West v Southern Queensland Regional Parole Board
[2009] QSC 396
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- Unreported Judgment
- West v Southern Queensland Regional Parole Board[2009] QSC 396
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West v Southern Queensland Regional Parole Board[2009] QSC 396
West v Southern Queensland Regional Parole Board[2009] QSC 396
SUPREME COURT OF QUEENSLAND
CIVIL JURISDICTION
PAUL ANTHONY WEST | Applicant |
and | |
SOUTHERN QUEENSLAND REGIONAL PAROLE BOARD | Respondent |
BRISBANE
..DATE 26/08/2009
ORDER
HIS HONOUR: The applicant seeks judicial review of a decision of the respondent dated 1 July 2009 which declined his application for parole.
The determination of the application for judicial review will, as I shall indicate, turn upon only one ground which I consider is strongly arguable. Many other grounds for judicial review were raised in lengthy written submissions that were filed in Court on 13 July 2007 on the applicant's behalf. Those discursive submissions run to 33 pages. If anyone paid for their preparation they should ask for their money back.
Submissions of that kind are of little assistance to applicants. They are of no assistance to the Court. They cause respondents to incur unnecessary cost and expense in preparing submissions in response, and attempting to distil what the real grounds of review are. They add to the delay in the resolution of judicial review proceedings. The reception by the Court of these kinds of pro forma, unhelpful, discursive submissions is not to be encouraged.
Fortunately, the conduct of the hearing today was assisted by the applicant, who was not personally responsible for those original submissions, and the assistance of the gentlemen who acted as his Mackenzie friend and who I also understand is not the author of those original submissions. It was assisted by the fact that, with the assistance of his Mackenzie friend, the applicant abandoned reliance upon the original 33 pages of original submissions and formulated a concise outline of written submissions which made appropriate concessions abandoning grounds that had earlier been advanced and limiting the scope of argument.
The background facts are that on 8 June 2007, the applicant was sentenced to four-and-a-half years' imprisonment for a number of offences, including offences of a sexual and violent nature. He became eligible for parole as at 10 August 2008. On 15 January 2009, the respondent received an application for parole on behalf of the applicant.
On 20 March 2009, a Parole Board Assessment Report, which I'll refer to by the acronym PBAR, was produced. It is unnecessary to quote at length its contents. For present purposes I will refer to those parts of it which deal with a critical issue concerning the disposition of this application for judicial review, which is the failure of the applicant to complete a program called Medium Intensity Sexual Offending Program ("MISOP"). In the PBAR, the Panel reported:
"Offender West reported that he was offered a place on the New Direction Medium Intensity Sexual Offending Program in February 2009 and declined. He reported he was not willing to complete this program in prison due to issues of confidentiality and concerns for his safety. He reported he was willing to complete this program or any other sexual offending program in the community."
The PBAR went on to address a number of other matters, including a psychiatric psychological assessment. Results of a Static-99 assessed the applicant as being at low risk of sexual recidivism. The Static-99 reports stated:
"The assessment determined that Mr West represents a low risk of sexual recidivism, scoring 1 on the Static-99 which equates to a six per cent likelihood of sexual reoffending within five years of release, increasing to 7 per cent likelihood by 10 years post-release."
It went on to state that he was assessed as having moderate range needs in relation to his sexual offending and certain targets were identified. In short, the Sexual Offending Programs Unit recommended that the plaintiff address his outstanding treatment needs through the completion of the MISOP program. It noted at page 9 of the report that the program was available in the community at Ipswich as well as in custody. The report in its discussion of the offender's interview with the panel again noted that the applicant wished to complete the program in the community.
It went on to say that he reported that if parole was declined, he'd participate in the program in custody. However, he reported concerns with confidentiality of information shared in those courses and expressed concern, based on his experience, that offenders walk out of the program and disclose details of offences to other offenders. This should be taken as a reference to the concerns that he expressed in relation to issues of both confidentiality and concerns for his safety.
The applicant told the panel that he had raised this issue of confidentiality with the program facilitator who explained the advantages of completing the program in the community.
In summary, the PBAR concluded the following positive matters in relation to the application:
- Did not present with cognitive distortion of offences during panel interview
- Displays appropriate victim empathy
- Displays appropriate institutional behaviour
- Existence of pro-social personal support
The only negative feature in that assessment was what was said to be outstanding treatment needs, which I take to refer to the need to complete the MISOP program. The panel's area of concern was that the applicant was offered and declined placement in that program and was therefore considered to have outstanding treatment needs. It recommended that he be considered high priority for participation in the program.
The PBAR concluded with a recommendation that after considering all factors including, but not limited to, the serious nature of the offences, period of imprisonment, proximity to release date, sentencing remarks, institutional behaviour, participation in interventions, parole application, release plan, supporting documentation and the panel interview, it was recommended that the applicant not be granted parole at that time.
On 18 May 2009, the respondent advised the applicant that his application had been considered at its meeting on 6 May 2009, and indicated matters that militated against his application being successful. The letter addressed these matters in some detail. A copy of the letter is at page 2 to the annexures to Ms Dwyer's affidavit and notes, amongst other things, the MISOP program. It offered the applicant an opportunity to make a submission in relation to that and other matters.
On 25 May 2009, the respondent received a further application for parole and submissions from the applicant. In response to the matter concerning the MISOP program, the applicant stated:
"I've never refused to participate in any course or program that I've been assessed as suitable for. In fact, I've continually lobbied prison authorities to be offered a place on this program. However, the offer has only been made to me recently. I'm still willing to participate in this program. However, considering the fact that I've now completed over 80 per cent of my sentence and I'm well past my eligibility date, I believe in all fairness that the Board should allow me to complete this program within the community."
The applicant addressed other matters that had been raised in the Board's letter. The respondent considered the applicant's further application for parole at its meeting held on 10 June 2009 and decided to refuse it. The applicant was advised of this by letter dated 19 June 2009. By letter dated 17 June 2009, the applicant provided further submissions in support of his application for parole.
On 26 June 2009 the respondent wrote to the applicant advising that in light of his correspondence dated 17 June 2009, it would reconsider his application at its meeting on 1 July 2009. The letter of 17 June 2009, a copy of which appears at page 218 of the exhibits to Ms Dwyer's affidavit indicated, amongst other things, that the applicant had completed almost 80 per cent of his sentence and was not a serious violent offender. It restated that he had always been willing to participate in any intervention programs offered to him, however, Queensland Corrections had not been able to offer him a place in one of the programs in a timely fashion. It finally, and importantly, stated that he was willing to complete any further programs that were deemed necessary within the community by order or recommendation of the Board.
The assertion that the applicant had been willing to participate in any intervention programs is contestable because, as appears from the panel's report, it was said that he had not been willing to participate if there were the unresolved concerns about confidentiality and security. But it is unnecessary to dwell on that aspect.
In its letter of 17 July 2009, the Board communicated its decision and reiterated the matters that the applicant had earlier been informed of in the Board's letter of 19 June 2009, and went on to note that the PBAR had reported that the applicant had declined an offer of placement on the MISOP program. The Board continued in its letter that it was of the view that participation in the MISOP program would assist the applicant to address his outstanding intervention needs and then stated:
"When considering the violent nature of your offending, the Board were not prepared to support your release on parole prior to your completion of any recommended interventions."
The Board indicated that it would consent to him lodging a new application at any time from 1 January 2010, but was aware that the collation of material would take some time and he should lodge any application at any time from 1 November 2009. The letter concluded:
"A statement of reasons will be provided within the statutory timeframe."
However, I'm told that no statement of reasons was in fact provided. In the absence of statement of reasons, the Board's letters serve to operate as an indication of its reasons for making the decision under review.
In considering the Board's reasons, I should not be overzealous in scrutinising such a letter in a search for error: see Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272. That is particularly the case where its reasons appear in the form of correspondence rather than a statement of reasons prepared pursuant to a request or pursuant to such a right to such reasons under relevant legislation.
The letter did not in terms address the applicant's submission concerning completion of the MISOP program in the community. It might be said that it's implicit in the circumstances that it did so, given that these matters featured in the submissions, and that having considered that matter, the Board reached the conclusion that such a course was not appropriate and that it was inappropriate to grant parole subject to a condition concerning successful completion of such a program in the community. So much might be said to be implicit in the statement of its conclusion that it was not prepared to consider his release on parole prior to his completion of the recommended interventions.
The grounds of review relied upon in the applicant's new outline of submissions begin with a general contention that the Board did not place equal weight on the positive comments and notes contained in the PBAR and arrived at the decision which it did based upon the one negative matter, which is the applicant's failure to complete the MISOP program.
The essential submission is that the Board failed to give appropriate weight to the several positive comments in the PBAR and placed excessive weight on the negative. Such a submission would be well-received in a jurisdiction which was permitted to review decision by way of rehearing by way of appeal or by way of merit review. However, proceedings under the Judicial Review Act are not of that kind.
A contention that a decision-maker placed undue weight on a particular factor is not a ground for judicial review. In Australian Retailers Association v Reserve Bank of Australia, (2005) 148 FCR 446 at 557 [525] Weinberg J observed that:
"where a discretion is conferred in broad terms, it is generally a matter for the decision-maker to decide what is relevant and what is not, and it determines the comparative importance of matters which are regarded as relevant."
That statement of principle is apposite in the present case in which the statutory framework is one which does not contain express criteria governing post-prison release and accords the board considerable discretion in determining whether it is in the public interest that parole should be granted, in circumstances in which the decision turns upon an evaluation of matters and in which under the relevant statutory framework the Board has to give paramount consideration to the safety of the community.
The second ground of judicial review is an alleged breach of natural justice. It said that there was some corruption of the process by the fact that the application for parole went first to the correctional centre's management section before going into the hands of the Board. However, that doesn't disclose a basis for a breach of natural justice or any other ground for judicial review: see in particular the conclusion reached by the Chief Justice in Mulley v Southern Queensland Regional Parole Board [2009] QSC 228 at [12].
The next bracket of grounds for judicial review concerns a failure to take a relevant consideration into account. The applicant says that there was a failure to take account of the fact that the applicant was unable to complete a program at the Borallon Correctional Centre where he had earlier been held in custody, and that there was not proper consideration of the circumstances under which he failed to complete the MISOP program in a timely manner.
It was relevant for the Board to consider the fact that the applicant had not completed the program. Such appears from a number of cases, including the decision of McMurdo J in Gerritis v Department of Corrective Services [2003] QSC 281 at [11] where his Honour concluded that undoubtedly the fact that the applicant had not undergone the sexual offenders treatment program was a relevant factor.
The Board should be taken to have considered the reasons proffered for the failure to complete that program. The PBAR reported the applicant's account of not completing it when offered because of concerns about confidentiality and security.
Although his later correspondence denied that he had been offered a program and refused to undertake it, I consider that the Board's consideration of this aspect that does not disclose any ground of judicial review. I consider that it took account of the relevant history of the applicant's being offered programs and what was said to have been his reasons for declining entry into such a program.
If the Board made an error in fact in concluding that he had not gone into such a program because of reasons of confidentiality and security, then that was a factual matter which was within the Board's jurisdiction to determine, based upon what was said in the PBAR.
It is true that the reasons of the Board, so far as they are disclosed in its letter, do not go on to assess whether the reasons, namely concerns about confidentiality and security, were good or reasonable reasons in the circumstances. There are cases in which a consideration of the merits of an application may require consideration of the reasons why a course is not completed. Gough v Southern Queensland Regional Parole Board [2008] QSC 222 is an example.
I am unable to conclude, and do not conclude in the absence of a formal statement of reasons, that the Board did not give consideration to the reasons why the applicant had not completed the program. I infer that it had regard to the PBAR, and understood that the reasons were that, when offered, the applicant had concerns about security and confidentiality.
The next, and most arguable ground for judicial review, is that the decision involved an improper exercise of power because it involves the exercise of a discretionary power, in accordance with a rule or policy, and without regard to the merits of the case. For convenience and for the purpose of shorthand, I will refer to this as the Gough ground because the applicant relies upon that case, in support of the contention that the respondent disregarded the applicant's case.
As the decision in Gough indicates, a proper consideration of the merits of an application for parole requires the Board to consider the circumstances in which the applicant has not completed programs, and the applicant's offer to complete the programs in the community as a condition of his parole. The facts of Gough were different to the facts here. In Gough, the system had failed Mr Gough, through no fault of his own, in not even offering him the chance to embark upon a program.
However, those different factual considerations do not affect the relevant principle. In other cases, and this may be one of them, there may be other reasons, which are reasonable, as to why an applicant had not completed a program in custody. What is required is a consideration of the reasons for not completing the programs in custody, and also a consideration of the merits of the applicant's submission to undertake the program in the community.
In Gough, as appears at paragraph 73, it was the failure to consider why the applicant had not undertaken the programs whilst in custody, and the failure to consider the applicant's request to undertake them in the community, that indicated that the Board did not have proper regard to the circumstances in favour of the grant of parole. In the circumstances of that case, a ground for judicial review was made out because I concluded that the Board did not have regard to the merits of the particular case.
In Gough's case, there was a statement of reasons, which permitted the conclusion to be drawn, that the Board had failed to consider the two matters that I have mentioned. In this case, there is not a statement of reasons. One returns to the Board's letter of 17 July 2009.
In support of the applicant's case, it must be said that, where the focus of the submissions to the Board was not on whether the MISOP program should be undertaken, but on whether the applicant should be permitted to do so in the community, it is surprising, to say the least, that there was absolutely no reference to this in the letter of 17 July 2009. The decision, so far as the letter states the reasons for the decision, simply did not address that matter.
However, with some hesitation and in the absence of a fuller statement of reasons, I reach the conclusion that I am not persuaded that the Board failed to consider the request to undertake the program in the community. A letter of this kind should not be treated as a full statement of reasons, and it is consistent with the conclusion that the Board reached that it was not prepared to support the applicant's release on parole prior to his completion of any recommended interventions, that the Board had considered his request to undertake the program in the community, and was not satisfied that this was an appropriate course, having regard the seriousness of the offence and the paramount interest of protecting the community.
Accordingly, it is with some hesitation that I decline to uphold the ground of review in Gough.
The final submissions of the applicant in paragraphs 24, 25, 26 and 27 refer to certain grounds of review that were earlier made, but contend, in broad summary, that there were reasonable grounds for a review of this decision. I do not consider that the applicant has established grounds for judicial review.
In conclusion, if the Board did not in fact consider and carefully evaluate Mr West's repeated request to undertake the program in the community then Mr West has been done a great disservice and his application for judicial review has failed today for want of proof, being proof that may have been available had the Board provided a statement of reasons within the statutory timeframe, as they indicated that they would.
The consequence is that Mr West has still not commenced upon a MISOP program, that being the only matter which the PBAR identified as a negative. If the Board did not give proper consideration to the possibility of his undertaking that program in the community at Ipswich, where it was said to be available at the time, then Mr West has suffered some months of being held in custody in circumstances where he might have been released to his benefit, the benefit of his rehabilitation in the community's interest. In the meantime, he still has not commenced the MISOP program in custody.
It is for others to decide whether, in the circumstances, the Board should invite Mr West to make a further application for parole within a shorter time than indicated in its letter of 17 July 2009. If, on reflection, the Board did not give the consideration which the law required it to give to considering completion of the program in the community, then its decision would have been affected by a reviewable error. The application fails for want of proof. That is not to say that the Board should not of its own volition reconsider its position and invite a further application. Whatever further course of events develops in that matter, it is also obvious in conformity with the PBAR report, which identified matters in Mr West's favour and the completion of the program as the only negative matter, that he be given a high priority for participation in that program.
The PBAR report dated 20 March 2009 recommended that Mr West be considered a high priority for consideration in that program. In the light of my dismissal of his application for judicial review the authorities should consider expediting any entry into that program in custody and, as I have said, it is a matter for the Board to consider whether in addition it considers a further application based upon his completing that program in the community.
However, for the reasons given by me the application for judicial review is not established and I dismiss the application.