Nijp v Parole Board Queensland
[2024] QSC 104
To print this judgment please return to the case and click on the PDF icon
next to the
case name. For court use, a full PDF copy is required or preferred.
Exit Distraction Free Reading Mode
Please Note: You are about to print a copy of the onscreen
version of
this judgment. For court use, a full PDF copy of the judgment is required or preferred. Please
return to
the case for PDF printing options.
- Notable Unreported Decision
- Nijp v Parole Board Queensland[2024] QSC 104
- Add to List
Nijp v Parole Board Queensland[2024] QSC 104
Nijp v Parole Board Queensland[2024] QSC 104
SUPREME COURT OF QUEENSLAND
CITATION: | Nijp v Parole Board Queensland [2024] QSC 104 |
PARTIES: | PHILIP NIJP (applicant) v PAROLE BOARD QUEENSLAND (respondent) |
FILE NO: | 1589 of 2024 |
DIVISION: | Trial Division |
PROCEEDING: | Application for statutory order of review |
ORIGINATING COURT: | Supreme Court of Queensland at Brisbane |
DELIVERED ON: | 30 May 2024 |
DELIVERED AT: | Brisbane |
HEARING DATE: | 17 April and 23 May 2024 |
JUDGE: | Applegarth J |
ORDER: |
|
CATCHWORDS: | CRIMINAL LAW – SENTENCE – POST-CUSTODIAL ORDERS – PAROLE – BOARDS, TRIBUNALS ETC: POWERS, DUTIES AND CONSTITUTION – FAILURE TO TAKE INTO ACCOUNT MATERIAL CONSIDERATIONS – where the applicant was refused parole by the Parole Board because he had not completed the Inclusion Sexual Offenders Program (ISOP) – where the ISOP was offered infrequently, where one was not presently scheduled, and where there was a waitlist for it – where the Parole Board did not know when, if ever, the applicant might undertake the ISOP – where an equivalent program was available in the community – whether the Parole Board failed to take into account relevant considerations, including the risk to the community if the applicant did not complete the ISOP until closer to the end of his sentence or not at all, and the early availability of equivalent treatment in the community Judicial Review Act 1991 (Qld), s 30 Australia Pacific LNG Pty Limited v The Treasurer, Minister for Aboriginal and Torres Strait Islander Partnerships and Minister for Sport [2019] QSC 124, cited Johnson v Parole Board of Queensland [2020] QSC 108, cited Johnston v Central & Northern Queensland Regional Parole Board [2019] 1 Qd R 32, considered LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] HCA 12; (2024) 98 ALJR 610, cited Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24, cited Queensland Parole Board v Moore [2012] 2 Qd R 294, considered |
COUNSEL: | The applicant was self-represented, assisted by a McKenzie friend S P Colditz for the respondent |
SOLICITORS: | The applicant was self-represented Legal Services, Parole Board Queensland for the respondent |
- [1]The applicant applied for parole. He had an abundance of matters in his favour. He was refused parole in January 2024 and again in May 2024, essentially because he had not completed the Inclusion Sexual Offenders Program (ISOP).
- [2]The applicant is willing to undertake the ISOP.
- [3]The reasons he has not undertaken it include:
- that after being seriously assaulted in custody he was transferred to a protection unit at Woodford Correctional Centre and the ISOP is not offered there;
- he had genuine concerns about his safety if he was transferred to Wolston Correctional Centre to wait there for when the next ISOP might be offered;
- no ISOP is currently on offer and it is uncertain when it will next be held;
- in any case, there is a waitlist for the program and the applicant will be at the bottom of that list;
- any ISOP at Wolston can only take a finite number of participants when it is eventually offered.
- [4]No one can therefore say, and the Parole Board does not know, in what year the applicant might undertake the ISOP at Wolston following his transfer there.
- [5]On 14 May 2024, an Acting Professional Board Member of the Board emailed an officer within Queensland Corrective Services (QCS) and wrote:
“I know this is a ridiculous question but is there any chance that he will be offered a place?”
- [6]That was not a ridiculous question. It is a pertinent question for which the Board should have obtained an informative answer. Instead, it was advised by QCS that it would ensure the applicant is transferred to Wolston “whilst he is motivated with a view of (sic) having him participate in the next available ISOP, which will be in the next financial year”. That response did not answer the “ridiculous question”. The words “with a view” suggest the hope or aim that he might participate in the next available ISOP. There was no statement of the chance or likelihood, let alone an assurance, that he would. The QCS response did not say that the applicant would be prioritised so as to give a greater chance to participate in the next available ISOP. One might think it unfair on other persons who are waitlisted and who have long been waiting for a place on an ISOP for the applicant to jump the queue.
- [7]Therefore, when it made its decision to refuse parole on 15 May 2024, the Board did not know what chance the applicant had of being offered a place when the ISOP is next conducted at Wolston.
- [8]The Board refused parole on 15 May 2024 in circumstances in which it apparently did not know:
- how many individuals are currently waitlisted for an ISOP;
- how many individuals undertake the course each time it is offered; and
- what chance the applicant has of completing the ISOP this year, next year, or at any time thereafter.
- [9]An equivalent course to ISOP is available in the community. The Board was advised by QCS on 9 May 2024 that the applicant would be considered a likely candidate for funded “individual intervention in lieu of group based intervention should he be released to the community, given his ISOP recommendation”. If individual intervention is approved, then sessions occur at least once a fortnight, however, double sessions can be requested. Overall, it would take about six months from approval by the panel to successful completion of 10 sessions. Service providers are available in the area the applicant would live in with his partner if released on parole subject to conditions that would include successfully completing the program.
- [10]In submissions to the Board and in submissions to this Court, the applicant has reiterated his preparedness to undertake such a program as part of the conditions of his parole and in circumstances in which the recommended ISOP program is not currently available to him in any correctional centre in Queensland.
- [11]The Board did not apparently consider the relative effectiveness in the applicant’s case of the ISOP and an equivalent program in the community in reducing his risk of reoffending.
- [12]More importantly, the Board did not consider the relative benefit in terms of reducing the risk of reoffending of:
- the applicant undertaking an equivalent program in the community in the coming months and having a long period under supervision in the community until his sentence expires in February 2028; and
- the applicant remaining in custody for an uncertain period until he can obtain a place on an ISOP and then, assuming he is released on parole after completing it, having only a short time or a much shorter time under supervision in the community.
- [13]Not knowing how many people are currently waitlisted for the ISOP and how many persons can undertake the course when it is eventually offered, the Board did not know whether the applicant is likely to get a place on an ISOP program in the next financial year, in 2025 or even later. It did not consider:
- the likelihood of the applicant actually being able to complete an ISOP in custody in the next few years (not simply when the ISOP might next be scheduled); and
- the benefits and reduced risk of reoffending were a present grant of parole to be conditioned on satisfactory completion of an equivalent program.
- [14]It did not consider these questions in the specific circumstances of the applicant who:
- had no convictions prior to the two offences for which he is currently serving his sentence;
- has been assessed as having a low-moderate risk of reoffending;
- paid for and engaged in private counselling while in custody;
- has a history of employment in the community and in custody and has demonstrated good custodial behaviour; and
- has a support network in the community that includes his partner, his family, his partner’s family, friends, and a counsellor.
- [15]In summary, and for the reasons that I will develop after referring in greater detail to the facts, the Board did not consider, having regard to these and other individual circumstances, the benefits of the applicant undertaking an equivalent program in the community in the coming months (and thereafter having a long period of supervision) as against the benefits of possibly undertaking an ISOP in custody at some uncertain time in the future and the applicant having a short or much shorter period of supervision in the community.
The issue
- [16]The issue is whether these matters establish a ground to judicially review the decisions of the Board, particularly the operative decision made on 15 May 2024.
Background
- [17]The applicant was born in 1992. After completing school he had consistent employment. He had no psychological problems, did not use drugs, and only occasionally consumed alcohol. A single man, he engaged in pro-social recreational activities including volunteering. In early 2019, he committed two related, serious offences. QCS described them as “opportunistic in nature”.
- [18]A few days before the offending, he had met the complainant online. They arranged to meet in the car park of a local pool. After some discussion, the complainant left in her car, and, unbeknown to her, the applicant followed. They had a further discussion in her driveway about assisting her. The applicant then left.
- [19]Later that day, when the complainant was out, the applicant returned, leaving his car outside. He went into the home. When the complainant returned inside, the applicant commenced touching her breasts. He then forcibly removed her clothing and raped her. A few days later, when interviewed by police, the applicant claimed that the intercourse was consensual.
- [20]The applicant subsequently pleaded guilty to offences of burglary and rape. In imposing an eight-year sentence, the sentencing judge took account of the aggravating circumstance of the burglary and the complainant’s vulnerability. Given the applicant’s lack of criminal history, that the offending appeared to be “completely out of character”, the early plea, and the applicant’s support in the community, he was granted a parole eligibility date after serving one-third of his eight-year sentence. This gave him a parole eligibility date of 17 October 2022.
- [21]Upon his entry into custody in early 2020, the applicant was assessed on the STATIC-99R risk assessment instrument with a score of three, namely having a moderate-low risk of sexual reoffending. At the time of the assessment, he gave an account of the offence which varied from the factual basis upon which he was sentenced. He claimed that he returned to the complainant’s residence that afternoon, after being invited to do so, and that the intercourse had been consensual. This claim suggested that he needed to be referred for specialised assessment for sexual offending programs.
- [22]Not long after the applicant was imprisoned at Borallon Correctional Centre, he was assaulted numerous times. At least one of the assaults, committed on 13 March 2020, came to the attention of the authorities and, for the applicant’s safety, he was transferred to Woodford Correctional Centre. The reasons he was transferred to Woodford Correctional Centre, where he was able to be accommodated in a secure unit, rather than to the Wolston Correctional Centre, are unclear. It may have been the greater overcrowding at Wolston. Records also indicate that he thought he would be “more comfortable” at Woodford. Against the background of the assaults he had experienced, this probably meant that he would feel safer in a secure unit there than at Wolston. At the time of his transfer to Woodford, the applicant had not been identified as someone who would be most suitable for an ISOP (which is only available at Wolston), and so the transfer to Woodford was not thought to adversely affect his treatment pathway at the time, which would have been a Getting Started Preparatory Program (GSPP) and a Medium Intensity Sexual Offender Program (MISOP), which were both available at Woodford.
- [23]The applicant took responsibility for his own rehabilitation. Despite his financial position and the financial position of his family and his partner (who had previously been a friend, but with whom his relationship developed after he was incarcerated), the applicant funded 12 private counselling sessions between August 2021 and June 2022.
- [24]The Forensic and Clinical Psychologist who provided those sessions gave a report dated 21 August 2023, which was made available to the Board in support of the application for parole. She referred to a number of matters in the applicant’s background and personality, including his social naivety, limited experience with intimate relationships, learning difficulties, and limited awareness or misconception of consent cues. Their 12 sessions focused on developing better awareness of consent issues and many other strategies. She reported that the applicant “expressed genuine shame and remorse for his offending and seemed highly motivated to never reoffend”. For example, he took notes during sessions.
- [25]The therapy sessions were terminated at a time when it was anticipated that the applicant would continue with his rehabilitation, either in custody or in the community. At the end of these sessions, the applicant was “genuinely committed to pursuing a healthy, pro-social and offence-free life”, and the expert thought that he was more likely than not to succeed with those pursuits, given his few risk factors for recidivism and several protective factors, including the continued support of his partner and family.
- [26]Between March and May 2023, the applicant undertook the GSPP. The completion report recorded the applicant’s version of the offending. It gave an account of having left the complainant’s house, but having been invited back about three hours later, of having entered the house and then matters developing. He reflected that after leaving he felt embarrassed and ashamed because what he did was wrong and disrespectful. The applicant stated:
“I take full responsibility and am very remorseful for what has happened and accept the fact I made a mistake and accept the charges ...”
- [27]Still, his account was inconsistent with the factual basis upon which he pleaded guilty. In discussing the differences between his recollection and the official version, the applicant stated that he “must have missed some non-verbal cues” and speculated about the complainant’s motivation in making the complaint.
- [28]The applicant was found to have been an engaged participant in the GSPP, contributing to discussions and activities. He did, however, present as anxious. He also was identified as having a strong work ethic, being goal-oriented, focused, patient, and caring. Presumably, because of the variance between the applicant’s recollection of events and the factual basis upon which he was sentenced, the exit report recommended that the applicant participate in the Inclusion Sexual Offending Program (ISOP).
- [29]Therein lies the problem: being waitlisted for an ISOP along with many other persons above the applicant on the waitlist who remain waiting to do a program, available only to a finite number of participants each year, and which has not been offered to anyone in the last year.
- [30]By mid-2023, the applicant remained in a secure unit at Woodford. He was prepared to do the ISOP, but continued to be concerned that a transfer to Wolston would expose him to a lower level of protection during the period he had to wait for the ISOP program, and a greater risk of being assaulted, than at Woodford. He associated Wolston with a similar level of risk of being assaulted to that which he had encountered at Borallon where he was badly assaulted. This perception may have been erroneous.
- [31]His evidence, which I accept, is that other people have the same issue as he did and felt too unsafe to transfer. He recounted being called upstairs at Woodford by persons involved in programs, telling them that he was more than happy to do the program, but that he was concerned about being transferred due to his safety concerns. According to the applicant, he was not assured that he would be in a protection unit at Wolston. His evidence was that there probably would be “a heap of people at Woodford” ready to transfer to Wolston whenever it in fact starts the ISOP.
- [32]The hearing on 17 April 2024 was adjourned for review on 26 April 2024. QCS clarified at the review that day that Wolston is a protection jail and sexual offenders there face less safety issues than in other prisons. If the applicant’s safety concerns related to the nature of his offending, rather than specific compatibility issues with particular prisoners, then Wolston would provide a comparable, if not improved, safety environment for the applicant than he has at Woodford. QCS suggested that, if necessary, the applicant could be motivated to agree to transfer to Wolston to undertake the ISOP, by explaining what would be available to him there, as opposed to being in a protection unit within a mainstream prison.
- [33]QCS advised in April 2024 that when the ISOP was next scheduled to commence, the applicant “would be considered alongside other prisoners and offered a place as dictated by the waitlist and his willingness to engage”.
The application for parole in 2023
- [34]It is unnecessary to detail the many positive factors that were found by the Board to support the granting of parole, subject to appropriate conditions. They included his participation in the GSPP, the availability of suitable accommodation to reside in with his partner, a detailed Relapse Prevention Plan that showed some insight into his offending and outlined specific supports that the applicant has in the community to help prevent relapse, vocational courses that he had undertaken in custody, his engagement with the Community Re-entry Services Team (CREST), his engagement with private counselling while in custody, his employment while in custody, including his advancement to a position as an industry team leader, his good behaviour in custody, and the support that he has in the community from his partner and several other individuals who provided references and indications of support.
- [35]In support of his application to the Board, the applicant advised that as a result of participating in the GSPP he had come to learn a lot about the unacceptable actions that led him to be charged, and that he was “remorsefully sorry” to everyone who had been affected by his actions, especially the victim.
- [36]He advised that he was aware that the Board would want him to start and complete “a MISOP”. The applicant presumably meant to refer to an ISOP. He noted that it was not offered at Woodford and referred to his concerns about transferring from the residential unit in which he resided. He advised:
“I’d be very grateful and willing to complete MISOP (sic) on the outside of prison as part of the Parole Board’s terms and conditions based on my good behaviour and low risk of reoffending. It is likely I’ll be able to start and complete the MISOP (sic) course sooner and finish it sooner in classes held out of prison than if I were still in prison.”
- [37]His partner, writing in support of his application, indicated her support in ensuring that the applicant attended any meetings, courses and appointments.
- [38]A Parole Suitability Assessment was undertaken based on an interview on 18 July 2023. It assessed his sexual recidivism risk based on the STATIC-99R assessment tool as low-moderate.
- [39]It reported that he did not wish to transfer from his current unit at Woodford because he felt safe there, and that there were a lot of other prisoners within the unit who were in custody for the same reason as he was.
- [40]After being asked in the interview about the circumstances of his offending, the applicant initially advised that he did not wish to discuss the matter because “the last time [I] spoke truthfully about what had happened [I] got a bad exit report from the GSPP”. He advised that he pleaded guilty to the offending “so [I] wouldn’t put the victim through further pain and because [I] didn’t want it to drag out if sentencing was taken to trial”. Again, he asserted that he had been invited back to the house by the complainant because she asked him to help her move some furniture.
- [41]In September 2023 the Board was advised that there was “no clear schedule for the Inclusions Program at Wolston Correctional Centre”, and that it was planned that there would be some individual intervention designed to motivate the applicant to transfer.
The Board’s preliminary decision of 1 November 2023
- [42]The Board met on 1 November 2023. It identified numerous favourable factors and, unsurprisingly, identified, based on the GSPP completion report and the Parole Suitability Assessment dated 21 July 2023, that the applicant had outstanding treatment needs. The Board thought that the applicant’s responses demonstrated little insight into his offending. It concluded that it would have “greater confidence” in his release if he completed a further sexual offending program. It gave the applicant an opportunity to provide further submissions.
- [43]The further submissions reiterated that the applicant was assessed as low risk, observed that more than 150 days had passed since the application had been lodged, and noted that the applicant was not refusing to do any courses or programs, but requesting to do them in the community.
The decision of 25 January 2024
- [44]The Board’s decision reiterated many of the factual matters that I have already canvassed and which appeared in its preliminary decision. These included numerous favourable factors and the applicant’s outstanding treatment need that arose from the matters I have mentioned in connection with the GSPP program and the Parole Suitability Assessment, in which he accepted limited responsibility for his sexual offending and limited insight into his motivation for offending.
- [45]The Board noted that in submissions received on 25 November 2023 the applicant had indicated that he was not refusing to do programs and courses in custody. The Board noted the reason that he was unwilling to transfer to Wolston was due to “fear for your own safety”. The Board noted that in his submission of 25 November 2023 the applicant confirmed that he was not refusing to do programs and courses in custody, instead, he was asking to do them in the community.
- [46]The Board advised that the information before it was that an ISOP was likely to be scheduled in April/May 2024.
- [47]Notwithstanding the many positive aspects of the application, the Board stated it was “required to determine the level of risk he posed to the community” at the time of its decision, and determined that no new information had been contained in the further submissions. It remained of the view that the applicant “posed an unacceptable risk to the safety of the community at this time”.
- [48]The Board considered whether conditions, such as electronic monitoring or a curfew, could be imposed to reduce the applicant’s risk to a suitable level. However, it formed the view that “there were no conditions which could reasonably be imposed that would sufficiently ameliorate the risk he posed to the community at that time” (being the time the decision was made on 25 January 2024).
- [49]Importantly, while noting that its information was that an ISOP was likely to be scheduled in April/May of 2024, the Board did not address whether the applicant had any realistic chance of being included in that program because of the numbers who were waitlisted for it.
- [50]It did not refer in its detailed reasons to the benefits of undertaking an equivalent program to ISOP in the community, and whether such a program was likely to yield greater benefits in terms of reducing community risk than an ISOP in custody at some uncertain future date closer to the applicant’s full-time release date.
This proceeding
- [51]In this proceeding the applicant is self-represented, but supported by his partner to whom he has given a power of attorney. I allowed Ms Lucas to speak on behalf of the applicant who appeared in person at the hearing on 17 April 2024 and by video-link from Woodford on subsequent hearings.
- [52]Because of the unresolved issues and concerns that emerged at the hearing on 17 April 2024, I adjourned the matter for a review hearing on 26 April 2024. At the review hearing I received a further affidavit concerning the possibility of the applicant being transferred to Wolston. Counsel for the Board, who assisted the court process on legal and other issues, advised that the President of the Parole Board had indicated a preparedness to reconsider the matter. He asked for the adjourned hearing of the matter to be listed in late May to enable submissions to be made and reconsideration by the Parole Board. I granted the requested adjournment and gave substantial reasons on 26 April 2024 for doing so.
- [53]As for the ISOP program I noted that, contrary to earlier indications, none was conducted in April/May 2024 due to operational reasons. There was no specific start date for an ISOP in the 2024/2025 financial year. I noted that even if a course started, for example, in September 2024, there was no guarantee that the applicant would be given a place on it. All that could be said was that he would be considered alongside other prisoners and offered a place as dictated by the waitlist.
- [54]I observed that these matters brought into focus “the importance of consideration of his obtaining the benefits of an ISOP program sooner and more effectively through individual counselling, which he has been prepared to undertake, and courses in the community”. I observed that, given the history of the matter, and what would seem to be an inability to undertake an ISOP program at Wolston through no fault on the applicant’s part, he had remained in custody well beyond his parole eligibility date.
- [55]I also mentioned the clear stance taken by Ms Lucas in which she clearly articulated the need for the applicant to stop minimising his role in the offending, and that she would not tolerate him doing so.
- [56]I concluded my observations as follows:
“In circumstances in which he has been delayed from even getting on a waitlist, let alone completing an ISOP Course, it would seem that the focus of attention is whether the benefits of an ISOP Course can be gained sooner and just as effectively by clear conditions that require him to undergo counselling and treatment and a similar course in the community, in circumstances in which the Parole Board finds and has found that he has supports in the community. I will not repeat all of them. There is his relapse-prevention plan. They are stable accommodation and the support of Ms Lucas, parents, family and persons who provided references to the Court. Those references were not before the Parole Board.
It seems to me that active consideration must be given to the utility of not having the Corrective Services system overcrowded to the extent of the applicant remaining in custody for an inordinate length of time, sitting on a waitlist that may remain, in his case, a waitlist. It is a sad fact that the Parole Board must confront, and the Courts confront, whether as a result of COVID or as a result of management or anything else, prisoners just staying on waitlists to do Substance Abuse Courses, Sexual Offence Courses or something. Here you have someone who has been objectively assessed as being a low risk of committing a further sexual offence.
This sexual offence was serious, but an aberration. He has to confront his responsibility to a greater extent. But treatment by an appropriate person and courses in the community as a condition of parole might enable him to confront it more effectively and certainly more quickly than sitting at Woodford Correctional Centre or sitting in Wolston Correctional Centre on a waitlist. Those are the matters that the Parole Board no doubt will consider.”
The information available to the Board for its 15 May 2024 decision
- [57]On 9 May 2024, Ms Lucas, on the applicant’s behalf, communicated certain matters which she asked be taken into account by the Board when reconsidering the application. These were that an overwhelming number of other prisoners at Woodford included prisoners in the applicant’s unit who had applied to transfer to Wolston to do programs, but who had been declined due to Wolston being excessively overcrowded, and it being unknown when individual programs would be scheduled. Her information was that the Wolston Correctional Centre is reluctant to take on additional prisoners who are not guaranteed a place in the program, or when the starting date for the program is unknown. Ms Lucas noted that the last ISOP program was held before June 2023, and no one could provide a specific date when the next ISOP program was likely to start. She submitted that the applicant was likely to be on the waiting list permanently. Also, even if an ISOP program started in the next financial year, it would be unlikely that the applicant would be able to do the program, since there would be “at least 15 months’ worth of other people on the waiting list” prior to the applicant who would remain on the waiting list.
- [58]The submission was that if the applicant did not get on the program in the next financial year, he would likely finish his full sentence while doing the program, or have only a few months on it before completing his sentence.
- [59]The Board was asked to consider the chance that the applicant would be able to complete the ISOP program in circumstances where there was an extensive waiting list and irregularity in it being held. The submission urged the Board to consider my observations about the applicant doing an equivalent program in the community.
- [60]On 9 May 2024 QCS advised the Board that once the applicant was confirmed to be waitlisted for the ISOP and program staff were able to confirm a more specific timeframe for the program to commence, a bed would be held for him at Wolston and a transfer could occur within five to 10 days. However, QCS did not have a commencement date for the ISOP. At best, QCS was anticipating that it would commence before December 2024, but could not be more specific about the commencement date.
- [61]Faced with what QCS described as “the likely unavailability of ISOP in the near future at Wolston”, it made inquiries with Community Corrections about the availability of “appropriate alternate treatment in the community”.
- [62]It and the Board were advised on 9 May 2024 that the applicant would be considered “a likely candidate for ORMS-funded individual intervention in lieu of group-based intervention, should he be released to the community, given his ISOP recommendation”.
- [63]If, however, he was not granted parole release by the Board, he would remain waitlisted for an ISOP program that would not commence until some time into the next financial year at Wolston. If individual intervention was approved, it would take three to four weeks for the first session to be arranged, with sessions at least once a fortnight with the potential to request double sessions in certain instances. Overall, it would take about six months from the panel’s approval to fund individual intervention through to the successful completion of 10 sessions.
- [64]On 13 May 2024, an Acting Professional Board Member of the Parole Board canvassed the possibility of the applicant being transferred to Wolston as soon as possible, waitlisted for ISOP, and commencing one-on-one counselling of about 10 counselling sessions, after which the Board would obtain a report. Her email to QCS on that day continued:
“If that report states the prisoner has demonstrated insight into his offending and remorse, then if the prisoner’s placement on ISOP program is still a long way off, we can then feel more comfortable about releasing him to do an ISOP-equivalent course in the community. If, on the other hand, the report states that he needs to do ISOP, then it does not matter how (long) it takes him to be accepted on to a program (he has until 2028).”
- [65]On 14 May 2024, further advice was given by QCS to the Board about the matter which had earlier been canvassed of individual intervention to motivate the applicant to undertake the ISOP. QCS program officers had met with the applicant that afternoon where he reiterated that he would be willing to do the ISOP program, but remained concerned about his safety at Wolston. The applicant was advised that there was no specific intelligence information that suggested that his safety at Wolston was at risk, and towards the end of the conversation he indicated that he understood that he would need to go to Wolston to do the program, and that he would be willing to transfer if he was adequately supported in the process. In short, the applicant confirmed that he was willing to engage in the ISOP program, such that individual treatment to motivate him to do so was not thought by QCS to be necessary.
- [66]On 14 May 2024, the Acting Professional Board Member emailed QCS, noting:
“We have no idea when he is likely to be offered a place on ISOP or transferred to Wolston for that purpose.”
She mentioned the concern that I had expressed about this matter and the alternative that the applicant be granted parole on the condition of doing the outstanding course in the community. She asked whether the applicant’s name had been placed on the waitlist for ISOP and then posed the following question:
“I know this is a ridiculous question, but is there any chance he will be offered a place?”
- [67]The QCS response did not answer these questions. It did not advise whether the applicant’s name was even on a waitlist. As to whether there was “any chance” that the applicant would be offered a place on the next ISOP program, all that was said was:
“I can advise that should Mr Nijp receive a CNG with a recommendation to participate in ISOP, we will ensure he is transferred to Wolston whilst he is motivated with a view of (sic) having him participate in the next available ISOP, which will be in the next financial year.”
- [68]Importantly for present purposes, at the time it made its decision on 15 May 2024, there was no evidence that the applicant was even on a waitlist for ISOP and, to quote the Board’s 14 May 2024 email, it had “no idea when he is likely to be offered a place on ISOP or transferred to Wolston for that purpose”. QCS simply indicated that at the appropriate time he would be transferred to Wolston “with a view” to having him participate in the next available ISOP. This was a statement of intent. Nothing was said about the length of the waitlist, the likely number of places on the next program, or the chance that the applicant would be offered a place on a program in the next financial year, or even the financial year after that.
The Board’s decision of 15 May 2024
- [69]The Board considered the application for parole at its meeting on 15 May 2024. It canvassed the applicant’s concerns for his safety if he was transferred to Wolston, and acknowledged that his safety fears in the past were the reason he had not been waitlisted for ISOP. It noted that the applicant’s safety fears had been discussed at a meeting with QCS on 14 May 2024, and in the light of it he indicated that he would be willing to transfer to Wolston for an ISOP, provided he was adequately supported in the process.
- [70]The Board made the following finding in relation to the timing and availability of ISOP:
“The Board was informed the ISOP is not scheduled to commence this financial year, and a specific start date for this program would likely be available closer to the end of this financial year, but currently it is anticipated that the program would commence prior to December 2024. The Board was further informed that if the outcome of its meeting on 15 May 2024 was a parole refusal based on your outstanding treatment needs you would be asked to sign the program willingness form to waitlist for ISOP and if you sign that form your transfer to Wolston will be arranged and you will be prioritised for the next available ISOP.”
- [71]Significantly, the Board referred to when it was anticipated the ISOP would commence, namely prior to December 2024, but did not state whether it was likely that the applicant would be included in that program because of the waitlist.
- [72]The Board’s letter of 16 May 2024 advised the applicant of its decision and its reasons for refusing his application. The letter made no mention of the early availability of an equivalent program in the community. This is despite the fact that it was a focus of the further submissions on the applicant’s behalf, and my indication on 26 April 2024 that it would be a relevant matter for the Board to consider.
- [73]The Board did not specifically address that issue in its letter of advice dated 16 May 2024. Instead, it advised that “the level of risk you pose in the community at this time is such that it cannot be mitigated by way of conditions imposed by way of parole order”. (emphasis added) Yet, an ISOP equivalent would mitigate risk, so this suggests that it was not actively considered in assessing current risk.
- [74]It concluded that despite the positive aspects of the application, the Board was required “to determine the level of risk you currently pose to the community”.
- [75]The Board reaffirmed the concerns that it outlined in correspondence dated 7 November 2023 and 24 January 2024, and for the reasons set out in its previous letters decided that the applicant “would be an unacceptable risk to the community on a parole order at this time”, and that it had refused to grant his application for a parole order.
The application to amend
- [76]When the hearing resumed before me on 23 May 2024, the applicant obtained leave to amend the application for judicial review to include the decision made on 15 May 2024, relying on essentially the same reasons which had earlier been canvassed. The respondent did not oppose leave being granted.
What did the Board know about the chance that the applicant would start and complete an ISOP in the next few years?
- [77]The material that I have canvassed, and the material that was before the Board at its 15 May 2024 meeting, leads me to find that in making its decision the Board had:
- no idea about how many persons are currently waitlisted to undertake the ISOP at Wolston, when it eventually starts;
- no idea about how many persons are accepted onto the program each time it is scheduled; and
- no idea how long it might take the applicant to start and therefore complete the ISOP in custody.
- [78]As noted, the Acting Professional Board Member who assembled the information for the meeting and who participated in the decision-making process, thought it was a “ridiculous question” to ask if there was any chance that the applicant would be offered a place on the next ISOP. Counsel for the Board did not suggest that this was a ridiculous question and I do not mean to be critical of an ill-chosen expression in an email. On any view, the chance that the applicant will be offered a place on the ISOP later this year, in a later year, or not at all, is a relevant, not a ridiculous, question.
- [79]To be fair to the Member, she apparently appreciated that it was ridiculous to expect the QCS to advise whether the applicant had any chance to be given a place on the next ISOP.
- [80]The response to her question, given by QCS on the morning of 15 May 2024, did not address the chance or likelihood question by disclosing, for example, the number of persons who are waitlisted and the number who would be probably taken into each course when it eventually comes to be offered. It did not say that the applicant would be given any priority over persons who were on the list, including persons who had already waited more than a year on that waiting list. The Board’s observation that the applicant would be “prioritised” for the next available ISOP misconstrued or misunderstood what it had been advised. Even so, the misapprehension that the applicant had been prioritised did not alter the question or provide any idea about how long it would take the applicant to start and therefore complete the program. QCS did not say that he would “leapfrog” other individuals who had been assessed as requiring the ISOP, who were already on the waiting list, and who had long been on the waiting list.
- [81]The matter is analogous with being on a waiting list for social housing. Even if one was told that one’s application was being prioritised, one might have to wait years to actually be given a place.
Failure to consider the risks and benefits of an equivalent program in the community
- [82]I should not treat the Parole Board’s six-page letter of 16 May 2024 as the equivalent of a formal statement of reasons under the Judicial Review Act. It did, however, disclose the material upon which its further decision had been based, made findings which I have summarised, and confirmed matters previously outlined in its correspondence. Also, it was open to the Board, knowing that the hearing would resume on 23 May 2024, and anticipating that the application for judicial review would be amended to include its 15 May decision, to provide any additional reasons and findings of fact by which it sought to justify its refusal to grant parole.
- [83]The submissions to it clearly raised as a relevant consideration, as did the Parole Board’s own material, the early availability and efficacy of an equivalent program in the community. One might have expected the respondent in its letter of 16 May 2024 to have addressed that issue, however briefly, if it had been actively considered. It failed to do so.
The level of risk the applicant currently poses and the issue of future risk
- [84]As its letter of 16 May 2024 indicates, the Board determined, as it was required, the level of risk the applicant currently poses to the community.
- [85]It seemingly did so without considering that the risk would be reduced by a condition that required the applicant to successfully complete an equivalent program in the few months immediately following his release.
- [86]Unfortunately, the Board did not address the level of risk the applicant would pose to the community if he was unable to start and complete the ISOP until much closer to the end date of his sentence.
Do these matters constitute grounds for judicial review?
- [87]In determining whether a ground of judicial review has been established in the circumstances of this case, I remind myself of the limited role of a court reviewing the exercise of an administrative discretion, and that it is not the function of the court to substitute its own decision for that of the decision-maker.[1] Simply put, the Judicial Review Act does not make the Supreme Court a merits review tribunal.
- [88]I also accept that the Board is not compelled to grant parole to a person who has been of good behaviour and in custody for any particular length of time, including a person who has completed a particular number, or even all, of the available recommended rehabilitation programs.[2] The completion of programs is a significant matter due to its potential effect upon an individual in gaining a better understanding of the triggers that led to offending in the past, and the steps that can be taken to avoid a relapse into that behaviour.[3]
Matters not in dispute
- [89]There is no dispute that the applicant, despite all of the matters that are in his favour, has unmet treatment needs. He and his partner accept that he needs to undertake an ISOP or an equivalent program in the community to increase his insight into his offending, and to take greater responsibility for it. Even if one were to accept the possibility that, contrary to his plea, he was invited to return to the complainant’s premises,[4] there is no escaping the fact that she did not consent to sexual intercourse.
- [90]Many other facts are not in dispute before this Court, including that the applicant has no previous convictions, has been assessed on an actuarial instrument as having a low to moderate risk of sexual recidivism, does not have a history of mental illness or abuse of substances, has a history of employment both in the community and in custody, voluntarily engaged with and self-funded counselling whilst in custody, has substantial support in the community, and has an appropriate relapse prevention plan.
The fundamental issue
- [91]The essential issue for the Board was how the applicant’s outstanding treatment needs should be met so as to enhance community safety and rehabilitation upon his release into the community.
- [92]This required consideration of:
- whether individual treatment or group treatment is more likely to be efficacious in his case (as distinct from some general view that either group treatment or individual treatment is inherently superior to the other);
- whether and when it is likely the applicant would start and finish an ISOP in custody;
- the fact that an equivalent course is likely to be available for the applicant to undertake upon his release on parole;
- the fact that release on parole might be timed to coincide with the commencement of such a program and conditioned upon, among other things, the applicant’s satisfactory completion of it by demonstrating that he has increased his insight and empathy for the complainant, and taken greater responsibility for his actions, such that, if he did not satisfactorily complete the program, his parole might be suspended with a return to custody;
- the uncertainty of when the applicant might start an ISOP means that he may not start it in the next financial year, or even the following one, leaving a relatively short or very short period for supervision under parole in the community;
- that a short time in the community under supervision may increase the risk of reoffending and thereby reduce community safety.
Is how long it might take the applicant to complete an ISOP in custody relevant?
- [93]The material before the Board gave it no basis to conclude that the applicant would be included in an ISOP later this year, even if an ISOP commenced prior to December 2024. The material before the Board indicated that his placement on an ISOP program might still be “a long way off”.
- [94]If it takes the applicant a further year or two to start and complete an ISOP, then he will have a relatively short time in the community under supervision.
- [95]The Ministerial Guidelines require the Board to take care to ensure that decisions are made with regard to the merits of the particular prisoner’s case. The highest priority should always be the safety of the community. In that context, paragraph 1.3 of the Guidelines requires the Board to consider whether there is an unacceptable risk to the community if the prisoner is released to parole, and whether “the risk to the community would be greater if the prisoner does not spend a period of time on parole under supervision prior to full-time completion of their prison sentence”. The reference to “a period of time” is obviously intended to refer to a substantial period of time.
- [96]Even without reference to paragraph 1.3, and considering the function of parole in its statutory context, the Board is obliged, in considering risk, to look beyond the time at which it is dealing with a parole application. As Holmes JA (with whom Margaret McMurdo P and Mullins J agreed) stated in Queensland Parole Board v Moore:[5]
“If community safety is to be achieved by supervision and rehabilitation, it is necessary to consider an applicant’s likely progress over the potential parole period, rather than confining considerations to the present or the immediate future.”
- [97]Holmes JA continued:
“It was accordingly, both relevant and necessary for the Board to take into account and weigh the relevant risk of discharging the respondent at or towards the end of his sentence, or of giving him earlier supervised release on parole.”
- [98]I immediately acknowledge that in many cases it will be open to a Parole Board to make an evaluation that, taking account of relevant matters including the consequences of not providing for any period or a limited period prior to the end of the sentence to be served under supervision on parole, that parole should not be granted. In some cases, the level of current risk, the lack of support in the community, the lack of rehabilitation in custody, and other matters may compel the conclusion that community safety requires parole to be refused simply because the risk to the community of immediate release is too great, and there is an insufficient countervailing interest in having a substantial period under supervision in the community. In some cases, the nature of the risk and the probability of serious reoffending may mean that parole should be refused and possibly never granted.
- [99]This is simply to say that each case turns on its facts.
- [100]The Guidelines, and paragraph 1.3 in particular, are prescribed matters for consideration in parole applications.[6]
- [101]In this case, the Board was required to consider current risk and future release risk as a countervailing consideration. As Davis J observed in Johnston:[7]
“In other words, when considering the parole application, the respondent was obliged to consider on the one hand the risk of releasing the applicant immediately, as against the risk posed by ultimately releasing him on his full-time release date, totally unsupervised, or close to his full-time release date and therefore only to be supervised for a short period.”
- [102]In the circumstances of this case, and especially in the light of the submissions that were made, the Board was required to consider the future release risk if the applicant did not start and complete an ISOP until much closer to his full-time release date. It had to consider the benefits, in terms of community safety, of releasing him subject to conditions that included immediately undertaking and successfully completing the equivalent of the ISOP in the community, and thereafter serving his sentence on parole in the community having had the benefit of that program. It had to consider relative risks, not simply the risk of his being granted parole at this time.
- [103]There is insufficient evidence to show that the Board considered the future release risk at its recent meeting on 15 May 2024. This is despite the matter being a relevant, indeed critical, matter raised in submissions and in the circumstances that were known to the Board.
- [104]I should mention that I do not place too much weight on the email observation of the member of the Board who, after considering the possibility of a future report confirming that the applicant needs to do an ISOP, observed that, in that event, “It does not matter how [long] it takes for him to be accepted into a program (he has until 2028)”. It would, however, be unfortunate if it was thought sufficient that he complete the ISOP at some time or other, even close to his full-time release date in February 2028. Such an approach would be inconsistent with the requirement to have regard to a future release risk.
- [105]The Board was required to consider the chance that the applicant would start and complete an ISOP when it was next offered, assuming that to be in December 2024. This required it to inform itself about waitlist numbers, the number of persons who would be accepted onto a program each time it was offered, and the irregularity and long periods between times when the ISOP was offered at Wolston. The Board understood that if parole was refused, the applicant would be on a waitlist for the ISOP “with a view” to having him participate in the next available program, but it had no idea of what chance he had of that hope being realised. On the information available to it, the Board had no idea what chance the applicant had of being included in the next available course, whenever that may be, or on any subsequent ISOP.
- [106]In the circumstances, the Board was required to consider:
- the high chance of the applicant starting an equivalent course in the community in the near future;
- the uncertainty about when, if ever, he might start an ISOP in custody; and
- the risks associated with each of those alternative courses of action.
- [107]This is not a case in which it could be said that it would be impossible for the applicant to ever undertake an ISOP in custody.[8] This, however, does not alter the principle that falls to be applied in light of authorities like Moore and Johnston in circumstances in which there was no assurance about when the next ISOP would be offered, there were an unknown number of persons on the waitlist ahead of the applicant, and the applicant had yet to be placed on the waitlist. The Board was faced with the prospect that he may take at least a year and possibly more than two years to achieve entry onto the course and to complete it in custody. This was part of considering the future release risk, along with considering the benefits and risks of a release that required him to undertake and satisfactorily complete an equivalent program in the community in the next few months.
- [108]The present release risk and the future release risk stood to be assessed in respect of an applicant who did not have a prior criminal history, personality disorders, a problem with drugs or substance abuse, who was statistically assessed to be a low-moderate risk of reoffending, who had accommodation and community support, and numerous other factors in his favour, including a willingness to undertake an equivalent program in the community.
Conclusion
- [109]I conclude that the Board failed to take into account a relevant consideration, namely future release risk if the applicant was unable to complete the ISOP until much closer to his full-time release date, and then (assuming its successful completion) to not spend a sufficient period of time on parole under supervision prior to the end of his sentence.
- [110]An associated failure to take account of a relevant circumstance was the absence of any information about when he might actually commence and complete an ISOP in custody. The information before the Board could have given it no assurance that he would be offered a place on the ISOP program when it was next conducted, possibly late this year or some time during the next financial year. This is because there was a waitlist consisting of persons who had already been waitlisted for a long period, including the long period since the ISOP was last offered. There was no assurance that the applicant, given his understandable but unfortunate failure to be on that waitlist, would somehow be allowed to leapfrog or queue-jump others who had been patiently waiting for more than a year for the next ISOP program to be offered.
- [111]Another respect in which the Board failed on 15 May 2024 to take account of a relevant consideration was a failure to take account of the early availability of equivalent treatment in the community in the next few months. This was a relevant consideration, yet the Board’s letter did not address conditioning any grant of parole upon the successful completion of that course in the coming months, thereby reducing the risk of granting parole at this time.
- [112]Because the Board failed to take into account relevant considerations, it is unnecessary to decide an alternative basis for judicial review, namely that the Board, in effect, applied a policy of requiring a course to be undertaken in custody, without regard to the unusual circumstances and merits of this case whereby the applicant, with numerous favourable factors and a relatively low risk of reoffending, might undertake an equivalent program in the community, thereby enhancing community safety by undertaking the program sooner rather than later, and then spending a substantial period on parole under supervision prior to the completion of his sentence in February 2028.
- [113]Unfortunately, the Board on 15 May 2024 focused on the risk of granting parole at this time to the exclusion of the future release risk. Also, in considering the risk of granting parole at this time it did not engage with the likely early availability of a program in the community to meet the applicant’s treatment needs, and the fact that if the applicant did not successfully complete that program within a relatively short time, his parole might be suspended or even cancelled. It is hard to see, therefore, how the Board engaged with the argument that, in the individual circumstances of the applicant’s case, the risk posed by granting parole could be mitigated to an acceptable level and over a relatively short period by way of such a condition. In not engaging with that issue, it failed to consider a relevant matter in accordance with its obligation to consider both current and future release risks.
- [114]
Disposition and orders
- [115]The applicant has succeeded in establishing a ground for judicial review. He originally challenged the decision of 25 January 2024, but that decision has been overtaken by the reconsideration decision of 15 May 2024. Both decisions were affected by essentially the same legal flaw. Simply setting aside the decision of 15 May 2024 would technically reinstate the decision of 25 January 2024. In the circumstances, it is appropriate to set aside both decisions.
- [116]Therefore, I propose to order:
- Pursuant to s 30 of the Judicial Review Act 1991 (Qld) the decisions under review of 25 January 2024 and 15 May 2024 be set aside.
- The respondent reconsider the applicant’s application for parole with appropriate expedition.
- Liberty to apply.
- There be no order as to costs, save that the respondent pay the applicant’s costs of filing the application for a statutory order of review.
- [117]If necessary, I will hear the parties concerning the terms of the order.
Footnotes
[1]Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 at 40.
[2]Johnson v Parole Board of Queensland [2020] QSC 108 at [32].
[3]Ibid at [33].
[4]One might accept that on occasions persons plead guilty on a certain factual basis because contesting certain facts is not thought to be warranted by any real effect on the sentence or because the defendant is willing to plead guilty to a charge that might be contested rather than take the matter to trial.
[5][2012] 2 Qd R 294 at 301 [17].
[6]Johnston v Central & Northern Queensland Regional Parole Board [2019] 1 Qd R 32 at 48 [67]–9 [72] (“Johnston”).
[7]At 49 [73].
[8]Compare Queensland Parole Board v Moore [2012] 2 Qd R 294, where it was argued to be impossible for the respondent in that case to achieve placement in a less-structured environment.
[9]As to the meaning of “material” in the context of judicial review see LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] HCA 12 at [9]-[16]; (2024) 98 ALJR 610 at 615-616.
[10]Australia Pacific LNG Pty Limited v The Treasurer, Minister for Aboriginal and Torres Strait Islander Partnerships and Minister for Sport [2019] QSC 124 at [232].