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Supreme Court 4 September 2001

Laurente v Parole Board

[2001] NSWSC 729

Theft & propertyPublic order & justice offences
PLAINTIFF FAILED TO REPORT

Citation: Laurente v Parole Board [2001] NSWSC 729
Court: Supreme Court of New South Wales
Date: 4 September 2001
Judge(s): McClellan J

Background

The plaintiff had been convicted of two counts of robbery in company and sentenced to two years' penal servitude on each count, served concurrently by way of periodic detention commencing December 1999. He failed to report on three or more occasions without leave, and the Parole Board revoked his periodic detention order in June 2000 under s 163(1) of the Crimes (Administration of Sentences) Act 1999 (NSW). He was not taken into custody until April 2001.

In May 2001, the plaintiff appeared before the Parole Board for a review hearing. The Board confirmed the revocation of the periodic detention order. The plaintiff's solicitor also asked the Board to consider directing that the remainder of the sentence be served by home detention, as permitted by s 165 of the Act.

The Board refused, on the basis that it had no power to make such an order. The plaintiff then sought an order in the nature of mandamus in the Supreme Court, seeking to compel the Board to exercise its discretion under s 165.

  • Whether the Parole Board correctly construed s 165(1) of the Crimes (Administration of Sentences) Act 1999 when it held it had no power to order home detention.
  • Whether the 18-month threshold in s 165(1) refers to the remainder of the sentence at the time the periodic detention order is revoked, or at the later time when the Board actually considers a home detention order.
  • Whether, under the plaintiff's proposed construction, the Board was obliged to consider adjourning its proceedings to allow time to pass so that less than 18 months would remain on the sentence.

Decision

McClellan J found that the Board's original reason for refusing was wrong. The Board had held that because the plaintiff's original sentence exceeded 18 months, it had no power at all to order home detention. His Honour rejected this reasoning as clearly erroneous, noting the provision is plainly intended to apply to offenders whose original sentences exceeded 18 months but who have 18 months or less remaining.

However, his Honour also rejected the plaintiff's proposed construction. The plaintiff argued that the 18-month remainder should be assessed at the time the Board makes the home detention order, not when the periodic detention order is revoked. This, it was submitted, would allow the Board to adjourn proceedings until sufficient time had elapsed. McClellan J found that construction produced uncertain and potentially capricious outcomes: eligibility would depend on administrative accident, namely whichever date the Board happened to be sitting.

The correct construction, in his Honour's view, is that the Board may only consider home detention where, at the date the periodic detention order is revoked, the offender has 18 months or less remaining on the sentence. This approach gives the provision certainty of operation and ties eligibility to the offender's own conduct at the time of the breach, rather than to the Board's scheduling.

His Honour acknowledged a practical consequence: the remainder of a sentence may be greater at the time of revocation than when a home detention order is eventually made. He accepted this, finding that a home detention order made under the correct construction would simply operate on the balance actually remaining at the date it is made.

Orders Made

  • The summons was dismissed.
  • No order as to costs.

Key Takeaways

  • The Parole Board's construction that an original sentence exceeding 18 months entirely precluded a home detention order under s 165(1) was rejected as clearly erroneous.
  • Under s 165(1) of the Crimes (Administration of Sentences) Act 1999, eligibility for home detention is determined by reference to the remainder of the sentence at the date the periodic detention order is revoked, not at some later date when the Board considers the matter.
  • A construction that would allow eligibility to depend on the Board's administrative scheduling was rejected as producing capricious and unprincipled results.
  • Where a home detention order is made under s 165, it takes effect on the balance of the sentence remaining at the date of the order, even if that balance is less than the period remaining at the time of revocation.
  • In dismissing the summons, the Supreme Court nonetheless corrected the Board's mistaken legal reasoning, clarifying the proper scope of the s 165(1) discretion for future applications.

Legislation and Cases Referenced

Legislation:
- Crimes (Administration of Sentences) Act 1999 (NSW), ss 7, 163(1), 165(1), (2), (3)

Cases:
- Smith v Commissioner for Corrective Services (1980) 147 CLR 134 (High Court authority on construing ambiguous provisions in favour of offenders, raised in argument but not determinative)