Sambo v Qld Parole Board

[1] Douglas J: This is an application to review a decision of the respondent, the Queensland Parole Board, to refuse the applicant's application for a post-prison community based release order.

[2] The applicant was sentenced on 24 November 1999 to nine years imprisonment for offences of rape, deprivation of liberty, assault occasioning bodily harm and assault occasioning bodily harm whilst armed. On 24 May 2000, the Court of Appeal refused his application for leave to appeal against that sentence. On 8 September 2006 he applied for a post-prison community based release order and was advised by the respondent on 28 November 2006 that it had formed the initial view that he would be an unacceptable risk to the community on a parole order and was minded to refuse his application. That letter then went on to say:

"However, the Board's primary obligation is the protection of the community and the Board was aware that you have still to participate in the High Intensity Sex Offender program (HISOP) for which you are waitlisted. The Assessment Unit Report dated 26 October 2006 informed the Board that you had partially completed the Medium Intensity Sex Offender Program but were removed from that program as it did not meet your criminogenic needs. The Board therefore considers that you have not yet fully addressed your offending behaviour and recommends that you fully participate in HIVOP (sic) and then place before the Board a release and relapse prevention plan which will minimise your risk factors that led to your offences when you were previously in the community. In this way you may indicate that your risk to the community has been minimised."

[3] The applicant was invited to make submissions in respect of the matters raised by the respondent in that letter and on 19 December 2006 those submissions were received by the respondent from the applicant. The applicant said in his response that he wanted to take part in a "sex offender course". At its meeting on 2 February 2007, the respondent decided that the application should be declined. Reasons were provided for that decision on 4 April 2007.

[4] This application was filed on 14 June 2007. It requires an extension of time which is sought in the application. The slight delay was explained by the applicant's difficulties in arranging representation in a timely fashion. No submission was made by the respondent against the grant of such an extension.

[5] The grounds for review are that the respondents impermissibly refused the application merely because the applicant had not participated in the high intensity sex offender program ("HISOP") without making an assessment of his risk of reoffending. It is also argued that he was denied natural justice because he was not given an opportunity to comment about two assessments used by psychologists and psychiatrists known as the STATIC-99 and STABLE-2000 tests respectively. They are tests said to have been used on this occasion not "as a measure of an offender's overall risk of sexual recidivism but for program allocation reasons only".

[6] The respondent, in its letter of 28 November 2006, did not refer explicitly to the STATIC-99 and STABLE-2000 tests. Those tests assessed the applicant's risk of reoffending as being in the moderate to high range and concluded that he had high needs in relation to his sexual offending. That letter did identify, amongst the reasons for the respondent's decision, the applicant's lack of participation in HISOP after his non-completion of and removal from the medium intensity program because it did not meet his "criminogenic needs". The respondent said in its letter that he, therefore, had not yet fully addressed his offending behaviour and recommended that he fully participate in that program to minimise the risk factors that led to his offences.

[7] Mr McLeod for the respondent submitted that it was significant that the applicant's response to the letter of 28 November 2006 said that he wanted to take part in a sex offender course. That was inconsistent, he submitted, with the stance taken for him in this application, where his argument is that his participation in such a program should not be treated as a necessarily relevant consideration by the Board when considering its decision whether to release him.

[8] A similar stance to that taken in the letter of 28 November 2006 was taken in the Board's reasons of 4 April 2007. Those reasons referred to the STATIC-99 and STABLE-2000 tests in the context that he was assessed by them as suitable for participating in HISOP, having previously been ineligible for it because he had denied his guilt of the offences found against him. The reasons went on to say that he was presently listed to participate in HISOP, that it was a program which was not available in the community, and that the Board considered that his participation in it was imminent and necessary.

[9] The approach of the respondent in refusing the application on the basis that the applicant had not participated in HISOP was criticised before me on the basis of an argument that, although the completion of a rehabilitation program may be a positive factor to take into account in a prisoner's favour, the fact that such a program had not been undertaken was argued to be neutral to the assessment of risk, especially where the course has not been offered for reasons beyond the prisoner's control.

[10] The letter of 28 November 2006 and the statement of reasons clearly focussed on the desirability of him participating in HISOP to give him the opportunity to minimise his risk factors and address his outstanding treatment needs. In SB v Queensland Community Corrections Board [2005] QSC 155 at [16] I decided that it was relevant for the respondent in that case to take into account in a negative sense that applicant's failure to complete a cognitive skills program and the sexual offenders treatment program "in the sense that, if he had successfully completed those programs, that would have been a factor in his favour; see Davies JA in Mott v Queensland Community Corrections Board at 271." See also the discussion of the Court of Appeal's decision in Mott v Queensland Community Corrections Board [1995] 2 Qd R 261 at paras [7]-[10] of SB v Queensland Community Corrections Board.

[11] This is not a case of a prisoner denying his guilt, therefore being ineligible for a program such as HISOP, and being refused post prison community based release simply for that reason, an approach discussed in a number of decisions relied upon by the applicant. Rather he had changed his stance in respect of his willingness to recognise his guilt, but had not yet undergone the relevant treatment program, which he said he wanted to undertake. The non-completion of that program appears to have been the reason for the respondent's decision and was, in my view, a factor that it was entitled to consider as relevant to the conclusion it should reach, especially where the applicant himself wanted to undergo such a program. The offences committed by the applicant themselves suggest that completion of the program was indeed desirable for him and the community which the Board is charged to protect.

[12] The reasons for the decision of 4 April 2007 referred to the assessments by the STATIC-99 and STABLE-2000 tests in the context to which I have referred but they were not disclosed to the applicant earlier nor was he aware that they were referred to until he received the statement of reasons.

[13] Reliance by the Board on them was criticised as its taking into account an irrelevant consideration on the basis that they were not a measure of an overall risk that the applicant would re-offend but designed for "program allocation reasons only". They were also criticised as being out of date, having been performed in May 2005 in respect of the STABLE-2000 test, at a time when the applicant denied that he had committed the sexual offences of which he had been found guilty. A submission was made that his situation had changed significantly since May 2005 because he had accepted full responsibility for his offences and stated his willingness to try to undertake treatment programs and had successfully participated in some such programs. It was argued, therefore, that the applicant should have been informed that reliance would be placed on those reports to enable him to make submissions about their reliability.

[14] The respondent argued that the failure to refer specifically to the STATIC-99 and STABLE-2000 tests did not result in a denial of natural justice because the applicant was told in the letter of 28 November 2006 that he had not addressed his offending behaviour and recommended that he fully participate in the relevant sexual offenders treatment program thus affording him the opportunity to address the critical issue which concerned the respondent; see York v General Medical Assessment Tribunal [2002] QCA 519; [2003] 2 Qd R 104. His response to the letter of 28 November 2006, in addressing that issue, indicated that he did wish to take part in a sex offenders course.

[15] In the circumstances I am not inclined to the view that there has been a failure to observe the requirements of natural justice by the board not explicitly referring to the STATIC-99 and STABLE-2000 test results. The critical issue identified by the respondent's letter of 28 November 2006 was that the applicant had not addressed his offending behaviour fully in circumstances where the board recommended that he fully participate in HISOP. Those tests may have been relevant to the risk factors that lead to the offences committed by the applicant but the issue that concerned the board was clearly his need to participate in the program and the tests appear to have been relied on merely to assess his suitability for participating in the program, a program he told the Board he wanted to undertake.

[16] In the circumstances, therefore, it seems to me that the applicant was informed of the issue which he had to address which was an issue relevant for the respondent to consider when reaching its decision and which was really a non-issue on the approach taken by the applicant because he agreed, when given the opportunity, with the Board's view that he should undertake such a course.

[17] Accordingly I would allow further time for the making of the application pursuant to s. 26 of the Judicial Review Act 1991 but dismiss the application. I shall hear the parties as to costs.