Hickson v Parole Board Queensland - [2024] QSC 133

SUPREME COURT OF QUEENSLAND

CITATION:

Hickson v Parole Board Queensland [2024] QSC 133

PARTIES:

JOSHUA WILLIAM HICKSON

(applicant)

v
PAROLE BOARD QUEENSLAND

(respondent)

FILE NO/S:

BS 13976 of 2023

DIVISION:

Trial Division

PROCEEDING:

Originating Application

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

21 June 2024

DELIVERED AT:

Brisbane

HEARING DATE:

17 May 2024

JUDGE:

Cooper J

ORDER:

Application dismissed

CATCHWORDS:

ADMINISTRATIVE LAW – JUDICIAL REVIEW – GROUNDS OF REVIEW – UNREASONABLENESS – where the applicant seeks a statutory order of review of the respondent’s decision to refuse his application for parole – where the application describes the respondent’s decision as unreasonable – where the applicant was serving a sentence for various domestic violence, property, motor vehicle, and other offences – where the applicant’s application for parole was refused on the ground that the risk the applicant presented to the community was unacceptably high, having regard to the applicant’s criminal history, performance under previous community-based orders, and the applicant’s alleged domestic violence towards his partner through phone calls from prison – where the statement of reasons for the decision refusing the applicant’s parole explained how the respondent took into account factors favourable to and adverse to the applicant in coming to its decision – where the statement of reasons disclosed that an identifiable pattern of behaviour involving domestic violence by the applicant, as well as his previous non-compliance with parole orders, informed the respondent’s assessment of the level of risk to the community’s safety if it granted the applicant parole – whether the respondent’s decision to refuse to grant the applicant parole was unreasonable

ADMINISTRATIVE LAW – JUDICIAL REVIEW – GROUNDS OF REVIEW – PROCEDURAL FAIRNESS – GENERALLY – where the applicant asserted that he was denied natural justice and procedural fairness – where the applicant argued that the respondent not interviewing him before deciding to refuse his parole application amounted to a denial of natural justice and procedural fairness – where the respondent deferred making a decision on the parole application and requested further information from the applicant, which the respondent subsequently received and considered – where the respondent formed the preliminary view to refuse the applicant’s parole application and it invited the applicant to address the factors it had identified which informed that preliminary view – whether the respondent’s decision to refuse to grant the applicant parole was made in breach of the rules of natural justice or procedural fairness

ADMINISTRATIVE LAW – JUDICIAL REVIEW – GROUNDS OF REVIEW – RELEVANT CONSIDERATIONS – FAILURE TO CONSIDER – where the applicant submitted that that the respondent failed to take into account the relevant consideration that his former partner, who the applicant had committed domestic violence against sent the applicant a letter in which she made exculpatory statements as to the applicant’s domestically violent conduct – where there was insufficient evidence that the respondent provided that letter to the respondent before the decision refusing to grant the applicant parole was made – where the applicant submitted that the respondent failed…

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: [2024] QSC 133
Decision Date: 21 June 2024

CaseChat Overview and Summary

Hickson, the applicant, sought judicial review of the Parole Board Queensland’s decision to refuse his parole application. Hickson, currently serving a sentence for multiple domestic violence, property, and motor vehicle offences, applied for parole on 3 May 2023. The Board first considered the application on 18 July 2023 and deferred making a decision, requesting further information. On 25 October 2023, the Board formed a preliminary view to refuse the application and notified Hickson of this decision on 9 November 2023. Hickson sought judicial review on the grounds that the decision was unreasonable, denied him procedural fairness, failed to take into account relevant considerations, took into account irrelevant considerations, and was not made within the prescribed period.

The court considered whether the Board’s decision to refuse parole was unreasonable, taking into account Hickson’s criminal history, performance under previous community-based orders, and alleged domestic violence. The court found that the Board’s consideration of Hickson’s use of the prisoner telephone system did not constitute an irrelevant consideration. The court also noted that the Board’s failure to decide the parole application within the prescribed period did not deprive it of jurisdiction to continue determining the application outside the prescribed time. The court preferred the view that such a failure does not mean that procedures required by law to be observed in relation to the making of the decision were not observed.

The court found that Hickson had not established that the Board failed to take into account relevant considerations, such as a letter from Hickson’s former partner and the fact that if granted parole, Hickson would reside in a different city from his partner. The court concluded that the Board’s decision was not unreasonable and did not fail to observe statutory procedure. Consequently, the application for judicial review was dismissed.

Orders

Orders of the court

Application dismissed

Background

Background to the litigation

During his oral submissions at the hearing of the application, the applicant also emphasised the respondent’s delay in making the decision.Background The applicant is currently serving a sentence of six years imprisonment for the following offences:(a)27 counts of Contravention of a Domestic Violence Order (Aggravated Offence);(b)Dangerous Conduct with a Weapon;(c)4 counts of Common Assault – Domestic Violence Offence;(d)2 counts of Dangerous Operation of a Vehicle with 2 prior convictions;(e)2 counts of Dangerous Operation of a Vehicle with 2 prior convictions – Domestic Violence Offence;(f)7 counts of Driving Without a Licence Disqualified by a Court Order;(g)Enter Premises and Commit Indictable Offence;(h)Enter Premises and Commit Indictable Offence by Break;(i)Enter/Is in Dwelling and Commit Indictable Offence – Domestic Violence Offence;(j)Authority Required to Possess Explosives;(k)Unlawful Use of Motor Vehicles, Aircraft or Vessels – Use;(l)Evasion Offence – Type 1 Vehicle Related Offence;(m)3 counts of Evasion Offence;(n)Driving of Motor Vehicle Without a Driver Licence Disqualified by Court Order – Type 2 Vehicle Related Offence;(o)Receiving Tainted Property;(p)2 counts of Stealing;(q)2 counts of Wilful Damage;(r)5 counts of Stealing – From a Locked Receptacle Possessing Dangerous Drugs;(s)2 counts of Possess Utensils or Pipes Etc for Use;(t)Possession of Property Suspected of Being the Proceeds of an Offence Under Drugs Misuse Act;(u)Offence of Driving Etc While Relevant Drug is Present in Blood or Saliva, Holder of Learner, Probationary or Provisional Licence;(v)Possession of a Knife in a Public Place;(w)3 counts of Possess Dangerous Drug Specified in Schedule 1 or 2; and(x)Unlawful Possession of Weapons Category D/H/R Weapon. The applicant became eligible for parole on 18 April 2023. The respondent received the application for a parole order on 3 May 2023. It first considered that application at its meeting on 18 July 2023 and deferred making a decision. By letter dated 19 July 2023, the respondent informed the applicant that it did not approve him residing at the address provided in the parole application, noting the vulnerability of his partner and his history of significant domestic violence, and that it had deferred making a decision on the parole application until the applicant provided an alternate accommodation review and a relapse prevention plan addressing how the applicant would deal with his risk of returning to domestic violence and other high harm offending. The respondent further considered the parole application on 25 October 2023. On that occasion, the respondent made a preliminary decision to refuse to grant the application. On 3 November 2023, the applicant filed an application for a statutory order of review in relation to the respondent’s failure to decide his parole application within the prescribed period of 150 days.[7][7]Section 193(4)(a) of the Corrective Services Act. The respondent notified the applicant of its preliminary decision in a letter dated 9 November 2023. The reasons provided for reaching the preliminary decision referred to several factors in favour of granting the application. However, the respondent informed the applicant that its preliminary view was that the risk the applicant presented to the community was unacceptably high and that the parole application should be refused having regard to the following factors:(a)the applicant’s criminal history;(b)the applicant’s performance under previous community-based supervision orders;(c)the remarks made by Judge Lynham when sentencing the applicant on 16 April 2021;(d)the applicant’s custodial behaviour, including the assertion that the applicant had been committing domestic violence against his partner in the form of coercive control and verbal abuse during calls made on the prisoner telephone system.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

I am not satisfied that the respondent’s consideration of the applicant’s use of the prisoner telephone system meant that it took an irrelevant consideration into account. The fourth ground of review is not made out.Fifth ground – failure to make the decision within the prescribed period The respondent acknowledged in its written submissions that it did not make its decision within the prescribed period of 150 days after it received the parole application.[55][55]Section 193(4)(a) of the Corrective Services Act. This failure to decide the application within the prescribed period did not deprive the respondent of the jurisdiction to continue to determine the application outside the prescribed time.[56][56]McGrane v Queensland State Parole Board [2012] QSC 350, [28]-[32]; Calanca v Queensland Parole Board [2017] 1 Qd R 1, 7-8 [26]-[29]. There is a difference of opinion in earlier decisions as to whether the failure on the part of the respondent to decide the parole application within 150 days means that procedures that were required by law to be observed in relation to the making of the decision were not observed.[57] In McGrane v Queensland State Parole Board,[58] Boddice J (as his Honour then was) answered this question in the negative, concluding that although the respondent might have decided the application outside the specified time period, it nevertheless made a decision on the application as required by law. In Calanca v Queensland Parole Board,[59] Burns J reached the opposite conclusion.[57]Section 20(2)(b) of the Judicial Review Act.[58][2012] QSC 350, [32].[59][2017] 1 Qd R 1, 8 [32]. I prefer the view expressed by Boddice J in McGrane.That is because it seems clear that the Judicial Review Act makes separate provision for a person in the applicant’s position, who is aggrieved by the failure to make a decision within a period fixed by a law such as s 193 of the Corrective Services Act, to apply for a statutory order of review in relation to the failure to make the decision within the prescribed period.[60] To the extent that Burns J indicated to the contrary in Calanca,[61] I would respectfully disagree. The applicant has made out a ground of review in relation to the failure of the respondent to make the decision within 150 days. What then is the appropriate form of relief?[60]Section 22(2) of the Judicial Review Act.[61][2017] 1 Qd R 1, 8 [34]. The applicant seeks an order directing the respondent to reconsider its decision according to law. The Judicial Review Act provides that on an application for a statutory order for review of a decision, the Court may make an order quashing or setting aside the decision and referring the matter to the respondent for further consideration.[62] I doubt that such relief is available in circumstances where the respondent’s failure to decide the parole application within 150 days is the only ground of review that the applicant has made out. Even if the discretion to make such an order has arisen in the present case, I am not satisfied that it would be appropriate to exercise that discretion in the way the applicant seeks.[62]Sections 30(1)(a) and (b) of the Judicial Review Act.

Ratio Decidendi

Legal Principle Established

The second ground of review is not made out.Third ground – failure to take into account a relevant consideration A failure to take into account a relevant consideration can only be made out as a ground of review if a decision maker fails to take into account a consideration that he or she is bound to take into account in making that decision. What factors a decision maker is bound to consider in making the decision is determined by construction of the statute conferring the discretion. If the relevant factors are not expressly identified in the statute, they must be determined by implication from its subject matter, scope and purpose.[43] [43]Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24, 39-40. Where a decision maker is bound to take into account a consideration, there is a requirement to give that matter proper, genuine and realistic consideration.[44] However, care needs to be taken to ensure that the requirement does not encourage a “slide” into an impermissible merits review of the decision.[45][44]Khan v Minister for Immigration and Ethnic Affairs (1987) 14 ALD 291, 292.[45]Swift v SAS Trustee Corporation (2010) 6 ASTLR 339, 351–352 [45]; Minister for Immigration and Citizenship v SZJSS (2010) 243 CLR 164, 175-176 [30]. Not every consideration that a decision maker is bound to take into account but fails to take into account will justify the court setting aside the impugned decision and ordering that the discretion be re-exercised according to law. A factor might be so insignificant that the failure to take it into account could not have materially affected the decision.[46][46]Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24, 40. The applicant’s submissions identified two relevant considerations which he claims the respondent failed to take into account:(a)a letter from WN dated 20 September 2020;(b)the fact that, if the parole application was granted, the applicant would be living in Brisbane on a parole order whereas his partner resides in Rockhampton.Letter from WN WN is the applicant’s former partner. She is named as the aggrieved in a domestic violence order which commenced on 15 February 2021 and expires on 14 February 2026. The applicant is named as the respondent to that order. The applicant pleaded guilty to 27 contraventions of that order on 1 November 2021. The applicant stated in his oral submissions that he received the letter from WN while he was in custody.[47] In the letter, WN stated that she was not of sound mind in the period from 17 February 2020 to 25 February 2020 due to her severe drug use. She spoke highly of the applicant’s character. She said that she had no idea what she had said in her statements (I infer statements made to the police) and that she could not let the applicant sit in jail because of lies she did not even know she had told. The applicant stated in his oral submissions that he pleaded guilty to domestic violence offences when he was not guilty of those offences but was now seeking, based on WN’s letter, to have those convictions overturned.[47]Transcript 1-6:33 to 1-7:4

CITATION:	Hickson v Parole Board Queensland [2024] QSC 133
PARTIES:	JOSHUA WILLIAM HICKSON (applicant) v PAROLE BOARD QUEENSLAND (respondent)
FILE NO/S:	BS 13976 of 2023
DIVISION:	Trial Division
PROCEEDING:	Originating Application
ORIGINATING COURT:	Supreme Court at Brisbane
DELIVERED ON:	21 June 2024
DELIVERED AT:	Brisbane
HEARING DATE:	17 May 2024
JUDGE:	Cooper J
ORDER:	Application dismissed
CATCHWORDS:	ADMINISTRATIVE LAW – JUDICIAL REVIEW – GROUNDS OF REVIEW – UNREASONABLENESS – where the applicant seeks a statutory order of review of the respondent’s decision to refuse his application for parole – where the application describes the respondent’s decision as unreasonable – where the applicant was serving a sentence for various domestic violence, property, motor vehicle, and other offences – where the applicant’s application for parole was refused on the ground that the risk the applicant presented to the community was unacceptably high, having regard to the applicant’s criminal history, performance under previous community-based orders, and the applicant’s alleged domestic violence towards his partner through phone calls from prison – where the statement of reasons for the decision refusing the applicant’s parole explained how the respondent took into account factors favourable to and adverse to the applicant in coming to its decision – where the statement of reasons disclosed that an identifiable pattern of behaviour involving domestic violence by the applicant, as well as his previous non-compliance with parole orders, informed the respondent’s assessment of the level of risk to the community’s safety if it granted the applicant parole – whether the respondent’s decision to refuse to grant the applicant parole was unreasonable ADMINISTRATIVE LAW – JUDICIAL REVIEW – GROUNDS OF REVIEW – PROCEDURAL FAIRNESS – GENERALLY – where the applicant asserted that he was denied natural justice and procedural fairness – where the applicant argued that the respondent not interviewing him before deciding to refuse his parole application amounted to a denial of natural justice and procedural fairness – where the respondent deferred making a decision on the parole application and requested further information from the applicant, which the respondent subsequently received and considered – where the respondent formed the preliminary view to refuse the applicant’s parole application and it invited the applicant to address the factors it had identified which informed that preliminary view – whether the respondent’s decision to refuse to grant the applicant parole was made in breach of the rules of natural justice or procedural fairness ADMINISTRATIVE LAW – JUDICIAL REVIEW – GROUNDS OF REVIEW – RELEVANT CONSIDERATIONS – FAILURE TO CONSIDER – where the applicant submitted that that the respondent failed to take into account the relevant consideration that his former partner, who the applicant had committed domestic violence against sent the applicant a letter in which she made exculpatory statements as to the applicant’s domestically violent conduct – where there was insufficient evidence that the respondent provided that letter to the respondent before the decision refusing to grant the applicant parole was made – where the applicant submitted that the respondent failed…