Nijp v Parole Board Queensland

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SUPREME COURT OF QUEENSLAND

CITATION:

Nijp v Parole Board Queensland [2024] QSC 104

PARTIES:

PHILIP NIJP

(applicant)

v

PAROLE BOARD QUEENSLAND

(respondent)

FILE NO:

1589 of 2024

DIVISION:

Trial Division

PROCEEDING:

Application for statutory order of review

ORIGINATING COURT:

Supreme Court of Queensland at Brisbane

DELIVERED ON:

30 May 2024

DELIVERED AT:

Brisbane

HEARING DATE:

17 April and 23 May 2024

JUDGE:

Applegarth J

ORDER:

1. Pursuant to s 30 of the Judicial Review Act 1991 (Qld) the decisions under review of 25 January 2024 and 15 May 2024 be set aside.

2.  The respondent reconsider the applicant’s application for parole with appropriate expedition.

3.  Liberty to apply.

4.  There be no order as to costs, save that the respondent pay the applicant’s costs of filing the application for a statutory order of review.

CATCHWORDS:

CRIMINAL LAW – SENTENCE – POST-CUSTODIAL ORDERS – PAROLE – BOARDS, TRIBUNALS ETC: POWERS, DUTIES AND CONSTITUTION – FAILURE TO TAKE INTO ACCOUNT MATERIAL CONSIDERATIONS – where the applicant was refused parole by the Parole Board because he had not completed the Inclusion Sexual Offenders Program (ISOP) – where the ISOP was offered infrequently, where one was not presently scheduled, and where there was a waitlist for it – where the Parole Board did not know when, if ever, the applicant might undertake the ISOP – where an equivalent program was available in the community – whether the Parole Board failed to take into account relevant considerations, including the risk to the community if the applicant did not complete the ISOP until closer to the end of his sentence or not at all, and the early availability of equivalent treatment in the community

Judicial Review Act 1991 (Qld), s 30

Australia Pacific LNG Pty Limited v The Treasurer, Minister for Aboriginal and Torres Strait Islander Partnerships and Minister for Sport [2019] QSC 124, cited

Johnson v Parole Board of Queensland [2020] QSC 108, cited
Johnston v Central & Northern Queensland Regional Parole Board [2019] 1 Qd R 32, considered
LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] HCA 12; (2024) 98 ALJR 610, cited
Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24, cited
Queensland Parole Board v Moore [2012] 2 Qd R 294, considered
COUNSEL:

The applicant was self-represented, assisted by a McKenzie friend

S P Colditz for the respondent
SOLICITORS:

The applicant was self-represented

Legal Services, Parole Board Queensland for the respondent

  1. The applicant applied for parole.  He had an abundance of matters in his favour.  He was refused parole in January 2024 and again in May 2024, essentially because he had not completed the Inclusion Sexual Offenders Program (ISOP).

  2. The applicant is willing to undertake the ISOP.

  3. The reasons he has not undertaken it include:

    (a)that after being seriously assaulted in custody he was transferred to a protection unit at Woodford Correctional Centre and the ISOP is not offered there;

    (b)he had genuine concerns about his safety if he was transferred…

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Details
Case
[2024] QSC 104
Decision Date

CaseChat Overview and Summary

The case of Nijp v Parole Board Queensland involved the applicant, who was seeking judicial review of the decisions made by the Parole Board to refuse him parole. The applicant, who had been imprisoned for serious offences of burglary and rape, argued that the Board had failed to take into account relevant considerations when denying his parole applications. These considerations included the risk to the community if he did not complete a specific program until closer to the end of his sentence and the availability of an equivalent program in the community. The applicant contended that the Board had not adequately considered the infrequent scheduling of the Inclusion Sexual Offenders Program (ISOP) at the correctional facility where he was incarcerated, the existence of a waitlist for the program, and the uncertainty about when, if ever, he might undertake the ISOP.

The central legal issue in this case was whether the Parole Board had failed to take into account relevant considerations that should have been considered when making its decisions on the applicant's parole applications. Specifically, the court needed to determine if the Board had erred in not adequately considering the risk to the community if the applicant did not complete the ISOP until a later date, and the potential benefits of an equivalent program available in the community. The applicant argued that the Board should have imposed conditions such as electronic monitoring or a curfew to mitigate the risk he posed to the community, but the Board had concluded that no such conditions could sufficiently reduce the risk.

The court found that the Parole Board had indeed failed to take into account relevant considerations in making its decisions. The Board did not address the possibility that the applicant might never participate in the ISOP due to the waitlist and uncertain scheduling. Additionally, the Board did not consider the benefits of an equivalent program available in the community, which might have been more beneficial in terms of reducing community risk than an ISOP in custody at a future date. As a result, the court set aside the decisions of the Board and ordered the Board to reconsider the applicant's parole application with appropriate expedition.

In summary, the court's decision was that the Parole Board's decisions to refuse the applicant parole were flawed because they did not adequately consider the relevant risk factors and the availability of an alternative treatment program in the community. The Board's failure to address these considerations constituted a ground for judicial review, leading to the setting aside of the decisions and the ordering of reconsideration.

Orders

Orders of the court

1. Pursuant to s 30 of the Judicial Review Act 1991 (Qld) the decisions under review of 25 January 2024 and 15 May 2024 be set aside.

2. The respondent reconsider the applicant’s application for parole with appropriate expedition.

3. Liberty to apply.

4. There be no order as to costs, save that the respondent pay the applicant’s costs of filing the application for a statutory order of review.

Background

Background to the litigation

The issue is whether these matters establish a ground to judicially review the decisions of the Board, particularly the operative decision made on 15 May 2024.Background The applicant was born in 1992. After completing school he had consistent employment. He had no psychological problems, did not use drugs, and only occasionally consumed alcohol. A single man, he engaged in pro‑social recreational activities including volunteering. In early 2019, he committed two related, serious offences. QCS described them as “opportunistic in nature”. A few days before the offending, he had met the complainant online. They arranged to meet in the car park of a local pool. After some discussion, the complainant left in her car, and, unbeknown to her, the applicant followed. They had a further discussion in her driveway about assisting her. The applicant then left. Later that day, when the complainant was out, the applicant returned, leaving his car outside. He went into the home. When the complainant returned inside, the applicant commenced touching her breasts. He then forcibly removed her clothing and raped her. A few days later, when interviewed by police, the applicant claimed that the intercourse was consensual. The applicant subsequently pleaded guilty to offences of burglary and rape. In imposing an eight-year sentence, the sentencing judge took account of the aggravating circumstance of the burglary and the complainant’s vulnerability. Given the applicant’s lack of criminal history, that the offending appeared to be “completely out of character”, the early plea, and the applicant’s support in the community, he was granted a parole eligibility date after serving one-third of his eight-year sentence. This gave him a parole eligibility date of 17 October 2022. Upon his entry into custody in early 2020, the applicant was assessed on the STATIC‑99R risk assessment instrument with a score of three, namely having a moderate‑low risk of sexual reoffending. At the time of the assessment, he gave an account of the offence which varied from the factual basis upon which he was sentenced. He claimed that he returned to the complainant’s residence that afternoon, after being invited to do so, and that the intercourse had been consensual. This claim suggested that he needed to be referred for specialised assessment for sexual offending programs. Not long after the applicant was imprisoned at Borallon Correctional Centre, he was assaulted numerous times. At least one of the assaults, committed on 13 March 2020, came to the attention of the authorities and, for the applicant’s safety, he was transferred to Woodford Correctional Centre. The reasons he was transferred to Woodford Correctional Centre, where he was able to be accommodated in a secure unit, rather than to the Wolston Correctional Centre, are unclear. It may have been the greater overcrowding at Wolston. Records also indicate that he thought he would be “more comfortable” at Woodford. Against the background of the assaults he had experienced, this probably meant that he would feel safer in a secure unit there than at Wolston. At the time of his transfer to Woodford, the applicant had not been identified as someone who would be most suitable for an ISOP (which is only available at Wolston), and so the transfer to Woodford was not thought to adversely affect his treatment pathway at the time, which would have been a Getting Started Preparatory Program (GSPP) and a Medium Intensity Sexual Offender Program (MISOP), which were both available at Woodford.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

The further submissions reiterated that the applicant was assessed as low risk, observed that more than 150 days had passed since the application had been lodged, and noted that the applicant was not refusing to do any courses or programs, but requesting to do them in the community.The decision of 25 January 2024 The Board’s decision reiterated many of the factual matters that I have already canvassed and which appeared in its preliminary decision. These included numerous favourable factors and the applicant’s outstanding treatment need that arose from the matters I have mentioned in connection with the GSPP program and the Parole Suitability Assessment, in which he accepted limited responsibility for his sexual offending and limited insight into his motivation for offending. The Board noted that in submissions received on 25 November 2023 the applicant had indicated that he was not refusing to do programs and courses in custody. The Board noted the reason that he was unwilling to transfer to Wolston was due to “fear for your own safety”. The Board noted that in his submission of 25 November 2023 the applicant confirmed that he was not refusing to do programs and courses in custody, instead, he was asking to do them in the community. The Board advised that the information before it was that an ISOP was likely to be scheduled in April/May 2024. Notwithstanding the many positive aspects of the application, the Board stated it was “required to determine the level of risk he posed to the community” at the time of its decision, and determined that no new information had been contained in the further submissions. It remained of the view that the applicant “posed an unacceptable risk to the safety of the community at this time”. The Board considered whether conditions, such as electronic monitoring or a curfew, could be imposed to reduce the applicant’s risk to a suitable level. However, it formed the view that “there were no conditions which could reasonably be imposed that would sufficiently ameliorate the risk he posed to the community at that time” (being the time the decision was made on 25 January 2024). Importantly, while noting that its information was that an ISOP was likely to be scheduled in April/May of 2024, the Board did not address whether the applicant had any realistic chance of being included in that program because of the numbers who were waitlisted for it. It did not refer in its detailed reasons to the benefits of undertaking an equivalent program to ISOP in the community, and whether such a program was likely to yield greater benefits in terms of reducing community risk than an ISOP in custody at some uncertain future date closer to the applicant’s full-time release date.This proceeding In this proceeding the applicant is self-represented, but supported by his partner to whom he has given a power of attorney. I allowed Ms Lucas to speak on behalf of the applicant who appeared in person at the hearing on 17 April 2024 and by video‑link from Woodford on subsequent hearings.

Ratio Decidendi

Legal Principle Established

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