Petrie v Qld Community Corrections Board
[2006] QCA 474
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- Unreported Judgment
- Petrie v Qld Community Corrections Board[2006] QCA 474
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Petrie v Qld Community Corrections Board[2006] QCA 474
Petrie v Qld Community Corrections Board[2006] QCA 474
SUPREME COURT OF QUEENSLAND
CITATION: | Petrie v Qld Community Corrections Board [2006] QCA 474 |
PARTIES: | GAVIN JOHN PETRIE |
FILE NO/S: | Appeal No 7179 of 2006 SC No 4393 of 2006 |
DIVISION: | Court of Appeal |
PROCEEDING: | General Civil Appeal |
ORIGINATING COURT: | Supreme Court at Brisbane |
DELIVERED ON: | 17 November 2006 |
DELIVERED AT: | Brisbane |
HEARING DATE: | 9 November 2006 |
JUDGES: | de Jersey CJ, Holmes JA and Chesterman J Judgment of the Court |
ORDER: | 1. Appeal dismissed 2. Appellant to pay the respondent’s costs of the appeal to be assessed on an indemnity basis |
CATCHWORDS: | ADMINISTRATIVE LAW – JUDICIAL REVIEW – GENERALLY – where respondent sought judicial review of decision refusing parole – where learned primary judge referred matter back to appellant for reconsideration – where appellant appealed decision of primary judge but subsequently granted parole to respondent – whether declaratory relief should be granted Corrective Services Act 2000 (Qld), s 167(1) Corrective Services Act 2006 (Qld), s 227 Ainsworth v Criminal Justice Commission (1992) 175 CLR 564, cited Minister for Immigration and Multicultural Affairs v Bhardwaj (2002) 209 CLR 597; [2002] HCA 11, cited R v Secretary of State for the Home Department; ex parte Salem [1999] 1 AC 450, cited |
COUNSEL: | J A Logan SC, with J M Horton, for the appellant M O Plunkett, with J Fenton, for the respondent |
SOLICITORS: | Crown Law for the appellant Howden Saggers Lawyers for the respondent |
- THE COURT: The respondent pleaded guilty on 2 August 2004 to the offence of maintaining an unlawful relationship of a sexual nature with a child under 16 years of age. He was sentenced to six years imprisonment. The sentencing Judge recommended eligibility for post-prison community based release, now called parole, on 26 November 2005, and that the respondent undergo the Sex Offenders’ Treatment Program.
- The respondent applied for parole on 11 October 2005. On 1 February 2006, the appellant advised the respondent of its inclination to refuse parole, on the basis the respondent had not yet completed the Sex Offenders’ Treatment Program (a place had not by then become available), and because of certain incidents involving the respondent which had occurred at the correctional centre. Having invited and received further submissions from the respondent, on 28 April 2006 the appellant confirmed that decision.
- On 12 July 2006, the respondent commenced the relevant program, and has since completed it.
- The respondent applied for judicial review of the appellant’s decision.
- In its letter of 28 April 2006, the appellant said (among other things):
“At the meeting of 24 March 2006, the Board had before it the outcome of your assessment for a sex offenders’ program with the recommendation that you participate in the Medium Intensity Sexual Offending Program and that you had been placed on the priority allocation list for the program. The Board therefore considered that you would shortly have the opportunity to participate in this program and that, in the interests of public safety, such participation would be expected by the sentencing judge as well as the community.”
- The learned primary Judge said, of those observations:
“I fail to see how those expectations were considerations relevant to the decision which the Board was required to make. It is the Board that is charged with considering and determining the matter of whether a prisoner is suitable for [parole]. And whatever may be the expectation of the community in terms of public safety, it is a matter which is irrelevant to the Board’s assessment of the applicant’s suitability for [parole] and the risk to the community associated with the grant of [parole]. The same may be said of the expectations of the sentencing judge.”
- The Judge concluded that the appellant was influenced by irrelevant considerations.
- The Judge also held that the appellant had failed to take account of relevant considerations, essentially because the appellant did not refer in its reasons to the report of the Assessment Unit in the context of the issue of public safety were the respondent to be released without undergoing the program.
- On 3 August 2006, the primary Judge referred the matter back to the appellant for reconsideration. The appellant appealed against Her Honour’s decision on 25 August 2006. In the meantime, on 18 August 2006, the appellant determined to grant the respondent parole, and the respondent was on 24 October 2006 released on parole.
- The respondent now takes the obvious point that there is no utility in this Court’s determining the appeal, which should be dismissed (with costs) (cf Minister for Immigration and Multicultural Affairs v Bhardwaj (2002) 209 CLR 597, 603). On the other hand, the appellant submits that “the alleged error that is the subject of this appeal has ongoing significance for like cases”, and that the grant of declaratory relief would be consistent with Ainsworth v Criminal Justice Commission (1992) 175 CLR 564. See also R v Secretary of State for the Home Department; ex parte Salem [1999] 1 AC 450, 457.
- Mr Logan SC for the appellant, when pressed as to the terms of the declarations sought, proposed that they would be in terms of two of the grounds in the notice of appeal, to this effect:
“ian apprehension of the members of the appellant board that the community would expect that, in the interests of public safety, a sex offender ought to undertake a sexual offenders treatment program was [not an irrelevant consideration] ...
iian apprehension by the members of the appellant [Board] that the sentencing judge had expected the respondent to undertake a sexual offenders treatment program [was not an irrelevant consideration].”
- Section 167(1) of the Corrective Services Act 2000 (Qld) permitted the Minister to make guidelines about the policy to be followed by the Parole Board when performing its functions. (Similar provision for the making of guidelines exists in the Corrective Services Act 2006 (Qld): s 227). The decision in this case was made by the Board with reference to guidelines issued, on their face, by the Minister in September 2005. Plainly, within the confines of the purposes of the Act the Minister is at liberty to vary those guidelines from time to time. Any declaration the Court could now make could only be in reference to what constituted relevant considerations under the September 2005 guidelines. It is self-evident that such a declaration would be of extremely limited utility; none at all, should the guidelines have been relevantly altered. If indeed the guidelines remain in the form under consideration in this case, adjudication by the Court on the legitimacy of the appellant’s approach is best left to a future case where the issue is live.
- In these circumstances, the appeal should be dismissed. Because the appellant maintained the appeal after its irrelevance to the position of the respondent became apparent, the appellant should be ordered to pay the respondent’s costs. That would be so even were the Court to identify potential usefulness for the appellant’s consideration of future applications, in determining the appeal, for that utility would have no relevance to the position of the respondent.
- Mr Plunkett, for the respondent, sought indemnity costs. The respondent had encouraged the appellant to abandon the appeal, but it chose to pursue it for its own supposed benefit – a benefit of no relevance to the respondent. In these circumstances, the respondent should not be left subsidising the costs of the appeal in any degree.
- We order:
- That the appeal be dismissed.
- That the appellant pay the respondent’s costs of the appeal to be assessed on an indemnity basis.