Weston v Central & Northern Queensland Regional Parole Board
[2016] QSC 10
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- Unreported Judgment
- Weston v Central & Northern Queensland Regional Parole Board[2016] QSC 10
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Weston v Central & Northern Queensland Regional Parole Board[2016] QSC 10
Weston v Central & Northern Queensland Regional Parole Board[2016] QSC 10
SUPREME COURT OF QUEENSLAND
CITATION: | Weston v The Central & Northern Queensland Regional Parole Board [2016] QSC 10 |
PARTIES: | GRANT NATHAN WESTON |
FILE NO/S: | SC No 6401 of 2015 |
DIVISION: | Trial |
PROCEEDING: | Originating Application |
ORIGINATING COURT: | Supreme Court at Brisbane |
DELIVERED ON: | 8 February 2016 |
DELIVERED AT: | Brisbane |
HEARING DATE: | 21 October 2015 |
JUDGE: | Philip McMurdo JA |
ORDER: | 1. Originating application refused. |
CATCHWORDS: | ADMINISTRATIVE LAW – Judicial Review – GROUNDS OF REVIEW – error relating to facts – where the applicant’s application for parole was refused – where the applicant contended that participation in a rehabilitative program was voluntary – where the applicant alleged the respondent considered participation mandatory – where the evidence indicated the applicant was invited to participate and declined – whether there was a demonstrable error ADMINISTRATIVE LAW – JUDICIAL REVIEW – GROUNDS OF REVIEW – ERROR RELATING TO FACTS – where the applicant’s application for parole was refused – where the applicant agreed to participate in a rehabilitative program understood to commence in July 2015 – where the respondent acknowledged the applicant’s intention to participate – where the respondent made a factual error because the rehabilitative program would not commence until January 2016 – whether the error was critical to the respondent’s reasoning ADMINISTRATIVE LAW – JUDICIAL REVIEW – GROUNDS OF REVIEW – OTHER – where the respondent was required to make a decision within six months – where the applicant argued the respondent should have deferred its decision – whether the respondent had grounds to defer the decision Judicial Review Act 1991 (Qld), s 20 Gough v Southern Queensland Regional Parole Board [2008] QSC 222, cited |
COUNSEL: | M Woodford for the respondent |
SOLICITORS: | The applicant appeared on his own behalf Crown Law for the respondent |
- PHILIP McMURDO JA: The applicant is a prisoner currently serving a period of imprisonment of six years with a full time release date in June 2019. That period comprises several concurrent terms which were imposed in the District Court in November 2014. The longest is a term of six years for an offence of breaking and entering a dwelling with intent and with the use or a threat of violence. The others are for offences of stealing, wilful damage to property, grievous bodily harm and the possession of tainted property. He pleaded guilty to each charge and his parole eligibility date was fixed at 7 June 2015, effectively after one-third of his period of imprisonment.
- He has applied for and been refused parole. By this application he seeks judicial review of that decision.
- The applicant was born in February 1983. He has a criminal history from the age of 17 for drug offences and property offences which were the result of his drug use.
- He applied for parole by an application which the respondent Board received on 19 February 2015. The Board wrote to him on 14 April 2015, advising that it had considered his application and formed a preliminary view that it should be declined. He was informed that the purpose of the letter was to draw his attention to the adverse factors that had resulted in that preliminary opinion and to provide an opportunity for him to address them. The Board there referred to his criminal history which was described as demonstrating “a propensity for crime related to substance abuse, break and enter and theft of property”. The Board noted that the applicant had “previously been afforded the opportunity for community based orders” and that the applicant had breached a court ordered parole order granted in 2010 by further offending and a positive drug analysis. It further noted what it described as the applicant’s poor custodial behaviour, involving breaches of prison discipline on three occasions in 2014 and another in January 2015. The Board expressed its concern that if the applicant was unable to maintain acceptable behaviour in the highly structured environment of the prison, the applicant would not comply with parole conditions.
- The letter then referred to the applicant’s participation, or more precisely non‑participation, in a rehabilitative program described as the Bridge program. It referred to a statement, in what was described as the Parole Board Report dated 19 March 2015, that the applicant had failed to complete the Bridge program, and indeed had failed to attend even the first session and that he had indicated his wish to withdraw from it.
- The Board also referred to a Rehabilitation Needs Assessment according to which the applicant had “high needs in relation to [his] substance abuse” for which it was recommended that he participate in another program called the Pathways: High Intensity Substance Abuse program. The Board wrote that having regard to the applicant’s “extreme drug dependence and negative custodial incidents relating to substance abuse”, it was of the view that the applicant’s interests and those of the safety of the community would be served by the applicant’s “outstanding needs [being] addressed in custody as this will ensure protective strategies are in place prior to your return to the community [and that] the most effective and professional way … to do this is through participation in the [Pathways program]”. The Board also wrote that the applicant’s relapse prevention plan was “limited in relation to substance abuse”.
- The applicant responded to that letter on 7 May 2015. He described the circumstances of the breaches of discipline, which he said were relatively minor. With respect to rehabilitative programs he wrote:
“My ROR score is too low for me to participate in any intervention programs so the programs team suggested the Bridge Program, more so that I did something rather than my needs. I was willing to do this program however at commencement I realized that other people on the program were people that I had issues with. I have now agreed to participate in the pathways program that commences in early July. I am willing to do any program ordered within the community.”[1]
The applicant also wrote that he was progressing well and that his good behaviour was recognised by his accommodation in a less secure section of the prison and the work he was then being assigned. He asked the Board to grant his release but if presently reluctant to do so, to defer a decision for a period of three months so that his further good behaviour could be taken into account.
- On 22 May 2015, the Board wrote to the applicant advising that it had concluded that his application for parole should be refused. The Board wrote that the Pathways program which had been recommended for the applicant was “scheduled to commence in July 2015”, and that the Board considered that until that program was completed, the applicant presented an unacceptable risk to the community if released on parole. It agreed to his lodging a new application with the Board at any time from six months of the date of its decision.
- At the applicant’s request, the Board provided a statement of reasons to the applicant on 2 July 2015. The reasons effectively restated those which were revealed by the Board’s correspondence already discussed. It expressed the Board’s opinion that the applicant was then unable to maintain acceptable behaviour in the structured environment of the prison, therefore providing no cause for the Board to be confident that the applicant would comply with parole conditions. Again, the Board referred to the matter of rehabilitative programs and the applicant’s non-participation in the Bridge program. The Board expressed its concern that the applicant had “outstanding treatment requirements which may assist the applicant in his understanding of the reasons for his offending behaviour in the past and assist in developing strategies to prevent such offending recurring when released”. Importantly, the Board wrote “it is not a requirement that prisoners must complete treatment programs before being eligible for release on Parole however, in this case, the Board has determined it would be assisted in determining the potential risk to the community if the applicant were to be released, by the applicant completing those programs identified by the Department”. It expressed the Board’s opinion that the interests of the applicant and those of the community would be best served if the applicant’s outstanding treatment needs were addressed in custody, and that the most effective and professional way for this to be done was through participation in the recommended programs.
- The applicant, who is without legal representation, commenced this proceeding seeking a review of the decision solely upon a ground that he had been denied natural justice and procedural fairness. But his case was advanced differently in his written and oral submissions. Then not all of the matters raised in his written submissions were pressed by him at the hearing. In particular, his written submissions contended that the Board had not given proper consideration to the particular facts and circumstances of his case, but instead had exercised its power according to a rule or policy without reference to the merits of his case. At the hearing he did not identify any particular rule or policy and this argument was not pressed, except to the extent that it was within the points which I will now discuss.
- He complained of a factual error in what the Board had written about his non-participation in the Bridge program. In his written submissions, he contended that the Board had written, within its statement of reasons, that the applicant had been required to participate in that program. He contended that the program was voluntary so that in that way the Board had proceeded upon a factual error. In his oral argument, the point was developed somewhat differently, the applicant contending that he had never been asked to participate in that program. His point was that he could not have done so prior to being sentenced, and at the time of his suggested withdrawal from the program, he was a remand prisoner. However, the evidence proves that he was invited to participate in that program but withdrew at the first session, as the Board had stated. And importantly, in the passage from the applicant’s letter to the Board of 7 May 2015 which I have set out above, the applicant seems to have agreed with the Board’s statement of the factual position in this respect. Further, there is a memorandum signed by two Corrective Services officers, employed at the Townsville correctional complex, setting out the facts in respect of this program as the Board found them to be. There is no demonstrated error by the Board in its findings of fact in respect of his non-participation in this program in 2014, and this argument for the applicant cannot be accepted.
- In his written submissions, the applicant contended that the decision was based upon a misunderstanding of the availability of the Pathways program as one that commenced in July 2015. In fact the program did not commence then and the applicant asserted in his written submissions that the Corrective Services Department had no intention of conducting that program “at any time in the future”.
- According to an affidavit of Mr Phelan of the Queensland Corrective Services, the applicant was waitlisted for participation in the Pathways program immediately after he was assessed at a case conference held on 17 February 2015. That is supported by a contemporaneous document. Mr Phelan’s evidence is that at that time, all programs for the 2014-2015 financial year had concluded or were underway and no program scheduling had occurred for the second half of the 2015 calendar year. Mr Phelan’s evidence is that “it may have been anticipated that Townsville Correctional Centre would commence a program in the first six (6) months (July – December 2015) of the new financial year”. Mr Phelan says that the actual scheduling of the Pathways program occurred in June 2015 with the program at the Townsville Correctional Centre to commence in January 2016.
- In its letter of 22 May 2015, the Board wrote:
“The Board noted that the Pathways: High Intensity of Substance Abuse Program that you have been recommended to complete is scheduled to commence in July 2015.”[2]
The Board was there repeating what the applicant had written in his letter of 7 May 2015. It appears then that each of the parties was under a misunderstanding about the timing of the next program. The true position was that a Pathways program was anticipated to commence during the second half of the 2015 calendar year. To that extent, the Board was in error. But this was a factual error and the existence of such an error is not of itself a ground for review of a decision under the Judicial Review Act 1991 (Qld). Further, the error was not critical to the Board’s reasoning. In essence, the Board was concerned that the applicant represented an unacceptable risk to the community if released on parole without more progress having been made in the rehabilitation of the applicant, including by participation in this program. Clearly, the Board’s reasoning would have been the same had it understood that the program was likely to be offered at some time in the second half of 2015 rather than in July. The applicant’s frustration with the program not being offered at Townsville until January 2016 (and at prisons in Southern Queensland in November 2015) is understandable. But ultimately, this misunderstanding as to the timing of the availability of the program does not provide a basis for review of the Board’s decision.
- The applicant’s next argument claims that the Board should have deferred its decision instead of refusing parole. As already noted, the applicant had requested the Board to do so in his letter of 7 May 2015. However, the Board was required to decide this application within the period of six months which expired on 19 August 2015 and the concerns expressed by the Board were not such that they could have been answered in time for the Board to change its mind within that six month period. Therefore, there was no good reason for the Board to delay its decision. Therefore, this argument must also be rejected.
- Lastly, the applicant’s written submissions apparently sought some support from Gough v Southern Queensland Regional Parole Board.[3] But no argument was advanced by the applicant at the hearing for which that decision would provide support. In particular, the applicant has not established that the Board failed to consider his application on its merits.
- The originating application must be refused. It will be further ordered that the applicant pay the respondent’s costs of the application. The respondent sought such an order in its written submissions at the hearing and there is no reason why the costs should not follow the event.