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Johnston v Central and Northern Queensland Regional Parole Board

 

[2018] QSC 54

 

SUPREME COURT OF QUEENSLAND

 

CITATION:

Johnston v The Central and Northern Queensland Regional Parole Board [2018] QSC 54

PARTIES:

CHRISTOPHER MICHAEL JOHNSTON

(applicant)

v

THE CENTRAL AND NORTHERN QUEENSLAND REGIONAL PAROLE BOARD

(respondent)

FILE NO/S:

BS 8413/17

DIVISION:

Trial Division

PROCEEDING:

Application

DELIVERED ON:

16 March 2018

DELIVERED AT:

Brisbane

HEARING DATE:

12 March 2018

JUDGE:

Davis J

ORDER:

  1. The time for filing the application is extended to 18 August 2017.
  2. The decision of the respondent made on 2 May 2017 denying the applicant’s application for parole is set aside.
  3. The applicant’s application for parole is referred to the Parole Board Queensland for further consideration in accordance with these reasons.
  4. There shall be no order as to costs.

CATCHWORDS:

ADMINISTRATIVE LAW – JUDICIAL REVIEW – GROUNDS FOR REVIEW – ERROR RELATING TO FACTS – where respondent refused parole application made by applicant – where respondent took into account that applicant had not completed a particular substance abuse program – where applicant contended he had completed that program – where there was evidence applicant had not completed the program – whether respondent had made an error in finding applicant had not completed the program

ADMINISTRATIVE LAW – JUDICIAL REVIEW – GROUNDS FOR REVIEW – FETTERING DISCRETION – where respondent refused parole application made by applicant – where parole guidelines provide that certain matters are to be considered in deciding whether or not to grant parole – whether the decision to refuse the parole application was the result of a strict application of the policy without consideration of the merits

ADMINISTRATIVE LAW – JUDICIAL REVIEW – GROUNDS OF REVIEW – RELEVANT CONSIDERATIONS – where applicant’s parole application was refused – where applicant submitted respondent failed to consider the future effect of refusing to grant parole – where that factor was identified in relevant Ministerial guidelines – whether that was a relevant consideration respondent was required to take into account

Acts Interpretation Act 1954 (Qld) s 27B

Corrective Services Act 2006 (Qld) s 3, 184, 227

Criminal Code (Qld) s 339, s 411, s 421, s 469

Criminal Proceeds Confiscation Act 2002 (Qld) s 252

Judicial Review Act 1991 (Qld) s 20, s 22, s 23, s 24

Penalties and Sentences Act 1992 (Qld) s 160C

Statutory Instruments Act 1992 (Qld) s 7

Weapons Act 1990 (Qld) s 50 

Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223, cited

Attorney-General (NSW) v Quin (1990) 170 CLR 1, cited

Batts v Department of Corrective Services; Fogarty v Department of Corrective Services [2002] QSC 206, distinguished

BHP Coal Pty Ltd v Minister for Natural Resources and Mines [2005] QSC 121, cited

Calanca v The Queensland Parole Board [2016] QSC 3, followed

Day v Queensland Parole Board [2015] QSC 89, considered

Maycock v Queensland Parole Board [2015] 1 Qd R 408, followed

McCasker v Queensland Corrective Services Commission [1998] 2 Qd R 261, cited

McQuire v South Queensland Regional Community Corrections Board [2003] QSC 414, cited

Minister for Immigration and Citizenship v SZJSS (2010) 243 CLR 164, cited

Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611, applied

Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323, cited

Queensland Parole Board v Moore [2012] 2 Qd R 294; [2010] QCA 280, considered

Smoker v Pharmacy Restructuring Authority (1994) 53 FCR 287, applied

Wall v Central and Northern Queensland Regional Parole Board [2013] QSC 129, followed

COUNSEL:

The applicant appeared in person

M J Woodford for the respondent

SOLICITORS:

Crown Solicitor for the respondent

  1. The applicant is a prisoner presently being held at the Maryborough Correctional Centre.  He applied for release on parole.  That application was refused on 2 May 2017 (the decision).[1]  Upon request,[2] a statement of reasons for the decision was furnished by the respondent to the applicant under cover of a letter dated 29 May 2017.[3]  The applicant applies for a statutory order of review of the decision.[4] 
  2. The applicant filed all his documents on the application himself and appeared on the application by video link from the correctional centre.  He has not at any stage in the application been represented by a lawyer, although an outline of submissions filed by the applicant is in terms that suggest that he may have received some assistance from someone with legal training.  Nothing, though, turns on this.
  3. By s 26 of the Judicial Review Act 1991 (Qld) (the Judicial Review Act), any application by the applicant was to be filed by late June 2017, depending upon the time of receipt by him of the reasons dated 29 May 2017.[5]  The present application was filed on 18 August 2017, clearly out of time.  No formal application has been made to extend the time for filing the application, but the respondent did not oppose the time being extended when I inquired, and so I will do so.[6] 

The application

  1. The application[7] relevantly states as follows:

“The applicant is aggrieved by the failure to make a decision because:

  1.  The respondent’s decision is based on incorrect information.

The grounds of the application are

  1.  The denial of natural justice and procedural fairness.”
  1. By s 20 of the Judicial Review Act, a “person aggrieved” by a decision may apply to the court for a statutory order of review.  A person who is “aggrieved by the failure of [a] person to make [a] decision” may also apply for a statutory order of review.[8]  Here, it is obvious that a decision has in fact been made.  The applicant’s reference to “the failure to make a decision”, taken in context, means, I think, that the applicant alleges that the respondent has failed to make what he says is the correct decision, namely, to release him on parole.  I will treat the application as one that is made under s 20, not s 22, of the Judicial Review Act.
  2. The term “person aggrieved” is not given a narrow construction and will include any person who has suffered an impact of the decision beyond that of general members of the public.[9]   There is no doubt that where the applicant is a prisoner and the respondent has a statutory power to release him on parole, the applicant is a “person aggrieved” by a decision denying him release.  The respondent concedes that the applicant is a “person aggrieved” by the decision.  The real issue is whether the applicant has established one of the grounds for a statutory order of review which are prescribed by s 20(2) of the Judicial Review Act.
  3. Neither of the two paragraphs of the application set out above throws any light on the real complaints made by the applicant about the decision.  Understandably, particulars were sought by the respondent.  Particulars were supplied by the applicant in these terms:

 1.   Breach of the rules of natural justice and procedural fairness.

1.1  The Respondent is obligated to act on accurate information.  The Respondent, in making its decision, has taken into account its belief that the Applicant has not completed the Pathways Program.

  1.  Incorrect information

2.1 The Respondent, in making its decision, has taken into account its belief that the Applicant has not completed the Pathways Program when in fact the Applicant has successfully completed that program twice.

2.2  The Respondent is obligated to act on accurate information.”[10]

  1. The particulars attempt to raise the ground identified in s 20(2)(h) as regulated by s 24(b).
  2. Section 20(2)(h) provides that a ground for a statutory order of review is:

“(h)  that there is no evidence or other material to justify the making of the decision”

  1. Section 24 then provides as follows:

24  Decisions without justification—establishing ground (ss 20(2)(h) and 21(2)(h))

The ground mentioned in sections 20(2)(h) and 21(2)(h) is not to be taken to be made out—

  1. unless—
    1. the person who made, or proposed to make, the decision was required by law to reach the decision only if a particular matter was or is established; and
    2. there was no evidence or other material (including facts of which the person was or is entitled to take notice) from which the person could or can reasonably be satisfied that the matter was or is established; or
  2. unless—
    1. the person who made, or proposes to make, the decision based, or proposes to base, the decision on the existence of a particular fact; and
    2. the fact did not or does not exist.”
  1. On 12 October 2017 Justice Flanagan made directions in the matter by consent.  Those directions included:

 8. The applicant provide to the respondent a copy of his outline of argument by no later than seven (7) business days before the date of the hearing of the application.

  1. The respondent provide to the applicant a copy of its outline of argument by no later than three (3) business days before the date of the hearing of the application.”
  1. No outline of argument was filed by the applicant within the time limited by the order of Justice Flanagan.  An outline of argument was filed on behalf of the respondent on 7 March 2018.[11]  On 12 March 2018, an outline of argument by the applicant was received at the office of the Crown Solicitor.[12]  That outline was filed by leave at the hearing of the application.
  2. The applicant’s outline of argument raises grounds beyond the application.  There appear to be three of these.  Firstly, the applicant says that the respondent refused his application by applying a policy rather than considering the application on its merits.  This complaint has its foundation in s 20(2)(e) and s 23(f) of the Judicial Review Act.[13] 
  3. Secondly, it is alleged that the respondent failed to take into account relevant considerations namely: (i) the applicant has completed the Pathways Program;[14] (ii) the applicant has not committed disciplinary breaches “for a considerable period of time”;[15] (iii) the fact that denying the applicant parole and releasing him on or close to his full time release date limits the time that he will be subject to supervision in the community.  That, it is said, is relevant to issues concerning the protection of the community.[16] 
  4. Thirdly, the applicant relies upon s 20(2)(e) and s 23(h) of the Judicial Review Act and submits that the decision to refuse parole is so unreasonable that no reasonable person could so exercise the power.[17]  That of course raises questions of Wednesbury unreasonableness (all these grounds being “the new grounds”).
  5. In total then the applicant seeks to raise four grounds in support of his application for a statutory order of review.  When the matter came before me, I asked the applicant whether the four grounds as I identified them were all the grounds he wished to raise.  He confirmed that there were no other matters on which he sought to rely[18].  The respondent took no objection to the addition of the new grounds.[19]   While the application which was filed does not really disclose any grounds, all four grounds now identified are sufficiently expressed in either the particulars[20] or the applicant’s outline of submissions.  The respondent was content to argue all four grounds.  There is no need to formally amend the application.
  6. Before considering each of the grounds, it is necessary to record some of the background to the application.

Background

  1. The applicant was born on 3 June 1992[21] and has a substantial criminal history.  His first adult convictions were in the Toowoomba District Court in September 2009.  The applicant was, on that occasion, sentenced in relation to a charge of robbery with various circumstances of aggravation.[22]  What followed over the next few years were various convictions for offences of violence and dishonesty, together with some offences against the Drugs Misuse Act 1986 (Qld) (‘the Drugs Misuse Act’).[23] 
  2. During the period 2009 to 2014, the applicant was placed on community based orders,[24] given suspended sentences of imprisonment and court-ordered parole.[25]   The community based orders were breached; offences were committed during the operational periods; and the suspended sentences were activated.  Court-ordered parole has also been breached.
  3. On 14 February 2014, in the District Court at Toowoomba, the applicant pleaded guilty to a charge of armed robbery,[26] a charge of assault occasioning bodily harm,[27] a count of enter premises and commit an indictable offence,[28] unlawful possession of weapons,[29] a charge of possessing tainted property,[30] and various charges against the Drugs Misuse Act.[31]  The sentencing judge, when imposing a sentence of imprisonment of five years upon the applicant, described the offence of armed robbery as the most serious of the offences which her Honour was then addressing.[32]  Time spent on remand was declared as time served and an eligibility date for parole was set at 20 February 2015.[33] 
  4. On 18 July 2016, the applicant was sentenced in the Magistrates Court at Maryborough on a count of wilful damage[34] committed on 26 April 2016 while in custody.[35]  The applicant was sentenced by the Magistrate to three months’ imprisonment to be served cumulatively upon the sentence imposed on 14 February 2014, and the applicant’s eligibility date for parole was postponed to 18 August 2016.[36]  The applicant’s full time release date became 3 April 2019.[37] 
  5. The sentences imposed on 14 February 2014 and 18 July 2016 are the sentences the subject of the present application.
  6. An application for release on parole was made by the applicant on 1 October 2015, but was refused on 24 February 2016.[38] Reasons were given on 13 April 2016.[39] 
  7. The applicant’s current application for parole was made to the respondent on 2 November 2016.[40] 
  8. On 3 January 2017, the respondent met and considered the applicant’s application.[41]  At the time of the meeting the applicant had unresolved breach of discipline proceedings as a result of an incident on 8 December 2016.  The respondent wrote to the applicant raising various issues.[42] 
  9. Over the next two months, the respondent assessed the suitability of various residential addresses proposed by the applicant as places he would live if released on parole.[43] 
  10. On 14 March 2017, the respondent met and considered the applicant’s application.  The respondent formed a preliminary view that the applicant would pose an unacceptable risk to the community if released on parole.[44] 
  11. On 16 March 2017, the respondent sent a lengthy letter to the applicant.[45]  In that letter, the respondent informed the applicant that a preliminary view had been formed adverse to his application for parole.  The letter then explained some of the reasons the respondent had formed the preliminary view that it had.  In particular:
  1. the applicant had previously had the benefit of community based orders, suspended sentences and court ordered parole, and offences had been committed by the applicant during the currency of those orders;
  1. the applicant had committed various disciplinary breaches while in custody;
  1. the applicant’s security classification remains high;
  1. the applicant’s history showed drug abuse; and
  1. the applicant had commenced the Pathways Program (a High Intensity Substance Abuse Program) on two occasions but had exited without completion.
  1. The letter of 16 March 2017 invited the applicant to make further submissions in relation to the preliminary view held by the respondent as expressed in the letter.[46] 
  2. The applicant took the opportunity to make further submissions and sent the respondent a letter which was received by the respondent on 26 April 2017.[47]  In the letter the applicant addressed three issues which he saw were raised in the respondent’s letter of 16 March 2017, namely:
  1. Previous poor performance whilst on a parole order: The applicant agreed that his history while on parole was “far from perfect” but explained that his personal circumstances had changed since he was last on parole.
  1. Institutional behaviour: The applicant admitted that his “institutional behaviour had not been the best in the past” but pointed to some contributing factors including his diabetes and medication.  The applicant explained to me, though, that the reference to diabetes was an error and he meant to refer to another health issue from which he suffered, namely schizophrenia.[48] 
  1. Pathways Program: The applicant asserted in the letter that he had completed the Pathways Program on two occasions and had also completed another program called the “Getting Smart Program”.  He expressed a willingness to participate in any further programs that the respondent might require as a precondition to his release.
  1. The respondent met on 2 May 2017 and rejected the applicant’s application for parole.  The decision was communicated to the applicant by letter dated 3 May 2017.[49]   A statement of reasons for the rejection of the application for parole was requested by the applicant by letter 11 May 2017[50] and, as already observed, a statement of reasons was provided under cover of letter of 29 May 2017.[51] 

Statutory context

  1. The Corrective Services Act 2006 (‘the Corrective Services Act’) was extensively amended in 2017.  References here are to the Act in force at the time of the refusal of the application for parole.
  2. Section 3(1) of  the Corrective Services Act describes its purpose in these terms:

3  Purpose

  1. The purpose of corrective services is community safety and crime prevention through the humane containment, supervision and rehabilitation of offenders.”
  1. Section 187 provides:

187 Which parole board may hear and decide application

  1. The Queensland board may hear and decide an application for a parole order from a prisoner who—
    1. has been sentenced, before or after the commencement of this section, to a period of imprisonment of 8 years or more; or
    2. immediately before 1 January 2005, was subject to a reporting order made under the Criminal Law Amendment Act 1945 , section 19; or

Note—

The Criminal Law Amendment Act 1945, section 19 (repealed by Act No.  52 of 2004) dealt with the reporting of names and addresses of sexual offenders.

  1. is accommodated at, or lawfully outside, a corrective services facility in an area of the State for which a regional board is not established.
  1. A regional board may hear and decide an application for a parole order from a prisoner not mentioned in subsection (1) who is accommodated at, or lawfully outside, a corrective services facility in the area of the State for which the regional board is established.  …”
  1. The applicant’s application was within the power of the respondent to decide.
  2. Section 193 provides:

193 Decision of parole board

  1. A parole board required to consider a prisoner’s application for a parole order must decide—
    1. to grant the application; or
    2. to refuse to grant the application.
  1. However, subject to subsection (3), the parole board may defer making a decision until it obtains any additional information it considers necessary to make the decision.
  2. The parole board must decide the application within the following period after receiving the application—
    1. for a decision deferred under subsection (2)—210 days;
    2. otherwise—180 days.
  3. The parole board may grant the application even though a parole order for the same period of imprisonment was previously cancelled.
  4. If the parole board refuses to grant the application, the board must—
    1. give the prisoner written reasons for the refusal; and
    2. if the application is for a parole order other than an exceptional circumstances parole order—decide a period of time, of not more than 6 months after the refusal, within which a further application for a parole order (other than an exceptional circumstances parole order) by the prisoner must not be made without the board’s consent.”
  1. Section 227 provides:

227 Guidelines

  1. The Minister may make guidelines about the policy to be followed by the Queensland board when performing its functions.
  1. The Queensland board may, in consultation with the chief executive, make guidelines about—
    1. the policy to be followed by a regional board when—
      1. performing its functions; or
      2. conducting its business, including, for example, the procedure at its meetings; and
    2. the matters to be dealt with, and the information to be contained, in an annual report given by a regional board to the Queensland board under section 240 .
  2. The guidelines made by the Queensland board must be consistent with the guidelines made by the Minister under subsection (1).
  1. Relevant guidelines have been made under s 227(2).[52]  These apply to the respondent.  Included in the guidelines is the following:

 1.1 Section 227(1)[53] of the Corrective Services Act 2006 (the Act) allows the Queensland Parole Board, in consultation with the chief executive, to make guidelines regarding the policy to be followed by the regional boards in performing their functions and conducting their business.  In following these guidelines, care should be taken to ensure that decisions are made with regard to the merits of the particular prisoner’s case.

1.2 When considering whether a prisoner should be granted a parole order, the highest priority for the Regional Parole Board (‘the Regional Board’) should always be the safety of the community.

1.3  The Regional Board should consider whether there is an unacceptable risk to the community if the prisoner is released to parole; and whether the risk to the community would be greater if the prisoner does not spend a period of time on parole.

2.1  When deciding the level of risk that a prisoner may pose to the community, the Regional Board should have regard to all relevant factors, including but not limited to, the following—

a)  the prisoner’s prior criminal history and any patterns of offending;

b)  the likelihood of the prisoner committing further offences;

c)  whether there are any other circumstances that are likely to increase the risk the prisoner presents to the community;

d)  whether the prisoner has been convicted of a sexual offence listed in Schedule 1 of the Act;

e)  the recommendation for parole, parole eligibility date, or any recommendation or comments of the sentencing court;

f)  the prisoner’s cooperation with the authorities both in securing the conviction of others and preservation of good order within the corrections system;

g)  any medical, psychological, behavioural or risk assessment report relating to the prisoner;

h)  any submissions made to the Regional Board by an eligible person registered on the victims register;

i)  the prisoner’s compliance with any other previous grant of community based release, resettlement leave program, community service or work programs;

j)  whether the prisoner has access to supports or services that may reduce the risk the prisoner presents to the community; and

k)  recommended rehabilitation programs or interventions and the prisoner’s progress in addressing the recommendations.

5.2  When considering releasing a prisoner to parole, the Board should have regard to all relevant factors, including but not limited to the following—

a)  time spent in custody during the current period of imprisonment;

b)  time spent in a low security environment or time spent in residential accommodation, and a history of positive institutional behaviour;

c)  time spent undertaking a work order or performing community service;

d)  appropriate transitional, residential and release plans; and

e)  genuine efforts to undertake available rehabilitation opportunities.”

  1. I turn now to consider the particular grounds upon which the application is advanced.

Factual error concerning the applicant’s completion of the Pathways Program[54]

  1. As already observed, the applicant’s complaint is that the respondent found that the applicant had not completed the Pathways Program but the applicant contended that he had.  The applicant’s apparent failure to complete the Pathways Program was mentioned in the respondent’s reasons for declining the application for parole.  After noting the applicant’s history of drug use in the community and the applicant’s failure to complete the Pathways Program despite having commenced it on two occasions, the respondent said this:

“The Board[55] gave consideration to the Pathways Program or an equivalent program being completed in the Community however has decided in this instance that given the Applicant’s extensive breach history and inadequate relapse prevention plan, it would be too great a risk to release the Applicant into the Community without having first successfully completed the program.”[56]

  1. The extent to which an applicant for judicial review can contest factual findings, and the way in which s 20(2)(h) and s 24 of the Judicial Review Act operate are matters which are not free from difficulty.[57]  However, here it is clear that there was no error of fact; the applicant was enrolled on two occasions in the Pathways Program, as the respondent found, and the applicant exited the course on two occasions without completing it, as the respondent found.
  2. The evidence before me shows that the applicant was enrolled in the Pathways Program in early 2015 and in late 2015 and failed to complete the course on either occasion. 
  3. The applicant commenced the Pathways Program on 12 January 2015.  On 11 May 2015, he left the program.  A document “Queensland Corrective Services Individual Intervention Completion Report” was prepared and signed both by the course facilitator and the applicant.[58]  The report records the applicant’s non-attendance at various sessions and tutorials and then states:

“As well as a poor attendance record, he demonstrated a low level of engagement, a positive urinalysis test, and multiple episodes of separate confinement.  He was provided with a written warning on 6 March 2015 and terminated from the program on 11 May 2015.”[59]

  1. The applicant was re-enrolled in the program later in the year, commencing on 2 November 2015.  The program was to be completed on 8 April 2016.[60]  There was before me a document, “Queensland Corrective Services Individual Intervention Completion Report”, relating to this later enrolment.  The document was again signed by both the facilitator and the applicant.  Again, the applicant did not attend all sessions.  The author of the report[61] mentioned this:

“Overall prisoner Johnston presented as disengaged and at times was difficult to manage within the class format.  Individually he was spoken to about his willingness, ability and readiness to complete the program, and he attributed his disengagement to having already completed Phase 1 and being ‘bored’ with the material.  During individual interactions with sessions Prisoner Johnston was respectful towards facilitators however, when addressed as part of a larger group he would behave in a manner that was pleasing to the group.

His attitude during sessions was volatile and highly dependent on his perception of whether or not he was getting his own way.  Prisoner Johnston was observed as being able to positively relate to others within the group and had a moderate level of disclosure when verbally discussing his substance use and criminal conduct with the group.  However, he had to be invited to share as he presented as disinterested for a large proportion of the time, preferring to look ahead in the work book.”[62]

  1. It appears that the applicant provided one of the facilitators with a letter which was concerning and that ultimately led to his exit from the program before he had completed it.[63] 
  2. During the hearing before me, the applicant accepted that he was wrong in his assertion that he had completed the course.[64] 
  3. The factual basis having not been made out, the ground of review is dismissed.

Application of a policy rather than a decision on the merits

  1. This is the first of new grounds raised in the applicant’s outline of submissions and is legally founded in s 20(2)(e) and s 23(f) of the Judicial Review Act.  Those provisions provide as follows:

20 Application for review of decision

  1. The application may be made on any 1 or more of the following grounds—
    1. that the making of the decision was an improper exercise of the power conferred by the enactment under which it was purported to be made; …”

23 Meaning of improper exercise of power (ss 20(2)(e) and 21(2)(e))

In sections 20(2)(e) and 21(2)(e), a reference to an improper exercise of a power includes a reference to—

  1. an exercise of a discretionary power in accordance with a rule or policy without regard to the merits of the particular case; …”
  1. The applicant in his outline of argument referred to a decision of Applegarth J in Gough v Southern Queensland Regional Parole Board[65] where his Honour found that an unsuccessful applicant for parole had made out the grounds identified in s 20(2)(e) and s 23(f) of the Judicial Review Act.  The complaint sought to be raised by the applicant appears to be that the respondent refused parole on the basis that the applicant has failed to complete the Pathways Program, when he had already completed other programs.[66]   The guidelines provide that the respondent should consider progress in rehabilitation programs.[67]   It follows, so I think the argument goes, that the respondent’s insistence on the applicant completing the Pathways Program is arbitrary and the refusal of parole is not based upon the merits of the application, those merits including that the applicant had completed other courses.
  2. There have been numerous decisions which have considered circumstances where the decision-maker on an application for parole has refused parole because the applicant has failed to complete a particular rehabilitative course.[68]  A relevant consideration, and often the primary consideration when one has regard to the purposes of the Corrective Services Act and the guidelines, is whether the release of the applicant on parole constitutes an unacceptable risk to the community if released.[69]  In some cases,[70] the decision-maker lost sight of the real consideration, namely whether the risk is acceptable or not, and instead focused on the whether the rehabilitative course, prescribed by some departmental policy or practice to be a requirement for release, had been completed.  Those cases are examples of a miscarriage of discretion on grounds identified in s 20(2)(e) and s 23(f) of the Judicial Review Act.
  3. It is clear that is not the position here.  The reasons given by the respondent explain why, in the peculiar circumstances of the applicant’s case, completion of the Pathways Program (or an equivalent drug abuse program) was considered necessary.  The Pathways Program is a high intensity substance abuse program.[71]   The respondent explains in the reasons:  the applicant has a history of drug use in the community; he has a “breach history” (in context a reference to not complying with community based orders), and has an inadequate relapse prevention plan.  In those circumstances it was concluded that there was an unacceptable risk in releasing the applicant into the community before undertaking the Pathways Program or some equivalent program.[72]   The respondent’s consideration of the parole application clearly considered the risk posed by the applicant’s drug abuse, and the necessity to address that by a program targeted specifically at the problem, i.e.  the Pathways Program.  The consideration was of the merits of the parole application.
  4. This ground has not been made out.

Failure to take into account relevant considerations

  1. This ground relies upon s 20(2)(e)[73] and s 23(b) of the Judicial Review Act.  Section 23(b) is in these terms: “(b) failing to take a relevant consideration into account in the exercise of a power; …”.
  2. As observed earlier there are three matters which the applicant submits are relevant considerations but were not taken into account.  The first two are that the applicant has completed the Pathways Program on two previous occasions and that the applicant has not committed disciplinary breaches “for a considerable period of time”.  Both of these can be dismissed as they are assertions which are simply contrary to the evidence. 
  3. The applicant now accepts that he did not complete the Pathways Program.  He did raise before me that he is concerned that he in fact cannot undertake the Pathways Program because the program is not available at the Maryborough Correctional Centre.[74]  It is clear that the applicant was offered a place in the course at Capricornia Correction Service in Mackay starting in January 2017,[75] but he declined to take up that invitation.[76]  There may be some unresolved issues as to how and how quickly the applicant can now complete the course.  However, those issues were not raised by the applicant in his application, or his outline of argument and there is a limit on the extent to which complaints by the applicant which have not been properly raised can be accommodated.  The complaint which has been properly raised is that the respondent did not take into account that the applicant had completed the Pathways Program.  In fact, he has not completed the Pathways Program and that complaint is not made out.
  4. The applicant’s complaint that the respondent did not take into account the fact that he had not committed breaches while in prison “for a considerable time” faces various difficulties.  The most obvious is that the evidence demonstrates that the applicant has committed breaches fairly consistently whilst in custody.  At the time the respondent considered the applicant’s application for parole, there were still outstanding breaches yet to be determined.[77]  In his letter in response to the respondent’s letter of 16 March 2017, the applicant himself acknowledged his poor behaviour while in custody.[78]  The applicant’s complaint is not made out.
  5. The third consideration which was allegedly ignored was that a consequence of denying parole would be a shortening of the period that the applicant would be subject to supervision when ultimately released.  This, it was submitted, was relevant to community risk.
  6. In Queensland Parole Board v Moore,[79] the Court of Appeal considered an appeal from a decision setting aside a refusal of parole on grounds including that the judge at first instance had not considered the desirability of the prisoner being re-integrated into the community gradually and the effect of a refusal of parole on the shortening of the period of post-release supervision.  The Court dismissed the appeal finding that in the circumstances of the case a consideration of those issues was necessary.[80] 
  7. In Moore there was psychiatric evidence which squarely raised consideration of the desirability of a relatively lengthy period of supervision in the community.  Justice Bond observed in Day v Queensland Parole Board[81] that Moore did not establish any:

“…general proposition that in all cases it is relevant and necessary for the Board specifically to take into account and weigh the relative risks of (1) discharging an offender at or towards the end of his sentence as compared with (2) giving the offender earlier supervised release on parole.”[82]

  1. While that is, with respect, clearly a correct analysis of Moore, the guidelines in force at the time of the decision under consideration here mandate such an approach.
  2. The guidelines,[83] by paragraph 1.3, raise for the consideration of the respondent “…whether the risk to the community would be greater if the prisoner does not spend a period of time on parole”.  This clearly directs attention to the issue considered in Moore, namely that if a prisoner is not given parole before his/her full time release date, then the prisoner is released into the community unsupervised.
  3. The usual complaint on an application for judicial review where guidelines have formed part of the decision making process is that the guidelines have improperly fettered the discretion of the decision maker.[84]  However, if the legal effect of the guidelines, and the provisions of the Corrective Services Act which authorised them, mandate the consideration of the factor discussed in Moore, then the respondent has erred by not considering it.[85] 
  4. In Smoker v Pharmacy Restructuring Authority,[86] the Full Federal Court considered provisions of the National Health Act 1953 which empowered the Pharmacy Restructuring Authority to make certain recommendations concerning the regulation of pharmacies.  A section of the Act provided that: “The Minister must determine in writing the guidelines subject to which the Authority is to make [the recommendations]”. 
  5. Another section provided “the Authority must comply with the relevant guidelines determined by the Minister …”.[87]   The guidelines were complied with by the Authority and a party affected by the resulting recommendation complained that the guidelines were invalid as inconsistent with the grant of discretionary power to the Authority.  Further, it was submitted that the Authority, by following the guidelines, inappropriately fettered its discretion.  While acknowledging that the term “guidelines” usually contemplated non-binding standards to which a decision maker might have regard,[88] the Court held that on a proper construction of the provisions of the National Health Act the “guidelines” were in fact rules which validly circumscribed the discretion given to the Authority.[89]  Applying the guidelines in the decision making process was mandatory.  A failure to do so would be an improper exercise of power.
  6. Smoker has been considered many times in different statutory contexts.[90]  The principle which comes from the case is a simple one: that on the proper construction of  the statute authorising the making of guidelines, and the guidelines themselves, a decision maker may be obliged to apply the guidelines even if by doing so limits the discretion which might otherwise be considered a broad one.
  7. Section 193 of the Corrective Services Act[91] granted power to the respondent to decide applications for parole.  That section does not prescribe criteria to be applied in the exercise of the power.  Of course, the discretion is confined by the purpose and scope of the legislation.[92] 
  8. Against the broad grant of power given by s 193, there is s 227.[93]  By s 227, the guidelines concern “the policy” relevant to the respondent “performing its functions”.  One function of the respondent is considering applications for parole.  The guidelines are those about “policy to be followed by a regional board”.[94]  The notion of guidelines “to be followed” suggests that the guidelines can limit the respondent’s discretion.  It should also be noted that the guidelines have legislative force as they are a statutory instrument.[95] 
  9. In Maycock v Queensland Parole Board,[96] Jackson J considered an application to review a decision of the Parole Board.  The applicant there had complied with community service and work programs.  Paragraph 5.2 of the guidelines[97] identified such compliance as a “relevant factor” when considering parole.  His Honour held that as the guidelines, by force of s 227(1), were “to be followed by the [board] when performing its functions”, paragraph 5.2 of the guidelines mandated that Mr Maycock’s previous compliance with community service or work programs had to be considered by the Board.[98] 
  10. Paragraph 1.3 appears in a different part of the guidelines to paragraph 5.2, which is the guideline that prescribes “relevant factors” and which was the subject of consideration by Jackson J in Maycock.  Paragraph 1.3 appears in Section 1 which is entitled “Guiding Principles for Regional Boards.” Paragraph 1.3 provides that the Board

should consider” two specific matters:

  1. “whether there is an unacceptable risk to the community if the prisoner is released on parole” (the present release risk); and 
  1. “whether the risk to the community would be greater if the prisoner does not spend a period of time on parole” (the future release risk).
  1. Both of the matters identified in paragraph 1.3 are similar to the “relevant factors” in paragraph 5.2, in that they are prescribed matters for consideration in parole applications, and must be considered.
  2. It is necessary to mention the last sentence of paragraph 1.1: “In following these guidelines, care should be taken to ensure that decisions are made with regard to the merits of a particular prisoner’s case”.  This sentence might be thought to suggest that the guidelines are not intended to prescribe or limit how the discretion in s 193 is exercised, but that is not so.  The guidelines, by s 227, must “be followed” by the respondent.  However, there is no reason why the Minister might not couch the guidelines in terms which simply identify matters for consideration rather than mandate matters for consideration. 
  3. In Calanca v The Queensland Parole Board,[99] Burns J considered paragraph 5.6 of the guidelines.  His Honour identified various guidelines which appeared mandatory in their terms[100] and various which were couched in discretionary terms.[101]  Paragraph 1.3 says that “the Regional Board should consider …”[102] the two factors there identified and those terms, to use the distinction drawn by Burns J, are mandatory.  The factors must be considered, and ultimately the parole decision made on the “merits of [a] particular prisoner’s case”.[103] 
  4. Here, the reasons do not indicate that there has been any consideration of the future release risk.  The future release risk is a countervailing consideration to the present release risk. In other words, when considering the parole application, the respondent was obliged to consider on the one hand the risk of releasing the applicant immediately, as against the risk posed by ultimately releasing him on his full time release date, totally unsupervised, or close to his full time release date and therefore only to be supervised for a short period.  The reasons showed detailed consideration of the present release risk and no consideration of the second, countervailing factor.
  5. Given that the reasons do not refer to the consideration of the future release risk, I draw the inference that the factor has not been considered.[104] 
  6. I find that the respondent has failed to take into account a relevant consideration, namely the future release risk, and the applicant has made out the ground of review under s 20(2)(e) and s 23(b) of the Judicial Review Act.

Wednesbury unreasonableness

  1. This ground of challenge of an administrative decision was identified in Associated Provincial Picture Houses Ltd v Wednesbury Corporation[105] and is now statutorily embodied in s 23(g) of the Judicial Review Act 1991.  Section 23 sets out grounds which would constitute any “improper exercise of power” for the purposes of s 20(2)(e).[106]  Section 23(g) provides:

“(g)  an exercise of a power that is so unreasonable that no reasonable person could so exercise the power …”

  1. The applicant raises the ground in his outline of submissions in this way:

“25. The applicant also contends that he has established a basis under the Judicial Review Act 1991 23(g) to set aside the decision in question as the decision involves an improper exercise of power because the decision was ‘so unreasonable that no reasonable person could so exercise the power’.”

  1. There are no particulars given in support of this ground.
  2. Judicial review of an administrative decision is confined (unless a statute provides otherwise) to the identification and correction of error.  There is no merits review.  The Wednesbury principle, if not to invite merits review, must necessarily be narrow in its scope and operation.  In Wednesbury itself, Lord Greene MR observed that to make out a case of unreasonableness so as to justify judicial intervention “… would require something overwhelming …”.[107]  Brennan J (as his Honour then was) described the Wednesbury ground as “extremely confined”.[108]  In Minister for Immigration and Multicultural Affairs v Eshetu[109] Gummow J said:

“Where the authority is required to be satisfied turns upon factual matters upon which reasonable minds could reasonably differ, it will be very difficult to show that no reasonable decision maker could have arrived at the decision in question.  It may be otherwise if the evidence which establishes or denies, or, with other matters, goes to establish or to deny, that the necessary criterion has been met was all one way.”[110]

  1. Further, de Jersey CJ when sitting on an application for a statutory order of review of a parole board’s decision sounded this warning:

“The jurisdiction I presently exercise is a strictly constrained jurisdiction.  It is no part of the court’s role to second guess decisions of the board made regularly under its Charter.”[111]

  1. I cannot identify a basis upon which the decision could be said to be relevantly unreasonable.  However, no particulars of this ground were provided; there was no real argument before me on the ground; and I have found other error in the decision.  In these circumstances, it is best that I do not comment further on the Wednesbury ground.

Conclusion

  1. The applicant has made out one of the grounds justifying a statutory order of review and the application is allowed.  The decision of the respondent should be set aside.
  2. The Corrective Services Act was extensively amended in 2017 and the Queensland Parole Board and the regional boards were dissolved.[112]  The Parole Board Queensland was established.[113]  The effect of the transitional provisions for the Corrective Services (Parole Board) and Other Legislation Amendment Act 2017[114] are such that the appropriate order is to refer the applicant’s application for parole to the Parole Board Queensland.
  3. The applicant has been successful in his application but he was not legally represented.  Therefore, the appropriate order is that there is no order as to costs.

Orders

  1. The orders of the Court are as follows:
    1. The time for filing the application is extended to 18 August 2017.
    2. The decision of the respondent made on 2 May 2017 denying the applicant’s application for parole is set aside.
    3. The applicant’s application for parole is referred to the Parole Board Queensland for further consideration in accordance with these reasons.
    4. There shall be no order as to costs.

Footnotes

[1]  Affidavit of Menaka Wickramasinghe, filed 16 November 2017, CFI 9 and 10, Exhibits at 150 (‘Wickramasinghe Exhibits’).

[2] Judicial Review Act 1991 (Qld) Pt 4.  

[3]  Wickramasinghe Exhibits at 153.  The reasons are at 155.

[4] Judicial Review Act 1991 (Qld) s 20.

[5]  Section 26(2) and (5).

[6]  Transcript at 1-3.

[7]  CFI 1.

[8]  Section 22.

[9] BHP Coal Pty Ltd v Minister for Natural Resources and Mines [2005] QSC 121 at [10].

[10]  Reply to Request for Further and Better Particulars, filed 8 November 2018, CFI 8.

[11]  CFI 13.

[12]  The solicitor for the respondent.

[13]  Applicant’s outline at [15], which, despite the reference to “further asserts”, seems to encompass the allegations made in paragraphs [13] and [14].

[14]  Applicant’s outline at [12], [19] and [20]. 

[15]  Applicant’s outline at [21].

[16]  Applicant’s outline at [24]. 

[17]  Applicant’s outline at [26].

[18]  Transcript at 1-12 ll 25-50.

[19]  Transcript at 1-4 to 1-7.

[20]  CFI 8.

[21]  Wickramasinghe Exhibits at 242

[22]  At 244.

[23]  At 244–249.

[24]  Wickramasinghe Exhibits at 246, entry of 13 August 2012.

[25]  At 246.

[26] Criminal Code (Qld) s 411(2).

[27] Criminal Code (Qld) s 339(1).

[28] Criminal Code (Qld) s 421(2) and (3).

[29] Weapons Act 1990 (Qld) s 50(1).

[30] Criminal Proceeds Confiscation Act 2002 (Qld) s 252(1).

[31]  Wickramasinghe Exhibits at 235.

[32]  At 239. 

[33] Corrective Services Act 2006 (Qld) s 184(3); Penalties and Sentences Act 1992 (Qld) s 160C(5); and see Wickramasinghe Exhibits at 240.

[34] Criminal Code (Qld) s 469(1).

[35]  Wickramasinghe Exhibits at 237.

[36]  Ibid.

[37]  Wickramasinghe Exhibits at 225. 

[38]  Wickramasinghe Exhibits at 252.

[39]  Ibid.

[40]  Affidavit of Menaka Wickramasinghe, filed 16 November 2017, CFI 9 at [5] (“Wickramasinghe Affidavit”) and Wickramasinghe Exhibits at 1.

[41]  Wickramasinghe Affidavit at [6]. 

[42]  Wickramasinghe Exhibits at 134.

[43]  Wickramasinghe Affidavit at [10]–[12].  

[44]  At [13].

[45]  Wickramasinghe Affidavit at [14]; Wickramasinghe Exhibits at 145.

[46]  Wickramasinghe Exhibits at 147.

[47]  At 149. 

[48]  Transcript at 1-18 ll 25-35.

[49]  Wickramasinghe Exhibits at 150. 

[50]  At 152.

[51] Judicial Review Act 1991 (Qld) Pt 4; Wickramasinghe Affidavit at [17]–[18]; Wickramasinghe Exhibits at 153–160.

[52]  Wickramasinghe Exhibits at 161.

[53]  This should be a reference to s 227(2).

[54]  This is the ground identified in the application and particulars (as opposed to the new grounds which appear in the applicant’s outline of argument). 

[55]  A reference to the respondent.

[56]  Wickramasinghe Exhibits at 159.

[57] Curragh Queensland Mining Ltd v Daniel (1992) 34 FCR 212; Minister for Immigration and Multicultural Affairs v Rajamanikkam (2002) 210 CLR 222.  See also the discussion in Aronson and Groves, Judicial Review of Administrative Action, (Lawbook Company, 5th ed, 2013) at [4.640]-[4.680].

[58]  Wickramasinghe Exhibits at 208–210.

[59]  At 210.

[60]  At 203.

[61]  Signed by the applicant.

[62]  Wickramasinghe Exhibits at 205.

[63]  Ibid.

[64]  Transcript at 1-14.

[65]  [2008] QSC 222.

[66]  Applicant’s outline at [13], [14], [17].

[67]  Wickramasinghe Exhibits at 161–162.

[68] Yeo v Queensland Corrective Services Commission (Unreported, Supreme Court of Queensland, Dowsett J, 13 February 1998); Felton v Queensland Corrective Services Commission [1994] 2 Qd R 490; Wiskar v Queensland Corrective Services Commission [1998] QSC 279; Batts v Department of Corrective Services; Fogarty v Department of Corrective Services [2002] QSC 206.

[69] McCasker v Queensland Corrective Services Commission [1998] 2 Qd R 261; and see generally the approach to interpretation of the Corrective Services Act having regard to its protective purposes as explained in McQuire v South Queensland Regional Community Corrections Board [2003] QSC 414.

[70] Batts v Department of Corrective Services; Fogarty v Department of Corrective Services [2002] QSC 206 at [35].

[71]  Wickramasinghe Exhibits at 146.

[72]  At 159.

[73]  Set out at [48] of these reasons.

[74]  Transcript at 1-16.

[75]  Transcript 1-30 to 1-31; Wickramasinghe Exhibits at 137.

[76]  Wickramasinghe Exhibits at 139.

[77]  Wickramasinghe Exhibits at 171–173.

[78]  Wickramasinghe Exhibits at 149.

[79]  [2012] 2 Qd R 294.

[80]  At 301.

[81]  [2015] QSC 89.

[82]  At [17(b)].

[83]  Relevantly set out at [38] of these reasons.

[84] Minister for Immigration and Citizenship v SZJSS (2010) 243 CLR 164; Riddell v Secretary, Department of Social Security (1993) 42 FCR 443, wherein the guidelines themselves were attacked.

[85] Smoker v Pharmacy Restructuring Authority (1994) 53 FCR 287 and Minister for Human Services and Health v Haddad (1995) 58 FCR 378.

[86]  (1994) 53 FCR 287.

[87]  At 289.

[88]  At 289, 299.

[89]  At 300–301.

[90] Ford v Legal Aid Commission of Queensland [1999] 1 Qd R 267; Minister for Human Services & Health v Haddad (1995) 58 FCR 378; Assarapin v Australian Community Pharmacy Authority (2016) 239 FCR 161

[91]  Set out at [36] of these reasons.

[92] McQuire v South Queensland Regional Community Correction Board [2003] QSC 414 at [28]; Jennings v Queensland Parole Board [2007] QSC 364 at [25]; Wiggington v Queensland Parole Board [2010] QSC 59.

[93]  Set out at [37] of these reasons.

[94]  My emphasis added.

[95] Statutory Instruments Act 1992 (Qld) s 7.

[96]  [2015] 1 Qd R 408.

[97]  Set out at [38] of these reasons.

[98]  At [74]–[83], [87].

[99]  [2016] QSC 3.

[100]  Paragraphs 3.3(a), (b), and (d) of the guidelines. 

[101]  Paragraph 4.1 of the guidelines.

[102]  My emphasis.

[103]  Paragraph 1.1 of the guidelines.

[104] Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 at 346; Acts Interpretation Act 1954 (Qld) s 27B.

[105]  [1948] 1 KB 223.

[106]  Set out in part at [48] of these reasons

[107]  At 230.

[108] Attorney-General (NSW) v Quin (1990) 170 CLR 1 at 36.

[109]  (1999) 197 CLR 611.

[110]  At 654 [137].

[111] Wall v Central and Northern Queensland Regional Parole Board [2013] QSC 129 at [16].

[112] Corrective Services Act 2006 (Qld) s 490N.

[113] Corrective Services Act 2006 (Qld) Pt 2.

[114] Corrective Services Act 2006 (Qld) Pt 11.

Close

Editorial Notes

  • Published Case Name:

    Johnston v The Central and Northern Queensland Regional Parole Board

  • Shortened Case Name:

    Johnston v Central and Northern Queensland Regional Parole Board

  • MNC:

    [2018] QSC 54

  • Court:

    QSC

  • Judge(s):

    Davis J

  • Date:

    16 Mar 2018

  • Selected for Reporting:

    Editor's Note

Litigation History

Event Citation or File Date Notes
Primary Judgment [2018] QSC 54 16 Mar 2018 -

Appeal Status

No Status