McGrane v Queensland Parole Board

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SUPREME COURT OF QUEENSLAND

CITATION:  McGrane v Queensland Parole Board [2009] QSC 380
PARTIES:  JAMES PATRICK MCGRANE
(applicant)
v
QUEENSLAND PAROLE BOARD
(respondent)
FILE NO/S:  BS 3164 of 2009
DIVISION:  Trial Division
PROCEEDING:  Application
ORIGINATING 
COURT:  Supreme Court, Brisbane
DELIVERED ON:  25 November 2009
DELIVERED AT:  Brisbane
HEARING DATE:  20 August 2009
JUDGE:  P Lyons J
ORDER:  Application dismissed

CATCHWORDS: ADMINISTRATIVE LAW – JUDICIAL REVIEW – GROUNDS OF REVIEW – GENERALLY – where the applicant seeks a statutory order of review of a decision by the Queensland Parole Board to decline to grant parole to the applicant pursuant to the Judicial Review Act 1991 (Qld) – where the applicant alleges a breach of natural justice has occurred – where the applicant submits that the breach has occurred on several grounds – whether any of the grounds are established – whether a breach of natural justice has occurred

Corrective Services Act 2006 (Qld), s 3, s 193, s 227

Judicial Review Act 1991 (Qld), s 20, s 23, s 24

McGuire v South Queensland Regional Community
Corrections Board [2003] QSC 414, considered
Minister for Aboriginal Affairs v Peko-Wallsend Ltd & Ors
(1986) 162 CLR 24, applied
R v Deputy Industrial Injuries Commissioner; ex parte Moore

[1965] 1 QB 456, considered

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

  1. P LYONS J: On about 5 September 2008, Mr McGrane made an application for a parole order. That application was refused. Mr McGrane now seeks a statutory order of review of that decision under the Judicial Review Act 1991 (Qld) (JR Act).

    Background

  2. Mr McGrane is now 41 years of age, his date of birth being 15 July 1968.

  3. On 5 June 1986 he was convicted of the murder and rape of his sister, the offences having been committed on 24 March 1986. He was then 17 years of age. He was sentenced to life imprisonment for the offence of murder, and to 15 years’ imprisonment on the offence of rape. He has been in custody since that time.

  4. Between 1988 and 1992 he was convicted of a number of offences whilst in custody, mostly relating to wilful damage of his cell, but some convictions were for assault, and one was for preparing to escape lawful custody.

  5. In the earlier period in which he was in custody, a number of breaches of prison discipline were recorded. However, between 1999 and March 2007 there were no such breaches. In March 2007 a breach described as a major breach for offensive language occurred. A further breach of prison discipline is said to have occurred in March 2008.

  6. Mr McGrane’s current classification is high security. In December 2003 he was in the residential section of Wolston Correctional Centre. However, in March 2005, he was returned to the secure section, the reported reasons being poor employment history and behavioural issues.

  7. Whilst in custody,…

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Details
Case
[2009] QSC 380
Decision Date

CaseChat Overview and Summary

In the case of McGrane v Queensland Parole Board, the applicant, Mr McGrane, sought a statutory order of review regarding the Board's decision to decline to grant him parole. The Board had based its decision on the conclusion that Mr McGrane posed an unacceptable risk to the community. The matter was heard in a relevant Australian court where the judge considered whether the Board's decision was within the statutory power conferred upon it.

The primary legal issues the court had to decide were whether the Board's decision was based on no evidence, whether the Board took into irrelevant considerations or failed to take into relevant considerations, and whether the Board breached the rules of natural justice in reaching its decision. The court had to examine if the Board's decision was made in accordance with the statutory requirements and if it was based on relevant considerations while excluding irrelevant ones. Additionally, the court assessed whether the Board's procedural fairness was upheld in line with natural justice principles.

The court found that Mr McGrane had not established that the Board's decision was based on no evidence. The Board had considered a substantial body of evidence, including assessments from a psychologist and a forensic psychiatrist, which supported its conclusion. The court also determined that the statutory provisions did not require the Board to take into account certain matters that Mr McGrane argued should have been considered. Regarding natural justice, the court held that the Board had provided Mr McGrane with adequate notice and opportunity to respond to the considerations before making its decision. The court concluded that the Board's decision was within its statutory power and was not made in breach of natural justice.

The court dismissed Mr McGrane's application for a statutory order of review, upholding the Board's decision that he posed an unacceptable risk to the community and should not be granted parole. The reasoning and outcome reflect the court's focus on ensuring that the Board's decision-making process was in accordance with the statutory requirements and procedural fairness.

Orders

Orders of the court

Application dismissed

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

In my view, this ground is not made out. No evidence Section 20(2)(h) of the JR Act sets out this ground. It is qualified by s 24, though this has not been relied upon in the submissions made on behalf of the Board. In essence, Mr McGrane submits that the factors identified in the Ministerial Guidelines favour his release. He also submits that his risk of re-offending is low, having regard to the steps he has taken to rehabilitate himself, and the time that has passed since his original offences. These submissions, in my view, when properly characterised, amount to an attempt by Mr McGrane to argue the factual merits of his case, rather than to establish that there was no evidence on which the Board’s decision was based. It is apparent from its reasons that it considered a substantial body of evidence, a not inconsiderable part of which would support its decision. Mr McGrane submits in particular that there was no evidence of his isolating behaviour. However, that reflects the evidence of Dr Moyle, who referred to the tendency of Mr McGrane “to isolate himself in his world of fantasy”. I do not accept this submission. Mr McGrane has not satisfied me that there was no evidence or other material to justify the decision made by the Board. Conclusion Notwithstanding the extensive and detailed submissions presented by Mr McGrane, and the fact that he has made substantial efforts to prepare himself for release, he has not established that he is entitled to a statutory order of review. The application should be dismissed.

Decision

Reasons for decision

Nevertheless, the Board has refused his present application. Parole Board’s decision On 3 October 2008, the Board wrote to Mr McGrane, giving notice that it was considering declining to grant him parole on the basis that he poses an unacceptable risk to the community. The letter identified the material which the Board considered relevant, and set out at some length matters which it considered would be of some significance to its final decision. The letter is of some length, and I do not propose to canvas all of the matters mentioned in it. It noted that he had completed the HISOP but that the Board did not have the exit report from that program. The program had been completed on 16 August 2007. The Board did, however, have information from the facilitators of the Getting Stated: Preparatory Program which spoke positively of Mr McGrane’s participation. The letter referred to a number of assessments of Mr McGrane, the most recent being in 2008. One of those was from a Mr Gavin Palk, a psychologist, who referred to likely difficulties Mr McGrane would encounter in transferring from prison life. Another was from Dr Moyle, a forensic psychiatrist, whose view was that Mr McGrane remained a person who is prone to aggression, including angry outbursts and violence, and that he remained a moderately high risk of serious sexual offence. Dr Moyle had recommended that Mr McGrane work “to overcome his tendency to isolate himself in his world of fantasy, so that he can lower his security level and together with corrections staff move toward lower security situations and eventual parole.” The letter made reference to Mr McGrane’s Relapse Prevention Plan and identified further matters that should be addressed. It also referred to inadequacies with his proposed Release Plan. It contained a summary of positive and negative factors, as well as risk factors and protective factors. It expressed the view in favour of a graduated progression by Mr McGrane to lower security custody. Mr McGrane responded with a substantial submission on 22 October 2008, and a further letter of 2 November 2008. The first of these documents was considered by the Board on 14 November 2008, and the second document at its meeting on 28 November 2008, where the Board reconsidered the views that it formed on 14 November 2008. It confirmed the decision which had been foreshadowed in the letter 3 October 2008. By letter of 19 February 2009, a statement of reasons for the Board’s decision was given to Mr McGrane. The statement of reasons commenced with a history of the application, including reference to Mr McGrane’s letters of 22 October and 2 November 2008. It then set out a lengthy list of material considered by the Board. It referred to the matters which I have mentioned earlier, and a number of others, relating to Mr McGrane’s history and assessments of him, including the courses he had undertaken, his Release Plan and his Relapse Prevention Plan. It noted the effect of the reports of Mr Palk and Dr Moyle. It identified a number of matters dealt with in Mr McGrane’s letters dealt with in 22 October and 2 November 2008. It then turned to the reasons for its decision.

Ratio Decidendi

Legal Principle Established

In deciding the application, it is necessary to focus on the fact that this is an application for a statutory order of review. On such an application, it is not possible to grant relief simply because it is thought that the decision was wrong, whether that conclusion be based on the material before the decision-maker, or on additional material before the Court. Ultimately, the legislation is concerned with the question whether the decision is made within the power conferred on the decision-maker, rather than whether the decision is the correct decision in all the circumstances. Relevant and irrelevant considerations It is convenient to deal with these matters together. Ultimately, the question whether a consideration is relevant or irrelevant in the sense in which those terms are used in this context, depends upon the proper construction of the statute which confers the power to make the decision. A consideration is irrelevant, only if on the proper construction of that statute, the decision-maker is precluded from taking that consideration into account. Equally, a consideration is a relevant consideration in this context, only if on the proper construction of that statute, the consideration is one that the decision-maker is required to take into account.[12] [12] See Minister for Aboriginal Affairs v Peko-Wallsend Ltd & Ors (1986) 162 CLR 24, 39-41. I have read, with some care, Mr McGrane’s submissions relating to the matters which he contends to be relevant considerations not taken into account, or irrelevant considerations taken into account. In my view, the statutory provisions which confer power on the Board to decide Mr McGrane’s application for parole do not make it necessary as a matter of law to take into account the matters to which he refers, or to exclude from consideration the matters which he contends to be irrelevant. Breach of natural justice It will be apparent that the Board gave Mr McGrane quite substantial notice of the matters it was considering taking into account, and received from him, and considered, his two responses. Mr McGrane appears to recognise this. His natural justice argument is not the traditional one, but is, in effect, that in lieu of considering the Parole Board Assessment Report from October 2007 in isolation, the Board should have required an update before making its decision. It may be possible to relate the proposition to a statement of Diplock LJ in R v Deputy Industrial Injuries Commissioner; ex parte Moore[13] where his Lordship stated as the first rule of natural justice that the decision-maker must base the decision on evidence. However the connection is remote. In this case, it could not be said that the Board has made its decision in the absence of evidence as to Mr McGrane’s current condition, particularly in view of the report of Mr Palk and the report from Dr Moyle. I note that the material includes a letter from the Board to Dr Moyle of 3 October 2008, said to relate to the HISOP. [13] [1965] 1 QB 456, 488 adopted by Deane J in Minister for Immigration and Ethnic Affairs v Pochi (1980) 44 FLR 41, 66-68.