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Pilley v Parole Board Queensland[2022] QSC 116

Pilley v Parole Board Queensland[2022] QSC 116

SUPREME COURT OF QUEENSLAND

CITATION:

Pilley v Parole Board Queensland [2022] QSC 116

PARTIES:

SHANE MATHEW PILLEY

(applicant)

v

PAROLE BOARD QUEENSLAND

(respondent)

FILE NO/S:

3673/22

DIVISION:

Trial Division

PROCEEDING:

Application for a Statutory Order of Review

ORIGINATING COURT:

Supreme Court, Brisbane

DELIVERED ON:

8 June 2022

DELIVERED AT:

Brisbane

HEARING DATE:

7 June 2022

JUDGE:

Bradley J

ORDER:

The order of the court is that:

  1. The application filed 29 March 2022 is allowed.
  2. The decision of the respondent made on 11 April 2022 not to review or vary the decision made on 26 October 2021 is set aside.
  3. The applicant’s request that the respondent review and vary the decision made on 26 October 2021 is referred to the respondent for further consideration and to be dealt with by the respondent forthwith according to law.
  4. The respondent is to reconsider the applicant’s request that it review and vary the decision made on 26 October 2021 within 14 days of today’s date.
  5. Liberty to apply on short notice.
  6. The respondent is to pay the applicant’s cost of filing the application.
  7. Otherwise, each party is to bear their own costs of the proceeding.

CATCHWORDS:

ADMINISTRATIVE LAW – JUDICIAL REVIEW – GROUNDS OF REVIEW – UNREASONABLENESS – where the Parole Board Queensland made a decision on 11 April 2022 – where the respondent seeks a review of this decision under s 20 of the Judicial Review Act 1991 (Qld) – whether the Board’s decision was so unreasonable, in the circumstances, that no reasonable decision-maker could have reached that decision.

ADMINISTRATIVE LAW – JUDICIAL REVIEW – GROUNDS OF REVIEW – PROCEDURAL FAIRNESS – where the Parole Board Queensland made a decision on 11 April 2022 – where the respondent seeks a review of this decision under s 20 of the Judicial Review Act 1991 (Qld) – where the applicant contends that the decision involved the Board inflexibly applying a policy instead of considering the particular facts and circumstances of his case.

ADMINISTRATIVE LAW – JUDICIAL REVIEW – GROUNDS OF REVIEW – DECISION NOT AUTHORISED – where the Parole Board Queensland made a decision on 11 April 2022 – where the respondent seeks a review of this decision under s 20 of the Judicial Review Act 1991 (Qld) – where the applicant contends that the decision concerned an earlier decision that was not authorised by the enactment under which it was purported to be made.

Corrective Services Act 2006 (Qld), s 3, s 119(1), s 200, s 205(1), s 208(2), s 216, s 218

Judicial Review Act 1991 (Qld), s 20(2)(d), s 20(2)(e), s 23(f), s 23(g)

Coates v Commissioner for Railways (1960) 78 WN NSW 377, cited.

Flegg v Crime and Misconduct Commission [2014] QCA 42, followed.

Minister for Immigration and Citizenship v Li (2013) 249 CLR 332, followed.

Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259, cited.

Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611, followed.

COUNSEL:

Mr Pilley appeared on his own behalf

Ms Bertone appeared for the respondent

SOLICITORS:

The applicant acted on his own behalf

The respondent acted on its own behalf

  1. [1]
    Mr Pilley has applied to the court to review a decision of the Parole Board Queensland made on 11 April 2022.  On that date, the Board decided not to vary an earlier decision of the Board made on 26 October 2021.  The effect of the Board’s earlier decision was to prevent Mr Pilley serving the remaining balance of his two-year sentence in the community under court ordered parole at his home with his partner of eight years.  In turn, this prevented Mr Pilley from undertaking a court-directed behavioural change program during the balance of his court ordered parole period.  The Board’s decision not to vary the earlier decision ensured the earlier decision continued to have these effects.  
  2. [2]
    Mr Pilley appeared on his own behalf at the hearing.  He seeks the review under s 20 of the Judicial Review Act 1991 (Qld) (JRA).  Mr Pilley provided a written outline of argument.  He supplemented it with brief oral submissions.  The element of the Board’s decision that is of concern to Mr Pilley is its decision to deem his home to be unsuitable accommodation.  Some related conditions, which the Board had added to the court ordered parole order, were also queried during the hearing. 
  3. [3]
    The Board was represented by Counsel, whom it directly instructed.
  4. [4]
    This is not an appeal from the Board’s decision.  This court is not concerned in any direct way with the merit of the Board’s decision or with whether the court – if it were tasked with making the decision – would have made a decision different to that made by the Board.  The Board is charged with the responsibility of making its decisions.  This court may make an order for review where there has been a legal error in the decision-making process. 
  5. [5]
    Mr Pilley contends that the decision involved the Board inflexibly applying a policy instead of considering the particular facts and circumstances of his case.  He also contends that the Board failed to afford him natural justice because in inflexibly applying the policy, it did not consider his submissions and so he was not afforded a fair hearing before an impartial decision-maker.  Finally, Mr Pilley contends the Board’s decision was so unreasonable, in the circumstances, that no reasonable decision-maker could have reached that decision. 

The Board and its legislative functions

  1. [6]
    The Board was established by s 216 of the Corrective Services Act 2006 (Qld) (CSA). 
  2. [7]
    The Board’s primary function is to decide applications for parole orders, other than court ordered parole orders.  As Mr Pilley was released from custody under a court ordered parole order, this function of the Board was not engaged.  Court ordered parole orders are issued not by the Board, but by the chief executive of Corrective Services, and must be in accordance with the date fixed by the court for a prisoner’s release on parole.[1]  
  3. [8]
    In its Statement of Reasons, the Board says it made the 11 April 2022 decision (not to vary the earlier 26 October 2021 decision) under s 208(2) of the CSA.  That provision applies if the Board makes an order suspending or cancelling a prisoner’s parole order.  When that occurs, the Board must give the prisoner an information notice on their return to custody.  Subsection 208(2) requires the Board to “consider all properly made submissions and inform the prisoner, by written notice, whether the board has changed its decision and, if so, how.”  These are submissions made about a Board order to suspend or cancel a parole order.  As the uncontroversial narrative below sets out, the Board had to comply with s 208(2) when, after it suspended Mr Pilley’s parole order, he made written submissions showing cause why the suspension should be cancelled.  The Board’s decision to cancel the suspension was made on 26 October 2021.  So, it does not appear the Board made the 11 April 2022 decision under s 208(2).[2]
  4. [9]
    The Board’s decision on 11 April 2022 may perhaps have been made under s 205(1)(a)(ii) of the CSA, in that the Board may have been considering whether to remove a condition imposed under s 200(3) on the basis that it was no longer necessary to ensure Mr Pilley’s good conduct or to stop him committing an offence.  Alternatively, the Board may have been acting under s 218, considering something “necessary or convenient to be done in performing its functions” under the CSA. 
  5. [10]
    It is useful to identify the legislative source of a statutory decisionmaker power to make a decision under review.  However, nothing turns on the present ambiguity, because the Board does not dispute that its decision is one to which the JRA applies. 
  6. [11]
    Among its other functions, the Board may insert a condition to ensure a prisoner’s good conduct or to stop the prisoner committing an offence, if the Board reasonably believes the condition is necessary for that purpose.[3]  In Mr Pilley’s case, the Board submitted that its conduct was authorised by this power. 

Chronology

  1. [12]
    On 22 January 2021, Mr Pilley was released on court ordered parole.  The Magistrates Court at Beenleigh made this decision.  It formed part of the sentence imposed by that court for 16 offences, to each of which Mr Pilley had pleaded guilty.  The court ordered that Mr Pilley was to serve concurrently the separate sentences imposed for each of the offences.  The longest of the sentences imposed was two years imprisonment.  This was for his conviction for possessing dangerous drugs in a quantity exceeding schedule 3 but less than schedule 4, and also his conviction for entering premises and committing an indictable offence.  For two offences of contravention of a domestic violence order, each committed on 20 January 2020, Mr Pilley was sentenced to 12 months imprisonment. 
  2. [13]
    The court declared that this was time he had already served under the sentences imposed that day.  Mr Pilley had spent 170 days in pre-sentence custody, between 5 August 2020 and 21 January 2021,.  The logic of the learned Magistrate’s sentence and orders was that - having spent 170 days in custody awaiting sentence – Mr Pilley should serve the remainder of his sentence (a little over than 18 months) under supervision in the community on parole.     
  3. [14]
    The magistrates court also varied a domestic violence order (DVO), originally made on 10 June 2019, which Mr Pilley had contravened on 20 January 2020.  It appears the variation was to prohibit Mr Pilley:

“from entering, attempting to enter or approaching within 100 metres of where the aggrieved lives, works or frequents;

except as set out in writing by the aggrieved or in compliance with an order of a Court, but any such written consent given by the aggrieved may be withdrawn in writing by the aggrieved at any time.” 

  1. [15]
    The aggrieved for the purposes of the DVO was Mr Pilley’s partner in a domestic relationship of about eight years’ standing. 
  2. [16]
    The court ordered parole order for Mr Pilley had seven conditions, (a) to (g).  Six of these – (a) to (f) – were those required by s 200(1) of the CSA.  Condition (d) was that he “report to and receive visits as directed by the chief executive or delegate”, and condition (f) was that he not commit an offence.  The only non-mandatory condition was (g).  It required that Mr Pilley:

“comply with a condition requiring compliance with a direction by a corrective services officer, including a curfew or monitoring condition in accordance with s 200A [of the CSA]”.[4] 

  1. [17]
    The court ordered parole order was to remain in force until 4 August 2022, which is Mr Pilley’s full time release date.
  2. [18]
    On his release from custody on 22 January 2021, Mr Pilley went to live with his partner.  She was the aggrieved under the DVO.  She gave her written consent for him to live in their shared home. 
  3. [19]
    On 23 July 2021, Mr Pilley’s partner contacted the police from a McDonald’s Restaurant.  She alleged Mr Pilley had shouted at her and acted aggressively towards her.  The police charged Mr Pilley with a contravention of the DVO and issued him with a Notice to Appear in the Magistrates Court.  He was not arrested or taken into custody. 
  4. [20]
    On 30 July 2021, at 11:54 am, a supervising officer and a delegate of Queensland Corrective Services issued an advice to the Board.  The advice recommended that the court ordered parole order be suspended and that an Accommodation Review be conducted.[5]  The advice was forwarded to a member of the Board at 12:03 pm that day. 
  5. [21]
    At 12:50 pm, the member of the Board decided to suspend Mr Pilley’s court ordered parole order indefinitely and to issue a warrant for his arrest.  The Board issued the warrant ordering all police in the State to arrest and convey Mr Pilley to a prison as soon as possible. 
  6. [22]
    On 3 August 2021, this decision was confirmed by the Board.  On 4 August 2021, the Board issued an information notice to inform Mr Pilley that his parole order had been suspended and providing reasons for that decision.  By the information notice, the Board invited Mr Pilley to show cause why the Board should change the decision by written submission to the Board within 21 days after the notice was given. 
  7. [23]
    The information notice advised that “the Board reasonably believes that you pose an unacceptable risk of committing an offence.”  The Board also advised that it reasonably believed Mr Pilley had failed to comply with condition (d).  The Board explained it had reached these beliefs on information it had received that on 23 July 2021, Mr Pilley had allegedly committed further offences, namely contravention of a domestic violence order.  The Board informed Mr Pilley that it also believed he had failed to report as directed on 30 July 2021.  This second part of the decision plays no further role in this application.[6] 
  8. [24]
    On 5 August 2021, Mr Pilley after discussing the matter with his partner, attended the Wynnum Probation and Parole office.  He was taken back into custody.  
  9. [25]
    On 6 August 2021, Mr Pilley’s partner wrote a note, probably addressed to the presiding magistrate at Beenleigh:

“Regarding our behaviour on the 23/07/2021 Shane and myself acknowledge our behaviour on this day was inappropriate, and could have been resolved in a different manner,

Please take into account, Shane and I have resided at [the home address] together for the past six months, in this time Shane has stayed out of trouble and has attended all appointments required,  Also for the first time in Shane’s life he did not return to using any dangerous drugs,

I believe Shane and myself have made progress, and we will continue to progress if given the chance to stay resided together, please take into consideration how well things have been in the last six months”.

  1. [26]
    On 12 August 2021, Mr Pilley made a submission to show cause why the Board should change its decision to suspend his court ordered parole order. 
  2. [27]
    On 2 September 2021, Mr Pilley appeared in the Magistrates Court at Beenleigh in relation to the charge that prompted the Board’s decision to suspend his court ordered parole order.  With his agreement, the court placed Mr Pilley on a probation order for three years.  The order required him to undertake a behavioural change program and continue to be monitored for the use of substances.  The court decided not to make any variation to the existing DVO.  
  3. [28]
    On 6 September 2021, a Corrective Services officer completed an Accommodation Review for the shared home where Mr Pilley proposed to reside if his parole suspension was cancelled.  This officer was the supervising officer responsible for the 30 July 2021 advice to the Board that had triggered the decision to suspend Mr Pilley’s court ordered parole order.  The officer interviewed Mr Pilley’s partner for the purposes of the Accommodation Review.  On 5 October 2021, a supervisor or manager of the corrective services officer endorsed the Accommodation Review.[7] 
  4. [29]
    On 12 October 2021, Mr Pilley made a further submission to the Board.  In it he advised the Board that his partner had been found to have a serious health condition and needed his support and assistance at home. 
  5. [30]
    On 26 October 2021, the Board made a decision.  It had three elements. These were explained in an information notice issued by the Board on 27 October 2021. 
  6. [31]
    The first element, which Mr Pilley challenges, is set out in an affidavit of Tamsin Coetzee sworn on behalf of the Board:

“At the meeting on 26 October 2021, the Board deemed the proposed accommodation … as unsuitable due to the sponsor[8] being the aggrieved in a current Domestic Violence Order.” 

  1. [32]
    Second, the Board cancelled its 3 August 2021 decision to suspend Mr Pilley’s court ordered parole order.  The decision to cancel the suspension is not challenged, but a condition to which the cancellation is said to be subject is challenged, namely that the cancellation is:

“subject to a suitable Accommodation Review (and further subject to bed/travel[9] if required) and not before 02 November 2021 and not on a Friday.” 

  1. [33]
    In the information notice, the Board informed Mr Pilley that the reason the Board had decided not to lift the suspension of his parole immediately was “because it is considered there is an unacceptable risk of reoffending until release plans and travel arrangements are made.”  This was further explained:

“The Board confirms your re-release to court ordered parole is conditional upon you obtaining suitable accommodation.  Once you have obtained suitable accommodation you will be re-released on the court ordered parole order.” 

  1. [34]
    The third element of the Board’s 26 October 2021 decision was a decision to amend the conditions in Mr Pilley’s court ordered parole order, with effect from 26 October 2021, by adding 13 new conditions to the existing seven conditions.  Only two of these were raised in submissions as relevant to this application:

“(h)  You must reside at a residence approved by the Board or an authorised corrective services officer;

(n) You must not in any way, directly or indirectly, contact or    communicate with [the aggrieved partner] without the prior approval of an authorised corrective services officer;”

  1. [35]
    On 9 November 2021, Mr Pilley made a written submission to the Board seeking reconsideration of his home address as suitable accommodation, an amendment to his parole conditions about contacting his partner, and seeking special circumstances parole.   In it he put to the Board that his partner was seriously ill and needed his daily care and support and his assistance to attend hospital and medical appointments.  He enclosed a letter from his partner dated 25 October 2021, about her concern for her health “and the need of the return home of my partner.” The partner attached correspondence from Metro South Health recording that Mr Pilley’s partner had been referred for an appointment with a specialist clinic at the Princess Alexandra Hospital in October 2021 and had been “triaged as category 1”.  He seems to have made a further submission on 11 November 2021.
  2. [36]
    On 1 and 20 December 2021, Mr Pilley made further written submissions.
  3. [37]
    On 23 December 2021, the Board wrote to Mr Pilley responding to his submissions of 9 and 11 November and 1 and 20 December 2021:

“Further to the correspondence issued to you dated 27 October 2021 the Board has advised that your Accommodation Review for [the home address] will not be re-considered and remains unsuitable for the purposes of your parole.  Further, contact with [Mr Pilley’s partner] is able to be approved by Community Corrections upon your release subject to their assessment.”  

  1. [38]
    On 24 December 2021, Mr Pilley made further written submissions.  In these, Mr Pilley sought a formal statement of reasons from the Board for its decision that his home was not suitable accommodation.  He made this request pursuant to s 32(1) of the JRA.
  2. [39]
    On 5 January 2022, Mr Pilley wrote to the Board again requesting a statement of reasons.
  3. [40]
    On 1 February 2022, Mr Pilley’s partner made an independent submission to the Board, supporting Mr Pilley’s submissions that their shared home was suitable accommodation.  The partner’s submissions included:

“With all respect to the Board, I do not understand why the Board finds home with me unsuitable for Shane to stay resided at our home address,

You will find home with me is the only place Shane has stayed out of trouble, he has not returned to crime or any dangerous drug use,

I believe Shane and myself have made progress and will continue to progress if given the chance by the Board to remain resided together at our home address, …

Shane acknowledges I do not tolerate any bad behaviour or drug use, I do not hesitate to call for help if needed,

Shane and I are of late age, as you already know I have health issue, as Shane’s partner I need Shane home to help me to a better health level, Shane is the only support I have, all this extra stress to getting Shane home has made my health more of a struggle and stress that is not needed.’

  1. [41]
    A letter from the partner’s treating general practitioner dated 18 January 2022 was submitted to the Board.  In it, the doctor noted:

“[The partner] has reported she is currently having great difficulty managing her activities of daily living with her current conditions.  This is exacerbated by not having her Partner with her to assist in these activities.

Having her Partner with her would greatly assist [her] in management of her medical conditions.”

  1. [42]
    On 20 February 2022, Mr Pilley sent a letter to the Board giving notice that he would seek judicial review of its decision within 14 days, if not advised that the Board would remedy what Mr Pilley considered to be an improper exercise of power within the meaning of the JRA.
  2. [43]
    On 21 February 2022, the Magistrates Court at Beenleigh suspended the DVO it had made on 22 January 2021.  In its place, the court made a new DVO, by which it ordered that Mr Pilley:

“must be of good behaviour towards the aggrieved and not commit domestic violence against the aggrieved.”

  1. [44]
    Mr Pilley was present in court by video link from custody when this order was made. 
  2. [45]
    On 23 February 2022, Mr Pilley’s partner wrote to the Board, referring to her earlier submission, and enclosing a copy of the new DVO. 
  3. [46]
    On 14 March 2022, Mr Pilley wrote to the Board with a further plea that it reconsider.  
  4. [47]
    On 28 March 2022, the Board wrote to Mr Pilley:

“Further to the correspondence issued to you on 23 December 2021 and 27 October 2021, the Board has advised that your accommodation review for [the home address] will not be re-considered and remains unsuitable for the purposes of your re-release to parole.”

  1. [48]
    On 29 March 2022, Mr Pilley commenced this proceeding. 
  2. [49]
    The first directions hearing was on 12 April 2022.  The Board had made a decision the previous day not to vary its earlier decision of 26 October 2022. This court directed the Board to file and serve Mr Pilley with a statement of reasons by no later than 26 April 2022.  Other directions were made about the filing and service of material, including outlines of submissions. 
  3. [50]
    The Board did not file a statement of reasons by the date directed. 
  4. [51]
    On 10 May 2022, the Board filed an affidavit of Ms Coetzee.  It exhibited a copy of the Statement of Reasons dated 26 April 2022.  Ms Coetzee swore that Mr  Pilley “was provided with a Statement of Reasons dated 26 April 2022.”   
  5. [52]
    On 11 May 2022, the parties filed a request for consent orders varying the dates by which they were to file and serve material and outlines.  The consent order was made, as requested, on 12 May 2022. 
  6. [53]
    On 31 May 2022, Mr Pilley sent his written outline of argument to the Board.  On 3 June 2022, the Board filed its outline of submissions.  The commencement of the hearing was delayed because the Board had not briefed its counsel with a copy of Mr Pilley’s outline.  After the court provided Ms Bertone with a copy of the outline, there was a 20 minute adjournment to allow time for it to be read. 
  7. [54]
    When the hearing resumed,  Mr Pilley made very short oral submissions.  Ms Bertone for the Board then addressed.  In the course of doing so, three particular submissions were made on behalf of the Board.  When I asked to be taken to the material before the court that would be a basis for each submission, Ms Coetzee was unable to do so.  Each of the submissions was then withdrawn.  I deal with these matters later in these reasons, to the extent they are relevant to my final decision.  After about an hour of oral submissions, Ms Coetzee asked for and was given a 10 minute adjournment to take instructions from the Board. 
  8. [55]
    No instructions could be found, Ms Coetzee applied for an adjournment for seven days to “take proper instructions so that I can prepare detailed submissions dealing with the evidence in front of your Honour” and to obtain “clear instructions” about whether certain “confidential information” referred to in some of the documents in evidence “ought to be put to your Honour’s attention.” 
  9. [56]
    Mr Pilley opposed an adjournment.  His full-time release date is about seven and a half weeks away.  I expressed to Ms Coetzee a concern that if the hearing were to be adjourned for seven days and if the court decided to send the matter back to the Board to decide according to law, then by the time the Board made a decision, Mr Pilley may have served his sentence in full.  So that the board’s failure to properly brief its Counsel would have rendered nugatory the whole application. 
  10. [57]
    In response, Ms Coetzee informed the court, expressly on instructions that the Board “would meet very quickly to make its further determination.  So it would not be something that would be delayed in the usual course.” When pressed further, Ms Coetzee informed the court that she was instructed the Board would take “two weeks maximum” to reconsider the matter, if directed to do so. 
  11. [58]
    I expressed the view that an adjournment for a week to get instructions about a judicial review matter, which had been listed for nearly two months would be unusual.  Where the applicant had about seven and a half weeks before he will be released, in any event, it would be extraordinary.  Any prejudices that the Board might suffer would be self imposed.  The prejudice to Mr Pilley would be significant and irremediable. 
  12. [59]
    I refused the application for an adjournment.  Ms Bertone proceeded to make submissions on two of the additional conditions in the parole order, conditions (h) and (n).    

Application of a policy without considering the merits

  1. [60]
    This part of Mr Pilley’s application is pursued under s 20(2)(e) and s 23(f) of the JRA. In his written outline, Mr Pilley identified this part of his application as alleging that the Board’s repeated refusals to approve his home address as suitable shows that the Board has a policy to not approve an address as suitable if a DVO exists between the prisoner and another person at that address. 
  2. [61]
    The Board made this decision with the benefit of the Accommodation Review.  The Board had requested this review on 18 August 2021.  The review recommended to the Board, based on the information assessed, that Mr Pilley’s proposed accommodation was suitable.  So, the Board’s 26 October 2021 decision was contrary to the recommendation in the Accommodation Review.  However, the Board’s decision to cancel the suspension of his court ordered parole was expressly “subject to a suitable Accommodation Review.”  Ultimately, the counsel for the Board was unable to explain or account for this oddity. 
  3. [62]
    Counsel’s first attempt to do so was a submission that the Board on 26 October 2021 had before it “the whole of the evidence” being more than what was before the author of the Accommodation Review.  Counsel identified the 30 July 2021 advice to the Board as material the Board had, which was not before the Accommodation Review author.  When tested, this submission proved to be factually wrong and, appropriately, was withdrawn.  The evidence before the court demonstrated conclusively that the author of the 30 July advice was also the author of the Accommodation Review, completed about a month later.  Also, each matter suggested by the Board as new information was mentioned in the Accommodation Review.  Counsel was unable to identify any material information or evidence that was before the Board and not before the author of the Accommodation Review. 
  4. [63]
    Next. for the Board it was submitted that on 11 April 2022, when the Board decided not to vary the 26 October 2021 decision, circumstances were different to those on 26 October 2021 because Mr Pilley’s partner was at materially greater risk due to the Magistrates Court having varied the DVO on 20 February 2022.[10]  It was submitted that in April 2022 the Board was more concerned because Mr Pilley no longer required his partner’s written consent to be within 100 metres of her home, work or other whereabouts, and she no longer had a right to revoke such consent from time to time. 
  5. [64]
    When asked to identify in the Statement of Reasons where this matter was considered by the Board, Counsel was unable to do so.  In fact, the Statement of Reasons proceeds on the incorrect basis that the DVO continued to include the consent conditions, referring to them as the “current” conditions.  At this point, Counsel for the Board, again appropriately, apologised and withdrew the submission. 
  6. [65]
    In the Statement of Reasons for the 11 April 2022 decision, the President summarised the reasons for not varying the earlier decision in this way:

“The Board, having considered the content of your submissions, including independent submissions, remained of the view that the material before it establishes a risk of domestic violent behaviour and accordingly, on the evidence, the Board inserted a condition which allows you to demonstrate to your Community Corrections officer upon your release of your ability to be of good behaviour and not commit domestic violence against the person named as the aggrieved.”

  1. [66]
    For reasons considered below, it does not appear that the Board has power to insert a condition to allow a person to demonstrate something.
  2. [67]
    Counsel’s written submissions for the Board stated that s 200(3) of the CSA empowers Board to impose a condition that Mr Pilley identify suitable accommodation.  This submission was repeated at the hearing.  It is fundamentally misconceived.  Section 200(3) is in these terms:

“(3)   A parole order granted by the parole board may also contain conditions the board reasonably considers necessary –

  1. (a)
    to ensure the prisoner’s good conduct; or
  1. (b)
    to stop the prisoner committing an offence.”
  1. [68]
    The Board has no power under s 200(3) to require a prisoner to proffer a suitable address.  If a prisoner does not (or is unable to) proffer a suitable address, then the Board may not allow the prisoner to be released on parole. 
  2. [69]
    Counsel sought to justify this submission by reference to s 205(1)(b).  It provides that the Board “may, by written order, amend a parole order”:

“by inserting a condition mentioned in section 200(3) if the board reasonably believes the condition is necessary for a purpose mentioned in the subsection;”

  1. [70]
    These provisions are relevant to Mr Pilley’s challenge to the additional conditions imposed by the Board in its decision (considered below).  They do not assist in deciding whether the Board impermissibly adhered to a policy in deeming Mr Pilley’s home address to be unsuitable, notwithstanding it being found to be suitable by the Accommodation Review. 
  2. [71]
    The Accommodation Review, which the Board did not follow, addressed five criteria.  The first three were: whether there were victim concerns connected to the proposed address that render it unsuitable; whether there were specific intelligence concerns directly relating to an individual living at the proposed address; and whether there was a court order, parole condition or instruction that prevented Mr Pilley from residing at the proposed address.  The review did not answer “Yes” to any of these criteria. 
  3. [72]
    The fourth criterion was whether Mr Pilley’s release to the proposed address would “pose a serious and/or immediate harm to someone else”.  The review answered “Yes” to this criterion.  The final criterion, relating to sexual offences, was not a concern in the review. 
  4. [73]
    As to the fourth criterion, the Accommodation Review set out the following analysis and risk mitigation recommendations:

“Mr Pilley is seeking to return to live with his defacto partner … current aggrieved on a Protection Order.  In late July, Mr Pilley was suspended following an incident between himself and [the partner] after-which Mr Pilley was at large, uncontactable and presenting an undeterminable level of risk to [the partner] due to Agency staff’s inability to locate him, completed drug screening analysis and engage him in dialogue around potential mitigation strategies.

Following his arrest, it was learned that he had not returned to scheduled drug use and his behaviour did not escalate further.  He has since indicated he would be amenable to addressing his behaviours of concern in so far as deficits in generalised problem solving and intimidatory reactions when in conflict or period of heightened stress.

On 2 September 2021, Mr Pilley appeared in Court in relation to the charges which prompted his suspension and a decision was made not to amend the Protection Order conditions but to grant a Probation Order for three years which stipulates he undertake a behaviour change program and continue to be monitored via substance testing.  He agreed to this and, during the Accommodation Review interview with [the partner], she agreed to referral to BDVS for psychoeducation, generalised support and safety planning and ongoing counselling.  This is not something [the partner] has been willing to undertake previously and would be regarded as invaluable in increasing her generalised support base and to develop insight and responsivity options for herself, given her commitment to remaining in relationship with Mr Pilley.

In completing this Review, the writer was guided by the Court’s decision not to restrict contact between the couple and the couple’s agreement that they will undertake intervention.  [The partner] expressed her concern that Mr Pilley has no family and returning to a Boarding House, in her opinion, would expose him to the use of scheduled drugs and antisocial influences thereby raising his risk.  She denies feeling at risk of Mr Pilley when he is not using methylamphetamine and expressed her commitment to her own safety to alert this Agency, police and her women’s advocate if she suspects scheduled drug use or otherwise believes he is escalating.”

  1. [74]
    This explains how the author of the Accommodation Review and the supervisor/manager who endorsed it reached the conclusion that the proposed accommodation was suitable.  The documents recording the Board’s decision contain no comparable explanation. 
  2. [75]
    Despite Mr Pilley’s requests, the Board never provided a statement of reasons for its decision of 26 October 2021.  The Board did issue the Information Notice dated 27 October 2021.  It was required to include “the reason for the decision”.[11]  The following statement appeared in the Information Notice:

“The Board deemed the proposed accommodation … to be UNSUITABLE for the purposes of your parole.  The sponsor is the aggrieved in a current Domestic Violence Order.”

  1. [76]
    The Board’s Statement of Reasons dated 26 April 2022 records this part of its 26 October 2021 decision as the Board having “deemed the proposed accommodation … to be unsuitable for the purposes of parole due to the Domestic Violence Order”.  In her affidavit, Ms Coetzee provided a slightly expanded explanation:

“At the meeting on 26 October 2021, the Board deemed the proposed accommodation … as unsuitable due to the sponsor[12] being the aggrieved in a current Domestic Violence Order.” 

  1. [77]
    The Board’s reasons for a decision should not be overzealously scrutinised in a search for error.[13]  They must be examined because the explanations and reasons given by the Board are the only evidence of its consideration.  The Board’s use of the verb “deemed” is interesting.  When used in statutes, for example, it commonly indicates a “statutory fiction” - deeming something to be a fact, if necessary, contrary to actual fact.[14]  It indicates a “short cut” to a conclusion, removing the need to prove or be satisfied that the conclusion is otherwise correct or justified. 
  2. [78]
    The Board’s position with respect to this topic could fairly be described as inflexible.  On 23 December 2021, the Board wrote that “your Accommodation Review for [the home address] will not be re-considered and remains unsuitable for the purposes of your parole.”  On 28 March 2022, the Board wrote that “the Board has advised that your accommodation review for [the home address] will not be re-considered and remains unsuitable for the purposes of your re-release to parole.”  Perhaps the clearest example is in the Statement of Reasons, signed by the President of the Board:

“The Board noted your submissions in [sic] in relation to the amendment of the Domestic Violence Order.  The Board in your case has considered the evidence and its decision will remain regardless of the nature of the Domestic Violence Order where you are named as the respondent.”

  1. [79]
    I put to Counsel that this paragraph in the Statement of Reasons reads as if the President of the Board was saying, “It doesn’t matter what happens to the domestic violence order; we’re never going to change our decision.” Ms Bertone responded: “I don’t think it can mean anything else.”
  2. [80]
    One way that a statutory decision maker could be confident to say that regardless of any change in the DVO, the previous decision will not be changed, is if the Board has a policy about such matters that it invariably applies.  It is difficult to identify any other basis on which the President could express with such confidence how the Board would decide things in the future. 
  3. [81]
    A proper consideration of the merits of Mr Pilley’s submission that the Board reconsider or vary the decision it had made on 26 October 2012, would have required the Board to consider the circumstances in which Mr Pilley had proposed his home as his accommodation on re-release from custody.  These included: his long-standing connection to that place; the proximity to support services, including his general practitioner and the probation and parole office; his ability to undertake the court-directed behavioural change program on re-release; his partner’s support for the proposal that he live with her on parole; their common submissions that Mr Pilley would be at a reduced risk of re-offending if he resided there; and the care, support and assistance Mr Pilley could provide to his partner in her illness if he were to live at their home. 
  4. [82]
    The Board’s Statement of Reasons and its other communications do not suggest that the Board had regard to these circumstances.  Rather, the Board made clear that it made its decision solely because Mr Pilley’s partner was an aggrieved in a DVO to which he was a respondent.
  5. [83]
    On the evidence, in the Statement of Reasons and the Board’s communications with Mr Pilley, I am satisfied that the Board did not turn its mind to actually considering the merits of his case.  This was because Mr Pilley’s partner lived at his home and was named as the aggrieved in a DVO.  The Board regarded this as a disqualifying fact.  Essentially, the proffering of that address as his proposed accommodation on re-release meant Mr Pilley failed to comply with a pre-requisite that the Board required before they would cancel the suspension of his court ordered parole. The Board exercised its power in accordance with that policy and without having regard to the actual merits of Mr Pilley’s actual submissions.  Indeed, the policy led the Board to reject the advice of Corrective Services that the accommodation was suitable.
  6. [84]
    It follows that the Board’s decision to make the cancellation of the suspension of Mr Pilley’s court ordered parole subject to a further Accommodation Review was the result of the exercise of a discretionary power in accordance with a policy without regard to the merits of Mr Pilley’s case. The Board’s decision on 11 April 2022, not to vary that part of the 26 October 2021 decision, was the result of the continued application of that policy.  This constituted an improper exercise of power under s 20(2)(e) and s 23(f) of the JRA. 

The additional conditions

  1. [85]
    In the Information Notice issued by the Board to explain and give the reason for its decision on 26 October 2021, the Board stated:

“Further at the abovementioned meeting, the [Board] decided to amend the court ordered parole order granted to you.

The Board is informed that:

  • You are named respondent on a current Domestic Violence Order;
  • Your index offending is acts of domestic violence;
  • Substance abuse is linked to your offending; and
  • You have convictions for weapons offences.

Accordingly, the Board has decided to amend your court ordered parole order, by adding the conditions in accordance with S205(1) and S200(3)(a)(b) of the [CSA], on the basis that the Board reasonably believes the amendment will help to ensure your good conduct and/or stop you from committing an offence.”

  1. [86]
    The power of the Board to amend a court ordered parole order to add conditions is limited, relevantly, by the terms of s 205(1)(b).  To exercise that power, the Board must reasonably believe the condition is necessary for one of two purposes set out in s 200(3), namely to ensure Mr Pilley’s good conduct or to stop him committing an offence.  The Board is not authorised to add condition if it believes the additional conditions will “help to ensure” good conduct or “help” to stop the prisoner committing an offence. 
  2. [87]
    In the Statement of Reasons for the 11 April 2022 decision, the President of the Board included the following explanation of the 26 October decision to amend Mr Pilley’s parole conditions:

“The reason for the decision to amend was to ensure your good conduct and/or to stop you from committing an offence pursuant to section 200(3)(a)(b) and 205(1) of the CSA.”

  1. [88]
    This document was not a Statement of Reasons for the 26 October 2021 decision. Although Mr Pilley had requested such a document, the Board had never provided it.  The 27 October 2021 Information Notice was required to include the “reason” for the Board’s decision.  I adopt the reason given proximate in time to the 26 October 2021 decision, rather than the President’s commentary or reflection on the earlier decision, given six months later.
  2. [89]
    This points to an error on the part of the Board in purporting to act beyond its statutory power.  Such an error would be reviewable under s 20(2)(d) of the JRA.  The issue arises with respect to only two of the additional conditions which Mr Pilley challenges.  He does not challenge the other additional conditions.

Condition (h)

  1. [90]
    The condition (h) inserted in Mr Pilley’s parole order is that he “must reside at a residence approved by the Board or an authorised corrective services officer”.  In so far as it requires approval by the Board or by an authorised officer, it seems to be inconsistent with the other element of the Board’s decision, making the cancellation of the suspension subject to a suitable Accommodation Review.  This lack of clarity is apt to cause confusion.
  2. [91]
    However, condition (h) could be read consistently with the provision the Board sought to include in its decision if it applied only to any change of residence from the residence the subject of a (pre-release) suitable Accommodation Review. This would also satisfy Mr Pilley’s objection.  If the Board were to adopt this reading, no issue would arise. 

Condition (n)

  1. [92]
    The second dispute concerns condition (n).  It requires of Mr Pilley that:

“You must not in any way, directly or indirectly, contact or    communicate with [Mr Pilley’s partner] without the prior approval of an authorised corrective services officer”.

  1. [93]
    There is no direct explanation for this condition in the Board’s material.  Like the other additional conditions, the Board’s 11 April 2022 decision not to vary them is not the subject of any explanation in the Statement of Reasons. 
  2. [94]
    The Board is to exercise its statutory power reasonably.[15] The standard of reasonableness is “indicated by the true construction of the statute”.[16]  The CSA provides that the “purpose of corrective services is community safety and crime prevention through the humane containment, supervision and rehabilitation of offenders.”[17]  Under the CSA, “an offender’s entitlements, other than those that are necessarily diminished because of imprisonment or another court sentence, should be safeguarded” because “every member of society has certain basic human entitlements”.[18]  The CSA recognises “the need to respect an offender’s dignity” and, relevantly, the special needs of some offenders taking into account their “cultural background”.[19] The reasonableness of an exercise of the Board’s power may be assessed against that purpose.  Of course, a decision would be unreasonable if it lacked “an evident and intelligible justification”[20] when “all relevant matters were considered”[21] or where no logical basis can be discerned.[22] 
  3. [95]
    Condition (n) is a far-reaching restriction on Mr Pilley’s ordinary rights. It shows no respect for his dignity.  It is contrary to the decisions made by the Magistrates Court in making and in varying the DVO.  By it the Board intrudes into the relationship between Mr Pilley and his partner.  It does so against their individually expressed wishes.  It is accompanied by no logical or other explanation.  This is one of those unusual decisions that can be said to lack a logical justification when all relevant matters before the Board are considered.  In that sense, it constituted an improper exercise of power under s 20(2)(e) and s 23(g) of the JRA.
  4. [96]
    The decision to impose condition (n) was, in any event, beyond power, because it was to “help” to ensure Mr Pilley was of good conduct and did not commit an offence.  If it were within power, I would find it so unreasonable that no reasonable person could exercise the power in that way.  The Board’s decision on 11 April 2022 not to vary the condition similarly lacked logical justification.

Final disposition

  1. [97]
    For these reasons, the application should be allowed, and orders made under s 30(1) of the JRA.  The Board’s decision of 11 April 2022 should be set aside in the respects challenged.  Mr Pilley’s request that the Board review and vary its decision made on 26 October 2021 should be referred to the Board for further consideration and be dealt with by the Board according to law.  The Board should be ordered to make a decision on that matter within 14 days.
  2. [98]
    At the hearing the Board indicated it was content that each party bear its own costs. The only costs likely to have been incurred by Mr Pilley are the filing for his application.  It seems to me the interests of justice require that the Board should pay those costs. 

Footnotes

[1]CSA, s 119(1).

[2]The introductory part of the Statement of Reasons contains another obviously incorrect statement, namely that on 6 January 2022 the Board received correspondence from Mr Pilley dated 24 December 2021 “requesting a Statement of Reasons in relation to the Board’s decision of 11 April 2022”.

[3]s 205(1)(b), s 200(3).

[4]This condition is authorised by s 200(2) of the Act.

[5]Ms Bertone, who appeared for the Board, informed the court that an Accommodation Review is a process of review conducted by Corrective Services officers into a place where a prisoner to be released on parole proposes to live.  It results in a written report to the Board. 

[6]It transpired that the relevant direction was never received by Mr Pilley.  It was sent to his mobile telephone, which he had left at the home he shared with his partner.  He could not go there without her prior written approval.  By the time his partner contacted Mr Pilley and told him of the direction, the time to report had passed.  Mr Pilley called his parole officer to inform her of the situation. 

[7]There has been no subsequent Accommodation Review, so I will refer to this one as the Accommodation Review.

[8]A sponsor is a person offering to house a prisoner while on parole. 

[9]Ms Bertone was unable to explain to the court what “bed/travel” meant, but

[10]In fact, as noted above, the court had suspended the original DVO from 22 January 2021 and made a new DVO.

[11]CSA, s 208(4)(b). 

[12]A sponsor is a person offering to house a prisoner while on parole. 

[13]Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259, 272.

[14]See, e.g., Coates v Commissioner for Railways (1960) 78 WN NSW 377.

[15]Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 (Li), 362 [63] (Hayne, Kiefel and Bell JJ).

[16]Li, 364 [67].

[17]s 3(1).

[18]s 3(2).

[19]s 3(3)(a), (b)(i).

[20]Li, 367 [76].

[21]Flegg v Crime and Misconduct Commission [2014] QCA 42, [3] (McMurdo P).

[22]Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611, 640 [101] (Gaudron and Kirby JJ).

Close

Editorial Notes

  • Published Case Name:

    Pilley v Parole Board Queensland

  • Shortened Case Name:

    Pilley v Parole Board Queensland

  • MNC:

    [2022] QSC 116

  • Court:

    QSC

  • Judge(s):

    Bradley J

  • Date:

    08 Jun 2022

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.

Cases Cited

Case NameFull CitationFrequency
Coates v Commissioner for Railways (1960) 78 WN (NSW) 377
2 citations
Jump To
Cite 1 - (1960) 78 WN (NSW) 377
Cite 2 - (1960) 78 WN (NSW) 377
Flegg v Crime and Misconduct Commission [2014] QCA 42
2 citations
Jump To
Cite 1 - [2014] QCA 42
Cite 2 - [2014] QCA 42
Minister for Immigration and Citizenship v Li (2013) 249 CLR 332
4 citations
Jump To
Cite 1 - (2013) 249 CLR 332
Cite 2 - (2013) 249 CLR 332
Cite 3 - (2013) 249 CLR 332
Cite 4 - (2013) 249 CLR 332
Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259
2 citations
Jump To
Cite 1 - (1996) 185 CLR 259
Cite 2 - (1996) 185 CLR 259
Minister for Immigration v Eshetu (1999) 197 CLR 611
2 citations
Jump To
Cite 1 - (1999) 197 CLR 611
Cite 2 - (1999) 197 CLR 611

Cases Citing

No judgments on Queensland Judgments cite this judgment.

1

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