Folling v Queensland Parole Board - [2010] QSC 440

SUPREME COURT OF QUEENSLAND

CITATION:

Folling v Queensland Parole Board [2010] QSC 440

PARTIES:

IAN DARREN FOLLING
(Applicant)

v

QUEENSLAND PAROLE BOARD
(Respondent)

FILE NO:

BS 6367 of 2010

DIVISION:

Trial Division

PROCEEDING:

Application

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

23 November 2010

DELIVERED AT:

Brisbane

HEARING DATE:

2 September 2010

JUDGE:

McMurdo J

ORDER:

The respondent’s decision of 23 April 2010 will be set aside and the application for parole which was the subject of that decision must be reconsidered by the respondent according to law.

CATCHWORDS:

ADMINISTRATIVE LAW – JUDICIAL REVIEW – GROUNDS OF REVIEW – RELEVANT CONSIDERATIONS – where the applicant is a prisoner serving various terms of imprisonment with a full time release date of 30 April 2012 – where the applicant became eligible to apply for parole on 1 May 2007 – where the applicant has made several unsuccessful applications for parole – where there was evidence before the respondent to the effect that the applicant could benefit from parole, at some point – whether the respondent failed to take into account a relevant consideration.

Corrective Services Act 2006 (Qld) s 3

Judicial Review Act1991 (Qld) s 20

Queensland Parole Board v Moore [2010] QCA 280

COUNSEL:

Mr Folling in person

A D Scott for the respondent

SOLICITORS:

Crown Solicitor for the respondent

The applicant is a prisoner serving various terms of imprisonment, amounting to a period of about nine years nine months, for a number of serious sexual offences, mostly involving underaged males. His full time release date is 30 April 2012. He became eligible to apply for parole on 1 May 2007. The applicant has been refused parole now several times, most recently by a decision of the respondent made on 23 April 2010. He seeks judicial review of that decision.

The applicant presented his own case and argued by reference to most of the grounds for review set out in s 20 of the Judicial Review Act1991 (Qld). Before going to those arguments it is necessary to set out the background to this decision and to summarise the respondent’s reasons for it.

The applicant was born in 1968. The relevant offences were committed at various times between 1995 and the end of 2001. He was sentenced in the District Court on 8 July 2002 for a total period of imprisonment of seven years for offences of indecent assault, maintaining a sexual relationship with a child under 16 years of age with circumstances of aggravation, incest and the indecent treatment of children under 16 years of age. He had then been in custody for about 11 days which could not be declared as time served. He appeared again in the District Court on 1 November 2005 and was sentenced to a total period of six years and six months imprisonment for offences of maintaining an unlawful relationship with a child with circumstances of aggravation, two counts of sodomy, two counts of attempted sodomy and five counts of indecent treatment…

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 440
Decision Date: 23 November 2010

CaseChat Overview and Summary

The case of Folling v Queensland Parole Board involved a prisoner, the applicant, who was serving various terms of imprisonment with a full-time release date of 30 April 2012. The applicant became eligible to apply for parole on 1 May 2007, and despite making several unsuccessful applications, there was evidence suggesting that the applicant could benefit from parole at some point. The applicant challenged the respondent's decision to deny parole on the basis that the respondent failed to consider a relevant factor. The High Court of Australia was tasked with determining whether the respondent had indeed omitted to take into account a relevant consideration.

The central legal issue before the court was whether the respondent had failed to take into account a relevant consideration in making its decision. The applicant argued that the respondent, in denying the application for parole, did not adequately consider evidence suggesting that the applicant could benefit from parole. The respondent, on the other hand, contended that it had correctly exercised its discretion and had taken all relevant factors into account. The court was required to assess the evidence and determine whether the respondent had indeed overlooked a pertinent factor in its decision-making process.

In evaluating the matter, the court found that the respondent had indeed failed to take into account a relevant consideration. The court held that the respondent's decision to deny parole was flawed as it did not adequately consider the evidence suggesting that the applicant could benefit from parole. The court found that the respondent's decision was not in accordance with the law as it did not take into account all relevant factors. Consequently, the court set aside the respondent’s decision of 23 April 2010 and directed that the application for parole be reconsidered according to law.

The court's final orders were that the respondent’s decision of 23 April 2010 would be set aside. The court mandated that the application for parole, which was the subject of that decision, must be reconsidered by the respondent in accordance with the law. The court's decision underscored the importance of considering all relevant factors in administrative decision-making processes, particularly in matters involving parole.

Orders

Orders of the court

The respondent’s decision of 23 April 2010 will be set aside and the application for parole which was the subject of that decision must be reconsidered 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:	Folling v Queensland Parole Board [2010] QSC 440
PARTIES:	IAN DARREN FOLLING (Applicant) v QUEENSLAND PAROLE BOARD (Respondent)
FILE NO:	BS 6367 of 2010
DIVISION:	Trial Division
PROCEEDING:	Application
ORIGINATING COURT:	Supreme Court at Brisbane
DELIVERED ON:	23 November 2010
DELIVERED AT:	Brisbane
HEARING DATE:	2 September 2010
JUDGE:	McMurdo J
ORDER:	The respondent’s decision of 23 April 2010 will be set aside and the application for parole which was the subject of that decision must be reconsidered by the respondent according to law.
CATCHWORDS:	ADMINISTRATIVE LAW – JUDICIAL REVIEW – GROUNDS OF REVIEW – RELEVANT CONSIDERATIONS – where the applicant is a prisoner serving various terms of imprisonment with a full time release date of 30 April 2012 – where the applicant became eligible to apply for parole on 1 May 2007 – where the applicant has made several unsuccessful applications for parole – where there was evidence before the respondent to the effect that the applicant could benefit from parole, at some point – whether the respondent failed to take into account a relevant consideration. Corrective Services Act 2006 (Qld) s 3 Judicial Review Act1991 (Qld) s 20 Queensland Parole Board v Moore [2010] QCA 280
COUNSEL:	Mr Folling in person A D Scott for the respondent
SOLICITORS:	Crown Solicitor for the respondent