McQueen v Parole Board Queensland

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SUPREME COURT OF QUEENSLAND

CITATION:

McQueen v Parole Board Queensland [2018] QSC 216

PARTIES:

ALLAN DAVID McQUEEN

(applicant)

v
PAROLE BOARD QUEENSLAND

(respondent)

FILE NO:

5437 of 2018

DIVISION:

Trial

PROCEEDING:

Application

ORIGINATING COURT:

Supreme Court of Queensland

DELIVERED ON:

2 October 2018

DELIVERED AT:

Brisbane

HEARING DATES:

3 September 2018 and 24 September 2018

JUDGE:

Dalton J

ORDERS:

1. I declare that the decision of the Parole Board made on 27 March 2018 to confirm its earlier decision to cancel Mr McQueen’s parole pursuant to s 208(2) of the Corrective Services Act was affected by error of law and ought to be regarded as invalid.

2.    I direct that a copy of these reasons be provided to the President of the Board and each Deputy-President.

CATCHWORDS:

ADMINISTRATIVE LAW – JUDICIAL REVIEW – GROUNDS OF REVIEW – ERROR OF LAW – where the Parole Board exercised its discretion to cancel the applicant’s parole due to a parole contravention – where the Parole Board confirmed its decision to cancel at a later date – where the applicant applied for judicial review of this decision to confirm – whether the Parole Board failed to take into account relevant considerations – whether the Parole Board adopted an inflexible application of policy or rule

Acts Interpretation Act 1954 (Qld), s 27B
Corrective Services Act 2006 (Qld), s 3, s 200, s 205, s 208, s 208B

East Melbourne Group Inc v Minister for Planning & Anor [2008] VSCA 217, cited
Leggett v Queensland Parole Board [2012] QSC 121, cited
Minister for Immigration & Multicultural Affairs v Yusuf (2001) 206 CLR 323; [2001] HCA 30, cited

COUNSEL:

AD Scott for the applicant

MJ Woodford for the respondent

SOLICITORS:

Guest Lawyers for the applicant

Crown Solicitor for the respondent

  1. This is an application for an order for statutory review of a decision the Parole Board made on 27 March 2018 to confirm a peremptory cancellation of Mr McQueen’s parole.  After hearing the application, but before delivering judgment, I was informed that the Board had granted another, independent application by Mr McQueen for parole.  After hearing the parties, I determined to decide the matter and give reasons for my decision.  There seemed utility in doing so because of the long history between the Board and Mr McQueen.  In my view, the Board’s conduct in the present instance was wrong in law.  That ought to be recorded as part of a history which increasingly discredits the Board.

  2. The history of Mr McQueen’s offending and interactions with the Parole Board is given in Court Document 10.  All page references below are to the exhibit bundle of that affidavit.

    History of Offending

  3. Mr McQueen was born in 1967, making him 51 years old now.  He has a very long criminal history which dates back to 1979 when he was 12 years old.  Terms of actual imprisonment were imposed from 1985.  There were many sentences, but no sentence of over 12 months imprisonment was imposed before 1991.…

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Details
Case
[2018] QSC 216
Decision Date

CaseChat Overview and Summary

In the case of McQueen v Parole Board Queensland, the applicant, Mr McQueen, sought judicial review of the decision by the Parole Board to cancel his parole. The Board had initially cancelled his parole on 3 March 2017, citing a parole contravention as the basis for its decision. This decision was confirmed on 24 March 2017, and reasons for the decision were provided on 19 April 2017. Mr McQueen applied for judicial review of the 3 March 2017 decision on 26 July 2017, arguing that the Board failed to take into account relevant considerations and adopted an inflexible application of policy or rule. The court was required to determine whether the Board’s decision was affected by an error of law, specifically whether it failed to consider relevant matters or applied policy inflexibly.

The court found that the decision to cancel the parole was indeed affected by an error of law. The Board had failed to genuinely consider relevant matters, such as the nature of the parole contravention and the purposes of the Corrective Services Act, which include community safety, crime prevention, and the safeguarding of an offender's basic human entitlements. The court noted that the Board did not discuss these matters in the information notice or the letter of 3 April 2018, and its comments gave the impression that it either did not see these matters as relevant or did not give them genuine consideration. The court concluded that the Board misunderstood the basis for its discretionary considerations, which amounted to an error of law.

Consequently, the court declared that the decision of the Parole Board made on 27 March 2018 to confirm its earlier decision to cancel Mr McQueen’s parole was affected by error of law and ought to be regarded as invalid. The court also directed that a copy of these reasons be provided to the President of the Board and each Deputy-President.

Orders

Orders of the court

1. I declare that the decision of the Parole Board made on 27 March 2018 to confirm its earlier decision to cancel Mr McQueen’s parole pursuant to s 208(2) of the Corrective Services Act was affected by error of law and ought to be regarded as invalid.

2. I direct that a copy of these reasons be provided to the President of the Board and each Deputy-President.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

On 3 March 2017 the Board substituted a new decision to cancel Mr McQueen’s parole – p 285. The basis for this decision was expressed to be Mr McQueen’s contact with the gentleman in the wheelchair. Mr McQueen’s parole was again considered by the Board on 24 March 2017, which confirmed the decision (again) – p 257. Mr McQueen requested reasons, which were supplied under cover of a letter dated 19 April 2017 – p 243. Judicial Review 26 July 2017 On 26 July 2017 Jackson J heard an application for a statutory review of the 3 March 2017 decision. Justice Jackson gave ex tempore reasons including the following:“The non-compliance was based on the applicant’s self-report of contact he had with an offender named [name]. The applicant challenged the validity of the decision on three grounds; however, it is unnecessary to consider them. The respondent no longer seeks to uphold the March 2017 cancellation order as valid.The respondent submits, however, that the application should be adjourned to enable the respondent to further consider another application for parole made by the applicant. Although the respondent previously refused that further application, it recently decided to rescind its decision, and has indicated that in its reconsideration, it would not rely on the previous contact either with [the wheelchair-bound ex-prisoner] or [the associate of the outlaw motorcycle gang [27] above] as relevant to the decision to be made.” Justice Jackson did not accede to the Parole Board’s request that he adjourn the application, rather than cancel the parole order made on 3 March 2017. He did cancel that order. In the event it would be another four months until the Parole Board released Mr McQueen on parole. On 26 July 2017, in response to Jackson J having set aside its 3 March 2017 decision to cancel Mr McQueen’s parole, the Board suspended his parole for an indefinite period because it believed he was an unacceptable risk in the community because he had no address approved by the Board. Last release on parole On 26 October 2017 the Parole Board lifted its suspension of parole as and from 14 November 2017 – p 87. It was contemplated that Mr McQueen would live with his brother. This release was on a much amended set of parole conditions, which now numbered 52. The conditions now prohibited him from having any contact with co‑offenders or with anyone known to him who had served a term of imprisonment, without prior approval from Corrective Services. B was no longer an exception to this condition – p 87ff. The Parole Board had been informed that the romantic relationship between Mr McQueen and B had broken down. The Board said this about its decision no longer to exclude B from the above condition:“● The Board is informed that at your interview conducted with the Specialised Clinical Services Unit (SCSU) on 18 October 2017, you reported your relationship with [B] had ceased. Further you advised that termination of this relationship increased your familial support; and● The Board was also informed in the interview with SCSU upon your own admission that if you re-established a relationship with [B] that this may lead to a reduction of support from your family thereby increasing your likelihood of engaging in maladaptive behaviour.” – p 91.

Ratio Decidendi

Legal Principle Established

The decision whether to suspend or cancel a parole order pursuant to s 205(2)(a) of the CSA is clearly discretionary. It is made without hearing the prisoner, but then the prisoner is given an opportunity to be heard. In my opinion it follows that when considering the submissions given to it by the prisoner pursuant to s 208(2), the Parole Board is obliged to revisit its discretionary decision. In this case, it was obliged to consider whether or not it should exercise its discretion to change the decision to cancel Mr McQueen’s parole because he had failed to comply with a parole order. It seems to me that the Board misunderstood this as a basis for its considerations – [74] above. This is an error of law.Failure to take into account relevant considerations The applicant submitted that the discretionary considerations pursuant to s 208(2) in this case would take into account the purposes of the Corrective Services Act at s 3, which include community safety and crime prevention through the humane containment, supervision and rehabilitation of offenders, and also include recognition that an offender’s “basic human entitlements” other than those which are necessarily diminished because of imprisonment, should be safeguarded. The applicant further submitted that the discretionary considerations in this case, resting as it did on the fact that Mr McQueen had failed to comply with a condition of his parole order, would include the fact that a parole order may only contain a condition such as condition (y) if the Board reasonably considered such a condition necessary either to ensure the prisoner’s good conduct or stop the prisoner committing an offence – s 200(3) of the CSA. These are broad considerations, but I accept the applicant’s submissions that they were relevant to the exercise to be performed under both ss 205(2) and 208(2) in this case. I also accept that the nature of the breach of condition, including its seriousness or lack of seriousness was a relevant consideration for the Board exercising its discretion pursuant to both ss 205(2) and 208(2). I would have thought this was obvious as a matter of commonsense or logic, but if confirmation be needed, it is found in paragraph 6.2(b) of the Ministerial Guidelines. The contact here was very brief; the Parole Board could be certain of this because it had CCTV footage of it. The contact was for an obvious domestic purpose involving the welfare of a child and was in circumstances where Mr McQueen had put in place other arrangements which had failed, leaving him with a limited range of choice which would ensure that his child was safe and that his wife was amenable to further co‑operate in granting him access. Again the Board had CCTV footage of the contact, so that it could see the nature of the contact. These were obviously relevant matters for consideration by the Board. The Board does not seem to have considered them in any real or genuine way. I draw this conclusion because the Board does not discuss them in the information notice or the letter of 3 April 2018.[10] Further, because comments by the Board in these documents give the impression either that it does not see these matters as relevant to its discretion, or does not give them real genuine consideration[11] – see [70]; [71] and [72] above.[10] Minister for Immigration & Multicultural Affairs v Yusuf (2001) 206 CLR 323, 346.[11] Leggett v Queensland Parole Board [2012] QSC 121 [24] and the cases cited there.