_McGrane v Queensland State Parole Board_

Supreme Court of Queensland|2010-06-18|Before: McMurdo J

[1] The applicant is a prisoner seeking a statutory order of review of the respondent's decision to refuse his application for parole. This is one of many such refusals, the previous one being the subject of judicial review proceedings which were dismissed by P Lyons J last November.

[2] This decision was made by the respondent Board on 25 September 2009, in respect of an application which it received on 27 May 2009. Before making its decision, the respondent wrote to the applicant on 26 August 2009, indicating that its preliminary view was that his application might not be successful and inviting him to make a further submission. But in the same letter, the applicant was informed that the 120 days, as then stipulated by s 193(5) of the Corrective Services Act 2006 ("the CSA"), would expire on 7 October 2009 and that upon the premise that the Board would not make a decision by then, he was invited to "enliven [his] current application by making a new application immediately". As it happened, the respondent did make its decision within the period of 120 days and in any case, s 193 was amended with an effect which would have avoided the consequence of a deemed refusal had the Board not reached its decision within that period.[2]

[3] The applicant has been in prison since 1986, when he was convicted of the offences of murder and rape. He had pleaded guilty to the offence of rape, but not guilty to the murder on the grounds of diminished responsibility. By now he has served the 15 years imprisonment imposed for the rape offence and he is serving the life term imposed for the offence of murder. He was 17 years of age when he went to prison in 1986. Thus he has been in prison for the whole of his adult life. He has effectively no employment experience. He has undertaken tertiary studies whilst an inmate and has been awarded by the University of Southern Queensland a Degree of Bachelor of Information Technology, an Associate Degree of General Studies and a Post-Graduate Diploma in Personal Financial Planning, and he has successfully undertaken a course entitled Volunteer Tutoring in Literacy.

[4] His many unsuccessful applications for parole are summarised within the Parole Board Assessment Report which was written for the subject decision. That indicates that there were at least five, and perhaps more, applications from 2002 to 2008. The previous decision refusing him parole was made on 4 December 2008. Like the subject decision, it was made after consideration of psychiatric and psychological reports, including one of the psychiatrist, Dr Moyle, who interviewed him in May and June 2008. His report included the following:

Risk assessment approaches show him to be at moderately high risk of serious sexual violence but I don't see how this can be modified in a downward direction without his being able to practise the skills he has learned in an at risk situation under supervision. I'd therefore recommend to Mr McGrane that he works cooperatively, while accepting therapy in prison, to overcome his tendency to isolate himself in his world of fantasy, so that he can lower his security level and together with the Corrections staff move towards lower security situations and eventual parole.

[5] The respondent acted upon that opinion in its 2008 decision and clearly again in making the present decision. This present application for parole faced the difficulty of that psychiatric opinion together with the circumstance that the applicant had not been able to progress "towards lower security situations" within the prison system.

[6] The applicant is without legal representation and his written and oral submissions, whilst referring to a number of suggested grounds for review by reference to particular paragraphs of ss 23 and 24 of the Judicial Review Act, in part appeared to be more an attack upon the merits of the decision. But the core of each of his complaints is that his high security classification, and otherwise the circumstances of his present accommodation, should not be an impediment to the grant of the parole which he seeks.

[7] Before going to the respondent's stated reasons for this decision and to the applicant's arguments, it is necessary to say something of the history of the applicant's imprisonments. In his first few years in prison, he committed a number of serious offences. There were three counts of wilful damage, for two of which he was sentenced to two years imprisonment. There were four counts of assault committed at various times in 1989 and 1990 for which he received various sentences ranging from four months to 18 months imprisonment. He was sentenced to 12 months imprisonment for preparing to escape from lawful custody in 1989 and another term of six months for a further count of wilful damage committed in 1992. But after then, there were apparently no offences or disciplinary breaches until March 2007 when he received what is described is a major breach for offensive language directed at an education officer. Then in March 2008 he committed a breach of prison discipline by conduct described as fashioning a sharp implement and having that in his possession. And in January and February 2009 he committed further disciplinary breaches, involving fighting with a prisoner and using abusive and threatening language towards a corrective services officer.

[8] The applicant progressed to be accommodated in the residential section of Wolston Correctional Centre between December 2003 and March 2005. But he was transferred from there to what is described as secure accommodation, due to what a memorandum signed by an officer within the prison described as "poor employment and behaviour issues". It may be noted that this did not involve a criminal offence or breach of a disciplinary rule. And within that same record, there is a note by another officer which appears to query that reference to poor behaviour, because the applicant had been assessed at that time as having "acceptable institutional conduct". At the hearing, I was told by the applicant that he returned to the residential section some months before the hearing and it seems at about the time of this decision. The prospect that he will be allowed to progress to a low security facility seems, at best for him, remote having regard to the terms of a notice issued to prisoners by the General Manager of the Wolston Correctional Centre on 27 September 2006. The General Manager then wrote:

From 27 September 2006, any offender convicted of an offence listed in Schedule one of the Corrective Services Act 2006 will not be eligible for transfer to a low security facility.

Offenders who has [sic] been convicted of a Schedule one offence who are currently accommodated at a Low security centre will remain at that centre, subject to appropriate behaviour and operational requirements.

Schedule 1 of the CSA lists a number of sexual offences, including the offence of rape.

[9] At the hearing, the applicant handed up a document evidencing a recent decision within the prison to have his classification remain as a high security prisoner. Because this post dated the respondent's decision which is the subject of these proceedings, it was not and could not have been considered by the respondent and is not relevant to these proceedings.

[10] I go to the respondent's Statement of Reasons which were provided on 16 December 2009. The respondent set out the material which it considered which, with a few exceptions, was that which was said to have been considered on its previous refusal of parole in December 2008. There was no further psychiatric or psychological evidence. There was the Parole Board Assessment Report, dated 27 July 2009, which recommended that he not be paroled at this stage. There was also material relating to his proposed accommodation, if granted parole. The applicant proposed that he live at a facility operated by Ozcare. However, the evidence was that the manager of Ozcare had advised that he did not approve of the applicant's participation in its program at that time.

[11] After setting out the documents considered by it, the respondent referred to Ministerial Guidelines in these terms:

The Board took into account the Ministerial Guidelines about the policies to be followed by the Board. The Guidelines state that a parole board should give the highest priority to the safety of the community. However the Board independently exercised its discretion and ensured that your application was considered on its own merits without any inflexible application of policy.

This was an apparent reference to the Ministerial Guidelines issued in March 2008 which the applicant exhibited to his second affidavit. Paragraph 1.1 of those guidelines provides for the safety of the community being given the highest priority as the respondent stated in its Reasons. However, there are other parts of the document which are relevant to the applicant's arguments. Paragraph 2.1 states that if a prisoner has been convicted of a sexual offence listed in Schedule 1 of the CSA, the respondent should exercise "extreme caution" when determining a prisoner's suitability to be granted parole. It is not clear whether this guideline was material to the present decision. The applicability of this particular provision would be open to doubt in a case such as this where a prisoner applies for parole in the course of a sentence imposed not for a sexual offence within Schedule 1 of the CSA, but where previously the prisoner has served the full term imposed for such an offence.

[12] Paragraphs 6.1 and 6.4 of the Guidelines are as follows:

6.1 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 parole eligibility date has been set by a court; or
exceptional circumstances exist, for example, the prisoner may have developed a serious medical condition that has been verified (see section 6.13).

6.4 It is recommended that prisoners serving a period of imprisonment of eight years or more, should spend at least six months in a low security environment immediately prior to the application for parole. A 'low security environment' includes a -

community corrections centre as defined by the Act; or
low security or secure custody facility where the prisoner has worked with minimal supervision outside the secure perimeter on a continuous basis.

This case was not within either of the exceptions in a) or b) of paragraph 6.1. On one view of the Guidelines, a classification of low security was therefore essential for this grant of parole. But the Board's reasons did not specifically refer to this paragraph.

[13] In its Reasons the respondent summarised his criminal history and his conduct record as a prisoner. It referred to and summarised the effect of various psychiatric and psychological assessments. The most recent of them was the report of Dr Moyle, from which the Reasons extracted the passage I have set out above,[3] and a report by a psychologist, Mr Palk. The respondent extracted passages from that report which included this:

... If considered for release it should be ... undertaken in a very controlled and progressive manner. ... with close support and monitoring preferably in a supervised facility for a lengthy period ...

[14] The respondent noted the applicant's successful completion of many programs during his period of incarceration, including the High Intensity Sexual Offending Program completed in August 2007 and the Transitions: Pre-release Program completed in January 2008. It detailed his successful tertiary studies.

[15] Next the respondent referred to its letter of 26 August 2009 (outlining its likely decision) and to the applicant's response of 7 September 2009, which it said it had considered. It noted that the applicant had there submitted to the respondent that his security classification had "absolutely no bearing on [his] accommodation options" and that he was unable to "access a low security facility". However, the applicant had also written in that letter of 7 September 2009 as follows:

In any event I have previously provided the Board clear evidence that sentence management has not been properly facilitate [sic] in my case in which I should have received a low security many years ago. The board's requirements that I be accommodated in residential effectively leaves the decision of my parole approval to Wolston management.

[16] The Statement of Reasons then contained some 18 paragraphs described as the reasons for the Board's decision. Paragraph 8 in that section recorded the Board's concern in respect of what were described as "further major breaches in January and February 2009 for fighting and using abusive and threatening language towards a Corrective Services Officer". In paragraph 9, the Board wrote that the standard of his conduct during his period of imprisonment had fluctuated and that the Board was concerned that after 23 years in custody the applicant still maintained "a high security classification in a secure custodial environment". Ultimately the essence of the Board's reasoning was expressed within these paragraphs:

The Board's paramount concern is the safety of the community and it wished to see your successful transition from custody to the community, with the minimum of disturbance and stress. The Board noted your prior period of in [sic] residential accommodation within a high security facility and your loss of that privilege due to negative behaviour. The Board considered that your achievement again of an accommodation progression within the centre to a residential environment and a reduction in your security classification would be highly desirable in your case. The Board would not be confident that you had lowered your risk of re-offending, and enhanced your ability to be self sufficient in the community, until you had demonstrated stable and responsible behaviour over a period of time in progressively less supportive and restrictive environments.
The Board noted your submission dated 21 May 2009, and your statement that 'residential has absolutely no relevance to your preparation for release'. The Board is of the view that this is [a] highly desirable step in terms of your reintegration process. The Board would not be confident that you have lowered your risk of re-offending, and enhanced your ability to be self sufficient in the community, until you have demonstrated stable and responsible breach-free behaviour over a period of time in progressively less supportive and restrictive environments. It would also present the Board with increased confidence as to your ability to comply with the requirements of a parole order.

Taking into account all of the relevant factors of your case, both positive and negative, the Board formed the view that you posed an unacceptable risk to the community at that time and decided to decline your application for a parole order.

[17] The first of the applicant's arguments is that the respondent exercised its power at the direction or behest of another person, which he identifies as the management of the prison. He says that the respondent's requirement that he be housed within the residential accommodation of the prison "effectively allows the decision of the applicant's parole [to] be dictated by Wolston management". But that circumstance is not to establish a ground under s 23(e) of the Judicial Review Act.

[18] Next he argues, by reference to s 23(f) of that Act, that this was an improper exercise of the power in that it was an exercise in accordance with the Ministerial Guidelines without regard to the merits of his particular case. The applicant refers in particular to paragraph 6.1 of those Guidelines (which I have set out above), which provides that ordinarily a prisoner should be classified as low security prior to being paroled. But significantly, the respondent did not refer to that guideline in its Reasons. As I read that document, the respondent believed that in the circumstances of this particular case, the re-classification to low security was necessary because that would provide the more gradual transition which was recommended by, amongst others, Dr Moyle and Mr Palk. It was necessary so that he might demonstrate "stable and responsible breach-free behaviour over a period of time in progressively less supportive and restrictive environments".

[19] The applicant argues, by reference to s 23(g) of the Judicial Review Act, that the decision was so unreasonable that no reasonable person could have so exercised the relevant power. That submission cannot be accepted. On the merits there was much to be said in favour of this application for parole. But having regard especially to the facts and circumstances of his original offences, the content of the various reports from psychiatrists and psychologists and the absence of any confirmed accommodation arrangements were he to be released, it cannot be said that no reasonable person could have made this decision.

[20] Within the applicant's written and oral submissions is a contention that the respondent has not addressed the submission made in the applicant's letter of 7 September 2009, as to his classification. The effect of the case put to the respondent was that it should decide whether he should be paroled upon the premise that he was effectively precluded by the policies employed by the Department of Corrective Services, and in particular by the management of the prison, from progressing to a classification of low security. He complains that the respondent has not considered that critical part of his case for parole.

[21] That contention had some evidentiary support: in particular, there was the notice circulated to prisoners which I have set out above at [8].

[22] The respondent's decision was upon the premise that with good behaviour the applicant might proceed to the lower classification so that he should apply himself to achieving that position before being paroled. The applicant's case, which may or may not have been correct in fact, was that this was no more than a theoretical possibility and that his parole should not be delayed on this account. I am unable to see that the respondent considered that case. For example, there was nothing written by the respondent to the effect that it was to be rejected as lacking any evidence or as being contrary to what was known to the respondent to be true.

[23] It was necessary for the respondent to consider that claim by the applicant. It was true that the discretion to be exercised here was a broad one, for which there were no expressed statutory criteria.[4] But in this case, as appears from the Statement of Reasons, the respondent's reasoning was upon an essential premise that there was a potential for the applicant to be re-classified to a low security facility. Because that premise was challenged by the applicant, it was not open to the respondent to assume its correctness and to disregard, without considering the matter, the applicant's contention.

[24] Of course the respondent was not obliged to accept the correctness of the applicant's statement that he could never be re-classified. It was to reach its own view upon that matter. But had its enquiries to that end revealed that the position was that according to the letter from the General Manager of the prison written in September 2006, as set out above at [8], the respondent could not have reasoned as it did. In that event, the respondent would have been obliged to consider this application for parole upon the premise that the applicant would not progress to a low security classification.

[25] Had the respondent found that there was no prospect of re-classification, it would not have been bound to refuse parole. By s 227 of the CSA, it would have been obliged to consider the Ministerial Guidelines and in particular that within paragraph 6.1. But of course that is a guideline and not a statutory prohibition. On its face, the guideline assumes a potential for a prisoner to be classified as low security. If prisoners with convictions for sexual offences within Schedule 1 of the CSA cannot obtain that classification because of the application of a policy evidenced by the letter of September 2006, then the weight to be attributed to the guideline may be minimal.

[26] The respondent formed the view that the applicant was an unacceptable risk to the community. The nature of that risk was the risk of his re-offending. The finding that the risk was "unacceptable" was necessarily a value judgment for which there were several relevant considerations. One of them, but not the only one, was the need to protect the community. According to the Guidelines, this consideration was to be given "the highest priority". But again according to those Guidelines, it was not to be the only consideration. Clearly, there was the consideration of the interests of the prisoner. But there was also to be considered the public interest in the fair operation of a regime for parole, because in general, a real rather than theoretical availability of parole is conducive to the rehabilitation of prisoners and to the orderly management of prisons. An express object of the CSA is for "community safety and crime prevention through humane containment, supervision and rehabilitation": s 3(1). The public is protected by the rehabilitation of offenders as well as by their incarceration. Each of those considerations and perhaps others would be expected to affect the value judgment involved in assessing the risk to the community from a prisoner's parole as acceptable or otherwise. And that judgment might be affected according to whether there was a real prospect that the prisoner's circumstances could change with the result of lessening his risk of re-offending. It might also be affected according to whether the prisoner was able to influence those circumstances. Accordingly, it cannot be safely concluded in this case that parole would have been refused had the respondent considered the applicant's argument as to re-classification and accepted it.

[27] The result is that the applicant has demonstrated a ground to review this decision. By failing to consider whether it was impossible for the prisoner to be re-classified, whilst at the same time reasoning upon the premise of that possibility, the respondent failed to consider a matter which was an essential consideration.

[28] It will be ordered that the decision of the respondent made on 25 September 2009 be set aside and that the application for parole which was the subject of that decision be reconsidered by the respondent according to law.

[1] McGrane v Queensland Parole Board [2009] QSC 380.

[2] Corrective Services and Other Legislation Amendment Act 2009 s 25 which relevantly commenced on 21 September 2009.

[4] As P Lyons J observed in reviewing the respondent's previous decision: [2009] QSC 380 at [19].

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