DAR v The Queensland Parole Board [2009] QSC 399

SUPREME COURT OF QUEENSLAND CITATION: DAR v The Queensland Parole Board [2009] QSC 399 PARTIES: DAR (applicant) AND THE QUEENSLAND PAROLE BOARD (respondent) FILE NO/S: BS9094 of 2009 DIVISION: Trial PROCEEDING: Application ORIGINATING COURT: Supreme Court at Brisbane DELIVERED ON: 10 December 2009 DELIVERED AT: Brisbane HEARING DATE: 28 October 2009 JUDGE: Atkinson J ORDER: The application for a statutory order of review is dismissed CATCHWORDS: ADMINISTRATIVE LAW – JUDICIAL REVIEW – GROUNDS OF REVIEW – APPLYING POLICY AND MERITS OF CASE – where applicant sentenced to twelve years imprisonment for a number of sexual offences – where applicant made an application for statutory order of review of a decision made by the respondent to refuse him a request to be released on a parole order – where applicant argued that the respondent acted in accordance with a policy to refuse parole because he was a sex offender and had not completed a recommended program – whether respondent made its decision based on a policy without regard to the merits of the case ADMINISTRATIVE LAW – JUDICIAL REVIEW – GROUNDS OF REVIEW – IRRELEVANT CONSIDERATIONS – where applicant argued that the respondent took into account irrelevant considerations in making its decision to refuse a parole order – where applicant argued that the respondent took into consideration his criminal history – where applicant argued that respondent took into consideration that he had not completed a sex offenders’ course – where respondent relied on material provided by the Department – whether the respondent made -- 1 of 21 -- 2 its decision based on irrelevant considerations Corrective Services Act 2006 (Qld), s 216, s 227(1) Judicial Review Act 1991 (Qld), s 20(2)(e), s 23(a), s 23(f) Attorney-General for the State of Queensland v Bielefeld [2009] QSC 352, cited Green v Daniels (1977) 13 ALR 1; [1977] HCA 18, considered Re Drake (No. 2) (1979) 2 ALD 634, considered Wiskar v Queensland Corrective Services Commission [1998] QSC 279, considered COUNSEL: Applicant appeared on his own behalf K Mellifont for the respondent SOLICITORS: Applicant appeared on his own behalf GR Cooper Crown Solicitor for the respondent [1] The applicant filed an application for a statutory order of review on 19 August 2009. By the time the matter came on for hearing in applications on 28 October 2009, he sought to rely upon an application in rather different terms. The respondent took no objection to that course and that will be the application considered by the court. [2] The applicant seeks to have a decision made by the Queensland Parole Board (the “Board”) on 8 May 2009 declining to grant the applicant’s request to be released on a parole order set aside. The applicant requested a statement of reasons from the Board for its decision and that statement of reasons dated 21 July 2009 was before the court. The applicant also put various other documents before the court. Only those that came into existence before the decision under review can be relevant to his application. [3] The applicant is in prison because he was sentenced on 25 June 2004 in relation to a number of sexual offences to which he pleaded guilty. The offending occurred against a number of children between 1992 and 2002. He was sentenced on a 15 count indictment. On each of counts 1 (maintaining a sexual relationship with a child under 16 with circumstances of aggravation), counts 2 and 3 (rape), and count 4 (unlawful anal intercourse with circumstances of aggravation), he received a sentence of 12 years imprisonment. On each of counts 5, 6, 8, 9, 10, 11, 12, 13 and 15 (indecent treatment of children under 16 with circumstances of aggravation) and count 14 (attempted sodomy with a circumstance of aggravation), he was sentenced to five years imprisonment. On count 7 (assault occasioning bodily harm with a circumstance of aggravation), he was sentenced to three years imprisonment. He was also sentenced to five years imprisonment on each of three counts on a further indictment which charged him with attempted rape, indecent treatment of a child under 12 and indecent treatment of a child under 12 under care. All terms of imprisonment were to be served concurrently. [4] A period of 539 days spent in pre-sentence custody from 10 December 2002 was declared to be time served under the sentences of imprisonment. The applicant was also ordered, as part of the sentence, to report his address to the officer in charge of police at Roma Street within 48 hours of being released from custody and thereafter, -- 2 of 21 -- 3 for a period of 20 years, report any change of address within 48 hours of the change taking place to the officer in charge of police at Roma Street or at another place approved by the Commissioner of Police. [5] The offences spanned a period of more than 10 years from 24 May 1992 to 23 November 2002 and involved offending against a number of children: (a) The first victim was the daughter of the applicant’s then de facto partner. She was aged between 4 and 6 years at the time. There were acts of sexual intercourse on at least ten occasions and the applicant threatened that he could cause harm to her mother or sister to keep his conduct a secret. (b) Another victim was the applicant’s niece. He placed his penis inside her vagina and exposed his penis to her. When she was seven to eight years of age, he rubbed his hands over her body and the child thought the tip of his finger may have penetrated her vagina. (c) Another victim was a friend of one of the children. This involved brief touching on the outside side of her clothes in the vaginal area. (d) Another victim was the sister of a subsequent de facto partner of the applicant. When she was aged 8, the offending involved grabbing her around the waist and trying to touch her vagina and stroking her vagina on the outside of her clothes. When she was aged 10 or 11, the applicant put his hand inside her clothes and played with her vagina. He also grabbed the child’s head and tried to force her down on to his penis. When the child was 11 years, the applicant tried to put his penis into the child’s anus; (e) Another victim was the applicant’s biological son. When the child was of kindergarten age, he penetrated the child’s anus, asked the child to suck his penis and indecently dealt with him. The child’s anus had scarring from penetration. This child was also assaulted by striking him with the butt end of a shotgun when he resisted the applicant. Application for parole [6] The applicant applied for parole on 2 September 2008. Attached to his application for parole were submissions covering various topics: family background, his dependants and children, comment about his past and present relationships with his partner and family and friends, previous employment history, level of education reached, his criminal background and offences including circumstances which led to his current imprisonment and whether or not he had previously had a community based order. The submissions also dealt with his prison history including his place and length of time in present prison employment, other prison employment, positions of responsibility in prison, whether or not he had been convicted of any offences or breaches whilst in custody and steps he had taken to correct his behaviour which led to his offending. The submission also dealt with his release plans including where he proposed to live upon his transfer to community corrections, whether he had any employment to go to and any other reasons that he believed the Board should consider. [7] The applicant also included a letter from a psychologist who was prepared to provide post-release counselling. He provided a relapse prevention plan. He also -- 3 of 21 -- 4 provided a letter of support from a community organisation who offered to assist him after his release. He provided a certificate of completion of having participated in the Getting Smart program which is a moderate intensity substance abuse treatment program. That program was completed on 20 May 2008. [8] On 26 November 2008 the respondent wrote to the applicant telling him that at its meeting on 21 November 2008 it had decided to request further information to assist in the determination of his case in particular receipt of his “Getting Started; Preparatory Program for Sexual Offending” exit report/completion summary (“completion report’). It said that his application would be further considered on receipt of that information. It also invited him to provide a further application for parole. That application was provided on 9 December 2008. [9] The completion report dated 1 December 2008 was provided to the respondent on 9 December 2008. The completion report assessed his re-offending risk level as moderate to high. On the STABLE – 2000 assessment, which concerned his intervention needs, the applicant’s score was high. Based on these assessments, the completion report said that he was identified as being a suitable subject for case- conferencing on completion of the Getting Started program. Based on the applicant’s participation in the Getting Started program, the facilitators considered that he could successfully be treated in the “MISOP” program and did not require more intensive intervention. The MISOP program is the Medium Intensity Sexual Offenders Program. The completion report also made recommendations as to conditions that would be desirable if he were released back into the community on a parole order prior to completing an intensive therapeutic program. [10] On 19 December 2008 the respondent Board considered the application for parole and formed the view that the material considered by it contained a number of positive factors supportive of his application but that there were also factors working against his application being successful. The Board had not yet made a final decision. It therefore wrote to the applicant on 20 January 2009 drawing his attention to factors which suggested to the Board that he would pose an unacceptable risk to the community and providing him with an opportunity to comment on those or present the Board with further relevant information. Enclosed with that letter were the documents that the Board had before it at its meeting and which the members of the Board considered. The applicant was told in that letter that the Board took into account Ministerial Guidelines and in particular that the community’s safety must be the highest priority. However the Board said that it ensured that his application was considered on its own merits. [11] The Board identified a number of matters which caused it concern that if he were released he would pose an unacceptable risk to the community. They were in summary: • that he had outstanding program recommendations to address his criminogenic needs, in particular the MISOP and also further substance abuse programs; • evidence of a strong denial towards his offending behaviour and lack of insight into the reasons for offending; • evidence of a lack of victim empathy; -- 4 of 21 -- 5 • inability to identify strategies during his panel interview to avoid reoffending; and • that by an assessment carried out in July 2008 he was placed in the moderate-high risk category for long term risk of sexual and violent recidivism. [12] He was invited to make a written submission to the Board as to why his application for parole order should be granted. [13] On 24 February 2009 the respondent received the applicant’s submission in support of his application for parole in response to the Board’s letter of 20 January 2009. In that response he corrected a statement made by the Board in its letter of 20 January 2009 that he had been sentenced after a full trial with evidence put forward and fully ventilated in court. In his response he said: “I had no trial, I plead guiltily [sic] after the committal hearing, after realising how traumatic the committal process was for my victims to go through.” [14] He enclosed further material in support of his application including a request by him to Queensland Corrective Services (“QCS”) dated 18 December 2007 which asked when he would be doing the MISOP. On 4 January 2008 the response from QCS was: “I acknowledge your evident motivation to address your offending behaviour. Assessment for and placement on a sexual offending program is prioritised by parole eligibility date and also by proximity to full time release date. The waitlist for assessment is dynamic, and changes as offenders enter and exist the system. You will be assessed with due consideration of your 2 January 2009 parole eligibility date and in an equitable process inclusive of other similarly placed offenders. Queensland Corrective Services is mindful of its responsibility to ensure offenders’ program requirements are completed, as far as practicable, prior to their parole eligibility dates.” [15] The applicant also enclosed a request dated 3 February 2008 to be placed on the “appropriate course to suit my offence needs”; and the response to him by QCS on 4 March 2008 which was that he was recommended to engage in a specialised assessment for sexual offending intervention, that priority for this assessment occurred from a state-wide waiting list and was based on parole eligibility and fulltime release dates; and that he was in the priority range and would be assessed shortly. He was not given a precise date. [16] On 11 July 2008 the applicant was advised that he had been assessed on 11 June 2008 for suitability to participate in a sexual offending program and as a result it was recommended that he was suitable to participate in the “Getting Started: Preparatory Program”. He was told that he had been placed on a priority wait list for program allocation in view of his parole eligibility date. [17] The internal QCS memo about this assessment recommended his suitability to participate in the Getting Started program after which a case conference would be -- 5 of 21 -- 6 held to ascertain the most suitable intensive program which best met his needs. This memo was part of the material considered by the Board. [18] The completion report shows that he commenced the Getting Started preparatory program on 24 September 2008 and completed it on 12 November 2008. He had not, however, undertaken any further, more intensive program. [19] On 31 March 2009 the respondent wrote to the applicant saying it had considered his application at its meeting on 20 March 2009 and had requested further information in relation to programs to assist it in the determination of his case and invited him to provide a further application for parole. The Board sent a request to the general manager of the prison where the applicant is an inmate asking when the applicant would be wait listed for the MISOP program or would commence the MISOP program with certainty. Refusal of parole [20] On 8 May 2009 the Board considered the parole application and noted that he was offered a place in the high intensity sexual offender program (HISOP) on 6 February 2009 and had declined participation in this program. The respondent said it believed his risk level was such that he would have to do the program inside the prison rather than in the community. The respondent said that his application for parole had been declined as he would be an unacceptable risk to the community on a parole order. The applicant then asked for a statement of reasons, which was provided on 21 July 2009. [21] The statement of reasons refers to a summary of the history of the parole application as had already been referred to in these reasons. The statement of reasons then lists the material considered by the Board. With regard to its decision making process the Board said it took into account the Ministerial Guidelines about the policies to be followed by a parole board. Those guidelines provide that the Board should give the highest priority to the safety of the community. However the Board said in its reasons that it independently exercised its discretion and ensured that his application was considered on its own merits without any inflexible application of policy. [22] The reasons then set out 25 findings of fact on which the decision was based. They were: “1. Section 187 of the Corrective Services Act 2006 authorises the Board to hear and decide applications for parole orders from a prisoner serving a period of imprisonment of 8 or more years. 2. Your application for a parole order was received by the Board on 5 September 2008. Within your submission you provided detail of your family background, past and present relationships, the circumstances that led to your current imprisonment, as well as details of your vocational and educational training whilst in prison. You advised the Board that you proposed to reside at OzCare Supported Parole program, that you had completed the Getting Started Preparatory program and that you were willing to participate in sexual offending treatment programs in the community. You also provided a Relapse Prevention Plan. -- 6 of 21 -- 7 3. The Board received confirmation that you have been approved for participation in the OzCare Supported parole program. 4. The Board considered your application for a parole order in its meeting of 19 December 2008 and advised you by way of a letter dated 20 January 2009 that certain factors indicated that if released you would pose an unacceptable risk to the community. You were given copies of the documents considered by the Board and detail of those factors adverse to your application as well as 14 days in which to make further submissions before the Board came to a final decision. 5. You have a prior criminal history recorded in New South Wales and Queensland for offences including resist police, obscene language, behave in a disorderly manner, attempted stealing, stealing, breach probation order, obstruct police, breach fine option order, behave in a disorderly manner, possessing dangerous drugs, possess utensils or pipes and possession of a knife in a public place. Offences are recorded as being committed between 1993 and 2002. 6. You have been subject to previous community based supervision. On 07 November 1991 you appeared in the Magistrates Court of New South Wales, where you were convicted of Cultivating drugs. You were released to the supervision of a Probation Order for a period of 24 months. Records indicate that you completed this order, after court action was finalised and that upon completion of this order you were considered as suitable for further community based orders. 7. On 06 December 1993 you appeared in the Magistrates Court of Wynnum, where you were convicted of Stealing – other. You were released to the supervision of a Probation Order for a period of 12 months until this order was revoked. On 4 July 1994 you appeared in the Magistrates Court of Wynnum, where you were dealt with for breach of Probation. You were ordered to complete 150 hours of unpaid community service which you successfully completed without contravention. You have been subject to numerous Fine Option Orders between 1995 and 2001. 8. You are currently serving a period of imprisonment of 12 years in relation to the following offences: Offences Offence Dates Sentence Sentence Date Maintaining a sexual relationship with a child under 16 with circumstances of aggravation Between 24/05/1992 – 27/11/1994 12 years 25/06/2004 Rape Between 24/05/1992 – 07/06/1992 12 years 25/06/2004 Rape Between 31/05/1992 – 26/11/1994 12 years 25/06/2004 -- 7 of 21 -- 8 Unlawful anal intercourse with circumstances of aggravation Between 31/05/1993 – 12/07/1997 12 years 25/06/2004 Indecent treatment of children under 16 with circumstances of aggravation x2 Between 31/05/1993 – 12/07/1997 5 years 25/06/2004 Assault occasioning bodily harm with a circumstance of aggravation Between 31/05/1993 – 12/07/1997 3 years 25/06/2004 Indecent treatment of children under 16 with circumstances of aggravation Between 30/06/1993 – 27/11/1994 5 years 25/06/2004 Indecent treatment of children under 16 with circumstances of aggravation Between 30/06/1995 – 01/01/1996 5 years 25/06/2004 Indecent treatment of children under 16 with circumstances of aggravation x2 Between 28/05/1997 – 29/05/2001 5 years 25/06/2004 Indecent treatment of children under 16 with circumstances of aggravation Between 28/05/1999 – 29/05/2001 5 years 25/06/2004 Indecent treatment of children under 16 with circumstances of aggravation Between 28/05/1999 – 24/11/2002 5 years 25/06/2004 Attempted sodomy with a circumstance of aggravation Between 28/05/2001 – 01/01/2001 5 years 25/06/2004 Indecent treatment of children under 16 with circumstances of aggravation 23/11/2002 5 years 25/06/2004 Attempted rape Between 21/05/1992 – 21/05/1994 5 years 25/06/2004 Indecent treatment of a child under 12 Between 21/05/1992 – 21/05/1994 5 years 25/06/2004 Indecent treatment of a child under 12, under care Between 21/05/1994 – 21/05/1996 5 years 25/06/2004 9. Pre-sentence custody of 539 days between 10 December 2002 and 18 December 2003 was declared. 10. Sentencing comments report that six children were the victims of your offences. You were in a de facto relationship and ‘Victim A’ was the daughter of your partner. The offending against ‘Victim A’ involved penile penetration and you threatening the child that you would cause harm to her mother or to your sister (with whom the -- 8 of 21 -- 9 victim had a close relationship). The child was reported to be between the ages of 4 and 6 years at the time of offending and you were reported to have had intercourse with her on at least ten occasions. 11. You are also reported to have also offended against your niece, ‘Victim B’. You are reported to have attempted to place your penis inside her vagina and exposed your penis to her, asking her to touch it (she refused). When she was seven to eight years of age you rubbed your hands over her body and the child thought the tip of your finger may have penetrated her vagina. 12. One offence is recorded as being committed against the female friend, ‘Victim C’, of ‘Victim B’. This offence involved the offender briefly touching the child on the outside of her clothes in the vaginal area. 13. You are reported to have had a breakdown in your relationship with your first partner (mother of Victim A) in 1995/1996. ‘Victim D’ is the sister, aged about 8 years of age, of a subsequent partner. You are reported to have grabbed the child, when she was aged 8 years, around the waist and attempting to touch her vagina and stroking her vagina on the outside of her clothes. When the child was aged about 10 or 11, you are reported to have had your hand inside her clothes, playing with her vagina. You are also reported to have grabbed the child's head and tried to force her head down to your penis, asking her for a blow job. When the child was 11 years of age you reportedly tried to put your penis into the child's anus. 14. You are also reported to have offended against your biological son, ‘Victim E’. Your son was reported to have been kindergarten age when you penetrated the child's anus. You asked the child to suck your penis (child refused) and indecently dealt with him. Evidence showed that the child's anus had scarring from penetration. 15. Sexual offences of the nature for which you have been convicted impact greatly on the lives of victims and also the wider community. In sentencing before the District Court on 25 June 2004, Judge Samios took into consideration your plea of guilty, your prior criminal history, and the nature of the offences: ‘All five children were cross-examined at committal proceedings and required to give evidence except for your son whose evidence was put before the Court in the form of a video.’ ‘1 take into account your pleas of guilty and your co- operation with administration of justice in the sentences I intend to impose upon you .................. There are six children in all involved in these two indictments .................These offences were committed by you in the period commencing 24 May 1992 through to the 23 November 2002. You have a -- 9 of 21 -- 10 criminal history but that does not contain any offences of a sexual nature. However, it does show that you previously have been involved in offences of dishonesty and offences involving drugs …. The criminality here is serious. It involved children of tender years … You have been persistent in your offending against these complainants … Two of the children were your own in the sense one was your biological child and the other one was part of your family. All were under 12 except for one complainant and they were all of very young ages and involved, in some instances, penile penetration, also with threats of harm, and you have displayed violence.’ 16. The Parole Board Assessment Report details that at the preliminary interview, you were dismissive of your more serious offences of rape and sodomy and you stated that you never penetrated any of your victims with your penis. This denial is present despite the fact that you were convicted of two counts of rape, one count of sodomy and one count of attempted rape. You disputed the rape and attempted rape charges by justifying that the victims’ hymen were still intact hence sexual intercourse could not have occurred. You disputed the sodomy charge by reporting that his partner prepared their son to testify against you by stating that you had ‘stuck a stick in his anus’. When confronted in the preliminary interview about these inconsistencies between your self report and the official version, you stated that you only pled [sic] guilty to spare the children of the embarrassment of testifying under oath in front of a Judge and Jury in Court. 17. Although you reported in the preliminary interview that you were remorseful and ashamed of those offences for which you took full responsibility, you were considered to have demonstrated limited victim empathy by stating that ‘apparently all children have gotten over it now’: You stated having been a victim of sexual assault when you were 8 years of age and for this reason, you stated being ‘sure they would have consequences’ especially with ‘trust problems’, but was unable to relate your experience as a victim to your own victims and provide a more thorough and genuine explanation to what those consequences could have been. 18. Furthermore, you reported that your then partner had a history of criminal and psychiatric issues and you seemed to externalise blame to your then partner by stating that she orchestrated all victims to report fictitious statements to the authorities. Throughout the pre panel interview, you justified your offences by stating that you were under the influence of alcohol, you were spending too much time around children and was going through a relationship breakdown with your then partner. In addition, you seemed to minimise your offending behaviour by stating that you -- 10 of 21 -- 11 never penetrated any of your victims with your penis. The Parole Board Assessment Report considered that your presentation demonstrated a strong denial toward your offending behaviour and a lack of insight to the reasons for offending. 19. Whilst at Wolston Correctional Centre you completed a number of literacy/numeracy modules to improve your skills and ability to undertake vocational courses. You had also complete[sic] numerous vocational modules in Cert 1 in Business/ Hospitality, Cert 3 in Computer Aided Drafting/ Engineering, which support your aim to gain vocational accreditation to support future employment once released, such as in the mining industry. 20. You [sic] security classification was High, you had progressed to be accommodated in the residential area of the centre and you were reported to have displayed good institutional behaviour with no breaches of prisoner discipline or being negatively reported in incidents. You were reported as having a good employment record in the centre. 21. An Offender Risk Needs Inventory (ORNI) was conducted and verified on 30 July 2004 in relation to assessing your general criminogenic needs. During the interview you reported a substance abuse history from an early age and that you continued to use substances throughout your life. While denying the nature of some of your offending, you also identified that some period of the reported offending you were under the influence of alcohol. The ORNI identified you as being in the medium range of general criminogenic needs drug use and alcohol as a criminogenic need. You were subsequently recommended to complete the Sex Offenders Treatment program and the Substance Abuse: Preventing and Managing Relapse program. 22. You participated in an Assessment for Substance Abuse Needs on 30 January 2007 and as a result you were recommended to complete the Getting Smart: Moderate Intensity Substance Abuse program. You successfully completed this program on 20 May 2008. 23. You participated in the Specialised Assessment for a Sexual Offending Program on 11 June 2008. Your long term static risk of sexual recidivism was assessed at Moderate to High range and a range of treatment needs were identified. As a consequence, you were recommended to complete the Getting Started: Preparatory Program for Sexual Offending to determine the most suitable intervention program for you to participate in. You completed the Getting Started: Preparatory Program for Sexual Offending on 12 November 2008, the program facilitators noting that despite your denial of the most serious of the offences they considered that you could successfully be treated in the Medium Intensity Sexual Offending Program (MISOP). -- 11 of 21 -- 12 24. Your release plan included a proposal to live with your mother at her residence in Jimboomba, Queensland. The result of the Home Assessment for your mother’s residence resulted in the addressed [sic] being considered unsuitable for your release to the community; however your alternative was acceptance to Ozcare Supported Parole Accommodation program. Your external support network was assessed as being supportive but not pro-social due to your mother’s criminal history and past substance abuse issues. 25. The Parole Board Assessment report detailed that you had submitted a Relapse Prevention Plan which was considered to be appropriate and realistic. In this plan, you had addressed your offending behaviour and appropriate strategies to prevent recidivism. You were prompted during the preliminary interview about high risk factors and strategies and you were able to identify and discuss details about your plans and goals for the future. At the panel interview you refused to discuss offences related to victim D, the offender’s biological son and you focussed on the fact that you yourself had been a victim of a sexual assault, the belief that ‘you don’t have thoughts of attraction towards children’, and that you were glad you had gone to jail. You did not accept the court versions of events blaming your former partner and when challenged by the panel, you were not able to accurately present any suitable strategies to avoid reoffending.” [23] The reasons for the decision then set out the submissions made by the applicant on 24 February 2009 in response to the preliminary view of the Board as follows: • “Your concern that since 2002 you had sought to be assessed for and included in sex offender programs at each sentence management review process and you were not given the opportunity to participate until 2008. • That in the panel interview you did not make the statement that ‘the victims would have gotten over it by now’. You noted that you still [sic] not gotten over what happened to you when you were a victim. You were of the view that you had gained a greater understanding and that completion of the MISOP in the community will help decrease your chances of recidivism. • You were of the view that the Judge in sentencing made a recommendation for parole after six years. • You noted the Static-99 assessment and that in the six years of your incarceration you have never been violent to anyone in the centre. • If released to the community you would have more opportunities to benefit from community support services which are not available to you in custody. You provided further details of your external professional support including that you have made contact with psychologist Meg Perkins -- 12 of 21 -- 13 who has agreed to undertake one-on-one counselling with you upon your release.” [24] The Board then set out 11 reasons why it made the decision it did that it would not grant the applicant a parole order as it was concerned that he would be an unacceptable risk to the community on a parole order at that time. Those reasons were: “1. The Board considered your application for a parole order and supporting documentation. The Board noted the level of information provided by you in your application, including your release plans and your Relapse Prevention Plan. 2. The Board noted your positive institutional behaviour and your employment record. The Board further noted your educational and significant vocational achievements whilst in custody. 3. The Board considered your prior criminal history, your previous response to community orders, the nature of your offences, the comments of the sentencing judge and your attitude towards your offences as detailed within the parole assessment interview process. The Board noted that you are serving a period of 12 years imprisonment for sexual offences against children. The Board noted your plea of guilty to all charges and your conviction for the same and that you now maintain that you are innocent of the more serious offences of rape, including the penile and anal penetration. 4. The mere fact that you maintain your innocence does not prejudice the Board against you. However, it leaves the Board in a position where it must accept that you were found guilty of these extremely serious offences after a committal process where the victims were required to give evidence and be cross examined, and sentencing in which the evidence was fully ventilated. In the criminal justice system, it is the role of the court process to determine the guilt or innocence of an accused person and it is not for the Board to revise or reverse that assessment. The Board must therefore proceed on the basis that you were guilty of these offences and that this was the considered judgment of the judge who had been exposed to the evidence of the case. 5. 5 The Board noted that during the preliminary interview you were unable to discuss your offences in detail and denied the most serious offences for which you are currently serving imprisonment. The Board felt that there were inconsistencies between the official version of events from Court and your own stated version of events surrounding the offences. In terms of your innocence stance for the more serious offences, the Board was concerned that the material before it (your application and parole report) did not suggest you had an appropriate understanding of how you came to be in the position of facing such charges of penile and anal -- 13 of 21 -- 14 penetration against children and that you still lack insight into the reasons for your offending behaviour. 26.[sic] The Board noted your contention in your submission that you did not state during the interview that: "apparently all the victims have gotten over it now". However the Board was concerned that you still appeared to justify and rationalise your offending behaviour based on a range of external factors. In the preliminary interview, you disputed the rape and attempted rape charges by justifying that the victims' hymen were [sic] still intact hence sexual intercourse could not have occurred. You disputed the sodomy charge by reporting that your partner prepared your son to testify against you by stating that you had ‘stuck a stick in his anus’. When confronted in the preliminary interview about these inconsistencies between your self report and the official version, you stated that you only pled [sic] guilty to spare the children of the embarrassment of testifying under oath in front of a Judge and Jury in Court. This stance on your reasons for pleading guilty is maintained in your submission of February 2009. 6. The Board was concerned that you still display a lack of victim empathy. You have previously indicated that you have been a victim of sexual assault, and have related your own understanding of what you believe to be the consequences the effect your offences have had on your victims. The Board viewed the responses you have put forward in relation to the effects your offending behaviour has had on your victims to be deficient. The Board understands sexual offending to have a wide-ranging detrimental impact on victims and also impact on the wider community. The Board had little indication that you have successfully challenged those attitudes and beliefs that led you to commit these offences, or have gained an appropriate understanding of the impact your actions have had upon your victims and also to the wider community. 7. The Board noted the outcome of your Specialised Assessment for a Sexual Offending Program on 11 June 2008; that your long term static risk of sexual recidivism was assessed at Moderate to High range and a range of treatment needs were identified. The Board noted your completion of the Getting SMART: Moderate Intensity Substance Abuse Program and the Getting Started: Preparatory Program for Sexual Offending. However the Board was of the view that you had outstanding program recommendations to address your criminogenic needs. The Board noted that in the Preparatory Programs Completion report in June 2008 the facilitators considered that "you could be successfully treated in the Medium Intensity Sex Offenders Program (MISOP)". During the panel interview you reported that you were willing, able and ready to participate in the recommended programs. -- 14 of 21 -- 15 8. The Board was concerned that you have not had the opportunity to participate in the MISOP intervention program, and this had deprived you of the opportunity to gain knowledge and explore strategies that might assist you to avoid re-offending in the future. Whilst not insisting you do so the Board encouraged you to actively participate and gain knowledge and skills from the recommended program as it would assist significantly in your rehabilitation. 9. The Board noted your inability to identify strategies to avoid reoffending during the panel interview. The Board noted your submission. The Board noted that you were unable to sufficiently articulate a plan to avoid a relapse into the offending behaviour that had led to the offences for which you are currently serving imprisonment. The details you provided focussed on the fact that you yourself had been a victim of a sexual assault, the belief that ‘you don’t have thoughts of attraction towards children’, and that you were glad you had gone to jail. The factors you provided to avoid reoffending were, in the Board’s view, insufficient in providing it with confidence that your release to parole supervision would be one which would be considered both safe and appropriate. 10. The Board gave detailed consideration of your profile including the circumstances of your offending behaviour relevant to your current offences, your attitude towards the offences and the assessed risk of you reoffending and concluded that were you to re-offend, the risk that a member of the community would suffer physical or psychological harm was high. 11. The Board notes your view that you could complete the MISOP in the community to lower your risk of sexual recidivism. However the Board, in weighing up the risk you pose to community, and the safety of the community when considering your release to the community, were of the view that they would not be not be prepared for you to complete the MISOP in the community at that time.” [25] The material considered by the Board was put before the court in an affidavit by a senior legal officer employed by the Parole Board Secretariat. She also provided a copy of the ministerial guidelines dated 19 March 2008 to which the Board had regard. [26] The grounds of the application for statutory order of review were said by the applicant to be: • “Improper exercise of power: exercise of discretionary power in accordance with a rule or policy without regard to the merits of the case; • Improper exercise of power: irrelevant considerations taking into account; • That the decision involved an error of law: whether or not the error appears on the face of the decision.” -- 15 of 21 -- 16 [27] No written argument was addressed to the third ground of the application and it was apparent that it raised no separate ground not covered in the submissions in support of the other two grounds of the application. I shall therefore deal with it as I deal with the first and second grounds of review. Exercise of discretionary power in accordance with a rule or policy without regard to the merits of the case [28] The complaint made by the applicant is that there was an improper exercise of power under s 20(2)(e) of the Judicial Review Act 1991 (Qld) (the “JR Act”). Section 23 of the JR Act provides that an improper exercise of power includes a reference to, inter alia, “(f) an exercise of a discretionary power in accordance with a rule or policy without regard to the merits of a particular case”. [29] The first complaint by the applicant under this ground was his allegation that the respondent acted in accordance with a policy to refuse parole because he was a sex offender and had not completed a recommended program. The detailed reasons given by the Board, however, show that, while this was one of the factors taken into account by the Board, there is no evidence that it acted in accordance with a policy to refuse parole because he was sex offender and had not completed a recommended program. [30] Rather the Board referred to a number of matters. It noted that while he had pleaded guilty to all charges he was now maintaining that he was innocent of the more serious offences of rape including the penile and anal penetration. His guilty plea followed a committal process where the victims were required to give evidence and be cross-examined. It was the role of the court process to determine guilt or innocence and not for the Board to revise or reverse that assessment. The Board therefore proceeded, quite correctly, on the basis that he was guilty of the offences. The Board noted that in his preliminary interview he was unable to discuss his offences in detail and felt that there were inconsistencies between the official version of events from the court and his own stated version of events surrounding the offences. [31] The Board was concerned that the material did not suggest that he had an appropriate understanding of how he came to be in the position of facing such serious charges against children and that he still lacked insight into the reasons of his offending behaviour. The Board noted the contention in his submission that he did not state during the interview that “apparently all the victims have gotten over it now”. However the Board was concerned that he still appeared to justify and rationalise his offending behaviour based on a range of external factors. He, for instance, disputed the rape and attempted rape charges by saying that the victims’ hymens were still intact and therefore sexual intercourse could not have occurred. He disputed the sodomy charge by reporting that his partner prepared his son to testify against him. When confronted in the preliminary interview about these inconsistencies between his self report and the official version, the Board said that the applicant stated that he only pleaded guilty to spare the children the embarrassment of testifying under oath in front of a judge and jury in court. [32] The Board was concerned that he still displayed a lack of victim empathy. -- 16 of 21 -- 17 [33] The Board also noted the outcome of his specialised assessment for a sexual offending program on 11 June 2008; that his long term static risk of sexual recidivism was assessed at moderate to high and a range of treatment needs were identified. The Board noted his completion of the Getting Smart Moderate Intensity Substance Abuse Program and the Getting Started: Preparatory Program for Sexual Offending. The Board was however of the view that he had outstanding program recommendations to address his criminogenic needs. The Board noted that facilitators in the Completion Report for the preparatory program considered that he could be successfully treated in the medium intensity sex offenders program and that he reported that he was willing, able and ready to participate in the recommended programs. The Board expressed its concern that he had not had the opportunity to participate in the MISOP program which had deprived him of the opportunity to gain knowledge and explore strategies that might assist him to avoid reoffending in the future. It said in its reasons: “Whilst not insisting you do so the Board encouraged you to actively participate and gain knowledge and skills from the recommended program as it would significantly assist in your rehabilitation.” [34] The reasons continued that the Board had noted his inability to identify strategies to avoid reoffending during the panel interview and that he was unable to sufficiently articulate a plan to avoid a relapse into the offending behaviour which led to the offences for which he was currently serving imprisonment. The reasons continued that the Board gave detailed consideration to his profile including the circumstances of his offending behaviour, his attitude towards the offences and the assessed risk of his reoffending and concluded that were he to reoffend, the risk that a member of the community would suffer physical or psychological harm was high. The Board said that it was not of the view that his completing the MISOP in the community would be sufficient to reduce the risk he posed to the community. [35] The Minister for Corrective Services may make guidelines under s 227(1) of the Corrective Services Act 2006 (Qld) about the policy to be followed by the Board when performing its functions under the Act. Guidelines were made on 19 March 2008. So long as these are not inconsistent with the duties and functions of the Board set out in the Act,1 then the guidelines are a relevant consideration which the Board may consider.2 It is, however, important for the Board to consider the individual circumstances of each applicant for parole, which is precisely what the respondent has done in this case. [36] If the respondent acted on general principles or guidelines without regard to the particular circumstances of the applicant as was the case in Wiskar v Queensland Corrective Services Commission3 then his ground of complaint might have been made out. [37] It is apparent, however, from an examination of the reason for its decision that the Board has not acted according to a rigidly enforced policy rather than according to the merits of the individual case. 1 Green v Daniels [1977] HCA 18 at [28]; (1977) 13 ALR 1 at 9; (1977) 51 ALJR 463 at 467. 2 Re Drake (No. 2) (1979) 2 ALD 634 at 642. 3 [1998] QSC 279. -- 17 of 21 -- 18 [38] The applicant complains that he is willing to do a sexual offenders’ treatment course and that it is not his fault that he has not done that recommended course as the relevant course has not been made available to him. If that is the case, then QCS may well be rightly criticised.4 The respondent is not, however, QCS. It is an independent body set up under s 216 of the Corrective Services Act to decide applications for parole orders, other than court ordered parole orders. Additionally it appears that the applicant has refused to attend the HISOP course which was subsequently recommended by QCS and a place offered to him on 6 February 2009. [39] The applicant correctly submits that the respondent must not act under dictation by a third party such as the QCS; however there is no evidence in this case that the Board has acted under any such dictation. Rather its reasons demonstrate that it has considered all of the relevant material and come to its own decision as to whether or not the applicant should be released on parole. Irrelevant considerations [40] The applicant submitted that irrelevant considerations were taken into account. He gave the following examples: (1) the respondent took into account the applicant’s criminal history in New South Wales and Queensland; (2) the respondent took into account that the applicant had not completed a sex offenders’ course; (3) the respondent relied on material provided by the Department “drafted in a way supportive of a refusal to grant the applicant parole due to the fact that he has not completed a sex offenders’ program and as such is classed as an ‘untreated sex offender’”. [41] I shall deal with each of these examples to the extent that they raise material not previously considered in these reasons. [42] An administrative decision such as the one presently under review may be vitiated by an improper exercise of the power pursuant to s 20(2)(e) of the JR Act. Section 23(a) provides that a reference to an improper exercise of a power includes a reference to taking an irrelevant consideration into account in the exercise of the power. [43] The applicant submitted that the respondent took into account that the applicant had a “criminal history” recorded in New South Wales and Queensland for offences incurred in resisting police, obscene language, behaved in a disorderly manner, attempted stealing, stealing, breach of probation order, obstruct police, behave in a disorderly manner, possessing dangerous drugs, possess utensil or pipes and possession of a knife in a public place. All offences were committed between 1993 and 2002 (over an eight year period). [44] It is true that amongst the material considered by the Board were the applicant’s New South Wales criminal history printed on 15 June 2004 and Queensland Police Service court outcomes printed on the same date. The New South Wales criminal 4 See for example Attorney-General for the State of Queensland v Bielefeld [2009] QSC 352. -- 18 of 21 -- 19 history taken into account by the Board disclosed five offences for which the applicant was sentenced on 7 November 1991 in the Murwillumbah local court. These offences were cultivating a prohibited plant, possession of equipment to administer, administering prohibited drug, being an unlicensed shooter and possessing a prohibited article. He entered into a recognisance of $2, 000 to be on good behaviour for two years in relation to the first charge. He was also apparently fined $1,000 with regard to another recognisance. He was fined $200 for the second charge and $100 on each of the three remaining charges. [45] The Queensland criminal history before the Board shows convictions in many Magistrates Courts in Queensland. The first convictions were on 4 November 1993 where he was convicted of the following offences which occurred on 5 September 1993: resisting police, obscene language, behaving in a disorderly manner and unlawful assault. No conviction was recorded and he was fined a total of $140. One month later, on 6 December 1993, he was convicted of attempted stealing and stealing committed on 1 December 1993. Again no conviction was recorded and he was given probation for one year. On 16 May 1994 he was convicted of stealing which occurred between 4 January 1994 and 8 May 1994. He was fined $400. On 4 July 1994 he was convicted of a breach of the probation order which had been imposed on 6 December 1993 and re-sentenced to 75 hours community service. [46] On 10 July 1995 the applicant was convicted on one count of obscene language and one count of obstructing police. He was fined $115. On 15 March 1996 he made a successful application for a fine option order and was required to do 14 hours community service. On 17 July 1996 he was in breach of the fine option order and the order was revoked. [47] On 5 August 1996 he was convicted of behaving in a disorderly manner on 4 August and convicted and fined $100. On 23 January 1997 he made a successful application for a fine option order with regard to a speeding fine and was given 28 hours community service. That was breached and in April 1997 the order was revoked. On 6 October 1998 he was convicted of behaving in a disorderly manner and fined $100. On 18 August 1999 he was convicted of possessing dangerous drugs and possessing utensils or pipes on 28 July 1999. He was fined $300. On 25 February 2000 he was convicted of possessing dangerous drugs and possessing utensils or pipes on 11 February 2000. He was fined $550. A fine option order for community service of 55 hours was made. On 26 July 2000 he was convicted of possessing dangerous drugs and possessing utensils or pipes on 5 July 2000. He was fined $300 and a fine option order of 15 hours community service was made. [48] On 14 February 2001 the applicant was again convicted of possessing dangerous drugs and possessing utensils and/or pipes on 25 January 2001. He was fined $700 and given a fine option order of 90 hours community service. On 26 August 2002 he was convicted of possession of a knife in a public place on 1 August 2002 and fined $200. [49] The applicant submitted that the respondent placed too much weight on those convictions considering the fact that there was no pattern or previous indication of sexual offending and that the respondent failed to categorise and take into consideration that these offences were summary offences and were not relevant in coming to the conclusion that a sex offender should not be granted parole because he has not completed the recommended program. -- 19 of 21 -- 20 [50] It is beyond argument that an applicant’s offending history is a relevant consideration to the question of risk to the community on release. The applicant’s previous criminal history was recited in brief form by the respondent in its findings of fact. The respondent also referred to the community based orders which the applicant had been subject to and the revocation or successful completion of those orders. [51] The Board then referred to the offences for which he is currently serving a term of imprisonment. That offending behaviour is said to have commenced as early as 21 May 1992. The Board did not suggest that he had any pattern of sexual offending or offending for indictable offences prior to the offences for which he was serving a term of imprisonment. The Board, in fact, explicitly referred to the sentencing remarks when he was dealt with for the offences for which he is currently imprisoned where the learned sentencing judge said: “You have a criminal history but that does not contain any offences of a sexual nature. However, it does show that you previously have been involved in offences of dishonesty and offences involving drugs.” [52] It should also be noted that the offences for which the applicant is in prison themselves involve protracted sexual offending over a large number of years against a number of children thus disclosing a pattern of sexual offending. There can be no suggestion that any improper weight was given to his prior criminal history even if the question of weight were a matter for judicial review. [53] The next matter which was taken into account and said by the applicant to be irrelevant, was the fact that the applicant had not completed a sex offenders’ course whilst in custody. While this matter cannot be allowed to overwhelm all other considerations, it could not sensibly be said that the fact that the applicant had not had the benefit of sex offenders’ treatment whilst in custody was an irrelevant consideration. The applicant is in custody for very serious sexual offending against a number of young children of both sexes over many years. The protection of vulnerable members of the community is best served by such offenders undergoing whatever courses are available to assist in their rehabilitation. If such courses are not readily available, then the safety of the community will be compromised by their absence; but this does not mean that the applicant’s failure to complete such a course is irrelevant to the Board’s decision in the case of a prisoner whose risk of reoffending has been assessed as medium to high. [54] The third matter that was said to be an irrelevant consideration was that the respondent relied on material provided by the QCS “drafted in a way supportive of a refusal to grant the applicant parole due to the fact that he has not completed a sex offenders’ program and as such is classed as an ‘untreated sex offender’ ”. The material from the QCS is part of the material that the respondent was entitled to take into account in determining whether or not to grant parole to the applicant. It is not irrelevant. Its only vice would be if that the Board acted upon the recommendation without regard to the merits of the case and so failed to exercise its own discretionary power. There is no evidence that it has done so. Indeed the detailed reasons for decision given by the Board shows that it carefully considered the applicant’s individual case in determining that it would not grant him parole because he would be an unacceptable risk to the community on a parole order at that time. -- 20 of 21 -- 21 [55] I have carefully considered the reasons given by the Board to determine if there were any other irrelevant considerations taken into account but have been unable to find any irrelevant considerations. Conclusion [56] It follows that there was no error of law in the decision and the application for a statutory order of review should be refused. -- 21 of 21 --