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Morgan v Parole Board Queensland[2022] QSC 280

Reported at (2022) 12 QR 586

Morgan v Parole Board Queensland[2022] QSC 280

Reported at (2022) 12 QR 586

SUPREME COURT OF QUEENSLAND

CITATION:

Morgan v Parole Board Queensland [2022] QSC 280

PARTIES:

EDWARD WALTER MORGAN

v

PAROLE BOARD QUEENSLAND

FILE NO/S:

BS 3292 of 2022

DIVISION:

Trial Division

PROCEEDING:

Application

ORIGINATING COURT:

Supreme Court

DELIVERED ON:

09 December 2022

DELIVERED AT:

Brisbane

HEARING DATE:

28 November 2022

JUDGE:

Ryan J

ORDER:

  1. The application is granted.
  2. I will hear the parties as to the appropriate form of order and as to costs.

CATCHWORDS:

ADMINISTRATIVE LAW – GROUNDS OF REVIEW – JUDICIAL REVIEW – ERROR OF LAW – Where the applicant applied for a review of various decisions of Parole Board Queensland: namely, granting him parole “on conditions”; revoking that decision; and ultimately refusing his application for a parole order – whether a valid decision to grant the applicant’s application for a parole order was ever made – whether, in later refusing his application for a parole order, the Board failed to take relevant considerations into account, including the applicant’s efforts at rehabilitation and his completion of a substance abuse program.

Corrective Services Act 2006 (Qld) ss 108(5), 180, 193, 194, 200, 205

Judicial Review Act 1991 (Qld) ss 20(2)(a)(e), 23(b).

COUNSEL:

M Black for the applicant

Hunter JR KC and Robb SB for the respondent 

SOLICITORS:

Fisher Dore for the applicant

Parole Board Queensland for the respondent

Context

  1. [1]
    For obvious reasons, those making a decision under an enactment should understand the nature of the decision they are called upon to make, and their decision should reflect the decision-making power bestowed upon them by the enactment.
  2. [2]
    An eligible prisoner does not apply to Parole Board Queensland (the “Parole Board” or the “Board”) for “parole” under Subdivision 2 of Division 1 of Part 1 of Chapter 5 of the Corrective Services Act 2006.  An eligible prisoner applies to the Parole Board for a parole order:

180Applying for parole order etc.

  1. A prisoner may apply for a parole order if the prisoner has reached the prisoner’s parole eligibility date in relation to the prisoner’s period of imprisonment.

  1. The application must be made—
  1. in the approved form; and
  1. (b)
    to the parole board.
  1. A parole order for a prisoner may start on or after the prisoner’s parole eligibility date.
  1. [3]
    Division 2 of Part 1 of Chapter 5 of the Act governs the way in which an eligible prisoner’s application for a parole order is to be heard and decided by the Parole Board.  
  2. [4]
    The decisions the Parole Board may make on an application for a parole order are set out in section 193.  The Board may grant the application for a parole order; refuse to grant the application for a parole order; or defer making a decision about the application for a parole order until it has the information it considers necessary to make a decision. 
  3. [5]
    The Board may inform a prisoner applicant of the decision it is thinking about making, to allow the prisoner an opportunity to place relevant information before the Board before its decision is actually made.  But in deciding a prisoner’s application for a parole order, the Board may not, under the Act, decide to grant the prisoner “parole” in the abstract, with a view to settling the details of the prisoner’s parole at some later time.  Nor may it make some sort of conditional decision to grant parole. 

193  Deciding parole applications—general

  1. After receiving a prisoner’s application for a parole order, the parole board must decide—
  1. to grant the application; or
  1. to refuse to grant the application.
  1. (1A)
    If, at the time the application is made by the prisoner, the prisoner is both a no body-no parole prisoner and a restricted prisoner, the application must be decided under—
  1. section 193A; and
  1. if after deciding the application under section 193A, the parole board does not make a no cooperation declaration—section 193AA.
  1. However, subject to subsection (3), the parole board may defer making a decision until it obtains any additional information it considers necessary to make the decision.

Note—  See also section 193C(1).

  1. The parole board must decide the application within the following period after receiving the application—
  1. for a decision deferred under subsection (2)—150 days;
  1. otherwise—120 days.

Note— See also section 193C(2).

  1. (3A)
    Subsection (3) applies subject to chapter 6, part 15B.
  1. The parole board may grant the application even though a parole order for the same period of imprisonment was previously cancelled.
  1. If the parole board refuses to grant the application, the board must—
  1. give the prisoner written reasons for the refusal; and
  1. if the application is for a parole order other than an exceptional circumstances parole order—decide a period of time within which a further application for a parole order (other than an exceptional circumstances parole order) by the prisoner must not be made without the board’s consent.
  1. (5A)
    The period of time decided under subsection (5)(b) must not be more than—
  1. for a prisoner serving a life sentence—3 years; or
  1. otherwise—6 months.
  1. [6]
    By section 108 of the Act, a prisoner must be discharged or released on their “release day”.  “Release day” is defined in section 108(5) as the “day on which a prisoner is to be discharged or released on parole”.  Relevantly, a prisoner is to be released on parole when a parole order is made by the Board for their release, as per section 194 of the Act.  A prisoner cannot be released from custody on the strength of the Board’s “decision” to grant the prisoner “parole”, conditionally or otherwise. 

194  Types of parole orders granted by parole board

  1. The parole board may, by a parole order—
  1. release any prisoner on parole, if the board is satisfied that exceptional circumstances exist in relation to the prisoner; or
  1. release an eligible prisoner on parole.
  1. If the prisoner is to be released on parole as mentioned in subsection (1)(a), the board must note on the order that it is an exceptional circumstances parole order.
  1. The board must give a copy of the parole order to the prisoner.
  1. In this section—

eligible prisoner means a prisoner, who—

  1. may apply for the parole order under section 180(1); and
  1. is eligible for the parole order under section 181, 181A, 182, 182A, 183, 184, 185 or 185B.
  1. [7]
    By section 200 of the Act, a parole order must contain certain conditions and may contain others which the Board reasonably considers necessary:

200  Conditions of parole

  1. A parole order must include conditions requiring the prisoner the subject of the order—
  1. to be under the chief executive’s supervision—
  1. until the end of the prisoner’s period of imprisonment; or
  1. if the prisoner is being detained in an institution for a period fixed by a judge under the Criminal Law Amendment Act 1945, part 3—for the period the prisoner was directed to be detained; and
  1. to carry out the chief executive’s lawful instructions; and
  1. to give a test sample if required to do so by the chief executive under section 41; and
  1. to report, and receive visits, as directed by the chief executive; and
  1. to notify the chief executive within 48 hours of any change in the prisoner’s address or employment during the parole period; and
  1. not to commit an offence.
  1. A parole order may contain a condition requiring the prisoner to comply with a direction given to the prisoner under section 200A.
  1. A parole order granted by the parole board may also contain conditions the board reasonably considers necessary—
  1. to ensure the prisoner’s good conduct; or
  1. to stop the prisoner committing an offence.

Examples—

  • a condition about the prisoner’s place of residence, employment or participation in a particular program
  • a condition imposing a curfew for the prisoner
  • a condition requiring the prisoner to give a test sample
  1. The prisoner must comply with the conditions included in the parole order.
  1. [8]
    The Board may amend, suspend, or cancel its parole orders under section 205 of the Act – but until a parole order is made by the Board, there exists nothing for the Board to amend, suspend or cancel.

The background to the present application

  1. [9]
    This application for a review of various decisions by the Parole Board about the applicant’s “parole” suffered from a lack of understanding of the nature of the decision required under the legislation.
  2. [10]
    The following chronology reveals that the Board told the applicant that he would be released on parole, knowing that suitable accommodation for him in the community had not been identified – which obviously bore on the management of his risk in the community – and at the same time, calling for a re-assessment of his risk.  From the applicant’s point of view, the Board strung him along for months, with reassurances that he would be released, until it changed its mind about his suitability for parole release at all. 
  3. [11]
    On 19 November 2018, the applicant applied to the Board for a parole order.  His application was made by way of his completing a pro-forma document and was clearly an application for a parole order under section 180 of the Act.  The application was supported by a lengthy document.
  4. [12]
    An “outcome” document, in relation to the applicant’s application, was created by the Board on 20 March 2019.  It referred more than once to the applicant’s application for “parole”.  Without wishing to labour the point – that description incorrectly described the applicant’s application.  The outcome document noted that the Board met and decided to defer its decision on the application.  The applicant was informed, by letter dated 20 March 2019, that the Board had “deferred making a decision regarding [his] matter” until it received more information about his proposed accommodation in the community.[1]  This was a valid decision under the Act.
  5. [13]
    The Board met again to consider the applicant’s “application” on three other occasions.  Its focus at each meeting was on suitable community accommodation for the applicant.  Between April and September 2019, correspondence passed between the Board and the applicant about his proposed accommodation in the community, and accommodation risk assessments were undertaken.
  6. [14]
    The third occasion at which the Board met to consider the applicant’s application was on 24 October 2019.  The Board decided, the next day, to defer its decision on the application.  The applicant was informed, by letter dated 28 October 2019, that the Board had decided to “defer making a decision regarding [his] application” to allow him to appear before it, by video link, to discuss his accommodation and release plans.
  7. [15]
    The applicant appeared before the Board, by video link, on 10 December 2019.  It was at this consideration of the applicant’s application that the Board, with respect, lost sight of the decision it was required to make under the legislation. 
  8. [16]
    The outcome document for the Board’s “further consideration” of the applicant’s application on 10 December 2019, leading to its “decision”, notes that the Board was, by then, outside the statutory timeframe for making a decision – that is, 120 days. 
  9. [17]
    The outcome document stated (my emphasis)

The Board decided to grant the prisoner release on parole subject to a suitable accommodation risk assessment (and subject to travel if required) and not before 12 January 2020 and subject to the following:

Standard Conditions:

Additional Conditions:

Reasons

  • PED
  • No outstanding treatment needs
  • Has completed many courses and counselling sessions with Living Well and, more recently, [X] (psychologist)
  • Is willing to engage in further psychological counselling on release
  • Psychiatric Risk Assessment indicates relatively low risk of reoffending and not regarded as an unacceptable risk
  • Dr [Y] [psychiatrist] considered MORGAN to have made considerable progress in custody and notes he does not require specialist intervention
  • Consistently good custodial behaviour
  • Consistently employed
  • Offence likely to remain unexplained (Dr [Y])
  • Expressed well considered release plan during video link

The Board requests:

  • Write to the prisoner: The Board confirms the grant of parole is conditional upon you obtaining suitable accommodation.  The Board is making enquiries as to the most suitable boarding house for your release.  We will also consider the assessment of Mr [X]’s address once it is completed.

FILE NOTE: Once an ARA [Accommodation Risk Assessment] is received, provide to the relevant PSR who will take to the Chair.  The Chair is to confirm suitability and appropriate release date, or if the matter requires further consideration by the Board.

If the accommodation is a boarding house or similar, a parole subject to bed availability letter is to be issued.  Also it is to be confirmed if the following condition is to be added to the parole order: You must successfully complete the (name of facility) Residential Rehabilitation Program …

  1. [18]
    The decision to grant the prisoner release on parole subject to a suitable accommodation risk assessment et cetera was not a decision available to the Board under the Act as an outcome to the applicant’s application. 
  2. [19]
    Mr Morgan was informed of the Board’s purported decision on his application by letter dated 11 December 2019.  He was told inter alia that the Board had “approved [his] release on parole subject to a suitable accommodation risk assessment (and subject to travel) and not before 13 January 2020”.  The letter stated, in bold –

You will be released to parole upon receipt of a suitable accommodation risk assessment and not before 13 January 2020. 

  1. [20]
    The letter went on to spell out the conditions of the applicant’s “release on parole” 
  2. [21]
    The letter concluded with a statement that the granting of parole was “conditional” and referring to it as an “approval” –

The Board confirms the grant of parole is conditional upon you obtaining suitable accommodation.  The Board is making inquiries as to the most suitable boarding house for your release. We will also consider the assessment of [a certain address] once it is completed.

Upon receipt of a suitable accommodation risk assessment a further letter and parole order will be provided to you.

This approval is subject to your continued satisfactory response to your current supervision.

  1. [22]
    From the applicant’s perspective, the Board decided to grant him parole on 10 December 2019.  That was a completely reasonable assumption on his part as a lay person.  The Board told him on that date that he would be released on parole upon receipt of a suitable accommodation risk assessment. 
  2. [23]
    On 20 January 2020, the Board went further, by telling the applicant that certain accommodation had been approved, and that he would be “released to parole upon advice that ‘bed’ space was available” and not before 28 January 2020. 
  3. [24]
    After changing its mind about the suitability of the accommodation in contemplation on 20 January 2020, on 6 March 2020, the Board advised the applicant again that he would be “released to parole upon advice that ‘bed’ space is available and not before 28 January 2020”.[2] 
  4. [25]
    On 10 March 2020, the Board decided “not to vary its previous decision to grant the prisoner release on parole” – but it requested certain information for the purposes of seeking a further psychiatric opinion (an original opinion having been received and considered by the Board which supported the applicant’s release on parole).
  5. [26]
    On 1 April 2020, the Board wrote to the applicant and told him that it was obtaining an updated psychiatric risk assessment report. 
  6. [27]
    The updated report was provided on 10 April 2020.  It supported the applicant’s release.  I note that the psychiatrist reported that the applicant told him (on 8 April 2020, during an interview for the purposes of the updated risk assessment) that the Board had already approved his parole release, but that his actual release date was subject to bed availability at any one of several boarding houses.
  7. [28]
    On 22 April 2020, the Board decided “not to vary its previous decision to grant the prisoner release on parole subject to a suitable accommodation risk assessment” and it told the applicant so, in writing, on 27 May 2020.
  8. [29]
    On 2 July 2020, after receiving information that a bed was available at an address which had previously been deemed suitable, the Board decided that the address was unsuitable.  It wrote to the applicant that day and informed him that certain addresses nominated by him as parole addresses were unsuitable because of their location.  But it confirmed its decision to release him on “parole” subject to certain matters –

The Board decided not to vary its previous decision of 10 December 2019 to grant your release on parole subject to a suitable accommodation risk assessment (and subject to travel if required) and not before 13 January 2020 (sic).

The Board confirms the grant of parole is conditional upon you obtaining suitable accommodation.  Once you have obtained suitable accommodation you will be released on the parole order …

  1. [30]
    In reply to the applicant’s request for information as to why the addresses he provided were unsuitable, the Board wrote to him on 20 July 2020 and explained that there were “proximity issues” with those addresses (that is, they were too close to places where children congregated) and “confirmed” that the grant of parole was conditional upon his finding suitable accommodation.
  2. [31]
    On 8 September 2020, the Board informed the applicant that it had approved certain addresses as suitable during its meeting that day, and told him (in bold) –

You will be released to parole upon receipt of advice that “bed” space is available for you at one of the above suitable … addresses and not before 21 September 2020.

  1. [32]
    It also informed him of the other conditions of his release and said, “Upon receipt of bed availability, a further letter and parole order will be provided to you”.
  2. [33]
    It may be noted that the Board treated its decision to grant the applicant “parole” as something separate from and, in effect, a pre-condition to, the making of a parole order.  This approach was contrary to the structure of the Act.
  3. [34]
    At its meeting on 15 September 2020, at which the applicant appeared by video link, the Board “decided not to vary its previous decision to grant release subject to bed availability …”
  4. [35]
    On 24 September 2020, the Assistant Commissioner, Specialist Operations of Queensland Corrective Services (QCS) delivered a memorandum to the Board in which she explained that QCS had been reviewing the applicant’s matter, in preparation for his release to Board Ordered Parole.  Among other things, in that memorandum, QCS –
    1. challenged the Board’s conclusion (reached in the course of the Board’s deciding to grant the applicant “parole” on 10 December 2019) that the applicant had no outstanding treatment needs;
    2. challenged the Board’s conclusion that the applicant had nominated suitable accommodation;
    3. expressed concerns about parole supervision being sufficient to mitigate the risks posed by the applicant; and
    4. stated that QCS remained of the view that the applicant was not suitable for release on parole.
  5. [36]
    The memorandum was considered by the Board on 25 September 2020.  It decided on that day – and informed the applicant accordingly – that it “would not vary” its earlier decision to grant him release on parole subject to bed availability.
  6. [37]
    After reaching that decision, and informing the applicant of it, on 8 October 2020, the Board sent the memorandum to the psychiatrist who had been conducting risk assessments of the applicant and asked him to re-consider his previous assessments.  On 17 October 2020, the psychiatrist informed the Board, by letter, that his view had not changed.  The applicant was not, in his opinion, an unacceptable risk to the community and there was no reason “to delay his release”. 
  7. [38]
    On 6 November 2020, the Board met and considered inter alia the psychiatrist’s letter of 17 October 2020.  On that date, the Board decided not to vary its earlier decision to “grant release subject to bed availability” but, noting the date, “amended” the “not before” date to 26 October 2020. 
  8. [39]
    The psychiatrist’s report was considered again by the Board on 13 November 2020, on which date it decided again not to vary its decision to “grant release subject to bed availability”.  But it also decided to “amend” the “not before” date, to allow the applicant to complete a course of individual intervention in custody.  It was expected that that course would conclude on 23 February 2021.  The “not before” date was therefore extended to 16 March 2021.  The applicant was informed, by letter, accordingly.  He was told that the individual intervention was important in his preparation for release and would provide him with transitional support in the community – further indications that release would occur, although suitable accommodation was still to be identified.
  9. [40]
    The applicant completed the individual intervention required, and a report of his participation, dated 24 February 2021, was prepared.  It reported that he had engaged well and had an awareness of risk management.  It recommended that he participate in a small number of sessions in the community “to monitor transition and assist in problem-solving difficulties”. 
  10. [41]
    On 13 April 2021, the Board met to consider the report and other material, including accommodation assessments.  It was on that date that the Board decided to “revoke” its decision of 8 September 2020 (that the applicant would be released to one of a number of addresses then deemed suitable) and instead decided to –

… grant the prisoner release on parole subject to a suitable accommodation review (and subject to travel/bed if required) and subject to receipt of further information [from the psychologist who conducted the individual intervention program] and not before 27 April 2021 and not on a Friday and subject to the same conditions of 08 September 2020.

  1. [42]
    The applicant was informed of the Board’s decision on 13 April 2021.  He was told about the nature of the further information sought from the psychologist.  He was told –

Upon receipt of a suitable Accommodation Review … and subject to receipt of further information from [the psychologist], a further letter and parole order will be provided to you.

  1. [43]
    The Board received relevant additional information from the psychologist on 13 April 2021. 
  2. [44]
    The next relevant meeting of the Board was on 20 April 2021.  At that meeting, the Board concluded, on the basis of the material before it, that there was only one suitable address for the applicant in the community.  The applicant was told that the Board decided to grant him release to that address once a bed was available there.
  3. [45]
    On 13 May 2021, the Board was told that a bed would be available at the address on Tuesday 18 May 2021.
  4. [46]
    The Board met on 14 May 2021 and decided that the address was not in fact suitable.  It decided to “revoke” its decision of 21 April 2021 not to vary its decision to release the applicant to that address (et cetera).  It wrote to the applicant and informed him accordingly.  It told the applicant that it was “seeking to prioritise the National Disability Insurance Scheme (NDIS) assessment to assist with future possible accommodation”.  It told the applicant that it had “deferred” making a decision about his matter until it was in receipt of certain information which it had requested. 
  5. [47]
    The Board met again on 21 June 2021.  At that meeting, the Board made “a preliminary decision” not to grant the applicant parole.  In its reasons, the Board noted, in effect, that the risk posed by the applicant to the community was likely to be less if he were not released until he completed certain nominated courses in custody.  The Board observed that the sentencing court, which had nominated 29 November 2015 as the date upon which the applicant’s parole eligibility arose, was not then aware of the applicant’s outstanding criminogenic needs.  The outcome of that meeting was described as “consider not grant parole”.  The Board advised the applicant of its preliminary view by letter dated 7 July 2021.  The applicant made written submissions in response to that letter, dated 11 October 2021. 
  6. [48]
    For the purposes of this application, it is enough to conclude this chronology by noting the following –
    1. On 25 October 2021, the Board decided to refuse the applicant’s application – a decision which it decided not to vary on 1 November 2021. 
    2. Having made that decision, the Board accepted and considered further submissions from the applicant. 
    3. On 29 November 2021, the Board met again and considered a more legible copy of the applicant’s relapse prevention plan.  It decided not to vary its previous decision to refuse a parole order.  It informed the applicant accordingly that same day but invited further submissions from him before a “final decision” was made.
    4. No further decision was made by the Board.
    5. On 18 February 2022, the Board provided its statement of reasons for its decision not to vary the decision to refuse the applicant’s application for a parole order.  On 18 March 2022, the applicant filed this application.

The present application

  1. [49]
    The applicant began his written submissions as set out below – using interchangeably the notion of the Board granting the applicant “a parole order” and “parole”

Mr Edward Morgan (the Applicant) is serving a sentence of life imprisonment.  The Parole Board Queensland (the Board) initially decided to grant him a parole order, but subsequently purported to revoke that decision and to instead refuse his application for parole.  In this application for judicial review, the Applicant contends that:

  1. Parole grant grounds …: the Board made a valid decision to grant the Applicant’s application for parole and had no power to revoke that decision, such that the grant decision remains extant.
  2. Parole refusal grounds …: alternatively, if the Board did validly revoke the parole grant decision, then its subsequent decision to refuse parole is vitiated by reviewable error.
  3. Human rights grounds …: in the further alternative, the Board’s parole refusal decision was incompatible with human rights or involved a failure to properly consider human rights.
  1. [50]
    The respondent Board’s written response to the applicant’s “parole grant grounds” was as follows (footnotes omitted) –
  1. 24.While the Board’s decision on [a] s 180 parole application is adjudicative in nature, affecting rights and liabilities, in a practical sense, until a decision to grant or otherwise is made, it has not been made – a conditional finding is neither final, operative, or determinative of the application.
  1. 25.The applicant submits that the Board made a decision to grant him parole that it was bound not to revisit.  But on the face of the purported decision(s), it required revisiting to be effective.
  1. 26.The consideration the Board gave to the applicant’s application for parole on 10 December 2019 or 8 September 2020 or 13 April 2021 resulted in a decision to grant the application subject to, inter alia, the availability of appropriate accommodation; subject to the satisfaction of a condition precedent.
  1. 27.Without more, the decisions, as they were, were not legally effective decisions for the purposes of ss 193 of 194 of the CSA.  They did not substantively affect the applicant’s rights.  Following each meeting on 10 December 2019, 8 September 2020, and 12 April 2021 the Board was not functus officio.  The Board’s authority and duty to determine the applicant’s application for parole persisted. 
  1. [51]
    With respect to the respondent and appreciating the tendency we all have to lapse into shorthand, the application the Board was required to determine was not an application for parole, but rather an application for a parole order
  2. [52]
    With respect to the applicant’s parole grant grounds, it will be apparent, from what I have stated above, that there could be no valid decision to “grant the Applicant’s application for parole”.  The applicant did not apply for “parole”: he applied for a parole order.  A decision to grant him “parole” – conditional or otherwise – could not achieve his release.
  3. [53]
    The applicant’s argument, that the Act envisaged “separate steps” – namely, the decision to grant and then a separate decision to “release” – is misconceived.  As I have said numerous times, the Act does not contemplate an application for “parole” or a decision about the granting of “parole”.  The Act contemplates an application for a parole order and the granting or not of such an application, and the making, or not, of an appropriate parole order which enables a prisoner’s release from custody into the community under parole supervision. 
  4. [54]
    It is regrettable that the Board expressed itself as it did on 10 December 2019 and thereafter.  Informing and confirming and reassuring the applicant that the Board had decided that he would be released on parole as soon as suitable accommodation was found, or as soon as a bed was available, or as soon as he completed an intervention program, misled him as to the outcome of his application.  I am not suggesting that the applicant was misled deliberately.  But the correct position was that the Board could not make a parole order for the applicant until suitable accommodation was identified.  And until such an order was made, he would remain in custody.
  5. [55]
    The applicant’s parole grant grounds fail.  The Board did not ever make a valid decision under the Act in response to the applicant’s application.  It follows that there is no relevant decision which could “remain extant”.
  6. [56]
    In pursuance of the parole refusal grounds, the applicant challenged the Board’s refusal decision, and submitted it ought to be set aside, because it involved: (a) a lack of procedural fairness; and (b) a failing to take relevant factors into consideration. 
  7. [57]
    The applicant’s procedural fairness argument was based on there having been a valid decision to grant parole, and then a decision to revoke it, which was made without giving the applicant the opportunity to be heard – either about the ultimate decision to revoke, or about other developments along the way to that decision about which he was not informed.  He argued that the decision to revoke ought to be set aside because he had not been accorded procedural fairness.
  8. [58]
    However, because there was no valid decision made under the Act (until the decision to refuse was made), there was no decision for the Board to revoke, and this argument must fail, as the applicant recognised in his written reply submissions and in his oral submissions. 
  9. [59]
    With respect to the decision to refuse the applicant’s application for a parole order, the applicant relied upon sections 20(2)(e) and 23(b) of the Judicial Review Act 1991 and submitted that in reaching its decision the Board had failed to take into account relevant considerations.
  10. [60]
    Both parties acknowledged that because the Act did not expressly identify the factors which the Board was required to take into account in making a decision on an application for a parole order, relevant considerations fell to be identified “by implication from the subject matter, scope and purposes of the Act” (Minister for Aboriginal Affairs v Peko-Wallsend Limited (1986) 162 CLR 24 at 39 – 40).
  11. [61]
    Both parties relied on the decision of the Chief Justice in Calanca v Parole Board Queensland [2019] QSC 34.  At [89] of that decision, her Honour explained that the progress of a prisoner’s rehabilitation whilst in custody is a relevant consideration on an application for a parole order and elaborated on why that was so.
  12. [62]
    The applicant also pointed to the Minister’s Guidelines (see section 242E of the Act) which informed the Board that it should have regard to the length of time spent by the prisoner in a low security environment or residential accommodation, as well as a prisoner’s genuine efforts to undertake available rehabilitation opportunities.
  13. [63]
    The applicant argued that the refusal decision had been vitiated by reviewable error by the Board’s failing to take into consideration or account his rehabilitation efforts and the length of time he had been housed in residential accommodation in custody.
  14. [64]
    In Calanca, her Honour explained at [62] that to take something into account in this context was to give it “proper, genuine and realistic consideration”.  It would not be enough to advert to a matter.  Her Honour also referred to the following from the Full Court of the Federal Court in Reece v Webber (2011) 192 FCR 254 at [70]:

“Whatever reservation must be exercised when considering whether ‘proper genuine and realistic’ consideration has been given to particular material, the importance of ensuring that proper consideration has been given to particular material is only heightened when it goes to a matter of central relevance and importance to the ultimate conclusions to be reached.”

  1. [65]
    With respect to the consideration given to the applicant’s efforts at rehabilitation, the applicant pointed to paragraph 49 in the Board’s statement of reasons which read –

The Board did not accept your … submissions … in relation to your previous completion of a substance abuse program.  The Board … noted that the Breaking Habits program you completed in 2015 was not a substance-abuse focused intervention.

  1. [66]
    The applicant observed that the Board made no mention of the applicant’s completion of substance abuse programs in 2002 and 2003.  Nor, the applicant argued, had it mentioned the psychiatrist’s opinion “about the superiority of programs completed by the Applicant in the community”. 
  2. [67]
    With respect to the length of time the applicant had spent in residential accommodation in the correctional centre, the applicant submitted that the Board went no further than identifying that he was accommodated in the residential section of the correctional centre.  It did not identify the length of time the applicant had spent in the residential section (more than 14 years when the decision was made) or the “potential support this might lend to a consideration of whether the Applicant would successfully comply with the conditions of parole”.  Put another way, the applicant submitted that the Board was not satisfied that a sufficient level of supervision could be provided to the applicant in the community – but it reached that view without considering the applicant’s extended period during which the applicant had been accommodated in the residential section of the prison. 
  3. [68]
    With respect to the failure to take into account the length of time (in years) which the applicant had spent in residential accommodation in custody, I note that the Board took into account the fact of his accommodation in that section; his (good) breach and incident history and his good custodial record.  Failing to refer to the actual length of time the applicant was in residential accommodation did not, in my view, detract from its consideration of that matter in such a way as to vitiate its decision.
  4. [69]
    However, I have reached the view that the Board’s proceeding on the incorrect basis that the applicant had not participated in any substance abuse program required the setting aside of its refusal decision.
  5. [70]
    Without going into the detail of what the applicant told the Board about his participation in substance abuse programs in custody, and when he told the Board about those things, I note that the Board accepted at this hearing that it had failed to have regard to the fact that the applicant completed a program in 2003 entitled “Substance Abuse: Preventing and Managing Relapse”.  It did not accept that the applicant also participated in a substance abuse program in 2002.  On the material before me, it seems that the applicant did not participate in such a program.
  6. [71]
    The Board defended its decision to refuse the applicant’s application for a parole order, notwithstanding its omission to consider at the substance abuse program undertaken by the applicant, as follows –

In the circumstances which include the passage of time since 2003, the paucity of information regarding the program and its effect, the consideration the Board gave to his outstanding treatment needs, and the conclusions drawn from that information, the applicant’s participation in the 2003 is at best of marginal significance and can scarcely be said to have the necessary character of “central relevance or importance” to the ultimate decision.

  1. [72]
    In reply, the applicant submitted that his participation in that program was clearly relevant to his rehabilitation whilst in custody and the issue of his rehabilitation was of central relevance and importance to the Board’s decision.  Further, it could not be said that proper consideration of this aspect of the applicant’s case could not have made a difference.  The Board expressly identified outstanding treatment needs as a factor which led it to the conclusion that parole should be refused.  There was at least a realistic possibility that a different decision could have been made if this factor were taken into account.  The applicant referred to and invited me to compare Nathanson v Minister for Home Affairs [2022] HCA 26 at [32]-[33]. 
  2. [73]
    In Nathanson, the High Court considered the evidential burden imposed upon an applicant for judicial review to show the realistic possibility of a different outcome had (in that case) the applicant been granted a fair opportunity to be heard.  The High Court was divided on the correct approach to the onus of establishing the realistic possibility of a different outcome.  For the purposes of this application, it is enough to say that I have proceeded on the basis that the applicant bears the onus of satisfying me, on the balance of probabilities, of the historical facts necessary to enable me to be satisfied of the realistic possibility that a different decision could have been made had the applicant’s participation in the 2003 substance abuse program been taken into account as a matter of reasonable conjecture. 
  3. [74]
    I note that the information before the Board included a report to the Parole Board based on the Integrated Offender Management System records.  Those records suggest that the applicant only completed one substance abuse program in 2003 and I have proceeded on that basis.  The report referred to a rehabilitation plan formulated for the applicant in November 2014.  That plan did not expressly identify the applicant as having any rehabilitative needs in the area of substance abuse although it identified the need to address “offending specific behaviour”.  I assume that was a reference to the likely sexual element of his offending, on the basis that the interventions recommended for the applicant concerned sexual offending – not substance abuse. 
  4. [75]
    Among the matters which the psychiatrist who prepared the risk assessments of the applicant at the Board’s request was asked to consider were the applicant’s outstanding “risks/needs”.  The psychiatrist was also asked to recommend risk mitigation strategies to reduce the applicant’s risk of recidivism in the community.  The risk assessment report of 27 January 2019 stated that the applicant did not “presently require any specialist psychiatric or substance abuse interventions in the community” although it recommended psychological support for the applicant during his reintegration. 
  5. [76]
    In the psychiatrist’s third risk assessment of the applicant, prepared in response to the memorandum from the Assistant Commissioner referred to above (dated 24 September 2020), he said –

As I outlined in my original report, I would again like to stress the fact that this was a single isolated offence in an individual who prior to that had no criminal record, no demonstrable history of sexual deviance, and no signs of any severe personality pathology or psychopathy.  From his background profile, I would not have been possible to predict or place Mr Morgan in a higher risk group for committing such a crime.  He was married and had normal heterosexual relationships with adult females, he had a reasonable stable upbringing and employment history, and there were no signs of any significant anti-social or criminal tendencies.  However, in the lead up to his index offending, following the separation from his wife and the major increase in his alcohol and substance consumption, Mr Morgan started losing direction, his ability to hold a (sic) stable employment deteriorated and he descended into depression and the (sic) self-destructive tendencies.

  1. [77]
    The psychiatrist went on –

For about twenty years in custody, Mr Morgan has exhibited exemplary behaviour, not using any illicit substances or causing any management problems … Mr Morgan has been consistently displaying guilt and remorse for his offending, which is consistent with his conduct following the index offence when he handed himself in to police and admitted to his crime the following day, which I think would be inconsistent with somebody with a profoundly deviant or psychopathic personality.

One of the key factors that had been identified and clearly played a critical part in the incident of the index offending was intoxication and this is something that can be monitored and managed through parole supervision and professional psychological assistance.  I concur that Mr Morgan remains vulnerable to a relapse into alcohol and substance use and that he requires ongoing psychological support in the community.  I do not regard this risk of relapse as particularly high, as there are no clinical indicators that would generate that degree of clinical concern.

It is very positive in my view that Mr Morgan is open to one on one psychological interventions, although I believe that such interventions could be safely administered in the community following his parole release. I also believe that in the community Mr Morgan’s engagement with such interventions might be superior and more reliable.  The effectiveness of such interventions in the coercive custodial environment (which would also delay his parole release) and in the circumstances where he does not accept a sexual motive for his index offence or has reliable memories of the incident, is in my opinion dubious.  By now, the content of his memories related to the incident of his index offending is likely to be heavily defended and effectively inaccessible.  As a psychological defence mechanism, Mr Morgan has likely erected strong mental barriers any in depth exploration of his index offending and this would interfere with any attempts at facilitating memory retrieval, or with any interventions aimed at investigating the underlying motive. Such difficulties notwithstanding, and even in the absence of a (sic) significant progress in those areas, the psychological interventions in the community will be valuable in terms of stress management, re-integration support and general relapse prevention. 

  1. [78]
    The Board’s reasons demonstrate (as the chronology above also reveals) that post the decision in December 2019 to grant the applicant “parole”, the Board’s primary focus was upon suitable accommodation for the applicant.  Concerns about the sexual motivation for the offending were raised around April 2020 and again in September 2020, and updated risk assessments were requested and delivered as above.  And, as above, his release on parole was supported in each.  A risk of relapse into substance abuse was not then an issue in the Board’s decision making.
  2. [79]
    The Board’s focus remained on suitable accommodation (including ensuring that it was not located close to areas in which children were likely to congregate) from May 2020 until October 2020.  In November 2020, the Board decided that the applicant would need to engage in individual psychological treatment whilst in custody before his release on parole. 
  3. [80]
    Suitable accommodation was still the dominant issue for the Board into 2021.  The decision to revoke the decision to grant “parole” was made, in May 2021, because of concerns about the lack of support available to the applicant in the accommodation previously considered by the Board to be suitable.
  4. [81]
    In ultimately refusing the application for a parole order, the Board referred to: (a) the role of alcohol intoxication in the index offending; (b) the psychiatrist’s opinion that the applicant remained vulnerable to relapse into alcohol abuse in the community; and (c) other material, and concluded that the applicant had outstanding treatment needs in relation to substance abuse, sexual offending and violence. 
  5. [82]
    The Board went on to state that the circumstances of alcohol consumption presented a significant risk in terms of future offending (elaborating on the reasons for that conclusion).
  6. [83]
    The Board continued:
  1. 20Within your own submissions attached to your parole application, you confirm that you have a history of alcoholism and prior difficulties with substance addiction.  Although significant time has passed since the index offence, the Board is of the view that upon release it is likely that you will be faced with opportunities for alcohol consumption.  Similarly, [the psychiatrist] … opined that you remain vulnerable to a relapse into alcohol or substance addiction.
  1. 21Therefore the Board is of the view that participation in a substance abuse program would solidify your years of abstinence and provide you with more strategies to resist a return to substances if released on parole.
  1. [84]
    The Board went on to discuss the applicant’s failure to participate in programs designed to address the sexual element of the offending and the applicant’s denial of that element.  It explained the importance of the need for the applicant to undertake, in custody, a comprehensive violence or sexual offending program in custody, which would lead into a more robust Relapse Prevention Plan. 
  2. [85]
    The Board also expressed its concerns around suitable accommodation and what it considered to be evidence of the applicant’s plans to be untruthful upon his release (to allow him to meet up with another released prisoner).
  3. [86]
    In the final paragraphs of its reasons, the Board referred to the applicant’s submissions about his participation in substance abuse programs in the same context as its reference to his planning to be deceitful upon release.  It said (my emphasis) –

49 The Board did not accept your submissions in relation to the phone call between yourself and [the former prisoner] … nor in relation to our previous completion of a substance abuse program.  The Board still viewed the phone call as intent to deceive Community Corrections and noted that the Breaking Habits program you completed in 2015 was not a substance-abuse focused intervention.

  1. [87]
    It continued –

50 The Board weighed the seriousness of your offending and the critical role that substance abuse played in your offending in determining that you present an unacceptable risk to the community without the completion of a suitable substance abuse intervention program.  This was noted particularly in the context of your consequential inability to recall key aspects of the offence. 

52 The Board recommended completion of intervention programs, namely the Low Intensity Substance Intervention (‘LISI’), the Moderate Intensity Substance Intervention (‘MISI’) and the Substance Abuse Maintenance Intervention (‘SAMI’) as likely being able to provide you with insight into your offending pathway and triggers that could lead to re-offending …

  1. [88]
    It seems to me that the Board’s failure to take into account the applicant’s participation in a substance abuse program affected its evaluation of his potential for deceit as well as its evaluation of his treatment needs.
  2. [89]
    It is plain from the chronology that the Board considered the applicant suitable for parole for a long time – and that if suitable accommodation had been found, he would have been released.
  3. [90]
    It is also plain from the chronology that the Board has not been of one mind when it comes to the applicant’s outstanding treatment needs.  (Nor, for that matter, has it been of one mind when it comes to what might be, or might not be, suitable accommodation.)
  4. [91]
    Based on that history – it seems to me that it cannot be said that the Board’s refusal decision, about the applicant’s application for a parole order, could not have been different had it taken proper, genuine, and realistic consideration of his participation in a substance abuse program in 2003. 
  5. [92]
    As at 10 December 2019, the Board was of the view that the applicant had no outstanding treatment needs.  It noted that he had completed “many courses and counselling sessions with Living Well” and with a psychologist.  Also at that time, the Board appeared to be ambivalent about the need for the applicant to complete a residential rehabilitation program in the community.  That was something which was to be “confirmed”.
  6. [93]
    I acknowledge that the applicant completed the 2003 program almost two decades ago – but on the material before me, a refresher or update or maintenance program was not recommended for him even though his intervention needs were assessed in 2014. 
  7. [94]
    The Board noted the link between substance use and the index offending.  In my view, paragraph 50 of the reasons demonstrates that the Board’s incorrect understanding that the applicant had not completed a substance abuse intervention program was a matter of central relevance and importance to its decision.
  8. [95]
    It follows that I am of the view that the Board failed to take into account a relevant consideration in making its decision to refuse the applicant’s application for a parole order.  The Board’s decision must be set aside, and it must be remade according to law.
  9. [96]
    Having reached that conclusion, I do not need to address the applicant’s human rights grounds although I note the Board’s concession that it failed to give express consideration to the applicant’s specific human rights which were protected by the Human Rights Act 2019 (Qld).  I note also that the right to freedom of movement, the right to peaceful assembly and the right to liberty are not rights held by a prisoner, contrary to the applicant’s submissions.
  10. [97]
    I will hear the parties as to the appropriate form of order and as to costs.

Footnotes

[1]  I note that the outcome document recorded the Board’s intention to also contact the “Offender Intervention Unit” to ask whether the applicant had participated in any one-on-one counselling sessions, apart from sessions with a Ms Johnstone.  The applicant was not informed that the Board was looking into that issue as well.

[2]  Obviously, a date which had been passed.

Close

Editorial Notes

  • Published Case Name:

    Morgan v Parole Board Queensland

  • Shortened Case Name:

    Morgan v Parole Board Queensland

  • Reported Citation:

    (2022) 12 QR 586

  • MNC:

    [2022] QSC 280

  • Court:

    QSC

  • Judge(s):

    Ryan J

  • Date:

    09 Dec 2022

  • Selected for Reporting:

    Editor's Note

Appeal Status

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

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