Calanca v Parole Board Queensland [2024] QSC 199

SUPREME COURT OF QUEENSLAND CITATION: Calanca v Parole Board Queensland [2024] QSC 199 PARTIES: DAMON FRANK CALANCA (applicant) v PAROLE BOARD QUEENSLAND (respondent) FILE NO/S: BS 4330 of 2024 DIVISION: Trial Division PROCEEDING: Application ORIGINATING COURT: Supreme Court of Queensland at Brisbane DELIVERED ON: 28 August 2024 DELIVERED AT: Brisbane HEARING DATE: 22 July 2024 JUDGE: Copley J ORDER: Application dismissed. CATCHWORDS: ADMINISTRATIVE LAW – JUDICIAL REVIEW – GROUNDS OF REVIEW – GENERALLY – where the applicant was sentenced to life imprisonment for murder – where the applicant was released on parole subject to conditions imposed by the Parole Board – where the applicant breached or allegedly breached conditions of parole – where the applicant filed an application under s 20(2)(e) of the Judicial Review Act 1991 (Qld) on the basis that the making of the decision to cancel the parole order pursuant to s 205 of Corrective Services Act 2006 (Qld) was an improper exercise of power – whether irrelevant considerations were taken into account – whether relevant considerations were not taken into account – whether the decision in accordance with policy without regard to the merits of the case – whether the decision was so unreasonable no reasonable person could have made the decision Corrective Services Act 2006 (Qld), ss 3(1), 200, 205, 216, 242E Judicial Review Act 1991 (Qld), ss 20(2)(e), 23 Calanca v Parole Board [2019] QSC 34, cited Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24, cited Minister for Immigration and Citizenship v Li (2013) 249 CLR 332, cited -- 1 of 12 -- 2 WA Pines Pty Ltd v Bannerman (1980) 30 ALR 559, cited COUNSEL: The applicant appeared on his own behalf S B Robb KC for the respondent SOLICITORS: The applicant appeared on his own behalf Parole Board Queensland Legal Services for the respondent [1] On 5 February 2024 the Parole Board decided to cancel the applicant’s parole. The applicant has applied for a statutory order of review of that decision. [2] The application is made on the ground that the making of the decision was an improper exercise of power,1 for the reasons that: (a) irrelevant considerations were taken into account in making the decision;2 (b) relevant considerations were not taken into account;3 (c) the decision was made in accordance with a policy without regard to the merits of the applicant’s case;4 and (d) the decision was so unreasonable that no reasonable person could have arrived at the decision.5 [3] Reasons explaining why the Board decided to cancel the parole order were provided on 30 April 2024.6 [4] The reasons concluded:7 “The Board reasonably believed you posed an unacceptable risk of committing an offence, in accordance with s 205(2)(a)(iii) of the CS Act, and reasonably believed you failed to comply with the conditions of your parole order, in accordance with s 205(2)(a)(i) of the CS Act.” [5] For the reasons set out below the decision to cancel parole was not an improper exercise of power. Background [6] On 11 February 1994 the applicant was sentenced to imprisonment for life for a count of murder. On 1 October 2019 he was released on parole subject to conditions. On 5 January 2023 a prescribed Board member suspended the applicant’s parole. The applicant was returned to custody on 6 January 2023. On 9 January 2023 the Board confirmed the prescribed Board member’s decision to suspend parole. Between then and 5 February 2024 the Board met and considered the decision to suspend parole on nine occasions. 1 Judicial Review Act 1991 (Qld), s 20(2)(e). 2 Judicial Review Act, s 23(a). 3 Judicial Review Act, s 23(b). 4 Judicial Review Act, s 23(f). 5 Judicial Review Act, s 23(g). 6 Affidavit of Makenzie Brennan at paragraph 21 and Exhibit MB-17. 7 Exhibit MB-17, page 86, paragraph 174. -- 2 of 12 -- 3 [7] The conditions of parole relevant to this application are:8 “(r) You must submit and discuss a schedule of your planned, proposed and any additional past activities, including the provision of verifying materials or documents on a weekly basis or as otherwise directed by an authorised corrective services officer; (x) You must not commit any act of domestic violence. (aa) You must report any personal or intimate relationship with anyone, to an authorised corrective services officer at the commencement of the relationship. (bb) You must make complete disclosure of the terms of your order and the nature of your past offences to any person as nominated by an authorised corrective services officer. Further, you are to provide full contact details for any such person to an authorised corrective services officer to verify that full disclosure has occurred. (ff) You must not have access to a device with Internet access without first obtaining the written approval of the corrective services officer or the Board. Any such approval will be conditional upon your agreement to having any device you access randomly examined, by whatever means are necessary, to determine whether the device has been used for any unacceptable purpose. (gg) You are prohibited from accessing or utilising any social media, websites, technology, applications, or personal introductory systems whereby you can find and contact individuals over the internet (or by any other means) with the objective of developing a personal, romantic or sexual relationship without the prior approval of the corrective services officer. (kk) You must respond truthfully and fully, to enquiries by a corrective services officer and the Board about activities, relationships, whereabouts and movements generally.” Relevant legislation [8] The Board is established pursuant to s 216 of the Corrective Services Act 2006 (Qld) (“the Act”). Pursuant to s 217 of the Act its functions are to decide applications for parole orders, other than court-ordered parole orders, and to perform other functions given to it under the Act or another Act. [9] Section 200 of the Act provides: “200 Conditions of parole (1) A parole order must include conditions requiring the prisoner the subject of the order– 8 Exhibit MB-17, pages 84-86, paragraph 171. -- 3 of 12 -- 4 (a) to be under the chief executive’s supervision– (i) until the end of the prisoner’s period of imprisonment; or (ii) if the prisoner is being detained in an institution for a period fixed by a judge under the Criminal Law Amendment Act 1945, part 3–for the period the prisoner was directed to be detained; and (b) to carry out the chief executive’s lawful instructions; and (c) to give a test sample if required to do so by the chief executive under section 41; and (d) to report, and receive visits, as directed by the chief executive; and (e) to notify the chief executive within 48 hours of any change in the prisoner’s address or employment during the parole period; and (f) not to commit an offence. (2) A parole order may contain a condition requiring the prisoner to comply with a direction given to the prisoner under section 200A. (3) A parole order granted by the parole board may also contain conditions the board reasonably considers necessary– (a) to ensure the prisoner’s good conduct; or (b) to stop the prisoner committing an offence. Examples–  a condition about the prisoner’s place of residence, employment or participation in a particular program  a condition imposing a curfew for the prisoner  a condition requiring the prisoner to give a test sample (4) The prisoner must comply with the conditions included in the parole order.” [10] Section 205 of the Act provides: “205 Amendment, suspension or cancellation (1) The parole board may, by written order, amend a parole order– (a) by amending or removing a condition imposed under section 200(3) if the board reasonably believes– (i) the condition, as amended, is necessary for a purpose mentioned in the subsection; or -- 4 of 12 -- 5 (ii) the condition is no longer necessary for a purpose mentioned in the subsection; or (b) by inserting a condition mentioned in section 200(3) if the board reasonably believes the condition is necessary for a purpose mentioned in the subsection; or (c) if the board reasonably believes the prisoner poses a serious risk of self harm. (2) The parole board may, by written order– (a) amend, suspend or cancel a parole order if the board reasonably believes the prisoner subject to the parole order– (i) has failed to comply with the parole order; or (ii) poses a serious risk of harm to someone else; or (iii) poses an unacceptable risk of committing an offence; or (iv) is preparing to leave Queensland, other than under a written order granting the prisoner leave to travel interstate or overseas; or (b) amend, suspend or cancel a parole order, other than a court ordered parole order, if the board receives information that, had it been received before the parole order was made, would have resulted in the board making a different parole order or not making a parole order; or (c) amend or suspend a parole order if the prisoner subject to the parole order is charged with committing an offence; or (d) suspend or cancel a parole order if the board reasonably believes the prisoner subject to the parole order poses a risk of carrying out a terrorist act.” [11] The discretion conferred by s 205(2)(a) to cancel parole depends upon the Board attaining a reasonable belief which suggests that there must be reasonable grounds for the belief that any of the circumstances set out in s 205(2)(a) have arisen.9 Section 205(2)(b)-(d) are not relevant to the present case. [12] To show that there has been an improper exercise of power the applicant primarily contends that irrelevant considerations were brought into account and relevant considerations were overlooked in arriving at the decision to cancel parole. [13] In Minister for Aboriginal Affairs v Peko-Wallsend Ltd, Mason J said:10 “(a) The ground of failure to take into account a relevant consideration can only be made out if a decision-maker fails to 9 WA Pines Pty Ltd v Bannerman (1980) 30 ALR 559 at 571-572. 10 (1986) 162 CLR 24 at 39-40. -- 5 of 12 -- 6 take into account a consideration which he is bound to take into account in making that decision … (b) 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 statute expressly states the considerations to be taken into account, it will often be necessary for the court to decide whether those enumerated factors are exhaustive or merely inclusive. If the relevant factors – and in this context I use this expression to refer to the factors which the decision-maker is bound to consider – are not expressly stated, they must be determined by implication from the subject-matter, scope and purpose of the Act. In the context of judicial review on the ground of taking into account irrelevant considerations, this Court has held that, where a statute confers a discretion which in its terms is unconfined, the factors that may be taken into account in the exercise of the discretion are similarly unconfined, except in so far as there may be found in the subject-matter, scope and purpose of the statute some implied limitation on the factors to which the decision-maker may legitimately have regard … By analogy, where the ground of review is that a relevant consideration has not been taken into account and the discretion is unconfined by the terms of the statute, the court will not find that the decision- maker is bound to take a particular matter into account unless an implication that he is bound to do so is to be found in the subject-matter, scope and purpose of the Act.” [14] Section 205(2)(a)(i)-(iv) sets out circumstances that must exist before the Board may cancel a parole order. Section 205(2)(a)(i) requires consideration about past events as it is concerned with whether a prisoner “has failed” to comply with an order. Section 205(2)(a)(ii)-(iv) requires consideration about whether a state of affairs is existing at the time the Board makes a decision. Subparagraphs (ii) and (iii) concern situations where a prisoner “poses” particular risks. Subparagraph (iv) concerns the situation where a prisoner is “preparing” to do a particular act. However, s 205(2) does not expressly state the factors that the Board must take into account in determining whether any of these circumstances have arisen. [15] Formation of a reasonable belief that a prisoner subject to a parole order has failed to comply with the order11 necessarily depends on the Board taking into account the conditions attached to a prisoner’s parole order and information or material that bears upon whether those conditions were not complied with. Formation of a reasonable belief that a prisoner subject to parole poses an unacceptable risk of committing an offence,12 requires the Board to take into account those factors which have arisen since parole was granted which bear upon the assessment of the level of risk posed by the prisoner. 11 Section 205(2)(a)(i). 12 Section 205(2)(a)(iii). -- 6 of 12 -- 7 [16] The purpose of the Corrective Services Act is community safety and crime prevention through the humane containment, supervision and release of offenders.13 The Minister may make guidelines about policies to help the Board perform its functions.14 The Ministerial Guidelines are a relevant factor and must be taken into account.15 The Ministerial Guidelines16 are divided into seven sections. Section 1 is headed “Guiding Principles for Parole Board Queensland”. Paragraph 1.2 states that when considering whether parole should be granted, the highest priority for the Board should always be the safety of the community. Section 2 deals with suitability for parole and lists 11 factors to be considered in determining the level of risk a prisoner may pose to the community. Section 5 deals with release to parole and exceptional circumstances parole. Section 6 deals with a number of situations including where a paroled prisoner has been charged with a further offence; where a paroled prisoner fails to comply with a condition of parole; and where a paroled prisoner is unlawfully at large. If a prisoner has failed to comply with a condition of parole the Guidelines state that the Board should consider whether to cancel the parole order and in considering whether to do so the Board:17 “… should take the following into account, the – (a) … (b) seriousness and circumstances surrounding the prisoner’s failure to comply; (c) prisoner’s home environment; (d) factors outlined in section 6.1(d) and (e); and (e) if the prisoners (sic) is close to full time discharge whether the risk to the community would be greater if the prisoner does not remain on parole.” [17] Section 6.1 of the Guidelines provide:18 “(d) prisoner’s personal situation, including employment status; (e) prisoner’s response to supervision to date; and …” [18] Before considering the various grounds the applicant relies on to show an improper exercise of power it is relevant to notice the following. [19] The applicant admitted to the Board that he had not informed an authorised corrective services officer about intimate relationships he had commenced and pursued with three women whilst on parole. The Board said these admitted failures constituted failures to comply with conditions (aa) and (bb) of the parole order.19 The Board stated that these failures, together with other failures to make frank and open 13 Section 3(1). 14 Section 242E. 15 Calanca v Parole Board [2019] QSC 34 at [57]. 16 Exhibit MB-18. 17 Exhibit MB-18, page 102, paragraph 6.2. 18 Exhibit MB-18, page 101. 19 Exhibit MB-17, page 85, paragraphs 171(c) and (d). -- 7 of 12 -- 8 disclosures to community corrections, had occurred over a significant period of time. The Board went on to state that such conditions had been imposed to monitor the applicant, particularly in situations of relationship breakdowns, which it considered might increase the level of risk the applicant might pose to the community.20 The reasons provided by the Board show that the admitted failures were among the reasons why the Board formed the beliefs that the applicant posed an unacceptable risk of committing an offence and that he had failed to comply with conditions of parole.21 These admitted failures to comply with conditions of parole were relevant to the decision to cancel parole. Taking irrelevant considerations into account [20] The applicant submitted that in being satisfied that there had been a breach of condition (r)22 the Board erred in taking into account the weekly schedule he provided for the week commencing 1 January 2023. His argument was that in preparing the schedule he could not be expected to anticipate events or circumstances not foreseen at the time it was completed and therefore the schedule was “irrelevant”. [21] The Board’s conclusion that condition (r) had not been complied with was based on the following matters:23 “On 1 January 2023, you submitted a weekly planner (for your movements from 2 January 2023 to 8 January 2023) in which you stated you would be going to Ms [X’s] home on 3 January 2023, you would be having dinner with her at your home on 5 January 2023, you would stay at her home on 6 January 2023, and you would both visit your sister on 7 January 2023. Your parole order was suspended on 5 January 2023. Following the suspension and prior to your return to custody, you sent two (2) emails to the Board (on 5 January 2023 at 10:57pm and 11:53 pm) advising that your relationship with Ms [X] ended four (4) days earlier. You were returned to custody on 6 January 2023. The Board had regard to your emails received by the Board on 5 January 2023 and to other information indicating your relationship with Ms [X] broke down prior to 1 January 2023.” [22] The Board had received information which showed that the applicant’s relationship had ended prior to his submission of the schedule. This information was relevant to whether condition (r) had been complied with. The submission of a schedule containing activities that the applicant knew were not going to occur was a material consideration in determining if condition (r) had been complied with. Condition (r) required the applicant to provide a schedule of planned or proposed activities. The accuracy of the schedule was relevant to the effectiveness of the supervision of the applicant. 20 Exhibit MB-17, page 84, paragraph 169(aa). 21 Exhibit MB-17, page 84, paragraph 170. 22 Exhibit MB-17, pages 84-85, paragraph 171(a). 23 Exhibit MB-17, pages 81-82, paragraphs 169(p)-(r). -- 8 of 12 -- 9 [23] The applicant submitted that the Board erred in taking into account text messages he had sent to the three women with whom he had had intimate relationships. His argument was that condition (gg) did not prohibit text messages because text messages did not rely on social media, websites or the other means of communication specified in condition (gg). [24] However, the conclusion that condition (gg) was not complied with was not based on the sending of text messages. The conclusion reached by the Board was that:24 “The Board noted the extract of your phone contents revealed applications containing chat functions had been downloaded. These applications included Outlook, LinkedIn, Google Duo and Gmail.” [25] At an earlier point in the reasons the Board said:25 “Information was received from Community Corrections that upon an examination of your phone contents by Queensland Police on 6 January 2023, in accordance with condition (ee) of your parole order, applications were found on your phone. Police located an application which contained significant evidence of you having intimate relationships with others. You have not been granted approval to access this application in breach of condition (gg).” [26] The information the Board took into account was clearly relevant to whether condition (gg) had been complied with. [27] This ground of review fails. Failing to take relevant considerations into account [28] The applicant submits that the Board failed to take into account the residence he proposed he could live at if released on parole again. As already noticed, a prisoner’s home environment is a matter that the Ministerial Guidelines provide that the Board should take into account. [29] The Board said that it considered an assessment of the proposed accommodation at its meeting in May 2023. The assessment, conducted by Community Corrections, was that the residence proposed was unsuitable. The Board made no determination then about the suitability of the address.26 The Board did not fail to take into account the applicant’s proposed accommodation. [30] Participation in Schema-based therapy was a condition of parole. This therapy had been provided by Dr Petroff. The applicant argues that failure to take into account his compliance with this condition constituted a failure to take a relevant consideration into account. He also complains that no account was taken of the fact he consented to Dr Petroff disclosing notes regarding the applicant’s treatment or to Dr Petroff’s views about the applicant’s participation in this therapy. 24 Exhibit MB-17, pages 85-86, paragraph 171(f)(i). 25 Exhibit MB-17, page 83, paragraph 169(u)(iv). 26 Exhibit MB-17, page 67, paragraph 132. -- 9 of 12 -- 10 [31] The issue for the Board under s 205(2)(a)(i) was whether the applicant had failed to comply with the parole order. The parolee’s obligation was to comply with all the conditions included in the parole order.27 In determining whether the applicant had complied with all the conditions the Board had to have regard to the information relevant to the particular condition under consideration. Demonstrated compliance with one condition, such as that requiring participation in a particular form of therapy, was not relevant to whether a different condition had been complied with. [32] In any event, the Board took into account that the applicant had participated in Schema-based therapy and continued to do so until his parole was suspended.28 As to the provision of consent by the applicant to the disclosure of Dr Petroff’s notes, the Board was aware that the applicant provided this consent.29 [33] The Board considered a risk assessment report of 11 October 2023.30 The risk assessment had been undertaken by Dr Sundin. The Board noted that Dr Sundin had concluded that whilst released on parole the applicant had engaged in a pattern of deceitful behaviour, failed to plan ahead and that his sense of his own “specialness” led the applicant to disregard restrictions contained in his parole order. She said his behaviour whilst in the relationship with Ms [X] highlighted the extent of his unacknowledged dependency needs. However, her view that the applicant could be released on parole again subject to further recommended conditions was not accepted. The Board said it did not accept that recommendation because other advice it had received was that the conditions Dr Sundin suggested for supervision were not feasible and because Dr Sundin’s assessment was made on the erroneous foundation that the applicant had not committed acts of domestic violence whilst on parole.31 Condition (x) provided that the applicant was not to commit any act of domestic violence. [34] In making a decision about cancellation of parole the Ministerial Guidelines at paragraph 6.1(e) required the Board to have regard to the applicant’s response to supervision. The Board was not thereby obliged to obtain a report from Dr Petroff. The report from Dr Sundin was relevant to the matters set out in paragraphs 6.1(d) and (e) of the Ministerial Guidelines. [35] The applicant submits that the Board failed to take into account his progress in treatment with Dr Petroff. When deciding the level of risk that a prisoner may pose to the community the Ministerial Guidelines provide that the Board should have regard to, among other things, a prisoner’s progress in recommended rehabilitation programs.32 The reasons show that the Board took into account progress made in rehabilitation. The Board referred to the fact that in 2021 the applicant had engaged satisfactorily in treatment with Dr Petroff33 and that in July 2022 Community Corrections had informed the Board that the applicant had generally been complying with parole conditions “noting your engagement with Dr Petroff”.34 27 Section 200(4). 28 Exhibit MB-17, page 46, paragraph 72 and page 80, paragraphs 169(k)(i) and (r). 29 Exhibit MB-17, page 68, paragraph 137. 30 Exhibit MB-17, page 78, paragraph 169(c). 31 Exhibit MB-17, pages 83-84, paragraphs 169(w)-(z). 32 Exhibit MB-18, page 97, paragraph 2.1(k). 33 Exhibit MB-17, page 79, paragraph 169(f). 34 Exhibit MB-17, page 80, paragraph (k)(i). -- 10 of 12 -- 11 [36] This ground of review has not been made out. Decision made in accordance with a policy without regard to the merits of the applicant’s case [37] Under this ground the assertion is that the assessment that a proposed place of residence was unsuitable was arrived at without a physical inspection of the proposed residence or an interview with the applicant’s proposed housing sponsor. [38] No rule or policy was identified by the applicant as a rule or a policy rigidly applied. No rule or policy was identified by the applicant concerning how a proposed place of residence was to be assessed. [39] This ground of review has not been made out. Decision so unreasonable that no reasonable person could have arrived at the decision [40] The applicant asserts that no reasonable person could have arrived at the decision to cancel his parole. He contends that it was unreasonable for the Board to decide to cancel parole on the basis of a belief that he posed an unacceptable risk of committing an offence when the President of the Board had commended him for following a relapse prevention plan. He also relies upon the arguments that have been advanced under other grounds of review that an irrelevant consideration was taken into account in the Board being satisfied he had breached condition (gg), and, upon the failure to inspect his proposed accommodation and interview his housing sponsor. [41] There was an evident and intelligible justification35 for the Board’s decision to cancel parole on the basis of a reasonable belief both that the applicant had failed to comply with the parole order and posed an unacceptable risk of committing an offence. In these respects it is sufficient to notice the matters set out below. [42] Opinions and recommendations of psychiatrists and psychologists provided prior to the applicant’s release on parole in 2019 had indicated that a major risk to the community related to the applicant’s responses to any breakdown in personal relationships. However, the risk was regarded as manageable through stringent conditions.36 The Board imposed conditions to allow for the monitoring of contact the applicant had with others and conditions imposing obligations to disclose intimate relationships with female persons and to submit a schedule of intended activities.37 [43] The examination of the applicant’s mobile phone on 6 January 2023 revealed that he had been engaged in intimate relationships.38 The applicant admitted that he had not informed his parole officer about the intimate relationships he had with three women.39 35 Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 at 367 [76]. 36 Exhibit MB-17, page 78, paragraph 169(d). 37 Exhibit MB-17, pages 78-79, paragraph 169(e). 38 Exhibit MB-17, pages 82-83, paragraph 169(u). 39 Exhibit MB-17, page 65, paragraphs 130(s)-(v) and page 77, paragraph 167(f). -- 11 of 12 -- 12 [44] The Board stated:40 “The information before the Board showed that over a significant period of time, you had repeatedly failed to make frank and open disclosures to Community Corrections, particularly regarding intimate female relationships and to comply with other stringent conditions of your parole order imposed by the Board to enable Community Corrections to monitor you closely, particularly in the case of a relationship breakdown which the Board considered may increase the level of risk you may pose to the community. Accordingly, the Board reasonably believed you posed an unacceptable risk of committing an offence, and reasonably believed you failed to comply with the conditions of your parole order.” [45] This ground of review fails. Order [46] I make the following order: 1. The application for review is dismissed. [47] I will hear the parties as to costs. 40 Exhibit MB-17, page 84, paragraphs 169(aa)-170. -- 12 of 12 --