Pangilinan v Queensland Parole Board
[2015] QSC 263
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- Unreported Judgment
- Pangilinan v Queensland Parole Board[2015] QSC 263
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Pangilinan v Queensland Parole Board[2015] QSC 263
Pangilinan v Queensland Parole Board[2015] QSC 263
SUPREME COURT OF QUEENSLAND
CITATION: | Pangilinan v Queensland Parole Board [2015] QSC 263 |
PARTIES: | JORAI PANGILINAN (applicant) v QUEENSLAND PAROLE BOARD (respondent) |
FILE NO/S: | No 5181 of 2013 |
DIVISION: | Trial Division |
PROCEEDING: | Civil Hearing |
ORIGINATING COURT: | Supreme Court at Brisbane |
DELIVERED ON: | 4 September 2015 (ex tempore) |
DELIVERED AT: | Brisbane |
HEARING DATE: | 28 August 2015 |
JUDGE: | Daubney J |
ORDER: |
|
CATCHWORDS: | ADMINISTRATIVE LAW – JUDICIAL REVIEW – RELEVANT CONSIDERATIONS – where the applicant seeks review of the respondent’s decision to reject the applicant’s application for parole – where the applicant was deemed to pose an unacceptable risk to the community if released on parole at that time – whether the respondent failed to take relevant considerations into account |
COUNSEL: | The applicant appeared on his own behalf S McLeod for the respondent |
SOLICITORS: | The applicant appeared on his own behalf Crown Law for the respondent |
- This is an application for judicial review of the respondent's decision, made on 5 June 2015, to refuse the applicant’s application for parole.
- The applicant’s antecedents and much of the history of his application for parole, which was first lodged on 21 December 2012, are set out in the judgment of Jackson J in Pangilinan v Queensland Parole Board [2014] QSC 133 and the subsequent judgment of the Court of Appeal in Queensland Parole Board v Pangilinan [2015] QCA 35. In short, Jackson J had ordered that a decision made by the respondent (“the Board”) on 8 October 2013 refusing the application for parole be set aside. The appeal by the Board against that judgment was dismissed.
- After Jackson J’s judgment was delivered on 18 June 2014, the Board invited the applicant to provide further submissions for the Board’s consideration in respect of his application. On 1 August 2014, having received submissions from the applicant, the Board decided to request that a psychiatric assessment be prepared. Dr Josephine Sundin, psychiatrist, was then commissioned to undertake an assessment of the applicant and provide a report to the Board. In subsequent meetings, the Board noted further submissions which had been received from the applicant, sought further information from Dr Sundin, and also took into account a report dated 2 June 2014 from the private psychiatrist who had seen the applicant, Dr Markou.
- There was some delay while arrangements were made for Dr Sundin to be able to assess the applicant. Eventually, on 27 March 2015 the Board received Dr Sundin’s report, which is dated 26 March 2015 and followed her assessment of the applicant on 27 February 2015.
- On 24 April 2015, the Board met to consider the applicant’s application for parole. It reached the preliminary view that the applicant would pose an unacceptable risk to the community if released on parole at that time, and on 4 May 2015 the Board wrote to the applicant outlining its concerns and identifying the elements of the application which gave it reason to reach its preliminary view. The applicant was invited to make further submissions, which he did by way of a 36 page submission which was received by the Board on 9 May 2015.
- On 5 June 2015, the Board met and determined to refuse the application. The applicant was informed of this outcome by a letter dated 22 June 2015.
- At the request of the applicant, a statement of reasons dated 14 July 2015 was provided by the Board to the applicant.
- By s 193(1) of the Corrective Services Act 2006 (“the CS Act”), a parole board required to consider a prisoner’s application for a parole order must decide –
- to grant the application, or
- to refuse to grant the application.
- The exercise of that discretionary power must be understood having regard to the subject matter, scope, and purpose of the CS Act – Wotton v Queensland (2012) 246 CLR 1 at [9].
- In that regard, the purpose of the CS Act is set out in s 3(1):
“The purpose of corrective services is community safety and crime prevention through the humane containment, supervision, and rehabilitation of offenders.”
- It is clear, on the face of this provision, that the prime purpose of the CS Act is to achieve “community safety and crime prevention”, and that this is to be achieved by the means specified, i.e. “humane containment, supervision and rehabilitation of offenders”. I accept the Board’s submission that in the context of “community safety and crime prevention” being the prime purpose, a prisoner’s risk of reoffending if released on parole is a relevant and central consideration for the Board when considering an application.
- It is also necessary for me to mention the provisions contained in s 200 of the CS Act. Section 200(1) prescribes the conditions which must be included in a parole order. Section 200(2) confers on a parole board the power to impose further conditions which the board reasonably considers necessary to ensure the prisoner’s good conduct or to stop the prisoner committing an offence. Examples of these sorts of conditions are conditions relating to place of residence, employment, participation in a particular program, curfew, and requirement to give test samples.
- In its statement of reasons, the Board set out the history of the applicant’s application for parole, and enumerated the documents to which the Board had regard when making its findings of fact.
- In the course of making its findings of facts, the Board noted the seriousness and violent nature of the index offences, and also the fact that prior to committing the offences the applicant had a significant history of substance abuse including cannabis, amphetamines and alcohol. After setting out some detail, the Board observed that it must necessarily be assured that a repeat of the applicant’s actions in similar future circumstances is highly unlikely before it could consider him an acceptable risk to the community and suitable for release. The Board continued, in its statement of reasons:
“6.The Board noted that since the Applicant’s admission to custody he has completed significant intervention to address his substance abuse, anger management, cognitive skills issues, as well as his propensity for violence. The Applicant has also completed a number of vocational courses and a transition program to assist with any future release from custody.”
- The Board noted the support that had been provided by the applicant’s mother, and also the fact that her home had been assessed as suitable accommodation for the applicant should he be released on parole.
- The statement of reasons then referred in some detail to the report that had been received from Dr Sundin, noting the doctor’s diagnosis that the applicant suffers from a general anxiety disorder, panic disorder, and claustrophobia. The Board referred to Dr Sundin’s observations on the contribution which drug use would have made to the index offending, and also her observations about the applicant’s drug use while in custody. In that regard, Dr Sundin had said:
“I note that the drugs which Mr Pangilinan has breached have all been substances that are used to modify a negative mood state by inducing a state of calm. I think that he has to some degree in prison, continued his pre-prison behaviour of self-medicating anxious dysphoria.”
- The Board also noted a further statement by Dr Sundin that she was a “little concerned by [the applicant’s] reference to accessing the Suboxone program in the community”, saying that she thought this substance was contra-indicated for the applicant.
- The Board referred to Dr Sundin’s assessment of the applicant’s risk of future offending being in the moderate to low zone, provided he engaged with mental health providers in the community, was appropriately medicated, and continued to develop appropriate cognitive behavioural strategies to proactively manage his anxiety and not resort back into dysfunctional behaviours or substances.
- The Board noted Dr Sundin’s positive prognosis for recidivism if the applicant could remain substance free and offence free for a period of five years in the community, and her statement:
“From a risk management perspective, managing this anxiety and ensuring that [the applicant] does not resort back into substance abuse to self medicate dysphoric mood will be of primary importance if he is to be released into the community.”
- The Board observed that one of the matters which had been noted by Dr Sundin was that the applicant had “not recorded any breaches of discipline and had no positive tests for illicit substances”. (In the context of her report, it is clear that Dr Sundin was referring to the period after a panel interview on 12 December 2012. Dr Sundin had referred to eight prior drug-related breaches since the applicant’s admission to custody in 1998 and positive indications from dog searches on various visitors.) The Board noted that in fact the applicant had a history of nine drug-related breaches since the commencement of his sentence, and said:
“Of the highest concern to the Board is a breach which occurred as recently as 12 February 2015. On this date the applicant provided a positive urinalysis test to Norbuprenorphine. This result is indicative of the use of drugs such as Subutex. The Board noted that this is a drug which the applicant was not prescribed.”
- The Board then referred to a submission which the applicant had made dated 30 March 2015 in relation to his use of Subutex, and a statement the applicant had made during a breach hearing that he had no opportunity but to self-medicate because he was not provided with adequate medical treatment, and his further statement that he was under stress that week because his partner attempted suicide. The Board continued:
“16.The Board considered that, despite having engaged in extensive intervention during custody and the development of a relapse prevention plan, the Applicant has demonstrated an inability to implement such strategies when faced with adverse circumstances. The Board is of the opinion that the Applicant has not consolidated the learnings made available to him through the substance abuse intervention programs, cognitive skills programs and the violence intervention program in which he has participated.”
- The Board made further observations questioning the applicant’s assertion that he was required to self-medicate because of inadequate medical attention, and raised further issues and concerns about the applicant’s ability to appropriately maintain his medication regime while in the community.
- The Board then turned to note “with concern” that the applicant carries a high security classification. The Board observed that security classification is one of the factors contained in the ministerial guidelines which the Board is to consider when determining suitability for release to parole. Clearly enough, a low security classification is a factor indicative of parole suitability.
- The Board then considered “the range of realistic and practically applicable conditions available to be placed on a Parole Order”. It referred to the prospect of including a necessary condition that the applicant abstain from using illicit or unprescribed drugs. The statement of reasons continued:
“As a result of his recent choice to use a drug which was not prescribed to him, the Board has no confidence that such a condition on a Parole Order would be complied with and therefore assist to mitigate future risk of drug use and serious violent offending.”
- The Board then said that, given the significance of the need for abstinence, particularly having regard to the observations in Dr Sundin’s report, it was not necessary for the Board to further examine other possible conditions of parole.
- The statement of reasons noted that, having regard to the concerns expressed in the statement of reasons, the Board decided that the applicant represented an unacceptable risk to the community at that time. It then enumerated the factors on which the Board placed “greatest weight” because they “attest to the Applicant’s future risk of reoffending”, namely:
-The serious and violent nature of the applicant’s offending;
-The fact that, on annual assessment, the applicant still currently attracts a high security classification;
-Dr Sundin’s assessment that substance abuse at the time would have materially contributed to the offending;
-Dr Sundin’s assessment of the risk of future offending being in the moderate to low range, subject to a number of factors including the applicant not resorting back to dysfunctional behaviours or substances;
-Dr Sundin’s advice that “ensuring that Mr Pangilinan does not resort back into substance abuse to self-medicate dysphoric mood will be of primary importance if he is to be released into the community”;
-The fact that the applicant chose to use an unprescribed drug in a high security facility as recently as 12 February 2015, despite having completed several interventions and despite having completed a relapse prevention plan;
-The Board’s consequential conclusion that it could not be satisfied that if the applicant were released to the community a return to illicit drug use for self-medication would not occur;
-By reason of the applicant’s recent drug use in a high security correctional centre, the fact that the Board had no confidence that imposition of a parole condition requiring abstinence from illicit or unprescribed drugs would be effective;
-The necessity for community safety to be at the forefront of the Board’s decision-making.
- This hearing arises as a consequence of the applicant having filed an amended application seeking judicial review of the Board’s decision of 22 June 2015. The grounds of the application are stated to be that the Board failed to take relevant considerations into account, that it exercised its power in accordance with a rule or policy without regard to the individual merits of the case, and that the decision was otherwise contrary to law.
- The application was augmented by written submissions, on which the applicant relied in the hearing before me. It is difficult to discern the precise threads of the applicant’s arguments from those written submissions, but doing the best I can it seems that the applicant’s submissions contain the following contentions:
- The applicant wishes to reprise the “manifest unreasonableness” argument which was dealt with at some length in the judgment of Jackson J. This does not appear formally as one of the grounds for the application, but the submission is that the present challenge is not against a faulty inference of fact by the respondent, but is a complaint by the applicant about “the purported constructive exercise of jurisdiction by reason of a practical injustice”, which requires the intervention of the “supervisory-role” of the Supreme Court.
- When considering the availability of a condition of parole under s 200(2) of the CS Act, the Board failed to give weight and proper consideration to a number of factors, namely:
-the fact that the applicant has a diagnosed disability;
-the fact that the applicant has a history of responding positively to rehabilitation and treatment;
-the lack of availability of specialised counselling and treatment in prison;
-the effect of the prison environment on the applicant’s mental health;
-the limitations (financial and otherwise) on the applicant receiving psychiatric treatment while imprisoned;
-the fact that considerable preparatory steps have been taken, particularly in relation to ongoing rehabilitation and treatment, in anticipation of the applicant’s release on parole.
- It was submitted that there was a “blatant lack of regard to known facts of fundamental importance” in the exercise by the respondent of its power to decide whether or not to grant bail, and whether or not to impose conditions. The applicant contended that consideration of his “disability diagnoses of mental illness” were relevant, and ought to have been considered, in the exercise of the powers under the CS Act, as well as when the Board was considering the application of the ministerial guidelines.
- It was further argued that the approach adopted by the Board, which was “a conclusion based upon speculation without evidentiary grounding”, avoided the operation of s 200, and meant that the legitimate object sought to be achieved by s 200 was displaced.
- In terms of the argument that there was indiscriminate application of a rule or policy, it was submitted that the Board’s reliance on the applicant’s high security classification rating “as a determining factor” rendered the decision void. It was also argued that the Board engaged in a rigid application of the policy articulated in the ministerial guidelines without proper, genuine and realistic consideration of matters such as the applicant’s mental health diagnosis and the fact that his psychological functioning was adversely affected because he was in a penal institution. He argued that the fundamental significance of this was that it went directly to determining the future likelihood of the applicant re-offending.
- The applicant also pointed to the fact that he had been “crying out for help for an extended period of time and … had taken extraordinary measures to remedy the lack of treatment [he] was receiving”.
- In oral argument before me, the applicant first sought to persuade me that the Board had not had proper regard to s 200(2) in the course of its considerations. His next argument was that the Board applied a rule of policy without regard to the individual merits of the case. The applicant also invoked s 3(3)(b) of the CS Act, which provides that the CS Act recognises the special needs of some offenders by taking into account the offender’s age, sex, or cultural background and any disability an offender has. He also referred to s 192 which, relevantly, provides that a parole board is not bound by any recommendation of a sentencing court if the board receives information about the prisoner that was not before the court at the time of sentencing. He also referred to s 217, which describes the functions of a parole board. I should say that none of these sections lend any particular assistance to the applicant’s case. Section 3 is an expression of the matters which the Act “recognises”. It recognises that in the case of some offenders special needs are taken into account in the provisions of the legislation. That recognition does not mean, however, that the existence of a mental health condition is to be given inordinate weight in the exercise of a power under the CS Act. At its highest, it is a matter to be “recognised”. Section 192 is of no relevance to the present case. Nor is s 217.
- In oral submissions, the applicant particularly pressed the issue relating to the lack of psychiatric support and the efforts to which he and his family had gone to enable him to receive private psychiatric support. The issue in that regard is that it is not financially viable for his family to continue to pay for a private psychiatrist; if the applicant were released on parole, the psychiatrist would “bulk bill”.
- The applicant also referred to the significant distress he had suffered as a consequence of his partner’s attempted suicide in January.
- Ultimately, the applicant’s essential argument was that the board may have paid lip service to s 200, but it did not give “constructive attention” to it, in the sense that the Board failed to consider the application of that section in the facts and on the material relevant to this case.
- The applicant’s arguments concerning the consideration of s 200(2) by the Board in the present circumstances cannot be accepted. The situation before Jackson J, and subsequently before the Court of Appeal, was that the respondent had not given any consideration to the possibility of the applicant being released on special conditions. That occurred in circumstances where there was material, namely, a psychologist’s report which assessed the applicant as having a low risk of violent re-offending. As Philippides JA said in the Court of Appeal at [38], this was “expert evidence which was sufficient to raise the issue of whether conditions under the Act might alleviate the [parole board’s] concerns and did so in a manner that required consideration of that issue when determining the parole application”.
- In the current decision, the Board specifically directed attention to the question of availability of such conditions. It did so expressly having regard, in particular, to the comprehensive psychiatric report of Dr Sundin. Dr Sundin assessed the applicant as presenting a medium to low risk of re-offending, but emphasised that there was a fundamental risk management issue, namely, ensuring that the applicant did not resort to substance abuse to self-medicate dysphoric mood. She described this as a matter of “primary importance if he is to be released into the community”. Her assessment of his risk of re-offending as being in the moderate to low zone was expressly stated to be subject to the proviso “that the issues flagged above are carefully managed and closely monitored”. It is apparent that Dr Sundin’s report was written in ignorance of the applicant’s “breach” incident in January 2015. That incident, on the applicant’s version, was triggered by a number of stressors, particularly the attempted suicide of his partner. The reality is, however, that if released back into the community, the applicant will face a wide variety of stressors. It was therefore completely relevant for the Board to have regard to the fact that, when faced with stressors in the relatively enclosed prison environment, the applicant’s response was to self-medicate by using an unprescribed drug. That is precisely the sort of risk to which Dr Sundin was referring in her report. It is also precisely the sort of risk which it was proper for the Board to weigh up in considering whether or not a condition imposed under s 200(2) would be efficacious for achieving the statutory purpose of community safety and crime prevention.
- Beyond that, the matters raised by the applicant go to the merits of the Board’s consideration of the appropriateness or otherwise of allowing release of the applicant on conditions made under s 200(2). The present application is, of course, not a merits review.
- Otherwise, the applicant’s arguments focused on the Board’s reference to the applicant’s high security classification and the Board’s reference to the ministerial guidelines. The applicant is mistaken in his contention that the Board’s reliance upon his classification was a “determining factor” in its decision. It is clear on the face of the statement of reasons that the Board had regard to a variety of factors. One of those was the applicant’s security classification. It was not suggested by the applicant that this was not a relevant consideration. But it cannot be said that the Board’s reference to the ministerial guidelines concerning a prisoner’s security classification was the “determining factor”. It is clear, and the statement of reasons says this in terms, that the Board placed great weight on a number of factors which I have summarised above. One, and only one of those, was the applicant’s security classification. The board did not fetter the exercise of its power by reference to the ministerial guidelines. Nor did the Board’s consideration of the applicant’s security classification preclude or prevent the respondent from considering the possible availability of conditions under s 200(2), which it did.
- It is simply not the case that the Board failed to have regard to the applicant’s mental health issues and treatment either generally in its considerations or particularly in the context of its s 200(2) deliberations. On the contrary, the report of Dr Sundin was directly relevant to those issues and was clearly relied on by the Board.
- Nor did the Board ignore or fail to have regard to matters such as the applicant’s historical response to rehabilitation – that was expressly addressed in para 6 of the statement of reasons.
- Otherwise, the applicant’s arguments amounted to a request that the board review the merits of the decision. That, of course, is unavailable on this application for a judicial review.
- The applicant has not satisfied me that the respondent committed reviewable error in reaching its decision.
- Accordingly, the application will be dismissed. There will be no orders for costs. I direct that a transcript of these reasons for judgment be provided to the applicant.