Graf v Central and North Queensland Regional Parole Board

[2009] QSC 280

SUPREME COURT OF QUEENSLAND

CITATION:

Graf v Central & North Queensland Regional Parole Board [2009] QSC 280

PARTIES:

PETER WERNER GRAF
(applicant)
v
CENTRAL AND NORTH QUEENSLAND REGIONAL PAROLE BOARD
(respondent)

FILE NO/S:

S103 of 2009

DIVISION:

Trial Division

PROCEEDING:

Application

ORIGINATING COURT:

Supreme Court at Cairns

DELIVERED ON:

8 September 2009

DELIVERED AT:

Brisbane

HEARING DATE:

3 September 2009

JUDGE:

Chief Justice

ORDER:

1.   The application made by the amended application filed 16 June 2009 is dismissed. 

2.   The applicant is to pay the respondent’s costs, to be assessed on the standard basis.

CATCHWORDS:

ADMINISTRATIVE LAW – JUDICIAL REVIEW – GROUNDS OF REVIEW – GENERALLY – refusal of parole – judicial review – whether Parole Board unduly influenced by applicant’s denial of guilt etc

Judicial Review Act 1991 (Qld)

COUNSEL:

The applicant appeared on his own behalf
M A Jonsson for the respondent

SOLICITORS:

The applicant appeared on his own behalf
Crown law for the respondent

1. CHIEF JUSTICE: The applicant seeks an order under the Judicial Review Act 1991 (Qld) setting aside the respondent Board’s refusal of his application for parole. He is currently serving a four year term of imprisonment. He was convicted following a trial, on 24 November 2006, of the offence of maintaining an unlawful sexual relationship with a child under 16 years of age in his care, and four counts of the indecent treatment of a child under 16 in his care. On 30 March 2007, the Court of Appeal dismissed his appeal against conviction and refused his application for leave to appeal against sentence.

1. The applicant applied for parole on 4 September 2008.  The respondent considered his application on 3 December 2008, and on the sworn material before me, wrote to the applicant on 19 December 2008, setting out its “initial view” that parole should be refused, and inviting the applicant to make further submissions.  The applicant informed me at the hearing that he did not receive that letter.  He made a fresh application on 2 March 2009.  The respondent says that it invited him to do so because the expiration of the 120 day deemed refusal period was approaching.  It is that application which the respondent refused on 1 April 2009, and that refusal was communicated by letter of 6 April. 

1. In the letter of 6 April, the respondent referred back to the letter of 19 December 2008, to the fact that the applicant had made no further submissions, and expressing, as reasons for refusing parole, “denial of offending, no suitable accommodation, no safety plan, terminated from Getting Started Preparatory Program”.  They were the grounds more comprehensively explained in the letter of 19 December 2008.  In that letter, the respondent had acknowledged matters in the applicant’s favour, which were his acceptable standard of conduct, behaviour, work ethic and breach free status, but considered its responsibility to the community warranted refusing parole.  The respondent had the benefit of a comprehensive “home assessment” by the Cairns District Office of the Probation and Parole Service.

1. The applicant presented before the respondent without family or other personal support, with only short-term accommodation available, and with no secure employment in place.  But the respondent was particularly concerned about what it termed “outstanding criminogenic needs”:  it was not satisfied the applicant appreciated the consequences of his offending for the victims, or that he had identified the factors triggering his offending, or that he had developed “realistic protective strategies” to forestall further offending.  The respondent’s approach thereby focused on community protection.

1. The applicant challenged the respondent’s refusal, by contending that the respondent was unduly influenced, if not controlled, by the applicant’s continuing denial of guilt.  Indeed, the applicant’s present intention, when released, is to petition for a pardon.  He is ineligible for the sex offenders’ program because he denies guilt of the offences of which he was convicted.  There is some authority suggesting that a decision based solely on a parole applicant’s maintaining his innocence is unjustified.  But in this case, the respondent’s decision was more broadly based, on the applicant’s not understanding the consequences of his offending, so that he lacks the basis from which he could adequately equip himself to avoid further offending upon release.  Those are the features which impelled the respondent.  They may be consequences of his denial of guilt, and his not having completed the sex offenders’ program, but they are matters to which the respondent could legitimately, and should, have had regard.  It is not a case where the respondent has said:  parole is refused because you will not admit your guilt.

1. The rest of the applicant’s approach essentially invited the re-examination of the merit of the respondent’s decision, which was the result of an evaluative process covering a range of relevant considerations.  Such re-examination of merits is not permissible on an application for judicial review, which is concerned with the legitimacy, not the merit, of the decision in issue. 

1. The application made by the amended application filed 16 June 2009 is dismissed.  The applicant is to pay the respondent’s costs, to be assessed on the standard basis.