Day v Queensland Parole Board - [2016] QSC 11

SUPREME COURT OF QUEENSLAND

CITATION:

Day v Queensland Parole Board [2016] QSC 11

PARTIES:

TREVOR DAY
(applicant)

v
QUEENSLAND PAROLE BOARD

(respondent)

FILE NO/S:

SC No 5174 of 2015

DIVISION:

Trial

PROCEEDING:

Originating Application

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

8 February 2016

DELIVERED AT:

Brisbane

HEARING DATE:

22 October 2015

JUDGE:

Philip McMurdo JA

ORDER:

Application refused

Further Order 8 February 2016: Applicant to pay the respondent’s costs in the proceeding

CATCHWORDS:

ADMINISTRATIVE LAW – JUDICIAL REVIEW – GROUNDS OF REVIEW – RELEVANT CONSIDERATIONS – where the applicant completed a sexual offending program – where the applicant submitted the respondent did not consider completion of the program – whether the respondent considered completion of the program

ADMINISTRATIVE LAW – JUDICIAL REVIEW – GROUNDS OF REVIEW – FETTERING DISCRETION – where the applicant had withdrawn from sexual offending rehabilitation – where the respondent referred to the withdrawal in its statement of reasons for refusing parole – where the applicant submitted that the respondent inflexibly applied a rule or policy – whether the respondent considered the facts and circumstances of the applicant’s case

ADMINISTRATIVE LAW – JUDICIAL REVIEW – GROUNDS OF REVIEW – RELEVANT CONSIDERATIONS – where the applicant submitted the respondent did not consider the time remaining before his full-time release date – where the applicant submitted the respondent did not consider the risk to the community of immediate unsupervised discharge – whether the respondent considered the risk to the community

Day v Queensland Parole Board [2015] QSC 89, cited

Gough v Southern Queensland Regional Parole Board [2008] QSC 222, cited

Queensland Parole Board v Moore [2012] 2 Qd R 294; [2010] QCA 280, distinguished

COUNSEL:

S A McLeod for the respondent

SOLICITORS:

The applicant appeared on his own behalf

Crown Law for the respondent

The applicant is serving a period of imprisonment of nine years which will expire on 30 May 2017. He became eligible for parole on 29 November 2012.
By this proceeding, the applicant seeks judicial review of the refusal of his third parole application, which was made on 5 February 2015 and refused on 26 March 2015.
His period of imprisonment is constituted by various terms imposed for sexual offences. There are terms of nine years for maintaining an unlawful relationship with a child and rape, two terms each of seven years for further offences of rape, a four year term for attempted sodomy and a two year term for the indecent treatment of a child under 16. Each of the sentences was imposed in October 2009.
Before refusing his application, the respondent Board wrote to the applicant on 17 February 2015, informing him that the Board had formed a preliminary view that his application should be declined and providing him with the opportunity to address matters of concern to it. The Board’s preliminary review was that there was an unacceptable risk to the community from his being paroled at that time. The Board referred to his conviction for child sex…

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: [2016] QSC 11
Decision Date: 8 February 2016

CaseChat Overview and Summary

The applicant in this matter sought judicial review of a decision by the respondent, the Queensland Parole Board, to refuse him parole. The applicant contended that the respondent failed to consider certain factors, including the completion of a sexual offending program, the withdrawal from the program, and the risk to the community if he were released. The matter was heard in the Queensland Supreme Court. The court was required to determine whether the respondent made an error of law by failing to consider relevant factors and whether the respondent applied a policy or rule inflexibly, thereby fettering its discretion.

The court examined whether the respondent considered the completion of the sexual offending program. It found that the respondent did consider this program, as evidenced by its statement of reasons. The court also assessed whether the respondent inflexibly applied a rule or policy in light of the applicant's withdrawal from the program. The court held that the respondent did not rigidly apply a policy, as it had considered the facts and circumstances of the applicant's case. Furthermore, the court reviewed whether the respondent failed to consider the time remaining before the applicant's full-time release date and the risk to the community of immediate unsupervised discharge. The court found that the respondent had indeed considered these factors.

The application for judicial review was dismissed, and the court ordered the applicant to pay the respondent's costs of the proceeding. The respondent was found to have appropriately exercised its discretion and considered all relevant factors in reaching its decision.

Orders

Orders of the court

Application refused

Further Order 8 February 2016: Applicant to pay the respondent’s costs in the proceeding

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:	Day v Queensland Parole Board [2016] QSC 11
PARTIES:	TREVOR DAY (applicant) v QUEENSLAND PAROLE BOARD (respondent)
FILE NO/S:	SC No 5174 of 2015
DIVISION:	Trial
PROCEEDING:	Originating Application
ORIGINATING COURT:	Supreme Court at Brisbane
DELIVERED ON:	8 February 2016
DELIVERED AT:	Brisbane
HEARING DATE:	22 October 2015
JUDGE:	Philip McMurdo JA
ORDER:	Application refused Further Order 8 February 2016: Applicant to pay the respondent’s costs in the proceeding
CATCHWORDS:	ADMINISTRATIVE LAW – JUDICIAL REVIEW – GROUNDS OF REVIEW – RELEVANT CONSIDERATIONS – where the applicant completed a sexual offending program – where the applicant submitted the respondent did not consider completion of the program – whether the respondent considered completion of the program ADMINISTRATIVE LAW – JUDICIAL REVIEW – GROUNDS OF REVIEW – FETTERING DISCRETION – where the applicant had withdrawn from sexual offending rehabilitation – where the respondent referred to the withdrawal in its statement of reasons for refusing parole – where the applicant submitted that the respondent inflexibly applied a rule or policy – whether the respondent considered the facts and circumstances of the applicant’s case ADMINISTRATIVE LAW – JUDICIAL REVIEW – GROUNDS OF REVIEW – RELEVANT CONSIDERATIONS – where the applicant submitted the respondent did not consider the time remaining before his full-time release date – where the applicant submitted the respondent did not consider the risk to the community of immediate unsupervised discharge – whether the respondent considered the risk to the community Day v Queensland Parole Board [2015] QSC 89, cited Gough v Southern Queensland Regional Parole Board [2008] QSC 222, cited Queensland Parole Board v Moore [2012] 2 Qd R 294; [2010] QCA 280, distinguished
COUNSEL:	S A McLeod for the respondent
SOLICITORS:	The applicant appeared on his own behalf Crown Law for the respondent