Lincoln v Southern Queensland Regional Parole Board
[2013] QSC 176
•22 July 2013
SUPREME COURT OF QUEENSLAND
CITATION:
Lincoln v Southern Queensland Regional Parole Board [2013] QSC 176
PARTIES:
TIMOTHY JOHN LINCOLN
(applicant)
v
SOUTHERN QUEENSLAND REGIONAL PAROLE BOARD
(respondent)FILE NO/S:
BS 2220 of 2013
DIVISION:
Trial Division
PROCEEDING:
Originating application
ORIGINATING COURT:
Supreme Court at Brisbane
DELIVERED ON:
22 July 2013
DELIVERED AT:
Brisbane
HEARING DATE:
15 July 2013
JUDGE:
Philip McMurdo J
ORDER:
The application is refused.
CATCHWORDS:
ADMINISTRATIVE LAW – JUDICIAL REVIEW – GROUNDS OF REVIEW – PROCEDURAL FAIRNESS – GENERALLY – where respondent cancelled applicant’s parole without notice – where respondent was not provided with opportunity to make submissions before his parole was cancelled – where applicant was provided with information notice and opportunity to make submissions after parole was cancelled – whether failure to provide notice and opportunity to provide submissions when parole first cancelled was in breach of rules of natural justice – whether respondent failed to observe the procedures required by law
ADMINISTRATIVE LAW – JUDICIAL REVIEW – GROUNDS OF REVIEW – OTHER CASES – where applicant argued the respondent’s decision was an improper exercise of power – where applicant argued respondent took into account irrelevant considerations or failed to take into account all relevant consideration – where respondent based its decision on inferences – whether respondent’s decision was reached in some improper way
Corrective Services Act 2006 (Qld) s 205, s 208
COUNSEL:
The applicant appeared on his own behalf
S A McLeod for the respondent
SOLICITORS:
The applicant appeared on his own behalf
Crown Law for the respondent
The applicant seeks a statutory order of review of the decision of the respondent to cancel his parole. The respondent made that decision on 12 December 2012 and subsequently confirmed it on 16 January 2013.
The applicant was released on parole on 18 August 2010. He was serving cumulative sentences, totalling six and a half years, for offences of trafficking in dangerous drugs. His parole was subject to conditions which included that he carry out the lawful instructions of a corrective services officer and give a test sample as directed by an officer. He was also to submit to urinalysis at the direction of an officer.
On 18 October 2012, after a corrective services officer had attempted to contact the applicant to direct him to attend for urinalysis at Kippa-Ring, the applicant telephoned the District Manager of the Kippa-Ring probation office at about 2.20pm. The applicant told the Manager that he had suffered a painful back injury at work on the previous day. According to a Parole Board report, upon which the respondent acted, in this conversation the applicant told the Manager that he was bedridden at his mother’s house at Stafford, but that he was unable to provide the address of that house because his mother had just moved there and she was not at home. Later that afternoon the applicant called him back and provided an address which was verified as his mother’s address.
In the course of one of these conversations, the applicant informed the Manager that his girlfriend would deliver a medical certificate as to his back condition. Later that afternoon, the applicant’s girlfriend called at the probation office with a document which did evidence a back injury of the applicant. It was a certificate of a general practitioner, signed on 18 October. His consultation notes record the consultations commencing at 1.46pm on that day. The certificate referred to a “flare of lumbar back pain” and the prescription of medication for that pain.
On the next day, the District Manager spoke to the general practitioner and was told that the consultation would have taken about 10 minutes. When the Manager said that the applicant had informed him, at about 2.20pm on the previous day, that he was bedridden at a Stafford address and could not attend at the Kippa-Ring probation office, the doctor is said to have replied that “[the applicant] must have taken a very bad turn for the worse”, having been able to walk into his surgery shortly before 2.00pm.
These facts were set out in a Parole Board report signed by the District Manager and another parole officer on 22 October 2012. The authors drew these inferences and made the following recommendation:
“Attempts to contact Mr Lincoln during the course of the morning of 18 October 2012 to report were not responded to by Mr Lincoln. It is consider[sic] that Mr Lincoln ignored these mobile phone messages and immediately commenced orchestrating an alibi to avoid reporting for a urinalysis test. It is also highly doubtful that Mr Lincoln was at his mother’s address at Stafford when speaking with the District Manager at about 2.20pm.
Mr Lincoln has been urinalysis tested on fourteen occasions since his release from custody on 18 August 2010. Noted is that Mr Lincoln’s order has been suspended on three occasions in relation to urinalysis testing since the inception of his Order.
Recommendation
It is respectfully recommended that Mr Lincoln’s parole order be suspended and he be directed to show cause why his order should not be cancelled.”[1]
[1]Exhibit HK-50 to the affidavit of Hannah Kitchener, Court doc 8, page 110.
On 19 October 2012, the Chief Executive suspended the applicant’s parole for a period of 28 days for a failure to report on 18 October. On 24 October 2012, the respondent Board suspended the parole order for an indefinite period for failure to comply with the condition of carrying out the lawful instructions of a corrective services officer, by failing to report on 18 October.
On 12 December 2012, the matter was further considered by the Board. It then resolved to cancel the parole order for this stated reason:
“The Board reasonably believes that [the applicant] failed to comply with condition (d) of the order, namely: ‘to give a test sample as directed by a corrective services officer’. [The applicant] failed to supply a urinalysis sample as directed on 18 October 2012.”[2]
The applicant was invited to show cause, by a written submission, why the Board should change that decision.
[2]Exhibit HK-42 to the affidavit of Hannah Kitchener, Court doc 8, page 71.
On 7 January 2013, the organisation QC Parole Assistance wrote to the respondent, making such a submission for the applicant. The letter set out the applicant’s case as to the events made on 18 October, being that he was in severe pain that day and on the doctor’s advice he went straight to his mother’s house to rest in bed. He believed that, due to the doctor’s certificate, he was not required to attend the parole office. The Board was invited to consider also whether there was an unacceptable risk to the community if the applicant was again released on parole and whether, ultimately, the interest of the community was served if the applicant did not spend a period of time on parole.
On 30 January 2013, the respondent wrote to the applicant saying that it had considered those submissions but had decided not to vary its decision of 12 December 2012.
Pursuant to an order of the Court, the respondent provided a statement of reasons for its decisions. Under the heading of “Findings on material questions of fact”, the Statement of Reasons extensively quoted from the Parole Board report of 22 October 2012. The respondent also recorded these so-called findings:
“7.The Board cancelled the parole order on 12 December 2012. The order was cancelled after the Applicant had failed to comply with condition (c) of the order, namely, ‘carry out the lawful instructions of a corrective services officer’. The Applicant failed to report for the purposes of providing a urinalysis sample as directed on 18 October 2012.
…
10.The Applicant provided submissions including correspondence from QC Parole Assistance, dated 07 January 2013, correspondence from Breaking Through Transitional Services Limited, dated 08 January 2013 and medical information from Redcliffe Peninsular 7 Day Medical Centre, dated 18 October 2012. The Board considered this information at its meeting on 16 January 2013 and decided not to vary its decision of 12 December 2012 to cancel the order. The Applicant was invited to reapply for parole in the usual manner.”[3]
[3]Exhibit HK-47 to the affidavit of Hannah Kitchener, Court doc 8, page 98.
The Statement of Reasons concluded with the following:
“Based on the findings listed above, including the nature of the Applicant’s offences and the information provided by Probation and Parole District Office regarding his failure to comply with the conditions of his order, the Board decided to cancel the parole order.”[4]
[4]Exhibit HK-50 to the affidavit of Hannah Kitchener, Court doc 8, page 110.
The relevant power of cancellation is within s 205(2) of the Corrective Services Act 2006 (Qld) which relevantly provides:
“(2) A parole board may, by written order—
(a)amend, suspend or cancel a parole order if the board reasonably believes the prisoner subject to the parole order—
(i)has failed to comply with the parole order; or
(ii)poses a serious risk of harm to someone else; or
(iii)poses an unacceptable risk of committing an offence; or
(iv)is preparing to leave Queensland, other than under a written order granting the prisoner leave to travel interstate or overseas; or …”
Section 205(4) provides:
“(4)A parole board is not required to give the prisoner an information notice or a reasonable opportunity to be heard if the parole board suspends or cancels the prisoner’s parole order.”
Section 208(1) provides that if a parole board suspends or cancels a prisoner’s parole order the board must give the prisoner an information notice upon the prisoner’s return to prison. This means a notice stating that the board has decided to suspend or cancel the parole order, advising the reason for the decision and inviting the prisoner to show cause, by written submissions given to the board, why it should change its decision. Section 208(2) requires the board to then consider all properly made submissions and to inform the prisoner whether the board has changed its decision.
Therefore the Board was not required to provide the applicant with an opportunity to make a submission prior to its initial decision to cancel his parole order, namely the decision of 12 December 2012. And it appears that the Board duly provided the information notice required by s 208. Therefore there is no substance in the applicant’s first ground, which is that the Board made its decision in breach of the rules of natural justice.
Nor is there any basis in the applicant’s contention that the respondent failed to observe the procedures which were required by law to be observed in relation to this decision.
Next the applicant contends that this decision was an improper exercise of the power conferred by s 205. The particulars of this complaint appear from the applicant’s affidavit, in which he says that the respondent decided not to vary its original decision but ignored the evidence, in particular the medical certificate as well as the applicant’s “good behaviour and compliance history with [his] original parole order … .”[5] He also said that he believed that the merits of his case had not been considered in the January decision and that his probation officer had “issues with [the applicant] that may cloud his decision-making process.”[6]
[5]Affidavit of Timothy John Lincoln, Court doc 3, para. 15.
[6]Affidavit of Timothy John Lincoln, Court doc 3, para. 17.
In his written submissions, the applicant said that the December decision was made was made on scant information, resulting from a failure to properly investigate the circumstance of the breach. It is said that this involved taking into an account an irrelevant consideration, or failing to take into account all relevant considerations. In neither sense was the consideration identified.
Clearly the respondent has been persuaded by the Parole Board report. According to that document, it was to be inferred that the applicant had gone to the doctor on 18 October, falsely complaining of a bad back, in order to obtain an opinion which would excuse him from reporting to his parole officer and providing a sample on that day. The basis for this inference may not have been compelling. Nevertheless, there was some basis in the circumstance that the applicant had been well enough to travel to the doctor’s surgery at Kippa-Ring but not well enough to go to the probation and parole office in Kippa-Ring. The authors of the report did have the benefit of their previous engagement with the applicant and their assessment of his reliability.
In turn, the respondent was entitled to draw the same inference. And it is difficult to see what other investigation could have been conducted by it, in order to assess or re-assess the conclusion of the parole officers that he had set about orchestrating an excuse to avoid reporting for a urinalysis.
I am not persuaded that the respondent failed to consider the merits affecting its decision both in December 2012 and its reconsideration in January 2013. The question here is not whether the Court agrees with the respondent’s factual conclusions. It is whether those conclusions were reached in some improper way. The respondent appears to have duly directed itself to the relevant question and has considered all relevant information, including the applicant’s previous history on parole which, it should be noted, was not particularly favourable to his case.
It should also be added that the Board was empowered to cancel his parole upon finding that he had failed to comply with the parole order and without a finding that he posed a serious risk of harm to someone else, or of committing an offence.
In my conclusion, the applicant has failed to show any ground for review of the respondent’s decisions and this application must be refused.
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