Tulloh v Chief Executive Officer of the Department of Corrective Services
[2014] WASC 368
•3 OCTOBER 2014
TULLOH -v- CHIEF EXECUTIVE OFFICER OF THE DEPARTMENT OF CORRECTIVE SERVICES [2014] WASC 368
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2014] WASC 368 | |
| 03/10/2014 | |||
| Case No: | CIV:2057/2014 | 22 SEPTEMBER 2014 | |
| Coram: | CHANEY J | 22/09/14 | |
| 11 | Judgment Part: | 1 of 1 | |
| Result: | Order for release from custody made | ||
| B | |||
| PDF Version |
| Parties: | MICHAEL DENNIS JOHN TULLOH CHIEF EXECUTIVE OFFICER OF THE DEPARTMENT OF CORRECTIVE SERVICES PRISONERS REVIEW BOARD |
Catchwords: | Habeas corpus Unlawful detention Order cancelling parole quashed Effect of order quashing Suspension of parole Whether cancellation order has legal effect until quashed |
Legislation: | Rules of the Supreme Court 1971 (WA) Sentence Administration Act 1995 (WA) Sentence Administration Act 2003 (WA) Sentencing Act 1995 (WA) Sentencing Legislation Amendment and Repeal Act 2003 (WA) |
Case References: | Forbes v New South Wales Trotting Club Limited [1979] HCA 27; (1979) 143 CLR 242 King v Alan Piper, Director General, Department of Justice WA [2004] WASCA 218 Minister for Immigration and Multicultural Affairs v Bhardwaj [2002] HCA 11; (2002) 209 CLR 597 Tulloh v Prisoners Review Board [2014] WASC 239 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CHAMBERS
- Applicant
AND
CHIEF EXECUTIVE OFFICER OF THE DEPARTMENT OF CORRECTIVE SERVICES
First Respondent
PRISONERS REVIEW BOARD
Second Respondent
Catchwords:
Habeas corpus - Unlawful detention - Order cancelling parole quashed - Effect of order quashing - Suspension of parole - Whether cancellation order has legal effect until quashed
Legislation:
Rules of the Supreme Court 1971 (WA)
Sentence Administration Act 1995 (WA)
Sentence Administration Act 2003 (WA)
Sentencing Act 1995 (WA)
Sentencing Legislation Amendment and Repeal Act 2003 (WA)
Result:
Order for release from custody made
Category: B
Representation:
Counsel:
Applicant : Mr T Alexander
First Respondent : Mr C J Thatcher
Second Respondent : No appearance
Solicitors:
Applicant : Dunns Corporate Counsel
First Respondent : State Solicitor for Western Australia
Second Respondent : No appearance
Cases referred to in judgment:
Forbes v New South Wales Trotting Club Limited [1979] HCA 27; (1979) 143 CLR 242
King v Alan Piper, Director General, Department of Justice WA [2004] WASCA 218
Minister for Immigration and Multicultural Affairs v Bhardwaj [2002] HCA 11; (2002) 209 CLR 597
Tulloh v Prisoners Review Board [2014] WASC 239
- CHANEY J:
(These reasons were delivered extemporaneously on 22 September 2014 and have been edited from the transcript.)
1 The applicant applies in these proceedings for a writ of habeas corpus ad subjiciendum. His application is based on the proposition that the term of imprisonment under which he is currently being detained should, on a proper construction of the relevant statutory provisions, be found to have expired in December 2012 with the result that his continuing detention now is unlawful.
Background of present application
2 On 13 December 2002, the applicant was sentenced to a 15-year term of imprisonment following his conviction in the District Court for a drug-related offence. As the sentencing judge explained at the time of imposing the term of imprisonment, the operation of the relevant legislative provisions applicable at the time meant that Mr Tulloh would be entitled to a one-third remission of his sentence so that he would serve 10 years of the 15-year head sentence. He was made eligible for parole which, if granted, would involve spending two years on parole after eight years in custody, so that he would be released if the parole was successfully completed after a total of 10 years from the time of his sentencing.
3 On 25 November 2010, the applicant was granted parole and was released accordingly on 8 December 2010. On 30 August 2012, the applicant's parole was suspended by the manager of the South West Adult Community Corrections under delegated authority and a warrant was issued for his arrest. The suspension order was expressed to be for an indefinite period.
4 On 4 October 2012, the applicant's parole order was cancelled by the Prisoners Review Board, and he was returned to custody on that day. He has remained in custody since. By reason of the operation of the applicable legislative provisions, the effect of cancellation of Mr Tulloh's parole was that he was liable to resume serving the fixed term, that is, the full 15-year term, in custody, and was not entitled to be released until he had served the whole of that term or was otherwise released early on parole again.
5 On 17 February 2014, the applicant sought a writ of certiorari and declarations regarding the cancellation of his parole by the Prisoners Review Board and the subsequent recalculation of his sentence. On 4 July 2014, I made orders on that application quashing the Prisoners Review Board decision to cancel parole. Subsequently, Mr Tulloh was advised that his sentence status had been updated and that, in the view of both the first and second respondents, he was liable to serve the whole of the sentence to the expected release date of late December 2017.
Relevant statutory provisions
6 At the time of his sentencing, Mr Tulloh's imprisonment was governed by the provisions of the Sentencing Act 1995 (WA) (Sentencing Act 1995) and the Sentence Administration Act 1995 (WA). On 31 August 2003, the Sentence Administration Act 2003 (WA) came into operation replacing the Sentence Administration Act 1995 and substantial amendments were made to the Sentencing Act 1995 by the Sentencing Legislation Amendment and Repeal Act 2003 (WA), which is contained in sch 1 dealing with transitional provisions.
7 Clause 5 of sch 1 of the Sentencing Legislation Amendment and Repeal Act 1995 sets out the regime applicable to prisoners sentenced before 31 August 2003, which is the date in which the amendments came into effect. That clause provides that:
(1) If immediately before commencement a person is subject to a fixed term that is not a parole term and to which the old provisions apply, then on and after commencement the old provisions continue to apply to that term and to the release of the person in respect of that term.
(2) If immediately before the commencement a person is subject to a parole term to which the old provisions apply, then on and after commencement -
(a) the old provisions apply for the purpose of calculating -
(i) when the person is eligible to be released on parole;
(ii) the parole period for the person; and
(iii) when the person is discharged from the sentence and must be released;
(b) the new provisions apply for the purpose of determining whether the person is to be released on parole;
…
9 The term imposed on Mr Tulloh was a parole term for the purposes of cl 5 of sch 1. Thus, for the purpose of calculating when he was eligible to be released on parole, his parole period, and when he was to be discharged from the sentence, the old provisions (being the Sentencing Act 1995 as it was prior to the 2003 amendments, and the Sentence Administration Act 1995) are to govern those matters.
10 Section 71 of the Sentence Administration Act 1995 relevantly provided for the effect of cancellation of a parole order. Subsection (1) provided that:
If an early release order, other than a WRO, in respect of a prisoner serving a fixed term is cancelled after the prisoner is released under the order, the prisoner is then liable to resume serving the fixed term in custody and is not entitled to be released until he or she has served the whole of that term.
11 A WRO is a work release order. It was that provision which was applied to Mr Tulloh after the cancellation of his parole by the Prisoners Review Board on 4 October 2012.
12 Section 71(2) of the Sentence Administration Act 1995 provided that:
If a WRO in respect of a prisoner serving a fixed term is cancelled after the prisoner is released under the order, the prisoner is then liable to resume serving the fixed term in custody and is to be released in accordance with section 95 of the Sentencing Act 1995.
13 Section 69 of the Sentence Administration Act 1995 dealt with the effect of the suspension of an early release order. Subsection (1) provided:
If an early release order in respect of a prisoner serving a fixed term is suspended, the prisoner is then liable to resume serving the fixed term in custody and, unless the suspension ceases or the early release order is cancelled, is to be released in accordance with section 95 of the Sentencing Act 1995.
14 It is relevant to notice that the same language is used to describe the effect of cancellation of a work release order in s 71(2), as is used to describe the effect of suspension of parole in s 69. That language invokes the provisions of s 95 of the Sentencing Act 1995 as it read at the time that Mr Tulloh was sentenced. At that time s 95 read as follows:
(1) A prisoner serving a fixed term that is neither a prescribed term nor a parole term is discharged from that sentence when he or she has served two thirds of the term and, subject to Division 2 of Part 2 of the Sentence Administration 1995, must be released then.
(2) If a prisoner serving a parole term has not been released on parole before he or she has served two thirds of the term, then the prisoner is discharged from that sentence when he or she has served two thirds of the term and, subject to Division 2 of Part 2 of the Sentence Administration Act 1995, must be released then.
15 The distinction between s 71(1) and s 71(2) was alluded to by the Court in King v Alan Piper, Director General, Department of Justice WA,1 which was a decision of the Court of Appeal in 2004. In that case2 the Court said:
The distinction between s 71(1) and s 71(2) will be noted. In our opinion, it is deliberate. Cancellation of a WRO does not interfere with the general principle that a prisoner is discharged from his or her sentence and entitled to be released on serving two-thirds of the term, but the provision made by s 71(1) for the case, which is the case of the applicant, where a parole order is cancelled, is quite different. There is no entitlement to release and the applicant's detention remains lawful until he has served the whole of the term. That is subject, however, by s 71(6), to the fact that another parole order may still be made in respect of the applicant [26].
Proper construction of the Sentence Administration Act 1995 (WA) s 69
16 It is not in issue that if Mr Tulloh's parole was effectively cancelled then the effect of s 71 of the Sentence Administration Act 1995 is that he is liable to serve the whole of his 15-year term.
17 However, if the quashing of the decision by the Prisoners Review Board to cancel his parole has the effect that the cancellation should be treated as never having occurred, then Mr Tulloh should be treated for the purpose of determining the expiry of his prison term simply as a prisoner whose parole had been suspended. It is thus necessary first to determine the outcome in this case if Mr Tulloh's status, as at December 2012 when his sentence with remission would have expired, was as a prisoner whose parole was merely suspended.
18 Section 69(1) of the Sentence Administration Act 1995 requires that where parole of a prisoner serving a fixed term is suspended, he is to be released in accordance with s 95 of the Sentencing Act 1995.
19 Section 95 specifically refers to prisoners serving non-parole terms3 and prisoners serving a parole term who have not been released on parole before serving two-thirds of the term.4 In its terms, therefore, it does not directly deal with prisoners who have been released on parole, but whose parole has been suspended, nor I interpolate, does it deal with prisoners who have been released on a work release order but whose work release order has been cancelled.
20 So that raises the question of what it means in s 69 to consider a prisoner's release 'in accordance with section 95 of the Sentencing Act 1995'. It was suggested by counsel for the applicant that the proper reading of s 95, for the purpose of dealing with the matter as directed by s 69, is that Mr Tulloh should be considered to come within s 95(2), that is to treat him as a prisoner serving a parole term who has not been released on parole before he has served two-thirds of the term.
21 There is an alternate way that the provisions might be construed, and which I prefer, and that is that the effect of s 69 and s 71(2), which require prisoners to be released in accordance with s 95 of the Sentencing Act 1995, is that they are to be released on the same basis, and having regard to the same statutory provisions, as are prisoners who are described in either s (1) or (2) of that section.
22 In other words, the substance of the requirement that a prisoner be dealt with in accordance with s 95 is that they are to be released, when they have served two-thirds of the term in the same manner that prisoners who are serving a non-parole term, or prisoners who were on a parole term but had not been released, were treated under the previous statutory provisions. On that basis, I consider that in order to give meaning and effect to s 69(1), which requires release in accordance with s 95 of the Sentencing Act 1995, it is necessary to conclude that if a prisoner is a prisoner whose parole has merely been suspended, then he or she is entitled to be released when he or she has served two-thirds of their term.
The effect of the order quashing cancellation of parole
23 That construction of s 69 of the Sentence Administration Act 1995 raises the central question for the present case, being what is the effect of quashing of the cancellation decision. The issue essentially is whether the quashing of the decision on judicial review acts retrospectively so that all of the legal consequences of the decision are of no effect, or whether, so long as the decision stood and had not been set aside, it had some legal effect, notwithstanding its later quashing.
24 This question was addressed by the High Court in Minister for Immigration and Multicultural Affairs v Bhardwaj.5 At [51] of that decision, Gaudron and Gummow JJ dealt with this question and said:
There is, in our view, no reason in principle while the general law should treat administrative decisions involving jurisdictional error as binding or having legal effect unless and until set aside. A decision that involves jurisdictional error is a decision that lacks legal foundation and is properly regarded, in law, as no decision at all. Further, there is a certain illogicality in the notion that, although a decision involves jurisdictional error, the law requires that until the decision is set aside, the rights of the individual to whom the decision relates are or, perhaps, are deemed to be other than as recognised by the law that will be applied if and when the decision is challenged. (footnotes omitted)
25 McHugh J at [63] essentially agreed with Gaudron and Gummow JJ on that point. Kirby J preferred what is known as the relative theory of invalidity, as against the absolute theory of invalidity, but in doing so made reference, at [103], to the decision of Aickin J in Forbes v New South Wales Trotting Club Limited,6 in which it was said:
Such an act is valid and operative unless and until duly challenged, but upon such challenge being upheld it is void, not merely from the time of a decision to that effect by a court, but from its inception. Thus, though it is merely voidable, when it is declared to be contrary to natural justice the consequence is that it is deemed to have been void ab initio.
26 The topic was also addressed by Hayne J at [152], where his Honour said:
When there has been a failure of the due process of law at the making of an order, to describe it as void is not unnatural. But what has been said will show that, except when upon its face an order is bad or unlawful, it is only as a result of the construction placed upon a statute that the order can be considered so entirely and absolutely devoid of legal effect for every purpose as to be described accurately as a nullity.
27 He went on to say:
Nothing in the Act requires (or permits) the conclusion that despite the jurisdictional error, some relevant legal consequences should be attributed to the September decision. In particular, the fact that the Federal Court had only limited jurisdiction to review the decision does not lead to the conclusion that the September decision is to be treated as having some effect. Once it is recognised that a court could set it aside for jurisdictional error, the decision can be seen to have no relevant legal consequences.
28 As counsel for the first respondent observed, whilst there is some disparity in the language used by various members of the High Court, the test to be applied is probably most easily extracted from the passage at [46] of the decision in the judgment of Gaudron and Gummow JJ, where their Honours said:
In our view, it is neither necessary nor helpful to describe erroneous administrative decisions as 'void', 'voidable', 'invalid', 'vitiated' or, even, 'nullities'. To categorise a decision in that way tends to ignore the fact that the real issue is whether the rights and liabilities of the individual to whom the decision relates are as specified in that decision. And, perhaps more importantly, it overlooks the fact that an administrative decision has only such force and effect as is given to it by the law pursuant to which it was made.
29 What can be extracted from Bhardwaj, regardless of whether or not one applies the absolute or the relative theory of invalidity, is that the quashed decision ought to be taken to have no legal effect from its inception, subject perhaps to the need to consider the context and the legislation under which the decision was made.
30 In the first respondent's outline of submissions, that general legal background is generally acknowledged and fairly exposed or explained, but the submissions conclude with the following propositions. The first proposition is that:
In the present case prior to the order quashing the cancellation of the parole order, the effect of the cancellation of the parole order was that the Plaintiff was liable to serve the remainder of the term.
31 Reference is made to my decision in Tulloh v Prisoners Review Board.7 That proposition can be accepted as correct. The submissions then continue:
When the Plaintiff's parole period came to an end, the judicial review to quash the cancellation of its parole order had not been commenced. The Plaintiff was, therefore, under s 71(1) of the Sentence Administration Act 1995, not entitled to be released until he has served the whole of his term. This, of course, is subject to the ability to obtain another early release order: s 71(6) of the Sentence Administration Act 1995.
32 Again, that submission can be accepted as correct. It continues:
When the Plaintiff's parole period came to an end, his status then was not a prisoner whose parole order had been suspended: he was a prisoner whose parole order had been cancelled.
33 The order quashing the cancellation was not made until some very long time - something like 18 months - after the parole term had come to an end, and the 10 year sentence with remission would otherwise have come to an end. The submission that, at that point in time, Mr Tulloh was a prisoner whose parole order had been cancelled, is correct. The submission then continues:
The orders made on 4 July 2014 did not alter this position. The orders made quashing the cancellation of parole remitted the matter to be reconsidered by the Prisoners Review Board. That reconsideration has not yet occurred.
34 That submission is correct insofar as it recites the orders which were made following the successful judicial review proceedings by Mr Tulloh. However, I do not accept the first sentence of that paragraph which is to the effect that the orders made on 4 July 2014 did not alter the position. I do not accept it for the reasons demonstrated in the passages from Bhardwaj to which I have made reference including, I might say, the passage from Kirby J's decision relying on the relative theory of invalidity rather than the absolute theory preferred by the other members of the court.
35 Clearly, the absolute theory was supported by the majority in that case and is, therefore, the theory upon which I am obliged to proceed. But whichever theory is applied, in my view, the position is clear that the effect of the decision to quash the cancellation was that the decision was ridded of any legal effect from the time it was made.
36 On the face of the records as they stood at the end of 2012, it was a fact that Mr Tulloh's parole had been cancelled, but it would be, in my view, inconsistent with the objectives of the Sentence Administration Act 1995 and the Sentencing Act 1995 as they applied to Mr Tulloh to conclude that, because the quashing of the decision post-dated the expiry of his suspension, the legal effect of the cancellation decision should remain applicable as at today or, indeed, at any time since that decision was quashed.
37 Some confusion may have arisen, and it is implicit in the submissions by the first respondent, that there is some significance in the fact that, when that the cancellation of parole was quashed, the matter was remitted back to the Prisoners Review Board for further consideration. That was an order made without the benefit of submissions by any party as to alternative orders that should be made or as to the effect of the suspension, which was still effective at the time that the invalid decision to cancel parole was made, on Mr Tulloh's entitlement to be released at the end of his term.
38 In retrospect, that may be regrettable. However, the fact that the matter was referred back to the Prisoners Review Board cannot be taken as an indication of any conclusion as to Mr Tulloh's status, at the time that his sentence would, but for the cancellation, have ended.
39 It was submitted by counsel for the first respondent that the question before me is as to whether or not as of today Mr Tulloh's detention is unlawful and it is neither necessary nor desirable that I determine when, given the history of this matter, Mr Tulloh ought to have been released.
40 I accept that it is not necessary for me to express any view or make any findings as to when that unlawful detention first occurred. It is sufficient, for the reasons which I have outlined, to conclude as I do that Mr Tulloh's continuing detention is unlawful and there should be an order pursuant to O 57 r 4 of the Rules of the Supreme Court 1971 (WA) that Mr Tulloh should be released from custody forthwith.
1King v Alan Piper, Director General, Department of Justice WA [2004] WASCA 218.
2King v Alan Piper, Director General, Department of Justice WA [2004] WASCA 218 [26].
3Sentencing Act 1995 (as at 30 August 2003) s 95(1).
4Sentencing Act 1995 (as at 30 August 2003) s 95(2).
5Minister for Immigration and Multicultural Affairs v Bhardwaj [2002] HCA 11; (2002) 209 CLR 597.
6Forbes v New South Wales Trotting Club Limited [1979] HCA 27; (1979) 143 CLR 242.
7Tulloh v Prisoners Review Board [2014] WASC 239 [18] - [25].
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