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  • Unreported Judgment

Darren Raymond Layton v Southern Queensland Regional Parole Board

 

[2010] QSC 71

 

SUPREME COURT OF QUEENSLAND

 

PARTIES:

FILE NO/S:

Trial Division

PROCEEDING:

Application for judicial review

ORIGINATING COURT:

DELIVERED ON:

19 March 2010

DELIVERED AT:

Brisbane 

HEARING DATE:

15 March 2010

JUDGE:

McMurdo J

ORDER:

Application dismissed.

CATCHWORDS:

ADMINISTRATIVE LAW – JUDICIAL REVIEW – GENERALLY – where the respondent cancelled the applicant’s parole order on the basis that the applicant had failed to comply with a condition of his parole order – where the applicant claimed that there were irregularities in the procedure followed by the respondent in determining that he had failed to comply with a condition of his parole – whether the respondent’s decision to cancel the applicant’s parole should be reviewed

Corrective Services Act 2006 (Qld), s 205(2), s 208

Penalties and Sentences Act 1992 (Qld), s 160C

COUNSEL:

D R Layton in person

S A McLeod for the respondent

SOLICITORS:

Crown Solicitor for the respondent

[1] The applicant seeks judicial review of a decision of the respondent to cancel his parole. 

[2] On 16 November 2006 he was sentenced to concurrent terms of four years imprisonment upon a number of offences of burglary.  The judge ordered that he be released on parole on 16 March 2007.  That is to be understood as an order fixing his parole eligibility date, pursuant to s 160C of the Penalties and Sentences Act 1992 (Qld).  He was subsequently sentenced in the Magistrates Court to some further terms for offences of stealing and assault, for which the magistrate fixed the parole release date as 16 March 2007. 

[3] He was released on parole on 15 July 2008.  A condition of his parole order was:

“(t)That the prisoner submit to urinalysis testing at the direction of the corrective services officer, and if it is established by such urinalysis that the prisoner has illegally used a drug it shall be considered as a breach of the order.”

[4] In August 2008, the applicant failed to report as required by a parole condition and his parole was suspended.  On 3 June 2009 the respondent determined that the suspension be cancelled on and from 19 June 2009 and he was then released.  But on 1 July 2009 his parole order was again suspended, this time for not complying with a condition which required him to live at a certain hostel and not to change address without prior approval.  On 13 August 2009 the Board cancelled that suspension on and from 18 August 2009 when he was again released.

[5] One week later, on 25 August 2009, the applicant provided a urine sample which yielded a positive test result for drugs.  The report from the analyst was that within the specimen were the substances creatinine, methylamphetamine, ephedrine/pseudoephedrine, morphine and codeine.

[6] By s 205(2) of the Corrective Services Act 2006 (Qld), a parole board may, amongst other things, suspend a parole order if it reasonably believes that the prisoner has failed to comply with the order.  On 9 September 2009, the Board decided to suspend his parole order on the basis of a belief that the applicant had failed to comply with the condition set out above.

[7] On 17 September 2009 the applicant wrote to the respondent, endeavouring to show cause why the respondent, under s 208 of the Act, should change its decision.  Relevantly the applicant then wrote:

“… My parole has been suspended for a dirty urine which happened on the 25-8-09.  I’m not going to sit here and try to think of some excuse to tell the parole board.  Because I would be lying to the parole board and I would be lying to myself.  It was a stupid mistake on my behalf that I made and I totally regret it, because not only was I put back in prison, it nearly cost me my relationship with my family, not only my family but my relationship with the woman I intend to spend the rest of my life with … they could see that it was a “lapse” not a full “re-lapse” and it was the first dirty urine I’ve had in 4 ½ years.  Since I’ve been back in prison I have had some time to think about the stupid mistake I made and I am really angry with myself because I had been doing so well. … I just hope the parole board can see that it was my first dirty urine in 4 ½ years, and that it was a one off and a really stupid mistake on my part …”

On 28 September 2009, the applicant wrote again to the respondent, including this:

“… As you know already that this is my first dirty urine in 4 to 4 ½ years and that it was a stupid mistake on my behalf and I am the first to admit that…”

The principal point made in these letters was that the applicant had good prospects of complying with his parole conditions because of a close relationship he had formed with a woman and her two children and that as her father had died recently the applicant wanted to be released in order that he could provide emotional support to them.

[8] On 7 October 2009 the respondent decided to cancel the applicant’s parole order and again the applicant was invited to show cause.  He replied on 26 October 2009 making similar submissions but also raising a new point:  he claimed that the required procedures were not followed in the testing of his sample of urine.  He wrote that:

“I would also like to bring to the board’s attention about the procedures that weren’t followed in my urine testing that should have been followed.  According to the testing procedure regulations:

 

If it was an on-the-spot test, I should have been present when the conducting of the test was done to see if the urine was dirty or clean.

 

*I was not present when the urine was split into two specimen jars.

 

*Was not present when the urine test jar was heat sealed on both specimen jars.

 

*Did not sign both specimen jars as required.

 

*Was not ask[ed] if I was on any medication before doing the urine, which at time I was and can be verified by my doctor.

 

*There was no underpad on the bench and the urine jar was placed on a white bench.

 

*Was not present when both specimen jars were placed into a tamperproof clipseal plastic bag.

 

*Did not sign the biohazard clipseal bag as required.

 

*When urine was completed, I was told to make sure that the lid is on tight, when I had left the parole officer has unscrewed the lid and taken it off the specimen jar to put half of the urine into the second specimen jar without me being present.”

[9] At its meeting on 4 November 2009, the respondent confirmed its decision to cancel the applicant’s parole order.  In its statement of reasons, the Board made no specific findings as to those complaints of irregularities in the steps taken in relation to the applicant’s sample.  However, the Board was satisfied that the applicant had illegally used a drug.  It there noted the results of the testing of the sample and that the presence of these substances constituted a breach of condition (t) of the parole order.  It further noted that the applicant had said in his submission of 17 September 2009 that he had made a mistake and regretted his actions.  Clearly, the Board saw the applicant’s admissions as supporting the results of the testing.

[10] The applicant, who presented his own case, made in substance two arguments.  The first was that the required procedures for testing the sample were not followed.  The second was that the Board should have considered that there was an innocent explanation for the presence of these drugs in his urine, which is that he was taking some prescribed medication which contained these elements. 

[11] As to that second argument, according to the report of Queensland Health Forensic and Scientific Services dated 3 September 2009, which the respondent received, pseudoephedrine is present in some cold and flu medications and methylamphetamine and/or amphetamine could be present in a urine specimen following the use of certain prescription drugs:  dexamphetamine, seigene and eldpryl.  But the report added that if there was no evidence of use of any of those prescription drugs, then the presence of methylamphetamine and amphetamine in a urine specimen would have to be associated with the use of illicit drugs.  It added that the presence of morphine and codeine detected in the urine could be considered consistent with heroin use or morphine use. 

[12] In its notice to show cause dated 14 September 2009, the respondent wrote to the applicant that:

“It is noted that you did not advise of being prescribed medication which would explain the positive result”.

That was apparently a reference to the fact that prior to providing the specimen, the applicant had told the parole officer, as she then recorded, that he was not taking any medication. And in his letters of 17 and 28 September 2009, the applicant did not suggest that he had been taking any prescribed medication.  In those circumstances the Board was not obliged to inquire further for an innocent explanation for the presence of the drugs and there is no arguable basis for reviewing the Board’s decision on that ground.  It was not until the applicant’s letter of December 2009 that he suggested such an explanation.

[13] The relevant condition of the parole order was in terms that there would be a breach of the order by its being established by urinalysis testing that he had illegally used a drug.  The reliability of the test results, however, could be enhanced by other evidence.  In particular, the applicant’s own letters to the Board constituted evidence which the Board was entitled to consider as supporting their reliability.  Indeed, the evidence of these admissions, the respondent was entitled to conclude, put paid to any doubt about the substantial accuracy of the results, whatever had been the non-compliance with the required procedures.  Further, on 25 August 2009 the applicant had signed a form acknowledging  that:

“… the specimen/s accompanying this form are my own and were provided by me to the collector.  Further, I certify that the specimen jar/s were sealed with tamperproof seals in my presence and the information provided on this form and on the labels is correct.” 

Accordingly, there is no ground for review of the respondent’s finding that the results of the test were reliable.

[14] The written submissions filed by the applicant referred to further grounds.  One was that “[t]he applicant was set up to fail by being placed at a men’s hostel filled with drugs and alcohol”.  This point does not show an error in acting upon the results of the test:  if anything it tends to support the test results.  A further complaint was that he was arrested on 31 August 2009, whereas the results of the testing, he says, were not known until three days later.  However, the sample was divided between two specimen jars, one of which was tested immediately with a positive result, after which he was arrested.  The other jar was subsequently forwarded for confirmatory testing, the outcome of which was the adverse report provided on 3 September 2009. 

[15] No ground for review of the respondent’s decision is demonstrated.  The application must be dismissed.

Close

Editorial Notes

  • Published Case Name:

    Darren Raymond Layton v Southern Queensland Regional Parole Board

  • Shortened Case Name:

    Darren Raymond Layton v Southern Queensland Regional Parole Board

  • MNC:

    [2010] QSC 71

  • Court:

    QSC

  • Judge(s):

    McMurdo J

  • Date:

    19 Mar 2010

Litigation History

No Litigation History

Appeal Status

No Status