Buckley v Queensland Parole Board

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SUPREME COURT OF QUEENSLAND

CITATION:

Buckley v Queensland Parole Board [2017] QSC 41

PARTIES:

JASON CHARLES BUCKLEY

(applicant)

v
QUEENSLAND PAROLE BOARD

(respondent)

FILE NO:

BS10933 of 2016

DIVISION:

Trial Division

PROCEEDING:

Application for a statutory order of review

DELIVERED ON:

24 March 2017

DELIVERED AT:

Brisbane

HEARING DATE:

8 February 2017

JUDGE:

Mullins J

ORDERS:

1. Application dismissed.
2. The applicant must pay the respondent’s costs of the application.

CATCHWORDS:

ADMINISTRATIVE LAW – JUDICIAL REVIEW – GROUNDS OF REVIEW – IRRELEVANT/RELEVANT CONSIDERATIONS – where prisoner who was serving a sentence of 22 years for rapes of three unrelated victims and associated offences applied for parole – where application was refused – where Board referred to historical material that came into existence in relation to the prisoner’s sentencing that recorded claims by him of involvement in animal cruelty and bestiality – where the prisoner withdrew those claims by statutory declaration made in 2014 – whether the Board’s reference to that historical material amounted to taking into account those claims of animal cruelty and bestiality when they were not proved – where the prison had administered a Sexual Offending Program Assessment and the STABLE 2007 assessment for the purpose of recommending programs and treatment for the prisoner – where the substance of those assessments was embedded in the material before the Board – whether the fact that the actual assessments were not before the Board amounted to a failure to take into account a relevant consideration – whether the Board had failed to disclose and put the substance of the assessments to the prisoner – whether there was any breach of the rules of natural justice  


Corrective Services Act 2006 (Qld), s 3, s 227
Judicial Review Act 1991 (Qld), s 20

Buckley v The Queen (2006) 224 ALR 416; [2006] HCA 7, related
Minister for Aboriginal Affairs v Peko-Wallsend (1986) 162 CLR 24; [1986] HCA 40, considered
R v Buckley [2008] QCA 45, related

COUNSEL:

J W J Fenton  for the applicant

M J Woodford for the respondent

SOLICITORS:

Fisher Dore Lawyers for the applicant

G R Cooper, Crown Solicitor for the respondent

  1. Mr Buckley is serving a period of imprisonment of 22 years. He applied for parole on 20 September 2015. The Queensland Parole Board deferred making the decision and ultimately requested that a psychiatric assessment be prepared by psychiatrist Dr Sundin. Dr Sundin interviewed Mr Buckley for two hours on 19 February 2016 and prepared a written report dated 3 March 2016 that was provided to the Board. The Board considered the matter on 18 March 2016 and formed the preliminary view to decline the application for parole and invited Mr Buckley to make further written submissions. Further submissions were made on behalf of Mr Buckley and ultimately the Board considered the matter on 22 July 2016 and refused the application for parole. A statement of reasons was supplied by the President and Board on 13 September 2016. The applicant applies under s…

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Details
Case
[2017] QSC 41
Decision Date

CaseChat Overview and Summary

The case of Buckley v Queensland Parole Board involves an application for judicial review of a decision by the Queensland Parole Board to refuse parole to the applicant, Mr Buckley, who was serving a sentence of 22 years for multiple counts of rape and associated offences. The primary contention raised by Mr Buckley was that the Board had erred by taking into account historical material that included unverified claims of animal cruelty and bestiality made by Mr Buckley during his sentencing phase. Mr Buckley argued that these claims, which he subsequently withdrew through a statutory declaration, were irrelevant and should not have influenced the Board’s decision.

The central legal issues before the court were whether the Board had improperly considered the unverified claims of animal cruelty and bestiality, and if the Board had failed to take into account relevant considerations by not disclosing and discussing the Sexual Offending Program Assessment (SOPA) and the STABLE 2007 assessment with Mr Buckley. Additionally, the court had to determine if there had been any breach of the rules of natural justice.

In its reasoning, the court examined the Board's statement of reasons and found that the Board had acknowledged the relevance of Mr Buckley's withdrawn claims but had not acted upon them as factual findings. Instead, the Board considered these claims as part of assessing Mr Buckley's credibility and risk level. The court noted that the Board had correctly avoided treating the unverified claims as factual truths. Regarding the SOPA and STABLE 2007 assessments, the court found that although the actual documents were not before the Board, the substance of these assessments was embedded in the material available to the Board. Consequently, the court concluded that there was no failure to consider relevant information.

The court ultimately dismissed the application for judicial review, holding that the Board had not taken into account irrelevant considerations nor failed to consider relevant ones. The court further found that there was no breach of natural justice in the Board's proceedings. As a result, the applicant was ordered to pay the respondent's costs of the application.

Orders

Orders of the court

1. Application dismissed.

2. The applicant must pay the respondent’s costs of the application.

Background

Background to the litigation

Neither the SOPA nor the result of applying STABLE 2007 to the applicant are listed in the materials that were before the Board. Mr Buckley therefore relies on the SOPA and/or the STABLE 2007 as matters which the Board should have considered and therefore, apart from the breach of the rules of natural justice in not disclosing or putting those matters to Mr Buckley, it is asserted the Board failed to take them into account as a relevant consideration in deciding the application for parole. Relevant background of Mr Buckley The following summary is taken from material that was before the Board. Mr Buckley is 45 years old. On 6 June 2003 he pleaded guilty to five counts of rape, one count of burglary by breaking in the night with violence, one count of indecent assault and one count of grievous bodily harm. For each of the rapes he was eventually sentenced to imprisonment for a period of 22 years and given lesser concurrent sentences on the other offences. He had been in pre-sentence custody from 27 April 2000. His full time discharge date is therefore 26 April 2022. The five rape offences were committed against three separate victims and were unrelated offences. The first victim aged 20 years was stalked and attacked when alone in her yard, sodomised and raped. The second victim aged 67 years was attacked around 5am in her bedroom, dragged into her yard, and digitally raped and sodomised. The third victim aged 15 years was chased at 1am and brought down in the vicinity of parkland and was raped a number of times. Information before Board on alleged animal cruelty and bestiality For the purpose of the original sentencing, Mr Buckley’s lawyers had him assessed by psychiatrist Dr Moyle who prepared a report dated 29 July 2003 after interviewing Mr Buckley on 25 June 2003. Dr Moyle had previously assessed Mr Buckley for the purposes of the Mental Health Tribunal, so that the June 2003 interview was to update Dr Moyle’s knowledge of Mr Buckley. Paragraph 9 of the report set out what Mr Buckley reported in respect of when at around 19 or 20 years old he obtained a job with the council:“There he started drinking heavily getting into fights and indulging in voyeurism ie looking in windows, and had sexual experiences with animals. A lot has been made in the other reports of his sex with animals. He described climbing on railings and yards but denied injuring the horses. He believed that he was so small by comparison they hardly knew he was there. In his mind it was cleaner to do that than have sex with women. He denied any animal sex when he was 17 or 18 when in the country shooting roos. It occurred when he was unhappy and in a dark frame of mind with self loathing, feeling he was worth nothing and needing the release of sex.” At paragraph 20 of his report, Dr Moyle recorded:“During the time the rapes took place nothing mattered to him. He felt the need to inflict pain and hurt to ‘make sex horrific’ instead of pleasurable. He recalled as a child, pleasure led to him becoming addicted to the after affects of sex. He said ‘I lashed out and unfortunately three people suffered for it.’ He also acknowledged killing a couple of animals, quickly and cleanly, and having sex with their cadavers, this was described by Professor Yellowlees. He denied that they were killed in a cruel fashion. He said they were wild horses who couldn’t be restrained to allow him to engage in his unusual sexual acts. He was at a particular low point at that time also.”

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Dr Sundin in the section of her report entitled “Risk Assessment” recorded assessing Mr Buckley on a number of risk assessment instruments. In respect of STATIC 99R, Dr Sundin noted:“On the Static-99R, Mr Buckley scores 7, which places him amongst the group of offenders considered to be at high risk for future sexual offending. The Static-99R evolved out of the Static-99 and estimates potential for future sexual recidivism based on historical factors, with the modified revised form taking account of the prisoner’s age at likely release.”The Board’s decision The Board had sent a letter to Mr Buckley dated 5 April 2016 advising of the Board’s preliminary view that the application for parole should be declined. That letter enclosed copies of the documents considered by the Board and set out the factors which led to the Board reaching that preliminary view, including its acceptance of Dr Sundin’s report, giving particular attention to the summary in that report of Dr Moyle’s report dated 29 July 2003, Dr Sundin’s summary of the High Court decision, Dr Sundin’s assessment using DSM-V, the HARE Psychopathy Rating Scale, the STATIC-99R and the Sexual Violence Risk Scale SVR-20. The Board noted that Mr Buckley was active on the SOMP, but that the issues of sexual deviance were not addressed in either HISOP or SOMP. The Board expressed its preliminary view that Mr Buckley presented an unacceptable risk of reoffending, if released to parole at this time. Mr Buckley’s solicitors made submissions to the Board by letter dated 1 June 2016 that Dr Moyle’s report, Dr Sundin’s report, the home assessment report dated 22 October 2015, the High Court decision, and the original sentencing remarks were irrelevant, as those documents all contained contentions that Mr Buckley had sex with, tortured and or killed animals, and Mr Buckley had never been charged or convicted of bestiality or animal cruelty in any form and had provided a statutory declaration that he had never committed that conduct. It was therefore submitted that it was beyond the Board’s role to consider reports that were based on sexual abuse of animals, as to do so would result in the Board finding him, in effect, guilty of those offences. The Board was therefore requested to remove the identified documents from the Board’s file and reconsider the application untainted by those documents. In relation to the submissions made by the applicant’s solicitors, the Board did not remove the identified documents from the Board’s file, but in the letter of 22 July 2016 notifying Mr Buckley that his application for parole was refused advised Mr Buckley in these terms:“Your legal representative submitted that the Board has effectively found you guilty of offences for which you have not been convicted, e.g bestiality, and in so doing acted beyond its jurisdiction and took an irrelevant matter into account. It is to be noted that the only evidence of your involvement in such activities came from you, when you discussed your case with Dr Moyle. It has been also noted that you have since then resiled from those confessions.The Board did not decide you were guilty of those other offences but is entitled to consider your likely level of credibility when assessing the level of risk you currently present to the community. It is in that regard that the Board considered your confession and withdrawal of confession. The Board has no way of knowing whether you were telling the truth when you spoke to Dr Moyle or whether you are now telling the truth; and that circumstance is relevant to the assessment of your risk.It was also submitted that the Board should not have considered either the sentencing judge’s comments or the High Court decision. In the Board’s view, it was entitled to consider both documents globally in order to assist it to assess your risk level.It was also submitted that the Board should not have considered Dr Moyle’s report. However, the Board considers it is entitled to take into account all psychiatric reports and to then give whatever weight might be appropriate to the various aspects of such reports.”

Ratio Decidendi

Legal Principle Established

Mr Phelan also provides information on a “Progression Plan” which is conducted on all prisoners who will be in custody for more than 12 months and includes recommendations related to rehabilitative programs, education, vocation and general institutional behavioural goals. The prisoner has input into the preparation of the Progression Plan and the prison staff review all available relevant sentencing and assessment information. Mr Buckley participated in a review of his Progression Plan on 12 May 2015 and on 21 May 2015 was provided with a completed copy of his Progression Plan. Did the Board take into account an irrelevant consideration? Although the amended application is expressed in terms that the reports of Drs Moyle and Sundin and the home assessment report dated 22 October 2015 comprise the irrelevant considerations, the argument on behalf of Mr Buckley was confined to those parts of those documents that contained the contentions that Mr Buckley had sex with, tortured and/or killed animals. The argument was developed in terms that Mr Buckley had never been charged or convicted of bestiality or animal cruelty in any form and in view of his statutory declaration that he never had sex with animals, there was no evidence before the Board which could found a conclusion that he had sex with animals. As the Board could not make the necessary findings of fact to support the allegations of bestiality in the reports, it was submitted those parts of the experts’ reports that recited Mr Buckley’s claims about conduct involving animals should have been accepted by the Board only if it were prepared to make findings of fact that supported those opinions and, as the Board did not, the reports were irrelevant. In the light of paragraph 11 of the Board’s statement of reasons that expressly states it did not decide Mr Buckley was guilty of offences involving animals, but took into account his claim to have committed animal offences and his withdrawal of those claims as relevant to Mr Buckley’s “likely level of credibility” when assessing the level of risk he currently presents to the community, it does not appear that the Board acted in the manner that is complained of by Mr Buckley. Mr Fenton of counsel who appeared on behalf of Mr Buckley submitted that paragraph 11 of the Board’s statement of reasons should not be taken at face value, the reasons should be read as a whole, and the emphasis in the reasons that can be discerned from the quotes from the documents which dealt with the disclosures at an early stage by Mr Buckley of animal sex and the like and other references to those disclosures must result in the conclusion that paragraph 11 of the Board’s statement of reasons does not truly represent the basis of its decision. Before the Board made the decision to refuse Mr Buckley’s parole, it had the benefit of submissions from Mr Buckley’s lawyers raising much the same issue that is now the ground for seeking review of the decision on the basis of taking into account an irrelevant consideration. Although the statement of reasons perhaps dwells more than necessary on the historical material which recorded Mr Buckley’s claims concerning animal sex and cruelty, the Board acknowledges the submission of Mr Buckley’s solicitors and expressly eschewed making the mistake to which the Board was alerted. In this regard the Board had the benefit of Dr Sundin’s report which provided psychiatric evidence on the relevance of the claims involving animals and the subsequent withdrawal by Mr Buckley of those claims on his risks, if released into the community. The Board avoided making the mistake of acting on the basis that Mr Buckley’s claims of animal cruelty and bestiality were true.