Ireland v James Hosie, Secretary, the Parole Board of Western Australia - [2003] WASC 223

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS

CITATION: IRELAND -v- JAMES HOSIE, SECRETARY, THE PAROLE BOARD OF WESTERN AUSTRALIA [2003] WASC 223

CORAM: JOHNSON J

HEARD: 6 NOVEMBER 2003

DELIVERED : 6 NOVEMBER 2003

PUBLISHED : 14 NOVEMBER 2003

FILE NO/S: CIV 1677 of 1999

BETWEEN: MARK GRAEME IRELAND
Applicant
AND
JAMES HOSIE, SECRETARY, THE PAROLE BOARD OF WESTERN AUSTRALIA
Defendant

Catchwords:

Sentencing - Power of Parole Board to suspend order for parole - Nature of an order for eligibility for parole

Legislation:

Sentence Administration Act 1995 (WA)

Result:

Application dismissed

Category: B

Representation:

Counsel:

Applicant: In person
Defendant: Mr H A Sefton

Solicitors:

Applicant: In person
Defendant: State Crown Solicitor

Case(s) referred to in judgment(s):

Parole Board; Ex parte Forbes (1996) 89 A Crim R 139

Case(s) also cited:

Gamarrow v R (1993) 70 A Crim R 189
R & Parole Board; Ex parte Birnie [1988] WAR 249
R v Bolton; Ex parte Beane (1987) 162 CLR 514
Varney v Parole Board of Western Australia (2000) 23 WAR 187

JOHNSON J: The plaintiff seeks, by originating summons, a declaration that the Parole Board ("the Board"), in respect of its decision to suspend his parole has:
1.failed to comply with s 36(3) of the Sentence Administration Act 1995 in that it failed to provide adequate reasons for its decision. In particular, it failed to provide detail of the information or material which led it to its conclusion and failed to provide any or sufficient detail of the criteria against which that information or material was judged; and
2.acted beyond its power in (effectively) punishing him for offences for which he has not been convicted.
In his affidavit in support of the originating summons, the plaintiff amplifies the second ground by alleging that, by suspending his parole, the Board was acting in a judicial function and was sentencing him for an offence for which he had not been convicted, as the only reason for the suspension of parole was his arrest on charges for which he had been remanded in custody.
At the relevant time the plaintiff was serving an aggregated sentence of imprisonment of 17 years, with eligibility for release on parole, following conviction and sentence in the District Court of Western Australia on 7 April and 10 May 1989, respectively, and following conviction and sentence in the Supreme Court of Western Australia on 2 July 1989. The plaintiff was eligible for release on parole on 31 August 1997.
On 31 August 1997 the plaintiff was released on parole pursuant to a parole order dated 22 August 1997.
On 22 September 1998 the plaintiff was arrested and admitted to prison as a remand prisoner on charges of burglary and assaulting a public officer. The plaintiff entered not guilty pleas in relation to these charges. On 24 September 1998 the plaintiff contacted his case officer at the Community Corrections Centre ("CCC") to inform him that the plaintiff had been remanded in custody.
On 30 September 1998 the Manager of the CCC Maddington, a delegate of the Chief Executive Officer of the Ministry of Justice ("the CEO"), ordered the suspension of the plaintiff's parole order for an indefinite period. The stated reason was said to be that the plaintiff was "unable to comply with requirements of parole due to remand in custody". The matter was then referred to the Board.
At a meeting of the Board on 9 October 1998, the Board decided that the suspension of the plaintiff's parole order was to remain as he had been remanded in custody on further charges. The Board decided that the decision would be reviewed on the outcome of outstanding charges or if the plaintiff was granted release on bail. The plaintiff was advised of the Board's decision by letter dated 9 October 1998.
The Board received by facsimile a letter from the plaintiff's solicitors on 8 December 1998, attached to which was an undated letter from the plaintiff to the Secretary of the Board requesting further information as to the Board's decision of 9 October 1998. In that letter the plaintiff expressed his understanding of the order for release on parole to be that, if he did not reoffend, his parole would continue. The plaintiff further questioned the Board's power to interfere with an order for parole made by the Courts.
By letter dated 8 December 1998, the plaintiff was given the reasons for the Board's decision to refuse to cancel the suspension of the parole order. The explanation was in the following terms:
"… your parole was suspended by the Manager of the Maddington Community Based Services because you had been remanded in custody having been charged with further offences and as such you were unable to comply with the obligations of your Order.
The advice to the Board was that you had indicated your intention to plead guilty to the matters in order to have them dealt with via the 'fast track system'.
The Board concurred with the Manager's actions and decided that the suspension of your Order is to remain pending the outcome of the outstanding matters or in the event that bail was granted."
By letter dated 10 December 1998, the plaintiff queried the Board's power to suspend his parole.
On 18 December 1998 the Board reconsidered the plaintiff's case in light of the correspondence received, but determined that the previous decision was to stand on the basis that the plaintiff's submission did not present any new relevant information which warranted a reconsideration of the initial decision. The plaintiff was so advised by letter of the same date.
By letter dated 18 February 1999 to the Board, solicitors for the plaintiff requested the Board to reconsider its decision as it acted on a misapprehension that the plaintiff intended to plead guilty to the charges.
By letter dated 19 February 1999, the Board advised the plaintiff's solicitors that the information that the plaintiff intended to plead guilty was of no relevance to the Board's decision. It was further explained that the parole order had been suspended because he was now in custody and was, therefore, unable to comply with the requirements of parole.
By undated letter sent by facsimile on 23 April 1999, the plaintiff advised the Board that he was granted bail by the District Court of Western Australia. The Board considered the plaintiff's case for release on parole and on 29 April 1999 ordered cancellation of the suspension of his parole effective from 30 April 1999.
Before turning to the specific issues for which declaratory relief is sought, I will set out the relevant statutory framework. At the time that the plaintiff was eligible for release on parole the relevant legislative enactment was the Sentence Administration Act 1995 ("the SA Act"). Section 30(1) of that Act states that a parole order is an order that on a release date specified in the order a prisoner is to be released on parole for a parole period specified in the order.
Section 36 of the SA Act empowers the CEO at any time during the supervised period of a parole order to suspend the parole order. Section 37 confers the same power on the Board. Where an order to suspend parole is made, both the CEO and the Board (as the case may be) is under a statutory duty to give written notice of its decision to the prisoner: s 39(4). The written notice must, subject to s 114, include the reasons for the decision and inform the prisoner of the effect of s 47 which confers on the prisoner a his or her right to make submission under s 39(6). Section 69 of the SA Act sets out the effect of suspension of parole. Under subs (1) the prisoner is then liable to resume serving the fixed term in custody and, unless the suspension ceases, is not entitled to be released until he or she has served the whole of that term.
The mechanism for returning the prisoner to custody is contained in s 72 of the SA Act. When an early release order is suspended or cancelled, the warrant of commitment that relates to the sentence of imprisonment to which the early release order relates is again in force and the prisoner may be arrested and kept in custody: s 72(1). A warrant to have the prisoner arrested and returned to custody may be issued during the period of the release order by the Board if it suspended the order (s 72(2)(b)) or by the CEO if he or she suspended the order: s 72(2)(c).
As to the plaintiff's first allegation that the Board failed to provide adequate reasons for its decision, it was submitted on behalf of the plaintiff that the reasons given were of such a nature that he was unable to respond to them. In my view, that resulted from the nature of the reason rather than any paucity of information. The Board stated that parole had been suspended because the plaintiff had been remanded in custody on further charges. The reason for its decision was clear and unequivocal.
As Wheeler J observed in Parole Board; Ex parte Forbes (1996) 89 A Crim R 139 at 143 ‑ 144:
"First, having regard to the apparent purpose of s 40B(8) [the equivalent statutory provision relating to cancellation of an order], it is clearly not intended that the reasons be the type of detailed outline of facts, reasoning and conclusions which is required of a court or tribunal from which a right of appeal lies. Further, there is no standard of perfection imposed upon the Board. Mere failures in accurate and comprehensive expression, lack of fine detail, and matters of that kind will not result in the Board having failed to comply with the duty which s 40B(8) cast upon it; what is required is a notification which read as a whole and against the background of any correspondence or other matters known to the prisoner clearly indicates why it reached its decision."
In my view, this criteria is well satisfied by the reasons given by the CEO and the Board. Indeed, even the plaintiff conceded that the notification clearly indicated to him why the decision suspending his parole was made. For these reasons, I find that there is no merit in the complaint made as to the adequacy of the reasons for suspension of parole.
It was apparent from the submissions made by the plaintiff that his real complaint was that the decision should not have been made as it was beyond power. One basis for this complaint was the proposition that, once released on parole, the warrant of commitment is spent, and only a judicial officer can order a return to custody. I consider that the terms of s 72 of the SA Act are a complete answer to that proposition.
The plaintiff ultimately conceded that the SA Act empowers the Board to suspend parole and return a prisoner to custody. He considers, however, that Parliament should not have conferred such power on the Board. In the plaintiff's submission, the effect of the legislation is to wrongly allow the Board to act judicially, thereby depriving the prisoner of his common law right to a trial by a properly constituted court before being imprisoned.
In my view, the plaintiff seriously misapprehends the effect of an order to serve a term of imprisonment and the concept of parole. In the plaintiff's case, the sentencing Judge authorised his detention for 17 years. The order made for eligibility for parole did not create in the plaintiff a right to release on parole at any time. By granting parole, the Board was allowing the plaintiff to serve a portion of his sentence in the community. When the Board ordered suspension of parole, it was not sentencing the plaintiff to a term of imprisonment; the order was simply the mechanism by which the plaintiff resumed serving in a prison the term of imprisonment already imposed upon him by a judicial officer: see s 69(1) of the SA Act.
It is clear to me that the plaintiff's essential complaint is with the terms of the relevant legislation rather than the conduct of the Board. In my view, there is no merit in either point raised by the plaintiff and the application for declaratory relief is dismissed.