Boothby v Queensland Parole Board [2012] QSC 135

SUPREME COURT OF QUEENSLAND CITATION: Boothby v Queensland Parole Board [2012] QSC 135 PARTIES: GARY ROBERT BOOTHBY (Applicant) v QUEENSLAND PAROLE BOARD (Respondent) FILE NO/S: BS 3059 of 2012 DIVISION: Trial Division PROCEEDING: Application for Judicial Review ORIGINATING COURT: Supreme Court DELIVERED ON: 29 May 2012 DELIVERED AT: Brisbane HEARING DATE: 18 May 2012 JUDGE: McMurdo J ORDER: The application be dismissed CATCHWORDS: ADMINISTRATIVE LAW – JUDICIAL REVIEW – REVIEWABLE DECISIONS AND CONDUCT – REVIEW OF PARTICULAR DECISIONS – where the applicant was granted parole conditional upon the respondent‟s approval of his proposed place of residence – where the applicant‟s proposed place of residence was not approved – where the applicant applied for review of the respondent‟s decision - whether the respondent made a reviewable error in its decision ADMINISTRATIVE LAW – JUDICIAL REVIEW – GROUNDS OF REVIEW – UNREASONABLENESS – where the applicant claimed that the respondent‟s decision not to approve his proposed residential premises was unreasonable - whether the respondent‟s decision was so unreasonable so as to require a review of the decision Judicial Review Act 1991 (Qld), s 4, s 32, s 48 Attorney-General v Brown [2012] QSC 68, considered Gough v Southern Queensland Regional Parole Board [2008] QSC 222, considered Griffith University v Tang (2005) 221 CLR 99, cited COUNSEL: Mr Boothby appearing on own behalf -- 1 of 5 -- 2 A D Scott for the respondent SOLICITORS: Crown Law for the respondent [1] On 14 March 2012, the respondent decided that the applicant be granted parole subject to a number of conditions. One of those was that he reside at the Ozcare facility at South Brisbane and participate in a program at that place for a minimum of 12 weeks and not change his place of residence without the approval of an authorised probation and parole officer. Another was that after completing that program, he reside at a place approved by a parole officer. The applicant seeks to challenge that decision, in order to live with his wife in a residence which she rents on the Sunshine Coast. Prior to granting him parole, the Board had informed the applicant that it considered those premises (“the subject premises”) as unsuitable in his case. [2] In September 2008, the applicant was found guilty by a jury of the rape and indecent treatment of a nine year old girl. He was sentenced to a term of eight years imprisonment which, allowing for presentence custody, resulted in a full time release date of 26 October 2015. He unsuccessfully challenged his conviction and sentence. [3] In May 2011, he applied for parole. It appears that the Board received a completed application in July 2011. The Board deferred its decision pending the provision of a psychiatric assessment of the applicant. That was provided on 10 October 2011, about two weeks before his parole eligibility date. The psychiatrist wrote that the applicant was at risk of committing sexual offences against children, particularly a child in the same residence. Other than perhaps that, the psychiatrist made no particular comment as to where he should live if granted parole. [4] On 13 December 2011, the Board wrote to the applicant, informing him that it was deferring its decision pending the provision of a home assessment report and asking him to provide the details of a suitable address for assessment. In his application for parole, he had nominated the Ozcare address as that to which he would be released. But it seems that at that stage, Ozcare had not agreed to the applicant‟s participation in its program. For that reason the Ozcare premises were assessed as unsuitable in a report from a probation and parole officer dated 20 December 2011. [5] The applicant, through an agent Mr Nesbitt, then requested an assessment of the subject premises. Mr Nesbitt is or is associated with the landlord of these premises. [6] On 10 January 2012, probation and parole officers assessed the subject premises as unsuitable. They expressed concerns about the following matters: “Areas of concern raised include: • The residence is within close proximity to a local school, which upon review of Google Maps effectively backs onto the road between the properties; -- 2 of 5 -- 3 • Access to the property is gained through a security gate with cameras requiring the occupants to allow access via an intercom system. Further, the cottage is unable to be viewed from the street as it is obstructed by trees. The property is not easily accessible without being given permission to enter and as such this will make it difficult to undertake effective surveillance operations/environmental scans; • The resident maintains the applicant‟s stance of innocence, which raises concerns about the residents vigilance to the applicant‟s movements and behaviour, and the applicant not yet having addressed the sexual offending behaviour through specialised programs in custody; • Numerous issues (as stated above in the Community Considerations) have been raised at the proposed residence in recent months with other offenders, which clearly indicates there is a conflict of interest having an applicant live with a representative who is acting on their behalf.” (It appears that the „representative‟ there referred to was Mr Nesbitt.) [7] On 27 January 2012, the Board wrote to the applicant informing him that the subject premises had been assessed as unsuitable. At the same time, it advised that it would reconsider his being released to the Ozcare facility but that would require him to provide further information to Ozcare. Alternatively, he could provide another address which could be assessed. [8] By a letter received on 27 January 2012, the applicant requested a Statement of Reasons, pursuant to s 32(1) of the Judicial Review Act 1991 (Qld) (“the JRA”) for what was said to be the Board‟s decision “not to approve my intended address …”. On 1 February, the Board replied to the effect that this was not a decision for which it was required to provide a Statement of Reasons under the JRA. [9] On 3 February, the Board received a letter from the applicant making a number of submissions as to the subject premises. He wrote that they were not so close to a school and that the maps relied upon by the Board gave a misleading impression in that respect. He wrote that his wife had become bound by the lease and had obtained employment in the area. They were unable to afford in effect two residences and if he could not live with her in the subject premises, there would be the difficulty of long periods of travel making it difficult for them to spend time together quite apart from the financial hardship. He wrote that these premises had been approved by the Board on a number of other occasions for other prisoners. He also identified the prospect of employment for him close to the premises. [10] On 6 February, the applicant supplied Ozcare with the information which it required. -- 3 of 5 -- 4 [11] On 8 February, certain alternative premises at the Sunshine Coast were the subject of a report by Queensland Corrective Services and those premises were also considered unsuitable. [12] On 15 February, the Board received a further letter from the applicant making submissions as to the subject premises. He wrote that the landlord also owned vacant land next door and had given his permission for Corrective Services officers to use that land for the purposes of surveillance. He made a number of other points in response to the concerns for which the Board had expressed. [13] On 21 February, Corrective Services officers advised that the coordinator of Ozcare had approved the applicant‟s participation in its program, making the Ozcare premises suitable premises for his release. [14] On the following day, the Board wrote to the applicant, saying that it had decided not to vary its previous decision that the subject premises were unsuitable. [15] What next followed was the Board‟s letter of 14 March 2012, advising that at its meeting of 9 March, it had decided to grant the applicant‟s release on parole, upon the basis that he participate in the Ozcare Supported Parole Program. As already noted, there were specified conditions of his parole that he participate in that program for a minimum of 12 weeks and that upon completion of this period at Ozcare, the applicant would live where approved by his parole officer. [16] The applicant was released and went to the Ozcare facility where he now lives. He will complete the program shortly but no alternative premises have been approved for him. On 2 April, he filed this application, for review of what was described as the Board‟s decision not to approve his proposed accommodation. [17] At the hearing, the Board moved to strike it out pursuant to s 48 of the JRA, arguing that the decision which was challenged by the applicant was not a “decision … made under an enactment” within the meaning of s 4 of the JRA. The Board treated this as a challenge to what was communicated in its letter of 27 January 2012. I would accept that the Board‟s statement of its opinion, as it then set out in its letter of 27 January, was not a reviewable decision, at least because it did not of itself confer, alter or otherwise affect legal rights or obligations.1 However, this application did not specifically identify the decision as that communicated in the letter of 27 January and arguably, it seeks to impugn the Board‟s decision to impose as a condition of his parole that he reside at the Ozcare facility. The Board‟s decision to grant parole but upon certain conditions is a reviewable decision. Accordingly, I was not persuaded to dismiss the application upon this threshold argument. [18] I turn then to the arguments made by the applicant in writing and at the hearing. The submissions made extensive reference to two decisions in this Court, being 1 Griffith University v Tang (2005) 221 CLR 99 at 130 [89] per Gummow, Callinan and Heydon JJ. -- 4 of 5 -- 5 Attorney-General v Brown2 and Gough v Southern Queensland Regional Parole Board.3 Each of those cases was put forward as relevant here because it involved an issue as to what residential accommodation should be approved for a recently released prisoner. But neither demonstrates that in the facts and circumstances of the present case, there was some reviewable error. [19] In his outline of submissions, the applicant submitted that the Board had exercised its power according to a rule or policy, without full and proper consideration of the merits of the application. But there is no factual basis for that submission. Rather, the Board has considered the particular facts of the subject premises and why the subject premises were of concern to it. [20] Next is submitted that the Board‟s decision was unreasonable. It was argued that this residential condition will have a profound impact upon the applicant‟s reintegration into the community. This is because of the difficulties which the applicant will have in not living with his wife or close to his work. Since his release he has secured employment on the Sunshine Coast. He must spend several hours a day travelling to and from work. Plainly it is conducive to his rehabilitation that he be employed and in the stable relationship of his marriage. Those considerations provide a strong case, upon the merits, for his being given permission by his parole officer to live at the subject premises once he has completed the Ozcare course. But it cannot be said that the Board‟s conclusion that he should not live there was unreasonable in the Wednesbury sense. The Board had the advice of the parole officers, which identified a number of areas of concern about these premises. In proceedings of this kind it is not open to the Court to review the merits of the Board‟s assessment of the premises and of the relevant circumstances as set out in its correspondence. [21] Understandably, the applicant is concerned about where he will be allowed to live once he has completed the Ozcare program. The Board has left that for the consideration of the parole officer. There is no condition of his parole that he not reside at the subject premises once that program has been completed. The parole officer is likely to be affected by the assessment of the premises as unsuitable, by that report to the Board in January. However, the parole officer would have to consider the question of his residence having regard to the applicant‟s present circumstances, not the least of which is that he has secured employment close to the subject premises. But they are matters for consideration by the parole officer and the Court has no role in the present proceedings in directing the parole officer in that respect. [22] The result is that the application must be dismissed. 2 [2012] QSC 68. 3 [2008] QSC 222. -- 5 of 5 --