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  • Unreported Judgment

Rhodes v Parole Board Queensland

 

[2018] QSC 223

 

SUPREME COURT OF QUEENSLAND

 

CITATION:

Rhodes v Parole Board Queensland [2018] QSC 223

PARTIES:

CAMERON ROBERT RHODES

(applicant)

v

PAROLE BOARD QUEENSLAND

(respondent)

FILE NO/S:

No 4613 of 2018

DIVISION:

Trial

PROCEEDING:

Application

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

12 September 2018

DELIVERED AT:

Rockhampton

HEARING DATE:

29 August 2018

JUDGE:

Crow J

ORDER:

Application dismissed with costs.

CATCHWORDS:

ADMINISTRATIVE LAW – JUDICIAL REVIEW – GROUNDS FOR REVIEW – RELEVANT CONSIDERATIONS – where the applicant’s parole application was declined – where the applicant submitted that the making of the decision was an improper exercise of the power conferred by the enactment – where the applicant argued that the Parole Board had failed to take into account a relevant consideration in exercise of the power – whether the Parole Board failed to take into account a relevant consideration

Corrective Services Act 2006 (Qld) s 3, s 193, s 230, s 242E, s 270

Judicial Review Act 1991 (Qld) s 20

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

Queensland Parole Board v Moore [2012] 2 Qd R 294, considered

COUNSEL:

The applicant appeared on his own behalf 

B I McMillan for the respondent

SOLICITORS:

Crown Law for the respondent

Background

  1. [1]
    The applicant Mr Rhodes is currently 31 years of age having been born on 5 August 1987. Mr Rhodes has an eight page criminal history, commencing his offending activity at age 16 and has a significantly prejudicial personal history.
  2. [2]
    Mr Rhodes has been incarcerated five times, the most recent was on 12 December 2014. On this occassion Mr Rhodes was sentenced to 5 years imprisonment for entering a dwelling and committing an indictable offence.
  3. [3]
    Almost all of Mr Rhodes’ offending is related to alcohol abuse. In the past, Mr Rhodes has been diagnosed as a histrionic alcoholic, consuming at least a carton of beer, or 1.4L of spirits per day.
  4. [4]
    Prior to his most recent incarceration, Mr Rhodes had completed a Getting Smart Course[1] and a Making Choices Course[2] in order to assist with his alcohol problem. The sentence imposed on 12 December 2014 means that Mr Rhodes will be released unconditionally on 11 December 2019.
  5. [5]
    At his sentence hearing before the District Court, it was declared that Mr Rhodes was eligible for parole on 4 January 2016. Mr Rhodes’ first application for parole[3] was declined on 6 January 2016 because Mr Rhodes had not completed any further courses and had ten adverse incidents.
  6. [6]
    On 8 October 2017, Mr Rhodes again applied for parole. In that application, Mr Rhodes declared that he had breaches whilst in custody. This included a breach for fighting in October 2015 at the Wolston Correctional Centre and a further breach for fighting in February 2016 at the Maryborough Correctional Centre. With respect to the program which had been recommended to Mr Rhodes, being the Pathways Program, Mr Rhodes said in his application of 8October 2017:

“Course recommendation to Wolston Correctional Centre, however Wolston Correctional Centre will not accept me due to fighting etc which leaves me in a predicament, I believe to overcome this, the Board could make the course participation as a condition of my release.”

  1. [7]
    In a letter of 2 January 2018, the Parole Board indicated on a preliminary basis that it would refuse parole because of a number of outstanding issues. In accordance with the requirements of natural justice, the Parole Board set out the matters that concerned it prior to making a final decision, and asked for Mr Rhodes’ further guidance and submissions on the issues. In particular in the letter of 2 January 2018, the Parole Board pointed out the favourable factors to be taken into account. Namely that Mr Rhodes had found suitable accommodation and had family support in terms of his new partner in Gladstone and the fact that Mr Rhodes had obtained letters of support both personal and professional which is a significantly positive factor in terms of his rehabilitation.
  2. [8]
    The Board then set out the matters which concerned it, namely that Mr Rhodes had an eight page criminal history, a documented problem with alcohol and important outstanding treatment needs, namely the necessity to complete a Pathways course. The Board recorded that Mr Rhodes was offered a place in a Pathways Program on 29 March 2016, however this was declined due to “association issues”. It is important to note that Corrective Services are making a further offer for Mr Rhodes to participate in the Pathways program in the coming months.
  3. [9]
    It was also noted by the Board that previous community based supervision had been unsuccessful, that Mr Rhodes had limited recall of the relapse prevention and management program, that there was limited insight into his offending behaviour and that Mr Rhodes had problematic custodial behaviour. With respect to the custodial behaviour it was noted that Mr Rhodes had been the perpetrator in 26 adverse incidents and had 10 breaches of discipline, many of which related to violence.
  4. [10]
    The Board’s concern with respect to custodial behaviour was noted at page five of its preliminary decision:

“Given this information, the Board formed the view that you are unable to maintain acceptable behaviour in a structured environment and has no cause to be confident that you would uphold the conditions the Board is entitled to impose to ensure your good conduct and stop you committing an offence.

You are encouraged to maintain a significant period of satisfactory custodial behaviour and remain breach and incident free.”

  1. [11]
    The principle reason, as stated on page five, of the preliminary view was the outstanding treatment needs, namely the need to undertake the Pathways Program and the poor institutional behaviour. Having identified its concerns, Mr Rhodes did reply on 25 January 2018. With respect to the outstanding treatment needs, Mr Rhodes said in his letter:

“Whilst I may be offered a place on the next Pathways program, my personal situation has not changed. I will still have issues with other people on the program and I always will. If the Board continues to persist with this requirement it means it is impossible for me to ever be granted parole. I am willing to address this issue within the community which seems a more sensible option.”

  1. [12]
    Mr Rhodes then explained that he was nervous when describing his relapse prevention and management plan. He also said that his custodial behaviour had been impacted because he was targeted whilst in prison. Mr Rhodes said that he has now taken steps to disassociate himself from the gang and intends “to maintain that position as that is the exact reason that I have been targeted in the past”.
  2. [13]
    On 21 February 2018 the Board, after further considering the information provided by Mr Rhodes, affirmed its decision not to grant Mr Rhodes parole and again specifically set out what was required of Mr Rhodes, namely:
    1. (a)
      To complete the recommended program, being the Pathways program;
    2. (b)
      To develop and internalise Mr Rhodes’ relapse prevention plan;
    3. (c)
      To improve your custodial behaviour and remain breach and incident free.
  3. [14]
    In its letter of 21 February 2018, the board consented to Mr Rhodes lodging a new application with the board within 6 months of the decision. That is, a new application may be filed on or after 21 August 2018.

Judicial Review

  1. [15]
    In his application filed 1 May 2018, Mr Rhodes relied upon s 20(2)(a) of the Judicial Review Act 1991 (Qld) alleging that he had suffered from a denial of natural justice and procedural fairness. Given the board had specifically identified the issues concerning it and called for Mr Rhodes to provide further evidence and submissions, that ground cannot be sustained. Indeed, Mr Rhodes did not argue that ground but rather argued, pursuant to s 20(2)(e) that the making of the decision was an improper exercise of the power conferred by the enactment. Mr Rhodes particularised this by reference to s 20(3)(b) of the Judicial Review Act 1991 (Qld), arguing that the Parole Board had failed to take into account a relevant consideration in exercise of the power. In his written application, the applicant relied upon Queensland Parole Board v Moore[4] and Johnston v Central and Northern Queensland Regional Parole Board.[5] Mr Rhodes set out his argument as follows:[6]

“The Applicant submits that by not considering the risk to the community if he is released at his fulltime date without any supervision the Respondent has breached clause 1.3 of the Ministerial Guidelines.”

  1. [16]
    Section 270 of the Corrective Services Act 2006 (Qld) sets out the function of the Parole Board to decide applications for parole. Under s 230 the Board conducts meetings as it sees fit. Pursuant to s 193, the Board is has the power to make decisions for parole. Pursuant to s 242E, guidelines may be issued to help the Board perform its statutory function. The statutory function must be formed in accordance with the purposes of the Act set out in s 3. The ministerial guidelines to the Parole Board of Queensland dated 3 July 2017 with respect to clause 1.3 are as follows:

“As noted by Mr Walter Sofronoff QC in the Queensland Parole System Review ‘the only purpose of parole is to reintegrate a prisoner into the community before the end of a prison sentence to decrease the chance that the prisoner will ever reoffend. The only rationale is to keep the community safe from crime.’ With due regard to this, Parole Board Queensland 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 under supervision prior to the fulltime completion of their prison sentence.”

  1. [17]
    The ministerial guideline paragraph 1.3 is derived from the Queensland Parole System Review. In the Queensland Parole Board v Moore[7] Holmes JA[8] (as her Honour then was) said:[9]

The reasons of the primary judge

The learned primary judge considered the Board’s decision and, for the reasons which follow, reached the conclusion that relevant considerations had not been taken into account:

‘There are, it seems to me, two problems with the consideration which the Board has given to this case. The first, and one which is emphasised by Mr Moore, is that the Board does not appear to have considered whether it will be possible for Mr Moore to demonstrate an improvement in his behaviour while in high security. It is clear that the Board regarded that as an important factor. It expressed its view that it still had not had sufficient opportunity to assess his progress as he had not yet had the opportunity to demonstrate his self-management skills in a less structured environment. It seems that the Board did not even address the question whether it is likely that Mr Moore still [sic] remain in high security.

There was before the Board considerable evidence to suggest that Mr Moore was not going to have the opportunity for such a demonstration. His continued record of self-harm, which was effectively forecast in the PBAR[10] report, may have meant that he would have to remain in high security custody until his release. He told the Board that Queensland Corrections had stated that he would never be transferred to an open facility.

In my judgment, it was in these circumstances incumbent upon the Board to consider whether in fact Mr Moore would ever have the opportunity which it thought he needed or assess Mr Moore on the basis that there was a considerable risk, to put it at its lowest, that the opportunity would never arise.

The Board must, in my judgment, give some consideration to the likely future course of Mr Moore’s imprisonment. Parole is for the benefit of the community, as I have already said. It is for rehabilitation. That necessarily involves some exercise of judgment about future events.

There is an associated aspect to the matter and one which is at least equally important and I think perhaps is more important. The Minister’s guideline requires the Board to consider the risks to the community if parole is granted. It is also, I think, inherent in this that the Board must consider the risk to the community if parole is granted at any time up to the full-time release date. Counsel for the Board conceded that much.

Whether there is an unacceptable risk to the community must be judged not just by the nature of the risk to the community at his release date but by reference to the risk to the community thereafter. If, to take a hypothetical case, a prisoner was assessed as no risk to the community at the time of release but was likely to become a serious risk at a future time, that would be a material consideration for the Board to take into account.

In my judgment the Board must also take into account (in circumstances where this may be the case) the possibility that the risk to the community will be greater if parole is not granted and the prisoner remains in custody until his full-time release date. The risk to the community is a factor which the Minister has said the Board must consider and I think it is wrong to consider it solely in relation to the risk as it exists as at the date of the Board’s consideration or the putative release date.

There is nothing in the Board’s reasons which indicates it has attempted to carry out any comparison of the sort which the report of Dr Kar and the PBAR suggest is necessary. It is, of course, a matter for the Board to weigh the evidence as it sees fit. But here, there was no evidence to the contrary. That does not mean that the Board was bound to accept the view that was advanced. It does, however, mean in my judgment, that the Board was obliged to consider the question by reference not only to the present time but also to the future.

The response of counsel for the Board to this was that on the evidence of Dr Kar the applicant could himself improve his position. It is true that Dr Kar did say that but he also said that the applicant would have great difficulty in doing so. The applicant has not improved his position in the intervening two years. The Board must, in my judgment, take all of that evidence into account and weigh up whether the acceptability of the risk at the future time is likely to be less than as at the present time.

When I weigh that aspect of the matter with the other aspect of the failure of the Board to consider the potential impossibility of compliance with an important requirement, I conclude that the Board has not taken into account all of the relevant factors which apply to the consideration of this case.’

(The “PBAR” was the Parole Board Assessment Report.)

Discussion

As a general proposition, it is no doubt correct that considerations of the kind involved here cannot be quarantined one from the other; but of course the question is whether the Board did in fact take both considerations into account and did make the necessary findings.

The objects of the Corrective Services Act 2006 include:

‘community safety and crime prevention through the humane contain­ment, supervision and rehabilitation of offenders.’

Considering the function of parole in that context, it cannot be accepted that the Board is not obliged, in considering risk, to look beyond the time at which it is dealing with a parole application. If community safety is to be achieved by supervision and rehabilitation, it is necessary to consider an applicant’s likely progress over the potential parole period, rather than confining considerations to the present or the immediate future. Dr Kar had advised that it would be preferable for the respondent to be gradually re-integrated back into the community; the Parole Board Assessment Report had made the point that the benefits of supervision would diminish as the length of the prospective parole period was reduced. It was accordingly, both relevant and necessary for the Board to take into account and weigh the relative risks of discharging the respondent at or towards the end of his sentence and of giving him earlier supervised release on parole. It was perfectly open to the Board to decide that the time was not yet right to undertake the latter exercise, but the respondent had squarely raised the issue in his submissions; it was relevant; and the mere allusion to Dr Kar’s report did not amount to taking it into account.

In oral submissions, counsel for the Board effectively accepted that it would be a relevant consideration that it was not possible for the respondent to move to a “less structured environment”, but contended as a matter of fact that the latter was not the case. The difficulty with that submission is that the Board made no finding in that regard. The proposition that what appeared at para 5 of the Board’s reasons constituted such a finding is, with respect, simply not tenable. I do not think the decision in McGrane was, in fact, distinguishable; there, too, the Board had failed to reach a view on the correctness of the prisoner’s proposition that it was impossible for him to achieve placement in a less structured environment. It did not indicate that it rejected the prisoner’s contention, and give reasons for doing so; it simply disregarded it. Precisely the same is true here. Again, this was a matter squarely raised by the respondent in his submissions; it was relevant; and it was not addressed by the Board.

In my view, the learned judge was, with respect, correct in regarding the identified considerations as relevant; and, on an examination of the reasons of the Board, one could not rationally conclude that they had been taken into account.”

  1. [18]
    Had the Parole Board not taken into account the risk to community if Mr Rhodes was released at his fulltime date without any supervision, then the Parole Board would have fallen into error by failing to take into account a relevant consideration identified in paragraph 1.3, the subject of both the primary judgment and the Court of Appeal’s judgment in Queensland Parole Board v Moore.[11]
  2. [19]
    The difficulty for Mr Rhodes is that page 11 of its detailed reasons, and under the heading “Ministerial Guidelines” the Parole Board stated:

“The Board also considered whether the risk [to] the community would be greater if [you did] not spend a period of time on parole under supervision prior to fulltime completion of your sentence. The Board took into account all the factors listed above, your application for parole as a whole and the materials before the Board and determined that both you and the community would benefit from you addressing the Board’s concerns listed in the reasons above before being released into the community.”

  1. [20]
    It can be seen that the Board did take into account the relevant risk identified in paragraph 1.3. When this was pointed out to Mr Rhodes in the application, Mr Rhodes responded that since the Parole Board’s decision he had been transferred to the Capricornia Correctional Facility, he had enrolled in a Pathways Program which he will undertake on 17 September 2018 and since his transfer to Capricornia Correctional Centre, his custodial behaviour had improved. It was pointed out to Mr Rhodes that these significantly positive features post-dated the Parole Board’s decision of 2 January 2018 and could not be considered in determining whether or not the Parole Board had erred in making its decision on 21 February 2018.
  2. [21]
    I conclude that the Parole Board decision of 21 February 2018 is a proper and lawful decision and I dismiss the application with costs.

 

Footnotes

[1]   March 2012.

[2]   August 2012.

[3]   The first application for parole was made on 12 October 2015.

[4]   [2012] 2 Qd R 294.

[5]   [2018] QSC 54.

[6]   See the applicant’s outline of submissions.

[7]   [2012] 2 Qd R 294.

[8]   With whom McMurdo P and Mullins J agreed.

[9]   At [10], [16]-[19].

[10]   Parole Board Assessment Report.

[11]   [2012] 2 Qd R 294.

Close

Editorial Notes

  • Published Case Name:

    Rhodes v Parole Board Queensland

  • Shortened Case Name:

    Rhodes v Parole Board Queensland

  • MNC:

    [2018] QSC 223

  • Court:

    QSC

  • Judge(s):

    Crow J

  • Date:

    12 Sep 2018

Litigation History

Event Citation or File Date Notes
Primary Judgment [2018] QSC 223 12 Sep 2018 Application for statutory order of review dismissed: Crow J.

Appeal Status

No Status