Rielly v Parole Board Queensland - [2021] QSC 100

SUPREME COURT OF QUEENSLAND

CITATION:

Rielly v Parole Board Queensland [2021] QSC 100

PARTIES:

MERVYN JAMES RIELLY

(Applicant)

v

PAROLE BOARD QUEENSLAND

(First Respondent)
and
COMMUNITY CORRECTIONS BOARD

(Second Respondent)

FILE NO/S:

BS No 13057 of 2020

DIVISION:

Trial Division

PROCEEDING:

Application

DELIVERED ON:

14 May 2021

DELIVERED AT:

Brisbane

HEARING DATE:

23 April 2021

JUDGE:

Bowskill J

ORDERS:

1. The application is dismissed.

2. The second respondent be removed as a party to this proceeding.

3. The parties are to bear their own costs.

CATCHWORDS:

ADMINISTRATIVE LAW – JUDICIAL REVIEW – GROUNDS OF REVIEW – RELEVANT CONSIDERATIONS – application for a statutory order of review of a decision of the Parole Board refusing a grant of parole to the applicant, a prisoner serving a sentence of life imprisonment for a murder committed in 1975 – where the applicant first became eligible for parole in 1988, but remains in custody having served 45 years – where the applicant has made numerous unsuccessful applications for parole – where the respondent refused the applicant’s present parole application on the basis that he poses an unacceptable risk to the community, due to the applicant’s serious history of offending, level of risk as determined by psychiatric assessment, and outstanding treatment needs – where differing views have been expressed in the past by psychologists and psychiatrists who have conducted risk assessments of the applicant as to whether there was any sexual element to the murder offence, and the relevance of that to the potential ongoing risk posed by the applicant, in light of prior sexual offending – where the applicant denies there was any sexual element to the murder, and there is a paucity of documentary material in that regard – where the applicant has put forward a large number of potential places of accommodation if released on parole, all of which have been assessed as unsuitable – whether the respondent failed to take relevant considerations into account, including the applicant’s contention that there was no sexual element to the murder offence, as well as the applicant’s age and good record in custody – whether the respondent otherwise made any reviewable error in making its decision, in so far as it took into account the lack of suitable accommodation

Judicial Review Act 1991 (Qld), ss 20 and 23

Calanca v Parole Board Queensland [2019] QSC 34
Rielly v Queensland Parole Board [2017] QSC 244

COUNSEL:
The applicant appeared in person

S Robb, for the first respondent

SOLICITORS:

Parole Board Queensland, for the first respondent

The applicant is serving a term of imprisonment for life for the offence of murder. He pleaded guilty and was convicted of that offence and sentenced on 30 March 1976. He has been in prison for the last 45 years. He became eligible for parole in December 1988. Over the years, he has made many applications for parole, all of which have been refused.
His most recent application was made on 27 November 2019. On 11 January 2021, the Queensland Parole…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2021] QSC 100
Decision Date: 14 May 2021

CaseChat Overview and Summary

In the case of Rielly v Parole Board Queensland, the applicant sought a statutory order of review for the decision of the Parole Board refusing his parole application. The applicant, a prisoner serving a life sentence for a 1975 murder, had made numerous unsuccessful parole applications and remained in custody after serving 45 years. The Parole Board's refusal was based on the applicant's serious history of offending, level of risk as determined by psychiatric assessment, and outstanding treatment needs. The applicant contended that the Board failed to consider relevant factors, such as the absence of any sexual element in the murder offence and his age and good record in custody. Additionally, the applicant argued that the Board's consideration of the lack of suitable accommodation was flawed.

The legal issues before the court were whether the Parole Board failed to take relevant considerations into account and whether it made any other reviewable error in making its decision. The court examined the Board's statement of reasons and the psychiatric assessment by Dr Karen Brown, which formed the basis of the Board's decision. The Board had considered the applicant's criminal history, his successful completion of various programs, and the expert opinion of Dr Brown, which concluded that the applicant posed an unacceptable risk to the community even if the murder offence was not sexually motivated.

The court held that the Parole Board had appropriately considered the relevant factors in making its decision. The court found that the Board had given proper weight to Dr Brown's assessment, despite the limitations in the available documentary material. The court also found that the Board's consideration of the lack of suitable accommodation was valid, as the applicant had proposed multiple locations for parole, all of which were assessed as unsuitable. The court concluded that the Board's decision was not flawed and dismissed the application.

In conclusion, the court dismissed the application for a statutory order of review, removed the second respondent from the proceeding, and ordered that each party bear their own costs. The court found that the Parole Board had appropriately considered the relevant factors in making its decision and that there was no reviewable error in the Board's decision.

Orders

Orders of the court

1. The application is dismissed.

2. The second respondent be removed as a party to this proceeding.

3. The parties are to bear their own costs.

Background

Background to the litigation

The application names the “Community Corrections Board” as a second respondent. This appears to be a reference to the entity that conducts accommodation risk assessments in relation to an address proposed by a prisoner seeking parole. Such an assessment is information taken into account by the Parole Board in making its decision, but is not in itself a reviewable decision for the purposes of the Judicial Review Act 1991. Accordingly, it is appropriate to remove the named second respondent from this proceeding.[4][4]See r 69(1)(a) of the Uniform Civil Procedure Rules 1999. Although s 54 of the Judicial Review Act 1991 empowers the court to make an order permitting documents lodged with the registry in relation to an application to be amended, as this is the final decision in relation to the application for a statutory order of review that does not appear to be necessary.Background In considering the applicant’s application for parole, the Parole Board required an updated risk assessment to be completed by a psychiatrist.[5] This was a matter raised by the Prisoners’ Legal Service, in the context of an earlier application for parole, which was not then acted on by the Board.[6] Nevertheless, in considering the recent application, an updated risk assessment was obtained from Dr Karen Brown, who produced a report dated 27 July 2020.[7] [5]Exhibit TPF-3 to Mr Fall’s affidavit (p 4). See also the statement of reasons (exhibit TPF-6) at [10]-[11].[6]See Rielly v Queensland Parole Board [2017] QSC 244 at [14]-[15].[7]Exhibit TPF-22 to Mr Fall’s affidavit (pp 70-105). As Dr Brown records, there are no available court briefs, witness statements or court transcripts (other than a brief transcript of the sentencing hearing for the offence of murder). Accordingly, the details of the applicant’s previous offences, as set out by Dr Brown, are based on various reports prepared over the years which were provided to her. Dr Brown identifies this as a significant limitation in assessing the risk posed by the applicant. The applicant’s first conviction was in June 1962, of an offence of unlawful carnal knowledge of a girl under the age of 12. He was aged 15 at the time of the offence, which involved the digital rape of a three year old girl. Notwithstanding his young age at the time of the offence, the applicant was sentenced to 15 years detention.[8] He was 17 at the time of his sentence. An application for leave to appeal against the sentence was refused.[9] He was initially incarcerated at Boggo Road, where it is alleged he was raped by four other youths. He then served seven years in a place called the Baillie Henderson Hospital. He was eventually released from custody in 1973 after 11 years of incarceration.[10][8]A possible explanation appears in Dr Brown’s report (at p 76 of exhibit TPF-22), by reference to a report from Dr Atkinson, psychiatrist, dated 25 March 2000, in which Dr Atkinson said: “It seems to have been found that pursuant to the provisions of section 18 of the Criminal Law Amendment Act of 1945, he was found to be incapable of exercising proper control over his sexual instincts. He was seen by Dr Hayes, Dr Parker, Dr Leggatt and Dr Hede. The Judge seems however to have been uncertain of his ability to apply Section 18 to a person of such a young age and gave him 15 years under Section 25(a) of the State Children’s Act… it is rather odd for Section 18 of the Criminal Law Amendment Act to be used without there being a string of offences and one wonders what information the above named doctors had.”[9]Exhibit TPF-79 to Mr Fall’s affidavit (pp 439-440) (criminal history).[10]Exhibit TPF-22 to Mr Fall’s affidavit (p 72).

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Dr Brown concludes:“… I am unable to recommend release to parole at this time. In my opinion, (even if the offence of murder was not thought to be sexually motivated), there are a number of outstanding and unaddressed treatment and risk management needs. In my opinion, supervision by Queensland Corrective Services at the highest level possible, would still be inadequate to reduce the risk to a manageable level.”[21][21]Ibid, p 105.The Parole Board’s decision In its statement of reasons[22] (at [14]) the Parole Board identified a number of factors in the applicant’s favour which would support the conclusion that he is a suitable candidate for parole, as follows:“a.You have undertaken approximately 50 successful leaves of absences whilst in custody at Palen Creek Correctional Centre and Moreton Bay Correctional Centre. The Board formed the view that these leaves of absence demonstrate your capacity for compliance with rules and conditions in an environment with lower levels of monitoring and supervision.b.You have been assigned a low security classification since 2008 and have been accommodated in residential accommodation since 2010. You also have not been involved in an adverse incident in custody and have provided nine (9) clear urine samples on dates between 2010 and 2019.c.You have maintained employment whilst in custody. Your most recent employment was as an Industry Overseer which you commenced in October 2019.d.You have completed a number of programs in custody to address your offending. The Board noted that you successfully completed the Getting Started Preparatory Program for Sexual Offending (‘GSSP’) on 31 January 2014, the High Intensity Sexual Offending Program (‘HISOP’) on 20 March 2015, and the Sexual Offending Maintenance Program (‘SOMP’) on 1 July 2016.e.The Board also noted that you were convicted of your index offence on 30 March 1976 and became eligible for parole on 11 December 1988. The Board noted you have remained in custody since your parole eligibility date and have not yet been granted a parole order. The Board also had regard to your age and considered this a factor that lessens your level of risk to the community.”[22]Exhibit TPF-6 to Mr Fall’s affidavit (pp 16-24). The Board also took into account the applicant’s criminal history, which it said “demonstrates a pattern of repeated serious offending” (at [15]). The many risk assessments prepared by psychologists and psychiatrists over the years were also taken into account, but the Board said that it “placed the most weight on the report of Dr Karen Brown due to both its recency and the expert nature of the opinion of Dr Brown as supported by her psychiatric qualifications and experience” (at [16]-[17]). After referring to the final opinion of Dr Brown,[23] the statement of reasons records that:“The Board accepted the opinion of Dr Brown with regard to the risk that you pose to the community. Importantly, the Board accepted the opinion of Dr Brown that, even if the offence of murder was not sexually motivated, the risk you pose to the community would still be unacceptably high.” (at [21])[23]Set out at paragraph [16] above (see [20] of the statement of reasons).

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	Rielly v Parole Board Queensland [2021] QSC 100
PARTIES:	MERVYN JAMES RIELLY (Applicant) v PAROLE BOARD QUEENSLAND (First Respondent) and COMMUNITY CORRECTIONS BOARD (Second Respondent)
FILE NO/S:	BS No 13057 of 2020
DIVISION:	Trial Division
PROCEEDING:	Application
DELIVERED ON:	14 May 2021
DELIVERED AT:	Brisbane
HEARING DATE:	23 April 2021
JUDGE:	Bowskill J
ORDERS:	1. The application is dismissed. 2. The second respondent be removed as a party to this proceeding. 3. The parties are to bear their own costs.
CATCHWORDS:	ADMINISTRATIVE LAW – JUDICIAL REVIEW – GROUNDS OF REVIEW – RELEVANT CONSIDERATIONS – application for a statutory order of review of a decision of the Parole Board refusing a grant of parole to the applicant, a prisoner serving a sentence of life imprisonment for a murder committed in 1975 – where the applicant first became eligible for parole in 1988, but remains in custody having served 45 years – where the applicant has made numerous unsuccessful applications for parole – where the respondent refused the applicant’s present parole application on the basis that he poses an unacceptable risk to the community, due to the applicant’s serious history of offending, level of risk as determined by psychiatric assessment, and outstanding treatment needs – where differing views have been expressed in the past by psychologists and psychiatrists who have conducted risk assessments of the applicant as to whether there was any sexual element to the murder offence, and the relevance of that to the potential ongoing risk posed by the applicant, in light of prior sexual offending – where the applicant denies there was any sexual element to the murder, and there is a paucity of documentary material in that regard – where the applicant has put forward a large number of potential places of accommodation if released on parole, all of which have been assessed as unsuitable – whether the respondent failed to take relevant considerations into account, including the applicant’s contention that there was no sexual element to the murder offence, as well as the applicant’s age and good record in custody – whether the respondent otherwise made any reviewable error in making its decision, in so far as it took into account the lack of suitable accommodation Judicial Review Act 1991 (Qld), ss 20 and 23 Calanca v Parole Board Queensland [2019] QSC 34 Rielly v Queensland Parole Board [2017] QSC 244
COUNSEL:	The applicant appeared in person S Robb, for the first respondent
SOLICITORS:	Parole Board Queensland, for the first respondent