Cook v Parole Board Queensland [2025] QSC 88

SUPREME COURT OF QUEENSLAND CITATION: Cook v Parole Board Queensland [2025] QSC 88 PARTIES: GRANT DOUGLAS COOK (applicant) v PAROLE BOARD QUEENSLAND (respondent) FILE NO: BS 89 of 2025 DIVISION: Trial Division PROCEEDING: Application for judicial review ORIGINATING COURT: Supreme Court at Brisbane DELIVERED ON: 2 May 2025 DELIVERED AT: Brisbane HEARING DATE: 30 April 2025 JUDGE: Hindman J ORDERS: 1. The application for a statutory order of review is dismissed. 2. No order as to costs. CATCHWORDS: ADMINISTRATIVE LAW – JUDICIAL REVIEW – GROUNDS OF REVIEW – where the applicant seeks a statutory order of review of the respondent’s decision to refuse his application for a parole order – where the applicant became eligible for parole on 9 September 2024 – where the applicant made an application for a parole order under the Corrective Services Act 2006 (Qld) – where the respondent refused to grant the application – where the applicant alleges that the respondent’s refusal to grant the application was not made in accordance with law – whether the respondent had failed to take into account relevant considerations in making its decision – whether the respondent’s decision was legally unreasonable – whether there had been a material denial of natural justice – whether there was an absence of evidence or other material to justify the respondent’s decision Batts v Department of Corrective Services [2002] QSC 206, referred to Boyy v Parole Board Queensland [2018] QSC 175, cited Hickson v Parole Board Queensland [2024] QSC 133, cited Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24, cited -- 1 of 9 -- 2 MZAPC v Minister for Immigration and Border Protection (2021) 390 ALR 590, cited Nicholson v Parole Board Queensland [2024] QSC 232, cited Corrective Services Act 2006 (Qld) s. 193 Judicial Review Act 1991 (Qld) ss. 20, 23, 30, 31 COUNSEL: The applicant appeared on his own behalf K A McGree for the respondent SOLICITORS: The applicant appeared on his own behalf Legal Services Unit, Parole Board Queensland for the respondent Introduction [1] The applicant makes a judicial review application under the Judicial Review Act 1991 (Qld) (JRA) in relation to a decision of the respondent (Parole Board / Board) on 31 October 2024 (made pursuant to s. 193(1) of the Corrective Services Act 2006 (Qld) (CSA)) to refuse to grant the applicant’s application for a parole order (Refusal Decision). [2] It is noted that the applicant has made a further application for a parole order, received by the Board on 3 March 2025, which is yet to be determined by the Board. I have confirmed with the applicant during the oral hearing that wishes to proceed with this application regardless and there is no submission by the Board that the application lacks utility. [3] The applicant is serving a sentence of imprisonment of 2 years and 6 months for offences including serious assault of a person over 60, contravention of domestic violence order (aggravated offence), wilful damage, attempted enter dwelling with intent by break whilst armed, assaults occasioning bodily harm whilst armed/in company, possess property suspected of having been used in connection with the commission of a drug offence, and assaults occasioning bodily harm. He has been incarcerated now for over one year and ten months. He became eligible for parole on 9 September 2024. He has a full-time discharge date of 25 December 2025. This was his first application for a parole order. [4] A judicial review application is not a merits review.1 It is not for me to decide if the applicant should obtain parole – that is a decision that rests with the Board. It is only for me to decide whether the Refusal Decision has been made according to law. Nor is it for me to consider the new material that the applicant has lodged in support of his second parole application: that will be considered by the Board in due course. [5] The Refusal Decision has been made according to law. The grounds of review advanced by the applicant in his application and as might be gleaned from his submissions (both written and oral) have not been made out. Accordingly, the applicant’s application is dismissed. 1 Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24, 40. -- 2 of 9 -- 3 Grounds of review [6] The applicant’s grounds of review for the Refusal Decision are:2 (a) Ground 1: there was a failure to take into account relevant matters (ss. 20(2)(e) and 23(b) JRA) (or a failure to give appropriate weight to those matters);3 (b) Ground 2: the decision is (legally) unreasonable (ss. 20(2)(e) and 23(g) JRA);4 (c) Ground 3: there was a (material) denial of natural justice (s. 20(2)(a) JRA);5 (d) Ground 4: there was an absence of evidence or other material to justify the Refusal Decision (ss. 20(2)(h) and 24 JRA).6 [7] The applicant seeks an order directing that the respondent reconsider the Refusal Decision according to law within a period of 7 days, plus costs. The only recoverable cost that has been incurred by the applicant is the payment of the filing fee. Summary of relevant decision history [8] The applicant applied for a parole order on 18 August 2024, received by the Board on 20 August 2024 (Application). [9] On 30 September 2024, the Board sent the applicant correspondence stating that the Board had considered the Application (on 26 September 2024) and had formed a preliminary view that the Application should be refused. The Board’s correspondence invited the applicant to make further written submissions before the Board made its final decision. The applicant did so, received 18 October 2024. [10] On 31 October 2024, the Board met and considered the Application further and made the Refusal Decision. The applicant was informed of the Refusal Decision by a letter dated 31 October 2024. [11] This proceeding was commenced on 8 January 2025. [12] A statement of reasons for the Refusal Decision (Statement of Reasons) was provided on 22 January 2025. Ground 1: failure to take into account relevant matters / failure to give appropriate weight to certain matters [13] Cooper J summarised the legal principles applicable to a failure to take into account a relevant consideration in Hickson v Parole Board Queensland [2024] QSC 133 at [44]–[46] (footnotes omitted): A failure to take into account a relevant consideration can only be made out as a ground of review if a decision maker fails to take into account a consideration that 2 Note: I have inserted what I consider to be the relevant references to provisions of the JRA to attempt to identify a proper statutory basis for the complaints made by the applicant. 3 Gleaned from the applicant’s submissions at [10]–[15]. 4 Taken from the application for a statutory order of review (excluding the reference to “legally” which I have added). 5 Taken from the application for a statutory order of review (excluding the reference to “material” which I have added). 6 Gleaned from the applicant’s submissions at [10], [11], [12], [14], [15]. -- 3 of 9 -- 4 he or she is bound to take into account in making that decision. What factors a decision maker is bound to consider in making the decision is determined by construction of the statute conferring the discretion. If the relevant factors are not expressly identified in the statute, they must be determined by implication from its subject matter, scope and purpose. Where a decision maker is bound to take into account a consideration, there is a requirement to give that matter proper, genuine and realistic consideration. However, care needs to be taken to ensure that the requirement does not encourage a “slide” into an impermissible merits review of the decision. Not every consideration that a decision maker is bound to take into account but fails to take into account will justify the court setting aside the impugned decision and ordering that the discretion be re-exercised according to law. A factor might be so insignificant that the failure to take it into account could not have materially affected the decision. [14] There are six matters that the applicant submitted are relevant to the ground of a failure to take into account relevant matters: (a) the applicant’s response to previous grants of parole;7 (b) the applicant’s offending history;8 (c) the applicant’s institutional behaviour;9 (d) the applicant’s risk of further offending – medication;10 (e) the applicant’s risk of further offending – failure to complete intervention programs;11 (f) the applicant’s risk of further offending – suitable accommodation.12 Ground 1(a): the applicant’s response to previous grants of parole [15] The applicant alleges that the Board was required to and did not take into account a 12 year period when he was not imprisoned in Queensland. Whilst the period was not identified in writing, the applicant advised during the hearing that he was referring to the period of about 2010 to 2023. [16] The applicant refers to clause 2.1(i) of the Ministerial Guidelines that provides that the Board is to have regard to all relevant factors including “the prisoner’s compliance with any other previous grant of parole or leave of absence”. [17] There are two difficulties for the applicant. First, the lack of imprisonment in custody in Queensland during that period is not what the Ministerial Guidelines refer to. It concerns an assessment of the prisoner’s behaviour whilst on parole or a leave of absence, which does not apply to the 12 years referenced, except for a six month period of parole in Queensland in the second half of 2017. 7 Applicant’s submissions at [10]. 8 Applicant’s submissions at [11]. 9 Applicant’s submissions at [12]. 10 Applicant’s submissions at [13]. 11 Applicant’s submissions at [14]. 12 Applicant’s submissions at [15]. -- 4 of 9 -- 5 [18] Second, whilst not imprisoned in custody in Queensland during that period, that period contains offending in New South Wales, including terms of imprisonment and time spent under an intensive correction order, as well as continued offending in Queensland for which imprisonment was not imposed. Any benefits associated with a lack of any imprisonment in custody in Queensland during the identified period is eroded by those matters. [19] The Board did take into account the applicant’s Queensland criminal history and New South Wales criminal history as referred to in [32] and [33] of the Statement of Reasons. THat needed to be and was assessed in the context of more recent offending, and parole suspension and cancellation, amongst other matters. [20] Ground 1(a) is not made out. Ground 1(b): the applicant’s offending history [21] The applicant alleges that the Board ought to have taken into account that he was provoked into committing the offence of assault (specifically, serious assault of a person over 60). [22] The Board did take account of the applicant’s version of the assault, expressly noting the applicant’s comment about how he was provoked by the victim punching his son. The Board rejected this version of the assault on the basis that it was inconsistent with the facts recorded in the QP9 related to this offending.13 There was no obligation on the Board to accept the applicant’s version. [23] Ground 1(b) is not made out. Ground 1(c): the applicant’s institutional behaviour [24] The applicant alleges that when the Board considered his institutional behaviour it did not give sufficient weight to the fact that he had only one breach of discipline and is employed in custody. [25] The complaint is not that such matters were not taken into account, but that sufficient weight was not given by the Board to those matters in a way that would have been favourable for the applicant. [26] The issue of the weight to be given by the Board to any relevant matter is for the Board to decide, and does not found a proper ground of review.14 An exception to that is if the decision is legally unreasonable. I will return to that topic under ground 2. [27] Ground 1(c) is not made out. Ground 1(d): the applicant’s risk of further offending – medication [28] The applicant alleges that the Board failed to consider that forced changes to his medications impacted on his offending behaviour. The applicant did not identify when those forced changes occurred, but in later referring to forced changes to 13 Statement of Reasons, [59]–[60]. 14 Boyy v Parole Board Queensland [2018] QSC 175, [43], [46]. -- 5 of 9 -- 6 medication in custody that have been beneficial for him, the submission must be that the earlier forced changes occurred at some time before at least some of the current offending. [29] All of the submissions about forced changes to medication were considered by the Board – see particularly the Statement of Reasons at [45]–[50], [56]–[57], [64]–[67]. [30] If the complaint is in truth one about weight, then, as above, the issue of the weight to be given by the Board to any relevant matter is for the Board to decide, and does not found a proper ground of review. [31] Ground 1(d) is not made out. Ground 1(e): the applicant’s risk of further offending – failure to complete intervention programs [32] The applicant alleges that the Board failed to take into account a relevant principle derived from the decision in Batts v Department of Corrective Services [2002] QSC 206 (Batts) at [14] to the effect that to refuse to grant a remission solely on the basis that a prisoner fails to undertake a particular course is an entirely improper exercise of power. He says that the Board refused him parole because he has not undertaken certain courses that would address substance abuse, and domestic and general violence. [33] There is no dispute that the Board does consider that the applicant has outstanding treatment needs in those areas. But the applicant is unable to demonstrate by reference to the evidence that in fact the Board made the Refusal Decision on the basis that he had refused to undertake particular courses to address outstanding treatment needs. Whilst the Board did encourage the applicant to consider undertaking certain courses,15 it specifically recorded at [55] of the Statement of Reasons that: Whilst the Board was conscious that completing the recommended programs in custody was not a requirement of parole, the successful completion of programs relating to substance abuse, domestic violence and general violence may give the Board confidence that you may be a lower risk of further offending and a lower risk to the community. [34] In light of the above passage, I accept Board’s oral submission that the applicant’s failure to complete recommended programs was relevant to the Board’s assessment of the risk posed by the applicant to society. The Board did not make the Refusal Decision on the basis that the applicant had not undertaken the programs, but that his failure to do so meant that he posed a risk to the community that was unacceptably high for parole.16 [35] In this respect, the applicant also referred to [34] of the decision in Batts which found that it was unacceptable to adopt a conclusion based on the “unsubstantiated assumption that attendance at [a rehabilitation program] reduces the risk of re- offending and that the failure [to] attend renders the offender an unacceptable risk to the community”. I do not consider the Board’s assessment of the applicant’s risk to the community to be unsubstantiated or premised only on the applicant’s failure to 15 See for example at [50], [53]–[54] of the Statement of Reasons. 16 See [46]–[50], [53]–[57] of the Statement of Reasons. -- 6 of 9 -- 7 complete recommended programs. Detailed considerations are set out in the Statement of Reasons explaining why the Board was of the view that completing programs would reduce the applicant’s risk to society, including that the applicant self-identified a link between his substance abuse and his violent offending17 and the volatile nature of the applicant’s violent offending.18 [36] It is clear to me, having read the Board’s preliminary review letter, the letter of 31 October 2024 containing the Refusal Decision and the Statement of Reasons, that the Board did not make the Refusal Decision solely on the basis of the applicant’s refusal to undertake certain recommended courses in custody. The Refusal Decision was informed by a variety of findings of fact,19 only one of which concerned the failure to undertake particular treatments or courses. [37] Since the Refusal Decision the applicant has completed further courses in custody, which is commendable, but that is not a fact I can take into account in the determination of this application. [38] Ground 1(e) is not made out. Ground 1(f): the applicant’s risk of further offending – suitable accommodation [39] The applicant alleges that the Board did not take into account facts about his relationship with his current neighbours when considering the suitability of the proposed parole address. In particular, the former neighbours have moved out and the current neighbours have been assisting the applicant’s father with property maintenance and are interested in his return (impliedly demonstrative of a good relationship with the current neighbours). [40] The Statement of Reasons reveals that the Board did consider such matters – see at [82(e), (u), (v)], [83] – but were not satisfied at the present time, that the safety of neighbours would be sufficiently protected if the applicant were released on parole. [41] Insofar as the applicant’s second application for parole order apparently contains supporting correspondence from the new neighbours, that is not a matter that can be taken into account in this application. [42] Ground 1(f) is not made out. Ground 2: the Refusal Decision is (legally) unreasonable [43] The applicant’s application for a statutory order of review and outline of submissions assert that the Refusal Decision is unreasonable. No attempt has been made by the applicant to demonstrate how the Refusal Decision is legally unreasonable in a way that would justify the relief sought by the applicant in the proceeding. [44] The principles to be applied in respect of legal unreasonableness in a judicial review of a decision regarding an application for a parole order are set out by Bowskill CJ in Nicholson v Parole Board Queensland [2024] QSC 232 from [39]–[52]. It noteworthy that the decision at [43] provides (footnotes omitted): 17 Statement of Reasons, [46]–[47]. 18 Statement of Reasons, [51]–[53]. 19 Set out in summary form at [8]–[23] of the Statement of Reasons. -- 7 of 9 -- 8 It has been emphasised that the test for unreasonableness is necessarily stringent, because “the courts will not lightly interfere with the exercise of a statutory power involving an area of discretion”. It is strictly supervisory; it does not involve the court reviewing the merits of the decision under the guise of an evaluation of reasonableness nor does it involve the court substituting its own view as to how the discretion should be exercised. As French CJ said, in Li at [30]: The requirement of reasonableness is not a vehicle for challenging a decision on the basis that the decision-maker has given insufficient or excessive consideration to some matters or has made an evaluative judgment with which a court disagrees even though that judgment is rationally open to the decision-maker. [45] None of the matters complained about by the applicant in the proceeding, taken either alone, in some combination, or all together, rise to the level required for a conclusion of legal unreasonableness to be reached. I accept the submission made on behalf of the Board that the Statement of Reasons provided an evident and intelligible justification for the Refusal Decision. [46] Ground 2 is not made out. Ground 3: (material) denial of natural justice [47] Whilst mentioned in the applicant’s originating application, this ground has not been developed by the applicant further. [48] The Board in its submissions has identified a possible denial of natural justice. Two documents deposed to by the applicant as having been provided to the Board were never received by the Board. [49] In respect of one of the documents, there could be no material denial of natural justice because it is a document dated after the Decision and so could never have been taken into account by the Board. [50] In respect of the other document, it is a two page written submission dated 26 September 2024. There is no material denial of natural justice in respect of that document as the substance of the document is incorporated into the applicant’s submissions that the Board did consider dated 18 October 2024. The latter submissions in fact appear more detailed. [51] Ground 3 is not made out. Ground 4: absence of evidence or other material to justify the making of the Refusal Decision [52] This ground is alluded to at [10], [11], [12], [14] and [15] of the applicant’s submissions. No further detail is provided. It may be gleaned that the applicant alleges that the Board based its decision on the following facts which are not substantiated by evidence: (a) the applicant had a poor response to community-based orders; (b) the applicant’s violent offending was provoked; (c) the applicant’s negative institutional behaviour; -- 8 of 9 -- 9 (d) the risk posed by the applicant to society due to his failure to complete recommended programs; (e) the applicant’s lack of suitable community accommodation. [53] The Statement of Reasons sets out in a reasonably detailed way the evidence that justifies the findings of fact made by the Board, and why the Refusal Decision was made. The Board had sufficient bases to consider the above facts in making its decision. [54] Ground 4 is not made out. Other matters [55] Finally, I note that during oral argument the applicant made a general submission relating to his children – that his father had bought a house for him and his children, that the house was close to the school, that the children were presently residing with their mother a greater distance from the school, that as a consequence they were missing a lot of school, and it was therefore important for them to be able to return with him to the house. I think the submission was made as a concerned father, eager to impart why this application was important to him – which I understand. [56] If it was intended to go further though and be a ground of review, there is no proper ground of review that I can identify. The Board did take into account in a general way such considerations – see the Statement of Reasons at [66], [82(b), (n)]. Conclusion [57] It follows that the applicant’s application is dismissed. There is no order as to costs. -- 9 of 9 --