Buckley v Queensland Parole Board
[2017] QSC 41
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- Unreported Judgment
- Buckley v Queensland Parole Board[2017] QSC 41
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Buckley v Queensland Parole Board[2017] QSC 41
Buckley v Queensland Parole Board[2017] QSC 41
SUPREME COURT OF QUEENSLAND
CITATION: | Buckley v Queensland Parole Board [2017] QSC 41 |
PARTIES: | JASON CHARLES BUCKLEY (applicant) v QUEENSLAND PAROLE BOARD (respondent) |
FILE NO: | BS10933 of 2016 |
DIVISION: | Trial Division |
PROCEEDING: | Application for a statutory order of review |
DELIVERED ON: | 24 March 2017 |
DELIVERED AT: | Brisbane |
HEARING DATE: | 8 February 2017 |
JUDGE: | Mullins J |
ORDERS: | 1. Application dismissed. |
CATCHWORDS: | ADMINISTRATIVE LAW – JUDICIAL REVIEW – GROUNDS OF REVIEW – IRRELEVANT/RELEVANT CONSIDERATIONS – where prisoner who was serving a sentence of 22 years for rapes of three unrelated victims and associated offences applied for parole – where application was refused – where Board referred to historical material that came into existence in relation to the prisoner’s sentencing that recorded claims by him of involvement in animal cruelty and bestiality – where the prisoner withdrew those claims by statutory declaration made in 2014 – whether the Board’s reference to that historical material amounted to taking into account those claims of animal cruelty and bestiality when they were not proved – where the prison had administered a Sexual Offending Program Assessment and the STABLE 2007 assessment for the purpose of recommending programs and treatment for the prisoner – where the substance of those assessments was embedded in the material before the Board – whether the fact that the actual assessments were not before the Board amounted to a failure to take into account a relevant consideration – whether the Board had failed to disclose and put the substance of the assessments to the prisoner – whether there was any breach of the rules of natural justice Corrective Services Act 2006 (Qld), s 3, s 227 Judicial Review Act 1991 (Qld), s 20 Buckley v The Queen (2006) 224 ALR 416; [2006] HCA 7, related Minister for Aboriginal Affairs v Peko-Wallsend (1986) 162 CLR 24; [1986] HCA 40, considered R v Buckley [2008] QCA 45, related |
COUNSEL: | J W J Fenton for the applicant M J Woodford for the respondent |
SOLICITORS: | Fisher Dore Lawyers for the applicant G R Cooper, Crown Solicitor for the respondent |
- Mr Buckley is serving a period of imprisonment of 22 years. He applied for parole on 20 September 2015. The Queensland Parole Board deferred making the decision and ultimately requested that a psychiatric assessment be prepared by psychiatrist Dr Sundin. Dr Sundin interviewed Mr Buckley for two hours on 19 February 2016 and prepared a written report dated 3 March 2016 that was provided to the Board. The Board considered the matter on 18 March 2016 and formed the preliminary view to decline the application for parole and invited Mr Buckley to make further written submissions. Further submissions were made on behalf of Mr Buckley and ultimately the Board considered the matter on 22 July 2016 and refused the application for parole. A statement of reasons was supplied by the President and Board on 13 September 2016. The applicant applies under s 20 of the Judicial Review Act 1991 (Qld) (the Act) for a statutory order of review in relation to the Board’s decision not to grant him a parole order.
Grounds for the application
- Although the amended application lists eight grounds for reviewing the decision, two broad grounds only were the subject of detailed submissions:
- the taking into account of an irrelevant consideration, namely the consideration of alleged crimes of animal cruelty and bestiality in respect of which the applicant had never been charged or convicted; and
- the making of the decision involved a breach of the rules of natural justice, because the Board failed to disclose to Mr Buckley or put the substance to Mr Buckley of the Sexual Offending Program Assessment (SOPA) and/or the STABLE 2007.
- Neither the SOPA nor the result of applying STABLE 2007 to the applicant are listed in the materials that were before the Board. Mr Buckley therefore relies on the SOPA and/or the STABLE 2007 as matters which the Board should have considered and therefore, apart from the breach of the rules of natural justice in not disclosing or putting those matters to Mr Buckley, it is asserted the Board failed to take them into account as a relevant consideration in deciding the application for parole.
Relevant background of Mr Buckley
- The following summary is taken from material that was before the Board.
- Mr Buckley is 45 years old. On 6 June 2003 he pleaded guilty to five counts of rape, one count of burglary by breaking in the night with violence, one count of indecent assault and one count of grievous bodily harm. For each of the rapes he was eventually sentenced to imprisonment for a period of 22 years and given lesser concurrent sentences on the other offences. He had been in pre-sentence custody from 27 April 2000. His full time discharge date is therefore 26 April 2022.
- The five rape offences were committed against three separate victims and were unrelated offences. The first victim aged 20 years was stalked and attacked when alone in her yard, sodomised and raped. The second victim aged 67 years was attacked around 5am in her bedroom, dragged into her yard, and digitally raped and sodomised. The third victim aged 15 years was chased at 1am and brought down in the vicinity of parkland and was raped a number of times.
Information before Board on alleged animal cruelty and bestiality
- For the purpose of the original sentencing, Mr Buckley’s lawyers had him assessed by psychiatrist Dr Moyle who prepared a report dated 29 July 2003 after interviewing Mr Buckley on 25 June 2003. Dr Moyle had previously assessed Mr Buckley for the purposes of the Mental Health Tribunal, so that the June 2003 interview was to update Dr Moyle’s knowledge of Mr Buckley. Paragraph 9 of the report set out what Mr Buckley reported in respect of when at around 19 or 20 years old he obtained a job with the council:
“There he started drinking heavily getting into fights and indulging in voyeurism ie looking in windows, and had sexual experiences with animals. A lot has been made in the other reports of his sex with animals. He described climbing on railings and yards but denied injuring the horses. He believed that he was so small by comparison they hardly knew he was there. In his mind it was cleaner to do that than have sex with women. He denied any animal sex when he was 17 or 18 when in the country shooting roos. It occurred when he was unhappy and in a dark frame of mind with self loathing, feeling he was worth nothing and needing the release of sex.”
- At paragraph 20 of his report, Dr Moyle recorded:
“During the time the rapes took place nothing mattered to him. He felt the need to inflict pain and hurt to ‘make sex horrific’ instead of pleasurable. He recalled as a child, pleasure led to him becoming addicted to the after affects of sex. He said ‘I lashed out and unfortunately three people suffered for it.’ He also acknowledged killing a couple of animals, quickly and cleanly, and having sex with their cadavers, this was described by Professor Yellowlees. He denied that they were killed in a cruel fashion. He said they were wild horses who couldn’t be restrained to allow him to engage in his unusual sexual acts. He was at a particular low point at that time also.”
- Another incident of animal sex that Dr Moyle recorded from the history taken from Mr Buckley was set out in paragraph 51 of Dr Moyle’s report:
“There was also an occasion on a river bank that involved exposure to child animal sex. He was not engaged in the sexual act. Apparently a hippie couple introduced him to positive happy sex, that involved some experience of dog/female sex arising in that setting.”
- Reports were also obtained from Professor Yellowlees and Dr Kingswell for the Mental Health Tribunal reference. The evidence of these psychiatrists and Dr Moyle was referred to in the remarks on the original sentencing on 11 September 2003. In the course of the sentencing remarks, it was recorded:
“Professor Yellowlees and Dr Kingswell were confronted with a background in which the accused had an early onset of voyeurism and sexual fantasies. Professor Yellowlees said that the material showed that the applicant had had many sexual experiences with animals – namely horses, sheep and goats – for a period of more than 10 years from when he was about aged 15. Professor Yellowlees mentioned that although the accused said, and the material seems to support it, that on the occasions of the incidents with the three complainants on the indictment before me that the accused was adversely affected by the voluntary consumption of liquor, that the episodes, certainly at least some of the episodes involving sexual activity with animals occurred whilst the accused had not liquor taken.
What was a matter of concern to Professor Yellowlees was that with the animals, on occasions after the act of sexual perversion, that the accused would kill animals.”
- As Mr Buckley was originally sentenced to indefinite sentences, his appeal was eventually heard by the High Court: Buckley v The Queen (2006) 224 ALR 416. The psychiatric evidence before the sentencing judge was summarised by the High Court at [12] to [22]. The appeal to the High Court was allowed as, apart from factual errors that had been made by the sentencing judge, there had been a failure to consider factors relevant to the exceptional nature of the exercise of the power to impose an indefinite sentence. The High Court also noted at [43] that the details of the sexual activities with animals were unproved, they have never been the subject of criminal charges, and that Mr Buckley was not to be punished additionally in respect of those events. The matter was remitted to the Court of Appeal for further consideration.
- When the matter was subsequently before the Court of Appeal (R v Buckley [2008] QCA 45) Muir JA (with whom the other members of the court agreed) at [9] quoted from Dr Yellowlees’ report dated 9 January 2001:
“The applicant has regularly performed sexual acts on a variety of animals since the age of 15, and admitted to killing some of these animals prior to the sexual acts, which appear to have frequently been otherwise quite violent … in his interview with me, [the applicant] complained that the rapes with which he is charged were very similar to some of the sexual acts he has had with animals in the past, particularly in terms of the power that he felt over the victims … [the applicant] admitted that from the age of about 15 he has been a regular voyeur, and indicated that he has been found guilty of related offences in the past.”
- In the submissions supporting his parole application, Mr Buckley gave the following explanation for the information which he gave to the psychiatrists before he was sentenced for the rapes and related offences:
“On 18.3.14, I signed a 2 page Statutory Declaration before J.P. Ian COWAN explaining that my psychiatric claims before my conviction, were completely fabricated in order to get a lighter sentence for the crimes I committed. There was no evidence of any of the depraved psychiatric behaviour I admitted to except by my own misguided admissions which all occurred whilst I was suffering from depression, stress and anxiety due to the charges. I retract in full, all of those claims I made to the original psychiatrists namely that I was sexually abused as a child, all of the offences of beastiality plus I had never engaged in juvenile delinquent behaviour, I have never experienced a wanting to hurt women then or in the present, I have never heard any voices compelling me to commit offences. I deeply regret these irrational responses made after my arrest, which were formulated entirely to prevent my life ending in jail for the rape offences. I have attached a copy of that Statutory Declaration to this application.
I was never trying to get off the offences and in a misguided way I was trying to stop myself from dying in jail. I was a young country fellow and I didn’t understand fully that I was causing myself extra problems. I was fear driven and I took the advice of other inmates and made up the stories about having sex with animals. Since then I have had the High Court appeal where the animal side of my offences was not believed or I would still have an indefinite sentence. It is well known that men under severe stress are likely to say anything and that is what I did.”
- The statutory declaration referred to in Mr Buckley’s supporting submissions was attached to his parole application and is fairly summarised in relation to animal cruelty and bestiality in the above extract from his submissions.
- Mr Buckley had undertaken the High Intensity Sexual Offending Program (HISOP) between 11 August 2014 and 18 August 2015 and the completion report for that program was before the Parole Board. In the summary at the conclusion of the report, the following is noted:
“Prisoner Buckley’s Sexual Offending Programs Assessment (SOPA) identified sexual deviancy as an intervention target. The Crossroads: HISOP does not specially address this treatment need, therefore it is recommended that he seek further professional counselling from a psychologist or psychiatrist in the community who specialises in this area, in order to minimise and manage this risk factor. This is particularly important; given that prisoner Buckley identified having engaged in sexual behaviours and voyeurism from a young age, in response to stressors.”
- For the purpose of the parole application, Mr Buckley had nominated an address that was the subject of a Home Assessment Report dated 22 October 2015. The proposed address was considered unsuitable for the purposes of Mr Buckley’s parole and one of the concluding comments of the report was:
“It is noted that the applicant is a high profile offender who has a significant history of violent sexual offences against animals and women of varying ages.”
- Mr Buckley’s parole application was not supported by the Chief Executive of Queensland Corrective Services after an assessment by a panel who interviewed Mr Buckley on 9 October 2015. The report recommended to the Board that an external psychiatric opinion be sought, as the panel concluded that Mr Buckley’s current level of risk could not be sufficiently assessed through the evidence and expertise available in the relevant correctional centre. The Board acted on that recommendation in engaging Dr Sundin to prepare a psychiatric assessment of Mr Buckley for its consideration.
- Dr Sundin’s report summarises the documents which Dr Sundin reviewed for the purpose of the preparation of her report, including Dr Moyle’s report, the decision of the High Court, Mr Buckley’s parole application, and the HISOP exit report. Dr Sundin recorded the following information provided by Mr Buckley:
“At the beginning of the interview, Mr Buckley was keen to make it clear that he had made retractions with regard to the claims of bestiality and sexually sadistic fantasies. He stated that he made those claims as part of the assessment for the Mental Health Review Tribunal because he was ‘panic driven; I was frightened of dying in jail’.
Mr Buckley states that he was advised by other prisoners to ‘make out you’re hearing voices, you’re sick and bizarre’ with the hope that the Mental Health Tribunal would find him of unsound of mind. Simultaneously he asserts ‘I knew I had to pay for my crimes’. He now characterises the claims he made at that time as ‘all rubbish’.”
- In the section of Dr Sundin’s report dealing with diagnosis, Dr Sundin considered that Mr Buckley satisfied the criteria for cluster B personality disorder with anti-social and borderline personality traits, alcohol abuse disorder (in sustained remission whilst in prison) and voyeurism and stated:
“I note that Mr Buckley has previously attracted diagnoses of multiple Paraphilias; specifically of Voyeurism, Zoophilia and Sexual Sadism. The only paraphilia he acknowledged to me was that of Voyeurism. He specifically denied any engagement in sexual acts with animals, denied that he had ever killed animals after engaging in intercourse with them, denied that he had been the victim of childhood sexual abuse, and denied that he had had fantasies of harming or killing women.
I am uncertain as to how to best interpret Mr Buckley’s recantation of his previous claims with regard to various paraphilic fantasies and acts. Mr Buckley states that he first proffered these accounts to three or four different assessing psychiatrists in an effort to paint himself in the most negative light possible with the hope that he may be able to claim some form of psychiatric defence. He states that at a time while he was fully prepared to take responsibility for his offences, he was also seeking to ensure that he was not jailed for life. The psychiatrists who assessed him at that time did not consider that he evidenced any major psychiatric disorder, but three experienced psychiatrists were satisfied that he was giving an accurate account of the paraphilic behaviour and did not consider that his accounts were either deceptive or malingered.
His current assertion, as set out in his 2014 affidavit and at interview with me, that these were fabricated stories, may be the truth or may be another effort at positive impression management. The timing of the affidavit ensured that he was able to participate in the HISOP without reference to these previous claims. This may also be a part of his well-established avoidance coping pattern.
In my opinion, both the issue of sexual deviancy as flagged by the HISOP facilitators and the reliability or otherwise of his self-account, needs to be further addressed in ongoing sessions with a clinical psychologist or a psychiatrist.”
- Dr Sundin in her conclusion dealt with Mr Buckley’s recorded history about animal cruelty and bestiality and withdrawal of those claims in these terms:
“My principal caveat on any recommendation to the Parole Board harks back to the issue of his recantation with regard to the history of Paraphilia. It is impossible to be confident as to whether or not Mr Buckley was deceptive from 2000 through 2003 when he persisted with these claims, or whether he is being deceptive now in that he refutes the original account.
Given that the facilitators noted that Mr Buckley was still needing assistance with communication style, and was still focusing on environmental-based risks rather than underlying factors; and needed to develop greater conflict resolution skills and communication skills, I am of the opinion that it would be difficult for the Board to have complete confidence in the success of a parole programme until Mr Buckley has been engaged within prison in regular sessions with an appropriately qualified clinical psychologist. Such a therapeutic relationship would further mitigate his risks when the Board did deem that he had made sufficient progress to begin a parole process. It would allow further exploration of the issues around paraphilias. The psychologist with whom Mr Buckley engages in prison could be the psychologist who continues to support his transition into the community.”
Alleged breach of the rules of natural justice
- In June 2016 the Board received a report completed earlier that month in relation to the Sexual Offending Maintenance Program (SOMP) in relation to Mr Buckley’s participation in that program between 29 January and 27 April 2016. The report comprises three pages. At the outset it lists assessments. It records a score of seven for STATIC 99R which, according to the key for interpreting the score that is also within the report, falls into the category of “High” which applies to a score of six or more. For STABLE – 2007 (Dynamic Risk Factors), the following risk factors are listed:
- Significant social influences
- Capacity for relationship stability
- Hostility toward women
- Lack of concern for others
- Impulsive acts
- Poor problem solving
- Negative emotionality
- Sexual drive/preoccupation
- Sex as coping
- Deviant sexual interests
- Cooperation with supervision
- The summary and recommendations of the SOMP completion report was in these terms:
“Prisoner Buckley attended 11 sessions of the Staying on Track: Sexual Offending Maintenance Program. He was a strong group member, who was always involved in discussions. Given his propensity to voice his opinions prisoner Buckley required some direction to allow space for other participants to contribute. He demonstrated an intellectual understanding of all program concepts, and was able to personalise these to his offending behaviour or life experiences. Prisoner Buckley demonstrated both anti-system and pro-social attitudes. Given his lengthy custodial sentence it will be important for prisoner Buckley’s parole officer to monitor his transition into the community, and be aware of the presence of negative world view or rumination which may impact on his adherence to his parole conditions.
It is important to note that prisoner Buckley’s Stable-2007 assessment indicated that he had treatment needs in the area of sexual deviancy. As neither HISOP nor SOMP specifically address this treatment need it is recommended that prisoner Buckley seeks further professional counselling from a psychologist or psychiatrist who specialises in this area.
Should prisoner Buckley be released to parole. It is recommended that he provide a copy of his New Future Plan to his parole officer and other personal and professional supports. This will ensure that they are aware of his high risk factors and early warning signs. In order to meet these challenges, prisoner Buckley is recommended to seek professional support and to fully utilise his professional and personal support network. Additionally, prisoner Buckley may benefit from participating in SOMP in the community to afford him the opportunity to review his New Future Plan following application in a community environment.”
- Mr Buckley endorsed the SOMP completion report with his signature on 7 June 2016, as acknowledgement that he had read the report.
- The HISOP completion report had also listed the same STATIC 99R score and the same list of dynamic risk factors identified in the STABLE 2007 assessment, except that “Deviant Sexual Preference” was used instead of the later description in the SOMP report of “Deviant Sexual Interests”. Similarly to the summary in the SOMP report, the concluding summary in the HISOP report noted that the SOPA identified sexual deviancy as an intervention target and that HISOP did not address that treatment need. Mr Buckley acknowledged that he read the HISOP completion report on 30 September 2015.
- The applicant’s complaint is that there is reference in the material before the Board, including the summary and recommendations of the SOMP and HISOP completion reports, to Mr Buckley having treatment needs in the area of sexual deviancy which can be traced to the STABLE 2007 risk assessment or the SOPA, neither of which documents have been disclosed to Mr Buckley.
- Dr Sundin in the section of her report entitled “Risk Assessment” recorded assessing Mr Buckley on a number of risk assessment instruments. In respect of STATIC 99R, Dr Sundin noted:
“On the Static-99R, Mr Buckley scores 7, which places him amongst the group of offenders considered to be at high risk for future sexual offending. The Static-99R evolved out of the Static-99 and estimates potential for future sexual recidivism based on historical factors, with the modified revised form taking account of the prisoner’s age at likely release.”
The Board’s decision
- The Board had sent a letter to Mr Buckley dated 5 April 2016 advising of the Board’s preliminary view that the application for parole should be declined. That letter enclosed copies of the documents considered by the Board and set out the factors which led to the Board reaching that preliminary view, including its acceptance of Dr Sundin’s report, giving particular attention to the summary in that report of Dr Moyle’s report dated 29 July 2003, Dr Sundin’s summary of the High Court decision, Dr Sundin’s assessment using DSM-V, the HARE Psychopathy Rating Scale, the STATIC-99R and the Sexual Violence Risk Scale SVR-20. The Board noted that Mr Buckley was active on the SOMP, but that the issues of sexual deviance were not addressed in either HISOP or SOMP. The Board expressed its preliminary view that Mr Buckley presented an unacceptable risk of reoffending, if released to parole at this time.
- Mr Buckley’s solicitors made submissions to the Board by letter dated 1 June 2016 that Dr Moyle’s report, Dr Sundin’s report, the home assessment report dated 22 October 2015, the High Court decision, and the original sentencing remarks were irrelevant, as those documents all contained contentions that Mr Buckley had sex with, tortured and or killed animals, and Mr Buckley had never been charged or convicted of bestiality or animal cruelty in any form and had provided a statutory declaration that he had never committed that conduct. It was therefore submitted that it was beyond the Board’s role to consider reports that were based on sexual abuse of animals, as to do so would result in the Board finding him, in effect, guilty of those offences. The Board was therefore requested to remove the identified documents from the Board’s file and reconsider the application untainted by those documents.
- In relation to the submissions made by the applicant’s solicitors, the Board did not remove the identified documents from the Board’s file, but in the letter of 22 July 2016 notifying Mr Buckley that his application for parole was refused advised Mr Buckley in these terms:
“Your legal representative submitted that the Board has effectively found you guilty of offences for which you have not been convicted, e.g bestiality, and in so doing acted beyond its jurisdiction and took an irrelevant matter into account. It is to be noted that the only evidence of your involvement in such activities came from you, when you discussed your case with Dr Moyle. It has been also noted that you have since then resiled from those confessions.
The Board did not decide you were guilty of those other offences but is entitled to consider your likely level of credibility when assessing the level of risk you currently present to the community. It is in that regard that the Board considered your confession and withdrawal of confession. The Board has no way of knowing whether you were telling the truth when you spoke to Dr Moyle or whether you are now telling the truth; and that circumstance is relevant to the assessment of your risk.
It was also submitted that the Board should not have considered either the sentencing judge’s comments or the High Court decision. In the Board’s view, it was entitled to consider both documents globally in order to assist it to assess your risk level.
It was also submitted that the Board should not have considered Dr Moyle’s report. However, the Board considers it is entitled to take into account all psychiatric reports and to then give whatever weight might be appropriate to the various aspects of such reports.”
- Mr Buckley’s solicitors requested a statement of reasons which was provided by the Board dated 13 September 2016. Similar to the Board’s letter of 5 April 2016, the Board set out parts of Dr Sundin’s report to which it had paid particular attention which repeated the summary of Dr Moyle’s report dated 29 July 2003, with the summary of the High Court decision and the same references to the diagnostic and assessment tools set out in Dr Sundin’s report. The Board did not set out that part of Dr Sundin’s report in which she dealt with the dilemma posed by the material provided by Mr Buckley prior to his sentencing that dealt with the history of animal encounters and his more recent recantation of that history. The Board set out how it dealt with that conflict, in the light of Mr Buckley’s solicitors’ submissions at paragraphs 10 to 14 of the statement of reasons:
“10.The Board considered that the Applicant’s legal representative submitted that the Board had effectively found the Applicant guilty of offences for which he has not been convicted, e.g bestiality, and in so doing acted beyond its jurisdiction and took an irrelevant matter into account. The Board confirmed that the only evidence of the Applicant’s involvement in such activities came from him, when he discussed his case with Dr Moyle. It was also noted that the Applicant has since then withdrawn those confessions.
- The Board confirmed it did not decide that the Applicant was guilty of those other offences but is entitled to consider his likely level of credibility when assessing the level of risk he currently presents to the community. It is in that regard that the Board considered his confession and withdrawal of confession. The Board has no way of knowing whether he was telling the truth when he spoke to Dr Moyle or whether he is now telling the truth; and that circumstance is relevant to the assessment of his risk.
- It was also submitted that the Board should not have considered either the sentencing Judge’s comments or the High Court decision. In the Board’s view, it was entitled to consider both documents globally in order to assist it to assess the Applicant’s risk level.
- It was also submitted that the Board should not have considered Dr Moyle’s report. However, the Board considers it is entitled to take into account all psychiatric reports and to then give whatever weight might be appropriate to the various aspects of such reports.
- It was also correctly submitted, that it appeared that the Board did not take into account the Applicant’s successful completion of the Sexual Offending Maintenance Program. The Board gave careful consideration to the Sexual Offending Maintenance Program Completion Report and particularly noted the sections of it in the Applicant’s favour. However, it was also noted that in Dr Sundin’s view, the Applicant continues to have some outstanding treatment needs in relation to his sexual deviancy; and it was noted that the same comment appears in the Sexual Offending Maintenance Program Completion Report.”
- The import of Dr Sundin’s discussion and conclusion in her report about the implication of Mr Buckley’s claims of sexual abuse of animals and his subsequent withdrawal of those claims is reflected in paragraph 11 of the Board’s statement of reasons.
Statutory context of the Board’s decision
- One of the functions of the Board under the Corrective Services Act 2006 (Qld) (the Act) is to decide an application for parole. Under s 3(1) of the Act, an object of the Act is for “community safety and crime prevention through humane containment, supervision and rehabilitation” which is relevant to granting or refusing an application for a parole order. There are no express provisions that otherwise set out the factors that should be considered by the Board, except for Ministerial Guidelines to the Board which were recorded in the material to which the Board had consideration in making its findings. These Ministerial Guidelines were made pursuant to s 227(1) of the Act which permits the Minister to made Guidelines about the policy to be followed by the Board when performing its functions. In section 1.1 of the guidelines it is expressly stated that in following these guidelines “care should be taken to ensure that decisions are made with regard to the merits of the particular prisoner’s case”. The guiding principles in sections 1.2 and 1.3 are:
“1.2When considering whether a prisoner should be granted a parole order, the highest priority for the Queensland Parole Board (‘the Board’) should always be the safety of the community.
1.3The Board should consider whether there is an unacceptable risk to the community if the prisoner is released to parole; and whether the risk to the community would be greater if the prisoner does not spend a period of time on parole.”
- Of relevance is section 3.3(c) of the Guidelines which provides for one of the factors that, where possible, should be taken into account by the Board in determining procedural fairness in these terms:
“Raw psychological assessment data, treatment plans, program screening tools and program case notes should not be released in that format. A report interpreting the data is appropriate for release if available.”
- There was no issue between the parties as to the breadth of the discretion vested in the Board and that relevant considerations are determined by the subject matter, scope and purpose of the Act: Minister for Aboriginal Affairs v Peko-Wallsend (1986) 162 CLR 24, 40.
Further information on SOPA and the STABLE 2007 assessment
- There was no objection on Mr Buckley’s behalf to the Board relying on the affidavit of Mr Phelan filed on 7 February 2017 which explained the timing and nature of the SOPA and STABLE 2007 assessment in relation to Mr Buckley. Mr Phelan is the Acting Manager, Offender Rehabilitation and Management Services employed by Queensland Corrective Services. He has academic qualifications in psychology and experience in administering and training other staff in administering the STABLE 2007 and other assessment tools for sexual offenders. A SOPA is conducted for all sexual offenders serving in excess of 12 months’ imprisonment at the point of admission and consists of a STATIC 99R actuarial assessment and STABLE 2007 assessment interview and informs staff of the appropriate treatment pathway for an individual prisoner and allows for placement on the waiting lists for relevant programs. Mr Phelan describes the STATIC 99R in these terms:
“The STATIC-99R combines static factors which have been shown to correlate with sexual reconvictions in adult males. These factors include: age at time of risk; relationship history; index violence; prior sexual offending; prior violent offending; any non-contact sexual offending; male victims; related victims, and stranger victims.”
- The STATIC 99R component of the assessment in relation to the applicant was administered on 30 July 2012. Mr Phelan explains that the STATIC 99R is not provided to the prisoner “due to the nature of the information contained within”.
- Mr Phelan explains STABLE 2007 in paragraph 19 of his affidavit:
“The STABLE-2007 is used to assess a prisoner’s treatment needs and assist in the initial case formulation for programs. The STABLE-2007 assesses dynamic factors which are known to be significant areas linked with sexual offending. These include: relationship history/stability, social influences, impulsivity, problem solving, cooperation with supervisions, hostility towards women, child molestation attitudes/emotional regulation, lack of concern for others, sexual preoccupation, sexual deviancy, social rejection/connection, negative emotionality, emotional regulation and sex as coping. The rationale for identifying these factors is that it assists in the assessment of a prisoner’s amenability to treatment or management.”
- Mr Phelan explains that following completion of the STATIC 99R component of SOPA, prisoners participate in GS:PP which is a mandatory preparatory program designed to motivate offenders to participate and address their offending in a more intensive frequent program. (In fact, the completion report was before the Board that showed Mr Buckley completed GS:PP (Getting Started: Preparatory Program) in May 2013.) Following the STATIC 99R, GS:PP participation and the STABLE 2007, a prisoner will be recommended for a sexual offending program which “best meets the prisoner’s risk need profile”.
- Mr Phelan notes that the STABLE 2007 assessment of Mr Buckley was conducted on 19 September 2013 to identify treatment needs to be addressed in the HISOP. The assessment was reviewed. Mr Phelan explains that the STABLE 2007 is not provided to the prisoner “due to the nature of the information contained within”.
- Mr Phelan also provides information on a “Progression Plan” which is conducted on all prisoners who will be in custody for more than 12 months and includes recommendations related to rehabilitative programs, education, vocation and general institutional behavioural goals. The prisoner has input into the preparation of the Progression Plan and the prison staff review all available relevant sentencing and assessment information. Mr Buckley participated in a review of his Progression Plan on 12 May 2015 and on 21 May 2015 was provided with a completed copy of his Progression Plan.
Did the Board take into account an irrelevant consideration?
- Although the amended application is expressed in terms that the reports of Drs Moyle and Sundin and the home assessment report dated 22 October 2015 comprise the irrelevant considerations, the argument on behalf of Mr Buckley was confined to those parts of those documents that contained the contentions that Mr Buckley had sex with, tortured and/or killed animals.
- The argument was developed in terms that Mr Buckley had never been charged or convicted of bestiality or animal cruelty in any form and in view of his statutory declaration that he never had sex with animals, there was no evidence before the Board which could found a conclusion that he had sex with animals. As the Board could not make the necessary findings of fact to support the allegations of bestiality in the reports, it was submitted those parts of the experts’ reports that recited Mr Buckley’s claims about conduct involving animals should have been accepted by the Board only if it were prepared to make findings of fact that supported those opinions and, as the Board did not, the reports were irrelevant.
- In the light of paragraph 11 of the Board’s statement of reasons that expressly states it did not decide Mr Buckley was guilty of offences involving animals, but took into account his claim to have committed animal offences and his withdrawal of those claims as relevant to Mr Buckley’s “likely level of credibility” when assessing the level of risk he currently presents to the community, it does not appear that the Board acted in the manner that is complained of by Mr Buckley.
- Mr Fenton of counsel who appeared on behalf of Mr Buckley submitted that paragraph 11 of the Board’s statement of reasons should not be taken at face value, the reasons should be read as a whole, and the emphasis in the reasons that can be discerned from the quotes from the documents which dealt with the disclosures at an early stage by Mr Buckley of animal sex and the like and other references to those disclosures must result in the conclusion that paragraph 11 of the Board’s statement of reasons does not truly represent the basis of its decision.
- Before the Board made the decision to refuse Mr Buckley’s parole, it had the benefit of submissions from Mr Buckley’s lawyers raising much the same issue that is now the ground for seeking review of the decision on the basis of taking into account an irrelevant consideration. Although the statement of reasons perhaps dwells more than necessary on the historical material which recorded Mr Buckley’s claims concerning animal sex and cruelty, the Board acknowledges the submission of Mr Buckley’s solicitors and expressly eschewed making the mistake to which the Board was alerted. In this regard the Board had the benefit of Dr Sundin’s report which provided psychiatric evidence on the relevance of the claims involving animals and the subsequent withdrawal by Mr Buckley of those claims on his risks, if released into the community. The Board avoided making the mistake of acting on the basis that Mr Buckley’s claims of animal cruelty and bestiality were true.
- The Board did not take into account an irrelevant consideration by not excluding the historical material about Mr Buckley’s involvement with animals from the material before the Board.
Did the Board fail to take into account a relevant consideration?
- The first aspect of the ground based on the SOPA and the STABLE 2007 assessment that I will deal with is that the assessments themselves should have been before the Board and the Board’s failure to procure them meant that it failed to take into account a relevant consideration.
- When it is understood that the SOPA incorporates both the STABLE 2007 and STATIC 99R assessments and contributes to the process within the prison of recommending the appropriate programs that should then be completed by the prisoner, the information from the assessments was embedded in the reports from the programs completed by Mr Buckley and referred to in other material such as the panel report and Dr Sundin’s report that were before the Board.
- The submissions made on Mr Buckley’s behalf that the Board failed to take into account the SOPA and/or the STABLE 2007 as relevant considerations in deciding the application for parole focuses on form and not the substance. It has not been shown that the Board failed to take into account relevant considerations.
Was there a breach of the rules of natural justice?
- For similar reasons, it cannot be said that the Board failed to disclose to Mr Buckley the substance of the SOPA and/or the STABLE 2007. To the extent that Mr Buckley may be concerned that the SOPA was commenced at a time before he withdrew his claims of involvement in animal sex and cruelty, the outstanding treatment requirement of sexual deviancy had been disclosed to him and there were opportunities for him to make submissions in respect of that identified outstanding treatment matter.
- In the light of the exit reports which Mr Buckley received from both HISOP and SOMP, Mr Buckley was on notice of the outstanding issues from SOPA and the STABLE 2007 assessment that were likely to be relevant to the Board’s consideration. On his own admission to Dr Sundin, Mr Buckley had an issue with voyeurism that falls within the outstanding area for treatment of sexual deviance which was identified in Dr Sundin’s report.
- In any case, there were operational reasons within the prison as to why the actual assessments undertaken in connection with SOPA are not disclosed to prisoners and that has been adopted in the Ministerial Guidelines which proscribes the release of raw psychological assessment data, treatment plans, program screening tools and program case notes.
- There was no relevant breach by the Board of the rules of natural justice in considering the parole application.
Orders
- At the conclusion of the hearing, the parties were agreed that costs should follow the event and that it was unnecessary for the parties to make any further submissions on costs.
- It follows that the orders which should be made are:
- Application dismissed.
- The applicant must pay the respondent’s costs of the application.