Folling v Queensland Parole Board
[2010] QSC 440
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- Unreported Judgment
- Folling v Queensland Parole Board[2010] QSC 440
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Folling v Queensland Parole Board[2010] QSC 440
Folling v Queensland Parole Board[2010] QSC 440
SUPREME COURT OF QUEENSLAND
CITATION: | Folling v Queensland Parole Board [2010] QSC 440 |
PARTIES: | IAN DARREN FOLLING v QUEENSLAND PAROLE BOARD |
FILE NO: | BS 6367 of 2010 |
DIVISION: | Trial Division |
PROCEEDING: | Application |
ORIGINATING COURT: | Supreme Court at Brisbane |
DELIVERED ON: | 23 November 2010 |
DELIVERED AT: | Brisbane |
HEARING DATE: | 2 September 2010 |
JUDGE: | McMurdo J |
ORDER: | The respondent’s decision of 23 April 2010 will be set aside and the application for parole which was the subject of that decision must be reconsidered by the respondent according to law. |
CATCHWORDS: | ADMINISTRATIVE LAW – JUDICIAL REVIEW – GROUNDS OF REVIEW – RELEVANT CONSIDERATIONS – where the applicant is a prisoner serving various terms of imprisonment with a full time release date of 30 April 2012 – where the applicant became eligible to apply for parole on 1 May 2007 – where the applicant has made several unsuccessful applications for parole – where there was evidence before the respondent to the effect that the applicant could benefit from parole, at some point – whether the respondent failed to take into account a relevant consideration. Corrective Services Act 2006 (Qld) s 3 Judicial Review Act 1991 (Qld) s 20 Queensland Parole Board v Moore [2010] QCA 280 |
COUNSEL: | Mr Folling in person A D Scott for the respondent |
SOLICITORS: | Crown Solicitor for the respondent |
- The applicant is a prisoner serving various terms of imprisonment, amounting to a period of about nine years nine months, for a number of serious sexual offences, mostly involving underaged males. His full time release date is 30 April 2012. He became eligible to apply for parole on 1 May 2007. The applicant has been refused parole now several times, most recently by a decision of the respondent made on 23 April 2010. He seeks judicial review of that decision.
- The applicant presented his own case and argued by reference to most of the grounds for review set out in s 20 of the Judicial Review Act 1991 (Qld). Before going to those arguments it is necessary to set out the background to this decision and to summarise the respondent’s reasons for it.
- The applicant was born in 1968. The relevant offences were committed at various times between 1995 and the end of 2001. He was sentenced in the District Court on 8 July 2002 for a total period of imprisonment of seven years for offences of indecent assault, maintaining a sexual relationship with a child under 16 years of age with circumstances of aggravation, incest and the indecent treatment of children under 16 years of age. He had then been in custody for about 11 days which could not be declared as time served. He appeared again in the District Court on 1 November 2005 and was sentenced to a total period of six years and six months imprisonment for offences of maintaining an unlawful relationship with a child with circumstances of aggravation, two counts of sodomy, two counts of attempted sodomy and five counts of indecent treatment of a child under the age of 16. It was recommended that he be considered eligible for post-prison community based release after serving 18 months of that period. On both occasions he pleaded guilty to each offence.
- The applicant applied for parole on 26 April 2007 which was refused on 19 October 2007. In its statement of reasons for that decision, the respondent said that there were deficiencies in the applicant’s then “current strategies” and that “without a structured approach with specialist staff [the applicant] may be an unacceptable risk of re-offending in the community”. The respondent also expressed concern that the applicant was then in a high security part of the prison, saying that it was appropriate that when possible, offenders demonstrate that they could “self regulate in a less supervised environment”. The respondent then concluded that the applicant “may not be an acceptable risk to the community if released to parole at this time …”.
- He reapplied for parole on 20 January 2008. His application this time was the subject of a Parole Board Assessment Report, which was dated 19 February 2008. The report recommended that his application for parole be deferred pending the successful completion of the New Directions: Medium Intensity Security Offending Program (the “MISOP”). The report summarised the recommendation as follows:
“Parole:Yes (defer).”
- The applicant then participated in the MISOP which he completed in May 2008. That was the subject of a completion report dated 5 June 2008. It is unnecessary to set out here much of its content. Overall it was favourable to the applicant. Most importantly, it contained this recommendation:
“It is considered that Mr Folling would benefit from a period of supervised release in the community to assist him in the implementation of the goals he had identified in his New Future Plan.”
- On 8 July 2008, the secretary of the respondent wrote to Mr Folling to advise him that the respondent had considered that report and had decided to request a psychiatric and a psychological assessment be prepared, so that his application would be deferred pending the receipt of those assessments.
- A psychiatrist, Dr De Leacy, reported on 19 August 2008 in terms which were not entirely supportive of the applicant being paroled. He wrote that the applicant’s expressed remorse was “somewhat superficial”. But in many respects his report supported the applicant’s case and his conclusions included the following:
“Despite the difficulty in predicting reoffending it is true that Mr Folling has completed his programmes and has completed all the obligations necessary to be considered for parole. He has reasonable plans for release and has addressed all the major issues and has a reasonable relapse prevention plan and from this perspective appears reasonably well prepared for parole and has been assessed as acceptable for parole by the panel who assessed him in February 2008 after completion of recommendation programmes.
The main difficulty in this case is determining the risk of reoffending. The stakes are high in a case of this nature. If he were to be released he would need to be subjected to a high level of scrutiny.
…
These risks will still be present when he has served his sentence. These matters can be addressed through various conditions if he were granted parole.
At the present time Mr Folling has served about two thirds of his sentence. At the present time he does seem to be prepared for parole in terms of his release plans but in terms of his cognitive processes I believe there is still room for further consolidation. I consider that Mr Folling’s remorse and empathy for his victims are superficial and he still has some cognitive distortions, however it will be useful for him to be paroled at some point in order to set in motion a series of conditions that will prepare him for release to the community but the precise timing of paroling him needs careful thought.”
- A psychologist, Mr Palk, provided a report dated 29 October 2008. He there wrote that the applicant was not suitable for parole at that stage and that he should “aim to reduce his level of risk to the low range level”. He then added “[c]ompletion of the MISOP may assist him to achieve this”. That was a mistake because by then the applicant had successfully completed the MISOP.
- There was some delay whilst Mr Palk wrote another report, for which he interviewed the applicant again on 6 March 2009. In this report, dated 11 March 2009, he noted that the facilitators of the MISOP and also Dr De Leacy had said that the applicant could benefit from some period of parole, to which he added his own view that there was “no doubt … that Mr Folling could benefit from a period of parole supervision if such supervision was able to ensure that Mr Folling remained under psychiatric and psychological treatment and participated in the sexual offending maintenance program as well as appropriate homosexual support groups”. Mr Palk concluded as follows:
“… the Board therefore should be cautious when considering this prisoner for parole. If the Board considers that Mr Folling could benefit from parole then the writer recommends that he be subjected to daily monitoring for the duration of the parole period. Furthermore, the prisoner should not be allowed to leave his home during the night time unless for work or an emergency. The prisoner should also be required to undergo psychiatric and psychological treatment as well as participate in appropriate rehabilitation programs. The writer believes that if the aforementioned parole release plan could be implemented then Mr Folling might be successful in negotiating a parole period of shorter duration rather than a longer parole period.”
- On 12 May 2009, the respondent wrote to the applicant informing him that in its view he was not ready to be released into the community and asking him to make any further submission as to why parole should be granted. After a further submission from the applicant, parole was refused by a decision of 12 June 2009. This was advised by a letter from the respondent saying that the applicant would be an unacceptable risk to the community on a parole order “at this time”. The applicant was informed that he could lodge a new application at any time after 12 December 2009.
- In July 2009, the applicant’s status as a prisoner was reclassified to low security. He then asked the respondent to reconsider its decision. On 14 September 2009, the respondent wrote to advise that it had decided not to vary its refusal of 12 June 2009. There was further correspondence from the applicant again asking for a reconsideration and a similar refusal by a letter from the respondent of 18 January 2010. The applicant was told in that letter that he was eligible to reapply for parole immediately. However, on 9 March 2010, the respondent again wrote to the applicant, this time advising that at a meeting held on 15 January 2010 it had decided to set aside its prior decision and to consider the matter again. It further advised that it had considered his application in a meeting held on 26 February 2010 and had reached the preliminary view that he remained an unacceptable risk to the community and that parole should be refused. He invited the applicant to make further submissions. After further submissions were provided by the applicant, the respondent wrote to him on 29 April 2010 advising him of the subject decision. A statement of reasons was provided on 18 May 2010.
- The statement of reasons detailed the applicant’s criminal and prison history and set out extracts from the judge’s sentencing remarks, reports of his participation in relevant programs and other reports, including those of Dr De Leacy and Mr Palk. Then in the last two pages there were matters under the heading of “The reasons for the Board’s decision”. The respondent there referred to the serious nature of the applicant’s offending, his performance as a prisoner, including the “range of vocational achievements” obtained whilst in custody and his completion of the Transitions Pre-Release Program, as well as his “relapse prevention plan” which “adequately identified strategies … to avoid or manage situations or circumstances that have in the past led to criminal behaviours” and to his having been assessed as having a “moderate-high risk of sexual recidivism” in 2007. It referred to his successful completion of a number of programs in relation to sexual offending including, most recently, his “successful completion of the Sexual Offending Maintenance Program … and the gains [he had] achieved from participation”. The reasons concluded with these four paragraphs:
“6.The Board noted the recommendation of psychiatrist Dr E De Leacy in terms of your suitability for parole and in terms of your remaining treatment needs. The Board paid particular attention to the reports by psychologist G Palk with regards to your future risk of sexual recidivism being in the moderate range, and that whilst your completion of the MISOP may have increased your social and psychological skills to assist you with abstaining from further offending, you remained with outstanding treatment needs.
- The Board were aware that the Sentencing Court made a recommendation that you be eligible for parole after serving 18 months. However the Board had before it information that was not available to the sentencing judge in relation to your risk of re-offending. The Board was concerned that despite your completion of all recommended sexual offending programs in custody, that you remained assessed with a moderate risk of re-offending and you still presented with outstanding treatment needs.
- The Board took into account the very serious sexual nature of your offences, and the significant detrimental effect your offending would have had on your child victims. Were you to re-offend the Board considered that the risk a member of the community would suffer physical or psychological harm was high.
- Without evidence of a reduction in your risk of reoffending or viable protective factors being in place to address your outstanding treatment needs and considering the consequences of any possible re-offence, the Board considered that it should proceed cautiously, at this time. The Board noted the recommendation from the facilitators of the Sex Offenders Maintenance Program, in that you might benefit from participating in therapeutic counselling and a further maintenance program.
Taking into account all of the relevant factors of your case, both positive and negative, the Board formed the view that you posed an unacceptable risk to the community at that time and decided to decline your application for a parole order.”
- I go then to the applicant’s grounds. Firstly, he complained that he has been denied natural justice. However, his arguments were in all respects against the merits of the respondent’s decision and there is no demonstrated breach of this requirement.
- Next he argued that the respondent had applied a policy without reference to the merits of his case. That cannot be accepted: the respondent has clearly addressed the merits of this prisoner.
- His application, as filed, alleged that the respondent had failed to follow procedures required by law in dealing with his application. However, no procedure was identified and again to the extent that this particular ground was pursued, it was a challenge to the merits of the decision.
- Next he argued that there were irrelevant considerations taken into account. He said that Mr Palk’s opinion should not have been considered because he had made mistakes in his report. In this the applicant was referring to Mr Palk’s 2008 report in which, as already mentioned, Mr Palk had been mistaken in writing that the applicant was yet to participate in the MISOP. There was also another mistake in that report in that at one point the applicant was referred to by the name of another prisoner. However, that did not make Mr Palk’s reports, and in particular his 2009 report, irrelevant. Otherwise, again the arguments by reference to this ground were challenges to the merits of the decision.
- The applicant alleged that there was an improper purpose of the respondent and that it acted in bad faith. That was developed by reference to the Ministerial Guidelines and in particular that part of them which recommended that rehabilitation programs and a prisoner’s progress in addressing the recommendations for his rehabilitation should be taken into account. But it appears that these were taken into account by the respondent. The same applies to his reference to those parts of the guidelines dealing with a prisoner’s residential and release plans, which again were taken into account.
- He argued that there was no evidence or other material to justify the decision. Clearly however, there was evidence by which the respondent could have refused him parole. Similarly, it cannot be said that the refusal in this instance was so unreasonable that no reasonable person in the respondent’s position could have so exercised the power.
- What remains is his complaint that the respondent failed to consider matters which it was obliged to consider. The applicant referred here to a number of factors which were undoubtedly in favour of his being given parole, such as his achievement of the low security classification as a prisoner and his completion of the MISOP and other programs. But all of those matters were taken into account. Otherwise his case under this ground was a challenge to the respondent’s reasoning in terms of his being an unacceptable risk of re-offending if granted parole. The argument was not easy to follow, but at least in its written form it appeared to challenge that formulation (an unacceptable risk of re-offending) as a proper one in this context. In none of this was there any case of a reviewable error. However, not surprisingly for an unrepresented prisoner, his argument failed to focus upon that which does appear to be a reviewable error.
- The protection of the public was undoubtedly a very important consideration and the respondent was right to be concerned that the applicant “remained assessed with a moderate risk of re-offending and … still presented with outstanding treatment needs”. In particular, the respondent was right to consider the high risk that if he re-offended a member of the community would suffer physical or psychological harm. However, the respondent was also obliged to consider the applicant’s potential rehabilitation. There was no fundamental inconsistency between that consideration and the protection of the public, because the public is protected by the successful rehabilitation of prisoners, where that occurs, as well as by their incarceration. Put another way, the potential risk to the public from his ultimate release from custody without the benefit of a period of parole was also to be considered. And the possibility of this prisoner’s rehabilitation being enhanced by the grant of parole was not a theoretical consideration. As set out above, it was the subject of several recommendations which were within the material before the respondent. What the respondent was required to do was to balance its valid concern for the safety of the public against the potential benefit to be gained from a structured and supervised release with appropriate conditions. It did not do this, in my conclusion.
- In this way the respondent made the same error as that identified in Queensland Parole Board v Moore.[1] In that case, a prisoner was refused parole some three years prior to his full time release date. Holmes JA, with whom the President and Mullins J agreed, referred to the objects of the Corrective Services Act 2006 (Qld) as including “community safety and crime prevention through the humane containment, supervision and rehabilitation of offenders”.[2] Her Honour said:[3]
“Considering the function of parole in that context, it cannot be accepted that the Board is not obliged, in considering risk, to look beyond the time at which it is dealing with a parole application. If community safety is to be achieved by supervision and rehabilitation, it is necessary to consider an applicant’s likely progress over the potential parole period, rather than confining considerations to the present or the immediate future. Dr Kar had advised that it would be preferable for the respondent to be gradually re-integrated back into the community; the Parole Board Assessment Report had made the point that the benefits of supervision would diminish as the length of the prospective parole period was reduced. It was accordingly, both relevant and necessary for the Board to take into account and weigh the relative risks of discharging the respondent at or towards the end of his sentence and of giving him earlier supervised release on parole. It was perfectly open to the Board to decide that the time was not yet right to undertake the latter exercise, but the respondent had squarely raised the issue in his submissions; it was relevant; and the mere allusion to Dr Kar’s report did not amount to taking it into account.”
(emphasis added)
- In the present case, it may be that upon a proper consideration of the potential for rehabilitation from a grant of parole and the length and conditions of parole which would be appropriate to that end, nevertheless other considerations, on balance, would favour the decision which was made here. As I have held, this is not a case where the refusal of parole must have been unreasonable. At least some of the advice to the respondent has been that a relatively short period of parole would be more appropriate in this case. But thus far the respondent has not considered what should be that period and, for example, refused parole on the basis that the remaining two years or so would be excessive. Rather, the matter has not been considered at all. The result is that the decision of 23 April 2010 must be set aside and the application for parole which was the subject of that decision must be reconsidered by the respondent according to law.