Butler v Queensland Community Corrections Board

SUPREME COURT OF QUEENSLAND

CITATION:

Butler v Queensland Community Corrections Board [2001] QSC 034

PARTIES:

BARRY SHON BUTLER
(applicant)
v
QUEENSLAND COMMUNITY CORRECTIONS BOARD
(respondent)

FILE NO:

S7750 of 2000

DIVISION:

Trial Division

DELIVERED ON:

20 February 2001

DELIVERED AT:

Brisbane

HEARING DATE:

14 December 2000

JUDGE:

Mullins J

ORDER:

1.  That the time for bringing the application be extended to 6 September 2000;

2.  That the application be dismissed.

CATCHWORDS:

JUDICIAL REVIEW – DEFECTIVE EXERCISE OF POWER – whether decision not to grant parole/community release was an improper exercise of power conferred by Corrective Services Act 1988 (Q) – whether procedural fairness was denied in decision making process.

Corrective Services Act 1988
Judicial Review Act 1991 (Qld)

McEncroe v Queensland Community Corrections Board (unreported Sup Ct (Q) Thomas J, 8 September 1997)
Re Solomon [1994] 2 QdR 97
Williams v Queensland Community Corrections Board [2000] QCA 75

COUNSEL:

J C Davidson for the applicant
G P Long for the respondent

SOLICITORS:

Edwards Lawyers for the applicant
Barker Gosling for the respondent

1. MULLINS J:  This is an application for statutory order of review in respect of the decision of the respondent made on or about 19 May 2000 which is described in the application as a refusal to grant parole or other community release to the applicant.  The actual decision was that the application for parole, home detention and release be deferred until the applicant had successfully completed 6 months at a low or open security centre and also completed a lengthy leave of absence program.

1. There were two main grounds argued on the hearing of the application.  The first ground was that the making of the decision was an improper exercise of the power conferred by the Corrective Services Act 1988 ("the Act"). The argument was advanced in reliance on the decision in Williams v Queensland Community Corrections Board [2000] QCA 75; CA No 6237 of 1999; 17 March 2000; that the respondent failed to take into account the relevant factors of the parole recommendation of the sentencing judge and whether, in the public interest, the applicant should be released on parole to encourage others who might be minded to give co-operation to the authorities similar to that which he had given. As part of this ground of improper exercise of power, the applicant also alleged that the respondent's decision involved the exercise of a discretionary power in accordance with a policy that prisoners who have not completed six months at a low or open security centre should not be released on parole without regard to the merits of the applicant's case.

1. The second main ground was that the respondent failed to accord the applicant procedural fairness by failing to advise him of and allowing him to respond to matters that influenced the decision and which the applicant had had no opportunity of dealing with.

Facts

1. The applicant was born on 27 March 1965 and is therefore 35 years old.  He was sentenced in 1992 to a term…