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Queensland Judgments

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Authorised Reports & Unreported Judgments
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Johnston v The Central and Northern Queensland Regional Parole Board  
Unreported Citation: [2018] QSC 54
EDITOR'S NOTE

This decision concerned an application for a statutory order for judicial review of a decision by the Parole Board to refuse parole. The judgment considers the effect of guidelines made under Corrective Services Act 2006.  The court found that the decision-maker erred by failing to consider whether the risk to the community would be greater if the applicant does not spend a period of time on parole.  The decision was set aside.

Davis J

16 March 2018

The applicant is a prisoner at Maryborough Correctional Centre.  He applied to the Central and Northern Queensland Regional Parole Board (the Board) for parole, which was refused. [1].  He subsequently applied to the court for a statutory order of review of the Board’s decision on a number of bases, which Davis J identified as including:

  • That the Board refused his application by applying a policy rather than considering the application on its merits: ss 20(2)(e) and 23(f) of the Judicial Review Act 1991;
  • That the Board failed to take into account relevant considerations, including that denying the applicant parole and releasing him on or close to his full time release date would limit the time that he would be subject to supervision in the community.  This, it was submitted, was relevant to community risk. [7]–[16].

The applicant complained that the Board refused parole on the basis that he had failed to complete the Pathways Program, although he had already completed other programs. [49]. Justice Davis accepted that in some cases the decision-maker lost sight of the real consideration, namely whether the risk is acceptable or not, and instead focused on whether a rehabilitative course prescribed by some departmental policy or practice had been completed. [50]. However, his Honour found that this was not such a case – the Board’s consideration was of the merits of the parole application.  This ground was rejected. [48]-[52].

Regarding the second ground listed above, Davis J noted that the current guidelines require the Board to consider “… whether the risk to the community would be greater if the prisoner does not spend a period of time on parole”. [61]. This feature distinguished the matter from the decisions of Queensland Parole Board v Moore [2012] 2 Qd R 294 and Day v Queensland Parole Board [2015] QSC 89. [58]–[60].

The relevant guidelines were made by the Board pursuant to s 227(2) of the Corrective Services Act 2006. [38]. His Honour applied Smoker v Pharmacy Restructuring Authority (1994) 53 FCR 287 and concluded that the combined effect of ss 193 and 227 of the Act is to mandate consideration of the guidelines. [63]–[70]. In this case, whether the risk to the community would be greater if the applicant does not spend a period of time on parole. [69]. The Board had erred by failing to take this relevant consideration into account. [73]–[75]. The decision was set aside and referred to the Parole Board Queensland for further consideration. [83].

K W Gover of Counsel