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Vaughan v Parole Board Queensland

 

[2019] QSC 10

SUPREME COURT OF QUEENSLAND

CITATION:

Vaughan v Parole Board Queensland [2019] QSC 10

PARTIES:

JASON RONALD VAUGHAN

(applicant)

v

PAROLE BOARD QUEENSLAND

(respondent)

FILE NO/S:

No 238 of 2018

DIVISION:

Trial Division

PROCEEDING:

Application

ORIGINATING COURT:

Supreme Court at Townsville

DELIVERED ON:

30 January 2019

DELIVERED AT:

Brisbane

HEARING DATE:

23 October 2018

JUDGE:

Brown J

ORDERS:

The Order of the Court is that:

  1. I declare that the decision of the Board to not lift the suspension until 26 February 2018 was effected by an error of law and ought to be regarded as invalid;
  2. The application is otherwise dismissed;
  3. Each party bear their own costs.

CATCHWORDS:

ADMINISTRATIVE LAW JUDICIAL REVIEW GROUNDS OF REVIEW ERROR OF LAW where parole suspended by Parole Board member and confirmed by Parole Board where Parole Board subsequently rescinded decisions confirming suspension where Parole Board stated it would not consider certain matters where Parole Board lifted suspension of parole and amended conditions of parole order where suspension lifted three days after decision where Parole Board did not give notice of amended conditions and medical report prior to amending conditions where Parole Board gave information notice and medical report after amendment where the applicant made submissions where Parole Board confirmed the amended conditions where the applicant applied for judicial review of the Parole Board’s decision to defer lifting suspension for three days and to amend the conditions whether the Parole Board had exercised statutory power for suspension whether the Parole Board took into account irrelevant considerations whether Parole Board failed to accord natural justice

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

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

Folling v Queensland Parole Board [2010] QSC 440, cited

McQueen v Parole Board of Queensland [2018] QSC 216, cited

Minister for Aboriginal Affairs v Peko Wallsend ltd (1986) 162 CLR 24, cited

Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355, cited

Renwick v Parole Board of Queensland [2018] QSC 169, cited

TBR v Southern Queensland Regional Parole Board [2010] QSC 204, cited

COUNSEL:

J Greggery QC for the applicant

S A McLeod QC for the respondent

SOLICITORS:

Purcell Taylor Lawyers for the applicant

Crown Solicitor for the respondent

  1. [1]
    The applicant, Mr Jason Ronald Vaughan, was released on Court ordered parole on 3 February 2017.  On 15 September 2017, a member of the Parole Board ("the Board”) suspended the parole order indefinitely, pursuant to s 208B(2)(c) of the Corrective Services Act 2006 (Qld) (“CS Act”) on the basis that Mr Vaughan was an unacceptable risk of committing an offence.  While that decision was confirmed by the Board on 19 September 2017 and 5 October 2017, those decisions were subsequently rescinded by the Board on 23 February 2018.  The Board decided to consider the matter afresh, excluding consideration of some matters relied upon by the Board member on 15 September 2017.  On 23 February 2018, the Board urgently arranged to have a video link with the applicant.  During that video link the Board went through the proposed conditions and asked the applicant whether he was willing to agree to each condition.  He agreed to each condition.  That was approximately one day before the applicant’s judicial review application in relation to the earlier decisions of 19 September and 5 October 2017 was to be heard. 
  2. [2]
    On 23 February 2018, the Board issued an information notice which informed the applicant of the decision to rescind the decisions of 19 September 2017 and 5 October 2017 to lift the indefinite suspension to which he had been subject since 15 September 2017, effective from 26 February 2018.  It further informed him that a preliminary decision of 14 September 2017 to amend the Court ordered parole order to add conditions would be made.  A copy of a report of Dr Moyle which had been obtained by the Board in January 2018 was attached to the notice.
  3. [3]
    The applicant was subsequently released on 26 February 2018. The applicant responded to the show cause notice on 16 March 2018 in relation to the amendment parole order.  On 22 March 2018 the Board decided not to vary the decision to amend the order.  The applicant seeks to have the decision to extend his suspension for three days and to impose additional conditions set aside. The respondent contends that the decisions cannot be impugned, are valid, and should not be set aside.
  4. [4]
    The matters which I must determine are:
  1. (a)
    Whether the extension of the suspension of the applicant’s parole until 26 February 2018 was not authorised by the CS Act or was an improper exercise of power;
  2. (b)
    Whether the applicant was denied natural justice insofar as the Board did not provide him with the report of Dr Moyle prior to its making the decision on 23 February 2018 and further whether the Board in considering Dr Moyle’s report took into account irrelevant considerations as a result of Dr Moyle having regard to conduct of the applicant which the Board had determined on 23 February 2018 was not in fact substantiated;
  3. (c)
    Whether in imposing conditions to amend the conditions of parole, the Board made a decision that was not authorised by the CS Act, and did not hold the requisite reasonable belief, such that the decision was contrary to law.
  1. [5]
    Prior to giving consideration to the above matters I will set out an overview of the circumstances leading to the decision of the Board to suspend the applicant’s Court ordered parole and to the present application.

The circumstances leading to the decision

  1. [6]
    At the time of the applicant’s release on Court ordered parole on 3 February 2017, his release was subject to a number of conditions, namely that he was to:
  1. (a)
    be under the supervision of Corrective Services until the end of the period of his imprisonment unless he was detained in an institution for a period fixed by a judge; 
  2. (b)
    carry out the chief executive or delegate’s lawful instructions;
  3. (c)
    give a test sample as directed by the chief executive or delegate;
  4. (d)
    report to and receive visits as directed by the chief executive or delegate;
  5. (e)
    notify the chief executive or delegate within 48 hours of any change of address or employment during the parole period; and
  6. (f)
    not commit an offence.[1]
  1. [7]
    On 10 March 2017, the Board issued an information notice of a preliminary decision on 9 March 2017 to amend the parole order by adding parole conditions, which were 11 in total, on the basis that the Board reasonably believed that the applicant posed an unacceptable risk in committing an offence.[2]
  2. [8]
    On 26 March 2017, the applicant wrote to the Board to show cause in respect of the decision of 9 March 2017, contending that the conditions would impose social isolation, result in psychological and emotional injury and retard his rehabilitation initiatives and ultimately be counterproductive.  On 27 April 2017, the Board met and determined that the show cause submission did not cause it to change its decision and ordered the amendment of the order by adding the conditions.
  3. [9]
    On 2 May 2017, the Board ordered the amendment of the parole order by providing for the added conditions that had been the subject of the information notice of 9 March 2017 and determined not to vary its decision of 27 April 2017.[3] 
  4. [10]
    Following requests for reasons, the Board issued a statement of reasons on 7 July 2017 confirming that it considered the amendments made to the parole order were necessary as it reasonably believed that the applicant posed an unacceptable risk of committing an offence. 
  5. [11]
    On 7 September 2017, the Board met and determined to rescind its decisions of 9 March 2017 and 27 April 2017.  On 14 September, the Board met again and decided to rescind its decisions of 7 September 2017, 9 March 2017 and 27 April 2017. 
  6. [12]
    Following a 14 September 2017 meeting, the Board gave the applicant an information notice of 14 September 2017, advising that it had made a preliminary decision to amend the Court ordered parole order granted which commenced on 3 February 2017 to add 16 conditions.  The information notice stated that the reason for the Board’s decision was due to his offending history, pattern of offending, the comments of the District Court judge and his withdrawal of permission for Queensland Corrective Services to contact any third parties or treating entities and that the Board had been notified that he had ceased participating with his treating psychologist.  The Board stated that in light of all that information it reasonably believed that he posed an unacceptable risk of committing an offence.  The additional conditions proposed to be added to those which had been  previously contained in the information notice of 9 March 2017 included that “the prisoner must actively participate in treatment with a psychologist to address his appending profile as directed by an authorised Corrective Services officer or the Board” and “the prisoner is to permit any medical, psychiatrist, psychologist, social worker, counsellor or other mental health professional to disclose details of attendance and compliance with treatment and provide opinions relating to level of risk of re-offending to a Corrective Services Officer if such a request is made”.  Other than those conditions, the conditions were substantially the same as those the Board had previously imposed, prior to its decision of 14 September 2017.  The decision followed a recommendation being made to the Board by Corrective Services.[4] 
  7. [13]
    On 15 September 2017, the applicant met with his parole officer, at which time the parole officer provided him with a general direction document which directed him to comply with the additional parole conditions of 14 September 2017.   The applicant refused to sign the direction on the basis that he contended that it was not lawful as it was not in accordance with the CS Act.  He then had a conversation with a female staff member of the Board because he stated that he could not be provided with a general direction imposing the conditions without compliance with s 205 of the CS Act.
  8. [14]
    At 5:40pm, a legal officer for the Board Secretariat forwarded an Advice to Parole Board Report to a member of the Board. The report alleged, inter alia, that the applicant had been verbally aggressive towards the female staff member of the Board.
  9. [15]
    The report that Corrective Services forwarded to the Board member,[5] in the Recommended Action/Strategy subsection, stated:

“…With consideration to Mr Vaughan’s offending profile, his heighten (sic) risk to the community, his resistance in allowing Probation and Parole to liaise with psychologists and his limited disclosures during reports, his risk cannot be mitigated in the community at this time.  Mr Vaughan has been allowed multiple opportunities to engage in the supervision progress at Probation and Parole which has accommodated his request to be supervised by a male officer, to voice record interviews and stay at [a hotel] Allen to attend appointments.  In light of the issue outlined, Mr Vaughan’s heighten (sic) risk to the community following today’s report cannot be managed in the community.”

  1. [16]
    The member of the Board concerned replied at 6:21pm stating that she considered, pursuant to s 208B(2)(c) of the CS Act, that the applicant was an unacceptable risk of committing an offence.  The member of the Board in an email stated that:[6]

“… This belief is based on the information before me including the summary of prisoner Vaughan’s conduct towards a staff member of the Parole Board Queensland.  A corrective services officer, who was present with Mr Vaughan when he was conversing on the telephone with a female Parole Board Queensland staff member, terminated the telephone conversation due to Mr Vaughan being ‘verbally aggressive towards her’.”

  1. [17]
    The Board member suspended the applicant’s parole indefinitely pursuant to s 208B(2)(c) of the Act.
  2. [18]
    As a result of the decision of the member of the Board, the Board issued a warrant for arrest and the applicant accordingly was returned to custody.  The Board subsequently met and confirmed the decision to suspend his parole indefinitely on 19 September 2017. 
  3. [19]
    On 3 October 2017, the applicant wrote to the Board and confirmed that he accepted and agreed to the conditions of the parole pursuant to the information notice and general direction dated 15 September 2017 and sought release.[7] 
  4. [20]
    On 4 October 2017, the applicant wrote to the Board to show cause why the parole order should not be suspended and agreed to the general direction document and to submit completely to the control of the Board and requested release.
  5. [21]
    On 5 October 2017, the Board met and decided not to vary its decision of 19 September 2017 to indefinitely suspend the parole order.  It stated that it had considered the applicant’s submissions of 18 September and 3 October 2017 but otherwise no reasons were given. 
  6. [22]
    On 12 October 2017 the applicant informed the Board he did not seek to show cause in opposition to the amendments to the conditions which were the subject of the Board’s information notice of 14 September 2017.
  7. [23]
    The applicant wrote to the Board on a number of occasions after 12 October 2017 as to various matters.
  8. [24]
    On 23 October 2017, the applicant filed a statutory order for review in relation to the decisions of 19 September 2017 and 5 October 2017.  On 31 October 2017 he wrote to the Board and requested reasons in relation to its decisions of 19 September 2017 and 5 October 2017. 
  9. [25]
    On 18 December 2017, the Board provided a statement of reasons and wrote to the applicant stating that it considered it needed a psychiatric assessment. The assessment was sought as to the applicant’s risk of future offending and suitability for parole. The applicant was assessed by Dr Moyle on 8 January 2018.
  10. [26]
    On 24 January 2018, the applicant wrote to the Board and requested reconsideration of the decision to indefinitely suspend his parole.
  11. [27]
    On 21 February 2018 the Board received an audio recording of the conversation between the applicant and a female Board staff member.
  12. [28]
    During a video link with the applicant on an urgent basis on 23 February 2018, the Board indicated that they had rescinded the earlier decision to suspend parole and were considering the matter afresh and considering whether to further suspend the parole and on what grounds.  At the meeting of 23 February 2018, the Board then indicated that they wished to go through the conditions which they had raised in an information notice some time ago, to ascertain what the applicant’s position was.  He was alerted to the fact that they had a report of Dr Moyle, which he had not been provided with. 
  13. [29]
    On 23 February 2018, an information notice was provided to the applicant stating, inter alia, that the Board had received further information, namely an audio recording of the conversation between the applicant, his supervising officer and a staff member at the Parole Board Secretariat, and on that basis decided to rescind its decisions of 19 September 2017 and 5 October 2017 and not have regard to the following contained in the Advice to Parole Board Report  dated 15 September 2017:
  1. (a)
    The applicant’s alleged verbal aggression towards a Parole Board Secretariat member; and
  2. (b)
    The allegation that the applicant refused to sign the general direction issued to him by his Probation and Parole Officer on 15 September 2017.
  1. [30]
    The information notice dated 23 February 2018[8] also notified the applicant that “the suspension of your court ordered parole order is to be lifted and you are to be released from custody on 26 February 2018”.  It further stated that the Board had explained all of the conditions which they had raised in the information notice of 14 September 2017, to which he had agreed during the video link appearance of 23 February 2018, as a result of which “the Board decided that the proposed amendments to your court ordered parole order be imposed”.
  2. [31]
    The reasons for the Board’s decision to amend the Court ordered parole order were  as follows:[9]

“Reasons for the Board’s decision –

  • The Board had regard to and accepted the conclusions in the risk assessment report prepared by Dr Robert Moyle received by the Board on 14 February 2018 (a copy of which is attached for your information).
  • Dr Moyle assessed you as being a moderately low risk for violence and a moderately high risk for perseverance and persistence of stalking behaviours to future partners with whom you are involved romantically or sexually, or wish to be so involved;
  • The Board considers that the conditions outlined in the Form 38 are required in order to reduce the risk you may pose to past victims, future partners and the community;
  • The Board considers that you have outstanding treatment needs and accept the recommendation that you undergo treatment with a suitably qualified practitioner;
  • The Board accepted the assessment that in order to address the risk you pose, you not only require treatment by a suitably qualified treatment provider, you also must engage in that treatment.  Further your attendance and engagement must be able to be monitored by Probation and Parole.

Accordingly, the Board reasonably believes that the conditions outlined in the attached Form 38 will assist in ensuring your good conduct as per s200(3) of the Corrective Services Act 2006

The Board decided that it is not practical to give the you (sic) 21 days to respond to a preliminary amendment given that you are due to be re-released to the community on 26 February 2018.  However the Board notes that the conditions were discussed in detail with you during the video link appearance on 23 February 2018 and you indicated your acceptance of same.  Notwithstanding this, the Board invites you to make any written submissions you consider necessary to the Board regarding this amendment within 21 days.” 

  1. [32]
    As a result of the decision of the Board of 23 February 2018 the applicant’s judicial review application made on 23 October 2017 was rendered nugatory.  The application was dismissed and the respondent consented to pay the applicant’s costs.
  2. [33]
    The applicant provided a show cause submission in respect of the Board’s decision of 23 February 2018.  On 22 March 2018 the Board decided not to vary the order of 23 February 2018 amending the Court ordered parole. 

Relevant legislation

  1. [34]
    Section 208B of the CS Act provides for a Board member to suspend a parole order if a request is made under s 208A.  The Board member must:[10]

“… as a matter of urgency –

  1. (a)
    consider the request; and
  2. (b)
    decide whether or not to suspend the parole order.”
  1. [35]
    Section 208B(2) provides that a Board member may only suspend the parole order if they reasonably believe the prisoner:[11]

“(a) has failed to comply with the parole order; or

  (b) poses a serious and immediate risk of harm to another person; or

  (c) poses an unacceptable risk of committing an offence; or

  (d) is preparing to leave the State…”

In the event that a Board member decides to suspend the parole order, the member must by written order suspend the parole order and issue a warrant for the prisoner’s arrest.[12] The order has effect from when it was made.[13]

  1. [36]
    Section 208C(1) provides:

“If the prescribed Board member decides, under s 208B, to suspend the parole order and issue a warrant for the prisoner’s arrest, the parole board must, within 2 business days of the decision being made –

  1. (a)
    confirm the decision; or
  1. (b)
    set aside the decision.”
  1. [37]
    Section 208C(2) provides that s 208 applies to a decision of the Board to confirm the prescribed Board member’s decision as if it were a decision to suspend a parole order under  s 205(2). 
  2. [38]
    Section 208 of the CS Act provides that the Board must give the prisoner an information notice on the prisoner’s return to prison and must consider all properly made submissions and inform the prisoner by written notice whether the Board has changed its decision, and if so, how. Section 208 provides for the Board to change its decision.
  3. [39]
    Section 200 of the CS Act provides for conditions which must be included in a parole order.  Section 200(3) provides that a parole order granted by the Board may also contain conditions that the Board reasonably considers necessary “to ensure the prisoner’s good conduct”.
  4. [40]
    Section 205(1) of the CS Act provides for the Board, by written order, to amend a parole order by amending or removing a condition imposed under s 200(3), if the Board reasonably believes, inter alia, the condition, as amended, is necessary for a purpose mentioned in that subsection, or by inserting a condition mentioned in s 200(3) if the Board reasonably believes the condition is necessary for a purpose mentioned in the subsection. 
  5. [41]
    Section 205(2) of the CS Act provides that the Board may, inter alia, amend, suspend or cancel a parole order if the Board reasonably believes the prisoner subject to the parole order:

“(i) has failed to comply with the parole order; or

(ii) poses a serious risk of harm to someone else; or

(iii) poses an unacceptable risk of committing an offence; or

(iv) is preparing to leave the Queensland, other than under a written order granting a prisoner leave to travel interstate or overseas.”

  1. [42]
    Section 205(3) of the CS Act provides that:

“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. [43]
    Section 205(4) of the CS Act provides that the Board is not required to give the prisoner an information notice or a reasonable opportunity to be heard if the Board suspends or cancels the prisoner’s parole order.

Was the decision to extend the suspension until 26 February 2018 valid?

  1. [44]
    The applicant contends that the rescission of the decisions of 19 September 2017 and 5 October 2017 had the effect of rendering the order of the member of the Board of 15 September 2017 void for any or all of the following reasons, namely:
  1. (1)
    It took into account an irrelevant and false consideration, namely that the applicant had been aggressive to a Board employee and refused to sign a declaration which the Board had stated on 23 February 2018 that it would exclude from consideration (the excluded considerations);
  2. (2)
    Absent the decision of 19 September 2017, the order of 15 September 2017 had not been confirmed within two business days as required under s 208C(1).
  1. [45]
    If the order of 15 September 2017 had remained in effect, the applicant contends that s 208C(1) only gave the Board authority to confirm it or set it aside, neither of which the Board did.  Instead, the Board ordered the indefinite suspension to be lifted three days into the future.  The decision to extend the suspension for three days was therefore not authorised under s 208C of the CS Act.  As there was no decision in place, s 208 of the CS Act did not apply. 
  2. [46]
    Further, the applicant contends that the extension was not made pursuant to s 205(2)(a)(iii) of the CS Act because that could only be if the Board reasonably believed that the applicant posed an unacceptable risk of committing an offence.  He contends that the Board did not hold that belief nor could it hold that belief because it amended the order, effective 23 February 2018, by imposing additional parole conditions to ameliorate the same risk.  The applicant contends that having decided to amend the parole order it was an improper exercise of power to extend the suspension for three days because it was so unreasonable that no reasonable person could exercise the power. 
  3. [47]
    The Board contends that the rescinding of the Board’s decisions of 19 September 2017 and 5 October 2017 did not have the effect of making the Board member’s decision of 15 September 2017 void.  That decision remained valid and had never been rescinded or set aside.  Therefore the Board determined to lift its suspension of the applicant’s court ordered parole arising out of the decision of 15 September 2017.  It further contends that the decision by the Board member extended beyond the excluded considerations, which the Board stated that it would no longer take into account in considering the matter of the suspension afresh.  The Board could still have had regard to the fact that the Advice to the Parole Board Report also referred to the applicant’s need to address offending behaviour. In that regard it relied upon the Board member’s decision of 15 September 2017 which stated that she had had regard to the Advice in the Parole Board Report and her belief that the applicant posed an unacceptable risk of committing an offence was based on information “including the summary of the prisoner Vaughan’s conduct towards a staff member.” According to the Board the decision of 15 September 2017 was not one which could be characterised as only relating to the applicant’s alleged conduct towards the female staff member. It therefore submitted that the decision of 15 September 2017 was not void.
  4. [48]
    The decision of the individual Board member did on its face take into account matters other than the excluded considerations.  The decision of 15 September 2017 had not been set aside.  The fact that the decision included the excluded considerations, did not render the decision of 15 September 2017 automatically void. 
  5. [49]
    However, the decision of the Board of 23 February 2018 was not, in my view, authorised by the CS Act.  There is no provision in s 208C of the CS Act to set aside a decision to suspend at a future date.  That accords with the fact that s 208C(4) provides that if the Board decides to set aside the decision, the suspension and warrant stop having effect. Section 208 does provide for the Board to change its decision but that is consequential on the Board having determined to confirm the individual Board member’s decision, or the exercise its power of suspension under s 205(2).
  6. [50]
    The difficulty in the present case is that the Board did not seek to change its decision to suspend.   The Board rescinded its decisions of 19 September 2017 and 5 October 2017, such that there was no decision in place by the Board to confirm the suspension of the applicant’s parole.[14]  The only decision in existence was that of the individual Board member of 15 September 2017.
  7. [51]
    Insofar as the Board determined to “lift” the suspension, the Board was relying on the decision of 15 September 2017 being effective. Section 208C did not provide a power to set aside the decision at a future time.  The power was to confirm or set aside the decision of the Board member.  In the circumstances, the Board did not have the power to in effect confirm the decision to suspend for three days and then lift the suspension as at 26 February 2018. Nor did it conversely have power to set aside the decision to suspend but only with effect as at a future date. That is clear from the section itself as set out above. The Board provided no compelling argument supporting the suggestion that s 208C should be construed to provide such a power.
  8. [52]
    Further, while the Board had originally confirmed the decision of 15 September 2017 to suspend parole within the two day time limit by its decisions of 19 September 2017 which it confirmed on 5 October 2017, it rescinded those decisions such that they had no effect.  The applicant’s argument that the Board no longer had authority to act under s 208C to confirm or set aside the decision of 15 September 2017 because the two day limit had passed and the decision ceased to have effect, is a reasonably compelling one.   Section 208C provides that the “parole board must within two days” confirm or set aside the decision.  The use of “must” is not definitive,[15] however, in the context of the section which follows the exercise of an individual board member acting urgently and alone, the exercise of the power in s 208(1) within the time frame is open to be construed as a condition subsequent to the validity of the Board member’s decision.  However s 208(4)-(6) which provide for the consequences of the Board setting aside the decision, particularly in relation to the warrant, do not favour such a construction.  The CS Act makes no provision for the effect of the Board member’s decision if the Board does not act within two days.  That is significant given the immediate effect of the Board member’s decision who is empowered to issue a warrant at the same time.  That suggests the Board member’s decision would not be rendered void or of no further effect absent the Board making the decision within the timeframe under s 208C.  In my view, the better construction is that non-compliance with the two day time limit does not render the decision of the Board member of no effect.
  9. [53]
    The Board also sought to rely on s 205(2)(a)(iii) of the CS Act as providing it with the power to lift the suspension of the applicant’s parole on the basis that the Board expressly detailed in the information notice dated 23 February 2018 that it continued to have concerns in respect of the applicant’s risk to the community if released on parole. That risk was, however, sought to be addressed by the imposition of the additional conditions to which the Board sought the applicant’s agreement.
  10. [54]
    The Board’s contention must fail for two reasons. First, as set out above the Board stated it had determined to “lift” the suspension of the applicant’s parole in its information notice of 23 February 2018 which suggests that it could only be relying on the decision of 15 September 2017 as the basis of the decision given it had rescinded its decisions of 19 September and 5 October 2017.  Secondly, even if the board had a reasonable belief in terms of s 205(2) it had determined to amend the parole order by adding conditions to address the risk not to suspend the applicant’s parole.  To the extent the Board reasonably held the belief that the applicant was an unacceptable risk of committing an offence, it determined to exercise its power to amend the parole order.  The Board refers to having made a preliminary decision to amend the conditions to the applicant’s court parole order on 14 September 2017 and to his agreement in the video link to those proposed conditions stating “As a result of your agreeance the Board decided that the proposed amendments to your court ordered parole be imposed”. The Board did not require the applicant’s agreement to the imposition of the conditions, in order to exercise its power under s 205(2) of the CS Act to amend the conditions of the applicant’s Court ordered parole if satisfied of one of the matters in (a)(i)-(iv).
  11. [55]
    The applicant contends that the agreement of the applicant to the amended conditions was an irrelevant consideration to the decision relating to suspension on the basis that the Board could impose such conditions under its powers in s 205(2) of the CS Act.  Given the sanctions in the CS Act for non-compliance with the conditions imposed in the parole order, consistent with the scheme of the CS Act such a consideration is not relevant if the Board has formed the view that the conditions address the risk posed.  If it were otherwise the provision for giving notice in s 205(3) of the CS Act could be circumvented.  I consider that the agreement of the applicant to proposed amended conditions is an irrelevant consideration[16] notwithstanding the broad discretion conferred upon the Board under s 205(2) of the CS Act.[17]  It may be otherwise if the Board was determining whether to amend or suspend the parole order. 
  12. [56]
    Even if the agreement to the conditions was relevant to the Board’s consideration in this case, the applicant had already stated his willingness to comply with the conditions outlined in the 14 September 2017 notice on a number of occasions on 4 October and 11 October 2017 prior to the Board previously confirming the decision to suspend his parole. 
  13. [57]
    The Board decided to amend the conditions pursuant to s 205 of the CS Act to address the risks posed by the applicant. The power in s 205(2) of the CS Act provides a power to amend or suspend in the alternative, if it formed the relevant belief, not to do both.  Having made the decision to lift the suspension and amend the parole order, there was no power to maintain the suspension for three days before lifting it. 
  14. [58]
    I find that the Board did not validly exercise any statutory power to extend the applicant’s suspension of parole until 26 February 2017 and made an error of law. However given the applicant was released on 26 February 2017, I do not consider any relief other than the making of a declaration is warranted.[18]

Was there a denial of natural justice or an improper exercise of power?

  1. [59]
    The applicant contends that the Board by taking into account a report of Dr Moyle and not providing the report to him prior to the Board making its decision on 23 February 2018 breached the rules of natural justice and failed to observe the procedures required by s 205(3) of the CS Act. 
  2. [60]
    The applicant had unsuccessfully requested on two occasions a copy of Dr Moyle’s report, having been assessed by Dr Moyle while in custody at the request of the Board.  He ultimately applied through the Information Privacy Act 2009 (Qld) for a copy of the report, having been rebuffed by the Townsville Correctional Centre on 14 February 2018, the day that the Board received the report.
  3. [61]
    There is no issue that Dr Moyle’s report was not provided to the applicant prior to the Board determining that it would amend the parole order to add conditions on 23 February 2018. Dr Moyle’s report and the information notice were provided at the same time as notice that the parole order had been amended. The Board did inform the applicant it had read Dr Moyle’s report at the video meeting on 23 February before going through the conditions. 
  4. [62]
    There is no issue that the report was material to the Board’s decision. The findings in the report were stated by the Board to form part of its reasons for the decision to amend the conditions in the parole order.
  5. [63]
    The applicant did provide submissions in response to the information notice of 23 February 2018 where he sought to challenge the necessity to impose some of the conditions upon him and requested that they be amended.  He emphasised, however, that he would comply with the conditions imposed. No complaint was raised by him as to not receiving Dr Moyle’s report or the information notice beforehand.
  6. [64]
    In his affidavit provided in these proceedings, the applicant states that he felt he had no choice but to agree to the conditions given that he had been in custody for five months. I note that he had however earlier stated in correspondence with the Board, that he agreed to abide by the conditions the subject of the information notice of 14 September 2017 in October 2017 which were substantively the same as those imposed on 23 February 2018.  The reasons for the conditions being imposed however had changed, given Dr Moyle’s assessment.
  7. [65]
    In the Board’s letter to the applicant dated 22 March 2018 the Board referred to the applicant being taken through each of the conditions that were proposed to be added and stated that his agreement to comply with the conditions  was the basis upon which the Board determined to amend his Court ordered parole order with the conditions outlined. 
  8. [66]
    Rather surprisingly, in confirming its decision on 22 March 2018, the Board took issue with the applicant seeking to have some conditions reviewed given he had previously indicated he was willing to comply with the conditions. Given the applicant did not have prior notice of the Board’s proposal of 23 February 2018 and was provided with the opportunity to make submissions as to the conditions, the Board’s response in that regard appears to be unreasonable.
  9. [67]
    The applicant contends that the Board conflated the amending of conditions of the Court ordered parole order with the lifting of the suspension, such that there was no urgency which justified non-compliance with the rules of natural justice and particularly s 205(3) of the CS Act.
  10. [68]
    Section 205(3) of the CS Act provides that the 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, if practicable.  According to Fraser JA in Central and Northern Queensland Regional Parole Board v Finn[19] s 205(3) modifies any applicable common law requirement of natural justice.
  11. [69]
    The respondent contends that it can be inferred by the manner in which the Board proceeded on 23 February 2018 that it was not practicable to provide the report of Dr Moyle and an opportunity to comment upon it when the Board convened on that date. The Board’s information notice stated that it was not practical to provide the applicant with 21 days to respond because of the decision to re-release him in the community on 26 February 2018. It did not state however that his release was conditional on his agreement with the proposed conditions.  While that may be inferred, the Board could amend the conditions under its powers in s 205 of the CS Act, whether or not the applicant agreed to the amended conditions.  The circumstance of urgency seemed to arise out of the Board determining that the Board could not rely on the alleged aggression of the applicant to a female staff member and his refusal to sign the general direction provided to him directing he comply with the conditions the subject of the information notice given on 14 September which the Board proposed would be included in his parole order and the hearing of the Judicial Review application.
  12. [70]
    Given the Board is said to have had Dr Moyle’s report since 14 February 2018 and the fact that the applicant was in custody, there does not appear to be any reason upon which it was not practicable for the Board to at least have provided him with Dr Moyle’s report prior to the meeting of 23 February 2018.[20]  Having determined that the risk posed by the applicant could be addressed by the imposition of the conditions, I do not consider it was not practicable to comply with s 205(3) of the CS Act.  There is nothing to indicate to me that such conditions were necessary to be put in place prior to the applicant’s release. 
  13. [71]
    However, given the Board subsequently provided the applicant with the information notice and Dr Moyle’s report and the opportunity to make submissions and the Board confirmed its decision on 22 March 2018, I consider that any breach of s 205(3) was subsequently cured.[21] It would in those circumstances be inappropriate to grant relief and set aside the decision of 23 February 2018 to impose the additional conditions, on the basis of a denial of natural justice.
  14. [72]
    It is also contended that in relying on Dr Moyle’s report, the Board took into account irrelevant considerations, as Dr Moyle in his report relied on, inter alia:

“In summary, Mr Vaughan has been returned to custody for breach of probation of a three year sentence with Court-ordered release, because of a combination of failing to agree to doing as he was ordered, and becoming aggressive in his argument over legal intricacies of his Orders.”

  1. [73]
    The applicant contends that Dr Moyle assessed the applicant as a moderate to high risk of persistence, and diagnosed personality traits in relation to what he had assumed was the applicant’s almost obsessional pursuit of his legal challenge, which necessarily took into account the excluded considerations. 
  2. [74]
    The Board contends that the Board had stated it would not take into account the excluded matters in making its decision and there is no reason to infer it did so.  It contends that Dr Moyle’s report took into account a number of matters in reaching his conclusion, and that the excluded matters were not critical to his opinion.  The Board further contends that Dr Moyle relying on the aggressive behaviour of the applicant and his challenging the directions was an error of fact in Dr Moyle’s report, which would not vitiate the Board’s decision. 
  3. [75]
    If a matter critical to an opinion was incorrect, that may render the opinion wholly irrelevant unless, an updated opinion is sought.[22]  However, factual errors in an opinion otherwise relevant does not make an opinion irrelevant.[23]
  4. [76]
    Dr Moyle took the phone call said to be aggressive into account.[24]  He also appears to have taken into account the suggestion the judicial review applications and the challenges to the amendment to the parole conditions were unjustified in reaching his opinion.[25]  Those matters however, do not appear to be critical to his assessment of risk relied upon by the Board. 
  5. [77]
    Dr Moyle’s report is a matter which clearly was relevant to the Board’s consideration of the applicant’s risk of committing an offence. The applicant’s contention that the excluded matters were critical matters to Dr Moyle’s report is not borne out by the terms of Dr Moyle’s report.  There is no basis for concluding that it was an irrelevant consideration for the Board to take Dr Moyle’s report into account due to his reference to the excluded considerations.
  6. [78]
    The applicant also contends that the Board did not have a reasonable belief that the applicant posed an unacceptable risk of committing an offence within the meaning of s 205(2)(a)(iii) of the CS Act given the Board’s reference to the conditions stating that the conditions would ensure his good conduct as per s 200(3) of the CS Act. That according to the applicant required the Board to be satisfied of a lower threshold. The Board however contends that the information notice of 23 February 2018 specifically stated as part of its reasons that “... in order to address the risk you pose, you not only require treatment by a suitably qualified provider, you must engage with that treatment.” The risk was identified in its reasons: “Dr Moyle assessed you as being a moderately low risk for violence and a moderately high risk for perseverance and persistence of stalking behaviours to future partners with whom you are romantically involved.” Further the information notice states “Accordingly the Board reasonably believes you pose an unacceptable risk of committing an offence and that the conditions will assist in ensuring your good conduct as per s 200(2) of the Corrective Services Act.”  The Board states that there is therefore no substance in the contention that it did not hold a reasonable belief that the applicant posed an unacceptable risk of committing an offence under s 205(2)(a)(iii) of the CS Act.
  7. [79]
    Section 205(1) permits the conditions of a parole order to be amended under s 200(3) if the Board reasonably believes the condition is necessary for the purpose of s 200(3). Section 205(2) provides an additional power to impose conditions.[26]
  8. [80]
    While the Board’s information notice should have referred to s 205(2)(a)(iii) as well as s 200(3) of the CS Act, given the terms of the notice and reference to Dr Moyle’s report in the context of risk I do not accept that the Board did not hold the requisite belief under s 205 and was not authorised to amend the conditions for the purpose of  s 200(3) and s 205(2)(a)(iii) of the CS Act.[27]
  9. [81]
    I do not find the grounds of review have been established in relation to the decision to amend the parole order.

Conclusion

  1. [82]
    In light of the reasons above, the appropriate order is to make a declaration that the Board’s decision of 23 February 2018 to lift the suspension of the applicant’s Court ordered parole order on 26 February 2018 was invalid.
  2. [83]
    Given my reasons and the fact both parties have enjoyed some success and been unsuccessful in other respects I consider the appropriate order is that each party bear their own costs.

Order

  1. [84]
    I declare that the decision of the Board to not lift the suspension until 26 February 2018 was effected by an error of law and ought to be regarded as invalid.  The applicant is otherwise dismissed.
  2. [85]
    I further order that each party bear their own costs.

Footnotes

[1]  See Affidavit of Wickramasinghe, CF 10, Exhibits MW-1 and MW-30.

[2]  Affidavit of Wickramasinghe, CF 10, Exhibit MW-51.

[3]  Affidavit of Wickramasinghe, CF 10, Exhibit MW-49.

[4]  Affidavit of Wickramasignhe, CF 10, Exhibit MW-36.

[5]  Affidavit of Wickramasignhe, CF 10, Exhibit MW-35.

[6]  Affidavit of Wickramasignhe, CF 10, Exhibit MW-34.

[7]  Affidavit of Wickramasignhe, CF 10, Exhibit MW-28.

[8]  JRV-12.

[9]  JRV-12.

[10] Corrective Services Act 2006 (Qld), s 208B(1).

[11] Corrective Services Act 2006 (Qld), s 208B(2).

[12]  CS Act s 208B(4)

[13]   CS Act s 208B (5)

[14] Renwick v Parole Board of Queensland [2018] QSC 169 at [18].

[15] Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 at [91]-[92].

[16] Minister for Aboriginal Affairs v Peko Wallsend ltd (1986) 162 CLR 24

[17] McQueen v Parole Board of Queensland [2018] QSC 216

[18] McQueen v Parole Board of Queensland [2018] QSC 216  at [96]

[19]  [2018] QCA 47 at [22] (with whom Gotterson JA and North J agreed).

[20]  TBR v Southern Queensland Regional Parole Board [2010] QSC 2-4.

[21]  See Mason J in Twist v Randwick Municipal Council (1976) 136 CLR 106 at 116.

[22] Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 at 44-45 per Mason J. 

[23] Folling v Queensland Parole Board [2010] QSC 440 at [17].

[24]  See for example, [15]-[24] of Dr Moyle’s Report, Affidavit of M. Wickramasinghe, CF 10, MW-4.

[25]  See [127].

[26] TBR V Southern Queensland Regional Parole Board [2010] QSC 204 at [32].

[27] TBR V Southern Queensland Regional Parole Board [2010] QSC 204 at [59].

Close

Editorial Notes

  • Published Case Name:

    Vaughan v Parole Board Queensland

  • Shortened Case Name:

    Vaughan v Parole Board Queensland

  • MNC:

    [2019] QSC 10

  • Court:

    QSC

  • Judge(s):

    Brown J

  • Date:

    30 Jan 2019

  • White Star Case:

    Yes

Litigation History

No Litigation History

Appeal Status

No Status