Green v Prisoners Review Board
[2014] WASC 324
•15 SEPTEMBER 2014
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 RespondentTHE 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 RespondentPRISONERS 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 September 2014 and has been edited from the transcript.)
PRITCHARD J:
Introduction
Mr Green is presently serving a sentence of imprisonment. He has commenced two applications for judicial review.
The first, CIV 1629/2014 (the Review Application) is brought against the Prisoners Review Board (the Board) and the Chief Executive Officer (the CEO) of the Department of Corrective Services (the Department).
The second, CIV 1630/2014, is brought against the CEO of the Department and the Board. This application is no longer pressed by Mr Green.
I will outline in a moment in some detail the facts of the case. By way of introduction, however, it suffices to say that the facts are highly unusual. Mr Green seeks a writ of certiorari to quash one or more of three decisions made by the Parole Board. (For completeness, I note that the Prisoners Review Board is a continuation of the Parole Board.[1]) The decisions the subject of the Review Application are:
[1] Sentence Administration Act 2003 (WA) s 102.
(1)a decision made by the Board on 11 September 2003 to make a parole order in respect of Mr Green (the Parole Decision);
(2)a decision made by the Board on 28 October 2003 to suspend Mr Green's parole (the Suspension Decision); and
(3)a decision made on 10 August 2004 to cancel Mr Green's parole (the Cancellation Decision).
Mr Green also seeks a declaration that his sentence was discharged on 2 October 2005.
For the reasons which follow, I have determined that the Suspension Decision and the Cancellation Decision involved jurisdictional error and should be quashed. Although it appears possible, if not perhaps likely, that Mr Green's sentence was discharged on 2 October 2005 (by virtue of him having served the balance of the sentence through the completion of his parole, in light of the orders that I am about to make) I have decided that I should not make a declaration to that effect, having regard to the very limited information before the Court on the Review Application. Instead, the preferable course is for the relevant authorities to make inquiries to confirm whether Mr Green's sentence has, in fact, been discharged and, if that is so, to release him from custody without delay.
In these reasons for decision, I deal with the following matters:
(1)the factual background;
(2)the ground of review and the relief sought;
(3)whether an extension of time is required to bring the Review Application;
(4)jurisdictional error;
(5)whether the Parole Decision was tainted by jurisdictional error;
(6)the legislative basis for the Suspension Decision and the Cancellation Decision and whether the Board fell into jurisdictional error in those decisions;
(7)the remedy which should be granted in light of this conclusion; and
(8)whether a declaration should be made that Mr Green's sentence was discharged on 2 October 2005.
The factual background
The parties to the Review Application
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.
The evidence in support of the Review Application
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.
The decisions the subject of the Review Application and the relevant factual circumstances
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'.
Counsel for the amicus provided the Court with documents which appear to have been before the Board when it considered whether to grant parole to Mr Green. One of those documents was entitled 'Parole Checklist' dated 25 August 2003 and included a 'Parole Review'. In that document, it was noted that Mr Green was not subject to extradition, but that he had outstanding warrants from Victoria and that extradition proceedings were likely.
A Community Correction Officer's report to the Board dated 21 August 2003 was also in evidence. It also indicated that there were outstanding warrants for an armed robbery in Victoria, and that Mr Green was aware that he faced extradition to Victoria at the end of his sentence.
The author of the report also noted:
Mr Green advised ... his wish is be awarded parole at this juncture in order to be extradited to Victoria, to deal with the outstanding charges. Mr Green has been advised by his Legal Representative that a further time in a Victorian facility is inevitable.
On 11 September 2003, the Parole Board issued a Parole Order, which constituted the Parole Decision. The Order indicated that Mr Green's parole commenced on 3 October 2003 and his parole expiry date was 2 October 2005. The Order indicated that Mr Green's address was 'extradition to Victoria'. In other words, it appears that the Board anticipated that Mr Green was likely to be immediately extradited to Victoria on his release on parole.
Mr Green says that on 3 October 2003, police collected him from Acacia Prison and he was taken straight to court where an order was made for his extradition. He was then taken to Victoria and was placed in remand.
A Community Corrections Officer's report to the Board dated 17 October 2003 confirms that that occurred. The author of the Report noted that according to Acacia Prison records, police from Victoria collected Mr Green on his release date on parole and transported him back to Victoria, where he was remanded for a committal hearing for two counts of armed robbery. The recommendation by the Community Corrections Officer on that occasion was that the Board may wish to consider suspending parole.
On 28 October 2003, a Notice of Suspension of Parole was issued by the Board. This was the Suspension Decision the subject of the Review Application. Mr Green says he did not receive the Notice at that time and that his lawyer only recently obtained a copy of it. The reason given on the Notice for the Suspension Decision was 'remanded in custody in Victoria'.
On 12 May 2004, the County Court of Victoria sentenced Mr Green for two counts of armed robbery. The sentencing remarks of the Judge were attached to Mr Green's affidavit. The offences in question were committed in August and September of 2001. Mr Green was arrested and made a full confession on 8 October 2001. The sentencing judge observed that the delay between his arrest and his committal on 5 May 2004 was caused by his serving a sentence in Western Australia for an armed robbery. Mr Green was sentenced to a 3‑year term of imprisonment for the armed robberies in Victoria, with a non‑parole period of 18 months. The sentencing judge noted that on his release on parole from Western Australia, Mr Green was extradited to Victoria in October 2003 and that he had been in remand for 224 days. Mr Green says that this was the entire period since he was released to parole in Western Australia.
On 22 July 2004, a Community Corrections Officer in Midland appears to have received information about Mr Green's conviction and imprisonment in Victoria. The officer recommended to the Parole Board that because attempts to access Mr Green's sentence details and whereabouts from the Department of Justice in Victoria had been denied, the Board might wish to consider the cancellation of Mr Green's parole.
On 10 August 2004, a Notice of Cancellation of Parole was issued by the Board in respect of Mr Green's parole. This was the Cancellation Decision the subject of the Review Application. The reason given for the cancellation was 'convicted of a further offence'. The Notice of Cancellation did not have an address for Mr Green on it, which suggests that the Board did not know where Mr Green was located at that time.
On 1 April 2005, Mr Green was released on parole in Victoria after serving the 18‑month non‑parole period for the armed robberies. There was some evidence before the Court as to what occurred between that date and 2014 when Mr Green was returned to prison in Western Australia. For much of the time he appears to have been in prison, interspersed with periods of release on parole. The evidence before the Court indicated that between 20 November 2005 and 26 January 2006, Mr Green committed a number of offences of robbery and stealing in Victoria whilst on parole, and he was sentenced in the Magistrates Court of Victoria for those offences on 11 May 2006. Mr Green received a term of imprisonment of 24 months for all of these offences. Again while on parole, on 9 February 2006 and 11 February 2006, it appears that Mr Green committed a further three offences of armed robbery in Victoria and he was sentenced for those offences on 9 August 2007. Mr Green received a total sentence of 5 years' imprisonment with a non‑parole period of 3 years, and those sentences were to be served cumulatively on the sentences then being served.
In the course of the hearing of the Review Application, Mr Green said that he was released from prison in Victoria on 5 December 2010 on 2 years' parole. He said that he had breached this parole some five months later for non‑compliance with one of the conditions of his parole and he served a further 12 months' imprisonment for that breach. Mr Green said that he was released in April 2012 on 1 year's parole. However, on 2 November 2012, he committed a breach of parole and was returned to custody.
On 29 May 2013, and whilst still in prison in Victoria, Mr Green says that he was notified by the Victorian Parole Board that he had breached parole in Western Australia and that the Western Australian authorities considered that he was required to serve 1,437 days in custody ‑ that is, the balance of the entirety of the WA Sentence. It appears that a warrant for Mr Green's arrest and return to Western Australia had been issued as a result of the cancellation of his parole and that warrant must have come to the attention of the Victorian authorities at this time.
On 26 January 2014, Mr Green completed his sentence in Victoria and returned to Western Australia in custody, where he commenced serving the balance of the WA Sentence. He has been in prison since then.
On 4 March 2014, Mr Green's solicitor wrote to the Department of Corrective Services requesting a recalculation of his sentence on the basis that he had not been released at the time of the cancellation of his parole. There was further correspondence between his solicitors and the Department in March 2014. An application for parole was made by Mr Green's solicitors on 17 March 2014 and that request was declined on 27 March 2014.
The Review Application was filed on 8 May 2014.
The ground of review and the relief sought
Initially, the Review Application sought to challenge only the Parole Decision. In the course of the hearing, counsel for Mr Green sought leave to amend the Review Application in order to also seek a review of the Board's Suspension Decision and its Cancellation Decision. Counsel for Mr Green also sought leave to substitute a fresh ground of review for the existing grounds of review in the Review Application. The ground of review now pressed is in the following terms:
The decision to grant parole, and to suspend parole (on the basis of the Applicant being remanded in custody in Victoria) and then cancelling parole (on the basis of the Applicant being sentenced to imprisonment in Victoria) were beyond the power of the Board in that they were unreasonable, in that the Board was aware that the Applicant was being extradited to Victoria, and that further imprisonment of the Applicant was inevitable, at the time that the Parole Order was made.
Counsel for Mr Green also sought leave to amend the relief sought on the Review Application. In respect of the Parole Decision, Mr Green seeks that that decision be quashed, and that there be a declaration that he is entitled to a one‑third remission of the WA Sentence. Alternatively, in respect of the Suspension Decision and Cancellation Decision, Mr Green seeks that those decisions be quashed, and that there be a declaration that his sentence was discharged at the end of the parole period on 2 October 2005.
Although the extent of the amendments of the Review Application were such that they were tantamount to a fresh application for judicial review, at least in so far as the Suspension Decision and the Cancellation Decision are concerned, it is nevertheless appropriate to grant leave to make those amendments. I do so having regard to the pressing nature of the Review Application, the conclusions I have reached about its merits, the fact that counsel for the amicus did not oppose the amendment application and had prepared submissions addressing the review of the Suspension Decision and the Cancellation Decision, and the fact that counsel for the amicus made inquiries of the Board and the CEO of the Department and advised the Court that they did not wish to be heard in respect of the amended Review Application.
Whether an extension of time is required to bring the Review Application
Mr Green filed the Review Application on 8 May 2014 in respect of decisions made on 11 September 2003, 28 October 2003 and 10 August 2004. The Review Application was made in accordance with O 56 of the Rules of the Supreme Court 1971 (WA) (RSC). In its present form, O 56 r 2(4) (RSC) requires that an application made more than six months after the date of the decision, or the date on which the applicant becomes aware of it, requires leave to proceed.
Counsel for Mr Green sought leave to proceed on the basis that the Review Application was brought approximately nine and a half years after the relevant decisions were made, or approximately one year after Mr Green became aware of the Suspension Decision and the Cancellation Decision. Earlier this year, I granted leave to Mr Green to proceed with the Review Application. It may be that that was not required.[3] Either way, it is unnecessary to deal further with the question of leave.
[3] Tulloh v Prisoners Review Board [2014] WASC 239 [15] (Chaney J).
Jurisdictional error
In Craig v The State of South Australia,[4] the High Court observed that:
Where available, certiorari is a process by which a superior court, in the exercise of original jurisdiction, supervises the acts of an inferior court or other tribunal. It is not an appellate procedure enabling either a general review of the order or decision of the inferior court or tribunal or a substitution of the order or decision which the superior court thinks should have been made. Where the writ runs, it merely enables the quashing of the impugned order or decision upon one or more of a number of distinct established grounds, most importantly, jurisdictional error, failure to observe some applicable requirement of procedural fairness, fraud and 'error of law on the face of the record'. Where the writ is sought on the ground of jurisdictional error, breach of procedural fairness or fraud, the superior court entertaining an application for certiorari can, subject to applicable procedural and evidentiary rules, take account of any relevant material placed before it. (footnotes omitted)
[4] Craig v The State of South Australia [1995] HCA 58; (1995) 184 CLR 163, 175 ‑ 176.
In addition, the High Court observed that in relation to jurisdictional error:[5]
[A]n administrative tribunal falls into an error of law which causes it to identify a wrong issue, to ask itself a wrong question, to ignore relevant material, to rely on irrelevant material or, at least in some circumstances, to make an erroneous finding or to reach a mistaken conclusion, and the tribunal's exercise or purported exercise of power is thereby affected, it exceeds its authority or powers. Such an error of law is jurisdictional error which will invalidate any order or decision of the tribunal which reflects it.
[5] Craig v The State of South Australia [1995] HCA 58; (1995) 184 CLR 163, 179.
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).
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).
Whether Mr Green should be granted parole was a decision which fell to be made under the new provisions. That is, the Parole Decision was made by the Board pursuant to the SA Act 2003. The Board was required to have regard to the parole conditions set out in s 16 of that Act and to certain other information in determining whether it was appropriate to release Mr Green on parole.
Counsel for the amicus handed to the Court a bundle of documents from the Board's file in relation to Mr Green's parole. As I noted at [18] ‑ [19] a Community Corrections Officer's Report dated 21 August 2003, which appears to have been considered by the Board in relation to the Parole Decision, noted that outstanding warrants existed for armed robbery in Victoria, and that Mr Green was aware that he faced extradition to Victoria at the end of his sentence. The officer also noted that Mr Green wished to be awarded parole in order to be extradited to Victoria to deal with the outstanding charges. Mr Green had said as much in his application in relation to parole. The report also indicated that Mr Green was considered a marginal case for release at that time. Nevertheless, the Board determined to grant parole to Mr Green.
There is no further information available as to any other considerations taken into account by the Board. It is, however, clear that the Board was aware of the virtual certainty of Mr Green being extradited to Victoria. The Parole Order itself indicated that Mr Green's address was 'extradition to Victoria'.
Returning to the parole considerations in s 16 of the SA Act 2003, nothing in those considerations prohibited the release of a prisoner on parole if that person faced extradition to another State for prosecution for other offences committed in that State. I note that the SA Act 2003 contemplated that a prisoner must not be released on parole if, at the time of the release, the prisoner was required by law to be kept in custody in respect of another matter.[12] However, at the time of Mr Green's release on parole, he was not required by Western Australian law to be kept in custody in this State.
[12] Sentence Administration Act 2003 (WA) s 10.
The decision to release Mr Green to parole knowing that he was likely to be immediately extradited to Victoria appears at first blush to have been a little unusual. It was unusual because, in the event that Mr Green was tried in Victoria, convicted and sentenced to a term of imprisonment of longer than 2 years, he would, in effect, serve his period of parole in a prison rather than in the community. If that occurred, then during that period he would clearly not be able to comply with the standard conditions of parole ordinarily imposed,[13] or the additional requirements that are often imposed.[14]
[13] Sentence Administration Act 2003 (WA) s 29.
[14] Sentence Administration Act 2003 (WA) s 30.
On the other hand, at the time when the Parole Decision was made, it is not clear that it was inevitable that Mr Green would, in fact, be extradited, much less that he would be convicted of any offence in Victoria. In addition, the SA Act 2003 does not provide for the automatic cancellation of parole when a person is imprisoned in another State for an offence committed prior to the term of imprisonment for which the parole was granted.[15] The term 'parole' is not defined in the Sentencing Act 1995 (WA), the SA Act 1995, the SA Act 2003 or the SLAR Act. However, the phrases 'parole term', 'parole eligibility order' and 'parole order' are defined. Section 85 of the Sentencing Act 1995 (WA) (as it was when Mr Green was granted parole) defines a 'parole term' as a term to which a parole eligibility order applies. Section 85 also defines a parole eligibility order as an order under s 89. When the WA Sentence was imposed, Mr Green was made the subject of a 'parole eligibility order', that is, he was made eligible for parole.
[15] Compare Sentence Administration Act 2003 (WA) s 67.
Given that the SA Act 2003 does not prescribe what parole is, nor otherwise prohibit the grant of parole when a person is likely to be extradited, I am not persuaded that in determining to release Mr Green, it can be said that the Board acted so unreasonably, having regard to what is meant by that ground of judicial review as discussed in Li, as to fall into jurisdictional error when it made the Parole Decision.
Insofar as the Review Application pertains to the Parole Decision, the ground of review has not been made out and this part of the application should be dismissed.
The legislative basis for the Suspension Decision and the Cancellation Decision and whether the Board fell into jurisdictional error in those decisions
The Suspension Decision and Cancellation Decision were made during the supervised period of Mr Green's parole order. Those decisions must necessarily have been made by the Board pursuant to the SA Act 2003.[16] The suspension of a parole order is permitted under s 39(1) of the SA Act 2003, which permits the Board at any time during the supervised period of a parole order to suspend the parole order. As I have already indicated, the Suspension Decision stated that that decision was made because Mr Green had been 'remanded in custody in Victoria'. There is no other information available as to the reasons of the Board in determining to suspend Mr Green's parole order, but I infer that his extradition to Victoria was a significant, if not the only, factor in that decision.
[16] Sentencing Legislation Amendment and Repeal Act 2003 (WA) sch 1, cl 5(2)(d).
The cancellation of a parole order is undertaken pursuant to s 44 of the SA Act 2003. Section 44(1) provides that the Board may cancel a parole order made by the Board or the Governor at any time during the parole period. The Cancellation Decision stated the ground for cancellation as having been that Mr Green was 'convicted of a further offence'. There is no other information available as to the reasons of the Board for cancelling Mr Green's parole, but I infer that his conviction in Victoria for the armed robbery offences was a significant, if not the only, factor.
The provisions of the SA Act 2003 to which I have referred suggest that the Board has a wide discretion as to whether or not to suspend or cancel parole. A range of discretionary considerations may be relevant to that decision. It is not necessary to explore all of those for present purposes. It suffices to say that a conviction for an offence, at least an offence during the supervised period of the parole, would clearly be relevant to whether parole should be suspended or cancelled, as would a breach of the conditions of the grant of parole. Accordingly, a decision by the Board to suspend or cancel parole because a prisoner had been arrested for an offence and extradited to face charges, or convicted of an offence, during the parole period would not of itself necessarily suggest that the decision was unreasonable in the Li sense so as to be indicative of jurisdictional error.
I have already referred to the observations made in the Parole Checklist and the Community Corrections Officer's report dated 21 August 2003 which appear to have been before the Board when it made the Parole Decision. Counsel for the amicus submitted that the only reasonable inferences in the circumstances were as follows.
First, counsel for the amicus submitted that it can be inferred that the Board was aware, at the time when it considered whether to make the parole order, that the basis for Mr Green's foreshadowed extradition to Victoria was to face charges for armed robberies, and that Mr Green had been advised by his legal representative that further time in a Victorian facility was inevitable, because Mr Green's consistent position was that he did not intend to contest the charges.
Secondly, counsel for the amicus submitted that it can be inferred that at the time when it considered suspension and cancellation of the parole order, the Board was not aware of any relevant change in Mr Green's circumstances following his initial release on parole, other than his being charged with and convicted of the Victorian offences of which the Board had previously been aware.
Thirdly, counsel for the amicus submitted that the only reasonable inference is that the Board granted Mr Green's parole order in the knowledge that he was to be extradited to Victoria where he would plead guilty to charges of armed robbery.
Finally, counsel for the amicus submitted that it can be inferred that when the Board then made the Suspension Decision and Cancellation Decision, it did so solely on the basis that the events which had been predicted, namely Mr Green's extradition and subsequent conviction and imprisonment for the armed robbery offences, had in fact occurred.
I accept the amicus' submissions about the inferences to be drawn from the evidence before the Court. In these circumstances, I am persuaded that the Suspension Decision and the Cancellation Decision were so unreasonable in the Li sense as to give rise to a jurisdictional error. That unreasonableness arises from the fact that it can be inferred that the Board was aware of the likelihood of Mr Green being extradited to Victoria to face trial on the armed robbery offences when it made the Parole Decision in September 2003, and yet relied on the very same matters to suspend and then cancel Mr Green's parole very shortly thereafter, and apparently in the absence of any material change in his circumstances.
What also adds to the unreasonableness of the Suspension Decision and the Cancellation Decision is the consequence of those decisions for the WA Sentence Mr Green was required to serve. The effect of suspension and cancellation of parole was dealt with in s 68(1) and s 69(1) of the SA Act 2003. (Counsel for the amicus submitted that to the extent that the cancellation had a bearing on the end of Mr Green's sentence, the SA Act 1995 may have applied by virtue of cl 5.2(2)(a) of sch 1 of the SLAR Act. If that is so, then by virtue of s 71(1) of the SA Act 1995 the position was precisely the same). The effect of these provisions is that upon his return to prison following the cancellation of his parole, Mr Green was required to serve the whole of the WA Sentence and lost the benefit of the one third remission of that sentence under s 95 of the Sentencing Act 1995 (WA) subject only to the grant of another parole order.[17]
[17] King v Piper [2004] WASCA 218; (2004) 147 A Crim R 394, 398 ‑ 399 [24] ‑ [26] (the Court); Hiron v The State of Western Australia [2010] WASC 236 [17] ‑ [19] (Blaxell J); Tulloh v Prisoners Review Board [2014] WASC 239 [19] ‑ [21] (Chaney J).
Further, any decision about when Mr Green was due to be discharged from his sentence would necessarily have been made having regard to the old provisions as defined in cl 5(2) of sch 1 of the SLAR Act. Under the Sentencing Act 1995 (WA) prior to its amendment by the SLAR Act, if Mr Green had not been released on parole before he had served two‑thirds of his term of imprisonment, he would have been discharged from his sentence when he served two‑thirds of that term. Subject to div 2 of pt 2 of the SA Act 1995, he would have been required to be released then.[18] That is, he would have received the benefit of the automatic one‑third remission of his sentence to which I have referred.
[18] See Sentencing Act 1995 (WA) s 95(2).
Counsel for the amicus submitted that the decision of the Board to suspend and then cancel Mr Green's parole in the circumstances I have described lacked an evident and intelligible justification, was irrational, and so unreasonable that no reasonable person could have arrived at it. Having regard to all of the circumstances to which I have referred, I accept that submission and I accept that, as a consequence, the Suspension Decision and the Cancellation Decision involved jurisdictional error.
The remedy which should be granted in light of the conclusion
Mr Green seeks a writ of certiorari. Certiorari is, of course, a discretionary remedy. It is not available as of right.[19] The Court maintains this discretion, even where a want of jurisdiction has been established.[20] A variety of factors may be relevant to the exercise of the court's discretion to grant certiorari. These include, amongst others, undue delay, and the interest of the applicant.[21]
[19] Australian Education Union v General Manager of Fair Work Australia [2012] HCA 19; (2012) 246 CLR 117, 148 [71] (Gummow, Hayne & Bell JJ), citing Re McBain; Ex parte Australian Catholic Bishops Conference [2002] HCA 16; (2002) 209 CLR 372, 394 [21] (Gleeson CJ), 410 [80] (Gaudron & Gummow JJ), 415 ‑ 416 [95], 421 [106] (McHugh J), 464 ‑ 465 [260], 472 ‑ 473 [281] ‑ [285] (Hayne J), 475 [293] (Callinan J).
[20] Attorney General (WA) v Cockram (1990) WAR 477.
[21] Re Western Australia Planning Commission; Ex parte Leeuwin Conservation Group Inc [2002] WASCA 150 [46] (Wheeler J, Steytler J & Anderson J agreeing).
In this case, the delay in bringing the Review Application does not militate against the grant of relief. The evidence before the Court suggested that the first occasion on which Mr Green was made aware of the Suspension Decision and Cancellation Decision was in May 2013. As soon as he became aware of the cancellation, he contacted the Board. Over the ensuing months, prior to his return to custody in Western Australia, Mr Green contacted both the Board and the Department's Sentencing Unit to try to clarify what the position was in relation to his parole and the claim that he had to serve further time for the WA Sentence. Since his return to custody in Western Australia, his solicitor has also contacted the Board seeking that Mr Green be released on parole. This is not, therefore, a case where there has been undue delay by Mr Green. Since he found out about the cancellation of his parole, he has been in custody and for some of that period in a different State which, no doubt, added to the difficulty of ascertaining what had occurred.
Further, and much more importantly, the questions raised by the Review Application impact on Mr Green's sentence of imprisonment and ultimately his liberty. There is no reason, in my view, for refusing the exercise of my discretion to quash the Suspension Decision and the Cancellation Decision.
Whether a declaration should be made that Mr Green's sentence was discharged on 2 October 2005
Counsel for Mr Green submitted that, if the Suspension Decision and Cancellation Decision were quashed, the position must be that Mr Green continued his parole and completed it and thus that he has completed the WA Sentence and should be discharged. I was invited to make a declaration to that effect.
Counsel for Mr Green relied on s 68 of the SA Act 1995 which applied in relation to the discharge of Mr Green's sentence by virtue of cl 5(2) of sch 1 of the SLAR Act. Counsel for Mr Green also submitted that if the Suspension Decision and the Cancellation Decision are quashed, the effect will be that those decisions were never made. A decision that involves jurisdictional error is a decision that lacks legal foundation and is properly regarded in law as no decision at all.[22]
[22] Plaintiff S157/2002 v Commonwealth of Australia [2003] HCA 2; (2003) 211 CLR 476, 506 [76] (Gaudron, McHugh, Gummow, Kirby & Hayne JJ); Minister for Immigration and Multicultural Affairs v Bhardwaj [2002] HCA 11; (2002) 209 CLR 597, 614 ‑ 625 [51] (Gaudron & Gummow JJ), 618 [63] (McHugh J), 646 ‑ 647 [152] (Hayne J). See also Lansen v Minister for Environment and Heritage [2008] FCAFC 189; (2008) 174 FCR 14, 47 ‑ 49 [156] ‑ [158] (Moore & Lander JJ).
The effect of the quashing of the Suspension Decision and the Cancellation Decision will be that those decisions will be treated as never having been made at all, or as having no legal effect at all. The effect of that would be that the Parole Decision should be treated as having continued, uninterrupted, for its duration.
The question then is whether the requirements of s 68 of the SA Act 1995 are met. Counsel for the amicus accepted that if they were, then Mr Green would, by completion of the parole period, have served his sentence and he could be discharged. However, I have determined that I should not make the declaration sought by Mr Green. That is because it is not entirely clear whether the Court has all of the relevant information before it to ascertain whether the requirements of s 68 are met. The Court has some information about what occurred during the term of Mr Green's parole order, but there is no evidence as to whether Mr Green had any convictions during that period. Perhaps there were none. The preferable course, however, is not to make a declaration, but to leave the matter to the relevant authorities to take immediate steps to confirm whether the criteria under s 68 for the discharge of the WA Sentence have been established and, if they have been, to release Mr Green without delay.
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