New South Wales Supreme Court CITATION : Laurente v Parole Board [2001] NSWSC 729 CURRENT JURISDICTION: Civil FILE NUMBER(S) : SC 12447/01 HEARING DATE(S) : 16 August 2001 JUDGMENT DATE : 4 September 2001 PARTIES : Brian Laurente (Plt) Parole Board (Def)) JUDGMENT OF : McClellan J COUNSEL : H Dhanji (Plt) P Strickland (Amicus Curiae) SOLICITORS : Legal Aid Commission of NSW (Plt) CATCHWORDS : Plaintiff seeking order in the nature of mandamus directing the Parole Board to exercise its discretion under s 165 Crimes (Administration of Sentences) Act 1999 to direct that the remainder of the plaintiff's sentence be served by home detention - plaintiff convicted on two counts of robbery in company - plaintiff's sentence to be served by periodic detention - plaintiff failed to report - revocation order made pursuant to s 163(1) - revocation order confirmed at Parole Board hearing LEGISLATION CITED : Crimes (Administration of Sentences) Act 1999 s 7, s 163(1), s 165(1),(2),(3) CASES CITED : Smith v Commissioner for Corrective Services (1980) 147 CLR 134 DECISION : See para 17 THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION McCLELLAN J TUESDAY, 4 SEPTEMBER 2001 12447/01 - LAURENTE v PAROLE BOARD JUDGMENT 1 HIS HONOUR: The plaintiff seeks an order in the nature of mandamus directing the Parole Board to exercise its discretion under s 165 of the Crimes (Administration of Sentences) Act 1999 (NSW) which would allow it to direct that the remainder of the plaintiff's sentence be served by way of home detention. 2 The matter arises in these circumstances. The plaintiff was convicted of two counts of robbery in company and was sentenced on each count to penal servitude for two years, to be served by way of periodic detention. The sentences were concurrent and were to commence on 11 December 1999. The plaintiff failed to report on three or more occasions, without having been granted leave of absence or an exemption. As a consequence an order revoking the periodic detention order was made by the Parole Board pursuant to s 163(1) of the Act. This was done in the absence of the plaintiff, who was later arrested and taken into custody. The periodic detention order was revoked on 14 June 2000 but it was not until 18 April 2001 that the plaintiff was taken into custody. He has remained in prison since that time. The revocation was effective prior to 14 June 2000. 3 On 30 May 2001 the plaintiff appeared before the Parole Board at a hearing held pursuant to the provisions of Division 4 of Pt 7 of the Act. A transcript of the proceedings at that hearing has been tendered in evidence. At the hearing the revocation of the plaintiff's periodic detention order was confirmed. The Board was also requested by the plaintiff's solicitor to consider imposing a sentence to be served by way of home detention as provided by s 165 of the Act. The Board refused this request holding that it had no power to consider it. 4 Section 165 of the Act is in the following terms: "165 (1) If the Parole Board revokes a periodic detention order under this Division, it may make an order directing that the remainder of the sentence to which the periodic detention order relates (if that remainder is 18 months or less) is to be served by way of home detention. (2) Part 6 of the Crimes (Sentencing Procedure) Act 1999 applies to and in respect of a home detention order under this section and such an order is taken to be a home detention order made under section 7 of that Act. (3) When, for the purposes of an order referred to in subsection (1), the Parole Board refers an offender for assessment in relation to a sentence of home detention, the Board may by order: (a) stay the execution of the offender's sentence, and (b) release the offender subject to such supervision as is prescribed by the regulations, until the Board decides whether or not to make the home detention order. 5 The Board held that because the plaintiff had been sentenced to a term greater than eighteen months it had no power to order the plaintiff to serve the remainder of his sentence by way of home detention. This construction of the section is clearly erroneous although it would appear that the Board has adopted it in all cases. Whatever be the correct construction of the section, it is clearly intended to apply to offenders who have been sentenced to a term which exceeds eighteen months. The Board appears to have formed the view that because s 7 of the Act precludes a sentencing judge from imposing an order for home detention when the sentence exceeds eighteen months, the Board cannot impose such an order when, although the original setnence was greater than eighteen months, it has less than this period to run. I am satisfied this approach is not correct. 6 Mr Strickland, to whom I granted leave to appear as amicus curiae, did not contend that the Board's decision could be supported on this basis. 7 The argument for the plaintiff is that although, both when the order for periodic detention was revoked and when the matter was reviewed, the plaintiff still had a period greater than eighteen months to serve, the Board should nevertheless have considered an order for home detention. It was submitted that the Board could have delayed any final decision until further time had elapsed and the plaintiff had less than eighteen months to serve. This position existed on 26 August 2001. It was submitted that because of the obligation to obtain an assessment pursuant to s 165(3) if home detention was to be considered, the lapse of time would have made it possible, when the matter finally came to be determined, that the plaintiff may have had less than eighteen months to serve. 8 Beyond the particular case it was submitted that, in principle, the section should be construed so that any person in respect of whom an order revoking a periodic detention order has been made, may seek an order for home detention at any time thereafter, which may be granted, provided at the point at which the Board considers the matter, the applicant has less than eighteen months to serve. 9 It was submitted that if the construction of the section gives rise to an ambiguity, that ambiguity should be resolved in favour of an offender (see Smith v Commissioner for Corrective Services (1980) 147 CLR 134). 10 The submission of the plaintiff is that the words "remainder of the sentence" referred to in s 165(1) should be understood as referring only to the remainder of the sentence at the time when the home detention order is being considered and not when the order for periodic detention is revoked. It is submitted that because any order for home detention can only be made in relation to that part of the sentence which remains at the date the order is made (any other part of the sentence having been served either by periodic detention or following revocation of that order, by full time custody) it is open to the Board to impose an order for home detention, provided the balance of the sentence when the matter is being considered is less than eighteen months. Because any order for home detention will normally only be considered some time after an offender has returned to custody it is submitted that it is inevitable that the question of home detention must be considered at a later point than when the order for periodic detention is revoked. 11 It is submitted that this construction of the section is supported by the inclusion of the word "if" as a precondition to the Board exercising its power to provide for home detention rather than using the word "when" or "at the time". 12 I cannot accept this construction. In my opinion the section should be construed so that the Board only has a power to consider home detention in the event that, at the time at which it revokes a periodic detention order, the remainder of the sentence to be served is eighteen months or less. Only if it is construed in this manner will the section have certainty of operation. The construction contended for by the plaintiff would provide for uncertain and possibly capricious results. Because there is no power of the Parole Board to review an offender's sentence, except in the circumstances where a revocation is being considered under s 163, or an inquiry is being held under Division 4, power to consider a home detention order would only arise in the circumstance where it happened that the Board was considering the matter within the eighteen month period or, as was suggested, if the Board was to adjourn its processes so that an opportunity would be available to it to hear the matter within that period. This would be an entirely unacceptable result, being dependant in many cases merely on the date when the Board happened, because of its administrative arrangements, to be sitting. 13 It is appropriate to consider the legislative history of the provision. In 1996 the Law Reform Commission recommended that sentencing laws in New South Wales be consolidated into two Acts. One Act was to cover sentencing procedure and the other would cover the administration of sentences. At the same time it was recommended that New South Wales not provide for any form of "back end home detention". As I understand that concept, it was urged upon the Law Reform Commission that it should recommend that persons who had been sentenced should be able to ask for that sentence to be reviewed by the Parole Board at a later point and, rather than being released on parole, an order made that the remainder of the sentence, or part of it, be served by home detention. The Law Reform Commission rejected this proposition being of the view that in order to preserve truth in sentencing, any form of home detention must be imposed by the sentencing court, rather than by a later administrative decision. 14 When s 165 was enacted it did not provide a capacity in the Parole Board to stay the execution of an offender's sentence and release that person subject to supervision as is now provided by subsection (3). As the Second Reading Speech introducing the amendment makes plain the intention of subsection (3) was to allow the release of an offender under supervision during the period of assessment for suitability for a home detention order. However, the subsection expressly provides that if this occurs the sentence is to be stayed with the consequence that time will not run until the matter is disposed of. In these circumstances, a person who has had an order for periodic detention revoked, but has at the time when released pursuant to subsection (3), more than eighteen months to serve, would never be able to benefit from a home detention order, unless first taken back into custody to serve a further period of the sentence, thereby reducing the remainder to less than eighteen months. This would be an unacceptable position and a construction of the section which has this effect should be rejected. 15 In my opinion the appropriate construction of s 165(1) is that the Parole Board may only consider whether an order for home detention should be made in circumstances where, at the date upon which the order for periodic detention is revoked, the offender has eighteen months or less to serve. This construction has the consequence that eligibility for home detention is not dependant on some chance event in the administration of the Parole Board, but upon the position of the offender at the time he or she breaches and must be dealt with by the Board. 16 I appreciate that the consequence will often be that the sentence remaining to be served when the order for periodic detention is revoked, may be greater than when the order for home detention is made. However, that means that the practical effect of any order for home detention will be that it only operates on the balance of the sentence to be served at the date the order is actually made. I see no difficulty in accepting that the section will have this operation when the alternative construction is lacking in principle and may bring capricious results. 17 The summons is dismissed and I make no order as to costs. ****** Last Modified: 09/20/2001 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.