Jennings v Qld Parole Board

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 at any time from 6 January 2008."

[32] On 6 August 2007 the applicant sought a statement of reasons from the respondent and on 31 August the respondent provided that statement. Part of the reasons are set out:

IN RELATION TO THE QUEENSLAND PAROLE BOARD'S DECISION MADE ON 13 APRIL 2007 TO DECLINE TO DEAN PHILLIP JENINGS A PAROLE ORDER.

(PROVIDED PURSUANT TO S 33 OF THE JUDICIAL REVIEW ACT 1991.)

Evidence or other material on which findings of fact were based

The material listed below was disclosed to you unless otherwise indicated.

1. All the earlier material mentioned in its previous correspondence including the statement of reasons dated 6 July 2006 was again before the Board. However, the Board accepted the Parole Board Assessment Report dated 27 October 2006 as an adequate summary of the relevant material previously before the Board. It considered that this report effectively summarised any previous positive and adverse material before the Board.
2. Statement of Reasons dated 6 July 2006.
3. South Australian Offender History Report.
4. Sentence Calculation Details - created on 15/11/2006.
5. Your Application for Parole and submission dated 28/08/2006 (Not supplied to you as you had given these to the Board.)
6. Your Security Classification History - created on 21/09/2006.
7. Parole Board Assessment Report dated 27/10/2006.
8. Letter from NSW Department of Corrections to Designated Authority dated 23 November 2006.
9. Your Relapse Prevention Plan dated 18/01/2007.
10. Your Application to Appear (date indistinct).
11. Psychological Report by Gavan Palk date 02/02/2007,
12. Psychiatric Report by Dr de Leacy dated 19 March 2007.
13. Letters from you to the Board dated 28 April 2007; 9 May 2007; 11 May 2007; 17 May 2007 (enclosing a letter to the Board from Catholic Prison Ministry dated 16 May 2007); 21 May 2007 (enclosing a letter 'To Whom It May Concern' from Doug Herrington dated 17 May 2007); 28 May 2007; and 14 June 2007. (Copies of these letters were not provided to you as you had sent them to the Board.)
14. Letters from the Board to you dated 3 May 2007; 5 June 2007; and 19 June 2007.
15. Email from Terri Skellern to Margaret Cameron dated 21 June 2007.

• On 21 July 1997 you appeared in the Townsville District Court and pleaded guilty in relation to offences including Kidnapping and Armed robbery in company. You were sentenced to a total of 12 years' imprisonment. Pre-sentence custody of 528 days was declared as time served. Sentencing transcripts indicated that the offences involved a significant degree of premeditation; that the victim was detained for a significant period of time in her car and was assaulted by you; and that the offences had a terrible impact on the victim. The victim escaped from her vehicle and you and your co-offender made attempts to locate the victim after her escape. His Honour Judge Wall commented that 'the whole experience must have been and was in fact very frightening and terrifying for Ms Kenny. You abused her physically and mentally. You caused her to be very scared and fearful for her life.' At the time of sentencing His Honour took into account your guilty plea, your failure to provide details of your co-offender; that you were armed with two firearms and had ammunition for each of the firearms and that you had served three years and seven months' imprisonment in South Australia for offences committed on 19 July 1992.
• You were released to parole on 22 May 2003 after a period in open custody. You lived in South Australia with your father and received favourable reports from your supervising office. However, in July 2004 you appeared in the Wollongong Local Court and were fined for Drink driving, On 9 December 2004 your parole was suspended as you had absconded from supervision and had been charged with further driving offences. You were returned to custody in Queensland in October 2005.
• You have received positive unit behaviour and employment reports and have incurred no breaches since your return to custody. You are presently in the residential section of the Centre.
• The Parole Board Assessment Report indicated that 'A recent latter from offender Jennings addressed to the General Manager (19/09/2006) states 'I request formally that any program recommendations be removed from my file'. He stated during the interview that he would not be willing to complete an assessment for a substance abuse program whilst in custody as he does not see 'any benefits from repeating' this program.'
• In your letter attached to your application you state: 'I have been offered nil programs while being at Wolston both criminogenic and educational therefore I don't feel that I can be held responsible for the failure of Queensland Corrections to supply whatever intervention that they regard as appropriate.'

'Finally, in regards to making a recommendation on the prisoner's suitability for release to parole, respectively, the writer does not consider Mr Jennings suitable for parole at this stage. To become suitable for parole Mr Jennings needs to demonstrate that he could benefit from parole by being prepared to confide in and seek the advice of his parole officer as well as complying with conditions to treat his alcohol problem and personality disorder. His past performance on parole does not demonstrate that he has this ability. In fact the evidence suggests that he is prone to manipulating parole conditions to suit his life circumstances (genuinely believing that he knows best) without regard to his parole obligations. In addition, Mr Jennings also needs to develop an adequate relapse prevention plan and make appropriate arrangements to complete the programs proposed by correctional staff (e.g. Making Choices Program & Recovery Maintenance Program). While it is accepted that similar programs could be completed on parole, given Mr Jennings return to alcohol abuse while he was (on) Parole previously, the writer believes his potential for re-offending and alcohol abuse could be reduced ff he completed these programs in custody prior to release on parole.'

• In a psychiatric report prepared by Dr de Leacy and dated 19 March 2007 it is stated:

'It is doubtful he would offend again in a serious way. The main issue is whether he would breach parole conditions. His major risk factor is relapse onto alcohol or drugs and if he were to be released he should be carefully monitored in relation to this. I believe that it would be necessary for him to devote more time to considering aspects of a relapse prevention relation to drug and alcohol before his release.

Overall his release plan lacks detail and I believe at the present time that plan is too non-specific to consider. I believe that he has the potential to be released without major difficulties but I consider that at the present time insufficient work has been done in compiling a release plan and a relapse prevention plan.'

• The Board has some confidence in the expertise of Mr Palk who is an experienced forensic psychologist and Dr de Leacy who is a member of the Faculty of Forensic Psychiatry. It considered that your present relapse prevention plan does lack substance and that you have presently not made yourself available for a program which could specifically aim to address emotional regulation, violence propensity, problem solving, offence related cognitions, criminal associates and attitudes, impulsivity, motivation to change, and relapse prevention planning.
• The Board also had before it an indication from New South Wales that it was not prepared to accept an application for transfer of your possible parole to that State. The Board therefore considered that your release plan which was presented to it is not viable at least to the extent that there was a high risk that there would be no parole supervision. Release without a viable release and support structure was considered a major risk factor.
• In your letter dated 11 May 2007 in response to the Board's letter of 30 April 2007, you make among other things the following submissions:
  • o that you had made yourself available for the Making Choices program but had never been offered a placement;
  • o that you were never informed that NSW would not accept your parole supervision;
  • o that your Review recommended that you stay at Wolston so you have not had the opportunity to go to a farm;
  • o that your present employment was one demanding discipline and indicated a strong measure of trust;
  • o that you had made every effort to regain your strength of mind and that you were confident that you could reintegrate into the community without a lapse into substance abuse;
  • o that you had sought to arrange a Brisbane based release plan.
• In an Email dated 21 June 2007, which was made available to you, the Board was informed that it was considered appropriate that you be waitlisted for the Making Choices program to address a number of outstanding needs linked to risk.

1. The Board weighed up the assessment in the psychological report prepared for the Board that your past performance on parole does not demonstrate that you have the ability to utilise the benefits of parole supervision by working with parole officers nor comply with parole conditions which addressed your specific issues of alcohol and personality disorder which were linked to your offences. In fact the evidence suggests that you are prone to manipulating parole conditions to suit your life circumstances, believing that you know best, without regard to your parole obligations. The Board therefore considered that you needed to have in place a very detailed and viable release and relapse prevention plan to counter the evidence of your past performance on parole and the assessment of the psychologist. However, such evidence was not before the Board and you did not address this point when the Board indicated its concern in its letter dated 30 April 2007. Your present relapse prevention plan does not identify the factors and triggers that led to your offending nor have you stated realistic protective strategies to assist you in not offending in the future.
2. The Board had assessments from Mr Palk and from the email of 21 June 2007 that you have outstanding needs linked to your criminal history which may be addressed in the Making Choices Program. The Board made enquiries as to the availability of this program and your suitability for it. It appreciated that you have indicated that you are willing to do the program and that you suggested that it may be available in the community. The psychologist counselled that it would be safer that you address the issues he had highlighted in custody as you had returned to alcohol abuse when last on parole. In considering the matter of the program, the Board appreciated that there may be a delay in being able to access it in custody but weighted [sic] this up against your breach of parole previously and that you have nothing in place over and above your good intentions to assist you to uphold the conditions of parole. The psychiatrist also indicated that the main issue linked to a breach of parole conditions was the matter of a possible relapse into drugs or alcohol. The Board was not insisting on the program as such but there was no evidence that you have yet addressed the assessed needs in custody. The Board therefore returned to the absence of viable relapse and release plans. Should these have been in place there would have been a better argument for participation in the program or addressing the risks and needs in some other manner in the community.

The Board considered that its primary obligation remains the protection of the community and, despite taking all matters in favour of granting your application into account, it considered you may not be an acceptable risk to the community if released to parole at this time and refused your application.

[33] The applicant says the respondent took into account two irrelevant considerations:

• that the applicant had been waitlisted for the "Making Choices" program; and

• the informal indication from the relevant New South Wales authority that it was not prepared to accept an application for transfer of the applicant's parole to New South Wales.

[34] The "Making Choices" program is one of a number offered from time to time within the prison system to assist prisoners to overcome problems or to assist them with dealing with their imminent release. The applicant points to a number of authorities which have considered the relevance of rehabilitation courses. The principles to be applied in a similar situation (that of a refusal to grant remissions of sentences) to this were considered by Chesterman J in Weribone v Chief Executive, Department of Corrective Services [2007] QSC 129 at [25]- [28].

"[25] Prisoners such as the applicant, who for no discernibly intelligible reason decline to admit their guilt of a serious sexual offence, and thereby preclude themselves from undertaking a program designed to address any propensity for further such offences in the future, pose a particular problem for those charged with the decision whether to release them on parole or by way of remissions. The law though, is clear. As Dutney J pointed out in Batts v Department of Corrective Services [2002] QSC 206:

'To refuse to grant remissions solely on the basis that there has been no admission of guilt or a failure to undertake a particular course is an entirely improper exercise of the relevant power. See Yeo v Queensland Corrective Services Commission; Felton v The Queensland Corrective Services Commission; and Wiskar v Queensland Corrective Services Commission. A refusal on this basis is unacceptable because if fails to consider, in the case of the particular applicant, whether or not he is, in terms of s 75(2)(a) an unacceptable risk to the community. Rather, it focuses narrowly on two factors which may or may not in the particular case bear upon the relevant question of whether the applicant poses an unacceptable risk. It is, of course, true that any decision to release an offender carries with it some risk of re-offending. To be unacceptable the risk to the community must go beyond the ordinary risk attendant upon any unsupervised release.'

[26] An application for judicial review was allowed in Webster v Queensland Corrective Services Commission (5120 of 1998) because, as White J said:

'The conclusion seems plain that the delegate decided that the applicant, a sexual offender of no unusual sort, constituted a risk of re-offending because he would not admit his guilt and address his behaviour. That constituted a failure to exercise the delegated discretion according to law in not considering the real merits of the case.'

'It is clear that what must be considered are the circumstances in which the denial has been made, and it must be considered against the applicant's background and conduct. To focus narrowly on his refusal to acknowledge guilt, accompanied by the consequence that he has not undergone a relevant program would, in my view, be an inappropriate approach because of its over-simplification of the complexities involved in the situation.'

[28] Counsel for the respondent in his careful submission pointed out that the court should not be too astute to find an error in the delegate's reasons when a fair reading would show that he had taken into account all relevant factors and not 'focused narrowly' on the failure to undertake the Sex Offenders' Treatment Program. Reliance was put upon Minister for Immigration and Ethnic Affairs v Wuu Shan Liang (1996) 185 CLR 259 at 272 per Brennan CJ, Toohey, McHugh and Gummow JJ:

'... the reasons of an administrative decision-maker are meant to inform and not be scrutinised upon overzealous judicial review by seeking to discern whether some inadequacy may be gleaned from the way in which the reasons are expressed.'

Their Honours approved the remark in Collector of Customs v Pozzolanic [1993] FCA 456; (1993) 43 FCR 280 at 287:

'The reasons for the decision under review are not to be construed minutely and finely with an eye keenly attuned to the perception of error.'"

[35] Mr Fenton, for the applicant, also directed my attention to the decision of Philippides J in Petrie v Queensland Community Corrections Board [2006] QSC 188 as authority for the propositions that:

• it is an error to conclude that a prisoner is not an acceptable risk to the community because he has failed to complete a course that has never been offered to him; and

• if a parole board wishes to take into account the fact that a prisoner has not completed a recommended treatment program, the parole board must take into account the reason for the recommendation.

[36] In her conclusions, her Honour said, at [29]:

"...the respondent in refusing the application for [parole] had regard to considerations which were irrelevant to the exercise of its power, namely their views as to the expectation of the community and the sentencing judge, failed to consider relevant considerations, including how matters not before the sentencing judge affected the applicant's suitability for release in terms of the safety of the community, the actual assessment for the [rehabilitation program] and whether given that assessment the applicant represented a risk to the community without undergoing the [rehabilitation program] so as to be unsuitable for [parole]."

[37] Philippides J found that the Board had fallen into error by its apparent reference to the "generally beneficial purposes of such programs" without having considered properly the treatment needs of the applicant and whether, as such, he was rendered unsuitable for release without undergoing such a program. (See [25])

[38] The respondent in this case has, in my view, properly assessed the role to be played by the "Making Choices" program. As the Board noted in paragraph 2 of its reasons for decision:

"The Board made enquiries as to the availability of this program and your suitability for it. It appreciated that you have indicated that you are willing to do the program and that you suggested that it may be available in the community. The psychologist counselled that it would be safer that you address the issues he had highlighted in custody as you had returned to alcohol abuse when last on parole. In considering the matter of the program, the Board appreciated that there may be a delay in being able to access it in custody but weighted [sic] this up against your breach of parole previously and that you have nothing in place over and above your good intentions to assist you to uphold the conditions of parole. The psychiatrist also indicated that the main issue linked to a breach of parole conditions was the matter of a possible relapse into drugs or alcohol. The Board was not insisting on the program as such but there was no evidence that you have yet addressed the assessed needs in custody. The Board therefore returned to the absence of viable relapse and release plans."

[39] It is clear that the Board, while taking into account the "Making Choices" program took it into account as part of its general consideration of the capacity of the applicant to constitute an acceptable risk.

[40] The Board, in its reasons, did not conclude that the applicant was an unacceptable risk to the community merely because the applicant had not completed the relevant course. In the circumstances of this case, and in the light of the psychologist's report, whether or not the applicant had undertaken such a course was a relevant consideration. The Board acknowledged that there would be a delay in the applicant being able to undertake such a course but, as they were entitled to do, weighed that against the other considerations which they took into account.

[41] In a letter from the New South Wales Corrective Services to the Queensland Community Corrections Board of 23 November 2006, the Registrar of Transferred Parole Orders (New South Wales) set out the following with respect to the applicant:

"An application to transfer the above named parole order to New South Wales upon release and reside at 4/27 Nicholson Street Woonona was submitted earlier this year. The transfer was declined by the Commissioner, New South Wales Department of Corrective Services on 3 March 2006 due to the proposed accommodation being assessed as unsuitable.

In October 2006 a further application to transfer was received by my Branch and a home visit and assessment was conducted at the same address as nominated in the previous application.

As the address at 4/27 Nicholson Street Woonona has again been assessed as unsuitable the request to transfer cannot proceed."

[42] At the time of that letter the applicant was not on parole and, therefore, there was nothing which could be transferred. There is legislation in New South Wales and, it appears, in other States, which allows for parole orders to be transferred between States. This allows, for example, persons on parole to be able to live close to their family or in a position where they are more likely to obtain employment. No formal application had been made to the New South Wales Department of Corrective Services but I was informed that there is an informal process which takes place when an application for parole is made. If the application for parole contains an indication that the applicant for parole proposes to reside interstate then an informal inquiry is made and information of the type set out above is provided by the counterpart State body. The practical sense of doing this is obvious. It allows a body such as the respondent to have before it relevant information as to the practicality of an applicant's proposal.

[43] The applicant attacks the reliance by the respondent on this letter and the alleged failure by the respondent to consider whether there could be sufficient supervision of the applicant in the absence of registration of the parole order in New South Wales. Mr Fenton said that the statement contained within the letter was wrong in law and was a nullity.

[44] It was then contended for the applicant that the error of the respondent was compounded by its failure to consider a relevant part of the CS Act, namely s 212. That section provides:

"Travelling interstate while released on parole

(1) The chief executive may, by written order, grant leave to a prisoner who is released on parole to travel interstate for a period of not more than 7 days.

(2) However, if the prisoner is subject to a court ordered parole order, the period of leave may be more than 7 days.

(3) The parole board that released a prisoner on parole may, by written order, grant leave to the prisoner to travel interstate for a period of more than 7 days.

(4) Leave granted under this section is subject to the conditions the entity granting the leave decides."

[45] It was submitted for the applicant that this section allows a parole board to grant leave to a prisoner on parole to move interstate. That is a misreading of the section. The section allows for a prisoner on parole to travel interstate for certain periods with the leave of certain bodies. For example, s 212(1) allows the Chief Executive to grant leave for a prisoner on parole to travel interstate for a period of not more than seven days. That period may be longer than that if the prisoner is subject to a court ordered parole order: see s 212(2). A prisoner may be allowed to travel interstate for a period of more than seven days if the Parole Board grants leave by way of written order - s 212(3). The use of the word "travel" combined with the nominated period of "7 days" (or more in particular circumstances) leads me to the conclusion that the purpose of this section is to allow a prisoner on parole to leave the State but return within an identified period. It is not intended to allow a prisoner to leave the State and reside elsewhere.

[46] The Board was entitled to consider the material it had before it with respect to the suitability of the place at which the applicant proposed to reside if granted parole. This was closely related to the applicant's proposal for post-release living. As it said in its reasons:

"The Board was very concerned that it had strong evidence that your release plan to NSW was not practical. In your submission you had indicated how supportive your release back to NSW would be. Once it was made known to you that the NSW authorities had indicated that should you be released on parole they would not register your parole order there, you attempted to made arrangements for a residence in Queensland. However, the Board had no concrete, sustainable release plan before it when it considered your application. As such the support which would assist you to comply with the conditions of parole and avoid the risks and triggers associated with your previous offending was not in place."

[47] This consideration seems to me to be entirely appropriate and, notwithstanding the informality of the indication from the New South Wales authority, it was a relevant consideration.

[48] On this ground the applicant's argument proceeds on these lines:

"(4) If the parole board refuses to grant the application, the board must -

(a) give the prisoner written reasons for the refusal;...";

• section 27B of the Acts Interpretation Act 1954 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.";

• the respondent's letter of 30 July 2007 declining the application for parole does not comply with s 27B of the Acts Interpretation Act. Therefore, the decision of 6 July 2007 referred to in that letter is a nullity because procedures required by law have not been observed.

[49] A failure to comply with s 193(4)(a) cannot, of itself, render an otherwise valid decision, invalid. At most, it makes the decision-maker susceptible to a request for a statement of reasons under the Judicial Review Act. The Judicial Review Act, in s 32, allows a person to request a statement of reasons. That was done in this case and a statement of reasons was provided in the document dated 31 August 2007. The applicant concedes, properly, that the statement of reasons given on 31 August 2007 does comply with the requirements of the Acts Interpretation Act in the sense set out above. The argument that the decision of 6 July 2007 must be a nullity because a letter relating the fact of that decision does not comply with s 27B of the Acts Interpretation Act cannot, in light of the provisions of the Judicial Review Act, be correct. Mr Fenton, though, went further and said that it was open to quash the decision on the basis that it took two months for the process of obtaining the statement of reasons, that meant that his client was in jail for two months during that period of time and that the applicant can "never recover the loss of that liberty". That argument has no basis in law and assumes error on the part of the respondent.

[50] The applicant argued that the respondent failed by not considering the whole of the relevant background of the nature and circumstances of the offences committed by the applicant including the sentencing remarks of the trial judge. It was contended that the respondent was bound to look at the sentencing remarks and the facts and circumstances regarding the offences for which the applicant was incarcerated.

[51] I do not need to consider whether the respondent was required to take into account all the circumstances of the offences and the sentencing remarks of the trial judge. It is clear from the reasons given on 31 August 2007 that the respondent had disclosed to the applicant that it had taken into account, in the statement of reasons dated 6 July 2006, the sentencing remarks of Judge Wall QC and that those reasons from July 2006 were before it in its decision-making conducted in 2007.

[52] The applicant has been unsuccessful in establishing in any of the grounds advanced for review of the respondent's decision. It follows that the application for statutory order of review should be dismissed. Costs should follow the event, but I invite the parties to make submissions on costs, before any order is made.