Ripi v Parole Board Queensland - [2018] QSC 205

SUPREME COURT OF QUEENSLAND

CITATION:

Ripi v Parole Board Queensland [2018] QSC 205

PARTIES:

ISAAC MATTHEW RIPI

(applicant)

v
PAROLE BOARD QUEENSLAND

(respondent)

FILE NO:

No 2971 of 2018

DIVISION:

Trial Division

PROCEEDING:

Application

DELIVERED ON:

10 September 2018

DELIVERED AT:

Brisbane

HEARING DATE:

8 August 2018

JUDGE:

Davis J

ORDER:

1. The application is dismissed.

2. The parties will be heard on the question of costs.

CATCHWORDS:

ADMINISTRATIVE LAW – JUDICIAL REVIEW – GROUNDS OF REVIEW – PROCEDURAL FAIRNESS – HEARING – NATURE OF HEARING – where the respondent refused a parole application made by the applicant – where the applicant alleged a failure to accord natural justice by the respondent not providing an opportunity to be heard by videolink – whether the respondent had failed to accord natural justice

ADMINISTRATIVE LAW – JUDICIAL REVIEW – GROUNDS OF REVIEW – RELEVANT CONSIDERATIONS – where the respondent refused a parole application made by the applicant – where the applicant contended that Ministerial guidelines were not taken into account – whether the respondent was obligated to take the guidelines into account – whether the respondent took the guidelines into account

ADMINISTRATIVE LAW – JUDICIAL REVIEW – GROUNDS OF REVIEW – UNREASONABLENESS – where the respondent refused a parole application made by the applicant – whether the decision was so unreasonable that it lacked an evident and intelligible justification

Corrective Services Act 2006 (Qld) s 3, s 180, s 188, s 189, s 190, s 193, s 242E, s 320

Judicial Review Act 1991 (Qld) s 4, s 7, s 20, s 23

Butler v Attorney-General for the State of Queensland [2018] QSC 103, cited
Flegg v Crime and Misconduct Commission [2014] QCA 42, cited
Johnston v The Central and Northern Queensland Regional Parole Board [2018] QSC 54, distinguished
Maycock v Queensland Parole Board [2015] 1 Qd R 408, cited
Minister for Human Services and Health v Haddad (1995) 58 FCR 378, cited
Minister for Immigration and Border Protection v SZVFW [2017] FCAFC 33, cited
Minister for Immigration and Citizenship v Li (2013) 249 CLR 332, cited
Queensland Parole Board v Moore [2012] 2 Qd R 294, distinguished
Smoker v Pharmacy Restructuring Authority (1994) 53 FCR 287, cited

WB Rural Pty Ltd v Commissioner of State Revenue [2017] QSC 141

COUNSEL:

The applicant appeared in person

S A McLeod for the respondent

SOLICITORS:

The Crown Solicitor for the respondent

The applicant, Mr Ripi, is presently serving a period of imprisonment. The respondent dismissed his application for parole. Mr Ripi seeks a statutory order of review of that decision.
Background
The applicant was born on 14 December 1981 in Rotorua, New Zealand. He is a Maori man who came to Australia about 14 years ago.
On 16 September 2016 in the District Court at Brisbane, Mr Ripi was sentenced in relation to a number of offences committed against two women in 2014 and 2015. It is unnecessary to record here the details of the offences. It…

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: [2018] QSC 205
Decision Date: 10 September 2018

CaseChat Overview and Summary

In the matter of Ripi v Parole Board Queensland, the applicant, Mr Ripi, challenged the decision of the respondent, the Parole Board Queensland, to dismiss his application for parole. The applicant, who is currently serving a sentence for multiple offences including rape, argued that the respondent had failed to adhere to the principles of natural justice by not providing an opportunity to be heard via videolink and had not taken into account relevant Ministerial guidelines in reaching its decision.

The central legal issues before the court were whether the respondent had failed to provide the applicant with a fair hearing by not allowing him to participate via videolink and whether the respondent was obligated to consider the Ministerial guidelines in making its decision. Additionally, the court needed to determine whether the decision was so unreasonable as to lack an evident and intelligible justification.

The court found that while the applicant had a right to procedural fairness, the respondent was not required to provide a videolink hearing. It was concluded that the respondent had provided the applicant with an opportunity to present his case, which was sufficient. Regarding the Ministerial guidelines, the court held that while the guidelines were relevant considerations, the respondent was not strictly bound to follow them. The court found that the respondent had considered the guidelines and other relevant factors in reaching its decision, which was not unreasonable. Therefore, the court dismissed the application. The parties were to be heard on the question of costs.

Orders

Orders of the court

1. The application is dismissed.

2. The parties will be heard on the question of costs.

Background

Background to the litigation

The applicant, Mr Ripi, is presently serving a period of imprisonment. The respondent dismissed his application for parole. Mr Ripi seeks a statutory order of review of that decision.Background The applicant was born on 14 December 1981 in Rotorua, New Zealand. He is a Maori man who came to Australia about 14 years ago. On 16 September 2016 in the District Court at Brisbane, Mr Ripi was sentenced in relation to a number of offences committed against two women in 2014 and 2015. It is unnecessary to record here the details of the offences. It is sufficient to note that three of the offences were rape. The offending involved considerable violence. The offences were domestic violence offences. The offences committed in 2015 were committed while Mr Ripi was on bail for the offences committed in 2014. Mr Ripi was sentenced to seven years’ imprisonment with a parole eligibility date of 19 August 2017. Because of presentence custody Mr Ripi’s full time release date is 19 April 2022. On 3 May 2017 the Board received an application for parole by Mr Ripi.[1][1] Affidavit of Taylor Mobbs, filed 16 May 2018, CFI 10, exhibits at 1–14. On 10 May 2017 the Board wrote to Mr Ripi advising him that the application would be considered at its next meeting.[2] The Board considered the application at its meeting on 17 May 2017 and resolved to commission a risk assessment report. It advised Mr Ripi of that fact by letter dated 22 May 2017.[3][2] At 15.[3] At 17. From 22 May to 26 June 2017 the Board took various steps investigating the strength of Mr Ripi’s parole application. A risk assessment was conducted by Dr Susan Boyce who prepared a report dated 12 June 2017.[4][4] At 172. It is unnecessary to set out the detail of the various investigations conducted by the Board except to note that Dr Boyce’s report was not favourable to Mr Ripi. Her summary of findings and recommendations included:“20.7Overall, given the contextual / dynamic nature of risk, it is my opinion that at this stage Mr Ripi presents with a need for ongoing intervention aimed at his offending behaviour. In particular it was considered that Mr Ripi requires intervention aimed at his interpersonal violence due to the nature of his offences and the occurrence of these within the context of intimate partner violence. It is my understanding that the ‘Cognitive Self-Change Program’ is offered to offenders with a history of violent offences.20.8Although Mr Ripi has a history of sexual offences as index offences, these offences were considered an extension of his physically violent behaviour towards the victims involved and were thought to stem from his attitudes supportive of violence towards women (i.e. hostility, mistrust and jealousy). While it is possible that components of his sexual violence could be addressed in sexual offender treatment programs, these would be better accommodated for in a program aimed at interpersonal violence in general. It is envisaged that this type of program would address similar themes that develop insight and awareness of individual’s dynamic risk factors (i.e. development of hostility to others, attitudes supportive of violence) and strengthen their protective factors.20.9.It is considered that Mr Ripi would benefit from completing the above program (Cognitive Self-Change) prior to his release under parole conditions. This is highlighted as a concern as he is to be deported to New Zealand and may not be placed into an appropriate program that addresses IPV[5] or general violence within the community setting, thus essentially he would remain untreated for his offending behaviour.”[6][5] Obviously a reference to interpersonal violence.[6] Mobbs’ exhibits at 191–192.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Section 193 concerns the process for the making of a decision by the Parole Board. It is in these terms:“193 Decision of parole board(1) After receiving a prisoner’s application for a parole order, the parole board must decide—(a)to grant the application; or(b)to refuse to grant the application.(2) However, subject to subsection (3), the parole board may defer making a decision until it obtains any additional information it considers necessary to make the decision.(3) The parole board must decide the application within the following period after receiving the application—(a)for a decision deferred under subsection (2)—150 days;(b)otherwise—120 days.(4) The parole board may grant the application even though a parole order for the same period of imprisonment was previously cancelled.(5) If the parole board refuses to grant the application, the board must—(a)give the prisoner written reasons for the refusal; and(b)if the application is for a parole order other than an exceptional circumstances parole order—decide a period of time, of not more than 6 months after the refusal, within which a further application for a parole order (other than an exceptional circumstances parole order) by the prisoner must not be made without the board’s consent.(6) If the parole board refuses to grant the application because of section 193A, the written reasons given under subsection (5)(a) must include a statement that the parole board is not satisfied the prisoner has cooperated as mentioned in section 193A(2).” The Corrective Services Act does not expressly prescribe how natural justice is to be afforded to a prisoner applying for parole. Section 193 does not prescribe the considerations relevant to an application. However, s 242E provides as follows:“242E GuidelinesThe Minister may make guidelines about policies to help the parole board in performing its functions.” Guidelines have been made by the Minister. Section 1 of the Guidelines contains the guiding principles for considering parole. Section 1 provides as follows:“SECTION 1 - GUIDING PRINCIPLES FOR THE QUEENSLAND PAROLE BOARD1.1Section 227(1) of the Corrective Services Act 2006 (the Act) allows the Minister to make guidelines regarding the policy to be followed by the Queensland board in performing its functions. In following these guidelines, care should be taken to ensure that decisions are made with regard to the merits of the particular prisoner’s case.1.2When considering whether a prisoner should be granted a parole order, the highest priority for the Queensland Parole Board (‘the Board’) should always be the safety of the community.1.3The Board should consider whether there is an unacceptable risk to the community if the prisoner is released to parole; and whether the risk to the community would be greater if the prisoner does not spend a period of time on parole.” The guiding principles articulated in s 1 are consistent with the purpose of the Corrective Services Act as stated in s 3(1):“3 Purpose(1)The purpose of corrective services is community safety and crime prevention through the humane containment, supervision and rehabilitation of offenders. …”The grounds of reviewThe natural justice point

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	Ripi v Parole Board Queensland [2018] QSC 205
PARTIES:	ISAAC MATTHEW RIPI (applicant) v PAROLE BOARD QUEENSLAND (respondent)
FILE NO:	No 2971 of 2018
DIVISION:	Trial Division
PROCEEDING:	Application
DELIVERED ON:	10 September 2018
DELIVERED AT:	Brisbane
HEARING DATE:	8 August 2018
JUDGE:	Davis J
ORDER:	1. The application is dismissed. 2. The parties will be heard on the question of costs.
CATCHWORDS:	ADMINISTRATIVE LAW – JUDICIAL REVIEW – GROUNDS OF REVIEW – PROCEDURAL FAIRNESS – HEARING – NATURE OF HEARING – where the respondent refused a parole application made by the applicant – where the applicant alleged a failure to accord natural justice by the respondent not providing an opportunity to be heard by videolink – whether the respondent had failed to accord natural justice ADMINISTRATIVE LAW – JUDICIAL REVIEW – GROUNDS OF REVIEW – RELEVANT CONSIDERATIONS – where the respondent refused a parole application made by the applicant – where the applicant contended that Ministerial guidelines were not taken into account – whether the respondent was obligated to take the guidelines into account – whether the respondent took the guidelines into account ADMINISTRATIVE LAW – JUDICIAL REVIEW – GROUNDS OF REVIEW – UNREASONABLENESS – where the respondent refused a parole application made by the applicant – whether the decision was so unreasonable that it lacked an evident and intelligible justification Corrective Services Act 2006 (Qld) s 3, s 180, s 188, s 189, s 190, s 193, s 242E, s 320 Judicial Review Act 1991 (Qld) s 4, s 7, s 20, s 23 Butler v Attorney-General for the State of Queensland [2018] QSC 103, cited Flegg v Crime and Misconduct Commission [2014] QCA 42, cited Johnston v The Central and Northern Queensland Regional Parole Board [2018] QSC 54, distinguished Maycock v Queensland Parole Board [2015] 1 Qd R 408, cited Minister for Human Services and Health v Haddad (1995) 58 FCR 378, cited Minister for Immigration and Border Protection v SZVFW [2017] FCAFC 33, cited Minister for Immigration and Citizenship v Li (2013) 249 CLR 332, cited Queensland Parole Board v Moore [2012] 2 Qd R 294, distinguished Smoker v Pharmacy Restructuring Authority (1994) 53 FCR 287, cited WB Rural Pty Ltd v Commissioner of State Revenue [2017] QSC 141
COUNSEL:	The applicant appeared in person S A McLeod for the respondent
SOLICITORS:	The Crown Solicitor for the respondent