Cutts v The Board (Queensland Regional Parole Board) [2009] QSC 208

SUPREME COURT OF QUEENSLAND CITATION: Cutts v The Board (Queensland Regional Parole Board) [2009] QSC 208 PARTIES: WINSTON GERALD CUTTS (applicant) v THE BOARD (QUEENSLAND REGIONAL PAROLE BOARD) (respondent) FILE NO/S: BS12409 of 2008 DIVISION: Trial Division PROCEEDING: Application for judicial review ORIGINATING COURT: Supreme Court at Brisbane DELIVERED ON: 3 August 2009 DELIVERED AT: Brisbane HEARING DATE: 20 July 2009 JUDGE: Dutney J ORDER: The application for judicial review is dismissed with costs to be assessed on the standard basis. CATCHWORDS: ADMINISTRATIVE LAW- JUDICIAL REVIEW- GROUNDS OF REVIEW-IRRELEVANT CONSIDERATIONS- Whether a sex offender who has not completed the sexual offenders treatment programme because he has not admitted the offence can be refused parole as an unacceptable risk to the community- Whether such an outcome constitutes application of a policy without regard to the merits of the particular case – Where applicant claims bias on the part of a psychologist because he had previously worked for Corrective services Corrective Services Act 2006 (Qld), s 189(3), s 190, Judicial Review Act 1991, s 20(2)(a), s 20(2)(c), s 20(2)(h), s 20(2)(e), s 23(h) Batts v Department of Corrective Services [2002] QSC 206 Fogerty v Department of Corrective Services [2002] QSC 207 COUNSEL: A A J Horneman-Wren for the Respondent -- 1 of 13 -- 2 SOLICITORS: Applicant on his own behalf G R Cooper Crown Solicitor for the Respondent [1] This is an application for judicial review of the decision of the Queensland Regional Parole Board of 13 March 2009 refusing the applicant’s application for parole. [2] Following a trial, the applicant was sentenced in the District Court to a term of six years imprisonment for a series of offences including rape and three counts of sexual assault. These offences all arose out of a single incident in 2003. [3] Since conviction, a further 24 days imprisonment have been added to the applicant’s sentence. These days were added by SPER in connection with unpaid fines incurred prior to conviction. [4] The applicant’s parole eligibility date was 17 April 2008. [5] A parole application was lodged on 15 January 2008. The application was reviewed by an internal review panel within Corrective Services (“the review panel”) which recommended that the application be refused. [6] On 8 May 2008, the Board wrote to the applicant advising that it was considering refusing his application, setting out the reasons for that preliminary view and inviting him to address those reasons. [7] A fresh application for parole was lodged on 17 June 2008. In fact this document seems to be intended as the response to the letter of 8 May 2008 and was treated as such by the Board. [8] The parole application was rejected by a letter dated 28 October 2008 following an adjournment to obtain the report of a psychologist. A full statement of reasons for the rejection of the parole application was provided under cover of a letter date 13 November 2008. [9] Upon receiving notice of the rejection of his application, the applicant filed an application for judicial review. [10] On 16 February 2009, a consent order was filed under which the application for parole was remitted to the Board for reconsideration. [11] Even before the consent order was made, the application was revisited by the Board at its meeting on 11 February 2009. No doubt this was because the agreement to reconsider the application was made at some time prior to the formal order disposing of the application for judicial review. [12] On 16 February 2009, the Board again wrote to the applicant advising him that it was considering refusing the application and inviting further submissions directed to specific matters. [13] The applicant provided further material on 23 February 2009. -- 2 of 13 -- 3 [14] On 27 February 2009, the Board reconsidered all of the material that had been placed before it during the history of the application and decided to reject the application. That meeting was conducted by telephone. On 13 March 2009, the Board wrote to the applicant setting out its reasons. [15] The present application was filed on 24 April 2009. [16] In the course of his oral presentation, the applicant articulated the following grounds for the application: • Breach of natural justice in not being permitted to attend before the Board to make his submissions orally • Absence of jurisdiction in that the meeting at which the application was refused was conducted by telephone. • Bias on the part of the psychologist because he had previously worked for Corrective Services and made an income out of providing reports on offenders. • In particular, it was submitted to be a decision based on an irrelevant consideration, constituted an exercise of a discretionary power in accordance with a rule or policy without regard to the merits of the case or was an exercise so unreasonable that no reasonable person could so exercise the power. These grounds refer to an alleged insistence on the applicant completing a sex offender course when he maintained his innocence of the charges. The applicant’s position was that he was ineligible for the course while he maintained his innocence. • Incorrect information was contained in the review panel’s material concerning his behaviour in jail and in an unfavourable home assessment report. [17] Before dealing with the complaints, it is important to set out the Board’s reasons in some detail. It is important in doing so to emphasise that it is not the function of the Court on an application such as this to review the merits of the decision or to substitute its decision for that of the Board. Neither should this Court have to determine which of two competing versions of underlying facts is correct. That is a matter for the decision maker. The weight to be given to factors properly taken into account in arriving at the decision is exclusively a matter for the Board. [18] After setting out the facts and noting the factual errors identified by the applicant in the material provided by the review panel and in the home assessment report, but without making any specific findings, the Board continued: “Reasons for the decision • The Parole Board took into account the Guidelines issued by the Queensland Parole Board and in particular that community safety must be the highest priority. However the Board independently exercised its discretion and ensured that your application was considered on its own merits without any inflexible application of policy. • The Board noted your concerns regarding an unnamed member of the Board and psychologist G Palk. The Board is of the view that you have not provided sufficient information for the Board to determine that a Board member -- 3 of 13 -- 4 may present with some bias or conflict of interest in relation to the consideration of your application for parole. The Board is of the view that G Palk was hired for an independent assessment of your suitability for parole, based on his qualifications and registration as a Psychologist, not on the basis of his past employment with the department. The Board is not of the view that utilising Mr Palk for such an assessment constitutes a conflict of interest or bias that would result in his report to be considered lacking independence or impartiality. • The Board noted that you are serving a period of 6 years and 24 days imprisonment for the head offence of rape (6 years) and sexual assaults x 3 (3 years) in relation to a 28 year old woman with cerebral palsy and spastic paraplegia. • The Board took into account the remarks made by the sentencing Judge at the time of passing sentence. In particular, the Board considered what was said concerning the offences, the rejection of your version of events, your lack of remorse and the severe detrimental impact on the victim. • The Board noted that you have at all times maintained your complete innocence of these offences. 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 full trial where all of the evidence was fully ventilated. In the criminal justice system, it is the role of the jury 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 notes your appeal against conviction was dismissed and your application for leave to appeal against sentence was refused. The Board must therefore proceed on the basis that you were guilty of these offences. • On this basis the Board noted that sexual offences involving rape and sexual assault have a detrimental impact on victims and also impact on the wider community. The Board noted that your offending has had a significant detrimental effect on your victim. Despite your innocence stance, the Board was concerned that the material before it did not suggest you fully comprehended the impact that your offending behaviour had caused to your victim and also to the wider community. • The Board took into account that prior to this period of imprisonment your criminal history was of a minor nature and dissimilar to your current offences. -- 4 of 13 -- 5 • The Board acknowledged and took into account your high security classification and your progression again within the Wolston Correctional Centre to residential accommodation since January 2008. • The Board noted you have voluntarily and actively participated in vocational or skill based programs and consider that the knowledge and skill gained will improve your employment and rehabilitation prospects in the community. • The Board noted your prior history of unacceptable behaviour within the correctional environment and noted that that there (sic) no more recent adverse report to the Board since your September 2008 breach of prison discipline. The Board recommended that you improve your performance and work to reduce your security classification. The Board was of the view that your continued and demonstrated self management over an extended period of time in the residential environment would give the Board a greater level of confidence in your ability to comply with the requirements of parole supervision. • The Board notes that within your submissions of 12 June 2008 and 23 February 2009 you insist that you cannot reduce your security classification below your current High classification, due to the nature of your offences. The Board notes that you have been convicted of offences listed under Schedule 1 of the CSA that do limit your placement in low security facilities, farms and work camps. However, the Board wishes to ensure you that this does not limit your ability to reduce your security classification. • The Board noted the Parole Board Assessment Report record of your interview regarding your denial of committing the offences and your belief that the complainant made the accusations for financial gain. The Board also noted the discrepancies in the version of events given by you at interview and those provided by you at trial and your change of version of events when confronted with your own defence as reported by the sentencing judge, (i.e. that the victim kissed you despite her severe handicap), and your reasoning that you had forgotten this element of the events. • The Board noted your Offender Risk Needs Inventory recommended that you complete the specialised assessment for sexual offending program. The Board noted that as a result of your specialised assessment for a sexual offending program you have been recommended to participate in the -- 5 of 13 -- 6 Getting Started: Preparatory Program. The Board noted that you have been assessed as suitable to undertake the Getting Started: Preparatory Program and that you have indicated that you will not undertake any program intervention in relation to sexual offending because of your claim of innocence. However, even if you maintain your innocence, the Board understands that you remain eligible for this program and that the program may assist you to have some insight into how you came to be the subject of these serious charges. Such an insight may ensure that you do not place yourself in such a situation again. From the Board's perspective, this may give it an indication that you have some insight into the circumstances of the charges and can take preventative measures to ensure you avoid such situations in the future. • Although not insisting that you do so, the Board encouraged you to undertake the Getting Started: Preparatory Program. That program is designed to assist offenders in overcoming resistance and other responsivity barriers to treatment; reduce anxiety and fears to enable them to learn and practice behaviours required in intensive group therapy; encourage the development of realistic expectations about themselves and others; and motivate them to participate in further group intervention. This program is generally between 6 - 8 weeks in duration and consists of 2 x 2.5 hour sessions per week. Your satisfactory completion of the program may well assist you in addressing your apparent lack of insight into your offending and in developing a realistic relapse prevention plan, indicating your understanding of your risk factors and providing appropriate strategies to assist in avoiding further offending. This would give the Board confidence that when you come across any of your risk factors or triggers you may act appropriately and so minimise your risk of re-offending in the community. • The Board considers that assessment of offenders by appropriately qualified individuals assists in identifying appropriate treatment targets and effective risk management strategies. Accordingly the Board advised you on 2 July 2008 that consideration of your application was to be deferred until the Board received a psychological assessment prepared to assist in its consideration of your application. • The Board took specific consideration of psychologist G Palk's assessments that your risk of re-offending for general offences was assessed as low-moderate, and that your assessed level of risk for future acts of violence or sexual offending was regarded as being in the moderate range. The Board noted your sexual re-offence risk factors and your -- 6 of 13 -- 7 unwillingness to participate in treatment programs to address your anger management issues or sexual offending, due to your innocence stance. The Board noted the author's view that your past inability to comply with work and behavioural directions within the prison environment might mean that you would have difficulty complying with the conditions of a parole order and that you could also benefit from other programs such as cognitive skills and general life and relationship courses to improve your social skills and increase your understanding about appropriate social and sexual relationships. • The author was of the view that you should complete such programs prior to being considered for parole. The Board noted the advice provided that you did not meet the criteria for the Making Choices Program which targets general offending for men. But the Board is of the view that you may pose a greater risk to the community if the specific factors in your sexual offending are not properly addressed. • The Board noted your concerns regarding the description of the offences as recorded by G Palk, but also noted that the description is the same as that recorded by the Judge in sentencing you. The Board notes your concerns about recording of self-reported information from your interview for the psychological report but also noted you provided no information to ensure the information was corrected. The Board noted that the dominant theme of your submissions was not to address the issues raised by the Board but to deconstruct those documents considered by the Board and question their validity. • The Board is of the view that your application for parole provided a limited consideration by you, to prevent you (or assist in preventing you) from relapsing into offending behaviour. You have not provided the Board with information to show that you can identify high risk factors/triggers other than avoiding being alone with or trusting people. The Board notes that your submission of 12 June 2008 provided details of external support you have identified will assist you in preventing relapse, but limited information on what activities or process you will undertake to involve your external support. You have specifically identified that you have not taken steps to address your behaviour and that you do not have any high risk factors as you did not commit the offence. However, the Board was concerned that you would be unable to avoid or manage situations or circumstances that have in the past led to criminal behaviours by you. -- 7 of 13 -- 8 • The Board had minimal indication that you had exhibited any understanding of victim empathy. There is limited evidence to suggest that you appreciate the situation that offences such as those for which you have been found guilty can have on victims. Had you indicated that you had at least a theoretical understanding of the effects of such offending, this may have indicated to the Board that this protective factor is operating. • In considering the risk you pose to the community if released on a parole order, the Board took into account: o the very serious sexual nature of your offences for which you were convicted; o that your appeal against conviction was dismissed and your application for leave to appeal against sentence was refused; o the significant detrimental effect your offending had on your victim; o your stance of innocence and as a result: ƒ your unwillingness to participate in program intervention in relation to sexual offending; ƒ your lack of empathy or remorse; ƒ your denial of having any outstanding needs in relation to your offending behaviour; o the assessment of your risk of sexual re-offending; and o the assessment and recommendations in relation to your treatment needs; and came to the view that were you to re-offend while on a parole order that the risk a member of the community would suffer physical or psychological harm was high. • On this basis, the Board is of the view that unless those issues related to your offending behaviour are addressed or there is some evidence that you have minimised your risk of re-offending in the community, it is difficult for the Board to be reassured that your release to parole supervision would be both safe and appropriate in your circumstances. After taking into account all of the relevant factors of your case, both positive and negative, the Board formed the view that at that time you posed an unacceptable risk to the community and decided to decline your application for a parole order.” [19] In relation to Mr Palk’s report, the applicant specifically rejected the statement that he had demonstrated an inability to comply with work and behavioural directions. On the contrary, the applicant advised me that he was in the residential section of the prison which provided a degree of freedom not available in the secure section. Residential status was confined to prisoners in whom the authorities had a degree of trust and represented a privilege. -- 8 of 13 -- 9 [20] Further, the applicant was employed in the kitchen, which again was said to demonstrate a degree of trust in him by the authorities. [21] Mr Palk’s reasons for his recommendation against the grant of parole were plainly an important factor in the Board’s decision and were the subject of submissions by the applicant. I therefore consider it important to set them out in full: “Diagnostic Considerations 14.7 Clinical and psychometric assessment undertaken by the writer indicated that Mr. Cutts functions in the high average range of intelligence with a Full Scale IQ of 101. There was no indication of major neuropsychological deficits. 14.8 On the surface Mr. Cutts presents as an individual who is intelligent and articulate. However, he has a history of poor social relationships, many short term employment positions and many short term relationships. He has a long history of sexual promiscuity and history of aggression and violent outbursts within the family situation. There was some evidence that his aggression is tempered by medication. The prisoner reported a history of poor concentration and frustration which is also alleviated by medication. Some of these problems may be related to his reported diagnosis of ADHD. 14.9 There was no evidence that the prisoner currently suffers from psychosis or a major depressive disorder. There was evidence of antisocial tendencies with a history of hypersexual activity. He seems to have little interest in establishing a long term committed relationship. He was somewhat boastful about his sexual encounters and he lacked insight into the factors that contribute to meaningful and stable relationships. He has a history of poor behavioural controls, sexual promiscuity and impulsivity and very little insight into the factors that led to his imprisonment. 14.10 The CPS profile revealed that Mr. Cutts is the type of individual who sees himself as a victim of circumstance and he tends to blames others for his difficulties. For instance, as mentioned he sees his current imprisonment as a result of his legal team not following his instructions and a false complaint by the victim. He denied the sexual offences and displayed no empathy for the victim or remorse for his offences. His long history of sexual promiscuity and lack of commitment to a stable relationship is indicative of an individual who is largely self-centred. Although the prisoner does not meet the criteria to be classified as a Psychopath in accordance with the PCL-R criteria his test scores were in the high range which is indicative of strong antisocial -- 9 of 13 -- 10 tendencies. There was some evidence of superficial charm, glibness and grandiosity, particularly with regards to his sexual encounters. The prisoner does exhibit many features of the Antisocial Personality Disorder as defined in the DSM-IV-TRIBUNAL 14.11 Overall, Mr. Cutts is an intelligent man who is emotionally immature. He seems to regard his numerous sexual encounters as normal. He has limited insight into how his poor behavioural controls related to his aggression and sexual promiscuity has resulted in his imprisonment. In his favour there is no evidence of a history of substance misuse and he seems to have been able to maintain employment. His previous history of offending has been restricted to mainly traffic offending and domestic violence. There is no history of previous convictions for sexual assaults. However, he does have a history involving an inability to maintain satisfactory relationships in the home and in social settings. Risk of Re-Offending and Suitability for Parole 14.12 Mr. Cutts' level of risk for committing further general offences is assessed as low-moderate on the CPS and his level of risk for furore acts of violence or sexual offending is regarded as being in the moderate range according to measures on the SORAG, SONAR and SVR-20. 14.13 The key sexual re-offence risk factors for Mr. Cutts include the following: lack of appropriate social relationships; emotional immaturity; little ability to be introspective; strong sexual impulses and hypersexual activity; opportunities to access vulnerable victims such as working in the nightclub scene or in volunteer positions for the disadvantaged; and inability ,to accept responsibility for his sexual offences and display empathy for the victim. 14.14 The writer believes that although Mr. Cutts is unwilling to participate in treatment programs to address his sexual offending due to his stance of innocence, he could benefit from undertaking other types of treatment programs. For example, he has a history of aggressive outbursts that have caused problems for his family and a previous relationship. Consequently, completing an anger management program may assist him to develop suitable behavioural and cognitive strategies to manage his aggressive tendencies. In addition, he could also benefit from other programs such as cognitive skills and general life and relationships courses. These types of programs may assist Mr. Cutts to improve his -- 10 of 13 -- 11 social skills and increase his understanding about appropriate social and sexual relationships. 14.15 The writer believes that Mr. Cutts should complete these programs prior to being considered for release to parole. In addition, Mr. Cutts also needs to demonstrate that he can comply with work and behavioural directions within the prison environment. Some concerns have been expressed about Mr. Cutts' psychological report on Winston Gerald Cutts by Gavan Palk general conduct in prison and hence the writer is concerned he may have difficulty complying with parole conditions. The writer accepts that many of Mr. Cutts behavioural violations in the custodial setting are minor and may well be related to his ADHD. However, minor violations on parole can result in a return to prison. Mr. Cutts might also benefit from Mindfulness Therapy that could assist to him to mange his ADHD symptoms and minor behavioural violations. Mr. Cutts needs to demonstrate that he is genuine in his desire not to return to prison. This can best be achieved by Mr. Cutts completing the anger management and cognitive skills programs and displaying compliant behaviour within the prison environment. At this stage the writer does not believe Mr. Cutts is suitable for parole and his future suitability should in part be determined by his response to completing appropriate treatment programmes that address his social skill deficits.” [22] Mr Palk’s assessment of violent tendencies appears to be based, at least in part, on a history of convictions for breach of domestic violence orders. The applicant has convictions for such breaches in 1995 and on two separate occasions in 1998. [23] The lack of empathy and sense of victimisation was a conclusion Mr Palk drew from self reporting by the applicant during the interview. The balance of the assessment recognises the applicant’s ability to hold employment and does not appear to be greatly influenced by his prison classification or the extent of his alleged misbehaviour in jail. The evidence of the applicant’s conduct in prison comes from the review panel report which, beyond saying that the relevant incidents were not his fault, the applicant did not challenge. [24] Mr Palk recognised that the behavioural complaints were minor and took them rather as indicative of his diagnosis of features of an underlying personality disorder rather than being, in themselves, a reason to refuse parole. [25] All of this appears to be recognised by the Board in their reasons. [26] I now turn to the grounds articulated by the applicant as the basis for setting aside the Board’s decision. [27] The allegation of breach of natural justice has no substance. The applicant was given the opportunity to address the Board’s concerns in detail. In fact, he took that opportunity. The rules of natural justice do not require personal attendance in every -- 11 of 13 -- 12 case. All that is required is a proper opportunity to address those matters thought to be adverse to the applicant. That opportunity has been afforded. A personal appearance by a prisoner before the Board is only permitted with the Board’s leave.1 The application must be in the approved form.2 There is no evidence that such an application in the approved form was made. [28] There is no substance in the complaint about the Board meeting by telephone. This is expressly permitted by s 238(4) of the Corrective Services Act 2006 (Qld) and generally by s 238(13). [29] I do not consider that prior employment within corrective services disqualifies Mr Palk from providing expert evidence in matters such as this where he does so as an experienced forensic psychologist and academic. There is no material put forward which indicates that his opinion is other than honestly held and frankly expressed. That he was paid for the report is immaterial. The same complaint could be levelled at any expert providing evidence in such proceedings. I am not satisfied that Mr Palk was biased or that there could be any reasonable apprehension of bias on the material before me. [30] The existence of factual errors do not invalidate the decision making process. The Board was aware of the factual disputes and noted them in the statement of reasons. To the extent that the reasons for the decision rely on a version of those facts other than that given by the applicant, the Board must be taken to have rejected the applicant’s submissions. That is not a proper matter for review unless there was no evidence for the Board’s finding. Here, the Board was entitled to prefer one version of the facts over another and to the extent it has done so this Court will not interfere. [31] The final matter raised by the applicant in his oral submissions concerns the alleged requirement that the applicant complete a sex offender course when his insistence on his innocence makes him ineligible. [32] This ground must fail for two reasons. First, the Board expressly found that the applicant had been approved for the Getting Started: Preparatory Programme but had declined to undertake that course. The Board found that maintaining his innocence did not preclude the applicant from undertaking that course. In any event, completion of any course was not said to be mandatory. However, in light of Mr Palk’s report, the Board was entitled to take the view that, in the absence of any behavioural modification course, the underlying concerns expressed by Mr Palk made the applicant an unacceptable risk if released on parole. These factors were personal to the applicant and represented, in my view, a decision based on the particular facts of the case, rather than on any rigid application of policy. In this sense, the decision is more closely aligned to my decision in Fogerty v Department of Corrective Services [2002] QSC 207, rather than my decision in Batts v Department of Corrective Services [2002] QSC 206. [33] In addition to the grounds the applicant identified in his oral presentation, the written material objects to the requirement that the applicant furnish a relapse prevention plan as part of his parole application. The only purpose of the plan is to demonstrate an awareness by the applicant of the factors which heighten the risk of 1 Corrective Services Act 2006 (Qld), s 189(3). 2 Corrective Services Act 2006 (Qld), s 190. -- 12 of 13 -- 13 reoffending and the development of strategies to avoid those risks. These are legitimate areas in which the Board should be concerned. There is nothing in the Board’s reasons to demonstrate that the document itself carried any particular weight. Rather, a failure to provide a plan had the consequence that these concerns were simply not addressed by the applicant. Hence, I am not satisfied that any error has been displayed in this respect. [34] For the reasons I have set out, the application for judicial review is dismissed with costs to be assessed on the standard basis. -- 13 of 13 --