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  • Unreported Judgment

Taylor v Southern Queensland Parole Board

 

[2016] QSC 26

 

SUPREME COURT OF QUEENSLAND

 

CITATION:

Taylor v Southern Queensland Parole Board [2016] QSC 26

PARTIES:

DARREN RODNEY TAYLOR

(applicant)

v

SOUTHERN QUEENSLAND REGIONAL PAROLE BOARD

(respondent)

FILE NO/S:

Brisbane No BS10447 of 2015

DIVISION:

Trial Division

PROCEEDING:

Applicant for Statutory Order of Review

ORIGINATING COURT:

Supreme Court of Queensland at Brisbane

DELIVERED ON:

29 February 2016

DELIVERED AT:

Brisbane

HEARING DATE:

15 February 2016

JUDGE:

Flanagan J

ORDER:

1. The application for a statutory order of review filed 19 October 2015 is dismissed.

2. I will hear the parties as to costs.

CATCHWORDS:

ADMINISTRATIVE LAW – JUDICIAL REVIEW – GENERALLY – where applicant convicted of sexual offences against children – where applicant sought parole pursuant to Corrective Services Act 2006 (Qld) – where application for parole refused – where applicant seeks judicial review of decision of parole board.

ADMINISTRATIVE LAW – JUDICIAL REVIEW – GROUNDS OF REVIEW – ERROR OF LAW – where applicant refused parole – where at time of sentencing parole eligibility date set by trial judge – where applicant submits that there was no new information before the parole board – whether operation of s192 of Corrective Services Act 2006 (Qld) means that parole board is not bound by the parole eligibility date set by trial judge.

ADMINISTRATIVE LAW – JUDICIAL REVIEW – GROUNDS OF REVIEW – RELEVANT CONSIDERATION – where at time of sentencing parole eligibility date set by trial judge – where applicant submits that parole eligibility date is a relevant consideration – whether parole board failed to have regard to relevant consideration.

ADMINISTRATIVE LAW – JUDICIAL REVIEW – GROUNDS OF REVIEW – FETTERING DISCRETION – where parole board required psychological assessment for the purposes of determination – where applicant refused psychological assessment – whether parole board fettered its discretion by applying a rule or policy without having regard to the merits of the case.

ADMINISTRATIVE LAW – JUDICIAL REVIEW – GROUNDS OF REVIEW – UNREASONABLENESS – where applicant submits that parole board decision to refuse application was unreasonable – whether parole board’s decision to refuse application was so unreasonable that no reasonable person could make such a decision.

ADMINISTRATIVE LAW – JUDICIAL REVIEW – GROUNDS OF REVIEW – PROCEDURAL FAIRNESS – GENERALLY – where applicant submits that there was a breach of natural justice – where applicant refused to provide consent to release medical forms to psychologist – where parole board indicated it would defer determination of application until psychological assessment undertaken – whether parole board failed to afford applicant procedural fairness.

ADMINISTRATIVE LAW – JUDICIAL REVIEW – GROUNDS OF REVIEW – IRRELEVANT CONSIDERATIONS – where applicant had been previously been convicted of two counts of serious assault – where parole board decision makes reference to previous convictions for serious assault – where guidelines require parole board to have regard to relevant factors – where guidelines specify prior criminal history as relevant factor – whether the parole board had regard to irrelevant considerations.

ADMINISTRATIVE LAW – JUDICIAL REVIEW – GROUNDS OF REVIEW – BAD FAITH – where applicant submits that the parole board did not attempt to undertake its task in fair and diligent manner – where applicant alleges the parole board undertook its task in bad faith – where applicant relies on other alleged errors to establish bad faith – whether the parole board exercised its discretion in bad faith.

Corrective Services Act 2006 (Qld) s 3, s 3(2), s 184(3), s 192, s 193, s 200, s 227

Judicial Review Act 1991 (Qld) s 20, s 20(2)(f), s 20(2)(e), s 22(e), s 23(a), s 23(d), s 23(f), s 23(g)

Batts v Department of Corrective Services [2002] QSC 206, considered

Calanca v Queensland Parole Board [2013] QSC 294, applied

Minister for Immigration and Citizenship v Li (2013) 249 CLR 332; [2013] HCA 18, applied

Huebner v Queensland Parole Board, unreported, Dalton J, SC No10332 of 2015, 19 November 2015, considered

Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259; [1996] HCA 6, applied

SCAS v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 397, applied

COUNSEL:

The applicant appeared on his own behalf

A Nicholas for the respondent

SOLICITORS:

The applicant appeared on his own behalf

Crown Solicitor for the respondent

Introduction

  1. The applicant seeks judicial review of the decision of the Southern Queensland Regional Parole Board made 10 June 2015 refusing the applicant’s parole application.  The application for review is brought pursuant to s 20 of the Judicial Review Act 1991 (Qld) (JR Act).  For reasons which follow, the application for statutory order of review should be dismissed. 

Background

  1. The applicant is serving seven years imprisonment for a number of offences.  On 14 November 2012 in the District Court he was sentenced to six years imprisonment for each of three rape offences concerning a child of approximately four years of age.  He also received a sentence of four years imprisonment for indecent treatment of the child.  Those sentences were ordered to be served concurrently.  He was also sentenced to imprisonment for one year for the possession of child exploitation material.  That sentence was ordered to be served cumulatively on the six year term, making a total of seven years imprisonment.  The sentencing Judge ordered that the applicant be eligible for release on parole after serving two and a half years.  Her Honour observed:

“As I say, that will be dependent upon you completing appropriate rehabilitative programs and it will be up to the parole authorities.  On my calculation that brings the date for eligibility to apply for parole to 11th of May 2015.”[1]

  1. In sentencing the applicant her Honour accepted that the applicant suffers from paedophilia.  Her Honour further noted:

“… clearly it is important for both you and the community that whilst you are in custody appropriate programs and counselling are offered to you, and you are unlikely to receive parole until you have completed those sorts of programs.  So I do urge you to take them seriously and to embrace whatever is offered to you in that regard.”[2]

  1. On 12 November 2014 the applicant applied for a parole order.[3]  Ms Balzer, a Senior Advisor of the Parole Board Secretariat, who affirmed an affidavit in these proceedings, has exhibited the applicant’s application for a parole order.  In paragraph 6 of her affidavit, affirmed 3 December 2016, Ms Balzer implicitly asserts that a document entitled “Getting Started: Preparatory Program (GSPP) Completion Report” constitutes part of the parole application.  The applicant, in his written submissions,[4] states that the Completion Report post-dates the parole application by 40 days.  The applicant therefore submits that the Completion Report was not lodged by him as part of his parole application.  The Board accepts that the Completion Report was not lodged as part of the application for parole.[5]  Both parties accept that the Completion Report was a document that was before the Board for the purposes of it determining the parole application.  The Completion Report notes that during the applicant’s participation in this course he maintained a stance of categorical denial in relation to the offences.[6]  The Completion Report states the following recommendation:

“Based on his current stance of categorical denial in relation to the current offences, it is considered that prisoner Taylor is not suitable for participation in future treatment programs.  He is recommended to contact Program Delivery Officers should his stance change in the future.”[7]

  1. The Board first considered the applicant’s parole application on 14 January 2015.  The Board requested that a psychological assessment be prepared and deferred consideration of the application until that assessment had been received.  The applicant was informed, in writing, that the Board had determined to request a psychological assessment and that the applicant would be asked to sign a consent form authorising a psychologist, on behalf of the Board, to have access to his medical file.[8] 
  2. On 28 January 2015 the Board was informed that the applicant had declined to sign a consent form to authorise a psychologist to have access to his medical file. The applicant’s application was again considered by the Board on 18 February 2015.  The Board advised the applicant that it was awaiting his response in relation to the signing of a medical consent form which would enable a psychological assessment to be prepared.[9]  On 3 March 2015 the Board was again informed that the applicant was unwilling to sign the consent form.  The reasons for this refusal were identified by the applicant in a letter dated 4 March 2015:

“…I am unsure as to what part of the medical records that are required, as those records contained information on medical procedures such as dental and optical.  I fail to see their relevance to a psychologist.  At this stage I am happy to discuss with him/her as to what part of the records they may require and then give the matter further consideration.”[10]

  1. On 11 March 2015 the Board again deferred consideration of the application to enable the applicant to reconsider his position concerning the consent form required for psychological assessment to be undertaken.  The applicant maintained his position with respect to signing the consent form and further explained his stance in a letter dated 23 March 2015:

“I refer the Board to my letter dated 12 March 2015, in that I expressed my concerns in relation to what part of my medical records were required.  I feel that there are parts of my medical records that have no value to any psychological assessment.  A response to that letter to date remains unanswered and is not even referred to in your current correspondence. 

Again I ask the Board what parts of my medical records are required by any visiting psychologist and upon receipt of that information will give consideration to signing the consent form for access to the relevant information.  Should the Board wish to further ignore or fail to respond to what I consider a reasonable request then I will have little choice but decline the request to release the whole of my medical file.

The Board should note that given the situation, where I was not in a position to sign a consent form due to insufficient information being supplied by the Board, I am at this stage prepared to submit to a report being prepared for the Board, and see no reason why such a course of action could not proceed regardless of a consent form being signed or not.”[11]

  1. On 1 April 2015 the Board again considered the applicant’s application.  The Board noted that the applicant had, to date, refused to sign the consent form so that his records could be released to the psychologist commissioned to provide a report to the Board.[12]  By letter dated 2 April 2015 the Board wrote to the applicant requesting that he indicate whether or not he would provide consent to the release of his medical file:

“You have been convicted of serious offences, including rape.  As you have applied for parole, the Board is obligated to make an informal decision about your risk to the community should you be released.  It is for this reason that the Board has sought an assessment by a Psychologist in whom the Board has confidence. 

Should you not cooperate and enable the Psychological assessment to be completed the Board will have no option but to make a decision based on the material it has to hand.  In those circumstances, that decision will most likely be the most conservative decision the Board could make in the interest of community safety.”[13]

  1. In spite of this request the applicant remained adamant that he would not sign the relevant consent form.[14]  The applicant in a letter dated 12 April 2015[15] further identified his concerns in respect of signing the relevant consent form:

“Irrespective of a person’s circumstances, whether they are a prisoner or a member of the community, it is a fundamental right to be appraised as to how a person’s personal records may be used and whom may have access to them.  The signing of a medical request form could theoretically enable anyone connected with the Parole Board access to them including but not limited to, prison staff, secretaries, sentence management, etc.  These are concerns that I have raised that to date have not been dealt with.  …

Again, I would like to make it perfectly clear to the Board, that at this stage, time permitting, I am prepared to be assessed by a psychologist, if the Board chooses not to proceed with an assessment because of the lack of medical records, due to privacy issues remaining unanswered, then those are the choices of the Board, not mine.”

  1. The Board, by letter dated 24 April 2015, informed the applicant that it was of the preliminary view that his application should be declined.  By reference to the Parole Board Guidelines to the Queensland Regional Parole Boards, the Board identified the factors by which it reached its preliminary view and that the risk level that the applicant presented to the community was unacceptably high.  Those factors included that the applicant had not made full admissions regarding his guilt and was not currently able to participate in further sexual offending assessment programs.  The Board further noted that because of the applicant’s refusal to sign the consent form he had not been psychologically assessed.  The letter invited the applicant to make any further submissions in support of his application.[16] 
  2. By letter dated 7 May 2015[17] the Board informed the applicant that his file would only be made available to the nominated psychologist. In the same letter the Board noted that it was the psychologist who would determine which information in the applicant’s medical file was of relevance to his or her assessment.  The Board stated that it would be inappropriate for the Board to make a determination of what information on the applicant’s medical file was relevant to an assessing psychologist.  The Board however made the following offer to the applicant:

“Should you now decide to consent to the release of the Q Health file for the purpose of a psychological assessment, having regard to the advice the Board has provided via this letter, the Board will defer any further decision until it has received the psychological report.”

  1. By letter dated 6 May 2015[18] the applicant made a number of submissions in relation to the Board’s preliminary view expressed in its letter dated 24 April 2015.  Relevantly, the applicant did not provide any form of consent for an assessing psychologist to have access to his medical file.
  2. At its meeting on 10 June 2015 the Board considered the application for parole together with the submissions received from the applicant on 6 May 2015, 13 May 2015 and 24 May 2015.  The Board decided to decline the applicant’s application for parole.[19] 

Statement of Reasons

  1. On 8 July 2015 the Board provided a Statement of Reasons for its decision of 10 June 2015.  Relevantly, the Statement of Reasons states[20]:

Findings on material questions of fact

  1. The Applicant is currently serving a period of seven years imprisonment which consists of six months for the offences of Serious assault – assault/resist/obstruct police officer/person acting in aid of police officer (3), 3 months for the offence of Assault of obstruct police officer, four years for the offences of Indecent treatment of child under 16 (take photograph etc) child under 12 years (12), Indecent treatment of child under 16 (permit) child under 12 years (2), Indecent treatment of child under 16 (procure to commit) child under 12 years (3) and Indecent treatment of children under 16 child under 12 (2) and six years for the offences of Rape (3).
  1. The Applicant was identified by the Department of Corrective Services as someone who would benefit from undergoing assessment to determine suitability to participate in a sexual offending treatment program during this period of imprisonment.  The Board noted that the Applicant completed the Getting Started: Preparatory Program.  Following completion of the program, the Applicant’s innocence stances has precluded him from completing any further sexual offending assessments and/or programs.
  1. Following consideration of the above information and to assist in its decision making regarding the Applicant’s future risk of reoffending, the Board requested that an assessment of the Applicant be completed by an experienced psychologist.  However, due to the Applicant refusing to sign a medical consent form which informs the psychological assessment, the request for the assessment has not progressed.
  1. The Board is concerned that the Applicant may have outstanding treatment requirements which may assist the Applicant in his understanding of the reasons for his behaviours which have led to his current conviction in the past and assist in developing strategies to prevent similar situations when released.  It is not a requirement that prisoners must complete requested assessments before being eligible for release on Parole however in this case, the Board has determined it would be assisted in determining the potential risk to the community if the Applicant were to be released, by the Applicant participating in a psychological assessment.

Reasons for decision

Based on the findings listed above, including the serious nature of the offences for which he has been convicted, the length of sentence he is serving and the Boards inability to obtain an assessment regarding his future risk of reoffending, the Board considered the Applicant was an unacceptable risk to the community and decided to refuse his application for parole.”

Grounds of review

  1. Seven grounds of review are advanced by the applicant:
    1. the Board failed to consider a recommendation of the sentencing court in setting a parole eligibility date;
    2. the Board improperly fettered its discretion by requiring the applicant to undertake a psychological assessment prior to being considered for parole;
    3. the Board’s decision was so unreasonable that no reasonable person could make such a decision;
    4. there was a breach of the rules of natural justice in that the Board acted prior to receiving responses to queries asked of it;
    5. the Board took into account an irrelevant consideration in that it considered irrelevant convictions as part of the current sentence;
    6. there was no evidence to justify the decision in that the Board relied on a fact that did not exist, namely that convictions for serious assault formed part of the current sentence;
    7. the Board exercised its discretionary power in bad faith.

Legislative framework

  1. The sentencing judge fixed the applicant’s parole eligibility date at 11 May 2015.  Accordingly, his eligibility arose under section 184(3) of the Corrective Services Act 2006 (CS Act).[21]  The sentencing judge’s order does not give a right to release on parole but establishes the earliest date from which he may be granted parole.
  2. Section 3 of the CS Act provides:

Purpose

(1)the Purpose of corrective services is community safety and crime prevention through the humane containment, supervision and rehabilitation of offenders.”

  1. Section 192 of the CS Act provides:

192  Parole board not bound by sentencing court’s recommendation or parole eligibility date

When deciding whether to grant a parole order, a parole board is not bound by the recommendation of the sentencing court or the parole eligibility date fixed by the court under the Penalties and Sentences Act 1992, part 9, division 3 if the board –

(a)receives information about the prison that was not before the court at the time of sentencing; and

(b)after considering the information, considers that the prisoner is not suitable for parole at the time recommended or fixed by the court.”

  1. Sections 193(1) and (5) of the CS Act provide:

193 Decision of parole board

(1)A parole board required to consider a prisoner’s application for a parole order must decide—

(a)to grant the application; or

(b)to refuse to grant the application.

(5)If the parole board refuses to grant the application, the board must—

(a)give the prisoner written reasons for the refusal; and

(b)if the application is for a parole order other than an exceptional circumstances parole order—decide a period of time, of not more than 6 months after the refusal, within which a further application for a parole order (other than an exceptional circumstances parole order) by the prisoner must not be made without the board’s consent.”

  1. Section 227(1) provides:

227  Guidelines

The Minister may make guidelines about the policy to be followed by the Queensland board when performing its function.”

  1. The Queensland Parole Board Guidelines to the Queensland Regional Parole Board (Guidelines) state:[22]

“1.2When considering whether a prisoner should be granted a parole order, the highest priority for the Regional Parole Board (‘the Regional Board’) should always be the safety of the community.

2.1When deciding the level of risk that a prisoner may pose to the community, the Regional Board should have regard to all relevant factors, including, but not limited to:

(a)the prisoner’s prior criminal history and any patterns of offending;

(b)the likelihood of the prisoner committing further offences;

(e)the recommendation for parole, parole eligibility date, or any recommendation or comments of the sentencing court;

(k)recommended rehabilitation programs or interventions, and the prisoner’s progress in addressing the recommendations.”

Ground 1: the Board failed to take into account a relevant consideration

  1. In his application for a statutory order of review the applicant identifies this ground as constituting an error of law relying on section 20(2)(f) of the JR Act.  In paragraph 3 of his affidavit sworn in support of the application, the applicant also relies on sections 20(2)(e) and 23(d) alleging that the Board failed to take into account a relevant consideration, namely the “recommendation of the sentencing court in setting an eligibility date”.  In paragraphs 1, 2 and 3 of his outline of argument the applicant sought to expand this ground to include a submission that the Board failed to take into account the operation of section 192 of the CS Act.  I have quoted section 192 above.  The effect of section 192 is that when deciding whether to grant a parole order the Board is not bound by the parole eligibility date fixed by the court if the Board receives information about the applicant that was not before the court at the time of sentencing and after considering the information considers that the applicant is not suitable for parole at the time fixed by the court.  The applicant submits that there was no information before the Board that was not otherwise before the sentencing judge.  Irrespective of how this ground is articulated, it has no substance. 
  2. The Statement of Reasons lists all the material that was before the Board and considered by the Board. The parole eligibility date is not expressly referred to in the Statement of Reasons.  The material before the Board and considered by the Board, however,  includes a number of documents which specifically refer to the applicant’s parole eligibility date of 11 May 2015 such as the sentencing remarks dated 14 November 2012, the Parole Board Report dated 23 December 2014 and the Verdict and Judgment Record dated 14 November 2012.  The sentencing judge made it clear that the applicant was unlikely to receive parole until he had completed appropriate programs whilst in custody.  The Board, in its Statement of Reasons, identified that the applicant’s “innocence stances” in the Getting Started program had precluded him from completing any further sexual offending assessment and/or programs.  This shows that the sentencing remarks were not only before the Board but were considered by the Board in determining whether the parole application should be granted.  The sentencing remarks included the parole eligibility date set by the sentencing judge. 
  3. The Statement of Reasons also includes the correspondence between the applicant and the Board as evidence and other material upon which the Board’s findings of fact were based.  The applicant, in his letters dated 23 March 2015 and 6 May 2015, makes specific reference to the parole eligibility recommendation made by the sentencing judge.  It cannot therefore be accepted that the Board failed to take into account the parole eligibility date. 
  4. In any event, the Board was not bound by the parole eligibility date fixed by the court.  Contrary to the applicant’s submission, the Board was in receipt of information that was not before the sentencing judge.  This information included not only that contained in the Completion Report but also the fact that the applicant refused to sign the medical consent form required for his psychological assessment.  The applicant in his letter to the Board dated 6 May 2015[23] disputes the accuracy of the statement in the Completion Report that he has maintained a stance of categorical denial in relation to the offences.  He states:

“I have never said I was innocent of the charges nor have I ever said that the girl involved has since stated that I did not commit the offences.  …  The fact of the matter is that she has never at any stage said I did anything to her and in fact on all occasions has told police etc that it was not me, these are also matters known to the court at the time of sentencing.”

  1. In paragraph 7 of his handwritten submissions filed by leave on 15 February 2016 the applicant further asserts that there may have been a number of reasons why he pleaded guilty to the relevant offences.  It is, however, irrelevant whether the applicant accepts the accuracy of the information contained in the Completion Report.  This was information before the Board that was not before the sentencing court.  Nor was the fact of the applicant refusing to sign the medical consent form to permit psychological assessment before the sentencing court.  The proper application of section 192 of the CS Act in those circumstances means that the Board was not bound by the parole eligibility date fixed by the sentencing court.  The applicant has not therefore established reviewable error in this respect. 

Ground 2: the Board improperly fettered its discretion by requiring the applicant to undertake a psychological assessment prior to being considered for parole

  1. The applicant, relying on section 22(e) and 23(f) of the JR Act, submits that the Board, by insisting on a psychological assessment, exercised a discretionary power in accordance with a rule or policy without having regard to the merits of the case.[24] 
  2. The applicant does not identify any relevant rule or policy.  Implicitly the “rule”, according to the applicant, is a requirement for a psychological assessment prior to the Board’s exercise of discretion in determining a parole application.  The applicant identifies this requirement as constituting an improper fetter on the Board’s discretion.  The applicant relies on the following passage from the decision of Dutney J in Batts v Department of Corrective Services:[25]

“To refuse to grant remission solely on the basis that there has been no admission of guilt or a failure to undertake a particular course is an entirely improper exercise of the relevant power.  …  A refusal on this basis is unacceptable because it fails to consider, in the case of the particular applicant, whether or not he is, in terms of section 75(2)(a) an unacceptable risk to the community.  Rather, it focuses narrowly on two factors which may or may not in the particular case bear upon the relevant question of whether the applicant poses an unacceptable risk.”

  1. Unlike the present applicant, Batts was convicted by a jury after pleading not guilty.  Here the applicant pleaded guilty to the relevant offences.  Quite apart from that distinction, the applicant’s submission that the Board’s decision to refuse his application was based solely on the absence of a psychological assessment must be rejected.
  2. The starting point is to identify the nature of the discretion exercised by the Board.  Pursuant to section 193(1) of the CS Act a parole board required to consider a prisoner’s application for a parole order must either decide to grant the application or to refuse to grant the application.  That discretion must be exercised in accordance with the objects and purposes of the CS Act which include in section 3(1):

“… community safety and crime prevention through the humane containment, supervision and rehabilitation of offenders.”

  1. Section 3(2) also recognises that every member of society has certain basic human entitlements and that those entitlements, other than those that are necessarily diminished because of imprisonment or another court sentence, should be safeguarded.  The highest priority however identified in paragraph 1.2 of the Queensland Parole Board Guidelines is the safety of the community.  Paragraph 5.2 of the Guidelines provides that when considering releasing a prisoner to parole the Board should have regard to all relevant factors, including but not limited to the following:
    1. time spent in custody during the current period of imprisonment;
    2. time spent in a low security environment or time spent in residential accommodation, and a history of positive institutional behaviour;
    3. time spent undertaking a work order or performing community service;
    4. appropriate transitional, residential and release plans; and
    5. genuine efforts to undertake available rehabilitation opportunities.
  2. In Calanca v Queensland Parole Board[26] Margaret Wilson J identified the nature of the Board’s exercise of discretion:

“A parole board has to assess what effect a prisoner’s release on parole would have on community safety and crime prevention, both at the time of his release and in the future.  Rehabilitation of an offender is a means of attaining community safety and crime prevention.  The extent of a prisoner’s progress towards rehabilitation whilst in custody may be some indication of how he will perform if released on parole.”

  1. In the present case the Board, in paragraph 4 of its findings on material questions of fact, specifically stated that it is not a requirement that prisoners must complete requested assessments before being eligible for release on parole.  The Board however identified that in respect of the applicant such an assessment would assist the Board in determining the potential risk to the community if the applicant were to be released.  The Board sought this assistance in circumstances where the applicant’s offences were of a very serious nature including offences of rape against a young child.  As the sentencing judge recognised, the applicant suffers from paedophilia and it was important for both him and the community that he undertake appropriate programs and counselling offered to him in custody. 
  2. It is also apparent from the Board’s Reasons that it had regard to other factors apart from the applicant’s failure to undertake psychological assessment. One of these factors was the applicant’s participation in rehabilitation courses, such as the Getting Started course, where his “innocence stances” had precluded him from completing any further sexual offending assessments and/or programs.  The Statement of Reasons in this respect states:

“The Board is concerned that the applicant may have outstanding treatment requirements which may assist the applicant in his understanding of the reasons for his behaviours which have led to his current conviction in the past and assist in the strategies to prevent similar situations when released.”[27]

  1. It cannot be accepted, as submitted by the applicant, that the Board exercised its discretion solely on the basis of the absence of psychological assessment.  It was a combination of a number of factors, one of which was the lack of psychological assessment, that led the Board to consider that the applicant was an unacceptable risk to the community.  The consideration by the Board of all of these factors shows that the Board exercised its discretionary power with regard to the merits of the applicant’s application. 

Ground 3:  The Board’s decision was so unreasonable that no reasonable person could make such decision

  1. For Ground 3 the applicant relies on sections 20(2)(e) and 23(g) of the JR Act.  The applicant submits that the Board in its assessment of his application, was too focused on the lack of a psychological assessment.  The applicant points to the following factors as demonstrating that the exercise of power by the Board in refusing his application for parole was so unreasonable that no reasonable person could so exercise the power:
    1. he has participated in every program or course as requested;
    2. he did not decline to participate in a psychological assessment but rather refused to sign the relevant medical consent;
    3. the applicant has clarified in writing to the Board the true position as to his “innocence stances”;
    4. the Board failed to take into account a number of positive factors including that the applicant was undertaking study with the University of Southern Queensland;  he had been accommodated in the residential section of the prison from March 2013;  there were no breaches or adverse reports against the applicant during his current incarceration;  the applicant prior to his incarceration had been on bail for 18 months without incident and he had supplied to the Board an approved home assessment.
  2. In Minister for Immigration and Citizenship v Li[28] French CJ observed:

“The requirement of reasonableness is not a vehicle for challenging a decision on the basis that the decision-maker has given insufficient or excessive consideration to some matters or has made an evaluative judgment with which a court disagrees even though that judgment is rationally open to the decision-maker.”

  1. To similar effect is the statement of Hayne, Kiefel and Bell JJ in the same case:

“The courts are conscious of not exceeding their supervisory role by undertaking a review of the merits of an exercise of discretionary power.  Properly applied, a standard of legal reasonableness does not involve substituting a court’s view as to how discretion should be exercised for that of a decision-maker.  Accepting that the standard of reasonableness is not applied in this way does not, however, explain how it is to be applied and how it is to be tested.”[29]

  1. Their Honours further stated:

“Unreasonableness is a conclusion which may be applied to a decision which lacks an evident and intelligible justification.”[30]

  1. All of the factors (including those favourable to the applicant) were contained in material which was before the Board and considered by the Board.[31]  The applicant’s complaint appears to be that the Board has given insufficient weight to those factors favourable to his parole application and undue consideration to the fact that he was not psychologically assessed. 
  2. The Board’s decision however, is not one “which lacks an evident and intelligible justification”.  As identified in paragraph [30] above, the Board pursuant to section 193(1) of the CS Act has a wide discretion exercisable in accordance with the objects and purposes of the Act.  The Board has to assess the effect the applicant’s release on parole would have on community safety and crime prevention.  The Board in its Statement of Reasons, identified the serious nature of the index offences.  The Board specifically stated that it is not a requirement that prisoners must complete requested assessments before being eligible for release on parole.  The applicant was however, identified by the Department of Corrective Services as someone who would benefit from undergoing assessment to determine suitability to participate in a sexual offending treatment program during his period of imprisonment.  This has not been achieved primarily because of the applicant’s “innocence stances”.  The Board requested an assessment of the applicant be completed by an experienced psychologist so as to assist the Board in its decision having regard to the applicant’s future risk of re-offending.  This was a relevant consideration that the Board had to weigh in the exercise of its discretion.  It should also be appreciated that this was the applicant’s first application for parole in the context of a cumulative sentence of seven years.  The sentencing Judge urged the applicant to take any treatment program seriously and to embrace whatever was offered to him. 
  3. In Huebner v Queensland Parole Board[32] Dalton J had to consider a decision by the Queensland Parole Board in circumstances where the applicant had also refused to sign a medical consent form to enable psychological assessment to be conducted.  Similar to the present case, the Queensland Parole Board had informed the relevant applicant that the psychological assessment was required to assist the Board to make an independent assessment of his risk to the community. [33]  Her Honour observed:

“It was said that no inference could be drawn against the applicant because there was no current psychological report.  In my view, an inference could be drawn against the applicant because he refused to co-operate in obtaining that report.  I think the fact of his refusal plainly bore on his insight as well as his remorse and whether or not he had a proper understanding of his offending and of the obligations that would be on him were he to be released on parole.”[34]

  1. The applicant also relies on the unreasonableness ground to challenge the Board’s requirement that he sign the medical consent form for the purposes of undergoing psychological assessment.  It is not at all surprising that an assessing psychologist would require access to the medical records of the applicant.  This is particularly so in circumstances where the applicant in his parole application referred to the fact that “although prescription medication played a part in my offending (2008) it has not been an issue since late 2008 – early 2009”.[35]  The Board, in its letter dated 7 May 2015,[36] sought to explain to the applicant why access to his medical records was required for the purpose of psychological assessment.  The Board also addressed the applicant’s privacy concerns.  There was in my view, nothing unreasonable in the Board requiring such a consent to be signed by the applicant.   

Ground 4:  There was a breach of the rules of natural justice in that the Board acted prior to receiving responses to queries asked of it

  1. The alleged breach of the rules of natural justice is that the Board took too long to respond to the applicant’s concerns in relation to signing the medical consent form.  The applicant first wrote to the Board on 4 March 2015 and subsequently, in regard to issues concerning access to his medical records.[37]  The applicant’s complaint is that the Board responded to his concerns in its letter dated 7 May 2015[38] which was only four days prior to the parole eligibility date.  In the same letter the Board informed the applicant that it had an obligation to make a timely decision on the basis of all the information available to it. 
  2. The Board submits that there is no substance in this ground:

“The Board’s Statement of Reasons shows that it considered numerous submissions and supporting material submitted on behalf of the applicant.  The evidence suggests that the applicant was afforded ample time to make those submissions.  The applicant was given numerous opportunities to sign the Medical Consent Form, and refused to do so on each occasion.  There is no suggestion that the applicant ever made complaint about the relevant timeframes or sought an extension of time to make his submissions.  The Statement of Reasons reflects that the Board had regard to the circumstances identified in the applicant’s submissions but ultimately decided not to grant parole.”

  1. I accept the Board’s submissions that there is no substance to this ground.  There has been no breach of the rules of natural justice because the Board in its letter dated 7 May 2015 specifically stated that it would defer any further decision until it received the psychological report.  Unsurprisingly, given the history of the applicant’s refusal to sign the consent form, the Board requested the applicant to make a prompt decision within 14 days of the receipt of the letter dated 7 May 2015.  The letter stated:

“Should you now decide to consent to the release of the Q Health file for the purpose of a psychological assessment, having regard for the advice the Board has provided via this letter, the Board will defer any further decision until it has received the psychological report.”[39]

  1. The Board’s willingness to defer any further decision until it had received the psychological assessment does not support an allegation that the Board failed to afford procedural fairness to the applicant. 

Grounds 5 and 6:  Irrelevant consideration:  convictions for serious assault

  1. The applicant deals with these two grounds together in his written Outline of Argument.  Relying on section 20(2)(e) and 23(a) of the JR Act the applicant submits that the Board took into account an irrelevant consideration.  The irrelevant consideration identified by the applicant is that the Board considered his convictions for assaulting or resisting a police officer as constituting part of the applicant’s sentence for which parole was sought. 
  2. Paragraph 1 of the Board’s findings on material questions of fact in the Statement of Reasons states:

“The applicant is currently serving a period of seven years imprisonment which consists of six months for the offences of serious assault, assault/resist/obstruct police officer/person acting in aid of police officer (3), three months for the offence of Assault of obstruct police officer, four years for the offences of indecent treatment of child under 16 (take photograph etc) child under 12 years (12), indecent treatment of child under 16 (pervert) child under 12 years (2), indecent treatment of child under 16 (procure to commit) child under 12 years (3), and indecent treatment of children under 16 child under 12 (2) and 6 years for the offences of rape (3).”

  1. The applicant submits that the convictions in relation to assaulting police did not exist when the parole recommendation was made by the sentencing court.  To suggest that they form part of the current sentence is a distortion of the facts, as at the time of the consideration of the parole application they had been served and as such were an irrelevant consideration in the exercise of the Board’s discretion.[40]
  2. The Verdict and Judgment Record before the Board reveals that on 6 February 2013 the applicant was convicted after pleading guilty in the Magistrates Court at Brisbane for a number of offences including serious assault of a police officer.  The applicant was sentenced to imprisonment for a period of six months on each offence with a parole eligibility date fixed at 6 August 2013.[41] 
  3. These offences were committed on 12 November 2012 being only two days prior to the applicant pleading guilty in the District Court to the rape and indecent treatment of a child offences.[42]  The Magistrates Court offences do not therefore constitute part of the applicant’s present seven year sentence.  To the extent that the Statement of Reasons refers to the sentence of six months for these offences as constituting part of the current sentence, it is mistaken. 
  4. It does not follow however, when the Statement of Reasons is read as a whole, that the Board has taken into account an irrelevant consideration.  The Statement of Reasons ought not to be subject to over-zealous scrutiny with an eye keenly attuned to error.[43]  The Statement of Reasons, by reference to the material that was before the Board, the content of the introduction and the other findings on material questions of fact show that it was the applicant’s sexual offending and his outstanding treatment requirements in relation to that offending that was the primary consideration in the Board’s decision.  The Board for example, in its letter dated 2 April 2015 referred to the applicant having been convicted of serious offences including rape.[44]  In its letter dated 24 April 2015 the Board made reference to the failure on the part of the applicant to make full admissions regarding his guilt.[45]  This can only be understood as a reference to the applicant’s sexual offending.  The findings on material questions of fact in the Statement of Reasons refers to the applicant as having been identified by the Department of Corrective Services as someone who would benefit from undergoing assessment to determine suitability to participate in a sexual offending treatment program during his period of imprisonment.[46]  This reference and other references in the Statement of Reasons makes it clear that the Board’s primary considerations were in relation to the applicant’s outstanding treatment requirements concerning his sexual offending.
  5. In any event the Board was entitled, indeed required, by paragraph 2.1(a) of the Guidelines to have regard to all relevant factors including the applicant’s prior criminal history and any patterns of offending.  This would include the applicant’s previous convictions for assaulting or obstructing a police officer. 
  6. The applicant further submitted that the Board failed to consider releasing him on a parole order with conditions that “could allay the Board’s concerns that (he) posed an unacceptable risk to the community”.[47]  The applicant referred to section 200 of the CS Act which requires that a parole order must include conditions.  These conditions may include ones which the Board reasonably considers necessary to ensure the prisoner’s good conduct or to stop the prisoner committing an offence.[48]  Such conditions are imposed where the Board grants a parole order.  The conditions contemplated by section 200 are ones that seek to ameliorate an identifiable risk.  In the present case the Board considered itself unable to make a proper assessment of the applicant’s future risk to the community in the absence of a report from a psychologist.  Where the applicant’s future risk to the community is unable to be assessed, the Board is in no position to assess that unidentified risk against a set of possible ameliorating conditions.  Any failure on the part of the Board to do so does not disclose reviewable error. 

Ground 7:  the Board exercised its discretionary power in bad faith

  1. For this ground the applicant relies on sections 20(2)(e) and 23(d) of the JR Act.  The applicant does not suggest that the Board acted dishonestly.[49]  Rather, he submits that the Board did not attempt to undertake its task in a fair and diligent manner and therefore exercised its power in bad faith.  The applicant relies on the six grounds already considered above.  There is no substance in the submission that the Board exercised it discretionary power in bad faith.  Bad faith typically implies a lack of an honest or genuine attempt to undertake the decision-making task and involves a personal attack on the honesty of the decision-maker.[50]  The Board’s discretion to decide to refuse the applicant’s parole application was wide.  On the material before the Court it was a discretion that was exercised in accordance with the objects and purposes of the CS Act.  The applicant’s offences were of a very serious nature involving a young child.  The applicant’s “innocence stances” in the course of completing the Getting Started program had precluded him from completing any further sexual offending assessments and/or programs.  The applicant, because he refused to sign the medical consent form,  was not psychologically examined for the purposes of assisting the Board in assessing his potential risk to the community.  These were all factors taken into account by the Board in exercising its discretion.  In those circumstances the applicant’s submission that the Board exercised its discretionary power in bad faith must be rejected.

Disposition

  1. The application for a statutory order of review filed 19 October 2015 is dismissed.  I will hear the parties as to costs.

 

Footnotes

[1] Affidavit of Angela Balzer filed 3 December 2015, AB-29, p.86 (CD8).

[2] Affidavit of Angela Balzer filed 3 December 2015, AB-29, p.85.

[3] Affidavit of Angela Balzer filed 3 December 2015, AB-1, p.1.

[4] Applicant’s Outline of Argument, [3].

[5] The Board undertook to file an affidavit correcting this factual error: T1-13 to T1-15.

[6] Affidavit of Angela Balzer filed 3 December 2015, AB-1, p.18 (CD8).

[7] Affidavit of Angela Balzer filed 3 December 2015, AB-1, p.19.

[8] Affidavit of Angela Balzer filed 3 December 2015, para. [8].

[9] Affidavit of Angela Balzer filed 3 December 2015, para. [10].

[10] Affidavit of Angela Balzer filed 3 December 2015, AB-7, p.26.

[11] Affidavit of Angela Balzer filed 3 December 2015, AB-10, p.29.

[12] Affidavit of Angela Balzer filed 3 December 2015, para. [16].

[13] Affidavit of Angela Balzer filed 3 December 2015, AB-11, p.31.

[14] Affidavit of Angela Balzer filed 3 December 2015, AB-12, p.32.

[15] Affidavit of Angela Balzer filed 3 December 2015, AB-14, pp.35-36.

[16] Affidavit of Angela Balzer filed 3 December 2015, AB-13, p.33.

[17] Affidavit of Angela Balzer filed 3 December 2015, AB-15, pp.37-38.

[18] Affidavit of Angela Balzer filed 3 December 2015, AB-16, pp.39-40.

[19] Affidavit of Angela Balzer filed 3 December 2015, para. [24].

[20] Affidavit of Angela Balzer filed 3 December 2015, AB-21, pp.50-51.

[21] Being fixed for the prisoner under the Penalties and Sentences Act 1992 (Qld), part 9, division 3.

[22] Affidavit of Angela Balzer filed 3 December 2015, AB-22, pp.52-60.

[23] Affidavit of Angela Balzer filed 3 December 2015, AB-16, pp.39-40.

[24] Applicant’s Outline of Argument, paras. [1] to [4].

[25] [2002] QSC 206 at [14].

[26] [2013] QSC 294 at [33].

[27] Affidavit of Angela Balzer filed 3 December 2015, AB-21, p.51, para. [4].

[28] (2013) 249 CLR 332 at 351; [2013] HCA 18 at [30].

[29] [66].

[30] [76].

[31] For example, the applicant’s application for parole referred to the studies he had undertaken whilst incarcerated as well as the fact that there were no breaches whilst he was on bail.

[32] Unreported, Dalton J 19 November 2015.

[33] See affidavit of Angela Balzer filed 3 December 2015, AB-30, p.33 where the Board stated: “The Board has made it very clear to you that it requires the services of an experienced psychologist to make an assessment of your future risk to the community.”

[34] Page 8.

[35] Affidavit of Angela Balzer filed 3 December 2015, AB-1, p.13.

[36] Affidavit of Angela Balzer filed 3 December 2015, AB-15, pp.37-38.

[37] Affidavit of Angela Balzer filed 3 December 2015, AB-7, p.28, AB-10, p.29 and AB-14, pp.35-36.

[38] Affidavit of Angela Balzer filed 3 December 2015, AB-15, p.

[39] Respondent’s Amended Outline of Submissions [45].

[40] Applicant’s Outline of Argument, para. [2].

[41] Affidavit of Angela Balzer filed 3 December 2015, AB-27, p.75.

[42] Affidavit of Angela Balzer filed 3 December 2015, AB-28, p.77.

[43] Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 271-272; [1996] HCA 13 at [27]-[32].

[44] AB-11, p.31.

[45] AB-13, pp.33-34.

[46] AB-21, p.51.

[47] Applicant’s Outline of Argument, para. [3] and applicant’s handwritten submissions grounds 5 and 6, paras. 1-4.

[48] Corrective Services Act 2006 (Qld), s 200(2).

[49]   Applicant’s Outline of Argument, Ground 7, para. [2].

[50] SCAS v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 397 at [19].

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Editorial Notes

  • Published Case Name:

    Taylor v Southern Queensland Parole Board

  • Shortened Case Name:

    Taylor v Southern Queensland Parole Board

  • MNC:

    [2016] QSC 26

  • Court:

    QSC

  • Judge(s):

    Flanagan J

  • Date:

    29 Feb 2016

Litigation History

No Litigation History

Appeal Status

No Status