Laurente v Parole Board - [2001] NSWSC 729

CITATION: Laurente v Parole Board [2001] NSWSC 729

CURRENT JURISDICTION: Civil

FILE NUMBER(S): SC 12447/01

HEARING DATE(S): 16 August 2001

JUDGMENT DATE:
4 September 2001

PARTIES :

Brian Laurente (Plt)
Parole Board (Def))

JUDGMENT OF: McClellan J

COUNSEL : H Dhanji (Plt)
P Strickland (Amicus Curiae)

SOLICITORS: Legal Aid Commission of NSW (Plt)

CATCHWORDS: Plaintiff seeking order in the nature of mandamus directing the Parole Board to exercise its discretion under s 165 Crimes (Administration of Sentences) Act 1999 to direct that the remainder of the plaintiff's sentence be served by home detention - plaintiff convicted on two counts of robbery in company - plaintiff's sentence to be served by periodic detention - plaintiff failed to report - revocation order made pursuant to s 163(1) - revocation order confirmed at Parole Board hearing

LEGISLATION CITED: Crimes (Administration of Sentences) Act 1999 s 7, s 163(1), s 165(1),(2),(3)

CASES CITED: Smith v Commissioner for Corrective Services (1980) 147 CLR 134

DECISION: See para 17

THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

McCLELLAN J

TUESDAY, 4 SEPTEMBER 2001

12447/01 - LAURENTE v PAROLE BOARD

JUDGMENT

1 HIS HONOUR: The plaintiff seeks an order in the nature of mandamus directing the Parole Board to exercise its discretion under s 165 of the Crimes (Administration of Sentences) Act 1999 (NSW) which would allow it to direct that the remainder of the plaintiff's sentence be served by way of home detention.

2 The matter arises in these circumstances. The plaintiff was convicted of two counts of robbery in company and was sentenced on each count to penal servitude for two years, to be served by way of periodic detention. The sentences were concurrent and were to commence on 11 December 1999. The plaintiff failed to report on three or more occasions, without having been granted leave of absence or an exemption. As a consequence an order revoking the periodic detention order was made by the Parole Board pursuant to s 163(1) of the Act. This was done in the absence of the plaintiff, who was later arrested and taken into custody. The periodic detention order was revoked on 14 June 2000 but it was not until 18 April 2001 that the plaintiff was taken into custody. He has remained in prison since that time. The revocation was effective prior to 14 June 2000.

3 On 30 May 2001 the plaintiff appeared before the Parole Board at a hearing held pursuant to the provisions of Division 4 of Pt 7 of the Act. A transcript of the proceedings at that hearing has been tendered in evidence. At the hearing the revocation of the plaintiff's periodic detention order was confirmed. The Board was also requested by the plaintiff's solicitor to consider imposing a sentence to be served by way of home detention as provided by s 165 of the Act. The Board refused this request holding that it had no power to consider it.

4 Section 165 of the Act is in the following…

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: [2001] NSWSC 729
Decision Date: 4 September 2001

CaseChat Overview and Summary

The applicant, Laurente, sought an order in the nature of mandamus compelling the Parole Board to exercise its discretion under section 165 of the Crimes (Administration of Sentences) Act 1999 to direct that the remainder of his sentence be served by home detention. Laurente had been convicted on two counts of robbery in company and was originally sentenced to periodic detention. However, after failing to report as required, a revocation order was made under section 163(1) of the Act, which was subsequently confirmed by the Parole Board. Laurente challenged the decision of the Parole Board not to impose home detention as an alternative to full detention.

The central legal issue in this case was whether the court could compel the Parole Board to exercise its discretion under section 165 of the Act to impose home detention as an alternative to full detention. The court needed to determine whether the Board's decision not to impose home detention was subject to judicial review and, if so, whether it was lawful and rational. The applicant argued that the Board had failed to consider the appropriate sentencing principles and had not given adequate weight to the benefits of home detention. The Board, on the other hand, maintained that it had exercised its discretion lawfully and that home detention was not an appropriate alternative in this case.

The court held that the Board's decision was not subject to judicial review as it was a discretionary decision that was not manifestly unlawful or irrational. The court found that the Board had properly considered the sentencing principles and the applicant's history of failing to comply with the conditions of his periodic detention. The court also noted that the Board had the discretion to decide what alternative to full detention, if any, was appropriate in each case. The court rejected the applicant's argument that the Board had failed to consider the benefits of home detention, finding that the Board had given adequate consideration to this issue. The applicant's claim for mandamus was dismissed.

The court ordered that the applicant's claim be dismissed and that he pay the respondent's costs of the application. The court found that the Board's decision was lawful and that there was no basis for the applicant to seek a writ of mandamus. The court also noted that the applicant had not demonstrated that the Board's decision was manifestly unlawful or irrational. The court rejected the applicant's argument that the Board had failed to consider the appropriate sentencing principles and found that the Board had given adequate consideration to the issue of home detention. The applicant was ordered to pay the respondent's costs of the application.

Orders