Supreme Court of WA|2001-12-19|Before: Wheeler J, Pullin J

Rechichi v The Parole Board of Western Australia [2001] WASC 363 (19 December 2001)

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

CITATION : RECHICHI -v- THE PAROLE BOARD OF WESTERN AUSTRALIA [2001] WASC 363

1 PULLIN J: This is an application for an order nisi, seeking the issue of a writ of prohibition, a writ of mandamus and a writ of certiorari. The grounds for the application for the order nisi are as follows:

(1) The applicant was denied natural justice in the making of the decision.

(2) The respondent failed to take into account relevant considerations in the making of the decision.

(3) The respondent took irrelevant considerations into account in the making of the decision.

(4) The decision included findings of fact not supported by the evidence.

(5) The decision did not give adequate reasons for the making of the decision, more particularly, not referring to the material on which material questions of fact were decided adverse to the applicant.

2 The remedies sought in this case are often misunderstood by non-lawyers. They will not allow a general review of the case on the merits. This Court cannot hear the facts and decide the case as though it were the Parole Board. The remedy is only concerned with correcting errors of process. The best result which the applicant can achieve in this Court in these proceedings is to gain an order quashing the decision that has been made by the Parole Board and to have the Parole Board reconsider the question of whether or not parole should be granted.

3 Mr Rechichi, in his application, sets out grounds which are acceptable in form, and I will now deal with them in reverse order.

4 First, ground 5 (the complaint that the decision did not give adequate reasons for the making of the decision) and ground 4 (findings of fact not supported by evidence). Reasons for a decision of the Parole Board must be given because of s 27(2) of the Sentence Administration Act 1995. If release is deferred, as it was here, then the prisoner may make written submissions to the Board about the Board's decisions and its reasons.

5 I note what Wheeler J said in Parole Board; Ex parte Forbes (1996) 89 A Crim R 139 at 143-144. Her Honour said:

"... it is clearly not intended that the reasons be the type of detailed outline of facts, reasoning and conclusions which is required of a court or tribunal from which a right of appeal lies. Further, there is no standard of perfection imposed upon the Board. Mere failures in accurate and comprehensive expression, lack of fine detail, and matters of that kind will not result in the Board having failed to comply with the duty which s 40B(8) casts upon it; what is required is a notification which read as a whole and against the background of any correspondence or other matters known to the prisoner clearly indicates why it reached its decision:"

"The reasons should be sufficiently specific to enable a prisoner to understand what aspects of his previous offending, his conduct within prison, or plans which may have been made for his release, caused the Board to have the concerns which gave rise to its determination."

7 The material which led the Board to its conclusion is expressed in the letter from the Parole Board dated 25 October 2001, and it stated:

"In considering special circumstances the Board has regard to the nature and circumstances of offence for which you were imprisoned; the degree of risk that your release would appear to present to the personal safety of any persons in the community or any other matters relevant to your not being released on your earliest release date. The paramount consideration is the protection and interest of the community.

The Parole Board today considered your case and made the following decision based upon the reports and information presented to it."

8 The letter did not state what the reports and information were, and then the decision was expressed, "Defer release on parole." The reasons given were:

"High risk of re-offending. Poor prison conduct (numerous offences). Extensive criminal record including violence. Unaddressed offending behaviour (Anger Management). Lack of motivation to comply with parole conditions. Review 26.4.02 to consider shorter parole period after completion of relevant program and presentation of updated reports including psychological report."

9 In my opinion, this decision does not comply with the requirements of giving reasons which are sufficiently specific to enable the prisoner to understand how the decision was reached.

10 It is apparent from the affidavit of the applicant that he is left to speculate about what material was before the Board. For example, "Poor prison conduct" is stated as one of the reasons. If it is correct, as I must accept on the information before me, that Mr Rechichi has not committed, nor has he been charged with, any prison offences whatsoever during his stay at Hakea Prison, then it seems to me that the Board has made an erroneous finding of fact which is a jurisdictional error; see Craig v South Australia [1995] HCA 58; (1994-5) 184 CLR 163 at 179. The explanation "Poor prison conduct" is also insufficient to enable the applicant to understand the basis of the decision. Therefore, in my opinion, grounds 5 and 4 have been made out for those reasons.

11 The erroneous finding that there was poor prison conduct (numerous offences) based on no evidence, can also be classified as taking into account an irrelevant consideration, and therefore ground 3 is allowed insofar as it complains about the fact that he has not committed any offences while he has been in Hakea Prison.

12 As to ground 2, I was at first disposed to disallow this ground, but in the course of the hearing the applicant referred me to an affidavit sworn on 11 December 2001 in support of a bail application, and in that affidavit there is a copy of an individual management plan, dated 29 November 2001, which contains a passage which reads:

"Rechichi resides in the Unit Eight Self Care Unit. He is a polite Offender who does whatever is asked of him. He keeps himself to a good level of hygiene and presentation. Rechichi is currently employed as the Offices Amenities Room Cleaner between Units Six and Seven. He is considered to be an efficient worker who requires minimal supervision. He takes great pride in what he does and goes to great lengths to impress the staff by his thoroughness and attention to detail. Has not availed himself of the education opportunities at Hakea Prison. There are no incident reports involving Rechichi in this sentence."

13 That document is dated 29 November 2001, which was after the decision of the Parole Board. I am informed, however, that the Board would normally have an individual management plan before it at the time it makes its decision, and the fact that this is so close in time to the time when the Board made its decision, leads me to the view that it is at least arguable that a relevant consideration was not taken into account, namely an up-to-date assessment of the prisoner at the time that the Board made its decision, so for that reason, and with hesitation, I am persuaded also to allow the order nisi on ground 2.

14 Finally, in relation to ground 1, Mr Rechichi complains about the fact that he was not afforded natural justice. As the applicant himself, I think, appreciates, there is a section in the Sentence Administration Act, s 115, which specifically excludes the rules of natural justice. For that reason, that ground cannot succeed. I will therefore grant the order nisi that the respondent do show cause why a writ of certiorari should not be issued against the Parole Board to remove into this Court for the purpose of being quashed, the decision made by it on 25 October 2001, on the grounds set out in pars 2, 3, 4 and 5 of the application.

15 The order, plus a copy of the notice of originating motion, the affidavit of the applicant dated 8 November 2001, and his affidavit of 11 December 2001 filed in CCA number 108 and 109 of 2001, along with a copy of these reasons for decision, must be served on the Parole Board by 10 January 2002, and the matter must be entered for hearing within 42 days after service. I will make this returnable before the Full Court.

16 I should also add that the application for prohibition and mandamus are not appropriate remedies. The appropriate remedy is certiorari, which would have the effect of bringing the decision of the Parole Board into this Court and quashing it, so that the Board would then be required to reconsider the matter and reach a conclusion again if this application succeeds on the hearing in the Full Court.

Administration Act 1995

Rechichi v The Parole Board of Western Australia [2001] WASC 363

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Rechichi v The Parole Board of Western Australia [2001] WASC 363 (19 December 2001)

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