Manning v State of South Australia
[2015] SASC 164
•15 October 2015
SUPREME COURT OF SOUTH AUSTRALIA
(Civil: Application for Judicial Review)
MANNING v STATE OF SOUTH AUSTRALIA
[2015] SASC 164
Judgment of The Honourable Justice Nicholson
15 October 2015
ADMINISTRATIVE LAW - JUDICIAL REVIEW - GROUNDS OF REVIEW - ERROR OF LAW
CRIMINAL LAW - SENTENCE - POST-CUSTODIAL ORDERS - PAROLE - ELIGIBILITY AND RELEASE
CRIMINAL LAW - PARTICULAR OFFENCES - PROPERTY OFFENCES - BURGLARY, HOUSEBREAKING AND LIKE OFFENCES - ENTERING AS TRESPASSER OR WITH INTENT OR BEING FOUND WITH INTENT
Application for judicial review. The plaintiff pleaded guilty to the offences of theft and serious criminal trespass in a place of residence, pursuant to sections 134(1) and 170(1) of the Criminal Law Consolidation Act 1935, respectively. On 1 April 2014, the plaintiff was sentenced in the Magistrates Court to a term of imprisonment of 12 months with a non-parole period of three months. When eligible for parole, the plaintiff made an application to the Parole Board of South Australia and, on 30 October 2014, the Parole Board refused her application relying on the discretion available to it under section 67 of the Correctional Services Act 1992.
The plaintiff contends that, pursuant to section 66(1) of the Correctional Services Act 1992, she was eligible for automatic parole and, therefore, the Parole Board’s refusal to grant automatic parole constituted an error of law such that she was invalidly detained from the date of eligibility of release until she was released from custody on 15 December 2014. The plaintiff seeks an order in the nature of certiorari to quash the Parole Board’s decision and a declaration as to the application of section 66 of the Correctional Services Act 1992.
The second defendant contends that the plaintiff was not entitled to automatic parole because the offence of serious criminal trespass in a place of residence comprised a “home invasion” and therefore an “offence of personal violence”, as defined in the Act, which rendered her ineligible for automatic parole pursuant to section 66. The plaintiff contends that the circumstances of her offending did not amount to a “home invasion” such as to bring her within the definition of “offence of personal violence”.
Held:
1. Application refused.
2. The term “home invasion” in section 66(3)(b) of the Correctional Services Act 1992 is to have its ordinary meaning such that it will include circumstances where an offender unlawfully enters a residence of a victim without permission.
3. The plaintiff was not entitled to automatic parole pursuant to section 66(1) of the Correctional Services Act 1992, as she had committed an “offence of personal violence”. The decision of the Parole Board is valid.
Correctional Services Act 1992 (SA) s 66, s 67 ; Criminal Law Consolidation Act 1935 (SA) s 15, s 134, s 170; Criminal Law (Sentencing) Act 1988 (SA) s 20A, referred to.
Manning v Police [2015] SASC 49; Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28, (1998) 194 CLR 355; Lippl v Haines (1989) 18 NSWLR 620; Entick v Carrington (1765) 19 St Tr 1029 at 1066; Beck v Scholz [1953] 1 QB 570; Todd v Nicol [1957] SASR 72, considered.
MANNING v STATE OF SOUTH AUSTRALIA
[2015] SASC 164Civil: Judicial Review
NICHOLSON J.
Introduction
The plaintiff has brought judicial review proceedings seeking an order in the nature of certiorari to quash a decision of the Parole Board of South Australia, made on 30 October 2014, to refuse her application for parole. The plaintiff also seeks declaratory relief to the effect that she was entitled, automatically and as a matter of law, to be released on parole as from 5 June 2014, such that the refusal of parole by the Parole Board was invalid. The plaintiff also seeks an order for damages.
Central to the plaintiff’s complaint is a narrow but not necessarily straightforward issue of statutory construction. Section 66 of the Correctional Services Act 1992 (SA) (“the CSA”) makes provision for a prisoner who is liable to serve a total period of imprisonment of less than five years and for whom a non-parole period has been fixed, to be automatically released on parole at the expiration of the non-parole period, subject to certain exceptions provided for in the section.
Where a prisoner is not entitled to automatic release, an application must be made, and the Parole Board must exercise a discretion whether or not to release, in accordance with the requirements of section 67 of the CSA.
On 1 April 2014, the plaintiff was sentenced to a term of imprisonment for 12 months, commencing on 5 March 2014, with a non-parole period of three months, for the offences of serious criminal trespass in a place of residence[1] and theft.[2] An appeal against that sentence was heard by me and dismissed.[3]
[1] Contrary to s 170(1) of the Criminal Law Consolidation Act 1935 (SA).
[2] Contrary to s 134(1) of the Criminal Law Consolidation Act.
[3] Manning v Police [2015] SASC 49.
The plaintiff was eligible for parole on 5 June 2014. However, an a priori question was whether she was entitled to automatic parole in accordance with section 66 of the CSA or whether parole was discretionary and to be dealt with in accordance with section 67. On 30 October 2014, the Parole Board proceeded in accordance with section 67 and, for various reasons which are not the subject of challenge in these proceedings, exercised its assumed discretion to refuse parole.
Ultimately, parole was granted on 15 December 2014. However, the plaintiff was returned to custody on 26 December 2014 and her parole was cancelled pursuant to section 74 of the CSA. The cancellation occurred on 20 January 2015 but with effect from the date of the plaintiff’s earlier breach of parole conditions. On 5 February 2015, the earlier cancellation of parole was revoked and the plaintiff was released on parole without conditions.
The plaintiff contends that the Parole Board’s refusal to grant automatic parole, with effect from no later than 4 July 2014,[4] constituted an error of law such that she was invalidly detained from that date until released on 15 December 2014, a period of more than five months.
[4] In accordance with section 66(1)(b), had the plaintiff been entitled to automatic release on parole following the expiration of the non-parole period on 5 June 2014, the Parole Board would have been obliged to release her no later than 30 days after that date.
The second defendant[5] maintains that the plaintiff was never entitled to an automatic release on parole pursuant to section 66 of the CSA but was only ever entitled to a discretionary consideration of an application for release pursuant to section 67.
[5] On 30 June 2015, proceedings against the first defendant were dismissed by consent.
Section 66 of the CSA and the alternative contentions
Section 66 is in the following terms.
66—Automatic release on parole for certain prisoners
(1)Subject to subsection (2), the Board must order that a prisoner who is liable to serve a total period of imprisonment of less than five years and for whom a non-parole period has been fixed be released from prison or home detention on parole on a day specified by the Board, being a day—
(a) where, because the commencement of the non-parole period has been back dated, the non-parole period expires prior to the date on which it is fixed, not later than 30 days after the day on which it is fixed; or
(b) in any other case, not later than 30 days after the day on which the non-parole period expires.
(2)Subsection (1) does not apply to—
(aa) a prisoner if any part of the imprisonment for which the person was sentenced is in respect of an offence committed while the prisoner was on parole; or
(a) a prisoner if any part of the imprisonment for which the prisoner was sentenced is in respect of a sexual offence; or
(ab) a prisoner if any part of the imprisonment for which the prisoner was sentenced is in respect of an offence of personal violence; or
(ac) a prisoner if any part of the imprisonment for which the prisoner was sentenced is in respect of an offence against section 85 (being an offence consisting of arson) or 85B of the Criminal Law Consolidation Act 1935; or
(aca) a prisoner who is a serious firearm offender (within the meaning of Part 2 Division 2AA of the Criminal Law (Sentencing) Act 1988); or
(ad) a prisoner who has been returned to prison under section 74 for breach of a parole condition; or
(b) a prisoner of a class excluded by the regulations from the application of subsection (1).
(3)In this section—
offence of personal violence means any of the following offences (including a substantially similar offence against a corresponding previous enactment or the law of another place):
(a) an offence against the person under Part 3 of the Criminal Law Consolidation Act 1935;
(b) a home invasion;
(c) an offence of robbery or aggravated robbery;
(d) a conspiracy to commit, or an attempt to commit, an offence referred to in paragraph (a), (b) or (c);
(e) an offence that is committed in circumstances in which the offender uses violence or a threat of violence for the purpose of committing the offence, in the course of committing the offence, or for the purpose of escaping from the scene of the offence.
It can be seen that the entitlement to automatic parole conferred by subsection (1) is subject to the exceptions provided for in subsection (2). The second defendant submits that the Parole Board was correct to pass over section 66 and proceed in accordance with section 67, because the plaintiff had been imprisoned for an “offence of personal violence” and, therefore, fell within the exception provided for by section 66(2)(ab).
The elements of the offence of serious criminal trespass in a place of residence are as follows:
(i)that the accused entered or remained in a place of residence;
(ii)that the accused did so intentionally as a trespasser;[6] and
(iii)that, at the time of the trespass, the accused intended to commit an offence.
The second defendant submits that the plaintiff, having been convicted of the offence of serious criminal trespass in a place of residence, an element of which is that she entered and remained in the premises as a trespasser, committed a “home invasion” which comes within the definition of “offence of personal violence” according to section 66(3)(b).
[6] Or was recklessly indifferent thereto.
The plaintiff submits that whilst some offences of serious criminal trespass in a place of residence, because of their circumstances, may constitute a “home invasion” and, therefore, an “offence of personal violence”, the plaintiff’s offence, in the circumstances, did not.
The basal facts of the plaintiff’s offending[7] were that, on 5 March 2014, the plaintiff entered unsecured residential premises in the City of Adelaide and stole a laptop computer, two speaker towers, a small screen television and five remote internet connections. The premises were unoccupied at the time because the resident was in hospital. The rear door of the premises was unlocked and the plaintiff was able to enter by opening the rear door and to leave the same way. She had been able to do this on a number of occasions. No damage was caused to the premises on the occasion in question.
[7] See, generally, Manning v Police [2015] SASC 49.
It is to be accepted that the factual basis of the plaintiff’s offending gave rise to a serious criminal trespass in a place of residence very much at the low end of the spectrum for offences of this nature. No element of personal violence was, in fact, involved. Only in the most technical sense, might it be said that an element of violence towards, or with respect to, property was involved. Nevertheless, by relying on the phrase “home invasion” in its literal sense, the second defendant contends that a home was invaded and that, by force of the statutory definition, an “offence of personal violence” was committed. The plaintiff contends that the offence as committed by her, on its facts, did not constitute a “home invasion”. The plaintiff further contends, in the alternative, that on its proper construction, “an offence of personal violence” does not include a “home invasion” of the type committed by the plaintiff where no violence is involved.
Consideration
An immediate difficulty when considering the proper construction of the exception “offence of personal violence” arises from the fact that its included component “home invasion” is not itself defined for the purposes of section 66.
The notion of “home invasion” is defined for the purpose of its inclusion as a “category A serious offence” within Division 2A of the Criminal Law (Sentencing) Act 1988. It is also defined for the purpose of section 15C of the Criminal Law Consolidation Act 1935. Section 15C provides, inter alia, that the requirement of reasonable proportionality is not to apply in certain circumstances where a defendant has engaged in violent conduct by way of defence against a home invasion.
In each case, the term “home invasion” is used in a context and for an underlying purpose which is very different from that pertinent to section 66 of the CSA. However, of momentary interest is the fact that the statutory definition in each case is different.
Under Division 2A of the Sentencing Act, an offender who has committed one or more “category A serious offences” may, in appropriate circumstances, be declared a serious repeat offender with adverse consequences for that person with respect to future sentencing outcomes. A “category A serious offence” includes a “home invasion” which term is itself defined for this purpose to mean “a criminal trespass committed in a place of residence while a person is lawfully present in the place and the trespasser knows of the person’s presence or is reckless about whether anyone is in the place”.[8] It can be seen that the presence of a victim (and appropriate knowledge in the defendant) is an essential requirement for a “home invasion” to be made out. In these circumstances, the risk of physical violence occurring, or of the victim having a fear and apprehension that physical violence may occur, is enhanced.
[8] Section 20A(1) of the Sentencing Act.
By way of contrast, the defence available under section 15C to an occupant who engages in violent conduct in defence of a home invasion will apply in circumstances where the notion of “home invasion” is defined differently, namely, and merely, “a serious criminal trespass committed in a place of residence”.[9] In this case, Parliament defined the term “home invasion” in a way that does not require a victim to be present in the premises. Of course, it might be put that this situation is quite unlikely to occur. If one is talking about a victim taking physical action to defend against a home invasion, ipso facto, the victim will be present. To this extent, it would be unnecessary to include this element in the definition of “home invasion”. It is not necessary, for present purposes, that I form a conclusion as to a proper construction or understanding of the term “home invasion” as used in section 15C. However, it may be that Parliament intended to employ a wider definition here in order to capture, for example, the situation where the premises are empty at the time of the home invasion but the occupant returns as the invaders are leaving. They may engage one another in the front yard or in the street and the circumstances may be such as to involve conduct that is genuinely in defence of property.
[9] Section 15C(3) of the Criminal Law Consolidation Act.
What is of some significance is that, for each of these statutory environments, Parliament has provided for a definition of home invasion and has provided for a different definition, presumably seen as necessary or appropriate for the particular purpose at hand. By way of contrast, Parliament saw no need to define home invasion for the purposes of section 66 of the CSA. If anything, this serves to emphasise that Parliament intended the term, as used in section 66, to carry its ordinary English meaning having regard to the context in which it is used.
In Project Blue Sky v Australian Broadcasting Authority[10] the plurality (McHugh, Gummow, Kirby and Hayne JJ) provided the following guidance.
However, the duty of a court is to give the words of a statutory provision the meaning that the legislature is taken to have intended them to have. Ordinarily, that meaning (the legal meaning) will correspond with the grammatical meaning of the provision. But not always. The context of the words, the consequences of a literal or grammatical construction, the purpose of the statute or the canons of construction may require the words of a legislative provision to be read in a way that does not correspond with the literal or grammatical meaning. In Statutory Interpretation, Mr Francis Bennion points out:
"The distinction between literal and legal meaning lies at the heart of the problem of statutory interpretation. An enactment consists of a verbal formula. Unless defectively worded, this has a grammatical meaning in itself. The unwary reader of this formula (particularly if not a lawyer) may mistakenly conclude that the grammatical meaning is all that is of concern. If that were right, there would be little need for books on statutory interpretation. Indeed, so far as concerns law embodied in statute, there would scarcely be a need for law books of any kind. Unhappily this state of being able to rely on grammatical meaning does not prevail in the realm of statute law; nor is it likely to. In some cases the grammatical meaning, when applied to the facts of the instant case, is ambiguous. Furthermore there needs to be brought to the grammatical meaning of an enactment due consideration of the relevant matters drawn from the context (using that term in its widest sense). Consideration of the enactment in its context may raise factors that pull in different ways. For example the desirability of applying the clear literal meaning may conflict with the fact that this does not remedy the mischief that Parliament intended to deal with." (footnotes omitted)
[10] [1998] HCA 28; (1998) 194 CLR 355 at [78] (citations omitted).
Each party provided detailed and quite comprehensive arguments in support of their respective positions; aspects of the second defendant’s argument, in particular that dealing with the historical context, were comprehensively researched and erudite. I mean no disrespect to either party by not canvassing all of the arguments put forward. My reasons for accepting the second defendant’s analysis can be concisely expressed.
I agree with the second defendant’s contention that the term “home invasion” which appears as one of the definition alternatives for the term “offence of personal violence”, contributes to the meaning of that term but not the other way around. In other words, the notion “home invasion” is to be construed and applied to the circumstances, independently of whether or not the circumstances themselves involve any element of personal violence. As a matter of principle, where the term “offence of personal violence” is defined by reference to, inter alia, a component term or concept, it would not be appropriate to first give a meaning to the statutorily defined term in order to assist with the meaning of the component.
The fact that the “home invasion” component of the definition of “offence of personal violence” may not necessarily incorporate an element of personal violence, does not render this component of the definition unique in this respect. There are a number of offences that fall within various components of the definition, set out in section 66(3) the commission of which will not necessarily involve perpetration of violence or even a physically present victim. For example, the offences of unlawful stalking, participating in a street race and possession of a firearm[11] all qualify under section 66(3)(a) as offences of personal violence. Whilst no personal violence, ordinarily, will be involved, each of these offences is an offence against the person and the conduct captured poses a risk to personal safety or an apprehension by a victim of such a risk.
[11] Contrary to sections 19AA, 19AD and 32, respectively, of the Criminal Law Consolidation Act.
Similarly, the exception contained in section 66(3)(d) (“a conspiracy to commit... [various identified offences]”) will carry a threat or risk to personal safety through violence or an apprehension of such a risk. However, the offence often will be completed notwithstanding the absence of any actual personal violence.
A “home invasion” similarly carries with it the threat or the risk of personal violence occurring or an apprehension of such a risk by a victim.[12] The fact that, on occasions, a victim is not expected to be or may not be present, does not completely obviate such a threat or risk. A victim may be present with the offender not knowing of the presence or, indeed, believing, on reasonable grounds, that a victim is not present at the time of entry. The premises may be empty at the time of entry and known by the offender to be empty but there still will be the risk that a lawful occupant might return or a lawful invitee might come to the premises whilst the offence is in progress.
[12] Cf; Lippl v Haines (1989) 18 NSWLR 620 at 622.
This may be the reason why Parliament did not seek to define the term “home invasion” either at all or, in particular, so as to include the element of a victim being present, as in the case of the definition applicable to a “category A serious offence” for the purpose of Division 2A of the Sentencing Act.
It is not necessary that I ascertain the reason or reasons why Parliament has included in the definition of “offence of personal violence” offences that may never or may only sometimes involve, in fact, acts of personal violence. I agree with the second defendant’s submission that the effect of subsections (2)(ab) and (3) of section 66, when read together, is that subsection (3) lists a number of classes of offence and offences with respect to which an entitlement to automatic parole is excluded and, that the drafting technique adopted is to gather these offences and classes of offence under the umbrella term “offence of personal violence”. In other words, paragraph (ab) of subsection (2) is to be read as if it was in the following terms – “... if any part of the imprisonment for which the prisoner was sentenced is in respect of any of the offences or conduct set out in subsection (3)”.
There is a practical and commonsense consequence to this conclusion. The Parole Board is, essentially, an administrative body. One of its tasks is to exercise a discretion whether or not to grant parole to a prisoner who is not otherwise automatically, by force of statute, entitled to parole. This task would be rendered particularly onerous if the Parole Board was not able to rely on a practical and commonsense reading of section 66.
The construction of the definition contended for by the plaintiff would serve to promote, and increase substantially the number of, challenges to the Parole Board’s determinations of whether or not section 66(1) or section 67 applied. The approach contended for is inimical to the approach taken by Parliament in giving the term “offence of personal violence” a defined meaning which stands apart from or is not directly related to the question of whether, on a case by case basis, actual personal violence has taken place.
It follows that the only question before the Parole Board in determining whether or not to apply section 66(1) or section 67, in the circumstances of this case, was whether or not the plaintiff had committed a “home invasion”. It would have been an irrelevant consideration for the Parole Board to have asked itself whether or not any home invasion, committed, involved or incorporated an act of personal violence.
I agree with the submission put on behalf of the second defendant that the proper construction of the phrase “home invasion”, in the absence of a statutory definition, rests on the ordinary and natural meaning of the words used, having regard to their grammatical construction, their context and the construction of the CSA as a whole.[13]
[13] Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355 at [78] (McHugh, Gummow, Kirby and Hayne JJ).
I agree with the second defendant’s contention that the term “invasion” when used in conjunction with a proprietary right is synonymous with the notion of trespass. In Entick v Carrington,[14] Lord Camden LJ stated the, now, uncontroversial proposition: “By the laws of England, every invasion of private property, be it ever so minute, is a trespass”. Of course, the converse does not, as a matter of logic, necessarily apply. Not every trespass to private property will necessarily constitute an invasion, although, typically, this will be so.
[14] (1765) 19 St Tr 1029 at 1066.
In the present case, the matter is to be determined not in the context of the generic term “trespass” but in the context of the offence proscribed by section 170(1) of the Criminal Law Consolidation Act, of serious criminal trespass in a place of residence. The elements of this offence have (earlier) been set out. For present purposes, it is the first and second elements that are of relevance; that the accused entered or remained in a place of residence, and did so, in effect, knowing that she had no permission or authority to do so or being recklessly indifferent thereto. A residence is in the nature of a “home”, being a dwelling in which its occupants, ordinarily, personally reside.[15] The notion connotes a “place of refuge and rest”[16] and is a place the security and privacy of which the common law has long held to be sacrosanct.
[15] Beck v Scholz [1953] 1 QB 570 at 575-576 (Evershed MR), Todd v Nicol [1957] SASR 72 at 86 (Mayo J).
[16] Todd v Nicol [1957] SASR 72 at 86 (Mayo J).
It is this understanding of the notion of “home” or “place of residence” that informs the meaning to be given to the protean expression “invasion”. The word is commonly used in the context of an invading force, such as an hostile inroad into another country’s sovereign territory by an invading army. In other contexts, it bears a more benign connotation, such as an invasive medical procedure which, whilst done for beneficial purposes and, ordinarily, with the consent of the patient, will involve the invasion of or forced entry into bodily tissue. In the present context, the more general meaning of an “infringement by intrusion; encroachment upon the property, rights, privacy, etc of anyone”[17] is apposite. Used in this ordinary sense and in the context of the phrase “home invasion”, the word “invasion” means no more and no less than some form of unauthorised entry. Axiomatically, in the present context, the only unauthorised entries of relevance will be those that constitute or form part of a criminal offence with respect to which a person has been imprisoned with a non-parole period. In this sense, only serious “home invasions” are captured by the definition, even though there may, in fact, have been no element of personal violence.
[17]The plaintiff was convicted of the offence of serious criminal trespass in a place of residence because she unlawfully entered the residence of the victim without permission, knowing this to be so and with the intent of committing an offence. The plaintiff committed a home invasion even though, in the circumstances of this case, the home invasion committed was very much towards the less serious end of the spectrum of offences of this type.
By committing a home invasion, the plaintiff engaged, by definition, in an “offence of personal violence” with respect to which she was imprisoned. Accordingly, she was not entitled to automatic parole pursuant to section 66(1) of the CSA. The plaintiff’s application for an order in the nature of certiorari and for declaratory relief is refused.
The second defendant also submits that the discretionary jurisdiction to grant relief should not, in any event, be exercised, on the basis that to do so would lack utility and be futile. The second defendant further submits that, irrespective of whether or not the plaintiff were to succeed with the judicial review proceedings, no cause of action has been pleaded nor any material facts particularised that could support a claim for damages. As such, there is, in any event, no basis upon which the Court could award damages.
The second defendant, in arguing futility, relies on the fact that, ultimately, the plaintiff was granted parole on conditions but breached those conditions and was returned to custody, prior to being, again, released on parole unconditionally (see earlier). Nevertheless, I am inclined to the view that it could not be said to be futile for orders to be made, insofar as necessary, to correct a person’s criminal record so as to ensure that it properly identified periods of time during which that person had been, respectively, lawfully held in custody and unlawfully held in custody. To the extent that there were to have been a period or periods during which the plaintiff had been wrongly detained, court orders and the plaintiff’s criminal record should properly reflect this. However, it is unnecessary that I form a concluded view on this alternative contention put by the second defendant.
I agree that, by reference to the matters pleaded by the plaintiff, no basis upon which the Court could award damages has been established, even if the plaintiff had been wrongly imprisoned. However, whether or not the plaintiff, had she succeeded with judicial review, would have been entitled to seek damages in some other forum or through separate proceedings is not a matter I need to determine.
Conclusion
The plaintiff’s application for judicial review is dismissed.
Meaning 2 as referred to in the Oxford English Dictionary, available at: OED Online, “invasion, n” (September 2015) Oxford University Press, <
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