Palizio v NSW Parole Authority
[2013] NSWSC 1829
•13 December 2013
Supreme Court
New South Wales
Medium Neutral Citation: Palizio v NSW Parole Authority [2013] NSWSC 1829 Hearing dates: 02/12/2013 Decision date: 13 December 2013 Before: Hoeben CJ at CL Decision: Plaintiff's summons dismissed.
Plaintiff's application under Court Suppression and Non-publication Orders Act 2010 (NSW) refused.
Catchwords: ADMINISTRATIVE LAW - Application under s69 Supreme Court Act 1970 (NSW) - application to quash defendant's decision confirming revocation of parole of plaintiff - plaintiff goes to Western Australia in breach of parole conditions - plaintiff commits further offences in Western Australia - plaintiff sentenced to imprisonment in Western Australia - whether imprisonment in Western Australia counts towards service of parole period in NSW - meaning of s171(3) of the Crimes (Administration of Sentences) Act 1999 (NSW) - meaning of "taken into custody" and "at large" as used in section - whether decision of defendant manifestly unreasonable - whether defendant failed to have regard to a mandatory relevant consideration - plaintiff's summons dismissed - plaintiff's application under Court Suppression and Non-publication Orders Act 2010 (NSW) refused. Legislation Cited: Court Suppression and Non-publication Orders Act 2010 (NSW)
Crimes (Administration of Sentences) Act 1999 (NSW) - s171(3)
Interpretation Act 1987 (NSW) - s12(1)
Prisoners (Interstate Transfer) Act 1982 (NSW)
Service and Execution of Process Act 1992 (Cth)
Supreme Court Act 1970 (NSW) - s69Cases Cited: Associated Provincial Picture Houses Ltd v Wednesbury Corporation - [1948] 1 KB 223
Australian Broadcasting Tribunal v Bond [1990] HCA 33; 170 CLR 321
Callaghan v R [2006] NSWCCA 58; 160 A Crim R 145
Dempster v National Companies and Securities Commission [1993] 9 WAR 215
Fairfax Digital Australia and New Zealand Pty Ltd v Ibrahim [2012] NSWCCA 125; 293 ALR 384
Legal Services Board v Gillespie-Jones [2013] HCA 35; 87 ALJR 985
Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40; 162 CLR 24
Minister for Immigration and Citizenship v Li [2013] HCA 18; 297 ALR 225
Morrison v The Queen [2009] NSWCCA 211; 197 A Crim R 103
Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; 194 CLR 355 at 381
R v Adams [1935] HCA 62; 53 CLR 563
Re Bolton; Ex parte Beane [1987] HCA 12; 162 CLR 514
Secretary of State for Education and Science v Tameside Metropolitan Borough Council [1976] UKHL 6; [1977] AC 1014
Waterford v Commonwealth [1987] HCA 25; 163 CLR 54Category: Principal judgment Parties: Bagio Palizio - Plaintiff
New South Wales State Parole Authority - Defendant
Attorney General for the State of New South Wales - IntervenorRepresentation: Counsel:
Mr M Wise/Mr A Solomon-Bridge - Plaintiff
Submitting Appearance - Defendant
Mr J Hutton - Intervenor
Solicitors:
Arslan Lawyers - Plaintiff
IV Knight, Crown Solicitor - Defendant
IV Knight, Crown Solicitor - Intervenor
File Number(s): 2013/355115
Judgment
HIS HONOUR:
Nature of Proceedings
The plaintiff moved the court pursuant to s69 of the Supreme Court Act 1970 (NSW) for the following orders:
1. A declaration that an error of law has occurred in the decision and the reasons therefor made by the defendant on 13 September 2013 confirming the revocation of parole in relation to the plaintiff.
2. A declaration that for the purposes of s171(3) of the Crimes (Administration of Sentences) Act 1999 (NSW) the plaintiff was taken into custody on 23 November 2011 and was not at large between 23 November 2011 and 23 May 2013.
3. An order in the nature of certiorari quashing the defendant's decision made on 13 September 2013 confirming the revocation of parole in relation to the plaintiff.
4. An order in the nature of mandamus directing the defendant to convene and fulfil its public duty by determining the application for the plaintiff's revocation order to be rescinded in accordance with law.
5. Alternatively:
(a) A declaration that, for the purposes of s137(1) of the Crimes (Administration of Sentences) Act, the plaintiff's parole eligibility date has passed.
(b) An order in the nature of mandamus, directing the defendant to consider forthwith whether or not the plaintiff should be released on parole.
6. An order that the defendant pay the plaintiff's costs of these proceedings.
Those orders were sought on the following grounds:
1. (a) The defendant erred in law in its construction of s171(3) of the Crimes (Administration of Sentences) Act 1999 (NSW) in requiring the plaintiff's custody to have been in New South Wales for that provision to have effect.
(b) The defendant should have construed that provision as capable of application in circumstances where the plaintiff was in custody outside of New South Wales and a reason for the plaintiff's custody in that other place was the existence of the warrant for arrest issued by the defendant.
2. The defendant's decision was manifestly unreasonable in circumstances where the reason for the plaintiff's failure to comply with his obligations under the parole order was because he had fled New South Wales in fear of his life.
3. The defendant erred in law by failing to take into account the fact that the sentence he received from the District Court of Western Australia did not reflect an application of the totality principle.
Factual Background
The plaintiff was granted expedition in this matter. The defendant entered a submitting appearance. The intervenor was granted leave to appear and acted as a contradictor in the proceedings.
The plaintiff was born in 1975. He had a poor criminal record, having come to the notice of the authorities as a result of drug abuse and offences of dishonesty. On 2 May 2006 the plaintiff commenced serving a sentence of imprisonment in New South Wales as a result of convictions in the District Court for fraud offences. He was sentenced to imprisonment, with a non-parole period of 3 years, 4 months and 4 days (expiring 5 September 2009) with a balance of term of 2 years, 2 months and 25 days expiring 30 November 2011.
The defendant authorised the plaintiff to be released to parole on 5 September 2009 and he was duly released on that date. Some time after his release, the plaintiff breached the terms of his parole by failing to report to his parole officer and by failing to reside at an address approved by his parole officer. On 18 December 2009 the defendant revoked the plaintiff's parole and a warrant for his arrest was issued. The revocation of the plaintiff's parole took effect on 20 November 2009. As of that date, the unexpired portion of the plaintiff's sentence was 2 years and 11 days.
It was subsequently discovered that the plaintiff had moved from NSW to Western Australia. On 23 November 2011 the plaintiff was arrested in Perth by West Australian police on fraud and other charges. On that date he was released on surety bail, pending the hearing of charges relating to those offences. At the time of being released, the plaintiff provided a false identity. On 24 November 2011 the plaintiff was re-arrested by West Australian police who confirmed his true identity and confirmed that there was an outstanding warrant for his arrest in NSW.
On 24 November 2011 the plaintiff appeared before the Perth Magistrates Court and was remanded in custody. The plaintiff remained in remand custody until 3 July 2012, being a total of 224 days (7 months and 11 days). On 3 July 2012 the plaintiff was sentenced by the District Court of Western Australia to a term of imprisonment of 18 months, with eligibility for parole, for the offences committed in Western Australia. The commencement date of this sentence was backdated to 24 November 2011, being the date on which the plaintiff was taken into custody.
On 23 May 2013 the plaintiff was released after serving 18 months imprisonment. He was arrested immediately on a Service and Execution of Process Act 1992 (Cth) warrant, which was based on the warrant issued by the defendant on 18 December 2009 in NSW. The plaintiff was extradited to NSW where he remains in custody.
The plaintiff applied to have his revocation of parole reviewed by the defendant. That hearing took place on 5 July 2013 and the revocation of parole was confirmed. On 13 September 2013, following representations made on his behalf, a further review of the revocation of the plaintiff's parole was heard by the defendant. The plaintiff's revocation of parole was again confirmed.
As a result of those review proceedings, the plaintiff will not be eligible for release on parole before 27 May 2014.
There were further facts which the plaintiff placed before the Court. On or about 24 November 2011 the plaintiff appeared before the Perth Magistrates Court for a bail hearing. In the course of opposing the plaintiff's application for bail, the police prosecutor relied upon the outstanding NSW warrant. After the plaintiff had served 9 months of the sentence imposed on him by the District Court of Western Australia, he made an application for parole which was refused. The plaintiff believed that the refusal was due to the outstanding NSW warrant.
The reasons given by the defendant in its decision of 13 September 2013, confirming the revocation of the plaintiff's parole, are relevant to this application.
The relevant parts of the reasons are:
"Mr Grant has made strong submissions that the Authority should take into account the sentencing remarks of her Honour, District Court Judge Wager, and the sentence that was imposed and the reasons why it was imposed and that there appears to be misunderstanding as to what would happen with the determination by the Authority and the issue of a warrant in 2009. The one thing that needs to be understood is when the Authority revokes parole and issues a warrant for the apprehension of the parolee, it does not involve itself in the extradition proceedings. If police, as they sometimes do, involve themselves in extradition proceedings, then sometimes the parolee is returned to this jurisdiction. Mr Grant put to us matters of a subjective nature in relation to Mr Palizio which were matters put in mitigation of sentence before her Honour and they refer to his mental health issues, his lack of intellectual rigour and his upbringing, his background and matters that are proper to take into account on mitigation of sentence, and they in the particular circumstances were matters properly before her Honour in Western Australia in mitigation of the sentence for that offence committed in Western Australia.
The Authority's responsibility today is to deal with a review of the revocation of parole which was made on 18 December. The Authority's responsibility is the administration of sentences that were imposed in this State. It has no authority to alter in any way the sentence imposed and its one duty is to determine whether or not the revocation order should be confirmed or should be rescinded or should be rescinded with some variation as to the effective date of the revocation. There is no justification for varying any date in regard to the revocation. The parole order was revoked on 18 December and it was made effective from 20 November which was an appropriate date from which it should have been revoked.
Mr Grant was of the understanding and one can understand that the procedures in relation to parole are relatively unique, possibly not widely known, but if the parole order revocation were to be rescinded then its as though it had never been revoked and that would mean that the order would expire at its original expiry date. That would mean that there would be no parole left to be imposed. The Authority is unanimously of the view that there are no grounds for recision of that order. We note that the law now requires that he not be reconsidered for further parole until the expiry of 12 months from his coming back into custody.
It's put to us that we should regard him as not being at large in Western Australia while he was in custody for that period. The Authority has considered that argument but rejects it on the basis that once he leaves the jurisdiction of NSW, it matters not whether he's in Western Australia or Indonesia or England and serves various terms of imprisonment there; he is at large so far as this jurisdiction is concerned. The Authority must, therefore, confirm the revocation order of 18 December 2009 to stand for the reasons stated and be considered the due date. ..."
The legislation
Part 6 of the Crimes (Administration of Sentences) Act 1999 (the Act) provides for the parole of offenders. Part 7 of the Act provides for the revocation and reinstatement by the defendant of certain orders including the revocation and reinstatement of parole orders.
Where an offender has been sentenced to a period of imprisonment of more than 3 years and the non-parole period has been set, s138 gives a power to the defendant to make an order that the offender be released on parole (a parole order). The plaintiff was so sentenced on 2 May 2006 and was released to parole on 5 September 2009.
Section 128 provides for the conditions to which a parole order is, or may be subject. There were conditions of the plaintiff's parole that (a) he report to the officer as directed and (b) he reside at an address approved by the officer. On or about 20 November 2009 the plaintiff breached those parole conditions by going to Western Australia.
Section 132 of the Act provides:
"132 Sentence continues to run while offender on parole
An offender who, while serving a sentence, is released on parole in accordance with the terms of a parole order is taken to continue serving the sentence during the period:
(a) that begins when the offender is released, and
(b) that ends when the sentence expires or (if the parole order is sooner revoked) when the parole order is revoked."
Section 170 provides:
"170 Revocation of parole order
(1) The Parole Authority may make an order (a revocation order) revoking a parole order:
(a) if it is satisfied that the offender has failed to comply with the offender's obligations under the order, or
...
and may do so either on its own initiative or on the recommendation of the Commissioner or a probation and parole officer.
(2) A revocation order may be made:
(a) whether or not the offender has been called on to appear before the Parole Authority, and
(b) whether or not the Parole Authority has held an inquiry.
(3) A revocation order must state the reason for which it is made.
...
171 Effect of revocation order
(1) A revocation order takes effect, or is taken to have taken effect, on the date on which it is made or on such earlier date as the Parole Authority thinks fit.
(2) The earliest date on which a revocation order may take effect is the date of the first occasion on which it appears to the Parole Authority that the offender failed to comply with the offender's obligations under the parole order.
(3) If an offender is not taken into custody until after the day on which the revocation order takes effect, the term of the offender's sentence is, by this subsection, extended by the number of days the person was at large after the order took effect.
...
175 Decision after review
(1) After reviewing all the reports, documents and other information placed before it, the Parole Authority must decide whether or not:
(a) to rescind the revocation of the intensive correction order, home detention order or parole order concerned, or
(b) to rescind or vary the specification of the earlier day.
..."
SUBMISSIONS
Ground 1 - Meaning of Section 171(3)
The plaintiff submitted that the defendant had wrongly interpreted s171(3) of the Act and in so doing had acted in excess of jurisdiction or alternatively, its misinterpretation constituted error on the face of the record.
The plaintiff submitted that s171(3) prescribed both a condition for its operation and its effect. The condition for its operation was that the offender not be taken into custody until after the day on which the revocation order took effect. Once that condition was satisfied, the operative part of the section provided that the offender's sentence was extended by the number of days the person was "at large" after the order took effect.
The effect of the defendant's decision of 13 September 2013 was that although he was in custody in Western Australia (from 24 November 2011 until his extradition to NSW in May 2013) he was "at large" for the purposes of s171(3) of the Act. In that regard, the defendant reasoned:
"Once he leaves the jurisdiction of New South Wales it matters not whether he is in Western Australia or Indonesia or England and serves various terms of imprisonment there; he is at large so far as this jurisdiction is concerned."
The plaintiff submitted that such an interpretation amounted to error in that when he was taken into custody there on 24 November 2011 he was both "taken into custody" and no longer "at large" for the purposes of s171(3). The plaintiff submitted that this misinterpretation of the section constituted error on the face of the record (s69(4) Supreme Court Act 1970).
The plaintiff submitted that in applying to events in Western Australia, s171(3) operated extraterritorially. He submitted that the Parliament of NSW had the power to legislate extraterritorially where there was a nexus between NSW and the extraterritorial subject matter on which it operated. The plaintiff submitted that it was apparent that when he faced court in Western Australia on 24 November 2011 he was remanded in custody, substantially because of the defendant's outstanding warrant. He submitted that that fact alone provided a sufficient connection with the State of NSW for the NSW legislation to apply as a matter of power, in respect of his remand in Western Australia.
The plaintiff submitted that having established the competence of the NSW legislature to legislate extraterritorially in those circumstances, the question of the operation of s171(3) of the Act became one of construction. He submitted that there was no justification for imposing any gloss on the ordinary meaning of the words. The plaintiff submitted that he was clearly "taken into custody" on 24 November 2011 and thereafter was no longer "at large". The plaintiff submitted that such an interpretation gave effect to the plain and ordinary meaning of those words. Any different meaning, he submitted, required an unwarranted gloss.
The plaintiff submitted that the common law presumption against extraterritoriality was relatively weak (Dempster v National Companies and Securities Commission [1993] 9 WAR 215 at 241-242, Malcom CJ). He submitted that the presumption against extraterritoriality was displaced because of the anomalous consequences if it were not displaced and because of the principle of legality.
By reference to anomalous consequences, the plaintiff submitted that if the words "in New South Wales" were inserted into s171(3) after the words "custody" and "large", this would still not extend the operation of the section to his circumstances. That was because he was never "at large" in NSW. It followed, so the plaintiff submitted, that on either interpretation s171(3) did not apply to him.
By reference to the principle of legality, the plaintiff submitted that the presumption against extraterritoriality was displaced by the rule that unless clear words are used, the courts should not interpret legislation as abrogating the liberty of the individual. He submitted that to interpret s171(3) so as to not recognise his detention in Western Australia was to read that subsection in a way which abrogated his liberty. The plaintiff relied upon such cases as ReBolton; Ex parte Beane [1987] HCA 12; 162 CLR 514 at 520, 523 and 532 to support that submission.
The plaintiff submitted that s12(1) of the Interpretation Act 1987 (NSW) did not preclude such an interpretation of s 171(3). This was because being "taken into custody" and being "at large" were descriptive of a state of affairs and did not amount to a "matter or thing".
The plaintiff submitted that once the presumption against extraterritoriality was rebutted he was not "at large" for the purposes of s171(3) from 24 November 2011 because he was on that date taken into custody in Western Australia. He submitted that his remaining sentence of 2 years and 11 days ceased to be extended from that date and his sentence should expire on 4 December 2013.
The plaintiff submitted that it did not matter that the immediate reason for his detention in Western Australia from 3 July 2012 was no longer the defendant's outstanding warrant but his sentence of imprisonment for the crimes in Western Australia. This was because s171(3) took as its criterion for ceasing to operate that the offender had been "taken into custody" such that he was not "at large". The plaintiff submitted that the subsection clearly focused upon the moment that the offender was taken into custody. In the alternative, the plaintiff submitted that his NSW sentence should have ceased to be extended from the time of his remand in Perth on 24 November 2011 (which was substantially due to the defendant's outstanding warrant) until he was sentenced to imprisonment on 3 July 2012 for the offences in Western Australia. On that approach the balance of his parole should be reduced by the period he spent on remand of 7 months and 9 days.
The intervenor did not accept the plaintiff's interpretation of s 171(3). He submitted that the words "at large" in the subsection meant "outside custody in New South Wales". He submitted that this was consistent with their natural and ordinary meaning and with s12 of the Interpretation Act 1987. He submitted that any other construction produced anomalous results.
The intervenor submitted that if the plaintiff's construction were accepted, it would have the consequence that a person whose parole was revoked and who was placed in custody for any reason, anywhere in the world, under any conditions, would have the period for which they were in custody treated also as service of their sentence in NSW. This would mean that in the present case the plaintiff's one period of Western Australian imprisonment would satisfy not just the Western Australian sentence but also the NSW sentence for what was an entirely unrelated offence.
The intervenor, however, was prepared to accept that if the plaintiff's interpretation of s171(3) of the Act were correct, then error on the face of the record had occurred. The intervenor was prepared to accept that the reasons of the defendant (at [21]) did constitute the record for the purposes of s69 of the Supreme Court Act so that if the defendant's reasons were wrong in law this amounted to error on the face of the record.
The intervenor submitted that the modern approach to statutory construction is purposive. The statutory text is the surest guide to the Parliament's intention. He submitted that a decision as to the meaning of the text must take into account the statute as a whole - Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; 194 CLR 355 at 381. The intervenor submitted that in the present case, that rule of interpretation was consistent with s33 of the Interpretation Act which required that a construction that promotes the purpose or object underlying an Act be preferred to a construction that would not promote that purpose or object.
The intervenor relied upon s12 of the Interpretation Act which relevantly provides:
"(1) In any Act or instrument:
...
(b) a reference to a locality, jurisdiction or other matter or thing is a reference to such a locality, jurisdiction or other matter or thing in and of New South Wales."
By reference to s12(1) the intervenor submitted that the reference to "custody" in s171(3) of the Act must be a reference to "custody in and of New South Wales", unless the Act contained a contrary intention.
The intervenor submitted that there was no such contrary intention. He submitted that the expressions "taken into custody" and "at large" should be understood together. "Custody" was not defined in the Act but there were a large number of references which indicated that "custody" was to be taken to refer to "custody in NSW pursuant to the Act or another NSW statute". The intervenor noted that where "custody" had a different meaning and extended to custody in another jurisdiction, the Act made that clear (ss 30, 35, 36 and 41).
The intervenor submitted that it did not follow from those submissions that "at large" also meant "at large in and of New South Wales", as was submitted by the plaintiff. The intervenor submitted that s12(1) of the Interpretation Act did not require that every matter or thing referred to in a provision was to be construed as "in and of" New South Wales. He submitted that it made no sense to speak of being at large "of New South Wales". The purpose of the Act would be undermined if "at large" were not able to comprehend a person who had travelled to another State or Territory. The intervenor submitted that the Act evinced a clear contrary intention in that respect.
The intervenor submitted that his interpretation of s171(3) was consistent with other sections of the Act, in particular s 132 ([17] hereof). He submitted that the effect of s132 was that an offender serving a sentence who was released on parole was taken to continue serving the sentence during the parole period. It also provided that one of the circumstances which would bring serving a sentence to an end was if the parole order was revoked. The intervenor submitted that s132 was fully consistent with his interpretation of s171(3) but quite inconsistent with that of the plaintiff. This was because s132 made it clear that the serving of a sentence during the period when an offender was on parole ceased when the parole order was revoked.
The intervenor submitted that the evident purpose of these sections, i.e., ss 132 and 171, was to allow offenders to serve their sentences on parole in appropriate circumstances while at the same time making the benefit of parole conditional on the parolee abiding by the conditions of parole. If the parolee did not abide by the conditions of parole and parole was revoked, the parolee did not get the benefit of parole because while the person remained "at large", the person's sentence would not be running. He submitted that the scheme of Part 6 was that a person's sentence would only continue to run where the person was in custody (serving the sentence) or the person was released on parole but abiding by the conditions of parole.
The intervenor submitted that the scheme of Parts 6 and 7 of the Act would be subverted if "taken into custody" included any possible situation where the offender was taken into custody in a State or Territory other than NSW, or a country other than Australia. Such a person would in essence continue to get the benefit of parole in NSW notwithstanding that their parole had been revoked and they had not been returned to custody in NSW to continue to serve their sentence there. He submitted that so far as the NSW offence and sentence were concerned, the later offence and sentence in another jurisdiction was of no relevance.
The intervenor submitted that the plaintiff's construction would subvert the scheme of the Act in another way. He submitted that an important aspect of the Act was its regulation of the conditions of custody in NSW. The Act provided for transfer of prisoners within NSW and for interstate leaves of absence. Transfer of prisoners between NSW and other States and Territories was dealt with by the Prisoners (Interstate Transfer) Act 1982 (NSW) and parolees could apply to have conditions of parole varied to enable interstate travel. While a prisoner or parolee could thereby request to serve part of his or her sentence outside NSW, a prisoner or parolee could not compel NSW to allow that to occur.
The intervenor submitted that on the plaintiff's construction an offender who was released on parole could force the State of NSW to allow him or her to serve the parole part of his or her sentence outside NSW simply by travelling outside NSW and committing an offence for which the offender was put in custody in the jurisdiction where the offence was committed. On the plaintiff's construction of s171 of the Act, upon the offender being put in custody in the other jurisdiction, the offender's NSW sentence would continue to run as if the offender had been returned to custody in NSW.
The intervenor accepted that there was no case law expressly on point but submitted that Morrison v The Queen [2009] NSWCCA 211; 197 A Crim R 103 (RA Hulme J with whom McClellan CJ at CL and Grove J agreed) provided some assistance. This was a sentence appeal. One of the issues raised therein was whether the fact that the offence was committed while the offender was on "conditional liberty" was an aggravating factor which could be properly taken into account by the sentencing judge. The offender had been released on parole and before the commission of this offence, his parole was revoked and a warrant issued. There was no evidence that the offender was aware of the revocation of his parole or the issue of the warrant.
At [44] RA Hulme J said:
"44 I do not accept the submission by the Crown concerning the applicant being "at large". It involves an interpretation of s 171 of the Crimes (Administration of Sentences) Act to the effect that when parole is revoked and an offender remains at large the sentence is extended beyond the date it was due to expire and so the person should be regarded as being in a situation analogous to an escapee until the arrest warrant is executed. In my view a correct understanding of s 171(3) is that the sentence simply stops running from the date the revocation is ordered to take effect and is re-started upon the offender's return to custody. The term "at large" is simply a reference to the person not being in custody. It does not convert the person into someone who is to be regarded as in the community under a form of conditional liberty."
The intervenor did not accept the plaintiff's submission that the interpretational rules relating to penal statutes required that s171(3) be given the meaning which he sought. The intervenor submitted that the proper approach to the interpretation of penal statutes was set out in R v Adams [1935] HCA 62; 53 CLR 563 at 567-8 where the Court said:
"No doubt, in determining whether an offence has been created or enlarged, the Court must be guided, as in other questions of interpretation, by the fair meaning of the language of the enactment, but when that language is capable of more than one meaning, or is vague or cloudy so that its denotation is uncertain and no sure conclusion can be reached by a consideration of the provisions and subject matter of the legislation, then it ought not to be construed as extending any penal category."
The intervenor submitted that s171(3) was not a penal provision. It did not impose a penalty or punishment for some unlawful act. The intervenor did accept that it affected the liberty of the subject. Even so, the intervenor submitted, this was not a case where there was ambiguity that might be resolved in favour of the liberty of the subject. He submitted that read in the context of the statute as a whole, and having regard to s12 of the Interpretation Act, s171(3) was clear in its meaning. A sure conclusion could be reached and there was no need to resort to the presumption relating to a penal statute.
Consideration
The plaintiff's submission as to the meaning of s171(3) of the Act should not be accepted. I have concluded that the intervenor's submissions that a purposive construction should be given to the subsection are persuasive and correct. As the intervenor submitted, the plaintiff's construction would produce surprising results and it is unlikely that the NSW legislature would have intended the Act to operate in that way. Accordingly, the Court should avoid a construction of the Act that lead to results which are irrational (Legal Services Board v Gillespie-Jones [2013] HCA 35; 87 ALJR 985 at [48]).
One of the consequences of the plaintiff's construction would be that a person whose parole was revoked and who was placed in custody for any reason, anywhere in the world under any conditions, would have the period for which they were in custody treated as service of their NSW sentence. This cannot have been the intention of the legislature. In addition, by committing the second offence the plaintiff would be able to force NSW authorities to allow him to serve his NSW sentence concurrently with whatever sentence was imposed for the later offence in the other jurisdiction.
I do, however, interpret s 171(3) differently to the intervenor. In particular, I do not accept that the section's operation is to be restricted to circumstances where the "taking into custody" occurred in NSW. The better interpretation is that the phrase "taken into custody" should be qualified by the words "with respect to the sentence for which parole was granted" or some similar formula. A qualification in similar terms should be added after the words "at large", i.e. at large "with respect to the sentence for which parole was granted".
Such an interpretation would cover two situations which were not envisaged by the parties in their submissions. The first is where an offender was in breach of his or her parole conditions and parole was revoked. That offender, using a different name, might commit further offences in NSW during the period that parole is revoked and be sentenced for those further offences. If the offender had changed his or her name and the sentencing court was unaware of the parole revocation and that there was an outstanding warrant, it would distort the operation of the subsection if that offender were to be regarded as having been "taken into custody" for the purposes of the subsection. Accordingly, even though the offender was serving a sentence in NSW, the same evil identified by the intervenor would occur, i.e., the later sentence would in effect be doing double duty and would enable the offender to serve the first sentence concurrently with the second.
The second example would arise where, as the plaintiff did in this case, an offender moved interstate in breach of his or her parole and a revocation order was made and a warrant issued. If the offender did not commit further offences but at some time after parole had been revoked the offender was taken into custody in that other state because of the outstanding NSW warrant, there may be a period while that person was in custody awaiting extradition to NSW. In those circumstances, the offender has been taken into custody in respect of the sentence for which parole was granted and is no longer at large with respect to the sentence for which parole was granted so that the period of time which that offender spent in custody before extradition to NSW should properly reduce his or her parole period/sentence.
Such an interpretation would fulfil the overall purpose of the Act and that of the section in particular, and avoid the anomalies identified by both sides in the submissions which have been made to the Court.
When I raised that interpretation in the course of submissions, it was accepted by the intervenor as appropriate. The intervenor did not abandon his earlier interpretation but retained it as a fallback position. It should be noted that all of the arguments put forward by the intervenor in support of his original interpretation support the interpretation which I have given to the subsection.
For obvious reasons, the plaintiff was not prepared to accept that interpretation since it would result in the rejection of his primary submission, i.e. that the time spent in custody in Western Australia should operate as service of the outstanding parole period.
The plaintiff was, however, prepared to adopt an alternative position. If the interpretation which I have put forward was correct, the plaintiff submitted that part of his period in custody in Western Australia was in respect of the sentence for which parole was granted. This was because the period between 24 November 2011 when he was remanded in custody in Western Australia and 3 July 2012 when he was sentenced for the Western Australian offences, was in respect of the sentence for which parole had been granted, because it was due to the outstanding NSW warrant.
The plaintiff's submission should not be accepted. When the plaintiff was sentenced on 3 July 2012 the sentence was backdated to 24 November 2011 to take account of the time he had spent on remand. The real and substantial reason for the whole of his incarceration in Western Australia was not the outstanding NSW warrant, but the offences which he committed in Western Australia. The time that the plaintiff spent in custody in Western Australia was not increased by reason of the outstanding NSW warrant.
The plaintiff made two further submissions of a similar kind. He submitted that the revocation of his bail in Western Australia on 24 November 2011 was due to the outstanding warrant for his arrest in NSW. He submitted that as a result, his period on remand between 24 November 2011 and 3 July 2012 when he was sentenced for the Western Australian offences, was due to the outstanding NSW warrant and his sentence should be reduced accordingly. Alternatively, the plaintiff submitted that the refusal by the Prisoner's Review Board of Western Australia to grant parole to him after he had served 9 months of his sentence was due to the outstanding NSW warrant and that his sentence should be reduced by 9 months.
In relation to the refusal of bail, if the plaintiff had been granted bail in Western Australia, he would not have received the benefit of the time spent in custody on remand and his ultimate release date in Western Australia would have been later. Moreover, it is not at all clear from the transcript of the bail proceedings that it was only the outstanding NSW warrant which led to him being bail refused. When he was first granted bail in Western Australia, he was using a false name. The fact of the NSW warrant showed that he was a potential flight risk, having already absconded from NSW. These were matters which were relevant to whether bail should be granted. The plaintiff's submission on this issue should not be accepted.
The relevance of the refusal of his application for parole in Western Australia is by no means clear. The relationship of conditional liberty of that kind to s 171(3) had he been granted parole, was not examined in argument. All that was done was to make a bare assertion that the refusal to grant parole meant that the plaintiff had served an additional 9 months of imprisonment in Western Australia, which was due to the outstanding NSW warrant.
There are a number of difficulties with the submission. The evidence in relation to it was sparse. The notification by the Prisoner's Review Board of Western Australia was by email dated 18 September 2012 to this effect:
"For your information the Prisoner's Review Board of Western Australia considered Mr Palizio's case on 17 September 2012 and determined to deny his release to parole.
Mr Palizio's maximum term in Western Australia is 23 May 2013 and he will remain in custody until this time unless he makes a further application for parole which is successful."
I assume that this decision was a discretionary decision by the Review Board. The Court was not provided with the Review Board's reasons. I accept that the plaintiff believes that his application for parole in Western Australia was refused because of the outstanding NSW warrant, but there is no supporting evidence to that effect. The only additional evidence is that the Review Board did request information from NSW as to whether the warrant was still outstanding and as to whether extradition was being sought. The information provided by the defendant to the Review Board was:
"I can confirm the warrant issued for Mr Palizio's arrest on 18 December 2009 has not been executed by NSW Police and is still active. Mr Palizio's balance of parole is 2 years 11 days which will commence on his return to custody in NSW. The Authority has not made arrangements to extradite Mr Palizio to NSW as this is a matter for the NSW Police Force and the Investigations Branch of NSW Corrective Services. The Parole Authority will next review the revocation of Mr Palizio's parole upon his return to custody in NSW."
In any event, the plaintiff's custody between 17 September 2012 and 23 May 2013 was due to the sentence imposed in respect of his offences in Western Australia and not the outstanding NSW warrant or revocation of parole in NSW. The plaintiff's submission on this issue should not be accepted.
Ground 2 - Manifest unreasonableness
The background to this submission is the evidence given by the plaintiff to the defendant on 5 July 2013. The plaintiff said:
"Q. At that time can you please explain to the Authority the circumstances that led to you leaving NSW?
A. Okay.
Q. I should firstly start by asking you were you associated with a certain group?
A. Yes I was.
Q. What was that group?
A. That was the Bandidos.
Q. Then did you leave that group?
A. Yes I did leave that group and I was put into Admin Segregation for the last eight months of my sentence because they were in fear that I was going to have problems and then I was released on 5 September 2009, yeah, so yes.
Q. So you were on parole for a small or very short time whilst in NSW, is that right?
A. That's correct.
Q. Why did you leave NSW?
A. I was having constant altercations with different people from the Club. Obviously from leaving them and not having anything to do with them any more and the people that I was living with, they had a small family there and things were coming to the house and it wasn't good yeah.
Q. Can I ask you Mr Palizio, the report that Probation and Parole have submitted about you not complying with parole conditions back in 2009 have referred to the fact that you had stated you had injured your leg, would you please explain to the Authority how that leg injury occurred?
A. I had an altercation with a couple of people from that Club and yeah so I took it as serious as it was, that more problems might arise, and yeah, I didn't want to cause any more trouble.
Q. Can I ask you Mr Palizio did you have a conversation with one of their members about --
A. After that happened, I'd known this particular member for a long time and he gave me the heads up that there was going to be more problems, they were asking me for money and stuff, I didn't have that money because I was trying to do the right thing and I wasn't involved in any type of crime and he said - he goes - he goes "look if you get out of where you are" he goes "I'll tell them that you've gone and that'll be that". He goes "but if you do stay in the area" and he goes "you make me look like a liar, there's going to be much more problems than what you have now".
Q. So Mr Palizio what did you do then?
A. I had limited money. I thought well there's no Bandidos in WA, they're in every other State. I went over to WA and tried to start a new life". (5.7.13 - T.3.9 - 4.14)
In its decision, refusing to rescind its revocation of parole order of 18 December 2009 the defendant said:
"He has now told us what happened in the meantime. He went to Western Australia. He tells us he was being harassed by a member of the Bandidos as he was a former member of that motor cycle gang and had voluntarily left it, and that apparently was not acceptable to the former member. We can accept his evidence that he was being harassed, however, the way he handled the situation was extremely poor and magnified his problems rather than reduced them. It would have been appropriate for him to have seen his Probation and Parole Officer and explained the situation which would have been received in confidence and he would have made an application to transfer to another State if that was the only thing that would remove the harassment from him at the time. Instead of that he breached his parole in a serious way while he was still owing a large amount of parole, namely 2 years and 11 days to NSW State." (5.7.13 - T.9.18 - .30)
Subsequently the defendant made it clear that it accepted Mr Palizio as a witness of truth.
The plaintiff submitted that his reason for not complying with the parole order was that he had fled to Western Australia in fear of his life and that he had been forced, essentially under duress, to avoid his parole obligations. In those circumstances, he submitted that it was unreasonable for the defendant not to rescind the revocation order.
The plaintiff submitted that the standard of reasonableness was indicated by the true construction of the statute (Minister for Immigration and Citizenship v Li [2013] HCA 18; 297 ALR 225 at 247 (67)). He submitted that since his liberty was at stake, the standard to satisfy the test of unreasonableness was not high.
Consideration
The plaintiff's submission should not be accepted. There was no evidence that the plaintiff fled NSW in fear for his life. On the contrary, the finding of fact by the defendant was that he was being harassed by a member of the Bandidos. The defendant plainly found that the level of harassment was not so bad that there were no other alternatives to fleeing NSW. Those findings of fact cannot be challenged in these proceedings (Waterford v Commonwealth [1987] HCA 25; 163 CLR 54 at 77; Australian Broadcasting Tribunal v Bond [1990] HCA 33; 170 CLR 321 at 355 - 356).
What can be challenged is the "reasonableness" of the defendant's decision. I agree that the most recent statement of the law in relation to the judicial review ground of "unreasonableness" in administrative decision making is provided by the High Court in Li. There, a unanimous High Court held that a decision of the Migration Review Tribunal to refuse an application for an adjournment of a merits review hearing (which adjournment was sought for the purpose of awaiting the receipt of material probative of a criterion relevant for the issue of the relevant visa) was "so unreasonable as to constitute jurisdictional error".
The plurality (Hayne, Kiefel and Bell JJ) appear to have moved away from the oft quoted statement of "Wednesbury unreasonableness" in Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223. However, they referred with approval to the statement of principle by Lord Diplock in Secretary of State for Education and Science v Tameside Metropolitan Borough Council [1976] UKHL 6; [1977] AC 1014 at 1064 where his Lordship opined that unreasonableness would be shown where "no sensible authority acting with due appreciation of its responsibilities" would have so decided (Li at [71]). There was no suggestion here, as occurred in Li, that the plaintiff had been deprived of an opportunity to present evidence and argument "relating to the issues arising in relation to the decision under review" (Li [83]).
Perhaps the most concise statement of principle by the plurality is at [76] where they said:
"As to the inferences that may be drawn by an appellate court, it was said in House v The King that an appellate court may infer that in some way there has been a failure properly to exercise the discretion "if upon the facts (the result) is unreasonable or plainly unjust". The same reasoning might apply to the review of the exercise of a statutory discretion, where unreasonableness is an inference drawn from the facts and from the matters falling for consideration in the exercise of the statutory power. Even where some reasons have been provided, as in this case here, it may nevertheless not be possible for a court to comprehend how the decision was arrived at. Unreasonableness is a conclusion which may be applied to a decision which lacks an evident and intelligible justification."
French CJ (at [28]) and Gaegler J (at [88] - [89]) adopted a more conventional approach to unreasonableness, in line with "Wednesbury unreasonableness".
Applying those principles the finding of fact by the defendant was well open. Other than a bare assertion to the contrary, nothing has been put by the plaintiff which would establish that the defendant's characterisation of why the plaintiff left NSW was a conclusion which lacked an evident and intelligible justification.
Ground 3 - Alleged error of law by failing to take into account failure of District Court of Western Australia to apply the totality principle.
The plaintiff submitted that the District Court of Western Australia did not apply the totality principle when sentencing him. The basis for this submission was that Wager DCJ had not properly taken into account that there was a NSW warrant for the plaintiff's arrest when she passed sentence on him for the West Australian offences. The plaintiff submitted that this was a clear error on the part of her Honour in the sentencing exercise. He submitted that the defendant was made aware of this error, but had not taken it into account when refusing to rescind the revocation order on 13 September 2013.
The plaintiff submitted that the defendant was bound to take this matter into account when deciding whether to rescind its decision to revoke parole. He submitted that its failure to do so constituted jurisdictional error.
Consideration
The defendant dealt with this matter in its decision of 13 September 2013 as follows:
"Mr Grant put to us matters of a subjective nature in relation to Mr Palizio which were matters put in mitigation of sentence before her Honour and they refer to his mental health issues, his lack of intellectual rigour and his upbringing, his background and matters that are proper to take into account on mitigation of sentence and they and the particular circumstances were matters properly before her Honour in Western Australia in mitigation of the sentence for that offence committed in Western Australia.
The Authority's responsibility today is to deal with a review of the revocation of parole which was made on 18 December. The Authority's responsibility is the administration of the sentences that were imposed in this State. It has no authority to alter in any way the sentence imposed and its one duty is to determine whether or not the revocation order should be confirmed, or should be rescinded or should be rescinded with some variation as to the effective date of the revocation." (13.9.13 - T.2.8 - .22)
The plaintiff's submissions in relation to this ground should not be accepted. The first difficulty for the plaintiff is that it is not clear that it was an error for Wager DCJ not to make some allowance for the fact that the plaintiff's parole had been revoked in NSW. This circumstance was considered by the Court of Criminal Appeal of NSW (James, Simpson and Hall JJ) in Callaghan v R [2006] NSWCCA 58; 160 A Crim R 145 where Simpson J (with whom the other judges agreed) said:
"21 That the matter is discretionary appears to be the prevailing view of members of this Court. Even in Andrews and Kelly, the court accepted that a judge might backdate a sentence where parole had been revoked by reason of the offence for which the offender is then to be sentenced.
22 I maintain the view that a discretion exists. There is no clear rule which will govern all cases. The circumstances that bring an offender before a court for sentence after parole has been revoked are far too varied to permit a single absolute rule."
A further difficulty is that such a point if it were to be taken should have been taken as an appeal point in Western Australia in an appeal against sentence. It is not for the defendant to second-guess the sentencing decisions of judges be they in other States or in NSW. In any event, the obligation of the defendant under s175 of the Act was to "review" information placed before it. This it did.
The ground of review is framed as a jurisdictional error by way of a failure to have regard to a mandatory relevant consideration. Whether a matter is a mandatory relevant consideration is a question of statutory construction (Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40; 162 CLR 24 at [39] - [40] and [55]). No basis has been identified by the plaintiff as to why a matter such as this should be treated as a mandatory, relevant consideration. On the contrary, "In the absence of any statutory indication of the weight to be given to various considerations, it is generally for the decision-maker and not the court to determine the appropriate weight to be given to the matters which are required to be taken into account" (Peko-Wallsend at [41]).
The correctness of the sentencing decision of the District Court of Western Australia, or its asserted failure to take into account the totality principle, was not a mandatory, relevant consideration. No such requirement can be found in the terms of the Act. No express provision of the Act has been pointed to. There is no basis for implying such a requirement by reference to the scope and purpose of the Act.
Conclusion
None of the submissions made by the plaintiff have been made out. This, however, does not end the matter. It was accepted by the intervenor that if the plaintiff's interpretation of s171(3) of the Act was made out, then error on the face of the record had occurred. The plaintiff has failed to make out his interpretation. Nevertheless, I have determined that the interpretation given to s171(3) by the defendant was also incorrect. Does this mean that the plaintiff is entitled to the relief which he seeks on the basis of error on the face of the record?
I have concluded that it does not. The misinterpretation by the defendant of s171(3) had no effect on the result of its determination insofar as the plaintiff was concerned. In other words, the same result would have occurred had the defendant correctly interpreted the section. That is to be contrasted with the interpretation sought by the plaintiff under Ground 1 which would have produced a different result and one favourable to him.
If I am wrong in that conclusion, I would not in the exercise of my discretion, grant the plaintiff the relief sought by him. This is because although error has been identified on the face of the record, it had no effect on the outcome of the defendant's refusal to rescind the revocation of the plaintiff's parole. As indicated, the same result would have eventuated had the section been correctly interpreted.
The plaintiff's summons should be dismissed and the plaintiff is to pay the intervenor's costs of the proceedings.
Plaintiff's application under Court Suppression and Non-publication Orders Act 2010
Somewhat belatedly, two days after the conclusion of the principal hearing, the plaintiff made an application by motion seeking the following order:
"1. Pursuant to sections 9(1) and 9(3) of the Court Suppression and Non-publication Orders Act 2010 (NSW) ("the Act") and pursuant to section 8(1)(c) of the Act:
(a) In order to protect the plaintiff's safety, the plaintiff's identity be suppressed and he be referred to in all orders, judgments, reasons for judgment and transcripts published in and in relation to this proceeding as "Mr P" or "P"."
In support of the application was an affidavit sworn 4 December 2013 by the plaintiff's solicitor. This affidavit referred to an exhibit in the proceedings which referred to the plaintiff giving evidence that he was put into Admin Segregation for eight months while in prison. The plaintiff's solicitor has sworn that she believes that there is a real risk to the plaintiff's safety should the orders not be made as sought in the Notice of Motion. There is no other evidence before the Court in support of the application.
The order sought in the Notice of Motion should be refused.
My reasons are as follows. Section 8(1)(c) of the Court Suppression and Non-publication Orders Act (the Suppression Act) provides:
"8(1) A court may make a suppression order or non-publication order on one or more of the following grounds:
...
(c) the order is necessary to protect the safety of any person
..."
In considering whether to make any such order, I have to keep in mind the requirements of s 6 of the Suppression Act:
"6 In deciding whether to make a suppression order or non-publication order, a court must take into account that a primary objective of the administration of justice is to safeguard the public interest in open justice."
The application of s8(1)(c) was considered in Fairfax Digital Australia and New Zealand Pty Ltd v Ibrahim [2012] NSWCCA 125; 293 ALR 384 where Bathurst CJ said:
"8 In par [46] of his judgment, Basten JA has expressed the view that the meaning of "necessary" depends on the context in which it is used. I agree that what is necessary in any given case will depend on that context. It will depend on the particular grounds in s 8 of the Suppression Orders Act relied upon and the factual circumstances said to give rise to the order. I agree that the variables that Basten JA refers to in par [46] are all relevant to what will be necessary in a particular context. Although it is not sufficient, in my opinion, that the orders are merely reasonable or sensible, I agree that the word "necessary" should not be given a narrow construction. What was said by Hodgson JA in R v Kwok [2005] NSWCCA 245; (2005) 64 NSWLR 335 at [13] adopting the remarks of Mahoney JA in John Fairfax Group Pty Ltd (Receivers & Managers Appointed) v Local Court (NSW) (1991) 26 NSWLR 131 are equally applicable to the legislation in question.
"However, the requirement of necessity is not to be given an unduly narrow construction. I respectfully adopt what was said by Mahoney JA in John Fairfax Group Pty Ltd (Receivers & Managers Appointed v Local Court (NSW) (at 161B):
This leads to the consideration of what is meant by 'necessary to secure the proper administration of justice' in this context. The phrase does not mean that if the relevant order is not made, the proceedings will not be able to continue. Plainly they can. If the name of an informer is not hidden under a pseudonym, the proceeding will go on: at least, the instant proceeding will. And if the name of a security officer is revealed, the administration of justice or of the country will not collapse. The basis of the implication is that if the kind of order proposed is not made, the result will be - or at least will be assumed to be - that particular consequences will flow, that those consequences are unacceptable, and that therefore the power to make orders which will prevent them is to be implied as necessary to the proper function of the court. The kinds of consequences that, in this sense, will be seen as unacceptable may be gauged by those involved in the cases in which statutory courts have been accepted as having restrictive powers. Thus, there will be hardship on the informer or the security officer or the blackmail victim; the future supply of information from such persons will end or will be impeded; and it will be more difficult to obtain from such persons the evidence necessary to bring offenders before the courts and deal with them. It is not necessary to attempt to state exhaustively the considerations relevant in this regard: it is to considerations of this kind or of an analogous kind on which the principle stated by McHugh JA is based."
9 It follows that I agree with what Basten JA has said in par [48] of his judgment. I also agree that the requirement imposed by s 6 of the Suppression Orders Act, namely that in making an order the Court is required to take into account that a primary objective of the administration of justice is safeguarding the public interests in open justice, should not impede the Court from making an order when it is of the opinion that one of the grounds in s 8 is made out and that its importance will vary depending on the extent that any such order would interfere with that principle."
Basten JA in the same case said:
"48 The broader concept of the administration of justice, including consequences not just for the present case but for future cases, including the supply of information from victims of unlawful conduct and the willingness of witnesses to give evidence, accords with the approach taken in this Court: ... : Each of these cases was dealing with the implied power of courts, operating prior to the commencement of the Suppression Orders Act, and each involved orders which impinged on the operation of the open justice principle. Accepting that broad view, at least in some circumstances, the factors referred to in paragraphs (c) and (d) of s 8(1) may overlap with (a), because orders falling within those paragraphs might also be necessary to prevent prejudice to the proper administration of justice.
This Court recently accepted that the "principle of legality" favours a construction of s 8 which has "the least adverse impact upon the open justice principle and common law freedom of speech": Rinehart v Welker [2011] NSWCA 403 at [26] (Bathurst CJ and McColl JA). However, that approach may have a more limited application in circumstances where the proposed order does not impact upon the open justice principle because it does not prevent or restrict publication of court proceedings. The "common law freedom of speech" is not to be disregarded, but it provides a lesser obstacle to an order designed to prevent prejudice to the proper administration of justice."
By reference to s 6 of the Suppression Act and to those statements of principle, I am not satisfied on the evidence before me that a suppression order as sought by the plaintiff should be made. The order sought by the plaintiff in his Notice of Motion is therefore refused.
**********
Decision last updated: 13 December 2013
11
6