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Hall v Central and Northern Queensland Regional Parole Board

 

[2015] QSC 78

 

SUPREME COURT OF QUEENSLAND

 

CITATION:

Hall v The Central and Northern Queensland Regional Parole Board [2015] QSC 78

PARTIES:

DARYL DAVID HALL

(applicant)

v

THE CENTRAL AND NORTHERN QUEENSLAND REGIONAL PAROLE BOARD

(respondent)

FILE NO/S:

SC No 9308 of 2014

DIVISION:

Trial Division

PROCEEDING:

Originating Application

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

9 April 2015

DELIVERED AT:

Brisbane

HEARING DATE:

2 April 2015

JUDGE:

Philip McMurdo J

ORDER:

The application for judicial review is refused.

CATCHWORDS:

ADMINISTRATIVE LAW – JUDICIAL REVIEW – REVIEWABLE DECISIONS AND CONDUCT –REVIEW OF PARTICULAR DECISION – GENERALLY – where the applicant sought judicial review of the respondent’s decision to refuse parole – whether the respondent made a factual error, took into account irrelevant considerations or failed to consider necessary considerations – where the respondent made a factual error in concluding that the applicant had been involved in a riot – factual error not in itself ground for review under a statutory scheme – where the factual error could not be characterised as taking into account an irrelevant consideration or failure to consider a necessary consideration  

ADMINISTRATIVE LAW – JUDICIAL REVIEW – GROUNDS OF REVIEW – ERROR RELATING TO FACTS – applicant sought judicial review of the respondent’s decision to refuse parole – whether the respondent made a factual error – where the respondent made a factual error in concluding that the applicant had been involved in a riot – factual error not in itself ground for review under a statutory scheme – where the factual error did not affect the respondent’s power – factual error not one that could be characterised as taking into account an irrelevant consideration or failure to consider a necessary consideration

ADMINISTRATIVE LAW – JUDICIAL REVIEW – GROUNDS OF REVIEW – IRRELEVANT CONSIDERATIONS – applicant sought judicial review of the respondent’s decision to refuse parole – where the respondent made a factual error in concluding that the applicant had been involved in a riot – factual error not one that could be characterised as taking into account an irrelevant consideration

ADMINISTRATIVE LAW – JUDICIAL REVIEW – GROUNDS OF REVIEW – RELEVANT CONSIDERATIONS – applicant sought judicial review of the respondent’s decision to refuse parole – respondent made a factual error in concluding that the applicant had been involved in a riot – factual error not one that could be characterised as failure to consider a necessary consideration

Judicial Review Act 1991 (Qld)

Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321

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

COUNSEL:

The applicant appeared on his own behalf

M J Woodford for the respondent

SOLICITORS:

The applicant appeared on his own behalf

Crown Solicitor for the respondent

  1. The applicant seeks judicial review of the respondent’s decision, dated 12 August 2014, to refuse him parole.  He was sentenced in September 2013 to a term of four and a half years’ imprisonment for an offence of trafficking in dangerous drugs.  He became eligible for parole on 10 August 2014.  His term will expire on 10 December 2016. 
  2. He applied for parole on 14 February 2014.  On 9 April 2014, the respondent wrote to him to say that it would defer its decision pending the receipt of further information.  In particular, the respondent was wanting information about the availability of a rehabilitative program called the Stepping Up Program. 
  3. On 24 June 2014, the respondent again considered his application and formed a preliminary view that he was an unacceptable risk to the community if released at that time.  The respondent wrote to the applicant on 2 July 2014 setting out its concerns.  In particular, it raised these matters:  the applicant had an extensive criminal history of drug and property offences, he had previously received the benefit of community supervision but had reoffended, he had a record of unacceptable prison behaviour, he ought to participate in the Stepping Up Program and the applicant’s proposed “relapse prevention plan” was inadequate.  As to the applicant’s prison behaviour, the respondent wrote:

“The Board noted advice that you were placed on an Intensive Management Plan for your involvement in a riot in August 2013 and the Board considers you pose an unacceptable risk to the community until such time that you can lower your classification and remain breach and incident free.”

  1. The applicant responded by a letter which the Board received on 29 July 2014, in which he referred to each of the respondent’s concerns.  As to his prison behaviour, the applicant wrote:

“The incident that I was involved in, in August 2013 was not considered a riot but rather a protest.  I was caught up in it unintentionally and my minor role was passive.  I was not breached over the incident.”

  1. The respondent’s decision was communicated by a letter to the applicant dated 22 August 2014, in which the respondent said that it had determined that there was no information contained in that letter from the applicant “which would alleviate its concerns as identified … in the correspondence dated 02 July 2014”.  The respondent there stated that for the reasons set out in its letter of 2 July 2014 and in this letter, the respondent had decided that the applicant would be an unacceptable risk to the community if released on parole at that time.  It agreed to the applicant bringing a new application within six months.
  2. The applicant requested a Statement of Reasons which was provided on 30 September 2014.  The respondent there detailed the same concerns as it had expressed in its letter of 2 July 2014.  As to the applicant’s prison behaviour, the respondent wrote:

“7.The Applicant is currently classified as high security and is accommodated at the Maryborough Correction Centre in a secure mainstream unit.  The Board noted the Applicant’s custodial behaviour has been unacceptable.  The Applicant was placed on an Intensive Management Plan following his involvement in a riot in August 2013.  This led the Board to have concerns about how the Applicant would be able to cope in the community without the constant supervision that incarceration provides.  The Board is of the opinion that a successful progression to residential will enable the Applicant to demonstrate his ability to behave in a less structured environment.  The Board considers the Applicant to be an unacceptable risk to community safety until he can lower his security classification and remain breach and incident free.”

The respondent there wrote that it took into account the applicant’s submissions received on 29 July 2014 but determined “that there was no information contained within the submission that would alleviate its identified concerns”. 

  1. The applicant, who argued his own case, raised by his written submissions many grounds for review under Part 3 of the Judicial Review Act 1991 (Qld).  Some of those submissions seemed to be drawn from other cases without having any particular relevance to the present case and were expressed in terms which simply referred to the terms of s 20(2)(a), (e) and (f) and s 23(b), (f) and (g).  For example, the applicant submitted that the respondent had “not given proper and appropriate merit to his particular circumstances” and had thereby exercised its discretionary power in bad faith without suggesting a factual basis for that submission.  He also submitted that the decision was not upon the merits of his particular case, but was in accordance with a rule or policy.  But that rule or policy was not identified by the applicant’s submission and that argument cannot be accepted. 
  2. The applicant’s more particular submissions, made by reference to the facts and circumstances of this case, were as follows.  He submitted that he had completed “all recommended intervention programs” which had been considered suitable in his case.  That submission referred to the fact, which occurred only after the subject decision, that the applicant has participated in the (renamed) equivalent of the Stepping Up Program. 
  3. He submitted that in considering his previous criminal history and his history with community based orders, the respondent had failed to take into account a relevant consideration, namely his youth and immaturity at those times.  But it does not appear that the respondent overlooked that factor. 
  4. The applicant submitted that his “relapse prevention plan is solid and tailored to his individual needs and is in the format used by intervention program facilitators”.  That submission does not reveal an error by the respondent of a kind which would provide a ground for review under the Act. 
  5. He submitted that the respondent had not taken into account another relevant consideration, which was the “relatively short period of time left” in his term of imprisonment and the risk to the community if he was ultimately released without supervision.  It is true that this was not a consideration to which the respondent specifically adverted in its correspondence or Statement of Reasons.  However, the respondent’s decision was made at a point which was about 28 months prior to the expiry of his term and at that stage, the respondent was not obliged to consider that matter. 
  6. The applicant submitted that there was a ground for review from the fact that he had never been charged with the offence of “riot”.  The respondent had not found that the applicant had been charged with any criminal offence involving a riot.  But the respondent did find that he had been involved in a riot in the prison in August 2013.  And this was a matter which had influenced the respondent to conclude that he was then an unacceptable risk to the community if released.
  7. The respondent was mistaken in thinking that the applicant had been involved in a riot.  The true position was expressed in a report for the respondent dated 15 April 2014 as follows:

“The prisoner was involved in a Major Disturbance - Non-Violent Demonstration.  Incident on the 2[nd] of August 2014.  [The] prisoner became involved with a group of prisoners who failed to comply with [a] direction and refused to exit the exercise yard. 

As a result of this incident, the prisoner was placed on an Intensive Management Plan.  Case notes indicate that the prisoner complied with the plan and returned to normal accommodation routine at the end of the plan.  Apart from the abovementioned incident prisoner Hall has remained breach free during this period of incarceration.”

Therefore, the applicant’s conduct was not as serious as the respondent described.  On no meaning of the word was he involved in a “riot”.  However, the same report to the respondent did suggest that the incident was relevant to the question of whether his immediate release would create an unacceptable risk to the community.  It referred to the applicant having “demonstrated unacceptable institutional behaviour during this custodial episode”.  With this and other matters considered, that report recommended to the respondent that the applicant not be released at that time.  In that paragraph of the Statement of Reasons which is set out above where the respondent wrote that “the applicant [was] an unacceptable risk to community safety until he can lower his security classification and remain breach and incident free”, it was effectively repeating a recommendation in that report. 

  1. Nevertheless, the respondent appears to have been particularly concerned by this incident, as reflected by its statement in that same paragraph of the Reasons that the applicant’s “involvement in a riot” had itself led the respondent to have concerns about how the applicant would be able to cope in the community without the constant supervision that incarceration provides”.  It is difficult to think that the respondent could have considered the incident to ground a concern as stated by the respondent without the respondent mistakenly thinking that he had been involved in a riot.  In other words, I infer that the respondent’s mistake was not simply in the use of the word “riot”, but was instead a mistake as to the facts of the incident and thereby as to the character and significance of the applicant’s conduct. 
  2. The question then is whether this factual error of the respondent provides a ground for review of its decision.  An error as to a fact is not of itself a ground for review under a statutory scheme such as Part 3 of the Judicial Review Act.[1]  And this was not a factual error which affected the respondent’s power, in that the respondent was able to refuse parole without finding (incorrectly) that the applicant had participated in a riot.  Nor, in this case, was the factual error of a kind which could be properly characterised as the taking into account of an irrelevant consideration or a failure to consider a necessary consideration. 
  3. Nor did the respondent’s error make its decision one which was an unreasonable exercise of power in the sense of s 23(g) of the Act.  The other reasons given by the respondent, absent the fact that the applicant had been involved in a less serious incident which was mistaken for a riot, still provided a rational basis for this decision precluding the availability of a ground under s 23(g). 
  4. Consequently, no ground for review of the decision has been established and the application must be refused.

Footnotes

[1] As explained by Mason CJ in Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 341, approved by McHugh, Gummow and Hayne JJ in Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 at 344.

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Editorial Notes

  • Published Case Name:

    Hall v The Central and Northern Queensland Regional Parole Board

  • Shortened Case Name:

    Hall v Central and Northern Queensland Regional Parole Board

  • MNC:

    [2015] QSC 78

  • Court:

    QSC

  • Judge(s):

    McMurdo J

  • Date:

    09 Apr 2015

Litigation History

No Litigation History

Appeal Status

No Status