Hodzic v Brisbane Regional Community Corrections Board
[2000] QSC 282
•14 August 2000
SUPREME COURT OF QUEENSLAND
CITATION: Hodzic v Brisbane Regional Community Corrections Board [2000] QSC 282 PARTIES: YOUSEF HODZIC
(applicant)
v
BRISBANE REGIONAL COMMUNITY CORRECTIONS BOARD
(respondent)FILE NO/S: SC No 4909 of 2000 DIVISION: Supreme Court DELIVERED ON: 14 August 2000 DELIVERED AT: Brisbane HEARING DATE: 9 August 2000 JUDGE: Chief Justice ORDER: Application refused with costs to be assessed. CATCHWORDS: ADMINISTRATIVE LAW – JUDICIAL REVIEW LEGISLATION – COMMONWEALTH, QUEENSLAND AND AUSTRALIAN CAPITAL TERRITORY – GROUNDS FOR REVIEW OF DECISION – IMPROPER EXERCISE OF POWER – RELEVANT AND IRRELEVANT CONSIDERATIONS
ADMINISTRATIVE LAW – JUDICIAL REVIEW LEGISLATION – COMMONWEALTH, QUEENSLAND AND AUSTRALIAN CAPITAL TERRITORY – GROUNDS FOR REVIEW OF DECISION – ERROR OF LAW
ADMINISTRATIVE LAW – PARTICULAR TRIBUNALS OR BODIES – PAROLE BOARDS
Application for statutory order of review of Parole Board decision – whether Board genuinely considered comprehensive reasons – whether Board entitled to disregard sentencing Judge’s parole recommendation – whether Board erred in failing to have regard to full psychologist’s report – whether Board sufficiently regarded policy consideration
Bulger v Queensland Community Corrections Board [1994] 2QdR 239, considered
Williams v Queensland Community Corrections Board [2000] QCA 75, consideredCOUNSEL: J Davidson for the applicant
M Hinson SC, with M Plunkett for the respondentSOLICITORS: Prisoners legal Service for the applicant
Crown Solicitor for the respondent
de JERSEY CJ: On 24 January 2000 the applicant was sentenced to two years six months’ imprisonment for the offence of doing grievous bodily harm to his de facto wife. The sentencing judge declared 201 days to have been served as pre-sentence custody. To reflect the applicant’s plea of guilty, and the circumstance that he co-operated with the authorities when first spoken to in relation to the possible charge, the learned judge recommended that he be “considered for parole” after serving nine months imprisonment
Allowing for pre-sentence custody, that period of nine months expired on 8 April 2000. The applicant applied for parole on 25 January 2000. The respondent Board notified the applicant, by letter dated 16 March 2000, that it was declining his application, but invited any further submission within seven days, which suggested a preparedness to review its decision. That decision was said in the letter to be based on the applicant’s criminal history, his assessed unsuitability for community based supervision, and his then current prison classification.
The Board met again on 27 April and considered personal submissions made by the applicant. The Board held to its previous decision, confirming that in its letter of 27 April which included a recommendation that the applicant “complete recommended courses as previously advised and continue with counselling”.
The applicant sought a statement of reasons to support an application for judicial review. The Board provided those reasons in a letter of 14 June 2000. Sections 3 and 4 of that letter follow:
“3. Findings on material questions of fact
The Board made the following finds of fact:a.That you are presently incarcerated at Borallon Correctional Centre.
b.That you have not incurred any breaches or been involved in any incidents to date.
c.That your unit reports have been favourable and you have maintained employment since being remanded.
d.That you have a history of violence offences and drug addiction.
e.That your security classification is a medium with a points score of 50 and your RNI score has been assessed as a high with 28 points.
f.That you have been consistently assessed as not suitable for further community based supervision.
g.That you completed the Interpersonal Communications Substance Abuse Education Program whilst on remand at Arthur Gorrie.
h.That the psychologist’s report 8 February 2000 stated that, “his insight into the effects of his substance abuse, gambling behaviours and anger has remained somewhat limited”.
i.That further program participation was recommended for you to address your cognitive deficiencies, anger and substance abuse issues.
j.That you applied to do the recommended programs and are presently undertaking the cognitive skills programs.
4. Reasons for the Decision
The Board assessed:1.That whilst you are to be congratulated on the fact that you have not had any breaches, you are still a medium classification with a point score of 50.
2.That relying upon the psychologist’s report of 8 February 2000 you have not undertaken the recommended programs required to address your offending behaviour.
3.That it is necessary that you fully address your offending behaviour.
4.That your previous response to the community based orders has been unsatisfactory.
5.After giving due regard to all matters (including the parole recommendation) that you pose an unacceptable risk to the community at this time.
The grounds of the applicant’s challenge, as it was pursued before me, may be summarised as follows:
1. Reasons
The real reasons for the Board’s decision to refuse parole were those set out in the letter of 16 March 2000. The more expansive “reasons” in the letter of 14 June 2000, then including, in addition and in particular, failure to complete recommended courses and the psychologist’s opinion that the applicant’s insight into his drug, gambling and anger problems was “somewhat limited”, were designed to “patch up” what was presumably recognised as an arguably inadequate justification, as set out in the earlier letter.
2. Parole recommendation
The circumstances basing those “real reasons”, as set out in that earlier letter, were known to the sentencing judge when determining the parole recommendation (save for the security classification which was incidental to his subsequent incarceration). That recommendation gave the applicant “a reasonable expectation” of release on parole consistently with it, and there being no relevant new circumstance, the Board should have implemented the judge’s recommendation (cf Williams v Queensland Community Corrections Board [2000] QCA 75 para 25).
3. Inadequate reasoning
If, on the other hand, the reasons expressed in the letter of 14 June 2000 are to be accepted as the true reasons for the Board’s decision, they nevertheless reveal two errors:
(a) They refer to a statement drawn from a psychologist’s report, as produced on page 7 of an “assessment unit report” which was before the Board, without the Board’s having had regard, in a balanced way, to the whole of that psychologist’s report dated 8 February 2000.
(b) The Board failed to take account of the important consideration (Bulger v Queensland Community Corrections Board [1994] 2QdR 239, 245) of encouraging “co-operation with the authorities”, such as it would have achieved by giving effect to the parole recommendation which had in this case been based upon such co-operation. While the co-operation in Bulger concerned aiding the prosecution of other alleged offenders, there is obvious point in encouraging the early entering of honest pleas of guilty, and co-operation in the precedent police investigations.
I deal now with each of those three matters.
Reasons: ground 1
The reasons expressed on 14 June 2000 are plainly more comprehensive than those mentioned in the letters of 16 March and 27 April. It may be noted that the tone of the reference to the relevant circumstances in the first letter is rather tentative: “… other factors which indicate that it might well be inappropriate to approve your application”; “for the reasons mentioned above, it seems to the Board that …”; and then there is the circumstance that the letter invited further submissions, as if on one view it was not to be read as a final determination of the matter. The following letter of 27 April did, in confirming the refusal of parole, refer back to the circumstances mentioned on 16 March, while adding a recommendation, not previously expressed, that courses be completed and counselling occur. Then, in response to the request for “reasons” as such, the Board repeated, in more comprehensive terms, the reference to courses, and added reference to the psychologist's report (and other material).
Before me, the Board made the point that the applicant’s application for parole referred to his course work, and that the material before the Board included the “assessment unit report” – which included the psychologist’s expression of view.
The expression of the Board’s reasons was therefore rather evolutionary. I do not think it appropriate in all these circumstances to hold the Board strictly within the confines of the statement of relevant circumstances of 16 March. There is in short no reason to conclude that the Board was not genuine, in its ultimate statement of its reasons, in claiming to have relied on particular matters which, although previously featuring in the material before it, had not been selected out and expressed as affecting the process of reasoning.
Parole recommendation: ground 2
In the context of the reasoning in Williams, supra, para 25, it is therefore significant that the two highlighted matters, the recommended course work completed by the applicant or outstanding, and the psychologist’s view that the applicant was left with limited insight into the effects of his behaviour, were not matters before the sentencing judge. Those matters could legitimately explain why the Board did not feel able to give effect, responsibly, to the parole recommendation made, in those circumstances, on the more limited relevant materials which were before the judge. That process would not offend against Williams. The Board was in my view entitled to take that course.
Inadequate reasoning: ground 3
The issue is whether the Board’s decision is vulnerable because of the Board’s failure to have regard to the full psychologist’s report, and its attention, said to have been inadequate, to the goal, fostered through implementing such a recommendation, of encouraging future co-operation by offenders with authorities.
As to the former matter, while it may have been better for the Board to have secured and digested the whole of the psychologist’s report, it is the fact that the persons responsible for preparing the “assessment unit report” apparently had regard to the report itself and felt that it was responsible to extract, as significant, that particular expression of view. The Board was in the end entitled to give weight to that.
As to the latter matter, encouraging co-operation, it would not seem to have been a major consideration in this particular case, in the setting of the parole recommendation, and the point was not in my view of such significance as to demand specific mention in the account of the Board’s process of reasoning.
Conclusion
I do not uphold any of the grounds formally expressed in the application – that the decision involved an improper exercise of power, that the decision involved error of law, and that there was no evidence or other material to justify it.
The application is accordingly refused, with costs to be assessed.
0
0