Baillie v Queensland Parole Board [2015] QSC 235

SUPREME COURT OF QUEENSLAND CITATION: Baillie v Queensland Parole Board [2015] QSC 235 PARTIES: NICOLA MARIA BAILLIE (applicant) v QUEENSLAND PAROLE BOARD (respondent) FILE NO/S: BS 3301 of 2015 DIVISION: Trial Division PROCEEDING: Application ORIGINATING COURT: Supreme Court at Brisbane DELIVERED ON: 17 August 2015 DELIVERED AT: Brisbane HEARING DATE: 10 August 2015 JUDGE: Douglas J ORDER: Application dismissed with costs CATCHWORDS: ADMINISTRATIVE LAW – JUDICIAL REVIEW – GROUNDS OF REVIEW – IRRELEVANT CONSIDERATIONS – where the applicant seeks a statutory order of review of the Parole Board’s decision to refuse parole – where the applicant was liable to be deported upon release from custody – whether the Board took this fact into account as an irrelevant consideration ADMINISTRATIVE LAW – JUDICIAL REVIEW – GROUNDS OF REVIEW – ERROR OF LAW – where the applicant seeks a statutory order of review of the Parole Board’s decision to refuse parole – where the applicant had not yet completed a substance abuse program – whether the Parole Board exercised a discretionary power in accordance with a rule or policy without regard to the merits ADMINISTRATIVE LAW – JUDICIAL REVIEW – GROUNDS OF REVIEW – OTHER CASES – where the Parole Board was under a statutory duty to decide the application within 180 or 210 days pursuant to s 193(3) of Corrective Services Act 2006 (Qld) – whether the Board should have deferred its decision until the applicant had completed her substance abuse program within custody Corrective Services Act 2006 (Qld), s 3(1) -- 1 of 8 -- 2 Calanca v Queensland Parole Board [2013] QSC 294, cited Sweeney v Queensland Parole Board [2011] QSC 223, cited COUNSEL: The applicant appeared on her own behalf M J Woodford for the respondent SOLICITORS: The applicant appeared on her own behalf GR Cooper, Crown Solicitor for the respondent [1] DOUGLAS J: This is an application for a statutory order of review of a decision of the Queensland Parole Board not to grant the applicant a parole order. Background facts [2] The applicant was sentenced to eight years imprisonment on 1 April 2014 on a charge of manslaughter. She was sentenced to a concurrent term of three years imprisonment on an associated charge of unlawful wounding. She had served 716 days in presentence custody between 15 April 2012 and 1 April 2014 which were declared to be time served in respect of the sentences imposed on her. The learned sentencing judge fixed her parole eligibility date as 1 December 2014. That does not give a right to release on parole but establishes the earliest date from which she may be granted parole. [3] Section 3(1) of the Corrective Services Act 2006 (Qld) (“the Act”) sets out the purpose of corrective services as community safety and crime prevention through humane containment, supervision and rehabilitation of offenders. The relevant authorities establish that the respondent has a broad discretion in deciding whether to grant or refuse an application, focussing on the twin purposes of community safety and crime prevention and the three equally important ways of achieving those purposes; containment, supervision and rehabilitation.1 In Calanca v Queensland Parole Board,2 Margaret Wilson J said: “A parole board has to assess what effect a prisoner’s release on parole would have on community safety and crime prevention, both at the time of his release and in the future. Rehabilitation of an offender is a means of obtaining community safety and crime prevention. The extent of a prisoner’s progress towards rehabilitation whilst in custody may be some indication of how he will perform if released on parole.” [4] The applicant’s full time release date is 14 April 2020. She lodged her application for parole on 16 June 2014. It was first considered by the Board on 5 September 2014 when it deferred its decision because it was awaiting further information. On 17 October 2014, the Board reached a preliminary view that the applicant was an unacceptable risk for release on parole at that time and did not grant an order for parole to her. 1 See Sweeney v Queensland Parole Board [2011] QSC 223 at [57]-[58]. 2 [2013] QSC 294 at [33]. -- 2 of 8 -- 3 [5] On 28 October 2014, she was notified of the Board’s preliminary view and invited to make submissions. Among other things the Board referred to her involvement in an assault on another prisoner on 15 September 2014 and noted the connection between her substance abuse problems and the circumstances of the offence for which she was in prison. It pointed out that she had been recommended to participate in the “Getting SMART: Moderate Intensity Substance Abuse Program”, or its equivalent and noted further that she had not yet had the opportunity to do that. It pointed out that it had a statutory obligation to decide her application within a certain timeframe, 180 days, pursuant to s 193(3)(b) of the Act. There was also the possibility of an extension by a further 30 days where a decision has been deferred pending the obtaining of further information. [6] The Board requested further submissions from her which it received by 8 December 2014. Those submissions referred to the assault that she had been involved in on 15 September 2014 and the availability of rehabilitation programs in jail and in the community. The applicant also made a further written submission on 3 December 2014 which included submissions concerning a notification she had received that she was going to be deported to New Zealand, where she had lived until she was about 21 years old. [7] The Board further considered her application on 12 December 2014 and decided not to grant a parole order. After it received a request for reasons, it supplied them on 3 February 2015. The significant paragraphs of the Board’s reasons are as follows: “3. The Board noted that the offence involved the Applicant stabbing her partner after being heavily intoxicated by alcohol and prescribed drugs. The Board noted the Sentencing comments which indicate that the Applicant had no intention to kill her partner and that she has demonstrated genuine remorse regarding the offence. In addition, the Applicant fully co-operated with the police regarding the offence. 4. The Applicant has a breach and incident history recorded during this period of incarceration. These breaches include acts of physical violence against another prisoner as well as a generally poor attitude when dealing with correctional officers. The Board accepted the breach history set out in the Parole Board Report dated 25 August 2014 as an accurate summary of the Applicant’s breach/incident history. This breach history gave the Board cause for concern as it indicated to the Board that even in a highly structured environment, the Applicant was unable to control her behaviour and comply with directions given by Prison Management and Corrective Services officers. This led the Board to have concerns about how the Applicant would be able to cope in the community without the constant supervision that incarceration provides. The Board was concerned that the Applicant would be a greater risk of re-offending and pose an unacceptable risk to community safety if released into the community at this time. 5. The Applicant was identified by the Department of Corrective Services as someone who would benefit from completing the Getting SMART: Moderate Intensity Substance Abuse Program or its equivalent. The Applicant has applied for a place on the Low Intensity Substance Abuse program whilst incarcerated, and is currently in process of completing -- 3 of 8 -- 4 this program. The Board gave favourable consideration to the fact that the Applicant undertaking the Low Intensity Substance Abuse Program, however considers that the benefits of completing the this program whilst in custody will assist the Applicant in her understanding of the reasons for her offending behaviour in the past and assist in developing strategies to prevent such offending recurring when released. It is not a requirement that prisoners must complete treatment programs before being eligible for release on Parole however in this case, the Board has determined it would be assisted in determining the potential risk to the community if the Applicant were to be released, by the Applicant completing those programs identified by the Department. The Board has further considered whether it would be possible and/or appropriate for the Applicant to complete her outstanding programs in the Community. The Board has determined that in this case, considering the Applicant’s application for parole as a whole, and having particular regard to the severity of the offences for which the Applicant is incarcerated, as well as the documented problematic substance abuse history and breach and incident history in custody involving violence, the Applicant would not be an appropriate candidate at this time for community based program participation. 6. The Board consented to the Applicant reapplying for parole six months from the date of its refusal decision. Grounds for review [8] The applicant acted for herself. Her application indicates that the grounds are “denial of natural justice and procedural fairness”. Her affidavit in support also argues that the respondent did not act “lawfully in the accepted standard of discretionary power” when considering her application. She also provided further and better particulars of her application which, according to the respondent, appeared to raise the following grounds: “• The board took into account an irrelevant consideration, namely, the applicant’s immigration status; • The Board exercised its discretionary power in accordance with a rule or policy without regard to the merits of the particular case; • The Board acted unreasonably by deferring to make its decision until after the applicant had completed an intervention program; • The Board failed to take into account a relevant consideration, namely, clause 2.1 of the Ministerial Guidelines to the Queensland Parole Board issued on 23 August 2012 under s.227(1) of the CSA (‘the Ministerial Guidelines’), in its entirety; and • The Board made an error of law in terms of its interpretation of clause 1.2 of the Ministerial Guidelines.” -- 4 of 8 -- 5 [9] Those categories at least provided the basis for the submissions made by the respondent and no objection was made by the applicant to those characterisations of her grounds for her application. Immigration status [10] There is no indication in the reasons that the Board took into account the fact that the applicant was liable to be deported upon release from custody. It did say that it had regard to the Ministerial Guidelines in making its decision and cl 5.3 of those guidelines provides: “If a prisoner applying for a parole order is likely to be deported, the Board should be aware that some forms of release may result in the prisoner being immediately taken into immigration custody or removed from Australia. Before making such an order, the Board should ensure that the Department of Immigration and Multicultural Affairs is contacted to confirm its intentions regarding the prisoner’s release.” [11] The Board had received correspondence from the Department of Immigration and Border Protection on 15 August 2010 indicating that the applicant was liable for visa cancellation as a result of her criminal record. That information was also included in a report to the Parole Board dated 24 August 2014. [12] On 1 December 2014, that Department wrote to the Board indicating that the Minister had cancelled the applicant’s visa on 28 November 2014 so that she was to be taken into immigration detention following her release from criminal custody pending her removal from Australia. That information simply reveals that the Board received information concerning her immigration status and corresponded with the relevant department on that issue, as it was required to do in accordance with cl 5.3 of the Ministerial Guidelines. The applicant’s immigration status does not otherwise feature in the findings on material questions of fact in the statement of reasons and does not suggest that the Board took that information into account as an irrelevant consideration related to its decision. This argument does not establish a ground for intervention. Completion of programs as a rule or policy [13] The argument that the Board exercised its discretionary power in accordance with a rule or policy without full and proper consideration of the merits, does not stand up to scrutiny. It is clear that the Board’s view that the applicant should complete a treatment program before being eligible for release on parole was one it arrived at by considering the facts of that particular case; see para 5 of the Board’s reasons. It had regard to the Ministerial Guidelines when reaching its decision, but that was something appropriate. Relevant passages of the Ministerial Guidelines required that care should be taken to ensure that decisions are made with regard to the merits of the particular prisoner’s case and that the Board should give the highest priority to the safety of the community when considering applications for parole. -- 5 of 8 -- 6 [14] The Board is also required to have regard to all relevant factors, including the prisoner’s progress in addressing recommended rehabilitation programs or interventions; see para 2.1 of the Ministerial Guidelines. In the Parole Board report dated 22 August 2014, the applicant’s longstanding substance abuse problems were identified in the context of the recommendation for her completion of the low intensity substance abuse program before release from custody. That program was not available when the Board received correspondence on 17 September 2014 until a wait list for the course had at least eight participants. It could be undertaken in the community, as the applicant pointed out in her submission of 23 November 2014 to the Board. She said then that she was willing to do programs in the community. [15] The passage from the Board’s reasons I have extracted earlier set out how the Board dealt with that issue in para 5 of the reasons. It reached the view that it would be beneficial for her to complete the program while in custody. It pointed out, also, that it was not a requirement that prisoners must complete programs before being eligible for release on parole but decided that in this case the Board would be assisted in determining potential risk to the community if the applicant were to be released by her completing those programs. It also took into account the severity of the offences for which she had been imprisoned, as well as her substance abuse history, breach and incident history in custody involving violence, and decided that she would not be an appropriate candidate then for community based program participation. [16] Those were issues appropriate to be addressed by the Board relevant to their decision whether to grant the applicant parole or not. There is no ground for interfering with the respondent’s exercise of its discretion in this regard shown on the material before me. Clause 2.1 of the Ministerial Guidelines [17] The respondent interpreted the application, in this context, to be related to para 2.1(h) and para 2.1(j) of the guidelines which require the Board to have regard to all relevant factors, including: “(h) whether the prisoner has access to supports or services that may reduce the risk the prisoner presents to the community; … (j) recommended rehabilitation programs or interventions and the prisoner’s progress in addressing the recommendations.” [18] The manner in which the respondent dealt with those issues is set out in the passage from its reasons I have already extracted. It seems likely that there was no issue concerning the supports or services available in the community but there was an issue about her completion of the recommended rehabilitation programs before she was granted parole which the Board clearly took into account. It was a matter for the Board and there is nothing to indicate on the evidence available that it exercised its discretion in making a decision on this issue improperly. -- 6 of 8 -- 7 Clause 1.2 of the Ministerial Guidelines [19] Clause 1.2 of the guidelines provides: “1.2 When considering whether a prisoner should be granted a parole order, the highest priority for the Queensland Parole Board (‘the Board’) should always be the safety of the community.” [20] The Board took those guidelines into account when reaching its decision and specifically noted that it was concerned that the applicant would be a greater risk of reoffending and posing an unacceptable risk to the community if released into the community at this time. It was clearly concerned about her outstanding treatment needs and the recent history when she was in custody involving a dispute between her and another prisoner. When it took into account also the nature of her convictions and the factors contributing to her offending behaviour, which included abuse of prescription drugs and alcohol, there is no doubt in my mind that the Board was justified in reaching the conclusion it did that the applicant remained an unacceptable risk to the community at that stage. Denial of procedural fairness and natural justice and the use of inaccurate and outdated information [21] The applicant did not identify any specific matter in her submissions suggesting she had been denied procedural fairness or natural justice. She was given an opportunity to comment at each stage through the process and to make relevant submissions. There is no material to support a finding of a lack of procedural fairness. Other matters [22] The applicant also argued orally that the respondent should have adjourned her request for parole to permit her to complete the course she was then undertaking. Mr Woodford submitted, in respect of that, that the Board was under a statutory duty to decide the application within 180 or 210 days pursuant to s 193(3) of the Act. [23] Even if the Board could have deferred its decision until the applicant had completed her course within custody, it seems unlikely that they would have been in a position to receive a report about her performance and consider the decision within the statutory maximum period of 210 days. In the circumstances, that does not seem to me to be a reason why the application for statutory review should succeed. [24] The applicant also relied on the submission that the reliance by the Board on her becoming involved in a fight was unreasonable but did not establish to my satisfaction that its reliance on that issue was so unreasonable that no Board properly constituted could have taken it into account. Indeed, it seemed to me to be a significant matter viewed against the applicant’s history arising out of the offences for which she was charged and her longer history of problems associated with substance abuse. -- 7 of 8 -- 8 Conclusion [25] Therefore, after hearing the parties as to costs, I order that the application for a statutory order of review be dismissed with costs. -- 8 of 8 --