Tamer v Parole Authority of NSW

Supreme Court of NSW|2024-09-10|Before: Dhanji J

EXTEMPORE jUDGMENT (REVISED)

HIS HONOUR: The plaintiff, Ayman Tamer is a prisoner serving the balance of his parole. The first defendant is the Parole Authority of New South Wales (the Parole Authority). The Parole Authority has filed a submitting appearance.
The Attorney General for New South Wales was granted leave to intervene and became the second defendant. The second defendant is the active defendant in this Court.
By his amended summons filed on 3 September 2024 the plaintiff seeks an order that his application made to the Parole Authority on 22 July 2024, which sought to vary the effective date of revocation of his parole, be remitted to the Parole Authority for reconsideration.
There is some urgency to the matter. It came before me for hearing yesterday, 10 September 2024. The plaintiff contends that on the remitter to the Parole Authority, the authority would, after proper reconsideration, make orders with the result that his sentence will expire on 16 September 2024. Clearly, if the plaintiff is correct, the matter will need to be remitted to the Parole Authority with sufficient time for that body to consider the matter and make a decision prior to 16 September 2024. Given my other court commitments this week, it is necessary that I resolve the matter today. These reasons have, as a result, been prepared more hurriedly than would otherwise have been the case.

The source of the plaintiff's grievance

It will be necessary in due course to set out the history of the matter in somewhat greater detail. For introductory purposes, however, the source of the plaintiff's grievance can be relatively shortly stated.
The plaintiff was sentenced some years ago to a lengthy term of imprisonment. He served the non-parole period of that sentence and, presumably on the basis of his positive performance in custody, the decision was made to release him to parole at the conclusion of his non-parole period, which occurred on 16 September 2021. He duly served a period of almost two and a half years on parole without incident. His progress was such that his supervision under the order was suspended. Then, on 7 February 2024 he was arrested and charged with an offence of aggravated kidnapping alleged to have been committed five days earlier, on 2 February 2024. He denies committing this offence. He remained in custody as a result of his arrest until his release to bail on 5 April 2024. That bail was subject to stringent conditions, including electronic monitoring and a form of house arrest.
At this stage, despite his arrest with respect to the new charges, no action had been taken with respect to his parole. It was accepted on the hearing of this matter that subsequent to his release to bail, the plaintiff, on 8 April 2024, contacted the Bankstown Community Corrections office and informed them of his arrest, charging and release to bail in relation to the kidnapping matter. The State Parole Authority was notified by Community Corrections of the plaintiff having been charged by way of a breach report dated 2 May 2024. That report stated, on the basis of the new charges, that the plaintiff "appears to be in breach of his parole order". It was accepted that the Parole Authority only came to know of the charge through the plaintiff notifying Community Corrections. I pause here to note that the Parole Authority is not bound by the criminal standard of proof or the rules of evidence, with the result that a conclusion that the plaintiff was in breach of his parole was open, based on the material available with respect to the plaintiff's arrest and charge.
The breach report noted that the plaintiff's supervision had been considered satisfactory with the result that he was "placed into suspense in November 2021". Various checks on the plaintiff were completed after that date with no concerns identified. It appears that after the plaintiff's self-report on 8 April 2024, his supervision was reinstated. The report stated with respect to this period that the plaintiff's "overall response to supervision has been satisfactory" and noted that he had attended all appointments and that he was appropriately engaged during discussions, further expressing an intention to engage in psychological intervention. The report recommended a warning be issued, noting that "the current bail conditions which he is subject to may assist in mitigating his risk to the community".
The Parole Authority did not accept the recommendation. The plaintiff does not complain in this regard. He accepts that it was open to the Parole Authority to revoke his parole on the basis of the fresh charge. Rather, his complaint is that having determined to revoke his parole, the Parole Authority set the effective date of revocation as 2 February 2024. This has had the result that the plaintiff did not receive credit for the time he was in the community between that date and his arrest on 15 May 2024, with the exception of the period he spent in custody bail refused. Offenders, and the community, are regularly told that parole is not liberty. It is a means of serving a sentence whilst in the community. From the plaintiff's perspective, he remained in the community subject to that parole order continually until 15 May 2024, other than when he was bail refused. While the suggestion made by the plaintiff's counsel that the plaintiff was in the community serving his parole even while committing serious offences was ambitious, from the time of his arrest, and certainly by at least 8 April 2024, when the plaintiff notified Community Corrections of what had occurred and subjected himself to supervision, it is understandable that he felt, in a real sense, that he was lawfully in the community and actively engaging with his parole. Further, it is understandable from the plaintiff's perspective, that given that the Parole Authority only learnt of the breach through his self-report, that he feels that he is being punished for his attempt to do the right thing.
The plaintiff complains that the decision to revoke his parole from 2 February 2024 was so unreasonable as to amount to jurisdictional error on the part of the Parole Authority.

The background in more detail

The relevant chronology is as follows: 1. In December 2020, as a result of a successful appeal to the Court of Criminal Appeal, the plaintiff was sentenced to a term of 7 and a half years imprisonment with a non-parole period of 4 and a half years to date from 17 March 2017 with respect to an offence of supplying not less than a large commercial quantity of a prohibited drug. 2. On 16 September 2021 the plaintiff was released to parole. That parole period was, at that time, due to expire on 16 September 2024. 3. On 2 February 2024 the alleged kidnapping offence was committed. 4. On 7 February 2024 the plaintiff was arrested and charged with the offence allegedly committed on 2 February 2024, that charge being one of kidnapping in company with the infliction of actual bodily harm contrary to s 86(3) of the Crimes Act 1900 (NSW). As at the date of the alleged offence, 2 February 2024, the plaintiff had 7 months and 2 weeks remaining on his sentence. 5. On 5 April 2024 the plaintiff was released to bail having spent a total of one month and twenty-nine days in custody. No action had been taken at that time with respect to his parole. 6. On 8 April 2024 parole supervision in the community recommenced as a result of the plaintiff's self-report to Community Corrections. 7. On 15 May 2024 the plaintiff's parole was revoked pursuant to s 170A of the Crimes (Administration of Sentences) Act 1999 (NSW) ("CAS Act") on the basis of the plaintiff's failure to comply with his obligations under the parole order. That was on the basis that the new charges or, perhaps more correctly, the conduct underpinning the new charges, constituted a breach of Condition 1 of the parole order, that being that the plaintiff be of good behaviour. A warrant was issued for the plaintiff's arrest. 8. The warrant was executed on the same day, returning the plaintiff to custody. The period remaining on the plaintiff's sentence was calculated as 5 months and 19 days to commence on 15 May 2024, resulting in a new sentence expiry date of 2 November 2024. I will return to this calculation in due course. 9. On 20 May 2024, pursuant to s 173 of the CAS Act, the Parole Authority notified the plaintiff of both the revocation order and a review hearing to be held with regard to it on 14 June 2024. 10. On 23 May 2024 the plaintiff acknowledged receipt of the notice and indicated his intention to appear before the Parole Authority at the review hearing. 11. On 14 June 2024 the Authority adjourned the review hearing to 5 July 2024, pending a 19 June 2024 listing in relation to the kidnapping offence in the Local Court. 12. On 5 July 2024 the Authority held the review hearing pursuant to s 174(1) of the CAS Act. The plaintiff appeared and was legally represented at the hearing, providing both evidence and submissions in advance of and at the hearing. 13. On 8 July 2024 the authority advised of its decision to decline to rescind the revocation order. That decision was made pursuant to s 175(1) of the CAS Act. Reasons for the Parole Authority's decision were provided. 14. On 22 July 2024 the plaintiff's solicitor wrote to the Parole Authority making application to "vary the balance of parole" so as to expire on 16 September 2024, that being the date on which parole was originally due to expire. 15. On 23 July 2024 the Secretary of the Parole Board sent an email to the plaintiff's solicitor responding to the application and directing him to Div 4 of Pt 7 of the CAS Act "as to revocation proceedings before the Parole Authority and how a parolee's balance of parole is calculated upon an order being revoked". The email invited the plaintiff's solicitor to provide submissions with respect to varying the effective date of revocation and indicated that these would be considered in a closed meeting of the authority. 16. On 29 July 2024 the plaintiff's solicitor sent detailed written submissions, indicating that these were provided for the purposes of being considered in the closed meeting of the Authority. 17. On 2 August 2024 the Parole Authority issued a notice indicating that at its meeting that day it "[declined] to vary the effective date of revocation". The notice further stated that the authority "[noted] the application" of the plaintiff's solicitors and that the revocation of 15 May 2024 is to stand "for the reasons stated along with the determination provided on 8 July 2024".

The basis of the application for review of the Parole Authority's decision

The plaintiff initially sought review in this Court pursuant to s 155 of the CAS Act. Reference was made in the course of the hearing to s 176 of the CAS Act. The former provision applies to a decision to refuse parole. The latter provision applies, among other circumstances, to those where an offender alleges that a decision to revoke parole has been made on "the basis of false, misleading or irrelevant information".
Neither s 155 nor s 176 has application because the plaintiff does not make any complaint as to either a decision refusing parole or as to the Parole Authority's decision to revoke his parole on 15 May or the Parole Authority's decision made on 8 July 2024 to refuse to rescind the revocation. The plaintiff accepts that the Parole Authority's decisions revoking parole and refusing to rescind the revocation were properly made. His complaint is limited to the decision of 2 August 2024 refusing to vary the "effective date of revocation".
It was in these circumstances that the plaintiff made clear that the relief sought by him was limited to relief in the nature of prerogative relief pursuant to s 69 of the Supreme Court Act 1970 (NSW). Relief in the nature of certiorari is limited to jurisdictional error or error of law on the face of the record. In the present circumstances (for sound reasons) the plaintiff's complaint is limited to jurisdictional error.

The expiry date for the sentence following the plaintiff's arrest on the warrant issued by the Parole Authority

At common law, a sentence continues to run from the date it is imposed: Whan v McConaghy (1984) 153 CLR 631; [1984] HCA 22. Various statutory provisions are in place to limit the impact of Whan v McConaghy. Such provisions operate to, in effect, suspend the running of a sentence during periods such as those when an offender has escaped or is on bail pending an appeal. In the case of an offender on parole, including where parole is revoked, s 132 of the CAS Act applies. That section provides: 132 Sentence continues to run while offender on parole An offender who, while serving a sentence, is released on parole in accordance with the terms of a parole order is taken to continue serving the sentence during the period - (a) that begins when the offender is released, and (b) that ends when the sentence expires or (if the parole order is sooner revoked) when the parole order is revoked.
The result of this provision is that when the plaintiff was released to parole he continued to serve his sentence whilst in the community. This is consistent with the ordinary principle that a sentence continues to run. However, he was not to be "taken to continue serving the sentence" from the point that the parole order was revoked.
The Parole Authority had power to revoke the offender's parole pursuant to s 170A of the CAS Act if satisfied that the plaintiff had failed to comply with his obligations under the parole order. Section 170A relevantly provides: 170A Actions by Parole Authority on non-compliance with parole order (1) This section applies if the Parole Authority is satisfied that an offender has failed to comply with the offender's obligations under a parole order. (2) The Parole Authority may take any of the following actions - (a) record the breach and take no further action, (b) give a formal warning to the offender, (c) impose additional conditions on the parole order, (d) vary or revoke conditions of the parole order, (e) make an order revoking the parole order.
Section 171 then provides: 171 Parole revocation orders (1) A parole revocation order may be made - (a) whether or not the offender has been called on to appear before the Parole Authority, and (b) whether or not the Parole Authority has held an inquiry. (2) A parole revocation order takes effect, or is taken to have taken effect, on the date on which it is made or on any earlier date that the Parole Authority thinks fit. (3) The earliest date on which a parole revocation order resulting from a breach of the obligations of the offender under the parole order may take effect is the date of the first occasion on which it appears to the Parole Authority that the offender failed to comply with the offender's obligations under the parole order. (4) If an offender is not taken into custody until after the day on which the parole revocation order takes effect, the term of the offender's sentence is, by this subsection, extended by the number of days the person was at large after the order took effect.
By operation of s 171(2), in the present case the parole revocation order made by the authority is taken to have effect on 2 February 2024, that being an "earlier date that the Parole Authority [thought] fit". That earlier date was consistent with the limitation created by s 171(3) which operated to restrict the Parole Authority to a date not earlier than "the date of the first occasion on which it [appeared] to the Parole Authority that the [plaintiff] failed to comply with [his] obligations under the parole order".
It will be recalled that the plaintiff was not taken into custody until a date which was after the date on which the parole revocation took effect. Consequently, s 171(4) then operated to extend the term of the plaintiff's sentence "by the number of days the [plaintiff] was at large after the order took effect".
The purpose of s 171(4) is relatively straightforward. It is to ensure an offender does not get credit for time during which they should not be considered to be serving the sentence. That clear purpose obscures a complexity, to which I will return.
As I have already observed, as at the date of the effective revocation of the plaintiff's parole, he had 7 months and 2 weeks remaining on his sentence. Section 171(4) operated to extend the plaintiff's sentence by that period, less any period the plaintiff was not "at large" within the meaning of the provision. The plaintiff was in custody between 7 February and 5 April 2024, a period of 59 days (although the Parole Authority appeared to have taken the period from 8 February and credited the plaintiff with 58 days). That custody related to the conduct relied on as constituting the plaintiff's breach of parole. The Authority treated this period as a period during which the plaintiff was not "at large" and as a result reduced the period of seven months and two weeks by 58 days, resulting in a balance of parole of 5 months, 2 weeks and 5 days. The resulting sentence expiry date is 2 November 2024. As it transpires, the second defendant submits that the Authority was wrong to give the plaintiff credit for this period of 58 days.

The plaintiff's rights of review under the CAS Act

Division 4 of Pt 7 of the CAS Act is entitled "Post-revocation procedures and rights of appeal".
Section 173(1) requires the Parole Authority to cause a "revocation notice" to be served on an offender whose parole it has revoked. Section 173(2) sets out various requirements for the notice, including that it set a date between 14 and 28 days after the date on which it is served on which the Parole Authority is to meet for the purposes of reconsidering the revocation (s 173(2)(i)) and the date specified as "the date on which the revocation order takes effect, if that date is an earlier date than the date on which the revocation order was made" (s 173(2)(ii)). Provision is made for the offender to notify the Authority if they intend to make submissions in relation to the reconsideration of those matters.
Section 174 provides that if an offender has notified the Authority of an intention to make submissions, a hearing must be held for the purposes of reconsidering the revocation or the date on which the revocation is to take effect. The offender is entitled to be heard: s 174(2).
Section 175 provides: 175 Decision after review (1) After reviewing all the reports, documents and other information placed before it, the Parole Authority must decide whether or not - (a) to rescind the revocation of the intensive correction order or parole order concerned, or (b) to rescind or vary the specification of the earlier day. (1A) (Repealed) (2) In determining a review of the revocation of a parole order, and without limiting subsection (1), the Parole Authority may take into account any behaviour of the offender, including whether the offender is alleged to have committed any offences while released on parole or after the revocation of the parole order. (3) A decision under this section has effect according to its terms even if the intensive correction order or parole order concerned has expired. (4) If the Parole Authority rescinds the revocation of the intensive correction order or parole order concerned, any other intensive correction order or parole order consequentially revoked under section 179 is revived and has effect as if it had not been revoked. (5) If the Parole Authority rescinds the revocation of the intensive correction order or parole order concerned, the Parole Authority must cause the reasons for its decision to be recorded in its minutes.
The procedure of meetings of the Authority, (which includes a hearing held under s 174) is governed by cl 11 of Schedule 1 of the CAS Act which provides: 11 General procedure (1) Except as otherwise provided by this Act or the regulations - (a) meetings of the Parole Authority are to be held at such times and places as are fixed by the Chairperson, and (b) the procedure for the convening of meetings of the Parole Authority and for the conduct of business at those meetings is to be as determined by the Chairperson. (2) The Parole Authority may from time to time adjourn its proceedings to such times, dates and places and for such reasons as it thinks fit. (3) The Parole Authority is not bound by the rules of evidence, but may inform itself of any matter in such manner as it thinks appropriate. (4) Proceedings before the Parole Authority - (a) are to be open to the public, unless the Parole Authority determines in a particular case that the proceedings are to be conducted wholly or partly in the absence of the public, and (b) are not to be conducted in an adversarial manner, and (c) are to be conducted with as little formality and technicality, and with as much expedition, as fairness to any affected person and the requirements of this Act permit. (5) A decision of the Parole Authority is not vitiated merely because of any informality or want of form. (6) The Parole Authority may, if it thinks fit, hold a meeting at which some members participate by telephone, closed-circuit television or other means, but only if any member who speaks on a matter before the meeting can be heard by the other members and by members of the public (if the meeting is open to the public).
Clearly, based on these provisions, meetings of the Parole Authority are attended by at least a level of informality. The degree of informality is, however, necessarily affected by the subject matter concerned, that is, the detention in custody of an individual. With respect to reasons for the Parole Authority's decision, it can be seen that the obligation to give reasons pursuant to s 175(5) is limited to any decision to rescind the revocation. An obligation to provide reasons, however, also arises pursuant to s 193C: 193C Parole Authority decisions (1) The Parole Authority must cause a record of its reasons for the following decisions under Parts 6 and 7 to be kept in the minutes of its meetings - (a) all decisions that result in the granting or refusing of a re-integration home detention order or parole, (b) all decisions that result in the revocation of an intensive correction order, re-integration home detention order or parole order, (c) all decisions that result in the refusal to revoke an intensive correction order following a recommendation referred to in section 164AA, (d) all decisions that result in the refusal to revoke a parole order - (i) following a submission made under section 141A (3) or 153 (3), or (ii) following a recommendation referred to in section 170 (3) or 170B (2), (e) all decisions that result in a refusal to revoke a re-integration home detention order following a recommendation referred to in section 168E (2), (f) any other decisions following a submission or recommendation by the Commissioner or the State. (2) In recording its reasons for a decision under Division 2 of Part 6 that an offender should or should not be released on parole, the Parole Authority must address - (a) the matters referred to in section 135, and (b) if the decision relates to a serious offender to whom section 154 applies, the matters referred to in that section, and (c) such other matters as the Parole Authority is, under this Act or the regulations, required to take into account in making the decision. (2A) In recording its reasons for a decision relating to re-integration home detention for the purposes of this section, the Parole Authority must address the matters that it is required to consider when making the decision. (3) Copies of any records made under this section are to be supplied to the Minister, the Commissioner and Community Corrections, as they may request. (4) Subject to this Act, a decision by the Parole Authority under Part 6 or 7 is final.
The nature of the obligation to give reasons pursuant to s 193C was discussed by Beech-Jones J in Attorney General of NSW v Chiew Seng Liew [2012] NSWSC 1223. For present purposes it is, however, sufficient to note the limits of the plaintiff's complaint. As I have said, it relates solely to the decision of 2 August 2024. That decision was made after the hearing held pursuant to s 174 which took place on 5 July, and the decision made following that hearing which was given on 8 July. It was accepted that the plaintiff's rights of appeal under the CAS Act were exhausted at that point. A concession that s 193C has no application necessarily followed. The plaintiff further accepted that it followed that the Authority had no obligation to provide reasons with respect to its decision of 2 August 2024. Nor, given the exhaustion of appeal rights under the CAS Act was there any right to an open hearing with respect to the plaintiff's application of 22 July 2024. While written submissions had been made to this Court as to this, submissions contending for error on the basis of a failure to conduct an open hearing were not pressed orally.

The plaintiff's argument

As I have made clear, the plaintiff contends that the Parole Authority committed jurisdictional error in refusing to vary the effective date of the revocation of the plaintiff's parole. He relies on the following grounds as set out in his amended summons: "1. The NSW State Parole Authority's decision to decline to vary the effective revocation of parole date of 15 May 2024 was by way of legal unreasonableness. 2. The NSW State Parole Authority's decision to decline to vary the effective revocation of parole date of 15 May 2024 was irrational, with inadequate and or improper reasoning."
A third ground was not pressed.
While expressed as two grounds, the plaintiff essentially raises a single complaint of unreasonableness. To the extent that the second ground refers to "improper reasoning", this falls away in the light of the plaintiff's concession that no reasons were required, subject to the plaintiff's submission that the absence of reasons lends support to a finding of unreasonableness.

Relevant law

Reference to relevant case law was made by the second defendant in written submissions. Review on the basis of jurisdictional error is restricted. However, a decision may be found to be one made in excess of jurisdiction on the basis of unreasonableness. In Minister for Immigration and Border Protection v SZVFW (2018) 264 CLR 541; [2018] HCA 30 at [10] it was said "a decision made in the exercise of a statutory power is unreasonable in a legal sense when it lacks an evident and intelligible justification". It was stressed (at [11]) that "the test of unreasonableness is necessarily stringent".
In the same vein in Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs; [2022] FCAFC 3 289 FCR 1, the Full Court of the Federal Court set out what had been said in Minister for Immigration and Citizenship v SZDMS (2020) 240 CLR 611; [2010] HCA 16 at 648: "[n]ot every lapse in logic will give rise to jurisdictional error. A court should be slow, although not unwilling, to interfere in an appropriate case".
Unreasonableness on the basis of jurisdictional error is distinct from merits review. In Minister for Immigration and Border Protection v Stretton (2016) 237 FCR 1; [2016] FCAFC 11 Allsop CJ explained, at [12], that a court's task on judicial review is "not to assess what it thinks is reasonable and thereby conclude (as if in an appeal concerning breach of duty of care) that any other view displays error". Rather his Honour observed the task is to "evaluate the quality of the decision, by reference to the statutory source of the power and thus, from its scope, purpose and objects to assess whether it is lawful". What is required is that the outcome is "so unreasonable that it could not have been reached if proper reasoning had been applied in the exercise of the statutory power in the particular circumstances": SZVFW at [83].
In the present circumstances it is to be remembered that the Parole Authority was engaged in the exercise of an evaluative judgment. The analysis of Gibbs J in Buck v Bavone (1976) 135 CLR 110; [1976] HCA 24 at 118 to 119 is apposite: "It is not uncommon for statutes to provide that a board or other authority shall or may take certain action if it is satisfied of the existence of certain matters specified in the statute. Whether the decision of the authority under such a statute can be effectively reviewed by the courts will often largely depend on the nature of the matters of which the authority is required to be satisfied. In all such cases the authority must act in good faith; it cannot act merely arbitrarily or capriciously. Moreover, a person affected will obtain relief from the courts if he can show that the authority has misdirected itself in law or that it has failed to consider matters that it was required to consider or has taken irrelevant matters into account. Even if none of these things can be established, the courts will interfere if the decision reached by the authority appears so unreasonable that no reasonable authority could properly have arrived at it. However, where the matter of which the authority is required to be satisfied is a matter of opinion or policy or taste it may be very difficult to show that it has erred in one of these ways, or that its decision could not reasonably have been reached. In such cases the authority will be left with a very wide discretion which cannot be effectively reviewed by the courts."

Application of the relevant law - unreasonableness

As can be seen from the terms of s 171, it was potentially open to the Parole Authority to set the effective date of revocation as any date between 2 February 2024 and 15 May 2024. The plaintiff submits that the unfairness to him in dating the revocation from 2 February 2024 is so manifest that the decision to do so is unreasonable in the sense that it amounts to jurisdictional error.
No reasons were given by the Authority for its decision of 2 August 2024. What was received by the plaintiff was a notification of the decision declining to vary the effective date of the revocation in response to the "application from [the plaintiff's solicitor] dated 22 and 29 July 2024". The notice also indicated that the revocation was to stand. This latter indication was somewhat otiose given the absence of any challenge to the revocation itself. Given the absence of any obligation to provide reasons with respect to the 2 August 2024 determination, no error can be established on this basis. Further, in referencing the "application" of the plaintiff's solicitor of 22 and 29 July, a proper inference to draw is that those submissions were taken into account. There is, thus, no basis to conclude that the Authority did not have regard to the detailed submissions made on the plaintiff's behalf unless the result is so manifestly unreasonable that it would warrant this conclusion.
The submissions made on behalf of the plaintiff to the Parole Authority referred to the delay in the revocation in the absence of any contribution to that delay by the plaintiff. It was, in the course of the submissions, further submitted that the plaintiff was not at large during the period prior to him being taken into custody on 15 May 2024. Ultimately, however, as I have said, the issue is whether those submissions were so compelling that error can be seen in the result. While I can understand the plaintiff's grievance and his resulting sense of unfairness, the decision of the Parole Board is not wholly illogical.
Clearly, in a situation such as the present, there are a number of factors to be considered. One will be the nature of the breach of parole; another will be what has occurred since. One view of the situation is that the plaintiff, after a breach on 2 February 2024, had, at least from the time of his release to bail, done everything he could to put things right and, moreover, had subjected himself to supervision under the order. The difficulty for the plaintiff is that the Parole Authority was entitled to take into account countervailing considerations. The plaintiff was alleged to have committed an extremely serious offence. The criminal standard of proof did not apply and nor did the rules of evidence apply. The result, which is not challenged, is that it was open to the Parole Authority, despite the plaintiff's denial of the offence, to be satisfied that the plaintiff had in fact committed that extremely serious offence.
On this basis, as at 2 February 2024, the plaintiff had breached his parole. Having breached his parole, the Parole Authority, exercising an undoubtedly broad discretion, was entitled to treat him as having been in breach from 2 February 2024; s 173 of the CAS Act makes this plain. While there may have been a basis to treat the plaintiff more favourably with respect to the revocation date, the Parole Authority was not obliged to do so. Rather, it was open to the Authority to take the view that the plaintiff had, in committing the further offence, forfeited the privilege granted to him of being on parole as and from that time.

A second argument - the plaintiff was not "at large" within the meaning of s 171(4) of the CAS Act

The plaintiff, in the alternative, submitted that he was not "at large" during the period between 2 February 2024 and 15 May 2024. As I have observed, the Parole Authority treated him as not being at large only for the time he was actually in custody, that is, between 7 February 2024 and 5 April 2024. The short answer to the plaintiff's argument is that, even if correct, it does not result in success for the plaintiff. If correct, the error was one with respect to the calculation of the remaining balance of parole. Any such error is distinct from an error as to the revocation date. The plaintiff's summons is explicitly limited to a complaint as to the effective date of revocation.
In the course of argument, this issue was raised with the plaintiff's counsel, however, no application was made to amend the summons. Subsequent to that, the second defendant's counsel, in anticipation of a possible application, indicated it would be opposed. This did not provoke any application to amend. In the circumstances, there is no alternative other than to reject the argument on the basis it has no bearing on the revocation date. In deference to the submissions of the parties, I will, however, say something with respect to the argument.
The controversy with respect to the meaning of "at large" is not limited to the period where the plaintiff was in the community, at the time ostensibly serving his parole, that parole being subsequently revoked with retrospective effect. There is also some controversy surrounding the treatment of the period from 7 February 2024 to 5 April 2024 when the plaintiff was in custody and for which time he has been given credit.
The second defendant before me submitted that the plaintiff was not entitled to credit for this time, relying on Palizio v NSW Parole Authority [2013] NSWSC 1829. In Palizio, the offender left New South Wales in breach of his parole, which was consequently revoked, effective from the time of the breach. He was subsequently arrested in Western Australia with respect to unrelated offences and spent time in custody in that state in respect of those offences. On his return to custody in New South Wales with respect to his balance of parole, he sought credit for time in which he was in custody in Western Australia on the basis that he was not "at large" within the meaning of the then equivalent of s 171(4). He failed. The Attorney General, who intervened and appeared as the active defendant, submitted that "taken into custody" meant taken into custody in New South Wales.
Hoeben CJ at CL, said at [48]: "I do, however, interpret s 171(3) differently to the intervenor. In particular, I do not accept that the section's operation is to be restricted to circumstances where the 'taking into custody' occurred in NSW. The better interpretation is that the phrase 'taken into custody' should be qualified by the words 'with respect to the sentence for which parole was granted' or some similar formula. A qualification in similar terms should be added after the words 'at large', i.e. at large 'with respect to the sentence for which parole was granted'."
His Honour's observations did not purport to identify the precise words to be read into the provision. What is plain from his Honour's decision is that, having absconded, the offender in that case remained at large until brought to justice with respect to the offence for which he was on parole despite serving a sentence in another State, a result I respectfully agree with. Hoeben CJ at CL reasoned from examples set out in his reasons at [49] and [50].
Those examples, however, do not contemplate the situation here where the cause of the plaintiff's custody during the remand period was the alleged conduct resulting in the breach of his parole. His parole could have been revoked at any time after 2 February 2024 and thus before or at the time he went into custody. If that had have occurred, he would have been in custody "with respect to the sentence for which parole was granted". Why then should he be denied credit due to an accident of timing? Further, he may never be convicted of the kidnapping offence. This further highlights the manifest unfairness to him if he were not given credit for that time in custody. I do not think the legislature could have intended such a result. In the present factual circumstances, I do not think the plaintiff can sensibly be regarded as having been "at large" when in custody as a result of the very conduct which resulted in his revocation of parole.
There is relatively little other authority as to the meaning of "at large" in s 171(4). In Ahmad v R [2022] NSWCCA 144, the applicant appealed his sentence on grounds including an error in finding he was on conditional liberty at the time of his offences. The applicant was on parole at the time of the offences, however, that parole was subsequently revoked with retrospective effect. The applicant argued that he was, as a result, "at large" by operation of s 171(4) and not on conditional liberty.
Mitchelmore JA found that s 171(4) operates to extend a sentence, but does not retrospectively alter the status of the offender as being in the community on conditional liberty prior to the revocation order being made. That might, arguably, lend some support to the plaintiff's contention, however, as I understand her Honour's reasons, it is essentially that s 171(4) did not speak to the situation with which the sentencing judge was there dealing. The question was whether the offender was on conditional liberty at the time of his offending within the meaning of s 21A(2) of the Crimes (Sentencing Procedure) Act 1999 (NSW); clearly, he was.
In Morrison v R [2009] NSWCCA 211; (2009) 197 A Crim R 103, the offender committed offences after the date on which his parole was due to expire and, as far as he was aware, had expired. Unbeknownst to him, the parole order had been revoked and a warrant issued for his arrest, the result of which was that his sentence was extended by the operation of what was then s 171(3) of the CAS Act, which was in the same terms as the current s 171(4). The offender in Morrison was sentenced on the basis that he was on conditional liberty. On his appeal, he contended this was in error.
In seeking to defend the finding, it was submitted on behalf of the Crown that the applicant being "at large" within the meaning of s 171(4) was equivalent to him being unlawfully at large or an escapee, which was to the same effect as being on conditional liberty for the purposes of constituting an aggravating factor on sentence. RA Hulme J, with whom the other members of the Court agreed, Grove J with additional reasons, found that s 171(3) "does not convert the person into someone who is to be regarded as in the community under a form of conditional liberty". As in Ahmad, his Honour's observations were in a very different context and did not speak to the present situation.
His Honour did say, in the course of coming to his conclusion, that the effect of the provision is that the "sentence simply stops running from the date the revocation is ordered to take effect and is restarted upon the offender's return to custody". As I have said, his Honour's remarks are not concerned with the situation such as the present. If his Honour's reference to the sentence stopping and restarting on return to custody with respect to the warrant were intended to cover the exclusive operation of s 171(4), I do not agree. Apart from anything else, the simple suspension of the sentence is elsewhere provided for in the Act by s 132. I would only add that I would not read his Honour's remarks as intending to delineate the exclusive operation of s 171(4).
As presently informed, I do not accept that a person is at large until returned to custody to serve their balance of parole on execution of the warrant issued by the Parole Authority. As I have said, the present case suggests that this cannot have been the intention. Another example is perhaps clearer. Take the example of a person who has served the non-parole period of a sentence who, before the expiry of their balance of term, is sentenced to a term of imprisonment for an unrelated offence. If, at the time the new sentence is imposed, the person is already in custody serving the balance of parole (and there is no other current non-parole period in existence) the new sentence will be served concurrently with the balance of parole: Crimes (Sentencing Procedure) Act s 47(4); see also Hala v R [2024] NSWCCA 146 at [39] - [40].
If, on the other hand, the same offender is not in custody serving the balance of parole, the sentence will date from the date it is imposed or possibly from some earlier date. In the case of this offender, parole may subsequently be revoked effective from a day before the commencement of the new sentence. If this offender was to be treated as "at large" during the time of the new sentence because he was not in custody with respect to the sentence to which the parole relates, the sentence will be extended by the duration of the new sentence. The effect will be to make that new sentence wholly cumulative on the balance of parole. In other words, this offender would be treated very differently from the offender whose parole had already been revoked. This would be an arbitrary and unfair result and one inconsistent with the sentencing scheme.
Returning to the words of s 171, plainly it deals with the situation where the offender is not taken into custody on the date of the revocation of parole. That may occur through parole being revoked retrospectively or it may occur as a result of the warrant not being executed on the day it is issued. For the purposes of s 171(4) "the date on which the parole revocation order takes effect" is the date of revocation as set pursuant to s 171(3). Here, the plaintiff was a person who was not taken into custody "until after the day on which the parole revocation order took effect", that date being set by the Parole Authority as 2 February 2024. His sentence was thus extended by the number of days he was "at large after the order took effect", that is, the number of days he was at large after 2 February 2024. It seems to me the plaintiff was at large from 2 February 2024 until his arrest on 7 February 2024. He was found by the Parole Authority to have committed an offence warranting the revocation of his parole and had not been brought to justice with respect to it.
On 7 February 2024, however, he entered custody with respect to that offence. As I have indicated, it seems to me he was not at large as at that date. There is further, in my opinion, strength in the view that he did not return to being at large when released to bail. There was, from that time, no quality of him failing to subject himself to relevant authority. In that sense, he is unlike the plaintiff in Palizio who, while in custody in another state, was not at liberty but was equally not subject to relevant authority. This quality of being subject to relevant Authority is underscored for the period from 8 April 2024, when the plaintiff actively submitted to the Parole Authority with respect to the offence.
It is, however, both unnecessary and undesirable to express a definitive view as to the issue. As I have indicated, the plaintiff has not sought to challenge the calculation of his balance of parole. The issue is clearly one of some complexity. Given the manner in which the issue arose and the point at which it was raised, I have not heard full argument on the matter. Time for consideration of the argument has also been limited.
The result is both the plaintiff's primary and second argument fail and the summons must be dismissed.
The second defendant noted before me that, while costs ordinarily follow the event, the second defendant does not actively seek an order for costs. In those circumstances, I do not propose making a costs order against the plaintiff.

Conclusion

I make the following order: 1. The plaintiff's amended summons is dismissed.

Amendments 13 September 2024 - Amendment to coversheet DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 13 September 2024

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Cases Cited (16)