Abbott v Queensland Parole Board [2016] QSC 22

SUPREME COURT OF QUEENSLAND CITATION: Abbott v Queensland Parole Board [2016] QSC 22 PARTIES: BRENDEN JAMES ABBOTT (applicant) v QUEENSLAND PAROLE BOARD (respondent) FILE NO/S: No 8667 of 2015 DIVISION: Trial PROCEEDING: Application ORIGINATING COURT: Supreme Court at Brisbane DELIVERED ON: 24 February 2016 DELIVERED AT: Brisbane HEARING DATE: 29 January 2016 JUDGE: Dalton J ORDER: Decision of the Respondent dated 21 July 2015 set aside CATCHWORDS: ADMINISTRATIVE LAW – JUDICIAL REVIEW – GROUNDS OF REVIEW – RELEVANT CONSIDERATIONS – where the respondent decided to decline the applicant’s parole application – where the applicant seeks judicial review of that decision – whether the respondent failed to take into account relevant considerations when making that decision, and acted without evidence COUNSEL: The applicant appeared in person S A McLeod for the respondent SOLICITORS: Crown Solicitor for the respondent [1] Mr Abbott is currently serving sentences totalling just over 25 years. He became eligible for parole on 7 September 2011 and has been refused parole for the fourth time. He applies to review the decision of the respondent dated 21 July 2015. [2] Mr Abbott’s full-time release date is 29 October 2020. If he were released, either at this date or before it, he is unlikely to spend time in the community, for he is wanted by authorities in Western Australia on a charge of escape from lawful custody and also is liable to serve the balance of the sentence (over 3000 days) during which he escaped in Western Australia – pp121 and 144 of the exhibit bundle to Court Document 6. -- 1 of 9 -- 2 Overview [3] The application for parole with which I am concerned was dated 22 June 2014. For various reasons the respondent deferred consideration of it until 23 January 2015 when it met and reached a preliminary view that Mr Abbott would be an unacceptable risk to the community on parole. It notified him of this decision and he made submissions dated 19 February 2015 addressing the Parole Board’s concerns. On 10 April 2015 the Parole Board granted him release on parole for the purposes of extradition to Western Australia only. This decision was rescinded by the Parole Board because it was told that the authorities in Western Australia would not apply to extradite Mr Abbott while he was in prison – see the communication from the respondent of 23 June 2015 and its reasons on 4 August 2015. [4] Mr Abbott requested the documents which were received by the Queensland Parole Board and which led to its making the decision to rescind its April 2015 grant of parole. He has been provided with some, but not all, of them. He is suspicious as to why this is. On this application I can see no valid reason for his suspicions. It appears from the material which has been provided to Mr Abbott that the authorities in Western Australia rely on s 82(2) of the Service and Execution of Process Act 1992 (Cth). They apparently also rely upon a policy consideration that it is in the public interest that Mr Abbott should serve his full term of imprisonment in Queensland before he is extradited. Reliance on that policy consideration is not before me in this review. [5] After revoking its April 2015 decision, the Parole Board once against resolved on a preliminary basis to refuse Mr Abbott parole. Once again he was afforded the opportunity to provide submissions. On 21 July 2015 the Board decided not to grant parole and gave reasons dated 4 August 2015. The Respondent’s Reasons [6] The reasons for the Board’s (first) preliminary view (23 January 2015) that the applicant would be an unacceptable risk to the community on parole are contained in a letter to the applicant dated 9 February 2015 – p55 of the exhibit bundle to Court Document 6. Those reasons include: (a) The applicant’s extensive criminal history dated back to 1995 including armed robbery and escape, and offences committed whilst escaped from custody which the Board described as demonstrating “a continued pattern of offending at a high level”. (b) Remarks made by a District Court Judge in 1999 as to what he then thought of the applicant’s prospects for rehabilitation.1 (c) The Board extracted part of its reasons for refusing parole on 30 May 2011. This was to the effect that the breach history of the applicant, whilst incarcerated, was not recent, but included escape from custody involving firearms and threats to custodial officers. The Board viewed 1 I find it very difficult to see how this could be a relevant factor for the Board to consider when Mr Abbott now has 10 years of good institutional behaviour to his credit. -- 2 of 9 -- 3 this as indicating that even in the highly structured prison environment the applicant was unable to control his behaviour and comply with directions, and in turn led the Board to have concerns about how the applicant would comply with the terms of a parole order in the community. After the extract the Board said that it still held the same concerns.2 (d) The Board reiterated its concerns about the applicant’s custodial behaviour including that he had incurred seven major custodial breaches before February 2005. Despite the improvement in custodial behaviour since that time the Board considered that unacceptable behaviour before this time outweighed what it termed his “more recent behaviour”.3 The Board said that it “would like to see an extended period of acceptable behaviour within the most least [sic] secure accommodation you are able to achieve.” (e) That Mr Abbott proposed to live with a romantic partner on release in circumstances where their relationship had been “untested outside of the restrictions of incarceration”. [7] In this letter the Board noted that, in favour of a release on parole, the applicant had demonstrated a positive work ethic in terms of employment during imprisonment; had completed a number of courses during imprisonment, including the high intensity violent offending program, and had no outstanding program recommendations, and had submitted a relapse prevention plan which the Board considered sound. [8] As the Board had invited him to do, the applicant made further submissions to it dated 19 February 2015. He relied upon the time which had passed since his incarceration; the steps he had taken to educate himself and rehabilitate himself, and the views of Queensland Correctional staff and the Parole Review Panel which recommended that he be granted parole. He relied on the fact that that recommendation had been endorsed by the General Manager of the Woodford Correctional Centre, where he had been held for some considerable time. He pointed out that all his breaches were over 10 years old, and that his breach history, viewed as a whole, demonstrated rehabilitation, not a cause for concern. Lastly, he said that all his requests to reside at a lower security classification, or in a residential area, had been refused. As to this the applicant’s letter to the Board said: “Furthermore, the Board would like to see my extended good behaviour continue within the least secure accommodation I am able to achieve … I have attempted, by application, on numerous occasions to be accommodated within the Residential Area at this centre. All requests have been refused. However, even if successful, I would still be classified as ‘High Security’. Unfortunately, Qld legislation prohibits me from having a security classification other than my current status of ‘high’.” 2 I find it very difficult to see that any rational conclusion (in the Wednesbury sense) could be drawn to the effect that Mr Abbott is unable to behave properly in an institutional setting given the lack of any major breach for 10 years. 3 Nothing is said which allows one to understand why the Board could so conclude. -- 3 of 9 -- 4 [9] As already recorded, in June 2015 the respondent reached a second preliminary decision that Mr Abbott was an unacceptable risk to the community. It notified him of this and provided reasons in a letter dated 23 June 2015 – p85 of the exhibit bundle to Court Document 6. This letter reiterated the points at [6](a) and (d) above. In relation to the matter at [6](c) above it said: “The Board notes your institutional behaviour, in particular that you incurred seven major custodial breaches of discipline on [sic, presumably between] 12 April 1995 and 28 February 2005, and one minor breach on 6 March 2014. The Board notes that you have not recorded a major breach since February 2005. However, the Board is mindful that custodial managers have found it necessary to ensure you remained under a high level of supervision in very secure accommodation over that period. For that reason, the Board is unable to give nearly as much weight to the absence of a major breach as it would if you had been accommodated for a period in a less secure environment where you would have been required to demonstrate the ability to behave satisfactorily without intense supervision. The Board has noted with concern that it has been necessary to accommodate you in either the safety unit, detention unit or maximum security unit for substantial periods during your sentence. Even when not in those areas, you have been held in high security sections. … The experienced management of Queensland Corrective Services has believed it necessary to maintain your high security classification and to continue to accommodate you in the very secure areas for a very long time. That currently indicates two things to the Board. First, those experienced assessors of people have continued to believe such measures were necessary to ensure you did not again escape and resume criminal activity. Second, that you are likely to require extremely intense levels of supervision and guidance if released into the general community. The Board has considered not only the standard conditions of Parole Orders, but also whether there are any, or sufficient, conditions and resources reasonably available to meet those needs. The Board’s present position is that there are not.” (my underlining). [10] The Board reiterated the point it made summarised by me at paragraph [6](e). However, it noted that that accommodation was no longer available to the applicant, and referred to the absence of an acceptable residence in the community. The Parole Board described the applicant’s relapse prevention plan as “well crafted”. [11] The applicant did not respond to this letter. Before me, he said that he felt he had addressed all those concerns in his previous submission dated 19 February 2015. [12] The respondent rejected the application for parole on 21 July 2015 saying that the applicant would be an unacceptable risk to the community on parole. It gave reasons dated 4 August 2015 which are at pp91-99 of the exhibit bundle to Court Document 6. These reasons are very short. They note the applicant’s criminal history “demonstrates a -- 4 of 9 -- 5 pattern of violent and serious offences” and that a declaration to that effect had been made under the legislation. The Board said: “Although the Board accepted that the Applicant has not incurred a major breach of discipline since February 2005, it also noted that custodial managers at his correctional facility have found it necessary to ensure he remained under a high level of supervision in very secure accommodation over that period. The Board did not place as much weight on the applicants [sic] recent breach-free institutional behaviour as it would have, had he been accommodated for a period of time in a less secure environment where he would have been required to demonstrate the ability to behave in a satisfactory manner without the intensive supervision. The Board was concerned that it has been necessary to accommodate the Applicant is [sic] either the safety unit, detention unit or maximum security unit for substantial periods of his sentence. Even when not accommodated in these sections, he has still been held in high security sections of the centre. The Board noted and accepted that the experienced management of Queensland Corrective Services has believed it necessary to maintain the Applicants [sic] high security classification and accommodate him in very secure areas of the centre. This indicated to the Board that: (a) QCS continues to believe that such measures are necessary to ensure the Applicant did not again escape and resume criminal activities; and (b) The Applicant is likely to require intensive levels of supervision and guidance if released into the community on a parole order at this time. The Board decided that there are not currently any, or sufficient conditions and resources reasonably available to meet these needs of intensive supervision to ensure the safety of the community and the Applicants [sic] compliance with the parole order. The Board decided that consideration of the safety of the community must be given very high priority, particularly given the nature and extent of the Applicants [sic] offending, particularly noting the extent of the offences he committed whilst at large after his last escape from custody. Whilst the Board appreciated the Applicants [sic] well crafted relapse prevention plan, and the assertions he made about his future intentions, they felt these issues were outweighed by other factors detailed above.” (my underlining). Grounds of Review [13] The applicant relied on several grounds of review; two were associated: “Ground E In making the decision, the Board applied the Ministerial Guidelines so as to require the applicant to be classified as low security and demonstrate good institutional behaviour prior to parole being granted. In doing so, the Board failed to have regard to the merits of the application because the applicant -- 5 of 9 -- 6 will never be able to demonstrate good behaviour in a less secure environment. Therefore the making of the decision was an improper exercise of power. Ground F The Board failed to take into account a relevant consideration, namely, the parole board report completed by Queensland Corrective Services Staff, recommending the applicant for release on parole. The Board placed significant reliance on the decision by Queensland Corrective Services to keep the applicant accommodated within a secure area of the prison. In these circumstances, it is submitted it was necessary for the Board to consider the contents of the report by Queensland Corrective Services which recommended the applicant’s release on parole despite his being accommodated in the secure area of the prison.” [14] The applicant exhibited a notice to him from Queensland Corrective Services dated 2 November 2015. That notice was to the effect that his security classification was high. That notice reveals that Mr Abbott has been classified as “high security” since 9 August 2012, after a period of time in maximum security. It recites his history of escape and his history of committing violent offences while at large after escape and recites the fact that he is wanted in South Australia and Western Australia for serious violent offences and includes the paragraph: “Queensland Corrective Services has a policy position that states, prisoners who have been convicted of escape, attempting to or preparing to escape during the current period of imprisonment will not ordinarily be assigned a security classification lower than high security classification. Further, I note you have an outstanding arrest warrant for escape legal custody in Western Australia. Queensland Corrective Services has a policy position that states, in all but exceptional circumstances prisoners subject to extradition or deportation will not be classified lower than high security classification.” – Court Document 10, “BA34”. [15] The decision as to classification is not one for review before me. [16] The respondent had before it a 12 page parole review report from Queensland Corrective Services which recommended that the applicant be granted parole. This report dealt with the applicant’s behaviour whilst in jail in detail at pp146-148 of the exhibit bundle to Court Document 6. It shows that the applicant was classified as a maximum security prisoner on three occasions between May 1998 and May 2004; between May 2006 and June 2007, and between November 2008 to February 2010. The report noted that “prisoner Abbott remains a high security classification”. The report did not explain the reasons for any of these classifications. That is, it did not show that anyone thought them necessary because of Mr Abbott’s behaviour or anticipated behaviour. The report lists the current classification as a negative factor without any explanation. The report recommended that Mr Abbott’s parole application be granted – p153 of the exhibit bundle to Court Document 6. The General Manager of the Woodford Correctional Centre -- 6 of 9 -- 7 endorsed that recommendation for parole and made the comment that: “Prisoners [sic] institutional behaviour is satisfactory” – p153 of the exhibit bundle to Court Document 6. [17] The respondent had three prior parole review reports before it – ie. one from each of the three prior unsuccessful applications. No doubt they were relevant to the respondent’s considerations. In chronological order they can be summarised as follows: (a) The first report was dated 3 July 2008. It recommended against parole and reveals that, certainly as at July 2008, prison authorities were suspicious that the applicant would try to escape once again. The manager of the prison Mr Abbott was in at that stage said: “Prisoner Abbott is regularly moved between centres as he is believed to constitute a significant threat to the security and good order of any centre he is placed in. … Prisoner Abbott was relocated to Secure 2 on the 16th June 2008. Since this time case notes have reflect [sic] that the prisoner is compliant with Officer instructions and will soon be employed as a Unit worker. The prisoner continues to be subject to a management plan which restricts his movement within the centre. Prisoner Abbott has remained breach free for the last 12 months.” – p638 of the exhibit bundle to Court Document 6. (b) A report dated 20 July 2011 recommended against the granting of parole. It contains a very detailed assessment of Mr Abbott’s behaviour in prison saying that he was polite, compliant, co-operative and a positive influence on other prisoners – p158 of the exhibit bundle to Court Document 6. It contained a detailed description of 24 incidents and seven major breaches. “Incident” is a term used to describe something other than a breach. An incident need not involve fault by the prisoner, and it is clear that many of the reported incidents do not. It is nowhere stated in this very comprehensive report that the high security classification is imposed by Queensland Corrective Services is due to any perceived need to regulate or supervise Mr Abbott. It does not explain why the classification is made. It says: “Prisoner Abbott remains classified as a high security prisoner. Further, he presents with three previous maximum security episodes, and is currently accommodated in a detention unit under consecutive safety orders. Prisoner Abbott has remained breach free for an extended period of time, and demonstrates good institutional behaviour. Prisoner Abbott has however escaped from custody on two previous occasions. Prisoner Abbott has been convicted of offences committed in custody, including escapes, and further has been convicted of offences committed whilst at large from correctional institutions in both Queensland and Western Australia.” – pp530-531 of the exhibit bundle to Court Document 6. (c) A report dated 22 May 2012 recommended against parole. That report noted that: “Prisoner Abbott is currently a high security classification and accommodated at Brisbane Correctional Centre. The prisoner is being held in the detention -- 7 of 9 -- 8 unit on consecutive safety orders. … Prisoner Abbott has been under consecutive safety orders since transfer from the [maximum security unit] and is currently managed under a management plan.” – p385 of the exhibit bundle to Court Document 6. … “Recent case notes and reports indicate Prisoner Abbott is currently displaying positive institutional behaviour. Prison Behaviour Case reports indicate that prisoner Abbott is consistently polite and adheres to the conditions stipulated in his management plan. The prisoner maintains a high standard of personal hygiene and cell cleanliness. Prisoner Abbotts [sic] current daily routine is very limited whilst accommodated in the detention unit.” – pp387-388 of the exhibit bundle to Court Document 6. [18] As to Ground E (above), the applicant relied upon the decision of McMurdo J in McGrane v Queensland State Parole Board.4 McMurdo J there set aside the decision of the Parole Board because it did not take into account that it was almost impossible for that applicant to be reclassified to a low secure facility because of prison policies. [19] The only evidence before me was that it would be very difficult for Mr Abbott to be classified as anything other than high security – see [14] above. This was due to Queensland Corrective Services policy, rather than legislation as asserted by Mr Abbott in his submissions of 19 February 2015 – [8] above. I do not regard the inaccurate attribution by Mr Abbott (legislation rather than policy) as material. He was clearly alerting the respondent to the fact that, for reasons which had nothing to do with his actual behaviour, it was virtually impossible for him to be classified as anything other than high security – he was bringing to the Board’s attention that his classification was arbitrary, rather than based upon a real consideration of his circumstances. The Board did not consider that, and in that way Mr Abbott is correct in asserting that his case is analogous to the case which McMurdo J decided in McGrane. [20] But in my view, Mr Abbott’s case is much stronger than that made in the case of McGrane. Not only did the respondent not recognise that the high secure classification was likely the result of an arbitrary application of policy rather than real consideration, it concluded, without any evidence, that the contrary was the case. The underlined passages at [9] and [12] above show that the respondent acted on the basis that Mr Abbott’s security classification was the result of actual consideration of his circumstances. There was no such evidence before the respondent.5 [21] This error was particularly egregious in circumstances where the Board had material showing that Mr Abbott’s institutional behaviour had been commendable, at least from the beginning of 2007, if not from 2005, and that the Queensland Corrective Services recommended that he be released on parole. The reports to the Board by Queensland Corrective Services, above, make it highly likely that his continued classification as high security is as a result of the application of policy, rather than a genuine consideration of 4 [2010] QSC 209, [22]-[24]. 5 This was conceded by counsel appearing for the respondent on the hearing of the application. Notwithstanding that concession, I took particular care to read through the material and extract anything bearing upon this topic. The only material I could find is summarised at [16]-[17] of my reasons for decision above. -- 8 of 9 -- 9 his case. These reports are contradictory of the Board’s factual assumptions that Mr Abbott continues to need high supervision in jail and would continue to need high supervision out of jail. The assumptions, without evidence, that Mr Abbott needs supervision or regulation either in jail, or in the community, are very material to the decision of the Board. If they are false, it is very difficult to see that the Board’s decision is rational in a Wednesbury sense having regard to the very considerable history of commendable prison behaviour. [22] For those reasons, it seems to me that the application ought to succeed on what was advanced as Ground E and, on a separate ground, which is really a combination of the circumstances raised by Grounds E and F: that the Board acted without any evidence that Mr Abbott requires high supervision in jail or out of jail and is, and requires to be, classified as a high security prisoner. I view the second of these grounds as sufficiently raised by the material. Counsel for the Board made no objection to my exploring it at the hearing. [23] The decision of 21 July 2015 should be set aside. I will hear the parties as to the consequential orders which I ought to make. I find it very concerning that this Court and the Board are still dealing with an application for parole which is more than 18 months old. One solution may be for me to make directions setting a timetable so that the Board promptly reconsiders this application with up-to-date material. I will hear argument on those matters. -- 9 of 9 --