Rowlingson v Parole Board Queensland

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SUPREME COURT OF QUEENSLAND

CITATION:

 Rowlingson v Parole Board Queensland [2023] QSC 253

PARTIES:

ANTHONY DAVID ROWLINGSON

(applicant)

v
PAROLE BOARD QUEENSLAND

(respondent)

FILE NO/S:

BS6739 of 2023

DIVISION:

Trial Division

PROCEEDING:

Application for a statutory order of review

ORIGINATING COURT:

Supreme Court

DELIVERED ON:

13 November 2023

DELIVERED AT:

Brisbane

HEARING DATE:

3 October 2023

JUDGE:

Muir J

ORDER:

1.   The application is dismissed. 

I will hear the parties about costs.

CATCHWORDS:

Corrective Services Act 2006 (Qld)
Judicial Review Act 1991 (Qld)
Juvenile Justice Act 1992 (Qld)

Buck v Bavone (1976) 135 CLR 110
Calanca v Parole Board Queensland [2019] QSC 34
Carrascalao v Minister for Immigration and Border Protection (2017) 252 FCR 325; [2017] FCAFC 107
Gough v Southern Queensland Regional Parole Board [2008] QSC 222
McGrane v Queensland State Parole Board [2010] QSC 209
Minister for Aboriginal Affairs v Peko-Wallsend Limited (1986) 162 CLR 24
Minister for Immigration and Border Protection v SZMTA (2019) 264 CLR 421
Minister for Immigration and Ethnic Affairs v Wuu Shan Liang (1996) 185 CLR 259
Minister for Immigration, Local Government and Ethnic Affairs v Gray (1994) 50 FCR 189
Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611
MZAPC v Minister for Immigration and Border Protection (2021) 273 CLR 506
Plaintiff M64/2015 v Minister for Immigration and Border
Protection (2015) 258 CLR 173
Reece v Webber (2011) 192 FCR 254
R v Rowlingson [2008] QCA 395
Singh v Minister for Home Affairs (2019) 267 FCR 200; [2019] FCAFC 3.

COUNSEL:

The applicant appeared on his own behalf

J R Hunter KC with S Robb for the respondent

SOLICITORS:

The applicant appeared on his own behalf

Parole Board of Queensland for the respondent

Introduction

  1. The applicant is serving a life sentence of imprisonment for murdering his 19 year old brother on 15 July 2007.  He was 16 years old at the time of the offence and 17 years old when he entered pleas of guilty and was convicted and sentenced to this and other lesser offences, under the Juvenile Justices Act 1992 (Qld), on 15 September 2008.[1]  The applicant was eligible for parole on 16 July 2022 after serving 15 years of the sentence.[2]  But he remains in custody, having now served over 16 years in detention.[3]

    [1]The offences and penalties are as follows: misconduct with a corpse by interfering [nine months]; stealing [twelve months]; unlawful use of a motor vehicle [three months].  All of these sentences were ordered to be served concurrently.

    [2]The eligibility date was ordered by the sentencing judge White J (as her Honour then was).

    [3]At the time of the sentence on 15 September 2008, the applicant had served 426 days of pre-sentence custody, which was declared to be time served under that sentence.

  2. The applicant applied under various sections of the Judicial Review Act 1991 (Qld) for a review of the respondent’s decision on 6 March 2023, to refuse his application for parole pursuant to s 193 of the Corrective Services…

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Details
Case
[2023] QSC 253
Decision Date

CaseChat Overview and Summary

In the case of Rowlingson v Parole Board Queensland, the applicant, Rowlingson, sought judicial review of the respondent's decision to refuse him parole. The respondent, the Parole Board Queensland, had determined that Rowlingson was not suitable for parole due to his ongoing risk to the community, despite completing relevant psychological treatment and demonstrating good conduct in prison. The primary legal issue before the court was whether the respondent had failed to properly consider the availability of treatment options outside of custody, as recommended by the Queensland Corrective Services (QCS) during sentencing. The court had to determine if this failure constituted an error of law warranting judicial review, or if it was merely a matter of policy or discretion outside the scope of judicial intervention.

The court found that the respondent's failure to inquire about the availability of treatment outside of custody did not amount to an error of law. The court emphasised that the decision to grant parole was inherently discretionary and involved assessing the risk posed by the applicant to the community. While the respondent did not ask QCS why the recommended treatment was not offered, the court held that this omission was not a matter of central relevance and importance to the ultimate decision on parole. The respondent was already aware that the applicant had not received the recommended treatment, and the court found that the decision to refuse parole was based on the applicant's untreated status and the associated risk factors. The court further noted that the respondent's decision appeared reasonable and within the scope of its discretion, thus not warranting judicial review.

In light of the above, the court dismissed the application for judicial review. The court held that the respondent had properly exercised its discretion in refusing parole and that any errors made by the respondent were matters of policy or discretion, not legal error. Consequently, the application was dismissed, and the court indicated that it would hear the parties on the issue of costs.

Orders

Orders of the court

1. The application is dismissed.

I will hear the parties about costs.

Background

Background to the litigation

Ultimately, and as my analysis also reveals, I have determined that the application should be dismissed because the grounds are not made out and the errors in the respondent’s decision (as they have been raised by the applicant) go to its merits and are therefore not matters for judicial review. Relevant facts In order to give context to the grounds of review it is instructive to firstly understand the relevant facts which include the applicant’s offending and the basis of his sentence, together with the background to the respondent’s ultimate decision on 6 March 2023 to refuse parole and the reasons for that. Circumstances of offending and basis of sentence The offending was described by the sentencing judge, White J (as her Honour then was) as both a “cold-blooded” and “premeditated” murder, in which the applicant shot his brother in a “very cowardly way” as follows:[7]“I'll now make some reference to the facts and circumstances that gave rise to the shooting of your brother. You all lived on the property. Your brother, Robert, returned home at around 3 in the afternoon on the Sunday. Your parents had gone to Toowoomba to go to church and then to spend a social day. Your sister, having gone to university in Brisbane, lived and worked in Brisbane.Your brother went up to the shed to do some work on his motor vehicle. You took a gun out of the gun safe, locked up by your father, and you shot him. He dropped to the ground and you went up and you shot him again. You then used a forklift to put his body in the boot of his car. You drove around with him in the boot of the car until you managed to enlist the assistance of a school teacher with whom you had some reasonably close relationship. I will say nothing more about that relationship because that school teacher is to stand trial for being an accessory after the fact to your brother's murder. However, he assisted you to dispose of your brother's body over a floodway on the Clifton-Leyburn Road from a bridge and you subsequently told police where his body could be found.Initially, you took no part in giving your parents any information about your brother when he was discerned to be missing. Eventually there were circumstances which certainly aroused your father's suspicion about the quantity of blood that was around outside the shed, inconsistent with your story that you had shot a cat. The police detained you for questioning and you certainly told them, to use the vernacular, a cock and bull story. You engaged in, according to the experts' reports, a rather enjoyable, for you, game of seeing how far you could go in deceiving the police, but eventually, on the 17th of July, you told them that you had shot Robert, your brother.You gave no indication of any real explanation for this. There is some suggestion that you felt discomforted about some intrusions that he had made into what you regarded as your private life about belonging to an organisation and his too-ready willingness to divulge that outside the family. There was certainly no confrontation with your brother. He and you simply had ceased to be brotherly, if I can use that expression, over the period of time when he had come home to live after working away from home for some little time.”[Emphasis added][7]A copy of the Sentencing Remarks of White J are at pages 28 to 39 of exhibit DGC-6 of the Affidavit of Darielle Glenna Campbell filed 4 July 2023.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

On 4 January 2023, Dr Watt provided a further psychological treatment report regarding the applicant to the Offender Intervention Unit at Queensland Corrective Services.[20] Dr Watt observed that the applicant had completed a Bachelor of General Studies with a major in Psychology and had subsequently commenced a Master of Forensic Mental Health and that these studies were beneficial by allowing the applicant to develop a greater understanding of himself and the emotional and cognitive component of empathy. Relevantly, Dr Watt made the following conclusions and recommendations: [21] [20]Exhibit CBW–6 of the White Affidavit at 49-66. Dr Watt is a forensic psychologist who also provided a report at the sentence. [21]White Affidavit at 63-65.“Conclusions and Recommendations53. [T]his forensic psychology report outlines intervention and assessment in relation to Mr Rowlingson’s risk to the community and current treatment needs. He has been incarcerated for over 15 years following the murder of his brother on the 15 October 2007. Mr Rowlingson was cooperative and responsive to the three x two-hour assessment and intervention sessions. Sessions reviewed risk factors for his offending and provided brief intervention pertaining to such characteristics. He displayed good progress in response to the intervention, and it is considered that gains can be continued upon his release into the community.54. Mr Rowlingson has been compliant with prison requirements during the period of his incarceration with an absence of recorded breaches other than one recorded positive test sample in 2010. He outlined a pattern of amicable interactions with prison officers and fellow inmates. Mr Rowlingson has utilised his imprisonment productively in completing tertiary studies, vocational training, and sustained gainful employment. Regular visits have occurred from his parents who express their intention to continue to support Mr Rowlingson pending his release. Mr Rowlingson presents with an absence of health and mental health concerns. He has appropriate plans for his return to the community.55. Assessment at the time of pre-sentencing identified concerns for narcissistic personality traits, interpersonally manipulative, and callous-unemotional traits. Such characteristics were less prominent for the current evaluation. Though exhibiting some grandiose self-perceptions, Mr Rowlingson presents as appreciative of other people’s abilities. He is less controlling and manipulative compared to 14 years ago. Continued difficulties with emotional empathy is evident, though Mr Rowlingson has formed [the] ability to perceive situations from other people’s perspectives and respond in a supportive manner. Warmth was evident in his reflections for some interpersonal relationships.56. Consistent with the changes in presentation compared to pre-sentence, absence of prison misconduct, and generally amicable interactions with prisoners and staff, Mr Rowlingson was evaluated at lower risk of violent recidivism. Utilising the VRS, Mr Rowlingson was considered in the low to moderate risk category of violent reoffending compared to other adjudicated offenders. Based upon the current evaluation, Mr Rowlingson’s prison conduct, community supports, and progress in response to intervention, it is appraised that Mr Rowlingson is suitable for parole.57. Pending his release into the community, it is recommended that psychological intervention continue to focus upon the following areas:a.Continue to assist Mr Rowlingson in modifying his expression of personality characteristics. He would benefit from continued assistance in recognising people’s perspectives, communicating in a transparent and non-evasive manner, and meeting his needs without manipulating, controlling or threatening others.b.Provide a forum whereby Mr Rowlingson can recognise and articulate his emotional experiences.c.Reinforcing Mr Rowlingson applying a deliberative decision making approach, whereby he considers his own emotional reactions, consequences of decisions, effects on others, and adherence to his own values.d.Assist Mr Rowlingson in implementing respectful and assertive communications with family, friends, and other persons in the community. e.Practical supports in the community, including finding employment, constructive recreational activities, and establishing a pro-social and non-offending peer group.f.Continue to ensure that Mr Rowlingson does not have access to firearms in the community.g.Regular communication with Mr Rowlingson’s parents to review his transition from prison.”[Emphasis added]

Ratio Decidendi

Legal Principle Established

As the following observations of Bowskill J (as the Chief Justice then was) reveal, a proper consideration is important and requires more than just “mere advertence” but rather that the respondent give “proper, genuine and realistic consideration” to the (relevant) matters raised by the applicant:[41]“To take something into account in this context is to give it “proper, genuine and realistic consideration”. Mere advertence to a matter required to be taken into consideration is not sufficient. In considering this ground of review, care must be taken to avoid a “slide into impermissible merit review”. However, as the Full Court of the Federal Court said in Reece v Webber (2011) 192 FCR 254 at [70]:“Whatever reservation must be exercised when considering whether ‘proper, genuine and realistic’ consideration has been given to particular material, the importance of ensuring that proper consideration has been given to particular material is only heightened when it goes to a matter of central relevance and importance to the ultimate conclusions to be reached.”” [Footnotes omitted – bold emphasis added][41]Calanca at [62]. Finally, and with these matters in mind, the following observations of Gibbs J in Buck v Bavone (1976) 135 CLR 110 are apposite to the function of the court on a judicial review where the decision-making power is discretionary: [42]“In all such cases the authority must act in good faith; it cannot act merely arbitrarily or capriciously. Moreover, a person affected will obtain relief from the courts if he can show that the authority has misdirected itself in law or that it has failed to consider matters that it was required to consider or has taken irrelevant matters into account. Even if none of these things can be established, the courts will interfere if the decision reached by the authority appears so unreasonable that no reasonable authority could properly have arrived at it. However, where the matter of which the authority is required to be satisfied is a matter of opinion or policy or taste it may be very difficult to show that it has erred in one of these ways, or that its decision could not reasonably have been reached.”[Emphasis added][42]Buck v Bavone (1976) 135 CLR 110 at 118-119; See also Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611 at [130]-[137] per Gummow J.Analysis Turning then to each of the grounds relied upon by the applicant. Ground one: The respondent inflexibly applied a policy that the treatment must be undertaken in custody. Before addressing the issue of the respondent’s alleged “inflexibly”, it is necessary to turn to the factual premises underpinning this ground, namely that the respondent did not ask QSC why the treatment was not made available to the applicant; and did not consider whether the necessary treatment was available in the community. I accept at the outset that there were no enquiries by the respondent as to why the programs or interventions were not offered to the applicant by QCS. But I am not satisfied that such a consideration or question is a matter of central relevance and importance to the ultimate issue to be reached by the respondent – that is, the level of risk that the applicant may pose to the community. This is not a case where the applicant was refused parole for refusing available treatment – rather he was refused parole because he remained untreated. In the present case, the respondent’s decision to refuse parole was made knowing and accepting that the applicant had not been given access to the recommended treatment as identified as necessary during the sentencing process by QSC.[43] [43]For the reasons discussed in respondent’s submission at [40]-[42], I accept the present case is distinguishable from the facts of Sweeney v Queensland Parole Board [2011] QSC 223 (per Fryberg J) which was relied upon by the applicant.