Davis v Queensland Community Corrections Board [2004] QSC 239

State Reporting Bureau [am3®sc.s 3<i Queensland Government Department of Justice and Attorney-General 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 BYRNE J REVISED COPIES ISSUED State Reporting Bureau Date: 29 June, 2004 No BS2439 of 2004 ANTHONY JOHN DAVIS Applicant and QUEENSLAND COMMUNITY CORRECTIONS Respondent BOARD BRISBANE .. DATE 24/06/2004 JUDGMENT WARNING: The publication of information or details likely to lead to the identification of persons in some proceedings is a criminal offence. This is so particularly in relation to the identification of children who are involved in criminal proceedings or proceedings for their protection under the Child Protection Act 1999, and complainants in criminal sexual offences, but is not limited to those categories. You may wish to seek legal advice before giving others access to the details of any person named in these proceedings. 1 4th Floor, The Law Courts, George Street, Brisbane, Q. 4000 Telephone: (07) 3247 4360 Fax: (07) 3247 5532 -- 1 of 4 -- HIS HONOUR: This is an application for judicial review of the decision of the respondent Board to refuse the applicant post prison community-based release. 24062004 T6/JLP15 M/T 1/2004 (Byrne J) Such a decision was, presumably, made shortly after 30th January this year when the Board received the applicant's indication that he did not wish "to appeal the (Board's) decision" to decline his application for a community-based release order. 10 20 The decision to which the applicant was referring in his letter was the intimation conveyed by the Board's letter of 21st January. This was that, principally because of the contents of a then recent report from the psychiatrist, Dr Kar, to the effect that the applicant was a "dangerous 30 predatory paedophile" who would remain a "significant danger to the community for the rest of his life", the Board was disposed to refuse the application in the absence of further submissions within 14 days. 40 Despite having elected not to make such submissions and instead not to contest the Board's provisional decision to refuse his application, the applicant now contends that the Board's refusal of his application was, in a word, unlawful. 50 ■Essentially, the applicant's case is that the Board was not in law entitled to have regard to Dr Kar's report. This report had been brought into existence in December 2003, not long after a consultation between the practitioner and the 2 JUDGMENT 60 -- 2 of 4 -- 1 applicant. The applicant has today made some complaints about the way in which the consultation proceeded. It is unnecessary to dwell on them. None appears to have substance, which may perhaps explain why none was advanced to the Board in response to its invitation to make submissions. The only matter meriting discussion is the contention that Dr Kar's report was not "information" to which the Board was entitled to have regard under section 139 of the Corrective Services Act 2000 in declining to give effect to the sentencing Judge's recommendation that the applicant be eligible for parole after serving four and a half years of the 12 years' imprisonment imposed on 2nd December 1997. In particular, the applicant contends that the Board was not entitled to act on information adverse to him which came into existence after the recommended parole eligibility date. Now, there is nothing in the Act to indicate such a limitation on the material which the Board might consider in evaluating an application for a community-based release order. This is scarcely surprising. The alternative contention was, in substance, that, if the Board was entitled to consider Dr Kar's opinion, nonetheless, it fell to be evaluated with other pertinent information: in particular, that the applicant had twice successfully completed a sexual offenders treatment program, and spent a period in an open security environment. 24062004 T6/JLP15 M/T 1/2004 (Byrne J) 10 20 30 40 50 3 JUDGMENT 60 -- 3 of 4 -- But there is no reason to suppose that such information was 1 ignored by the Board. To the contrary, the evidence discloses that the material upon which the applicant relies in this regard was before the Board; and there is no sufficient reason to conclude that it was not accorded due consideration. 10 Plainly, Dr Kar's highly adverse report was influential in the Board's decision to decline the application. The Board, however, was entitled so to regard it. 20 I should perhaps add that there is nothing to suggest that the Board failed appropriately to take into account the sentencing Judge's parole recommendation . 24062004 T6/JLP15 M/T 1/2004 (Byrne J) No ground for judicial review has been made out. The application is therefore dismissed. 30 HIS HONOUR: The application is dismissed with costs. 40 50 4 JUDGMENT 60 -- 4 of 4 --