_Renton v Queensland Parole Board_

Supreme Court of Queensland|2008-08-29|Before: Martin J

[1] This is an application by Marc André Renton ("the applicant") for a statutory order of review with respect to "the decision and/or conduct of the respondent, on the 12th January 2007, or alternatively, on the 6th July 2007, that the applicant be refused/denied parole".

[2] On 15 April 1993, the applicant was sentenced to a term of imprisonment of nine years to commence on 7 August 1992. On 23 February 1994, the applicant was sentenced to a term of imprisonment of two years ordered to be served cumulatively upon the other sentence. On 28 April 1997, the applicant was sentenced to a term of imprisonment of 14 years to be served concurrently with the other terms.

[4] On 14 September 2006, the applicant made an application for parole.

[5] On 30 April 2007, the respondent wrote to the applicant and advised him of its initial view (which it had formed at its meeting of 13 April 2007) that the applicant might be an acceptable risk to the community on a parole order. The respondent invited the applicant to make further submissions or to provide further information for its consideration within a period of 21 days before a final decision was made.

[6] On 30 May 2007, the respondent allowed the applicant a further 21 days from receipt of that letter to make submissions regarding the view which had earlier been expressed by the respondent to the applicant.

[7] The applicant wrote to the respondent on 18 June 2007 and made a submission with respect to his initial release plan. The application and the further submission were considered by the respondent on 6 July 2007 and, at that time, the respondent decided that the application would be refused. The respondent wrote to the applicant on 3 August 2007 advising of its decision to refuse his application for parole.

[8] On 14 August 2007 the applicant wrote to the respondent requesting a statement of reasons in relation to the decision of 6 July 2007. The respondent replied to that on 22 August 2007 advising the applicant that a statement of reasons would be provided within the statutory timeframe and on 14 September 2007 the respondent wrote to the applicant providing a statement of reasons.

[9] The history related above demonstrates that the respondent had proceeded on the basis that it still had the power to consider the application after 14 February 2007. It was wrong.

[10] Section 193 of the Corrective Services Act 2006 ("the Act") relevantly provides:

"(1) A parole board required to consider a prisoner's application for a parole order must decide--

(2) However, the parole board may defer making a decision until it obtains any additional information it considers necessary to make the decision.

(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."

[11] The applicant's application for parole was dated 14 September 2006. It was received by the Community Corrections Board's Secretariat on 13 October 2006. The effect of s 193(5) of the Act is that, in these circumstances, where the board did not decide the application on or before 14 February 2007, it was deemed to have refused the application.

[12] The refusal which s 193(5) deems to have occurred has the effect of terminating any consideration which the respondent was giving to the application. It follows, that the actions by the respondent in purporting to continue to consider the application and then, eventually, refusing the application, must be regarded as ineffectual. As the effect of the statute was to deem the application refused then any statements of reasons made after that deemed refusal must be of no effect as they relate to a decision which was not, and could not be, made by the respondent.

[13] After this matter was reserved, P D McMurdo J was faced with a similar situation in Kruck v Queensland Regional Parole Board [2008] QSC 137. His Honour said:

"The Board's failure to determine the application engages section 22 of the Judicial Review Act. This is a case within subsection 22(1): it seems clear that there has been unreasonable delay in making the decision ...

Alternatively, if this is a case within subsection 22(2), in that section 193, by its reference to the deadline of 120 days is to be understood as requiring the making of a decision within a period, namely, that period, then again, section 22 is engaged because there has been a failure to decide within that period.

Either way, there is a ground which is established for an order for review. The question is then one of the appropriate relief."

[14] His Honour considered that if the court was to order that the deemed refusal be set aside, then that order would be open to doubt. I respectfully agree. The effect of s 193(5) is to bring to an end the application process if a decision has not been made prior to the expiry of 120 days. No provision is made in the Act or in the Judicial Review Act 1991 for a decision to be substituted for the deemed refusal. In some Commonwealth legislation there is a capacity for the Administrative Appeals Tribunal to deal with a deemed refusal and to make a decision in its place. That, of course, is available for a tribunal which is engaged in merits review. That is not possible in the circumstances where a merits review is not available.

[15] It is regrettable that the failure by the respondent to comply with the obvious timetable established by the Act affords a disappointed applicant no relief. Nevertheless, the Judicial Review Act does not allow the applicant any relief in these circumstances and the application is refused.

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