//
[2018] QSC 175
General information, not legal advice.
Supreme Court of Queensland
2018-08-03
Burns J
Original judgment source is linked above.
For the reasons set out in this letter and its previous letter to you the Board decided that you would be an unacceptable risk to the community on a parole order at this time and your application has been declined.
The Board consents to you lodging a new application with the Board at any time six (6) months from the date of this decision, that being six months from 16 November 2017."[19]
[22] Subsequently, on 23 November 2017, the Board received a letter from the applicant requesting a statement of reasons and these were provided by letter dated 7 December 2017.[20]
[23] The statement of reasons contains a list of material considered by the Board in reaching its decision to refuse parole. It includes Ministerial Guidelines issued to the Board on 3 July 2017.[21] The various submissions and supporting material supplied by the applicant, including the report prepared by Ms Jokic on 30 January 2017 and two successive versions of the applicant's Relapse Prevention Plan (dated 30 January 2017 and 26 October 2017 respectively), also appear on the list.
[24] The statement of reasons records the Board's findings of fact: that the applicant became eligible to apply for parole on 30 July 2017; that he had gained numerous certificates of completion for courses undertaken whilst in custody; that he had been approved for transfer to New South Wales if admitted to parole; that he had demonstrated poor custodial behaviour during the time he had been in custody; that he had outstanding treatment needs; and that he posed an unacceptable risk to the community and was not a suitable candidate for parole.[22]
[25] As to the applicant's custodial behaviour, although it was noted that he had not been involved in any violent incidents since he was sentenced, the Board took the view that it was entitled to consider his custodial behaviour as a whole when assessing his risk of recidivism. The Board was concerned that the applicant was "unable to maintain acceptable behaviour in a structured environment" and, further, expressed "concerns regarding [the applicant's] ability to uphold parole conditions which the Board is entitled to impose to ensure [his] good conduct or stop [him from] committing an offence".[23]
[26] It is apparent from the statement of reasons that the Board gave careful consideration to the report prepared by Ms Jokic on 30 January 2017. In fact, the Board relied on and accepted the findings contained in that report when arriving at its decision. In that regard, it was noted that the applicant had a "long history of behavioural difficulties, namely, impulsivity, aggression, and a high level of frustration", that he had "not gained any benefit from [his] current and past incarceration, and if anything, it has added to [his] anger and inability to behave appropriately".[24] The Board recorded that the applicant had "the ability to be rehabilitated and taught the skills to reduce [his] impulsivity, to address the anger and to address [his] past behaviour relating to domestic violence ...".
"The Board considered your fulltime release date of 29 January 2021. The Board considered whether any conditions of parole could be imposed that would effectively mitigate the level of risk you may pose to the community, if you were released on a parole order at this time. The Board also considered the standard parole conditions that may be imposed by way of a parole order. The Board formed the view that the level of risk you pose to the community at this time, is such that it cannot be mitigated by way of standard parole conditions imposed by way of parole order. The Board was not satisfied that a sufficient level of supervision could be provided to you on a parole order. In forming this view, the Board was also conscious of the level of resources reasonably available to monitor such parole conditions and the level of monitoring that would be required in your case."[37]
[32] Lastly, the Board stated that it "did not consider it appropriate to indicate whether there are any improvements or activities which would be likely to reduce the risk" to the community.[38] It is however to be observed that, contrary to that statement, the Board did indicate that the successful completion of the CSCP was an important step in the applicant's rehabilitation and that satisfactory completion of it "would give the Board confidence that [the applicant] will be a lower risk to the community".[39] It is therefore difficult to understand why such a statement was made, although it is possible that the Board was acting under the misapprehension that it had a duty to decide whether to give such an indication and resolved not to do so beyond what it recorded regarding the desirability of the applicant completing the CSCP. The Board had such a duty under previous versions of the Ministerial Guidelines,[40] but that is no longer the case.[41]
[33] Prior to the decision of the Board to refuse parole, the applicant commenced the CSCP at the Woodford Correctional Centre and, between 16 October 2017 and 20 February 2018, he completed the first two stages of that program. However, the applicant was unable to continue the program because he was moved from the Woodford Correctional Centre for "the security and good order of the centre".[42] He was transferred to the Maryborough Correctional Centre. An exit report recorded that, from the commencement of the program, the applicant "appeared reluctant to engage in the requirements for successful completion".[43] Although he maintained an acceptable rate of attendance, it was thought that the applicant was "difficult to engage during sessions and tutorials".[44]
[34] In a letter the applicant wrote to Offender Rehabilitation and Management Services, which was received on 23 April 2018, he asked that he be allowed to complete the remainder of the CSCP. On 6 June 2018, a representative from the Offender Intervention Unit interviewed the applicant to "consider the options available to [him] to complete" the CSCP.[45] Then, in a letter from ORMS on 20 June 2018, the view was expressed that the applicant lacked "treatment readiness" and, for that reason, he was encouraged to participate in the Turning Point Program (TPP) as a precursor to completing the CSCP. What transpired after that is unclear on the material before the court but, as it turns out, the applicant was not required to undertake the TPP but was instead allowed back into the CSCP. On current indications, he will complete that program at some time this month.[46]
[35] As earlier mentioned, the Board consented to the applicant lodging a fresh application for parole after six months had elapsed from the date of its decision.[47] On 16 May 2018, the applicant did lodge a fresh application but, as at the date of the hearing of this application, it had not been considered by the Board.
[36] According to the application filed on 23 January 2018, the grounds advanced to support a statutory order of review were stated to be:
"Taking irrelevant considerations into account and failing to take a relevant consideration into account: that there was a (NSW) parole transfer approved and any (NSW) corrections program offered in the community, or my [psychologist's] offer may reduce the risk to the community to be acceptable if imposed [and] also that procedures that were required by law to be observed in relation to the making of the decision were not observed that the decision involved a error of law".
[37] In the affidavit sworn by the applicant in support of his application,[48] he asserted that he will not be an unacceptable risk to the community if released on parole and his parole is transferred to New South Wales. He expressed a number of reasons why that will be so, and those reasons (along with others) were later elaborated in a series of 15 points contained in an amended summary of argument filed on 16 July 2018. Otherwise, the applicant complained that the Board had a "possible conflict of interest"[49] (again, elaborated in the amended summary of argument) and referred to developments since the decision to refuse parole was made (such as his participation in the CSCP).
[38] So far as the grounds for review set out in his application are concerned, the applicant maintained in his supporting affidavit filed with the application that the Board:
"... forgot alternatives and positives as [to] what parole conditions (NSW) could offer as approved, and my [psychologist's] offering of support in (NSW) and community courses in (NSW) if parole granted ...
My supports and sponsors in (NSW) with my approved (NSW) parole transfer, and the community courses there in (NSW) and my treatment offering in report, Tatjana Jokic, my mental health my need to rehabilitate in [the] community and utilise NSW parole's services for rehabilitation at court regime expense and referrals."[50]
[39] Lastly, in written submissions prepared by the applicant on 24 January 2018,[51] he submitted that the "main focus of [his] argument" was based on a principle to be derived from the decision of the Court of Appeal in Queensland Parole Board v Moore[52] to the effect that it is both relevant and necessary for the Board to take into account, and weigh, the relative risks of discharging the prisoner at or towards the end of his sentence or of giving him earlier supervised release on parole.[53] In support of that argument, the applicant sought to rely on Ms Jokic's report, contending that it established he would benefit from a longer rather than shorter period of parole during which the treatment recommended in that report could be provided.
[40] By s 180 of the Corrective Services Act, an application for parole may be made if the prisoner has reached his or her parole eligibility date in relation to the relevant period of imprisonment. However, unless the sentencing court fixes a parole release date pursuant to s 160B of the Penalties and Sentences Act, a prisoner has no right to release on parole. Instead, although the prisoner will have become eligible for release on parole, it is for the Board to decide whether to grant the application: Corrective Services Act, ss 193(1)(a) and 217(a). Indeed, when deciding whether to grant parole, the Board is not bound by the recommendation of the sentencing court or the parole eligibility date fixed by the court if the Board receives information about the prisoner that was not before the court at the time of sentencing (such as a psychologist's report obtained during the period of imprisonment) and, after considering that information, considers that the prisoner is not suitable for parole at the time recommended or fixed by the court: Corrective Services Act, s 192.
[41] That made clear, of the grounds identified in the application, the supporting affidavit, the written submissions and the amended summary of argument to which I have referred (at [36] to [39]), two may immediately be put to one side, namely: (1) the procedures required by law to be observed in relation to the making of the decision were not observed; and (2) the decision involved an error of law. Neither ground was sought to be developed beyond their inclusion in the grounds expressed in the initiating application and nor was there any support for either of them in the material.
"The limited role of a court reviewing the exercise of an administrative discretion must constantly be borne in mind. It is not the function of the court to substitute its own decision for that of the administrator by exercising a discretion which the legislature has vested in the administrator. Its role is to set limits on the exercise of that discretion, and a decision made within those boundaries cannot be impugned."[61]
[44] So, too, is it useful to record that a great deal of the material and submissions relied on by the applicant concerned events after the date on which the decision under challenge was made. Evidence of facts occurring after the decision is not generally admissible in a proceeding such as this, the parties being limited to the material that was before the decision-maker. The admission of such evidence would risk drawing the court into an impermissible review of the merits of the decision but, even were that not the case, where the ground of review is that the decision was an improper exercise of the power conferred on the Board in the sense that relevant considerations were ignored, it almost goes without saying that such a criticism is incapable of being levelled at the Board in the case of any facts that were not in existence when the decision was made.
[45] The discretion conferred on the Board by s 193(1)(a) of the Corrective Services Act to grant or refuse an application for parole is a broad one, unconstrained by any statutory prescription. The question whether a consideration is relevant or irrelevant in the sense in which those terms are used in ss 23(a) and 23(b) of the Judicial Review Act depends upon the proper construction of the statute conferring the power to make the decision, that is to say, the Corrective Services Act. To the point, a consideration will be irrelevant within the meaning of s 23(a) only if, on the proper construction of the , the decision-maker is precluded from taking that consideration into account. Likewise, a consideration will be a relevant consideration within the meaning of only if, on the proper construction of the , the decision-maker is bound to take it into account. Precisely what matters the decision-maker is bound to take into account will fall to be identified from the statute conferring the power, either expressly or by implication from "the subject-matter, scope and purpose of the Act".
[53] For these reasons, the applicant has failed to demonstrate that the decision under challenge was affected by any reviewable error.
[54] It follows that the application must be dismissed.
[55] I will hear the parties on the question of costs.
[1] Judicial Review Act 1991 (Qld), ss 20(2)(e), 23(a) and 23(b). Other grounds of review were advanced by the applicant but, for the reasons later expressed (at [41] to [44]), they were either not developed in submissions or were not supported by the material before the court.
[2] Affidavit of Menaka Wickramasinghe filed on 16 March 2018, Ex MW-31, p 2.
[11] Wickramasinghe, Ex MW-25, p 4. The CSCP is a "high intensity cognitive-behavioural intervention that aims to reduce violent and general offending in high-risk adult offenders": See affidavit of the applicant filed on 23 January 2018, Ex D-7.
[15] Wickramasinghe, Ex MW-5, pp 1-2.
[40] See Calanca v Queensland Parole Board [2017] 1 Qd R 1, [46].
[41] When the decision under review in Calanca was made, the operative Ministerial Guidelines were those issued on 23 August 2012. Paragraph 5.6 of those Guidelines provided that: "When an application is refused and reasons for the refusal are given, the response should also give an indication to both the prisoner and Queensland Corrective Services of the improvements or activities that would be of benefit in reducing the risks posed to the community by the prisoner." The combined effect of paragraph 5.6 and what was then s 227(1) of the Corrective Services Act (see now s 242E) was that the Board had a duty to decide whether to give such an indication. See Calanca, [46]-[47], [49]. However, the Ministerial Guidelines that applied to the decision under consideration in this case were issued on 3 July 2017 and do not contain what was previously paragraph 5.6, or anything like it. See Wickramasinghe, Ex MW-17.
[42] Exhibit 2. Reference is made in the exit report to two incidents, but there is no further elaboration. In a letter to the applicant from the Director, Offender Rehabilitation and Management Services dated 20 June 2018 (Exhibit 3), the following is recorded:
"It is noted that due to a range of circumstances, including breach related activity you were transferred from Woodford Correctional Centre for the good order and security of the correctional facility. This disrupted your program participation in the CSCP".
[51] Filed on 7 February 2018. Supplemented by a further document dated 9 February 2018 and received as Exhibit 4.
[58] Attorney-General (NSW) v Quin (1990) 170 CLR 1, 35-36.
[59] Wall v Central and Northern Queensland Regional Parole Board [2013] QSC 129, [16].
[62] See Minister for Aboriginal Affairs & Anor v Peko-Wallsend Ltd & Ors [1986] HCA 40; (1986) 162 CLR 24, 39-41.
[65] And see Calanca v Queensland Parole Board [2013] QSC 294 where Margaret Wilson J said (at [31] - [34]):
"There are several inter-related factors at play in the determination of an application for parole.
Parole involves serving the balance of a term of imprisonment in the community, subject to supervision, and with the prospect of having to return to custody in the event of further offending or other breach of the conditions of the parole. Where an offender is serving a fixed term of imprisonment, parole can effectively be a form of graduated release. That cannot be so where a prisoner has no prospect of full-time release because he is serving a sentence of life imprisonment.
A parole board has to assess what effect a prisoner's release on parole would have on community safety and crime prevention, both at the time of his release and in the future. Rehabilitation of an offender is a means of attaining community safety and crime prevention. The extent of a prisoner's progress towards rehabilitation whilst in custody may be some indication of how he will perform if released on parole.
The orderly management of prisons is another means of attaining community safety and crime prevention. The principled determination of parole applications in accordance with a regime that is fair to prisoners is conducive to good behaviour by persons in custody, as well as to their rehabilitation."
[66] Wickramasinghe, Ex MW-17, par 2.1.
[67] Calanca v Queensland Parole Board [2017] 1 Qd R 1, [43].
[68] Wickramasinghe, Ex MW-24, pp 2-3.
[71] [2008] QSC 222, [65] to [73].
[78] Judicial Review Act, ss 20(2)(e) and 23(g).
Boyy
Parole Board Queensland [2018] QSC 175
Calanca v Queensland Parole Board [2013] QSC 294, cited
Gough v Southern Queensland Regional Parole Board [2008] QSC 222, discussed
McGrane v Queensland State Parole Board [2010] QSC 209, discussed
Minister for Aboriginal Affairs & Anor v Peko-Wallsend Ltd & Ors [1986] HCA 40; (1986) 162 CLR 24, followed
Wall v Central and Northern Queensland Regional Parole Board [2013] QSC 129, followed
(1990) 170 CLR 1
(1986) 162 CLR 24
[27] The applicant's outstanding treatment needs were then the subject of considerable focus in the statement of reasons. The Board considered the applicant's "history of violent offending"[26] as well as the sentencing remarks made by Clare SC DCJ. After doing so, the Board formed the view that the applicant had "the propensity to be violent and to date, [his] identified needs remain untreated and outstanding".[27] The Board was "not confident" that, without intervention, the applicant would not engage in violent behaviour if released into the community.[28]
[28] The Board noted that it had been recommended that the applicant complete the CSCP and considered that, in light of his outstanding treatment needs, the completion of that program was "necessary"[29] before the applicant could be considered to be a suitable candidate for parole. The Board also expressed the view that the CSCP would be "of practical assistance to [the applicant], educating [him] on how to avoid crime, violence or harmful behaviour".[30] Because the applicant had not, to that point in time, participated in the CSCP, the Board was of the opinion that the applicant's "violence offending behaviour remains unaddressed [sic]".[31] Whilst the Board accepted the submissions made by the applicant to the effect that the waitlist for the CSCP was "long", it remained of the view that the successful completion of that program was "an important step in [the applicant's] rehabilitation" because satisfactory completion of it "would give the Board confidence that [the applicant] will be a lower risk to the community".[32]
[29] So far as the applicant's Relapse Prevention Plan were concerned, the Board considered the version dated 30 January 2017 and noted that the applicant had been requested to revisit it with a view to addressing his particular needs as well as identifying adequate strategies. It considered that the applicant might be in a better position to do so following the completion of the CSCP. It also noted that, at its meeting on 16 November 2017, the updated Relapse Prevention Plan dated 26 October 2017 was "thoroughly considered"[33] but determined that there was "no new information contained within that document which would alleviate the Board's concerns" that had been expressed in relation to the earlier version.[34] In that regard, the Board recorded that the earlier version "demonstrated minimal insight into [the applicant's] "triggers" for [his] offending and did not articulate realistic plans to mitigate [his] risk of reoffending upon release".[35]
[30] The Board recorded as a favourable feature of the application that the applicant had completed a number of courses whilst in custody, but it was not satisfied that the risk he posed to the community was "sufficiently mitigated ... by the completion of [those] courses".[36]
[31] The Board considered whether conditions of parole could be imposed such that the level of risk the applicant posed to the community could be reduced to an acceptable level. As to this, the statement of reasons contains the following:
[42] The remaining grounds were to the effect that the making of the decision was an improper exercise of the power conferred on the Board by s 217 of the Corrective Services Act because, it was argued, the Board acted on irrelevant considerations and/or failed to take relevant considerations into account. In that regard, and like the grounds just considered (in [41]), the applicant failed to identify any irrelevant considerations that were taken into account by the Board. Instead, the main thrust of his argument was that the matters extracted above (at [36] and [38]) were relevant to the decision whether to grant or refuse parole but, despite that, were not taken into account by the Board.[56]
[43] It is also to be observed that much of the applicant's argument, and a not insignificant part of the material, went to the merits of the Board's decision. But, as the court attempted to explain to the applicant during the course of the hearing,[57] it is not permissible in a proceeding such as this for the court to engage in a merits review. The scope and purpose of proceedings under the Judicial Review Act is to ensure that powers are exercised for the purposes for which they were conferred and in the manner in which they were intended to be exercised. It is the extent of the power and the legality of its exercise to which judicial review is directed.[58] As such, it is "no part of the court's role to second-guess decisions of the Board made regularly under its charter".[59] As Mason J stated in Minister for Aboriginal Affairs & Anor v Peko-Wallsend Ltd & Ors:[60]
[46] Parole is an integral part of the overall regime under the Corrective Services Act, the purpose of which is "community safety and crime prevention through the humane containment, supervision and rehabilitation of offenders".[64] It follows that, to the extent that a particular consideration is relevant to that statutory purpose, the Board is bound to take it into account. Thus, by way of example, a consideration that impacts, one way or the other, on the rehabilitation of the offender will be a relevant consideration which the Board must take into consideration in the exercise of the power conferred on it to either grant or refuse parole.[65] Likewise, where the Ministerial Guidelines prescribe factors to which the Board should have regard, as they do in this case,[66] each of those factors (where relevant) must also be taken into account.[67] In all such cases, however, it is a matter for the Board to decide what weight is to be given to the consideration in question.
[47] I turn now to the specific matters relied on by the applicant.
[48] I deal first with the matters extracted above (at [36] and [38]). They are to the effect that the Board failed to take into consideration that: (1) the transfer of the applicant's parole (if granted) to New South Wales had been approved; (2) conditions could be imposed on his parole to progress his rehabilitation in New South Wales, whether through community courses or otherwise; and (3) his rehabilitation in the community would be further supported by Ms Jokic as well as his other "supports and sponsors". Even the most cursory examination of the statement of reasons reveals that each of these matters was taken into account by the Board when considering the application for parole. The Board was well aware that the interstate transfer of the applicant's parole had been approved and it gave particular attention to the question whether conditions of parole could be imposed in New South Wales that would mitigate the level of risk that the Board believed the applicant posed to the community. In this regard, the applicant was requested in earlier correspondence from the Board to provide an updated Relapse Prevention Plan and, although he did so, he failed to provide any meaningful detail regarding how he proposed to engage with services and agencies in New South Wales to assist with his ongoing rehabilitation. Of course, what the applicant did provide was Ms Jokic's report and it does constitute something of a roadmap for the provision of assistance to the applicant if released on parole in that State. Amongst other things, Ms Jokic brought to the Board's attention the existence of "a number of strong supports" who would be in position to assist the applicant, her willingness to meet with the applicant to "re-assess his current needs and provide the relevant therapy as required" and his capacity to "gain assistance re-connecting with local service providers and community supports in New South Wales".[68] The desirability of referral to a psychologist for assessment and "therapeutic intervention" was highlighted in the report, as was Ms Jokic's opinion that the applicant is capable of being rehabilitated and taught skills to reduce his impulsivity, and to address his anger and past behaviour relating to domestic violence. But, as is apparent from the statement of reasons, all of these matters were considered by the Board along with the applicant's revised Relapse Prevention Plan but, having done so, it was left unsatisfied that a sufficient level of supervision could be provided to the applicant on a parole order such that the risk he posed to the community would be reduced to an acceptable level. In forming that view, the Board was also conscious of the level of resources reasonably available to monitor the applicant's compliance with parole conditions. Plainly, the Board was concerned that the applicant was someone who had outstanding treatment needs and, based on the information available to it, considered that completion of the CSCP will be a necessary step towards addressing that concern. Given the circumstances of the subject offending, the applicant's earlier performance in custody and the opinions expressed by Ms Jokic to the effect that the applicant requires assistance (including psychological treatment), it was by no means unreasonable for the Board to form that view.
[49] In the end, the question for the Board was whether it should require the applicant to address his offending behaviour whilst in custody in Queensland (through the completion of the CSCP and such other steps as might be considered appropriate) or accede to the applicant's request that he be released to parole and receive assistance (and treatment) to the same end whilst in the community in New South Wales. It is clear from the statement of reasons that the Board squarely addressed that question and, in the course of doing so, took into account each of the matters the applicant now complains that it overlooked. Also, by doing so, the Board took into account, and weighed, the relative risks of discharging the applicant at or towards the end of his sentence or of giving him earlier supervised release on parole and, as such, it cannot be said that the error which led to success for the prisoner in Queensland Parole Board v Moore[69] was repeated in this case.
[50] As to the 15 points contained in an amended summary of argument filed on 16 July 2018, and adopting the same numbering:
[51] Like the grounds of review set out in the application, supporting argument and submissions, there is no substance in any of the points contained in the amended summary of argument.
[52] For the sake of completeness, a number of the arguments raised in the fifteen points as well as the various other submissions made by the applicant deal with the merits of the Board's decision. For example, in a submission dated 9 February 2018,[77] the applicant referred to an inability on his part to "achieve a low security classification". In considering all of these matters, either individually or collectively, the decision of the Board to refuse to grant the applicant parole is not rendered so unreasonable that no reasonable person could have so decided.[78] This ground of review was not raised by the applicant, but in the course of determining this case I have considered it.