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Davis v Queensland Community Corrections Board

 

[2004] QSC 239

SUPREME COURT OF QUEENSLAND

CIVIL JURISDICTION

BYRNE J

No BS2439 of 2004

ANTHONY JOHN DAVIS

Applicant

and

 

QUEENSLAND COMMUNITY CORRECTIONS BOARD

Respondent

BRISBANE

DATE 24/06/2004

JUDGMENT

HIS HONOUR: This is an application for judicial review of the decision of the respondent Board to refuse the applicant post-prison community-based release.

Such a decision was, presumably, made shortly after 30th January this year when the Board received the applicant's indication that he did not wish “to appeal the (Board's) decision” to decline his application for a community-based release order.

The decision to which the applicant was referring in his letter was the intimation conveyed by the Board's letter of 21st January. This was that, principally because of the contents of a then recent report from the psychiatrist, Dr Kar, to the effect that the applicant was a “dangerous predatory paedophile” who would remain a “significant danger to the community for the rest of his life”, the Board was disposed to refuse the application in the absence of further submissions within 14 days.

Despite having elected not to make such submissions and instead not to contest the Board's provisional decision to refuse his application, the applicant now contends that the Board's refusal of his application was, in a word, unlawful.

Essentially, the applicant's case is that the Board was not in law entitled to have regard to Dr Kar's report. This report had been brought into existence in December 2003, not long after a consultation between the practitioner and the applicant. The applicant has today made some complaints about the way in which the consultation proceeded. It is unnecessary to dwell on them. None appears to have substance, which may perhaps explain why none was advanced to the Board in response to its invitation to make submissions.

The only matter meriting discussion is the contention that Dr Kar's report was not “information” to which the Board was entitled to have regard under section 139 of the Corrective Services Act 2000 in declining to give effect to the sentencing Judge's recommendation that the applicant be eligible for parole after serving four and a half years of the 12 years' imprisonment imposed on 2nd December 1997.

In particular, the applicant contends that the Board was not entitled to act on information adverse to him which came into existence after the recommended parole eligibility date.

Now, there is nothing in the Act to indicate such a limitation on the material which the Board might consider in evaluating an application for a community-based release order. This is scarcely surprising.

The alternative contention was, in substance, that, if the Board was entitled to consider Dr Kar's opinion, nonetheless, it fell to be evaluated with other pertinent information: in particular, that the applicant had twice successfully completed a sexual offenders treatment program, and spent a period in an open security environment.

But there is no reason to suppose that such information was ignored by the Board. To the contrary, the evidence discloses that the material upon which the applicant relies in this regard was before the Board; and there is no sufficient reason to conclude that it was not accorded due consideration.

Plainly, Dr Kar's highly adverse report was influential in the Board's decision to decline the application. The Board, however, was entitled so to regard it.

I should perhaps add that there is nothing to suggest that the Board failed appropriately to take into account the sentencing Judge's parole recommendation.

No ground for judicial review has been made out. The application is therefore dismissed.

HIS HONOUR: The application is dismissed with costs.

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Editorial Notes

  • Published Case Name:

    Anthony John Davis v Queensland Community Corrections Board

  • Shortened Case Name:

    Davis v Queensland Community Corrections Board

  • MNC:

    [2004] QSC 239

  • Court:

    QSC

  • Judge(s):

    Byrne J

  • Date:

    24 Jun 2004

Litigation History

No Litigation History

Appeal Status

No Status