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Marshall v Parole Board Queensland[2022] QSC 90

Marshall v Parole Board Queensland[2022] QSC 90

SUPREME COURT OF QUEENSLAND

CITATION:

Marshall v Parole Board Queensland [2022] QSC 90

PARTIES:

TODD MARSHALL

(Applicant)

v

PAROLE BOARD QUEENSLAND

(Respondent)

FILE NO:

BS 1632 of 2022

DIVISION:

Trial Division

PROCEEDING:

Application

DELIVERED ON:

20 May 2022

DELIVERED AT:

Brisbane

HEARING DATE:

27 April 2022

JUDGE:

Bowskill CJ

ORDERS:

Pursuant to s 30 of the Judicial Review Act 1991 (Qld), the Court orders that:

1.   The decision of the Parole Board made on 10 January 2022 is set aside; and

2.   The applicant’s application for parole is referred to the Parole Board for further consideration, subject to the following directions.

The Court directs that:

3.   The applicant provide any further material that he wishes to rely on in support of his application for parole to the Parole Board within seven days, or such further period as directed by the Court; and

4.  The Parole Board consider and make a decision in relation to the applicant’s application for parole within 14 days, or such further period as directed by the Court.

I will hear the parties as to costs.

CATCHWORDS:

ADMINISTRATIVE LAW – JUDICIAL REVIEW – GROUNDS OF REVIEW – where the applicant applies for a statutory order of review of the respondent’s decision to refuse his application for parole on the grounds of failure to take relevant considerations into account, taking irrelevant considerations into account, and legal unreasonableness – whether the decision is affected by reviewable error

Corrective Services Act 2006 (Qld), ss 193, 194

Judicial Review Act 1991 (Qld), ss 20 and 30

COUNSEL:

The applicant appeared on his own behalf

T Ryan for the respondent

SOLICITORS:

The applicant appeared on his own behalf

Parole Board Queensland for the respondent

Introduction

  1. [1]
    On 10 January 2022, the Parole Board decided to refuse the applicant’s application for parole.  The applicant applies for a statutory order of review of that decision.  For the following reasons, I am satisfied the decision of the Board was affected by reviewable errors and ought to be set aside.

Background

  1. [2]
    On 24 February 1995, the applicant was convicted of murder and sentenced to life imprisonment.   The sentencing judge said:

“It was a cruel and vicious offence.  The victim was lured by the expectation of drugs to the house where he was killed, not suspecting you harboured hatred of him because you thought he was an informer…”[1]

  1. [3]
    On 21 July 2000, the applicant was convicted of trafficking in the drugs heroin, methylamphetamine and cannabis, an offence committed whilst he was in custody, in 1998.  He was sentenced to seven and a half years’ imprisonment.[2]
  2. [4]
    He was released to parole on 28 May 2009.
  3. [5]
    The applicant’s parole order was suspended in January 2014, in circumstances where he changed address without seeking approval, was charged with failing to dispose of a needle and syringe and provided a sample positive to cannabis and amphetamines. 
  4. [6]
    He was re-released to parole in June 2014; but his parole order was suspended again in May 2019, when he was charged with an offence of doing an act intended to cause grievous bodily harm, alleged to have been committed in January 2019.  That charge was ultimately withdrawn.
  5. [7]
    On 17 May 2021, the applicant was convicted of trafficking in cannabis, between March and July 2018.  He was sentenced to two years’ imprisonment, wholly suspended for two years.  That sentence reflected the fact that the circumstances of the offence placed it at the lower end of seriousness; that there had been significant delay in the matter being dealt with, such that the applicant had already served more than two years in custody; his plea of guilty; and the fact that the applicant’s criminal history otherwise – in particular, the life sentence – meant there were limited options available to the Court.  The sentencing judge observed, however, that the suspension of the sentence would allow the applicant to apply for parole in respect of his other sentence, and made some observations about the desirability of any such application for parole being dealt with expeditiously.[3]
  6. [8]
    As a consequence of that conviction, the applicant’s parole order was cancelled on 14 June 2021.
  7. [9]
    On 18 May 2021, the applicant made a further application for parole under s 180 of the Corrective Services Act 2006 (Qld).   There were delays in dealing with the application, prompting the applicant to make an application, in November 2021, for a statutory order of review, on the basis of a failure to make a decision on the application within the statutory time period.[4]
  8. [10]
    In December 2021, the Board communicated to the applicant its preliminary view, that the application should be declined.[5]  Relevantly, the Board’s letter dated 7 December 2021 includes the following, under the heading “Outstanding Treatment Needs”:

“The Board is informed that you have outstanding treatment needs to address risk factors linked to your offending behaviour, specifically your substance abuse.  The Board has had regard to the Rehabilitation Needs assessment (‘RNA’) which further identifies treatment needs in areas of employment, education and training, relationships, health, pro-criminal attitudes, offence specific needs and use of time.

The Board noted that you have been recommended to participate in the Substance Abuse Maintenance Intervention (‘SAMI’) program but have declined participation and refused to sign the ‘willingness form’.

Further, the Board noted you completed the Moderate Intensity Substance Intervention  (‘MISI’) program in 2020, however, is informed that since your completion you have been recorded as the perpetrator in a substance related incident whereby you had possession of an illicit drug.  This indicates to the Board that you still require intervention in order to appropriately address your outstanding treatment needs.

In relation to treatment of offence specific needs, the RNA identified you did not meet the criteria for recommendation to the Cognitive Self Change Program (‘CSCP’).  However, upon review of your offending behaviour, specifically the offence of murder, you are recommended to participate in a similar program to that of CSCP.

The Board considered the risk to the community in releasing you to parole with supervision now, as compared to after you have successfully completed SAMI and any self-change programs.  The Board believes that due to the link between substance abuse and your offending, the risk you pose is likely to be less if you are supervised after completing the recommended programs.

Given your history of substance abuse and the link it has to your offending behaviour, the Board encourages you to, if and when offered replacement on the recommended programs, to accept that placement and complete the program.” [underlining added]

  1. [11]
    The reference to “RNA” is to a Queensland Corrective Services document described as a Rehabilitation Needs Assessment.[6]   In this document, under the heading “offence specific needs?”, the following is recorded:

“Prisoner Marshall’s Queensland Person History dated 11th February 2019, indicates that prisoner has been convicted of a variety of offences such as drug offences, assault, break and enter.  Prisoner has not been convicted of any offences of the sexual nature.  Prisoner does not currently meet the criteria for CSCP, however considering prisoners index offence is Murder, it is recommended that prisoner participates in a similar course to assist him with rehabilitation.”[7]

  1. [12]
    The applicant was invited to provide further material or submissions before a final decision was made.
  2. [13]
    Following receipt of further material from the applicant, the Board finally considered the application on 10 January 2022 and decided to refuse the application for parole.[8]
  3. [14]
    A Statement of Reasons was provided on 8 February 2022.[9]
  4. [15]
    In the Statement of Reasons, the Board said:

“7. The primary reason for the Board’s preliminary decision to refuse your application is that you have outstanding treatment needs, specifically in relation to substance abuse and violence.  The Board noted that it had been recommended that you participate in the Substance Abuse Maintenance Intervention (‘SAMI’) program but that you had declined to participate in the program.” [underlining added]

  1. [16]
    The Board also said, in the course of reiterating the reasons for the preliminary view that the application should be refused:

“11. The Board also had consideration to your history of releases under community-based supervision.  Namely:

a. You were first released to Board Ordered Parole on 28 May 2009.

b. You were compliant with this Parole Order for a significant period of time between 2009 and 2012.

c. You allegedly committed an offence of Assault Occasioning Bodily Harm in 2012, the facts of which included you engaging in aggressive and unprovoked behaviour.  The Board noted this charge was discontinued.

d. This parole order was suspended on 15 January 2014 for reasons including that you failed to notify Community Corrections of your change in address, returned a positive urinalysis sample to Cannabis and Methamphetamine and were charged with failing to dispose of a needle.

e. You were re-released to Board Ordered Parole on 6 June 2014.

f. During this period of supervision, you reported as directed on all occasions.

g. A progress report dated 23 September 2015, prepared by Community Corrections, reflected positively on your mental health progress, particularly in relation to your diagnosis of Post-Traumatic Stress Disorder and Major Depressive Disorder.

h. A further progress report dated 29 September 2016 included information that you had commenced engagement with a clinical forensic psychologist and that at that time, there was no evidence of drug or alcohol abuse.

i.  In 2019, you were charged with a further offence of ‘Acts Intended to Cause Grievous Bodily Harm’, allegedly committed in January.  The alleged facts of that offence included that you discharged a firearm, and that the victim was struck in the hip by the bullet.  You were remanded in custody for this offence, along with other minor offences.  The Board acknowledged that this charge did not proceed.

j.  This parole order was suspended on 4 February 2019, following the receipt of the information in relation to charges of Acts Intended to Cause Grievous Bodily Harm as referred to in (i) and other minor charges, information related to trafficking in dangerous drugs and a positive urinalysis sample for Methamphetamines.  This parole order was subsequently cancelled on 14 June 2021 following your conviction and sentencing for Trafficking in Dangerous Drugs.

12. The Board was primarily concerned by the suspension and cancellation on your most recent parole release.  Particularly, that despite maintaining regular engagement with a Clinical Forensic Psychologist and a Psychiatrist, you returned to drug use and criminal activity.” [underlining added]

  1. [17]
    At paragraph 30 of the Statement of Reasons, the Board sets out in detail the submissions made by the applicant, in response to the Board’s preliminary decision.  Reference is also made, at paragraphs 31, 32 and 33, to the applicant providing a revised “relapse prevention plan” and a certificate of completion for the Short Substance Intervention (‘SSI’) program.  The Board reiterated its view that the applicant should “undertake the SAMI program and other programs to address your violent behaviour” (at paragraph 35).
  2. [18]
    In relation to the matter of previous charges, the Board said:

“41.In your submissions, you refer to your previous charge of ‘Acts Intended to Cause Grievous Bodily Harm’, allegedly committed on 31 January 2019 and the fact that the charge did not proceed.  The Board had regard to the fact that the charge did not proceed.  However, while a Court has not made a finding ‘beyond a reasonable doubt’, the information provided by Queensland Police Service is sufficient for the Board to remain concerned about your substance use and the associated risk you pose to the community.  This charge was also considered in light of the trafficking in dangerous drugs which was committed between May and July 2018, months prior to the alleged drug-related shooting incident.

42.The Board has had regard to your submissions that you had previously received information that you were not required to complete the SAMI program from program officers at your custodial centre and that you do not understand why you would be required to complete a violence program if you do not fit the criteria for the Cognitive Self-Change Program (‘CSCP’).  The Board’s reasons for recommending these programs includes your serious and violent criminal history, your previous responses to supervision, your custodial behaviour and the recommendations of the Rehabilitation Needs Assessment (‘RNA’) dated 26 July 2021.  The RNA specifically recommends SAMI and a violence program to address your treatment needs.  As previously stated, completion of these programs will also allow you to continue to build on your current relapse prevent and management plans.” [underlining added]

  1. [19]
    The Board concluded, at paragraph 46, that:

“Notwithstanding the positive aspects of your application, including but not limited to your suitable accommodation, custodial employment and recent clean urinalysis samples, the Board is required to determine the level of risk you currently pose to the community.  The Board had regard to your application as a whole and to factors outlined in the Ministerial Guidelines.  The Board is not convinced that the positive aspects alone alleviate concerns as outlined in the Board’s correspondence to you dated 7 December 2021.”

The application

  1. [20]
    The applicant applies to the court for a statutory order of review in relation to the decision.  In his amended application filed on 9 February 2022, the grounds on which the application is made are:
    1. (a)
      that the decision is contrary to s 20(2) and s 23 of the Judicial Review Act 1991 in that irrelevant considerations were taken into account; and
    2. (b)
      that the application was not decided on its merits.
  2. [21]
    At the hearing, in the course of the applicant’s oral submissions, I indicated that in the context of this case, I did not regard (b) above as raising a ground of judicial review – because judicial review is focussed on the legality of the decision in question, not the merits of it.[10]  As clarified by the applicant in his oral submissions, he relies upon the following grounds:
    1. (a)
      that the making of the decision was an improper exercise of the power conferred by the Corrective Services Act (s 20(2)(e) of the Act), in that the decision-maker failed to take relevant considerations into account in the exercise of the power (s 23(b) of the Act), namely:
      1. the fact the applicant has completed a violence prevention course in custody since his murder conviction;
      2. the sentencing remarks of Bradley J from May 2021; and
      3. the period of time that the applicant has previously spent on parole, and the relatively minor offences that have seen him returned to custody;
    2. (b)
      that the making of the decision was an improper exercise of the power conferred by the Corrective Services Act (s 20(2)(e) of the Act), in that the decision-maker took irrelevant considerations into account in the exercise of the power (s 23(a) of the Act), namely:
      1. the 1995 sentencing remarks; and
      2. the opinion of Queensland Police in relation to charges that were dropped; and
    3. (c)
      that the making of the decision was an improper exercise of the power conferred by the Corrective Services Act (s 20(2)(e) of the Act), in that it was an exercise of the power that is so unreasonable that no reasonable person could so exercise the power (s 23(g) of the Act).  For this ground, the applicant emphasises that the Board appears, in refusing his application, to have relied upon two charges which were laid against him, but which were subsequently withdrawn.
  3. [22]
    The Board did not object to the application being dealt with on the basis of these three grounds, notwithstanding they are not all referred to in the amended application as filed.

Legislative context in which the decision was made

  1. [23]
    The Parole Board is established under s 216 of the Corrective Services Act.  One of its functions is to decide applications for parole orders, other than court ordered parole orders (s 217(a)). 
  2. [24]
    The procedure for hearing and deciding an application for parole is dealt with in chapter 5, part 1, division 2 of the Act.  Under s 193(1), after receiving a prisoner’s application for a parole order, the Parole Board must decide to grant the application or to refuse to grant the application. 
  3. [25]
    The power of the Board to release a prisoner on parole is set out in s 194(1), which relevantly provides that the parole board may, by a parole order, release an eligible prisoner on parole (s 194(1)(b)).  An eligible prisoner is, essentially, one who has reached their parole eligibility date (s 194(4)).
  4. [26]
    The Board’s discretionary power to grant or refuse an application for parole is broad and unfettered, in the sense that the Corrective Services Act does not specify the criteria for making a decision under s 193.  However, the scope of the Board’s discretionary power to grant or refuse an application for parole is to be exercised having regard to the subject matter, scope and purpose of the Corrective Services Act.[11]  The purpose of the Act is “community safety and crime prevention through the humane containment, supervision and rehabilitation of offenders” (s 3(1)).
  5. [27]
    Section 242E of the Act provides that the Minister “may make guidelines about policies to help the parole board in performing its functions”.  The relevant Ministerial Guidelines that have been issued to the Board are dated 3 July 2017.   Reflecting the purpose of the Act in s 3(1), clause 1.2 of the Guidelines states that “[w]hen considering whether a prisoner should be granted a parole order, the highest priority for [the Board] should always be the safety of the community”.
  6. [28]
    In relation to the status of the Guidelines, I repeat what I said in Calanca v Parole Board [2019] QSC 34 at [57]:

“The language used in the current s 242E is consistent with the ordinary meaning of “guidelines” in the context of administrative decision-making, as non-binding rules or standards, providing general indications to help the decision-maker in exercising their discretion.  It is clear from s 242E that the Guidelines do not fetter the exercise of the otherwise broad discretion of the Board, in the sense that the Guidelines do not prescribe or limit how the Board’s discretion under s 193 is exercised.  But that does not mean the Guidelines can be ignored.  The Guidelines are properly to be regarded as a relevant factor and, because they are expressly contemplated by the legislation, must be taken into account by the Parole Board. The formulation of guidelines for administrative decisions, particularly decisions such as those made by the Parole Board which affect personal liberty, promotes values of consistency and rationality in decision-making, whilst still upholding the ideal of justice in the individual case on its merits.” [references omitted]

  1. [29]
    The Guidelines include the following:

“SECTION 2 – SUITABILITY

2.1 When deciding the level of risk that a prisoner may pose to the community, Parole Board Queensland should have regard to all relevant factors, including but not limited to, the following –

a) the prisoner’s criminal history and any patterns of offending;

b) the likelihood of the prisoner committing further offences;

c) whether there are any other circumstances that are likely to increase the risk the prisoner presents to the community (including any of the factors set out in section 5.1 of these guidelines);

d) whether the prisoner has been convicted of a serious sexual offence or serious violent offence or any other offences listed in section 234(7) of the Act;

e) the recommendation for parole, parole eligibility date, or any recommendation or comments of the sentencing court;

f) the prisoner’s cooperation with authorities both in securing the conviction of others and preservation of good order within prison;

g) any medical, psychological, behavioural or risk assessment report relevant to the prisoner’s application for parole;

h) any submissions made to Parole Board Queensland by an eligible person registered on the Queensland Corrective Services (QCS) Victims Register;

i) the prisoner’s compliance with any other previous grant of parole or leave of absence;

j) whether the prisoner has access to supports or services that may reduce the risk the prisoner represents to the community; and

k) recommended rehabilitation programs or interventions and the prisoner’s progress in addressing the recommendations.

…

SECTION 5 – PAROLE ORDERS

Release to parole

5.1 When considering releasing a prisoner to parole, Parole Board Queensland should have regard to all relevant factors, including but not limited to the following –

a) Length of time spent in custody during the current period of imprisonment;

b) Length of time spent in a low security environment or residential accommodation;

c) Any negative institutional behaviour such as assaults and altercations committed against correctional centre staff, and any other behaviour that may pose a risk to the security and good order of a correctional centre or community safety;

d) intelligence information received from State and Commonwealth agencies;

e) length of time spent undertaking a work order or performing community service;

f) any conditions of the parole order intended to enhance supervision of the prisoner and compliance with the order;

g) appropriate transitional, residential and release plans; and

h) genuine efforts to undertake available rehabilitation opportunities.”

The grounds of review – relevant principles

  1. [30]
    As already noted, the three grounds of review sought to be relied upon by the applicant are: failing to take relevant considerations into account; taking irrelevant considerations into account; and unreasonableness.
  2. [31]
    The ground of failure to take into account a relevant consideration can only be made out if a decision-maker fails to take into account a consideration that they are bound to take into account in making that decision. What factors a decision-maker is bound to consider in making the decision is determined by construction of the statute conferring the discretion.  Where, as here, the Board has a broad discretion to have regard to all relevant factors, the scope of what is relevant is to be determined by implication from the subject matter, scope and purpose of the relevant Act.[12] 
  3. [32]
    In terms of the second ground, for a consideration to be irrelevant in this sense the statute must expressly or impliedly prohibit consideration of it.[13] As Weinberg J explained, in Australian Retailers Association v Reserve Bank of Australia (2005) 148 FCR 446 at [512]-[513], a legislative scheme such as this one (including the Guidelines, which provide a list of matters the Board should have regard to, but also allow the Board to take into account “all relevant factors”) implies that “short of capriciousness, the determination of whether or not these additional matters are relevant, and what weight they should be accorded, is largely a matter for” the Board.[14]
  4. [33]
    In relation to the third ground, unreasonableness, the task of the court is to ask whether the exercise of power by the decision-maker was beyond power because it was legally unreasonable. A decision made in the exercise of a statutory power is unreasonable in a legal sense when it lacks an evident and intelligible justification.  That may be so where a decision is one which no reasonable person could have arrived at,[15] although an inference of unreasonableness is not to be drawn only where a decision appears to be irrational.[16] The test is a stringent one, and the courts will not lightly interfere with the exercise of a statutory power involving a discretion.[17] Within the bounds of legal reasonableness, a decision-maker has a genuinely free discretion.[18]  As Wigney J said in Minister for Immigration and Border Protection v Stretton (2016) 237 FCR 1 at [92]:

“The critical point is that, in reviewing a decision on the ground of legal unreasonableness, the Court’s role is strictly supervisory.  It is concerned with determining whether there has been a lawful exercise of power having regard, in particular, to the terms, scope and purpose of the statute conferring the power.  In circumstances where reasonable minds might differ about the outcome of, or justification for, the exercise of power, or where the outcome falls within the range of legally and factually justifiable outcomes, the exercise of power is not legally unreasonable simply because the Court disagrees, even emphatically, with the outcome or justification. If there is an evident, transparent and intelligible justification for the decision … or if the decision is within the ‘area of decisional freedom’ of the decision-maker … it would be an error for the Court to overturn the decision simply on the basis that it would have decided the matter differently…”[19]

  1. [34]
    I turn now to deal with each of the grounds relied upon by the applicant.

Relevant considerations not taken into account?

  1. [35]
    The applicant contends the Board failed to take the following relevant considerations into account:
    1. (i)
      the fact the applicant has completed a violence prevention course in custody since his murder conviction;
    2. (ii)
      the sentencing remarks of Bradley J from May 2021; and
    3. (iii)
      the period of time that the applicant has previously spent on parole, and the relatively minor offences that have seen him returned to custody.
  2. [36]
    A review of the Board’s preliminary decision, and the Statement of Reasons, shows that the second and third of these matters was considered by the Board:
    1. (a)
      as to (ii) – at pages 2-3 of the Statement of Reasons;[20] and
    2. (b)
      as to (iii) – at pages 3-4 of the Statement of Reasons.[21]
  3. [37]
    As to the first matter, the applicant made the following written submissions, after referring to the Rehabilitation Needs Assessment:

“1.3 The applicant has NOT been offered a position in any type of violence program.

1.4 The applicant has NOT had a conviction for violence related charges since 1995, being for a 1993 murder (28 yrs ago).  During his original sentence the applicant completed the Pathways Violence Prevention program, and has served over 9 yrs on parole.  The Board however continually refer to his history of violent behaviours and in para 10 the Board expresses the view that given the conviction for murder, ‘you should participate in a program that is similar to CSCP’, but have NOT offered one, and have not mentioned his previous completion of the Pathways program.

1.5 Violence programs similar to CSCP are available in the community.”[22]

  1. [38]
    I am unable to see any reference in the Board’s Statement of Reasons to the fact that the applicant previously completed a violence prevention program.  In my view, this is a relevant consideration – particularly given the shift in emphasis, from the preliminary decision (in which the emphasis was upon outstanding treatment needs in relation to substance abuse) to the final decision (which identifies, on the basis of the Rehabilitation Needs Assessment, an outstanding treatment need in relation to violence).  The Board appears to have placed significant weight on the very brief statement that appears in the Rehabilitation Needs Assessment (as set out in paragraph [11] above), without giving consideration to the program(s) the applicant had previously completed.  I consider this ground of review has been made out.

Irrelevant considerations

  1. [39]
    The applicant contends the Board took into account the following irrelevant considerations:
    1. (i)
      the 1995 sentencing remarks; and
    2. (ii)
      the opinion of Queensland Police in relation to charges that were dropped.
  2. [40]
    As to the first matter, the 1995 sentencing remarks are not an irrelevant consideration.  A prisoner’s criminal history is a centrally relevant factor, and the sentencing remarks made at the time a sentence is imposed may include material information.  Here, although brief, the sentencing remarks inform as to the nature of the murder offence committed by the applicant.
  3. [41]
    The second matter is not so straightforward.  It is apparent that, in reaching its decision to refuse parole, the Board had regard to the following matters:
    1. (a)
      an allegation that the applicant committed an offence of assault occasioning bodily harm in 2012, although noting that this charge was discontinued (para 11(c) of the Statement of Reasons);
    2. (b)
      that in 2019 the applicant was charged with the offence of “acts intended to cause grievous bodily harm”, although acknowledged that this charge did not proceed (para 11(i) of the Statement of Reasons);
    3. (c)
      the applicant’s parole order being suspended on 4 February 2019, following receipt of information in relation to that charge of acts intended to cause grievous bodily harm and “other minor charges”, information related to trafficking and a positive urinalysis sample (para 11(j) of the Statement of Reasons);
    4. (d)
      the information about the charge contained in an “advice to parole board report” prepared by Queensland Corrective Services;[23] and
    5. (e)
      although the Board had regard to the fact that latter charge did not proceed, the Board took into account that “while a Court has not made a finding ‘beyond reasonable doubt’, the information provided by Queensland Police Service is sufficient for the Board to remain concerned about your substance use and the associated risk you pose to the community” (para 41 of the Statement of Reasons).
  4. [42]
    It is not clear what the “information provided by Queensland Police Service”, referred to in paragraph 41 of the Statement of Reasons, is.  On the one hand, it could be the information about the charge, which appears in the “advice to parole board report”.[24]  On the other hand, the material before the Board also included information provided by Queensland Police in email correspondence to the Board, in December 2021.  The Board requested information from the Police, about the circumstances in which a nolle prosequi was entered in respect of the 2019 charge.  The first response was “I believe the matter was nolle due to the unreliability of the witnesses. Detective [name] should be able to confirm further and any other issues with the brief”.  That was followed up by a further email, from the named Detective, which said “the matter was nolle due to the victim provided an affidavit stating we arrested the wrong person, he [the other person] has since been charged with murder 16/08/21”.[25]
  5. [43]
    Read in the context of paragraph 41 of the Statement of Reasons, the strong inference is that the “information” being referred to is the description of the circumstances giving rise to the charge (involving as that did an allegation that the applicant fired a gun on multiple occasions at the victim).
  6. [44]
    By s 205(2)(c) of the Corrective Services Act 2006 (Qld), the Board may amend or suspend a parole order if the prisoner is charged with committing an offence. But the question is, if the Board knows that a charge has been withdrawn or discontinued, is the fact of the charge nonetheless a relevant consideration in determining an application for parole?  Particularly when the Board also knows that the reason the charge has been discontinued is because “we arrested the wrong person”?
  7. [45]
    In my view there may be circumstances in which the fact of a charge could be said to be a relevant consideration.  I do not consider that, as a matter of principle, the position could be articulated otherwise.
  8. [46]
    However, the applicant’s argument is that what was irrelevant was the opinion of the Queensland Police Service in relation to a charge that was dropped.  As I have said, it is not entirely clear what the Board was referring to in paragraph 41.  But on the basis that:
    1. (a)
      it is the description of the events leading to the charge – which was eventually dropped because, in the words of the Detective, “we arrested the wrong person”;
    2. (b)
      and that it appears from paragraph 41 that the Board acted on that description of events, notwithstanding “a Court has not made a finding ‘beyond a reasonable doubt’” and, it seems, notwithstanding the advice from the Police themselves about why the charge was dropped,

in the circumstances of this case I consider the Board has taken into account an irrelevant consideration, and this ground of review is also made out.

  1. [47]
    However, even if a different view could be taken about that, as next discussed, in my view the Board’s decision, in so far as this aspect of its reasoning was concerned, was affected by legal unreasonableness.

Legal unreasonableness

  1. [48]
    There is an apparent shift, between the preliminary decision and the final decision, with greater emphasis on the “outstanding treatment need” in relation to violence in the latter.  In the preliminary decision, the emphasis had quite clearly been on that need, in relation to substance abuse.
  2. [49]
    The applicant’s submission is, in effect, that the Board’s decision, that he has an unmet or outstanding treatment need in relation to violence, lacks an evident and intelligible justification, in circumstances where his only conviction for violent offending is the murder conviction from 1995; he has previously been released on parole, and spent significant periods of time in the community; and apart from that 1995 conviction, there is nothing in the subsequent years that have passed that would support a conclusion that he has unmet treatment needs in respect of violence, because although there have been two charges, they were both discontinued, and there is no evidence of any custodial behaviour that reflects violence against other inmates or officers.   Counsel for the respondent confirmed the latter as correct.
  3. [50]
    Counsel for the respondent emphasised that paragraph 42 of the Statement of Reasons, does not refer to the charge that was dropped.  That is strictly correct, but paragraph 42 follows immediately from paragraph 41, in which the Board says:  “However, while a Court has not made a finding ‘beyond reasonable doubt’ the information provided by Queensland Police Service is sufficient for the Board to remain concerned about your substance use and the associated risk you pose to the community”.  It is artificial, in my respectful view, to suggest that the Board did not take what it has said in paragraph 41 into account, in reaching the conclusion articulated in paragraph 42 as to outstanding treatment needs in relation to violence.
  4. [51]
    The only other basis for that conclusion is what appears in the Rehabilitation Needs Assessment, which is a very brief statement, referring back only to the murder conviction, without any reference to the rehabilitation program previously undertaken by the applicant, and the fact that he has already been released on parole previously.
  5. [52]
    Taking the Statement of Reasons on its face, it is hard to avoid the conclusion that the circumstances that gave rise to the shooting charge, as described in the “advice to parole board report” dated 4 February 2019, played a decisive role in the Board’s process of reasoning, from the proposition that the applicant had an outstanding treatment need, in relation to violence; that he had not completed a violence program; and that his application for parole should be refused, among other reasons, until he had done so.  In my respectful view, that line of reasoning lacks an evident or intelligible justification, having regard to the information provided by the Police as to why the shooting charge was discontinued; the absence otherwise of any convictions, subsequent to the murder conviction, for offences of violence; and the fact that the applicant has previously been released on parole.
  6. [53]
    I consider this ground of review has also been made out.
  7. [54]
    Accordingly, the decision of the Board made on 10 January 2022 will be set aside and the matter remitted to the Board to consider the application for parole again.  As it was apparent that the applicant has undertaken some program(s) since the decision was made, and may also have other material he wishes to place before the Board in respect of his application, I propose to also direct (subject to any submissions from the parties, in so far as the time frames are concerned):
    1. (a)
      that the applicant provide to the Board any additional material he wishes to rely upon in respect of his application within seven (7) days; and
    2. (b)
      that the Board consider and make a decision in relation to the application for parole, within fourteen (14) days.

 

Footnotes

[1]Affidavit of Ms Furlan-Johns, at p 84.

[2]Affidavit of Ms Furlan-Johns, at p 81 (criminal history) and pp 85-103 (sentencing remarks).

[3]Affidavit of Furlan-Johns, at pp 105-107.

[4]Affidavit of Furlan-Johns, p 119.

[5]Affidavit of Furlan-Johns, at pp 14-23.

[6]Affidavit of Furlan-Johns, at pp 150-160.

[7]Affidavit of Furlan-Johns, at p 157.

[8]Affidavit of Furlan-Johns, pp 45-48.

[9]Affidavit of Furlan-Johns, pp 50-60.

[10]See Plaintiff M64/2015 v Minister for Immigration and Border Protection (2015) 258 CLR 173 at [23].  Cf s 20(2)(e) and s 23(f) of the Judicial Review Act, pursuant to which a decision may be reviewable on the basis that it involved an exercise of power in accordance with a rule or policy, without regards to the merits of the case.

[11]See Wigginton v Queensland Parole Board [2010] QSC 59 at [26] and Queensland Parole Board v Pangilinan [2016] 1 Qd R 419 at [19].

[12]Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 at 39-40; see also Australian Retailers Association v Reserve Bank of Australia (2005) 148 FCR 446 at [522].

[13]Telstra Corporation Ltd v Seven Cable Television Pty Ltd (2000) 102 FCR 517 at [137]; Australian Retailers Association v Reserve Bank of Australia (2005) 148 FCR 446 at [514].  See also Perdikaris v Deputy Commissioner of Taxation (2008) 172 FCR 412 at [35] and Attorney-General (ACT) v Heiss (2002) 116 FCR 128 at [18].

[14]See also Minister for Aboriginal Affairs v Peko-Wallsend (1986) 162 CLR 24 at 40.

[15]Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1947] 2 All ER 680; [1948] 1 KB 223 at 230.

[16]Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 at [68].

[17]Minister for Immigration and Border Protection v SZVFW (2018) 264 CLR 541 at [10]-[11] per Kiefel CJ and at [78]-[80] per Nettle and Gordon JJ; Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 at [68], [76], [108].

[18]Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 at [28], [66] and [105].

[19]References omitted; see also per Allsop CJ at [12].  See also Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611 at [137] per Gummow J.

[20]Affidavit of Ms Furlan-Johns, at pp 51-52.

[21]Affidavit of Ms Furlan-Johns, at pp 52-53.

[22]Exhibit 1.

[23]Affidavit of Ms Furlan-Johns, at pp 75-76.

[24]Affidavit of Ms Furlan-Johns, at pp 75-76.

[25]Affidavit of Ms Furlan-Johns, at pp 38-39.  See also the statutory declaration of Rogers, dated 9 May 2019 (part of exhibit 1) and the statutory declaration of Ms Hales, dated 15 February 2022 (exhibit 3).  It is not clear whether the Board had the Rogers’ declaration before it at the time of making the decision.  It could not have had the Hales’ declaration given the date of it.

Close

Editorial Notes

  • Published Case Name:

    Marshall v Parole Board Queensland

  • Shortened Case Name:

    Marshall v Parole Board Queensland

  • MNC:

    [2022] QSC 90

  • Court:

    QSC

  • Judge(s):

    Bowskill CJ

  • Date:

    20 May 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
Associated Provincial Picture Houses Limited v Wednesbury Corporation (1948) 1 K.B., 223
1 citation
Jump To
Cite 1 - (1948) 1 K.B., 223
Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1947] 2 All E.R. 680
1 citation
Jump To
Cite 1 - [1947] 2 All E.R. 680
Attorney-General (ACT) v Heiss (2002) 116 FCR 128
1 citation
Jump To
Cite 1 - (2002) 116 FCR 128
Australian Retailer Association v Reserve Bank of Australia (2005) 148 FCR 446
3 citations
Jump To
Cite 1 - (2005) 148 FCR 446
Cite 2 - (2005) 148 FCR 446
Cite 3 - (2005) 148 FCR 446
Calanca v Parole Board Queensland [2019] QSC 34
1 citation
Jump To
Cite 1 - [2019] QSC 34
Minister for Aboriginal Affairs v Peko Wallsend Ltd (1986) 162 CLR 24
2 citations
Jump To
Cite 1 - (1986) 162 CLR 24
Cite 2 - (1986) 162 CLR 24
Minister for Immigration and Border Protection v Stretton (2016) 237 FCR 1
1 citation
Jump To
Cite 1 - (2016) 237 FCR 1
Minister for Immigration and Border Protection v SZVFW (2018) 264 CLR 541
1 citation
Jump To
Cite 1 - (2018) 264 CLR 541
Minister for Immigration and Citizenship v Li (2013) 249 CLR 332
3 citations
Jump To
Cite 1 - (2013) 249 CLR 332
Cite 2 - (2013) 249 CLR 332
Cite 3 - (2013) 249 CLR 332
Minister for Immigration v Eshetu (1999) 197 CLR 611
1 citation
Jump To
Cite 1 - (1999) 197 CLR 611
Perdikaris v Deputy Commissioner of Taxation (2008) 172 FCR 412
1 citation
Jump To
Cite 1 - (2008) 172 FCR 412
Plaintiff M64/2015 v Minister for Immigration and Border Protection (2015) 258 CLR 173
1 citation
Jump To
Cite 1 - (2015) 258 CLR 173
Queensland Parole Board v Pangilinan[2016] 1 Qd R 419; [2015] QCA 35
1 citation
Jump To
Cite 1 - [2016] 1 Qd R 419
Telstra Corporation Ltd v Seven Cable Television Pty Ltd (2000) 102 FCR 517
1 citation
Jump To
Cite 1 - (2000) 102 FCR 517
Wigginton v Queensland Parole Board [2010] QSC 59
1 citation
Jump To
Cite 1 - [2010] QSC 59

Cases Citing

Case NameFull CitationFrequency
Brisbane City Council v Leahy(2023) 15 QR 101; [2023] QCA 1331 citation
1

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