Kruck v Southern Queensland Regional Parole Board
[2010] QSC 197
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- Unreported Judgment
- Appeal Determined - Special Leave Refused (HCA)
- Kruck v Southern Queensland Regional Parole Board[2010] QSC 197
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Kruck v Southern Queensland Regional Parole Board[2010] QSC 197
Kruck v Southern Queensland Regional Parole Board[2010] QSC 197
SUPREME COURT OF QUEENSLAND
CITATION: | Kruck v Southern Queensland Regional Parole Board [2010] QSC 197 |
PARTIES: | MICHAEL CHRISTIAN KRUCK |
FILE NO/S: | BS1321 of 2010 |
DIVISION: | Trial Division |
PROCEEDING: | Application for statutory order of review |
DELIVERED ON: | 9 June 2010 |
DELIVERED AT: | Brisbane |
HEARING DATE: | 15 April 2010 |
JUDGE: | Mullins J |
ORDER: | |
CATCHWORDS: | ADMINISTRATIVE LAW – JUDICIAL REVIEW – GROUNDS OF REVIEW – PROCEDURAL FAIRNESS – PROCEDURES NOT OBSERVED – RELEVANT AND IRRELEVANT CONSIDERATIONS – IMPROPER EXERCISE OF POWER – where applicant convicted and serving sentences for sexual offences committed against children – where applicant maintains stance of innocence – where applicant applied for parole – where parole was refused – where applicant claimed numerous grounds for reviewing the respondent’s decision to refuse parole – whether any ground for reviewing the respondent’s decision was made out Corrective Services Act 2006, s 12, s 245 Director of Public Prosecutions (WA) v Mangolamara (2007) 169 A Crim R 379, distinguished Gough v Southern Queensland Regional Parole Board [2008] QSC 222, considered Harrod v Queensland Parole Board [2010] QSC 85, considered Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24, considered |
COUNSEL: | The applicant appeared in person S A McLeod for the respondent |
SOLICITORS: | The applicant appeared in person Crown Solicitor for the respondent |
- The applicant is a prisoner serving a period of imprisonment of four years six months that commenced on 7 December 2006. On the sentencing, the date for his eligibility for parole was fixed at 14 March 2008. His full-time discharge date is 6 June 2011. On 10 March 2010 the respondent declined the applicant’s parole application that was dated 10 August 2009 and supplemented by a submission dated 9 October 2009. The applicant applies for a statutory order of review on numerous grounds.
Background
- On 7 December 2006 the applicant was found guilty by a jury after trial of five counts of indecent treatment of a child under 16 years with circumstances of aggravation for which he was then sentenced. He had earlier pleaded guilty to one count of indecent treatment of a child under 16 years with circumstances of aggravation and one count of rape for which he was also sentenced on 7 December 2006. The applicant maintains his stance of innocence in relation to all offences in respect of which he was sentenced.
- The applicant has made earlier parole applications. In order to deal with some of the submissions made by the applicant on this application, it is relevant to note that he was successful on his application for judicial review in respect of the respondent’s refusal of his application for parole that was lodged on 16 May 2008: Kruck v The Southern Queensland Regional Parole Board [2008] QSC 332 (Kruck #1).
The process of the parole application
- The respondent considered the application at its meeting on 28 October 2009 and deferred consideration of the application in order to obtain a psychiatric assessment. By letter dated 3 November 2009 the applicant was advised of that proposed course and he was requested to sign a consent form to allow the psychiatrist to obtain access to his medical files. The applicant made further written submissions to the respondent, as a result of that request. Psychiatrist Dr de Leacy interviewed the applicant on 4 December 2009 and provided a written report dated 7 December 2009. That report was tabled at the meeting of the respondent on 13 January 2010. The respondent deferred consideration of the application to allow for the reading of that report. The respondent considered the application at the meeting on 3 February 2010.
- On 26 February 2010 the respondent wrote to the applicant advising him that consideration was being given to not granting his application for parole on the basis that he may not be an acceptable risk to the community. The applicant was invited to make further submissions within 14 days of receiving the letter. Although the respondent’s letter was dated 26 February 2010, the respondent did not receive it until 4 March 2010.
- The letter dated 26 February 2010 listed 76 documents that the respondent had before it and considered. The letter noted that the respondent took into account the guidelines issued by the Queensland Parole Board and, in particular, that community safety must be the highest priority, but that the respondent had ensured that the application was considered on its own merits. There are 19 numbered paragraphs in the letter which is the respondent’s summary of the information and factors that indicated to it that, if released, the applicant would pose an unacceptable risk to the community. This information and factors covered:
- his prior criminal history of child sex offences for which no conviction was recorded and for which he was sentenced in 1996 to three years’ probation and his response to community supervision;
- the Parole Board Assessment Report (PBAR) dated 9 October 2009;
- the offences for which the applicant was currently imprisoned and the sentences that applied to those offences, including the sentencing remarks of Senior Judge Trafford-Walker made on 7 December 2006;
- the history of the charges against the applicant on District Court indictment 940 of 2006 (three charges of indecent treatment of a child under 12) in respect of which a nolle prosequi was entered after a successful appeal against the guilty verdicts and a retrial was ordered;
- that the applicant has maintained that he was innocent of the offences for which he was imprisoned, but that the Board was not prejudiced against the applicant because he maintained his innocence, but the Board must proceed on the basis that the applicant was guilty of these offences;
- the STATIC-99 assessed the applicant’s long term static risk of sexual recidivism as being in the moderate-high range;
- the applicant had been advised that he was not recommended as suitable for a sexual offending program, given his “levels of responsivity”;
- Dr de Leacy’s report;
- the respondent’s view that the applicant displayed an unwillingness to gain an insight into his behaviour and a chance to address the issues related to his offending behaviour;
- the details of the applicant’s Future Prevention Plan and identification by the respondent of the limitations of the plan;
(k)the applicant’s proposal for future employment and that he had not sought an offer for work.
- Paragraph 18 of this letter set out the nub of the respondent’s concerns:
“The Board is of the view that your application for parole provided a limited consideration by you of high risk situations and strategies to prevent you from relapsing into offending behaviour. Your Future/Prevention Plan provides some insight for the Board to consider, however as indicated above, it does not identify high risk thoughts or triggers for sexual offending. Your plan also does not identify how the external support you have identified will assist you in preventing relapse, or what activities or process you will undertake to involve your external support. From the interview process, the Board is concerned that you have a lack of intention to engage with professional support in the community to minimise your risk of re-offending and risk to the community. The Board realises that this is due to your maintained stance of innocence, and your unwillingness to talk about the details of your offences. However, without details of risks and strategies tailored and personalised to your offences and your own personal circumstances, the Board is concerned that you still do not have appropriate understanding of how you again came to be in the position of facing charges of a sexual nature against children and how to avoid that from happening again.”
- The applicant made written responses to the letter dated 26 February 2010 on 4 March 2010. He revised his “Future Preventive Plan” and resubmitted it to the respondent.
- The respondent advised the applicant by letter dated 16 March 2010 that the respondent had fully considered the applicant’s submission dated 4 March 2010 at its meeting on 10 March 2010, but the respondent was of the view that the material contained no new information that would give the respondent reason to change the view expressed in its letter of 26 February 2010. The letter dated 16 March 2010 listed 79 documents that the respondent had before it and considered when making its decision. The additional three documents were the applicant’s submission to the respondent dated 22 January 2010, the respondent’s letter dated 26 February 2010 to the applicant and the applicant’s submission dated 4 March 2010. Paragraphs 7, 8 and 9 of the letter dated 26 February 2010 which dealt with the applicant’s appeal against his convictions and subsequent steps in relation to offences on indictment 940 of 2006 that were not the subject of the sentences to which his period of imprisonment related, and the explanation by the respondent as to why it had to be proceed on the basis that the applicant was guilty of the offences to which his sentences related, were omitted. The respondent’s concerns that resulted in its conclusion that the applicant would be an unacceptable risk to the community on a parole order at the time the respondent made its decision were otherwise the same as those expressed in the letter of 26 February 2010.
Grounds of review
- It is not easy to discern the applicant’s grounds of review, as the application was filed before the respondent’s decision was made. The parties agreed, however, that the same proceeding could be used by the applicant to seek judicial review of the respondent’s decision made on 10 March 2010. At the hearing of the application, the applicant filed his affidavit sworn 29 March 2010 and a document which was in the nature of a written submission containing 319 numbered paragraphs. Despite the length of the submissions, there is much repetition within them. In addition the applicant filed by leave a further written submission in response to the affidavit of Ms Kitchener which was filed on 1 April 2010, but not received by the applicant until 7 April 2010. Ms Kitchener is the secretary of the respondent. That further written submission repeats key points made in the lengthy written submissions.
- The applicant’s affidavit makes numerous complaints about the steps taken by the respondent in the course of considering his application. Many of those complaints were overtaken by the making of a decision by the respondent in respect of the application on 10 March 2010. The primary complaints on which the applicant seeks the review of the decision can be summarised as:
- breach of the rules of natural justice, particularly by the respondent relying on the STATIC-99 assessment that assessed the applicant’s long-term static risk of sexual recidivism as being in the moderate-high range, when the applicant did not have access to that assessment;
- the respondent failed to observe procedures required by law, particularly in relation to the STATIC-99 assessment;
- the respondent took into account irrelevant considerations, particularly Dr Freeman’s letter dated 13 June 2008, the STATIC-99 assessment dated 18 February 2009, the Parole Board Assessment Report (PBAR) dated 18 September 2009 and Dr de Leacy’s report dated 7 December 2009;
- failing to take relevant considerations into account, particularly the applicant’s Future Preventive Plan, that the applicant has no mental disorder, the applicant has a low security classification, the applicant has an excellent work history including as senior head cook in the prison, and the applicant has no institutional breaches;
- the respondent acted in bad faith and for an improper purpose, particularly as the respondent’s decision was as a result of the application of a policy, on the basis that the applicant had not done a sex offender treatment program and would not discuss the offences of which he was convicted;
- the respondent exercised a discretionary power in accordance with a rule or policy without regard to the merits of the case, particularly by applying a pre-determined policy that the applicant must admit his guilt or learn about his offending by discussing the offences with a third party, such as Dr de Leacy;
- there is no evidence or other material to justify making the decision;
- the exercise of the power was so unreasonable that no reasonable person could have made that decision.
Breach of the rules of natural justice
- The PBAR was prepared by the Department of Corrective Services (the Department) in response to a request by the respondent to do so: s 245 of Corrective Services Act 2006 (CSA).
- In paragraph 4 of the PBAR, reference was made to a Specialised Assessment for Sexual Offending Program (SOPA) being administered to the applicant on 18 February 2009 and that “The STATIC-99 assessed the offender’s long term static risk of sexual recidivism as being in the Moderate-High range.” The STATIC-99 assessment was not included in the PBAR and was not listed by the respondent as one of the documents before it. The applicant was, however, provided with the PBAR.
- It does not amount to a lack of procedural fairness that the applicant did not have access to the STATIC-99 assessment, when the assessment itself was not before the respondent. As Mr McLeod of counsel for the respondent referred to in oral submissions, the STATIC-99 assessment results from a point scoring process. It is not unusual for reference to be made to such an assessment in matters before the court involving sexual offenders. The nature of such an assessment was referred to in Gough v Southern Queensland Regional Parole Board [2008] QSC 222 at [44]. The applicant relies on the criticism of evidence based on a STATIC-99 assessment in Director of Public Prosecutions (WA) v Mangolamara (2007) 169 A Crim R 379. Expert opinion in relation to the recidivism of an indigenous offender who wished to return to a remote community was expressed in part in reliance on the results of a STATIC-99 assessment of the offender. It was found (at [162]) that the facts upon which the operation of the assessment tools (including STATIC-99) depended had not been established by independent evidence. Little weight was given to those parts of the expert reports based on the assessment tools, including STATIC-99. The criticism of the STATIC-99 assessment in that case has to be understood in the context of the issue that was before the court and the quality of the evidence that was relied on by the prosecution to discharge the onus that it bore to show that the offender should be subject to a continuing detention order or a supervision order upon the completion of his sentence for sexual offending. The use made by the respondent in this matter of the conclusion of the STATIC-99 assessment as one of a number of factors that it considered in deciding the application for parole is a different matter.
- The applicant was aware that the respondent intended relying on the conclusion of the STATIC-99 assessment as one of a number of matters listed in the respondent’s letter dated 26 February 2010 and made submissions on his view as to why it was meaningless in his written submission dated 4 March 2010.
- The other matters that are set out at length in the applicant’s written submission under the heading of the breach of the rules of natural justice are either submissions on the merits of the decision or covered by the other grounds. The applicant took the opportunity to respond to the respondent’s letter dated 26 February 2010 without seeking an extension of the time to make a more considered response. It appears the applicant was keen to pursue this proceeding which had been commenced before he received the respondent’s letter dated 26 February 2010.
Failure to observe procedures required by law
- The applicant raises again the respondent’s reliance on the STATIC-99 assessment. Reliance on this alternative ground does not add anything to the submission that the applicant made in respect of the STATIC-99 assessment based on denial of procedural fairness.
- It is not apparent from a perusal of the material before the respondent and the reasons for the respondent’s decision that the respondent has otherwise failed to observe the procedures that are required by law to be observed in relation to the making of its decision.
Taking into account irrelevant considerations
- The applicant submits that each of the documents identified by him (Dr Freeman’s letter, the STATIC-99 assessment, the PBAR and de Leacy’s report) contained irrelevant information and should therefore have been excluded from the respondent’s consideration and no weight should have been placed on them.
- Dr Freeman’s letter dated 13 June 2008 was written after he had attended at the prison the previous day to conduct a psychological assessment of the applicant for the purpose of an earlier parole application. The assessment did not proceed and the letter records Dr Freeman’s note of what he described as “outlandish claims” made to him by the applicant. The letter is part of the history of the applicant’s pursuit of parole. It records an attitude to the process that persisted and is not irrelevant information.
- The PBAR incorporating the reference to the STATIC-99 assessment and Dr de Leacy’s report were prepared for the purpose of the respondent’s consideration of the applicant’s parole application. The PBAR was undertaken by a panel comprising five employees of the Department. The fact that it recommended that the applicant not be granted parole was not determinative of the respondent’s decision on the application for parole. In fact, the PBAR expressly contemplated that the respondent may determine to grant parole and certain conditions were recommended, if that were the case. The arguments used by the applicant to characterise the PBAR as irrelevant are the applicant’s response to the contents of the PBAR. The question of weight to be placed by the respondent on the PBAR was a matter for the respondent. There is no basis in law for the applicant’s argument that the PBAR should have been excluded from the respondent’s consideration.
- The applicant asserts that there were, in fact, seven PBAR members at the interview and not the five listed in the report. That seven people may have been present and not the five people that the PBAR records as constituting the panel does not in any way alter the nature of the PBAR or its relevance to the respondent’s decision-making.
- Dr de Leacy’s report was prepared by Dr de Leacy after an interview with the applicant that was clearly unsatisfactory to Dr de Leacy, because of the lack of information that Dr de Leacy was able to obtain about the offences for which the applicant was serving sentences. It was relevant to the respondent’s consideration of the parole application that it sought and obtained a psychiatric assessment of the applicant from Dr de Leacy. Again, the applicant had the opportunity, and did, respond to the report of Dr de Leacy.
- There are additional matters referred to in the written submissions in relation to irrelevant considerations. The applicant cannot show that any of the matters taken into account by the respondent was irrelevant.
Failure to take into account relevant considerations
- Each of the considerations identified by the applicant in his written and oral submissions as relevant considerations that favoured his grant of parole was before the respondent. For example, they were referred to in the applicant’s application and in the PBAR. The applicant’s real complaint is that the respondent did not place sufficient weight on these factors.
- The applicant places great weight on the low security classification that he achieved under s 12 of the CSA in June 2009 and that there is no reference to that in the respondent’s reasons. Obtaining the low security classification was as a result of a decision of the Chief Executive of the Department and required the Chief Executive to have regard to the factors set out in s 12(2) of the CSA. One of those four factors is the risk of the prisoner committing a further offence and the likely impact of the commission of the further offence on the community on which the applicant placed great weight. The other factors are the nature of the offence for which the prisoner was convicted, the risk of escape from custody and the risk that the prisoner poses to himself and other prisoners, staff and the security of the prison. The applicant’s low security classification under s 12 of the CSA was a relevant matter for consideration of the respondent, but was made for a different purpose under the CSA and is not determinative of the respondent’s decision on the parole application.
- It was for the respondent to determine the appropriate weight to be given to the matters which were relevant considerations for its decision-making: Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24, 41. A recent explanation of this decision in the context of a parole application is found in Harrod v Queensland Parole Board [2010] QSC 85 at [30]-[31].
Improper purpose and bad faith
- The applicant’s submissions misstate the respondent’s purposes in seeking a psychiatric assessment of the applicant from Dr de Leacy and the reasons for the respondent’s decision. The applicant asserts that there is a policy that before parole is considered that the applicant must admit guilt and discuss the circumstances of his offences to a third party (such as Dr de Leacy) and have his relapse plan professionally assessed.
- The respondent’s reasons show that it was endeavouring to deal with the applicant’s application in the context of the applicant’s maintaining a stance of innocence of the offences. As the respondent’s reasons for its decision recognised, that stance of innocence does not preclude an appropriate relapse plan being proposed by the applicant that is directed to prevent offences of the same nature of those of which the applicant was dealt with in 1996 and convicted in 2006 from being committed in the future by the applicant. Dr de Leacy’s report was sought for the purpose of assisting the respondent in its decision-making.
- The applicant misstates the effect of Kruck #1. The applicant asserts that the respondent cannot request his relapse plan to be scrutinised because it was addressed in Kruck #1 at [51]-[53]. The conclusion that was reached by A Lyons J in Kruck #1 was that, in relation to that particular parole application, the respondent did not consider the merits of the applicant’s case, but applied a pre-determined policy that the application had to be refused because no professional assessment had been undertaken of the applicant’s relapse plan and that the sex offender program had not been completed. The existence and the contents of relapse plan were relied on in conjunction with the respondent’s reasons for the conclusion of A Lyons J that the respondent had applied a pre-determined policy. The decision in Kruck #1 was concerned with the failure of the respondent to consider the merits of the applicant’s case. It was not an endorsement of the applicant’s relapse plan. It is not authority for the proposition that the respondent cannot seek assistance from a psychiatrist in assessing the applicant or the applicant’s relapse plan. What the respondent had to do in relation to the parole application dated 10 August 2009 was consider the parole application on its merits. In considering the merits of the application, it was a relevant consideration for the respondent to take into account the professional opinion of Dr de Leacy.
- The reasons of the respondent indicate that it has been careful to deal with the merits of the applicant’s application. The applicant has not shown that the respondent has acted for an improper purpose or in bad faith.
Applying a rule or policy without regard to the merits of the case
- The applicant makes similar submissions to those that he relied on to support the ground of improper purpose and bad faith in relation to the ground that the respondent applied a rule or policy without regard to the merits of the case. Paragraph 18 of the respondent’s letter dated 26 February 2010 was repeated in paragraph 15 of the respondent’s letter dated 10 March 2010. The applicant submitted a lengthy future prevention plan about which the respondent had concerns. That was a matter for the respondent. The concerns that the respondent has articulated about the relapse plan are evident on the applicant’s own material. By way of illustration, the respondent observed in paragraph 15 of the letter of March 2010 that the relapse plan did not identify how the applicant would use external support. The applicant had written to a number of psychologists, a counselling service and a psychiatrist seeking information about counselling services upon his release. He got back letters that he included in his relapse plan showing willingness from some of these professionals and a counselling service to provide services on a fee basis. The applicant had no prior contact with any of these professionals or counselling services and no intention of undertaking any program or treatment with any of the professionals or counselling services.
- Despite the assertions made by the applicant as to how the decision-making of the respondent should be characterised, the analysis of the material before the respondent in conjunction with the reasons is consistent only with decision-making that has been undertaken on the basis of the respondent’s consideration of the merits of the application.
No evidence
- There is no basis whatsoever for reliance on the ground that there was no evidence or other material to justify the making of the decision by the respondent.
Unreasonableness
- Similarly, there is no basis on which the applicant can challenge the respondent’s decision for Wednesbury unreasonableness.
Conclusion
- The applicant’s material and submissions on this application were focussed on process and the legal and technical requirements of the CSA that govern the consideration of a parole application. In this instance, he has not been successful in showing that there is any ground for reviewing the respondent’s decision made on 10 March 2010. The application must be dismissed with costs. The issue of costs was canvassed at the hearing of the application and in the circumstances no further submissions are necessary.