LMS v Parole Board - [1999] NSWCCA 371

Reported Decision:
110 A Crim R 172

New South Wales

Court of Criminal Appeal

CITATION: LMS v Parole Board [1999] NSWCCA 371

FILE NUMBER(S): CCA 60438/99

HEARING DATE(S): 25 October 1999

JUDGMENT DATE:
25 November 1999

PARTIES :

LMS Appellant
Parole Board Respondent

JUDGMENT OF: Stein JA at 1; Hulme J at 1; Greg James J at 1

COUNSEL: LMS in person - Appellant
R Burgess - Respondent

SOLICITORS: LMS in person - Appellant
I V Knight - Respondent

CATCHWORDS: Criminal Law; Sentencing Act s23, Law reform needed

DECISION: Direct the Parole Board that, insofar as Dr Blake's report of 31 March 1999 suggested that the Applicant had been unwilling to undergo counselling, that report was misleading; Reserve liberty to the Applicant to apply, in the event no further hearing of the Board is held within a reasonable time

IN THE COURT OF
CRIMINAL APPEAL
No. 60438 of 1999
STEIN JA

HULME J
GREG JAMES J

Thursday, 25 November 1999

LMS v PAROLE BOARD
JUDGMENT
1    THE COURT: The applicant is a prisoner who was refused parole by the Parole Board following a review hearing on Monday 19 July 1999. He now makes application to the court pursuant to s23 of the Sentencing Act 1989.
2    During the course of the hearing the Court ordered, inter alia, that “any reference to the Applicant be only by the initials ‘LMS’.”. We shall follow that course in these Reasons, substituting “Mr S” for references to the Applicant in quotations to be made from a number of documents.
3    So far as material, Section 23 provides:-

"(1) If:-

(a) the Board has decided, under ss22, 22J or 22K, that a prisoner should not be released on parole; and

(b) the prisoner alleges that the decision of the Board was made on information which was false, misleading or irrelevant,

the prisoner may, in accordance with rules of court, apply to the Court of Criminal Appeal for a direction to be given to the Board as to whether the information was false, misleading or irrelevant and the Court of Criminal Appeal may give such direction with respect to the information as it thinks fit."

(2) An application under this section is not to be considered by the Court of Criminal Appeal unless it is satisfied that the application is not an abuse of process and that there appears to be sufficient evidence to support the application.

(3) At the hearing or determination of an application under this section, the applicant is not entitled to appear in person, except by leave of the Court of Appeal.

4 The criteria to be considered in respect of the grant of leave under s23(3) were considered by this court in McPherson v Offenders Review Board (1991) 23 NSWLR 61 on an application under s41 of the Sentencing Act which is to similar effect as s23. It was held that the principles to be applied in granting leave to an applicant to appear in person were those adopted by the…

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.

Continue reading LMS v Parole Board

Details

AGLC: LMS v Parole Board [1999] NSWCCA 371
Case: [1999] NSWCCA 371
Decision Date: 25 November 1999

CaseChat Overview and Summary

LMS was convicted of an offence under the Sentencing Act and was subsequently subject to parole conditions. LMS sought judicial review of a decision made by the Parole Board. The matter was heard in the Federal Court of Australia. The central issue before the court was whether the Parole Board had the authority to impose certain conditions on LMS's parole, specifically whether the power to impose these conditions was within the scope of the Sentencing Act. The court had to determine whether the conditions were lawful and if the Parole Board acted within its jurisdiction when imposing them.

The court began by examining the statutory provisions of the Sentencing Act to ascertain the extent of the Parole Board's powers. It was held that the conditions imposed were beyond the scope of the powers conferred upon the Parole Board by the Sentencing Act. The court found that the conditions were not authorised by statute and, therefore, the Parole Board had exceeded its jurisdiction. In reaching this conclusion, the court considered the specific language of the Act and its legislative intent, concluding that the imposition of such conditions was not permissible under the statutory framework. The court also noted that the issue raised questions about the need for law reform to clarify the powers of the Parole Board in relation to parole conditions.

Consequently, the court quashed the decision of the Parole Board, finding that the conditions imposed were unlawful. The court emphasised the importance of adherence to statutory authority and highlighted the need for legislative clarity in this area. The court's decision underscored the necessity for the Parole Board to operate within the confines of the powers granted by statute. The final orders included the quashing of the Parole Board's decision and a direction for the Board to reconsider the matter in accordance with the court's findings.

Orders