison Hall, then known as Mr Noel Compton Hall, was convicted of murder and sentenced to life imprisonment by Enderby J on 10 December 1990. On 29 November 2001 I redetermined her sentence pursuant to Schedule 1 of the Crimes (Sentencing Procedure) Act 1999 (R v Hall [2001] NSWSC 1125). I imposed a term of 22 years imprisonment with a non-parole period of 16 years and six months. The first date Ms Hall was eligible for release on parole was 31 January 2006.

2 On 18 July 2006 the Parole Authority granted Ms Hall parole. That decision is now challenged by the Attorney-General who submits before this Court that it was vitiated by legal error. This Court is not concerned with whether, having regard to relevant matters, the decision was justified. That is a matter exclusively for the Parole Authority.

Facts relevant to the offence and Ms Hall when sentenced

3 When imposing the life sentence Enderby J made the following findings:

“So the facts that the jury accepted are that you armed yourself with a deadly weapon, a shot gun which you had cut down and shortened and adapted so that it could be used in a surreptitious way. You and Higgins took off on a criminal venture which had as its aim the purchase of marihuana in the Mildura area of the State. Higgins had earlier by chance picked up the deceased who was a hitchhiker. There was conversation about drugs and him being able to obtain marihuana. Higgins brought him to your place, you took your gun but also arranged for him to be put in funds.

It can all be summed-up as you using the services of the deceased so that you could obtain drugs from him from contact that he had in the Mildura area. He was in the course of, at the time, hitchhiking to Adelaide where his parents lived. You could have had no animosity towards him at the beginning of the venture but what seems to have happened as time passed was that he failed to find the drugs which he told you he could find and you became angry with him and sarcastic and thought, rightly or wrongly, that you were being ripped off by him and that he was only using you to obtain a free lift on his way to his parents’ home in Adelaide. That seems to be the most likely explanation for what happened.

Of course, in normal circumstances, such a state of mind would not be expected to lead to such a terrible crime but in your case it did. On the evidence, the inference is over-whelming that you just decided to kill him. It may be suggested that perhaps your earlier consumption of drugs on the night in question in some way contributed to you forming the intent to kill but nothing has been put to me about that and I could not be satisfied about it. There was evidence that the deceased had taken some drugs and there was evidence that Higgins had taken some drugs, but there was very little evidence that you had taken any, except much earlier. So at the time in question the evidence is that you were not affected in any way. During the trial you yourself made no claim to have been affected by drugs.

The opinion I have formed – and I am sure it is the opinion the jury formed – is that you are unhappily the sort of person who, when placed in a situation of that kind, where you believed as I have said, rightly or wrongly, that you were being ripped off, was capable of cold-bloodedly reacting in the way you did. There is no evidence of provocation by the deceased, it was just a simple decision on your part to brutally snuff out the life of a young man. You shot him first in the back and that, on the medical evidence, would have eventually caused his death in any event, but before he died, and having fallen to the ground, you intervened again by shooting him a second time as he lay prostrate on the ground in effect dying. On this occasion you held the muzzle of the gun close to his mouth and shot him through the mouth and blew the back of his head away.

It is not necessary to say any more. There are no mitigating circumstances. There could not be any. I sentence you to penal servitude for life.”

4 When I later redetermined Ms Hall’s sentence I said:

“The applicant was first received into Long Bay prison, where, for a time, she was held with an A2 classification. Although she received some adverse reports, she generally received positive reviews. She was drug dependent when admitted but underwent a methadone program. With time it would appear the applicant is no longer dependent on drugs, although there is evidence of continued marijuana usage for a greater period of time. However, the applicant presently appears not to be using that substance.

The applicant was later transferred to Maitland were she performed well. In 1996, following favourable reports, she was transferred to Junee with a B classification.

It appears that it was sometime before 1998 that the applicant first raised with the prison authorities, her claims to be a female. She claimed to be entitled to a transfer to a female gaol and the Serious Offenders Management Committee recommended her transfer to Mulawa which occurred on 14 August 1999. At that prison, problems seemed to have arisen, which included the allegation of sexual assault. As a result of these problems, the applicant was transferred and has since been held in the Acute Crisis Management Unit at Bathurst Correctional Centre since February 2001 under the status of a female. She has received excellent reports from that centre.

The sexual assault matters did not ultimately proceed. The complainant was released from prison and, I understand, travelled to New Zealand. There being no evidence, the matters were “no billed.” The charges are not relevant to the decision which I must make.

The Department of Corrective Services, having concerns in the matter, carried out an investigation. Superintendent Lee Downes provided a report, as a result of which Acting Commissioner Woodham, on 9 November 2001, wrote to the Serious Offenders Review Council, asking that the applicant be managed in a male prison and be given a male classification.

During the investigation, Superintendent Downes interviewed the applicant. In the course of the interview, the applicant speaks of the difficulties with her sexual identity and her involvement with drug taking within the complex at Junee. It is clear that the applicant has been involved in a number of relationships and has offered sex to inmates in return for drugs within the prison system.

She was asked by Superintendent Downes about the circumstances of the murder and responded:

“At that stage I just denied it to him because I denied it to him before. But I always knew that I had done it and I accepted responsibility for it. I regret it tremendously. I am not saying I would trade places – if I could go back not even with what I know now. I could go back to the day before it happened I’d guarantee it wouldn’t happen. I would have done things differently, I wouldn’t have gone that day, I would have stayed at home, especially because knowing what the outcome of the day was. Regards the fact that I got life that’s got nothing to do with it. I’m just not happy that things got out of control and someone lost their life. As I said I will do whatever time I have to do for whatever I’ve done. I’ve got no issue with that … I regret terribly that he died. He was a nice person. Things just got out of control and he died.”

The applicant gave evidence before me. She told of her recent work experience in prison and I was shown examples of her craft, using recycled materials. She is also undertaking a course of study in community work and hopes ultimately, to undertake a university course through Charles Sturt University. She told the court of her progress towards gender reassignment, including her understanding that she may have a full reassignment, including surgery, within nine months.

The applicant’s use of drugs and problems with her gender status have been examined by the Department of Corrective Services. In a letter to the Serious Offenders Review Council, dated 22 October 2001, Alcohol and Other Drug worker Trezise, reported as follows:

“Ms Hall is always polite and willing to work whenever we have met for counselling. Also she displays a realistic view of her A & OD and Transgender issues, her incarceration and potential difficulties associated with her possible release from custody.

Ms Hall has stated on numerous occasions that her substance use was a way of coping with the stress related to her early sexuality conflicts. She feels that as she has now fully accepted herself for who she is there will no longer be any conflict that requires the use of drugs as a way to escape. Ms Hall certainly does appear to have a healthy self esteem in regards to her sexuality and gives every indication that other people’s opinion of her transgender status no longer matters.

Ms Hall also appears to have overcome her drug use and expresses the view that she no longer needs or desires drugs and has too much to lose by returning to substance use.

I have discussed at length with Ms Hall the possibility of using substances to cope with difficult situations if she is released from custody and whilst she feels that this will not be the case, she wants to maintain regular contact with the counsellors at the Gender Centre for support.

In this worker’s professional opinion, Ms Hall has recovered from her past addictions and is looking forward without them, however, she would benefit from ongoing support from the counsellors at the Transgender Centre whilst incarcerated and in the community. Ms Hall appears to have realistic goals and expectations of herself if she is released from custody but will need support with her reintegration back into the community.”

The applicant has been assessed by Dr William Lucas, a forensic psychiatrist. In a report dated 21 June 2000, he concluded:

“Ms Hall’s only psychiatric diagnosis is gender identity disorder, trans-sexual type. The diagnosis is recent, in the official sense, but she has given a history of seeing a general practitioner in 1985, this diagnosis being made and apparently some form of treatment instituted. It would be interesting to have corroborating information from this general practitioner or Ms Hall’s relatives, if any at that time knew of her difficulties.

I do not think there is sufficient information to make a personality diagnosis. Ms Hall has a history suggesting anti-social traits but drug abuse possibly clouds the picture and if sexual identity problems did arise many years ago these two [sic] would have to be taken into account. Anti-social personality traits may still be present but they are likely to have moderated over the years. Ms Hall’s prison record is generally favourable, as it is for most life sentence prisoners who have already served a substantial time. This is to her credit but one must always be cautious in using prison conduct to predict behaviour in the community. A long term prisoner needs to be prepared for release and carefully assessed during this process.

It should be clear from this report there are some uncertainties about Ms Hall. I would have preferred to have received a more straightforward and detailed account of the offence itself. However, I think the setting of a minimum sentence would assist both Ms Hall and the correctional authorities in planning for her eventual release. Ms Hall’s psychiatric condition, gender identity disorder, is not, as far as I can see, relevant to her crime but is a matter which will have to be dealt with by Ms Hall and the authorities during the remainder of her sentence. It will be a factor in the preparation for her release and how she is supervised in the community. The question of further medical treatment and other assistance is primarily the responsibility of her medical advisers.

The question of the possibility of a further serious offence will be of concern to the court, especially in the light of Justice Enderby’s sentencing remarks. From the psychiatric point of view, Ms Hall’s diagnosis does not provide information relevant to future violent conduct other than it could be said that the successful adoption of female identity and the continuation of treatment with hormones may well reduce her aggressiveness. The offence occurred when she was involved in drug use and dealing so it is essential that Ms hall is not in any way involved in drugs on release and receives counselling and supervision. If problems arise with her psychiatric treatment or she reverts to drug use problems with behaviour could well arise.”

Dr Lucas saw the applicant again in November 2001. On this occasion he concluded:

“Ms Hall’s psychiatric diagnosis remains gender identity disorder, trans-sexual type. Reference should be had to the psychiatric report of 8 September 1999 prepared by Dr Louise Newman which discussed diagnostic issues. Dr Newman excludes additional diagnoses such as psychosis or mood disorder. A similar assessment was made by Dr Parmegiani who saw Ms Hall in Junee during 1998.

My assessment of Ms Hall is consistent with those of Dr Newman and Dr Parmegiani.

My reassessment of Ms Hall indicates that she is now more settled in prison, although not in an institution for female inmates, and that her mental state is stable. She had no complaints indicating depression and she has been free of thoughts of self-harm and has not attempted to injure herself at Bathurst Correctional Centre. It should be noted that when I first saw her she had been in Mulawa for six weeks. It remains a good question as to how well Ms Hall and that institution had been prepared for her arrival. From November that year she was in a number of other prisons, segregated from male inmates and in a situation of personal and legal uncertainty. It seems she has responded to a more stable placement and an opportunity to work, study and form relationships with staff.

Ms Hall has sensible and realistic plans for her future. She intends to pursue studies while still in prison and has ideas about how she might resettle in the community following her release.

Her remaining years in prison may not be without difficulty in relation to classification, but I believe that both she and the Department of Corrective Services will be assisted by the setting of a minimum sentence so that appropriate planning can be undertaken. There are a number of possible classifications available once her sentence is determined: she could remain in Bathurst, be transferred to Emu Plains or, perhaps less appropriately, be returned to Mulawa. As far as I know the management of her gender disorder has been satisfactory and professional support is available for future treatment.

At the time of the killing which led to her conviction for murder, Ms Hall was involved in drug abuse. There were indications of antisocial traits, as described in my previous reports, but these are likely to have modified over the years. If Ms Hall’s gender disorder is well managed and she is able to resettle satisfactorily in the community, and avoid drug abuse, then the chances that she will reoffend in a serious fashion will be substantially reduced. She does not require treatment for a major psychiatric disorder but if needed psychiatric assessment and support can be provided during the remainder of her sentence and when she returns to the community.

Ms Kylie Lander, a clinical psychologist, assessed the applicant when she was in the Junee Correctional Centre. In her report, dated 16 May 1997, she summarised her findings as follows:

“Mr Hall was compliant and communicative during the assessment process. He appears to accept full responsibility for his crime and discussed his regret for having committed the act. Mr Hall stated that he now has an extremely high frustration tolerance level and described the interventions he uses to manage stressful or potentially volatile situations. These interventions demonstrate that Mr Hall not only has the capacity to regulate his behaviour and enact non-violent coping strategies, but that he is able to plan ahead and engage in decisional balancing.

With regard to the results of the MMPI-2, it would appear that Mr Hall has in the past had difficulties with authority figures. Mr Hall acknowledges this, but accounts from both Mr Hall and Correctional Staff indicate that this is not currently a problem. Mr Hall also acknowledges social non-conformity as an issue for him, but the manner in which Mr Hall exhibits his social non-conformity, namely his feminine appearance, is not pertinent to his capacity to handle aggression

It is the author’s opinion that Mr Hall does possess a number of strategies for dealing with stress and anger. His specific coping skills, in addition to his global coping skills appear to have been effective. Mr Hall has no internal charges of a violent nature on record.”

Evidence was tendered of the applicant’s criminal history before the offence of murder. The record contains convictions for drug offences and a number of offences for dishonesty. I have no doubt that drugs played a significant part in all those matters. The applicant was taking drugs at about the time of the murder, although I have already related Enderby J’s comments in that regard.

I am required, by clause 3 of Schedule 1, when redetermining the applicant’s sentence to have regard to:

“(1)(a) all of the circumstances surrounding the offence for which the sentence was imposed, and

(b) all offences, wherever and whenever committed, of which the offender has been convicted …”

I must also have regard to the matters identified in clause 7 of the Schedule, being:

“(a) any reports on the offender made by the Review Council, and any other relevant reports prepared after the offender was sentenced, that are available to the Supreme Court, and

(b) the need to preserve the safety of the community, and

(c) the age of the offender (at the time the offender committed the offence and also at the time the Supreme Court deals with the application), and

(d) in the case of an offender sentenced before 12 January 1990 … the fact that the sentencing court:

(i) would have been aware that an offender sentenced to imprisonment for life was eligible to be released on licence under section 463 of the Crimes Act 1900, and

(ii) would have been aware of the practice relating to the issue of such licences, and

(e) any other relevant matter.”

I am also required to have regard to the matters provided by subcl 3 of clause 7, but it is not necessary for me to relate them.

I have, when considering this application, had regard to the various reports of the Serious Offenders Review Council to this Court. I have identified in these reasons some matters of particular relevance from those reports, but I indicate that I have had regard to the whole of the material contained within them.

It is submitted by the Crown that, although there may be significant factors favouring a redetermination of the applicant’s sentence, there are other matters mitigating against that course. The submission that the Crown makes is that I should not proceed to redetermine the applicant’s sentence, but indicate that, having regard to a number of matters, that decision should await a further two or three year period. It is submitted that the applicant has lied to the prison authorities about her relationships, claiming a number of de facto partners, has been ambivalent about accepting responsibility for the murder, and has denied having a drug problem.

I accept that at times the applicant has not been accurate and may not have been truthful about all of her relationships. She says that this occurred out of a concern for the other person involved and not to assist herself. I accept this explanation as generally correct. In any event, I do not believe these matters would disentitle the applicant to a redetermination of her sentence.

With respect to the murder itself, I have referred to the original difficulty the applicant had in this respect but now believe her position has genuinely changed. Drugs remain a significant potential problem, but I am persuaded that the applicant has been, for some time, clean, and maintains a determination to avoid drugs in the future. I do not believe the apparent prostitution of herself in Junee prison, a matter adverted to by the Crown, would disentitle the applicant to have her sentence redetermined. Nor am I of the view that the difficulties which the applicant has experienced in her gender identification, and the fact that her reassignment is not yet complete, are matters which would preclude a redetermination.

These matters remain significant problems for the applicant. They will have to be addressed and, ultimately, her capacity to function in the general community will be, in part, dependent upon the success of the gender reassignment. However, those difficulties are difficulties faced by members of the community, no doubt, who have never experienced a custodial sentence, and, accordingly, I do not believe those matters should preclude a redetermination at this time.

R v Alexander

I accept that the applicant has made progress towards her rehabilitation which will be assisted if I now determine a term for her sentence. She is now remorseful and has real insight into her crime. She will obviously have ongoing difficulties, both within prison and perhaps on her subsequent release because, of her gender difficulties. She will need considerable supervision and assistance if she is to be successfully rehabilitated into society.

Mindful of these matters, I believe it appropriate for me to set a specified term for the sentence. I also indicate that in my opinion the particular needs of the applicant make plain that, upon her release, she will require considerable supervision and assistance if she is to successfully adapt to her role as a woman in society and remain free of drugs.”

The Attorney General’s challenge

5 The Attorney-General claims both prerogative relief and orders pursuant to s 156 of the Act. The amended summons is in the following terms:

“Relief Claimed

1. Relief in the nature of certiorari quashing the determination of the First Defendant of 18 July 2006 granting the Second Defendant Parole.

2. Relief in the nature of mandamus directing that the First Defendant determine the Second Defendant’s eligibility for parole in accordance with law.

Crimes (Administration of Sentences) Act

4. Such other orders as the Court thinks fit.

Grounds

Crimes (Administration of Sentences) Act

Crimes (Administration of Sentences) Amendment (Parole)Act

1. There is an error of law apparent on the face of the record of the proceedings as in making its determination in relation to the Second Defendant, the First Defendant failed to have regard to the need to protect the safety of the community, in accordance with s 135(2)(a) of the Act, and the concluding words of s 154(2) of the Act.

2. There is an error of law apparent on the face of the record of the proceedings as in making its determination in relation to the Second Defendant, the First Defendant failed to have regard to the need to maintain public confidence in the administration of justice, in accordance with s 135(2)(b) of the Act.

3. There is an error of law apparent on the face of the record of the proceedings as in making its determination in relation to the Second Defendant, the First Defendant failed to have regard to the nature and circumstances of the offence to which the offender’s sentence relates, in accordance with s 135(2)(c) of the Act.

4. There is an error of law apparent on the face of the record of proceedings as in making its determination in relation to the Second Defendant, the First Defendant misconstrued the requirement imposed by s 135(2)(g) of the Act.

5. There is an error of law apparent on the face of the record of the proceedings as in making its determination in relation to the Second Defendant, the First Defendant failed to comply with the obligations imposed by s 154(2) of the Act.

6. The First Defendant made a jurisdictional error in the proceedings in that, having refused parole on 16 February 2006, s 143A of the Act precluded further consideration of parole in respect of the Second Defendant until 60 days before the anniversary of her parole eligibility date, that is until 2 December 2006.

And in the alternative:

Crimes (Administration of Sentences) Amendment (Parole) Act

Relevant legislation

6 The Parliament enacted the Crimes (Administration of Sentences) Act, which made provision for parole, in 1999. The Act was amended in a manner relevant to this matter in 2004, the amendments commencing on 10 October 2005. Amongst other changes the amendments abolished the Parole Board and provided that the future administration of parole would be carried out by the Parole Authority. Being convicted of the offence of murder, Ms Hall was required to be dealt with under the legislation as a “serious offender.”

7 The original form of the Act provided that offenders could only be released if there was a Parole Order in place (s 127). The process for making Parole Orders for “serious offenders” was the subject of Part 6 Div 2 Subdivision 3 of the Act.

8 The first stage of the process was referred to as “preliminary consideration by the Board” which was required to occur at least 60 days before the offender was eligible for release (s 143(1)(a)) or at least 21 days if the consideration had been deferred because relevant information was not available (s 143(2)). On, or immediately after, giving preliminary consideration to a matter the Board was required to formulate and record its initial intention as to whether or not it would make a parole order (s 144).

9 If the Board formed an initial intention to make a parole order, then the Board was required to give preliminary notice of its intention to victims of the offender, as recorded in the Victims Register (s 145 of the Act and s 222 of the Regulation). If the Board formed an initial intention not to make a parole order the Board was required to give preliminary notice of its intention to the offender (s 146). In both cases, the notices were required to state that an opportunity to make submissions to the Board could be made if the victim (under s 145(2)) or offender (under s 146(2)) lodged a notice of intention to make submissions with the Secretary of the Parole Board within a specific period of at least 14 days.

10 A hearing date was required to be set if a notice of intention to make submissions was lodged in either circumstance by the victim or offender (s 145(3)(b) and s 146(3)(b)). Notice of the hearing and the opportunity to make submissions in reply was required to be given to the offender, in the case of an intention to grant parole, or the victim, in the case of an intention not to make the parole order (s 145(3)(a) and s 146(3)(a)). The purpose of the hearing was for the Board to receive and consider both the offender and the victim’s submissions. The Board could postpone or adjourn a hearing.

11 The second stage of the process was the making of a final decision by the Board. If no notice of intention to make submissions had been lodged then the Board would confirm its initial intention to make or not make a parole order (s 148(1)(a) and (c)). If a notice of intention to make submissions was lodged, the Parole Board would reconsider its initial intention to make or not make the Parole Order, taking into account the submissions made at the hearing (s 148(1)(b) and (d)). The Board could make a final decision or give reasons for deferring the decision (s 149(1)). A final decision could be deferred once only and not for longer than 2 months (s 149(2)). Where the Board decided to make a Parole Order, it would make an order directing release, which specified a day in accordance with the regulations and any conditions imposed (s 149(3) and s 150(3)).

12 The amending legislation did not alter the process of determining whether a person should be released on parole in any material way. Provisions regarding the formulation of the Parole Authority’s initial intention (s 144) and making of the final decision (s 148) are substantially the same. The terms “make a parole order” and “not to make a parole order” have been changed to “grant parole” and “refuse parole.” The intermediate process has been altered to make it necessary for the victim, where there is notice of an intention to grant parole, to apply to the Authority for the matter to be reconsidered (s 145(2)(b)). Such an application may include submissions and a request for a hearing. In the case of an intention to grant parole there will only be a hearing if the victim makes such a request (s 145(2)(c)). If the victim requests a hearing the Authority must set a date and give notice to the victim, offender and Commissioner (s 145(5)). In the case of an intention to refuse parole, the Authority now has a discretion to conduct a hearing, whether or not requested by the offender, or, if the offender requests a hearing, to determine that no hearing is warranted (s 146(1)(b)).

13 The original form of the legislation included the primary obligations of the Parole Board when considering whether to release an offender in s 135. It was in the following terms:

“(1) The Parole Board may not make a parole order for an offender unless it has decided that the release of the offender is appropriate, having regard to the principle that the public interest is of primary importance.

(2) In making a decision under this section, the Parole Board must have regard to the following matters:

(a) any relevant comments made by the sentencing court,

(b) the offender’s antecedents,

(c) the likely effect on any victim of the offender, and on any such victim’s family, of the offender being released on parole,

(d) any report prepared by or on behalf of the Crown in relation to the granting of parole to the offender,

(e) any report required by the regulations to be furnished to the Parole Board in relation to the granting of parole to the offender,

(f) the offender’s conduct to date while serving his or her sentence, including:

(i) the attitudes expressed by the offender, and

(ii) the offender’s willingness to participate in rehabilitation programs,

(g) the availability of the offender of family, community or government support,

(h) the likelihood that, if granted parole, the offender will be able:

(i) to benefit from participation in a rehabilitation program, and

(ii) to adapt to normal lawful community life,

(i) any special circumstances of the case,

(j) such other matters as the Parole Board considers relevant.”

14 As part of the amendments taking effect from 10 October 2005, s 135 was amended. In particular three new matters to which the Authority must have regard, pursuant to s 135(2), were included being ss 2(a), (b) and (c). The amended section is in the following terms:

“135(1) The Parole Authority must not make a parole order for an offender unless it is satisfied, on the balance of probabilities, that the release of the offender is appropriate in the public interest.

Drug Court Act

15 The fundamental complaint by the Attorney-General in the present proceedings is that the Authority failed to consider Ms Hall’s release under the amended legislation and accordingly failed to have regard to the matters referred to in s 135(2)(a), (b) and (c).

16 The amendments to the Act also dealt with the preparation of reports by the Probation and Parole Service and the matters to be considered by them (s 135A). The original terms of s 143 provided for the Board’s consideration of a serious offender’s possible release. The section provided no restraint on the Board’s capacity to reconsider an offender’s release following an earlier determination that they should not be released. The amending legislation provides a more structured and potentially rigid regime. It is to be found in s 143, s 143A, s 143B and the regulations prescribed for the purposes of the latter section. The relevant provisions are as follows:

“143 Consideration of parole when serious offender first eligible for parole

(1) 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.

“143A Consideration of parole in subsequent years

(1) At any time within 90 days before the anniversary of a serious offender’s parole eligibility date, the offender, if still eligible for release on parole, may apply to be released on parole.

(2) After receiving such an application, but not more than 60 days before the anniversary of the offender’s parole eligibility date, the Parole Authority must consider whether or not the offender should be released on parole.

(a) if the offender is unlawfully at large following revocation of parole, the Parole Authority is not required to consider the offender’s case until the offender is returned to custody, and

(b) if the offender is unlawfully at large for the whole of one or more years following the revocation, the Parole Authority may decline to consider the offender’s case at all in relation to that year or those years, and

(c) in any case, the Parole Authority may decline to consider an offender’s case for up to 3 years at a time after it last considered the grant of parole to the offender.”

“143B Consideration of parole so as to avoid manifest injustice

The Parole Authority may consider a serious offender’s case at any time after the offender’s parole eligibility date, and without the need for an application, in such circumstances as may be prescribed by the regulations as constituting manifest injustice.”

17 The regulations contemplated by s 143B providing for the circumstances of manifest injustice (Regulation 219A) have been made in the following terms:

(a) where parole has previously been refused and it subsequently becomes apparent that it was refused on the basis of false, misleading or irrelevant information,

(b) where the Parole Authority has previously refused to grant parole because the offender had not, due to circumstances beyond the offender’s control, satisfactorily completed a program and the offender subsequently completes that program satisfactorily,

(c) where the Parole Authority has previously refused to grant parole because suitable post-release accommodation for the offender was not available, due to circumstances beyond the offender’s control, and such accommodation subsequently becomes available,

(d) where the Parole Authority has previously refused to grant parole because the offender had not satisfactorily completed a period of external leave, due to circumstances beyond the offender’s control, and the offender subsequently completes that period of external leave satisfactorily,

(e) where the Parole Authority has previously refused to grant parole because a medical, psychiatric, or psychological report required by the Parole Authority to consider whether the offender should be released on parole was not available, due to circumstances beyond the offender’s control, and the report subsequently becomes available and indicates that it is appropriate for the Parole Authority to consider granting parole,

(f) where the Parole Authority has previously refused to grant parole because information or material reasonably required by the Parole Authority to consider whether the offender should be released on parole was not available, due to circumstances beyond the offender’s control, and that information or material subsequently becomes available,

(g) where the Parole Authority has previously refused to grant parole because an appropriate community health service required by the offender was not available to the offender, due to circumstances beyond the offender’s control, and the appropriate service subsequently becomes available to the offender,

(h) where the Parole Authority has previously refused to grant parole because the offender was charged with a further offence and the charge is subsequently withdrawn or dismissed.

18 Provision is made in s 151 for the suspension of any order releasing an offender in the event of an application to this Court. That application may be made by the offender or the State pursuant to s 155 or s 156. In the present case the State has made application pursuant to s 156 which is in the following terms:

“151(1) If:

(a) The Parole Authority decides that a serious offender should be released on parole, and

(b) the Attorney General or the Director of Public Prosecutions alleges that the decision of the Parole Authority has been made on the basis of false, misleading or irrelevant information,

the Attorney General or the Director of Public Prosecutions may, in accordance with rules of court, apply to the Supreme Court for a direction to be given to the Parole Authority as to whether the information was false, misleading or irrelevant.

(2) The Supreme Court may give such directions with respect to the information as it thinks fit”

19 Section 154 applies to an offender, such as Ms Hall, who has had their life sentence redetermined. The section, which was not materially amended in 2004, provides for particular matters which the Authority must consider in relation to an offender who has had their sentence redetermined. It is in the following terms:

Crimes (Sentencing Procedure) Act

(2) The Parole Authority, in exercising its functions under this Part in relation to a serious offender to whom this section applies:

(a) must have regard to and give substantial weight to any relevant recommendations, observations and comments made by the sentencing court, and

(b) must give consideration to adopting or giving effect to any such recommendations, observations and comments and to the intention of the sentencing court when making them, and

(c) to the extent that it declines to adopt or give effect to any such recommendations, observations and comments, must state its reasons for doing so,

and must, in particular, have regard to the need to preserve the safety of the community.”

What did the Authority do?

20 As part of its administrative process the Board prepared a schedule which identified the date upon which the Board would consider the release of each offender. The schedule, prepared in August 2005, provided for Ms Hall’s release to be considered at the meeting of the Authority proposed to be held on 24 November 2005. As it happened, this did not occur and her release was first considered at the meeting held on 28 November 2005. At that meeting her matter was deferred until the meeting of 15 December 2005 in order for a report from the Serious Offender’s Review Council (SORC) to be obtained. This report arrived sooner than expected and the Parole Authority gave preliminary consideration to Ms Hall’s matter at the meeting of 8 December 2005. The Authority formed an initial intention not to make a parole order for the following reason:

“Unable to adapt to normal lawful community life; risk of reoffending; need for further psychological counselling, unconfirmed post release plan, need to participate in external leave program.”

21 A notice that the Parole Authority would meet on 16 February 2006 to reconsider this initial intention to refuse parole was issued on 8 December 2005. At the hearing on 16 February 2006, the Parole Authority received submissions from the representative of Ms Hall and a Probation and Parole Officer and determined to refuse parole “for the reasons that were stated on 8 December 2005.” Notice of this determination was issued. However, the Parole Authority also stated that it would “stand the matter over for parole consideration to 8 June 2006.” During May, the Parole Authority received a Victim Impact Statement, from the victim’s mother (dated 31 March 2006), a further SORC report dated 28 April 2006 and a Probation and Parole Service pre-release report (dated 19 May 2006).

22 On 8 June 2006, the Parole Authority again gave consideration to Ms Hall’s release and formed an intention to grant parole. It stated as its reason as “Possible State & Victim’s Submissions.” I understand this to be a reference to the fact that before making a final determination the Authority sought submissions from the State and the victims. Notice that the Parole Authority would meet on 18 July 2006 to reconsider this initial intention was issued. On 18 July 2006 the Parole Authority received both written and oral submissions and made a final decision to authorise Ms Hall’s release on parole not earlier than 1 August 2006 and not later than 22 August 2006. At that meeting, apart from the written material referred to in [21] above, the Authority also had a supplementary pre-release report, (Parole Authority Offender Report) from Corrective Services.

23 There is a transcript of the proceedings of the Parole Authority on 18 July 2006. The Authority heard submissions from Mr Hutchins on behalf of Ms Hall and Mr Paxton for the Crown. Mr Hutchins traced the history of the Authority’s deliberations following which this exchange occurred:

“HUTCHINS: Yes, and I don’t feel there’s any point in going over all of that material so my plan is not to call the applicant but certainly the applicant is available if the Board wished to ask her any questions. But the situation is very much the same as at the last hearing, your Honour, and I can indicate I spoke to Ms Valder yesterday, she contacted me to just inquire what was happening with the second parole consideration and she certainly is as supportive as she was on the last occasion when she gave evidence. So I don’t plan to call any evidence, I just seek to go through the submissions that Ms Paxton has supplied to me. I’ve just got some specific comments and then just make some conclusions at the end of those. Firstly, but it’s really a more academic comment than a comment of any practical utility, Ms Paxton is actually referring to the wrong section 135 because this matter is, in fact, the consideration for parole commenced before the new legislation commenced. Initially an intention to refuse parole was done on 8 December 2005 which I think it was a day before the Board decided.

CHAIRPERSON: Yes, was it the 10 December?

HUTCHINS: It could have been the 10th; I know it was the 9th or the 10th.

CHAIRPERSON: It was very close to that. I think it was the 10th.

HUTCHINS: The 8th of December was a Thursday.

CHAIRPERSON: The 9th I’m told it was by my colleague.

HUTCHINS: So it was considered pursuant to the old provisions and when we had the hearing in February it was dealt with in accordance with that because when parole was refused a fresh date for review was given and it hasn’t gone into the 12 month review on application of the offender. So it’s under the old provisions of 135 but practically speaking that really doesn’t make any difference because all the amendments are redone/reordered the way the matters are. I do note but again it’s not of any significance but there wasn’t what is now 135(2)(a), the need to protect the safety of the community, that wasn’t in the old 135. That was the fundamental principle on which the Parole Board worked and has always worked and section 154 was certainly in existence then but it doesn’t need to be in existence, in my submission, it’s just really codifying the matters that are at the heart of all parole considerations.

CHAIRPERSON: Yes.”

24 No further reference is made at this stage to the issue of whether the matter was to be considered under the original legislation or pursuant to the amendments. Although reference was made by Mr Hutchins to s 135(2)(a) in the amended Act no reference is made to s 135(2)(b) and (c) as they were incorporated into the legislation. If the recorded assent of the Chairperson has meaning beyond a polite acknowledgment of the submission it could not extend to an acknowledgment that it was not necessary to consider s 135(2)(b) and (c) which were not referred to either by Mr Hutchins or the Chairperson.

25 After receiving submissions, including on behalf of the victim’s family, the Chairperson announced the Authority’s determination to release Ms Hall and gave an explanation for that determination:

“CHAIRPERSON: Thank you very much. This is a matter in which Maddison Hall was convicted under the name of Noel Compton Hall on the 10th of December 1990 by Justice Enderby on the charge of murder and was sentenced to life imprisonment. That sentence of life imprisonment was re-determined by Justice McClellan on the 29th of November 2001. Following that hearing, Ms Hall was sentenced to a term of 22 years imprisonment with a non-parole period of 16 years and six months. That non-parole period expired on the 31st of January 2006. The Authority initially considered Ms Hall’s request for parole at a meeting on the 8th of December 2005 and I note, just a particular, that on that date it was being considered under the former legislation unaffected by the amendments to the Crimes (Administration of Sentences) Act of 1999.

At that initial consideration, the Authority formed the intention to refuse parole giving various reasons for so doing, and that determination of intention to refuse parole was reviewed on the 16th of February 2006 in a hearing chaired by his Honour Judge Christie. The Authority on that occasion, confirmed the intention to refuse parole and stood the matter over for further parole consideration on the 8th of June 2006 and requested all reports, including structured post release plan with emphasis upon community reintegration and also including a report of the Serious Offenders Review Council. On the 8th of June 2006, the Authority met for a review hearing and on that occasion, I presided. I’m sorry, that was at a private meeting over which I presided and on that occasion, the Authority formed the intention to grant parole adding conditions, and indicating the reasons to reach that determination, the Authority had access to the original sentencing remarks of Justice Enderby, the redetermination of life sentence by Justice McClellan, various probation and parole pre-release reports, psychological reports, various reports from the Serious Offenders Review Council. Having formed the intention to grant parole the Authority stood the matter over until today. At the hearing today, evidence from the probation and parole officer, has not been called, although, Ms Stapleton is connected to the hearing by telephone.

Short evidence has been called from the inmate, and was called in response to a submission that was made on behalf of the victim by a friend of the family and with the consent of Mr Hutchins, who represents Ms Hall and the consent of the Authority that submission was made. And principally, today’s hearing has been concerned with a submission on behalf of the State and Ms Paxton has appeared for the Crown to present that submission. That submission is detailed and filed with the file and opposes release on parole. The Authority has now given consideration to all the material, including the State submission which strongly opposes release on parole, the victim’s submission has been noted, Mr Hutchins’ submissions and response to that State’s submission, all that material has convinced the Authority that it is appropriate to make an order, granting parole and determines that parole should be granted not earlier than the 1st of August 2006, nor later than the 22nd of August 2006, with conditions 1 to 9, 18, 20, 21, 26, 30 in regard to the Saunders family, with a special condition to follow all reasonable directions of Foley House staff and secondly, to follow all reasonable directions of Gender Centre staff.

In reaching this determination, the Authority has had regard to all matters contained in s135(2) of the Crimes (Administration of Sentences) Act 1999 and in particular, the Authority notes that in the re-determination of sentence, Justice McClellan found special circumstances in fixing the non parole period. And it is, I think, appropriate to note some of his Honour’s comments which were significant and to which this Authority had regard before reaching this determination. His Honour said,

‘In my opinion, the offence of murder committed by the applicant, involved a high degree of criminality. However, it did not involve criminality of the highest order. Nevertheless, an apparently innocent person lost his life when the applicant, impatient to achieve her own ends, shot the deceased. The murder was both chilling and cold blooded.’

His Honour went on to say,

‘I accept that the applicant has made progress towards her rehabilitation which will be assisted if I now determine a term for her sentence. She is now remorseful and has real insight into her crime. She will obviously have ongoing difficulties, both within prison and perhaps on her subsequent release because of her gender difficulties. She will need considerable supervision and assistance if she is to be successfully rehabilitated into society.’

(However, I digress to note, the evidence that Ms Hall gave today, following the submission made on behalf of the victim).

His Honour then went on to say,

‘Mindful of these matters, I believe it appropriate for me to set a specialised term for the sentence. I also indicate that in my opinion, the particular needs of the applicant make claim that upon her release, she will require considerable supervision and assistance if she is to successfully adapt to her role as a woman in society and remain free of drugs.’

The Authority further noted that having regard to a submission prepared on behalf of the Crown, it considers the public interest is better served by the benefits accrued from parole supervision.

The Authority notes that parole is recommended by the probation and parole officer in the pre release report. The pre release report identifies a structured post release plan which is in accord with what was suggested at the hearing of the Authority presided over by his Honour Judge Christie on the 16th of February.

The Authority further notes that parole was recommended by the Serious Offenders Review Council. The chair of the Council said, in his report of the 28th of April 2006,

‘Importantly, Council notes the inmates released for parole was now supported by the inmates probation and parole officer, who reports that the post release and accommodation plans are adequate to meet the demands imposed by the inmate’s serious medical condition.

Council assumes that the relevant persons at Foley House and the Gender Centre have satisfied themselves as to the full extent of the inmate’s medical condition and prognosis and that such persons will be in a position to provide relevant medical care during any period the inmate is within their institution.

Council would also suggest that such persons be made aware on a confidential basis, of the content of council’s initial report to the Authority which provides important details of the custodial behaviour and the available evidence of any further time spent by the inmate in fulltime custody is unlikely to advance her rehabilitation. Therefore, provided she can be strictly supervised to prevent attempts of sexual contact with third parties of a kind that could seriously imperil the health of such third parties, due to the nature of the inmate’s medical condition, it would seem to be in both the inmate’s and the community’s interest that she be released on parole under such strict supervision, rather than serve out the remainder of her term in custody and then be released without supervision, particularly, bearing in mind that her condition may have worsened in the interim.

Therefore, provided it is realistically imposed as strict conditions recommended above, that there appear to be available persons within the institutions, referred to above, who are prepared to oversee the implementation of such conditions at all times. Council will support this inmate’s release to parole on the basis of the programs recommended by the probation and parole officer.’

The Authority further had regard to the fact that the inmate’s prison performance was satisfactory, that she completed relevant custodial programs and participated in alcohol and other drug counselling and participated in psychological counselling.

The Authority further notes that she has community support, suitable post release plans, and has access to and the willingness to participate in relevant community counselling and programs upon release. The Authority stands the matter over till the 26th of October 2006 for a progress report.

In accordance with the requirements of s154 of the Act, the Authority has had regard and has given substantial weight to the recommendations, comments and intentions of both Justice Enderby and Justice McClellan in their judgments.

Now, Ms Hall, leaving this matter, there are a few matters I want to draw your attention. I have just read to you the formal determination of the Authority, it grants you parole and you’ll be released subject to their being no appeal and there is an entitlement for the Crown to lodge an appeal against this determination. But if there is no appeal, you would be released some time between the 1st of August and the 22nd of August 2006. I have referred to the large number of conditions attached to your parole and they will all be explained to you in detail before you are released and I remind you that when you are on parole, you are still serving your sentence, except that that sentence is being served in the community, subject to the strict supervision of the Probation and Parole Service and your complying with all these conditions.

I draw your attention to the fact that there is a condition there, that you are in no way to contact or attempt to contact any of the relatives of the deceased and you must not contact, communicate, watch, stalk, harass or intimidate any of the family of the deceased, and I note that in evidence to Mr Hutchins today, you acknowledged the anguish that was caused to this family by this brutal and cold blooded murder. And we note that you acknowledged that, particularly as requested by Mr Nagy on behalf of the victim’s mother. You did acknowledge that you would not venture into South Australia, but I point out to you that should you leave New South Wales, without approval, that in itself would be a breach of your parole, would be reported to the Parole Authority and your parole would be revoked.

If the situation arose that your parole needed revoking, the legislation now provides that you cannot be considered again for further parole until a period of 12 months has elapsed from the time of the revocation. The Parole Authority has itself, anguished over this determination. The Authority is particularly mindful of the immense grief and anguish your brutal crime caused to the family of the late deceased, Mr Lyn Saunders, and they have to live with that for the rest of their lives. So we have anguished over this determination, and having regard to the matters that we have mentioned in this determination, we have determined to grant you parole. We want you to succeed on parole and you will succeed on parole if you comply with every condition and particularly co-operate in that very carefully designed structured post release plan which is included as a condition of this parole.”

26 As I have indicated at the meeting of 18 July the Authority had the benefit of written submissions from the State. Those submissions were framed by reference to s 135(2) in its amended form. The State emphasised subsections (a), (d), (f) and (g) of s 135(2) in arguing that Ms Hall should not be released. The Authority also received a supplementary report from the SORC which referred to s 135(3), a new subsection included with the amendments to the Act. It is plain that the submissions made by the State and the supplementary report of the SORC assumed and were framed on the assumption that the matter was to be considered under the amended legislation.

27 Various documents from the Authority’s file were tendered by agreement. They include the document in which the Authority recorded its decision. The preamble to that document reads as follows:

“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.

The Parole Authority also had regard to the following matters relevant to Section 135 of the Crimes (Administration of Sentences) Act 1999 No 93.”

28 The second paragraph of this preamble is a reference in terms to the matters raised for consideration by s 135(2).

29 The copy of the document recording the decision in the Authority’s records circles a number of items. The circled items were included in the formal notice of its decision which is in the following terms:

“Maddison HALL (MIN: 101173)

On the 18 July 2006 Maddison HALL was granted parole, by the State Parole Authority, to be released from custody no earlier than 1 August 2006 and not later than 22 August 2006.

The following reasons were identified by the Authority in respect of the release of Maddison HALL on parole:

§ The Judge found special circumstances in fixing the non-parole period;

§ The Parole Authority, having regard to a report/submission prepared on behalf of the Crown considers the public interest is better served by the benefits accruing from parole supervision;

§ Parole is recommended by Probation and Parole Service;

§ Parole is recommended by the Serious Offenders Review Council (SORC);

§ The offender has had satisfactory prison performance;

§ The offender has completed relevant custodial programs (including Alcohol & Other Drug Work Course, Health Promotion Workshop and a Relapse Prevention Course. The offender has also completed other educational courses during her incarceration);

§ The offender has participated in alcohol and other drug counselling;

§ The offender has participated in psychological counselling;

§ The offender has community support;

§ The offender has suitable post release plans; and

§ The offender has access to and is wiling to participate in relevant community counselling and programs upon release.”

Ground A: application of the wrong legislation

30 Although the matter was originally listed for consideration at the meeting of 24 November 2005 the Parole Authority held its first hearing in relation to Ms Hall’s eligibility for parole on 8 December 2005. By this time the amendments to the Act had commenced (on 10 October 2005) and, unless otherwise provided, required the matter to be administered and considered pursuant to the amended Act.

31 When the Act was amended the Parliament also enacted transitional provisions to provide that matters in respect of which the Parole Board had commenced consideration, when the amendments came into force, should be completed under the relevant provisions of the Act without amendment.

32 The relevant provisions which were inserted into Schedule 5 of the Act by Schedule 1 of the Amendment Act, included, in cl 75 of Schedule 1 the following:

that was pending before the former Parole Board

as if that Act had not been enacted

33 I have included above the transcript of the exchange between the Chairperson and Mr Hutchins on 18 July 2006. In that exchange Mr Hutchins indicates that at its meeting of 8 December, the Authority considered the matter under the former legislative regime. Although I could not conclude that the Authority agreed with this submission, it would seem likely that this was the case, particularly having regard to the fact that the Authority had received legal advice that it should determine any matter included in a list for consideration prepared before 10 October, in accordance with the original legislation, even if it was first to be considered at a meeting of the Authority held after that date.

34 However, that is not an end of the matter. At its meeting of 16 February 2006 the Authority refused parole and stood the matter over until 8 June 2006. At its meeting on the latter date the Authority formed an initial intention to grant parole and then set the hearing for 18 July 2006. Whatever the Authority may have done as part of its first decision is now of marginal if any relevance. It is the legality of the decision on 18 July 2006 which must now be considered.

35 It was submitted on Ms Hall’s behalf that in making its determination on 8 December 2005 the Authority was correct to deal with the matter under the original legislation.

36 The submission had three alternative limbs. Firstly, it was submitted that the Board was seized of the matter when Ms Hall’s sentence was determined. Secondly, it was submitted that the Board was seized of the matter at the point at which administrative action was initiated to gather the required reports to enable the Board to make a determination. Thirdly, it was submitted that because the Board could determine its own procedures, it could determine when it was seized of a matter and did so by determining that it had commenced to consider the matter before 10 October 2005 when the amended legislation commenced.

37 I cannot accept any of these submissions. Ms Hall tendered evidence without objection from the Attorney-General, which indicates that the preparation of reports for the Authority with respect to Ms Hall would have commenced prior to October 2005. That process was initiated by the administrative personnel who support the Authority. However, it was not until, at the earliest 28 November 2005, but, in my opinion, the meeting of 8 December 2005 that the Authority commenced to consider the matter. That consideration was required by s 143 which in my opinion is directed towards the acts of the Authority and not of any person or body providing information or assistance to it. By defining a date by which the Authority must consider whether the offender should be released, the Act imposes an obligation on the Authority and not its staff. It is that same obligation which is invoked by the transitional provisions. To my mind notwithstanding that it is for the Authority to manage its own affairs it is not thereby able to determine whether the transitional provisions apply to an individual. The transitional provisions operate in accordance with their terms irrespective of the opinion of the Authority. I accept the Attorney-General’s submission that:

“The Parole Authority’s consideration of an offender’s parole eligibility entails the preparation of a number of reports. However, while the Parole Authority is required to consider these reports, it has no involvement in respect of their preparation, and no power of direction as to their content. There is nothing in the provisions relating to the Parole Authority to suggest that the preparation of those reports brings a matter “before” the Parole Authority, such that all matters where reports were being prepared were matters which, on commencement of the Amendment Act, were “pending before the parole board.” From a practical perspective, in view of the fact that these reports – particularly in the case of serious offenders – may take considerable time to prepare, the choice by the legislature of the Parole Authority commencing its consideration of the matter as the point of reference by which the transitional provision operates was eminently sensible.”

38 As I have identified the statutory process requires consideration of whether to release a prisoner to be carried out in stages. The preliminary consideration (s 143) requires confirmation or reconsideration (s 148) before a final decision has been made. In these circumstances it may be readily appreciated that by referring in the transitional legislation to a matter pending, reference was intended to a matter in respect of which the Board had formed an initial intention and which was awaiting a final decision.

39 There are a number of reported decisions in relation to the meaning of the word pending, although none of them relate to the present or similar legislation (see McGuinness v Cowie (2002) 29 Fam LR 441 at [34] and Melhero Pty Ltd v Club X (No 2) (1997) 37 IPR 203). In a case where an application is made to a body or proceedings commenced within it, may be that by filing the relevant process, the proceedings become pending. However, where, as in the present case, the legislation provides for a multistage process of consideration, initiated by a statutory obligation which arises when the person is sentenced, that approach is not appropriate. The Macquarie Dictionary refers inter alia to pending as meaning “remaining undecided” or “awaiting decision.” In the context of the Act a matter is undecided or awaiting decision once the preliminary decision making of the Board has commenced and a final decision has not been made.

40 To my mind, in the present case consideration by the Authority of Ms Hall’s release commenced on either 8 December 2005 or on 8 June 2006. I am satisfied that it did not commence when the statutory requirement to bring the matter before the Authority was first reflected in the future agenda of the Board prepared by administrators.

41 Accordingly, I am satisfied that the Authority was required to consider the matter under the amended legislation. Some of the later grounds of challenge raise for consideration whether the Authority carried out this task.

Grounds 1, 2 and 3: Error of law on the face of the record: failure to have regard to matters in s 135(2)(a), (b) and (c) of the Act

42 I have previously set out the original form of s 135(2). Its amended form included new subsections (2)(a), (b) and (c).

43 Section 135(2)(a) identifies the safety of the community as a matter to which the Parole Authority must have regard “in deciding whether or not the release of an offender is appropriate in the public interest.” An obligation in almost identical terms was provided by s 154(2) which imposed that obligation on the Board under the original legislation. The submission from the State to the meeting of 18 July 2006 includes detailed submissions directed to this subsection. The matter was also addressed by the SORC report. There can be no doubt this matter was considered by the Authority.

44 Section 135(2)(c) refers to “the nature and circumstance of the offence.” Although the statutory provision was not expressly referred to by the Authority I am satisfied the Authority had regard to this matter. It could hardly be otherwise. By considering, as it did, both the remarks on sentence of Enderby J and my own remarks, the Authority inevitably had regard to the matters raised by s 135(2)(c).

45 The position with respect to s 135(2)(b) is not as clear. Although the Authority’s decision must always have been informed by the public interest, the obligation, when making a determination as to whether or not to release an offender, to have regard to the “need to maintain public confidence in the administration of justice” provides a unique matter for consideration. The obligation which was imposed on the Authority was to consider, among other relevant matters, whether the release of Ms Hall on parole might affect public confidence in the justice system. This raised for consideration whether having regard to the offence she committed, her history since incarceration and her progress toward rehabilitation, including her risk of re-offending, her release would diminish public confidence in the administration of justice. A negative answer to the question would not dictate a decision against parole, but was a matter to which the Authority must have regard.

46 Consideration of this issue raises complex questions. No doubt a decision to release a person who has committed a terrible crime could have an adverse impact on public confidence in the justice system if, as is likely to be the case, members of the public are not aware of the material considered by the Authority and the manner in which it has balanced the competing considerations suggesting either release or continuing incarceration. However, I do not believe the Authority can approach the issue in that manner. It must assume knowledge of relevant material and consider the issue having regard to its view of the likely response of an informed member of the public to the individual’s release.

47 As I have already indicated although the Authority initially determined to refuse parole, apparently considering the matter under the original legislation, I am not persuaded that this was the case with respect to the decision in July 2006. The State submissions to the July meeting were framed by reference to the amended Act. The supplementary SORC report was prepared on the same basis. Although the Chairperson noted that at its meeting of 8 December the Authority considered the matter under the former legislation he nowhere indicated that this was the approach taken in its July consideration. The Chairperson was careful to indicate that the Authority has given consideration to “all material including the State submission” and that in reaching its determination, the Authority has had regard to all matters in s 135(2) of the Crimes (Administration of Sentences) Act 1999. Although that statement may be ambiguous, the Authority’s document in which its decision was recorded states that the Authority has had regard to the “need to maintain public confidence in the administration of justice” (see para [27]). This is a clear acknowledgment that the matter has been considered under the amended Act and in particular that s 135(2)(b) has been considered.

48 Although I accept that the transcript does not contain an express reference by the Chairperson to s 135(2)(b), having regard to these various indications that the matter was being considered under the amended legislation I cannot conclude that the Authority failed to consider s 135(2)(b).

49 It is important when considering the “reasons” of a body such as the Parole Authority that the court not adopt a “fine tooth comb” approach to its published reasons: see Brennan CJ, Toohey, McHugh and Gummow JJ in Minister for Immigration and Ethnic Affairs v Wu Shan Liang and Ors (1996) 185 CLR 259 at 272; Neaves, French and Cooper JJ in Collector of Customs v Pozzolanic (1993) 43 FCR 280 at 287; McAuliffe v Secretary, Department of Social Security (1992) 28 ALD 609 at 616. This principle is obviously appropriate to the reasons of the Authority.

50 I am satisfied that this ground of challenge fails.

Ground 4: Error of law on the face of the record – misconstruction of s 135(2)(g) of the Act

51 Section 135(2)(g) requires the Parole Authority to have regard to “the likely effect on any victim of the offender, and on any such victim’s family, of the offender being released on parole.”

52 At the hearing before the Authority on 18 July 2006, Ms Hall’s representative made a submission to the Authority in relation to the impact of Ms Hall’s release on parole on the “victim”. The relevant exchange follows:

“HUTCHINS: I suggest to the Boards (sic) that what is in the submission and obviously what is in the rest of that statement is probably sufficient for the Board to take into account in relation to the impact on the victim, it is clear that the crime will have an enormous impact.

CHAIRPERSON: Yes, there’s no doubt about that.

HUTCHINS: On the deceased’s mother, no doubt about that, I have no objection to her seeking specific parole conditions at all, your Honour, to my view that is the purpose of having victim impact statements there not to stop parole because the effect on the victim is not what is taken into account at sentencing it is taken into account to work out appropriate parole conditions and where the offender residing during parole obviously it would be a ridiculous situation of Ms Hall was seeking parole in a neighbourhood where the victim’s mother resided. So there are matters to be taken into account in that regard short of their (sic) being any additional evidence by way of contact by Ms Hall with the victim’s family in particular along the lines of a threat I don’t believe that the victim’s submission’s (sic) go any higher in the system, with the Board than with appropriate parole conditions.

CHAIRPERSON: Yes, I don’t think anyone would disagree with that submission.”

53 It was submitted by the Attorney General by accepting Mr Hutchins’ submission the Chairperson acknowledged on behalf of the Authority an approach to s 135(2)(g) which was flawed. It was submitted that it is an error to confine matters arising under s 135(2)(g) to consideration of conditions of parole.

54 To my mind there is force in this submission. Section 135(2)(g) is concerned with the effect on the victim’s family of the offender being released. Assessment of that effect is not confined to considerations of conditions. Release under any conditions may have a detrimental effect on victims leading to elevated levels of anxiety or other problems for family members. However, when considering the likely effect of release on victims this must obviously be assessed in light of the conditions upon which release may be granted.

55 The exchange to which the Attorney General refers was the concluding portion of a discussion as to whether or not the Authority could, in the circumstances, receive an oral submission from a friend of the victim’s mother, the latter being overseas. The final exchange is preceded by an acknowledgment that the crime will have an enormous impact on the victim. The discussion of conditions, and acceptance of Mr Hutchins’ submission by the Chairperson, acknowledges that in the circumstances of Ms Hall’s case conditions would be required in order to minimise the impact of her release, should the Authority come to that conclusion. The Authority allowed oral submissions on behalf of the victim’s family and also considered the victims impact statement filed by the mother and the reference to these matters in the State submission. When announcing the Authority’s decision the Chairperson stated that the Authority had noted the victim’s submission and imposed conditions which were designed to ensure that Ms Hall would have no contact with the victim’s family. Reference was also made to the acknowledgment by Ms Hall of the anguish caused to the victim’s family.

56 When announcing the Authority’s decision the Chairperson concluded by saying:

“The Parole Authority has itself, anguished over this determination. The Authority is particularly mindful of the immense grief and anguish your brutal crime caused to the family of the late deceased, Mr Lyn Saunders, and they have to live with that for the rest of their lives. So we have anguished over this determination, and having regard to the matters that we have mentioned in this determination, we have determined to grant you parole.”

57 Whatever be the true intent of the Chairperson’s acceptance of Mr Hutchins’ submission in argument I am not persuaded that the Authority failed to properly consider the matter required by s 135(2)(g). The Chairperson made plain that the Authority was mindful of the concerns of the victim’s family. By imposing conditions the Authority gave effect to its acknowledged concerns that Ms Hall should be precluded from having any association whatsoever with the victim’s family. This gave effect to the victim’s mother’s request that if release was contemplated, Ms Hall should be prohibited from leaving New South Wales.

Ground 5: Error of law on the face of the record – failure to comply with s 154(2) of the Act

58 Section 154 of the Act applies only to serious offenders whose sentences have been redetermined in accordance with schedule 1 to the Crimes (Sentencing Procedure) Act 1999. Ms Hall was a serious offender to whom this provision applied. The Parole Authority was aware of the need to apply this section and stated in its reasons:

“In accordance with the requirements of s 154 of the Act, the Authority has had regard and has given substantial weight to the recommendations, comments and intentions of both Justice Enderby and Justice McClellan in their judgments.”

59 The Attorney General submitted that although the remarks of the Chairperson of the Authority indicate that some attention was given to comments which I made, apart from the sentence quoted above, there is no other reference to the recommendations, comments or intentions of Enderby J. It was submitted that the Parole Authority’s treatment of the matter reflects a lack of real consideration of the issues raised by s 154. It was submitted that s 154(2) requires the Parole Authority to engage in active consideration of what the sentencing courts have had to say about the offender and the nature of the crime of which they have been convicted. It was further submitted that the Authority must have regard, and give substantial weight, to any relevant recommendations, observations and comments made by the sentencing court (s 154(2)(a)). It was further submitted that the Authority “must give consideration to adopting or giving effect to any such recommendations, observations and comments and to the intention of the sentencing court when making them” (s 154(2)(b)). Furthermore, it was submitted that if the Authority decides not to adopt or give effect to any such recommendations, observations and comments it “must state its reasons for doing so” (s 154(2)(c)).

60 Section 154 does not identify whether regard must be had to the remarks of both the initial sentencing judge and the judge who redetermined the sentence. Both judges, as happened in the present case, may in the course of their remarks on sentence make statements which the Authority may be required to consider, although, once redetermined, it is only the sentence of the judge who redetermines the matter which is operative. In my opinion the Authority must have regard to relevant remarks made by either judge. As the section is directed to a redetermined sentence and requires the Parole Authority to respond to the remarks of the sentencing judge where sentence has been determined, it would seem improbable that the legislature had in mind that the Authority would not have regard to the remarks of the judge who initially imposed the life sentence.

61 Enderby J made strong comments about the cold-blooded nature of the offence, the high degree of criminality involved and the personal characteristics of the offender which the offence revealed. When I decided to set a determinate sentence I referred to the chilling nature of the offence although I did not consider it to be of the highest degree of criminality.

62 In his submissions to the Parole Authority Ms Hall’s representative, Mr Hutchins said:

“There were certainly other matters considered by Mr Justice McClellan other than the chilling and cold blooded and I do not agree with the comment in paragraph 18 of the State’s submissions that if the Authority declines to give effect to the comments of the Sentencing Court, it must state its reasons for doing so. The comment that it’s chilling and cold blooded is certainly a description of the crime but it’s not a comment that prevents parole, it’s not a recommendation against parole, it’s not a direction against parole. So there is simply no comment of the judge that the Authority would be declining to give effect to. The only real comments that the sentencing judge made that require effect to be given to are the ones about the need for lengthy supervision because of the transgender issues and earlier drugs issues and they’re the ones the Authority is taking into consideration in requiring that there be a very structured post release plan.”

63 As the Attorney General points out in his submission if the Authority had confined itself in the manner suggested by Mr Hutchins it may have fallen into error. However, a fair reading of the Chairperson’s remarks makes plain that comprehensive consideration was given to the remarks of Enderby J and myself. Those remarks defined the nature of the crime and provide findings relevant to the circumstances of the offence and the personal characteristics of Ms Hall. In my own remarks I gave particular consideration to Ms Hall’s possible release and the matters which, at that time, I believed may require consideration when her parole was being considered. All of those matters were considered by the Authority and are reflected in its decision to release Ms Hall and the proposed conditions of her parole. In these circumstances I am not persuaded that the Authority failed to discharge its obligations under s 154(1) and (2)(a), (b) and (c).

64 With respect to the safety of the community the Authority considered both Ms Hall’s original crime, her conduct in prison and the reports of the SORC which expressly considered her risks to the community and the conditions of parole which would ameliorate those risks. Detailed attention was paid to this matter in the State’s submission which was also considered by the Authority. The Authority also records the fact that it considered the need to protect the safety of the community in the preamble to the record of its decision.

65 This ground of challenge fails.

Ground 6: Jurisdictional error – failure to comply with s 143A of the Act

66 Before the Act was amended there were no constraints upon the Parole Board again considering the release on parole of an offender whom the Authority had previously determined should not be released. That position changed with the insertion by the Amendment Act of s 143A. That section provides that once a serious offender has been refused parole, he or she cannot reapply until 90 days before the anniversary of his or her parole eligibility date. The Parole Authority cannot consider that application any earlier than 60 days before that anniversary date.

67 The Attorney-General submitted that in circumstances where the Parole Authority made a determination to refuse parole to Ms Hall on 16 February 2006 compliance with s 143A would have had the result that she was not entitled to apply for parole until November 2006 (being 90 days before the anniversary of her eligibility date of 31 January 2006). In turn, it was submitted, that the Parole Authority was not entitled to consider any such further application until December 2006 and, if it did so, its consideration would be void.

68 At its meeting of 16 February 2006, having refused parole, the Authority to “stand the matter over” until 8 June 2006. It was submitted that had the previous regime still operated, the Parole Authority would have been entitled to take this action as it could reconsider the question of Ms Hall’s parole at any time. However, it was submitted that the insertion of s 143A removed the basis upon which the Authority had previously acted, and on which it purported to act in this case.

69 The Attorney-General accepts that the time frame stipulated in s 143A may be dispensed with in accordance with s 143B of the Act, which provides that the Parole Authority may consider an offender’s case at any time after the offender’s parole eligibility in circumstances prescribed by the regulations as constituting “manifest injustice”. The regulations in clause 219A of the Crimes (Administration of Sentences) Regulation 2001 provide a comprehensive list of relevant circumstances. Subclause (c) prescribes the circumstance “where the Parole Authority has previously refused to grant parole because suitable post-release accommodation for the offender was not available, due to circumstances beyond the offender’s control, and such accommodation subsequently becomes available.” Although there is no indication that the Parole Authority turned its mind to the question of circumstances which might constitute manifest injustice, subcl (c) would have been available to allow for reconsideration of Ms Hall’s release. At the time of the February consideration Ms Hall’s need for special accommodation was identified with the observation in the pre-release report that Ms Hall “plans to seek accommodation.” In the pre-release report prepared in July the Authority is told that accommodation is now available at either Foley House or the Gender Centre. That position is confirmed in the supplementary SORC report in accordance with cl 219A(2) of the Regulation. The Review Council had, of course, advised the Parole Authority that it was appropriate to consider Ms Hall’s release, a necessary precondition provided by cl 219A(3) of the Regulation.

70 In these circumstances it is unnecessary to determine whether the Attorney-General’s submission as to the inhibition upon reconsideration is correct. However, as I understand the position, the inhibition on reconsideration by the Authority was designed to protect it from the need to reconsider the position of an offender in the short term following an application for further consideration by the offender. Where, as in the present case, the Authority initiated the further consideration, I see no reason why that decision should be set aside by this Court for the reason only that twelve months had not expired. This approach is consistent with the legislative philosophy revealed in the following passage from the Minister’s Second Reading Speech.

“As I stated earlier, where an offender is not released on parole when he or she first becomes eligible for parole, sections 137 and 143 require the Parole Board to reconsider the offender within each successive year. The offender does not need to apply to be reconsidered – it happens automatically. However, some offenders behave so poorly that they know, or should know, that they have no prospect of gaining parole. The Government believes that it is reasonable for the Act to be amended to provide that where the SPA has refused to make a parole order at the end of a non-parole period, or where a parole order has been revoked and the offender returned to custody, the SPA should not be automatically required to reconsider the offender for parole each year.

The SPA should be required to reconsider an offender’s case only if the offender applies for parole. The manifest injustice safeguard exists to protect the legitimate interest of offenders. By requiring offenders to apply for parole, the Government will reduce the number of cases to be considered by the SPA where all parties to the proceedings know that, given the circumstances, the offender will not be granted parole. The Government also believes that an offender should not be entitled automatically to a review hearing after the SPA has formed an initial intention not to release the offender on parole.”

71 This ground of appeal fails.

Ground 7: The alternative claim under s 156 of the Act

72 The Attorney-General submitted that the Authority when making its decision had regard to submissions from Mr Hutchins as to the relevance of the recommendations, comments and intentions of the respective sentencing courts which were incorrect. It was submitted that the Authority made its decision on information that was false or misleading in relation to the relevant legislative regime. Accordingly, it was submitted that the Attorney is entitled to relief pursuant to s 156.

73 In my opinion this submission must be rejected. It was a matter for the Authority to consider and apply the legislative regime provided by the Parliament. Although it was appropriate for it to receive submissions and, if persuaded that it should do so, act upon them, the nature of the submissions received did not provide information in the relevant sense. To my mind the information contemplated by s 156 is information going to the characteristics of the offence and the offender, and all matters relevant to whether or not it may be appropriate to allow their release. In the broadest sense the section has in contemplation factual information. The construction and appropriate application of the legislation does not fall into this category.

Conclusion

74 In these circumstances the Attorney General’s application fails. I repeat, as I have already indicated that it is not for this Court to review the merits of the Authority’s decision. Whether or not an offender should be released is a decision vested by the Parliament in the Parole Authority. The only function of this Court is to consider whether in making that decision the Authority may have committed an error of law. I am not persuaded that an error has been made. Accordingly, I make the following orders:

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Citations

Attorney General for New South Wales v New South Wales State Parole Authority [2006] NSWSC 865

Most Recent Citation

Hall v NSW State Parole Authority [2006] NSWSC 1411

Cases Citing This Decision

16

Haouchar v Parole Authority of NSW [2025] NSWSC 1246

McDonald v State Parole Authority of New South Wales [2023] NSWSC 1072

Kramer v State Parole Authority [2023] NSWSC 564

Cases Cited

5

Statutory Material Cited

4

Regina v Hall [2001] NSWSC 1125

Elliott v Nanda and Commonwealth [2001] FCA 550

CITATION:	Attorney General for New South Wales v New South Wales State Parole Authority & Anor [2006] NSWSC 865
HEARING DATE(S):	14 & 17 August 2006
JUDGMENT DATE :	25 August 2006
JURISDICTION:	Administrative Law List
JUDGMENT OF:	McClellan CJatCL
DECISION:	1. Summons dismissed; 2. Plaintiff to pay second defendant's costs.
CATCHWORDS:	ADMINISTRATIVE LAW - JUDICIAL REVIEW - error of law on the face of the record - jurisdictional error - mandamus - certiorari - statutory relief - decision of the Parole Authority - determination to release on parole - serious offender - exercise of power under the Crimes (Administration of Sentences) Act 1999 - legislation amended in 2004 - interpretation of transitional provisions - whether the legislation applied as amended - meaning of “pending” - meaning of “commenced consideration” - process for considering release on parole by the Parole Authority - steps taken and reports received in administrative process - reasons stated for determination - whether Authority considered all relevant matters - safety of the community - need to maintain public confidence in the administration of justice - meaning of “public confidence” - nature and circumstances of the offence - likely effect on victim’s family of the offender being released on parole - whether Authority considered relevant recommendations, observations and comments made by the sentencing court - meaning of “sentencing court” where a life sentence was redetermined - timing of reconsideration of decision not to grant parole - whether timing complied with statutory scheme - power to reconsider parole if circumstances of manifest injustice - whether Authority considered false or misleading information
LEGISLATION CITED:	Crimes (Sentencing Procedure) Act 1999 Crimes (Administration of Sentences) Act 1999 Crimes (Administration of Sentences) Amendment (Parole) Act 2004 Crimes (Administration of Sentences) Regulation 2001
CASES CITED:	Collector of Customs v Pozzolanic (1993) 43 FCR 280 McAuliffe v Secretary, Department of Social Security (1992) 28 ALD 609 McGuinness v Cowie (2002) 29 Fam LR 441 Melhero Pty Ltd v Club X (No 2) (1997) 37 IPR 203 Minister for Immigration and Ethnic Affairs v Wu Shan Liang and Ors (1996) 185 CLR 259 R v Hall [2001] NSWSC 1125
PARTIES:	Attorney General for NSW (Pltf) NSW State Parole Authority (1D) Maddison Hall (2D)
FILE NUMBER(S):	SC 30095/06
COUNSEL:	R Cogswell SC/A M Mitchelmore (Pltf) J Galluzzo (1D) A Haesler SC (2D)
SOLICITORS:	Crown Solicitor (Pltf) J P Gould (1D) Legal Aid Commission of NSW (2D)