Collins v Queensland Community Corrections Board [1999] QSC 385

SUPREME COURT OF QUEENSLAND CITATION: Bevan Ward Collins v Queensland Community Corrections Board PARTIES: BEVAN WARD COLLINS V QUEENSLAND COMMUNITY CORRECTIONS BOARD FILE NO: 2584 of 1999 DIVISION: Trial Division DELIVERED ON: 24 December 1999 DELIVERED AT: Brisbane HEARING DATE: 6 September 1999 JUDGE: Douglas J ORDER: Application dismissed with costs to be assessed CATCHWORDS: CRIMINAL LAW - PROBATION, PAROLE, RELEASE ON LICENCE AND REMISSIONS - QUEENSLAND - refusal to grant parole - relevant considerations - applicants refusal to admit guilt or address offending behaviour - Corrective Services Act 1988, s 165. COUNSEL: SOLICITORS: Corrective Services Act 1988, s 165 Carter v QCCB (unreported) SC No 9418 of 1998, 17 December 1998 Minister for Immigration v Eshetu (1999) 73 ALJR 746 Minister for Aboriginal Affairs v Peco-Wallsend Ltd (1986) 162 CLR24 Minister for Immigration v Wu Shan Liang (1996) 185 CLR 259 Yeo v Queensland Corrective Services Commission (unreported) SC No 7534 of 1997,2 December 1997 Mr J Davidson for the applicant Mr J Logan for the respondent Poteri Woods Solicitors for the applicant Crown Solicitor for the respondent [1] DOUGLAS J: The applicant is a 47 year old man born in Yeppoon on 5 June 1952. He was convicted by a jury of one count of attempted rape of a child; one count relating to the showing of a video tape to the same child; and ten counts of indecently dealing with that child and two other children. The main complainant was aged 12 years at the time ofthe first alleged offence. -- 1 of 3 -- 2 [2] He was sentenced by a District Court Judge to an effective total of 6 years imprisonment and was eligible for the following various early release options: a) release to work (extended leave of absence), 7 February 1998; b) home detention, 8 October 1998; and c) parole, 8 February 1999. [3] He applied for early release by an application dated 2 September 1998 which was refused by letter dated 27 November 1998. [4] On 15 December 1998 a further application for parole was submitted and on 23 December 1998 a solicitor from the Prisoners' Legal Service wrote to the respondent's secretary requesting whether an up-to-date psychological report had been obtained in respect of the applicant and suggesting that, if such a report had not been·obtained, that the respondent have one prepared. [5] On 16 February 1999 the respondent advised the solicitor by letter that it did not have, and had no intention of obtaining, an up-to-date psychological report in respect of the applicant, and further advised that his application for parole had been declined. [6] In the same letter the respondent advised the applicant that his application had been declined "for the reasons contained in (the respondent's) letter to you dated 27 November 1998". [7] These proceedings were commenced by application dated 18 March 1999. Since that date a further application for parole by the applicant has been declined for the same reasons. It is submitted that it appears that the respondent still has made no attempt to obtain an up-to-date psychological report. [8] This application could be easily disposed on the basis that it seeks the review of what is now a stale administrative decision or, alternatively, what is not a reviewable decision at all. At the time when the application was filed the respondent's most recent parole decision was that of 27 November 1998. The respondent could not and did not make a further parole decision in February 1999, as that was within the 6 month preclusion period. All that was done in February 1999 was to decline to obtain a report from a psychologist which is not of itself a reviewable decision. [9] It is clear from the evidence that the respondent's current parole decision is that of 21 May 1999 as notified in the letter of 28 May 1999, being exhibit 15 to the applicant's affidavit. [10] It follows that strictly speaking the application is either incompetent or seeks relief which should be declined, even if it were otherwise of merit, because events have overtaken it. It was submitted by the respondent that the interests of justice would be best served if the present application were treated as a challenge to the respondent's latest parole refusal decision. [11] The applicant submits that it is clear that the authorities (the respondent) refused early release simply because of his denial of guilt and the associated failure to complete a sex offender's program or "address his offending behaviour", referring -- 2 of 3 -- 3 to Yeo v Queensland Corrective Services Commission (unreported) 13 February 1998, per Dowsett J at pp 4 and 7. [12] It is further submitted by the applicant that the respondent's reasons for refusing early release to the applicant disclose that it has relied heavily on his denial of guilt and associated failure to "address his offending behaviour", without conducting a proper examination of the merits of the application. It was submitted that this conclusion is supported by the blatant refusal of the respondent to obtain, and hence to consider, a properly prepared psychological report. The submission goes further to say that this renders the decision unlawful because it does not represent a true exercise of the discretion given to the respondent by virtue of s 165 of the Corrective Services Act 1988. [13] In my view this application is founded on a misapprehension namely, that decisions concerning parole are to be assimilated with those concerning sentence remissions, whereas the two systems differ in a fundamental way. (See Carter v QCCB (unreported) 2 December 1997, per Mackenzie J at p 5). [14] In parole cases the respondent must be satisfied that the applicant prisoner presents an acceptably low risk of reoffending, if released. In remission cases, on the other hand, the QCSC must be positively satisfied of an unacceptably high risk of reoffending if it is to deny to a prisoner remissions to which his good behaviour would otherwise entitle him. Remission decisions such as Yeo are therefore distinguishable. [15] In May this year an overwhelming majority of members of an assessment unit recommended against the applicant's release on parole. In my view the fact that the respondent choose to act on that recommendation does not make the decision unreasonable: see Minister for Immigration v Eshetu (1999) 73 ALJR 746, and Minister for Aboriginal Affairs v Peco-Wallsend Ltd (1986) 162 CLR 24. The duty of the respondent was to decide where the truth lay in terms of the requisite statutory test on the material before it: Minister for Immigration v Wu Shan Liang (1996) 185 CLR 259 at 282. [16] It is clear that the respondent has not made its decision in accordance with a rule or policy but merely upon the evidence before it. That was made plain in the respondent's letter of 27 November 1998 incorporated by reference in its letter of 28 May 1999. [17] It follows that the application should be dismissed with costs to be assessed. -- 3 of 3 --