Marrogi v The Secretary of the Department of Justice
[2015] VSC 300
•18 June 2015
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
S CI 2015 02831
| GEORGE MARROGI | Plaintiff |
| v | |
| THE SECRETARY OF THE DEPARTMENT OF JUSTICE | Defendant |
---
JUDGE: | EMERTON J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 17 June 2015 |
DATE OF JUDGMENT: | 18 June 2015 |
CASE MAY BE CITED AS: | Marrogi v The Secretary of the Department of Justice |
MEDIUM NEUTRAL CITATION: | [2015] VSC 300 |
---
ADMINISTRATIVE LAW – O 57 Supreme Court (General Civil Procedure) Rules 2005 – Decision to cancel parole – Whether parole condition void for uncertainty – Meaning of the term ‘Outlaw Motorcycle Club’.
---
APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr J Burnside QC with Ms L Ristivojevic | Tricarico & Marcevski Lawyers |
| For the Defendant | Ms F McKenzie | Victorian Government Solicitor’s Office |
HER HONOUR (ex tempore):
The plaintiff seeks a writ of habeas corpus pursuant to O 57 of the Supreme Court (General Civil Procedure) Rules 2005. The plaintiff is under sentence for, among other things, manslaughter and recklessly causing serious injury. On 23 March 2015, he was granted parole by the Adult Parole Board (the ‘Board’), with parole to commence on 14 April 2015. On 7 May 2015, the Board cancelled the plaintiff’s parole for failure to comply with the conditions of his parole and ‘unacceptable risk’.
The plaintiff was released on parole subject to a number of conditions. Condition 19 reads as follows:
You must not contact, directly or indirectly, the victims. That you do not directly or indirectly, communicate with any Outlaw Motorcycle Club member or attend any Outlaw Motorcycle Clubhouse.
Clause 83B(1)(i) of the Corrections Regulations2009 permits the Board to impose a condition that the prisoner must not contact, directly or indirectly, a person or class of person (or both) specified in the order.
The formal record of the special meeting that occurred on 7 May 2015 that resulted in the cancellation of parole records the Board’s cancellation decision as follows:
Parole Cancelled Warrant to Issue
(Conditions and unacceptable risk)
The reasons for the Board’s cancellation decision are set out in tabular form. The first line states: ‘1. Benefit to the community of the offender remaining on parole outweighed by the risk’. There is then a reference to ‘Conditions and unacceptable risk’, to ‘No contact condition’ and ‘Condition 19 – Member of OMCG, shows calls to Acaia (sic) unit at Barwon prison’. Under ‘General notes’ it is recorded as follows:
Unacceptable risk – intel report, calls indicate offender is undertaking debt collecting on behalf of high profile member of rival motorcycle club
The central allegation made against the plaintiff is that he breached Condition 19 by communicating by telephone with a prisoner who is a member (or putative member) of the Comancheros motorcycle club, and that the plaintiff is involved in nefarious activities outside of the prison on behalf of that prisoner.
The plaintiff’s case is that the Board fell into jurisdictional error in that it purported to cancel the plaintiff’s parole on the basis that he breached a condition of his parole in circumstances where such a finding was not reasonably open or where, as a matter of fact, the Board had simply not made such a finding.
To this end, the plaintiff relies on the affidavit of Sarah Tricarico sworn on 2 June 2005 which exhibits correspondence with the defendant about the reasons for the cancellation of parole. The defendant has filed no less than five affidavits in response: the affidavit of Stuart Ward, Chief Administrative Officer and Secretary of the Board made on 16 June 2015; the affidavit of Craig Howard, Assistant Commissioner, Security and Intelligence Division, Corrections Victoria, made on 16 June 2015; the affidavit of Kelly Bray, Senior Parole Officer, Community Corrections Services within Corrections Victoria, also made on 16 June 2015, and an affidavit made yesterday by Tania Zita of Corrections Victoria exhibiting a full copy of a Risk and Compliance Report dated 7 May 2015 upon which the cancellation was based, part of which was inadvertently omitted from the affidavit of Kelly Bray. Some parts of these affidavits have been objected to by the plaintiff.
The plaintiff has now raised what his Senior Counsel described as a ‘threshold issue’ which, if decided in his favour, would determine the O 57 application, for it would require him to be released on the ground that there was no basis for the cancellation of his parole. He submits that the parole condition that he is alleged to have breached (Condition 19) is meaningless and that the Board is therefore not capable of being satisfied that it was breached.
The argument is, in substance, that there is no thing known to Victorian law as an ‘Outlaw Motorcycle Club’ or, for that matter, an ‘Outlaw Motorcycle Clubhouse’. Condition 19, the plaintiff says, is meaningless and therefore incapable of being complied with or, for that matter, breached.
This ‘threshold’ question was raised apparently without notice to the defendant. It was plainly made ‘on the run’ and the Court was not referred to particular authorities or evidence that might have been of assistance in determining this question.
There was some evidence about outlaw motorcycle clubs before the Court. In his affidavit, Mr Howard deposed that the Australian Crime Commission (the ‘ACC’) provides intelligence on ‘outlaw motorcycle gangs’, which is used by Corrections Victoria to assess risks to its prisoners. According to Mr Howard, the ACC formally lists these groups as ‘four of the OMCG namely, Comancheros, Finks, Hell’s Angels and Mongols’. The members use the club, its reputation or membership for criminal activities. Mr Howard deposed to the content of ACC advice concerning the structure of outlaw motorcycle gangs, how membership is obtained and how their rules are determined. This painted a picture of structured and fairly readily identifiable bodies.
However, counsel for the defendant submitted that Condition 19 could not be any more precisely formulated because what constitutes an outlaw motorcycle club or gang is not capable of being specifically defined and members may ‘self-identify as members’. Counsel submitted that, notwithstanding the definitional problem, people generally knew what was meant by the term, and that it was almost something of which the Court could take judicial notice. Counsel also submitted that the Board could not be more specific in drafting a condition referring to outlaw motorcycle clubs, because if it nominated particular clubs, the condition would be easily circumvented by the establishment of new clubs in Victoria.
There appears to me to be some tension between the submission made by counsel for the defendant as to the need for generality in a non-association condition relating to outlaw motorcycle clubs (based on the proposition that members of such clubs may be ‘self-identifying’ and the fact that, at the same time, people generally know what is meant by the expression ‘outlaw motorcycle clubs’) and the position of the ACC as deposed to by Mr Howard, which is that ‘outlaw motorcycle gangs’ constitute defined clubs with known or identifiable structures and rules.
This indicates that there may well be some uncertainty as to what kinds of associations or communications are captured by Condition 19.
The part of the expression that gives rise to potential uncertainty is the descriptor ‘outlaw’. The term ‘outlaw’ in ‘outlaw motorcycle club’ carries a particular meaning, at least in the United States of America. According to some histories, it does not refer to the clubs acting outside of the law but, rather, to the clubs that are not sanctioned by the American Motorcyclist Association and do not adhere to that Association’s rules. However, it is questionable whether such a definition of an ‘outlaw’ motorcycle club would have any currency in Australia. Indeed, the evidence of Mr Howard suggests that in the Australian context the descriptor may have more to do with the known criminal activities of such clubs.
During the hearing, I formed a preliminary view that, if Condition 19 indeed applied to any ‘self-defining’ member of any group of motorcyclists that engaged in criminal activities, then the plaintiff might well be in peril of having his parole cancelled arbitrarily because the ambit of Condition 19 was uncertain.
However, following the hearing of the application, I was referred by the defendant to the decision of the Supreme Court of New South Wales in Moefili v State Parole Authority.[1] The Court was required to determine whether a parole condition prohibiting the parolee from associating with any member of any outlaw motorcycle gang was void for uncertainty. It had the benefit of submissions from the Attorney General for New South Wales, which included reference to numerous decisions of the New South Wales Court of Criminal Appeal, Supreme Court and other Australian courts and tribunals in which the expression ‘outlaw motorcycle gang’ appears. The Attorney General submitted that the expression was neither a term of art nor a matter of statutory definition, but one that had or conveyed a meaning in ordinary usage.[2] That submission was accepted by the Court.
[1][2009] NSWSC 1146.
[2]Ibid [73].
Justice Hall stated that conditions attaching to parole must be expressed in terms that provide a reasonable level of specificity and clarity so that an offender is given a proper opportunity to understand the requirements or restrictions that they impose.[3] Insofar as a class of persons is specified in a non-association condition, the class must be stated in sufficiently precise terms to enable the parolee to identify the specified persons.[4]
[3]Ibid [81].
[4]Ibid [88].
His Honour concluded that there was no uncertainty or ambiguity in the condition.[5] It was not suggested that the expression ‘outlaw motorcycle gangs’ had no currency or usage in Australia and nor could it have been.[6] The evidence indicated that the expression was one in use in the community.[7] Furthermore, the expression had been widely used in case law.[8] While uncertainty could arise if an expression in common usage was employed, whether there was in fact uncertainty would turn on the facts. On the evidence before his Honour, an inference could be drawn concerning the plaintiff’s knowledge and understanding of the existence and nature of motorcycle gangs.[9]
[5]Ibid [98].
[6]Ibid [92].
[7]Ibid.
[8]Ibid [93].
[9]Ibid [95].
I consider that his Honour’s reasoning is sound.
The question is whether Condition 19 contains a level of specificity and clarity to enable the plaintiff to understand the requirements or restrictions imposed by it. As a breach of condition can result in the cancellation of parole and the severe deprivation of liberty involved in being re-incarcerated, the meaning of Condition 19, that is, to whom it applies and to whom it does not, must be capable of being readily ascertained and understood by the plaintiff.
One of the relevant factors will be whether the expression ‘outlaw motorcycle club’ is an expression that has common currency, such that the plaintiff could be expected to understand it. In this context, I do not consider that there is any relevant difference between an ‘outlaw motorcycle club’ and an ‘outlaw motorcycle gang’. Although there was no evidence before me as to the currency of either expression, I consider that they must have at least as much currency in Victoria in 2015 as the expression ‘outlaw motorcycle gang’ had in New South Wales in 2009 when Moefili was decided. It is a term that has been commonly used for many years to describe a number of readily identifiable motorcycle clubs that engage in organised criminal activities. These clubs are notorious: their names and the nature of at least some of their activities have become well known to members of the public through extensive media exposure. They trade on being known as outlaw motorcycle clubs. That is part of their business model because it is how they exert influence.
It is for that reason that the expression is used without elaboration in the case law to which Hall J refers in Moefili. I have also been referred to case law in which the expression is used without comment or explanation, comment or explanation being unnecessary.
It was submitted by the defendant that the plaintiff well knows what is meant by Condition 19 because there is evidence that he took steps to avoid contact with certain persons when first released on parole and he has since complained to his Community Corrections Officer about the breadth of the Condition and the impediment that it represents to his resuming his former lifestyle.
I accept this submission. The affidavit of Ms Bray exhibits records of her interviews and discussions with the plaintiff on the topic of Condition 19. For example, at the induction interview on 15 April 2015, there was the following discussion:
OMG condition discussed, he reported that he is an active member of the Mongols and was to have ‘some of the boys’ from the South Australia chapter were to pick him up, but were unable to given his condition. He denied that this would be an issue, reporting that he does not plan to have contact with them.
Again, on 16 April 2015:
Order conditions explained again, and the writer questioned the management of the non-association condition. He reported that a ‘message’ had gotten out to ‘all the boys’ before he was released and they were aware that he was unable to have contact with them. He reported that he was unaware of any other Mongols members reporting to the location, stating that his cousins who reside in Sydney are comancheros members, stating that he is also ‘very good friends’ with the National President of the comancheros who was in custody, reporting that they were friends prior to him entering prison and whilst in prison. He denied any contact with him. He reported no issues or concerns.
On 17 April 2015, the plaintiff is reported to have expressed frustration with the non-association condition, indicated that he was a member of the Mongols but denied associating with them while on parole.
On the evidence before me, the plaintiff is a member of an outlaw motorcycle club himself and well understands the class of people with whom he cannot associate while on parole. He has lived with but railed against Condition 19. Through his own activities and the time spent in prison, he is familiar with the nature and operations of ‘outlaw motorcycle clubs’ and their members. I do not believe that it takes one to know one, but if one is one, then one most likely does know one. In the circumstances, it would be highly artificial to find that the plaintiff did not know the type of person with whom he was not to associate pursuant to Condition 19.
The fact that the term ‘outlaw motorcycle club’ is not known to Victorian law, in the sense that it has not been legally defined or recognised is not to the point. Condition 19 is directed to managing the conduct of the plaintiff while he is on parole. Whether it is void for uncertainty may depend on a range of matters, but importantly, it will depend on whether the plaintiff is capable of understanding what the term means, having regard to its currency and the particular circumstances of the plaintiff and the knowledge that can be attributed to him.
It follows that I consider that Condition 19, insofar as it prohibits contact or communication with ‘any outlaw motorcycle club member’, has a sufficiently clear meaning to the plaintiff that it is not void for uncertainty.
As a result, I am not persuaded that a writ under O57 should issue on the basis of the threshold argument that Condition 19 is void and that there is therefore no justification for the continued detention of the plaintiff.
If I am wrong about this, and condition 19 is void for uncertainty, the question remains as to whether the Board also cancelled the plaintiff’s parole on an independent basis, namely, that there was an unacceptable risk to the community if he remained on parole.
Section 77(1) of the Corrections Act 1986 provides that the Board may at any time before the end of the parole period cancel the parole. Although this power is not unlimited, it is not necessary that there be a breach of a parole condition for the Board to exercise its power to cancel parole. Pursuant to s 73A of the Act, the Board must give paramount consideration to the safety and protection of the community in determining whether or not to cancel a prisoner’s parole. In my view, the Board had power to cancel the plaintiff’s parole if satisfied that it was necessary for the safety and protection of the community, whether or not he had breached any of the conditions of his parole.
It was submitted by the defendant that, aside from any breach of a parole condition, the Board had concluded that it was in the interests of the safety and protection of the community to cancel the plaintiff’s parole because of the matters revealed in the intelligence reports.
There is clearly an argument to be made that the breach of Condition 19 is an integral part of the Board’s decision and that if Condition 19 falls, the decision to cancel parole falls with it. However, that depends on an analysis of the evidence and the making of findings as to the basis upon which the Board made its decision. Such findings may be required in the substantive application, and are therefore questions for another day.
It is now a question of scheduling and making orders for the conduct of the substantive argument.
2