Sides v Parole Board of New South Wales [2001] NSWCA 45

Reported Decision : 50 NSWLR 572

New South Wales Court of Appeal

CITATION : Sides v Parole Board of New South Wales [2001] NSWCA 45 FILE NUMBER(S) : CA 40031/01 HEARING DATE(S) : 8/3/01 JUDGMENT DATE : 12 March 2001

PARTIES : Michael Sides (Claimant) Parole Board of New South Wales (Opponent) JUDGMENT OF : Handley JA; Powell JA; Fitzgerald JA

LOWER COURT JURISDICTION : Parole Board of New South Wales LOWER COURT FILE NUMBER(S) : LOWER COURT Fisher J JUDICIAL OFFICER :

COUNSEL : Mr G. Jauncey (Claimant) Mr P. Lakatos (Opponent) SOLICITORS : Mr P. Bugden - Sydney Regional Aboriginal Corporation Legal Service (Claimant) Crown Solicitor of New South Wales (Opponent) CATCHWORDS : Crimes (Administration of Sentences) Act 1999 - s141 and Sch 1 cl 17 - disagreement between majority and judicial member entitled to vote at a meeting of the Board - failure of Board to discharge its duty under s141 to decide whether or not an offender should be released on parole or whether the question or whether or not the offender should be released on parole should be deferred - - D LEGISLATION CITED : Crimes (Administration of Sentences) Act 1999 DECISION : The Court declares that the Board has not made any decision under s141 of the Act as required by that section, and that its duty to make such a decision remains unperformed. The Board to pay the claimant's costs of and incidental to these proceedings.

THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40031/01 HANDLEY JA POWELL JA FITZGERALD JA

MONDAY 12 MARCH 2001

SIDES v PAROLE BOARD OF NEW SOUTH WALES

JUDGMENT

1 THE COURT: On 9 December 1998, the claimant was sentenced to imprisonment for 4 years and 6 months comprising a minimum term of 2 years and 6 months plus an additional term of 2 years. The minimum term expired on 17 December 2000. 2 The Parole Board gave the claimant a notice of refusal of parole under s139 of the Crimes (Administration of Sentences) Act 1999. Under s140 of the Act, the claimant duly notified the Secretary of the Board that he intended to make submissions to the Board. In accordance with s140, the Chairperson of the Board convened a meeting of the Board on 11 December 2000 to conduct a hearing for the purpose of reconsidering whether the claimant should be released on parole. There was a quorum present at that meeting, which was presided over by the Chairperson, who was the judicial member present. 3 A majority of the votes cast at the meeting voted in favour but the Chairperson voted against the release of the claimant on parole. On 18 December 2000, the Chairperson ruled, on that basis, that the Board had decided to refuse parole to the claimant. In accordance with that ruling, the claimant has not been released on parole. The substantial purpose of the present proceeding is to challenge the Chairperson's ruling. 4 The unsatisfactory situation in which the claimant finds himself derives from the poor drafting of Schedule 1 to the Act, and in particular (so far is this proceeding is concerned) cl 17. Clause 17 provides: "17 Decisions (1) A decision supported by a majority of the votes cast at a meeting of the Parole Board at which a quorum is present, including the vote cast by a judicial member entitled to vote at the meeting, is the decision of the parole Board. (2) In the case of an equality of votes, the judicial member presiding at a meeting of the Parole Board is to have the casting vote. (3) A decision supported by the votes cast by the judicial member and at least one non-judicial member of a Division at a meeting of the Division at which a quorum is present is the decision of the Division." 5 Clause 17(1) provides for a statutory stalemate at a meeting at which a quorum is present unless the judicial member entitled to vote at the meeting Act, Schedule 1, Cl 16. is a member of the majority. Likewise, cl 17(3) provides for a stalemate at a meeting of a Division at which a quorum is present unless the vote cast by the judicial member is supported by the vote cast by at least one non-judicial member of the Division. 6 It is not possible to reconstruct cl 17(1) to avoid the potential for stalemate. The underlying Parliamentary intention is inscrutable. On the one hand it is common to hear legislators support the concept of community standards as the determinant of an offender's entitlement to parole. On the other hand, the legislative history suggests that the judicial member entitled to vote at a meeting of the Board was intended to have a right to veto the majority view. On this occasion, the majority favoured the claimant's release on parole and the Chairperson opposed his release. The opposite could just as easily occur; i.e., the judicial member entitled to vote at a meeting of the Board might favour and the majority might oppose the release of an offender seeking parole. When the majority at a meeting of the Board favours one view and the judicial member entitled to vote at the meeting favour the opposite view there is a stalemate, but cl 17(1) does not make that stalemate a decision of the Board. The result is that the Board has not made any decision at all. 7 The Chairperson ruled that cl 17(1) provided that the vote cast by the judicial member entitled to vote at the meeting prevailed and that accordingly the decision of the Board was to refuse parole to the claimant. That is not what cl 17(1) provides. 8 In contrast to cl 17 of Schedule 1, s141 of the Act is clear. By ss141(1) the Board "must decide" whether or not an offender should be released on parole or whether the question of whether or not the offender should be released on parole should be deferred. By ss141(2) the question of whether or not an offender should be released on parole may be deferred once only and for not more than 2 months. Because of the stalemate which has resulted from cl 17 of Schedule 1, the Board has not made any decision in respect of the claimant as required by s141. 9 The claimant is entitled to a declaration that the Board must make a decision in accordance with s141. The claimant was entitled to have that decision at the conclusion of the hearing convened pursuant to s140(1) after the Board had reviewed "all the reports, documents and other information placed before it" in accordance with s141(1). That has not occurred and the only practical course now is for another meeting of the Board to be convened "to conduct a hearing for the purpose of reconsidering whether the [claimant] should be released on parole." Following that hearing, the Board must make a decision in accordance with ss141(1) and (2). 10 The Court should declare that the Board has not made any decision under s141 of the Act as required by that section, and that its duty to make such a decision remains unperformed. The Board should be ordered to pay the claimant's costs of and incidental to these proceedings. **********