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  • Unreported Judgment

Keller v Parole Board

 

[2010] QSC 310

 

SUPREME COURT OF QUEENSLAND

PARTIES:

FILE NO/S:

Trial Division

PROCEEDING:

Application

ORIGINATING COURT:

DELIVERED ON:

27 August 2010

DELIVERED AT:

Brisbane 

HEARING DATE:

5 August 2010

JUDGE:

Boddice J

ORDER:

  1. The application is dismissed

CATCHWORDS:

ADMINISTRATIVE LAW – JUDICIAL REVIEW – GROUNDS OF REVIEW – RELEVANT CONSIDERATIONS – where the applicant argued that the respondent did not give sufficient weight to the material supporting his application for parole – whether the respondent failed to take relevant considerations into account

ADMINISTRATIVE LAW – JUDICIAL REVIEW – GROUNDS OF REVIEW – UNREASONABLENESS – whether the Board’s decision was so unreasonable that no reasonable authority could ever come to that decision

ADMINISTRATIVE LAW – JUDICIAL REVIEW – GROUNDS OF REVIEW – GENERALLY – where the applicant seeks a statutory order of review of a decision by the Queensland Parole Board to decline to grant parole to the applicant pursuant to the Judicial Review Act 1991 (Qld) – where the applicant alleges several further grounds – whether any of the grounds are established

Judicial Review Act 1991

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

Australian Retailers Association & Ors v Reserve Bank of Australia (2005) 148 FCR 446

Elias v Commissioner of Taxation (2002) 123 FCR 499

Gough v Southern Queensland Regional Parole Board [2008] QSC 222

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

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

COUNSEL:

The applicant appeared on his own behalf

R J Anderson for the respondent

SOLICITORS:

The applicant appeared on his own behalf

GR Cooper, Crown Solicitor for the respondent

[1] The applicant makes application for a statutory order to review the decision and conduct of the respondent Queensland Parole Board denying his application for release on parole.

[2] The grounds of the application, which are extensive, rely on s 20(2)(a), (b), (c), (d), (e), (f) and (h) of the Judicial Review Act 1991 (“the JR Act”).

Parole application

[3] On 19 March 2006 the applicant was found guilty of common assault, enter dwelling with intent by break at night, uses/threats, threatens violence whilst armed, wound with intent to cause grievous bodily harm and unlawful stalking uses/threatens violence.  He was sentenced to eight years imprisonment.

[4] On 30 October 2009 the applicant made application for parole.  On 28 January 2010 the applicant provided further submissions in support of his parole application.  On 25 February 2010 the respondent advised the applicant, in writing, that consideration was being given to not granting his application for parole on the basis he may pose an unacceptable risk to the community.  The applicant was invited to make further submissions which he did, in writing, on 19 March 2010.  On 1 April 2010 the respondent considered the applicant’s parole application, and decided that if released he posed an unacceptable risk to the community and declined the application for parole.

[5] By letter dated 22 April 2010 the applicant requested a statement of reasons from the respondent in relation to its decision of 1 April 2010.  This statement of reasons was provided by letter dated 31 May 2010.  Prior to the receipt of those reasons, the applicant had filed his application for statutory review on 14 May 2010.

[6] On 4 June 2010, the respondent decided to rescind its previous decision to not grant parole.  The applicant was advised the respondent would reconsider his application at its next meeting.  On 6 June 2010, the applicant provided a further submission to the respondent in support of this application for parole. 

[7] By letter dated 22 June 2010, the respondent advised the applicant that consideration was being given to not granting his application for parole on the basis he may pose an unacceptable risk to the community.  The applicant was invited to make further submissions in support of his parole application.  The applicant provided further submissions by letter dated 24 June 2010. 

[8] At its meeting on 25 June 2010, the respondent decided to decline the applicant’s parole application.  On 29 June 2010 the respondent provided a statement of reasons for its decision to decline that application.

The decision

[9] In its statement of reasons dated 29 June 2010, the respondent gave the following reasons for its decision:

“1.The Board noted that you have a criminal history which indicated a consistent and extensive offending profile which has escalated in severity.  The Board considers your criminal history to be significant as past behaviour may be an indicator of future behaviour unless actions are taken to modify behaviour.

 

2.The Board noted and took into consideration your previous response to community based supervision.  The Board was concerned that you have previously received the benefit of community supervision in the form of Community Service Orders, Fine Option Orders and Intensive Correction Orders which you did not comply with.

 

The Board therefore considered that it required evidence to indicate that any further release to supervision in the community would not seriously undermine community safety.  This can be demonstrated by maintaining positive institutional behaviour, for example, this may include, spending more time breach free in your current residential accommodation, progressing through the correctional centre to a low security facility and participating in Community Service Leaves of Absence and the Work Camp Programme.

 

3.The Board noted that you have maintained your innocence in relation to the conviction of common assault.  The mere fact that you maintain your innocence does not prejudice the Board against you.  However, it leaves the Board in the position where it must accept that you have been found guilty of this offence after a full trial where all the evidence was fully ventilated.  In the criminal justice system, it is the role of the jury to determine the guilt or innocence of an accused person and it is not for the Board to revise or reverse that assessment. The Board proceeded on the basis that you were guilty of this offence.

 

4.The Board considered your record of adverse prison behaviour which included a positive result for alcohol on a breath test on 16 June 2008 and more recently a major breach you incurred by having another offender’s belongings in your possession on 8 February 2010.  The Board noted that the most recent breach occurred while your application for parole was being considered.

 

The Board notes that the Centres have strict rules about the possession of property in order to maintain Centre security.  It is of great concern to the Board that you were unable to follow the rules of the Centre particularly at a point when your parole is being considered.

 

The Board is concerned that you have been unable to maintain an unacceptable level of behaviour while incarcerated in a highly structured environment.  As a result the Board is not confident at this time that you would comply with all the parole conditions which may be imposed should you be released on parole. 

 

5.The Board notes that you are currently accommodated in residential, and that in your submission of 24 June 2010 you stated in relation to your transfer to a low security environment:- 

 

“And have been told that I must exhibit acceptable behaviour and honesty in my dealings with all staff, all other offenders for a period of six months from the 8 February 2010.”

 

The Board considers that a further period of breach and incident free behaviour in addition to your progression to a low security facility would be beneficial.  Your ability to function in a less structured and supervised facility, would allow you to properly prepare for reintegration into the community. 

 

The Board considered your current security classification of low and accommodation in the residential section of your Centre as a positive factor in your reintegration into the community, however, would take further comfort from you progressing to a low security facility or spending more time breach free in your current residential accommodation.

 

6.The Board has taken into account your full time release date of 13 March 2014, and considers that there is adequate time for you to achieve further progression to a low security facility or similar.

 

7.The Board considered your detailed “robust relapse prevention plan” (provided by you on 19 March 2010), in addition to your original relapse prevention plan as part of your application for parole (received on 7 January 2010).  The Board was concerned that your commitment to the ideals of your most recent relapse prevention plan has not been reflected in your behaviour to date whilst in custody.

 

8.The Board noted your release plan and was of the opinion that you have considered and have developed a responsible approach to your planning an offence free future.  The Board also noted the home assessment conducted at your nominated address was recommended as suitable.

 

9.The Board noted that you have progressed to the residential section of your centre.  The Board also noted that your transfer to a low security environment was cancelled upon your breach of discipline on 8 February 2010.

 

The Board considered in desirable that you progress further in the system so that your gradual release to the community would allow you to demonstrate appropriate social skills and your capacity to self-regulate in progressively less structured environments with relative limited supervision. 

 

The Board has not had sufficient opportunity to assess this progress as your transfer to a low security environment was cancelled due to a breach of discipline.  The Board considered an important element in your re-integration process remains outstanding.  You are therefore encourage to demonstrate positive institutional conduct and progress in the system thereby giving the Board increased confidence in your ability to comply with the requirements of a parole order.

Taking into account all of the relevant factors of your case, both positive and negative, the Board formed the view that you posed an unacceptable risk to the community at that time and decided to decline your application for a parole order.

Review application

[10] At the hearing of his application, the applicant presented an outline of argument in which he relied on essentially two contentions.  First, that the respondent failed to have regard to relevant considerations in reaching its decision.  Second, that the respondent acted unreasonably by not taking into account relevant material.  The applicant made oral submissions in support of these two contentions.  In doing so, the applicant presented an articulate and detailed submission to the effect that the Board had failed to take into account relevant considerations, namely that he had complied with all requests of the Board, that, notwithstanding a major breach of discipline on 8 February 2010, he had maintained his trusted position within the Correctional Centre, that he had developed a detailed relapse prevention plan and that he had secure employment with his father upon his release.  The applicant also listed relevant considerations in the grounds of the application.

Relevant considerations

[11] Reliance upon relevant or irrelevant considerations as a ground of judicial review[1] involves consideration of whether a decision-maker has properly applied the law.[2]  Where, as here, the discretion conferred on a decision-maker is in broad terms, it is generally for the decision-maker to decide what is relevant and what is not.[3] 

[12] The respondent’s reasons for decision contains a detailed list of the material taken into account.  Further, the respondent made the following findings of fact:

“1.The Queensland Court Outcomes, printed 10 February 2005, outlined that you have a criminal history for the following offences:

  • Vagrancy Behave in Disorderly Manner;
  • Wilful Destruction;
  • Possess Property that may Reasonably be Suspected of being Tainted Property;
  • Enter Premises and Commit and Indictable Offence and Break;
  • Wilful Damage;
  • Vagrancy use Insulting Words;
  • Obstruct Police Officer;
  • Arson – Structure or Building;
  • Breach of Fine Option Order;
  • Unlawful Use of a Motor Vehicle;
  • Dangerous Operation of a Vehicle whilst adversely affected;
  • Breach of Intensive Correction Order;
  • Breach of Bail Undertaking;
  • Possessing dangerous drugs; and
  • Behave in a Threatening Manner.

2.The Parole Board Assessment Report, dated 31 December 2009, outlined that you have been subject to community based orders previously:

In 1999 the offender was issued two Community Service Orders and one Fine Option Order, all of which were completed without contravention.

The offender received a Fine Option Order in 2001 which was revoked and an Intensive Correction Order in the same year which was revoked after the offender failed to report, failed to complete Community Service committed further offences and absconded from supervision.’

3.The Parole Board Assessment Report, dated 31 December 2009, outlined that you are currently serving a period of imprisonment of eight (8) years for the following offences:

 

Offences

Sentence

Sentence Date

Common assault

1 year

14 March 2006

Enter dwelling with intent by break at night uses/threatens violence whilst armed

5 years

14 March 2006

Would with intent to cause grievous bodily harm

8 years

14 March 2006

Unlawful stalking uses/threatens violence

3 years

14 March 2006

Pre-Sentence Custody:  No Pre-Sentence Custody was declared.

4.The Transcript of Proceedings of the Supreme Court of Queensland at Toowoomba, on 14 March 2006, outlined that Justice Muir stated:

Count 2 on the indictment, the unlawful assault count, arises out of an occasion on which you, having been told by a police officer that the person with whom you had recently finished a relationship had taken out a temporary protection order against you, went in the evening to the house of [the victim].  It seems that you regarded her in some way as being responsible for the collapse of your relationship with your former friend, and also with the consequent action by your former friend to deprive you of any visiting rights in relation to the child of that relationship.

On this occasion, which was on the 22nd of December 2004, you knocked on the locked door, [the victim] called out for you to leave.  You did not.  You went around the back of the house, entered, stormed through the house to where she was sitting in the lounge.  Whilst standing over her, you spoke about the protection order and said words to the effect: it was all her fault, and that you were going to kill her.  She looked over at the telephone and you made another implicit threat.  Her young son came into the room, went to her, she put him on her lap.  You went to strike her with a clenched right fist.  She moved her head and the blow grazed her son.  She screamed at you to leave and you did so, making a threat to kill her as you left.  She smelled alcohol on your breath on that occasion.

As for counts 3 and 5, in the early hours of the morning of the 10th of February, you went to [the victim] house.  She was in bed with her young child beside her.  On the other side of the bed was [2nd victim].  After you entered the house, you took up a steak knife which you found in the laundry and stood outside the bedroom door deliberating for some time as to what your next move would be.  You were endeavouring to determine which of the persons in the bed happened to be [the victim], against whom you held a grudge.

Eventually, with intent, as the jury found, to do some grievous bodily harm, you went up to the bed and struck at the body, which you thought to be [the victim], delivering a blow which on the medical evidence required at least medium force.  Two other blows were delivered to the body, but they caused relatively superficial injuries.  the body happened to be that of [2nd victim].

[2nd victim], it was said in evidence, fought you off or, at least, pushed you off.  He was lying on his back when initially stabbed, but managed to turn, must have raised himself at least into a sitting position and pushed you off with his hands.  At this stage you went and switched on the light saying words to the effect to [2nd victim] that you did not mean to get him; you meant to get her, and that he should blame it on [the victim].  She was the reason why he got stabbed.

You threatened to kill them if, to use your terminology, they dogged on you.

You also said words to the effect that you were standing at the bedroom door for about half an hour because you did not know who he or she was, and that you only had your knife and did not have guns, and if you had they would be dead.

The features which strike me as being of particular relevance to your case are the fact that counts 3, and also count 5, involved a degree of premeditation.  You obviously went to the house in the night with some illegitimate purpose in mind.  Whilst in the house you took a knife and thought about what you were going to do.  So the stabbing was premeditated at least to that degree.  You attempted to stab a defenceless woman asleep in her own bed, and instead stabbed a defenceless man.  The attack, whichever way one looks at it, was cowardly.  The motive was one of revenge.  There has been absolutely no remorse shown by you.

5.The parole Board Assessment Report, dated 31 December 2009, outlined that you deny committing the offence of common assault for which you were convicted.

6.You have had had two breaches of prison discipline.  The first breach occurred on 16 June 2008 when you returned a positive breath test for alcohol.  The second breach occurred on 8 February 2010 when you were found in the possession of another offender’s possessions.  This breach was treated as major and as a result you received three (3) days separate confinement and your transfer to a low security facility was cancelled.

7.The Parole Board Assessment Report, dated 31 December 2009, outlined that you have maintained a high security classification.  However, the Board was informed that you now have a security classification of low and that you are residing in the Residential section of your Centre.

8.The Home Assessment Report, dated 23 November 2009, outlined that the residence of 171 Hume Street, Toowoomba was assessed by Probation and Parole as suitable for the purposes of parole supervision.  The Parole Board Assessment Report, dated 31 December 2009, outlined that you also have an alternative plan for accommodation in the Toowoomba area.

The report outlined that you have employment available with your father as a handyman upon your release.  In the report you outline that you have extensive experience in labouring positions and you plan to learn the administrative side of your father’s business.

In addition the report states that you did not have any money saved currently and that you will be relying on Centrelink crisis payments and the support of your family upon release.

9.The Parole Board Assessment Report, dated 31 December 2009, outlined that you have written a relapse prevention plan which you included as part of your application for parole.  In the parole panel interview you state that you wrote the plan yourself utilising the information gained from your participating in the DO IT Program.  The parole Panel Members that undertook the interview outline that you were able to demonstrate adequate internalisation of the concepts detailed in your written relapse prevention plan.

You provided a copy of your ‘Robust Relapse Prevention Plan’ on 19 March 2010 for the Board’s consideration.

10.Your submission, dated 6 June 2010, outlined factors you wanted the Board to consider:

  • That you have successfully completed the following courses:
    • Work effectively in a Business Environment;
    • Perform CPR;
    • Perform Emergency First Aid; and
    • Participate in Environmental Sustainable – Practice.

11.Your submission, dated 24 June 2010, outlined additional factors you wanted the Board to consider in response to its preliminary decision:

  • That you have successfully completed all recommended rehabilitation programs that you have been offered whilst in prison;
  • That you have satisfied the Board’s requirements for a written release and robust relapse prevention plan;
  • That you have not been afforded the opportunity to develop cognitive skills acquired through other rehabilitative programs;
  • That you believe the rule or policy surrounding the requirement to undertake programs whilst in custody establishes a valid ground for Judicial Review (and you linked applicable case law);
  • That you are prepared to comply with recommended programs in the community;
  • That you have a court order from the Family Court of Australia to which you are bound if you have any hope of a relationship with your daughter;
  • That you have repeatedly requested to be transferred to a prison farm and that you have been told that you must exhibit acceptable behaviour for a period of six months from 8 February 2010;
  • That if you do succeed in exhibiting positive behaviour in the allotted period and are considered for transfer to a low security facility then you have satisfied the Board’s requirements concerning a low security environment;
  • That you are already a low-security classification and accommodated in residential accommodation;
  • That residential accommodation is considered a low security environment for specific offenders; and
  • That you have done all you can whilst in custody to rehabilitate yourself to a suitable level to be released into the community.”

[13] A consideration of the respondent’s reasons for decision indicates the respondent had proper regard to relevant considerations, including the applicant’s conduct in the Centre, his plans on release, and his further employment.  The applicant’s complaint amounts to no more than a contention that the respondent gave too little attention to the matters relied upon by him.  The comparative importance to be given to those considerations was ultimately a matter for the respondent.[4]  The applicant’s contentions do not establish the respondent improperly exercised its power by failing to take account of relevant considerations.

Unreasonableness

[14] The applicant contends the respondent’s exercise of its power was so unreasonable that no reasonable person could so exercise the power.[5]  This ground appears to rely on the principles enunciated in Associated Provincial Picture Houses Ltd v Wednesbury Corporation.[6]  To succeed in such a contention, it is not sufficient for the applicant to merely establish that another parole board may reasonably have reached a different decision.  The applicant must establish that the decision made by the respondent was so unreasonable that no reasonable parole board could so exercise that power.  It is a difficult ground to establish, particularly where the criterion of which the decision-maker is required to be satisfied turns upon factual matters upon which reasonable minds could reasonably differ.[7] 

[15] Having considered the matters relied on by the applicant in support of this ground, and considered the matters relied upon by the respondent in reaching its decision, I am satisfied the applicant has not made out this ground.  The decision made by the respondent was reasonably open to it in the exercise of its power.

[16] The applicant’s application for review also relied on other grounds not argued in his outline of argument or his oral submissions.  I shall deal with each in turn.

Breach of natural justice

[17] The applicant contends that in making its decision the respondent breached the rules of natural justice.[8]  The grounds for the application, in support of that contention, do not contend the respondent relied upon material the applicant was given no opportunity to make submissions in relation to or that he was denied an opportunity to make submissions.  However, at the hearing, the applicant tendered two letters, one purporting to be a copy of a letter sent by the respondent to his ex-partner and the other being a response to his request for access to the letter sent by his ex-partner, pursuant to freedom of information legislation.  The letter, purported to have been sent to his ex-partner, is unsigned and contains the following:

“The Queensland Parole Board at its meeting conducted 12 March 2010 considered your submission dated 25 February 2010.

The Board noted the contents of your submission.”

[18] In its statement of reasons dated 29 June 2010, the respondent listed the material relied upon by it in reaching its decision to decline the applicant’s parole application.  A submission from the applicant’s ex-partner was not part of that material.  Further, there is no evidence before me to suggest the respondent relied on that material in making its decision on 25 June 2010. 

[19] The rules of natural justice require the applicant be given an opportunity to be informed of the material relied upon by the respondent and to make submissions in relation thereto.  The applicant was afforded that opportunity.  The respondent also afforded him the opportunity to make further submissions after it had reached a preliminary view that he remained an unacceptable risk to the community.  The applicant provided those further submissions and those submissions were considered by the respondent prior to making its final determination. There is no substance to an assertion the respondent’s decision was made in breach of the rules of natural justice.

Failure to follow procedures

[20] The applicant contends the respondent failed to follow procedures it was required by law to observe in making its decision.  The grounds for this assertion are:

“9.That it is mandatory requirement are meant to be strictly observed s 180(3)(a), of CSA 2006; [sic]

 

10.That the exercise of power by the respondent was so unreasonable that no reasonable person could so exercise the power and maintain their trust in the respondent.

 

11.That the conduct of the respondent was an unlawful act by failure to treat the person with humanity and respect.

 

12.Nowhere in parole applications specifies the applicant must progress to low security facilities (farm) where the sex offenders can get parole from WCC where the applicant is currently reside. [sic]

 

13.Nowhere in the parole application does it specific that criteria guidelines for the relapse plan.” [sic]

[21] The material relied upon by the applicant does not establish a basis to find the respondent failed to follow procedures required to be observed by it. His assertions to the contrary in the grounds are not supported by any evidence. This ground fails.

Irrelevant considerations

[22] The applicant contends the respondent’s decision involved an improper exercise of power in that the respondent had regard to irrelevant considerations.[9]  The grounds in support of this assertion are:

“The respondent improperly placed greater weight on the following factors:

 

14.That the fact that the applicant is a prisoner and therefore in the wrong simply because of that fact.

 

15.That the respondent relied on the applicant in providing robust ‘relapse preventive plan’ (empathy, factors) after the Respondent considers the application for parole which is not within the guidelines of form – 29, s 180 (30) (a);

 

16.That a breach of s 180(3) (a) ‘Relapse Preventive Plan’.

 

17.That the respondent cannot fused parole because the applicant has not progressed to low security facility if regarded an untreated offender or has outstanding treatment needs (fails to assess the merit of case).” [sic]

[23] The applicant’s contention the respondent improperly exercised its power on the basis it took account of irrelevant considerations amounts to no more than that the respondent gave greater weight to one factor over another.  That is properly a matter for the decision-maker.  This ground must fail.

Improper purpose and bad faith

[24] The applicant contends the respondent’s decision was an improper exercise of its power[10] in that it exercised its powers “corruptly” and required him to submit a robust relapse plan without relapse prevention plan guidelines when it was not required by law.  There is no substance to this ground.  The respondent is given a broad discretion in determining whether applicants for parole present an unacceptable risk to the community if released on parole.  A request for details of a relapse prevention plan is a matter properly within that discretion.  There is no basis to find that requirement involved a corrupt exercise of the Respondent’s power. This ground fails.

Exercise of power in accordance with a rule or policy

[25] The applicant contends the respondent applied a predetermined policy or rule[11] that he must lodge a robust relapse plan when the respondent must not act under a policy or dictation and cannot refuse parole because the applicant has not progressed to a low security facility.

[26] The respondent reached its decision having considered the relevant circumstances. There is no basis to find its decision was made without proper consideration of its merits in accordance with a policy or rule.[12]  This ground fails.

No evidence to otherwise justify the decision

[27] The applicant relies on similar matters to those referred to in respect of the exercise of the discretionary power in accordance with a rule or policy to support this ground.  There is no substance to this ground.  The material relied upon by the Respondent was material capable of supporting its decision.

[28] The applicant has failed to establish any basis in law to set aside the decision of the respondent made on 25 June 2010.

[29] The application for statutory review is dismissed.

Footnotes

[1] Judicial Review Act 1991, ss 20(2)(e), 23(b)

[2] Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 at 348.

[3] Australian Retailers Association & Ors v Reserve Bank of Australia (2005) 148 FCR 446 at 577 [525].

[4] Elias v Commissioner of Taxation (2002) 123 FCR 499 at 511 [57]

[5] Judicial Review Act 1991, ss 20(2)(e), 23(g)

[6] [1948] 1 KB 223

[7] Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611 at 654 [137].

[8] Judicial Review Act 1991, s 20(2)(a)

[9] Judicial Review Act 1991, ss 20(2)(e), 23(a)

[10] Judicial Review Act 1991, s 23(d)

[11] Judicial Review Act 1991, s 23(f)

[12] cf Gough v Southern Queensland Regional Parole Board [2008] QSC 222.

Close

Editorial Notes

  • Published Case Name:

    Keller v Parole Board

  • Shortened Case Name:

    Keller v Parole Board

  • MNC:

    [2010] QSC 310

  • Court:

    QSC

  • Judge(s):

    Boddice J

  • Date:

    27 Aug 2010

Litigation History

No Litigation History

Appeal Status

No Status