Morales v South Queensland Regional Parole Board
[2007] QSC 405
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- Unreported Judgment
- Morales v South Queensland Regional Parole Board[2007] QSC 405
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Morales v South Queensland Regional Parole Board[2007] QSC 405
Morales v South Queensland Regional Parole Board[2007] QSC 405
SUPREME COURT OF QUEENSLAND
CIVIL JURISDICTION
WHITE J
NO BS5348 OF 2007
| EDWARD MORALES | Applicant |
| and | |
| SOUTH QUEENSLAND REGIONAL PAROLE BOARD | Respondent |
BRISBANE
DATE 03/08/2007
JUDGMENT
HER HONOUR: Edward Morales has sought a review of the respondent Southern Queensland Regional Parole Board's decision to suspend his parole order. The Board made its decision pursuant to the power granted to it by section 205(2) (c) of the Corrective Services Act 2006, which provides that:
"A Parole Board may by written order:
(c)amend or suspend a parole order if the prisoner , subject to the parole order , is charged with committing an offence."
The Parole Board took into account a number of documents in reaching its decision which are listed at page 2 of its statement of reasons .The background to this application is taken from that material which was before the Parole Board.
On the 5th of August 2002, Judge Dick SC sentenced Mr Morales to seven years' imprisonment for fraud ,arson and receiving on his plea of guilty with a recommendation for post -prison community based release after serving two and a half years with 530 days in pre-sentence custody being declared as time served.
Mr Morales' criminal history included as his first offence in 1985 one count of wilful exposure another three years later and a conviction for behaving in an indecent manner in 1990 for which probation and psychiatric treatment were ordered. Mr Morales was released on home detention on 17th November 2003 and granted parole on 17th February 2004.
That parole contained what is described by the Parole Board as one extra condition, namely that he undertake psychiatric treatment and counselling as directed by the Corrective Services officer . Included amongst the standard conditions was that he not commit an offence.
On 12th February 2007, the Chief Executive of the Queensland Corrective Services suspended Mr Morales' parole pursuant to section 201 of the Act in these terms:
"It is reasonably believed that the Prisoner : poses an unacceptable risk of committing an offence:-
By being charged:
1 x indecent treatment of a child under 16(exposed); and
2 x attempted indecent treatment of a child under 16(procure to commit) allegedly committed on or about 3rd January 2007."
Some of the alleged circumstances of these charges are set out in a report by Ms Katrina Palmer, Mr Morales 'parole officer , dated the 15th of February 2007 and placed before the Board together with the QP9s provided by his solicitors .
The offences were alleged to have occurred on 3rd January 2007 at Maroochydore. The complainant is aged 14 years and alleged she and her family knew Mr Morales who was visiting on that day .He took her in his car to purchase some coffee. He allegedly locked the car doors and asked her to perform an indecent act upon him and when she refused he performed an indecent act upon himself and then drove her home.
He was arrested and charged on the 17th of February 2007. He declined on legal advice to participate in a record of interview. He was summonsed to appear in the Maroochydore Magistrates Court and granted bail on his own undertaking.
Mr Morales denied the charges in his account to Ms Palmer and said that he had stopped to help the complainant 's mother who was lying badly beaten on the side of the road . She did not want the police called and he took her daughter, the complainant , for a ride in his car, a Lamborghini, at her request. He claims the family tried to extort money from him prior to the charges being laid .
On 28th February 2007, the Parole Board considered Ms Palmer 's report who had recommended that Mr Morales show cause as to why his parole order should not be suspended by the Parole Board. Ms Palmer had canvassed what she characterised as the selective supply of information about the circumstances of the charges by Mr Morales and his de facto wife, concerns about his apparent business dealings as well as the seriousness of the new charges.
On 28th February, the Parole Board suspended Mr Morales' parole order. He was invited to show cause as to why the Parole Board should change its decision within 21 days by notice dated 6th March 2007. This notice was in conformity with section 208(1) of the Act.
By section 208(2)
"The Parole Board must consider all written submissions given to it by the prisoner within the 21 days mentioned in the information notice and inform the prisoner by written notice whether the Board has changed its decision and , if so, how."
By letters dated 30th March and 18th and 20th April 2007 Mr Morales' solicitors made submissions to the Paroled Board.The solicitors referred to concerns about Mr Morales' remaining in custody about a number of matters, one of which was his health.
Mr Morales had been, during his incarceration and on parole , under treatment for bi -polar disorder and schizophrenia. The solicitors emphasised that it was essential that he maintain his treatment of medication and psychiatric management. Mr Morales had allegedly established a successful import/export business on parole .Very shortly after being returned to custody that business was placed in administration. Mr Morales alleges unlawful conduct by others about this.
The solicitors wrote that the offences were to be strenuously defended and because the charges would not be heard until the expiration of Mr Morales' parole period this would be unfair to him. Mr Morales was said to have dutifully complied with his parole conditions and sought to reestablish himself.
The letter of submission of 20th April referred to Mr Morales'deteriorating health while in custody which did not permit access to urgent specialist care. The Parole Board by letter dated 23rd April to Mr Morales sought:
"Further information from your solicitor as well as advice from your prison regarding your medical condition."
Further submissions were received from the solicitors by letter dated 27th April of the delay in the Court processes about the subject charges.At its meeting on the 2nd of May 2007 the Parole Board sought further information "regarding matters raised by your solicitors" and informed Mr Morales of this.
The Parole Board sought a copy of the report from the administrators of Mr Morales' company. This is not amongst the material considered by the Parole Board and it might be supposed that it was not provided.
Mr Morales' father responded to the Parole Board complaining of the delay in his son being seen by a psychiatrist in prison. By letter dated 10th May 2007 the General Manager of the Correctional Centre where Mr Morales was detained wrote to the Parole Board that he had been advised by the Health Services Co-ordinator in response to Mr Morales' solicitors 'concerns that his" health care needs are more than able to be met in this environment".
An opportunity was given to Mr Morales, through his solicitors , to respond to this conclusion although only a short period as the Parole Board was to reach its decision in a day or two.
On 16th May 2007, the Parole Board considered the submissions and decided not to alter its previous decision to suspend the parole order. A statement of reasons was provided on 7th June 2007. In its reasons, the Parole Board set out the material it took into account and its findings on material facts.
It expressly considered Mr Morales' health and treatment needs, his business affairs , the defence of the charges and the time delay before they would be finalised, that he had complied with his parole conditions for almost three years and that he had been granted bail by the Magistrates Court. The Parole Board noted that Mr Morales 'health care needs were able to be met in the prison environment.
The reasons follow and because they are relatively short they can be included here:
" 1.The Corrective Services Act 2006 s 205(2) (c) empowers the Board to suspend a parole order if the person subject to the parole order is charged with committing an offence. The Board was satisfied that your client was charged with two serious offences against a child and the Board considered that this in itself is reason for suspension under the Act .The Board made no presumption in respect to guilt or innocence of these charges and in no way hinders the right to due legal process in respect to these charges.
2.A person on pa role is serving a sentence of imprisonment in the community under supervision after the Board was determined that he or she does not pose a risk to community safety. Despite compliance to parole supervision requirements on the part of your client and the other factors of disadvantage to him, the Board was concerned that , due to the nature of the charges and as he had previous sexual offences , his present community supervision may not be sufficient and that he may pose an unacceptable risk to the safety of the community.It therefore decided that it should proceed cautiously and suspended his parole."
Mr Plunkett, on behalf of Mr Morales, advances two main grounds for complaint about the decision. He submits that Mr Morales was denied procedural fairness because he was not given a copy of the letter from the Parole Board to the prison on 23rd April requesting further information.
The issue of Mr Morales ' health in custody was extensively canvassed. It was raised by his solicitors and his father.He was given whatever opportunity he needed to put material before the Parole Board about his health and did so. He was invited to respond to the conclusion expressed in the letter of 10th May 2007 that he could be looked after appropriately in the prison where he was housed.
This is not a case like that of York against the General Medical Assessment Tribunal [2003] 2 Queensland Reports 104 where the medical evidence was all one way in favour of the worker and the tribunal reached an adverse assessment itself without alerting the worker 's solicitors that the favourable diagnoses would be ignored or not accepted.This ground must fail.
In the second ground, Mr Plunkett contends that the Parole Board misconceived its role , namely that it has power to suspend merely because Mr Morales has been charged with two offences. Clearly section 205 in each of its subsections endows the Parole Board with a discretion as to the exercise of the power by use of the expression "may", Acts Interpretation Act 1954 section 32CA.
The Parole Board expressed its reasons somewhat unhappily when its reason-writer wrote:
"The Board was satisfied that your client was charged with two serious offences against a child and the Board considered that this, in itself , is reason for suspension under the Act."
On a perusal of the whole of the statement of reasons it is plain that the Board weighed up the positive matters in favour of Mr Morales and did not conclude that it would suspend the parole order merely or solely because of the extant charges without more. It may be that paragraph 2 of the reasons elaborates why the discretion was exercised as it was, as I will mention below.
Mr Plunkett also contends that section 208(2) requires the Parole Board to , as it were, go back and start afresh after it has received submissions in response to an information notice , that is, it must look at the bases upon which it may act as set out in the relevant provisions of section 205. In this case, section 205(2)(a)(i),(ii)and(iii).
I do not think that process is mandated by section 208(2). It will depend on the nature of the submissions and any other information received by the Board. That it has done this , he submits , is reflected in the second paragraph of the reasons but as I have observed it may well be characterised as addressing the "may" element of section 205(2)(c).
In paragraph two the Parole Board has referred to the purpose of parole and has made a judgment that because of the nature of the charges and previous sexual offences, Mr Morales ' present community supervision may be insufficient and he poses an unacceptable risk to the safety of the community.
That is not an expression which precisely reflects either section 205(2)(a)(ii) or (iii) but comes closest to (iii), that is, " ...imposes an unacceptable risk of committing an offence." Mr Plunkett is critical of the Parole Board 's articulation of the purpose of parole. I accept that any definition of the purpose of parole does not appear in the Act itself.
Mr Plunkett cites the New South Wales Court of Appeal in Commissioner of Corrective Services v. Wedge [2006] NSW CA 271 , a decision of 6th October 2006 of Santow and Ipp JA and Bryson J .They wrote:
"Parole is a form of conditional release of offenders sentenced to terms of imprisonment."
As Smart AJ (with whom Hidden J and Greg James J agreed) said in McCullum v. The Parole Board of New South Wales [2003) NSW CCA 294 at 28:
"Parole is a privilege not a right."
Of that submission it can be said that there may be many ways to define and discuss parole depending on the relevant emphasis for the case in hand. Essentially, though , the task for a body charged with granting or withholding parole must be the assessment of risk involved in granting to a prisoner the privilege of completing part of his sentence in the community.
Just what that entails has been the subject of guidance and discussion in cases such as McCaskey v. The Queensland Corrective Services Commission [1992) QCA 45 and Mott v. The Queensland Community Corrections Board[1995] Queensland Reports 261.
I do not consider the discussion of risk in the context of the Dangerous Prisoners (Sexual Offenders) Act 2002 as entirely apt here because of the different legislative definitions and scheme.
Mr Plunkett is critical of the unjustified presumption by the Parole Board that the earlier offending behaviour by Mr Morales was sexual in nature .Clearly the Parole Board knew the nature of those charges. They set them out :wilful expose by two and behaving in an indecent manner . They did not fall into error in describing them compendiously as "previous sexual offences" even though they had no particulars of the facts of the charges.
There may be a weakness in the reasoning if the suspension was based on section 205(2)(a) but it is clearly based upon section 205(2)(c) and the Parole Board has canvassed the various matters raised by the material in reaching the conclusion that it did.
Whilst Minister for Immigration and Ethic Affairs v.Whu Shan Lang [1996) 185 CLR 295 at 272 counsels against overzea lous review seeking to discern whether some inadequacy may be gleaned from the way in which the reasons are expressed, a more careful attention to the statutory criteria applied to the facts as found by a Parole Board might avoid at lea st some of these judicial review applications .But, ultimately , it seems to me that to interfere here would descent to a merits rev iew and accordingly the application for judicial review is dismissed.
HER HONOUR: I accept the submissions advanced by Mr Plunkett that this is a case where in the exercise of my discretion ,taking into account the factors that he has raised, there ought to be no order as to costs and I so order.