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[2012] QSC 121
Supreme Court of Queensland
2012-05-03
Dalton J
Original judgment source is linked above.
[1] DALTON J: This is an application for a statutory order of review under the Judicial Review Act 1991 (Qld). There are three grounds:
(a) the Parole Board failed to consider the case put by the applicant;
(b) the Parole Board misconstrued the term "exceptional circumstances" as it appears in s 194(1)(a) of the Corrective Services Act 2006 (Qld), and
(c) the Parole Board acted on material which it obtained from a third party and about which the applicant had no chance to make a submission.
[2] On 18 February 2010 Mr Leggett was convicted on a plea of guilty of one count of fraud with circumstances of aggravation. The circumstances of aggravation were that Mr Leggett was a director of the complainant company at the time of the fraud and that the yield from the offence was in a sum greater than $30,000. In fact the amount taken from the company was in excess of $5½ million. The wrongful transfers occurred between January 2006 and February 2008. The fraud was discovered after Mr Leggett left the company and, perhaps unusually, that company commenced civil proceedings against him to recover the amount of the loss, rather than go to the police. When civil proceedings were commenced Mr Leggett wrote to the complainant company explaining what he had done and apologising. He then went to the police and made relevant admissions. He pleaded guilty early. The maximum sentence was one of 10 years. Mr Leggett was sentenced to nine years' imprisonment and a recommendation was made that he should be eligible for parole after serving three years' imprisonment. McGill DCJ was sympathetic towards the defendant on sentence. He said:
"Indeed it seems to me, frankly, that the collection of mitigating circumstances in this case might have justified an even earlier release, but in the light of the other decisions of the Court of Appeal to which I have been referred, it does not seem to me that an even earlier release would be consistent with those decisions."
[3] Apart from the co-operation with police and the early plea, the mitigating circumstances referred to by the sentencing judge related to Mr Leggett's health and the health of his wife. Mr Leggett was between 51 and 53 at the time of offending. He was 55 at the time of sentence. He is 57 now. Mr Leggett had been diagnosed as suffering from depression in the early 1990s. He saw a psychiatrist between 1991 and 1993. It seems that although he continued with psychotropic medication after that time he was not continuing to see a psychiatrist. He began seeing a psychiatrist again in 2009.
[4] As well Mr Leggett suffers from Multiple Endocrine Neoplasia Type 1, (MEN-1). Of these conditions the sentencing judge said:
"As I say the depression, it seems, may have been secondary to other medical problems that you have of some seriousness. You have a medical, a congenital condition, of multiple endocrine neoplasia type 1 which results in the development of multiple tumours in various glands of the body which are ordinarily benign, but which can behave in a malignant way, and if so, this leads to the glands being removed.
Various glands have been removed at different times from your body, and because of that, and because of the need to control the condition, you require quite extensive medication. It appears, I should say, from the earliest report of the psychiatrist that this was related to the development of the psychiatric problems because of concerns about your health and you certainly suffer from extensive problems about your health.
The specialist reporting on your physical condition does not suggest that had any influence on your behaviour in relation to the charge, but it certainly indicates that you require unusually high level of medical supervision, and unusually high level of medication, and that this will, as another factor, apart from the psychiatric problems which understandably got worse since the criminal charges arose, make prison a more severe burden for you than for an ordinary offender, and I think that is another relevant factor."
[5] As well McGill DCJ said of Mr Leggett's wife's health:
"In view of your plea of guilty, your cooperation with the police and the prosecution, your previous good character and the fact that you have not previously been imprisoned, the fact that imprisonment would be a more serious burden for you than for others, which I think is a relevant consideration, albeit not a major consideration, and the effect of imprisonment on your family, particularly your wife, I propose to make a recommendation for early parole.
I should say something about that last point because there is a particularly unusual circumstance in the present case relating to the position of your wife. She suffers from epilepsy which is not properly controlled by medication to the extent that she still suffers seizures, and if she has a major seizure it requires hospitalisation and usually results in her falling. She has in the past fallen heavily and injured herself as a result of doing so.
In those circumstances she's really in a position where she should not be living alone. You have been caring for her in the past, and as a result of the term of imprisonment, you would not be able to continue that care while imprisoned. It seems to me that this unusually serious medical condition of your wife, and the effect of this on the need for your care, means that in this situation it is an exceptional or extreme case, and so it is a case where some allowance can be made for that, albeit again not a major one."
[6] Lastly, at the very end of his sentencing remarks McGill DCJ said:
"I also direct that copies of Exhibits 9 and 11 be provided to the Director of Corrective Services. They are the report from your general practitioner in relation to your health generally, and the report detailing the medication that you are receiving and the effects of your medical condition. It is, of course, important that the prison authorities have that information available so that you receive proper management for your medical condition while you are in prison. I should say that I am assuming that that will be received, and sentencing accordingly."
Deterioration in Mr Leggett's Health after Imprisonment
[7] Mr Leggett commenced serving his sentence on 18 February 2010. In March 2010 Mr Leggett was found to have a pancreatic endocrine carcinoma with 5/30 lymph glands removed at surgery positive for cancer. He had a separate 7.5 mm endocrine tumour, which was also cancerous, in his duodenum. As a result he had a total pancreatectomy, partial duodenectomy, cholecystectomy and splenectomy all on 21 July 2010.
[8] As a result of the removal of his pancreas Mr Leggett has a total inability to produce insulin and pancreatic enzyme so that he now requires four to five injections of insulin every day and pancreatic enzyme every time he eats. As a result of his MEN-1 disease Mr Leggett had pre-existing hyperparathyroidism, prolactinoma, a cystic pituitary lesion (with secondary longstanding hypogonadotrophic hypogonadism and hypothyroidism), renal difficulties which had resulted in a left nephrectomy and cardiac difficulties including aortic regurgitation and right bundle branch block and left anterior fascicular block and hypertension.
[9] All things considered he was in a poor medical state when he began his term of imprisonment and by July 2010 that medical state had become considerably worse with the development of pancreatic and gastric cancer and, as a result of treatment, diabetes and pancreatic insufficiency. In November 2010 an endocrine registrar who was apparently treating him put his life expectancy at about 50 per cent chance of five year survival.
[10] Perhaps not surprisingly his psychiatric state worsened in view of what his treating psychiatrist called, "the tragic constellation of medical, psychiatric and social circumstances" which befell him in 2010. He continued to suffer from depression and experienced suicidal ideation.
[11] In May 2011 Mr Leggett's treating endocrinologist recorded that Mr Leggett's diabetic condition was worse than the normal condition of type 1 diabetes because he had absolutely no ability to produce any insulin and also had no ability to produce a hormone called glucagon so that he was more likely to get significant swings in his blood glucose levels and more likely to get episodes of low blood glucose, even than someone who suffered from type 1 diabetes. His diabetic condition is thus very unstable and he has had blood glucose levels as low as 1.1 mmol/l. Such low levels of blood glucose can cause a condition known as hypoglycaemic unawareness which gives the sufferer very little time to respond to an episode of low blood glucose levels before he or she lapses into unconsciousness.
[12] The endocrinologist views this as a more serious condition than the pancreatic cancer itself. His view is that Mr Leggett should be under observation at all times because of the risk he is at from hypoglycaemia. He believes that the episodes of hypoglycaemia which Mr Leggett experiences will become increasingly severe and that he will be at increased risk of fitting and suffering brain damage (or even death) as a consequence.
[13] In August 2011 Mr Leggett suffered another severe medical episode. He bled from his intestine such that he lapsed into semi-consciousness. He was taken from the prison to hospital, underwent a laparotomy, his gastric surgery was re-done, his small bowel was resected and a number of tumours were excised. The bleeding seems to have been related to the surgery to remove the pancreatic tumour but no definitive cause of the blood loss could be found. His doctors describe the episode as potentially life-threatening. As a result of the episode and the consequent surgery Mr Leggett spent almost a month in hospital. On the morning Mr Leggett suffered the intestinal bleeding, he reported it to prison authorities. There was no doctor at the prison. A doctor advised by telephone that Mr Leggett should wait to see if the bleeding reoccurred. It did after several hours. An ambulance was then called. It took an hour to attend the prison. More time was lost for the trip into hospital.
[14] In addition to this evidence, there was evidence before the Parole Board that the applicant's wife's medical condition had also deteriorated since the time of sentence.
[15] Section 176 of the Corrective Services Act 2006 (Qld) provides that a prisoner may apply for an exceptional circumstances parole order at any time. Section 177 provides that an exceptional circumstances parole order may start at any time. Section 194(1)(a) of the same Act states, "A parole board may, by a parole order release any prisoner on parole, if the board is satisfied that exceptional circumstances exist in relation to the prisoner."
[16] I think it is clear from the above that a prisoner may apply for and be released on exceptional circumstances parole before a parole release date, or parole eligibility date, fixed by the Court, is reached. The words exceptional circumstances are nowhere defined in the Corrective Services Act. The explanatory notes to the Corrective Services Bill 2006 (Qld) state with regard to what became s 176 of the Act:
"For instance, irrespective of the prisoner's period of imprisonment, a prisoner who develops a terminal illness with a short life expectancy or who is the sole carer of a spouse who contracts a chronic disease requiring constant attention may be granted an exceptional circumstances parole order.
The Bill does not seek to limit the reasons for which a prisoner may apply for exceptional circumstances parole. The board considering the application has absolute discretion to determine whether the circumstances of the application warrant the prisoner being released at a time earlier than he or she is eligible for release on parole."
[17] Section 6.1 of the Ministerial Guidelines to the Queensland Parole Board state:
"Ordinarily, a prisoner should be classified as low security prior to parole being granted. However, at the board's discretion, a prisoner may be approved for parole if -
(a) a parole eligibility date has been set by the court;
(b) exceptional circumstances exist, for example, the prisoner may have developed a serious medical condition that has been verified (see section 6.13)."
Section 6.13 of the Guidelines states, "Before making a decision to grant parole in the case of a prisoner claiming exceptional circumstances for serious medical reasons, the Board should first obtain advice from QSC on the management of the prisoner's medical condition."
[18] On 10 January 2011 Mr Leggett made an application for exceptional circumstances parole. The Parole Board wrote to him on 28 March 2011 saying, inter alia:
"The Board has formed its preliminary view that your release on parole would be an unacceptable risk to the community for the following reasons:
The Board noted that the Court was aware of your medical condition at the time of sentencing and the circumstances for your family including their medical conditions.
The Board was of the view that you can be adequately managed in the correctional system however would be prepared to reconsider your matter if there was a significant deterioration in your medical condition.
Having considered all the material before it, for the reasons set out in this letter, the Board has formed the preliminary view that you would be an unacceptable risk for release on parole at this time."
[19] The Board invited further submissions. Solicitors acting for Mr Leggett put before the Parole Board a very impressive written submission as to his application for exceptional circumstances parole in July 2011, and a further shorter, but nonetheless impressive, submission in October 2011. These submissions were to the effect that: (a) Mr Leggett relied upon the significant deterioration in his health since he was sentenced; (b) the conditions of pancreatic cancer, diabetes, suicidal ideation and intestinal bleeding, were not present when he was sentenced and were not taken into account by the sentencing judge; (c) Mr Leggett had a short life expectancy and was at risk of sudden death; (d) Mr Leggett's medical conditions could not be adequately managed in prison; (e) Mrs Leggett's condition had worsened since Mr Leggett's imprisonment.
[20] The Board had before it a recommendation from the Parole Assessment Panel dated before the episode of life-threatening bleeding which recommended exceptional circumstances parole. It had before it recommendations from Queensland Health doctors after the episode of bleeding which expressly recommended early parole and made reference to the life-threatening nature of Mr Leggett's conditions.
[21] The Board determined to refuse exceptional circumstance parole. On 14 December 2011 the Board wrote to Mr Leggett saying, inter alia:
"At its meeting on 02 December 2011, the Board took into account the numerous submissions including a submission from your legal representative, medical reports, and a report from the Clinical Manager, Borallon Correctional Centre.
However, the Board determined that there was no information contained in the submissions which would alleviate its concerns as identified to you in its correspondence dated 28 March 2011.
For the reasons set out in this letter and its previous letter to you the Board decided that your application has been declined."
[22] Reasons were requested from the Board. A "Statement of Reasons" was delivered. It is dated 25 January 2012. It is a most inadequate document. In fact it does not display or reveal the reasoning process of the Board. To begin with it recites various matters including a recitation that on 11 March 2011 the Board considered the applicant's application for exceptional circumstances parole and reached a preliminary view that the applicant would pose an unacceptable risk to the community if he were released on parole at this time.
[23] The 52 pieces of written material said to have been relied upon by the Board are then listed and then the following appears:
Based on the findings listed above, the Board considered that the Court was aware of the Applicants personal circumstances at the time of sentencing and that his medical requirements can be adequately managed while incarcerated. Therefore, the Board determined that there were no issues identified which would warrant the Applicants release to Exceptional Circumstances Parole at this time and therefore refused his Application."
[24] The applicant's first argument was that the Parole Board failed to consider the case put by Mr Leggett and that this either amounted to a breach of natural justice - Judicial Review Act 1991 (Qld) s 20(2)(a) - or a failure to take into account relevant considerations - s 20(2)(e) and s 23(b) of the same Act.
[25] In Australian Bank Employees Union ex parte Citicorp Australia Ltd[1] the High Court held:
"One aspect of the duty to act judicially is the duty to hear a party and allow him or her a reasonable opportunity to present his or her case ... And, of course, coupled with that duty is the duty to consider the case put."
[26] In Dranichnikov v Minister for Immigration and Multicultural Affairs[2] the High Court considered an appeal by a Russian man who contended that the Refugee Review Tribunal had failed to exercise its jurisdiction. He had contended that he was entitled to be treated as a refugee on the following basis:
"The applicant['s] claim is based on the principle that he belongs to a particular social group of 'Entrepreneurs' - as a businessman in Russia, he is at risk from the criminal organisations that operate in Russia and who have links with the authorities. He states that his profile is raised because he organised anti-crime meetings and spoke out in public against the authorities [sic] inability to defeat crime." - [18] (emphasis in the High Court judgment).
[27] The delegate who considered Mr Dranichnikov's application rejected it saying, "I do not accept that there is evidence to suggest that there is general persecution of businessmen in Russia" - [19]. In the High Court it was accepted that the "Tribunal misstated and failed to deal with the case presented to it." - [23]. Gummow and Callinan JJ went on:
"To fail to respond to a substantial, clearly articulated argument relying upon established facts was at least to fail to accord Mr Dranichnikov natural justice" - [24].
In fact they considered it amounted to a failure to exercise jurisdiction - [25].
[28] In my opinion the approach of the Parole Board in this case makes the same error of principle as that identified in the case of Dranichnikov. Here the case put by the applicant Mr Leggett was that since his imprisonment his health problems had become very significantly worse. There was very clear evidence that this was so. While the sentencing judge was aware that Mr Leggett suffered from MEN-1 and that this was a serious illness, in at least three respects his health had become much worse since his imprisonment. First, he has developed cancer of the pancreas with metastases in five lymph nodes. This, against the background of his pre-existing medical conditions meant that he had only a 50 per cent chance of living five years. Second, as a consequence of having his pancreas removed, Mr Leggett has very bad, very unstable diabetes. Not only that, but he appears not to be aware when an episode of hypoglycaemia is being experienced so that condition for him is very dangerous. The fact that he is in jail where he is not able himself to regulate his insulin contemporaneously with meals, makes this situation even more dangerous than it otherwise would be. Third, as a result of surgery to remove his pancreas Mr Leggett has undergone one very severe episode of intestinal bleeding which was life-threatening and which Queensland Health's doctors say he was lucky to survive. No definitive cause was found for the bleeding. There must be a risk of recurrence. The last two of these medical conditions mean that Mr Leggett is at risk of sudden death which risk is not taken into account in the 50 per cent chance of surviving five years formula.
[29] Mr Leggett's case for exceptional circumstances parole was based on several factual points but this massive deterioration in his health since imprisonment was clearly the most significant of these points. There is no indication in the letters dated 28 March 2011, 14 December 2011, or in the reasons of 25 January 2012 that the Parole Board understood this was Mr Leggett's case. In fact the indications are to the contrary. The Parole Board did not deal with this case. It made no findings as to the deterioration in his health since imprisonment and made no determination of whether that deterioration amounted to exceptional circumstances. Having regard to the massive deterioration in the health of Mr Leggett since imprisonment, and having regard to the very clear way in which he articulated his case before the Parole Board, that failure to recognise and deal with the case by the Parole Board is remarkable. I have no difficulty in concluding both that Mr Leggett was denied natural justice and that the Parole Board did not consider relevant considerations in making its decision.
[30] Another ground of Mr Leggett's application was the deterioration in his wife's health. Once again it seems that this part of his application was not in any real way considered by the Parole Board. No factual determination was made about it, and no determination was made as to whether or not it would amount to exceptional circumstances.
[31] In making these findings I look to the substance of the letter of 14 December 2011 and the reasons given on 25 January 2012. Merely to recite a long list of material as something considered by the Board does not show that the material has been considered. The substantive parts of both the December letter and the January reasons do not show any consideration of the substance of the material put before the Board by Mr Leggett. Both in the letter of 28 March 2011 and in the reasons of 25 January 2012 the Board states that the sentencing judge was aware of Mr Leggett's medical condition. The sentencing judge was certainly aware of (and sympathetic to) Mr Leggett's medical condition as at the time of sentence. However, it appears that the Board has wholly missed the point that there has been a massive deterioration in his medical condition since sentencing. The sentencing judge could not, by definition, have been aware of the matters which Mr Leggett was plainly putting before the Parole Board as the mainstay of his application for exceptional circumstances parole.
[32] Both in its letter of 28 March 2011 and the reasons of 25 January 2012 the Board states that it would be prepared to reconsider the applicant's case if there was a significant deterioration in his medical condition. Mr Leggett is very much at risk of dying, suddenly, if his medical situation deteriorates further. That the Board would make such comments is a strong indication that it has wholly missed the point of the application made to it.
[33] In the reasons of 25 January 2012 the Board said (as it had said on 28 March 2011) that its view was that Mr Leggett could be adequately managed in the correctional system. In the reasons of 25 January 2012 the Board goes on to say that there "was no information included in the submissions which would alleviate [sic] this view." The Board had before it a letter from a Queensland Health endocrinologist (Sullivan) saying:
"I refer to the recent medico legal reports (attached). These remain valid and I will not reiterate that information. There is new information.
I believe he should be allowed early parole due to his multiple serious medical conditions and the difficulty of providing complex medical care whilst incarcerated."
[34] The Parole Board also had before it an opinion from the private endocrinologist (d'Emden) which concluded:
"Given these multitude of major medical problems, I really do believe that it is not appropriate that Mr Leggett be domiciled in an institution which is a significant distance away from a major medical institution. ... Secondly, I think there is now repeated evidence that the proper medical care that Mr Leggett requires for many acute emergencies that have occurred has been delayed, and significantly so on several occasions, potentially endangering his life. A severe episode of hypoglycaemia or of gastro-intestinal bleeding can be life threatening. He really requires to live close to a medical facility and have the ability to present quickly to a tertiary medical facility. ... The most appropriate care situation for Mr Leggett would be to be placed in home detention under the supervision of his wife. ... This would enable immediate therapy to be administered in the case of hypoglycaemia ... as well as being able to quickly present to a emergency centre if any of the other medical problems he has had eventuate. Moving him to a correctional facility closer to the secure unit at the Princess Alexandra Hospital does not address the on-going problem of appropriate care being administered quickly at the time of a medical emergency. I would recommend strongly that the Parole Board reconsider his continuing confinement at the Borallen Correctional Centre and consider other more medically appropriate options given his serious but rare circumstances."
[35] It is difficult to see how the Board could be of the view that there was no information included in the submissions which showed that the applicant could not be managed in the correctional system. There clearly was. That did not determine the outcome of the application. However, the fact that the Board thought there was no such information indicates that it did not properly understand or consider the material before it.
[36] Both in the letter of 28 March 2011, and, by reference, in the letter of 14 December 2011, the Queensland Parole Board makes reference to the fact that it considers the applicant an unacceptable risk to the community. Perhaps these sentences are part of standard form documents. Certainly the sentences in the letter of 28 March 2011 make no sense juxtaposed with those before and after them. The sentencing judge did not identify any risk to the community from Mr Leggett and there does not appear to have been any material before the Parole Board from which it could have concluded that he was an unacceptable risk to the community. Once again the inclusion of these comments tends to strongly suggest the Board did not focus its mind on the case Mr Leggett made in his application for exceptional circumstances parole.
Misconstruction of the term "Exceptional Circumstances"
[37] The applicant's second ground of review was that the Parole Board misunderstood the term exceptional circumstances as used in s 194(1)(a) of the Corrective Services Act. That is certainly a very broad term and the Parole Board has a broad discretion in coming to a conclusion about exceptional circumstances. Only two relevant circumstances seem to have been considered by the Parole Board:
(a) whether the sentencing Court was aware of Mr Leggett's medical condition and his family circumstances, including his wife's illness, and
(b) whether the applicant's medical condition could be adequately managed in prison.
[38] The Board does not seem to have considered the very grave nature of the illnesses suffered by Mr Leggett, his reduced life expectancy, his risk of sudden death, and the deterioration in his family's circumstances. These matters were clearly put forward as going to exceptional circumstances and in my view are matters which ought to have been considered by the Board in coming to a conclusion as to exceptional circumstances. There is no indication that these matters were considered by the Board. To this extent it may be inferred that it has construed the term "exceptional circumstances" too narrowly.
[39] The applicant's third ground of review was that a letter from, "Eleanor Scott, Clinical Manager, Borallon Correctional Centre", which is undated, was commissioned, as it were, by the Parole Board and not provided to Mr Leggett for his comments prior to its consideration by the Board. In my opinion the failure to disclose the relevant material to Mr Leggett's solicitors so that they had the opportunity to comment on it was a clear breach of the rules of natural justice. Whether or not that had any outcome adverse to the applicant is a rather moot point for that letter, like the rest of the medical information before the Board, really served to emphasise the deterioration in Mr Leggett's medical condition and the difficulties, and detriments to his health, in trying to manage his many conditions from jail. Whether the failure of the Queensland Parole Board to provide that particular document to Mr Leggett prior to their consideration of it would have justified the relief sought in the application by itself need not be decided. The first two grounds advanced by the applicant plainly do.
[40] I heard this matter on 17 April 2012. I reserved my decision. On 20 April 2012, after considering the material placed before me by the parties, but before finalising these reasons, I reconvened the Court to make the orders sought by Mr Leggett in the application. I did this because I wanted the Parole Board to reconsider Mr Leggett's matter as soon as possible. In my view, there is a real risk to Mr Leggett's life in requiring him to remain incarcerated with his current medical conditions. For this reason I made the orders before I had finalised these reasons. The orders I made on 20 April 2012 were:
1. The decision of the respondent, communicated by letter dated 14 December 2011, to decline the applicant's application for an exceptional circumstances parole order dated 10 January 2011 is set aside.
2. That application for an exceptional circumstances parole order is referred to the respondent for further consideration, with directions that:
(a) The applicant is to submit to the respondent any further material upon which he intends to rely within 14 days of the date of this order.
(b) The respondent is to complete the further consideration within 28 days of the date of receipt of the material referred to at (a).
3. The respondent is to pay the applicant's costs of and incidental to the proceeding to be agreed or, failing agreement, assessed on the standard basis.
Leggett
Queensland Parole Board [2012] QSC 121
(2003) 197 ALR 38