Queensland Parole Board v Moore

SUPREME COURT OF QUEENSLAND

CITATION:

Queensland Parole Board v Moore [2010] QCA 280

PARTIES:

QUEENSLAND PAROLE BOARD
(respondent/appellant)
v
ROBERT STEWARD MOORE
(applicant/respondent)

FILE NO/S:

Appeal No 6640 of 2010
SC No 14349 of 2009

DIVISION:

Court of Appeal

PROCEEDING:

General Civil Appeal

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

15 October 2010

DELIVERED AT:

Brisbane

HEARING DATE:

1 September 2010

JUDGES:

McMurdo P, Holmes JA and Mullins J
Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDER:

Appeal dismissed with costs

CATCHWORDS:

ADMINISTRATIVE LAW – JUDICIAL REVIEW – GROUNDS FOR REVIEW – RELEVANT CONSIDERATIONS – where appellant refused respondent’s parole application – where respondent applied for judicial review of the appellant’s decisions – where appellant considered the respondent an unacceptable risk to the community – where appellant had not been able to observe the respondent’s self-management in a low security setting – where there was evidence that the respondent would be a greater threat to the community if released at the expiry of his sentence than if released on parole and subject to supervision – whether respondent’s ineligibility for transfer to a lower security setting a relevant consideration – whether future, as opposed to current, risk a relevant consideration – whether appellant failed to take into account these considerations

Corrective Services Act 2006 (Qld), s 227(1)

Cuzack v Queensland Parole Board [2010] QSC 264, approved
McGrane v Queensland State Parole Board [2010] QSC 209, approved

COUNSEL:

R J Flanagan, with K A Mellifont, for the appellant
D P O’Gorman SC, with M Black, for the respondent

SOLICITORS:

Crown Law for the appellant
Prisoners’ Legal Service for the respondent

1. McMURDO P:  This appeal should be dismissed with costs for the reasons given by Holmes JA.

1. HOLMES JA:  The appellant, the Queensland Parole Board, appeals a decision on a judicial review application which set aside a decision of the Board refusing the respondent parole and ordered that it reconsider his application in accordance with the learned judge’s reasons.  The appeal turns on whether the learned primary judge was correct in regarding as relevant to the Board’s decision two considerations: the first, whether the respondent would ever be in a position to demonstrate behavioural improvement in a less structured environment than high security imprisonment; the second, whether the risk to the community would be greater if he were not granted parole prior to his full-time release date.  If those considerations were, contrary to the Board’s submission, relevant, there remains a further question as to whether the learned judge erred in any case in concluding that those considerations had not been taken into account.

The respondent’s applications for parole

1. The respondent was sentenced to imprisonment for two terms totalling 14 years nine months and seven days for a variety of offences, the most serious of which was armed robbery.  His parole eligibility date was 14 October 2009 and his full-time release date was 22 April 2013.  On 19 January 2009,…