NGJF v Prisoners Review Board

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JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

IN CHAMBERS

CITATION:   NGJF -v- PRISONERS REVIEW BOARD [2010] WASC 107

CORAM:   HALL J

HEARD:   20 APRIL 2010

DELIVERED          :   21 MAY 2010

FILE NO/S:   CIV 1190 of 2010

BETWEEN:   NGJF

Plaintiff

AND

PRISONERS REVIEW BOARD
Defendant

Catchwords:

Administrative law - Duty to give reasons - Parole - Whether report is a decision - Content of reasons - Declaration

Legislation:

Offenders Community Corrections Act 1963 (WA), s 34, s 40D
Parole and Sentencing Legislation Amendment Act 2006 (WA), s 59
Sentence Administration Act 2003 (WA), s 4, s 5C, s 12, s 12A, s 25, s 107, s 107A, s 107B, s 107C, s 114, s 115, s 115A
Sentence Administration Regulations 2003 (WA), reg 3B, reg 3D, reg 3E, reg 3F, reg 3G, reg 3H, reg 3I, reg 3J, reg 3K
Sentencing (Consequential Provisions) Act 1995 (WA), s 86
Sentencing Legislation Amendment and Repeal Act 2003 (WA), sch 1, cl 13

Result:

Declaration made

Category:    A

Representation:

Counsel:

Plaintiff:     In person

Defendant:     Mr D J Matthews

Solicitors:

Plaintiff:     In person

Defendant:     State Solicitor for Western Australia

Case(s) referred to in judgment(s):

Ainsworth v Criminal Justice Commission (1992) 175 CLR 564

Annetts v McCann (1990) 170 CLR 596

Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321

Brettingham Moore v St Leonards (1969) 121 CLR 509

Griffith University v Tang (2004) 221 CLR 99

Hot Holdings Pty Ltd v Creasy (1996) 185 CLR 149

Ireland v Hosie [2003] WASC 223

Minister for Aboriginal Affairs v Peko‑Wallsend (1986) 162 CLR 24

Minister for Resources v Dover Fisheries Pty Ltd (1993) 43 FCR 565

Public Service Board of New South Wales v Osmond (1986) 159 CLR 656

R v MacFarlane (1923) 32 CLR 518

R v Parole Board; Ex parte Wilson (1992) 1 QB 740

R v St Lawrences Hospital Statutory Visitors; Ex parte Pritchard (1953) 1 WLR 1158

R v The Parole Board; Ex parte Forbes (1996) 89 A Crim R 139

Rechichi v The Parole Board of Western Australia [2001] WASC 363

HALL J: 

Introduction

  1. The plaintiff is a serving prisoner.  In 1992 he was sentenced to life imprisonment for wilful murder.  Under the law that then applied he could be considered for parole after serving 12 years and, if refused, every three years thereafter.  The Prisoners Review Board (the Board) could, however, conduct a review at other times and it (or its predecessor) has done so in regard to the plaintiff.  In particular, on 2 June 2009 a review occurred and a report was made by the Board to the relevant Minister.  These proceedings relate to that review.

  2. Under the applicable law a decision to grant parole to a prisoner serving a life sentence for wilful murder can only be made by the Governor following a report by the Board to the Minister.  On 7 October 2009 the plaintiff was advised that it had been decided that he would not be released on parole and also that he would not be…

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Details
Case
[2010] WASC 107
Decision Date

CaseChat Overview and Summary

The plaintiff, NGJF, brought proceedings against the Prisoners Review Board seeking a declaration that a report prepared by the Board did not constitute a decision for the purposes of s 107B of the Sentence Administration Act 2003 and an order that the Board provide reasons for its decision to refuse parole. The case was heard and determined by the Supreme Court of Western Australia. The central issue before the Court was whether the report constituted a decision for the purposes of s 107B, and if so, whether the Board was required to provide reasons for its decision in the report. The Court considered whether the report was a decision that required reasons under s 107B of the Act.

In determining whether the report constituted a decision, the Court held that s 107B(3) listed decisions that attract the notification obligation, but this was an inclusive not an exclusive list. Therefore, other decisions may also fall under the obligation to provide reasons. The Court found that the Board's report recommending that parole be refused was a decision that required reasons under s 107B(4) of the Act. The Court held that the Board was required to provide reasons for its decision to refuse parole, regardless of whether the decision was made by the Board or the Governor. The Court found that the Board had failed to provide adequate reasons in the report for its decision to refuse parole.

The Court made a declaration that the report did constitute a decision for the purposes of s 107B of the Sentence Administration Act 2003 and ordered the Board to provide reasons for its decision to refuse parole. The Court held that the Board was required to provide reasons for its decision in the report, regardless of whether the decision was made by the Board or the Governor. The Court found that the Board had failed to provide adequate reasons in the report for its decision to refuse parole.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

As has been previously noted, although the timing of reports and the circumstances in which they could be made continued to be governed in respect of the plaintiff by the OCCA some parts of the Sentence Administration Act 2003 were applied by the transition provisions. This includes pt 9 of the Sentence Administration Act 2003. Section 107B is contained in pt 9 and it provides:107B. Notification of Board's decisions (1)The Board must give a prisoner written notice of any decision made under this Act in respect of the person as soon as practicable after the decision is made.(2)The Board must give the CEO written notice of any decision made under this Act in respect of a prisoner as soon as practicable after the decision is made.(3)Without limiting subsections (1) and (2), they apply ‑(a)to a decision, whether by the Board or the Governor, not to make an early release order in respect of a prisoner;(b)to a decision to make a parole order in which the release date is not the day when, under section 23(2) or section 93(1) of the Sentencing Act 1995, the prisoner is eligible to be released on parole;(c)to a decision, whether by the Governor or the Board, to amend, suspend or cancel an early release order; and(d)to a decision by the Board not to make a request under section 13(4) after receiving a report under section 13(3) or not to endorse, with or without variations, a re‑socialisation programme received under section 13(4), and, in the case of subsection (1) ‑(e)to a decision by the CEO to suspend an early release order.(4)Subject to section 114, a notice under subsection (1) or (2) must include the reasons for the decision.(5)If the decision is a reviewable decision, as that term is defined in section 115A, a notice under subsection (1) must inform the prisoner of the effect of section 115A. Section 107B was inserted into the Act by the Parole and Sentencing Legislation Amendment Act 2006 (WA) and became operative on 28 January 2007. Accordingly, s 107B was not a part of pt 9 of the Sentence Administration Act 2003 when it was applied to persons in the plaintiff's position by cl 13(5) of the Sentencing Legislation Amendment and Repeal Act 2003. However, s 16 of the Interpretation Act provides that references to written laws are deemed to include a reference to those laws as from time to time amended. The words 'early release order' used in s 107B(3)(a) are defined in s 4 to mean a parole order or a re‑entry release order. Consequently, a decision not to order parole is a decision that must be the subject of written notice to the affected prisoner: s 107B(1). Furthermore, any such notice must include reasons for the decision: s 107B(4). The decisions listed in s 107B(3) are an inclusive not an exclusive list and thus other decisions may also attract the notification obligation. Decisions by the Governor to deny parole are expressly included in s 107B(3). This means that the Board is nonetheless required by s 107B(4) to provide reasons even where the decision is one of the Governor.

Ratio Decidendi

Legal Principle Established

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