MICKLESSON v PAROLE BOARD OF NSW [1997] NSWCA 202

MICKLESSON v PAROLE BOARD OF NSW SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

MEAGHER and POWELL JJA, and SHEPHERD AJA 13 August 1997, 13 August 1997

[1997] NSWCA 202

Administrative Law — Judicial review of exercise of powers — Alleged wrongful exercise of power — Refusal of Parole Board to grant parole on expiration of minimum term — Refusal alleged to have been based on alleged policy — Policy alleged to be improper — Relevant circumstances alleged not to have been taken into account.

Criminal Law — Administration of prisons — Probation and parole — Parole Board — Declines to grant parole on expiration of minimum term — Reasons for refusal — Whether proper basis for refusal.

Powell JA By Summons filed 21 May 1997, the Claimant, who is at present an inmate within the Kirkconnell Correctional Centre, seeks orders, prerogative in nature, in relation to the determination of the Parole Board of New South Wales ('the Board") on 17 February this year to refuse to make an order for him to be admitted to parole.

The factual background which gives rise to this application may be stated fairly shortly.

On 4 December 1992, Graham DCJ sentenced the Claimant on six counts out of 11 counts of an indictment for offences alleged to have been committed by the Claimant against one of his stepdaughters, then being a child under the age of 16, of which counts the Claimant had earlier been found guilty by a jury during the Taree sittings of the District Court.

The six counts in respect of which the Claimant had been found guilty were two counts of act of indecency; two counts of sexual intercourse without consent, one of those two counts being in respect of a child under his guardianship; and two counts of attempted sexual intercourse without consent.

In respect of the two counts of act of indecency, Graham DCJ sentenced the Claimant to a fixed term of two years, to commence on 4 December 1992; in respect of one of the counts of sexual intercourse and the two counts of attempted sexual intercourse, his Honour sentenced the Claimant to a fixed term of three years to commence on 4 December 1992; while, in respect of the final count, his Honour sentenced the Claimant to a term of five years to commence on 4 December 1992 with a minimum term of three years and an additional term of two years.