Plaintiff v First Defendant

Supreme Court of Victoria|2008-06-04|Before: Kyrou J

Judicial review - Order 56, Supreme Court (General Civil Procedure) Rules 2005 (Vic) - decision of Adult Parole Board cancelling parole order on ground of non-compliance with conditions of parole - alleged failure to take into account relevant considerations - functions of Board under Division 5 of Part 8, Corrections Act 1986 (Vic) - powers of Court in reviewing decisions of Board.

2 For the reasons set out in this judgment, I have decided to dismiss the application as no legal basis has been established for the grant of relief.

3 In December 2001, Mr Chimirri was convicted of kidnapping and was sentenced to a term of imprisonment. On 25 June 2003, the Board granted parole which commenced on 13 July 2003 and was to expire on 10 July 2008. The Board cancelled parole on 21 November 2007 because Mr Chimirri was remanded in custody to face aggravated burglary and other charges in the County Court.

4 By letter dated 10 December 2007, Mr Chimirri's solicitor requested that the Board sit as a matter of urgency to consider granting parole to Mr Chimirri. The letter stated that Mr Chimirri would be granted bail by the County Court and that he had elected to attend an in-house rehabilitation clinic while on bail. The letter stated that it was anticipated that Mr Chimirri would attend the clinic for four weeks commencing within 48 hours of his release on bail and thereafter attend as an outpatient. The letter did not state that the clinic provided its services for a fee or that Mr Chimirri did not have access to funding beyond two weeks.

5 On 12 December 2007, the Board made a parole order granting parole to Mr Chimirri from 9 January 2008 to 9 July 2008 subject to certain conditions. For the purposes of this judgment, the relevant condition was as follows: "That you reside [at] The Raymond Hader Clinic until otherwise determined by the Centre Manager" ("residence condition"). Before me, the parties agreed that the reference to the "Centre Manager" was a reference to the Centre Manager of the Community Corrections Centre to which Mr Chimirri was required to report so that his compliance with the conditions of the parole order could be supervised. On 9 January 2008, Mr Chimirri signed a declaration that he had been given an explanation of the conditions of his parole and that he undertook to comply with them.

6 On 20 December 2007, Mr Chimirri entered into an undertaking of bail in relation to the County Court charges, which were due to be heard on 26 February 2008. One of the conditions of that undertaking was that, on the next working day after his release on bail, Mr Chimirri attend at The Raymond Hader Clinic and then reside at the clinic for not less than two weeks. By letter of the same date, Mr Chimirri's solicitor provided the Board with a copy of the undertaking.

7 On 9 January 2008, Mr Chimirri was released on parole pursuant to the 12 December 2007 parole order. The following day, he commenced residence at the clinic.

8 On 23 January 2008, Mr Chimirri left the clinic without obtaining approval from the Centre Manager. It appears from the material before me that Mr Chimirri left the clinic because he was no longer able to pay the clinic's fees, and that he had previously informed the Community Corrections Centre that he would not be able to stay at the clinic beyond two weeks and that he would be seeking a variation of his parole. However, there was no evidence of any application to the Board for a variation of Mr Chimirri's parole. On 23 January 2008, the Board cancelled Mr Chimirri's parole order on the basis that he was unable to comply with the conditions of parole. Mr Chimirri was taken into custody and has been in custody since that date.

9 On 13 March 2008, Mr Chimirri was convicted of, among other offences, aggravated burglary in the County Court and was sentenced to a term of imprisonment. Taking into account pre-sentence detention, Mr Chimirri became eligible for parole on 23 February 2008.

10 By letter dated 23 January 2008, Mr Chimirri's solicitor wrote to the Board requesting that it consider a grant of parole as a matter of urgency. On 31 March 2008, the Board considered Mr Chimirri's position. It noted the new sentence by the County Court and determined to see Mr Chimirri in custody in mid-2008 with a progress report.

11 Mr Marshall, who appeared for Mr Chimirri, conceded that the events following the Board's decision of 23 January 2008 have overtaken much of what Mr Chimirri would otherwise have relied upon in seeking relief from this Court. He informed me that, by the time of the hearing of this proceeding, the substance of Mr Chimirri's concern was that the Board's decision that he had breached the residence condition and thereby breached the parole order could adversely affect his prospects of obtaining parole in the future.

Relevant statutory provisions and role of Board

12 The Board is established under Division 5 of Part 8 of the Corrections Act 1986 (Vic). Under that Act, its members include, among others, one or more judges of the Supreme Court, one or more judges of the County Court, one or more Magistrates, and the Secretary to the Department of Justice.[1]

13 The Board has wide powers and functions.[2] They include the power to order that a prisoner serving a prison sentence in respect of which a non-parole period was fixed be released on parole at a stated time, not being before the end of the non-parole period.[3] They also include the power to revoke or cancel a parole order, to impose terms and conditions of a parole order, to vary those terms and conditions and to cancel a prisoner's parole at any time.[4]

14 In exercising its functions, the Board is not bound by the rules of natural justice.[5] Nor is the Board generally required by the Corrections Act to give reasons for its decisions. However, if the Board makes a determination revoking or cancelling a parole order, the Board must give a copy of the determination to the prisoner including the reasons for the determination.[6]

15 The Board may again release a prisoner on parole even though the prisoner's parole has been cancelled on previous occasions in respect of the same prison sentence.[7]

16 In determining whether to make, vary or cancel a parole order, the Board may arrange for the examination of a prisoner by a medical practitioner, psychiatrist or psychologist and may require that person to provide a written report to the Board.[8]

17 A prisoner released on parole must, during the parole period, comply with the terms and conditions of the parole order.[9]

18 Mr Chimirri originally sought a declaration that the residence condition was manifestly unreasonable, an order quashing the parole order of 12 December 2007 and an order prohibiting the Board from subjecting Mr Chimirri to the residence condition. The originating motion was subsequently amended to instead seek a declaration that the residence condition was ultra vires (that is, beyond power), a declaration that Mr Chimirri had not breached his parole and an order that the Board determine the application for parole according to law. In the course of argument before me, Mr Marshall abandoned the request for a declaration that the residence condition was beyond power. He informed me that Mr Chimirri was no longer challenging the validity of the parole order itself or of the residence condition. Ultimately, the only relief sought was a declaration that Mr Chimirri had not breached either a condition of the 12 December 2007 parole order or the parole order itself.

19 The amended originating motion relied on a number of grounds for review. In the course of argument, Mr Marshall abandoned all of those grounds and reformulated a sole surviving ground. He described this variously as "the failure of the Board to act as ... they would be obliged to act to ensure that they enable a decision that they make ... was ... properly audited by the ... Centre Manager [and] they've therefore ensured that [Mr Chimirri] must breach [the residence] condition", "the failure of the Centre Manager ... and through the Centre Manager the Parole Board who has the effective control ... to properly allow the condition itself to work", "a failure ... by the Board to act in accordance with its own decision", and a failure to take into account relevant material. In relation to relevant material, it appears that Mr Chimirri's complaint was that, following the Board's decision of 12 December 2007 to grant parole contingent on Mr Chimirri residing at the clinic, the Centre Manager (and through the Centre Manager, the Board) failed to take into account Mr Chimirri's changed circumstances (namely, his inability to continue residing at the clinic because he could not afford its fees) in deciding whether to grant approval for him to cease residing at the clinic and thus avoid a breach of the residence condition.

20 Mr Marshall referred to s 73 of the Corrections Act, which relevantly provides that, in relation to a parole order, community corrections officers are subject to the directions of the Board. In reliance on this, he submitted that the Centre Manager's failure could effectively be attributed to the Board, because the Board could have directed the Centre Manager to take certain action (presumably, to determine that Mr Chimirri no longer needed to reside at the clinic) and did not give such a direction.

21 In support of the proposition that the Board was required to take into account relevant material, Mr Marshall relied on the following well known passage in Craig v South Australia:[10]

If ... an administrative tribunal falls into an error of law which causes it to identify a wrong issue, to ask itself a wrong question, to ignore relevant material, to rely on irrelevant material or, at least in some circumstances, to make an erroneous finding or to reach a mistaken conclusion, and the tribunal's exercise or purported exercise of power is thereby affected, it exceeds its authority or powers. Such an error of law is jurisdictional error which will invalidate any order or decision of the tribunal which reflects it.

22 In response, Mr Hanks, who appeared with Mr Mitchell for the Board, referred to Sean Investments Pty Ltd v MacKellar[11] and Minister for Aboriginal Affairs v Peko-Wallsend Ltd[12] in submitting that the relevant considerations that the Board was bound to take into account were those considerations that it was required by statute (here, the Corrections Act), either expressly or by implication, to take into account. He submitted that, as Mr Chimirri had not been able to identify any considerations that the Board was required by statute to take into account or to provide evidence of how the Board had failed to take those considerations into account, it is not the role of the Court to engage in a review of the Board's decision to cancel the parole order. Mr Hanks also referred to the following comments of Doyle CJ in Kola v Parole Board of South Australia[13] in relation to the limited powers of a court in an application for judicial review:

In these proceedings the Court cannot, as it would on appeal, review the decision of the Board on matters of fact, and substitute the decision that it would have made if it found that the Board has erred on the facts.

The power of the Court in these proceedings is limited to setting aside a decision by the Board that is invalid because of an error of law, or because the decision was made without according Mr Kola procedural fairness. For present purposes an error of law will include a decision that could not properly be made, having regard to the scope of the powers or functions being performed by the Board.

23 Although Mr Hanks conceded that some acts of the Centre Manager can be attributed to the Board, he submitted that not all acts can be attributed and that, in any event, the Board itself had decided that Mr Chimirri had breached the residence condition. He submitted that the Board had power to make that decision and the consequential decision to cancel the parole order, that there was material before the Board entitling it to do so, and that it is not within the jurisdiction of the Court to decide whether the Board was correct in doing so.

24 I agree with Mr Hanks' submissions on the role of the Court in a judicial review application such as this. I also respectfully concur with the comments made by Doyle CJ in Kola about the limited scope of a court's power in such an application.

25 The Board clearly had the power to determine that Mr Chimirri had failed to comply with the conditions of the parole order and to cancel the parole order.

26 It was unclear what grounds of judicial review were relied upon by Mr Chimirri. Insofar as the ground relied upon was a failure to take into account relevant considerations, it is well established by authorities such as MacKellar and Peko-Wallsend that that ground can only be made out if the decision-maker fails to take into account a consideration which the decision-maker is bound to take into account in making the decision in question, and that determining what considerations the decision-maker is bound to take into account is a matter of construing the relevant statute. Relevant considerations cannot be "at large".

27 Mr Marshall did not, by reference to any statutory provisions either in the Corrections Act or elsewhere, identify any considerations that the Board was required to take into account in making its decision and which it failed to take into account. Accordingly, the ground of failure to take into account a relevant consideration has not been established. No other ground of judicial review was clearly identified before me on behalf of Mr Chimirri. As no legal basis has been made out for the grant of relief, I will dismiss the application for review.

28 Even if I had been persuaded that there was a legal basis for granting relief, I would not have done so in the exercise of my discretion, as the Board's decision of 23 January 2008 to cancel the parole order has been overtaken by subsequent events (including, in particular, the Board's decision of 31 March 2008) and the Board will again assess in mid-2008 whether to grant Mr Chimirri parole.

29 As Mr Hanks indicated during argument that the Board would not seek costs if it succeeded in this proceeding, there will be no order as to costs.

30 Subject to any submissions by the parties, I propose to make an order dismissing the application for review without making any order as to costs.

[2] See Division 5 of Part 8 of the Corrections Act generally.

[13] [2004] SASC 423, [23]-[24].

Court (General Civil Procedure) Rules 2005

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