Lewis v Parole Board Queensland

[2021] QSC 191

SUPREME COURT OF QUEENSLAND

CITATION:

Lewis v Parole Board Queensland [2021] QSC 191

PARTIES:

TAMA LEWIS

(applicant)

v
PAROLE BOARD QUEENSLAND

(respondent)

FILE NO/S:

BS No 6368 of 2021

DIVISION:

Trial Division

PROCEEDING:

Civil

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

3 August 2021 (ex tempore)

DELIVERED AT:

Brisbane

HEARING DATE:

3 August 2021

JUDGE:

Martin J

ORDER:

1.   The application is dismissed.

2.   The applicant is to pay the respondent’s costs of the application.

CATCHWORDS:

ADMINISTRATIVE LAW – JUDICIAL REVIEW – GROUNDS OF REVIEW – FETTERING DISCRETION – where the applicant is currently serving a period of imprisonment – where the applicant’s application for parole was rejected – where the applicant contends that the respondent improperly fettered its decision by imposing a view that the application as a whole poses a risk without offering any specifics that the applicant can achieve so as to alleviate the respondent’s concerns – whether the respondent inflexibly applied a rule of policy – whether the respondent did not consider the merits of the application

ADMINISTRATIVE LAW – JUDICIAL REVIEW – GROUNDS OF REVIEW – RELEVANT CONSIDERATIONS – FAILURE TO CONSIDER – where the applicant is currently serving a period of imprisonment – where the applicant’s application for parole was rejected – where the applicant contends that the respondent failed to take into account the applicant’s most recent treatment and his current circumstances with respect to being waitlisted for treatment – where the applicant contends that the respondent failed to take into account his improvement in custodial behaviour – whether the respondent failed to take a relevant consideration into account in exercising its power

ADMINISTRATIVE LAW – JUDICIAL REVIEW – GROUNDS OF REVIEW – IRRELEVANT CONSIDERATIONS – where the applicant is currently serving a period of imprisonment – where the applicant’s application for parole was rejected – where the applicant contends that the respondent took into irrelevant considerations into account – whether the respondent took into account irrelevant considerations

ADMINISTRATIVE LAW – JUDICIAL REVIEW – GROUNDS OF REVIEW – UNREASONABLENESS – where the applicant is currently serving a period of imprisonment – where the applicant’s application for parole was rejected – where the applicant contends that the respondent’s exercise of power was so unreasonable that no reasonable person could have exercised it in the way – whether the respondent engaged in an exercise of power that is so unreasonable that no reasonable person could so exercise the power

Corrective Services Act 2006
Judicial Review Act 1991, s 23B

COUNSEL:

Applicant appeared for himself

S Robb for the respondent

SOLICITORS:

Parole Board Queensland for the respondent

1. Tama Lewis is currently serving a period of imprisonment of 10 years, six months and 22 days. His full-time discharge date is 26 August 2022. He became eligible for parole on 18 November 2020. He applied for parole on that date. On 5 May 2021, the Parole Board Queensland (“the Board”) rejected his application. On 22 June 2021, the board provided a statement of reasons for that rejection. 

2. Mr Lewis seeks to review that decision by way of an application for a statutory order of a review under the Judicial Review Act 1991 (“JR Act”).

3. The Board accepts, correctly, that Mr Lewis is entitled to make this application and that the Board’s decision is reviewable, under the JR Act.

4. There are three grounds advanced in his application.

5. First, he says that the making of the decision was an improper exercise of the power conferred by the Corrective Services Act 2006 (“CS Act”), in that the Board exercised a discretionary power, in accordance with a rule or policy, without regard to the merits of the particular case. The ground goes on, the Board has improperly fettered its decision by imposing the view that the applicant, on the whole, poses a risk, and the Board did not offer any specifics.

6. Secondly, he says that the Board failed to take relevant considerations into account, in the exercise of the power, contrary to s 23B of the JR Act, by failing to take into account the effects that the COVID-19 pandemic has had, with respect to the delivery and availability of programs.

7. Thirdly, the decision was an improper exercise of the power, because the Board took irrelevant considerations into account, and failed to take a relevant consideration into account. Further, he says, the exercise of the power was so unreasonable that no reasonable person could have exercised it in that way. 

8. Mr Lewis seeks:

   (a)an order quashing or setting aside the Board’s decision, that a new decision be made, and

   (b)that the Board notify Mr Lewis of the reconsidered decision within seven days of it being made.

9. Mr Lewis has filed two affidavits, to which he has exhibited a large amount of material relating to his position. He has also provided material relating to decisions concerning other prisoners, which he regards as relevant to his situation. This, though, did not form a part of the grounds of his application. In any event, each case must be considered on its own merits. This part of his material was directed to a merits review, rather than any reviewable error under the JR Act.

   The Board

10. The Board is created by the CS Act. It may, by a parole order, release an eligible prisoner on parole. It must, after considering an application for a parole order, either grant or refuse to grant it. There are provisions in the Act which set out the time for making such decisions and the requirement to give reasons. Subject to the requirements of the Act, the Board’s power is unfettered but there are Ministerial Guidelines to the Board which have been made pursuant to the CS Act and which the Board must take into account. Those guidelines, amongst other things, state that when the Board is considering whether a parole order should be made, the highest priority should always be the safety of the community. Further, the Board should consider whether there is an unacceptable risk to the community if the prisoner is released to parole.

    Grounds of the Application

    The First Ground

11. In this first ground, Mr Lewis alleges that the Board “improperly fettered its decision by imposing a view that the application as a “whole” poses a risk without offering any specifics that the applicant can achieve, so as to alleviate the Board’s concerns.”

12. The reasons given by the Board need to be read in the light of the correspondence which had passed between the Board and Mr Lewis after he had made his application. Mr Lewis was informed by letter of 6 April 2021 that the Board had formed a preliminary view not to grant parole. In that correspondence he was alerted to that preliminary view and that the Board had taken the following factors into account in reaching that view:

    (a)the remarks made by sentencing judges,

    (b)his outstanding treatment needs,

    (c)his behaviour while in custody,

    (d)the forensic risk assessment report, and

    (e)his custodial end date and possible conditions of parole. 

13. Mr Lewis was invited to provide further material to the Board, and he did so on 9 and 12 April 2021. 

14. The assertion in this ground that the Board “did not provide specifics” does not support a finding that the Board inflexibly applied a rule or policy or that the Board did not consider the merits of the application. The Board is not required, by the relevant legislation, to set out in detail the path which it considers an unsuccessful applicant should take in order to be successful on another application. It does not, simply by outlining what it considers to be the shortcomings of the application, take upon itself the duty to advise an applicant as to where the applicant might seek to improve prospects on a later application. 

    The Second Ground

15. In this ground, Mr Lewis says that the Board’s decision was an improper exercise of the power it held because the Board had failed to take a relevant consideration into account in exercising its power.

16. This relates to what appears to be an argument that the Board either failed to take into account the problems with the delivery of programs brought about in large part by the pandemic or misunderstood what had actually occurred.

17. In the Board’s letter of 6 April 2021, the Board recommended that Mr Lewis participate in the Moderate Intensity Substance Intervention program and the Substance Abusive Maintenance Intervention program. The Board noted that while completing those programs was not a requirement for parole, successful completion might give the Board confidence that Mr Lewis would be a lower risk of drug offending. In his written submissions, Mr Lewis says that the Board did not mention the Moderate Intensity Substance Intervention program.  He goes on to say: “If the Board had waitlisted me prior to their preliminary view to deny my parole, I would have been able to participate in the MISI program that was held at this centre on the 23rd of March 2021.”  That, with respect, misunderstands the Board’s powers. The Board cannot waitlist a prisoner for a program run in a prison.

18. The material which the Board had before it showed that Mr Lewis had applied to undertake the MISI program and was on the waitlist.

19. He also submitted that the Board had removed him from a course he was undertaking while he was in the community. The Board has no power to do that and there is no evidence that it did. If he had been removed, then that would have been the action taken by another part of the corrective services system, perhaps in probation and parole, but not by the Board. 

20. The Board did refer to Mr Lewis’ most recent treatment and his current circumstances with respect to being waitlisted for treatment. I accept that the Board took into account the information it had before it and did not have other matters before it upon which Mr Lewis now seeks to rely. 

    The Third Ground

21. Mr Lewis argues that the Board’s decision was an improper exercise of power because the Board took into account irrelevant considerations and failed to take into account a relevant consideration. Further, he says that the Board engaged in an exercise of power that is so unreasonable that no reasonable person could so exercise the power.

22. The material to which Mr Lewis appears to refer includes the records of treatment he undertook with a psychologist, Rebecca Geddes. He says that his parole officer and the Parole Board “had and still have access to any and all reports Ms Geddes would have made during our numerous sessions, and yet Ms Geddes professional opinion does not seem to be taken into account or mentioned during my parole denial when ultimately Ms Geddes would have the most in depth and accurate professional opinion due to our regular psychologist appointments over the 18 months before I returned to custody.”

23. Ms Geddes did see Mr Lewis while he was in the community and, no doubt, there are records of that. It is not correct to say, as Mr Lewis says, that simply by the giving of consent to obtain clinical records that the Board can then go and interrogate others and find out what material might be available. It is a part of the necessary process undertaken by an applicant to provide such material as an applicant can and which the applicant believes would be of assistance to the Board. There was, though, a reference to Ms Geddes in the material which the Board did take into account, but that was only to the extent that he had been engaging with her and had attended consistently. Mr Lewis did not in the material he presented to the Board seek to provide any report produced by Ms Geddes or any other record of his engagement with her. Further and importantly, while he says that Ms Geddes would have had greater insight into his situation than Ms Monahan who provided a report to the Board, he does not say what that information would have been or how it might have assisted him. Thus, he does not say how it might have been a relevant consideration for the Board. 

24. The other part of this submission by Mr Lewis concerned what he says is the failure to take into account his improvement in custodial behaviour. The Board had before it the usual records relating to custodial behaviour, but the material upon which he now seeks to rely was not before the Board.

25. The final sentence in the written submissions by Mr Lewis effectively sums up his case and at the same time discloses why his application should not be granted.  He says: “I submit that I should have been granted parole and therefore ask the court to order that the Board look at my application again with all of the relevant material I have provided that the Board may have not been aware of and have my application reconsidered.”

26. It is not an error for a decision maker to fail to take into account material which it did not have before it. There may be material upon which the Board could reach a different view, but a review under the JR Act is to determine whether or not an error has occurred in the reasoning of the decision maker and not to remake the decision.

    Conclusion

27. The applicant has failed to demonstrate any error which would warrant the making of an order under the JR Act. The application must be dismissed.

28. The Board seeks its costs. Mr Lewis has provided written submissions and advanced grounds opposing such an order being made. He seeks an order under s 49 of the JR Act that each party bear its own costs. He says that this was a case in which a matter of public interest was involved. I do not accept that. Here the application was based upon a misapprehension of both the power of the Parole Board and the purposes of judicial review.

29. The applicant is to pay the respondent’s costs of the application.