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McQueen v Parole Board Queensland

 

[2018] QSC 216

 

SUPREME COURT OF QUEENSLAND

 

CITATION:

McQueen v Parole Board Queensland [2018] QSC 216

PARTIES:

ALLAN DAVID McQUEEN

(applicant)

v

PAROLE BOARD QUEENSLAND

(respondent)

FILE NO:

5437 of 2018

DIVISION:

Trial

PROCEEDING:

Application

ORIGINATING COURT:

Supreme Court of Queensland

DELIVERED ON:

2 October 2018

DELIVERED AT:

Brisbane

HEARING DATES:

3 September 2018 and 24 September 2018

JUDGE:

Dalton J

ORDERS:

1.    I declare that the decision of the Parole Board made on 27 March 2018 to confirm its earlier decision to cancel Mr McQueen’s parole pursuant to s 208(2) of the Corrective Services Act was affected by error of law and ought to be regarded as invalid.

2.    I direct that a copy of these reasons be provided to the President of the Board and each Deputy-President.

CATCHWORDS:

ADMINISTRATIVE LAW – JUDICIAL REVIEW – GROUNDS OF REVIEW – ERROR OF LAW – where the Parole Board exercised its discretion to cancel the applicant’s parole due to a parole contravention – where the Parole Board confirmed its decision to cancel at a later date – where the applicant applied for judicial review of this decision to confirm – whether the Parole Board failed to take into account relevant considerations – whether the Parole Board adopted an inflexible application of policy or rule

Acts Interpretation Act 1954 (Qld), s 27B

Corrective Services Act 2006 (Qld), s 3, s 200, s 205, s 208, s 208B

East Melbourne Group Inc v Minister for Planning & Anor [2008] VSCA 217, cited

Leggett v Queensland Parole Board [2012] QSC 121, cited

Minister for Immigration & Multicultural Affairs v Yusuf (2001) 206 CLR 323; [2001] HCA 30, cited

COUNSEL:

AD Scott for the applicant

MJ Woodford for the respondent

SOLICITORS:

Guest Lawyers for the applicant

Crown Solicitor for the respondent

  1. [1]
    This is an application for an order for statutory review of a decision the Parole Board made on 27 March 2018 to confirm a peremptory cancellation of Mr McQueen’s parole.  After hearing the application, but before delivering judgment, I was informed that the Board had granted another, independent application by Mr McQueen for parole.  After hearing the parties, I determined to decide the matter and give reasons for my decision.  There seemed utility in doing so because of the long history between the Board and Mr McQueen.  In my view, the Board’s conduct in the present instance was wrong in law.  That ought to be recorded as part of a history which increasingly discredits the Board.
  2. [2]
    The history of Mr McQueen’s offending and interactions with the Parole Board is given in Court Document 10.  All page references below are to the exhibit bundle of that affidavit.

History of Offending

  1. [3]
    Mr McQueen was born in 1967, making him 51 years old now.  He has a very long criminal history which dates back to 1979 when he was 12 years old.  Terms of actual imprisonment were imposed from 1985.  There were many sentences, but no sentence of over 12 months imprisonment was imposed before 1991.  In 1991 he received a sentence of five years imprisonment for stealing with actual violence while armed and in company.  In 1994 he received a sentence of 13 years for two charges of stealing with threats of actual violence while armed and in company.  These offences took place on 11 and 15 February 1993.  Mr McQueen was out of prison at that time because he had been granted home detention.[1]  He was in prison on 24 March 1993 when he committed murder.  On 19 August 1994 he was sentenced to life imprisonment for that crime.  There was offending in prison after that on 27 May 1994, 18 and 23 August 1995, 19 December 1995, 25 and 27 September 1997, and 15 April 2000.  The last conviction looks to have been minor from the punishment recorded in Mr McQueen’s criminal history.
  2. [4]
    All sentences except that for the 1993 murder are spent.

Unsuccessful applications for Parole

  1. [5]
    Mr McQueen applied for parole on 19 April 2007.  There was a parole report dated 20 July 2007 in relation to this application.  It noted Mr McQueen’s criminal history.  It noted that the majority of his offending occurred when he was an adolescent.  Further, that his statements that he offended due to peer pressure were supported by the fact that numerous entries on his criminal history relate to offending with others.  It was noted that the prisoner had started, but not completed, Year 9 at school, but that he had worked in various occupations after that in the community.  He had a “diligent and reliable” work history in prison – p 541.  He had a brother and sister who each had one conviction which attracted a sentence of actual imprisonment (1982 and 1991).  However, they had both been “prosocial” since then – p 542.
  2. [6]
    Mr McQueen was noted to have participated satisfactorily in two anger management programmes; two cognitive skills programmes, and a violence intervention programme in jail.  As well, he had completed several courses of study in jail.  He was noted to interact with staff and other prisoners appropriately.
  3. [7]
    He offered his sister’s address which was deemed suitable.  He had registered for employment with an employment agency and stated that he had been offered a job with his last employer (pre-incarceration), which claim was supported by a letter from that employer.
  4. [8]
    Mr McQueen’s application for parole was rejected.  It was thought that he did not show a long enough period of consistently acceptable behaviour in jail and he had spent no time in a low secure facility.  Concerns were expressed about the severity of his index offence – murder; his criminal history, and the fact that he had been an escapee in the past.  It was accepted that he presented a “comprehensive” release and relapse prevention plan.  The number of violent offences in his criminal history was noted, and it was noted that he had been kept in maximum security for more than five years owing to his violent behaviour towards staff.  The Parole Board refused the application by a letter dated 20 August 2007 – p 534.
  5. [9]
    Mr McQueen applied again on 10 March 2008.  There is a parole report dated 2 May 2008 – p 516.  It contains very similar information to the previous report.  It does record that Mr McQueen had demonstrated good behaviour since 1997, not incurring any breaches since that time and that his behaviour had been “at an exceptionally high level” since moving to the residential area of Borallan.  It records that “he treats all staff with the utmost of respect and is also held in high regard by his peers”.  It speaks to his good work ethic.  It gives the opinion that Mr McQueen was “the main reason for the exceptional high quality of hygiene in his unit … He also tends the unit gardens and assists with the village vegetable plot on a regular basis”.  It is recorded that he is currently employed as a fulltime carer for a 71 year old offender with serious medical issues.
  6. [10]
    The report says that on two occasions psychological testing has been to the effect that Mr McQueen is not a psychopath but does have antisocial personality traits and presents with a degree of anxiety and paranoia.  Mr McQueen hoped to move his parole to New South Wales so that he could live with a lady, A, with whom he had been in a romantic relationship prior to his incarceration.
  7. [11]
    Parole was not recommended for much the same reasons as were evident from the first decision, save that Mr McQueen was now described as institutionalised, and it was noted that he had had only a relatively short period of time in the “open campus environment at Borallan”.  The Parole Board refused this application.
  8. [12]
    Mr McQueen made a third application on 6 October 2009.  The parole report was dated 8 January 2010.  This report is more detailed than the previous reports, but contains much the same information.  Mr McQueen proposes a third address in this plan: to reside at the FNQ Families and Prisoners Support Share House.  Mr McQueen said that he chose Cairns because there were good employment prospects there, and it would take him away from past associates.  It is noted that he had been examined by Dr Gavan Palk in May 2009.  Dr Palk is a psychologist.  Although other psychologists’ reports were summarised in this parole report, Dr Palk’s was not.
  9. [13]
    The report recommended the grant of parole.  Unfortunately the Cairns Probation and Parole office was against the proposed address because the accommodation housed DPSOA prisoners.  Why that was a concern when considering Mr McQueen (who has no such offending) is not made clear in the report.  The recommendation was therefore qualified: that the application for parole be granted, subject to suitable accommodation being found.
  10. [14]
    Dr Palk’s report is part of the material before me – p 461. Mr McQueen told Dr Palk that he came from a family of six children and that the family was a good family and quite strict.  He described difficulties at school, leaving school halfway through Grade 9 and using alcohol and drugs through his teen years.  Dr Palk wonders if Mr McQueen had learning difficulties in his early childhood.  He says there is no evidence of psychopathy.  He notes the extensive criminal history from Mr McQueen’s middle teen years and that during his early years of imprisonment Mr McQueen was “unruly and resistant to rehabilitation efforts”.  However, he says that over the last 12 years Mr McQueen has participated in treatment and intervention programmes and “is regarded as a model prisoner”.  Dr Palk thinks that Mr McQueen had “matured considerably” throughout his years of imprisonment.  He assessed him as being of low risk for violent recidivism.
  11. [15]
    Dr Palk notes that during his time in maximum security Mr McQueen read a lot, thought a lot, and entered into one-on-one therapy with a psychologist.  He gave up cigarettes, drugs, alcohol and gambling.  He told Dr Palk that he thought he had sorted himself out and decided to be a compliant prisoner during this period.
  12. [16]
    Dr Palk records that Mr McQueen met A when about 16 years old and had stayed in a relationship with her until about May 2008 when he had formed a romantic relationship with B, the daughter of the man for whom he was caring in prison.
  13. [17]
    Mr McQueen’s mother and father had both passed away while he was in prison.  His stepfather was still alive.  Dr Palk noted Mr McQueen’s good employment history in prison.  He received regular visits from B.  Dr Palk notes that Mr McQueen had completed numerous vocational and rehabilitation programmes in prison.  He hoped to reside with B when he left prison.  Dr Palk noted that Mr McQueen had not incurred any breaches in prison since 1997 (12 years) and that he was reported to have a good standard of behaviour in prison and be a good worker.  Dr Palk said:

“In summary the writer believes that Mr McQueen’s poor adjustment to his adolescent years was partly due to learning difficulties and possibly minute neurological dysfunction resulting in delayed verbal skill development.  Additionally the early teen years alcohol abuse and mixing with antisocial peers aggravated Mr McQueen’s ability to resolve conflict appropriately.  Consequently by the time he reached his late teen years he had a serious alcohol problem and he was extremely antisocial in nature.

Throughout his early years of imprisonment he was resistant to rehabilitation efforts and preferred to remain defiant, violent and unruly.  Through his experience in the MSU, self-reflection, drug and alcohol detoxification and one-to-one therapy, Mr McQueen began to realise that he needed to make a positive change to his lifestyle.  Hence he became co-operative and participated in rehabilitation programmes and vocational courses.  For some 12 years he has been breach free and he is an active mentor in the drug intervention programme assisting other prisoners to overcome their drug use.  Mr McQueen has demonstrated that he has changed for the better and he is now regarded as co-operative and a model prisoner.  … his current risk for future acts of serious violence appears low and if he can remain drug and alcohol free, his risk of engaging in crime will remain low.  In the writer’s opinion a progressive release plan needs to be developed that will provide Mr McQueen with an opportunity to progress to a low/open security environment.  He currently presents as being suitable for such a placement.”

  1. [18]
    The Parole Board rejected Mr McQueen’s October 2009 application on 26 July 2010 – p  455.  It appears Mr McQueen, through the Prisoners’ Legal Service, made further submissions to the Board, and by letter dated 4 February 2011 the Parole Board rescinded its decision of 26 July 2010 and made a new decision to refuse him parole – p 453.  The Board considered that Mr McQueen needed to progress to a residential unit and then to a low security facility. 

Grants of Parole

  1. [19]
    The Board granted Mr McQueen parole on 30 March 2012 – p 448, but then rescinded it on 16 April 2012 – p 441.  The reason was that it considered his home address unsuitable because his lawyers had flagged an intention to request a change to it in the near future.  The reasoning of the Board in this regard is unclear.  Then, on 20 April 2012, the Board again granted Mr McQueen parole to commence on 23 April.  He was to reside at the address it had approved on 30 March 2012 – p 445.  The conditions of parole included at (aa) that Mr McQueen have no contact with any known offender – p 447.
  2. [20]
    On 25 May 2012 the parole order was suspended, apparently because Mr McQueen continued to maintain contact with other offenders.  A parole report dated 28 May 2012 said:

“McQueen has several conditions attached to his order including the condition (aa) ‘that the prisoner have no contact with any known offender’.  Following clarification from the Board in relation to this condition it was amended on 27 April 2012 where this condition was deleted and replaced with the condition ‘that the prisoner have no contact with any offender currently subject to supervision by Queensland Corrective Services’.  McQueen was advised of this change on 4 May 2012.  This discussion was discussed at length with McQueen by his PPO to ensure his clear understanding of this condition.

It is noted however that information was received Mr McQueen was having contact with individuals currently subject community supervision which was verified by a number of sources in contravention of condition (aa).

Significant other intelligence has been received in relation to Mr McQueen’s purpose for attending Ozcare (namely alleged amphetamine dealing).” – p 281.

  1. [21]
    In a much later letter (31 March 2017) the Parole Board said of this occasion:

“You were released to parole on 23 April 2012, but the parole order was suspended on 8 June 2012 in the following circumstances.  On 8 May 2012, the co-ordinator of the then Supported Parole Programme at Ozcare at South Brisbane reported that you had been at those premises.  Two separate offenders who resided there said they had recent contact with you.  It was noted that at the time your own residence was nowhere near Ozcare’s.” – p 257.

  1. [22]
    On 9 August 2012 that suspension was lifted and Mr McQueen was re-released. 
  2. [23]
    On 29 October 2012 Mr McQueen’s parole was again suspended for the same reason.  A parole report dated 1 November 2012 gives the information that Mr McQueen was seen by a parole officer having lunch with B at a licensed premises and later denied this – p 277.
  3. [24]
    On 7 December 2012 the Board cancelled Mr McQueen’s parole for the breach it had identified on 29 October 2012.  It was also convinced that Mr McQueen failed to notify a change of address and he had failed to stay at his first parole address for a period of 12 months – p 435.
  4. [25]
    It appears parole was reinstated on 7 June 2013 – p 370, p 379 and p 432.  By an order of 5 July 2013, Mr McQueen’s parole was subject to a condition that he have no contact with anyone subject to supervision by Corrective Services, with the exception of B – p 434. 
  5. [26]
    The Board suspended parole on 17 March 2014 “following the receipt of significant adverse intelligence in relation to Mr McQueen’s contact with criminal associates” – p 274.  It seems that this intelligence was that Mr McQueen was charged with trafficking drugs. 
  6. [27]
    The charges were withdrawn on 1 September 2015 and the Board released Mr McQueen on that date – p 274.  The parole report of 12 November 2015 says that on 1 September 2015 Mr McQueen was released to live with B and that “whilst contact with B suggests that she is not supportive of Mr McQueen’s engagement in criminal activity and association with former peer groups, intelligence information is available to indicate otherwise”.
  7. [28]
    Mr McQueen’s parole was suspended on 10 November 2015 and then cancelled on 4 December 2015 because the Board had information that Mr McQueen had “associated with an associate of a criminal motorcycle gang on 20 October 2015 at Waterford” – p 420.  There is no detail in the material before me as to what facts the Parole Board relied upon in relation to this breach.  The parole report of 12 November 2015 says:

“This is the fourth occasion Mr McQueen’s Board Ordered Parole Order has been suspended due to ongoing blatant non-compliance with order restrictions.  Mr McQueen is continuing to be supervised at an intensive level of supervision in terms of reporting frequency, substance testing, and electronic monitoring.  This intense level of supervision has not been sufficient in managing Mr McQueen’s compliance in the community.

It is evidence from the circumstances surrounding the current and previous suspensions for Mr McQueen and numerous intelligence submissions as detailed above that Mr McQueen’s association with pro-criminal peers has been a catalyst for his non-compliance and offending behaviours.  As such, Mr McQueen’s contact with anti-social peers is considered to significantly elevate his risks.” – p 275.

On 26 July 2017, counsel acting for the Board told Jackson J that the Board conceded it could not rely on this breach (see [39] below).

  1. [29]
    Mr McQueen again applied for parole in February 2016 and on 29 June 2016 was informed that he would be released on parole on 1 August 2016 – p 359.  Once again it was a term of his parole that he have no contact with anyone who had served a term of imprisonment with the exception of B.  By this time Mr McQueen and B had a child together.  The parole report to the Board which granted this parole assessed his application to live with B, who was Mr McQueen’s sponsor, as suitable – p 372.  By the time of this release on parole, Mr McQueen’s step-father had passed away.
  2. [30]
    On 20 September 2016 Mr McQueen’s parole was suspended – p 349.  On 19 September 2016 Mr McQueen had rung his supervising Corrective Services officer to report contact with an ex-prisoner at a shopping centre.  The person concerned was a family friend of B; was in a wheelchair, appeared disoriented and ill, and Mr McQueen and B assisted him to find his adult son from whom he had become separated in the shopping centre – p 343.  On 20 September 2016 Mr McQueen and B went to Corrective Services’ offices and B made a written statement about their contact with the person concerned the previous day – p 343.  Much of this contact was caught on CCTV, so the Board could be certain this was the nature of it.
  3. [31]
    There were other breaches of the conditions of his parole in August 2016, all of which seem minor, or not to have been breaches at all:
  1. (a)
    On 6 August 2016 Mr McQueen had been in the company of a woman who was the de facto partner of a man who was currently incarcerated, and who McQueen had known in the past.
  1. (b)
    On 10 August 2016 Mr McQueen had reported incidental contact with a past prisoner.
  1. (c)
    On 13 August 2016 Mr McQueen was not able to be contacted by telephone (in breach of a lawful instruction of a Corrective Services Officer) despite multiple calls, and during a curfew which required him not to “depart his place of residence” – p 423.  Mr McQueen had gone into the yard to play with his dogs without his phone.
  1. (d)
    Mr McQueen reported that on 31 August 2016 a car driven by someone he could not associate with drove beside his car and that B had wound down her window and told the occupant of that car that Mr McQueen was not permitted contact.  The person then drove away – pp 343-346.
  1. [32]
    On 5 September 2016 Mr McQueen reported that he had separated from his partner, B.  He called the police because she was very upset and suicidal.  On 16 September 2016 Mr McQueen reported that he had reconciled with B, but they were living separately.
  2. [33]
    The Board invited Mr McQueen to show cause why his parole should not be cancelled, by letter dated 30 September 2016.  The reason the Board gave was that he had contact with the man in the wheelchair, and the de facto partner of the current prisoner.
  3. [34]
    Mr McQueen wrote to the Parole Board himself, explaining the circumstances of his having contact with the people concerned.  He emphasised that he had reported both incidents to his supervisor, as he had reported other incidents to his supervisor – p 328.
  4. [35]
    Mr McQueen’s solicitors also wrote in response to the invitation to show cause, emphasising the nature of the contact had in each of the two cases relied up by the Board.  They said:

“You are no doubt aware that our client has made application to the Supreme Court in relation to decisions made by the Parole Board.  It seems that the decisions are being made as a result of contact with Queensland Police.  Again, it seems that the breaches in these circumstances are incidental contact of day to day life and/or not in breach of any order and therefore do not require further incarceration.” – p 323.

  1. [36]
    On 12 October 2016 the Board cancelled Mr McQueen’s parole and invited him to show cause why it should change that decision– p 339.

Judicial Review 1 March 2017

  1. [37]
    Mr McQueen brought an application for judicial review of the 30 September 2016 decision to cancel his parole.  It was heard by Jackson J who gave judgment ex tempore on 1 March 2017.  Justice Jackson found that the Parole Board had no basis for regarding Mr McQueen’s contact with the wife of a then current prisoner on one occasion (paragraph [31](a) above) amounted to indirect contact with that prisoner.  During the hearing the Board conceded that the Board’s reliance on this contact was an error of law, but submitted that the Board would have reached the same decision (ie., to cancel parole) because of Mr McQueen’s contact with the wheelchair-bound ex-prisoner in the shopping centre.  Justice Jackson did not accept the latter proposition and set aside the decision of 30 September 2016.
  2. [38]
    On 3 March 2017 the Board substituted a new decision to cancel Mr McQueen’s parole – p 285.  The basis for this decision was expressed to be Mr McQueen’s contact with the gentleman in the wheelchair.  Mr McQueen’s parole was again considered by the Board on 24 March 2017, which confirmed the decision (again) – p 257.  Mr McQueen requested reasons, which were supplied under cover of a letter dated 19 April 2017 – p 243. 

Judicial Review 26 July 2017

  1. [39]
    On 26 July 2017 Jackson J heard an application for a statutory review of the 3 March 2017 decision.  Justice Jackson gave ex tempore reasons including the following:

“The non-compliance was based on the applicant’s self-report of contact he had with an offender named [name].  The applicant challenged the validity of the decision on three grounds; however, it is unnecessary to consider them.  The respondent no longer seeks to uphold the March 2017 cancellation order as valid.

The respondent submits, however, that the application should be adjourned to enable the respondent to further consider another application for parole made by the applicant.  Although the respondent previously refused that further application, it recently decided to rescind its decision, and has indicated that in its reconsideration, it would not rely on the previous contact either with [the wheelchair-bound ex-prisoner] or [the associate of the outlaw motorcycle gang [27] above] as relevant to the decision to be made.”

  1. [40]
    Justice Jackson did not accede to the Parole Board’s request that he adjourn the application, rather than cancel the parole order made on 3 March 2017.  He did cancel that order.  In the event it would be another four months until the Parole Board released Mr  McQueen on parole. 
  2. [41]
    On 26 July 2017, in response to Jackson J having set aside its 3 March 2017 decision to cancel Mr McQueen’s parole, the Board suspended his parole for an indefinite period because it believed he was an unacceptable risk in the community because he had no address approved by the Board.

Last release on parole

  1. [42]
    On 26 October 2017 the Parole Board lifted its suspension of parole as and from 14 November 2017 – p 87.  It was contemplated that Mr McQueen would live with his brother.  This release was on a much amended set of parole conditions, which now numbered 52.  The conditions now prohibited him from having any contact with cooffenders or with anyone known to him who had served a term of imprisonment, without prior approval from Corrective Services.  B was no longer an exception to this condition – p 87ff.  The Parole Board had been informed that the romantic relationship between Mr McQueen and B had broken down.
  2. [43]
    The Board said this about its decision no longer to exclude B from the above condition:

“● The Board is informed that at your interview conducted with the Specialised Clinical Services Unit (SCSU) on 18 October 2017, you reported your relationship with [B] had ceased.  Further you advised that termination of this relationship increased your familial support; and

  ● The Board was also informed in the interview with SCSU upon your own admission that if you re-established a relationship with [B] that this may lead to a reduction of support from your family thereby increasing your likelihood of engaging in maladaptive behaviour.” – p 91.

  1. [44]
    On 28 October 2017 Mr McQueen wrote to the Parole Board, noting that the parole order would be conditioned so that it:

“… will prevent me from having contact with [B].  [B] has been my partner for nine (9) years and we have a four (4) year old son together.

Just recently [B] and I have separated due to the stress of my imprisonment.  My sister rallied around me and gave the support I needed, but once I’m out my sister will put her focus back on her own family.  My family is my wife and my son.  I want to give my son the security, support, comfort and the care of two (2) loving parents.  What my son needs to be exposed to is parents trying and working hard to save something that is deeply important.  Nothing manifests a parent’s love for a child more than struggling to keep that child’s family together.

In the last 20 years none of my sister, brothers, nieces, nephews etc etc have visited me.  Most of my immediate family live in an area which I cannot enter [Ipswich].[2]  The only person that has really supported me for the last nine years is my wife [B] and my son.

[B] is also my only friend.  The only thing I’m looking forward to is spending time with [B] and my son. 

I implore the Board to reconsider your decision to prevent me from having contact with my wife [B].” – p 86.

  1. [45]
    By a letter to Mr McQueen dated 31 October 2017, the Board gave its opinion that information contained in Mr McQueen’s letter of 28 October 2017 was different to that which it had from the SCSU, [43] above.  It further referred to one of Mr McQueen’s previous statements on 4 September 2017 that he had a close relationship with his brother.  The Board said:

“The Board invites you to make any relevant submissions you wish to by Tuesday, 7 November 2017 so that this new information can be reconsidered by the Board as expediently as possibly.  In particular you may wish to address the impact this self-disclosed change in circumstances may have on the suitability of you residing at your brother’s house … and your broader plans for reintegration into the community.” – p 77.

  1. [46]
    On 2 November 2017 Mr McQueen’s lawyers wrote to the Parole Board explaining that he was in an ongoing relationship with his wife because they had a child together and that he wished to create a civilised parental relationship with her for the sake of his son.  The solicitors reiterated that Mr McQueen claimed a close relationship with his brother and that there was no change in circumstance which would prevent him living with his brother – p 72.
  2. [47]
    In reply, on 9 November 2017, the Board again reiterated concerns that Mr McQueen wanted to re-establish a romantic relationship with his wife and that he had expressed distance between himself and his siblings in his letter of 28 October 2017 – p 69.  This letter reiterated that the Board insisted on a condition which prohibited contact with anyone with a criminal record, not excepting B.  The Board recorded its understanding that Mr McQueen would now accept such a condition and said, “Kindly advise, by close of business on 10 November 2017, whether this understanding is correct to allow a final decision as to the cancellation of the suspension of your client’s parole to be made”. 
  3. [48]
    Mr McQueen’s lawyers wrote to the Board on 9 November 2017, accepting this condition, “In the interest of having this matter resolved” – p 68.  The Board gave notice on 13 November 2017 that it had “decided not to vary its decision of 24 October 2017 to lift the suspension of the parole order granted to you … on and from 14 November 2017” – p 66.

Current Cancellation of Parole

  1. [49]
    On 21 December 2017 the Board suspended Mr McQueen’s parole and issued a warrant for his arrest – pp 57 and 58.  That action was taken pursuant to s 208B of the Corrective Services Act 2006 (CSA).
  2. [50]
    On 3 January 2018 the Parole Board issued an information notice to Mr McQueen, telling him that on 22 December 2017 it had decided to confirm the decision to indefinitely suspend his parole order saying, “The Board was in receipt of confidential information which is not in the public interest to disclose to you” and that the Board believed he had breached the condition of his parole which prohibited him having contact with somebody who had served a term of imprisonment – p 54.  The information notice invited Mr McQueen to make submissions as to why the Parole Board should change its decision.  Not surprisingly, his solicitors replied that he could not do so unless the facts of the breach the Board believed had occurred were made known to him.
  3. [51]
    This resulted in the Board revealing that it was in receipt of information that on 4 December 2017, “Mr McQueen was outside the Magistrates Court building in Brisbane on Roma Street in the company of [B]” – p 50.
  4. [52]
    Mr McQueen’s lawyers wrote to the Parole Board as follows:

“Mr McQueen has provided instructions that he accepts that he was in the company of his wife, [B], on 4 December 2017.  He makes the following submissions in support of the contention that he should not remain in custody given the reason and nature of the contact.

Contact unable to be avoided

You are aware that Mr McQueen is married to [B] and they have a young child.  They had been in a relationship for approximately 10 years, which has ended only recently.  She was, for a period of approximately 5 years, his support person whilst he was on parole.  I also assume you are also aware that [B] has relocated to Melbourne and resides there with their son.

Shortly prior to Mr McQueen’s release last year, we corresponded regarding condition (y) of our client’s parole order and, in particular, the condition which prevented contact with his wife.  It was submitted that contact was only necessary in the interests of raising their child.  That is, contact was not necessary to maintain an intimate and/or relationship that saw any form of cohabitation/continued contact.  The condition was agreed to in its current form which included the words ‘without the prior approval of any authorised corrective services officer’.

Mr McQueen put a number of measures in place in an attempt to comply with that condition and maintain his ability to see his son.  I will not go into the obvious reasons why he would want to maintain contact with his son.

[B] was also agreeable that the father of his son should have some contact with him.  Contact was made, independently of Mr McQueen, between his extended family and [B].  The arrangements included [B] flying from Melbourne to Brisbane with their son, our client’s niece collecting their son and transporting him to Mr McQueen’s residence.  This occurred on three occasions.

On each occasion the child attended Brisbane, save for the information you received that contact was made on 4 December 2017, Mr McQueen remained at his residence and [B] did not leave Brisbane airport.  That is, [B] travelled from Melbourne to Brisbane and, shortly after her arrival to Brisbane, flew directly back to Melbourne.

The occasions the child attended Brisbane were as follows:

  1. On 25 November 2017 [B] flew from Melbourne to Brisbane.  Mr McQueen’s niece collected the child and the child remained with him until 4 December 2017.  [B] returned to Melbourne on 25 November 2017, returning to Brisbane on 4 December 2017 to collect her son (discussed below).  No contact was had between [B] and Mr McQueen on 25 November 2017.
  1. On 12 December 2017 [B] again flew from Melbourne to Brisbane.  She returned to Melbourne on 12 December 2017 without leaving the Brisbane airport.  Again, Mr McQueen’s niece collected the child and the child remained with him until he was returned to custody on 21 December 2017.  The child was with him when officers attended to execute the warrant.

4 December 2017 Contact

On each occasion the child travelled to Brisbane, it had always been arranged that Mr McQueen’s niece would collect the child from him and return him to [B] either at a convenient location or the Brisbane airport.

On 4 December 2017, it was arranged that Mr McQueen would meet his niece in the Brisbane city to give the child to her so that she could give him to [B] at another location in the city.  It was not arranged for [B] and Mr McQueen to meet.  In fact, if such meeting was prearranged, one would have thought a more discreet area than that of the city would have been organised.

Mr McQueen, on this occasion, was to meet his niece so that he could pass on his child.  When he parked his car, in a paid parking area, he contacted his niece to be informed by her that she had forgot and could not make it.  Mr McQueen was aware that [B] had a flight to return to Melbourne with their child.  He could not quickly arrange someone to pass the child on and, obviously, could not leave him unattended.

Accordingly, contact was made with [B].  They met briefly so that the child could be returned to her and they parted company.

I recall the day of 4 December 2017.  I had contact with Mr McQueen.  At about lunch time, shortly after midday, I attended a food court on Ann Street with a number of colleagues.  I was walking on the left-hand side of the road towards the city when a car beeped at me.  I looked to my right and saw Mr McQueen driving his vehicle.  He waved at me and I was able to see that he was the sole occupant of the vehicle.  I am instructed that your information will be that the contact with B occurred prior to lunch time, supporting the contentions.

In addition to the above submissions, we ask that you also take into account:

  1. Mr McQueen has secured full-time employment with Corio Homes working as a builder’s labourer between the hours of 6am and 5pm, Monday to Friday (please see attached correspondence).  This will provide him with daily structure and routine.  We understand that his parole officer was to approve this following some enquires made of the owner.
  1. Mr McQueen maintains the support of his brother and sister-in-law and has suitable accommodation with them.” – p 43ff.
  1. [53]
    On 1 February 2018 Mr McQueen’s lawyers gave supporting evidence of the matters asserted above to the Parole Board in order to satisfy a request from the Parole Board – p 33. 
  2. [54]
    A parole report was prepared and dated 21 December 2017 – p 61.  It recites Mr McQueen’s criminal history.  Then it makes reference to his parole having been suspended five times “for breaching his parole condition with respect to having contact with those who have served a period of imprisonment or known criminal associates”.  It goes on to say that:

“There are vast intelligence holdings relating to Mr McQueen and his associates which suggest high levels of criminality.  Mr McQueen possesses extensive criminal relationships in the community and within a correctional setting which has presented as a barrier to him completing an extended period of supervision in the community” – p 62.

  1. [55]
    It is reported that on 10 November 2017, before his release on parole, Mr McQueen was instructed that should B make contact with him, he was to inform her of his parole conditions, cease the contact, and report it to his supervising officer.  On 21 November 2017 Mr McQueen asked to send flowers to B and was instructed that he would have to await approval before doing so.  On 22 November 2017 Mr McQueen reported to his supervising officer that he had had incidental contact with a man who he recognised from jail.  He informed the man of his parole conditions and continued walking.  He also reported on that date that B had telephoned him and given him information about their son, and that later she had sent him a text message.  He was instructed not to answer incoming calls from B.
  2. [56]
    On 23 November 2017 Mr McQueen reported that B had telephoned again and his brother had answered and explained the parole conditions to B.  Mr McQueen’s brother had made an arrangement with B, who now lived in Melbourne, to bring Mr McQueen’s son to Queensland, with Mr McQueen’s brother acting to facilitate all arrangements so that Mr McQueen would not be required to contact B.  This disclosure to his supervising officer resulted in a home visit for Mr McQueen on 23 November 2017 at which:

“Mr McQueen was instructed not to have further direct or indirect contact with B and with the assistance of his lawyer, formulate a written submission outlining his request for contact with B for the purposes of coparenting their son.  It was clearly explained to Mr McQueen no formal decision approving or disapproving contact with B for the purposes of arranging contact with his son would be progressed until a written submission from Mr McQueen’s lawyer was received.  During the home visit Mr McQueen consented to an inspection of his mobile phone to which nil further contact with B was witnessed.  Mr McQueen indicated he had attended a Telstra store and purchased a new SIM Card with a new phone number to prevent further contact.  Mr McQueen’s old SIM card was witnessed to be deactivated when inserted into his mobile phone.” – p 63.

  1. [57]
    The report continues that on 6 December 2017 Mr McQueen’s lawyers made a submission requesting approval for contact with B so that he could have contact with his son and on issues of co-parenting so as to allow Mr McQueen to maintain a relationship with his son.  On 8 December 2017 Mr McQueen told his supervising officer that he had had no contact with B since 22 November 2017.  On 12 December 2017, during a home visit, he likewise denied any contact with B.
  2. [58]
    Further, the report records that on 15 December 2017 Mr McQueen advised his supervising officer that he had been offered a job working as a builder’s labourer and had been asked to start on 18 December 2017.  He was told that he could not do so because the Department would have to assess the employment.
  3. [59]
    The parole report continued:

“A review of Mr McQueen’s previous responses to supervision and criminal history suggests he possesses a high level of criminality and notoriety which appears to be the primary factor in his numerous breaches of Parole and subsequent returning to custody.  Similar to his previous episodes of community supervision, Mr McQueen has incurred a breach of his Order … Despite his previous honesty, on this occasion, Mr McQueen appears to have been dishonest about his associations with information received indicating a disregard for Order conditions, intentional deception and failure to comply with instructions which were repeatedly provided to him.  …  Without Mr McQueen responding truthfully about his associations and movements, the Agency’s ability to manage him in the community is significantly diminished.” – p 64.

  1. [60]
    Further, the parole report records that:

“Furthermore, on 14 December 2017 advice was received from the Specialised Clinical Services Unit with respect to Mr McQueen seeking contact with [B] in order to have access to his son.  It was advised Mr McQueen’s son is a recognised protective factor and his attempts to organise contact through [B] are not assessed as escalating his risk.  It was advised however, should the relationship with [B] change and there is the possibility of re-establishing a romantic partnership, this could present as problematic.” – p 64.

  1. [61]
    On 12 February 2018 Mr McQueen was sent an information notice saying that on 1 February 2018 the Board had decided not to vary its decision to indefinitely suspend his parole.  Further, that on 6 February 2018 pursuant to s 205(2)(i) of the CSA, the Board had decided to cancel his parole.  It invited him to show cause why it should not change its decision – pp 25-27.  This information notice raised the following points:
  1. (a)
    On 1 December 2017 Mr McQueen acknowledged he would not arrange contact with B unless he had approval from probation and parole.
  1. (b)
    On 4 December 2017 Mr McQueen was directed to telephone his probation and parole officer.  That officer questioned him about his movements in the CBD that day and he stated that he attended his solicitor’s office.  He did not disclose contact with B.
  1. (c)
    On 8 December 2017 during the home visit with his Corrective Services supervisor, Mr McQueen reported that he was coping well without having contact with B and his son.  He did not disclose contact with B and denied contact with B.
  1. (d)
    The Board had information from Mr McQueen’s electronic monitoring that at 11.29 am on 4 December 2017 he arrived at a Roma Street car park.  He was in the vicinity of his lawyer’s office on George Street and then walked through King Edward Park, near to the Brisbane Private Hospital and the old Windmill Observatory, before walking back to the vicinity of the Supreme Court and then the Roma Street Courts.
  1. (e)
    The Board had CCTV footage of Mr McQueen and B, and a child on 4 December 2017 outside the Magistrates Court on Roma Street.
  1. [62]
    The information notice concluded that the Board reasonably believed that Mr McQueen had failed to comply with condition (y) of his parole order: that he have no contact, direct or indirect, with any person known to him who had served a term of imprisonment without the prior approval of an authorised Corrective Services Officer.
  2. [63]
    By letter dated 15 March 2018 (pp 7-8) Mr McQueen’s lawyers reiterated that they relied upon the factual circumstances of the contact with Mr McQueen’s wife which they had previously given the Board.  That is, it was submitted that the Board ought to have had, and ought to have, regard to the “reason [for] and the nature of the contact.”[3]
  3. [64]
    The 15 March 2018 letter submitted (correctly in my view) that s 205(2) of the CSA gave the Board a discretion as to whether or not to cancel a parole order.  The letter made the submission that in the exercise of its discretion the Board should have regard to the “purposes of the condition contravened”.  It says that Mr McQueen’s contact with B on 4 December 2017 “did not involve the type of risk that the prohibition on contact with [B] was intended to address”.  That was a reference to the Board’s statements extracted at [43] above, that contact with B might lessen Mr McQueen’s support from his family and would increase the risk of him engaging “maladaptive behaviour”.  The 15 March 2018 letter went to say:

“It is accepted that our client did not inform his parole officer of the contact.  However, it is submitted that our client’s time in custody since the contact was detected has provided a clear and strong reminder to him of the need to properly make the required disclosure.”

  1. [65]
    This letter concluded as follows:

“We also refer to our client’s previous request for the order to be amended to allow limited contact between our client and [B] for the limited purpose of allowing hand overs of the child.  Clearly, our client’s maintenance of his relationship with the child is both in the interests of the child and the rehabilitation of our client.  It is respectfully submitted that the protection of the community would be better served by allowing workable arrangements for our client to have contact with the child without prejudice to the Board’s concern to prevent our client having the type of contact with [B] that might lead to maladaptive behaviour by our client.” – p 8.

  1. [66]
    Mr McQueen wrote a letter to the Board dated 5 February 2018 presumably intending that it reach them in time for the 6 February 2018 meeting.  It was not received by the Board until 12 February 2018.[4]  However, it is recited that the Board had the letter by the time of its next meeting and considered it there.[5]  The letter is an attempt by Mr McQueen to have the Board understand how important his relationship with B and his son is to him.  In that context he explains to the Board that “In 2014 [B] and I made plans with Pastor [name] to marry.  Also [B] and I were trying for more children”.  He explains that at that time he and B were living in “a brick three bedroom house with our own furniture”.  He explains that they had obtained a bank loan to purchase a family car and that they had set up a lawn mowing business.  He points out that the duration of his relationship with B was 10 years and that “for the last five years she has been my nominated sponsor” on parole.
  2. [67]
    Referring to the Board’s decision no longer to except B from condition (y), he says that, “For reasons unknown, the Board made a decision that I could no longer be part of my family.  This was extremely stressing and frustrating.  I wasn’t even allowed to converse with my partner to explain the Board’s order, or plan how we were going to live separately and what we were going to do with our house, cars, furniture and … share custody of our son” – pp 17-18.  He says:

“With respect, given the length of our relationship and our son the Board could have put in place conditions to assist us to maintain our relationship, as a family, while separated to the extent we weren’t even allowed to speak to each other.  If a mediator, social worker or even a counsellor was helping us with the separation, then the brief contact we had on 4 December 2017, so we could both maintain a relationship with our son would have been avoided.

On the 25 November 2017 and the 12 December 2017, my partner flew into Brisbane and without leaving the airport she then flew back to Victoria, strictly abiding by the Board’s decision not to have contact with me.” – p 18.

  1. [68]
    On 3 April 2018 the Parole Board wrote a four page letter to Mr McQueen– pp 1-4.  It recited the cancellation of his parole on 6 February 2018; the sending of the information notice and the invitation to make written submissions showing cause.  It said that that information notice had outlined “The relevant information that the Board relied upon in coming to its decision to cancel your parole order due to your failure to comply with the conditions of the parole order, namely condition (y), concerning limits on contact with ex- prisoners.”
  2. [69]
    The letter of 3 April 2018 informs Mr McQueen that the Board met on 27 March 2018.  In a formal way it recites what information the Board had at its meeting.  The Board states that it has considered all previous material before it and also its legislative obligations including consideration of the Ministerial Guidelines.  It summarises Mr McQueen’s letter of 5 February 2018 as follows:

“In your personal submission received 12 February 2018, you:

  • Outline your relationship with [B] also called [another name] and your plans to marry.  You state that it is for ‘reasons unknown that the Board made a decision that I could NO longer be part of my family’;
  • Admit that you had contact with [B] on 4 December 2017; you describe this contact as ‘the briefest of contact’.  You further state that while you did not ‘understand or agree with, [the Board’s] decision, we both respected it and done our utmost to abide it’;
  • You also expressed your concern at what you perceived to be your inability to contact [B];
  • You admit contact on 4 December 2017 and you mention the dates of 25 November and 12 December 2017 and advise that [B] did not leave Brisbane airport on these dates” – p 2.
  1. [70]
    From the summary it seems that the Board did not understand the main point of Mr McQueen’s letter, ie., that he was struggling to have a relationship with his child in circumstances where he was not allowed to contact B.  This central difficulty is simply not mentioned in the Board’s summary of Mr McQueen’s letter.  There are other difficulties with the summary.  It makes it seem as though Mr McQueen has current plans to marry B, when it is clear from the letter that he speaks of plans to marry as at 2014, in the context of explaining to the Board that the relationship with B was a serious one.  Further, the use of language in the third dot point is odd: Mr McQueen did not perceive an inability to contact B; there was in fact a prohibition on him doing so.  The last dot point seems to miss the point that Mr McQueen, despite the difficulties posed by condition (y), had been able to organise access to his son without breaching the condition.[6]  This conclusion is reinforced by a later part of the letter where the Board says, “While the Board thanks you for information regarding the dates of 25 November and 12 December 2017, as previously advised, the date in issue is the 4 December 2017 …”.  This was important context to the breach which did occur on 4 December 2017, and it appears the Board either did not understand that, or chose to disregard it.
  2. [71]
    The Board’s letter of 3 April 2018 continues to the effect that the Board notes Mr McQueen’s admission of contact on 4 December 2017.  The Board makes it clear that it has CCTV footage of his contact.  It notes a submission on Mr McQueen’s behalf that it was “the briefest of contact”.  The Board does not contradict this but says, “The Board is aware that condition (y) contains no time limit on prohibited contact …”  This comment by the Board does support the idea that it has not taken into account the circumstances of the contact in the exercise of its discretion.
  3. [72]
    The Board comments that Mr McQueen did not seek or receive approval to contact B prior to the contact on 4 December 2017.  This is a further indication that the Board has given no real consideration to how the contact came about.  It came about because, at the last minute, an access arrangement to ensure the safe return of Mr McQueen’s son to B broke down.  There was no opportunity for him to seek permission to have contact with B.  In any case, he had orally asked, as a general matter, that he be allowed to have a contact with B to facilitate access arrangements and been told that the Board would only consider a written request from his lawyers in that regard.
  4. [73]
    The Board’s letter of 3 April 2018 made reference to Mr McQueen’s dishonesty on 8 December 2017 in denying contact with B, and not revealing the contact to the parole officer to whom he spoke on 4 December 2017.[7]
  5. [74]
    The Board’s letter of 3 April includes the following passage:

The Board thanks you legal representative for their submissions regarding the ways in which the Board supposedly fell into error in making the decision to cancel your Parole Order on 6 February 2018.  Your legal representative’s submissions intimated that at its meeting of 27 March 2018 the Board needed to consider the question of whether the Board’s decision to cancel your Parole order was correctly made or not.  This is not the relevant issue for the Board and accordingly it viewed your legal representative’s submissions in the same manner that it would have done had your legal representatives referred to the relevant issue.  This course of action was taken to ensure that you did not suffer any disadvantage or unnecessary further delay in receiving a final decision.  The Board is aware that a final decision on this matter had been delayed to accommodate your counsel’s convenience and did not wish to see you experience any further delay in the resolution of this issue.

On the 27 March 2018 the Board focused on the question of whether or not at this subsequent date, that being 27 March 2018, there was any reason/s that it should change its original decision.  As you might be aware, review of a decision of the Board is a matter for the Courts.  You have a right to request the Supreme Court to review any of the Board’s decisions in this matter.  The Board welcomes prisoners to exercise their legal rights.” – p 3 (my underlining).

  1. [75]
    The Board’s letter of 3 April continues:

“The Board noted s 200(4) of Corrective Services Act provides that the prisoner must comply with the conditions in the parole order.  Your legal representative’s letter of 15 March 2018 states that the contact you had with [B] was a contravention of the order, and then continued to discuss the ‘type of contact’.

Condition (y) contains no descriptor and/or qualifiers as to the type of contact except for the words direct or indirect.  In making a decision about parole conditions the Board must always focus on community safety as its primary consideration.  The Board draws to your attention its broad discretion when assessing a prisoner’s release to the community and specifically when having regard to the level of risk you may pose to the community and your suitability for re-release to parole supervision.

Again the Board thanks your legal representative for their submission regarding what they perceive to be the meaning of the condition however it is not a meaning that can be accepted in these circumstances.

The Board is pleased to hear via your legal representative that it is accepted that you did not inform your parole officer of the contact with [B] on 4 December 2017, but that subsequently your time in custody had provided a ‘clear and strong reminder to him of the need to promptly make the required disclosures’.  The Board reminds you that given the terms [of the relevant condition] the ‘required disclosures’ meant that you needed to seek the approval of an Authorised Corrective Services Officer prior to any contact with a person who is in the category mentioned in [the condition in question], including [B].” – p 4.

  1. [76]
    The Board concludes its letter saying:

“Notwithstanding your submissions and those made on your behalf, the totality of the evidence before the Board on 27 March 2018 required the Board to come to the conclusion that there was no reason at this subsequent date to change the decision made on 6 February 2018.  Accordingly the Board decided to not vary its decision of 6 February 2018 to cancel the parole order that commenced on 1 August 2016.

The Board advises that you may reapply for parole in the usual manner.” – p 4.

Application for Order of Statutory Review

  1. [77]
    In the application before me, the applicant attacks the last of the current series of decisions concerning him, ie., the Board’s decision made on 27 March 2018, and explained in the letter of 3 April 2018, not to set aside its earlier decision of 6 February 2018 cancelling parole.  He relies on two grounds.  First, that the Board failed to take into account relevant circumstances in exercising its discretion.  The circumstances are said to include the objects of the CSA; the purposes of the condition in question; the relative lack of seriousness of the breach of condition (y), and the applicant’s personal situation, including his employment status.[8]  The second ground was that the Board applied an inflexible policy or rule rather than give proper, genuine and realistic consideration to the submissions made by the applicant to it.

 

Legislative Framework

  1. [78]
    The suspension of Mr McQueen’s parole on 21 December 2017 was under s 208B(2)(a) of the CSA.  The Board’s confirmation of that decision on 1 February 2018 was pursuant to s 208.  The decision to cancel parole on 6 February 2018 was made pursuant to s 205(2)(a) of the CSA which provides:

205 Amendment, suspension or cancellation

  1. (2)
    The parole board may, by written order –
  1. (a)
    amend, suspend or cancel a parole order if the Board reasonably believes the prisoner subject to the parole order 
  1. (i)
    has failed to comply with the parole order; or

  1. (3)
    If practicable, the parole board must, before amending a prisoner’s parole order give the prisoner an information notice and a reasonable opportunity to be heard on the proposed amendment.
  1. (4)
    The parole board is not required to give the prisoner an information notice or a reasonable opportunity to be heard if the parole board suspends or cancels the prisoner’s parole order.

…”

  1. [79]
    It is clear from the contrast between s 205(3) and (4) that there is no need to hear a prisoner before suspending or cancelling parole.  However, s 208 applies after a decision to suspend or cancel is made.  It provides:

208 Reconsidering decision to suspend or cancel parole order

  1. (1)
    If the parole board makes a written order suspending or cancelling a prisoner’s parole order, the board must give the prisoner an information notice on the prisoner’s return to prison.
  1. (2)
    The parole board must consider all properly made submissions and inform the prisoner, by written notice, whether the board has changed its decision and, if so, how.
  1. (3)
    If the board changes its decision, the changed decision has effect.
  1. (4)
    In this section—

information notice means a notice—

  1. (a)
    stating the parole board has decided to suspend or cancel the parole order; and
  1. (b)
    advising the reason for the decision; and
  1. (c)
    inviting the prisoner to show cause, by written submissions given to the board within 21 days after the notice is given, why the board should change its decision.

properly made submissions means written submissions given by or for the prisoner to the parole board within 21 days after the information notice inviting the prisoner to make the submissions is given.”

  1. [80]
    It will be noted that by s 208(4)(b), the information notice is required to advise the reasons for the decision to cancel parole.  Section 27B of the Acts Interpretation Act (AIA) provides that:

27B Content of statement of reasons for decision

If an Act requires a tribunal, authority, body or person making a decision to give written reasons for the decision (whether the expression ‘reasons’, ‘grounds’ or another expression is used), the instrument giving the reasons must also –

  1. (a)
    set out the findings on material questions of fact; and
  1. (b)
    refer to the evidence or other material on which those findings were based.”
  1. [81]
    In my view s 208(1) of the CSA and s 27B of the AIA means that the information notice must give full reasons for the peremptory decision under s 205(2)(a).  Thus the notice dated 12 February 2018, [61] above, was to contain all the Board’s reasons for its cancellation of parole.
  2. [82]
    Section 208(2) then requires the Parole Board to consider all properly made submissions and give written notice to the prisoner as to whether or not it has changed its decision.
  3. [83]
    In this case, having purportedly performed the s 208(2) exercise, the Board gave another set of reasons in its letter of 3 April 2018.  This letter contains a longer set of reasons than the information notice of 12 February 2018 and is in its form and structure more like a set of formal reasons in that it recites the material to which the Board had regard etc.
  4. [84]
    The Board submitted that because s 208(2) of the CSA did not require it to give reasons, the applicant was wrong to ask the Court to treat the letter of 3 April 2018 as reasons for its decision of that date.  It was said that the applicant ought to have asked for reasons in a formal manner under the Judicial Review Act.  The point of this submission was, it was said, that had formal reasons been requested, there would have been more emphasis in them on the fact that Mr McQueen had been dishonest with his supervising parole officer on 4 December 2017, when he did not disclose having met B, and then again on 8 and 12 December 2017 when Mr McQueen denied any contact with B.
  5. [85]
    The concern about Mr McQueen’s dishonesty is express both in the information notice and in the letter of 3 April 2018.  It is addressed in the submissions made by Mr McQueen’s lawyers dated 15 March 2018.  It is not the case that the Board contends some material part of the reasoning was not included in either the information notice or the letter of 3 April 2018; it just apparently contends that different emphasis would have been placed upon it had reasons been requested.
  6. [86]
    In my view, the letter of 3 April 2018 should be regarded as reasons for the decision of 27 March 2018.  The Board was not under a statutory obligation to provide reasons but it did.  The reasons are in fact more formal than the full reasons which were required in the information notice.  They are also more detailed than the full reasons which were required in the information notice.  No doubt the consideration on 27 March 2018 was a slightly different consideration from the Board’s consideration on 6 February 2018.  Nonetheless, the two exercises which the Board performed were closely related.  I reject the Board’s submission that I ought not act on the reasons given in the letter dated 3 April 2018.[9]

Discretion

  1. [87]
    The decision whether to suspend or cancel a parole order pursuant to s 205(2)(a) of the CSA is clearly discretionary.  It is made without hearing the prisoner, but then the prisoner is given an opportunity to be heard.  In my opinion it follows that when considering the submissions given to it by the prisoner pursuant to s 208(2), the Parole Board is obliged to revisit its discretionary decision.  In this case, it was obliged to consider whether or not it should exercise its discretion to change the decision to cancel Mr McQueen’s parole because he had failed to comply with a parole order.  It seems to me that the Board misunderstood this as a basis for its considerations – [74] above.  This is an error of law.

Failure to take into account relevant considerations

  1. [88]
    The applicant submitted that the discretionary considerations pursuant to s 208(2) in this case would take into account the purposes of the Corrective Services Act at s 3, which include community safety and crime prevention through the humane containment, supervision and rehabilitation of offenders, and also include recognition that an offender’s “basic human entitlements” other than those which are necessarily diminished because of imprisonment, should be safeguarded.  The applicant further submitted that the discretionary considerations in this case, resting as it did on the fact that Mr McQueen had failed to comply with a condition of his parole order, would include the fact that a parole order may only contain a condition such as condition (y) if the Board reasonably considered such a condition necessary either to ensure the prisoner’s good conduct or stop the prisoner committing an offence – s 200(3) of the CSA.  These are broad considerations, but I accept the applicant’s submissions that they were relevant to the exercise to be performed under both ss 205(2) and 208(2) in this case.
  2. [89]
    I also accept that the nature of the breach of condition, including its seriousness or lack of seriousness was a relevant consideration for the Board exercising its discretion pursuant to both ss 205(2) and 208(2).  I would have thought this was obvious as a matter of commonsense or logic, but if confirmation be needed, it is found in paragraph 6.2(b) of the Ministerial Guidelines.  The contact here was very brief; the Parole Board could be certain of this because it had CCTV footage of it.  The contact was for an obvious domestic purpose involving the welfare of a child and was in circumstances where Mr McQueen had put in place other arrangements which had failed, leaving him with a limited range of choice which would ensure that his child was safe and that his wife was amenable to further cooperate in granting him access.  Again the Board had CCTV footage of the contact, so that it could see the nature of the contact.  These were obviously relevant matters for consideration by the Board.  The Board does not seem to have considered them in any real or genuine way.  I draw this conclusion because the Board does not discuss them in the information notice or the letter of 3 April 2018.[10]  Further, because comments by the Board in these documents give the impression either that it does not see these matters as relevant to its discretion, or does not give them real genuine consideration[11] – see [70]; [71] and [72] above.
  3. [90]
    Further, I accept that it was relevant for the Board to look at the purpose for which condition (y) had been imposed both in the exercise of its discretion under s 205(2) and s 208(2).  The condition was imposed because the Board had, and has on an ongoing basis, concerns that Mr McQueen will be in contact with criminal networks if released on parole.  That is, its concern is the safety of the community; that Mr McQueen himself not be drawn into criminal activity, or facilitate or encourage others to engage in criminal activity.  No doubt that is a proper purpose for the condition. 
  4. [91]
    However, difficulty arises because B, the mother of Mr McQueen’s child, falls into the category of persons “known to him who have served a term of imprisonment”.  Until his release upon parole in November 2017, contact with B had been a specific exception to condition (y).  Moreover, as Mr McQueen tried to point out to the Parole Board in his letter received on 12 February 2018, B had been his sponsor during his previous grants of parole.  The Board had permitted Mr McQueen to live in a domestic relationship with B during his previous grants of parole.  Mr McQueen is apparently no longer in a romantic relationship with B.  However, Mr McQueen and B remain in a relationship dictated by the fact that they have a child together.  In those circumstances they have an obvious need to be in contact to make proper arrangements for the welfare of their child, including that child having a meaningful relationship with both parents.
  5. [92]
    The only reasons the Board has given for its prohibiting contact between Mr McQueen and B is the rather poorly articulated hearsay-upon-hearsay material at [43] above.  Doing the best I can to make sense of it, the Board seems to consider that if Mr McQueen resumed a romantic relationship with B his family support might decline and he might engage in “maladaptive behaviour”, whatever that means.  Accepting that these are the purposes for the Board’s prohibiting contact with B, it was relevant for the Board to consider in its discretion under both s 205(2) and s 208(2) of the CSA that there was nothing about the contact on 4 December which was likely to weaken Mr McQueen’s ties with his family of origin, or provide any temptation or inducement for him to engage in maladaptive behaviour.  The Board had material to the effect that Mr McQueen’s desire to parent his child was a protective factor in his rehabilitation, and that contact with B for those purposes was unobjectionable – [60] above.  I cannot see that the Board has given any real and genuine consideration to these matters which are highly relevant to the exercise of its discretion.  In fact, the indications are to the contrary, see [70], [71], [72] and [74] above.  This was another error of law on the part of the Board.
  6. [93]
    I would add, with an eye to the future, that the hearsay material at [43] above looks to me like Mr McQueen, no doubt very anxious to be released upon parole, is making the best of his current circumstances.  That is, he can no longer live with B, but sees the positive side of this, ie., that he will spend more time with his brothers and sisters; he intends to live with his brother.  The material is consistent with, and should be read in the context of, what Mr McQueen says in the extract at [44] above.  There was nothing in the evidence before me that would tend to suggest that Mr McQueen’s having a relationship with B would in fact decrease the support he receives from his brothers or sisters, or lead to “maladaptive behaviour”.  After more than 20 years in jail, Mr McQueen has very few supports in the outside world; essentially only B and his son, and his siblings.  It is sensible that he make a start at life again in the company of one or both of these groups of people.  I note that the final sentence in the more up to date material – [60] above – is very equivocal.  I would hope that should the Board ever have to consider Mr McQueen’s relationship (romantic or otherwise) with B again, that it would obtain proper, reliable information and act on it using some realism and commonsense.
  7. [94]
    Lastly, as to work, the Ministerial Guidelines provide at paragraph 6.2(d) that a prisoner’s personal situation, including employment status, should be taken into account as well as the prisoner’s response to supervision up to the date of the breach.  Even before his first incarceration at about age 16, Mr McQueen had a good work record.  He has an excellent work record in prison, and he has managed to find work during the brief periods the Board has allowed him to remain in the community on parole.  He had found a job at the time the Board suspended his parole.  That is, he was apparently making positive efforts to reintegrate into the community.  This was a relevant consideration for the Board to take into account in exercising its discretion both pursuant to s 205(2) and s 208(2) of the CSA.  Not doing so was an error of law.

Application of Inflexible Policy or Rule

  1. [95]
    As noted above at [74], the Board does not seem to have properly understood that it was exercising a discretion either on the occasion of its exercising its s 205(2) power or its s 208(2) power.  It is difficult to understand from its reasons just how the Board did conceive of its task.  There are certainly indications, such as that at [71] above, that the Board was exercising an inflexible rule, but I would prefer to put my decision on the basis outlined above, that the Board did not give real and genuine consideration to relevant considerations in Mr McQueen’s favour.

Form of Relief

  1. [96]
    Because the Board has granted parole to Mr McQueen while this decision has been reserved, it is more appropriate to make a declaration than any other order.  I declare that the decision of the Parole Board made on 27 March 2018 to confirm its earlier decision to cancel Mr McQueen’s parole pursuant to s 208(2) of the Corrective Services Act was affected by error of law and ought to be regarded as invalid.

The Parole Board’s Attitude to Mr McQueen

  1. [97]
    Relatively little is known about the decisions of the Parole Board before 2015 because they were not subject to challenge in the Court.  What does emerge from the history is that on five occasions between 10 November 2015 and 3 April 2018 the Board has cancelled Mr McQueen’s parole by giving decisions which were either set aside by the Court or admitted, by the Parole Board’s own counsel, to have been unsustainable at law.[12]  The effect of this is that between the dates 10 November 2015 and 1 November 2018,[13] Mr McQueen has spent over 32 months in custody pursuant to these decisions.[14]
  2. [98]
    There are indications in the material before me – see [26], [28], [54] and [59] above – that the Board has information to the effect that Mr McQueen is some sort of a major criminal figure.  No detail is ever given as to this “intelligence”.  It is evident from the material that whenever he is released on parole Mr McQueen is subject to very strict supervision, including very regular testing for illicit drugs – [28] above.  Despite this, the Parole Board has never, from March 2014 onwards, detected any substantial breach of numerous strict parole conditions.  The Board has never once detected any criminal offending. 
  3. [99]
    There are references in Mr McQueen’s material to his having taken out a bank loan, paid rental bonds, obtained employment, et cetera, at various times while released on parole.  At one stage he set up home with B and they had a child.  Every time parole has been cancelled by the Board, there will no doubt have been financial and emotional repercussions resulting from the destruction of these efforts on the part of Mr McQueen to establish a life for himself after spending over 20 years in jail.  I note that Mr McQueen was last arrested, pursuant to the Parole Board’s warrant, at a time when he was in the company of his young son, see [52] above.
  4. [100]
    At times the correspondence from the Parole Board has contained point-taking and sarcastic remarks.[15]  In addition, at times the Board, through its correspondence, appears almost wilfully not to understand the real import of what it is being told – for example, see [45] and [47] above.
  5. [101]
    After the Board’s peremptory cancellation of Mr McQueen’s parole and the issue of the information notice, Mr McQueen’s lawyers requested a short extension of time to provide show cause submissions.  The letter seeking this explains that counsel briefed in the matter had a Court commitment which would prevent him attending to the matter immediately – p 9.  The letter of 3 April 2018, which is written to Mr McQueen, says this about that matter:

“On 5 March 2018 your solicitors wrote to the Board requesting an extension of time to show cause until 16 March 2018 due to counsel briefed having ‘a court commitment’ and apparently being unable to provide a written advice to your solicitors during this same period that they were in court. 

Despite the unusual nature of this request, given that there are a number of counsel available to accept briefs in the areas of law which pertain to this matter and notwithstanding the time delay granting such a request would cause in finalising your matter, the Board granted this request in an effort to provide you with an unfettered opportunity to show cause.  Ultimately your legal representative’s submission was received on 15 March 2018.”

  1. [102]
    In a matter with a history such as this matter has, it is not at all surprising that Mr McQueen’s solicitors wished counsel who was already familiar with the matter to advise them.  Apart from familiarity with the matter, there are questions of costs to consider.  In those circumstances, the request from Mr McQueen’s solicitors was perfectly understandable.  No doubt it was proper to record the receipt of the lawyers’ submissions in the letter of 3 April 2018, but I cannot see any legitimate warrant for the others comments made in the Board’s letter.
  2. [103]
    Then there are the paragraphs of the 3 April 2018 letter which are set out at [74] above.  I have underlined parts of those paragraphs.  There is no place for sarcasm in this type of letter.  In fact, the legal views which the Parole Board sees fit to mock are, in my view, correct and reasons why the decision it made on 27 March 2018 is invalid.  There was no legitimate reason for the Board to return to the issue of the extension of time granted to Mr McQueen’s solicitors to show cause.  To do so in the context that the Board was giving Mr McQueen’s solicitor’s submissions a beneficial interpretation in order that Mr McQueen “did not suffer any disadvantage or unnecessary further delay in receiving a final decision” has a very unpleasant flavour in circumstances where Mr McQueen has spent 32 months in jail since November 2015 as a result of decisions of the Parole Board which have either been set aside, or it acknowledges were made erroneously. 
  3. [104]
    In my view, the Parole Board should review its treatment of, and attitude towards, Mr McQueen at the highest level.  I direct that a copy of these reasons be provided to the President of the Board and each Deputy-President.

Footnotes

[1]  p 462.

[2]  Mr McQueen’s parole conditions have always been to the effect that he cannot enter the Ipswich City Council area.  It is apparently the case that a lot of his family live in and around this area.  Although Mr McQueen and his lawyers have asked for reasons for the decision to prevent him entering the Ipswich City Council area, the Parole Board has always refused to provide reasons, on the basis, for example, that they have been requested well outside the time allowed by the Judicial Review Act.  Nonetheless, the matter is one which has figured in the correspondence between Mr McQueen and his lawyers and the Parole Board for years.

[3]  First paragraph, letter 23 January 2018, extracted at [52] above.

[4]  See the receipt stamp, the email correspondence at p 16 of the bundle and the second last dot point on p 1 of the bundle.

[5]  Second last dot point on p 1 of the exhibit bundle.

[6]  One curiosity about this case is that the Board has never regarded Mr McQueen’s relatives organising access visits as indirect contact with B.  Perhaps there was approval given during the home visit on 23 November 2017 – see [56] above.

[7]  Second last paragraph at p 2.

[8]  Paragraph 1 Further Amended Application filed with leave at the hearing.

[9] East Melbourne Group Inc v Minister for Planning & Anor [2008] VSCA 217, [228].

[10] Minister for Immigration & Multicultural Affairs v Yusuf (2001) 206 CLR 323, 346.

[11] Leggett v Queensland Parole Board [2012] QSC 121 [24] and the cases cited there.

[12]  See [37] and [39] above, together with my decision on this application.

[13]  This is the date before which Mr McQueen cannot be released pursuant to the Board’s current grant of parole.  I note there is no certainty he will be released on 1 November 2018.

[14]  10/11/15 – 1/8/16; 20/9/16 – 14/11/17; 21/12/17 – 1/11/18.

[15]  For example, the third paragraph at p 40 of the exhibit bundle, “The Board notes …” and the final paragraph of the letter at p 20 of the bundle.

Close

Editorial Notes

  • Published Case Name:

    McQueen v Parole Board Queensland

  • Shortened Case Name:

    McQueen v Parole Board Queensland

  • MNC:

    [2018] QSC 216

  • Court:

    QSC

  • Judge(s):

    Dalton J

  • Date:

    02 Oct 2018

Litigation History

Event Citation or File Date Notes
Primary Judgment [2018] QSC 216 02 Oct 2018 Application for statutory order of review allowed; declared that decision made by Parole Board on 27 March 2018 to confirm its earlier decision to cancel the applicant's parole was affected by an error of law and ought be regarded as invalid: Dalton J.

Appeal Status

No Status