_Mulley v Southern Queensland Regional Parole Board_

Supreme Court of Queensland|2009-08-13|Before: Chief Justice

[1] CHIEF JUSTICE: On 21 August 2008 the applicant was sentenced to 18 months imprisonment, having pleaded guilty to the indecent treatment of a child under the age of 12 years. The learned sentencing Judge set eligibility for parole as at 21 February 2009. The applicant's full-time release date is 20 February 2010. He is now 65 years of age.

[2] The respondent received the applicant's first application for parole on 30 October 2008. On 4 March 2009, the respondent advised the applicant that because it had not been able to collate the relevant material, it could not make a decision within the statutory timeframe, and invited the applicant to submit another application, which the applicant did on 5 March 2009. Then on 21 April 2009 the applicant made an application for "exceptional circumstances" parole. The respondent invited him to submit supporting material, but according to the respondent he did not do so.

[3] On 19 May 2009 the respondent communicated its interim view that parole should not be granted. In its two and a half page letter, the respondent set out the material which it considered warranted the view that the applicant would, if released, pose an unacceptable risk to the safety of the community. The circumstances listed included his having been convicted in November 1998 of seven offences of indecent dealing with a child, for which he was then imprisoned for three years, and which was similar offending; explanations of the instant offending, in which the applicant made various statements which, in the respondent's view, suggested he was "minimizing" his offending behaviour and its impact upon the victim; and the circumstance that the applicant declined, it was contended, to cooperate in a rehabilitation programme following a moderate/high assessment of his long-term static risk of sexual recidivism. The respondent took the view that the applicant should complete the "Crossroads: high intensity sexual offending programme". In the applicant's application, he identified, as "high risk situations" should he be released, various situations in which he might find himself alone with young girls. His independent "relapse strategy" depended substantially on the support of his wife. The respondent considered that "simplistic and not effective in high risk situations".

[4] The respondent had before it a submission from the applicant's long-standing general practitioner, to the effect that the applicant's wife needed him to be at home to support her in caring for their severely disabled son, aged in his thirties. The position of the son (raised before me as the ground of the 'special circumstances' application) lends this case a tragic dimension, of which the respondent would have been acutely aware. The respondent also had before it a plea from the applicant's wife; a "home assessment" report by the Probation and Parole Office, as to the unsuitability of the applicant's proposed post-release residence in relation to parole supervision; and a Parole Board assessment report. That report recommended that the application for parole be denied, especially because of the applicant's intended reliance principally on his wife in the event that children should be present, and his wife's apparent lack of any acute appreciation of the gravity of his past offending.

[5] The applicant responded in writing to the respondent's letter of 19 May 2009. The applicant said he had always wanted to participate in the "Crossroads ..." programme; suggested that the respondent had been unduly influenced by the approach set out in the Parole Board Assessment Report; and raised a number of other considerations.

[6] On 19 June 2009 the respondent advised the applicant that parole was denied, for reasons set out in the letter of 19 May 2009, essentially because the applicant would, if released, pose "an acceptable risk to the community". The respondent assured the applicant that it had "fully considered" his submissions, and had revisited its preliminary view expressed on 19 May in light of further views communicated subsequently, which, however, it considered offered "no new information to support" his being released on parole.

[7] On 5 June 2009 the respondent had filed an application seeking review of the respondent's decision failing to grant parole, alleging that the respondent failed to consider his application on its merits, that it used "outdated and inaccurate information", and contending that the respondent had denied him natural justice, and had acted "contrary to ministerial directives". I proceed on the basis that is an application of judicial review of the decision of the respondent, on 17 June (as communicated on 19 June) to deny the applicant parole.

[8] The hearing proceeded by video-link because of administrative problems - the applicant was not brought to court for the hearing. But the hearing by video-link proceeded smoothly and satisfactorily. The applicant initially sought an adjournment for a week so that others could be present to argue the case for him. But they were not to be lawyers, and an adjournment was not practicable because of other listings. In any case, the applicant argued his case with apparent confidence and clarity.

[9] I mention at this stage that during the oral hearing, the applicant complained of the respondent's failure to make a decision on his "exceptional circumstances" application. Mr McLeod, who appeared for the respondent, accepted that the respondent had not dealt with the exceptional circumstances application. He informed me that that application was received on 24 December 2008 at Woodford Correctional Centre, and forwarded to the respondent on 2 February 2009. The facsimile copy received by the respondent bore the note: "marked cancelled". The respondent consequently did not consider the application. Apparently on 19 May 2009, the respondent sought a form 28 and supporting information from the applicant, in the context of his claim that that application had not been dealt with. Mr McLeod informed me that the respondent meets on 13 and 26 August 2009 and 2 September 2009, and that if the form 28 and supporting information are provided promptly, the respondent will consider that application regularly at one of those meetings, as practicable. I repeated this information to the applicant, who informed me that he would forthwith attend to the provision of that documentation.

[10] In support of his application for judicial review of the decision of 17 June 2009, the applicant submitted a comprehensive document of some 34 typed pages, which I of course read and carefully considered. The applicant raises the following contentions, among a number of others:

(a) that the respondent was not only unduly influenced by the Parole Board Assessment Report, but exclusively depended upon it;

(b) that the requirements of natural justice were breached because the applicant was required to provide his parole application to Sentence Management at Woodford Correctional Centre, rather than directly to the respondent;

(c) that bias against the applicant on the part of the Sentence Management Division infected the decision of the respondent;

(d) that the respondent failed to give proper weight to the sentencing Judge's recommendation as to parole eligibility; and

(e) that the respondent was guilty of delay, and should have given the applicant an opportunity to be heard orally.

Those are the grounds which may be distilled in the material up to page 14 of the submission. Insofar as it is arguable, the rest of the submission substantially amounts to elaboration on those five basic complaints, save that it raises two other intelligible grounds:

(f) that the respondent denied parole simply because the applicant had not completed the "Crossroads ..." programme; and

(g) that the denial of parole was irrational in the Wednesbury sense.

I do not purport to have summarized all of the grounds specified in the applicant's material. Some others are unintelligible, or repetitive of others, or subsets of the above. I have set out what should be seen as the grounds warranting mention and consideration at this stage.

[11] As to (a), there is no ground for concluding that the respondent was controlled by the Parole Board Assessment Report, such that the respondent abrogated its discretion to proceed independently. The terms of its letter of 19 June, embracing the letter of 19 May, repudiate any such contention.

[12] As to (b), the fact is that the respondent plainly did receive the applicant's application, through the agency of the Corrective Sentence Management. There was nothing wrong with that.

[13] As to (c), there is no evidence, first, that the Correctional Centre was infected with any bias against the applicant, so far as it was concerned in his application administratively; and second, that any such bias, assuming it was there, was transmitted to the respondent.

[14] As to (d), it was up to the respondent what, if any, weight it gave to the sentencing Judge's order as to eligibility for parole at a particular time. That was an order made about a year earlier. The respondent would naturally have been concerned with intervening considerations, and that is apparent from its letters.

[15] As to (e), the respondent proceeded appropriately in accordance with the statutory framework, and was not obliged to accord the applicant an oral hearing. He was given a full and fair opportunity to place relevant material before the respondent, and he utilized that opportunity.

[16] As to (f), the respondent's reasons show that it was not proceeding as if blinded by the applicant's non-completion of the "Crossroad ..." programme, but was significantly influenced by broader considerations relating to community protection.

[17] As to (g), the reasons expressed by the respondent, in a preliminary way, on 19 May, and then confirmed on 19 June, show that it approached the matter fairly, comprehensively, and relevantly. The applicant was a repeat offender. In his application, he acknowledged the risk of re-offending which would likely beset him if released; and he offered, as his defence mechanism, a strategy which would probably prove inadequate were that risk to materialize. The context overall was his failure to develop additional coping mechanisms, because he had not completed the advanced course. The respondent's decision to decline parole was one plainly open in the circumstances.

[18] There is no substance to any of the other matters of complaint raised in the applicant's written submission, or his oral presentation before me at the hearing on 7 August 2009.

[19] The application is refused. I reserve costs.

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