Sweeney v Queensland Parole Board - [2011] QSC 223

SUPREME COURT OF QUEENSLAND

CITATION:

Sweeney v Queensland Parole Board [2011] QSC 223

PARTIES:

MICHAEL SHAWN SWEENEY
(applicant)
v
QUEENSLAND PAROLE BOARD
(respondent)

FILE NO:

BS 1320 of 2011

DIVISION:

Trial

PROCEEDING:

Civil

DELIVERED ON:

5 August 2011

DELIVERED AT:

Brisbane

HEARING DATE:

21-22 July 2011

JUDGE:

Fryberg J

ORDERS:

The decision of the Queensland Parole Board made on 5 November 2010 to decline the application for parole of Michael Shawn Sweeney dated 11 March 2010 is quashed with effect from 5 November 2010.1.

That application is referred to the Board for further consideration.2.

Direct that in giving the matter further consideration the Board take into account the fact that the applicant has successfully completed the Cognitive Self Change Program.3.

Direct that the Board complete such further consideration on or before 19 August 2011.4.

5.    Liberty to apply on two days notice to the other party.

CATCHWORDS:

Administrative Law – Judicial review – Grounds of review – Applying policy and merits of the case – Application for parole – Acceptability of risk of reoffending

–   –   – Error of law – Parole – Right to parole on eligibility date – New information since sentence

–   –   – Relevant considerations – Application for parole – Eligibility date fixed by sentencing judge to mitigate sentence – New information since sentence – Nonparticipation in programs despite willingness to participate – Impossibility of reclassification

–   –   Powers of courts etc under judicial review legislation – Generally – Dismissal for lack of utility – Fresh application pending

Criminal law – Sentence – Post-custodial orders – Parole – Eligibility and release – Right to release

–   –   –   – Boards’ etc duties – Relevant considerations

Corrective Services Act 2000 (Qld) s 139
Corrective Services Act 2006 (Qld) ss 180, 181, 182, 183, 185, 192, 194, 199, 200, 209, 212, 213, 214,
Judicial Review Act 1991 (Qld) ss 20, 23, 24

Penalties and Sentencing Act 1992 (Qld) s 13

Bugmy v The Queen [1990] HCA 18; (1990) 169 CLR 525, cited
Cameron v The Queen[2002] HCA 6; (2002) 209 CLR 339, cited
Kruck v Queensland Regional Parole Board[2008] QCA 399, considered
Leeth v The Commonwealth [1992] HCA 29; (1992) 174 CLR 455, considered
McGrane v Queensland Parole Board [2010] QSC 209, considered
Minister for Aboriginal Affairs v Peko-Wallsend Ltd[1986] HCA 40; (1986) 162 CLR 24, cited
R v Maxfield [2000] QCA 320; [2002] 1 Qd R 417, cited
R v Mokoena[2009] QCA 36, cited
The Queen v Shrestha[1991] HCA 26; (1991) 173 CLR 48, cited
Williams v Queensland Community Corrections Board[2000] QCA 75; [2001] 1 Qd R 557, cited

COUNSEL:

Unrepresented
S A McLeod for the respondent

SOLICITORS:

Unrepresented
Crown Law for the respondent

FRYBERG J: The applicant is in prison. He has been there for some years, serving sentences for a variety of offences committed at different times. His fulltime release…

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: [2011] QSC 223
Decision Date: 5 August 2011

CaseChat Overview and Summary

Sweeney brought judicial review proceedings in the Supreme Court of Queensland challenging a decision of the Queensland Parole Board to decline his application for parole. Sweeney argued that the Board had failed to properly consider his eligibility for parole, and had made errors in its application of relevant policies and principles. The court was required to determine whether the Board had made an error of law or otherwise acted outside its statutory powers in declining Sweeney's parole application.

The court found that the Board had failed to properly consider Sweeney's eligibility for parole, and had not adequately taken into account relevant information about his willingness to participate in rehabilitation programs. The court held that the Board had erred in its application of policy by not considering new information that had become available since Sweeney's sentencing. The court also found that the Board had not properly considered the fact that Sweeney had successfully completed a cognitive behavioural program, which was a relevant factor in determining his eligibility for parole.

The court quashed the decision of the Parole Board and remitted the matter back to the Board for further consideration. The court directed that the Board take into account the fact that Sweeney had completed the Cognitive Self Change Program, and that it complete its further consideration on or before a specified date. The court also granted liberty to apply for further orders if necessary.

The court's decision highlights the importance of parole boards properly considering all relevant information when deciding on parole applications, and ensuring that their decisions are based on a proper application of relevant policies and principles. The decision also underscores the need for parole boards to be flexible in their approach to parole eligibility, and to take into account any new information that may become available since the offender's sentencing.

Orders

Orders of the court

The decision of the Queensland Parole Board made on 5 November 2010 to decline the application for parole of Michael Shawn Sweeney dated 11 March 2010 is quashed with effect from 5 November 2010.1.

That application is referred to the Board for further consideration.2.

Direct that in giving the matter further consideration the Board take into account the fact that the applicant has successfully completed the Cognitive Self Change Program.3.

Direct that the Board complete such further consideration on or before 19 August 2011.4.

5. Liberty to apply on two days notice to the other party.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	Sweeney v Queensland Parole Board [2011] QSC 223
PARTIES:	MICHAEL SHAWN SWEENEY (applicant) v QUEENSLAND PAROLE BOARD (respondent)
FILE NO:	BS 1320 of 2011
DIVISION:	Trial
PROCEEDING:	Civil
DELIVERED ON:	5 August 2011
DELIVERED AT:	Brisbane
HEARING DATE:	21-22 July 2011
JUDGE:	Fryberg J
ORDERS:	The decision of the Queensland Parole Board made on 5 November 2010 to decline the application for parole of Michael Shawn Sweeney dated 11 March 2010 is quashed with effect from 5 November 2010.1. That application is referred to the Board for further consideration.2. Direct that in giving the matter further consideration the Board take into account the fact that the applicant has successfully completed the Cognitive Self Change Program.3. Direct that the Board complete such further consideration on or before 19 August 2011.4. 5. Liberty to apply on two days notice to the other party.
CATCHWORDS:	Administrative Law – Judicial review – Grounds of review – Applying policy and merits of the case – Application for parole – Acceptability of risk of reoffending – – – Error of law – Parole – Right to parole on eligibility date – New information since sentence – – – Relevant considerations – Application for parole – Eligibility date fixed by sentencing judge to mitigate sentence – New information since sentence – Nonparticipation in programs despite willingness to participate – Impossibility of reclassification – – Powers of courts etc under judicial review legislation – Generally – Dismissal for lack of utility – Fresh application pending Criminal law – Sentence – Post-custodial orders – Parole – Eligibility and release – Right to release – – – – Boards’ etc duties – Relevant considerations Corrective Services Act 2000 (Qld) s 139 Corrective Services Act 2006 (Qld) ss 180, 181, 182, 183, 185, 192, 194, 199, 200, 209, 212, 213, 214, Judicial Review Act 1991 (Qld) ss 20, 23, 24 Penalties and Sentencing Act 1992 (Qld) s 13 Bugmy v The Queen [1990] HCA 18; (1990) 169 CLR 525, cited Cameron v The Queen[2002] HCA 6; (2002) 209 CLR 339, cited Kruck v Queensland Regional Parole Board[2008] QCA 399, considered Leeth v The Commonwealth [1992] HCA 29; (1992) 174 CLR 455, considered McGrane v Queensland Parole Board [2010] QSC 209, considered Minister for Aboriginal Affairs v Peko-Wallsend Ltd[1986] HCA 40; (1986) 162 CLR 24, cited R v Maxfield [2000] QCA 320; [2002] 1 Qd R 417, cited R v Mokoena[2009] QCA 36, cited The Queen v Shrestha[1991] HCA 26; (1991) 173 CLR 48, cited Williams v Queensland Community Corrections Board[2000] QCA 75; [2001] 1 Qd R 557, cited
COUNSEL:	Unrepresented S A McLeod for the respondent
SOLICITORS:	Unrepresented Crown Law for the respondent