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Rowlingson v Parole Board Queensland[2023] QSC 253

Rowlingson v Parole Board Queensland[2023] QSC 253

SUPREME COURT OF QUEENSLAND

CITATION:

Rowlingson v Parole Board Queensland [2023] QSC 253

PARTIES:

ANTHONY DAVID ROWLINGSON

(applicant)

v

PAROLE BOARD QUEENSLAND

(respondent)

FILE NO/S:

BS6739 of 2023

DIVISION:

Trial Division

PROCEEDING:

Application for a statutory order of review

ORIGINATING COURT:

Supreme Court

DELIVERED ON:

13 November 2023

DELIVERED AT:

Brisbane

HEARING DATE:

3 October 2023

JUDGE:

Muir J

ORDER:

  1. The application is dismissed. I will hear the parties about costs.

CATCHWORDS:

Corrective Services Act 2006 (Qld)

Judicial Review Act 1991 (Qld)

Juvenile Justice Act 1992 (Qld)

Buck v Bavone (1976) 135 CLR 110

Calanca v Parole Board Queensland [2019] QSC 34

Carrascalao v Minister for Immigration and Border Protection (2017) 252 FCR 325; [2017] FCAFC 107

Gough v Southern Queensland Regional Parole Board [2008] QSC 222

McGrane v Queensland State Parole Board [2010] QSC 209

Minister for Aboriginal Affairs v Peko-Wallsend Limited (1986) 162 CLR 24

Minister for Immigration and Border Protection v SZMTA (2019) 264 CLR 421

Minister for Immigration and Ethnic Affairs v Wuu Shan Liang (1996) 185 CLR 259

Minister for Immigration, Local Government and Ethnic Affairs v Gray (1994) 50 FCR 189

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

MZAPC v Minister for Immigration and Border Protection (2021) 273 CLR 506

Plaintiff M64/2015 v Minister for Immigration and Border Protection (2015) 258 CLR 173

Reece v Webber (2011) 192 FCR 254

R v Rowlingson [2008] QCA 395

Singh v Minister for Home Affairs (2019) 267 FCR 200; [2019] FCAFC 3.

COUNSEL:

The applicant appeared on his own behalf

J R Hunter KC with S Robb for the respondent

SOLICITORS:

The applicant appeared on his own behalf

Parole Board of Queensland for the respondent

Introduction

  1. [1]
    The applicant is serving a life sentence of imprisonment for murdering his 19 year old brother on 15 July 2007.  He was 16 years old at the time of the offence and 17 years old when he entered pleas of guilty and was convicted and sentenced to this and other lesser offences, under the Juvenile Justices Act 1992 (Qld), on 15 September 2008.[1]  The applicant was eligible for parole on 16 July 2022 after serving 15 years of the sentence.[2]  But he remains in custody, having now served over 16 years in detention.[3]
  2. [2]
    The applicant applied under various sections of the Judicial Review Act 1991 (Qld)  for a review of the respondent’s decision on 6 March 2023, to refuse his application for parole pursuant to s 193 of the Corrective Services Act 2006 (Qld).[4]  The amended application raised the following grounds of review:
    1. First: The respondent inflexibly applied a policy without regard to the merits of the applicant’s case or failed to take a relevant consideration into account [ss 20(2)(e) and 23(f) or 23(b)] in that the respondent failed to consider why the applicant had not undertaken the recommended psychological treatment in custody and his request to undertake this treatment in the community;
    2. Secondly: The decision involved a breach of the rules of natural justice or a failure to take a relevant consideration into account [ss 20(2)(a) or 20(2)(e) and 23(b)] in that the respondent failed to consider essential aspects of the applicant’s case that of available and realistic intervention opportunities;
    3. Thirdly: The decision involved a breach of the rules of natural justice in relation to the making of the decision, or a failure to take a relevant consideration into account [ss 20(2)(a) or 20(2)(e) and 23(b)] in that the respondent was obliged to but failed to consider the applicant’s genuine efforts to undertake available rehabilitative opportunities in custody; and
    4. Fourthly: The decision involved an improper exercise of power in bad faith [ss 20(2)(e) and 23(d)] in that the respondent exhibited a bias by tendering unserviceable interventions and requirements on the applicant.
  1. [3]
    At the outset of his oral submissions at the hearing of the application, the applicant withdrew any argument based on an allegation of a breach of “natural justice” or “bad faith.”[5] It follows that the grounds upon which the applicant alleges that the making of the decision was an improper exercise of power are confined to two distinct  categories of complaint:
    1. Ground one: The respondent inflexibly applied a policy without regard to the merits of the applicant’s case and the reasons why the applicant had not undertaken the recommended psychological treatment in custody and his request to undertake this treatment in the community; and
    2. Ground two: The respondent failed to take into account the following three essential aspects of the applicant’s case: [6]
  1. Why the applicant had not undertaken the recommended psychological treatment in custody and his request to undertake this treatment in the community;
  2. The availability of realistic intervention opportunities; and
  3. The applicant’s genuine efforts to undertake available rehabilitative opportunities in custody.
  1. [4]
    There is some overlap between these grounds but relevantly the following four facts emerge from my analysis below: 
    1. First: The applicant is an exemplary prisoner who has availed himself of every rehabilitative opportunity made available to him by Queensland Corrective Services (QCS) since he was sentenced as a child over 16 years ago;
    2. Secondly: The applicant’s parole application was refused by the respondent   because the applicant failed to undertake any of the psychological or psychiatric treatment contemplated by the sentencing court (16 years ago), particularly relating to his profound deficits in empathy;
    3. Thirdly: QSC did not make this treatment available to the applicant despite his willingness and desire to receive and undertake it; and 
    4. Fourthly: The applicant’s real complaint is with the respondent’s decision that his outstanding treatment needs must be addressed in custody and can’t be adequately met in the community.
  2. [5]
    Ultimately, and as my analysis also reveals, I have determined that the application should be dismissed because the grounds are not made out and the errors in the respondent’s decision (as they have been raised by the applicant) go to its merits and are therefore not matters for judicial review.

Relevant facts

  1. [6]
    In order to give context to the grounds of review it is instructive to firstly understand the relevant facts which include the applicant’s offending and the basis of his sentence, together with the background to the respondent’s ultimate decision on 6 March 2023 to refuse parole and the reasons for that.

Circumstances of offending and basis of sentence

  1. [7]
    The offending was described by the sentencing judge, White J (as her Honour then was) as both a “cold-blooded” and “premeditated” murder, in which the applicant shot his brother in a “very cowardly way” as follows:[7]

“I'll now make some reference to the facts and circumstances that gave rise to the shooting of your brother. You all lived on the property. Your brother, Robert, returned home at around 3 in the afternoon on the Sunday. Your parents had gone to Toowoomba to go to church and then to spend a social day. Your sister, having gone to university in Brisbane, lived and worked in Brisbane.

Your brother went up to the shed to do some work on his motor vehicle. You took a gun out of the gun safe, locked up by your father, and you shot him. He dropped to the ground and you went up and you shot him again. You then used a forklift to put his body in the boot of his car. You drove around with him in the boot of the car until you managed to enlist the assistance of a school teacher with whom you had some reasonably close relationship. I will say nothing more about that relationship because that school teacher is to stand trial for being an accessory after the fact to your brother's murder. However, he assisted you to dispose of your brother's body over a floodway on the Clifton-Leyburn Road from a bridge and you subsequently told police where his body could be found.

Initially, you took no part in giving your parents any information about your brother when he was discerned to be missing. Eventually there were circumstances which certainly aroused your father's suspicion about the quantity of blood that was around outside the shed, inconsistent with your story that you had shot a cat. The police detained you for questioning and you certainly told them, to use the vernacular, a cock and bull story. You engaged in, according to the experts' reports, a rather enjoyable, for you, game of seeing how far you could go in deceiving the police, but eventually, on the 17th of July, you told them that you had shot Robert, your brother.

You gave no indication of any real explanation for this. There is some suggestion that you felt discomforted about some intrusions that he had made into what you regarded as your private life about belonging to an organisation and his too-ready willingness to divulge that outside the family. There was certainly no confrontation with your brother. He and you simply had ceased to be brotherly, if I can use that expression, over the period of time when he had come home to live after working away from home for some little time.”

[Emphasis added]

  1. [8]
    The applicant’s lack of remorse (despite his guilty plea), his initial attempt to fool the police (and his family) was found by White J to be demonstrative of the personality deficits referred to by the various experts, which she summarised in her sentencing remarks as follows:[8]  

“Mr Grahame Butler, Department of Communities, said of mental health issues, "In relation to Anthony's persona and his cognitive processes, the psychological and psychiatric assessments have identified Anthony as displaying behavioural traits which indicate the presence of a narcissistic personality disorder in combination with quite elevated psychopathic characteristics. This includes but is not limited to specific deficits such as being interpersonally exploitive, deceitful and manipulative, having an inflated sense of importance in terms of his personal perspective, taking and showing a disregard for and insensitivity to others. The psychological profile also identifies the presence of heightened schizoid characteristics suggesting a marked inability to display or show emotion and presenting with a detached and flat effect. Further, it is suggested in the assessments that whilst Anthony has the capacity to resolve interpersonal conflicts, and there are a number of protective factors in his past to aid this, he also has a heightened propensity to justify the use of violence, and this is combined with a probable inability or unwillingness to identify personal flaws requiring therapeutic interventions.”

Dr Harden, psychiatrist, writes that the offence occurred in circumstances where you had planned to kill your brother over at least a three-week period, and you “carried out the murder without any overt emotional reaction in an opportunistic fashion.”  He said that you’re not prone to impulsive aggression in general, although you have problems with temper control when challenged, particularly over issues of control or dominance. He concluded that your future risk of violent re-offence is moderate.  He said, “My assessment of this risk is based on the combined clinical and actuarial assessment.  Re-offence in this individual is most likely if an individual threatens his self-control or dominance, or threatens some other goal that he finds important.  If this man were to make threats against another individual in a targeted way in the future, such threat should be taken extremely seriously.”

Nonetheless, Dr Watt concluded that the most recent research would suggest that there are some real strategies that could be employed which would work with a person like you with your personality characteristics, and have a real potential for harm reduction targeting psychological intervention to deal with your anti-social personality traits.  He said that you do present with a number of protective factors which, if developed further, may reduce the risk of future violence.  And that’s because you’re at least of average intelligence, and you have capacity to engage in future academic achievement.  Indeed, whilst  you have been in custody, you have engaged in the furtherance of your academic studies, and it may well be that that will be part of your cognitive and behavioural therapy in the future if you can respond to your academic studies.”

Dr Michael Beech agreed that you would benefit from intensive psychological treatment over the course of your incarceration to address your empathy deficit. He thinks that that might be best done in a group setting.”

[Emphasis added]

  1. [9]
    Near the end of her sentencing remarks and as part of her reasons for allowing an application for the publication of the applicant’s name, White J emphasised the substantial rehabilitation she considered the applicant required (based on the medical evidence before her) as follows:[9]

“Because of the matters that are raised in the psychiatrist report, that unless you have undergone quite substantial rehabilitation by way of personality treatment with cognitive and behavioural therapy, that you will constitute a danger to the community….”

[Emphasis added]

  1. [10]
    The importance and necessity of the applicant undertaking treatment was again emphasised by the Court of Appeal in the applicant’s unsuccessful appeal against  sentence, most relevantly as follows:[10]

“The learned sentencing judge was concerned to impose a sentence which would protect the community against the risk of further violence, from the applicant That was, of course, perfectly proper. It may be accepted that the sentence which is imposed must not be disproportionate to the gravity of the offence, but having regard to the heinousness of the murder in this case, a sentence which requires the applicant to serve 15 years in actual custody while receiving treatment in respect of his profound deficits in empathy cannot reasonably be said to be disproportionate to the gravity of the offence.”

[Emphasis added]

  1. [11]
    The complexity and difficulties with rehabilitation were also recognised by the Court of Appeal in the following way:[11]

“In this case, the prospects of the rehabilitation of the applicant having regard to his youth have been described in guarded terms by the psychiatrist and the psychologist who have examined the applicant. Even if one accepts that there is “some prosect” in that regard, there can be no optimism about the applicant’s rehabilitation having regard to his lack of empathy.”

[Emphasis added]

  1. [12]
    Given the above, it is difficult to understand why suitable rehabilitative treatment options were not identified or made available to the applicant until after he applied for parole.

Background to the current application  

  1. [13]
    The applicant is now 32.  As stated at the outset, he was eligible for parole on 16 July 2022. 
  2. [14]
    The applicant first applied for a parole order on 16 January 2022.  On 23 March 2022, Queensland Corrective Services completed a Parole Suitability Assessment Report (PSA Report) in relation to the applicant.  This report contained the following relevant information about the applicant:[12]
    1. He was transferred to Woodford Correctional Centre on 4 October 2018 but progressed to residential accommodation on 1 April 2019 - where he currently remains. The applicant’s security classification was reviewed on 20 January 2022, but he remains on a high security classification;
    2. On his own self reporting/reflection, the applicant personally considered that over his time in custody he has developed patience and a tolerance towards other prisoners and custodial operations;
    3. The applicant has maintained consistent employment at a senior level. He has good working relations with staff (including being able to engage in work and non-work related conversations); he is easy to manage and requires minimum supervision;
    4. The applicant has completed tertiary studies including a Certificate I in Business, Certificate II in Furniture Finishing and certificates in construction and engineering;
    5. The applicant has not been recommended to participate in any treatment-related programs of intervention, and therefore has not participated in any such programs; 
    6. The applicant’s view is that on his release he does not need counselling as he is confident that the challenges and experiences from custody have prepared him for stressors in the community;
    7. His time in custody has enabled him to learn how to self-regulate his emotions and utilise effective communication strategies;
    8. The applicant intends to continue his tertiary studies upon his release obtaining some credits for some of the course work he has already undertaken in custody, with a view to completing a counselling degree; and
    9. On his release, the applicant plans to live with his parents at Westbrook, Toowoomba. Both parents have provided separate letters of support reflecting their ongoing and continuing love and support for their son.   
  3. [15]
    The overall summary and evaluation by the author of the PSA Report was as follows:

“Mr Rowlingson has consistently displayed compliant behaviour during the review period, as indicated by his lack of incidents, positive case notes, and consistent employment at a senior level.  It is noted that he attributes his pro-social behaviour to progressively learning to understand his emotions and behaviour.

Mr Rowlingson presents with a limited post-release plan that identifies pro-social supports, pro-social activities and professional development.  However, he fails to address the recommendation made by the Sentencing Judge, as he is yet to engage in cognitive and behaviour therapy to mitigate his offending risk needs.

In response to the abovementioned factors, the author notes that although Mr Rowlingson’s institutional response is consistently progressive, he is yet to address the Sentencing Judge’s recommendations.  Therefore, the author recommends that he remain in custody, to allow him adequate time to engage in personality treatment with cognitive and behavioural therapy.”

[Emphasis added]

  1. [16]
    In addition, the author of the PSA Report referred to the discharge and oversight committee having considered the parole application, including the sentencing judge’s comments “regarding personality treatment required as well as cover [sic] any violence, ideology surrounding any concerns or infatuations he might have”.  The author noted, however, that QCS does not treat personality disorders as a targeted intervention need and recommended a psychiatric or psychological assessment be requested by the respondent. In making this recommendation, the committee noted that the applicant lacked not only empathy but also emotional connection and clarity of what is appropriate engagement with others. The committee also observed that the applicant had been in a secure environment since the age of 17 and therefore the requested assessment may need to cover his ability to engage in a community-based setting prior to him being released.[13]
  2. [17]
    On 19 April 2022, the respondent considered the parole application in light of the PSA Report and formed a preliminary view to refuse it.  The applicant was advised of the preliminary decision and given the opportunity to make submissions in response.
  3. [18]
    On 29 August 2022, the respondent met to consider the application for a parole order and to have regard to the submissions made by the applicant in response to its preliminary decision.  The respondent decided to defer its decision and to write to the Offender Integration Unit to request that the applicant be reviewed for consideration of one-on-one intervention, targeting outstanding treatment needs as had been identified in the PSA Report and the sentencing remarks of White J of 15 September 2008.[14] On 30 August 2022, the respondent wrote to the applicant and told him of this outcome.
  4. [19]
    On 16 September 2022, the applicant filed an application to review the respondent’s failure to make a decision about his parole application within the statutory timeframe required under s 22 of the Judicial Review Act. 
  5. [20]
    On 28 September 2022, the respondent met and purported to make a final decision on the applicant’s application for a parole order – refusing to grant the application and consenting to the applicant re-applying after six months or having completed one-on-one treatment provided by QCS.  In advising the applicant of this decision, the respondent relevantly stated as follows:[15]

“At the meeting, the Board was informed that QCS have approved an individual treatment to be provided to you in custody.  The Board was further informed that you will be approached shortly with details regarding the treatment you will receive.  You are encouraged to accept the offer of treatment and to successfully participate and complete the treatment.”

  1. [21]
    On 4 October 2022, this review application came before the Court and the applicant was granted leave to amend his application to reflect that he was seeking a review of the respondent’s decision not to grant his application for parole under s 20 of the Judicial Review Act.
  2. [22]
    On 7 November 2022, the respondent re-considered the applicant’s application for parole and had regard to further submissions by the applicant. The respondent revoked its decision of 28 September 2022 and requested that it be provided with a an updated psychiatric risk assessment.  The respondent then deferred making a decision on the application before the receipt of the risk assessment.  The applicant was advised of this decision on the same day.[16]
  3. [23]
    On 11 November 2022, Consultant Forensic Psychiatrist Acting Professor Anna Lenardon was briefed by the respondent to assess and report on the applicant.  Dr Lenardon conducted a clinical interview and a psychiatric risk assessment of the applicant on 14 November 2022. 
  4. [24]
    On 25 November 2022, the respondent received a further amended review application from the applicant. On 5 December 2022, that review application was determined by this Court, at which time it was ordered that respondent make a final decision about the applicant’s parole application on or before 16 January 2023 (and communicate that to the applicant within 7 days).[17]
  5. [25]
    On 3 January 2023, the respondent received Dr Lenardon’s risk assessment report.[18]  This report stated relevantly as follows:[19]

“8.1Having considered the available information about previous offences and progress, Mr Rowlingson’s interview and the assessments conducted, and the research literature on factors associated with violent recidivism, I am not able to recommend that the Board consider granting Mr Rowlingson parole.  Given Mr Rowlingson’s personality structure with psychopathic tendencies, his lack of empathy and lack of insight into his future treatment needs, Mr Rowlingson continues to pose a moderate risk of violence. Prior to his release into the community, given the severity of his offending and his current attitudes, Mr Rowlingson will have to attend psychological treatment, in the form of individual sessions with a forensic psychologist. Based on Mr Rowlingson’s account, he was due to start treatment with Dr Bruce Watt in November 2022. Given the complexity of Mr Rowlingson’s presentation, it is expected that he will require at least 18 to 24 sessions to achieve the treatment goals described above.

8.2 Individual psychological treatment may identify further treatment needs prior to or in preparation to Mr Rowlingson’s future release, for example in relation to needing to attend a group offending program and to engage in a transition program.

8.3 The pre-requisite to a safe release in community is certainly the participation of Mr Rowlingson in psychological therapy to develop insight into his offending and risk associated with his personality structure.  The lack of insight into his risk remains a major outstanding treatment need.”

[Emphasis added]

  1. [26]
    On 4 January 2023, Dr Watt provided a further psychological treatment report regarding the applicant to the Offender Intervention Unit at Queensland Corrective Services.[20]  Dr Watt observed that the applicant had completed a Bachelor of General Studies with a major in Psychology and had subsequently commenced a Master of Forensic Mental Health and that these studies were beneficial by allowing the applicant to develop a greater understanding of himself and the emotional and cognitive component of empathy. Relevantly, Dr Watt made the following conclusions and recommendations: [21]

“Conclusions and Recommendations

  1. [T]his forensic psychology report outlines intervention and assessment in relation to Mr Rowlingson’s risk to the community and current treatment needs.  He has been incarcerated for over 15 years following the murder of his brother on the 15 October 2007.  Mr Rowlingson was cooperative and responsive to the three x two-hour assessment and intervention sessions.  Sessions reviewed risk factors for his offending and provided brief intervention pertaining to such characteristics.  He displayed good progress in response to the intervention, and it is considered that gains can be continued upon his release into the community.
  1. Mr Rowlingson has been compliant with prison requirements during the period of his incarceration with an absence of recorded breaches other than one recorded positive test sample in 2010.  He outlined a pattern of amicable interactions with prison officers and fellow inmates.  Mr Rowlingson has utilised his imprisonment productively in completing tertiary studies, vocational training, and sustained gainful employment.  Regular visits have occurred from his parents who express their intention to continue to support Mr Rowlingson pending his release.  Mr Rowlingson presents with an absence of health and mental health concerns.  He has appropriate plans for his return to the community.
  1. Assessment at the time of pre-sentencing identified concerns for narcissistic personality traits, interpersonally manipulative, and callous-unemotional traits.  Such characteristics were less prominent for the current evaluation.  Though exhibiting some grandiose self-perceptions, Mr Rowlingson presents as appreciative of other people’s abilities.  He is less controlling and manipulative compared to 14 years ago.  Continued difficulties with emotional empathy is evident, though Mr Rowlingson has formed [the] ability to perceive situations from other people’s perspectives and respond in a supportive manner.  Warmth was evident in his reflections for some interpersonal relationships.
  1. Consistent with the changes in presentation compared to pre-sentence, absence of prison misconduct, and generally amicable interactions with prisoners and staff, Mr Rowlingson was evaluated at lower risk of violent recidivism.  Utilising the VRS, Mr Rowlingson was considered in the low to moderate risk category of violent reoffending compared to other adjudicated offenders.  Based upon the current evaluation, Mr Rowlingson’s prison conduct, community supports, and progress in response to intervention, it is appraised that Mr Rowlingson is suitable for parole.
  2. Pending his release into the community, it is recommended that psychological intervention continue to focus upon the following areas:
  1. Continue to assist Mr Rowlingson in modifying his expression of personality characteristics.  He would benefit from continued assistance in recognising people’s perspectives, communicating in a transparent and non-evasive manner, and meeting his needs without manipulating, controlling or threatening others.
  2. Provide a forum whereby Mr Rowlingson can recognise and articulate his emotional experiences.
  3. Reinforcing Mr Rowlingson applying a deliberative decision making approach, whereby he considers his own emotional reactions, consequences of decisions, effects on others, and adherence to his own values.
  4. Assist Mr Rowlingson in implementing respectful and assertive communications with family, friends, and other persons in the community. 
  5. Practical supports in the community, including finding employment, constructive recreational activities, and establishing a pro-social and non-offending peer group.
  6. Continue to ensure that Mr Rowlingson does not have access to firearms in the community.
  7. Regular communication with Mr Rowlingson’s parents to review his transition from prison.”

[Emphasis added]

  1. [27]
    On 16 January 2023, the respondent met and considered the applicant’s application and all material received to date and formed the preliminary view that the application for a parole order should be declined. The respondent wrote to the applicant on 20 January 2023 and informed him of its preliminary view and those matters adverse to the success of his application and invited the applicant to respond.[22]
  2. [28]
    On 24 January 2023 the applicant wrote to the respondent expressing his frustration about the position he was in and asking them to take into account the following:[23]

“….since 2018 I have communicated with various level of QCS in an attempt to gain programs, courses or intervention. No one has indicated any ability or willingness to provide.”

6 March 2023 Decision

  1. [29]
    On 6 March 2023, the respondent met and considered the applicant’s application, his submissions and all further documents received.  The respondent decided to refuse to grant the application under s 193(1)(b) of the Corrective Services Act. 
  2. [30]
    For unexplained reasons, the applicant was not notified of this decision until 27 March 2023 when he received a 10-page letter from the applicant outlining the respondent’s reason for its decision.[24] This letter (which of course post-dates the decision) also advised the applicant as follows:[25]

“Although the parole board does not have the power to direct QCS officers to provide you with recommended treatment or with the timeframes within which it is to be given, the parole board intends to provide QCS with a copy of Lenardon’s report and to request that treatment be provided that is consistent with her opinion.” 

Statement of Reasons

  1. [31]
    The applicant requested a statement of reasons in relation to the respondent’s decision and the respondent produced a Statement of Reasons on 5 May 2023.[26] Those reasons overlap to some extent with the 27 March letter, but they set out the facts upon the decision to refuse parole were based, together with the reasons why the preliminary decision was made to refuse parole and then the subsequent decision of 6 March was made. These reasons are discussed in more detail and where relevant in the analysis below, but it is instructive to note the facts underpinning the decision to refuse parole were stated in the Statement of Reasons as follows:[27]  

“The decision was based on the following findings of fact:

  1. You are serving a sentence of life imprisonment for murder. You were also sentenced to 9 months imprisonment for misconduct with a corpse by interfering. You were sentenced to 12 months imprisonment for stealing, and 3 months imprisonment for unlawful use of a motor vehicle, each to be served concurrently with your sentence of life imprisonment.
  2. You committed the offences at the age of 16 years and 10 months. As you committed the offences as a minor, you were sentenced under the Juvenile Justice Act 1992.
  3. You pleaded guilty to the offences. You were 17 years old at the time of your plea.
  4. You have a parole eligibility date of 16 July 2022.
  5. You do not have a full-time release date.
  6. Your criminal history consists only of your index offending.
  7. You have demonstrated good custodial behaviour. You have provided clean urinalysis tests whilst incarcerated, most recently in May 2021.
  8. You have a high security classification.
  9. You have completed tertiary studies and a number of AEVET qualifications.
  10. You have maintained employment whilst in custody.
  11. You have a number of protective factors which may assist in mitigating the risk you pose to the safety of the community.
  12. You have suitable accommodation with the support of your parents,
  13. Substance abuse is not linked to your risk of reoffending.
  14. You are motivated to engage in employment and academic pursuits.
  15. You have identified a number of personal and professional supports in the community.
  16. Your protective factors alone are insufficient to mitigate the risk you pose to community safety.
  17. You demonstrate poor insight into why you committed the serious offence of murder.
  18. You demonstrate poor insight into your need for treatment and you have not provided a plan for how you will address your cognitive and behavioural treatment needs.
  19. You continue to pose a moderate risk of violence due to your personality structure with psychopathic tendencies, your lack of empathy and lack of insight into your future treatment needs.
  20. You have not completed intervention for your treatment needs however you have made efforts to engage in programs, despite your ineligibility for many programs. You have completed safety planning sessions with Dr Bruce Watt,
  21. You have outstanding treatment needs in relation to your personality structure, empathy deficits and lack of insight into your offending and the cognitions, behaviours and circumstances which lead to your serious violent offending.
  22. Given the complexity of your presentation, it is expected that treatment by individual intervention should involve at a minimum 18 to 24 sessions with a forensic psychologist.
  23. Until you engage in intervention, you are unlikely to develop and demonstrate sufficient insight into your motivations for offending.
  24. Until you are able to demonstrate insight into why committed your serious offences and are able to relate this to your current circumstances including your relationships with others, you pose an unacceptable risk to community safety.
  25. There are no reasonably practicable conditions or combination of conditions which would sufficiently mitigate the level of risk you pose to the community.
  26. A sufficient level of supervision is not able to be provided to you within the provision of a community-based order.
  27. You currently pose an unacceptable risk to the community and are not a suitable candidate for parole.” [Emphasis added]
  1. [32]
    The Statement of Reasons also set out the various documents considered by the respondent including: the sentence transcript, the court of appeal decision, the medical evidence at sentence; the more recent reports from Dr Watt and Dr Lenardon and the various submissions received from the applicant during the protracted parole board consideration. The reasons refer to the respondent having regard to the Ministerial Guidelines particularly Guideline 1.2 and to the “favourable factors” which were stated to include the following:[28]

“a. You have provided clean urinalysis tests whilst incarcerated, most recently in May 2021.

  1. You submitted a request for Accommodation Review for your parents’ residence at 4 Gwenda Drive, Westbrook. The Board considered an Accommodation Review dated 17 March 2022, which assessed the address as being suitable. The Board determined this address to be suitable for the purposes of parole at this time.
  2. At the time of the Board’s preliminary decision, you had completed three (3) safety planning sessions with Dr Bruce Watt, forensic psychologist. This was viewed by the Board as a positive step towards undertaking treatment and successful reintegration to the community.
  3. The Board was informed you were waitlisted for the Resilience program and that there would be an opportunity to commence this program as early as February 2023. The Board encouraged you to accept placement and successfully complete the program.
  4. The Board noted you had maintained employment whilst in custody, and you were employed as an industry overseer since November 2019.
  5. You have completed numerous AEVET courses during your incarceration. You had also participated in tertiary education, having completed a Bachelor of General Studies (Psychology). Your engagement in education will assist you considerably in your reintegration.
  6. You were a minor at the time of the commission of your offence, being 16 years and 10 months of age. The Board took into consideration, as the sentencing court did, your youth at the time of the commission of your offence, and the period of time which has passed since. The Board appreciated that your youth at the time of your offence is an important factor in assessing your risk of reoffending. The Board also appreciated you have developed further in your personality over the course of your incarceration as you have aged.”

[Emphasis added]

  1. [33]
    The reasons also noted the following information received from the applicant:[29]

“a. Since 2018 you have communicated with various levels of staff at QCS with a view to receiving treatment through programs, courses, and other interventions.

  1. You have never opposed the idea of completing interventions.
  2. A/Prof. Lenardon did not diagnose you with a personality disorder or psychopathy; and she noted your lack of anti-social traits, prior to and during your incarceration to be a positive, protective and mitigating factor.
  3. You held concerns regarding the 'formulations of the offence’ given by A/Prof. Lenardon. You strongly deny that your brother abused you. As to the 'second formulation’ (i.e. you did not have any clear reason(s) to kill your brother, but the offence constituted a ‘game’ driven by your psychopathic nature) given by A/Prof Lenardon, you state that this is ‘unlikely’, given the discussion in the report and recommendations given.
  4. Dr Watt was contracted by QCS to provide assessment, planning and interventions. You suggest the Board had not addressed Dr Watt’s report beyond the section in the Board's preliminary decision correspondence titled 'Safety Planning Sessions'.
  5. Dr Watt and AProf. Lenardon give opposing views regarding your suitability for parole.
  6. Your observations regarding the nature of the assessments conducted and the opinions of the experts.
  7. A major difference between the reports relates to A/Prof. Lenardon's emphasis on empathy.
  8. A/Prof Lenardon had recommended that you participate in 18-24 sessions of individual intervention with a forensic psychologist prior to your release. You had completed six (6) sessions approved through QCS.
  9. You consider that QCS are currently implementing Dr Watt’s recommendations regarding interventions in the community.
  10. If the Board required you to receive intervention in custody in accordance with the recommendation of Dr Lenardon, this would take you approximately one year to complete.
  11. The comment made by you during the parole interview that you do not need counselling was said in the context that you are of the view that receiving treatment from a counsellor would not be sufficient as it would be below the standard that you would receive from a clinical or forensic psychologist or psychiatrist.
  12. You had not previously and will not refuse to participate in interventions as you are acutely aware of your deficiencies.
  13. It is your intention to seek out professional services to continue with your interventions and improve your life outcomes.
  14. You attached your Relapse Prevention and Management Plan, including an Activity Schedule.”

[Emphasis added]

  1. [34]
    The respondent’s response to the applicant’s submission was set out as follows:[30]

“55. You made a number of submissions in relation to Dr Watt’s assessment of you. You commented that the Board had minimally addressed Dr Watt’s report.

  1. Dr Watt’s report was fully considered by the Board and formed part of the documents provided to you with the Board’s preliminary decision correspondence. This is discussed further below.
  1. In relation to your comment regarding engagement with a counsellor, the Board considered your explanation for making that comment, and agreed that you would benefit more from interventions delivered by a forensic psychologist, as recommended by A/Prof. Lenardon.
  1. In your submissions you raised concerns with the number of individual treatment sessions recommended by A/Prof. Lenardon. The Board noted you had made recent enquiries with QCS, which is the agency capable of arranging and offering one-on-one treatment sessions.
  1. The Board accepted that you have not received the intensive psychological treatment over the course of your incarceration you need, as contemplated by the sentencing court. The Board noted your submissions that you had also made enquiries over the years with QCS regarding access to interventions.
  1. The Board accepted you had taken many positive steps in terms of your engagement in education, maintaining employment, completion of AEVET courses to prepare you for transition into the community and also maintaining good custodial behaviour.
  2. However, despite this, the Board considered you still had outstanding treatment needs relating to your empathy deficit and lack of insight, which were present at the time you offended.
  3. The Board acknowledged you had engaged positively with Dr Watt, and at the time of the Board’s meeting on 6 March 2023, you had completed 6 individual intervention sessions.
  4. Although the Board does not have the power to direct QCS to provide you with the recommended treatment, nor does it have the power to influence the timeframes within which treatment is to be delivered, the Board would provide QCS with a copy of A/Prof. Lenardon’s report and request that treatment be provided to you that is consistent with her opinion.”

[Emphasis added]

  1. [35]
    Despite the positive aspects of the applicant’s parole application, parole was ultimately refused by the respondent on the basis of A/Prof Lenardon’s opinion [that the applicant’s risk to the community remained unacceptably high because of his outstanding treatment and the pre-requisite to the applicant’s safe release in the community is his participation in psychological therapy to develop insight into his offending and risk associated with his personality structure]. Most particularly, the statement of reasons analysed the outstanding concerns to be as follows:[31]

“Despite your positive, protective factors, A/Prof. Lenardon opined that you have outstanding treatment needs that are best addressed through psychological therapy while in custody in the following areas:

  1. You require further development into your insight around your personality and residual risk of violence.
  2. You require further insight into the need for future support evidenced through a detailed violence relapse prevention plan and this remains an outstanding treatment need.
  3. You continue to lack empathy in relation to the offence and the pain you have inflicted on others.
  4. You have made no attempts to explain your actions and continue to present as cold, callous and very matter of fact.
  5. Further exploration is required regarding the nature of your offending to enable a better understanding of the motive and factors involved.”
  1. [36]
    Against this background, and before turning to analyse the grounds of review, it is necessary to set out the relevant statutory framework within which the respondent’s decision was made – and the legal principles by which this application is to be determined. 

Relevant legal principles

  1. [37]
    It is instructive to observe from the outset that a review under the Judicial Review Act is not a merits review, but rather it is a review confined to the legality of whether the decision was one that the decision-maker (in this case, the respondent) was authorised to make under the relevant enactment (in this case, the Corrective Services Act). It is well established that a court’s function in a judicial review of an administrative action is confined to the legality of the decision as opposed to a general review of the decision or a substitution of the decision which the court thinks should have been made.[32] 
  2. [38]
    The respondent is created by Chapter 5, Part 2 of the Corrective Services Act.  One of its functions is to decide applications for parole orders [s 217]. A prisoner may apply for a parole order if they have reached their parole eligibility date [s 180]. Having received an application for a parole order, the respondent must then decide to either grant or refuse to grant the application [s 193(1)].
  3. [39]
    The grounds of review in the present case are based on a failure by the respondent to properly consider or to take into account certain matters. This ground can only be made out if a decision-maker fails to take into account a consideration that he or she is bound to take into account in making that decision.[33]  Those factors are determined by the construction of the statute conferring the discretion.[34]  The Corrective Services Act does not specify the criteria for making a decision under s 193. But the discretion is well established as a broad and unfettered one that must be exercised having regard to the subject matter, scope and purpose of the act.[35] Under s 3(1), that purpose is “community safety and crime prevention through the humane containment, supervision and rehabilitation of offenders.”  
  4. [40]
    The Ministerial Guidelines also provide policy guidance to assist the respondent in considering whether to grant an application for parole.[36]  These Guidelines are a relevant factor that must be taken into account by the respondent in making its decision, but they do not confine the otherwise broad and unfettered discretion referred to in the preceding paragraph.[37]
  5. [41]
    Both the respondent’s written outline and the Statement of Reasons referred to section 1 of these the Guidelines providing that the highest priority for the respondent in considering whether a prisoner should be granted a parole order “should always be the safety of the community.”[38]  I accept that. But as McMurdo J (as his Honour then was) also relevantly observed in McGrane v Queensland State Parole Board [2010] QSC 209, this is not the only consideration relevant to the required value judgment to be made by the respondent noting that “[t]he public is protected by the rehabilitation of offenders as well as by their incarceration.[39]  It follows that other sections of the Guidelines such as sections 2 and 5 (which are not specifically referred to in the respondents submission or the 5 May 2023 Statement of Reasons) as set out below, are also relevant to the respondent’ consideration:[40]  

“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 —

  1. the prisoner’s criminal history and any patterns of offending;
  2. the likelihood of the prisoner committing further offences;
  3. 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);
  4. 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;
  5. the recommendation for parole, parole eligibility date, or any recommendation or comments of the sentencing court;
  6. the prisoner’s cooperation with authorities both in securing the conviction of others and preservation of good order within prison;
  7. any medical, psychological, behavioural or risk assessment report relevant to the prisoner’s application for parole;
  8. any submissions made to Parole Board Queensland by an eligible person registered on the Queensland Corrective Services (QCS) Victims Register;
  9. the prisoner’s compliance with any other previous grant of parole or leave of absence;
  10. whether the prisoner has access to supports or services that may reduce the risk the prisoner represents to the community; and
  11. 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 –

  1. Length of time spent in custody during the current period of imprisonment;
  2. Length of time spent in a low security environment or residential accommodation;
  3. 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;
  4. intelligence information received from State and Commonwealth agencies;
  5. length of time spent undertaking a work order or performing community service;
  6. any conditions of the parole order intended to enhance supervision of the prisoner and compliance with the order;
  7. appropriate transitional, residential and release plans; and
  8. genuine efforts to undertake available rehabilitation opportunities.

…

5.3  Parole Board Queensland should consider including an electronic monitoring condition in the parole order for any prisoner granted parole, pursuant to s 200(2) of the Act. That is, a condition requiring the prisoner to comply with a direction by a corrective services officer, including a curfew or monitoring condition, in accordance with s 200A of the Act.

…

[Emphasis added].

  1. [42]
    But what does “taking into account a relevant consideration” entail?
  2. [43]
    As the following observations of Bowskill J (as the Chief Justice then was) reveal, a proper consideration is important and requires more than just “mere advertence” but rather that the respondent give “proper, genuine and realistic consideration” to the (relevant) matters raised by the applicant:[41]

“To take something into account in this context is to give it “proper, genuine and realistic consideration”.  Mere advertence to a matter required to be taken into consideration is not sufficient.  In considering this ground of review, care must be taken to avoid a “slide into impermissible merit review”.  However, as the Full Court of the Federal Court said 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.””

[Footnotes omitted – bold emphasis added]

  1. [44]
    Finally, and with these matters in mind, the following observations of Gibbs J in Buck v Bavone (1976) 135 CLR 110 are apposite to the function of the court on a judicial review where the decision-making power is discretionary: [42]

“In all such cases the authority must act in good faith; it cannot act merely arbitrarily or capriciously. Moreover, a person affected will obtain relief from the courts if he can show that the authority has misdirected itself in law or that it has failed to consider matters that it was required to consider or has taken irrelevant matters into account. Even if none of these things can be established, the courts will interfere if the decision reached by the authority appears so unreasonable that no reasonable authority could properly have arrived at it. However, where the matter of which the authority is required to be satisfied is a matter of opinion or policy or taste it may be very difficult to show that it has erred in one of these ways, or that its decision could not reasonably have been reached.”

[Emphasis added]

Analysis

  1. [45]
    Turning then to each of the grounds relied upon by the applicant.

Ground one: The respondent inflexibly applied a policy that the treatment must be undertaken in custody.

  1. [46]
    Before addressing the issue of the respondent’s alleged “inflexibly”, it is necessary to turn to the factual premises underpinning this ground, namely that the respondent did not ask QSC why the treatment was not made available to the applicant; and did not consider whether the necessary treatment was available in the community.
  2. [47]
    I accept at the outset that there were no enquiries by the respondent as to why the programs or interventions were not offered to the applicant by QCS.  But I am not satisfied that such a consideration or question is a matter of central relevance and importance to the ultimate issue to be reached by the respondent – that is, the level of  risk that the applicant may pose to the community.  This is not a case where the applicant was refused parole for refusing available treatment – rather he was refused parole because he remained untreated. In the present case, the respondent’s  decision to refuse parole was made knowing and accepting that the applicant had not been given access to the recommended treatment as identified as necessary during the sentencing process by QSC.[43]
  3. [48]
    I am also not satisfied, as the applicant submitted, that the respondent did not consider  the availability of the relevant programs in the community for the following three reasons:
    1. First: the Statement of Reasons expressly state as follows:

“Conditions of Parole

  1. The Board again considered whether you and community would benefit from you having a longer term of community supervision.
  1. The Board considered whether any conditions of parole could reasonably be imposed that would affect the level of risk you pose to the community if you were release on a parole order. Consideration was given to standard parole order conditions that may be imposed, including electronic monitoring and a condition that you engage in psychological treatment in the community.
  1. The Board also considered whether there were any reasonably practicable bespoke conditions which might be imposed to ensure your good conduct and to stop you from committing and offence.

100. However, the Board was of the view having regard to your Application as a whole, the level of risk you pose to the safety of the community was such that it could not be mitigated by way of parole conditions imposed by way of parole order.

  1. The Board was not satisfied that a sufficient level of supervision can be provided to you within the provision of a community-based order. In forming this view, the Board was conscious of the level of resources reasonably available to monitor such conditions and the level of monitoring that would be required in your case.”

[Emphasis added]

  1. Secondly: In recommending that the applicant be granted parole, it is implicit in Dr Watt’s report as set out in paragraph 26 above that such treatment (as he considered necessary) was available to the applicant in the community if the applicant was granted parole; and
  2. Thirdly: The Statement of Reasons makes it clear that the respondent preferred the views of Dr Lenardon (over that of Dr Watt) that the outstanding treatment issues needed to be undertaken in custody. 
  1. [49]
    The “inflexibility” ground relied upon by the applicant emerges from the observations of Applegarth J in Gough v Southern Queensland Regional Parole Board [2008] QSC 222,[44] that it could be inferred from the respondent’s reasons (in that case) that it had applied a policy, (without regard to the merits of the applicant’s case), that if the applicant had not completed the recommended programs to meet identified intervention needs whilst in custody, then parole should not be granted.[45]  In reaching this view the court in Gough made the following two relevant observations: [46]  
    1. First: The respondent’s reasons did not refer to the fact that the applicant had tried to access programs in custody (in that matter, group, sex-offender treatment programs) and to QCS’s failure to offer him access to those programs prior to his parole eligibility date;[47]
    2. Secondly: The respondent’s reasons did not address the ostensible availability of the relevant group sex offender treatment programs in the community, [48] and the Board did not have regard to matters including whether its concerns that the applicant may not be an acceptable risk could be met by imposing a condition of parole that the applicant undertake the recommended programs in the community
  2. [50]
    The facts of Gough are, however, distinguishable from the present facts. For example, in the present case:
  1. The respondent acknowledged that the applicant was not given access to the recommended treatment during his non-parole period, and that the applicant is and has been prepared to engage in treatment. And further, that the applicant is being provided with treatment (from Dr Watt at the time of the decision, and moving forward by an inhouse psychologist,[49] who the applicant stated is forensic psychologist Nicholas Smith); and
  1. Secondly: The respondent identified in its Statement of Reasons that no bespoke conditions of parole, or conditions requiring the applicant to attend psychological treatment in the community, would assuage the identified risk at this point in time.
  1. [51]
    I accept the Statement of Reasons placed great emphasis on the sentencing remarks of White J, providing that targeted intervention was required before the applicant could be released into the community.  But I am not satisfied in the circumstances of this case that it follows that the applicant has established that the respondent took the “inflexible approach” agitated by the applicant for three reasons:
    1. First, the respondent deferred its decision to obtain the updated psychiatric and psychological reports of Dr Lenardon and Dr Watt; and
    2. Secondly, the respondent preferred the views of Dr Lenardon, which included a number of concerns identified in paragraph 25 above; and 
    3. Thirdly, the correctness of that preference goes to the merits of the decision – which is not a matter for judicial review. 

Ground two: The respondent’s alleged failure to take into account a number of relevant considerations.

  1. [52]
    The first alleged failure to take into consideration is of the respondent’s failure to consider why the applicant had not undertaken the recommended psychological treatment in custody and his request to undertake this treatment in the community.
  2. [53]
    I am not satisfied that the respondent failed to take these matters into account for the reasons stated in paragraphs 47 and 48 above.
  3. [54]
    The next failure is said to be a failure by the respondent to take into account the availability of realistic intervention opportunities. It is reasonable to assume as I do that this is a reference to a failure to take into account the lack of realistic treatment opportunities available to the applicant whilst he has been in custody (leading up to his making an application for parole). 
  4. [55]
    I am not satisfied that the respondent failed to take into account such a consideration. Rather, the inadequacy of the treatment was (as set out in paragraphs 47 and 51(a)  above) expressly acknowledged by the respondent and clearly a matter on the respondent’s mind in seeking the further risk assessments it obtained from Dr Watt and Assoc Prof Lenardon in January 2023.
  5. [56]
    To the extent this failure is a reference to a lack of realistic future intervention opportunities, it is instructive that the respondent’s letter of 27 March 2023 (informing the applicant of its decision to refuse parole – set out in paragraph 30 above), expressly referred to providing QSC with Assoc Prof Lenardon’s report. It follows from this letter that the respondent clearly made its decision refusing parole knowing that there may be difficulties with the applicant accessing the necessary treatment in custody. But the rights or wrongs of this decision are not matters for judicial review.      
  6. [57]
    The third failure is said to be of the applicant’s genuine efforts to undertake available rehabilitative opportunities in custody. This is further particularised by the applicant  to be a failure by the respondent to note that the applicant has been accommodated  in the residential area of the prison since 1 April 2019.[50]
  1. [58]
    The respondent does not mention the PSA Report, nor the fact of the applicant residing in residential accommodation in its letter of 27 March 2023. However, the subsequent Statement of Reasons sets out the 71 documents considered by the respondent and relevantly states that:
    1. it had regard to the PSA;
    2. the applicant has “demonstrated good custodial behaviour”;
    3. the applicant has provided clean urinalysis samples, maintained employment, and completed tertiary studies and AVET qualifications; and
    4. if released to the community, the applicant has suitable accommodation arranged with his parents.
  2. [59]
    The fact that the respondent says it had regard to or considered a document does not by itself establish that they have, as a matter of substance, done that. But a court will not ignore such a statement.[51] The requisite degree of consideration is affected by the centrality to the issues of the matter with which it is said that the decision-maker did not engage and the prominence of that matter in the submissions in response.[52]
  3. [60]
    Overall, I am not satisfied that the respondent failed to consider the applicant’s genuine rehabilitation including that he was residing in residential accommodation at the prison for the following three reasons:
    1. First, the applicant’s conduct in custody and his access to suitable accommodation in the community were matters that the respondent expressly noted were in the respondent’s favour and favoured the granting of parole;
    2. Secondly, focusing on the failure to refer to the applicant being accommodated in residential housing at the prison would, in the circumstances of this case, be wrongly scrutinising the reasons “with an eye keenly attuned to the perception of error”;[53] and 
    3. Thirdly, the fact of the applicant living in residential accommodation is not a matter of “central relevance or importance” to the ultimate decision.
  1. [61]
    It is well established that the materiality threshold in an application for judicial review is met where there is a realistic possibility that the decision in fact could have been different.[54]  This is a question of fact in which the applicant bears the onus.[55] Even if I am wrong about the residential accommodation point raised by the applicant, I am otherwise not satisfied that a failure to take this fact into account was material to his parole application.

Orders

  1. [62]
    The application is dismissed.  I will hear the parties about costs.

Footnotes

[1]  The offences and penalties are as follows: misconduct with a corpse by interfering [nine months]; stealing [twelve months]; unlawful use of a motor vehicle [three months].  All of these sentences were ordered to be served concurrently.

[2]  The eligibility date was ordered by the sentencing judge White J (as her Honour then was).

[3]  At the time of the sentence on 15 September 2008, the applicant had served 426 days of pre-sentence custody, which was declared to be time served under that sentence.

[4]  Amended application filed 18 July 2023; The respondent accepts that the 6 March 2023 decision is a reviewable one under Part 3 of the Judicial Review Act because it is a decision of an administrative character made under an enactment; and that the applicant is a person aggrieved by the decision; [ss 4, 7 and 20(1)].

[5]  T1-3 ll 48-49.

[6]  Amended application; and paragraph 17 of the applicant’s outline of submissions.

[7]  A copy of the Sentencing Remarks of White J are at pages 28 to 39 of exhibit DGC-6 of the Affidavit of Darielle Glenna Campbell filed 4 July 2023.

[8]  Exhibit DGC-6 to the Campbell Affidavit at 33-35. 

[9]  Exhibit DGC-6 to the Campbell Affidavit at 38-39 .

[10] R v Rowlingson [2008] QCA 395 at [45] per Keane JA.

[11]  Ibid at [39].

[12]  Exhibit CBW-3 to the White Affidavit at 4-13.

[13]  Page 13 of the PSA Report.

[14]  Minutes of Board meeting 29 August 2022; at 101-102 of the Campbell Affidavit.

[15]  Exhibit DGC-32 to the Campbell Affidavit at 106.

[16]  Exhibit DGC-40 to the Campbell Affidavit.

[17]  Order made by Martin SJA on 5 December 2022.

[18]  Exhibit CBW-5 to the White Affidavit at 15-48.

[19]  Exhibit CBW-5 to the White Affidavit at 47.

[20]  Exhibit CBW–6 of the White Affidavit at 49-66. Dr Watt is a forensic psychologist who also provided a report at the sentence.

[21]  White Affidavit at 63-65.

[22]  SOR 3[20], 7[10], Exhibit CBW–11 of the White Affidavit at 110, 114; correspondence from the respondent to the applicant dated 20 January 2023, White Affidavit at 67-76.

[23]  Exhibit CBW-8 of the White Affidavit at 78.

[24]  Correspondence from the respondent to the applicant dated 27 March 2023, Exhibit CBW–9 of the  White Affidavit at 97-106.

[25]  Correspondence from the respondent to the applicant dated 27 March 2023, Exhibit CBW–9 of the White Affidavit at 101.

[26]  Exhibit CBW–11 of the White Affidavit at 108-137.

[27]  Exhibit CBW–11 of the White Affidavit at 111-112.

[28]  Exhibit CBW–11 of the White Affidavit at 115.

[29]  Exhibit CBW–11 of the White Affidavit at 26 and 127.

[30]  Exhibit CBW–11 of the White Affidavit at 127 and 128.

[31]  Exhibit CBW-11 to the White Affidavit at 131.

[32] Plaintiff M64/2015 v Minister for Immigration and Border Protection (2015) 327 ALR 8 at [23].

[33] Calanca v Parole Board Queensland [2019] QSC 34 at [62].

[34]  Ibid.

[35]  Calanca at [54]; Minister for Aboriginal Affairs v Peko-Wallsend Limited (1986) 162 CLR 24 at 39-40.

[36]  That is, the “Ministerial Guidelines to Parole Board Queensland” made pursuant to 242E of the Corrective Services Act. A copy of the guidelines effective at 31 December 2021 are exhibited to Exhibit DGC-1 to the Campbell affidavit at 1-11.

[37]  Calanca at [57], citing R v Rowlingson [2008] QCA 395 at 206-207, 208; Plaintiff M64/2015 v Minister for Immigration and Border Protection (2015) 258 CLR 173 at [54], [68].

[38]  Guidelines at 1.2, Exhibit DGC-1 to the Campbell Affidavit at 2.

[39] McGrane v Queensland State Parole Board [2010] QSC 209 at 26.

[40]  Although the Guidelines are in the material before the respondent. Guidelines at 1.2, Exhibit DGC-1 to the Campbell Affidavit at 2-6.

[41]  Calanca at [62].

[42] Buck v Bavone (1976) 135 CLR 110 at 118-119; See also Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611 at [130]-[137] per Gummow J.

[43]  For the reasons discussed in respondent’s submission at [40]-[42], I accept the present case is distinguishable from the facts of Sweeney v Queensland Parole Board [2011] QSC 223 (per Fryberg J) which was relied upon by the applicant.  

[44] Gough v Southern Queensland Regional Parole Board [2008] QSC 222 at [77] (“Gough”).

[45]  Gough at [73], [77].

[46]  For example, in Gough, the applicant was serving a four and a-half year term of imprisonment; had been assessed as a low risk of re-offending. But relevantly too, his parole eligibility date had passed; he presented a strong case for parole; and he was prepared to undertake group sex offender treatment programs in the community as a condition of parole.

[47]  Gough at [59].

[48]  Gough at [60].

[49]  SOR 3 [19], Exhibit CBW–11 of the White Affidavit at 110; email Offender Intervention Unit to Public Service Representative at the Board, 10 January 2023, Exhibit DGC-53 of the Campbell Affidavit at 326.

[50]  Paragraph 3.1 and 3.2 of the amended application.

[51] Carrascalao v Minister for Immigration and Border Protection (2017) 252 FCR 325; [2017] FCAFC 107 at [48] per Griffiths, White and Bromwich JJ.

[52] Singh v Minister for Home Affairs [2019] 267 FCR 200; [2019] FCAFC 3 at [37].

[53] Minister for Immigration and Ethnic Affairs v Wuu Shan Liang (1996) 185 CLR 259 at 272.

[54] MZAPC v Minister for Immigration and Border Protection (2021) 273 CLR 506; [2021] HCA 17 at [2] per Kiefel CJ, Gageler, Keane and Gleeson JJ.

[55] Minister for Immigration and Border Protection v SZMTA (2019) 264 CLR 421.

Close

Editorial Notes

  • Published Case Name:

    Rowlingson v Parole Board Queensland

  • Shortened Case Name:

    Rowlingson v Parole Board Queensland

  • MNC:

    [2023] QSC 253

  • Court:

    QSC

  • Judge(s):

    Muir J

  • Date:

    13 Nov 2023

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
Buck v Bavone (1976) 135 CLR 110
3 citations
Jump To
Cite 1 - (1976) 135 CLR 110
Cite 2 - (1976) 135 CLR 110
Cite 3 - (1976) 135 CLR 110
Calanca v Parole Board Queensland [2019] QSC 34
2 citations
Jump To
Cite 1 - [2019] QSC 34
Cite 2 - [2019] QSC 34
Carrascalao v Minister for Immigration and Border Protection (2017) 252 FCR 325
2 citations
Jump To
Cite 1 - (2017) 252 FCR 325
Cite 2 - (2017) 252 FCR 325
Carrascalao v Minister for Immigration and Border Protection [2017] FCAFC 107
2 citations
Jump To
Cite 1 - [2017] FCAFC 107
Cite 2 - [2017] FCAFC 107
Gough v Southern Queensland Regional Parole Board [2008] QSC 222
3 citations
Jump To
Cite 1 - [2008] QSC 222
Cite 2 - [2008] QSC 222
Cite 3 - [2008] QSC 222
Local Government and Ethnic Affairs v Gray (1994) 50 FCR 189
1 citation
Jump To
Cite 1 - (1994) 50 FCR 189
McGrane v Queensland State Parole Board [2010] QSC 209
3 citations
Jump To
Cite 1 - [2010] QSC 209
Cite 2 - [2010] QSC 209
Cite 3 - [2010] QSC 209
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 SZMTA (2019) 264 CLR 421
2 citations
Jump To
Cite 1 - (2019) 264 CLR 421
Cite 2 - (2019) 264 CLR 421
Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259
2 citations
Jump To
Cite 1 - (1996) 185 CLR 259
Cite 2 - (1996) 185 CLR 259
Minister for Immigration v Eshetu (1999) 197 CLR 611
2 citations
Jump To
Cite 1 - (1999) 197 CLR 611
Cite 2 - (1999) 197 CLR 611
MZAPC v Minister for Immigration and Border Protection (2021) 273 CLR 506
2 citations
Jump To
Cite 1 - (2021) 273 CLR 506
Cite 2 - (2021) 273 CLR 506
MZAPC v Minister for Immigration and Border Protection & Anor [2021] HCA 17
1 citation
Jump To
Cite 1 - [2021] HCA 17
Plaintiff M64/2015 v Minister for Immigration and Border Protection (2015) 258 CLR 173
2 citations
Jump To
Cite 1 - (2015) 258 CLR 173
Cite 2 - (2015) 258 CLR 173
Plaintiff M64/2015 v Minister for Immigration and Border Protection (2015) 327 ALR 8
1 citation
Jump To
Cite 1 - (2015) 327 ALR 8
R v Rowlingson [2008] QCA 395
3 citations
Jump To
Cite 1 - [2008] QCA 395
Cite 2 - [2008] QCA 395
Cite 3 - [2008] QCA 395
Reece v Webber (2011) 192 FCR 254
2 citations
Jump To
Cite 1 - (2011) 192 FCR 254
Cite 2 - (2011) 192 FCR 254
Singh v Minister for Home Affairs [2019] 267 FCR 200
2 citations
Jump To
Cite 1 - [2019] 267 FCR 200
Cite 2 - [2019] 267 FCR 200
Singh v Minister for Home Affairs [2019] FCAFC 3
2 citations
Jump To
Cite 1 - [2019] FCAFC 3
Cite 2 - [2019] FCAFC 3
Sweeney v Queensland Parole Board [2011] QSC 223
1 citation
Jump To
Cite 1 - [2011] QSC 223

Cases Citing

No judgments on Queensland Judgments cite this judgment.

1

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