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Court of Criminal Appeal 19 October 2005

Parole Board of NSW v Shiagetz

[2005] NSWCCA 372

Public order & justice offences
DISPUTED FACTS ROLE OF PAROLE BOARD SENTENCE SERVED BEFORE APPEAL HEARD JURISDICTION OF COURT

Citation: Parole Board of NSW v Shiagetz [2005] NSWCCA 372
Court: New South Wales Court of Criminal Appeal
Date: 19 October 2005
Judge(s): Simpson J, Adams J, Johnson J

Background

The applicant had been a parolee whose parole was revoked following convictions entered against him in his absence, combined with concerns raised by his parole officer about his attitude and behaviour. He subsequently had those convictions annulled by the Local Court, with the fines substantially reduced on reconsideration.

Rather than granting parole following the annulment, the Parole Board adjourned or delayed making any decision on the application, pending the outcome of the Local Court proceedings. The applicant was eventually released unconditionally on 8 September 2005, having served his sentence in full before his appeal reached the Court of Criminal Appeal.

The applicant brought proceedings under s 155 of the Crimes (Administration of Sentences) Act 1999, seeking a direction that the information upon which the Parole Board acted was false, misleading, or irrelevant.

  • Whether the Court of Criminal Appeal retained jurisdiction under s 155 of the Crimes (Administration of Sentences) Act 1999 to review the Parole Board's decision once the applicant's sentence had been fully served.
  • Whether the Parole Board's adjournment or delay in determining the parole application could constitute a "decision that an offender should not be released on parole" within the meaning of s 155(1)(a), and therefore engage the Court's jurisdiction.
  • Whether the Parole Board's failure to place relevant material before the Court presented an additional procedural obstacle.

Decision

Adams J (with Simpson and Johnson JJ agreeing) held that the Court's jurisdiction under s 155 had lapsed. The power to give directions to the Parole Board presupposes that the Parole Board still has a role to play with respect to the offender. Because the applicant had completed his sentence and been released unconditionally before the hearing, the Parole Board had no further role, and there was no utility in the Court exercising any direction-making power.

On the question of whether a delay or adjournment could count as a "decision" for the purposes of s 155, Adams J expressed a preparedness to treat such a delay as constituting a decision that the applicant "should not be released on parole." The mere fact that the Parole Board had not made a final determination would not, on that reasoning, automatically preclude the Court's jurisdiction. However, this observation did not alter the outcome, given the separate jurisdictional bar arising from the sentence having been fully served.

Adams J also noted that the Parole Board had failed to place before the Court the information upon which it had based its decisions, nor the terms of those decisions. The Court observed plainly that this material ought to be provided in every application of this kind, though the omission was of no practical consequence given the jurisdictional position reached.

The application was accordingly dismissed, with Adams J acknowledging the applicant's complaints had not been meaningfully ventilated, though noting the Prisoners Legal Service solicitor had raised most of them at the Parole Board hearing on 7 April 2005.

Orders Made

  • Application dismissed.

Key Takeaways

  • Under s 155 of the Crimes (Administration of Sentences) Act 1999, the Court of Criminal Appeal's power to give directions to the Parole Board presupposes that the Board retains a continuing role with respect to the offender. Once a sentence has been fully served, that jurisdiction lapses.
  • Adams J indicated a preparedness to treat an adjournment or delay in determining a parole application as a "decision that an offender should not be released on parole" for the purposes of s 155(1)(a), so that mere delay would not automatically defeat the Court's jurisdiction.
  • No error was established in the outcome, but the Court of Criminal Appeal stated that the Parole Board is required to place before the Court, in every s 155 application, the information upon which it acted and the terms of its decisions.
  • In dismissing the application, the Court noted the practical reality that where a sentence is served before an appeal can be heard, a genuine grievance about the Parole Board's conduct may go unresolved.

Legislation and Cases Referenced

Legislation:
- Crimes (Administration of Sentences) Act 1999 (NSW), s 155

Cases cited: None cited in the provided text.