Potier v Parole Authority of NSW

Malcolm Potier, the plaintiff, was granted parole on 2 October 2015, to be released no earlier than 16 October 2015 and no later than 23 October 2015. Upon his release, he was taken to immigration detention. On 15 December 2015 he was removed to the United Kingdom. He seeks, by summons and a notice of motion filed on 12 November 2015, relief that includes a declaration that the parole order was invalid and that he ought, accordingly, be returned to custody and remain incarcerated in a gaol in New South Wales unless and until he applies for parole and it is granted, or the term of his sentence expires.

The named defendants are:

As the first and second defendants filed submitting appearances, the Commissioner was the only active defendant in these proceedings.

The principal relief sought is contained in prayers 1 and 2 of the notice of motion, as follows:

In order to understand the context in which the claim for relief arises, it is necessary to set out the relevant legislative provisions which govern the grant of parole and the removal from Australia of non-citizens.

Section 2A of the Crimes (Administration of Sentences) Act 1999 (NSW) (the Act) provides for objects which include the following:

Part 6 of the Act makes provision for parole. Section 125 provides that Part 6 applies to an offender who is serving a sentence by way of full-time detention. Section 126 provides:

Section 127 of the Act provides that an offender who is eligible for release may not be released on parole except in accordance with a parole order directing his or her release. A “parole order” is relevantly defined to include an order under s 138 (see below): s 3 of the Act.

Section 133 of the Act provides that a parole order is not invalid merely because of a failure by the Parole Authority to comply with any procedural requirement imposed by or under the Act.

Division 2 makes provision for sentences in excess of 3 years. Section 135(1) prohibits the Parole Authority from making a parole order unless it is satisfied, on the balance of probabilities that the release of the offender is “appropriate in the public interest”. Section 135(2) sets out a number of mandatory relevant considerations to be taken into account by the Parole Authority in deciding that question. These include the need to protect the safety of the community and the need to maintain public confidence in the administration of justice.

Section 135A provides for the preparation of reports by the Probation and Parole Service and sets out the matters to be addressed in such reports. There is no reference in that section to the desire (or otherwise) of the offender to be released on parole.

Subdivision 3 of Division 2 (which contains ss 136-141) applies to offenders other than serious offenders and, accordingly, has no direct application in the present case. However, it will be considered for completeness since it is a cardinal principle of interpretation that an Act must be read as a whole.

Section 138(1) provides that, as soon as practicable after deciding to release an offender on parole, the Parole Authority must make an order directing that an offender be released on parole. Section 138(1AA) provides:

Subdivision 3 of Division 2 applies to serious offenders. Section 143, which is contained in Subdivision 3, obliges the Parole Authority to consider whether or not a serious offender (which relevantly includes Mr Potier) should be released on parole at least 60 days before the offender’s parole eligibility date, which is relevantly defined as the date on which the offender first becomes eligible for release on parole. Section 143A relevantly provides:

Under s 143B of the Act the Parole Authority is entitled to consider a serious offender’s case at any time after the offender first becomes eligible for parole in circumstances prescribed to constitute manifest injustice. It was not suggested that any of the circumstances prescribed applied in the present case. Sections 143A and 143B were inserted into the Act in 2004. Their purpose is addressed below when the legislative history of Part 6 is considered as an aid to its interpretation.

Section 144 requires the Parole Authority, after giving its preliminary consideration to release of a serious offender on parole, to form and record its initial intention.

Section 148 sets out the principles on which the Parole Authority’s final decision is to be made in the following terms:

Section 149 provides for a decision following a review of the Parole Authority’s initial intention. Section 150 provides for a decision where there is no review.

Section 151(1) (which corresponds to s 138, but applies to serious offenders) provides:

The Serious Offenders Review Council (SORC) is constituted by s 195 of the Act. One of SORC’s functions is to “provide reports and advice to the Parole Authority concerning the release on parole of serious offenders”: s 197(2)(b). Pursuant to s 198(2A), SORC is obliged to consider the following matters when exercising its functions under s 197(2)(b):

Section 14 of the Migration Act 1958 (Cth) provides that a non-citizen in the migration zone who is not a lawful non-citizen is an unlawful non-citizen. Section 189(1) provides that, if an officer knows or reasonably suspects that a person in the migration zone (which relevantly includes New South Wales) is an unlawful non-citizen, the officer must detain the person. Section 196(1) relevantly provides that an unlawful non-citizen detained under s 189 must be kept in immigration detention until he or she is removed from Australia under s 198. Section 198 requires officers to remove unlawful non-citizens from Australia “as soon as reasonably practicable”.

Part 2 of the Migration Act provides for “Arrival, presence and departure of persons”. Division 4 of Part 2 is entitled “Criminal justice visitors”. The object of the Division is set out in s 141, which provides:

Section 142 includes within the definition of “administration of criminal justice” “the punishment by way of imprisonment of a person for the commission of an offence”. Section 145 relevantly provides that if the Attorney-General considers that the temporary presence in Australia of a non-citizen who is outside Australia is required for the purposes of the Extradition Act 1988 (Cth), the Attorney-General may give a certificate that the presence of the non-citizen in Australia is required for the administration of criminal justice.

Section 148(1) of the Migration Act provides:

Section 150 of the Migration Act provides that if a criminal justice stay certificate about a non-citizen is in force, the non-citizen is not to be removed or deported.

Section 151 of the Migration Act provides:

Section 40 of the Extradition Act provides:

On 7 August 2006 Mr Potier was sentenced to a term of imprisonment for a period of 12 years expiring on 6 August 2018 with a non-parole period of 7 years, following his conviction on a charge of solicit to murder contrary to s 25 of the Crimes Act 1900 (NSW). Accordingly, his parole eligibility date was 6 August 2013.

On 30 April 2013 SORC prepared an initial report pursuant to ss 197 and 198 of the Act. It advised against the Authority considering Mr Potier’s release on parole, in part on the basis that he proposed to seek custody of his sixteen-year old daughter if released to parole. At its initial meeting on 7 June 2013 the Parole Authority formed the initial intention to refuse parole. Mr Potier applied for a review hearing, which was refused by the Authority. The Parole Authority refused to order parole on 6 August 2013.

On 12 March 2014 Mr Potier was interviewed at Junee Correctional Centre by an Assessment Committee of SORC. Notes of the interview included the following paragraphs:

On 29 May 2014 Emma Albertini, Community Corrections Officer, prepared an “anniversary” report on Mr Potier to be considered by the Parole Authority. The report concluded:

On 8 July 2014 SORC prepared a report which concluded that it was appropriate for Mr Potier to be released to parole. Mr Potier was interviewed on 5 December 2014 and asked about his post-release accommodation. Mr Potier responded that it was “pointless” to address the question as he would be taken to immigration detention on his release. A supplementary report dated 14 January 2015 was prepared by SORC. A further report was prepared by SORC dated 17 February 2015 which concluded that it would be appropriate to release Mr Potier to parole.

By letter dated 5 March 2015 Mr Potier asked the Parole Authority to defer consideration of parole “until the latter part of April 2015” due to pending matters before the Court of Criminal Appeal in which Mr Potier represented himself. On 12 March 2015 the Authority stood over the matter to 14 May 2015. On 8 May 2015 Ms Albertini interviewed Mr Potier. Her note recorded that she asked Mr Potier whether he “was intending on seeking his parole”, to which he is recorded as having responded “of course”. Consideration of his parole was further adjourned at his request. Correspondence ensued about the date for consideration of his parole, the details of which need not be set out.

At its meeting on 13 August 2015 the Parole Authority formed an initial intention pursuant to s 144 of the Act to release Mr Potier to parole and advised him of its initial intention by letter dated 19 August 2015. Mr Potier was interviewed by Benjamin Neville, a Community Corrections Officer, on 20 August 2015. Mr Neville recorded the following in his case note:

Ultimately there was a hearing before the Parole Authority on 2 October 2015. Mr Potier was represented by Will Hutchins, a senior solicitor at the Prisoners’ Legal Service. At the conclusion of the hearing on 2 October 2015 the Parole Authority issued a parole order in respect of Mr Potier and directed that he be released on parole no earlier than 16 October 2015 and no later than 23 October 2015. Later that day Mr Hutchins wrote to the Parole Authority taking issue with two conditions that had been imposed on the grant of parole. By letter dated 13 October 2015 the Parole Authority wrote to Mr Hutchins and confirmed that the conditions on the parole order would not be amended. The relevant conditions read as follows:

While he was in custody the plaintiff held a Bridging Visa: Migration Regulations 1994 (Cth), Sch 2 cl 050.211(7). Upon his release to parole, the visa expired: Sch 2 cl 050.515(c)(ii). Once his visa expired, the plaintiff became an unlawful non-citizen within the meaning of s 14 of the Migration Act. Upon his release to parole he was detained pursuant to s 189(1) of the Migration Act.

There was no criminal stay warrant in force in respect of Mr Potier as his application for such a warrant was refused (Potier v NSW Parole Authority [2015] NSWSC 1775 at [75]-[76] per Hall J) and his application for leave to appeal was dismissed (Potier v NSW Parole Authority [2015] NSWCA 391). On 15 December 2015 officers of the Department of Immigration and Border Protection removed Mr Potier from Australia to the United Kingdom.

Mr Potier submitted that:

The Commissioner submitted:

The Act requires the Parole Authority to consider whether a serious offender should be released on parole at least 60 days before the eligibility date (s 143). This obligation arises whether or not the offender has applied for parole.

The offender has a right to apply for parole under s 143A at any time within 90 days before the annual review date. If an application is made under s 143A, the Parole Authority must consider whether to release the offender to parole. The term “application” is not defined in the Act. The Act does not specify any formal requirements for an application for parole. There is no requirement, for example, for such an application to be in writing (cf. s 19).

The Act does not expressly confer a power on the Parole Authority to release an offender to parole in circumstances where the eligibility date has expired and the offender has not applied for parole. However, the provisions referred to above which impose a duty on the Parole Authority to consider release to parole ought not, in my view, be read as constraints on its power to consider, and to order, release to parole.

As set out above, s 126(2) provides that an offender is eligible for release on parole if he or she has served the non-parole period of the sentence passed. In my view, s 126(2), when read in the context of the Act as a whole and in particular Part 6, ought be read as providing not only for the circumstances in which an offender is eligible for release on parole but also as conferring a power on the relevant authority, the Parole Authority, to release an eligible offender to parole.

This interpretation is consistent with the wording of s 138(1AA) which provides for the period to be specified in a parole order made under s 138(1) and with the wording of s 151(1) which provides for the period to be specified in a parole order made under s 149 or s 150. Subparagraphs (a), (a1) and (b) of s 138(1AA) (for offenders other than serious offenders) and of s 151(1) (for serious offenders) are, in my view, intended to cover all cases. Subparagraph (a) provides for a grant of parole on and from the offender’s parole eligibility date; subparagraph (a1) provides for a grant of parole made “following an application by an offender”; and subparagraph (b) covers “any other case”. The reference to “any other case” in s 138(1AA)(b) and s 151(1)(b) provides a strong textual indication that Parliament intended that the Parole Authority had power (both to serious offenders and offenders other than serious offenders) to grant parole other than by reference to the parole eligibility date or as a result of an application by an offender.

This construction is consistent with the purpose of the statutory provisions (and is therefore to be preferred: s 33 of the Interpretation Act 1987 (NSW)). It is, in my view, of importance that the Act does not include the wishes of the offender in the list of matters which the Parole Authority is obliged to take into account in deciding whether to release an offender to parole. The reason for this is that the question whether an offender is released to parole depends on whether it is “appropriate in the public interest” that the offender be released and not on whether the offender wants to be released. It may well advance the object in s 2A(1)(d) of the Act for an offender to be released to parole even in the absence of an application. Such a grant of parole might aid the reintegration of an offender since, if an offender is not released until the expiry of the term of imprisonment, he or she does not have the benefit of such supervision as is provided to offenders on parole.

Section 48(1) of the Interpretation Act also bears on the question. It relevantly provides that if an Act confers a function on a body (the Parole Authority), the function may be exercised from time to time as occasion requires. When s 135 (which confers functions on the Parole Authority) is read with s 126, it produces the result that the Parole Authority has power to release an offender to parole at any time after the non-parole part of the total term has been served and the Parole Authority is satisfied that it is appropriate in the public interest to do so. The Parole Authority’s duty to consider whether to release an offender to parole at certain times (at least 60 days before the time the offender first becomes eligible for release on parole: s 137(1) and on the offender’s application: s 137A) is not inconsistent with the existence of a general power to release an offender to parole at other times, or, indeed, at any time.

The legislative history of s 143A is also instructive. Before s 143A was inserted (by the Crimes (Administration of Sentences) Amendment (Parole) Act 2004 (NSW), s 143(1) of the Act provided:

It can be seen that s 143 did not provide that an application for parole would trigger the obligation of the Parole Board (being the statutory predecessor to the Parole Authority) to consider whether an offender should be released on parole. Rather, the obligation arose on certain days or within certain periods, irrespective of an application. The “evil” which the insertion of s 143A was designed to address and the means whereby the purpose was to be achieved appear from the following extract from the Second Reading Speech (Hansard, Legislative Assembly, 27 October 2004, p 12098ff):

The extrinsic materials show that s 143A, which makes provision for consideration following an application, was inserted to protect the resources of the Board and to save the victims and their families the anguish of the prospect of release to parole, except at particular times. Its purpose was not to disempower the Parole Authority from releasing an offender to parole in circumstances where no application had been made.

The question whether an offender ought be released to parole is one for the Parole Authority. An offender may wish to remain in custody when it would be appropriate in the public interest that he or she be released but it is not for an offender to dictate the term of his or her custody beyond the expiry of a non-parole period. A sentence of imprisonment does not confer a right on an offender to be kept in custody until the expiry of the total term. Although the Act might have been worded more clearly, it is, in my view, plain that the Authority’s power to release an offender to parole cannot be controlled by the offender’s wish, either for parole or for continued incarceration.

Accordingly, even if Mr Potier ought not be taken to have applied for parole, the Parole Authority had power to release him to parole since he had served the non-parole period of his sentence and the Parole Authority was satisfied that it was appropriate to release him to parole.

In these circumstances it is not necessary to consider whether the parole order, even if it did not comply with the Act, is invalid or whether, as a matter of fact, Mr Potier actually applied for parole. However, in deference to the parties’ submissions I shall address the latter question.

It appears that the Parole Authority began considering whether to release Mr Potier to parole on the annual review date, although it had not received a written application from him. The evidence does not disclose any application, whether formal or informal, for release to parole. Nonetheless, as the chronology set out above indicates, Mr Potier did not demur from the proposition that he ought be treated as having applied for release to parole. Indeed, he complained at times that the consideration of his release to parole was not as fast as it ought to have been. He participated in interviews, the sole purpose of which was to determine whether release to parole was appropriate. Furthermore, his legal representative, Mr Hutchins, did not at any stage of the hearing on 2 October 2015 inform the Parole Authority that Mr Potier opposed parole.

The assumption (which would appear to underpin the Act) that an offender wants to be released does not appear to apply to Mr Potier who would prefer incarceration in New South Wales to liberty in the United Kingdom. However, he did not disabuse the Parole Authority of the correctness of such an assumption until after the parole order had been made and its consequences became apparent. Indeed he actively participated in the Authority’s assessment of whether it was appropriate that he be released. In my view, the evidence establishes that at least by the time of the hearing on 2 October 2015, Mr Potier had applied for parole.

The question whether relief ought be granted does not arise as Mr Potier has not established that the parole order did not comply with the Act. It is sufficient to note that a grant of relief under s 69 of the Supreme Court Act 1970 (NSW) in the nature of mandamus (as sought in the present case) depends on a defendant being under a relevant duty. There is no relevant duty to return Mr Potier to Australia. Although the Commonwealth Attorney-General has power to issue a criminal justice entry certificate under s 145 of the Migration Act, he has no duty to do so: see Animals’ Angels e.V. v Secretary, Department of Agriculture [2014] FCAFC 173; 228 FCR 35 at [48]-[62] per Kenny and Robertson JJ. Further, although the Commonwealth Attorney-General may seek Mr Potier’s return under s 40 of the Extradition Act, he has no duty to do so, it being a matter peculiarly within his discretion.

Accordingly, even if (contrary to my findings) the parole order did not comply with the Act and was invalid (a question unnecessary to decide), Mr Potier would not be entitled to any relief beyond a declaration, the utility of which has not been established.

For the foregoing reasons I make the following orders: