Kola v Parole Board of South Australia - [2004] SASC 423

SUPREME COURT OF SOUTH AUSTRALIA
(Civil)
KOLA v PAROLE BOARD OF SOUTH AUSTRALIA & ORS
Judgment of The Honourable Chief Justice Doyle
17 December 2004
CRIMINAL LAW - PROBATION, PAROLE, RELEASE ON LICENCE AND REMISSIONS - SOUTH AUSTRALIA
Plaintiff issued proceedings for judicial review of a decision made by the Parole Board relating to finding a breach of a designated condition - Board made finding that designated condition breached, 13 months after breach and after expiry of parole - whether the decision by the Board to impose the designated condition was valid - whether the Board erred in refusing to revoke the condition or designation of the condition retrospectively - whether the delay by the Board in making a finding amounted to an abuse of process - whether the Board had power to make a finding of breach once parole has expired - whether the Parole Board failed to accord the plaintiff procedural fairness - action dismissed.
Correctional Services Act 1982 (SA) s 66, s 68(1), s 68(1)(a)(i), s 68(2), s 68(2)(b), s 68(3), s 68(5), s 71(1), s 73(1), s 76(2a), referred to.
R v Bartels (1986) 44 SASR 260, considered.

KOLA v PAROLE BOARD OF SOUTH AUSTRALIA & ORS
[2004] SASC 423
Civil

DOYLE CJ: Mr Kola has issued proceedings for the judicial review of a decision by the Parole Board finding proved a breach of condition of his release on parole. The condition was designated by the Board as a condition that, if breached, would result in automatic cancellation of parole. The consequence of the finding of breach was that he was returned to imprisonment to serve the balance of the sentence in respect of which he was on parole, being the balance unexpired as at the day on which he committed the offence that gave rise to the breach of the condition.
Mr Kola challenges the validity of the decision by the Board on a series of grounds.
He challenges the validity of the decision by the Board to impose the condition; he challenges the validity of the decision by the Board to designate the condition as one, breach of which would result in automatic cancellation of parole; he complains that the Board erred in refusing to revoke the condition or alternatively the designation of the condition, with retrospective effect; he complains that the delay by the Board in finding that he had breached the condition gives rise to an abuse of process; he disputes the power of the Board to make a finding of breach once his parole had expired (as it had by the time of the finding); he claims that the Parole Board failed to accord him procedural fairness.
Relying on these grounds he seeks an order setting aside the finding of breach of the condition.
The proceedings
The proceedings were instituted on 2 September 2004. They proceeded on affidavit.
The proceedings came before me for trial on 6 December 2004. Mr Kola is due for release on 30 January 2005.
I am satisfied that the action must be dismissed. It is obvious that Mr Kola is aggrieved by delays in the Board dealing with his case. To avoid further delay I propose to give my reasons for dismissing his action relatively briefly.
There was no dispute about the relevant facts. My findings of fact are as indicated in my reasons that follow.
Chronology
Mr Kola was serving a sentence of 19 months’ imprisonment, commencing on 20 August 2002. A non-parole period of 7 months was fixed.
Mr Kola has a lengthy history of offences between 1992 and 2002. Many of them were driving offences, including a number of offences of driving without a licence and driving while disqualified. A number of them were offences of assault. Taken as a whole, his record indicates a persistent course of offending at an alarmingly frequent rate.
On 19 March 2003 Mr Kola was released on parole. The duration of the parole was to be 12 months. One of the conditions of parole was condition 20:
“That you do not drive a motor vehicle unless you are the holder of a current driver’s licence”.
Section 68(3) of the Correctional Services Act 1982 (SA) (“the CSA”) provides:
“In fixing or recommending conditions to which the release on parole of a prisoner will be subject, the Board may designate any condition as a condition that, if breached, will result in automatic cancellation of parole.”
Condition 20 was designated pursuant to this provision by the Board. There were four other designated conditions.
On 28 May 2003 Mr Kola was arrested and charged with a further series of offences, including driving while disqualified from holding or obtaining a driver’s licence. He does not appear to have disputed that he was guilty of this offence, and that he had breached condition 20. However, initially it was not clear to the Board whether he would dispute the offences or the breach of condition.
The Parole Board was informed of the charges by Mr Kola’s Community Corrections Officer, and on 3 June 2004 authorised the issue of a summon to Mr Kola to come before the Board. The minute of the decision stated “approximate interview date 30 September 2003”. It is not clear whether a summons was issued at this stage.
For various reasons, to some of which I will refer below, it took some time before Mr Kola came before the Board.
A summons to Mr Kola to appear before the Board on 30 September 2003 was issued on 17 September 2003. That was not served because he failed to keep an appointment with his Community Corrections Officer.
On 30 September 2003 the Board decided to issue a warrant for his detention, but at the urging of the Community Corrections Officer later withdrew the warrant and issued a summons.
On 24 November 2003, in light of further possible breaches of parole conditions the Board issued a further warrant, on which Mr Kola was detained for almost a month, then released.
On 19 March 2004 Mr Kola’s parole expired.
On 11 April 2004 Mr Kola was taken into custody on a further warrant issued by the Parole Board, after it received information about further possible breaches of parole conditions.
On 22 June 2004 Mr Kola appeared before the Board. The Board found that he had breached condition 20 and other conditions that were not designated conditions.
The Board noted that the balance of the sentence that was unexpired as at the day of his offence, 28 May 2003, was nine months 20 days.
As Mr Kola was already in custody the Board simply noted that he was due for release on 30 January 2005. In fixing that date the Board treated the balance of the sentence to be served as running from 11 April 2004, the date on which he was taken into custody on the Board’s warrant.
The Court’s powers
There is no appeal against the decision of the Board. In these proceedings the Court cannot, as it would on appeal, review the decision of the Board on matters of fact, and substitute the decision that it would have made if it found that the Board has erred on the facts.
The power of the Court in these proceedings is limited to setting aside a decision by the Board that is invalid because of an error of law, or because the decision was made without according Mr Kola procedural fairness. For present purposes an error of law will include a decision that could not properly be made, having regard to the scope of the powers or functions being performed by the Board.
The validity of the Board’s decision to impose the condition and to designate it under s 68(3).
Mr Lister, counsel for Mr Kola, submits in effect that the Board acted unreasonably in imposing the condition at all, and erred also in making it a designated condition. He submits that the decision is so unreasonable that the Court should conclude that it falls outside the scope of the power exercised by the Board in either case. I will assume for present purposes that if that contention is made good, the decision would be invalid.
The release of a prisoner on parole must, by s 68(1) of the CSA, be subject to certain conditions. One of them must be that the prisoner not commit any offence: s 68(1)(a)(i). The Board has a wide power to fix other conditions: s 68(2). In doing so it must have regard, among other matters to “the likelihood of the prisoner complying with the conditions”: s 68(2)(b).
When considering the conditions to be imposed on Mr Kola’s release, the Board had before it evidence indicating that Mr Kola had a long history of offending, as I have indicated above. A psychiatric report available to the Board indicated that he did not require psychiatric treatment, but also stated that he suffered from a personality disorder. Other material before the Board indicated that he had a tendency towards violence and towards disruptive behaviour. There was good reason to think that there was a high risk that he would continue to offend.
Mr Lister submitted that condition 20 should not have been imposed because, with Mr Kola’s background, it was likely, indeed almost certain, that he would breach the condition. Mr Kola was doomed to failure. There was no real likelihood of him complying with the condition. Imposing a condition like this did not promote his rehabilitation, because it was likely to result in him being returned to imprisonment. For these reasons he submitted that the decision was so unreasonable that it could not have been made in a proper exercise of the Board’s discretion.
A matter to be considered by the Board was that Mr Kola was serving a sentence imposed in respect of 25 different offences, committed during 2001 and 2002. This group of offences included assaults on family members and numerous driving offences.
There is no doubt in my mind that in exercising its discretion to impose conditions on Mr Kola, it was proper for the Board to consider the need to protect the community by deterring him from further offending. Mr Kola’s record gave every indication that he was inclined to take little notice of the law and of authority. That, no doubt, was contributed to by his personality disorder and the difficulty of getting appropriate help for him, but it was a matter that the Board could not ignore. Having regard to the length of his sentence, the Board was obliged to order that he be released on parole on expiry of his non-parole period: s 66 of the CSA. If Mr Kola would not accept the conditions imposed by the Board, he would remain in custody: s 68(5). The Board was by no means obliged to have regard only to Mr Kola’s interests in considering the conditions that should be imposed on his release. As I have indicated, the Board was entitled, indeed obliged, to consider the interests of the community as well, and to consider conditions that would encourage Mr Kola not to offend again.
Having said that, I recognise that the wisdom of imposing condition 20 can be debated. Mr Lister’s submission, which has some force, is that there was no point in imposing such a condition, because Mr Kola was doomed to fail. But the alternative view is that interests of the community, and the public interest in deterring Mr Kola from further offending, supported the imposition of the condition. There is no reason to think that Mr Kola would not have understood the requirements of the conditions and the consequences of breach. In any event, his own state of mind is not the sole matter to be considered.
As I have said, the merits of the condition that was imposed can be debated, but in my opinion it cannot be said that it was not open to the Board to conclude that condition 20 was an appropriate condition. The view might well have been taken, and properly so, that if Mr Kola was not prepared to accept and to comply with such a condition he should serve the balance of his sentence. For similar reasons I consider that it was open to the Board to designate condition 20 in exercise of the power conferred by s 68(3).
Granted, designation of the condition meant that in the event of a breach, which was not unlikely, Mr Kola would as a matter of course be returned to prison. But it was open to the Board to take the view that Mr Kola needed to learn that he must observe the law, and that if he were to breach the condition that would be an appropriate result. Accepting that Mr Kola has a personality disorder, and that made it likely that he would offend, nevertheless it does not follow that the response from the Board had to be that his parole should not be imperilled by continued offending.
I am satisfied that, in the circumstances, it was within the power of the Board to impose condition 20, and to make it a designated condition. I reject the submission that the condition was invalidly imposed or made a designated condition.
Delay by the Board
The Board was notified of the charges against Mr Kola shortly after 28 May 2003.
The Board made its finding of breach on 22 June 2004, almost 13 months later.
I agree that it would have been better if the matter was resolved more quickly than that. The breach of the designated condition was never really in dispute. Some of the time that elapsed is attributable to Mr Kola’s failure to attend appointments with his Community Corrections Officer, meaning that a summons for him to appear before the Board was not able to be served. Some of the time was attributable to a request by the Community Corrections Officer, made in Mr Kola’s interests, that a warrant for his address be withdrawn, and that the Board again proceed by way of summons. Some of the time was attributable to the need to obtain advice on Mr Kola’s condition. Some of the delay was attributable to other charges being laid against Mr Kola, although ultimately they played no part in the Board’s decision. In short, some of the delay could not be laid at the door of the Board.
An affidavit filed by Mr Hill, the secretary of the Board, outlines the Board’s procedures. The Board meets four times a month, a fifth meeting being held if necessary. It appears that the Board’s workload is such that there is usually a gap of a month or two between the issue of a summons or warrant, and the fixing of an appointment for the Board to deal with a prisoner.
It is unnecessary to trace the events in detail. My view is that Mr Kola’s position could and should have been determined within about six months or so of the offences. The further lapse of time was avoidable, and should have been avoided. The matter should have been given a higher priority, bearing in mind the almost inevitable result that Mr Kola would be returned to prison.
However, the additional six months or so that elapsed did not prejudice Mr Kola’s position. However, it meant that he had to suffer the disappointment of returning to prison later than otherwise would have been the case. Nor do I regard the delay as excessive in the circumstances. Mr Kola’s case was a difficult one. I consider that the delay was avoidable, but it was not attributable to dereliction on the part of the Board. When the facts are surveyed, it emerges that for one reason or another, at various stages Mr Kola’s case did not move forward. The individual events are understandable, the problem is the cumulative effect of them. I do not consider that the delay that occurred makes the ultimate outcome in any sense oppressive, and, as I have said, I do not regard the delay as excessive, nor as productive of any injustice.
In any event, I am not satisfied that the concept of abuse of process can be applied to a proceeding of the kind now in question. For present purposes I have simply assumed that it can be. Even if it can, I do not regard the delay and its consequences as such that it was an abuse of process for the Board to proceed to make a finding of breach.
Finding of breach after expiry of parole
As I recorded in the chronology, by the time the Board made its finding of breach of a designated condition, Mr Kola’s parole had expired. Section 73 of the CSA provides as follows:
“73 (1)    Where the Board finds that a person who has been released on parole has, while on parole, breached a designated condition, the person is, subject to this Part, liable to serve in prison the balance of the sentence, or sentences, of imprisonment in respect of which the person was on parole, being the balance unexpired as at the day on which the breach was committed.
(2)   Subsection (1) applies notwithstanding that, at the time of finding the breach proved, the parole has expired or been discharged.
(3)   Where a person referred to in subsection (1) is, at the time of finding the breach proved, still on parole, the parole is, by virtue of this section, cancelled.”
It is beyond argument that the Board was able to make the finding of breach after Mr Kola’s parole had expired. Section 73(2) so provides. A contrary inference cannot be drawn from s 73(3). That provision means no more than that if, when the finding is made, the person is still on parole, the parole is cancelled by virtue of the Act. It is necessary to so provide to avoid the anomaly of a person being liable to be returned to imprisonment, but at the same time subject to an existing order for release on parole.
Procedural fairness
Mr Lister complains that before making the finding of breach, the Parole Board should have obtained further advice about Mr Kola’s mental state, in light of material before the Board suggesting that he might be suffering from schizophrenia or some other mental illness.
There is nothing in this point. The Board had a number of reports relating to Mr Kola’s condition. Its function was simply to determine whether breach of a condition had been proved. Further information about Mr Kola’s mental condition could not affect that. There was no failure to accord procedural fairness. Nor was the Board required, before it could validly discharge its function, to obtain further information about Mr Kola. It was open to Mr Kola, through his solicitor, to put before the Board any material on which Mr Kola relied.
The failure of the Board to revoke condition 20 or to rescind the designation of condition 20.
Mr Lister argued that in light of all the information before it, rather than proceed to make a finding of breach, the Board could have and should have rescinded its decision to designate condition 20 as a condition the breach of which would result in automatic cancellation of parole. Alternatively, he submitted that the Board should have simply revoked the condition.
In support of this submission he relied upon the matters put forward in support of his argument that the decision to impose the condition, and to make it a designated condition was not validly made. As well, he called in aid further material before the Board suggesting that, all along, it had been likely that Mr Kola would breach the condition.
I do not agree that the information before the Board led to the conclusion that the condition should be revoked, or that the designation of the condition should be rescinded. For reasons that I have already explained, it was open to the Board to take the view that the condition was an appropriate one, and that it should be a designated condition.
In any event, in my view the Board had no power to rescind the condition, or to revoke the designation, with retrospective effect. Section 71(1) of the CSA provides as follows:
“71 (1) Where a person has been released on parole from a sentence other than a sentence of life imprisonment, the Board may, on the application of that person or of its own motion, vary or revoke a condition to which the parole is subject.”
That is the provision on which Mr Lister relies. In my opinion a decision to vary or revoke a condition operates prospectively. The provision does not enable the Board to determine, in effect, that a condition of parole is to be treated as never having been a condition of parole, even though it was a condition up until the time of the decision in question.

In short, the Board did not have the power to do what Mr Lister submits it should have done.
Duration of imprisonment
Mr Jacobi, counsel for the Board, drew to Mr Lister’s attention the fact that the Board had fixed the date for Mr Kola’s release by treating the date when he was arrested on the Board’s warrant, 11 April 2004, as the date from which the unexpired balance of the sentence ran.
The Board did not take into account an earlier period between 22 December 2003 and 22 January 2004 when Mr Kola was held in custody on an earlier warrant. The Board had released him from custody pending a hearing, but later determined that it was appropriate to have him returned to custody.
I am not sure that I understood the submission that Mr Lister advanced in relation to this. In part it seemed to be that the failure to take the additional month into account supported his claim that there had been an abuse of process. It may be that he also intended to submit that in some way the validity of the Board’s decision was affected.
My view is that neither submission can succeed.
The only decision that the Board made was a finding of breach of a designated condition. By s 73(1) a consequence of that finding is that Mr Kola became liable to serve the unexpired balance of the sentence. The Board made no decision, and has no power to make a decision, about the consequence of the findings.
It is doubtful whether the time during which Mr Kola was detained in custody under the warrant issued by the Board counts as part of the unexpired balance of the sentence. Section 76(2a), referring to a warrant of the Board, provides as follows:
“76 (2a) A warrant issued under subsection (1) or (2) authorises the detention of the person in custody pending attendance before the Board.”
It seems to me that Mr Kola was detained in custody pending attendance before the Board, and was not, during the relevant time, serving in prison the unexpired balance of his sentence. Moreover, he became liable to serve the unexpired balance only when the Board made its finding of breach: s 73(1). Time spent in custody before the liability arose cannot reduce the liability that arose on a finding of breach: cf R v Bartels (1986) 44 SASR 260 at 276 – 277 Johnston J; at 290 – 291 O’Loughlin J.
Nevertheless, the Board does not seek to change its indication that Mr Kola should be released on 30 January 2005.
This issue does not provide any basis for attacking the validity of the finding of breach. It is open to Mr Lister to pursue the point that the initial month should be taken into account, in which event Mr Kola would be due for discharge, presumably, on 31 December 2004. However, for what it is worth, I doubt whether Mr Kola is entitled to have that additional month taken into account. It may be that he has been fortunate in having the time taken into account that was taken into account.
Conclusion
Each of the attacks on the validity of the finding by the Board, that Mr Kola had breached a designated condition, in my opinion fails. The action must be dismissed.
Nevertheless, I have some sympathy for Mr Kola. The proceedings before the Board took longer than is desirable. It is also fair to say that a breach of the designated condition was likely to occur. Although from Mr Kola’s point of view that makes things seem unfair, that merely reflects his own point of view. The other point of view, which I share, is that the Board acted appropriately and that the rather sad outcome reflects Mr Kola’s refusal, attributable to his personality disorder and make-up, to comply with the law. On the other hand, I can understand Mr Kola’s puzzlement that after his parole has expired, he should be returned to prison to serve the balance of his sentence. Nevertheless, none of this gives him an entitlement to relief.
I draw to the attention of the Attorney-General the question of whether the CSA should be amended to provide that if a person on parole is returned to imprisonment for breach of a condition of parole, and that person has been held in custody on a warrant issued by the Board, the time during which the person is held in custody should count as part of the unexpired balance of the sentence to be served, of the Board so directs. It seems to me arguable that fairness requires that the Board should have power to so direct. I recognise that there may be cases in which time in custody as a result of a warrant issued by the Board should not count towards the unexpired balance.
While that issue remains unresolved, the interests of justice would suggest that the Parole Board should deal, as expeditiously as possible, with breaches of parole that will or might result in the person on parole being returned to imprisonment, if the person is being held in custody on a warrant issued by the Board pending the Board’s decision on the matter. In making that comment I do not presume to dictate to the Board how it should allocate its resources. I do no more than draw the Board’s attention to the apparent unfairness of a person being held in custody, knowing that the time for which the person is held in custody will not go in reduction of the ultimate period of imprisonment to be served.
The action should be dismissed. I will hear the parties on the question of costs.