Harrod v Parole Board Queensland
[2022] QSC 84
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- Unreported Judgment
- Harrod v Parole Board Queensland[2022] QSC 84
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Harrod v Parole Board Queensland[2022] QSC 84
Harrod v Parole Board Queensland[2022] QSC 84
SUPREME COURT OF QUEENSLAND
CITATION: | Harrod v Parole Board Queensland [2022] QSC 084 |
PARTIES: | MARTIN HARROD (applicant) v PAROLE BOARD QUEENSLAND (respondent) |
FILE NO/S: | BS No 1414 of 2021 |
DIVISION: | Trial Division |
PROCEEDING: | Application |
ORIGINATING COURT: | Supreme Court of Queensland |
DELIVERED ON: | 17 May 2022 |
DELIVERED AT: | Brisbane |
HEARING DATE: | 01 April 2022 |
JUDGE: | Ryan J |
ORDER: |
|
CATCHWORDS: | ADMINISTRATIVE LAW – GROUNDS OF REVIEW – JUDICIAL REVIEW – ERROR OF LAW – where the applicant is a self-represented prisoner – where he seeks a review of Queensland Parole Board’s decision to cancel his parole – where the Board has told him that he will be granted parole once suitable accommodation is found – where the decision to cancel the applicant’s parole is about to be superseded by another decision about his parole – where application out of time – whether utility in present application to review – where applicant’s grounds go to merit of decision rather than to errors in the decision making process – whether order for review ought to be made Corrective Services Act 2006 (Qld), s 205(2)(a)(iii) Judicial Review Act 1991 (Qld), ss 20(2)(e),(h), 21(2)(e),(f),(g),(h) Queensland Parole Board v Moore [2012] 2 Qd R 294, cited Attorney-General (Qld) v Mitchell [2015] QSC 121, cited McQueen v Parole Board of Queensland [2018] QSC 216, cited Petrie v Qld Community Corrections Board [2006] QCA 474, cited |
COUNSEL: | Applicant self-represented Ms S Robb for the respondent |
SOLICITORS: | Applicant self-represented Parole Board Queensland for the respondent |
- [1]Mr Harrod has applied to the Court to review Parole Board Queensland’s decision of 23 December 2021 to cancel his parole order, a decision which was not varied on 27 January 2022.
- [2]Mr Harrod has been told by the Board that when he finds suitable accommodation, he will be released on parole. That is not as simple as it sounds. The potential risk scenarios for Mr Harrod involve, inter alia, problems with his accommodation and adverse relationships with co-residents. According to a 2018 Accommodation Risk Assessment Report, in unsupported accommodation, Mr Harrod struggled to meet his basic living needs and presented with a high degree of anxiety. Mr Harrod has supplied at least 18 different addresses to the Board since his return to custody, none of which have been suitable parole accommodation.
- [3]Mr Harrod is a self-represented prisoner. Like many in his position, he appears to be under the impression that, in this application, the Court may substitute its own view of whether he ought to be granted parole for the decision of the Board. He stated in material filed recently that he would “like his Parole [cancellation] Lifted and Accommodation Approved”.
- [4]As I attempted to explain to Mr Harrod at the hearing, in this application, the Court’s focus is not on whether the Board’s decision to cancel his parole was right or wrong but rather on whether the Board reached its decision lawfully – that is, in accordance with lawful decision-making processes. Also, as I attempted to explain, the Court would only intervene if it were persuaded by Mr Harrod that the Board had made a relevant error on the way to its decision to cancel Mr Harrod’s parole. And even if the Court were so persuaded, the “best” outcome for Mr Harrod on this application would be an order to the effect that the Board lawfully re-consider its decision to cancel his parole.
- [5]This application has had a long history. It was filed on 2 February 2021. It initially concerned a decision made in July 2019 to suspend (rather than cancel) Mr Harrod’s parole – a decision which was not varied upon its re-consideration by the Board on several occasions; and which was superseded by the decision to cancel Mr Harrod’s parole, the subject of the present application.
- [6]Mr Harrod’s application has come on before the Court many times, including for five substantive hearings on 13 April 2021, 12 May 2021, 9 June 2021, 13 July 2021 and 5 October 2021.
- [7]As I understand things, the reasons why this Court has not reached a decision on the application, despite it coming on for a substantive hearing on several occasions, have included that, by the time of the hearing, either–
- the Board had made a more recent decision about Mr Harrod’s parole, leading to an amendment of the application and the need for a new statement of reasons,
or
- the Board was about to make another decision about Mr Harrod’s parole, and the Court considered it more efficient to await the outcome of that other decision.
- [8]Similarly, as at the date of this hearing, the decision to cancel Mr Harrod’s parole was about to be “overtaken” by another decision of the Board about his parole. As noted, this application concerned a decision made to cancel Mr Harrod’s parole made in December 2021. Mr Harrod brought another application for parole in January 2022, which was due to be heard within 10 days of the hearing of this application (that is on 11 April 2022). That obviously raised a question about the utility of the Court embarking on a consideration of the present application because of its limited practical effect. However, I was persuaded that it was necessary to determine the application, if for no other reason than to achieve finality.
- [9]Mr Harrod’s application was filed on 8 February 2021 – that is, out of time. The latest date for its filing was 28 days after his receipt of the Board’s statement of reasons for its July 2019 decision, dated 28 October 2020. Mr Harrod did not apply for an extension of time within which to file his application for review. Nevertheless, I did not consider it appropriate now to refuse to consider his application on the basis that it was not filed in time. Nor did the Board press me to do so. Instead, I considered the application to see whether it had merit – in which case I would go on to consider whether I ought to extend the time for its filing.
- [10]Mr Harrod has nominated several grounds in support of his application. Most of those grounds concern the merit of the Board’s decision or reveal a misunderstanding of things on Mr Harrod’s part. The Board’s position has always been that Mr Harrod has demonstrated no relevant error in the Board’s decision making, either in its decision to suspend his parole or, more recently, in its decision to cancel it.
- [11]For the reasons which follow, Mr Harrod’s application for a statutory order of review is dismissed. It was filed out of time and there is no merit in it. Mr Harrod has not been able to demonstrate an error in the Board’s decision-making processes. For obvious reasons, he wishes the Board had reached a different decision and he is frustrated that the Board has rejected all of the proposals he has made for his accommodation. He is particularly disappointed that he was told, in November 2021, that he would be released to parole at a certain address in January 2022, only to have that decision reversed within weeks of its having been made, because the Board changed its mind about the suitability of the address after receiving more information about it (see below).
- [12]I note that the Board has nominated certain criteria for “suitable” accommodation for Mr Harrod. The criteria were identified having regard to inter alia the opinion of Dr Kovacevic, a psychiatrist, who was briefed by the Board to undertake an assessment of Mr Harrod for the purposes of parole. On the material before me, accommodation meeting the Board’s criteria is scarce – at least for a person in Mr Harrod’s position. The Board may wish to pursue further with Dr Kovacevic the criteria for suitable parole accommodation for Mr Harrod and how, in real and practical terms, bearing in mind the issues around accommodation, he might receive the support he needs in the community to ensure the community’s safety and his own rehabilitation.
- [13]The Board did not ask for its costs.
Background
- [14]On 23 August 1988, Mr Harrod pleaded guilty to murder. He was sentenced to life imprisonment. He became eligible for parole on 23 August 2001. He was not released on parole until 6 March 2019.
- [15]On 2 July 2019, within months of his release on parole, Mr Harrod’s parole order was suspended by a prescribed Board member. On 4 July 2019, the Board confirmed the decision to suspend.
- [16]Thereafter, the Board met on eight occasions to reconsider Mr Harrod’s parole suspension having regard to further information. The Board met on 12 September 2019, 25 November 2019, 3 December 2019, 22 April 2020, 12 August 2020, 11 February 2021, 4 March 2021 and 8 July 2021. On each of those occasions the Board decided not to vary its decision to suspend Mr Harrod’s parole.
- [17]At least since March 2020, the Board has been guided, in part, in its decisions about Mr Harrod’s parole by a report prepared by Dr Kovacevic. Dr Kovacevic’s report was provided in response to the Board’s request for his opinion on Mr Harrod’s risk of future offending and his suitability for parole.
- [18]By the time he saw Dr Kovacevic, Mr Harrod had been released on parole on three previous occasions. On each occasion, his parole was suspended – twice because he had consumed illicit drugs and once (the third occasion) because he moved residence without seeking prior approval from his parole supervisors. His last residence was at accommodation known as Christine Court. Mr Harrod considered it relevant for me to note the following from Dr Kovacevic’s report –
When he reflected on his placement at Christine Court, Mr Harrod explained that there was a woman resident in her thirties who was intellectually disabled and used to sneak into people’s rooms and steal their belongings. Mr Harrod was aware she had been caught doing this on a number of occasions. One day, Mr Harrod had an appointment with a psychologist and when he returned to his room he realised that his medication had been stolen. He suspected immediately who might have taken them. He said he asked the woman to keep away from his room. He insisted he made no threats towards her and he never assaulted or touched her inappropriately. Two days later he saw her talking to police and very soon after that police issued him with a Return to Prison Warrant. A subsequent letter from the Parole Board indicated that his accommodation at Christine Court was no longer suitable. With some frustration in his voice he pointed out that although no criminal offence had been committed and no charges had been laid against him, he lost his accommodation and his Parole Order was suspended.
Since then, CREST has been assisting Mr Harrod in locating an alternative post-release placement. He proposed to return to the boarding house in Moorooka where he used to reside after his release in March 2019. He said he was happy there and he moved to Christine Court only about four weeks prior to his parole suspension. He said he wished he never left the boarding house. When asked why he did not stay, he explained he wanted to get away from a person who moved in and proved to be a drug user. The Parole Board approved his relocation to Christine Court on [the] assumption that this would be a better environment for him. Mr Harrod has since changed his mind and now wishes to return back to the boarding house, waiting for a bed to become available …
- [19]“CREST” is a “Lives Lived Well” program which assists prisoners to plan their release from custody, including by way of connecting them to suitable community supports. CREST stands for “the Community Re-Entry Services Team”. In South East Queensland, an organisation known as “ASCO” delivers its services in partnership with CREST. ASCO stands for “the Australian Community Support Organisation Ltd”. ASCO assists with reintegration through a range of services including mental health, alcohol and other drug treatment, intensive rehabilitation support, housing and employment.
- [20]Dr Kovacevic assessed Mr Harrod’s risk of violent recidivism as moderate. That risk related predominantly to his historical risk factors and past supervision failures. Dr Kovacevic continued (my emphasis) –
The main potential risk scenarios involve problems with accommodation, development of adverse relationships with co-residents, exposure to illicit substances, adjustment difficulties and relationship issues. I do not anticipate Mr Harrod being at high risk of violent re-offending, however he will remain at least a moderate risk of further breaches of parole.
In this regard it is critical that he is appropriately supported, supervised and that he receives psychological assistance. His proposal of living in a small boarding house with only three or four elderly residents seems appropriate in the circumstances and such an arrangement would obviate the need for a formal supported accommodation, which has in any event proven to be problematic if not carefully chosen, for example by making sure that male and female residents are separated etc.
It is my opinion that Mr Harrod has a reasonably high chance of remaining abstinent from illicit substances in the community.
In summary, I am prepared to support Mr Harrod’s parole application at this time, as I believe that he is not likely to represent an unacceptable risk to the community. His risk has not increased since his most recent parole release. Therefore, it is my recommendation that his parole application be granted. It is entirely possible that Mr Harrod might fail his parole conditions again, however even if this is to occur I think the serious violent or sexual re-offending is unlikely to take place and the patterns of his parole breaches would most likely involve less serious parole violations, similar to the previous occasions when the orders have been suspended.
Although Mr Harrod has a history of Post-Traumatic Stress Disorder, depression and anxiety, he is presently in no need for any urgent psychiatric intervention or change in his pharmacological treatment. It is sufficient at this stage to provide him with assistance from a properly trained clinical psychologist experienced in working with serious offenders and past trauma issues.
- [21]I note that Dr Kovacevic considered it “critical” for Mr Harrod to be appropriately “supported” and “supervised”. However, it is not clear to me that in making that statement Dr Kovacevic had in contemplation support and supervision by way of formal supported accommodation, bearing in mind his other observations about supported accommodation being “problematic if not chosen carefully”. Nevertheless, I acknowledge that it is implicit in Dr Kovacevic’s opinion that Mr Harrod ought not to be housed in mixed accommodation – at least where men and woman are able to mingle unsupervised.
- [22]It is convenient to take up the history of this application from 4 March 2021, the date of one of the Board’s decisions not to vary its decision of 4 July 2019 to suspend Mr Harrod’s parole.
- [23]The Court directed the Board to deliver a statement of reasons for its 4 March 2021 decision, which it did. The Board’s reasons, dated 19 April 2021, included statements to the following effect:
- The Board accepted Dr Kovacevic’s opinion that Mr Harrod was not likely to present an unacceptable risk to the community and that Mr Harrod was a suitable candidate for parole.
- The Board noted that Dr Kovacevic said that it was critical that Mr Harrod receive appropriate support, supervision and psychological assistance.
- The Board considered that, for Mr Harrod to be appropriately managed and supervised in the community, it was important that he had “suitable supportive accommodation to be released to”.
- The accommodation then proposed by Mr Harrod (at Bundamba, Gatton, Fortitude Valley and Aitkenvale) was not suitable, for one reason or another.
- [24]The Board encouraged Mr Harrod to “continue to attempt to source accommodation at which to be supervised in the community”.
- [25]It noted that Mr Harrod had a National Disability Insurance Scheme (NDIS) plan and observed that “the plan” may assist Mr Harrod in sourcing community accommodation. The Board said at paragraphs 8 and 9 (my emphasis) –
The Board maintained its view that your suspension will not be lifted, and you will not be returned to the community, until you have suitable accommodation. Having regard to your criminal history and history on parole, suitable accommodation will only be accommodation where you are not residing at an address shared with women, children or persons suffering any intellectual or physical disability. As expressed above, the package provided to you under the NDIS may assist you in obtaining suitable accommodation.[1]
As you do not have suitable accommodation to assist in your supervision in the community, the Board decided not to vary its decision of 4 July 2019 to suspend your parole order.
- [26]The application next came on for hearing, after those reasons were delivered, on 13 May 2021. On that date, his Honour Justice Flanagan directed the Board to make contact with “NDIS, CREST and ACSO” to assist Mr Harrod to find accommodation.
- [27]Mr F, a Legal Officer with the Board, complied with that direction on behalf of the Board. Mr F contacted the entities nominated. He sought a copy of Mr Harrod’s NDIS plan and information about the support the NDIS would provide if Mr Harrod were in the community; and asked whether the NDIS would assist Mr Harrod to find accommodation.
- [28]On 24 May 2021, a representative of the NDIS informed Mr F about the support to be provided to Mr Harrod by the NDIS (which I will not detail) and the role of Affinity Disability Services (ADS) as Mr Harrod’s support co-ordinator provider. In general terms, it was explained that Mr Harrod would need to apply for a new NDIS plan to deal with his needs were he to be released on parole. If he wished to use NDIS funds to pay for “24/7 care as a Supported Independent Living (SIL) arrangement” he would require evidence of his need for that care (such as a functional capacity assessment) which he did not then have.
- [29]Mr F contacted ADS by email on 31 May 2021, informing them of Mr Harrod’s position, with a view to obtaining their assistance in finding Mr Harrod suitable accommodation.
- [30]On 9 June 2021, Ms B, another Legal Officer at the Parole Board, followed up with ADS by email. ADS did not reply to her email, nor to her follow up emails of 14 June 2021 or 21 June 2021.
- [31]Ms B did receive a reply to her follow-up email on 29 June 2021 from a support co-ordinator at ADS, whom I will refer to as Z. Z explained, in effect, that the person with carriage of Mr Harrod’s matter at ADS had been on leave.
- [32]On 2 July 2021, Mr F telephoned Z. Z confirmed that ADS was assisting Mr Harrod to find accommodation in the community and to complete an NDIS plan. She also indicated that ADS could provide “wrap around support” for Mr Harrod. An email sent by Z to Mr F and Ms B that same day mentioned a certain option for accommodation and support.
- [33]On 8 July 2021, the Board met to consider the suitability of addresses put forward by Mr Harrod as potential parole accommodation. Having considered assessments of the accommodation, the Board determined none was suitable.
- [34]The Board reminded Mr Harrod that the Board would release him to parole once a suitable address was nominated. The Board noted that ADS was then assisting Mr Harrod in his search for accommodation and encouraged Mr Harrod to continue to engage with ADS.
- [35]Having made another decision about Mr Harrod’s parole, the Board prepared another statement of reasons. The Board’s statement of reasons for its decision of 8 July 2021, dated 28 September 2021, was very similar to the Board’s statement of reasons for its decision of 4 March 2021. It referred to its acceptance of Dr Kovacevic’s opinions. It listed the 15 addresses provided to it as potential parole addresses. And it discussed the outcome of the accommodation reviews for each, which caused the Board to conclude that none was suitable (by reference to its criteria). Generally, the Board was concerned that the nominated accommodation allowed for Mr Harrod’s unsupervised access to women and/or vulnerable persons; or provided him with no support.
- [36]On 15 August 2021, a worker, whom I will call Y, of ADS emailed the Board and informed the Board that she had been seeking “male only Level 3 Supported Accommodation property” but there was “no such service provider” in Brisbane or its surrounds. She explained that while there were multiple Level 3 providers in the Brisbane area, they accommodated men and women – who were able to mix without supervision. Y indicated that she would continue to work with Mr Harrod and CREST to find suitable accommodation, but the options for him were limited.
- [37]On 3 November 2021, the Board requested information from Queensland Corrective Services Disability Services (QCS Disability Services) about the assistance given to Mr Harrod to source suitable accommodation. QCS Disability Services forwarded the Board’s request for information to CREST.
- [38]The Board requested an urgent update from QCS Disability Services on 5 November 2021 – a couple of hours before it was to meet (at 11 am) to consider Mr Harrod’s parole.
- [39]At 10.19 am, the Board was informed that an accommodation risk assessment application had been made the day before, by Mr Harrod, for an assessment of accommodation at Southern Cross Supported Apartments (SCSA).
- [40]The Board met on 5 November 2021 but deferred making a decision about Mr Harrod’s parole until SCSA had been assessed by “Community Corrections”.
- [41]An accommodation review, conducted by Rosie Gollan and James Male of Queensland Corrective Services, and dated 19 November 2021, recited their understanding of Mr Harrod’s needs and stated inter alia that –
- “Southern Cross Supported Apartments was male only and supported by AAIC [an “anti-ice” organisation]; and
- Properly management confirmed they have a strict no-tolerance drug policy. Relapse to illicit drug use results in immediate eviction from accommodation”.
- [42]However, Ms Gollan and Mr Male did not “approve” the accommodation. They said –
Accommodation stability is integral for success on parole. Mr Harrod has a significant history of substance use linked to violent and sexual offending. The risk and associated possibility of Mr Harrod being evicted from the accommodation following drug use, heightens Mr Harrod’s risk of further serious offending or engagement in other problematic behaviours, deeming the accommodation unsuitable.
- [43]On 24 November 2021, a Board member asked ACSO whether SCSA would appropriately cater to Mr Harrod’s “physical needs”. In part, the Board member’s email to ASCO read –
It would be greatly appreciated if I could confirm:
- Liaison occurred with the NDIS prior to the AR for Southern Cross Supported Apartments AR being lodged;
- Any confirmation through such liaison that NDIS were satisfied that Mr Harrod’s release to Southern Cross Supported Apartments aligned with the facets of his current NDIS support package (ie the accommodation is considered from an NDIS perspective to provide an appropriate level of support to Mr Harrod based on his personal circumstances and support needs).
- [44]The Board member received a reply (by email) from ACSO at 9.11am on 26 November 2021. The Board member was told that Mr Harrod’s NDIS support worker from Affinity Disability was in “full support” of Mr Harrod’s accommodation at SCSA. The author of the email said that she understood that NDIS providers and AAIC (the Australian Anti-Ice Campaign) were in “direct connection” with SCSA, “supporting current residents”. The member was told inter alia that each resident of SCSA was connected with a buddy from AAIC “to support them directly in times of need in relation to substance concerns and link with other support services where required”. The member was also told that if Mr Harrod were granted parole to SCSA, he would be “allocated to CREST case worker [X], as she is actively working alongside NDIS, AAIC and Southern Cross Supported Accommodation supporting current CREST clients that are accommodated there. [X] … is happy to discuss this accommodation in further detail with you if required”.
- [45]The Board member who received that reply forwarded it to other members of the Board who met to consider Mr Harrod’s application for parole on 26 November 2021.
- [46]At the Board’s meeting on 26 November 2021, it deemed the accommodation at SCSA suitable. The Board then cancelled the order that suspended Mr Harrod’s parole. It informed Mr Harrod, essentially, that he would be released to SCSA after 13 January 2022.
- [47]Not long after making that decision, the Board received additional information from Ms Gollan about SCSA. That information was dated 17 December 2021. It was to the effect that SCSA operated as a motel and was open to the general public, including women. It had long term tenants, including vulnerable persons. SCSA did not provide supported accommodation, although it had a loose affiliation with AAIC which offered an informal “buddy” system. AAIC and the management of SCSA had an understanding of substance use, but they did not have “an understanding of and tolerance for persons being accommodated there who present with mental health issues”.
- [48]On the strength of that additional information, the Board decided to cancel Mr Harrod’s parole order on 23 December 2021 and informed him of their decision on that day. The Board then invited Mr Harrod to show cause as to why his parole order ought not to be cancelled.
- [49]Mr Harrod made submissions to the Board on 30 December 2021, 5 January 2022, and 13 January 2022. He also made another application for parole on 7 January 2022.
- [50]The Board met again on 27 January 2022 and, after considering the submissions by Mr Harrod, decided not to vary its decision to cancel the parole order.
- [51]On 8 February 2022, the Board wrote to Mr Harrod and told him of its decision of 27 January 2022. It provided him with an Information Notice dated 8 February 2022 which set out why the accommodation had been deemed unsuitable. The Board also advised Mr Harrod that he could reapply for parole immediately.
- [52]Also on 8 February 2022, the Board wrote to the Commissioner of Queensland Corrective Services, outlining the difficulty in finding suitable accommodation for Mr Harrod. The Board asked whether Mr Harrod might be housed in the “Wacol Precinct” which provides accommodation for persons released on supervision under the Dangerous Prisoners (Sexual Offenders) Act 2003.
- [53]On 28 February 2022, the Board prepared its statement of reasons for its decision on 23 December 2021 to cancel Mr Harrod’s parole. It outlined in those reasons how it came to decide initially that Mr Harrod could be released on parole but later cancelled his parole order.
- [54]Mr Harrod filed another application for parole, together with a request for an accommodation review, on 17 February 2022.
- [55]On 18 March 2022, the Board was informed that the Wacol Precinct was only available to released prisoners who were subject to the Dangerous Prisoners (Sexual Offenders) Act 2003. It was acknowledged at the hearing that the possibility of accommodation at the Wacol Precinct was something of a long shot – but it reflected attempts made by the Board to itself find suitable accommodation for Mr Harrod.
- [56]Mr Harrod’s most recent application for parole was heard by the Board on 11 April 2022 – on which date the Board formed the preliminary view not to grant Mr Harrod parole. The Board will meet to finalise its decision on 30 May 2022. The Board has invited Mr Harrod to appear at this meeting, via video link.
- [57]I will return now to the Board’s statement of reasons for its decision on 23 December 2021 to cancel Mr Harrod’s parole. As I have mentioned, in its statement, the Board explained how it came to be that it first considered SCSA to be suitable accommodation for Mr Harrod and then changed its mind. The Board explained, in effect, that having learnt more about SCSA, it decided that was not suitable because it did not have “appropriate supports in place to facilitate [Mr Harrod]”; and it was “open to the general public, [including] women and vulnerable people”. The Board continued –
The Board has continually advised that it accepts the opinion of Dr Kovacevic that “it is critical that he [you] is appropriately supported, supervised and that he receives psychological assistance”. The Board maintains its view that, for you to be appropriately managed and supervised in the community, it is important that you have suitable supportive accommodation. This view was formed having regard to your criminal history and history on parole. The Board remains of the view that suitable accommodation will only be accommodation where you are not residing at an address shared with women, children, or persons suffering any intellectual or physical disability.
As you do not have suitable accommodation, the Board reasonably believes that you pose an unacceptable risk of committing an offence and that you pose a serious risk of harm to someone else. In accordance with section 205(2)(a)(ii) and (iii) of the Corrective Services Act 2006, the Board decided to cancel your Parole Order which commenced on 30 September 2015.
- [58]In further explaining why the Board confirmed its decision to cancel, on 27 January 2022, the Board said inter alia that it did not “envisage” that Mr Harrod’s NDIS support to be provided upon his release “would be sufficient to mitigate the concerns associated with his pending release to the proposed accommodation”. The proposed accommodation was a reference to the boarding house at Moorooka which Mr Harrod left to reside at Christine Court. The Board said that the risk posed by Mr Harrod to the community was unacceptable, given that he did not have suitable accommodation. It also told Mr Harrod that it was exploring the possibility of him residing at the Wacol Precinct – which, as discussed above, was unavailable as an option.
- [59]It is against that background that Mr Harrod’s application is to be considered. Understandably, he struggles with the fact that, within weeks of his being granted parole to live at SCSA, his parole order was cancelled. He also struggles with the fact that he is not permitted to return to the boarding house at Moorooka which was once considered suitable accommodation and at which he did not offend.
Grounds of review
- [60]Mr Harrod identified originally 16 grounds of review, as follows (errors as per the original):
Ground (1)
(Decisions) Without (Justifications) establishing ground (ss 20 2 h) (and 21h)(ii) There was no evidence (ii) The fact did not or does not exist
Ground (2)
(Meaning of Improper Exercise) of Power (ss (20 2e) and (s 21)2e)b (failing to take a (relevant decision into account)
Ground 3
(s f) (an exercise of a (discretionary) (power) in accordance with a (Rule or Policy) without regards (to the Merits of my case)
Ground 4
(sG) An exercise of Power that is so unreasonable that no reasonable person could so exercise the power The Wednesbury Test
Ground (5)
(The board failed to give the (Applicant a Statement) of Reasons (a) set out the findings on material questions of fact (b) refer to the (evidence or other material) (on which those findings were based)
Ground (6)
The Board failed to take into account that the Applicant was already granted a Parole Order dated the 23/Dec/2021 and Parole Board Conditions
Ground (7)
The board (failed) to take into account that Mr Harrod had never (breached) his Parole Conditions and he was already approved accomadation at all (Tina) (Georgious Propertys (TGPM) and (19 Cobden St Moorooka)
Ground (8)
In regards to Mr Harrods Parole Conditions he comes under the (Criminal – Law) (Amendment Act 1945) of the (13 yr) period he is being detained longer as this is (Unconditional) under Human Rights and his dignity
Ground (9)
The Board failed to take into account (Justice) – (Flanagans Directions on (3) occasions for Crest and (NDIS) to get me or find me accomadation this was denied everytime I submitted a New Accomadation
Ground (10)
Under (s 13A) of the (1989) Act and before the (8/5/1997) A Prisoner Serving a Life – Sentence under the Crimes Act and Sentencing Procedure (Amendment Act) 2005) A Prisoners Case won’t be determined until the Prisoner has served a (30yr (Period). Mr Harrod has done over (33 yrs. This is Unconstitutional and a Prisoners Rights denied
Ground (11)
Chapter (3) Application of Criminal Law copied (4/6/09) (11) Effect of Changes in Law and (s 112) of the Criminal-Code)
A person cannot be punished to any greater extent Mr Harrod is being denied his Liberty as this is unconstitutional and Mr Harrod is being denied his Liberty under Human-Rights
Ground (12)
I received a letter from QLD Parole dated the 8/2/2022 in regards to my cancelling of Parole again and Requesting me to Submit another Form 29 and Home-Assessment
I have already on a Number of Occasions and 5/1/2022
Ground (13)
Mr Harrod would like to submit a Letter by the Board dated the 8/2/2022 Requesting that he should be Housed at the Wacol Complex with NDIS supported help
Ground (14)
Mr Harrod has DNIS Supported Accomadation Approved he has all the Neccesary supports in place but still having problems of accomadation as I am waiting for further Response back from the Corrective Services about the Wacol Housing which the board wrote to the Corrective Services dated the 8/2/2022 and still no positive Result
Ground (15)
Concerns about Risk Asessment in general Judges further took into account the Limitations of Risk Asessments Practioners have very limited ability to predict the future behaviour of any individual because the Science of behaviour is weak This Weakness is because the basis rates of Serious adverse events are low and those events are not so much due to the effect of enduring traits as they are the result of circumstances which arise and which are difficult or impossible to predict see Attorney General of the Northern Territory v JD (3) 20017
Little Weight should be given to these Psychiatrists Reports There has been a growth in Risk assesments and they cannot predict a persons behaviour in the future as this has already been proven. As some of these Psychiatrists Reports Remain controversial (see Psychiatry Psychological) (at Law 2019 262 274 294) (PMID 31984077 Risk Research)
Ground (16)
Our Review further indicates that Courts are generally very cautious of Practitioners reports and testimony and were initially reluctant and sometimes refused to put weight on Practioners evidence and opinions based on data they collect using clinical assesments structured judgment assessments and actuarial instruments Courts now appear to take a holistic and pragmatic approach and are more willing to give. Weight to practitioners Opinions provided they meet certain requirements They want to see that Practitioners appreciate the limitations of the assessment Methods and instruments and therefore used a combination of instruments that complements each other in a Manner that overcome those limitations. They further examine the consistency of the information that Practioners collected from different sources and compare their findings with other available information such as the Offenders Mental-Health
These decisions and Mr Harrods Mental State was never Questioned even with the Static-99 tools
- [61]I wanted to make sure that I properly understood Mr Harrod’s grounds of review, so I invited him to explain them further to me at the hearing. I was concerned to ensure that – however they might have been expressed – I did not overlook a potentially viable ground. As will emerge, most of Mr Harrod’s grounds focused on the merits of the ultimate decision which, as I explained to him, was not something for the Court; or they involved a misunderstanding on his part. As it will also emerge, none of his grounds had merit.
- [62]I have engaged on each of Mr Harrod’s nominated grounds, even if a particular ground was not a viable ground of review under the Judicial Review Act. I have done so out of respect for the effort Mr Harrod has put into this application.
- [63]Taking each of those grounds in turn:
- [64]Ground 1, as expressed, did not identify the fact which did not exist which Mr Harrod claimed the Board had erroneously taken into account.
- [65]At the hearing, Mr Harrod explained that he was referring to the Board mischaracterising his role in the “incident” at Christine Court. He said that what actually happened at that accommodation was that which was set out in Dr Kovacevic’s report (see above at [18]). He said the Board had considered him to be a perpetrator of that incident but he was not.
- [66]The first point to make is that the Board was not obliged to accept Mr Harrod’s version of things – although it was obliged to consider it.
- [67]The Board’s first statement of reasons, dated 28 October 2020, confirms that the Board did consider Mr Harrod’s version of the incident at Christine Court and that it acknowledged (in paragraph 28) that he had not been charged with any offence on the basis of his conduct at Christine Court. It also noted Mr Harrod’s comment that he was frustrated by the “constant lies” told by others about what he had done.
- [68]Thus, to the extent that it was required to do so, the Board took into account Mr Harrod’s version of the incident at Christine Court. This ground was not made out.
- [69]Ground 2 as expressed did not identify the relevant decision to which it referred.
- [70]Mr Harrod explained at the hearing that he was here complaining that the Board did not appreciate that he did not reoffend at Cobden Street – the boarding house he was in before he moved to Christine Court.
- [71]The Board in fact did take into account that Mr Harrod had not been charged with an offence, as it explained in its first statement of reasons. This ground was not made out.
- [72]Ground 3 as expressed did not identify the rule or policy which was said to have been inflexibly applied. Mr Harrod could only identify broadly “Corrective Services policies” as the relevant policies that were not considered. When I asked him to be more precise, he said to me that his complaint concerned the Board not taking into account approved home assessments, namely the home assessment of Cobden Street and of one other new address.
- [73]Obviously, the suitability of the “new” address, referred to by Mr Harrod in 2022, could have had no bearing on the Board’s decisions in 2019, 2020 or 2021.
- [74]As to the suitability of the Cobden Street address, at paragraph 23 of its first statement of reasons, the Board noted that Mr Harrod wished to live at Cobden Street but it had not yet received an Accommodation Risk Assessment for the accommodation. So it was not then in a position to consider that address.
- [75]In terms of adhering to policy, the Board took into account the Accommodation Risk Assessments available to it (for Christine Court, the Tina Georgious Properties and Ada Street) – but, obviously, it could not take into account Accommodation Risk Assessments which it did not have. None of these properties the subject of risk assessments were considered to be suitable for Mr Harrod.
- [76]This ground was not made out.
- [77]Ground 4 (decision unreasonable): The test for a decision’s unreasonableness is whether a decision is so unreasonable that it lacks an evident and intelligible justification, when all relevant matters are considered. As the Board submitted, a challenge on the basis of unreasonableness is not a vehicle for challenging a decision on the basis that the decision-maker gave insufficient or excessive consideration to some matters or made an evaluative judgment with which the Court disagrees. The question is whether the decision made was rationally open to the decision maker.
- [78]At the hearing, Mr Harrod’s argument on this ground seemed to be that the reason why he was returned to custody assumed certain things about his behaviour which were not true. He reminded me that he had not been charged with any offence arising out of his conduct at Christine Court; nor, he submitted, was there any evidence that he had committed an offence – it was just “a person saying it”.
- [79]I have already explained that although the Board was required to take into account Mr Harrod’s explanation of what had occurred at Christine Court, it was not obliged to accept his explanation as true.
- [80]More generally, the fact that the Board’s decision was not in Mr Harrod’s favour did not make it unreasonable. Given the importance of accommodation and support to Mr Harrod’s success on parole, as the material before the Board showed, the decision made by the Board was not unreasonable in a relevant sense.
- [81]There is no merit in this ground.
- [82]Ground 5 seemed to complain about the content of the statement of reasons in general terms – in the sense that it seemed to suggest that they were inadequate. However, an examination of the several information notices given to Mr Harrod, and the statements of reasons prepared for this matter, do not support the accusation made in this ground. Indeed, I understood Mr Harrod to have abandoned it.
- [83]Ground 6 raised the change in the Board’s decision about his accommodation at SCSA.
- [84]For obvious reasons, it was very disappointing and confusing for Mr Harrod to be told by the Board that he would be released on parole to SCSA and to then be told, within a very short period of time thereafter, that he would not in fact be permitted to reside there and that his parole order was cancelled.
- [85]For obvious reasons, it would have been preferable for the Board to have commissioned a comprehensive review of the accommodation, focusing on matters critical to Mr Harrod’s safe release, which tested the understanding of the support agencies about the premises “in one go”. The Board made its decision to release Mr Harrod to parole at SCSA prematurely. It has corrected its decision but the negative impact of the situation on Mr Harrod is regrettable.
- [86]Nevertheless, this ground is not a viable ground of review.
- [87]Ground 7 concerned Mr Harrod’s address at Cobden Street and his argument that he was returned to custody in circumstances where he was not at fault, nor had he breached his parole conditions. It is true that, whilst he was there, he did not breach his bail conditions; nor was he charged with a criminal offence. As the Board’s first statement of reasons shows, the Board was aware that he had not been convicted of an offence and did not accuse Mr Harrod of a breach of parole.
- [88]Mr Harrod also argued that he had once been permitted to reside at Cogden Street – and the Board ought to permit him to live there again. An argument of that kind does not raise a viable ground of review.
- [89]Mr Harrod was returned to custody because, after moving from Cobden Street to Christine Court, his accommodation at Christine Court became unviable. In making the decision to cancel his parole, the Board took into account – as it was required to do – Mr Harrod’s explanations for any incidents which had occurred at his accommodation, together with other information.
- [90]This ground was not made out.
- [91]As to Ground 8, Mr Harrod acknowledged that he was sentenced to imprisonment for life and that Ground 8 was therefore not something he was able to pursue.
- [92]With respect to Ground 9, the evidence before me, which I have discussed above, showed that the Board followed Justice Flanagan’s direction that it get in touch with relevant service providers to, in effect, encourage them to assist Mr Harrod to find suitable parole accommodation. Ground 9 was not made out.
- [93]Mr Harrod acknowledged that Ground 10, which concerned statutory parole periods for persons convicted of murder, had nothing to do with the Board’s decision. Also, as I explained to Mr Harrod while it was true that the Board was required to consider or determine parole applications, that did not mean that the application had to be decided in favour of the prisoner seeking parole.
- [94]During submissions, Mr Harrod confirmed that what he was really arguing about in Ground 10 was that the Board had not taken into account, in making its decision about his parole, the 33 years he had spent in custody.
- [95]Nothing in the statements of reasons of the Board suggests that the Board was not well aware of the lengthy period of Mr Harrod’s incarceration.
- [96]This ground was not made out.
- [97]Mr Harrod acknowledged that Ground 11 made the same point. He confirmed that he was arguing that he should be granted parole because of how long he had been in custody, noting that he had done even more time than the 13 years at which his parole eligibility arose. I explained to him that, because he was sentenced to imprisonment for life, the notion of having done his time did not apply in the same way as it might to a sentence of determinate length. This ground was not made out.
- [98]With respect to Ground 12, Mr Harrod confirmed that he was effectively arguing that he had done everything he could possibly do, and the Board should have taken that into account as well. That does not raise a viable ground of review.
- [99]Grounds 13 and 14 do not raise a viable ground of review. In any event, the Board tried to secure accommodation at the Wacol Precinct for Mr Harrod but was not successful. That accommodation is for “Dangerous Prisoners” only (that is, those released to supervision under the Dangerous Prisoners (Sexual Offenders) Act 2003) and the fact that Mr Harrod has NDIS support does not change that.
- [100]Mr Harrod explained that Grounds 15 and 16 were his attempts to argue that the Board should have taken into account the inaccuracy of risk assessments. He confirmed that his point was that the Board considered Dr Kovacevic’s report without taking into account the need for caution around it. I note that Dr Kovacevic was very aware of the way in which Mr Harrod’s risk assessment was dominated by historical risk factors – and he made that point in his report. In other words, Dr Kovacevic himself, in effect, invited the Board to treat cautiously a risk assessment which drew on historical factors from so long ago. Even if Grounds 15 and 16 raised an arguable basis for review, caution was in-built into the risk assessment and they were not made out.
- [101]That deals with Mr Harrod’s formal grounds.
- [102]Mr Harrod also provided other material which amounted to an outline of argument, which concluded with the following summary:
The Applicant claims
a Failed to assess the merits of my case
c Relied on facts that don’t exist
e Failed to take relevant considerations into account
f Discriminated against the applicant
b Failed to fairly and reasonably assess the magnitude of the risk the applicant poses to the community
Case Law and decision set-aside
- McQueen v Qld Parole Board
- Decisions without justification under s 24 of the JR Act
- Mitchell v Attorney General 2015
- Improper exercise of power disregard of the merits JR Act 20(2)(2) 23(f)
- [103]This outline essentially restated his grounds and raised nothing extra, although it did include references to authority.
- [104]With respect to authority, Mr Harrod also referred to the “Moore” principle – which is a reference to the decision of the Court of Appeal in Queensland Parole Board v Moore [2012] 2 Qd R 294. In that case, as Counsel for the Board accurately summarised, the Board’s decision to refuse parole was set aside in part because the Board erred in not considering the risks to the community if parole was never granted, or granted only shortly before the expiry of that prisoner’s period of imprisonment – because the prisoner’s reintegration would not be graduated. The beneficial effect of parole upon that prisoner’s rehabilitation and by extension the risk which his release would present, was the subject of evidence from a psychiatrist that was before the Board. The present applicant is in a different position. He is serving a sentence of life imprisonment for murder. He has been eligible for parole since 2001 and he has previously been released on parole – indeed – more than once.
- [105]As to the authority to which Mr Harrod referred in his outline, Attorney-General (Qld) v Mitchell [2015] QSC 121, is a decision under the Dangerous Prisoners (Sexual Offenders) Act 2003. In the course of the decision, an error in the sentence originally imposed upon Mitchell was noted. In error, it had been declared by the sentencing judge that Mitchell had been convicted of a serious violent offence – but because of the date of the relevant offence, such a declaration could not be made. I understand Mr Harrod to have argued that he too has been the victim of an error which the Court should address. For obvious reasons, Mitchell does not assist Mr Harrod in this application for judicial review of the Board’s decision to cancel his parole. The outcome of each case, and the impact of each alleged error, is assessed on a case by case basis, in accordance with relevant law and principles. Neither the sexual offender’s legislation, nor the legislation dealing with “serious violent offence” declarations has any relevance to Mr Harrod’s circumstances.
- [106]Mr Harrod said that the decision in McQueen v Parole Board Queensland [2018] QSC 216 “fits mine perfect”. I understood his point to be that McQueen had been able to demonstrate that the Board’s decision to cancel McQueen’s parole had been affected by error of law – and Mr Harrod considered himself to be in the same position as McQueen. Obviously, each case must be assessed individually. The detail of the grounds raised by Mr McQueen bore little resemblance to the grounds raised by Mr Harrod here.
- [107]Mr Harrod also referred me to Petrie v Qld Community Corrections Board [2006] QCA 474, in which the Court found the Board had made an error in its decision making processes by taking into account irrelevant considerations. Again, that may have been so in Mr Petrie’s case, but Mr Harrod has not persuaded me that that has occurred here.
- [108]Mr Harrod was also concerned at the hearing that the Board had erroneously taken into account that he had offended sexually against the deceased. Counsel for the Board acknowledged that, very early in the piece, the Board may have assumed that Mr Harrod had sexually mistreated the deceased in some way. But Mr Harrod was not charged with a sexual offence related to the murder. And some time ago, the Board disabused itself of the belief or understanding that Mr Harrod had sexually interfered with the deceased – any error having been corrected, on Mr Harrod’s behalf, by the Prisoners’ Legal Service in 2010. Also, the information before the Board included an “Advice to Parole Board Report” dated 2 July 2019, which made it clear that Mr Harrod had not been convicted of a sexual offence upon the women he murdered.
Conclusion
- [109]Overall, while Mr Harrod’s frustration and disappointment is understandable, he has not been able to identify any error in the decision making processes of the Board to suspend, and then cancel, his parole. I have considered the evidence before me – which was the evidence upon which the Board made its decision (apart from sealed evidence, which I did not unseal). The Board made its various decisions (all leading to the same outcome) after a detailed consideration of all of that material – which included voluminous submissions from Mr Harrod.
- [110]The evidence placed before me indicated that the Board had attempted to encourage relevant service providers to assist Mr Harrod in his search for accommodation which met the Board’s suitability criteria in Mr Harrod’s case. The evidence placed before me shows that those service providers are working hard – but I accept that Mr Harrod has few options (in the context of the Board’s requirements for his accommodation). I note that the Board is meeting again to consider Mr Harrod’s parole application in a couple of weeks. I have already observed that the Board may wish to discuss accommodation criteria with Dr Kovacevic. Mr Harrod is encouraged to work with those assisting him (from ADS, ASCO and CREST) in his search for suitable accommodation, which provides for his needs, including his support needs, thereby ensuring community safety.
- [111]For the reasons above, Mr Harrod’s out-of-time application is dismissed. The parties are to bear their own costs.
Footnotes
[1]With respect to the point made to Mr Harrod about his NDIS plan, my understanding of the evidence before me was that his NDIS plan did not anticipate his release into the community and that he would need to apply for a new plan for funding and support in the community. Under his present plan, he is entitled to support to understand information about his housing options, but he has no funding for community accommodation or community support workers.