Boyy v Parole Board Queensland

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SUPREME COURT OF QUEENSLAND

CITATION:

Boyy v Parole Board Queensland [2018] QSC 175

PARTIES:

BRENTON WILLIAM-ALFRED BOYY

(Applicant)

v
PAROLE BOARD QUEENSLAND

(Respondent)

FILE NO/S:

BS No 814 of 2018

DIVISION:

Trial Division

PROCEEDING:

Application for an order of statutory review

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

3 August 2018

DELIVERED AT:

Brisbane

HEARING DATE:

18 July 2018

JUDGE:

Burns J

ORDER:

The order of the court is that the application be dismissed.

CATCHWORDS:

ADMINISTRATIVE LAW – JUDICIAL REVIEW – GROUNDS OF REVIEW – RELEVANT CONSIDERATIONS – where the respondent decided to decline the applicant’s parole application – where the applicant seeks a statutory order of review of that decision pursuant to s 20 of the Judicial Review Act 1991 (Qld) – whether the making of the decision was an improper exercise of the power conferred on the respondent by s 217 of the Corrective Services Act 2006 (Qld) – whether the respondent failed to take relevant considerations into account when making the decision

Corrective Services Act 2006 (Qld), s 3(1), s 180, s 192, s 193(1)(a), s 216, s 217, s 221, s 227, s 230, s 242E, s 243, s 245
Judicial Review Act 1991 (Qld), s 20, s 23
Penalties and Sentences Act 1992 (Qld), s 159A, s 160B, s 160C, s 161B
Supreme Court of Queensland Act 1991 (Qld), s 90(1)

Attorney-General (NSW) v Quin (1990) 170 CLR 1, cited
Calanca v Queensland Parole Board [2013] QSC 294, cited
Calanca v Queensland Parole Board [2017] 1 Qd R 1, cited
Gough v Southern Queensland Regional Parole Board [2008] QSC 222, discussed
McGrane v Queensland State Parole Board [2010] QSC 209, discussed
Minister for Aboriginal Affairs & Anor v Peko-Wallsend Ltd & Ors (1986) 162 CLR 24, followed
Queensland Parole Board v Moore [2012] 2 Qd R 294, considered
Wall v Central and Northern Queensland Regional Parole Board [2013] QSC 129, followed

COUNSEL:

The applicant appeared on his own behalf

M J Woodford for the respondent

SOLICITORS:

The applicant appeared on his own behalf
Crown Solicitor for the respondent

  1. The applicant prisoner applied to the respondent Board for release on parole, but his application was refused. By this application, he seeks a statutory order of review of that decision pursuant to s 20 of the Judicial Review Act 1991 (Qld). He complains that the making of the decision was an improper exercise of the power conferred on the Board by s 217 of the Corrective Services Act 2006 (Qld) because, he contends, the Board failed to take relevant considerations into account.[1]

    [1]Judicial Review Act 1991 (Qld), ss 20(2)(e), 23(a) and 23(b). Other grounds of review were advanced by the applicant but, for the reasons later expressed (at [41] to [44]), they were either not developed in submissions or were not supported by the material before the court.

    Background

  2. The applicant is 30 years of age.  On 26 September 2016, he pleaded guilty in the District Court in Brisbane…

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Details
Case
[2018] QSC 175
Decision Date

CaseChat Overview and Summary

In the case of Boyy v Parole Board Queensland, the applicant, a prisoner who had been convicted of grievous bodily harm and serious assault, applied to the Parole Board of Queensland for release on parole. His application was refused, and he sought a statutory order of review of that decision under s 20 of the Judicial Review Act 1991 (Qld). The central issue before the court was whether the Board's decision to decline the applicant's parole application constituted an improper exercise of its power under s 217 of the Corrective Services Act 2006 (Qld). Specifically, the applicant argued that the Board failed to consider relevant factors in making its decision.

The court examined the grounds for review, noting that two of the grounds could be dismissed as they lacked development and support in the material presented. The primary contention was that the Board acted on irrelevant considerations or failed to take into account relevant considerations when deciding to deny parole. The applicant argued that the Board did not adequately weigh the risks of releasing him at or towards the end of his sentence against the risks of granting earlier supervised release on parole, as suggested by the decision in Queensland Parole Board v Moore.

The court found that the applicant did not establish that the Board failed to take relevant considerations into account. It was noted that the Board had considered all submissions and material provided by the applicant, including the report prepared by Ms Jokic and the applicant's Relapse Prevention Plan. The Board's decision to deny parole was based on findings that the applicant posed an unacceptable risk to the community and was not a suitable candidate for parole. The court concluded that the Board's decision was a proper exercise of its discretion under the Corrective Services Act.

The court dismissed the application and ordered that the application be dismissed.

Orders

Orders of the court

The order of the court is that the application be dismissed.

Background

Background to the litigation

The applicant prisoner applied to the respondent Board for release on parole, but his application was refused. By this application, he seeks a statutory order of review of that decision pursuant to s 20 of the Judicial Review Act 1991 (Qld). He complains that the making of the decision was an improper exercise of the power conferred on the Board by s 217 of the Corrective Services Act 2006 (Qld) because, he contends, the Board failed to take relevant considerations into account.[1] [1]Judicial Review Act 1991 (Qld), ss 20(2)(e), 23(a) and 23(b). Other grounds of review were advanced by the applicant but, for the reasons later expressed (at [41] to [44]), they were either not developed in submissions or were not supported by the material before the court.Background The applicant is 30 years of age. On 26 September 2016, he pleaded guilty in the District Court in Brisbane to one count of grievous bodily harm and two counts of serious assault. The indictment reflected two episodes of violence perpetrated against three separate victims. The first involved a complete stranger who was walking down a city street when attacked by the applicant. The sentencing judge, her Honour Judge Clare SC, described what occurred: “It was gratuitous and vicious. You punched him in the mouth. The force was so powerful it knocked out not just his front teeth but the bone in which they grew. You broke his upper and lower jaw. He lost a lot of blood and suffered a serious facial deformity. And then you started choking him. Security officers had to pull you away and you fled. You were drunk and high. You had become angry after hotels had refused you entry and your partner had argued with you. To use your own words, you were in “terminator mode” – an irrational rage that resulted in the attack …”[2][2] Affidavit of Menaka Wickramasinghe filed on 16 March 2018, Ex MW-31, p 2. The second episode occurred when the applicant was in custody on remand. On that occasion, he reacted to directions given to him by two prison officers by punching one in the head and the other in the face before throwing a container of food at them. By the time of sentence, the applicant had accumulated an extensive criminal history in New South Wales, including several convictions for violence. As to this, and his background more generally, Clare SC DCJ made these remarks: “You have pleaded guilty to all offences and expressed remorse. Your plan is to return to New South Wales where your family live. At the time of the grievous bodily harm you were 27 years old and on parole with a substantial record for anti-social conduct. The history includes violence against people as well as property. Since you were a young fellow, Courts have warned you to control your anger. [Your counsel] has explained that you were the victim of violence. You had the disadvantage of a terrible childhood. But you have had opportunities for help over time, with various court orders designed to support your rehabilitation and development. There is a repetitive history against partners, against strangers and against law enforcement, that is, police, corrective services and judicial officers. Many periods of imprisonment and counselling have not deterred you. The subsequent reoffending in remand custody confirms the need for strong personal deterrence. At this time, you represent a danger to anyone who comes into contact with you.You cannot be sentenced again for the previous offences. Today’s sentence must be proportionate to what you did [and] not inflated by your past. The punishment can only be [for] the new crimes. But within those parameters community protection is of fundamental importance. Your own personal ambitions assume less significance than the need for deterrence, punishment and community denunciation.”[3][3] Ibid, pp 2-3.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

On 1 November 2017, the Board received submissions from the applicant in response to its 12 October letter. It is, however, to be noted that the Board also received further submissions from the applicant on 5 September 2017, 20 September 2017 and 17 October 2017 as well as a further set of submissions on 16 November 2017. The parole decision At its meeting on 16 November 2017, the Board decided to refuse the application for parole and wrote to the applicant on the same day to inform him of that outcome. Relevantly, it was stated: “The Board noted and considered thoroughly all your submissions provided to it. The Board determined that there was no new information provided to the Board that would alleviate the concerns as identified to you in its various letters to you dated 20 July 2017 and 12 October 2017. For the reasons set out in this letter and its previous letter to you the Board decided that you would be an unacceptable risk to the community on a parole order at this time and your application has been declined. The Board considered if it should indicate whether there are any improvements or activities which would be likely to reduce the risk you currently present to the community. The Board has decided that it would not be appropriate to give such an indication. You have received all the relevant material and have had the opportunity to respond to the Board’s concerns. The Board reaffirms these concerns (note any exceptions in light of the further submission). For the reasons set out in this letter and its previous letter to you the Board decided that you would be an unacceptable risk to the community on a parole order at this time and your application has been declined. The Board consents to you lodging a new application with the Board at any time six (6) months from the date of this decision, that being six months from 16 November 2017.”[19][19] Wickramasinghe, Ex MW-15, p 3. Subsequently, on 23 November 2017, the Board received a letter from the applicant requesting a statement of reasons and these were provided by letter dated 7 December 2017.[20][20] Applicant, Ex D-1.The Statement of Reasons The statement of reasons contains a list of material considered by the Board in reaching its decision to refuse parole. It includes Ministerial Guidelines issued to the Board on 3 July 2017.[21] The various submissions and supporting material supplied by the applicant, including the report prepared by Ms Jokic on 30 January 2017 and two successive versions of the applicant’s Relapse Prevention Plan (dated 30 January 2017 and 26 October 2017 respectively), also appear on the list. [21] Wickramasinghe, Ex MW-17. The statement of reasons records the Board’s findings of fact: that the applicant became eligible to apply for parole on 30 July 2017; that he had gained numerous certificates of completion for courses undertaken whilst in custody; that he had been approved for transfer to New South Wales if admitted to parole; that he had demonstrated poor custodial behaviour during the time he had been in custody; that he had outstanding treatment needs; and that he posed an unacceptable risk to the community and was not a suitable candidate for parole.[22] [22] Applicant, Ex D-5.

Ratio Decidendi

Legal Principle Established

Lastly, in written submissions prepared by the applicant on 24 January 2018,[51] he submitted that the “main focus of [his] argument” was based on a principle to be derived from the decision of the Court of Appeal in Queensland Parole Board v Moore[52] to the effect that it is both relevant and necessary for the Board to take into account, and weigh, the relative risks of discharging the prisoner at or towards the end of his sentence or of giving him earlier supervised release on parole.[53] In support of that argument, the applicant sought to rely on Ms Jokic’s report, contending that it established he would benefit from a longer rather than shorter period of parole during which the treatment recommended in that report could be provided.[51] Filed on 7 February 2018. Supplemented by a further document dated 9 February 2018 and received as Exhibit 4.[52] [2012] 2 Qd R 294.[53] Ibid, [17].Consideration By s 180 of the Corrective Services Act, an application for parole may be made if the prisoner has reached his or her parole eligibility date in relation to the relevant period of imprisonment. However, unless the sentencing court fixes a parole release date pursuant to s 160B of the Penalties and Sentences Act, a prisoner has no right to release on parole. Instead, although the prisoner will have become eligible for release on parole, it is for the Board to decide whether to grant the application: Corrective Services Act, ss 193(1)(a) and 217(a). Indeed, when deciding whether to grant parole, the Board is not bound by the recommendation of the sentencing court or the parole eligibility date fixed by the court if the Board receives information about the prisoner that was not before the court at the time of sentencing (such as a psychologist’s report obtained during the period of imprisonment) and, after considering that information, considers that the prisoner is not suitable for parole at the time recommended or fixed by the court: Corrective Services Act, s 192. That made clear, of the grounds identified in the application, the supporting affidavit, the written submissions and the amended summary of argument to which I have referred (at [36] to [39]), two may immediately be put to one side, namely: (1) the procedures required by law to be observed in relation to the making of the decision were not observed;[54] and (2) the decision involved an error of law.[55] Neither ground was sought to be developed beyond their inclusion in the grounds expressed in the initiating application and nor was there any support for either of them in the material. [54] See Judicial Review Act, s 20(2)(b).[55] See Judicial Review Act, s 20(2)(f). The remaining grounds were to the effect that the making of the decision was an improper exercise of the power conferred on the Board by s 217 of the Corrective Services Act because, it was argued, the Board acted on irrelevant considerations and/or failed to take relevant considerations into account. In that regard, and like the grounds just considered (in [41]), the applicant failed to identify any irrelevant considerations that were taken into account by the Board. Instead, the main thrust of his argument was that the matters extracted above (at [36] and [38]) were relevant to the decision whether to grant or refuse parole but, despite that, were not taken into account by the Board.[56][56] Transcript, 1-8.