Background
On 4 June 2009, the plaintiff, a convicted offender eligible for parole from 5 May 2009, sought orders from the ACT Supreme Court for the Sentence Administration Board to immediately consider his application for parole.
The proceedings were brought as an originating application under s 40C of the HRA and involved s 18 of the HRA.
Decision
While the matter was settled out of court, his Honour found the plaintiff’s application “was, in substance, successful”( at 21). Chief Justice Higgins ordered that the respondent pay the plaintiff’s costs of the proceedings.
Reasoning
In this brief decision, his Honour recounted the events that transpired between the plaintiff and the respondent from the time the plaintiff sought consideration for parole. After the plaintiff’s application was made to the Court, the Sentence Administration Board heard the plaintiff’s parole application and granted him parole. As the matter was settled out of court, his Honour made no reference to the abovementioned sections of the HRA in his judgement.
In his reasoning, his Honour acknowledged that “there are some statutory constraints upon the Board which would render it impossible to decide an application for parole immediately upon receipt” (at 17). Section 124 of the Crimes (Sentence Administration) Act 2005 (ACT) provides no less than seven days from notification to a victim of the application, for him or her to make a submission in response. Also, section 125 provides the offender with 14 days in which the make a submission.
While his Honour noted that it was practice for the Sentence Administration Board to hear applications in the order they were received, he also noted that “the parole eligibility date is of central importance”, and that a decision on granting parole should be determined at the earliest to this date. Chief Justice Higgins considered that this rendered the Board’s practice of ‘first in, first serve’ unsustainable. His Honour acknowledged this was ‘the initial impression the Board conveyed’ (at 20) and was disavowed by the Board hearing the Plaintiffs parole application at an earlier date than it had first scheduled. Consequently, his Honour considered “the plaintiff’s application was, in substance, successful’ (at 21).
Comment
This is the second reported decision involving the new direct right of action in s 40C of the HRA, which commenced on 1 Jan 2009. |
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