Parole Board of NSW v Shiagetz
[2005] NSWCCA 372
•19 October 2005
CITATION: Parole Board of NSW v Shiagetz [2005] NSWCCA 372
HEARING DATE(S): 19 October 2005
JUDGMENT DATE:
19 October 2005JUDGMENT OF: Simpson J at 1; Adams J at 2; Johnson J at 13
DECISION: Application dismissed
CATCHWORDS: Appeal following unsuccessful application for parole - disputed facts - role of Parole Board - adjournment of consideration of application - whether a "[decision] that an offender should not be released on parole" - sentence served before appeal heard - jurisdiction of Court
LEGISLATION CITED: Crimes (Administration of Sentences) Act 1999 s155
PARTIES: Parole Board of New South Wales
v
Jason SHIAGETZFILE NUMBER(S): CCA 2005/1182
COUNSEL: Ms B Baker (Parole Board)
Applicant in personSOLICITORS: Mr Ian Knight (Crown Solicitor)
Unrepresented
LOWER COURT JURISDICTION: Parole Board of NSW
IN THE COURT OF
CRIMINAL APPEAL
2005/1182
SIMPSON J
ADAMS J
JOHNSON J
JUDGMENT
1 SIMPSON J: I agree. The order of the Court will be as proposed by Adams J.
2 ADAMS J: This is an application made under s155 of the Crimes (Administration of Sentences) Act 1999 which gives a limited jurisdiction to this Court to consider decisions of the Parole Board where it has determined that an offender should not be released on parole. The applicant in such a situation may seek a direction to the Parole Board as to whether information upon which the Parole Board’s decision was based was false, misleading or irrelevant. If the applicant succeeds in establishing that the information upon which the Parole Board acted was of this kind, this Court may “give all such directions with respect to the information as it thinks fit.”
3 It is clear that the point of this limited power to intervene in the deliberations of the Parole Board assumes that there is work still for the Parole Board to do. In this case we have been informed that the applicant’s sentence has been completely served and he was released unconditionally on 8 September 2005. It follows that the Parole Board no longer has any role in dealing with the applicant in any way.
4 It seems to me that this Court’s power to give directions must, therefore, have lapsed. Accordingly, even if in this case the Parole Board did refuse parole upon the basis of false, misleading or irrelevant information, s155 does not give this Court any power to consider the matter and thus this application cannot succeed.
5 It is, however, worth making some observations. The principal complaint of the applicant is that his parole was initially revoked because, amongst other things, he was convicted in his absence of offences for which he was fined a total of $1000. They were offences which, if true, certainly showed antisocial behaviour, not especially serious but certainly not trivial, especially in the context of a person under the restraints of the usual conditions of parole. I should add that there was also an assertion by his parole officer that the applicant, in effect, was unco-operative and his “aggressive attitude and behaviour” should be considered as “militating against the continuation of his parole.”
6 In due course the applicant was successful in having his convictions annulled by the Local Court. They were reconsidered and the fines substantially reduced. He has informed us that he has appealed to the District Court, both in respect of the convictions and the sentences. The change in fines suggests that the offences were, after all, much less serious than appeared before the applicant had had an opportunity explain his position in the Local Court.
7 However, rather than granting parole upon the annulment of convictions, it appears that the Parole Board adjourned or at least delayed making any decision on the applicant’s application for parole at that point, pending the outcome of the Local Court proceedings. I do not intend to rehearse the chronology of events but I am somewhat sceptical that this is an adequate explanation for the delay.
8 In the circumstances, I would be prepared to view the delay as a decision that the applicant “should not be released on parole” within the meaning of s155(1)(a) of the Crimes (Administration of Sentences) Act 1999 so that the mere fact of delay, rather than being a final determination, would not preclude the Court from exercising its jurisdiction under that provision. However, as I have mentioned, for other reasons I do not think we have jurisdiction to determine the matter.
9 Another difficulty facing the Court is that, despite the grounds of his complaint being clear enough from the terms of his application, the Parole Board has not provided to the Court the information upon which it made whatever decisions it made; still less has it provided the Court with the terms of such decisions that it made in the course of its consideration of the applicant’s application. Regrettably, this matter has taken some time to be heard. Counsel for the Parole Board apologises for the failure to provide that information. I will say no more than that it is most unfortunate that this information is not before the Court. In this case, because of the events that have happened, it is of little moment. Even so, it was not for the Parole Board to anticipate the outcome of this application. This material should be provided to the Court in every case of this kind.
10 If there had not been the jurisdictional limitation to which I have adverted, it may be that this Court would consider adjourning the application to enable the Parole Board to provide the information which would permit it to determine the issues. However, it is obvious that there would be no utility in taking such a step and it seems to me that it would be wrong to exercise the Court’s discretion to adjourn in favour of such a course.
11 In the result the applicant has been left in the unfortunate position that his complaints about the material before the Parole Board have not been able to be aired in any significant way. I note, however, that he has provided the Court with a report that was made to him by the solicitor of the Prisoners Legal Service, who appeared for him on the Parole Board hearing on 7 April 2005, which indicates that most of the complaints which he has made about the revocation of his parole were brought to the attention of the Parole Board. What, of course, that letter does not deal with is the reasons for delaying the grant of parole when his convictions were annulled.
12 In the circumstances, however, I do not see that this Court can take the matter any further and, accordingly, I propose that the application be dismissed.
13 JOHNSON J: I also agree.
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