Kruck v The Southern Queensland Regional Parole Board
[2008] QSC 332
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- Unreported Judgment
- Appeal Determined - Special Leave Refused (HCA)
- Kruck v The Southern Queensland Regional Parole Board[2008] QSC 332
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Kruck v The Southern Queensland Regional Parole Board[2008] QSC 332
Kruck v The Southern Queensland Regional Parole Board[2008] QSC 332
SUPREME COURT OF QUEENSLAND
CITATION: | Kruck v The Southern Queensland Regional Parole Board [2008] QSC 332 |
PARTIES: | MICHAEL CHRISTIAN KRUCK (applicant) |
FILE NO: | No 9554 of 2008 |
DIVISION: | Trial Division |
PROCEEDING: | Application |
ORIGINATING COURT: | Supreme Court at Brisbane |
DELIVERED ON: | 15 December 2008 |
DELIVERED AT: | Brisbane |
HEARING DATE: | 19 and 28 November 2008 |
JUDGE: | Lyons J |
ORDER: |
|
CATCHWORDS: | ADMINISTRATIVE LAW – JUDICIAL REVIEW – GROUNDS OF REVIEW – PROCEDURAL FAIRNESS – BIAS – the applicant was serving a period of four years and six months imprisonment in relation to a series of offences – application for judicial review of a refusal to grant parole – during the decision-making process the respondent had before it a Parole Board Assessment Report (“PBAR”) prepared by Queensland Corrective Services (“QCS”) – whether there was bias because of the weight afforded to the PBAR by the respondent ADMINISTRATIVE LAW – JUDICIAL REVIEW – GROUNDS OF REVIEW – APPLYING POLICY AND MERITS OF CASE – a relapse prevention plan was submitted to the respondent by the applicant – the respondent could not be satisfied the plan was sufficiently comprehensive because it had not been evaluated – whether the respondent exercised its power according to a policy to consider relapse prevention plans only if they are evaluated – whether the respondent did not turn its mind to considering the merits of the applicant’s case because he had failed to comply with other pre-requisites – whether the respondent failed to consider the application on its merits ADMINISTRATIVE LAW – JUDICIAL REVIEW – GROUNDS OF REVIEW – DELEGATION OF POWER – QCS employees prepared the PBAR – whether the respondent delegated its decision-making powers to QCS ADMINISTRATIVE LAW – JUDICIAL REVIEW – GROUNDS OF REVIEW – IRRELEVANT CONSIDERATIONS – whether the respondent was entitled to take the Home Assessment Report into account in considering the application ADMINISTRATIVE LAW – JUDICIAL REVIEW – GROUNDS OF REVIEW – IRRELEVANT CONSIDERATIONS – whether the respondent was entitled to take the Offender Risk Need Inventory Revised into account in considering the application Corrective Services Act 2006 (Qld), s 193(5), s 231(a), s 232, s 265 Judicial Review Act 1991 (Qld), s 20, s 21, s 54 Gough v Southern Queensland Regional Parole Board [2008] QSC 222, applied McQuire v South Queensland Regional Community Corrections Board [2003] QSC 414, cited Weribone v Senior/Area Manager, Brisbane North Community Corrections [2005] QSC 347, applied |
COUNSEL: | The applicant appeared on his own behalf SA McLeod for the respondent |
SOLICITORS: | The applicant appeared on his own behalf Crown Law for the respondent |
LYONS J:
- On 20 August 2008 the Southern Queensland Regional Parole Board (“the Parole Board”) declined Michael Kruck’s (“the applicant”) application for parole and by this application, filed on 6 October 2008 the applicant seeks judicial review of that decision and of the conduct related to the making of the decision pursuant to s 20 and 21 of the Judicial Review Act 1991 (Qld) (“JRA”). The application refers to the respondent being The Board of Queensland Regional Parole Board however such an entity is not known to law and pursuant to s 54 of the JRA the name of the respondent is amended to correctly read Southern Queensland Regional Parole Board (“the Parole Board”).
- The hearing was initially listed for a hearing in the applications jurisdiction on 19 November 2008 and was part heard on that occasion. Because of the extensive material which was given to the respondent by the applicant on the morning of the hearing, the application was adjourned to 28 November 2008 to allow the respondent the opportunity to review the material and make further submissions.
The decision of the Parole Board, 20 August 2008
- On 28 May 2008 the Board initially met and considered the applicant’s application for parole which had been lodged on 16 May 2008. Consideration of his application however was deferred to obtain a psychological report and the applicant was informed of this by a letter dated 28 May 2008.
- In a letter dated 25 August 2008 the applicant was advised that on 20 August 2008 the Board had declined his application for parole.
- The statement of reasons sent to the applicant pursuant to s 193(5) of the Corrective Services Act 2006 (Qld) (“CSA”) was dated 19 September 2008. The reasons set out the history of Mr Kruck’s application, in particular that the initial application for parole was dated 17 December 2007 but not received until 14 February 2008. That application was then considered by the Board on 7 May 2008, but deferred until a psychological assessment was prepared. Because the application would have lapsed prior to the psychological assessment being completed the applicant was requested to submit a new application which was then submitted on 16 May 2008 and received on 19 May 2008.
- At its meeting on 28 May 2008 the Board reviewed the matter and confirmed its decision to defer consideration of the application until a psychological assessment was furnished. On 12 June 2008 Dr James Freeman attempted to conduct a psychological assessment, however, the applicant declined to participate.
- On 2 July the Board reviewed the application for parole and the other documentation supplied by QCS together with the advice from Dr Freeman and a home assessment. On 21 July 2008 the Board wrote to the applicant advising him that “…the Board is minded to refuse your application at this time on the basis that it is not satisfied that your release on a parole order does not pose an unacceptable risk to the community.” The applicant was then invited to make submissions within 14 days as to why the Board should not decline his application.
- The Board set out, in the letter of 21 July 2008, a number of factors adverse to the applicant. These included the applicant’s failure to provide an adequate relapse prevention and release plan and his refusal to participate in the psychological assessment with Dr Freeman, which was the reason for the Board’s deferral of his application on 28 May 2008.
- The applicant made further submissions to the Board dated 4, 7, and 15 August 2008.
- On 20 August 2008 the Board again reviewed the application and determined that, in the absence of further relevant information, the application was declined.
- In those reasons the Board made a number of findings of material questions of fact.
Findings on material questions of fact
[12] ●The applicant was serving a period of four years and six months imprisonment in relation to a series of offences for which he had been sentenced on 7 December 2006. These offences had occurred over a period from July 2001 to December 2004 and included:
(1)indecent treatment of a child under 16 with circumstances of aggravation for which he received a sentence of three years and six months;
(2)rape with a sentence of four years and six months;
(3)indecent treatment of a child for which he received three years imprisonment; and
(4)indecent treatment of a child under 16 with circumstances of aggravation for which a period of imprisonment of three years was ordered.
●The applicant would be eligible for parole on 14 March 2008.
●The applicant pleaded not guilty and had continued to maintain his innocence.
●In June 1996 the applicant was convicted of indecent dealing with a child under the age of 16 years with circumstances of aggravation, permitting himself to be indecently dealt with by a child under the age of 16 with a circumstance of aggravation and wilfully exposing a child under the age of 16 years to an indecent act with circumstances of aggravation. The applicant on that occasion was sentenced to three years probation.
●The applicant holds a high security classification.
- The reasons noted that in considering the application the Board took into account a number of factors that were in his favour:
(1)a willingness to participate in an assessment for participation in interventions;
(2)the development of a relapse prevention plan;
(3)willingness to comply with conditions set by the Board;
(4)his current accommodation was in the residential section of Wolston;
(5)an appropriate level of prison behaviour; and
(6)community support.
Parole Board’s reasons for declining the application
- Turning to the reasons for the actual decision that was made, the Board listed the following as their reasons:
●Conviction of very serious sexual offences and prior convictions for similar offences. The Board noted that the applicant maintained complete innocence of the offences but this did not prejudice the Board against the applicant. However, the Board needed to proceed on the basis that he was guilty of these offences because this was the considered judgment of citizens who had been exposed to the evidence of the case.
●Research showed that factors, such as low remorse and denial, do not predict sexual recidivism, however, denial presents problems in establishing a sound case formulation and in identifying appropriate treatment targets and effective risk management strategies. Accordingly, the Board determined on 7 May 2008 to have a psychological assessment prepared to assist in its consideration of the application. However, the applicant refused to participate in the assessment.
●The Board noted the recommendation for participation in specialised assessment for sexual offending and the fact that the applicant had not had the opportunity to participate in that assessment. Whilst the Board noted the applicant’s willingness to participate in the assessment on the proviso that his claim of innocence was not compromised, the Board also stated that in the absence of any professional assessment and taking into account the considerations of Parole Board Assessment Report, there was no indication that the applicant had demonstrated any understanding of how he came to be the subject of serious charges or any empathy for the victims of his offending.
●Although not requiring him to do so the Board encouraged the applicant to participate in a specialised assessment and any recommended program intervention because such participation may assist in gaining insight into how he came to be the subject of the serious charges. The Board considered that such participation may give an indication that the applicant had some understanding of the circumstances of the charges and that he could take preventative measures to ensure he could avoid such situations in the future.
●The Board noted a failure to provide any meaningful relapse prevention plan identifying risk factors or triggers in relation to further offending or any strategies to address them. The Board noted the provision of a future preventative plan which maintained his innocence and provided strategies that would assist in preventing him from being placed in a situation of being falsely accused of further offences. The Board was concerned that he had not provided strategies to address issues such as high risk thoughts and triggers for further sexual offending. The Board also noted that the applicant had failed to subject his plan to professional scrutiny through his refusal to be assessed by Dr Freeman. In the absence of such assessment the Board was not satisfied that the plan was sufficiently comprehensive in addressing the issues related to his offending. The provision of a realistic and workable relapse prevention plan addressing the issues related to the applicant’s offending would assist in reassuring the Board that release to parole supervision would be safe and appropriate and that he had minimised his risk of re-offending.
●The Board stated it believed satisfactory participation in the specialised assessment and completion of any subsequently recommended program intervention may well assist in addressing the apparent lack of insight into the offending and in developing a realistic relapse prevention/safety plan. The Board indicated that such participation would give the Board confidence that, when he came across any relevant risk factors or triggers, he would act appropriately and minimise his risk of re-offending or being charged with committing a criminal offence whilst in the community.
The application for judicial review
- In this application for statutory order of review, the applicant states that his application is to “…review the decision and conduct of the respondent in that he was denied PPCBR (parole)”. The application states:
“The applicant is aggrieved by the decision because:-
- That the Respondent erred in law in making the independent decision according to law.
- That the conduct of the respondent have denied the applicant from progression to the next stage of his sentence and have prohibited him from being eligible for Post-Prison Community Based Release (Parole).
- That the decision and conduct of the Respondent have meant that the applicant has been forced to stay in custody much longer then (sic) his initial parole eligible date.
- That the Parole Board Assessment Report – (PBAR) with a decision was created by 3rd & 4th party (QCS employees) whom have no jurisdiction, under the enactment.
- That the liberty of the Applicant is adversely affected by the decision and conduct of the respondent.
- That the Respondents decision and conduct was not independent as the Respondent failed to do their own assessment.
- That the Respondent relied on false material (not true) in making their decision.”
- The grounds in support of that application are set out in a 15 page document and essentially the applicant claims that every possible ground of review set out in ss 20 and 21 of the CSA has been established.
- The applicant expresses those grounds in the following terms:
“(A)That the making of the decision, by the “Respondent” failing to act according to the section of s 20(2)(a), 21(2)(a) of the JRA, that a breach of the rules of Natural Justice happened in relation to the conduct and the making of the decision. In particular the independent decision and assessment should be made by an impartial and unbiased person. The assessment was pre-judged by another party namely the “Parole Board Assessment Report”
(B)The Respondent failed to follow the procedures that were required by law to be observed in relation to the conduct and the making of the decision was unlawful if those procedures have not been followed, ss 20(2)(b), 21(2)(b) JRA.
(C)That the respondents conduct in the making of the decision did not have jurisdiction to make the proposed decision (s 20(2)(c), 21(2)(c) JRA).
(D)That the decision was not authorised by the enactment of CSA 2006 under which it was purposed to be made (s 20(2)(d), 21(2)(d) JRA).
(E)Improper exercise of power: irrelevant considerations (s 20(2)(e), 21(2)(e), 23(a), 23(b) JRA).
(F)Improper exercise of power: relevant considerations (s 20(2)(e), 21(2)(e), 23(a), 23(b) JRA).
(G)Improper exercise of power: improper purpose and bad faith, ss 20(2)(e), 21(2)(e), 23(c), 23(d) JRA.
(H)Improper exercise of power: exercise of personal discretionary power at the behest of another. Ss 20(2)(e), 21(2)(e), 23(e) JRA.
(I)Improper exercise of power: exercise of discretionary power in accordance with a rule or policy without regard to the merits of the case, ss 20(2)(e), 21(2)(e), 23(f) JRA. In particular that the respondent applied a pre-determined policy.
(J)That there is no evidence of other material to justify making the decision. (s 20(2)(h), 21(2)(h), 24 JRA).
(K)That the decision is otherwise contrary to law or is an exercise of power that is an abuse of power, ss 20(2)(i), 21(2)(i), 20(2)(2)(e), 21(2)(e), 23(i) JRA.
(L)Improper exercise of power: Exercise of a power that is so unreasonable that no reasonable person could so exercise the power, ss 20(2)(e), 21(2)(e), 23(f) JRA.
(M)Improper exercise of power in such a way that the result of the exercise of power is uncertain, ss 20(2)(e), 21(2)(e), 23(f) JRA.
(N)That the decision involved an error of law committed in the course of the conduct and the making of the decision, ss 20(2)(f), 21(2)(f). In particular the respondent failed to make their own assessment and failed to make a proper assessment of the risk to the community
(O)That the decision and conduct of the respondent was induced or affected by fraud, ss 20(2)(g), 21(2)(g).
(P)That the respondent failed to make a lawful decision according to the CSA 2006 & Court Order, ss 20 JRA, 193(1) + (5), s 241, s 245, s 238 CSA 2006.
(Q)That under 27 of JRA – “Applicant is not limited to the grounds listed directly in the written submissions by the applicant.”
- The orders sought by the applicant as set out in his application are:
(1)an order setting aside the decision;
(2)an order directing the respondent to re-consider its decision according to law, within seven days (next sitting) of such order and act on it:
(1)supply fresh statement of reason immediately; or
(2)release applicant on condition(s).
(3)such further and other orders as court deems fit; and
eg. Injunction that the respondent is to uphold CSA 2006; and
(4)costs of and incidental and associated to this application.
The essential grounds of review
- The applicant has provided extensive material in support of his application and it has been very difficult to understand the substantive arguments given the voluminous nature of the material. He has lodged an 81 page submission, together with 62 pages of affidavit material and an exhibit book, which runs to over 100 pages. In this material the applicant sets out an extensive background to his current application for parole. This material also includes arguments in relation to an earlier parole application, his frustrations about the length of time it took for that application to be dealt with and his objections to the requirement that the application had to be processed through Corrections Centre Management. There has already been a determination of his application for judicial review in respect of that earlier application. That decision was appealed to the Court of Appeal. This current application for judicial review, however, relates solely to the Board’s decision of 20 August 2008 and these reasons will address the arguments in relation to that decision only.
- The applicant has relied upon numerous grounds of review to submit that the Parole Board has fallen into error. Indeed many of the grounds for review are remarkably similar to those argued before Applegarth J in Gough v Southern Queensland Regional Parole Board[1] and it would appear that the applicant in the present case was in fact the author of the submissions in that case which explains the similarities. Whilst the arguments may be similar the factual background, however, has some relevant differences.
- The applicant’s grounds for review are lengthy and repetitious. Many allegations are made by the applicant. Many of them are absolutely without merit particularly where the applicant alleges that the decision of the Board was induced or affected by fraud. Indeed no substantiation has been provided for this and many other allegations. In many respects the applicant seeks a merits review of the Board’s decision to refuse him parole. I will, however, endeavour to deal with the applicant’s major arguments for review which are supported in some way. Totally unsupported allegations many of which are scandalous will not necessarily be specifically addressed. Arguments addressed to the applicant’s previous application for parole will also be disregarded unless they are specifically relevant to the current application.
- The applicant essentially seeks to demonstrate that the Board has fallen into error by having before it a Parole Board Assessment Report (“PBAR”) which was prepared by Queensland Corrective Services (“QCS”). The applicant submits that the Board has acted unlawfully by having regard to this report and essentially alleges that the Parole Board has delegated its decision-making powers to QCS employees who prepared the PBAR. The applicant submits that the Board has not acted in good faith and its decision was not independent because it was at the behest of QCS employees who compiled the report.
The Parole Board Recommendation Report
- The applicant’s grounds of review revolve significantly around his objection to the PBAR and the Board’s reliance on it. It is, therefore, necessary to examine the nature of that report.
- The 12 page Report is dated 20 March 2008 and was compiled after the panel conducted an interview with the applicant. The Report sets out a number of factual matters including the period of imprisonment, the sentences details, the pre-sentence custody dates, his eligibility dates, and his security classification. The Report then sets out in some detail a discussion of a number of other factors including a summary of the circumstances surrounding the offences, his previous criminal history, his progress in completing recommended interventions, his educational and vocational studies, his prison conduct, his health, and reintegration considerations.
- The Report contained many favourable statements with respect to the applicant. In particular it noted his educational successes including an Arts degree through Griffith University, his very good work history prior to his incarceration and his previous occupation as a computer consultant. It also noted that if he was released to parole he had been accepted into university to study for a Masters degree in Information Technology and Justice. The report also noted the numerous support letters attached to his application for parole. The Report then contained a summary which noted the positive aspects of his application including his willingness to participate in an assessment for participation in interventions, the development of a Relapse Prevention Plan, a willingness to comply with conditions, and the fact he had displayed appropriate institutional behaviour. The Report also noted that he had completed a three year probation order imposed in 1996 without contravention. It also stated “...the offender was assessed by a psychiatrist and no psychiatric disorder was reported.”
- The ultimate recommendation, however, was as follows:
“After considering all factors, including but not limited to, the serious nature of the offending, the subsequent sentence, eligibility dates, sentencing remarks, institutional behaviour, outstanding treatment needs, parole application, release plans, supporting documentation and panel interview, it was recommended that offender Kruck not be granted parole at this time. It is recommended that the offender participate in recommended interventions in an attempt to address his sexual offending.”
- In summary the Report indicated that the major reasons for the recommendation were:
“●The offender has outstanding treatment needs;
●The offender has displayed a lack of victim empathy;
●Serious nature of offending.”
- The conclusion that the applicant has outstanding treatment needs is somewhat remarkable given the PBAR stated:[2]
“An Orni –R assessment dated 16 June 2006 placed offender Kruck in the Low level of range of general criminogenic needs and indicated specific needs in the area of criminal/antisocial attitudes. No further psychological/psychiatric assessments have been located on his offender files.”
- Furthermore, in relation to the completion of the recommended interventions the PBAR stated that, whilst it was recommended that he undertake an assessment for the Sexual Offending Program (“SOP”) and it also stated that he had reintegration needs, there was in fact no reference to any treatment needs. The PBAR also acknowledged that whilst the applicant was approached in March 2007 to participate in the SOP he would not be approached to participate in the SOP until his outstanding legal matters had been finalised and that as at March 2008 he had not been afforded a second opportunity to participate. The PBAR stated that:
“According to offender Kruck’s Offender Management Plan (OMP), dated 11 August 2006, he has been recommended to undertake a Specialised Assessment for a Sexual Offending Program and to participate in the Transitions Program in order to address his reintegration needs. File information indicates that he was approached by the Sexual Offending Programs Unit (SOPU) on 5 March 2007 in relation to the Getting Started: Preparatory Program. A letter from the SOPU dated 7 March 2007 noted that offender Kruck had outstanding legal matters at the time and indicated that he would be reapproached for a Sexual Offending Program Assessment once his legal matters had been finalised. To date, he has not been afforded a second opportunity to undertake a Specialised Assessment for a Sexual Offending Program.
During the preliminary interview, offender Kruck stated that he doesn't ‘mind doing an assessment as long as it maintains my innocence, otherwise I’ll end up suing’. In relation to the Transitions Program, offender Kruck stated that he is willing to complete modules that are relevant to his circumstances and that he has already ‘picked out the modules that might help’.”
Grounds for the application
- The applicant has essentially argued that every ground set out in s 20 (2) of the JRA has been established. I will, however, at the outset consider the three major grounds which I consider are raised on the applicant’s material.
Breach of natural justice
- Throughout his application for judicial review the applicant consistently argues that he has been denied natural justice and this argument is presented in a variety of ways. I do not consider that there is any substance to the argument that it is a breach of natural justice for applications for parole to be through Sentence Management as this is a purely facilitative arrangement which does not affect the decision making process in any way. Furthermore, pursuant to s 265 of the CSA the chief executive must make administrative procedures to facilitate the effective and efficient management of corrective services and the procedures established are not contrary to the legislation.
- Whilst the applicant argues that the fact that the respondent allowed the PBAR to be compiled is also a breach of the rules of natural justice this will be separately considered later under the discussion in relation to delegation of powers and bias. It should be noted however that the applicant was given the opportunity to consider and respond to the PBAR.
- The applicant also specifically argues that there has been a breach of natural justice in relation to the panel’s recommendation in relation to the Home Assessment Report. In particular he seeks to challenge the factual basis of the Home Assessment and argues that he should have seen copies of the “facts” supporting the assessment. He also criticises the failure to give him a statement of reasons in relation to that assessment. He also argues that the Board should have made their own inquiries in relation to that assessment and should not have accepted the PBAR conclusion that the housing proposal on release was “unsuitable”. An analysis of the Board’s decision, however, reveals that it makes no reference to the Greenbank Home Assessment which was referred to by the PBAR dated 20 March 2008. Indeed in the letter to the applicant dated 21 July 2008 which set out the Board’s preliminary view and which invited the applicant to respond, the Board had in fact stated “…[y]ou have nominated to reside with a friend and his mother at Bundamba. The residence has been assessed as suitable for parole supervision subject to your ensuring all residents are made fully aware of your criminal history.” This was based on a subsequent Home Assessment Report dated 17 June 2008 which had approved his accommodation. Clearly then the factual basis of the applicant’s argument in this regard is incorrect.
- In any event as previously stated, the Board may take any relevant factor into account. As White J also stated in Weribone v Senior/Area Manager, Brisbane North Community Corrections:[3]
“A board may make use of any information that it considers necessary to make the decision, s 140 Corrective Services Act 2000. The recommendation contained in the home assessment report was just that - a recommendation to the Board. The Board considered that report as well as some 17 other documents when making its decision.”
- Clearly then the Board was entitled to take the Home Assessment Report into account and in any event turned an independent mind to the decision because the view that the Board adopted in relation to his accommodation was different to that of the panel. The Board indeed made its own assessment. This ground is clearly not able to be supported.
- The applicant has also challenged the use by the panel of the Offender Risk Need Inventory Revised (“ORNI-R)” (on which the applicant scored as a low risk) and his security classification on the basis that they are unreliable and cannot therefore be relied upon by the respondent. The difficulty with this argument is that the Board is entitled to take it into account and in any event that assessment noted quite favourably to the applicant that he was a low risk.
- The applicant also challenged the accuracy of his criminal history in the QCS records as he had a successful Queensland Court of Appeal decision which subsequently resulted in a nolle prosequi being entered in relation to one of the charges. At the hearing, however, the applicant confirmed that the criminal history as set out by the panel in its report and the Board in its decision were in fact correct. There is no basis for an argument, therefore, that the Board relied on inaccurate information in coming to its decision.
The delegation of the decision and alleged bias grounds in relation to the PBAR
- One of the major grounds for the application was the applicant’s submission that the Parole Board took into account and relied upon the decision contained in the PBAR dated 20 March 2008. The applicant essentially argues, therefore, that the decision was actually made by another party and not the Parole Board. That is that the Parole Board has delegated its decision making to QCS employees who produced the PBAR. The applicant also argues that the Parole Board has acted in bad faith, was biased, and prejudiced because of their reliance on this report and that it was not independent. He also argues that the Parole Board’s decision was induced or affected by fraud.
- Under s 231(a) of the CSA, one of the functions of the Board is to decide applications for parole. The Board’s discretion is unconfined and the facts relevant to the exercise of that discretion are also unconfined. In McQuire v South Queensland Regional Community Corrections Board White J observed:[4]
“There are no express criteria for application by a Board when considering an application for post-prison release. The discretion is unconfined except as the matter and scope of the statutory provisions will dictate what it is that must be kept in mind. An object of the Corrective Services Act 2000 is for ‘community safety and crime prevention through humane containment, supervision and rehabilitation’, s 3(1). The interests of the public must be a necessary aspect of any decision to grant release.”
- It is clear that the PBAR which is prepared for the Parole Board simply provides a recommendation and the board is not bound by that recommendation. Whilst I note the PBAR referred to outstanding treatment needs, this is not specifically referred to by the Board in its decision and in fact the Board simply indicated that the applicant’s denial of the offences presented “…serious problems in identifying a sound case formulation and therefore in identifying appropriate treatment targets and effective risk management strategies” rather than actually stating he had outstanding treatment needs.
- Therefore, a perusal of the Board’s reasons as set out above indicates the basis for the Board’s decision and it is clear that it had regard to the PBAR. However, in my view the Board has not delegated its decision making because a perusal of the reasons indicates it came to its own view based on a number of factors. Applegarth J decisively dealt with a similar ground in Gough where he stated:[5]
“The fact that the recommendation contained in the PBAR was considered and effectively adopted by the Board does not mean that the decision under review was not the Board’s decision. The panel did not assume the jurisdiction of the Board, and the Board exercised the jurisdiction conferred upon it.”
- I do not consider that this ground is established.
- The applicant also alleges that because the members of the panel who prepared the PBAR would not answer questions he put to them at the interview on 20 March 2008 this indicates that the panel was biased towards him. Clearly such a claim is without merit.
- He also alleges that because he did not have an opportunity to “…refute issues within the report being prepared” that this was a breach of natural justice. However, it is clear from the affidavit material that the applicant was fully aware of the panel’s report as it was set out in the letter to him of 21 July 2008 and he had an opportunity to comment and contest the report before the Board’s decision. In this regard it is also clear that the applicant’s complaints relate to the panel however his application for review relates to the decision of the Board.
- In many respects the applicant consistently confuses the panel and the Board. His complaints about the selection of members of the panel are not relevant to selection of members of the Board pursuant to s 232 of the CSA. The panel did not determine his application for parole and any complaints about the actions of the panel, even if they were substantiated, would not assist him in his application for a review of the Board’s decision unless there was a breach of natural justice which was essentially in relation to the ultimate decision. As Applegarth J stated in Gough, “…[t]he panel’s report is not the subject of an application for judicial review. The decision under review is the Board’s decision.”[6]
- The applicant also argues that there is bias because of the weight afforded to the PBAR by the Board. In this regard I also rely on the reason in Gough as follows:[7]
“[38]…In alleging a breach of natural justice in relation to that decision the applicant alleges that the Board failed to apply ‘weight to the applicant’s whole application and applied heavy weight to PBAR’. This is the first of many places in the applicant’s submissions in which, in one form or other, there is a complaint about the influence of the panel’s report upon the Board’s decision.
[39] The allegation that the Board gave excessive weight to the PBAR does not provide a sound basis for judicial review on the ground of breach of natural justice or for judicial review in general. Excessive reliance on the panel’s report may be relevant to certain grounds of judicial review, for instance, if as a result of excessive and unreasonable reliance upon the PBAR, the Board made a decision that no reasonable decision-maker in its position would make. Excessive reliance upon a flawed report may provide some evidence that the Board was engaged in the exercise of a discretionary power in accordance with a rule or policy without regard to the merits of the applicant’s case. These grounds of judicial review will be separately considered. In the absence of any statutory indication of the weight to be given to various considerations, it is generally for the decision-maker and not the court to determine the appropriate weight to be given to the matters which are required to be taken into account in exercising a statutory power. The applicant’s submissions that excessive weight was given to the PBAR, or that the Board’s decision was against the weight of the evidence, do not provide a proper basis for judicial review.”
- Furthermore, I do not consider that the ground of alleged bias has been established on the evidence set out in the applicant’s submissions. Whilst the applicant refers to “agency capture” in his outline and his affidavits, this is not substantiated in any way.
- I do not consider that the applicant’s argument for judicial review on these grounds has been established and as I have previously indicated there is simply no basis for the applicant’s allegations of “fraud”.
Improper exercise of power due to the failure to consider the merits of the case
- The applicant argues that the Board applied a “…rigidly enforced policy which denied a true and honest assessment of the merits”. The applicant argues that he was denied parole because he denies his guilt. It is clear that in its Reasons the Board carefully stated “…[t]he Board noted that you have maintained your complete innocence of these offences. The mere fact you have maintained your innocence does not prejudice the view of the Board against you.” However, the Board later on in the Reasons addressed the fact that his denials posed difficulties in relation to his participation in appropriate programs and the formulation of a relapse prevention plan. To address that difficulty the Board indicated that an assessment by Dr Freeman would have assisted them.
- The Board also indicated that the applicant’s claim of innocence did not affect his eligibility for assessment and participation in programs. However, the reality was that because of the failure to actually take part in an assessment or to participate in a program the Board considered that:
“…[i]n absence of any professional assessment and taking into account the considerations of Parole Board Assessment Report, the Board had before it no indication that you have demonstrated any understanding of how you came to be the subject of these serious charges or empathy for the victims of your offending.”
- Having reviewed the applicant’s material in support of his application for parole I do not consider that the Board considered the merits of his case but in fact did apply a pre-determined policy. The applicant had prepared an extensive 39 page submission is support of his application. This submission addressed his supportive family background, previous relationships, criminal history, excellent prison history, his life principles and philosophy, as well as noting his extensive support network, his good work history as well as stating that he had not breached a previous community based order. He indicated in his material that he was aware of the effects and problems experienced by victims and stated he did understand the feelings they would experience as he attached a document setting out those feelings. He stated “...I understand some of the problems are nightmares, sexual discomfort, eating disorders, stress, future relationship problems and substance/alcoholic abuse.” Whilst maintaining his innocence he also stated in his submissions that he had a relapse prevention plan which included “…[e]nsure no children are within my care when I am alone.” Furthermore, he also indicated that “...[m]y prevention plan is to ensure a responsible adult is with me in the event of children being around.” He also indicated that he would not go within 200 metres of a school. The plan also included a list of the professional support which he could access and the contacts he had made with psychologists Dr Frank Walsh and Ian Campbell in relation to post release support and therapy for men who had been convicted of a sexual offence.
- Despite these issues having been addressed in the application the Board concluded that in the absence of any professional assessment it “…had before it no indication” that the applicant had empathy or an understanding of how he came to be the subject of the charges. I consider that the Board’s view that despite the applicant’s submission it had before it “no indication” indicates that the Board did not actually consider the merits of the applicant’s case. Rather than actually assessing the relapse prevention plan submitted to them by the applicant, the Board stated that it could not be satisfied that the plan was sufficiently comprehensive because it had not been assessed by Dr Freeman. I consider that the applicant’s plan was not considered on its merits but rather in accordance with their policy that it had to be essentially evaluated before it could be considered. I consider that their view was based on the application of a policy in this regard rather than an actual assessment as to whether he was in fact an unacceptable risk to the community.
- If one considers the “Reasaons (sic) for the Decision” of the Board it is clear that the real reasons why the application was refused was first that no assessment had been undertaken as the Board required, second that the Sex Offender Program had not been completed as required and third the Relapse Prevention Plan which had been prepared had not been able to be subject to professional scrutiny as the Board required.
- In my view the Board did not turn its mind to actually considering the merits of the applicant’s case because essentially he had failed to comply with the pre-requisites that the Board required before they would grant parole. I consider an examination of the Reasons of the Board discloses that it exercised its power in accordance with such a policy and without having regard to the actual merits of the applicant’s actual application for parole. I consider that the Board did not actually consider all the relevant material placed before it. The applicant had appropriate accommodation, extensive community support, an outstanding work history as well as a willingness to participate in programs, and he had a place in a Masters course at university if released. Furthermore, he did not drink or have any substance abuse problems. The PBAR in fact noted “…[t]hus, no criminogenic needs in relation to substance abuse were identified…he has not incurred any breaches or negative incidents during his incarceration.”
- There is no evidence in the Board’s Reasons that they actually considered and evaluated the applicant’s arguments in relation to the risk he posed to the community. Despite the fact that the Reasons are carefully worded to avoid any implication that the Board required an assessment and participation in a program before the applicant would be considered eligible for parole this was in fact the reality and this indicates compliance with a policy and failure to consider the merits.
- I consider that the circumstances of the current case are in fact remarkably similar to those discussed by Chesterman J, in relation to applications for remission, in Weribone v Chief Executive, Department of Corrective Services:[8]
“Reading the delegate’s reasons with that stricture in mind, one is nevertheless left with the impression that it was, in the delegate’s opinion, the applicant’s failure to undergo the Sex Offenders’ Treatment Program and, perhaps a Substance Abuse program, which made him an ‘untreated’ offender. The delegate gave no other reasons and, significantly, did not address the question whether the applicant’s demonstrations of rehabilitation, requiring as they did, a degree of dedication and self-discipline showed that any risk of re-offending was within the limits of the acceptable.
There is no doubt that the applicant has been of good conduct and industry during his incarceration. The only question is whether his discharge on remission would pose an unacceptable risk to the community. That question must be asked by reference to all of the relevant circumstances appertaining to his individual case. They include, of course, his stubborn refusal to admit his guilt and undergo the program, but also the extensive evidence of commitment to industry and education. The circumstances would also include the fact that he is a moderate or low risk of committing further sexual offences, and that his vocational and educational qualifications should enable him to obtain employment and thereby substantially reduce the risk that he would feel the need to steal. They would also include the circumstance that he appears to have overcome his addiction to alcohol and does not appear to be prone to violence.
One looks in vain in the delegate’s reasons to find any discussion of these circumstances. One sees only a reference to the denial of guilt and concomitant failure to undertake the Sex Offenders’ Treatment Program.
In my opinion the applicant has made out his case. His application for remissions was not considered on its merits. The delegate did not have any proper regard to the circumstances in favour of the grant of remissions and did not consider the particular circumstances of the applicant.”
- In examining the Board’s decision I am satisfied that the decision was discretionary because it was made in accordance with a policy and without regard to the merits of the case.
- This is an improper exercise of power under s 23(f) the JRA.
- Whilst the applicant has relied on numerous more grounds to support his application for judicial review having established that his application has been successful I do not consider it necessary to consider the other grounds.
ORDERS
- The application is allowed.
- The decision of the respondent dated 20 August 2008 is set aside.
- The application for parole is referred to the respondent for reconsideration.
Footnotes
[1] [2008] QSC 222.
[2] At 6.3.
[3] [2005] QSC 347 at [23].
[4] [2003] QSC 414 at [28].
[5] Gough v Southern Queensland Regional Parole Board [2008] QSC 222 at [29].
[6] Gough v Southern Queensland Regional Parole Board [2008] QSC 222 at [38].
[7] Ibid at [38]-[39].
[8] [2007] QSC 129 at [29]-[32].