St Alder v State Parole Authority and Anor

[2007] NSWSC 345

CITATION:	St Alder v State Parole Authority and Anor [2007] NSWSC 345
HEARING DATE(S):	02/04/2007
JUDGMENT DATE :	16 April 2007
JUDGMENT OF:	Howie J at 1
DECISION:	The summons is dismissed.
CATCHWORDS:	Prisons - revocation of parole - review by Parole Authority - whether error in law in not rescinding revocation - whether material before Authority false, misleading or irrelevant.
LEGISLATION CITED:	Crimes (Administration of Sentences) Act 1999 - ss 128, 137A(1), 155, 170(4), 174, 175(1)(a)
CASES CITED:	Rozynski v Parole Board of New South Wales [2003] NSWCCA 21
PARTIES:	Kevin Leslie St Alder v State Parole Authority and Anor
FILE NUMBER(S):	SC 30006/2007
COUNSEL:	D. Legg - Plaintiff B.K. Baker - 2nd Defendant (Attorney General)
SOLICITORS:	Burridge & Legg - Plaintiff I.V. Knight - 2nd Defendant (Attorney General)

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION
ADMINISTRATIVE LAW LIST

HOWIE J

MONDAY 16 APRIL 2007

30006/2007 KEVIN LESLIE ST ALDER v STATE
PAROLE AUTHORITY AND ANOR

JUDGMENT

1 HIS HONOUR: These are proceedings for orders in the nature of prerogative relief sought by the plaintiff against the State Parole Authority (the Authority). Alternatively there is also an application under s 155 of the Crimes (Administration of Sentences) Act 1999 (the Act) for an order directing the Authority to determine the application of the plaintiff for parole without relying on information which was false, misleading or irrelevant.

2 Mr Legg appeared for the plaintiff and Ms Baker of the Crown Solicitor’s Office appeared for the Attorney General as contradictor. There was no appearance on behalf of the Authority that submitted to the orders of the Court.

3 On 26 September 2005 Justice Blanch in the District Court sentenced the plaintiff on a charge of malicious damage to a dwelling house by fire to imprisonment for four years with a non-parole period of two years. The sentence dated from 26 October 2003 so that the plaintiff was eligible for parole on 26 October 2005. The offence arose out of a breakdown in the relationship of the plaintiff with his former partner, Ms Wilson. There are four children of that relationship. The house, which was subject of the offence for which the plaintiff was imprisoned, was owned by Ms Wilson’s aunt.

4 In sentencing the plaintiff Justice Blanch referred to evidence that the plaintiff had previously given before him on a bail application and stated "it was quite clear at that stage that he was very strongly emotionally attached to his children and was having difficulty making objective judgments about his conduct". Justice Blanch also stated:

“A significant focus of the Court in dealing with him has to be to ensure that when he is released into the community he is released under terms of supervision which will guarantee that he has an objective attitude towards his children and the break up of the relationship and that in the fullness of time he can return to a normal life in the community with whatever access is granted to him by the Family Court to his children. There needs to be some guarantee that he is objective about that and that he will behave reasonably upon his release into the community.”

5 On 25 November 2005 the Authority refused the plaintiff parole because of a "risk of reoffending, an inability to adapt to normal community life, a need for psychological counselling, unconfirmed release plans". The application was stood over to 26 May 2006 for "a psychological report regarding risk; probation and parole officers report and correctional centre report for parole consideration". The plaintiff applied to this Court for a direction that information upon which the Authority made the decision that he should not be released to parole was false, misleading or irrelevant. That application was refused.

6 The Authority did not grant the plaintiff parole in May 2006. There was an adverse pre-release report prepared by a probation and parole officer. The report principally addressed the plaintiff's attitude to his former partner and contained the following paragraph:

"Of significant concern is Mr St Alder’s ongoing lack of insight into his offending behaviour and continuing disdainful attitude toward his victim/former partner. Mr St Alder’s denial and minimisation of the history of domestic violence between he (sic) and his former partner, and apparent negative attitude toward possible parole conditions relating to such, continue to create concerned in relation to the inmate’s ability to adhere to a law-abiding lifestyle upon release”.

The report did not recommend the plaintiff's release to parole.

7 On 1 August 2006 there was a "Supplementary Pre Release Report” prepared that recommended release to parole but on conditions, two of which were as follows:

“Condition 31: The offender must not communicate with Jacqueline Wilson without the prior approval of his supervising officer.

Condition 38: the offender must not enter the Bondi area or surrounding suburbs without the prior approval of his supervising officer.”

8 At a hearing before the Authority on 18 August 2006, at which Mr Legg appeared for the plaintiff, the probation and parole officer gave evidence as to why she recommended condition 38 above. The officer indicated she was concerned with the plaintiff's negative attitude toward his partner and thought that the condition would prevent any further reoffending or any situation arising that might lead to a breach of parole.

9 On 18 August 2006 the plaintiff was granted parole subject to conditions, one of which was that:

"The offender must not contact or communicate with Jacqueline Wilson and family without the express prior approval of the supervising probation and parole officer".

In granting parole the Chairperson stated that this was "perhaps most significant" and explained that, rather than placing a prohibition on the plaintiff being in the Bondi area, the Authority had put a prohibition on contact " in respect of those named people ".

10 The plaintiff signed the parole order on 21 August 2006, thereby acknowledging that he understood the terms and conditions upon which he was released to parole. He was released to parole on 22 August 2006.

11 On 30 August 2006 the probation and parole officer supervising the plaintiff prepared a report to the Authority. It was an "update report provided in relation to condition 14 of [the plaintiff's] parole order”. Condition 14 was that in relation to contact or communication with the plaintiff's former partner and her family set out above. The report contained the following paragraphs:

“On 29 August 2006 Mr St Alder reported for parole supervision, he disclosed that he had been having regular contact with his children. According to Mr St Alder the children contact him and he also sees them around the Bondi area. Mr St Alder has not provided a mobile contact number to this office and claims that he is only contactable through the boarding house phone number. It is unclear how the children are contacting him. Mr St Alder denied going to their residence and he also denied attempting to contact their mother Ms Jacqueline Wilson.

Mr St Alder was reminded of condition 14 of the parole order and he was advised that he had breached this condition by failing to seek the express prior approval of the supervising officer to see his children. Mr St Alder was verbally directed to abide by the conditions of his parole order with particular emphasis on condition 14.

Mr St Alder did not respond well to this direction and appeared resistant and unwilling to cooperate. Mr St Alder stated that this office could not direct him to not have contact with his children. Mr St Alder argued that the parole order did not specify that he could not go to the children's house. He was again asked if he had visited their residence, to which he replied that he had dropped them off there recently. He was again asked if he had attempted to make contact with Ms Wilson and he stated that he had not seen Ms Wilson because he had only dropped his children off in the vicinity of where they live because he does not know their address.

It became clear that Mr St Alder was being deceptive in the information he was giving to this officer…………
………………….

Enquiries with Ms Wilson verified that not only had Mr St Alder been seeing his children but he had been to Ms Wilson's residence. Ms Wilson advised that she felt unsafe and threatened when he turned up at her back door one night unannounced and she does not want to have any further contact with him.

However, in relation to the children, Ms Wilson stated that at this stage she does not want to restrict Mr St Alder from having contact with them that particularly given that the children themselves want to see him. According to her only one of the four children does not want to see him or spend time with him.”

12 Under the heading "Response to Supervision" the report contained the following:

“Mr St Alder is currently on weekly reporting and has reported on time. Mr St Alder has presented as resistant and non-compliant to the directions of this office. At times he has been argumentative and appeared to be irrational and dishonest”.

13 The report recommended that the plaintiff be given a formal warning “to comply with the conditions of his parole order and the directions of this Office”.

14 On 1 September 2006 the Authority revoked the plaintiff's parole pursuant to s 170 of the Act. The revocation was effective from 30 August 2006.

15 On 7 December 2006 the Authority reviewed its decision to revoke the plaintiff's parole in accordance with s 174 of the Act. The Authority conducted a hearing at which the plaintiff was present and represented by Mr Legg. Both the plaintiff and the officer, who prepared the report, gave evidence.

16 The plaintiff was asked about a meeting with the supervising parole officer after his release from gaol. The following was his answer:

“…. Before I was released I also had a meeting with Joanne Stapleton who was my parole officer at…(not transcribable).. Silverwater parole hearing and she explained to me with the orders and the documents… (not transcribable).. signed my parole papers. In relation to that meeting, I asked Ms Stapleton about contact with children in relation to the order, it said that no contact or communication… (not transcribable).. and family. She thought, as I did, that what the order was referring to was the aunty who is the primary victim in relation to the offence.. (not transcribable).

The plaintiff gave evidence as to his meetings with his children in the period while he was on parole. He denied ever having contact with Ms Wilson.

17 The plaintiff was asked about the officer’s statement that he was of the opinion that he did not have to comply with his parole conditions. The plaintiff said:

“That's not true. I was, from the time that I was out I was lawful, I was certainly mindful of my contact with the children. Justice Blanch indicated that he thought that I should be more objective about contact that I had with the children. I believe I certainly was.”

He was asked whether he would follow the directions of the parole office in relation to any further supervision of him having contact with children. The plaintiff said:

"Certainly, but I never set out to go and find the children when I was released. I just ask that the Parole Board to be mindful of when the children approach you even though you can't.. (not transcribable).. release.. (not transcribable).. the Family Court, when your children approach you, you can't turn away from them. There was one evening where [J] wanted to come back to Burwood with me and was almost refusing to go back home and I had to get a friend of mine to drive him home because he wanted to stay…. (not transcribable)…”

18 The Chairperson asked the plaintiff whether he was aware of the conditions that were placed upon him when he was released to parole. The plaintiff answered:

"I was aware of them, but I was not aware that the conditions.. (not transcribable).. not contact or communicate with Jacqueline Wilson and her family. I didn't think that that referred to the children. My submissions to you, with respect, your Honour, was the very first thing I intended to do when I get out was to contact my children. I had custody of the children before coming into custody.

19 The Chairperson put to the plaintiff that he could have been under no misapprehension at the end of the parole proceedings that the condition related to Ms Wilson and the children but the plaintiff continued to state that he believed that condition did not apply to the children. There was an exchange between the Chairperson and the plaintiff which ended as follows:

“A. Your Honour, with respect, I… (not transcribable).. clarify that with my parole office and that was not, if the children were named, if the children were clearly named, it would be certainly apparent, but it wasn't apparent to me. I sought to clarify it with Mr Legg. Mr Legg also thought that it was not part of the Authority, that he thought like I thought that it was in fact the aunty and her mother that you were referring to.

Q. I regard what you just said, Mr St Adler (sic) as disingenuous and if Mr Legg takes that view he can be subject to the same remark. And, as I said before, three of the members of this Authority sat on your last hearing, in fact it's five of us and we all have the same recollection. I mean it was canvassed in detail as to why this was all, all had to be a managed situation in order to avoid what seemed to be a problem.

We did not prevent you from going to the area. [You] put to us it was all about working and doing other things in Bondi but you are aware, you've heard our view. We take the view that [it] is not ambiguous and its crystal clear you've on no occasion sought approval to do any of the things you’ve described on the screen (sic) today.”

20 The supervising parole officer was then called to give evidence. She was asked about speaking with the plaintiff about the meaning of condition 14. She stated:

"Yes, I did, on 23 August when he first reported, I discussed that condition with him and made it clear that he was to seek my approval.. (not transcribable).. to have any contact with Jacqueline Wilson or.. (not transcribable).. family, which included his children. He argued that condition with me and he was quite aggressive and it was clear that I had no legal right to be enforcing that condition.

I explained to him at that time that I was not stopping him from having contact with Jacqueline Wilson or his children but my intention was to make sure that.. (not transcribable).. any contact was safe and was consensual and that he was completely transparent with me and brought up prior approval before any contact happened and that that was as clear as I could put it to him on the day, the 23rd."

The officer gave lengthy evidence about her contact with the plaintiff in the period of his parole prior to her making a report to the Authority.

21 Mr Legg addressed the Authority on behalf of the plaintiff. He asked the Authority not to find that there had been a contumelious disregard for the orders of the Authority or the directions of the parole officer. He drew attention to the fact that the officer was not seeking to have parole revoked and asked the Authority to release the plaintiff. The ultimate submission made to the Authority was:

“Your Honour, the circumstances that bring us here are regrettable and, in my submission, the fact that Mr St Alder has now spent a further period in custody is an indication that he's learnt a further valuable lesson. The situation being such as it is with children, where the children are in genuinely difficult circumstances and in need of some direction and guidance and assistance, in my submission, the just course for the Authority to take is to provide for his re-release on the basis of imposition of a condition.. (not transcribable).. case conference with Ms Wilson and [the parole officer].

22 The Authority than adjourned for a short time to consider the submissions and ultimately determined to confirm the revocation order. In the reasons for this decision, the Chairperson said:

In the matter of Mr St Alder, the basis of this review is that Mr St Alder has said that he did not breach condition 14 of his parole order which is in the following terms:

“That the offender must not contact or communicate with Jacqueline Wilson and family without the express prior approval of the supervising probation and parole officer."

In evidence today Mr St Alder does agree that family, as it applies to Ms Wilson are her children and the transcript of evidence in respect of the last appearing before this board with the conditions of parole were discussed make it clear that the question of contact, both with Ms Wilson and also their mutual children, was an issue which was of concern to the board and which we purported to set up a regime so it could be done safely and without any difficulty.

We did, on that occasion, not follow the direct recommendation of the then parole officer, that Mr St Alder not go to the Bondi area where his partner and the children reside. We thought that was too onerous. What we did do was set up a regime so that the meetings with the children or anyone else should be done with express prior approval of the supervising probation and parole officer. That parole officer has given evidence today…that even though she explained all of this to Mr St Alder, it did not appear to be possible for her to set up a regime that would make this operate.

Mr St Alder still takes the view that all he had to do in relation to condition 14, was not communicate with Jacqueline Wilson and members of her family, apart from the children. As I describe it in the course of the hearing today, I regard it and the Authority regards such an interpretation of condition 14 as disingenuous and we have a lot of difficulty in accepting that there can be safe operation of this regime without a different sort of cooperation from Mr St Alder.

Mr St Alder, under the new law, the breach is therefore established, in our view. Under the new law, we must, if we confirm this revocation for breach of that parole, we cannot consider, or you cannot be released on parole for 12 months. It may have been in past time, we would have had another look at you and got [the officer] to set up a system for contact with your children which might have created a more secure and reasonable regime for you to spend the rest of your sentence on parole. Unfortunately, we don't have that discretion, so we have confirmed the revocation for the reasons that were stated on 1 September, and that is for breach of condition 14 and we.. (not transcribable).. date some time before that date, there’ll be a reconsideration of whether the remaining part of your sentence will be served on parole….”

23 The reference to the "new law" in the last paragraph quoted is a reference to s 137A(1) of the Act that provides:

“At any time within 90 days before the anniversary of an offender’s parole eligibility date, the offender, if still eligible for release on parole, may apply to be released on parole.”

Section 3 of the Act contains the following definition:

“parole eligibility date”, in relation to an offender, means:

(a) subject to paragraph (b), the date on which the offender first becomes eligible for release on parole, or
(b) if the offender is returned to custody following revocation of parole, the date occurring 12 months after the date on which the offender is so returned.

The operation of these two provisions means that the plaintiff cannot be considered again for parole before his sentence expires on 26 October next. Therefore, unless the plaintiff succeeds in having the revocation of parole reconsidered, he will serve out the balance of his sentence.

24 The plaintiff's principal argument is that the Authority failed to exercise its jurisdiction in accordance with the provisions of the Act because it failed to give consideration to all alternatives to the full revocation of the plaintiff's parole. The plaintiff relies upon s 170(4) of the Act. That section provides:

“If it is satisfied that the offender has failed to comply with the offender’s obligations under a parole order but is not of the opinion that the order should be revoked, the Parole Authority may instead impose further conditions on the order, or vary any of the existing conditions of the order, in accordance with section 128.”

25 The plaintiff's parole was revoked on 1 September 2006. This decision was made pursuant to s 170 of the Act where the Authority is "satisfied that the offender has failed to comply with the offender's obligations under the order". The reason given for the revocation was that the plaintiff "contacted or communicated with unnamed persons without express prior approval of the supervising officer".

26 The hearing at which the plaintiff and the parole officer gave evidence was a review of the revocation pursuant to s 174 of the Act. After that review hearing the Authority was to consider all of the material then available and must determine "whether or not to rescind ……… the revocation of the parole order": s 175(1)(a) of the Act. The question, therefore, before the Authority was whether or not to rescind the order made on 1 September. The Attorney General accepts that it would be open to the Authority to rescind the order and then impose additional conditions on the parole order under s 128 of the Act. But it was submitted that there was no duty on the Authority to specifically and independently consider whether to follow such a course or to give reasons for not taking such a course.

27 In my view the difficulty for the plaintiff is that it was a discretionary judgment of the Authority whether to rescind the revocation order based upon the material before it after the review hearing. By "discretionary" I mean that the Authority had to make a judgment as to what action, if any, it should take in relation to the revocation order and that reasonable minds might differ as to what course should be adopted. True it is that the Authority might have reasonably determined to rescind the order subject to further conditions being imposed upon the parole order, but it was not in my opinion bound to take that course.

28 The proceedings that the plaintiff brings to this Court are not an appeal from the decision of the Authority. It is not a case of this Court exercising the discretion that resided in the Authority differently because it might take a different view of the material before the Authority or come to a different decision as to what ought to have been made as a consequence. It was accepted by Mr Legg that it had been shown that in some way the Authority erred in law in carrying out its statutory function in accordance with the provisions of the Act. The plaintiff might succeed in showing such an error if this Court was satisfied that no reasonable body in the position of the Authority could, on the material before it, have come to the decision that it did. If the Court reached that opinion, it would find that the Authority must have erred in law even if it could not identify where in particular it had done so.

29 But that is not this case. The Authority was in the best position to assess the evidence given by the plaintiff and that was no doubt an important consideration in determining what action to take, if any, as a result of the review hearing. Clearly the Authority came to the view that the plaintiff was not being honest in the evidence he gave before it in relation to the circumstances in which he came to see his children and in his understanding of condition 14. It was entitled to come to that view and in my opinion was justified in doing so. This was very relevant material in the Authority’s assessment of whether the revocation order should be rescinded to permit the plaintiff another chance to be at liberty but subject to a further condition controlling his access to his children.

30 There is nothing in the transcript of the hearing and in particular in the reasons given by the Chairperson to suggest that the Authority did not understand that it could rescind the revocation order and make further conditions on the plaintiff's parole. Quite the contrary. The last paragraph of the reasons quoted above seem to me to be a realisation by the Authority that, but for the change of law, the Authority might have reconsidered the situation sometime further into the plaintiff's sentence. But it could not do so and clearly was not prepared to rescind the revocation order in light of the plaintiff's attitude revealed by his evidence before the Authority. It seems that it was the plaintiff's attitude at the time of the review hearing that was of concern to the Authority as much as the breach of the condition. The Authority was entitled to view the plaintiff's attitude as giving no confidence that he would comply with any condition in relation to access to the children or Ms Wilson regardless of how it might be framed.

31 The plaintiff submits that the Authority took into account an irrelevant consideration in the following passage of the Chairperson's reasons:

"What we did was to set up a regime so that the meeting with the children or anyone else should be done with express prior approval of the supervising probation and parole officer".

It was submitted that the reference to " anyone else " was a misunderstanding of what condition 14 was designed to do and misunderstood the difficulty that the supervising officer had found in making arrangements for the plaintiff to have access to his children.

32 With great respect to Mr Legg, who took a very sensible and restrained approach in arguing the application for his client, it is clear that the issue before the Authority at the review hearing was the plaintiff's contact with his children and whether it was in breach of condition 14. The words "or anyone else" should either be read as meaning “other members of Ms Wilson's family” or was merely a slip. It cannot seriously be contended that the members of the Authority, who heard the review proceedings, had any misunderstanding or misconception about the issue before them. As the Chairperson pointed out, the members at the hearing included persons who had determined originally to release the plaintiff on condition 14, a condition that was designed by the Authority to meet the concerned expressed by the parole officer about the plaintiff's conduct in relation to Ms Wilson and the children.

33 It was further submitted on behalf of the plaintiff that the Authority's finding that it had "a lot of difficulty in accepting that there can be safe operation of this regime without a different sort of cooperation from Mr St Alder” was against the weight of the evidence or in the absence of the evidence. The plaintiff relied upon the fact that the children, bar one, wanted to have contact with the plaintiff and Ms Wilson did not oppose it. I am not certain that a finding made against the weight of the evidence would be an error of law justifying the intervention of this Court, and Mr Legg conceded that this was so during the hearing, but I am prepared to deal with the complaint on the basis that it is.

34 In my opinion it was open to the Authority to make that finding given the attitude and the dishonesty of the plaintiff in his dealings with the parole officer on this issue and his continuing attitude of dishonesty at the hearing in relation to the control of his access to the children. In my opinion the Authority were entitled to take the view that the plaintiff would do just as he wanted in relation to his children regardless of any condition imposed upon him. The condition was not so much for the protection of the children but to ensure that the plaintiff did not under the guise of seeing his children interfere with Ms Wilson. There is no suggestion that the imposition of a condition such as that in condition 14 was unreasonable. Rather Mr Legg was inviting the Authority to impose a condition that was suitable to all including Ms Wilson and presumably the plaintiff for controlled access to the children.

35 Insofar as the alternative application under s 175 of the Act is concerned it has been made clear that the Court is limited in the relief that can be granted under the section: Rozynski v Parole Board of New South Wales [2003] NSWCCA 21. I am of the opinion for the reasons already given that there was no material relied upon by the Authority that was false, misleading or irrelevant.

36 In my opinion the plaintiff is not entitled to any relief arising from the Summons. I am tentatively of the opinion that there should be no order as to costs given that the Attorney General sought to appear as contradictor and was represented by a member of the office of the Crown Solicitor. This is not to suggest in anyway that the Court was not substantially aided by that appearance. Quite the contrary is true. But I am prepared to entertain an application to make an order as to costs within 14 days of the date of the judgment.

37 The order of the Court, therefore, is: the Summons is dismissed.

**********