Cuzack v Queensland Parole Board - [2010] QSC 264

SUPREME COURT OF QUEENSLAND

CITATION:

Cuzack v Queensland Parole Board [2010] QSC 264

PARTIES:

DAMIEN ROBERT CUZACK
(Applicant)
v
QUEENSLAND PAROLE BOARD
(Respondent)

FILE NO:

BS 3741 of 2010

DIVISION:

Trial Division

PROCEEDING:

Application

ORIGINATING COURT:

Supreme Court of Queensland

DELIVERED ON:

26 July 2010

DELIVERED AT:

Brisbane

HEARING DATE:

7 July 2010

JUDGE:

Boddice J

ORDERS:

1.    The application for a statutory order of review is allowed.

2.    The decision of the respondent made on 18 December 2009 be set aside.

3.    The applicant’s application for parole be referred to the respondent for further consideration and to be dealt with by the respondent according to law.

CATCHWORDS:

ADMINISTRATIVE LAW – JUDICIAL REVIEW – GROUNDS OF REVIEW – PROCEDURAL FAIRNESS – GENERALLY – where the applicant was sentenced to nine years imprisonment for various offences including armed robbery – where the sentencing judge recommended that the applicant be eligible for release on parole after three years imprisonment – where the respondent refused the applicant’s parole application, taking into account the applicant’s extensive criminal history, the fact that the applicant had not completed all recommended programs and the fact that the applicant was still a high security classification – whether the respondent breached the rules of natural justice.
ADMINISTRATIVE LAW – JUDICIAL REVIEW – GROUNDS OF REVIEW – OBSERVANCE OF PROCEDURES – where ordinarily a prisoner should be classified as low security prior to parole being granted – where the respondent has a discretion to approve a prisoner for parole when they have not achieved a low security classification if a parole eligibility date has been set by a court – whether the respondent failed to observe procedures required by law.

ADMINISTRATIVE LAW – JUDICIAL REVIEW – GROUNDS OF REVIEW – ERROR OF LAW – where the respondent considered the applicant’s failure to complete recommended programs as new information that was not before the Court at the time of sentencing under s 192 of the Corrective Services Act 2006 (Qld) – whether the respondent has erred in law.
ADMINISTRATIVE LAW – JUDICIAL REVIEW – GROUNDS OF REVIEW – IRRELEVANT CONSIDERATIONS – where the respondent refused the applicant’s parole application, taking into account the applicant’s extensive criminal history, the fact that the applicant had not completed all recommended programs and the fact that the applicant was still a high security classification – where the applicant submits that the respondent also took into account past offences that have been discontinued or dismissed – whether the respondent has taken into account an irrelevant consideration.
ADMINISTRATIVE LAW – JUDICIAL REVIEW – GROUNDS OF REVIEW – RELEVANT CONSIDERATIONS – where the applicant is required to complete certain recommended programs before he can progress to a low security classification – where the applicant has applied to participate in these programs but has been unable to do so, through no fault of his own – whether the respondent has failed to take into account a relevant consideration.

ADMINISTRATIVE LAW – JUDICIAL REVIEW – GROUNDS OF REVIEW – APPLYING…

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: [2010] QSC 264
Decision Date: 26 July 2010

CaseChat Overview and Summary

The case of Cuzack v Queensland Parole Board involved the applicant, who had been sentenced to nine years imprisonment for various offences, including armed robbery, seeking judicial review of the Board's refusal to grant parole. The sentencing judge had recommended the applicant be eligible for release on parole after serving three years, but the Board refused the application based on the applicant's extensive criminal history, failure to complete all recommended programs, and high security classification. The applicant argued that the Board breached the rules of natural justice, failed to observe procedures required by law, and considered irrelevant factors. The Board countered that it had discretion to refuse parole even if a low security classification had not been achieved, and that the applicant's failure to complete programs and high security classification were relevant considerations.

The court was required to determine whether the Board breached the rules of natural justice, failed to observe procedures required by law, erred in law, took into account irrelevant considerations, failed to take into account relevant considerations, and adhered to a rule or policy without considering the application on its merits. The central issues were whether the Board's decision to refuse parole, despite the applicant's eligibility, was lawful and whether the Board considered relevant and irrelevant factors appropriately.

The court found that the Board breached the rules of natural justice by considering the applicant's failure to complete recommended programs as new information, which was not before the Court at the time of sentencing. The Board also failed to observe procedures required by law by not classifying the applicant as low security prior to granting parole. Furthermore, the Board erred in law by considering the applicant's failure to complete programs as a new factor and took into account irrelevant considerations by considering past offences that had been discontinued or dismissed. The Board also failed to take into account relevant considerations by not considering that the applicant had applied to participate in the recommended programs but was unable to do so through no fault of his own. Finally, the court found that the Board had adhered to a rule or policy without considering the application on its merits by refusing parole despite the applicant's eligibility.

The court set aside the Board's decision and referred the applicant's parole application for further consideration according to law. The applicant's application for a statutory order of review was allowed, and the decision made on 18 December 2009 was set aside.

Orders

Orders of the court

1. The application for a statutory order of review is allowed.

2. The decision of the respondent made on 18 December 2009 be set aside.

3. The applicant’s application for parole be referred to the respondent for further consideration and to be dealt with by the respondent according to law.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	Cuzack v Queensland Parole Board [2010] QSC 264
PARTIES:	DAMIEN ROBERT CUZACK (Applicant) v QUEENSLAND PAROLE BOARD (Respondent)
FILE NO:	BS 3741 of 2010
DIVISION:	Trial Division
PROCEEDING:	Application
ORIGINATING COURT:	Supreme Court of Queensland
DELIVERED ON:	26 July 2010
DELIVERED AT:	Brisbane
HEARING DATE:	7 July 2010
JUDGE:	Boddice J
ORDERS:	1. The application for a statutory order of review is allowed. 2. The decision of the respondent made on 18 December 2009 be set aside. 3. The applicant’s application for parole be referred to the respondent for further consideration and to be dealt with by the respondent according to law.
CATCHWORDS:	ADMINISTRATIVE LAW – JUDICIAL REVIEW – GROUNDS OF REVIEW – PROCEDURAL FAIRNESS – GENERALLY – where the applicant was sentenced to nine years imprisonment for various offences including armed robbery – where the sentencing judge recommended that the applicant be eligible for release on parole after three years imprisonment – where the respondent refused the applicant’s parole application, taking into account the applicant’s extensive criminal history, the fact that the applicant had not completed all recommended programs and the fact that the applicant was still a high security classification – whether the respondent breached the rules of natural justice. ADMINISTRATIVE LAW – JUDICIAL REVIEW – GROUNDS OF REVIEW – OBSERVANCE OF PROCEDURES – where ordinarily a prisoner should be classified as low security prior to parole being granted – where the respondent has a discretion to approve a prisoner for parole when they have not achieved a low security classification if a parole eligibility date has been set by a court – whether the respondent failed to observe procedures required by law. ADMINISTRATIVE LAW – JUDICIAL REVIEW – GROUNDS OF REVIEW – ERROR OF LAW – where the respondent considered the applicant’s failure to complete recommended programs as new information that was not before the Court at the time of sentencing under s 192 of the Corrective Services Act 2006 (Qld) – whether the respondent has erred in law. ADMINISTRATIVE LAW – JUDICIAL REVIEW – GROUNDS OF REVIEW – IRRELEVANT CONSIDERATIONS – where the respondent refused the applicant’s parole application, taking into account the applicant’s extensive criminal history, the fact that the applicant had not completed all recommended programs and the fact that the applicant was still a high security classification – where the applicant submits that the respondent also took into account past offences that have been discontinued or dismissed – whether the respondent has taken into account an irrelevant consideration. ADMINISTRATIVE LAW – JUDICIAL REVIEW – GROUNDS OF REVIEW – RELEVANT CONSIDERATIONS – where the applicant is required to complete certain recommended programs before he can progress to a low security classification – where the applicant has applied to participate in these programs but has been unable to do so, through no fault of his own – whether the respondent has failed to take into account a relevant consideration. ADMINISTRATIVE LAW – JUDICIAL REVIEW – GROUNDS OF REVIEW – APPLYING…