Plaintiff v Defendant

3 On 23 March 2015 the Board again released Mr Marrogi on parole, such parole to commence on 15 April 2015, subject to a number of specific terms and conditions. On 7 May 2015 the Board cancelled Mr Marrogi's parole and issued a warrant for his arrest. He was detained the following day and has been in prison since, in the legal custody of the Secretary to the Department of Justice ('the Secretary').

4 By a summons filed on 3 June 2015 Mr Marrogi sought a writ of habeas corpus against the Secretary alleging that his incarceration is illegal in that the order of the Board cancelling his parole on 7 May 2015 was invalid. He claims an entitlement to immediate release.

5 The plaintiff's habeas corpus application came before Emerton J in the Practice Court on 17 June 2015, but it could not proceed that day because of the late filing of material by the defendant. However, at the request of the plaintiff's counsel and with the acquiescence of the defendant, her Honour proceeded to hear a threshold issue which, if decided in favour of the plaintiff, would or might have effectively determined the application without the need for further argument. The question raised by the threshold argument was whether Condition 19 of the plaintiff's parole conditions, which prohibited him for having any contact with members of Outlaw Motorcycle Clubs, was void for uncertainty. His argument was that the term OMCG ('Outlaw Motor Cycle Gang') was meaningless, so that Condition 19 was incapable of being complied with. Her Honour found against the plaintiff and published her reasons for doing so.[1]

The Board: Its Powers, Functions and Obligations on Cancelling Parole

6 The Board, in its present form, was established by s 61(1) of the Corrections Act 1986 ('the Act'). Its members are judges, retired judges and other persons appointed by the Governor-in-Council. The Secretary, the defendant to this application, is an ex officio member of the Board.[2] Staff of the Board are provided by the Secretary and are subject to the directions of the Board, whose functions and duties are prescribed, in some detail, by the Act which also contains the following provisions of some relevance to the issues in this case:

• If a prisoner is released on parole the Board may, at any time before the end of the parole period, cancel the parole.[3]

• As soon as possible after determining to cancel a parole order the Board must give a copy of the determination to the prisoner including the reasons for it.[4]

• If the Board has cancelled a prisoner's parole it may, at any time, revoke the cancellation.[5]

• In exercising its functions the Board is not bound by the rules of natural justice.[6]

• In determining whether to cancel a prisoner's parole the Board must give paramount consideration to the safety and protection of the community.[7]

• Persons on parole are deemed to be still under sentence of imprisonment.[8]

• The Secretary must provide employees of the Department of Justice and such other assistance to the Board as is necessary to assist it in supervising persons released on parole and performing any other of its functions.[9]

7 The rules of natural justice are usually described as being the right to be given a fair hearing, the opportunity to present one's case, and the right to have a decision made by an unbiased or disinterested decision-maker. Sometimes the right to have that decision based on logically probative evidence is included as a rule of natural justice.[10] Such rules are also referred to collectively as the right to procedural fairness. They have been described as 'fairness writ large and juridically' and 'fair play in action'.[11] Whilst the cases make it clear that the content of procedural fairness varies depending upon the process being examined, by virtue of s 69(2) of the Act there is no obligation on the Board to afford procedural fairness to parolees who might be adversely affected by its decisions. Equally, of course, there is no reason why it should not act fairly and transparently. It is more likely that the objects of parole, which include rehabilitation of the offender, will be advanced if it does.

8 Although the power to cancel parole conferred on the Board by s 77(1) is unrestricted by considerations of natural justice, or procedural fairness, as Weinberg JA pointed out in Mercorella v The Secretary of the Department of Justice[12] the Board does not, by virtue of s 77(1) or otherwise, have an unfettered right to cancel parole at its whim. That s 74(8) of the Act requires the Board to inform the parolee of its reasons for cancelling his parole presupposes the existence of reasons. That such reasons be rational and, when stated in writing, be able to be fully understood by the person whose parole has been cancelled is clearly envisaged by that provision.

9 Cancellation of parole is a serious matter. It brings to an abrupt end a process designed to enable a prisoner to adjust to freedom from incarceration, thereby assisting his re-integration into the community as a law-abiding citizen. It is not solely a benefit for the prisoner. That a prisoner upon release on parole is supervised by a Community Corrections Officer for the remainder of his sentence is a benefit for the community as a whole.[13]

10 The writ of habeas corpus is a prerogative process for securing the liberty of the subject by affording an effective means of immediate release from unlawful or unjustifiable detention, whether in prison or otherwise. In cancelling the plaintiff's parole habeas corpus would lie if such cancellation was not legally justified: Mercorella v The Secretary of the Department of Justice.[14]

11 The legality of the Board's decision in this case to cancel the plaintiff's parole must be determined strictly by reference to the Act and giving full effect to the requirements imposed on the Board by s 73A of the Act - that it must apply, as its paramount consideration when determining whether to cancel the parole of a parolee, the safety and protection of the community. In applying that consideration, however, it must not ignore the general principle that a penal provision such as that permitting the cancellation of parole must be construed strictly, as it affects the liberty of the subject - convicted criminal though he may be.

12 It would appear from the uncontested affidavit of the plaintiff's solicitor, Sarah Tricarico, of 2 June 2015[15] that the only document supplied directly to the plaintiff after his parole was cancelled informing him of the Board's decision was a document dated 15 May 2015[16] (by which time he had been in prison for 8 days!) in the following form:

ADULT PAROLE BOARD MEETING: 07 MAY 2015

.....................

Having considered your case the Parole Board has made the following decisions:

PAROLE CANCELLED

BREACH REPORT NOTED

The advice was signed by the secretary to the Board.

13 No copy of the 'BREACH REPORT' referred to, which may have shed some light on the reasons for the Board's decision, was enclosed. If this notice was given to the plaintiff in purported compliance with s 74(8) of the Act, as seems to have been the case, it is completely inadequate. It is totally uninformative as to the reasons for cancellation of the plaintiff's parole and, assuming it was delivered to the plaintiff at the Metropolitan Assessment Prison some time on or after the date it bears, it was not given '[a]s soon as possible ...' as s 74(8) of the Act requires. However, in this instance, regrettable as the Board's failure to comply with its statutory obligation might be, that failure does not affect the outcome of the plaintiff's application.

14 It is necessary to look elsewhere to determine why the Board cancelled the plaintiff's parole. Its own record, exhibited to the affidavit of Stuart Ward sworn 16 June 2015[17] is barely more informative than the reasons it provided to the plaintiff. That record is as follows:

Board decisions

Parole Cancelled Warrant to Issue.

(Conditions and unacceptable risk)

The document containing the Board's decision also contained this notation:

Cancellation Reasons for Board Decision Recording Sheet

1. Benefit to the community of the offender remaining on parole outweigh the risk

Condition 19 - Member of OMCG, shows calls to Acaia [sic] unit at Barwon prison

• Unacceptable risk - intel report, calls indicate offender is undertaking debt collecting on behalf of high profile member of rival [sic] motor cycle club.

Why did the Board cancel the Plaintiff's Parole?

15 To determine why the Board cancelled the plaintiff's parole, it is necessary to examine the very short course of the plaintiff's parole from its commencement on 15 April 2015 to its cancellation on 7 May 2015.

16 The order of the Board of 23 March 2015 released the plaintiff as from 15 April 2015. It contained a number of terms and conditions inserted pursuant to s 74 of the Act. One such condition was as follows:

1. You must not contact, directly or indirectly, the victims. That you do not directly or indirectly, communicate or associate with any Outlaw Motorcycle [sic] Clubs member or attend any Outlaw Motorcycle Clubhouse.

17 The plaintiff's parole was supervised by a Senior Parole Officer, Ms Kelly Bray. Among her duties in that role Ms Bray monitored the plaintiff's activities, reported upon them to the Board and made recommendations as to his progress as a parolee. After writing reports dated 15 and 16 April 2014 concerning the plaintiff's induction into parole and a meeting she had with him on 17 April 2015, Ms Bray read a report from the Intelligence Unit of Corrections Victoria which informed her that the plaintiff had accepted telephone calls from a prisoner, Mohammed Oueida. Mr Oueida was said to have been recorded in law enforcement agency records, available to the Board, as a member of the Comancheros OMCG. On the same day Ms Bray submitted a report to the Board noting the intelligence report and stating:

This Service is concerned regarding the Information contained in the aforementioned Intel Report and with Mr Marrogi's immediate disregard for the non-association condition. As such, this Service has concerns surrounding Mr Marrogi's reported associates and the impact this has on mitigating his risks in the community.

She recommended that the plaintiff be called before the Board to be warned that he was risking his parole. It appears that the Board took no action on this recommendation.

18 Subsequently, on 23 and 29 April, Ms Bray had conversations with the plaintiff in each of which there was discussion concerning Condition 19 of his parole order. In reports to those meetings Ms Bray noted that the plaintiff denied having contact with any OMCG members. However, there is nothing in those reports to suggest that she ever told him that Mr Oueida was, in fact, an OMCG member or that he was a 'prospect' (a prospective or nominated applicant for membership of an OMCG),[18] or that law enforcement agencies or the Board regarded him as a member.

19 On 1 May 2015 Ms Bray read a further five intelligence reports from Corrections Victoria's Intelligence Unit regarding the plaintiff. These reports concerned telephone conversations, all but one of which appears to have been between the plaintiff and Mr Oueida. The calls occurred on 15, 17, 21, 22 and 28 April. After reading those reports, on the same day, Ms Bray submitted a report to the Board which contained the following:

Reason for Recommendation

Mr Marrogi is classified as a Serious Violent Offender with reported and known links to outlaw Motorcycle Clubs. This Service is concerned regarding further Information contained in the afore mentioned [sic] Intelligence Reports and with Mr Marrogi's Immediate [sic] and continued disregard for the non-association condition. As such, this Service has concerns surrounding Mr Marrogi's reported associates and the Impact [sic] this has on mitigating his risks in the community. Consequently, it is respectfully recommended that he appear in person before the Board and that the seriousness of his non association condition be re-iterated to be [sic] by the Board and that he receive a warning.

20 The report also referred to discussions Ms Bray had had with the plaintiff in which he confirmed that he was having contact with prisoners but denied that these people were OMCG members - a similar statement to that which he is reported to have made in most, if not all, of his meetings with her. Again, there is no report that she corrected the plaintiff's expressed belief that Mr Oueida was not an OMCG member.

21 On 5 May 2015 the Board resolved to require the plaintiff to attend a meeting with it in person on 12 May 2015 with his parole officer. This meeting was noted in its records as being:

To discuss communication with OMCG Members in breach of condition 19 (likely outcome is a Board warning however cancellation may be an alternative result).

22 However, before this meeting could take place, on 7 May 2015, Ms Bray submitted a further report to the Board[19] recommending that the plaintiff's parole be cancelled. This report contained the following passages:

Reason for Report

Escalation of risk

Other - Mr Marrogi continues to have contact with a known outlaw motorcycle club, through telephone calls from the prison.

.....................

No victim contact/Non association

Mr Marrogi continues to have contact with a prisoner in custody. To date there have been eight incidents recorded whereby there is evidence of Mr Marrogi engaging with persons known to be affiliated with outlaw motorcycle gangs.

The Board however is referred to the two most recent reports recorded on Corrections Victoria Intelligence Reports dated 05.05.2015.

....................

Reasons for Recommendation

This Service continues to have concerns regarding further information contained in afore mentioned Intelligence Report and with Mr Marrogi's continued disregard for the no contact condition. When reviewing the content of the reports of his conversations with prisoners there appears to be an escalation in his involvement and behaviours and now it appears that he is collecting money and property in the community on behalf of a prisoner in custody.

Mr Maroggi presents with a high risk of general and violent offending and despite his compliance with reporting and other conditions for his parole he appears to be engaging in high-risk behaviours, which at this time cannot be mitigated in the community at this time.

It is noted that the Adult Parole Board were scheduled to interview Mr Marrogi on 12.05.2015, however in light of this new information it is respectfully recommended that his Parole be cancelled and that he be returned to custody.

23 The reference in the second of the two excerpts quoted above from Ms Bray's report of 7 May 2015 is said to concern intelligence reports each dated 5 May 2015. However, having regard to their serial numbers and their contents as described in the report it is clear she was, in fact, referring to intelligence reports dated 6 May 2015.

24 The first of these reports, which purportedly contained the substance of a phone call between the plaintiff and Mr Oueida at 12:47 pm on 5 May 2015 contained a reference to someone called 'Apo'. Mr Oueida is reported as asking the plaintiff:

how is Apo - I heard he was up in a tree eating peanuts.

Apo is shitting himself, Apo is para [paranoid]. I passed the message on about the cars.

In an apparent further reference to 'Apo', Mr Oueida then said:

you know what I hope. I hope he goes to the Maldives ... what do you reckon, is he going to the Maldives soon or not?

Mr Oueida then offered the opinion 'he must have pissed someone off', to which the plaintiff replied 'I heard that Bahbouh is behind it, he is paying for his ticket'. Mr Oueida's final response is:

well he deserves it, Bahbouh is generous and Apo deserves it.

The unidentified author of the intelligence report included the following comments at the end of the reported conversation:

Comments:

It would appear that:

Marrogi is attempting to handle some of Oueida's affairs including getting money and vehicles back that are owed to Ouedia.

Maldives could be code for being assaulted or killed ie unknown person Bahbouh paying for hit on unknown person Abo [sic].

25 The second of the two reports concerned a phone call between Mr Oueida, the plaintiff and someone named Kazem Hamad at 11:42 am on 6 May 2015. It referred to 'general discussions' and then to the plaintiff, again referring to 'Apo' to which Mr Oueida responds by saying that he is 'in the tree' - another Delphic utterance with which the plaintiff voiced agreement. The comment on this report was as follows:

It would appear that Marrogi and Hamad are assisting Oueida with obtaining money/goods owed to him.

26 It would seem that the context of these two conversations prompted Ms Bray's change of opinion concerning the plaintiff from recommending that he be called before the Board and warned about endangering his parole to recommending that his parole be cancelled; a recommendation accepted by the Board on the same day it was made.

27 It is clear from the report to the Board of 7 May 2015, written by the plaintiff's parole officer and canvassed at length above, that, initially at least, Ms Bray considered the plaintiff had been in breach of part of Condition 19 attached to his parole - that he not communicate or associate with any OMCG members. It is curious (and perhaps unfortunate) that she appears never to have told the plaintiff that she, and by inference, the Board, considered Mr Oueida, and perhaps others, to have been OMCG members, although she continued to record his denials of any inappropriate association in her reports.

28 Counsel for the plaintiff argued that the Board had fallen into jurisdictional error by cancelling the plaintiff's parole as it did and sought to rely on Yoxon v The Secretary to the Department of Justice ('Yoxon').[20] But Yoxon was a case on totally different facts and concerning different provisions of the Act. Yoxon was successful in his application because, in his case, the Board had cancelled his parole on the ground that he had breached a condition of his parole when it was clear that it had not found that that was the case.

29 He also submitted that there was insufficient evidence to sustain a finding by the Board that the plaintiff had breached a condition of his parole or that he ever was an 'unacceptable risk'. He contended that there was no 'strong, clear and cogent evidence' to discharge the Board's obligation of justifying his continued incarceration consequent upon the cancellation of his parole. Thus habeas corpus should be granted to enable the plaintiff's immediate release.

30 Read in its context as a condition imposed on a parolee, to be in breach of Condition 19 the plaintiff would have had to have knowingly communicated or associated with an OMCG member. It could not be a breach of Condition 19 for the parolee to have contact with OMCG members unless he knew of such membership. Nor would it be a breach of Condition 19 for the plaintiff himself to be a member of an OMCG, provided he did not associate or communicate with any other member. His parole officer seemed to be of the same opinion. In her Induction Notes written following her first encounter with the plaintiff upon his release, she noted that he was an active members of the 'Mongols', a recognised OMCG.

31 With respect to Mr Oueida, there is little evidence as to his status as an OMCG member. The affidavit of Craig Douglas Howard sworn 16 June 2015[21] filed on behalf of the Secretary, describes him as a 'prospect' of the Comancheros OMCG and appears to suggest that, despite the ordinary meaning of the word 'prospect' he was a full member. Counsel for the plaintiff argued that a 'prospect' was not a member and accordingly the plaintiff's communication with him was not in breach of Condition 19. It is not necessary to resolve this incongruity in the Board's case. As I have concluded that the Board was legally entitled to cancel the plaintiff's parole for reasons other than a breach by him of Condition 19 of his parole conditions, it is not necessary to determine whether such a breach occurred so as to enable it, alone, to be a legitimate 'reason' for such cancellation.

32 Although the Board did not spell out the reasons for having cancelled the plaintiff's parole in its notification to him of its decision, its 'Cancellation Reasons' as recorded in the 'Board Decision Recording Sheet' noted not only 'Conditions' as a reason for cancellation, with an oblique reference to Condition 19, but also referred to 'unacceptable risk' with a reference to the second of the two phone calls described in [24] and [25] above.

33 Those calls had been reported upon by an intelligence officer as possibly implicating the plaintiff and another man in assisting the prisoner Mr Oueida to collect money or goods owing to him. This conclusion, obviously accepted by the plaintiff's parole officer, and then by the Board, constituted a reason for cancelling his parole. It is not irrational to regard the collection of debts by a former criminal on parole for a criminal who was serving a prison sentence, in the circumstances, as creating a risk of harm to a member or members of the public. The Board was entitled to act on the material provided by the parole officer together with her opinion and recommendation. It is enough that a reason or reasons existed to cancel the plaintiff's parole to justify, legally, the Board's decision.

34 The Board acted within the law in cancelling the plaintiff's parole as it did. Accordingly, there was no basis for the issue of a writ of habeas corpus in favour of the plaintiff in this case.

[1] Marrogi v The Secretary of the Department of Justice [2015] VSC 300.

[2] Corrections Act 1986, s 61(2)(f).

[3] Ibid s 77(1).

[4] Ibid s 74(8).

[6] Ibid s 69(2).

[8] Ibid s 76.

[9] Ibid s 70(1)(a) and (b).

[10] Minister for Immigration and Multicultural Affairs v Rajamanikkam [2002] HCA 32; (2002) 210 CLR 222, 232-3 [25]-[26] (Gleeson CJ).

[11] Furnell v Whangarei High Schools Board [1973] AC 5 (Lord Morris of Borth-y-Gest).

[12] [2015] VSC 18.

[13] Bugmy v The Queen [1990] HCA 18; (1990) 169 CLR 525, 531; R v Morgan (1980) 7 A Crim R 146.

[14] [2015] VSC 18 (Weinberg JA) and the cases there cited.

[16] Subsequently, further information was supplied to the plaintiff's solicitors but not until 19 May 2015.

[18] Affidavit of Craig Douglas Howard of 16 June 2015, paragraphs [7], [23] and [25].

[19] In her affidavit in this case Ms Bray mistakenly exhibited a draft of her report of 7 May 2015 instead of the final version which went to the Board. This error was sought to be rectified, in Ms Bray's absence, by an affidavit sworn by her supervisor Ms Tanya Zita. Unfortunately, in her affidavit, Ms Zita attributed the error in the exhibit to Ms Bray's report to a printer which had 'somehow cut short' the correct version. This statement was blatantly wrong. The situation was only properly rectified when two subsequent affidavits sworn by Mr Stuart Ward, the Chief Administrative Officer and Secretary of the Board and Ms Debra Coombs the Principal Solicitor each sworn on 20 July 2015 were filed. Ms Coombs' affidavit made it apparent that the correct document had, in fact, been exhibited to Mr Ward's earlier affidavit.

[20] [2015] VSC 124.