Rielly v Parole Board Queensland
[2021] QSC 100
To print this judgment please return to the case and click on the PDF icon
next to the
case name. For court use, a full PDF copy is required or preferred.
Exit Distraction Free Reading Mode
Please Note: You are about to print a copy of the onscreen
version of
this judgment. For court use, a full PDF copy of the judgment is required or preferred. Please
return to
the case for PDF printing options.
- Unreported Judgment
- Rielly v Parole Board Queensland[2021] QSC 100
- Add to List
Rielly v Parole Board Queensland[2021] QSC 100
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 |
- [1]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.
- [2]
- [3]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]
Background
- [4]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]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.
- [6]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]
- [7]He was dealt with for some minor offences (false pretences) in 1973 and 1974, and then an offence of aggravated assault (grabbing the breast of his 14 year old step-daughter) in February 1975, for which he was sentenced to four months’ imprisonment, with a requirement to obtain psychiatric treatment whilst serving that term.[11]
- [8]The offence of murder was committed in November 1975. As recorded by Dr Brown:
“[The applicant] had consumed a significant quantity of alcohol prior to the incident. He entered a shop local to his home and took a large quantity of money from the till. During the incident he physically assaulted the 81 year old shopkeeper (Mrs T), who at some point lost consciousness. He tied a cord around her neck resulting in her death from asphyxiation. She was found (most probably in her bedroom) with a number of injuries to her chest including fractured ribs and bruising to her face and body. She also had cuts to her hands. Her undergarments had been removed and her genitals may have been interfered with.”[12]
- [9]It is apparent from the summary of the many previous psychological and psychiatric reports prepared in relation to the applicant that the description of the offending in these terms is consistent. In another part of Dr Brown’s report, where she refers to a psychological report for the Queensland Community Corrections Board from a Dr Salerno dated 23 July 2002, Dr Brown records that “in 1995 [the applicant] provided an explanation to the Corrections Board for removing the undergarments of the victim. He essentially said that he removed the undergarments as the victim was bleeding so he took her clothing off to check where the blood was coming from. He said that he did this prior to strangling her with a piece of cord.”[13] He gave a similar explanation to the psychologist, Sarah Miller, who conducted a risk assessment in March 2019.[14] According to the various reports of psychologists and psychiatrists who have assessed the applicant, summarised in Dr Brown’s report, this explanation, repeated by the applicant on a number of occasions, has not been regarded as convincing, in the context of his history overall. Although, as Dr Brown notes, there is no legal or medical documentation in relation to any of the offences on which to rely.[15]
- [10]In the context of this application, the applicant denies there was any sexual element to the murder offence. Having regard to the brief transcript of the sentencing hearing which is in evidence, it does not appear he was sentenced on that basis. The transcript records the applicant’s counsel saying, in response to a question from the sentencing judge (Dunn J) as to the propriety of the guilty plea in the circumstances:
“He says that he was disturbed in the shop by Mrs T. He struck Mrs T. She was knocked unconscious. He has a very naïve knowledge of medical matters. In the course of conversations with others on other occasions he had been given to believe that if a person were made unconscious through pressure on the neck the person when coming to would have no recollection of what had happened immediately before. In this way he hoped that when Mrs T awoke, as he believed she would, she would have no recollection of having seen him in the shop.”[16]
- [11]But the transcript is very brief and does not set out the facts alleged by the Crown in any detail.
- [12]In terms of diagnosis, Dr Brown expresses the following opinion:
“[The applicant] meets criteria for a diagnosis of antisocial personality disorder as evidenced by his longitudinal history of profound disregard for rules, lack of empathy, irresponsible attitude (particularly with regards to the criminal justice system), low tolerance to frustration (associated in the past with impulsive violence), tendency to externalise blame for his situation onto others, reckless use of substances and inability to profit from punishment or rehabilitation. This disorder has attenuated with age in a custodial controlled environment.
[The applicant] also has a diagnosis of substance use disorder (alcohol) which is currently in enforced remission in a custodial environment.
[The applicant] denies paraphilia sexual preferences. Although his offending behaviour suggests the possibility of sexual deviance, there is not enough information to confidently diagnose paedophilia, sexual sadism disorder or any other paraphilic disorder at this time. Provision of the missing material identified earlier in this report may change my opinion.
[The applicant] may have previously met criteria for a diagnosis of post traumatic stress disorder in relation to the alleged sexual assault that he endured when first incarcerated. In particular he reports intrusive thoughts of the incidents, nightmares of the incident, hypervigilance and social withdrawal. His symptoms are now largely in remission.”[17]
- [13]Dr Brown says risk assessment in the applicant’s case is “significantly complicated” by the lack of information pertaining to the applicant’s offending and psychiatric history. As Dr Brown notes:
“There is almost no contemporaneous information relating to any of the convictions, other charges (including a possible arrest (or charge) for rape), or relating to his time [in] Baillie Henderson Hospital. Medical reports are only available from 1989 onwards. There are references in these reports to earlier assessments which are not available.
In particular there is a lack of information about the murder offence. Whilst [the applicant] has denied a sexual motivation for the offence (in the documentation available to me) and he was not charged with a sexual offence at the time, the circumstances of the offence and the state of the victim when found has suggested to many assessors over the years that a sexual motivation cannot be ruled out. I also note the content and recommendations of the HISOP exit report, which suggest that the murder offence was considered to be a possible sex offence for the purposes of the program and concluded that sexual deviance was present and an outstanding treatment need.”
- [14]Dr Brown says her risk assessment is “very limited” for those reasons. With that qualification in mind, in summary, Dr Brown expresses the following opinion in terms of risk:
“If the murder offence was not sexually motivated, it would be my opinion that Mr Reilly’s risk of violent reoffending is moderate to high and his unmodified risk of sexual reoffending is also moderate to high.
He has demonstrated recidivist violent and sexual offending from a very young age which persisted despite an 11 year period of detention beginning at age 15, followed by a shorter sentence in his twenties, after which the index offence of murder occurred. He has consistently demonstrated personality disturbance, he still lacks detailed insight and self awareness in relation to the motivators for his offending and he minimises the challenges he will face on release, in particular in relation to his current relationship.[18] Despite his engagement in sex offender treatment, his past sexual difficulties, sexual drives and preferences (both past and current) are poorly understood and inadequately addressed.
If the murder offence was sexually motivated, (and in my view it is impossible to rule this out, based on the very limited information provided), then it would be my opinion that the risk of both violent and sexually violent reoffending would be high. In addition to the above there would be much greater possibility of a paraphilic disorder, diagnostic implications with regards to a more severe personality disturbance and a significant number of outstanding treatment needs.”[19]
- [15]Dr Brown goes on to say:
“Violent and sexual offending risk would be significantly increased if [the applicant] was intoxicated. Other risk factors include his antisocial and psychopathic personality structure, relative lack of concern for others (and therefore poor ability to take responsibility for his behaviours) and his only limited response to previous treatment. Offending would most likely be an opportunistic and impulsive act when intoxicated, as per all of his other offending behaviour, however the risk of planned instrumental either acquisitive or sexual offending cannot be discounted.
[The applicant] has showed only partial responsively [sic, responsivity] to sex offender treatment, in particular he remained focussed on the consequences to himself rather than the victims and demonstrated a relative lack of concern for his victims that was also evident during the assessment interview for this report. His plans for managing abstinence from alcohol are limited. Whilst his risk of all forms of reoffending has reduced due to his advancing age, he remains focussed on his sexual performance, such that he intends to seek out psychiatric support to address this, which is incongruent with his statements that his sex drive is low and his current relationship is based on non-sexual intimacy. Therefore advancing age would not appear to be a significant protective factor as the current time.
Sexual offending risk is also complicated by his involvement in a relationship with a woman that he has not seen for 11 years. Whilst he maintains a close telephone relationship with her, his intention to live with her and marry her demonstrates a relative lack of insight with regards to the potentially destabilising effect of this arrangement after such a long period of only limited contact.
Should he become destabilised in the community, [the applicant] arguably only has very limited prosocial coping skills. He does appear to have engaged himself in a number of educational courses relating to meditation and I also note that he maintains a good institutional record, however I remain concerned about his long history of alcohol use both in the community and in prison as well as his very long period of incarceration and resultant institutionalisation. If he were to become destabilised in the community it is unclear how he would respond to this.
Whilst [the applicant] made some progress in group sex offender treatment, this was limited. Whilst I note that previous assessors have considered further psychological input as potentially unhelpful, (in particular with regards to treatment for denial and sexual deviance), I consider that individual therapy remains a useful tool to further explore risk and provide opportunity for his improvement in a range of identified areas. I particularly recommend that therapeutic work should address [the applicant’s] personality vulnerabilities, specifically his history of disrupted and insecure attachment, his low self esteem and the past use of substances as a coping strategy. Therapeutic engagement with an experienced forensic psychologist may allow for exploration of his current relationship (and his expectations of such), his current identified sexual performance problems and for the development of a more robust level of insight in relation to potential future destabilisers. If such a therapeutic relationship could be established in custody, this may further support release in the future and could be continued in the community if thought appropriate to do so at the time.”[20]
- [16]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]
The Parole Board’s decision
- [17]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.”
- [18]The Board also took into account the applicant’s criminal history, which it said “demonstrates a pattern of repeated serious offending” (at [15]).
- [19]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]).
- [20]
“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])
- [21]After referring to the opinion expressed by Dr Brown about the applicant’s outstanding treatment needs,[24] the statement of reasons also records that:
“The Board accepts the opinion of Dr Brown with respect to your outstanding treatment needs and the potential benefits of you further engaging in individual therapy. Such opinion is further justified when regard is had to the findings outlined in your High Intensity Sexual Offending Program Completion report, in particular, that you identify rudimentary risk management strategies and that you would benefit from engaging in individual professional counselling. Further, having regard to your identified history of alcohol abuse, including that you were intoxicated at the time of your index offence of murder, the Board formed the view that your limited plans to manage your abstinence from alcohol contribute to your risk to the community.” (at [23])
- [22]At [24] of the statement of reasons, reference is made to the applicant’s nominated address. It is recorded that the Board formed the view “this address is unsuitable for the purpose of parole as the accommodation provider has advised that they will not accept a person with [the applicant’s] criminal history”. Further:
“The Board formed the view that, even if you were to obtain suitable accommodation, your outstanding treatment needs and level of risk as assessed by Dr Karen Brown are of such a nature that you would remain an unacceptable risk to the community and unsuitable for parole.”
- [23]On the question whether the safety of the community would be better served by the applicant’s release on parole now, as opposed to at a later time:
“… the Board noted that you are serving a term of imprisonment for life and will be subject to supervision for the remainder of your life should you be released to parole. Having regard to your serious history of offending, your level of risk as assessed by Dr Karen Brown, and your outstanding treatment needs, the Board formed the view that the issues identified by the Board should be addressed prior to your release to the community.” (at [25])
- [24]The Board considered submissions made by the applicant, after receiving notification of the Board’s preliminary decision (at [28]-[31]). After noting that “[t]he Board formed the view that your grievances and the issues you raise primarily relate to your proposed accommodation”, the statement of reasons records:
“The Board has deemed your nominated addresses unsuitable and you do remain without a suitable address for release. However, the primary reason for the Board’s preliminary refusal of your application … was the level of risk you pose to the community and your outstanding treatment needs as described by Dr Karen Brown.” (at [32])
- [25]Finally, the statement of reasons records that the Board turned its mind to whether, with stringent parole conditions, including a suitable address to be released to, the applicant’s level of risk could be sufficiently mitigated. However, even after considering the positive factors in the applicant’s favour (including good custodial behaviour, engagement in programs and successful leaves of absence):
“… the Board concluded that, your assessed level of risk when viewed against your serious history of offending, is of such a nature that parole conditions and suitable accommodation are insufficient to mitigate the risk you pose to the community.” (at [34])
Grounds of review
- [26]As the applicant represented himself, without the benefit of legal representation, it was a little difficult to draw from his written documents the grounds on which he seeks to review the decision. Counsel for the Parole Board, Ms Robb, in a careful analysis of the applicant’s written materials, sought to articulate the matters raised by the applicant by reference to possible grounds of review (at [36] of the first respondent’s outline of argument). The applicant also clarified, in response to questions from me in the course of the hearing, the main issues of concern for him.
- [27]Broadly, there are three issues which the applicant raises in seeking review of the Parole Board’s decision:
- (a)First, he is concerned about the extent to which the psychological and psychiatric reports which have been prepared in relation to him suggest there was a sexual element to the murder – which he strenuously denies – and the impact this has had on the Parole Board’s decision. As a potential ground of review, this might be articulated in terms that the making of the Parole Board’s decision was an improper exercise of power (s 20(2)(e) of the Act), in that the Board failed to take a relevant consideration into account (s 23(b) of the Act), namely, that there was no sexual element to the murder offence; or perhaps that the decision involved an error of law (s 20(2)(f)), in so far as it took into account opinions, the factual basis of which is not supported by evidence.[25]
- (b)Second, he is concerned about whether his age and good record in custody has been properly taken into account – again, this might be put in terms of a contention that the making of the decision was an improper exercise of power, in the sense of failing to take a relevant consideration into account.[26] The applicant emphasises that he has completed “50 odd ‘leave of absences’” and has done all the programs he can in prison. He submits that he cannot progress any further from custody and believes that he would be better able to access the psychological support he needs, and progress, once released.[27]
- (c)Third, he is concerned and frustrated about the fact that he has put forward many proposed addresses of places where he would hope to be able to live if granted parole, all of which have been knocked back as unsuitable when assessed. The applicant is concerned about the impact this has had on his parole application, and queried whether the Court had power to make an order requiring the Parole Board to find him a suitable place to live, or whether he could live in the contingency accommodation where, as the applicant puts it, “they put the sex offenders”. I take this to be a reference to what is known as the “precinct” at Wacol, provided as contingency accommodation for prisoners released on supervision orders under the Dangerous Prisoners (Sexual Offenders) Act 2003.[28] Articulating this concern by reference to a ground of review under the Judicial Review Act is difficult. This court has no power to make an order requiring the Parole Board to find the applicant a suitable place to live. That is not a matter within the scope of the Parole Board’s function under s 217 of the Corrective Services Act 2006 which is, primarily, to decide applications for parole orders.
- (a)
- [28]In addition, in the written material filed by the applicant he also contends that the Board failed to take into account a relevant consideration, namely, what the applicant refers to as the “Moore principle”,[29] which he submits is recognised in paragraph 1.3 of the Ministerial Guideline.[30] Paragraphs 1.2 and 1.3 of the Guideline provide as follows:
“1.2 When considering whether a prisoner should be granted a parole order, the highest priority for Parole Board Queensland should always be the safety of the community.
1.3 As noted by Mr Walter Sofronoff QC in the Queensland Parole System Review ‘the only purpose of parole is to reintegrate a prisoner into the community before the end of a prison sentence to decrease the chance that the prisoner will ever reoffend. The only rationale for parole is to keep the community safe from crime’. With due regard to this, Parole Board Queensland 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 under supervision prior to the fulltime completion of their prison sentence.”[31]
It is the underlined part that I understand the applicant to contend has not been taken into account. He emphasises that he became eligible for parole after serving 13 years, and “can do no more [in custody] to achieve his goals”.[32]
- [29]The applicant’s written material does contain some further complaints, which, as already noted, counsel for the Parole Board has attempted to summarise by reference to potential grounds of review. However, it seems to me that what I have set out above captures the central elements of the application.
Determining the application
- [30]In terms of the legislative context in which the decision was made, I adopt (without setting it out in full here) what was said in Calanca v Parole Board Queensland [2019] QSC 34 at [51]-[59]. Relevantly, at [54] of Calanca, it was said that “[t]he Board’s discretionary power to grant or refuse an application for parole is broad and unfettered, in the sense that the Corrective Services Act does not specify the criteria for making a decision under s 193. However, the scope of the Board’s discretionary power to grant or refuse an application for parole is to be exercised having regard to the subject matter, scope and purpose of the Corrective Services Act. The purpose of the Act is ‘community safety and crime prevention through the humane containment, supervision and rehabilitation of offenders’ (s 3(1)).”
- [31]It is also important to keep in mind that this proceeding is not a merits review. Judicial review is confined to the legality of the decision in question. It is concerned with whether the decision was one which the decision-maker was authorised to make, under the relevant enactment.[33]
- [32]In relation to the first issue – whether there was a sexual element to the murder offence – no reviewable error is discernible in the Parole Board’s decision. It was plainly relevant for the Parole Board to take into account the applicant’s criminal history (not only the index offence of murder) and the psychological and psychiatric risk assessments which have been undertaken over the years including, most relevantly, the recent assessment undertaken by Dr Brown.[34] Dr Brown is careful in her report to qualify her opinions because of the absence of important information relevant to the conviction of the murder offence, which may have assisted to clarify the particular circumstances in which the offence was committed. However, I note that part of the factual basis relied upon by Dr Brown (and other practitioners) includes statements made by the applicant himself, in providing an explanation for how the murder victim was found – in particular, that the victim’s underwear had been removed. Moreover, Dr Brown has been careful to articulate her opinions on alternate bases – if there was a sexual element to the offence and if there was not. In the statement of reasons, the Board has made it clear that it has considered this distinction, ultimately accepting the opinion of Dr Brown that, even if the offence of murder was not sexually motivated, the risk the applicant poses to the community is still considered to be unacceptably high. It cannot be concluded that the making of the decision involved an improper exercise of power by failing to take a relevant consideration into account or, for that matter, taking an irrelevant consideration into account. The psychiatric risk assessment of the applicant, including by reference to the possibility that there was a sexual element to the murder offence, is clearly a relevant consideration for the Parole Board – whose primary concern is community safety.
- [33]In addition, it is not possible to conclude, from the material before the Board (annexed to the affidavit of Mr Fall) that there was no evidential basis for the consideration by various practitioners assessing the applicant, including Dr Brown, of whether there was a sexual element to the murder offence – both having regard to the applicant’s prior criminal history, and the circumstances in which the murder victim was found, including as alluded to by the applicant himself. Accordingly, to the extent it may have been raised, the ground of error of law is not established either.
- [34]Turning to the second issue – the applicant’s age and good record in custody, including many successful leaves of absence. It is apparent from the statement of reasons that this was taken into account by the Board. The applicant submits it was not “truely considered”.[35] To take something into account in this context does mean to give it “proper, genuine and realistic consideration”.[36] But I can see no reason to conclude that the Board did not give these positive factors appropriate consideration. The difficulty for the applicant is that it is clear from the statement of reasons that, whilst these matters were taken into account favourably to the applicant for parole, they were overshadowed by the assessment of risk still considered to be posed by the applicant, as articulated most recently by Dr Brown.
- [35]The third issue concerns the large number of accommodation risk assessments which have been undertaken, in relation to addresses proposed by the applicant. As is apparent from the statement of reasons, this factor, although a relevant consideration, was not decisive in the Board’s decision to refuse the application for parole (see again paragraph [24] of the statement of reasons). The reasons why it may be difficult for the applicant to find suitable accommodation are, no doubt, multi-factorial and include his own needs, the needs and concerns of others residing in such accommodation or in the vicinity of it and, significantly, the regrettable lack of availability of suitable (supported) accommodation for a person in the applicant’s circumstances.
- [36]However, what is clear is that the Parole Board is not obliged or required to find accommodation for a person in the applicant’s position and that the “precinct” is not an option, as it is only available for prisoners released under the Dangerous Prisoners (Sexual Offenders) Act.
- [37]Although I acknowledge the frustration articulated by the applicant about the number of addresses he has put forward which have been assessed as unsuitable, I am unable to discern any reviewable error in the making of the Board’s decision in so far as this issue is concerned. It is a relevant consideration, and it was taken into account. In any event, the lack of availability of suitable accommodation is not the basis on which his application for parole was refused.
- [38]As to the matter referred to in paragraph [28] above, as the applicant is serving a life sentence, the consideration of parole as a form of graduated release ahead of a full time release date is less compelling than in the case of a fixed term sentence, because a prisoner serving a life sentence has no prospect of full-time release.[37] In any event, it is clear from the statement of reasons that consideration of the future release risk posed by the applicant was considered, and in fact was the central focus of the decision, by reference to the risk assessment undertaken, in particular, by Dr Brown.
- [39]I am not satisfied that any ground of review has been demonstrated in relation to the Parole Board’s decision made on 11 January 2021. Accordingly, the application is dismissed. No order for costs is sought by the Parole Board.
- [40]It is appropriate to mention two final matters. The first is that, having regard to the opinion and recommendation of Dr Brown as to the potential benefits of the applicant engaging in ongoing individual therapy (see paragraph [15] above) and the Board’s acceptance of that opinion (see paragraph [21] above), the applicant should be given the opportunity to avail himself of the individual therapy recommended by Dr Brown, in order to attempt to address his “outstanding treatment needs”.[38] Although the court cannot make orders about that in the context of this proceeding, it is to be hoped that Corrective Services will make the necessary arrangements for this to occur.
- [41]The second matter is that in a further written submission handed up at the hearing (exhibit 1), the applicant alludes to someone from the Prisoners Legal Service going “to the archives” to “obtain a complete copy of my court case”. It was not clear what, if anything, was found as a result of this. No such material was provided to the Parole Board (having regard to Mr Fall’s affidavit), and none was filed as part of this proceeding either. However, if further material has been, or is, obtained, which assists in terms of identifying the circumstances of the murder offence, this would clearly be of significance for further risk assessments undertaken in the context of future parole application(s) which may be made by the applicant and, of course, to the respondent’s consideration of any such application.
Footnotes
[1]Exhibit TPF-5 to Mr Fall’s affidavit (pp 11-15).
[2]Exhibit TPF-6 to Mr Fall’s affidavit (pp 16-22).
[3]Although the application as filed by the applicant on 4 December 2020 was unclear as to which decision of the Parole Board it related to (there being earlier decisions including a preliminary decision in relation to the present application for parole and a decision in relation to an application for exceptional circumstances parole), it was clarified at the hearing on 23 April 2021 that the applicant seeks judicial review of the Parole Board’s decision made on 11 January 2021. Pragmatically, the Parole Board did not oppose the court proceeding to deal with the application on that basis.
[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.
[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).
[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).
[11]Ibid, p 72; and exhibit TPF-79 (criminal history) (p 440).
[12]Ibid, p 73. See also the earlier decision of Rielly v Queensland Parole Board [2017] QSC 244, in which it is noted that there was no forensic evidence of sexual interference.
[13]Ibid, p 77.
[14]Exhibit TPF-47 to Mr Fall’s affidavit (pp 169-197) at [2.3.4].
[15]Exhibit TPF-22 to Mr Fall’s affidavit (p 99).
[16]Exhibit TPF-1 to Mr Fall’s affidavit (pp 1-2).
[17]Exhibit TPF-22 to Mr Fall’s affidavit (p 100).
[18]This is elsewhere in the report described as a “telephone relationship with S, who was, many years ago married to [the applicant’s] brother, however he has not seen her in person for 11 years” (TPF-22, p 99).
[19]Exhibit TPF-22 to Mr Fall’s affidavit (pp 103-104). Underlining added.
[20]Ibid, pp 104-105.
[21]Ibid, p 105.
[22]Exhibit TPF-6 to Mr Fall’s affidavit (pp 16-24).
[23]Set out at paragraph [16] above (see [20] of the statement of reasons).
[24]Set out at paragraph [17] above (see [22] of the statement of reasons).
[25]See applicant’s submissions filed 11 January 2021 at pp 2 and 4. (The applicant also filed submissions on 5 January 2021, but the two documents appear to be identical).
[26]See applicant’s submissions filed 11 January 2021 at pp 2, 4, 5 and 6.
[27]See exhibit 1 (further submissions of the applicant).
[28]See the applicant’s submissions filed 11 January 2021 at p 6.
[29]Taken from Queensland Parole Board v Moore [2010] QCA 280; [2012] 2 Qd R 294.
[30]That is, the “Ministerial Guidelines to Parole Board Queensland”, a copy of which appears in exhibit TPF-7 to Mr Fall’s affidavit (pp 25-33).
[31]Underlining added.
[32]Applicant’s submissions filed 11 January 2021 at p 3.
[33]See again Calanca v Parole Board Queensland [2019] QSC 34 at [60]-[63].
[34]See paragraph 2.1(a) and (g) of the Ministerial Guidelines to Parole Board Queensland.
[35]Applicant’s submission filed 11 January 2021 at p 2.
[36]Calanca v Parole Board Queensland [2019] QSC 34 at [62], and the authorities there referred to.
[37]Calanca v Queensland Parole Board [2013] QSC 294 at [32] (Margaret Wilson J).
[38]See, in particular, Dr Brown’s report, exhibit TPF-22, p 105.