Stewart v Southern Queensland Regional Parole Board
[2009] QSC 332
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- Unreported Judgment
- Stewart v Southern Queensland Regional Parole Board[2009] QSC 332
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Stewart v Southern Queensland Regional Parole Board[2009] QSC 332
Stewart v Southern Queensland Regional Parole Board[2009] QSC 332
SUPREME COURT OF QUEENSLAND
PARTIES: | |
FILE NO/S: | |
Trial Division | |
PROCEEDING: | Application |
ORIGINATING COURT: | |
DELIVERED ON: | 15 October 2009 |
DELIVERED AT: | Brisbane |
HEARING DATE: | 7 October 2009 |
JUDGE: | White J |
ORDER: | 1.The application for a statutory order of review filed 7 July 2009 is allowed. 2.The decision of the respondent made 28 May 2009 to refuse the applicant a parole order is set aside. 3.The application to which the decision relates be referred to the respondent for further consideration to be dealt with by the respondent according to law. 4.The respondent pay the applicant’s costs of and incidental to the application, if any, to be assessed on the standard basis. |
CATCHWORDS: | ADMINISTRATIVE LAW – JUDICIAL REVIEW – GROUNDS OF REVIEW – APPLYING POLICY AND MERITS OF CASE – where the applicant is a prisoner aggrieved of a decision of the respondent Parole Board declining his request to be released on parole – whether the respondent applied a policy and failed to consider the application on its merits – whether the decision of the respondent should be set aside Corrective Services Act 2006 (Qld), s 3, s 193(5), s 231, s 227 Judicial Review Act 1991 (Qld), s 20(2) Bruce v Cole (1998) 45 NSWLR 163, cited Gough v Southern Queensland Regional Parole Board [2008] QSC 222, cited Khan v Minister for Immigration and Ethnic Affairs [1987] FCA 457, applied Kruck v Southern Queensland Regional Parole Board [2009] QCA 219, cited McQuire v South Queensland Regional Community Corrections Board [2003] QSC 414, cited Paramananthan v Minister for Immigration and Multicultural Affairs (1998) 94 FCR 28; [1998] FCA 1693. cited Weribone v Senior/Area Manager, Brisbane North Community Corrections [2005] QSC 347, cited Williams v Minister for the Environment and Heritage (2003) 74 ALD 124; [2003] FCA 535, cited |
COUNSEL: | The applicant appeared on his own behalf SA McLeod for the respondent |
SOLICITORS: | The applicant appeared on his own behalf Crown Solicitor for the respondent |
[1] The applicant is a prisoner who is aggrieved of a decision of the respondent Board (“the Board”) made on 20 May 2009 declining to grant his request to be released on parole. The Board provided its statement of reasons in a document dated 28 May 2009.
[2] The grounds of review in the application, which were developed in the submissions filed in advance of the hearing, and an additional ground in the submissions of the applicant who appeared for himself at the hearing are:
(i)the Board failed to consider the application on its merits and applied a policy;
(ii)the Board used discriminatory and inaccurate information;
(iii) the Board acted beyond its statutory role;
(iv) the Board engaged in an unreasonable exercise of power; and
(v) the Board was unduly influenced by the decision of the Authorised Delegate not to accept the recommendation of the Parole Board to release the applicant on parole.
While not all of these grounds directly engage the language of s 20(2) of the Judicial Review Act 1991 (Qld) it was not submitted by Mr McLeod, who appeared for the Board, that they did not fall within one or more of the statutory grounds for review.
Background
[3] The applicant is now aged 43 years. He was found guilty on 16 March 2005 after a trial of one count of maintaining an unlawful sexual relationship with a child under the age of 16 and one count of unlawful carnal knowledge. The child was the 12 year old daughter of a friend of the applicant. The applicant was aged 38 at the time. The relationship was carried on over some months and occurred when the child’s father visited the applicant’s home and the two men had drinking sessions.
[4] The applicant was sentenced in the District Court to seven years imprisonment on the maintaining charge and three years imprisonment on the unlawful carnal knowledge charge to be served concurrently, with no recommendation made for parole earlier than the statutory minimum time.
[5] The applicant’s full time release date is 15 March 2012. His parole eligibility date was 16 September 2008. His security classification, common for inmates convicted of sex offences, is High. He has no similar past convictions. His only prior convictions are minor and occurred many years earlier when a youth.
[6] The applicant attempted unsuccessfully on many occasions to obtain a place on a Sex Offenders Treatment Program (“SOTP”) from early 2006 to 8 May 2008. The applicant accepts that a position will not be offered until the final year prior to a prisoner’s parole eligibility date. During that year he made four written enquiries for participation on 22 and 29 October 2007, 11 December 2007 and 8 May 2008. On 31 October 2007 he was told that he was:
“…waitlisted for an assessment for sexual offending programs and this will occur with due consideration of September 2008 parole eligibility date. Priority for assessment and placement on a sexual offending program is by proximity to parole eligibility date/full time release dates. This ensures that offenders access programs via a fair and equitable process.”[1]
That letter was signed by Shannon Atkins, Acting Regional Co-ordinator, Sexual Offending Programs.
[7] On 8 May 2008 the applicant filed a request on a Prisoner Request Form in the following terms:
“Could you please let me know when I may be able to start the prep course. Thank you.”
[8] The response dated 14 May 2008 from Roberta Embrey, Manager Offender Development, was:
“You will be offered placement in accordance with your dates. It may be a wait of 3 months at this stage.” [2]
[9] The applicant completed the Getting Started Program for sex offenders on 22 September 2008 but was unable to secure a position on a SOTP prior to making his application for parole. He was not offered a place on the Medium Intensity Sexual Offending Program (“MISOP”) until 17 April 2009. Such a course takes approximately four months to complete, I was informed at the hearing of the application. The applicant declined the place as it was so far past his parole eligibility date that he wished to complete a similar program in the community. The failure to secure a place in the course earlier was an aspect of the applicant’s parole application.
The applicant’s parole application
[10] The applicant applied for a parole release order on 7 November 2008. He provided extensive submissions, a supporting letter from his de facto partner, other letters from a wider friendship group as well as letters from professionals evidencing the availability of sex offenders’ treatment programs in the community.
[11] The applicant’s pre-incarceration educational achievement was modest but he had been regularly employed except when caring for his young son, who was diagnosed with ADHD and Asperger Syndrome. The applicant had a very disadvantaged young life. While in prison he has completed a large number of vocational courses. He has no disciplinary breaches and has been in long term employment in the prison, particularly as a landscaper.
[12] In support of his application for parole the applicant wrote of his own deprived background, marriage, marriage break-up and difficulties with his son’s ADHD and Asperger Syndrome symptoms. He describes his reconnection with the father of the complainant and their heavy drinking during this difficult time. He wrote that he had:
“…pleaded ‘not guilty’ at my trial as I was afraid of the consequences of any convictions and I did not want to go to jail. I now fully accept the facts as put to the court.”[3]
The applicant had been charged with rape and alternatively unlawful carnal knowledge (in respect of which he was convicted), and wrote that he knew that he had not raped the child but that he had taken advantage of her “crush” on him.[4] The applicant recognised that the complainant
“…will most likely suffer some psychological harm from my actions and may experience problems in her future relationships. As my victim was the daughter of a friend, she may have issues with other friends of her father and issues with men in general.”[5]
[13] After being charged with the offences, the applicant noted to the Board that he ceased all alcohol use and had been alcohol free for a year while on bail before being imprisoned. He noted that his main support group and his de facto partner and her family are non-drinkers.
Prisoner Assessments
[14] Early in his imprisonment, on 5 May 2005, the applicant participated in an Offender Risk Needs Inventory (“ORNI”). He was assessed then as having general criminogenic needs in the Moderate Range. They included substance abuse, employment potential and criminal attitudes with specific needs pertaining to his sexual offending. The applicant participated in the Specialised Assessment for a Sexual Offending Program on 9 April 2008. The assessment consisted of the STATIC-99, an instrument used to assist clinicians in identifying the risk of sexual recidivism for males over the age of 18 years who have committed at least one sexual offence, and the STABLE-2000, described as an instrument used to identify criminogenic needs/intervention targets for sexual offender programs.[6] The STATIC-99 assessed the applicant’s long term static risk of sexual recidivism as being in the Low range and the STABLE-2000 assessed the applicant as having a number of treatment targets.
[15] As a result of that assessment the applicant was recommended to complete the Getting Started: Preparatory Program for Sexual Offending and New Directions: Medium Intensity Sexual Offending Program. As mentioned, the applicant completed the Getting Started: Preparatory Program for Sexual Offending on 22 September 2008. The exit report for that program noted that the applicant took full responsibility for his offending behaviour and had begun to address some of his risk factors and develop strategies which would support his intention to live an offence-free lifestyle. It concluded:
“He will benefit from exploring these factors more deeply in the New Directions: Medium Intensity Sexual Offending Program.”[7]
[16] The applicant had also been recommended to participate in a substance abuse program which he completed on 19 October 2006. He had a positive report about his participation and was regarded as having successfully completed the program.
[17] The Parole Board Assessment Panel[8] prepared a lengthy (13 pages) analysis of the applicant’s fitness for parole for the Board which included a review of prison assessments about the applicant, a review of his prison conduct and an interview with the applicant. It is dated 5 December 2008. The Panel recommended:
“After considering all factors, including but not limited to the serious nature of the offences, period of imprisonment, proximity to release dates, sentencing remarks, institutional behaviour, participation in interventions, parole application, release plans, supporting documentation and the panel interview, it is respectfully recommended [the applicant] be granted parole.”[9]
The Panel recommended that the applicant complete the New Directions: Medium Intensity Sexual Offending Program within the community and undertake breath testing and submit to urinalysis testing as required by a corrective services officer. The summary of the reasons given for the recommendation[10] were the applicant’s pro-social support network, his understanding of high risk factors and appropriate strategies to manage the risk of re-offending.
[18] The Panel noted that the applicant:
“…reported that he does not know whether or not he is willing to participate in this program while in custody and he stated that he would seek the advice of his solicitor. He reported that he has been asking to participate in the program in the past but now desires to participate in the program in the community. The [applicant] provided information about the psychologists/ psychiatrists in the community that would be willing to help him address his offending behaviour.”[11]
The Panel referred to the applicant’s vocational studies and concluded on his conduct and employment:
“[The applicant] was employed from 26 February 2005 in industries Coatings and currently is employed as a grounds keeper. He has been employed as a grounds keeper since 05 February 2005. [The applicant] has been reported as a very diligent worker and accepts his responsibilities conducting all his duties. [The applicant] has produced all that has been required of him and more to a very good standard. [The applicant’s] work ethic has always been reported at a good level during his sentence. This position is a trusted position.”[12]
[19] The Panel identified the only risk factor as the outstanding treatment needs pertaining to his sexual offending. It listed the many positive factors in his favour. His relapse prevention plan was assessed as being appropriate. When the applicant had appeared before the Panel he was noted to interact well with them. The Panel reported:[13]
“[The applicant] stated to the panel that he believes he took advantage of his friend’s child and had not been thinking straight. [The applicant] said his victim was vulnerable and had placed her trust in him. [The applicant] informed the panel his victim’s mother was a prostitute, offering a possible explanation as to why his victim would have been attentive towards him.”
[20] A Home Assessment was made on 15 December 2008. The only reservation was a concern that the applicant’s de facto partner would reside away from the proposed residence for some four nights a week, as her sister’s carer, and it was in this residence that the offending occurred when the applicant’s friend had visited. There was no suggestion that the friendship would be rekindled.
[21] On 8 January 2009 Kate Holman, the General Manager of the correctional facility where the applicant resides, did not endorse the Panel’s recommendation. She wrote:
“I do not endorse the recommendations made in the Parole Board Assessment Report for the following reasons:
[The applicant] has not yet engaged in the New Directions: Medium Intensity Sexual Offending Program, and therefore remains an untreated sex offender;
[The applicant] articulates an externalisation of blame stating the victim’s mother was a prostitute and that the victim had a ‘crush’ on him; and
[The applicant] states he is a ‘responsible drinker’ and denies problematic alcohol use however alcohol was instrumental in his offending.”[14]
[22] If this opinion had an influence on the Board there are a number of things to observe about it:
(i)the first reason does not address the applicant’s preparedness to participate in a sex offenders’ treatment programme in the community at his cost;
(ii)the observation that the applicant “articulates an externalisation of blame” is a distortion of the attempted explanation for the child having a “crush” on him which is set out in the Panel’s Report and appears above at [18];
(iii)the learned sentencing judge observed:
“In my view, the evidence bears out that this child did develop a childish crush of you that, at some point, you allowed to descend into sexual contact.”
His Honour added:
“I am satisfied, given the jury’s verdict in relation to count 3, that there was no force; that she was a willing participant in the sense that a child in that position, aged 12, can be a willing participant with a male adult in sexual intercourse. It is well known that children of that age are vulnerable and, in my view, you took advantage of her vulnerability.”
(iv)The Authorised Delegate’s statement about alcohol consumption seems not to have taken into account the successful completion by the applicant of the substance abuse program and that the applicant was on bail for a year during which time he abstained from drinking alcohol.
Board’s response to the application
[23] The applicant received no response to his application for parole and noted in his letter dated 7 March 2009 that since he had not been informed of a decision within the 120 days provided for in the Corrective Services Act 2006 (Qld)[15] he requested a statement of reasons and a copy of all documentation relied upon relating to the statement of reasons. At the invitation to the Board on 10 March 2009 the applicant applied again to the Board for a parole release order. In his supporting letter received by the Board on 19 March 2009[16] he requested that should he be granted parole he would be keen to participate in a recognised MISOP within the community and was prepared to undertake it at his own expense.
[24] By letter dated 13 March 2009[17] the Board responded:
“Your application for a parole order was considered by the Southern Queensland Regional Parole Board (“the Board”) at a meeting held on 25 February 2009. The Board acknowledged that the material considered by it contain a number of positive factors supportive of your application. However there are also some factors that work against your application being successful. The Board has not made a final decision on your application. The purpose of this letter is to draw to your attention factors that suggest to the Board you would pose an unacceptable risk to the community and provide you with an opportunity to comment on them or present to the Board further relevant information.
Enclosed with this letter are copies of the documents that the Board had and considered. They consist of documents numbered 1 to 95 on the file maintained by the Secretariat.
Additionally the Board were considerate [sic] of the 2008 Queensland Parole Board Guidelines to the Regional Parole Board.
The 2008 Queensland Parole Board Guidelines provide guidance to the Regional Parole Board for the exercise of its discretion and in particular observe that community safety must be regarded as of the highest priority.
The Board was concerned that the following information and factors indicate that if released you would pose an unacceptable risk to the community:–
You are currently incarcerated for the following offences:
Offences | Offence Date | Sentence | Sentence Date |
Maintaining unlawful relationship with a child | Between 01.05.2003 and 01.05.2004 | 7 Years | 16.03.2005 |
Unlawful carnal knowledge | On or about 25.02.2004 | 3 Years | 16.03.2005 |
Given the nature of these crimes, the Board needs to be properly assured that you will not be a risk to the community and will not commit acts of a similar nature again. Hence, in evaluating your risk in relation to parole the Board must be satisfied that you have done everything possible to abate this risk factor.
The Offender Risk Needs Inventory (ORNI) assessed you as having general criminogenic needs in the Moderate range and it was identified that your general criminogenic needs included substance abuse, employment potential and criminal attitudes with specific needs pertaining to your sexual offending. It is noted that you have successfully completed the Getting Smart: Moderate Intensity Substance Abuse Program. The Specialised Assessment for a Sexual Offending Program recommended you complete the Getting Started: Preparatory Program for Sexual Offending and New Directions: Medium Intensity Sexual Offending Program. The Board acknowledges that you completed the Getting Started Preparatory Program on 22 September 2008 at Wolston Correctional Centre. The exit report records that you have begun to address some of your risk factors and develop strategies which will support your intent to live an offence-free lifestyle. It was further stated that you would benefit from exploring these factors more deeply in the New Directions: Medium Intensity Sexual Offending Program. The Board noted that you may be unwilling to complete this course, but encourages you to actively participate and gain knowledge and skills from this program as it will assist significantly in your rehabilitation. The Board may then have confidence that when you come across any of your risk factors or triggers you may act appropriately and so minimise your risk of re offending in the community.”[18]
[25] The Board invited the applicant to make a written submission as to why the parole order should be granted. It might be observed that an applicant receiving that letter, particularly the statement that he was unwilling to complete the MISOP, would wonder if the Board had actually read his application. The applicant’s concern, which would have been clear from his file correspondence, was that he had not been offered the course despite writing of his desire to participate since 2006 on numerous occasions and despite being assured that his parole eligibility date was being kept in mind. Since his parole eligibility time had well passed, he was proposing that he take the course in the community.
[26] On 27 March 2009 the applicant was represented by Conroy & Associates, solicitors, who wrote to the Board that the 120 days from the date of the applicant’s parole application being made had passed without a decision and therefore a deemed refusal had occurred and requested reasons.[19] The Board responded on 1 April 2009[20] that notwithstanding the deemed refusal the Board considered that it was still able to proceed with the application should it receive a response to its preliminary view dated 13 March 2009.
[27] On 30 March 2009 the applicant made further submissions to the Board in response. He particularly attempted to clarify his position about participation in the MISOP. He wrote:
“I cannot stipulate enough the importance of the Board knowing that I am not by any means refusing to do this very essential course, but rather showing my willingness to participate in this course, within the community. I am fully aware of the benefits and knowledge I will gain from participating in this very beneficial course and I am prepared to do it at my own expense!
I have in fact contacted ten (10) organizations whom offer this service within the community and they are all willing to offer me this very important course upon my Parole being granted.”[21]
The applicant then continued with a number of positive factors which he hoped would cause the Board to assess his application on its merits.
[28] On 20 April 2009 the Board refused the applicant’s application for parole. It wrote:
“At its meeting on 15 April 2009, the Board fully considered your submission. The Board took into account your engagement of professional assistance, and your willingness to do the courses given the distance between your proposed address and Brisbane City where the programs are conducted.
For the reasons set out in this letter and its previous letter to you the Board decided that you would be an unacceptable risk to the community on a parole order at this time and your application has been declined. The Board has concluded that the best course consistent with community safety is for you to complete MISOP in custody.”[22]
[29] On 29 April 2009 Conroy & Associates wrote to the Board reminding the Board that the applicant had not been offered a place in the MISOP program prior to his parole application date falling due, despite requests. The solicitors drew to the Board’s attention that the applicant had been informed by Sentence Management that he would not have an opportunity to participate in a MISOP for some months which would mean that when he completed that course, a further 11 months would have elapsed since becoming eligible for parole and asked the Board to reconsider. The Board was unpersuaded and responded on 28 May 2009:
“The Board noted that [the applicant] was offered to complete Medium Intensity Sexual Offending Program (MISOP) on 17 April 2009 which he declined as he wished to complete the course within the community. Please be advised that the course will not be offered again to [the applicant] unless he advises the Correctional Centre that he is prepared to complete the course.
Further, the Board has fully considered the parole application and submissions you provided on behalf of [the applicant] at its meeting on 20 May 2009 and decided to decline his application at this time.”[23]
[30] The Reasons dated 28 May 2009 set out a brief chronology and the material which the Board considered.[24] The Board stated it had taken into account the Ministerial Guidelines about the policies to be followed by a parole board pursuant to s 227(1) of the Corrective Services Act. It noted:
“The guidelines state that a parole board should give the highest priority to the safety of the community.”
It added:
“However the Board independently exercised its discretion and ensured that your application was considered on its own merits without any inflexible application of policy.”
The Board stated that its decision was based “on the following finding of fact”:
•a period of imprisonment of seven years “for sexual offences against a child”;
•extracts from the sentencing remarks relating to aggravating features of the offences, namely the disparity in age but noting the relationship was only for a few months; consensual carnal knowledge when a guest in the applicant’s house; a childish crush; although a willing participant a vulnerable child; assumption that she had suffered psychological damage in the absence of a victim impact statement.
•ORNI assessed the applicant’s general criminogenic needs in the moderate range and which included substance abuse, employment potential and “criminal attitudes with specific needs pertaining to…sexual offending.”
The Board noted that the applicant had completed both the substance abuse program in October 2006 and the Preparatory Program for Sexual Offending on 22 September 2008 and added:
“However the Board noted that you are still to complete the New Directions: Medium Intensity Sexual Offending Program.”
[31] The Board then set out the salient points of the applicant’s submissions and stated that the decision to refuse parole was made for the following reasons:
“After taking into account all of the relevant factors of your case, both positive and negative, the Board declined your application for release on parole for the following reasons:
•The Board considers as a significant factor the gravity of your offending behaviour for which you have been sentenced to at least 7 years for sexual offences involving a 12 year old girl.
•The Board noted that the exit reports of the programs you completed recorded that you have begun to address some of your risk factors and have developed strategies which will support your intention to live an offence-free lifestyle. However the Board noted that you are still to complete New Directons: Medium Intensity Sexual Offending Program (MISOP). You are encouraged to actively participate and gain knowledge and skills from this program as it will assist significantly in your rehabilitation. The Board also note [sic] that you have been offered to complete MISOP on 17 April 2009 and that you have declined to participate.
•The Board at its meeting on 20 May 2009 took into account the positive factors that were outlined in your submissions, and while it noted your preference to complete the MISOP program in the community and have presented alternative arrangements to allow you to complete this program if granted release on parole, the Board considered after weighing the relevant risk and mitigating factors that it will be most beneficial to the community if you are able to complete this program while in custody. Completion of this program enables the Board to have greater confidence that when you come across any of your risk factors or triggers you may act appropriately and also minimise your risk of re-offending in the community.
Accordingly, for the reasons set out in this letter and its previous letter to you the Board decided that you would be an unacceptable risk to the community on a parole order at this time and your application has been declined.”
Approach to a parole application
[32] The Corrective Services Act, which establishes parole boards, does not legislate the criteria which a board must or may take into account when deciding an application for release on parole. Section 231(a) merely describes, relevantly, as a function of a regional board “to decide applications for parole orders”. Nonetheless the objects of the statute which establishes the system of parole boards will set the overall parameters of a board’s discretion when engaged in carrying out its function.[25] Those objects are in s 3 of the Corrective Services Act and relevantly state:
“(1)The purpose of corrective services is community safety and crime prevention through the humane containment, supervision and rehabilitation of offenders.
(2) This Act recognises that every member of society has certain basic human entitlements, and that, for this reason, an offender’s entitlements, other than those that are necessarily diminished because of imprisonment or another court sentence, should be safeguarded.
(3) This Act also recognises –
(a)the need to respect an offender’s dignity; and
…”
[33] Section 227(1) permits the Minister to make guidelines for the policy to be followed by the Queensland Board when performing its functions. In turn, that Board may, in consultation with the chief executive, make guidelines about:
“(a)the policy to be followed by a regional board when –
(i)performing its functions; or …”
Those guidelines must be consistent with the guidelines made by the Minister for the Queensland Board.[26]
[34] The Ministerial Guidelines to the Queensland Board issued on 19 March 2008 and the Queensland Parole Board Guidelines to a Regional Parole Board issued on 29 April 2008 are, relevantly, identical. Section 1 sets out principles for Board decision making and provides relevantly:
“1.1When considering whether a prisoner should be granted a …parole order, the highest priority for a regional parole board (“the Board”) should always be the safety of the community.
1.2Section 227(2) of the Corrective Services Act 2006 (the Act) allows the Queensland Parole Board in consultation with the Chief Executive to make guidelines regarding the policy to be followed by a regional parole board in performing its functions and conducting its business. In following these guidelines, care should be taken to ensure that decisions are made with regard to the merits of the particular prisoner’s case. Any departure from these guidelines should only occur where the Board is satisfied that principle 1.1 has been properly considered.”
[35] Section 2 concerns the suitability of a prisoner for parole and provides, relevantly:
“2.1If a prisoner has been convicted of a sexual offence listed in schedule one[27] of the Corrective Services Act 2006, the Board should exercise extreme caution when determining the prisoner’s suitability to be granted parole.
2.2 …
2.3 Before making a decision to grant any prisoner a parole order, the Board should always consider the level of risk that the prisoner may pose to the community.
2.4 When deciding the level of risk that a prisoner may pose to the community, the Board should have regard to all relevant factors, including but not limited to the following –
a)the recommendation for parole or the parole eligibility date fixed by the sentencing court;
b) the sentencing court’s recommendation or comments;
c) the prisoner’s cooperation with the authorities both in securing the conviction of others and preservation of good order within the corrections system;
d) the prisoner’s prior criminal history and any patterns of offending;
e) the possibility of the prisoner committing further offences;
f) any submissions made to the Board by an eligible person;
g) the prisoner’s compliance with any other previous grant of community based release or resettlement leave program;
h) if a parole order has been cancelled for reasons that relate to the safety and security of the community, the Board should be satisfied that the safety factors have been resolved;
i) if a parole order has been cancelled because of a prisoner’s unsatisfactory behaviour, the Board should not grant a further parole order to such a prisoner unless it is satisfied that the prisoner has sufficiently addressed their unsatisfactory behaviour that caused the cancellation of the parole order;
j) whether there are any other circumstances that may increase the risk the prisoner presents to the community;
k) any medical, psychological, behavioural or risk assessment report relating to the prisoner; and
l) recommended rehabilitation programs or interventions and the prisoner’s progress in addressing the recommendations.”
[36] Clearly not all of those factors were applicable with respect to the present applicant but it is helpful to see what matters are covered in the guidelines considered by the Minister to be important. In addition to those listed there are others which would be relevant. The applicant claimed in his additional submissions that the recommendation and Report of the Parole Assessment Panel was disregarded. It is understandable that he should think so. The Board is not, of course, bound by the recommendation of the Panel but, although that Panel Report is mentioned in the documents to which reference was made by the Board, there is no discussion of that careful and lengthy document. This is surprising given that the Panel had an advantage over the Board in having the applicant appear before it. The rejection of the Panel’s recommendation by the General Manager has been discussed above and, because there is no discussion of the Panel Report, whether or not the Board was influenced by that rejection is unknown but it is of concern that it may have been.
[37] Apart from the nature of the offending and the aggravating features mentioned by the sentencing judge, the only factor which apparently caused the Board to refuse parole was that a MISOP had not been completed in custody. Against the background of all the positive factors favourable to the applicant including the STATIC-99 risk of sexual recidivism being assessed as Low, it did require the Board to expose its reasoning as to why the applicant could not “get over the bar”. Merely to state that the Board can have “greater confidence…that you may act appropriately…” is not, on its face, a conclusion reached by analysis of the various factors present in this particular application. That is because there are so many positive factors in the applicant’s favour, both with respect to his institutional conduct, the successful completion of relevant courses, his post-prison accommodation, and prevention relapse plans, that the Board needed to demonstrate why the perceived risk to the community could not be addressed by the applicant completing a suitable sex offenders’ course in the community. If it can not do that then the conclusion must be that because the MISOP has not been completed in custody he is not to be considered as eligible for parole. And that looks very like the application of a policy without considering the merits of the individual application.[28]
[38] In Khan v Minister for Immigration and Ethnic Affairs[29] Gummow J in the Federal Court said:[30]
“…an improper exercise of a power shall be construed as including a reference to an exercise of a discretionary power in accordance with a rule or policy without regard to the merits of the particular case.”
His Honour then said:[31]
“…what was required of the decision maker, in respect of each of the applications, was that in considering all relevant material placed before him, he give proper, genuine and realistic consideration to the merits of the case and be ready in a proper case to depart from any applicable policy…The assertion by a decision maker that he has acted in this fashion will not necessarily conclude the matter; the question will remain whether the merits have been given consideration in any real sense.”
That formulation has been applied in numerous subsequent decisions,[32] and, so far as this application is concerned, does not venture into the dangerous “merits” territory warned against by Spigelman CJ in Bruce v Cole.[33]
[39] The decision should be set aside.
Other grounds
[40] The above basis for setting aside the Board’s refusal is sufficient to dispose of the application. However, some mention may be made of the other grounds. The claim that discriminatory and inaccurate information has been used has been dealt with above.
[41] The contention is that the Board acted beyond its statutory role in stating that the applicant has been “sentenced to at least seven years [imprisonment]”. There is no sensible reading of that passage other than the Board meant to convey that the applicant was sentenced to a term of imprisonment of seven years indicating the seriousness of an offence which attracts such a term of imprisonment. The Board did not misunderstand its role or think that it had any part to play in sentencing the applicant.
[42] The final complaint that the decision of the Authorised Delegate not to accept the recommendation of the Panel unduly influenced the Board cannot be concluded from the Board’s reasons because, as discussed above, they make no reference to it. The Board is at liberty to make what use it chooses provided it takes into account relevant considerations.[34]
[43] The application for judicial review is granted. I would make, therefore, the following orders:
1. The application for a statutory order of review filed 7 July 2009 is allowed.
2. The decision of the respondent made 28 May 2009 to refuse the applicant a parole order is set aside.
3. The application to which the decision relates be referred to the respondent for further consideration to be dealt with by the respondent according to law.
Footnotes
[1] Exhibit “HV-1” to the affidavit of Hazel Vickers filed 18 September 2009 at p 36 of exhibits, hereinafter referred to as “Vickers at p…”
[2] Vickers at p 49.
[3] Vickers at p 10.
[4] The learned sentencing judge noted that the child had a “crush” on the applicant.
[5] Vickers at pp 10–11.
[6] Parole Board Assessment Report for the Board (“the Panel Report”), Vickers at p 88.
[7] Quoted in the Panel Report, Vickers at p 92.
[8] The Panel consisted of an Acting Residential Manager, an Adviser Sentence Management, a Psychologist and a Probation & Parole Officer in the correctional institution where the applicant resided.
[9] Vickers at pp 99-100.
[10] Vickers at p 89.
[11] Vickers at p92.
[12] Vickers at p 94.
[13] At p 99 of the exhibits.
[14] Vickers at p 100.
[15] Section 193(5).
[16] Vickers at p 60.
[17] Vickers at p 61.
[18] Vickers at pp 61–62.
[19] Vickers at p 101.
[20] Vickers at p 103.
[21] Vickers at p 104.
[22] Vickers at p 107.
[23] Exhibit 1 on the application hearing on 5 October 2009.
[24] Discussed above.
[25] McQuire v South Qensland Regional Community Corrections Board [2003] QSC 414 at [28].
[26] s 227(3).
[27] The applicant’s offences fall within schedule one.
[28] A similar situation was discussed in Gough v Southern Queensland Regional Parole Board [2008] QSC 222 by Applegarth J.
[29] [1987] FCA 457.
[30] At [22].
[31] At [25].
[32] For example, Paramananthan v Minister for Immigration and Multicultural Affairs (1998) 94 FCR 28 at 64; Williams v Minister for the Environment and Heritage (2003) 74 ALD 124.
[33] (1998) 45 NSWLR 163 at 185.
[34] Kruck v Southern Queensland Regional Parole Board [2009] QCA 219 at [25]; Weribone v Senior/Area Manager, Brisbane North Community Corrections [2005] QSC 347 at [23].