Boughton v Queensland Community Corrections Board [2001] QSC 125

tl (oS4 01: IZ.S St R • B (~ Queensland Government ate e p Ort Ing Urea U ~ Oep~t1mentoifustkund Attorncy-Gffleral Transcript of Proceedings Copyright in this transcript is vested in the Crown. Copies thereof must not be made or sold without the written authority of the Director, State Reporting Bureau. SUPREME COURT OF QUEENSLAND CIVIL JURISDICTION DUTNEY J No 9143 of 2000 KEITH DOUGLAS BOUGHTON and REVISED COPIES ISSUED State Reporting Bureau Date // / If. IO ( Applicant QUEENSLAND COMMUNITY CORRECTIONS BOARD Respondent BRISBANE .. DATE 05/04/2001 JUDGMENT th Floor, The Law Courts, George Street, Brisbane, a. 4000 1 Telephone: (07) 3247 4360 Fax: (07) 3247 5532 -- 1 of 6 -- 05042001 cml (Dutney J) HIS HONOUR: This is an application to review a decision of the Queensland Community Corrections Board, made on 21 September 2000, to refuse to grant parole or other community release to the applicant. The applicant was sentenced to 15 years' imprisonment on 17 November 1992, following upon his conviction of three counts of rape and one count of indecent dealing with a girl less than 14 years. The applicant subsequently appealed and his appeal was dismissed. By virtue of Section 166 of the Corrective Services Act, 1988, the applicant was eligible for parole after serving 7 and a half years of the sentence, or from 17 May 2000. The applicant had, in fact, made application for early release on two occasions, relying on special circumstances. Both of those applications were refused. On 31 January 2000, the applicant applied again for parole. On 11 July 2000, the Board wrote to him advising its intention to refuse parole, but allowing for further submissions to be made. By a letter dated 21 September 2000, the Board advised of its decision to refuse to grant parole, under cover of a letter of that date, which, after setting out a long list of documents which were said to have been taken into account, JUDGMENT 2 1 10 2 30 40 ( 50 60 -- 2 of 6 -- 05042001 cml (Dutney J) concluded as follows: "The Board wrote to you on 7 April 1999, and 29 October 1999. Those letters, so far as relevant, are to be read in conjunction with this document. For the reasons given in those letters, and the Board's letter to you of 11 July of this year, and 1 on the basis of the findings made, again so far as 10 is relevant, the Board concluded that you present a unacceptably high level of risk at this stage of your sentence." The more important of the two letters incorporated by reference into the letter of 21 September 2000 is that of 29 October 1999. Relevantly one of the factors to which reference has been made in the course of argument, and which seems to have played a role in the considerations of the Queensland Community Corrections Board, is the fact that the applicant has never accepted or admitted his guilt for the offences for which he was convicted. In their letter of 29 October 1999 the Board wrote inter alia: "The Board acknowledges that a denial of guilt should not and does not of itself preclude an inmate from early release. In each case it is necessary to consider alt the circumstances, and to try to assess the likely risk to the community if the inmate is released at an earlier time. Given that you have not taken any step towards relevant rehabilitation, and having regard to the commence of the sentencing Judge, it presently seems to be the Board that you may very well present -an unacceptably high level of risk if released at this stage." The remarks of the sentencing Judge, to which reference is there made, are to be found in Exhibit A to the applicant's affidavit and are as follows: "In my view, you are a dangerous person and the greatest care should be taken before releasing you on parole. It could be that the proper result is that you serve the full term of 15 years' JUDGMENT 3 20 30 40 50 60 -- 3 of 6 -- 05042001 cml (Dutney J) imprisonment." The applicant's primary submission, as I understand it, is that the Queensland Community Corrections Board has failed to properly consider the application for parole on its merits, placing undue emphasis on the sentencing remarks which are now approximately eight and a half years old; and on the refusal or failure of the applicant to attend sex offender programs provided within the prison, in view of his refusal to acknowledge guilt. It is said that this failure to consider the application strictly on its own merits is evidenced by the fact that the Board did not seek to obtain any psychiatric or psychological reports for its own purpose of determining the application, or alternatively, that it was an error in itself to fail to obtain such evidence. Against that submission, counsel for the Board drew my attention to part of a report from the Department of Corrective Services, Palen Creek Correctional Centre, where the applicant is presently detained. That report is dated, 10 May 2000, and appears to be the most recent assessment prepared for the Queensland Community Corrections Board. On page 4 of that report, in the third paragraph, the following appears: "Mr Boughton commented in interview that he had not sought any assistance from the psychologists at Palen Creek Correctional Centre due to their youthfulness. He was recently seen by one of the psychologists for sentence management purposes and the psychologist advised that Mr Boughton was pleasant and friendly, but not interested in engaging in any meaningful discussion. Mr Boughton JUDGMENT 4 1 10 20 30 50 60 -- 4 of 6 -- 05042001 cml (Dutney J) cannot foresee any problems reintegrating back into society, and he presents as the type of man who considers he can solve his own problems without assistance. With this attitude it would appear unlikely Mr Boughton would seek professional help on his release." Later in the report, in the first paragraph under the heading, "Recommendation" the following appears: "Mr Boughton admits to having had a problem with violence in the past. He has, to some extent, addressed this behaviour by completing the three levels of the Alternatives to Violence program. In interview Mr Boughton did impress as having insight into his past violent behaviour, however, due to his l 10 denial of guilt he has not been prepared to 20 undertake a sex offender program, and consequently he has not addressed his sexual offending behaviour." It is obviously the case that the mere failure to admit guilt on the part of a prisoner should not in any way preclude his being favourably considered for parole. Nonetheless, it seems to me that the material before the Queensland Community Corrections Board, to which they make reference in their letter of 21 September 2000, does not persuade me that they have failed to consider all of the material which was available to them, not only at the time of sentence, but throughout the term of the applicant's incarceration. Having regard particularly to the failure of the applicant to avail himself of the assistance, which is available at Palen Creek Correctional Centre from psychologists, and which, notwithstanding his failure to attend sexual offender programs, may have filled what is now said to be the gap in the material before the Queensland Community Corrections Board, that failure being before the Board, it seems to JUDGMENT 5 30 40 50 60 -- 5 of 6 -- 05042001 cml (Dutney J) me to be difficult to conclude that the Board failed to properly consider the application merely on the basis of their failure to obtain independent psychological or psychiatric evidence. While in a number of cases it may be appropriate for the Board to obtain that material, I am not satisfied that it was a necessary element of the consideration at this stage, and on the material before me I am not satisfied that the Board has taken any unacceptably rigid view of the failure to attend the programs which are available, or to admit guilt on the part of the applicant. In those circumstances, I am not satisfied that the Board has failed to properly consider the application, or made an error of law in not giving proper and genuine consideration to that case, or have otherwise acted in circumstances where there is no evidence or material which would justify the making of their decision. The application is therefore refused. HIS HONOUR: I order the applicant to pay the respondent's costs of and incidental to the application to be assessed on the standard basis. JUDGMENT 6 1 10 30 4P- r , 50 60 -- 6 of 6 --