St Alder v State Parole Authority and Anor

[49]

"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order, or vary any of the existing conditions of the order, in accordance with section 128." 25 The plaintiff's parole was revoked on 1 September 2006.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:

[51]

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.

St Alder v State Parole Authority and Anor - [2007] NSWSC 345 - NSWSC 2007 case summary — Zoe

At a glance

Court

Decision date

Before

Catchwords

Source

Catchwords

Judgment (52 paragraphs)

Parties

Cases Cited (1)

Cited By (1)