Sutton v Central & Northern Qld Regional Parole Board
[2009] QSC 426
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- Unreported Judgment
- Sutton v Central & Northern Qld Regional Parole Board[2009] QSC 426
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Sutton v Central & Northern Qld Regional Parole Board[2009] QSC 426
Sutton v Central & Northern Qld Regional Parole Board[2009] QSC 426
SUPREME COURT OF QUEENSLAND
PARTIES: | |
FILE NO/S: | |
Trial Division | |
PROCEEDING: | Application |
ORIGINATING COURT: | |
DELIVERED ON: | 23 December 2009 |
DELIVERED AT: | Brisbane |
HEARING DATE: | 18 December 2009 |
JUDGE: | Douglas J |
ORDER: | Application dismissed |
CATCHWORDS: | ADMINISTRATIVE LAW – JUDICIAL REVIEW – GROUNDS OF REVIEW – APPLYING POLICY AND MERITS OF CASE – where respondent refused applicant’s application for release on parole – whether respondent, by requiring the applicant to undertake a rehabilitative program before granting him parole, exercised its discretionary power in accordance with a rule or policy without regard to the merits of the particular case – whether, when reaching its decision, the respondent failed to take into account relevant considerations Corrective Services Act 2006 (Qld) s 3, cited Stewart v Southern Queensland Regional Parole Board [2009] QSC 332, cited |
COUNSEL: | S Milthorpe, the applicant’s sister, was given leave to appear on the applicant’s behalf S A McLeod for the respondent |
SOLICITORS: | S Milthorpe, the applicant’s sister, was given leave to appear on the applicant’s behalf Crown Solicitor for the respondent |
[1] Douglas J: This is an application to review the decision of the respondent refusing to release the applicant on parole.
Background
[2] The applicant is in prison for an offence of sexual assault, having been sentenced to two years imprisonment on 30 April 2008 when the learned sentencing Judge recommended that he be eligible for parole after four months. The application for parole relevant to this hearing was made by the applicant on 23 June 2009 supported by submissions dated 26 July 2009.
[3] At earlier stages of his time in prison he had declined offers to participate in a program for sexual offenders called the Getting Started: Preparatory Program which required those participating to do so in a group. It is also apparent that the Board had been concerned about the need for the applicant to develop a proper understanding of his offending to assist in formulating a more robust relapse prevention plan from an early stage of its dealings with him.[1]
[4] On the strength of a letter from his solicitors dated 25 February 2009, however, the respondent was entitled to conclude that the applicant had accepted an offer to participate in any sexual offender treatment courses available to him. In another letter of 9 March 2009, the respondent noted that the applicant was currently waitlisted to do the Getting Started: Preparatory Program and the Transitions Program and strongly recommended that he complete them to assist him to develop robust relapse prevention and release plans.[2]
[5] The respondent had no information before it to suggest that he was not willing to participate in such courses when it considered the applicant’s case on 19 August 2009. Its reasons were provided on 14 October 2009.
[6] It seems that the applicant’s earlier reluctance to take part in the Getting Started: Preparatory Program was associated with unwillingness by him to engage in a program that required personal disclosure of his offending behaviour in a group. He was concerned about confidentiality and afraid of being judged or physically threatened by other offenders who may have become aware of his offending. He had been assaulted on two occasions while in prison and seriously injured, possibly because of the nature of his offending. His ambivalence about the process may have continued to affect his attitude to the courses after 25 February 2009 but does not seem to have been conveyed clearly to the Board.
The Board’s reasons for refusing parole
[7] In its reasons for refusing parole the Board said:
“6. …The Board noted that you never denied the nature of your offence and you have acknowledged your sexual advances to the victim. However, the Board was concerned that from your preliminary interview with a psychologist and also with your assessment panel interview, both conducted in October 2008 for the purposes of the Parole Board Assessment Report, that at that time, the reported information that you presented with a large degree of cognitive distortions surrounding your offence. The Board noted that that you were perceived at that time to lack insight into your offending behaviour, evidenced externalisation of blame and that you engaged in minimising the impact your behaviour had upon the victim.
7. The Board took into account that on 21 October 2008 you were assessed for suitability to participate in a sexual offending program and that you represented a Moderate-Low risk of sexual recidivism. The Board was concerned that at the time you declined to fully participate in the assessment process, declining an interview to determine your sexual offending needs via the Stable 2000 assessment tool. The Board noted that despite your unwillingness to participate in the assessment process, that you were recommended to undertake the Getting Started: Preparatory Program to enhance your ability to engage in and benefit from sexual offending programs.
8. The Board noted your concerns about delays by Queensland Corrective Services in offering you intervention programs and that you had in January 2009 been offered the opportunity to be waitlisted for the Getting Started Preparatory Program. The Board also noted the submission by your solicitors dated 25 February 2009 in which they advised that you had formally accepted that offer to participate and that you remained to participate in any sexual offender treatment courses available to you.
9. The Board noted with some concern your demonstrated and repeated reluctance to engage within an intervention program that required personal disclosure of your offending behaviour in a group environment, citing your concerns for confidentiality and your fear of being judged or physically threatened by other offenders who may become aware of your offending. The Board noted the explanation of your reservations for group therapy and intervention programs provided by both you and your solicitors, following the assault on yourself and the injuries you sustained, and your willingness to participate in one on one counselling as an alternative.
10. However, given the emphasis of the Getting Started preparatory program is to both motivate and prepare offenders who have committed a sexual or sexually motivated offence to participate in more intensive sexual offending programs, and the available assessments of your risk of sexual recidivism, the Board was opinion that it would to your benefit to participate and in complete the recommended program whilst in custody. The Board was of the view that program participation would provide you with the opportunity to gain knowledge of personal triggers and explore strategies that might assist you to avoid reoffending in the future as well as assist you to lessen the risk that you pose to the community.”
The applicant’s case
[8] The applicant’s main argument is that, in requiring him to undertake the Getting Started: Preparatory Program before granting him parole, the Board exercised its discretionary power in accordance with a rule or policy without regard to the merits of the particular case, referring, for example, to Stewart v Southern Queensland Regional Parole Board [2009] QSC 332 at [38]. In that context the applicant also argued that he had not been housed in correctional facilities which offered treatment programs for sexual offenders and could not have complied with the Board’s approach.
[9] He also submitted that there had been a failure to take into account relevant considerations, namely the positive aspects of his behaviour in prison, the assaults he had suffered, raising concerns for his personal safety were he to participate in the recommended program, and that he had made confirmed arrangements for post release counselling and therapy with a psychologist who could counsel him one on one.
[10] It was also argued for the applicant at the oral hearing that he would not have been able to go to one of the prisons where the relevant course is offered because another prisoner who had previously attacked him was there and that there was now no time available to him to do the relevant courses because his full time release date will occur in April 2010. They, however, were not matters relevant to the decision made by the respondent in August 2009 and that is the decision which I am called on to review. There was no evidence then that he would not be able to attend a prison where the course could have been offered to him because of the presence of the other prisoner and the situation in August 2009 was that he had been offered places before but had declined them.
[11] Nor was there any evidence before the Board in August, when it made its decision, about the lack of time available to do courses from then until the applicant’s full time release date. From what I was told it would have been likely that the applicant could have done at least the Getting Started: Preparatory Program before his release.
[12] I shall deal, therefore, with the submissions that the Board’s decision was made pursuant to a policy without regard to the merits and that it failed to take into account the relevant considerations to which I have referred. The facts relevant to those arguments overlap to some extent.
Was the Board’s decision made pursuant to a policy without regard to the merits?
[13] It is clear from the Board’s reasons, particularly at para. 9 quoted, that it took into account the applicant’s concerns that he might be physically threatened and his willingness to participate in one on one counselling. In para. 10 of their reasons, however, the Board gave reasons for rejecting those concerns by reference to the emphasis of the Getting Started: Preparatory Program in motivating and preparing offenders to participate in more intensive sexual offending programs. The Board’s view was that the available assessments of the applicant’s risk of recidivism indicated that it would be to his benefit to participate and complete that program while in custody to provide him with the opportunity to gain knowledge of personal triggers and explore strategies that might assist him to avoid reoffending in the future as well as to assist him to lessen the risk that he posed to the community. That seems to me to be an approach legitimately open to the Board, given the applicant’s history.
[14] The respondent also noted the applicant’s concerns about delays by Queensland Corrective Services in offering him intervention programs but also noted “some concern” at his “demonstrated and repeated reluctance to engage within an intervention program that required personal disclosure” of his offending behaviour in a group environment.
[15] There seems to have been some disconnect between the apparent willingness of the applicant to undertake such programs, referred to in his solicitors’ letter of 25 February 2009, and any offer being taken up. The evidence was not clear about what offers were made after he was waitlisted in March 2009 to do the Getting Started: Preparatory Program and the Transitions Program. It was submitted by Mr McLeod on behalf of the respondent that the normal process is that, if a prisoner wishes to undertake the program, arrangements are then made to transfer him to a facility where the program can be offered. There is nothing in the material before me, or before the respondent, to indicate that anything was done to inhibit the applicant from attending such a program after his solicitors indicated in their letter of 25 February 2009 his willingness to participate in any sexual offender treatment courses available to him.
[16] The attitude of the Board in this case seems to be a legitimate assessment by it of the desirability of the applicant participating in these programs decided, not by reference to an immutable policy, but because of particular concerns about the applicant. This ground is not made out.
Was there a failure to take into account relevant considerations?
[17] I have pointed out that the Board took into account the applicant’s concerns that he might be physically threatened and his willingness to participate in one on one counselling. The applicant’s written submissions also argued that the respondent failed to consider properly the many positive aspects of his behaviour in prison. They were recited, particularly in paras 3 to 7 of the Board’s reasons, but were balanced against other information to which I have referred, that the applicant presented with cognitive distortions surrounding his offence, lacked insight into his offending behaviour, externalised the blame for it and minimised the impact his behaviour had on the victim. In that context, my attention was drawn to a document by the applicant in which he expressed great shame for the offence and its effects on the victim.[3] That information was before the Board and there is nothing to indicate that it failed to take these issues into account.
Respondent’s submissions
[18] Apart from contending that the grounds for review had not been made out, Mr McLeod, for the respondent, submitted that the reasons given by the Board also reflected its statutory function, its objects being set out in s. 3 of the Corrective Services Act 2006 (Qld) describing the purpose of corrective services as community safety and crime prevention through the humane containment, supervision and rehabilitation of offenders while recognising that every member of society has certain basic human entitlements which should be safe guarded and also recognising the need to respect an offender’s dignity.[4]
[19] In the circumstances the grounds argued in support of the application were not made out nor was any ground made out that the decision was so unreasonable that no reasonable person could have exercised the Board’s power in that fashion.
Conclusion and orders
[20] Accordingly the application is dismissed. I shall hear the parties as to costs.
Footnotes
[1] See its letter of 23 December 2008 at pp. 27-28 of the exhibits to the Affidavit of Eva King filed 3 December 2009.
[2] See p. 55 of the exhibits annexed to the Affidavit of Eva King filed 3 December 2009.
[3] See pp. 138-141 of the annexures to the Affidavit of Eva King filed 3 December 2009.
[4] See Stewart v Southern Qld Regional Parole Board [2009] QSC 332 at [32].