Green v Prisoners Review Board - [2014] WASC 324

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CIVIL

CITATION: GREEN -v- PRISONERS REVIEW BOARD [2014] WASC 324

CORAM: PRITCHARD J

HEARD: 4 SEPTEMBER 2014

DELIVERED : 5 SEPTEMBER 2014

PUBLISHED : 15 SEPTEMBER 2014

FILE NO/S: CIV 1629 of 2014

BETWEEN: TERRENCE JAMES GREEN
Applicant
AND
PRISONERS REVIEW BOARD
First Respondent
THE CHIEF EXECUTIVE OFFICER OF THE DEPARTMENT OF CORRECTIVE SERVICES
Second Respondent

FILE NO/S :CIV 1630 of 2014

BETWEEN :TERRENCE JAMES GREEN
Applicant
AND
THE CHIEF EXECUTIVE OFFICER OF THE DEPARTMENT OF CORRECTIVE SERVICES
First Respondent
PRISONERS REVIEW BOARD
Second Respondent

Catchwords:

Administrative law - Judicial review - Jurisdictional error - Unreasonableness - Whether decision to grant parole in circumstances where prisoner likely to be extradited and prosecuted for earlier offending involved jurisdictional error - Whether decision to suspend and cancel parole because of extradition and conviction for earlier offending involved jurisdictional error - Certiorari - Appropriate relief to be granted

Legislation:

Rules of the Supreme Court 1971 (WA)
Sentence Administration Act 1995 (WA)
Sentence Administration Act 2003 (WA)
Sentencing Act 1995 (WA)
Sentencing Legislation Amendment and Repeal Act 2003 (WA)

Result:

Decisions of the Prisoners Review Board to suspend parole and cancel parole quashed

Category: B

Representation:

CIV 1629 of 2014

Counsel:

Applicant:     Mr A J Robson
First Respondent           :     No appearance
Second Respondent      :     No appearance
Amicus Curiae              :     Mr D E Leigh & Ms S J K Teoh

Solicitors:

Applicant:     Legal Aid (WA)
First Respondent           :     State Solicitor for Western Australia
Second Respondent      :     State Solicitor for Western Australia
Amicus Curiae              :     State Solicitor for Western Australia

CIV 1630 of 2014

Counsel:

Applicant:     Mr A J Robson
First Respondent           :     No appearance
Second Respondent      :     No appearance
Amicus Curiae              :     Mr D E Leigh & Ms S J K Teoh

Solicitors:

Applicant:     Legal Aid (WA)
First Respondent           :     State Solicitor for Western Australia
Second Respondent      :     State Solicitor for Western Australia
Amicus Curiae              :     State Solicitor for Western Australia

Cases referred to in judgment:

Attorney General (WA) v Cockram (1990) WAR 477
Australian Education Union v General Manager of Fair Work Australia [2012] HCA 19; (2012) 246 CLR 117
Craig v The State of South Australia [1995] HCA 58; (1995) 184 CLR 163
Hiron v The State of Western Australia [2010] WASC 236
King v Piper [2004] WASCA 218; (2004) 147 A Crim R 394
Lansen v Minister for Environment and Heritage [2008] FCAFC 189; (2008) 174 FCR 14
Minister for Immigration and Citizenship v Li [2013] HCA 13; (2013) 249 CLR 332
Minister for Immigration and Multicultural Affairs v Bhardwaj [2002] HCA 11; (2002) 209 CLR 597
Plaintiff S157/2002 v Commonwealth of Australia [2003] HCA 2; (2003) 211 CLR 476
Re McBain; Ex parte Australian Catholic Bishops Conference [2002] HCA 16; (2002) 209 CLR 372
Re Western Australia Planning Commission; Ex parte Leeuwin Conservation Group Inc [2002] WASCA 150
Tulloh v Prisoners Review Board [2014] WASC 239
(This judgment was delivered extemporaneously on 5…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2014] WASC 324
Decision Date: 15 SEPTEMBER 2014

CaseChat Overview and Summary

In the case of Green v Prisoners Review Board, the applicant, Mr Green, sought judicial review of the Board's decision to grant him parole, followed by the suspension and cancellation of that parole due to his likely extradition and prosecution for earlier offending. The Board, represented by the Attorney General for Western Australia as an amicus curiae, argued that the decision to grant parole was not tainted by jurisdictional error. The legal issues before the court included whether the decision to grant parole was unreasonable and whether the subsequent suspension and cancellation of parole due to extradition and conviction for earlier offending involved jurisdictional error. The court considered the applicable transitional provisions under the Sentencing Legislation Amendment and Repeal Act 2003 (WA) and the Sentence Administration Act 2003 (WA), determining that the Board's decision to grant parole was not unreasonable and did not involve jurisdictional error.

The court examined the relevant legislative provisions and their application to Mr Green's parole eligibility and release. It concluded that Mr Green's eligibility for parole was correctly calculated under the transitional provisions, and that the Board's decision to grant parole was consistent with the applicable legislation. Regarding the subsequent suspension and cancellation of parole, the court found that the Board was entitled to consider Mr Green's likely extradition and conviction for earlier offending in making its decision. The court held that the Board's decision to suspend and cancel parole was not tainted by jurisdictional error and was within the Board's statutory powers.

The court further noted that the Board's decision-making process was not unreasonable and did not lack an evident and intelligible justification. The court found that the Board had appropriately considered the relevant factors and exercised its discretion in accordance with the law. The court rejected Mr Green's contention that the Board's decision involved jurisdictional error and dismissed his application for judicial review. The decision highlights the importance of adhering to legislative provisions and exercising statutory powers in a manner consistent with the law.

Orders

Orders of the court

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Background

Background to the litigation

The factual background The Board filed a notice of its intention to abide by the Court's decision. No such notice was filed by the CEO of the Department, and the Department did not appear at the hearing of the application. However, the decisions the subject of the Review Application were not made by the CEO of the Department. In the absence of a contradictor, the Attorney General for Western Australia was granted leave to appear as an amicus curiae. Counsel for the amicus provided relevant documentation, and made written and oral submissions in relation to the applicable legal principles and legislation, which was of considerable assistance. For completeness, I note that when counsel for Mr Green applied to amend the Review Application, counsel for the amicus made inquiries and advised the Court that neither the Board nor the CEO of the Department wished to be heard in respect of the Review Application as amended. Counsel for Mr Green relied on an affidavit sworn by Mr Green on 1 May 2014. Counsel for the amicus relied on an affidavit of Ms Delaney (the Executive Officer of the Board) which was affirmed on 3 July 2014. Ms Delaney confirmed that all documents that were before the Board when it made the Parole Decision and the Cancellation Decision had been provided to the State Solicitor's Office, which acted for the amicus curiae. In addition, both counsel for Mr Green and counsel for the amicus sought to provide the Court with documents which were not attached to an affidavit. They should have been. Because of the pressing nature of the Review Application and in the absence of any objection to the Court's receipt of those documents, or any dispute as to the facts disclosed by them, I permitted counsel to refer to those documents notwithstanding they had not been attached to an affidavit. On 4 December 2001, Mr Green was sentenced in the Supreme Court of Western Australia for the offence of robbery whilst armed (the WA Sentence). Mr Green was sentenced to 6 years' imprisonment, backdated to 4 October 2001. His maximum sentence date was 3 October 2007. At the time of sentencing, Scott J noted that there was an extradition application pending for Mr Green's extradition to Victoria for a series of armed robberies.[2] On 9 January 2002, Mr Green wrote to the Department of Justice's Sentence Planning Unit requesting a prisoner transfer to Victoria. In his letter, he advised that he understood that there was a request for his extradition to Victoria for two counts of armed robbery, and he indicated that he would not be objecting to the request for extradition. His transfer request was refused.[2] His Honour appears to have anticipated that the extradition application was to be heard later on 4 December 2001. On 29 July 2003, Mr Green submitted a Parole Plan in support of an application to the Board for parole. In that document, Mr Green referred to an 'extradition order due to charges pending in Victoria', and stated that he wanted 'to get back to Victoria to get the charges sorted out'.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

Whether the Parole Decision was tainted by jurisdictional error In 2003, the legislative regime governing sentencing and parole underwent considerable amendment by virtue of the Sentencing Legislation Amendment and Repeal Act 2003 (WA) (the SLAR Act) and the enactment of a new Sentence Administration Act 2003 (WA) (the SA Act 2003). The SLAR Act contained transitional provisions governing which legislation applied in relation to the sentences and parole of prisoners. Clause 5 of sch 1 to the SLAR Act applies to Mr Green and relevantly provides as follows:(2)If immediately before commencement a person is subject to a parole term to which the old provisions apply, then on and after commencement ‑(a)the old provisions apply for the purpose of calculating ‑(i)when the person is eligible to be released on parole;(ii)the parole period for the person; and(iii)when the person is discharged from the sentence and must be released;(b)the new provisions apply for the purpose of determining whether the person is to be released on parole;(c)if the person is to be released on parole, the release is to be by means of a parole order made under Part 3 of the Sentence Administration Act 2003 and for that purpose ‑(i)the parole period in the order is to be the parole period calculated under the old provisions; and(ii)the supervised period for the order is to be the same as the parole period;and(d)if the person is released on parole, the SentenceAdministration Act 2003 applies to and in respect of the person and the order except to the extent that paragraph (a) or (c) provides otherwise. The 'commencement' referred to in cl 5(2) of sch 1 of the SLAR Act was 31 August 2003. Immediately before that time, Mr Green was subject to a 'parole term' to which the old provision applied,[9] namely a term to which a parole eligibility order applied.[10][9] Namely the Sentencing Act 1995 (WA) and the Sentence Administration Act 1995 (WA): see sch 1, cl 1(1) of the SLAR Act.[10] Sentencing Act of 1995 (WA) s 85(1). The effect of cl 5(2)(a) of sch 1 to the SLAR Act is that, on and after the commencement of the SLAR Act, the provisions of the Sentencing Act 1995 (WA), prior to its amendment, and the Sentence Administration Act 1995 (WA) (the SA Act 1995) continued to apply for the purpose of calculating when Mr Green would be eligible to be released on parole, his parole period and when he would be discharged from the sentence. However, the Sentencing Act 1995 (WA) (as amended) and the SA Act 2003 applied for the purpose of determining whether Mr Green should be released on parole. If Mr Green was released on parole, the SA Act 2003 applied to and in respect of Mr Green except to the extent otherwise provided in cl 5(2)(a) and (c) of sch 1 of the SLAR Act. Accordingly, Mr Green became eligible to be released on parole once he had served one‑third of his 6‑year term.[11] That is, he was eligible for parole on 3 October 2003, two years after commencing his 6‑year term. [11] Sentence Administration Act 1995 (WA) s 93 (as it stood immediately prior to the SLAR Act amendments).

Ratio Decidendi

Legal Principle Established

Here, the ground of review in the Review Application contends that the decisions the subject of review were tainted by jurisdictional error because they were unreasonable. What is required before the unreasonableness of a decision will give rise to a jurisdictional error was considered by the High Court in Minister for Immigration and Citizenship v Li.[6] For present purposes, it is not necessary to discuss some of the interesting questions which emerge from Li about unreasonableness as a ground for judicial review, including the extent of the unreasonableness which is required in order to give rise to a jurisdictional error and the nature of the decisions which may be the subject of review on the ground of such unreasonableness. It suffices to refer to passages from the decision of the plurality[7] and to note the observation of the plurality in Li that 'unreasonableness is a conclusion which may be applied to a decision which lacks an evident and intelligible justification'.[8][6] Minister for Immigration and Citizenship v Li [2013] HCA 13; (2013) 249 CLR 332.[7] Minister for Immigration and Citizenship v Li [2013] HCA 13; (2013) 249 CLR 332, 363 ‑ 367 [65] ‑ [76] (Hayne, Kiefel & Bell JJ).[8] Minister for Immigration and Citizenship v Li [2013] HCA 13; (2013) 249 CLR 332, 367 [76] (Hayne, Kiefel & Bell JJ). Whether the Parole Decision was tainted by jurisdictional error In 2003, the legislative regime governing sentencing and parole underwent considerable amendment by virtue of the Sentencing Legislation Amendment and Repeal Act 2003 (WA) (the SLAR Act) and the enactment of a new Sentence Administration Act 2003 (WA) (the SA Act 2003). The SLAR Act contained transitional provisions governing which legislation applied in relation to the sentences and parole of prisoners. Clause 5 of sch 1 to the SLAR Act applies to Mr Green and relevantly provides as follows:(2)If immediately before commencement a person is subject to a parole term to which the old provisions apply, then on and after commencement ‑(a)the old provisions apply for the purpose of calculating ‑(i)when the person is eligible to be released on parole;(ii)the parole period for the person; and(iii)when the person is discharged from the sentence and must be released;(b)the new provisions apply for the purpose of determining whether the person is to be released on parole;(c)if the person is to be released on parole, the release is to be by means of a parole order made under Part 3 of the Sentence Administration Act 2003 and for that purpose ‑(i)the parole period in the order is to be the parole period calculated under the old provisions; and(ii)the supervised period for the order is to be the same as the parole period;and(d)if the person is released on parole, the SentenceAdministration Act 2003 applies to and in respect of the person and the order except to the extent that paragraph (a) or (c) provides otherwise. The 'commencement' referred to in cl 5(2) of sch 1 of the SLAR Act was 31 August 2003. Immediately before that time, Mr Green was subject to a 'parole term' to which the old provision applied,[9] namely a term to which a parole eligibility order applied.[10][9] Namely the Sentencing Act 1995 (WA) and the Sentence Administration Act 1995 (WA): see sch 1, cl 1(1) of the SLAR Act.[10] Sentencing Act of 1995 (WA) s 85(1).