Chalkley v Southern Queensland Regional Parole Board [2016] QSC 236

[1] The applicant was diagnosed with leukaemia in 2011.

[2] On 27 August 2015:

• (a) The applicant was sentenced by a Magistrate to a period of two years' imprisonment for assault, resisting or wilfully obstructing a police officer, and supplying dangerous drugs, namely cannabis.
• (b) The learned Magistrate made these observations:

The agreed facts in relation to that supply indicate that the supply, in substance, occurred between the 4th of December 2013 and the 9th January 2014. It is clear that the amounts involved in the supply were substantial and that you were contributing sums in the vicinity of 4000 and 5000 dollars, to be used to contribute along with others' money to purchase cannabis in bulk from [sic] which you would take the share you had purchased. So that there is certainly a considerable engagement in very serious cannabis supply. And in determining the penalty, I have taken into account the period of time over which the offending occurred and the quantity of cannabis involved so far as it can be ascertained from the facts before the Court. And certainly that sort of supply on that sort of level does warrant the imposition of a substantial custodial sentence.

There are significant mitigating factors operating in relation to this matter. One of the most significant aspects is your adverse health and its association with the offending for which you are before the Court today. In this regard, you were diagnosed in 2011 with acute lymphoblastic leukaemia, and the prognosis initially was extremely poor but aided by having undergone a stem cell transplant thanks to the donation of your brother. The most recent medical report in relation to that indicates that following that transplant you developed something described as chronic graft versus host disease. And this affected your skin, mouth, eyes and liver, characterised by solerodermatous changes over your back, flanks and legs and significant lipinoid changes in your mouth and significant eye symptoms.

This condition was treated with a high dose of steroids, and this caused stabilisation of the graft versus host disease but also resulted in significant steroid side effects involving physical appearance, development of diabetes and hypercholesteremia. You've been slowly weaned off the steroid use but you remain on ongoing immune suppression for therapy of your chronic graft versus host disease. That disease - the report which is of Associate Professor Glen Kennedy, a haematologist, states that you clearly have chronic disease with associated chronic disability and associated psychological issues related to your ongoing disability and overall prognosis. I am satisfied that any actual time in custody would be a much greater burden for you by reason of your diagnosis.

(c) The learned Magistrate considered a number of other matters before arriving at the sentence I have indicated.

(d) The learned Magistrate immediately released the applicant to Court-ordered parole subject to a number of conditions, including that the applicant not commit an offence.

[3] On September 2015 the applicant was charged with five offences:

• (a) unlawful trafficking in a dangerous drug, namely MDMA, the date of which was 5 November 2014 to 28 May 2015;
• (b) unlawful supply of a dangerous drug, namely cannabis, to another person, the date of which was 31 March 2015;
• (c) possession of two Blackberry devices in connection with the commission of a crime as defined in Part 2 of the Drugs Misuse Act 1986 (Qld), namely supply of a dangerous drug, the date of which was 23 September 2015;
• (d) possession of property, being a sum of money, reasonably suspected of being the proceeds of an offence defined in Part 2 of the Drugs Misuse Act 1986 (Qld), the date of which was 23 September 2015; and
• (e) importation of a marketable quantity of a substance being a border-controlled drug, namely 5-methoxy-N.Nmethylisopropyltryptamine, contrary to s 307.1(1) of the Criminal Code (Cth), the date of which was 18 December 2014.

[4] The charges were brought in circumstances of a search having been conducted on the applicant's residence following months of police surveillance of an alleged drug trafficking operation being conducted by the applicant and his associates. One of the BlackBerry devices found in the possession of the applicant, and seized, was found in a hidden compartment in the applicant's residence. Relevantly, both Blackberry devices located were Phantom Secure devices utilising an off-shore server, such that communications from those devices were unable to be intercepted by law enforcement agencies. The sum of money concerned was $21,800.

The applicant seeks bail in relation to a number of drug-related offences. He is required to show cause under section 16(3)(a) of the Bail Act because he is alleged to have committed an indictable offence while on bail for another indictable offence. However, he has shown cause as the respondent properly concedes by the particular circumstances of his health. I have signed the draft order for bail upon which I've summarised the reasons for the grant of bail as follows: as the respondent agrees there should be a grant of bail because of the applicant's serious medical condition which requires ongoing and specific care. That will be the order.

[10] The conditions of the Supreme Court bail included conditions that the applicant surrender any passport or exit visa and not apply for any passport or exit visa; that he not approach any point of international departure; that he not commit any further offences. And there was a residential and a curfew condition; a condition to not consume or possess any dangerous drugs unless prescribed, and a daily reporting condition. There was a condition that he not leave the State of Queensland, and not approach within 500 metres an international point of departure; that he not contact Prosecution witnesses; and that he submit to drug screening at the reasonable request of a police officer.

[11] On 12 October 2015 the Board considered the suspension decision by the chief executive, together with a board report dated 28 September 2015. Noting the serious nature of alleged crimes and their similarity to one of the index offences, the Board decided to suspend the applicant's parole for an indefinite period, pursuant to s 205(2)(c) of the Corrective Services Act 2006 (Qld), which I will refer to as the "CS Act". There is no evidence why the Board - despite the fact that it noted the existence of the Supreme Court bail - took what is in substance a different view to the view taken by the Supreme Court.

[12] The applicant was invited to show cause why the Board should change its decision by notice dated 13 October 2015.

[13] On 4 November 2015 the Board further considered the applicant's matter. It noted that the applicant had been granted bail on 30 October 2015, and requested a copy of the transcript. The Board decided not to vary its decision. There is no evidence, again, of why the Board decided to take a different view, in substance, to that taken by the Supreme Court.

[14] On 13 November 2015 the applicant's solicitors wrote to the Board in response to the Board's letter of 13 October 2015, enclosing a large amount of material for the Board's consideration. That letter stated that there were six primary bases which justify the conclusion that he has shown cause why his parole should not be indefinitely suspended. They were:

When Mr Chalkley came before the Supreme Court on his application for bail, he was required to show cause why his continued detention in custody was not justified, pursuant to section 16(3) of the Bail Act 1980.

The Supreme Court was provided with the very same material enclosed herein. The Crown tendered material containing Mr Chalkley's criminal record, which included the entry giving rise to the Parole Order.

The Crown conceded that in Mr Chalkley's unusual circumstances, particularly as regards his physical and mental health concerns, cause had been shown.

His Honour Justice McMurdo granted bail on strict conditions, commenting that the Crown's concession in the circumstances was a proper one particularly having regard to the circumstances of his health. Reference was made to Mr Chalkley's medical condition and requirement for ongoing and special care. We respectfully urge you to make a similar finding.

[16] On 26 November 2015 the Board again considered the applicant's matter and decided it would require further medical information. The Board requested an urgent report be provided advising whether Mr Chalkley could be adequately managed in custody having regard to the content of the submission it had received. By letter dated 30 November 2015 the Board acknowledged receipt of correspondence from the applicant's solicitor dated 13 November and informed them that it had requested a report from Queensland Health.

[17] On 8 December 2015 the Board requested a report be provided advising on eight separate matters concerning the applicant's medical condition.

[18] On 14 January the Board received a report from Dr Weber dated 11 January 2016 setting out the applicant's diagnosis and treating requirements and enclosing a further letter from the treating transplant physician. Relevantly, Dr Weber's report stated:

Strict compliance with medication is the most important facet of Mr Chalkley's care and this should be facilitated by the correctional centre. Mr Chalkley remains at increased risk of infective sequelae of his GVHD [chronic graft versus host disease] but I do not expect that this risk would be significantly increased should he remain in custody.

Because of the specialised nature of his care, Mr Chalkley is required to attend the Transplant clinic at the Royal Brisbane Hospital for regular reviews (currently every 6-8 weeks). These reviews may be needed more frequently should be [sic] develop an exacerbation of his GVHD symptoms. This expertise cannot be provided by health staff in the correctional system.

[19] On 25 January 2016, the Board further considered the applicant's matter, noting the report to which I have just made reference. The Board considered the serious nature of the alleged further offences and further medical information and decided not to vary its decision. It so informed the applicant by a letter dated 2 February 2016. The applicant, by a letter dated 20 March 2016, requested the Board provided a statement of reasons. The statement of reasons was provided to the applicant under cover of a letter dated 20 of March 2016.

[20] The structure of the statement of reasons is as follows.

[21] First, there are nine paragraphs under a heading "Introduction" which record, in broad compass, the events which occurred.

[22] Second, there is a heading "Evidence and other material upon which findings of fact were based" which lists 50 items identifying the evidence which was before the Board.

[23] Third, there is a section headed "Findings on material questions of fact" containing nine paragraphs of findings. In paragraph 6 of the findings, the Board found that it had, when it considered the applicant's matter on 4 November noted the applicant had been granted bail on 30 October 2015 and proceeded to make the finding that it had decided not to vary its decision. The next relevant finding was the finding of the fact that occurred on 26 November 2015, namely that the Board considered the matter and that it had requested a copy of the transcript of proceedings before McMurdo JA and that it noted the correspondence from the applicant's lawyers dated 30 November.

[24] Finally, the reasons for decision were then contained in the following two paragraphs, under the heading "Reasons for decision":

Based on the findings listed above, specifically that the Applicant was charged with committing an offence and having regard to the serious nature and similarity of the alleged offending to the applicant's index offences, the Board decided to indefinitely suspend the Applicant's court ordered parole order.

Further, taking into account advice received from Queensland Health regarding the management of the Applicant's medical condition and the reasons of Justice McMurdo on the Applicant's Application for Bail, the Board decided not to vary the decision to indefinitely suspend the order.

[25] The applicant has now filed an application for statutory order of review, relating to the Board's decision indefinitely to suspend his parole order. He advanced three grounds as follows:

(1) that the decision involved an unreasonable or improper exercise of power;

(2) that the decision involved exercising a discretionary power in accordance with a rule or policy, without having regard to the merits of a particular case, and

(3) that there had been breach of the rules of natural justice.

[26] I find it necessary to consider only the first ground on which the application is made.

[27] The applicant articulated this ground in the following terms:

The decision was unreasonable when considering the nature of the charges, the amount of time that has elapsed since the offences have been alleged to have been committed, the fact that the Applicant has been granted Supreme Court bail, the reasons the Supreme Court bail was granted, the reasons the Department of Public Prosecutions did not oppose bail and the medical evidence relating to the special treatment the Applicant requires.

[28] The ground upon which reliance is placed is that referred to in s 20(2)(e) of the Judicial Review Act 1991 (Qld), namely:

That the making of the decision was an improper exercise of the power conferred by the enactment under which it was purported to be made.

[29] The applicant, by his submissions, seemed to be resting his case on the ground referred to in s 23(g) of the Judicial Review Act 1991 (Qld), which provides:

In section 20(2)(e)...a reference to an improper exercise of power, includes a reference to:

(g) an exercise of a power that is so unreasonable that no reasonable person could so exercise the power.

[30] During the course of argument, I adverted to some other bases upon which the conclusion that the decision was an improper exercise of power might be founded.

[31] In particular, I drew counsel's attention to my discussion of authorities in Willis v State of Queensland [2016] QSC 80 at [62] and [63], in which I recorded a submission which had been advanced that I should infer that an impugned decision by a tribunal had been the subject of some error by reference to the evidence which had been accepted and the result which had been reached, and having regard to the nature of the reasoning exhibited by the tribunal.

[32] I referred, in other paragraphs of that judgment, to the law which informs the reasons which tribunals making decisions under an enactment must express. In Willis, I was dealing with an obligation to give reasons which was imposed by a section of the Workers Compensation and Rehabilitation Act 2003 (Qld). In this case, the Board's obligation to give reasons was imposed by the Judicial Review Act. Once the duty to give written reasons is imposed, s 27B of the Acts Interpretation Act 1954 (Qld) relevantly provides:

If an Act requires a tribunal, authority, body or person making a decision to give written reasons for the decision (whether the expression 'reasons', 'grounds' or another expression is used), the instrument giving the reasons must also -

(a) set out the findings on material questions of fact; and

(b) refer to the evidence or other material on which those findings were based.

[33] The law which I intend to apply in this case was adequately set out in Willis at [11] as follows:

[11] It is appropriate to interpolate some observations as to the content of the duty to give reasons and the significance of any failure by the tribunal to meet the requisite standard of reasons:

(a) Section 516 [The section in the Worker's Compensation and Rehabilitation Act which imposed the obligation to give written reasons] was considered specifically in Ergon Energy Corporation Ltd v Rice-McDonald [2009] QSC 213; [2010] 1 Qd R 516 by McMurdo J.

(b) At [13], his Honour referred with approval to observations by Muir JA, with whom Holmes JA and Daubney J agreed in Drew v Makita (Australia) Pty Ltd [2009] QCA 66; [2009] 2 Qd R 219, and in particular the passage as follows (at [58]):

"The rationale for the requirement that courts give reasons for their decisions provides some guidance as to the extent of the reasons required. The requirement has been explained, variously, as necessary: to avoid leaving the losing the party with a 'justifiable sense of grievance' through not knowing or understanding why that party lost; to facilitate or not frustrate a right of appeal; as an attribute or incident of the judicial process; to afford natural justice or procedural fairness; to provide 'the foundation for the acceptability of the decision by the parties and the public' and to further 'judicial accountability'."

(c) His Honour noted in the same paragraph that the tribunal with which his Honour was dealing was entitled to apply its own professional expertise in reaching its decision. That such a tribunal brings to bear its own expertise has been recognised in a number of cases. I refer in particular to Thompson v WorkCover Queensland [2002] QSC 119 per Cullinane J at [12] and York v The General Medical Assessment Tribunal [2002] QCA 519; [2003] 2 Qd R 104 at 110-111 per Jerrard JA Obviously, those observations apply with force to the tribunal in the current case.

(d) I also observe parenthetically that given the context within the Act that s 516 immediately follows s 515 and s 515 acknowledges the continued operation of the [Judicial Review Act], it seems to me to be appropriate to regard one of the purposes of requiring reasons is to facilitate, or at least not to frustrate, the right of review under that Act.

(e) I return to observations by McMurdo J in Ergon. At [15], his Honour referred with approval to the observations by the Victorian Court of Appeal in Masters v McCubbery [1995] VICSC 209; [1996] 1 VR 635, and in particular the following

"A medical panel is not required to do more than provide sufficient reasons to enable it to be seen by the court and the parties that it has arrived at its decision in accordance with its statutory functions ... As I have already pointed out they are required to do no more than to provide a succinct statement of why they came to the conclusions which they did sufficient to enable the parties and the court to see that they have addressed their mind to relevant matters and have not acted unreasonably ..."

(ii) per Callaway JA (at 661), that the reasons had to be given in sufficient detail:

"... to show the court and the worker that the question referred to the panel has been properly considered according to law and that the opinion furnished is founded on an appropriate application of the members' medical knowledge and experience."

(f) In Ergon, McMurdo J accepted that it would not be necessary for such a tribunal to express its reasons in the same way as would a court in a judgment. That would not matter if it could be seen that the tribunal had applied itself to the statutory task and had not reached a result that was unreasonable in the Wednesbury sense.

(g) I observe that I would not regard as inconsistent with the approach of McMurdo J the observations by the High Court in Wingfoot Australia Partners Pty Ltd v Kocak [2013] HCA 43; (2013) 252 CLR 480 at [48], that what is to be set out in the statement of reasons is the actual path of reasoning by which the tribunal arrived at the opinion it was required to form, and that that must be done in sufficient detail to enable the Court to discern whether the opinion does or does not involve any error of law.

(h) Notwithstanding the different legislative context between the present case and that considered by the High Court, it seems to me that s 516 must be interpreted as carrying with it that requirement. I note that the same view was reached in Griffin v State of Queensland [2016] QSC 43 per Douglas J at [20]. I note also that in Kocak the High Court specifically held that failure to meet the requisite standard of reasons would itself be an error of law by the tribunal: see Kocak at [28] and [55].

[34] The decision which the Board faced was a decision which it was given power to make by s 205(2) of the CS Act. That section provides:

(a) amend, suspend or cancel a parole order if the board reasonably believes the prisoner subject to the parole order -

(ii) poses a serious risk of harm to someone else; or

(iii) poses an unacceptable risk of committing an offence; or

(iv) is preparing to leave Queensland, other than under a written order granting the prisoner leave to travel interstate or overseas; or

(b) amend, suspend or cancel a parole order, other than a court ordered parole order, if the board receives information that, had it been received before the parole order was made, would have resulted in the parole board that made the order making a different parole order or not making a parole order; or

(c) amend or suspend a parole order if the prisoner subject to the parole order is charged with committing an offence.

[35] The CS Act also, in s 227 provides that the Minister may make guidelines about the policy to be followed by the board when performing its functions. That has been done and the guidelines were in evidence before me. Relevantly, s 6 of the guidelines provides:

6.1 If a prisoner on a parole order has been charged with a further offence, the Board should consider the suspension of the parole order and seek the prisoner's return to custody until a court determines the charge. Factors relevant to the exercise of any discretion may include the-

1. seriousness of the alleged offence;
2. circumstances surrounding the commission of the alleged offence;

1. prisoner's personal situation, including employment status;

1. prisoner's response to supervision to date; and
2. length of time needed to determine the outcome of the charge.

6.2 If a prisoner has failed to comply with their parole order or the parole order has been amended or suspended by the chief executive under section 201 of the Act, the Board should consider whether to amend, suspend or cancel the prisoner's parole order or cancel the chief executive's amendment or suspension. In considering whether to do so, the Board may take the following into account, the-

1. reasons for the chief executive's amendment or suspension (if applicable);
2. seriousness and circumstances surrounding the prisoner's failure to comply;

1. factors outlined in section 6.1 (c) and (d); and
2. whether the risk to the community would be greater if the prisoner does not spend a period of time on parole.

6.3 If the Board decides to amend a parole order, the Board may consider making additional conditions such as imposing curfew conditions.

6.4 If a prisoner on a parole order is unlawfully at large, every effort should be made to return the prisoner to custody. The Board should take any necessary steps to facilitate the prisoner's return to secure custody in accordance with Chapter 5, Part I of the Act.

6.5 If a prisoner on a parole order is unlawfully at large and the chief executive has suspended the parole order, the Board should consider cancelling the parole order if the prisoner is not returned to custody within the suspension period.

[36] I think although directed primarily to whether a prisoner should be granted a parole order in the first place, the provisions of guidelines s 1.2 and 1.3 are also relevant:

1.2 When considering whether a prisoner should be granted a parole order, the highest priority for the Queensland Parole Board ('the Board') should always be the safety of the community.

1.3 The Board should consider whether there is an unacceptable risk to the community if the prisoner is released to parole; and whether the risk to the community would be greater if the prisoner does not spend a period of time on parole.

[37] The facts in this case demonstrate an adequate basis for the board to have formed the reasonable belief as to the circumstances adverted to in s 205(2).

[38] As to this:

• (a) The two possession offences post-dated the parole order and were plainly encompassed by the condition not to commit an offence, even if the offences arising out of conduct which pre-dated the order were not encompassed by that condition: cf Douglas v Southern Queensland Regional Parole Board [2015] QSC 310 at [31].
• (b) Another condition which enlivened the Board's power to suspend a parole order was the fact that the subject of the parole order was charged with committing an offence. That was satisfied by the charges, including the charges which arose out of conduct which pre-dated the order: cf Douglas v Southern Douglas Regional Parole Board at [32].

[39] The power which the Board exercised was plainly enlivened. The question is whether I ought form the view that the making of the decision was an improper exercise of that power in all the circumstances. I have formed the view that it was.

[40] The implications of the Supreme Court bail order were those to which I have earlier referred. A Supreme Court judge considered circumstances very analogous to the circumstances which the parole board was required to consider. The Supreme Court judge considered on all of those circumstances that the applicant had shown cause. That meant that the Supreme Court judge must have thought there was not an unacceptable risk in the areas that I have adverted to.

[41] True it is that the Board did not have the transcript of his Honour's reasons and only had the submission that had been received from the applicant's solicitors to which I have earlier referred, but it must, nevertheless, have known about the obvious analogy.

[42] One would expect that if there had been a reason to reach a different outcome, despite the fact that a Supreme Court judge had been persuaded to grant bail, the Board would have said so. But an examination of the reasons that the Board expressed indicates that the Board simply took the bail consideration into account but gave no explanation whatsoever as to why it reached an outcome different in substance. If there was something in the particular different circumstances that the Board was obliged to have regard to which justified a different conclusion, that was completely absent in any part of the Board's reasoning.

[46] The orders that I will make are I set aside the decision of the Board to suspend indefinitely the parole of the applicant made on 12 October 2016 and I set aside the decision of the Board made on 25 January 2016 not to vary its decision to indefinitely suspend the parole. I direct that the respondent reconsider its decisions according to law within 14 days of the date of this order. I grant liberty to apply.

[47] I note that it does not appear that the applicant has been legally represented during the course of this application. Certainly, he has appeared today on his own behalf. It is likely, then, that there are either no or very little costs that are capable of being recovered by a costs order in his favour. He has sought such an order and, in case there are costs of some nature which logically ought be recoverable, I will make a further order, namely that the respondent pay the applicant's costs of this application.