Basacar v the Parole Board - [2009] QSC 301

[2009] QSC 301

SUPREME COURT OF QUEENSLAND

CIVIL JURISDICTION

P LYONS J

No 7108 of 2009

FAHRI BASACAR	Applicant
and
THE PAROLE BOARD	Respondent

BRISBANE

..DATE 16/09/2009

ORDER

HIS HONOUR: Mr Basacar has been sentenced to a term of imprisonment of eight years, the sentence having been imposed on the 1st of March 2006. He has previously applied for and been refused exceptional circumstances parole.

On 4 March 2009 he made a further application for exceptional circumstances parole. On 1 July 2009, by virtue of section 193 subsection (5) of the Corrective Services Act 2006 the applicant's application was deemed to be refused.

Mr Basacar then filed an application for review of that refusal on the 3rd of July 2009 in respect of which he was successful as a result of an order made by P D McMurdo J on 13 August 2009.

On 28 August 2009 the board considered the application and declined it. On the 1st of September 2009 it provided reasons.

...

HIS HONOUR: The application filed on the 3rd of July 2009 has been treated by both parties as extending to the decision made on 28 August 2009.

In the reasons, the following appears:

"In your current application, you have not presented to the board with any plan that you developed that is conducive to preventing the possibility of your relapse into offending behaviour. In your parole panel assessment interview it is recorded that you do not believe you needed such a plan as you are maintaining your innocence."

Mr Basacar points out that his application did in fact include a relapse prevention plan which commences at page 10 of the application and continues for a number of pages.

Reading the paragraph of the reasons which has been set out above, it seems to me that that does not represent a consideration of the document provided by Mr Basacar and a determination that it is not sufficient to provide material assistance to Mr Basacar in his attempts to avoid the commission of offences in the future. Rather it seems to me to represent a failure to recognise that any plan had been provided.

The provision of such a plan was obviously regarded by the board as a material matter. I am therefore of the view that it has failed to take into account a material consideration, namely the plan presented by Mr Basacar. It has therefore failed to consider the plan and determine what significance, if any, might be attached to it in coming to the decision to which it came.

The reasons conclude with the following statement:

"After taking into account all of the relevant factors of your case, both positive and negative, the board formed the view that you posed an unacceptable risk of harm to the community and declined your release on exceptional circumstances parole."

That followed a consideration of the circumstances relied upon by the applicant, including what was described as "a stressful and regrettable situation" and "the present unfortunate and serious…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2009] QSC 301
Decision Date: 16/09/2009

CaseChat Overview and Summary

In the Supreme Court of Queensland, Fahri Basacar sought judicial review of a decision by the Parole Board to refuse him exceptional circumstances parole. Basacar, who had been sentenced to eight years in prison in 2006, had previously applied and been refused parole on exceptional circumstances. He filed an application for review of the refusal of his latest parole application, which was initially successful, but the board subsequently declined his application and provided reasons for its decision.

The legal issues before the court were whether the board had failed to take into account a material consideration by not recognising the relapse prevention plan submitted by Basacar, and whether it had failed to consider changes in his conduct since the commission of the offences that bore on the risk of future offending. The court examined the reasons provided by the board and found that they did not adequately consider the relapse prevention plan or changes in Basacar's conduct.

The court found that the board had failed to take into account a material consideration by not recognising the relapse prevention plan submitted by Basacar. The court also found that the board had failed to consider changes in Basacar's conduct since the commission of the offences that bore on the risk of future offending. The court considered relevant authorities and concluded that the decision in Graf v Central & North Queensland Regional Parole Board [2009] QSC 280 did not warrant a different conclusion. The court allowed the application and set aside the decision of the parole board.

The court remitted the application to the parole board to be considered in accordance with the law, directing that a transcript be provided of the argument and reasons in this matter.

Orders