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[2015] QSC 310
General information, not legal advice.
Supreme Court of Queensland
2015-11-02
Peter Lyons J
Original judgment source is linked above.
[1] On 23 September 2014, the applicant was convicted of two offences (2014 convictions) and sentenced to concurrent terms of imprisonment, the longer of which was for a term of 18 months. He was immediately released on parole.
[2] On 29 January 2015, the respondent made a decision to suspend the applicant's parole order for an indefinite period (suspension decision). On four subsequent occasions, the respondent determined not to vary the suspension decision (each is referred to as a confirmatory decision). The applicant has applied for a statutory order of review under the Judicial Review Act 1991 (Qld) (JR Act). The formal order sought by the applicant is that the suspension decision be quashed. The applicant conducted the hearing of the application without legal representation or assistance.
[3] One of the 2014 convictions was for an offence of possessing Schedule 1 dangerous drugs in a quantity exceeding the threshold specified in Schedule 3, but not exceeding the quantity specified in Schedule 4, the date of the offence being 2 December 2013. That offence attracted the longer sentence. The other was for a summary drug related offence, which attracted a sentence of six months.[1]
[4] It was a condition of the applicant's parole that he not commit an offence; and it was also a condition of his parole that he abstain from drugs. No doubt these conditions related to his conduct during the period of his parole[2].
[5] On (or perhaps shortly prior to[3]) 8 December 2014, the applicant was charged with two counts of trafficking in dangerous drugs (trafficking charges)[4]. Both counts related to the period from 1 August 2013 to 30 January 2014. These charges have not yet been resolved.
[6] On 3 January 2015, the applicant was intercepted by police[5]. That resulted in his being charged with the possession of dangerous drugs, and the possession of utensils that had been used in connection with the possession of such drugs (2015 drug offences). On 5 January 2015, the applicant contacted the Maroochydore Probation and Parole Office to give notice of these events[6].
[7] A little later, the applicant was charged with contravening a direction or requirement of police on the basis that he failed on 11 January 2015 to attend a police station to provide his identifying particulars (contravention offence) [7].
[8] On 14 January 2015, it would appear that a delegate of the Chief Executive suspended the applicant's parole for a period of 28 days under s 201 of the Corrective Services Act 2006 (Qld) (CS Act). On 14 January 2015, a warrant for the applicant's arrest issued, as a consequence of the suspension. That suspension has expired, and is not in issue in these proceedings[8].
[9] On 15 January 2015 a Parole Board Report[9] was prepared by a Probation and Parole Officer, countersigned by a Supervisor, both of the Maroochydore Probation and Parole Office. It recorded that on 5 November 2014, notification had been received of the trafficking charges. It also recorded general compliance with reporting requirements. It recorded the 2015 drug offences, and the applicant's advising of them; and the contravention offence. It also recorded family concern about the applicant's behaviour. It recommended a home assessment of places where the applicant might be accommodated; and the indefinite suspension of his parole order "until the finalisation of his further offences" and the nomination of a suitable address for his accommodation.
[10] The respondent has provided a statement of reasons which deals together with the suspension decision, and the confirmatory decisions (SOR)[10]. The SOR records that, at its meeting on 29 January 2015, the respondent considered the suspension of 14 January 2015; and noted that the applicant had been charged with further drug related offences. The SOR records that the respondent "found that the offences for which the Applicant was charged, bore a strong similarity to the index offences for which the Applicant was originally sentenced".[11]
[11] The SOR also records the following, as "Reasons for Decision":[12]
"1. Whilst the Board accepted the Applicant was remorseful for the breach of the parole order, it considered that such a serious breach, incurred a relatively short time after the Applicants (sic) release on parole meant that in the interests of community safety, the Applicants (sic) parole order should be suspended indefinitely.
[12] The findings referred to in paragraph 2 include findings that the applicant had been charged with the 2015 drug offences and the contravention offence; and the similarity of the 2015 drug offences with the offences for which the applicant was sentenced in September 2014.
[13] The applicant was provided with an Information Notice under ss 205 and 208 of the CS Act[13]. In his submission in response, the applicant accepted "full responsibility for my breach of parole conditions, and subsequent suspension of parole".[14] He also stated, "I was found in possession of a ½ point and pipe".[15] He advanced a number of matters in support of his further release on parole.
[14] At its next meeting (it is uncertain whether the meeting was on 25 February 2015, or 27 February 2015),[16] the respondent considered the applicant's submission, a home assessment report dated 26 February 2015, and a Verdict and Judgment Record (VJR) dated 4 February 2015[17]. The VJR recorded that on 4 February 2015, the applicant had pleaded guilty to the 2015 drug offences and the contravention offence,[18] and a fine of $850 was imposed.
[15] The home assessment report[19] records contact with the applicant's mother. She referred to concern that the applicant had resumed contact with his former partner, described as a "potential negative influence"[20]. The author of the report described the applicant's mother as "a pro social influence anxious to support the offender's rehabilitation and willing to act in his long-term interests by co-operating with this agency in his supervision."[21] The author recommended the proposed address (apparently the home of the applicant's parents) as suitable accommodation for the applicant, but considered that he should not be released before 6 April 2015, because the parents would be away until then.
[16] The respondent decided not to vary its suspension decision, and notified the applicant accordingly by letter of 12 March 2015[22].
[17] By letter of 25 March 2015, the applicant requested that his parole be reinstated. He acknowledged that the 2015 drug offences and the contravention offence had "breached my parole", and said he had been asked "for a show cause and home assessment". He said that while in custody, he had been attending NA meetings and AA meetings which he found "a great help", and that he had strong family support.
"The Board reasonably believes that you pose an unacceptable risk of committing an offence. The Board noted information provided in a Board Report from your supervising Probation and Parole District Office, dated 15 January 2015."[26]
[19] The notice also advised that the respondent had decided not to vary the suspension decision, and invited the applicant to show cause why the Board should not change its decision.
[20] On 7 April 2015, the applicant wrote to the respondent in response to the letter of 12 March 2015[27]. He asked the respondent to reconsider its decision. After referring to the sentence imposed in 2014, and matters related to the 2015 drug offences and the contravention offence, he referred to the trafficking charges, and said he would be defending them. He pointed out that he had been granted bail in respect of them on 2 March 2015. He then asserted that he had not committed an offence while he was subject to the parole order. He also asserted that the respondent had a "blanket approach" when there are unresolved charges; and that the respondent was required to deal with the suspension of his parole on the individual merits of his case, which he described.
[21] On 20 April 2015 the applicant again wrote to the respondent[28]. He referred to the fact that he did not have a criminal history until he was 34 years of age, and to his attempts at rehabilitation while in custody. The letter was supported by a certificate of attendance at Alcoholics Anonymous meetings[29]. This letter was considered by the respondent on 23 April 2015, resulting in a decision not to vary the suspension decision, and confirming the imposition of the residential condition[30]. The applicant was notified of this decision by a letter of 29 April 2015, which again invited him to show cause why the respondent should not change its decision[31].
[22] On 12 May 2015, the applicant again wrote to the respondent[32]. His letter stated that he had broken off his relationship with his former girlfriend. It referred to the support which his parents offered, and stated that he had employment available if released. The letter was supported by a letter from the applicant's parents, referring to the efforts the applicant had made to enable him to avoid further drug offending. These documents were considered by the respondent at its meeting on 12 May 2015[33], resulting in the fourth (and last) confirmatory decision.
[23] The applicant filed his application on 18 June 2015. In it, he asserted that the respondent's decision was a breach of the rules of natural justice. The outstanding charges were for matters said to have occurred before the commencement of the parole period. The applicant intended to contest those charges.
[24] The application also contended that procedures that were required by law to be observed had not in fact been observed. The application contended that the grant of bail being a "ruling of a Court of Law", the refusal to release him on parole had ignored it, and accordingly was ultra vires. It also contended that the respondent had failed to take into account relevant matters, namely the grant of bail, that the trafficking offences were alleged to have occurred nine months before the applicant was released on parole in September 2014 and other matters favouring his release. It also referred to the difficulties he would have in defending the outstanding trafficking charges if he remained in custody.
[25] The application contended the respondent had taken a "blanket approach" when dealing with the suspension of his parole. It contended that the respondent's decisions were unreasonable.
[26] The applicant's supporting affidavit was generally to similar effect.
[27] The applicant relied upon his application and affidavit. He also provided short handwritten submissions. He referred to the minor nature of the 2015 drug offences, reflected in the penalty imposed; and to the grant of bail. He submitted that his parole had not been reinstated because the respondent has a rigid policy of not releasing prisoners who are defending other charges, referring to the respondent's letter of 21 May 2015, which in turn referred to a VJR of 4 May 2015 which recorded the trafficking charges[34]. He submitted that the respondent's decision was unreasonable, having regard to the merits of his case.
[28] For the respondent it was submitted that the grant of bail was the product of different statutory provisions than those relevant to the respondent's exercise of power. The respondent's position was not based on the unresolved trafficking charges; rather, it was a consequence of the 2015 drug offences. In any event, the respondent was entitled to take the unresolved charges into account. Reference was made to the respondent's powers under s 205 of the CS Act; and to s 3(1) of that Act, which is a statement of purpose. It was submitted that the respondent's decision was based on a concern about community safety. It was also submitted that it was apparent from the first of the stated reasons, and the respondent's finding about the similarity between the 2015 drug offences and the offences which led to the 2014 sentence, that the respondent was concerned to avoid further offending by the applicant. Reference was made (more than once) to a passage in Minister for Immigration and Ethnic Affairs v Wu Shan Liang[35] to the effect that reasons of a decision maker are not to be scrutinised upon over-zealous judicial review for the purpose of discerning whether inadequacy might be gleaned from the way in which the reasons are expressed; and for the need to limit review to considering whether the decision was lawful, rather than to considering the merits of the decision.
[29] It is convenient to set out some provisions of the CS Act. Section 3 includes the following
(1) The purpose of corrective services is community safety and crime prevention through the humane containment, supervision and rehabilitation of offenders."
[30] The respondent's powers arise under s 205 of the CS Act, as follows
(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."
[31] It may be observed that the power found in s 205(2) depends upon the establishment of a condition. One is a parole board's reasonable belief that a person released on parole has failed to comply with the parole order. In the present case, it was a condition of the order that the applicant not commit an offence[36]. In those circumstances, noncompliance could result from the commission of an offence during the parole period but not from the earlier commission of an offence.
[32] Another condition which enlivens the respondent's power is the fact that the person the subject of the parole order "is charged with committing an offence". The natural reading of the provision is that the charge is brought during the parole period. The provision does not specify that the conduct which is the subject of the charge must have occurred in the same period. Since it is very common to include, in a parole order, a condition that the person the subject of the order not commit an offence, s 205(2)(c) would have little scope for operation if it were so constrained. Nor is there any obvious reason for such a constraint. Accordingly, I would conclude that the respondent's power is enlivened if a charge is brought within the parole period, notwithstanding that the offending conduct occurred earlier.
[33] On its face, the provision does not identify criteria for the exercise of the discretion, once it arises. In McQuire v South Qld RCCB[37] White J (as she then was) noted that the respondent's discretion when considering an application for post-prison release is "unconfined except as the matter and scope of the statutory provisions will dictate what it is that must be kept in mind". Her Honour made reference to the statement of purpose in s 3(1) of the CS Act. It seems to me that both of these observations are relevant to the respondent's exercise of power under s 205(2).
Did circumstances exist for the exercise of the power to suspend parole?
[34] I have pointed out that the CS Act identifies conditions which permit the exercise of the power, one being a parole board's reasonable belief that a person on parole has breached of the order (which would include a commission of an offence, contrary to a condition of the parole order); and another being that the person on parole is charged with an offence.
[35] This matter was raised in the applicant's written material, but was not actively pursued at the hearing. Nevertheless, because it goes to the question whether the respondent was in a position to suspend the applicant's parole, it is appropriate to consider it briefly.
[36] Plainly enough, the applicant had committed offences whilst on parole (a fact which he admitted in his correspondence to the respondent). In addition, he was charged with the trafficking offences, during the parole period. In those circumstances, there can be no doubt that the respondent was in a position to act under s 205(2), and suspend the applicant's parole.
[37] As Mason J pointed out in Minister for Aboriginal Affairs v Peko-Wallsend Ltd[38], a ground alleging a failure to take into account a relevant consideration can only be made out if a decision-maker fails to take into account a consideration which it is bound to take into account in making the decision. What matters the decision-maker is bound to take into account will be identified from the statute conferring the power, either expressly or by implication from "the subject-matter, scope and purpose of the Act"[39]. To the extent that in a particular case, the matters referred to in s 3(1) of the CS Act are relevant, it seems to me that the respondent would be bound to taken them into account. The applicant did not identify any other matter which must be taken into account. As will become apparent, the SOR indicates that the matters referred to in s 3(1) were the subject of the respondent's consideration when making its decisions.
[38] The matters which the applicant contends the respondent did not take into account were clearly stated by him in his correspondence with the respondent. The SOR records that correspondence amongst the "Evidence and other material upon which findings of fact were based"[40]. The first of the respondent's reasons for decision records an acceptance that the applicant "was remorseful for the breach of the parole order", a matter apparent from the applicant's correspondence to the respondent. There was no positive evidence to show that the respondent did not take these matters into account.
[39] It follows that this ground is not made out.
Rigid policy and failure to give proper consideration to exercise of power
[40] One of the stated grounds for a statutory order of review is that the making of the decision was an improper exercise of the power conferred by the statute under which the decision was purported to be made[41]. That ground includes "an exercise of a discretionary power in accordance with a rule or policy without regard to the merits of the particular case"[42]. If the applicant's contentions were made out, there would be a basis for making a statutory order of review.
[41] The applicant pointed out that the respondent's letter of 21 May 2015 (conveying the last of the confirmatory decisions) made express reference to the unresolved charges[43]. That letter is amongst the material identified in the SOR as the material on which the respondent made its findings[44]. These charges were also referred to in the Parole Board Report dated 15 January 2015[45], also part of the material on which the respondent's finding of fact were based[46]. I am therefore prepared to accept that the outstanding charges were taken into account, and particularly in relation to the most recent of the confirmatory decisions.
[42] Obviously enough, the respondent was entitled to take these charges into account. Such charges provide a ground under s 205(2)(c) of the JR Act on which an occasion arises for the suspension of a parole order.
[43] However, the applicant conceded that the material before the Court contained no other evidence of the policy for which he contended. The fact that the charges were taken into account is, in my view, by no means sufficient to establish such a policy.
[44] The material before me is not sufficient to permit me to infer the existence of such a policy, or that the decisions were made without reference to the merits of the case. I have already pointed out that the SOR includes the applicant's correspondence amongst the material on which the respondent's findings of fact were based; and that the first of the reasons reflects some consideration of that correspondence. In addition, it is apparent from the second of the findings referred to earlier that the respondent gave some consideration to the 2015 drug offences and the contravention offence, and the relationship (obviously of the former) with the offence which led to the parole order.
Unreasonableness (including absence of evidence)
[46] As mentioned earlier, one ground for a statutory order for review is that the making of the decision was an improper exercise of the power conferred by the statute under which the decision purported to be made[47]. That extends to an exercise of power that is so unreasonable that no reasonable person could so exercise the power[48]. No other basis on which an order might be granted by reference to unreasonableness has been identified, or is apparent to me.
[47] As mentioned, the respondent's submissions drew attention to the reliance in the first of the reasons on "the interests of community safety" as the basis for suspending the applicant's parole. When invited to identify, amongst the material considered by the respondent, anything which might support a concern about community safety if the applicant continued to be released on parole, Counsel for the respondent referred to the home assessment report[49], together with the reference to that report in the Parole Board Report[50]. Reference was also made to the respondent's Information Notice of 14 April 2015[51].
[48] The information notice of 14 April 2015 dealt with two matters. One was the proposed amendment of the parole order by the inclusion of a condition requiring the applicant to reside at an approved residence. The other was the question whether the suspension decision should be varied. The notice informed the applicant that a preliminary decision had been made to include the residential condition. The reason for that decision was stated to be that the respondent believed that the applicant posed an unacceptable risk of committing an offence. The obvious inference is that that risk would be addressed by the imposition of the condition. The second part of the notice, which conveyed the decision not to vary the suspension decision, did not include a statement of reasons. I do not read the notice as conveying that concern about the commission of a further offence was a basis for that decision[52].
[49] The reports referred to demonstrate a basis for concern that, if the applicant were to live with his girlfriend, he might use drugs, and perhaps commit drug-related offences. There is, however, no suggestion at all that this posed any threat to community safety.
[56] On a review, the Court's powers to set aside a decision of the respondent are constrained by the provisions of the JR Act. Notwithstanding the matters advanced by the applicant, I am not satisfied that a ground has been established for the making of such an order. Accordingly, I propose to dismiss the application.
[1] See the exhibits to the affidavit of Flora Cheng filed 23 July 2015 (Cheng exhibits), pp 1, 50.
[11] Cheng exhibits p 29; see also Ms Cheng's affidavit (Cheng) para 8.
[37] [2003] QSC 414 at [28].
[38] [1986] HCA 40; (1986) 162 CLR 24 at pp 39-40.
[43] Cheng exhibits p 25; see also p 40.
[53] It would have been necessary to consider ss 20(2)(e) and (h), 23(g) and 24 of the JR Act.
Douglas
Southern Queensland Regional Parole Board [2015] QSC 310
(1986) 162 CLR 24
(1996) 185 CLR 259
[18] This letter was considered by the respondent on 9 April 2015[25]. It again decided not to vary the suspension decisions. It also decided to make a preliminary amendment to the Court ordered parole, to include a condition governing the applicant's residence. It advised the applicant of this by an Information Notice dated 14 April 2015. The first part of the notice recorded the decision to include the residential condition, and stated the reason for the variation in the following terms:
[45] It follows that this basis for review is not made out.
[50] If concern for community safety was in truth the basis for the respondent's decisions, it might well establish that they were made without evidence, and were unreasonable[53].
[51] However, it was also submitted for the respondent that a careful reading of the SOR revealed that the basis for the respondent's decisions was a concern that the applicant might commit further offences. In my view, that submission is correct.
[52] The first of the respondent's findings (not referred to earlier in these reasons) was a finding that the sentence (which resulted in the parole order) was "for a number of drug related offences"[54]. There was then reference to the offences in January 2015, including the 2015 drug offences. The similarity with the earlier drug offences was then noted. The breach was described as serious, in part because of its proximity in time to the applicant's release him on parole. Notwithstanding the reference to community safety, the underlying concern on which the respondent appears to have acted was the commission of further offences while the applicant was on parole, and not long after the commencement of the parole period. It seems to me that it is difficult to conclude that this decision was based on a concern about community safety, rather than a concern about the risk of further offending by the applicant.
[53] One of the stated purposes of corrective services is crime prevention. The reduction of the risk of further offending was therefore a legitimate consideration for the respondent. Some basis for that concern in the applicant's case was to be found in the 2015 drug offences. It follows that it could not be said the decision was entirely without any evidentiary foundation, and for that reason irrational or otherwise unlawful.
[54] It may well be said that the applicant has provided strong material in support of his contention that his parole should be reinstated. It extends to his efforts at rehabilitation, his good conduct in custody, his family support, the availability of employment, the absence of offending until he was 32 years of age, the relatively minor nature of the 2015 drug offences and the contravention offence, the fact he has broken off his relationship with his former girlfriend, and the likely effect of the time already spent in custody. It is also not irrelevant, in that context, that the trafficking charges are contested, as yet unproven, and relate to a period which ended some time ago. However, the threshold which must be reached to establish the unreasonableness ground is very high. The decision must be shown to be so unreasonable that no reasonable person in the position of the respondent could have made it[55]. Some of these factors would have become more significant over the time during which the applicant has been in prison. I am not satisfied that the threshold has been reached, in respect of the suspension decision.
[55] The position is somewhat more concerning when one comes to the last of the confirmatory decisions. By that time, the applicant had spent months in custody and had obviously taken steps towards his rehabilitation. The respondent itself had considered that the residential condition was an appropriate way to address the risk that the applicant would commit further offences. However, even the last decision was made only a few months after the 2015 drug offences. While it might be regarded as troubling, in the end I am not satisfied that, at that time, the decision was so unreasonable that no reasonable person could have arrived at it.