CRIMINAL LAW — PAROLE — QUEENSLAND — where applicant
convicted of sexual offences against children — where
applicant sought
parole pursuant to Corrective Services Act 2006 (Qld).
Source
Original judgment source is linked above.
Catchwords
CRIMINAL LAW — PAROLE — QUEENSLAND — where applicantconvicted of sexual offences against children — whereapplicant soughtparole pursuant to Corrective Services Act 2006 (Qld).ADMINISTRATIVE LAW — JUDICIAL REVIEW LEGISLATION — QUEENSLAND— GROUNDS FOR REVIEW OF DECISION — BREACH OFRULES OF NATURALJUSTICE – PROCEDURES NOT OBSERVED - RELEVANT AND IRRELEVANT CONSIDERATIONS- IMPROPER EXERCISE OF POWER –where applicant maintained a stance ofinnocence - where applicant refused to undertake psychological assessment– where applicanthad not completed sexual offender program – whereparole was refused - whether respondent made a reviewable error.Corrective Services Act 2006 (Qld), Chapter 5, s 3(1), s 186, s 187,s 188, s 189, s 190, s 191, s 193, s 217Judicial Review Act1991, s 20(2)(a), s 21(2)(a)DCU V State Parole Authority of New South Wales [2006] NSWSC526
Gough v Southern Queensland Regional Parole Board [2008] QSC
222
Heatley v Tasmanian Racing and Gaming Commission [1977] HCA 39
(1977) 137 CLR
487
Howells v Nagrad Nominees Pty Ltd [1982] FCA 177
(1982) 66 FLR 169
Kioa v
Minister for Immigration and Ethnic Affairs [1985] HCA 81
(1985) 159 CLR 550
Kruck v
Southern Queensland Regional Parole Board [2008] QSC 332
McQuire v
South Qld RCCB [2003] QSC 414
Whim Creek Consolidated NL v Colgan
(1989) 29 FCR 50
Judgment (115 paragraphs)
[1]
[1] This is an application which is being treated as an application for judicial review of a decision of the respondent ("the Board") made on 17 December 2008 and notified by letter to the applicant ("Mr Kruck") dated 22 December 2008 in which the Board refused Mr Kruck's application for release on parole. The actual relief sought in the Application is:
[2]
"1. That the Respondent to [sic] abide by the Court-Orders of BS9554/08 & CA6543/08 for a lawful decision.
[3]
2. That the Respondent must re-consider their decision within 48 hours;
[4]
3. That the Applicant be informed within same time-frame of 48 hours;
[5]
4. An order that the respondent to [sic] pay the Applicant $1500 per day until a lawful decision has been provided.
[6]
5. That the Respondent pay cost [sic] of $70-50 incidental to the application of BS9554/08 Court proceedings."
[7]
[2] Chapter 5 of the Corrective Services Act 2006 (Qld) ("CS Act") contains the provisions governing the granting of parole.
[8]
[3] Section 180 provides that a prisoner may apply for parole. Sections 181-185 deal with parole eligibility dates. Section 186-190 deals with submissions to and appearances before a parole board. Section 191 sets out when an application lapses and s 192 deals with the effect of a recommendation for parole by a sentencing court.
[9]
(1) A parole board required to consider a prisoner's application for a parole order must decide -
[10]
(2) However, the parole board may defer making a decision until it obtains any additional information it considers necessary to make the decision.
[11]
(3) The parole board may grant the application even though a parole order for the same period of imprisonment was previously cancelled.
[12]
(4) If the parole board refuses to grant the application, the board must -
[13]
(a) give the prisoner written reasons for the refusal; and
[14]
(b) if the application is for a parole order other than an exceptional circumstances parole order - decide a period of time, of not more than 6 months after the refusal, within which a further application for a parole order (other than an exceptional circumstances parole order) by the prisoner must not be made without the board's consent.
[15]
(5) If the parole board fails to decide the application within 120 days after its receipt, the board is taken to have decided to refuse to grant the application."
[16]
(a) to decide applications for parole orders, other than court ordered parole orders; and
[17]
(b) to approve resettlement leave programs for prisoners; and
[18]
(c) to perform other functions given to it under an Act."
[19]
[6] The discretion available to the respondent under s 217 is not confined by any set of criteria or other specific matters to which the CS Act directs the respondent's attention. In a decision dealing with a predecessor of the CS Act (in which the provisions were relevantly the same), White J observed in McQuire v South Qld RCCB:[1]
[20]
"[28] There are no express criteria for application by a Board when considering an application for post-prison release. The discretion is unconfined except as the matter and scope of the statutory provisions will dictate what it is that must be kept in mind. An object of the Corrective Services Act 2000 is for 'community safety and crime prevention through humane containment, supervision and rehabilitation', s 3(1). The interests of the public must be a necessary aspect of any decision to grant release."
[21]
[7] The same object forms one of the purposes of the CS Act - see s 3(1).
[22]
[8] It will assist if I set out a brief chronology:
[23]
07.12.06: Applicant sentenced to 4 years and 6 months imprisonment for rape and indecent treatment of a child under 16 years with circumstances of aggravation.
14.03.08: Applicant became eligible for parole.
17.12.07: First application for parole made - decision deferred until psychological report obtained. Applicant invited to submit a new application.
14.04.08: Deemed refusal of first parole application.
02.05.08: Applicant's application for review received by Respondent.
16.05.08: PD McMurdo J dismisses Applicant's application for review.
19.05.08: New parole application submitted, together with notice that Applicant was unwilling to participate in a psychological assessment and requesting a statement of reasons.
27.05.08: Statement of reasons sent to Applicant regarding first parole application.
28.05.08: Respondent reconsidered Applicant's parole application and confirmed its previous decision to defer consideration of his application until a psychological assessment was furnished.
12.06.08: Psychological assessment of Applicant attempted - Applicant declined to participate and told the psychiatrist, among other things, that: "I've already assessed myself and I'm fine."
05.06.08: Respondent acknowledged receipt of Applicant's submissions and referred him to the statement of reasons dated 27.05.08.
26.06.08: Applicant forwarded further submissions to the Respondent.
02.07.08: Respondent reviewed Applicant's application for parole, advised the Applicant that they were inclined to decline the application on the basis of his refusal to participate in a psychological assessment or home assessment. Respondent provided Applicant 14 days to respond to its concerns.
14.07.08: Applicant forwarded further submissions to the Respondent.
21.07.08: Applicant forwarded further submissions to the Respondent.
05.08.08: Respondent received Applicant's updated submissions and request for a statement of reasons.
20.08.08: Respondent reviewed Applicant's parole application and determined that, in the absence of any further information, his application should be declined. The Respondent advised Applicant that reasons for its decision would be furnished within the statutory timeframe.
[24]
[9] The Board responded to Mr Kruck's request under the JR Act for reasons with a lengthy document setting out the history of the matter and then exposing its reasoning process in the following way:
[25]
"The Parole Board took into account the Ministerial Guidelines as they relate to a Regional Board and in particular that community safety must be the highest priority. However the Board independently exercised its discretion and ensured that your application was considered on its own merits without any inflexible application of policy.
The Board notes that you are serving a period of 4 years and 6 months imprisonment for sexual offences against children. You have been convicted of very serious sexual offences and you have been dealt with in Court previously for offences against children of a similar sexual nature.
The Board notes your plea of guilty to 2 charges of indecent treatment of a child under 16 with circumstances of aggravation and rape, and that now you maintain that you are innocent of all the offences. The mere fact that you maintain your innocence does not prejudice the Board against you. However, it leaves the Board in a position where it must accept that you were found guilty of these extremely serious offences after a full trial where all of the evidence was fully ventilated. In the criminal justice system, it is the role of the court process to determine the guilt or innocence of an accused person and it is not for the Board to revise or reverse that assessment. The Board must therefore proceed on the basis that you were guilty of these offences and that this was the considered judgement of the judge/jury who had been exposed to the evidence of the case.
The Board took into account Judge Trafford-Walker's sentencing comments of 7 December 2006 in relation to your prior offending and rehabilitation:
[26]
"The Community demands that children be protected from such conduct so far as can be done by the Courts. The Courts therefore are required to impose severe sentences. There is no option in this case, having regard to the number of children involved, but to impose lengthy periods of imprisonment. Not only is of relevance the fact that on this occasion ranging from a period of 2001 through to 2004 you interfered with a number of children, but it is also relevant that you had a history going back to 1996 of offences against children.
[27]
You are not being resentenced, of course, or punished more severely because of the offences committed in 1996, but it is something that I can take into account because it indicates that rehabilitation which might have been hoped for in 1996 was illusory."
[28]
The Board notes that the Court fixed your parole eligibility date at 14 March 2008.
In relation to your application for parole and your further submissions in December 2008, the Board noted the following:
You had listed a number of short, medium and long term goals for your release. These include: setting up accommodation; renewing your drivers licence; re-establishing family relationships; remaining offence free; establishing new friendships; have stable employment; own a new car; and gaining a long term relationship with a partner.
The letters dated 5 November 2007 and 17 December 2007 to yourself acknowledging that the services of psychologists Dr Frank J Walsh and Ian Campbell were available to you upon release, is indicative of your willingness to seek external assistance;
The Board notes Ian Campbell's preference that you complete a sex offender program in a group environment prior to one on one with him;
The letters of support from your parents, friends and family, is evidence of an additional external support mechanism with your release;
You do not have employment arranged for your release. However you have indicated in your parole application that you can continue with your prior employment, or further studies or gaining employment in the mines;
Your consideration of employment post release is otherwise limited to statements regarding the high availability of work in your areas of experience;
Over half of your 30 page application for parole (pages 14-30) is devoted to legal arguments, observations and citations from case law you require the Board to consider. Close to half your 14 page submission of 3 December 2008 (pages 6-11) details errors in the Parole Board Assessment report and corrections you require to that or your conviction history.
You have advised that you plan to undertake a post-graduate degree and you assert that you have been accepted for such and that at this stage you have deferred such studies. The Board notes the copious amounts of material you have been able to provide to evidence parts of your application yet no evidence such as a letter of acceptance or deferral for the Board to consider in relation to your plans to complete tertiary study;
The Future/Prevention Plan you have provided details what you have learnt since becoming incarcerated; how you can move forward with your life; being aware of the effects and problems associated with victims; and defining your life principles or philosophy. However, it did not identify sufficient high risk factors/triggers other than standard law or parole order conditions such as living no closer than 200 metres to a school or avoiding being alone with a child. Your plan also did not identify how the external support you have identified will assist you in preventing relapse, or what activities or process you will undertake to involve your external support; and
[29]
[10] Mr Kruck's outline of submissions, upon which he relied in support of his application, was lengthy, very detailed and referred to a number of grounds. Some of the submissions overlap and not all of them are clearly expressed. Nevertheless, the written submissions sufficiently demonstrate the errors which Mr Kruck says have occurred.
[30]
[11] I will deal with them in the same order as they appear in Mr Kruck's written submissions.
[13] One is that he "has a legitimate expectation that he would be able to achieve an early release recommendation as the next person". He refers to Heatley v Tasmanian Racing and Gaming Commission[2] and Kioa v Minister for Immigration and Ethnic Affairs[3]. The sentencing judge did set a date at which he would be eligible for parole under s160D of the Penalties and Sentences Act 1992, but that only worked to allow Mr Kruck to make an application for parole at that time. The only reasonable expectation he could have would be that the relevant Parole Board would consider the application properly.
[33]
[14] The second point, and one which is relied upon for other grounds, is that Board denied him parole on the basis that he maintained his innocence. The stance taken by Mr Kruck meant that he was not eligible to participate in certain programmes. He submitted that he was "being subjected to extreme discrimination because he is exercising his right to maintain his innocence and consequently, has been denied progression within the prison system."
[34]
[15] Notwithstanding Mr Kruck's refusal to acknowledge his guilt, the Board did recognise that he had said that he was willing to undertake any assessment provided that it did not interfere with his stance of innocence. Indeed, it had been recommended that he participate in a specialised assessment for a sexual offending programme.
[35]
[16] As a result of determination by the Board, a meeting with a psychiatrist was arranged for Mr Kruck. He attended the meeting on 12 June 2008 but refused to participate. This, the Board reasoned, demonstrated an unwillingness to gain an insight into his own behaviour and to deal with issues related to his offending behaviour.
[36]
[17] Mr Kruck argued that the Board had refused parole because he maintained his innocence. The Board's reasons, though, reveal a sounder basis.
[37]
[18] The principles to be applied when an applicant for parole insists on maintaining innocence were recently considered by Johnson J in DCU V State Parole Authority of New South Wales[4]. His Honour undertook a survey of the authorities and formed a view which I gratefully adopt. He said:
[38]
"[44] It appears that a number of the issues raised on this application have arisen in other jurisdictions where a parole authority considers the grant of parole to a sex offender. Although my attention was not drawn to some of these authorities at the hearing of this application, it is appropriate that I refer to them before moving to consider the Applicant's arguments in this case.
[39]
[45] The decisions in question have been made in the United Kingdom, Queensland and Western Australia. Although there are some differences between the parole legislation considered in the various decisions to which reference will shortly be made and ss 135 and 135A CAS Act, there is a broad similarity between the statutory functions and criteria applicable in the various jurisdictions.
[40]
[46] The following propositions emerge from the cases.
[41]
[47] Firstly, the parole authority starts from the premise that the offender is guilty. It is not for the parole authority to seek to go behind the conviction in some way or to examine the trial process to assess the strength of the Crown case or to review the correctness of the verdict: Mott v Queensland Community Corrections Board(1995) 2 Qd R 261 at 269-270 (Fitzgerald P); R v Secretary of State for Home Department; Ex parte Lillycrop[1996] EWHC Admin 281 at para 15; R v Secretary of State for Home Department; Ex parte Hepworth[1997] EWHC Admin 324 at paras 45-46.
[42]
[48] Secondly, it would be erroneous to refuse parole solely because of a denial of guilt by the offender and a refusal or inability to undertake a custodial treatment program: Mott at 271, 275; Lillycrop at paras 12, 18; Hepworth at paras 45, 47; Walker v Corrective Services Commission (Qld)(1999) 104 A Crim R 127 at 134 [16] (refusal of remissions); Varney v Parole Board (WA)[2000] WASCA 393; (2000) 23 WAR 187 at 205, [57] 209 [79] (Ipp J).
[43]
[49] In Varney, Malcolm CJ (at 190 [3]) and Ipp J (at 204-205 [55]-[56]) observed that there might be many reasons why a prisoner would not accept his guilt. These include an unwillingness to accept that he had lied in the past, an unwillingness to confront loss of face in accepting what has previously been denied and the possibility that the prisoner had been wrongly convicted. In Galli v NSW State Parole Authority[2006] NSWSC 206, Adams J observed at para 18 that there are a number of reasons why people do not admit their offences and amongst the strongest of those reasons is shame.
[44]
[50] Thirdly, although a decision to refuse parole based solely upon the offender's denial of guilt and refusal or inability to enter a rehabilitation program would be erroneous, these matters remain relevant to the decision whether to grant or refuse parole: Mott at 269-270 (Fitzgerald P), 271-272 (Davies JA), 275-276 (McPherson JA); Varney at 208 [71] (Ipp J).
[45]
Neither the respondent's denial of guilt nor his consequent unsuitability for participation in a sexual offender's program was a reason for refusing parole. But, read in context, I do not think that the appellant's reasons assert that either was. On the other hand his successful completion of that program, denied to him by his denial, would have been a factor in his favour. It was only in this negative sense that the appellant took the respondent's denial of guilt into account. In taking it into account in this limited way I do not think that the appellant can be said to have taken into account an irrelevant consideration in arriving at its decision.
[46]
The true basis upon which the appellant thought that the respondent's denial of guilt was relevant was that it denied the respondent the opportunity of participating in a program, successful completion of which may well have enhanced his case for parole.
[47]
[52] In Mott, McPherson JA at 275-276 pointed to the way in which denial of guilt and refusal or inability to undertake a rehabilitation program may be relevant to a parole decision:
[48]
Within the limits marked out by these two extremes there is an area in which an applicant's refusal to acknowledge guilt might have more or less significance to a decision whether to release on parole. I do not think the difficulty can be altogether resolved by saying that the Board is bound to accept and act upon the fact of the conviction alone. The question is not whether an applicant for parole has (as must always be the case) been convicted, but whether his refusal to acknowledge guilt may be regarded as a relevant consideration in assessing his application for parole. It is not difficult to see that in some circumstances it may be a factor relevant to the process of rehabilitation. An offender who has come to terms with his guilt, and is genuinely remorseful about it, would ordinarily be a more suitable candidate for parole than one who refuses to do so.
[49]
In the present case, it cannot be suggested that the Board adopted or acted upon a rule that the applicant must be refused parole simply because he failed to admit his guilt of the offence of murder of which he was convicted.
[50]
[53] In Varney, the Applicant had applied seven times unsuccessfully for admission to the custodial sex offender treatment program. It was accepted, in that case, that due to funding restrictions, that program was only available to persons who admitted their guilt (see 196 [24], 204-205 [55]-[56]). In this respect, Ipp J (Malcolm CJ and Wallwork J agreeing) said at 208 [71]:
[51]
I accept that in coming to its decision the Board took into account the denial of guilt by the applicant and the fact that for that reason he was not admitted to and did not undertake the SOTP [Sex Offenders Treatment Programme]. In my view, the inference to be drawn from the words expressing the decision is that the Board had regard to these matters on the basis that both the denial of guilt and the non-participation in the SOTP were factors tending to render the applicant unsuitable for parole. In my view, the Board was entitled to regard these matters in that light and so take them into consideration: see Mott v Community Corrections Board (Qld)[1995] 2 Qd R 261 at 268-270, per Fitzgerald P; at 275-276, per McPherson JA; at 271, per Davies JA; R v Secretary of State for the Home Department; Ex parte Zulfikar R v Parole Board; Ex parte Zulfikar.
[52]
[54] In my opinion, the principles emerging from these cases represent a sound foundation for consideration of the present case.
[53]
[55] The authorities from other jurisdictions make clear that an offender's denial of guilt and refusal or inability to attend a custodial rehabilitation program may be relevant factors in a determination as to whether parole ought be granted or refused. It will be necessary for the parole authority to have regard to all the circumstances of the particular case. I now turn to the grounds advanced by the Applicant in this case." (emphasis added)
[54]
[19] The reasons of the Board disclose that they took Mr Kruck's attitude into account but did not base its decision solely on that attitude.
[55]
[21] This ground appears to be based on an alleged failure to provide reasons in accordance with s 193(4) of the Act.
[56]
"If the parole board refuses to grant the application, the board must -
[57]
(a) give the prisoner written reasons for the refusal,"
[58]
[23] The Board informed Mr Kruck by a letter of 18 December 2008 that it had refused his application. The letter said that the Board's reasons would be forwarded to him "no later that 24 December 2008."
[59]
[24] By a letter to Mr Kruck dated 22 December 2008 the Board set out its reasons.
[60]
[25] The only basis for the submission that there had not been compliance with the section that I can detect is that the Board's reasons did not accompany the notice of the decision. That is not required by s 193(4). The Board is required to give reasons and, no doubt, they should be given within a reasonable time, but there is no mandatory requirement that the reasons be provided at the same time as the decision itself.
[61]
[26] Mr Kruck submits that the Board should not have taken into account the remarks of the sentencing judge. On the contrary, the Board should take into account the remarks of the sentencing judge. The Board should consider all the sentencing remarks and weigh them in the balance with all other relevant material such as, for example, an applicant's conduct since conviction.
[62]
Failure to take into account relevant considerations
[63]
[27] Under this heading, Mr Kruck has collected a large number of matters which, he says, should have, but were not, taken into account. He also refers to matters (such as his proposal to study for a Master of Justice degree) which should have been considered.
[64]
[28] Much of what Mr Kruck says should have been considered was referred to by the Board in its reasons. For example, he submits that the Board failed to consider his work history and his proposals for post-release employment. But the Board did address this matter. It said:
[65]
"• You do not have employment arranged for your release. However you have indicated in your parole application that you can continue with your prior employment, or further studies or gaining employment in the mines;
[66]
Your consideration of employment post release is otherwise limited to statements regarding the high availability of work in your areas of experience;
[67]
You have advised that you plan to undertake a post-graduate degree and you assert that you have been accepted for such and that at this stage you have deferred such studies. The Board notes the copious amounts of material you have been able to provide to evidence parts of your application yet no evidence such as a letter of acceptance or deferral for the Board to consider in relation to your plans to complete tertiary study;"
[68]
[29] Much of the argument by Mr Kruck under this heading is, in essence, a complaint that the Board has not accepted his arguments. His submission is really a request for a merits review of the decision perhaps with a complaint that undue weight was given by the Board to certain matters.
[69]
[30] On the former point, this Court cannot embark upon a merits review. On the latter point there has been debate about the extent to which the weight given to a factor can amount to an improper exercise of power and how it might properly be categorised. That debate was summarised by Lee J in Whim Creek Consolidated NL v Colgan[5] in the context of the Administrative Decisions (Judicial Review) Act 1977 and it is of value in that respect:
[70]
"The following comments of Mason J (as he then was) in Minister for Aboriginal Affairs v Peko-Wallsend Ltd, made in relation to s 5(2)(b) of the ADJR Act, offer guidance as to the significance of the application of inadequate weight to relevant considerations to the judicial review of administrative decisions:
[71]
'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: Associated Provincial Picture Houses Ltd v Wednesbury Corp[1947] EWCA Civ 1; [1948] 1 KB 223.
[72]
It follows that, in the absence of any statutory indication of the weight to be given to various considerations, it is generally for the decision-maker and not the court to determine the appropriate weight to be given to the matters which are required to be taken into account in exercising the statutory power ... I say 'generally' because both the principle and authority indicate that in some circumstances a court may set aside an administrative decision which has failed to give adequate weight to a relevant factor of great importance, or has given excessive weight to a relevant fact of no great importance. The preferred ground on which this is done, however, is not the failure to take into account relevant considerations or the taking into account of irrelevant considerations, but that the decision is 'manifestly unreasonable'. This ground of review was considered by Lord Greene MR in Wednesbury Corp, in which his Lordship said that it would only be made out if it were shown that the decision was so unreasonable that no reasonable person could have come to it. This ground is now expressed in ss 5(2)(g) and 6(2)(g) of the ADJR Act in these terms. The test has been embraced in both Australia and England ... However, in its application, there has been considerable diversity in the readiness with which courts have found the test to be satisfied: cf, for example, Wednesbury Corp and Parramatta City Council v Pestell[1972] HCA 59; (1972) 128 CLR 305, with the conclusions reached in South Oxfordshire District Council v Secretary of State for the Environment[1981] 1 WLR 1092 at 1099; [1981] 1 All ER 954 at 960; Hall & Co Ltd v Shoreham-By-Sea Urban District Council [1964] 1 WLR 240; [1964] 1 All ER 1; and at 1173. But guidance may be found in the close analogy between judicial review of administrative action and appellate review of a judicial discretion. In the context of the latter, it has been held that an appellate court may review a discretionary judgment that has failed to give proper weight to a particular matter, but it will be slow to do so because a mere preference for a different result will not suffice: ; at 519; ; at 519-520, 534, 537-538; ; at 614-615, 622. So too in the context of administrative law, the court should proceed with caution when reviewing an administrative decision on the ground that it does not give proper weight to relevant factors, lest it exceed its supervisory role by reviewing the decision on its merits.'
[73]
It is apparent from his Honour's comments that he regarded the occasions upon which the inappropriate attribution of weight would be a basis for an order of review would be rare. Further, his Honour indicated that such a ground may be subsumed under the ground of "unreasonableness". Such a ground is expressly included in s 5(2)(g) of the ADJR Act as a particular of the general ground of improper exercise of power. His Honour does not state that inappropriate weight cannot establish a ground for review of a decision pursuant to the ADJR Act.
[74]
I note that diverging views have been expressed regarding the question of whether undue or inadequate weight can, in itself, be a ground for review under the ADJR Act. In Sean Investments Pty Ltd v MacKellar(1982) 42 ALR 676 at 684, Franki J stated that:
[75]
'I do not think that s 5 of the [ADJR] Act extends to a case where the only basis for attacking the decision under review is that undue weight was given to a consideration to which it was permissible to give some consideration.'
[76]
The conclusion of Woodward J in Sordini v Wilcox[1983] FCA 57; (1983) 70 FLR 326 at 343 would appear to point in the opposite direction:
[77]
'It is clear that the taking into account by an administrative tribunal of irrelevant factors, or the failure to give any, or any sufficient weight to significant factors in the exercise of a discretion, will open the door to a judicial review of that discretion. This is the third circumstance in which an appellate court may interfere. See, for example, Edmund Davies LJ in Instrumatic Ltd v Supabrase Ltd[1969] 1 WLR 519; [1969] 2 All ER 131.'
[78]
I note that Blackburn J appears to agree with Woodward J on this point (at 331).
[79]
In Western Television Ltd v Australian Broadcasting Tribunal (supra), Pincus J, after considering the cases referred to above and others, concluded that:
[80]
'Although I have doubt whether improper weighting of considerations was ever, in itself, a ground for the issue of prerogative writ, it seems clear enough that the proper course is to follow the views expressed in these decisions of the High Court and of the Full Court. In doing so, however, I should act on the basis that wrong weighting does not vitiate a decision unless it 'really amounts to a failure to exercise the discretion ...' per Latham CJ in Lovell v Lovell[1950] HCA 52; (1950) 81 CLR 513 at 519; see also per Gibbs CJ in the Marriage of Mallet[1946] ArgusLawRp 6; (1984) 52 ALR 193 at 200.'
[81]
In Tabag v Minister for Immigration and Ethnic Affairs[1982] FCA 276; (1982) 70 FLR 61, the Full Court considered whether the giving of inadequate weight to a relevant consideration could amount to an error of law for the purposes of s 44 of the Administrative Appeals Tribunal Act 1975 (Cth). That question is not the point of issue in this matter which involves the review of an administrative discretion and not the exercise of appellate jurisdiction. Nothing that is said in those judgments would deny the possibility of improper attribution of weight being sufficient to establish that an administrative decision has been an improper exercise of a discretionary power within the meaning of s 5(1)(e) of the ADJR Act.
[82]
Section 5(2)(a) and (2)(b) of the ADJR Act state that taking into account irrelevant considerations and failing to take into account relevant considerations are elements of the ground of improper exercise of a power. In some cases improper attribution of weight may be covered by either of those specified elements, but there will be other occasions when it is not. Similarly, although as stated earlier the application of weight may be expected to be subsumed under the "unreasonableness" ground (s 5(2)(g)), there may be cases where such circumstances will stand on their own to show that a power has been improperly exercised.
[83]
It appears that the weight of authority inclines towards a finding that improper weight can, of itself, in certain exceptional circumstances, establish that a discretion has been improperly exercised, a ground for an order to review pursuant to the ADJR Act."[6] (emphasis added)
[84]
[31] Assuming that the exceptional circumstances exist, the question of whether "improper weight" has been afforded a particular consideration should be answered by considering the task which the decision-maker has to perform, the criteria (if any) which must be addressed, and the whole of the material available for consideration. In this case, the Board has had before it all relevant material and has carefully extracted those matters which are relevant to its task. In doing that, it is entitled to afford different weight to different matters when those matters allow, or call for, the rational assignment of a different rank in the order of relative importance. This process will differ from decision to decision. The process undertaken by the Board demonstrates to me that it has carefully considered the relevant matters and given appropriate weight to them.
[85]
Improper exercise of power - exercise of discretionary power in accordance with a rule or policy without regard to the merits of the case
[86]
[32] Mr Kruck submits that the Board has acted in accordance with a pre-determined policy. This is a matter which he has raised, successfully, in another application about an earlier decision[7]. In that case the Board's decision was remitted for further consideration. AM Lyons J said:
[87]
"[54]In my view the Board did not turn its mind to actually considering the merits of the applicant's case because essentially he had failed to comply with the pre-requisites that the Board required before they would grant parole. I consider an examination of the Reasons of the Board discloses that it exercised its power in accordance with such a policy and without having regard to the actual merits of the applicant's actual application for parole. I consider that the Board did not actually consider all the relevant material placed before it. The applicant had appropriate accommodation, extensive community support, an outstanding work history as well as a willingness to participate in programs, and he had a place in a Masters course at university if released. Furthermore, he did not drink or have any substance abuse problems. The PBAR in fact noted "...[t]hus, no criminogenic needs in relation to substance abuse were identified...he has not incurred any breaches or negative incidents during his incarceration."
[88]
[33] It is clear to me that the Board has, in the light of that decision, approached the matter afresh. The Board did refer to Mr Kruck's stance on innocence and his refusal to take part in an assessment. It did not regard these as dictating the decision which it must reach, but rather that these factors were evidence of an attitude it was entitled to (and in my view should) take into account.
[89]
[34] The Board has said in its reasons that it "independently exercised its discretion and ensured that [Mr Kruck's] application was considered on its own merits without any inflexible application of policy." A statement like that is not determinative of this question. Whether a decision-maker has simply applied a policy without having "genuinely and realistically" considered the merits of the case is to be assessed by reference to all of the decision, the reasons and the matters before the decision-maker. [8]
[90]
[35] The reasons given by the Board demonstrate an abandoning of the view formerly held and the taking of a new approach.
[91]
[36] The two matters particularly concerning Mr Kruck are: the psychiatric assessment issue and the relapse plan.
[92]
[37] As to the former, the refusal, itself, by Mr Kruck to take part in the assessment has not played a part in the Board's decision. Rather, it reasoned as follows:
[93]
"• The Board noted that you have been recommended to participate in the specialised assessment for a sexual offending [program]. The Board noted your willingness to participate in the specialised assessment on the proviso that your claim of innocence is not compromised. The Board understands that, notwithstanding your claim of innocence, you remain eligible for this assessment and also for participation in the Getting Started: Program Participation Program if recommended to do so as a result of the assessment.
[94]
• The Board considers that assessment of offenders by appropriately qualified individuals assists in identifying appropriate treatment targets and effective risk management strategies. Accordingly the Board determined on 7 May 2008 to have a psychological assessment prepared to assist in its consideration of your application.
[95]
• The Board also notes that despite your stated willingness to undertake assessment, Dr Freeman has advised that as part of his meeting with you on 12 June 2008 in which you refused to participate in a psychological assessment, you stated "I've already assessed myself and I am fine". In the Board's view this displays an unwillingness to gain an insight into your behaviour and a chance to address the issues related to your offending behaviour.
[96]
• The Board regards the opportunity for offenders to gain knowledge of personal triggers and explore strategies as important in the rehabilitative process and of general assistance to offenders to avoid re-offending in the future."
[97]
[38] The reasoning of the Board did not involve the errors of the kind identified in Gerrits v Chief Executive, Department of Corrective Services.[9] It noted the applicant's non-participation in a treatment programme was due to a refusal to be assessed, but it saw this as an indication of a deeper problem, namely, "an unwillingness to gain an insight into your behaviour and a chance to address the issues related to your offending behaviour". This was the matter which moved the Board, not the mere application of a policy.
[98]
[39] In his application for parole, Mr Kruck included a relapse plan. He argues that the Board has, contrary to the decision in Gough v Southern Queensland Regional Parole Board,[10] demanded that he provide a plan. The Board has not done that. It said:
[99]
"• The Board is of the view that your application for parole provides a limited consideration by you, to prevent you (or assist in preventing you) from relapsing into offending behaviour. Your Future/Prevention Plan provides some insight for the Board, however as indicated above, it does not identify sufficient high risk factors/triggers other than standard law or parole order conditions such as living no closer than 200 metres to a school or avoiding being alone with a child. Your plan also does not identify how the external support you have identified will assist you in preventing relapse, or what activities or process you will undertake to involve your external support.
[100]
In the absence of an effective plan the Board was concerned that you would be unable to avoid or manage situations or circumstances that have in the past led to criminal behaviours by you."
[101]
[40] The Board has not required that Mr Kruck submit a relapse plan before it will allow parole. It has considered what Mr Kruck has said in the plan he submitted and taken that into account in its overall determination.
[102]
(a) There is no evidence to justify the Board's decision. There was a substantial amount of material which the Board considered and was capable of supporting its decision.
[103]
(b) There has been an abuse of process by the Board in these terms: "That the Abuse of Power by the Respondent consider a assessment by psychologist to cross-examine the applicant and intimidate on facts that are not relevant, with their own policies of the Respondent are continuing the abuse against the castration of the applicant." That and the other assertions under this heading are equally unintelligible.
[104]
(c) The Board has not complied with orders made by AM Lyons J and the Court of Appeal. Those orders were for the Board to reconsider the application. It has.
[105]
[42] Mr Kruck has not demonstrated that the Board has failed to consider his application properly or that it has fallen into reviewable error in making its decision.
[106]
[43] The application is dismissed. I will hear the parties on costs.
13.10.08: Applicant's second application for review received by Respondent.
19 & 28.10.2008: A Lyons J heard the application for judicial review.
03.12.08: Decision of Court of Appeal issued, setting aside decision of PD McMurdo J and referring matter to the respondent for decision at its meeting on 17 December 2008.
10.12.08: Applicant's second application for parole reconsidered by the Respondent.
10.12.08 Letter from the Respondent advising the Applicant that his application for parole was reconsidered by the Respondent at its meeting on the same day and that '[t]he Respondent decided to request that a psychological assessment be prepared and consideration of your case has been deferred until that assessment has been received". No further reasons given.
15.12.08: Judgment of AM Lyons J delivered, setting aside the Respondent's decision of 20 August 2008 to refuse the Applicant's (first) parole application and ordering the application be referred to the Respondent for reconsideration.
17.12.08: Respondent reconsidered Applicant's application for parole.
18.12.08: Applicant wrote to the Respondent, requesting reasons for its decision pursuant to s33 of the JRA.
22.12.08: Letter from Respondent advising that it had reviewed the Applicant's application at its meeting on the 17 December 'as per the recent judgment by the Court of Appeal in the Supreme Court of Queensland'. In determining the application and deciding again not to grant the Applicant parole, the Respondent says it 'fully considered the judgments of 3 December 2008 and 15 December 2008 together with [the Applicant's] submission of 3 December 2008'. The reason given for not granting parole is that the offender 'would be an unacceptable risk to the community on a parole order at this time'.
08.01.09: Letter from the Respondent advising that the letter of the 22.12.08 was in a draft form and attaching a revised copy, including changes to the year of the final paragraph from 2008 to 2009.
13.01.09: Letter from the Respondent, providing reasons in response to Applicant's request for reasons, made 18.12.08, pursuant to s33 of the JR Act.
The additional material you provided in your submission in December 2008, following concerns raised by the Board does provide some detail of your consideration of such triggers and high risk situations, as well as ways to avoid such situations, but limited indication of strategies or preventative measures to ensure you avoid such situations in the future.
The Board notes your good institutional conduct as well as your educational and vocational achievements.
The Board further notes the positive recommendation of your proposed residence at Bundamba.
In terms of your innocence stance, the Board is concerned that the material before it (your application and parole report) did not suggest you had an appropriate understanding of how you again came to be in the position of facing charges of a sexual nature against children. The Board is concerned that previous court sanctions have not acted as a deterrent to your continued offending or your placing yourself in a situation where you can face allegations of such offences.
The Board noted that you have been recommended to participate in the specialised assessment for a sexual offending [program]. The Board noted your willingness to participate in the specialised assessment on the proviso that your claim of innocence is not compromised. The Board understands that, notwithstanding your claim of innocence, you remain eligible for this assessment and also for participation in the Getting Started: Program Participation Program if recommended to do so as a result of the assessment.
The Board considers that assessment of offenders by appropriately qualified individuals assists in identifying appropriate treatment targets and effective risk management strategies. Accordingly the Board determined on 7 May 2008 to have a psychological assessment prepared to assist in its consideration of your application.
The Board also notes that despite your stated willingness to undertake assessment, Dr Freeman has advised that as part of his meeting with you on 12 June 2008 in which you refused to participate in a psychological assessment, you stated "I've already assessed myself and I am fine". In the Board's view this displays an unwillingness to gain an insight into your behaviour and a chance to address the issues related to your offending behaviour.
The Board regards the opportunity for offenders to gain knowledge of personal triggers and explore strategies as important in the rehabilitative process and of general assistance to offenders to avoid re-offending in the future.
The Board took into account the very serious sexual nature of your offences, and the significant detrimental effect your offending would have had on your child victims. Were you to re-offend the Board considered that the risk a member of the community would suffer physical or psychological harm was high.
The Board was concerned that the material before it did not suggest that you had an appropriate understanding of how you came to commit these offences or that you fully comprehended the impact that your offending behaviour had on the victims.
The Board is of the view that your application for parole provides a limited consideration by you, to prevent you (or assist in preventing you) from relapsing into offending behaviour. Your Future/Prevention Plan provides some insight for the Board, however as indicated above, it does not identify sufficient high risk factors/triggers other than standard law or parole order conditions such as living no closer than 200 metres to a school or avoiding being alone with a child. Your plan also does not identify how the external support you have identified will assist you in preventing relapse, or what activities or process you will undertake to involve your support
In the absence of an effective plan the Board was concerned that you would be unable to avoid or manage situations or circumstances that have in the past led to criminal behaviours by you.
The Board examined your employment goals as outlined in your parole application, the Parole Board Assessment Report dated 20 March 2008 and your submission of 3 December 2008. The Board paid particular attention to the phrases "I haven't decided yet. After I sue Corrective Services I don't know I will see how rich I am" and that you had "dreams" that you are unwilling to share with anyone. The Board's view was that this was very vague and did not constitute a solid employment plan for the community.
The Board is aware that employment is recognised as a significant factor in reducing re-offending. The Board was concerned that your expectation of obtaining employment in your areas of expertise was overly optimistic. The Board is of the view that when unrealistic expectations are not met, individuals often return to former patterns of behaviour which might result in re-offending. The Board was concerned that as you had not sought an offer for work, and the vagueness of your employment future, suggested a lack of commitment to change which may ultimately lead to you re-offending."
Minister of Housing and Local Government v Hartnell