Marshall v Parole Board Queensland

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SUPREME COURT OF QUEENSLAND

CITATION:

Marshall v Parole Board Queensland [2022] QSC 90

PARTIES:

TODD MARSHALL

(Applicant)

v

PAROLE BOARD QUEENSLAND

(Respondent)

FILE NO:

BS 1632 of 2022

DIVISION:

Trial Division

PROCEEDING:

Application

DELIVERED ON:

20 May 2022

DELIVERED AT:

Brisbane

HEARING DATE:

27 April 2022

JUDGE:

Bowskill CJ

ORDERS:

Pursuant to s 30 of the Judicial Review Act 1991 (Qld), the Court orders that:

1.       The decision of the Parole Board made on 10 January 2022 is set aside; and

2.       The applicant’s application for parole is referred to the Parole Board for further consideration, subject to the following directions.

The Court directs that:

3.       The applicant provide any further material that he wishes to rely on in support of his application for parole to the Parole Board within seven days, or such further period as directed by the Court; and

4.      The Parole Board consider and make a decision in relation to the applicant’s application for parole within 14 days, or such further period as directed by the Court.

I will hear the parties as to costs.

CATCHWORDS:

ADMINISTRATIVE LAW – JUDICIAL REVIEW – GROUNDS OF REVIEW – where the applicant applies for a statutory order of review of the respondent’s decision to refuse his application for parole on the grounds of failure to take relevant considerations into account, taking irrelevant considerations into account, and legal unreasonableness – whether the decision is affected by reviewable error

Corrective Services Act 2006 (Qld), ss 193, 194

Judicial Review Act 1991 (Qld), ss 20 and 30
COUNSEL:

The applicant appeared on his own behalf

T Ryan for the respondent
SOLICITORS:

The applicant appeared on his own behalf

Parole Board Queensland for the respondent

Introduction

  1. On 10 January 2022, the Parole Board decided to refuse the applicant’s application for parole.  The applicant applies for a statutory order of review of that decision.  For the following reasons, I am satisfied the decision of the Board was affected by reviewable errors and ought to be set aside.

    Background

  2. On 24 February 1995, the applicant was convicted of murder and sentenced to life imprisonment.   The sentencing judge said:

    “It was a cruel and vicious offence.  The victim was lured by the expectation of drugs to the house where he was killed, not suspecting you harboured hatred of him because you thought he was an informer…”[1]

    [1]Affidavit of Ms Furlan-Johns, at p 84.

  3. On 21 July 2000, the applicant was convicted of trafficking in the drugs heroin, methylamphetamine and cannabis, an offence committed whilst he was in custody, in 1998.  He was sentenced to seven and a half years’ imprisonment.[2]

    [2]Affidavit of Ms Furlan-Johns, at p 81 (criminal history) and pp 85-103 (sentencing remarks).

  4. He was released to parole on 28 May 2009.

  5. The applicant’s parole order was suspended in January 2014, in circumstances where he changed address without seeking approval, was charged with failing to dispose of a needle and syringe and provided a sample positive to cannabis and amphetamines. 

  6. He was re-released to parole…

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Details
Case
[2022] QSC 90
Decision Date

CaseChat Overview and Summary

In the case of Marshall v Parole Board Queensland, the applicant sought a statutory order of review of the Parole Board's decision to refuse his application for parole, citing errors in the decision-making process. The applicant argued that the Board failed to consider relevant factors, took into account irrelevant considerations, and made a decision that was legally unreasonable. The Queensland Supreme Court reviewed the decision and found that the Board had indeed made errors in its decision-making process.

The court examined whether the Board had taken into account relevant considerations and whether it had failed to consider irrelevant ones. It was found that the Board had not considered that the applicant had previously completed a violence prevention program, which was a relevant factor in the parole decision. Additionally, the Board had considered irrelevant factors such as the applicant's 1995 sentencing remarks and the opinion of Queensland Police regarding dropped charges.

Furthermore, the court assessed whether the Board's decision was legally unreasonable. The court found that the Board had not provided adequate reasons for its decision, which made it difficult to assess the legality of the decision.

In light of these findings, the Queensland Supreme Court set aside the Parole Board's decision and referred the applicant's parole application back to the Board for further consideration. The court directed the applicant to provide any further material to support his parole application within seven days and required the Board to make a decision within 14 days. The parties will be heard regarding costs at a later date.

Orders

Orders of the court

Pursuant to s 30 of the Judicial Review Act 1991 (Qld), the Court orders that:

1. The decision of the Parole Board made on 10 January 2022 is set aside; and

2. The applicant’s application for parole is referred to the Parole Board for further consideration, subject to the following directions.

The Court directs that:

3. The applicant provide any further material that he wishes to rely on in support of his application for parole to the Parole Board within seven days, or such further period as directed by the Court; and

4. The Parole Board consider and make a decision in relation to the applicant’s application for parole within 14 days, or such further period as directed by the Court.

I will hear the parties as to costs.

Background

Background to the litigation

On 10 January 2022, the Parole Board decided to refuse the applicant’s application for parole. The applicant applies for a statutory order of review of that decision. For the following reasons, I am satisfied the decision of the Board was affected by reviewable errors and ought to be set aside.Background On 24 February 1995, the applicant was convicted of murder and sentenced to life imprisonment. The sentencing judge said:“It was a cruel and vicious offence. The victim was lured by the expectation of drugs to the house where he was killed, not suspecting you harboured hatred of him because you thought he was an informer…”[1][1]Affidavit of Ms Furlan-Johns, at p 84. On 21 July 2000, the applicant was convicted of trafficking in the drugs heroin, methylamphetamine and cannabis, an offence committed whilst he was in custody, in 1998. He was sentenced to seven and a half years’ imprisonment.[2][2]Affidavit of Ms Furlan-Johns, at p 81 (criminal history) and pp 85-103 (sentencing remarks). He was released to parole on 28 May 2009. The applicant’s parole order was suspended in January 2014, in circumstances where he changed address without seeking approval, was charged with failing to dispose of a needle and syringe and provided a sample positive to cannabis and amphetamines. He was re-released to parole in June 2014; but his parole order was suspended again in May 2019, when he was charged with an offence of doing an act intended to cause grievous bodily harm, alleged to have been committed in January 2019. That charge was ultimately withdrawn. On 17 May 2021, the applicant was convicted of trafficking in cannabis, between March and July 2018. He was sentenced to two years’ imprisonment, wholly suspended for two years. That sentence reflected the fact that the circumstances of the offence placed it at the lower end of seriousness; that there had been significant delay in the matter being dealt with, such that the applicant had already served more than two years in custody; his plea of guilty; and the fact that the applicant’s criminal history otherwise – in particular, the life sentence – meant there were limited options available to the Court. The sentencing judge observed, however, that the suspension of the sentence would allow the applicant to apply for parole in respect of his other sentence, and made some observations about the desirability of any such application for parole being dealt with expeditiously.[3][3]Affidavit of Furlan-Johns, at pp 105-107. As a consequence of that conviction, the applicant’s parole order was cancelled on 14 June 2021. On 18 May 2021, the applicant made a further application for parole under s 180 of the Corrective Services Act 2006 (Qld). There were delays in dealing with the application, prompting the applicant to make an application, in November 2021, for a statutory order of review, on the basis of a failure to make a decision on the application within the statutory time period.[4] [4]Affidavit of Furlan-Johns, p 119.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

The Board did not object to the application being dealt with on the basis of these three grounds, notwithstanding they are not all referred to in the amended application as filed. Legislative context in which the decision was made The Parole Board is established under s 216 of the Corrective Services Act. One of its functions is to decide applications for parole orders, other than court ordered parole orders (s 217(a)). The procedure for hearing and deciding an application for parole is dealt with in chapter 5, part 1, division 2 of the Act. Under s 193(1), after receiving a prisoner’s application for a parole order, the Parole Board must decide to grant the application or to refuse to grant the application. The power of the Board to release a prisoner on parole is set out in s 194(1), which relevantly provides that the parole board may, by a parole order, release an eligible prisoner on parole (s 194(1)(b)). An eligible prisoner is, essentially, one who has reached their parole eligibility date (s 194(4)). The Board’s discretionary power to grant or refuse an application for parole is broad and unfettered, in the sense that the Corrective Services Act does not specify the criteria for making a decision under s 193. However, the scope of the Board’s discretionary power to grant or refuse an application for parole is to be exercised having regard to the subject matter, scope and purpose of the Corrective Services Act.[11] The purpose of the Act is “community safety and crime prevention through the humane containment, supervision and rehabilitation of offenders” (s 3(1)).[11]See Wigginton v Queensland Parole Board [2010] QSC 59 at [26] and Queensland Parole Board v Pangilinan [2016] 1 Qd R 419 at [19]. Section 242E of the Act provides that the Minister “may make guidelines about policies to help the parole board in performing its functions”. The relevant Ministerial Guidelines that have been issued to the Board are dated 3 July 2017. Reflecting the purpose of the Act in s 3(1), clause 1.2 of the Guidelines states that “[w]hen considering whether a prisoner should be granted a parole order, the highest priority for [the Board] should always be the safety of the community”. In relation to the status of the Guidelines, I repeat what I said in Calanca v Parole Board [2019] QSC 34 at [57]:“The language used in the current s 242E is consistent with the ordinary meaning of “guidelines” in the context of administrative decision-making, as non-binding rules or standards, providing general indications to help the decision-maker in exercising their discretion. It is clear from s 242E that the Guidelines do not fetter the exercise of the otherwise broad discretion of the Board, in the sense that the Guidelines do not prescribe or limit how the Board’s discretion under s 193 is exercised. But that does not mean the Guidelines can be ignored. The Guidelines are properly to be regarded as a relevant factor and, because they are expressly contemplated by the legislation, must be taken into account by the Parole Board. The formulation of guidelines for administrative decisions, particularly decisions such as those made by the Parole Board which affect personal liberty, promotes values of consistency and rationality in decision-making, whilst still upholding the ideal of justice in the individual case on its merits.” [references omitted]

Ratio Decidendi

Legal Principle Established

I am unable to see any reference in the Board’s Statement of Reasons to the fact that the applicant previously completed a violence prevention program. In my view, this is a relevant consideration – particularly given the shift in emphasis, from the preliminary decision (in which the emphasis was upon outstanding treatment needs in relation to substance abuse) to the final decision (which identifies, on the basis of the Rehabilitation Needs Assessment, an outstanding treatment need in relation to violence). The Board appears to have placed significant weight on the very brief statement that appears in the Rehabilitation Needs Assessment (as set out in paragraph [11] above), without giving consideration to the program(s) the applicant had previously completed. I consider this ground of review has been made out.Irrelevant considerations The applicant contends the Board took into account the following irrelevant considerations:(i)the 1995 sentencing remarks; and(ii)the opinion of Queensland Police in relation to charges that were dropped. As to the first matter, the 1995 sentencing remarks are not an irrelevant consideration. A prisoner’s criminal history is a centrally relevant factor, and the sentencing remarks made at the time a sentence is imposed may include material information. Here, although brief, the sentencing remarks inform as to the nature of the murder offence committed by the applicant. The second matter is not so straightforward. It is apparent that, in reaching its decision to refuse parole, the Board had regard to the following matters:(a)an allegation that the applicant committed an offence of assault occasioning bodily harm in 2012, although noting that this charge was discontinued (para 11(c) of the Statement of Reasons); (b)that in 2019 the applicant was charged with the offence of “acts intended to cause grievous bodily harm”, although acknowledged that this charge did not proceed (para 11(i) of the Statement of Reasons); (c)the applicant’s parole order being suspended on 4 February 2019, following receipt of information in relation to that charge of acts intended to cause grievous bodily harm and “other minor charges”, information related to trafficking and a positive urinalysis sample (para 11(j) of the Statement of Reasons); (d)the information about the charge contained in an “advice to parole board report” prepared by Queensland Corrective Services;[23] and(e)although the Board had regard to the fact that latter charge did not proceed, the Board took into account that “while a Court has not made a finding ‘beyond reasonable doubt’, the information provided by Queensland Police Service is sufficient for the Board to remain concerned about your substance use and the associated risk you pose to the community” (para 41 of the Statement of Reasons).[23]Affidavit of Ms Furlan-Johns, at pp 75-76. It is not clear what the “information provided by Queensland Police Service”, referred to in paragraph 41 of the Statement of Reasons, is. On the one hand, it could be the information about the charge, which appears in the “advice to parole board report”.[24] On the other hand, the material before the Board also included information provided by Queensland Police in email correspondence to the Board, in December 2021. The Board requested information from the Police, about the circumstances in which a nolle prosequi was entered in respect of the 2019 charge. The first response was “I believe the matter was nolle due to the unreliability of the witnesses. Detective [name] should be able to confirm further and any other issues with the brief”. That was followed up by a further email, from the named Detective, which said “the matter was nolle due to the victim provided an affidavit stating we arrested the wrong person, he [the other person] has since been charged with murder 16/08/21”.[25][24]Affidavit of Ms Furlan-Johns, at pp 75-76.[25]Affidavit of Ms Furlan-Johns, at pp 38-39. See also the statutory declaration of Rogers, dated 9 May 2019 (part of exhibit 1) and the statutory declaration of Ms Hales, dated 15 February 2022 (exhibit 3). It is not clear whether the Board had the Rogers’ declaration before it at the time of making the decision. It could not have had the Hales’ declaration given the date of it.