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Pasnin v Parole Board Queensland[2024] QSC 280

Pasnin v Parole Board Queensland[2024] QSC 280

SUPREME COURT OF QUEENSLAND

CITATION:

Pasnin v Parole Board Queensland [2024] QSC 280

PARTIES:

FRANCE PASNIN

(applicant)

v

PAROLE BOARD QUEENSLAND

(respondent)

FILE NO/S:

BS 4502/24

DIVISION:

Trial Division

PROCEEDING:

Application for Statutory Order of Review

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

14 November 2024

DELIVERED AT:

Brisbane

HEARING DATE:

8 November 2024

JUDGE:

Cooper J

ORDER:

  1. The decision of the respondent, set out in its letter to the applicant dated 31 January 2024, is set aside.
  2. The matter to which the decision relates is referred back to the respondent for further consideration according to law. 

CATCHWORDS:

ADMINISTRATIVE LAW – JUDICIAL REVIEW – GROUNDS OF REVIEW – RELEVANT CONSIDERATIONS – FAILURE TO CONSIDER – where the applicant was sentenced to nine years’ imprisonment for sexual offending – where the applicant’s parole eligibility date was set at 11 March 2022 – where the applicant pleaded guilty to the offence but still maintains his innocence – where the applicant’s risk of committing another sexual offence had been assessed as being very low – where the respondent refused to grant the applicant a parole order – where the applicant contends that the respondent failed to consider the merits of his case in circumstances where the refusal decision was based on the applicant’s failure to complete a sexual offending program despite his low risk of sexual reoffending and his inability to participate in that program in custody – whether the respondent failed to take relevant considerations into account in refusing to grant the applicant parole

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

Judicial Review Act 1991 (Qld), s 20

Anderson v Director-General of the Department of Environmental and Climate Change (2008) 251 ALR 633, cited

Calanca v Parole Board Queensland [2019] QSC 34, cited

Carrascalao v Minister for Immigration and Border Protection (2017) 252 FCR 352, cited

Chalkley v Southern Queensland Regional Parole Board [2016] QSC 236, cited

Maycock v Queensland Parole Board [2015] 1 Qd R 408, cited

Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24, cited

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

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

Soliman v University of Technology, Sydney (2012) 207 FCR 277, cited

COUNSEL:

M Black for the applicant

S Lane for the respondent

SOLICITORS:

Prisoners’ Legal Service for the applicant

Parole Board Queensland for the respondent

Introduction

  1. [1]
    The applicant is serving a nine-year sentence of imprisonment.  That sentence was imposed on 11 March 2019, after the applicant pleaded guilty to one count of maintaining a sexual relationship with a child.  The applicant’s parole eligibility date was set at 11 March 2022, three years into the head sentence.  The sentence will expire on 10 March 2028. 
  2. [2]
    Despite pleading guilty, the applicant now maintains he is innocent of the offence for which he was convicted and sentenced.
  3. [3]
    On 31 January 2024, the respondent refused to grant the applicant a parole order.  By the time that decision was made, the applicant had been in custody for more than four years and ten months.  He has now been in custody for more than five years and eight months.
  4. [4]
    The applicant seeks judicial review of the decision to refuse his application for parole.  He submits that the respondent erred by making a decision that was an improper exercise of power within the meaning of s 20(2)(e), or which involved an error of law within the meaning of s 20(2)(f), of the Judicial Review Act 1991 (JRA).  The basis for that submission is the applicant’s contention that, in making its decision, the respondent failed to take into account two relevant considerations:
  1. (a)
    the importance of the sentencing judge’s decision to fix his parole eligibility date on 11 March 2022; and
  1. (b)
    the merits of his case, in circumstances where the respondent based its decision on a requirement that he complete the Medium Intensity Sexual Offending Program (MISOP) in custody but there was material before the respondent that established:
  1. (i)
    the applicant posed a very low risk of reoffending; and
  1. (ii)
    in circumstances where (despite having pleaded guilty) the applicant maintained his innocence, it would not be possible for him to participate in the MISOP in custody.
  1. [5]
    The respondent accepts that the matters identified by the applicant were relevant considerations in making the decision to grant or to refuse parole.  However, it submits that it properly considered these matters in the course of making its decision.  The weight which the respondent gave to those matters was a matter for it and is not amenable to judicial review.
  2. [6]
    For the reasons which follow, I have concluded that the decision to refuse the application for a parole order should be set aside and that the matter should be referred back to the respondent for further consideration according to law.

Parole application and material before the respondent

  1. [7]
    The applicant applied for the grant of a parole order on 15 September 2023.[1]  In support of the application, he made submissions about the relevance of his parole eligibility date and the risk which he posed to community safety if he was to be released on parole.
  2. [8]
    As to the relevance of his parole eligibility, the applicant commenced his submissions as follows:

“On the 11th of March 2019, Judge Long fixed my parole eligibility date as 11 March 2022, after I’d served 3 years in custody (being the ‘standard’ one-third of my head sentence of 9 years).  However, I have now spent over 4 ½ years behind bars, being over 50% of [sic, what] my head sentencing Judge thought appropriate.

If either the Parole Board or the DPP thought this sentence was too lenient, I note no appeal was made to the Court of Appeal (the appropriate forum to consider such matters), in this regard, yet the Board’s actions, by its repeated refusal to grant me parole, effectively amounts to an overriding of the sentencing Judge’s discretion.  This is an administrative overruling of the Sentencing Judge – who heard all the evidence and was tasked with handing down what he considered to be an appropriate sentence.”

  1. [9]
    The applicant referred to part of the sentencing remarks in which the sentencing judge stated that the plea of guilty was timely enough in order to avoid what had been listed as the pre-recording of the complainant’s evidence and that this would be taken into account in the applicant’s favour by way of some reduction of the impact of the sentence upon him, both in terms of fixing the head sentence and the period he would have to serve in custody before he became eligible to apply for parole.  The applicant went on to refer to the prospect of having to serve the whole of his sentence in custody because Queensland Corrective Services (QCS) would not offer him a place in the MISOP and submitted that the effect of this would be to deprive him of any benefit from his plea of guilty on the basis that he had spared the complainant and the Court the need for a trial.  The applicant characterised this prospect as being completely contrary to the specific remarks of the sentencing judge.
  2. [10]
    As to the risk of reoffending, the applicant referred to his very limited criminal history and then made the following submission:

“The likelihood of my committing further offences is virtually zero, and no higher than that of any member of the general public.  Ms Suckling noted that an individual with a STATIC-99 score of -3 (as I scored) had a 5 year sexual recidivism rate of between 0.5% and 1%.”

  1. [11]
    This was a reference to Susan Suckling, a psychologist who had assessed Mr Pasnin’s treatment needs and provided a letter in support of his application for parole.  I set out the relevant parts of Ms Suckling’s letter below.  In the applicant’s submissions to the respondent, he referred to the fact that although participation in the MISOP was not available to him in prison, it would be available to him through the Brisbane Central Community Corrections office.  The applicant also referred to Ms Suckling’s advice that his stance of innocence did not preclude him from participating in sexual offending treatment through her practice.  He concluded his submissions with this statement:

“Quite simply, if you consider that I require further treatment, the only way I can access such treatment is to be granted parole.”

  1. [12]
    The letter of support prepared by Ms Suckling was dated 15 March 2023.  The relevant parts of that letter stated as follows:

“… Based on Mr Pasnin’s self-report, his Queensland Criminal History, and information obtained within he [sic, the] Getting Started: Preparatory Program (GSPP), his risk of sexual offence recidivism was scored using the Static-99R.  Mr Pasnin received a total score of -3 which placed him in Risk Level I (Very Low Risk) category for being charged or convicted of another sexual offence.  Within routine correctional samples of individuals with a Static-99R score of -3, the 5-year sexual recidivism rate is between .5% and 1%, meaning out of 100 individuals with the same risk score, between 0 and 1 would be charged or convicted of a new sexual offence after 5 years in the community.  Conversely, 99 individuals out of 100 with the same risk score would not be charged or convicted of a new sexual offence during that period.  It is noted that the Static-99R does not measure all relevant risk factors and the most accurate representation of Mr Pasnin’s risk profile would be obtained through combined measures of both static (Static-99R) and dynamic risk factors (Stable-2007).

Throughout clinical interview it was identified that Mr Pasnin maintained a stance of innocence relating to his sexual offence conviction.  …  Mr Pasnin remains of the opinion that he is innocent of the current conviction however reports wanting to cooperate with the Board however he can, which he believes is to engage in sexual offending treatment.

Whilst Mr Pasnin’s completion report for GSPP similarly outlines his position of maintaining innocence, it is also noted that there is no definitive decision that he remains ineligible for further treatment due to his stance of innocence.  Recommendations from the completion report state that his self-disclosures within the group ‘could provide some space for exploration within a treatment program.’  And further that he was recommended to ‘participate in a Stable-2007 assessment to identify his specific treatment needs, and pending this assessment to further participate in a Medium Intensity Sexual Offending Program.’

At the time of the current assessment, Mr Pasnin was of the belief he had not been offered an opportunity to participate in the Stable-2007 assessment, despite the recommendation occurring in October 2021.  Mr Pasnin believed he was not eligible for completion of the Stable-2007 due to his stance of innocence and that he would not be offered any further treatment pathways via Queensland Corrective Services’ (QCS) suite of programs due to this stance.  Whilst maintaining a stance of innocence does not preclude Mr Pasnin from participating in sexual offending treatment in the community …, he recognises he is unable to access this treatment without first successfully obtaining parole.  It is noted that individuals who’s [sic, whose] assessed risk of sexual recidivism falls in the Level I (very low risk) range, generally have few if any identifiable criminogenic or non-criminogenic needs.  Sexual offence specific treatment is often not recommended for this population as it is considered contraindicated and better served by routine criminal justice interventions such as regular supervision whilst in the community.  Based on clinical assessment and in review of collateral documentation provided, Mr Pasnin did not present with any overt pro-criminal or anti-authoritarian attitudes, any history of cognitions or beliefs supportive of sexual abuse or adult-child sexual relations, and did not present with complex moderating risk factors such as major mental illness or substance use behaviours.”

  1. [13]
    Ms Suckling stated that she would be happy to provide ongoing treatment to Mr Pasnin if he was granted parole, whether that treatment be targeted at his ongoing risk of recidivism or other areas.  She expressed the opinion that Mr Pasnin had good rehabilitative prospects if he engaged in treatment, explored his prior relationship dynamics and associated core beliefs, explored his patterns of coping and stress management, maintained prosocial connections, obtained and maintained consistent employment and engaged in organised or structured prosocial activities.
  2. [14]
    The applicant had previously completed the Getting Started: Preparatory Program for Sexual Offending (GSPP) on 10 August 2021.  The completion report for the GSPP, referred to in Ms Suckling’s letter, was prepared in October 2021.  In summarising the applicant’s progress during the GPP, the completion report stated:

“During prisoner Pasnin’s participation on the [GSPP], he demonstrated no insight into and did not accept responsibility for his sexual offending behaviour.  As such he was not able to demonstrate empathy for his victim however demonstrated capacity to show empathy for others.  Throughout prisoner Pasnin’s participation on the [GSPP], he did not demonstrate a commitment to change or a willingness to participate in future sexual offending programs.”

  1. [15]
    After setting out the details of the applicant’s sexual offending and various statements he had made during his participation in the GSPP, the completion report contained the following conclusion:

“Prisoner Pasnin’s level of engagement with group participants and facilitators in the [GSPP] was deemed to improve over time.  Whilst he lacked insight into his own offending due to his perception that he had not committed a sexual offence, over the course of the program he demonstrated increased capacity to understand and relate to concepts as they applied to other group participants.  It is noted that prisoner Pasnin’s perception of innocence will create a barrier to meaningful engagement in treatment programs.  However, his acknowledgement of engagement in activities such as taking the victim into his bed in his wife’s absence and hugging her in this context could provide some space for shift within a treatment program.

RECOMMENDATIONS

Prisoner Pasnin has participated in the [GSPP] to an appropriate level.  Whilst the prisoner holds the perception he has not engaged in a sexual offence, as noted above his self-disclosures could provide some space for exploration within a treatment program.  As such it is recommended that he participate in a Stable 2007 assessment to identify his specific treatment needs, and pending this assessment to further participate in a [MISOP].”

  1. [16]
    The respondent also received a Parole Suitability Assessment (PSA) dated 29 September 2023 which was prepared by QCS.  The PSA recorded the following relevant matters:
    1. the applicant had undertaken a STATIC-99R assessment and was determined to pose a low risk of sexual recidivism with a score of -3;
    2. the substance of the statements from the GSPP completion report extracted above;
    3. the substance of the statements made by Ms Suckling extracted above;
    4. the applicant was declined participation in the MISOP on 28 August 2023, as he was not eligible to participate due to maintaining his innocence;[2]
    5. if the applicant was refused parole he would be unlikely to be able to further address his outstanding treatment needs due to his stance of innocence;
    6. despite his stance of innocence, the applicant was willing to complete treatment programs for sexual offending in the community in order to obtain parole and to attend counselling with Ms Suckling (although he could not explain why he wished to engage in counselling and what benefits he hoped to gain from it);
    7. the applicant had not been involved in any adverse incidents while in custody and had displayed an ability to self-regulate and manage within a less-restrictive environment;
    8. the applicant had an appropriate and solid re-entry plan, identifying a significant social support network upon his release and appropriate plans for employment and transportation;
    9. the applicant had proactively sought individual sexual offending assessment and treatment to compensate for his inability to address such concerns in custody;
  2. [17]
    On the issue of the risk to the community should the applicant be released on parole, the PSA stated:

“The author considered the risk to the community should Mr Pasnin be released without completing his recommended intervention programs.  Mr Pasnin should be considered as an untreated sex offender, as he has outstanding program recommendations.  Given he has not completed recommended programs, it is suggested that he is not currently suitable for release.”

  1. [18]
    The PSA recommended that the application for parole not be granted due to the applicant’s outstanding treatment needs, his stance of innocence and a lack of suitable accommodation.[3]

Preliminary decision and further material before the respondent

  1. [19]
    On 15 November 2023, the respondent met and considered the application for parole.  It formed the preliminary view that the risk the applicant presented to the community was unacceptably high and that parole should be refused.  It advised the applicant of this preliminary review in a letter dated 29 November 2023 (Preliminary Decision Letter).   
  2. [20]
    In the Preliminary Decision Letter, the respondent set out certain factors in the applicant’s favour which it had taken into account in reaching its preliminary view: his approved accommodation; his progression to residential accommodation while he was in custody; his employment while he was in custody; his behaviour in custody; his completion of the GSPP; his completion of 20 AEVET courses; his provision of two clean urine samples while in custody; and the support available to him in the community, including counselling with Ms Suckling.  The letter stated that not every factor favourable to the applicant was referred to.
  3. [21]
    The Preliminary Decision Letter then went on to identify the factors which led the respondent to its preliminary view, despite the positive aspects of the parole application.  Those factors were said to be:
    1. the applicant’s criminal history;
    2. the facts of the offending and the sentencing considerations set out in the remarks of the sentencing judge;
    3. the applicant’s failure to provide a relapse prevention plan with his parole application;
    4. the applicant’s maintenance of innocence (as recorded in both the GSPP completion report and the PSA);
    5. the applicant’s limited insight into his offending behaviour (as referred to in both the GSPP completion report and the PSA, and which the respondent inferred from the applicant’s submissions);
    6. the applicant’s outstanding treatment needs (as identified in the GSPP completion report and the PSA).
  4. [22]
    In the context of its discussion of the applicant’s outstanding treatment needs, the Preliminary Decision Letter noted and acknowledged the applicant’s submissions that he would not be able to participate in the MISOP in prison, but that he would be able to take part in that program (and other sexual offending treatment) if he was released on parole.  The respondent accepted that the applicant’s maintenance of innocence may affect the availability of certain programs but stated that maintaining innocence was the applicant’s own choice. 
  5. [23]
    The Preliminary Decision Letter set out the respondent’s view that taking into account the applicant’s offending, maintenance of innocence and limited insight into his offending, his risk to the community remained unacceptable while he had not further addressed his outstanding treatment needs prior to release.  It stated that the applicant’s risk would likely be less if he was to undergo the Stable 2007 assessment and successfully complete the MISOP.
  6. [24]
    After noting the applicant’s full-time release date is 10 March 2028, the Preliminary Decision Letter stated that the respondent appreciated the benefit of a period of supervision in the community for the applicant but did not believe that the safety of the community would be better served by releasing the applicant on parole at that time, rather than at a later date.  It said that the respondent had considered the risk to the community in releasing the applicant to parole with supervision at that time, as compared to after he had undergone Stable-2007 assessment and successfully completed the MISOP.
  7. [25]
    The Preliminary Decision Letter also addressed the respondent’s consideration whether any parole conditions would reduce the level of risk the applicant posed to the community.  It stated that the respondent considered the usual conditions of parole, including electronic monitoring and curfew conditions, as well as whether there were any other reasonably practicable conditions that might reduce the applicant’s level of risk to the community sufficiently to approve his application.  It advised that, given the applicant’s outstanding treatment needs, maintenance of innocence, limited insight into his offending and lack of relapse prevention plan, the respondent formed the view that there were no such conditions that would sufficiently reduce the risk the applicant posed at that time.
  8. [26]
    The Preliminary Decision Letter informed the applicant that the respondent would have greater confidence in his release if he was to undergo Stable-2007 assessment and successfully complete the MISOP.
  9. [27]
    At the end of the Preliminary Decision Letter, the respondent invited the applicant to send the respondent any further submissions or supporting documents he wished to rely on before a final decision was made.
  10. [28]
    On 20 November 2023, after reaching its preliminary view on the parole application but before advising the applicant of that preliminary view, the respondent sent an email to QCS asking if the applicant was likely to receive an offer of a Specialised Assessment for Sexual Offending and, if so, when he would be likely to commence that assessment.  QCS responded the same day advising the respondent that the applicant had already undertaken the Specialised Assessment for Sexual Offending Program.
  11. [29]
    On 12 December 2023, the applicant wrote to the respondent in response to the letter dated 29 November 2023.  The applicant re-stated his intention to engage with Ms Suckling to undertake treatment for his “alleged offending”.  He also provided a “New Future Plan”.

The decision and the respondent’s reasons for refusing the application

  1. [30]
    The respondent met on 31 January 2024 and decided to refuse to grant the application for a parole order. 
  2. [31]
    On 22 May 2024, the respondent provided the applicant with a statement of reasons for its decision (Reasons).  After setting out the progress of the parole application, the Reasons set out the findings of fact on which the decision was made.  Those findings relevantly included that:
    1. the applicant had a parole eligibility date of 11 March 2022 and a full-time discharge date of 10 March 2028;
    2. as a consequence of the GSPP completion report noting that the applicant lacked insight into, and did not accept responsibility for, his sexual offending, the respondent was of the view that the applicant had outstanding treatment needs to address risk factors linked to his offending;
    3. undertaking a Stable-2007 assessment, through his Correctional Centre, might assist the applicant in further identifying specific treatments needs and interventions available to him;
    4. the respondent had encouraged and recommended that the applicant complete the MISOP;
    5. the applicant had demonstrated limited insight into his offending behaviour;
    6. although the fact that the applicant maintained his innocence did not prejudice the respondent against him, the respondent had to proceed on the basis that he was guilty of the offence for which he pleaded guilty, was convicted and sentenced;
    7. there were no reasonably practicable conditions which could sufficiently mitigate the level of risk which the applicant posed to the community.
  3. [32]
    The Reasons summarised the submissions it had received from, and on behalf of, the applicant (including the letter from Ms Suckling).  In this context, the Reasons recorded that the applicant’s risk of sexual offence recidivism was scored using the STATIC-99R assessment tool and that his score placed him in the very low risk category.  This summary of submissions did not record Ms Suckling’s statement that sexual offence specific treatment is often not recommended for offenders in the very low risk category as it is considered contraindicated and better served by routine criminal justice interventions such as regular supervision whilst in the community.
  4. [33]
    The Reasons then set out the matters which the respondent had considered in reaching its preliminary decision. 
  5. [34]
    This discussion commenced with the statement that the respondent had regard to positive factors that supported the applicant’s release to the community.  These factors reflected the favourable factors previously identified in the Preliminary Decision Letter (see [20] above).  Importantly, the fact that the applicant’s score on the STATIC-99R risk assessment tool placed him within Risk Level I (Very Low Risk) was not identified as a positive factor in favour of his parole application.
  6. [35]
    The Reasons stated that, notwithstanding the positive features of the parole application which had been identified, the respondent reached its preliminary decision that the risk the applicant posed to the community was unacceptably high due to factors which, again, aligned with what had been said in the Preliminary Decision Letter (see [21] above).  The Reasons also repeated the respondent’s position which had previously been set out in the Preliminary Decision Letter concerning: the applicant’s maintenance of innocence ([22] above); the respondent’s view that the applicant’s risk to the community would remain unacceptably high in the absence of addressing his outstanding treatment needs prior to release ([23] above); the applicant’s custodial end date of 10 March 2028 and the benefit of a period of supervision in the community ([24] above); and the respondent’s view that there were no parole conditions that would sufficiently ameliorate the risk the applicant posed to the community ([25] above).
  7. [36]
    The Reasons then proceeded to summarise the further submissions and material it had received and considered after it made its preliminary decision, including the applicant’s New Future Plan.  They stated that the respondent fully considered those further submissions and material but determined that they did not contain any information that would sufficiently alleviate the respondent’s concerns as outlined in the Preliminary Decision Letter. 
  8. [37]
    The Reasons recorded that, at the meeting on 31 January 2024, the respondent considered again the issues whether the applicant and the community would benefit from the applicant having a longer period of community supervision and whether parole conditions could reduce the level of risk to the community if the applicant was to be released.  Once again, those issues were decided against the applicant. 
  9. [38]
    The respondent remained of the view that the applicant would be an unacceptable risk to the community on a parole order at the time it made its final decision.

Statutory framework in which the decision was made

  1. [39]
    The respondent is established under s 216 of the Corrective Services Act 2006 (CSA).  One of its functions is to decide applications for parole orders, other than court ordered parole orders (CSA, s 217(a)).  A prisoner may apply to the respondent for the grant of a parole order if that prisoner has reached his or her parole eligibility date (CSA, s 180(1)). 
  2. [40]
    Pursuant to s 193(1) of the CSA, after receiving a prisoner’s application for a parole order, the respondent must decide to grant the application or to refuse to grant the application.  The respondent may, by granting an application for a parole order, release an eligible prisoner on parole (CSA, s 194(1)(b)).  This discretionary power is broad and unfettered in the sense that the CSA does not specify the criteria for making a decision under s 193.  Nevertheless, the power is to be exercised  having regard to the subject matter, scope and purpose of the CSA.[4]  The purpose of the CSA is “community safety and crime prevention through the humane containment, supervision and rehabilitation of offenders” (CSA, s 3(1)).
  3. [41]
    Guidelines which the Minister has made pursuant to s 242E of the CSA do not prescribe or limit how the respondent’s discretion should be exercised, but they are properly regarded as a relevant factor which must be taken into account by the respondent.[5]
  4. [42]
    The Guidelines include the following guiding principles:
    1. care should be taken to ensure that decisions are made with regard to the merits of the particular prisoner’s case (section 1.1);
    2. the highest priority for the respondent should always be the safety of the community (section 1.2);
    3. the respondent should 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 the fulltime completion of their prison sentence (section 1.3).
  5. [43]
    The Guidelines set out a non-exhaustive list of factors to which the respondent should have regard to when deciding the level of risk that a prisoner may pose to the community (section 2.1):
    1. the prisoner’s prior criminal history and any patterns of offending;
    2. the likelihood of the prisoner committing further offences;
    3. whether there are any circumstances that are likely to increase the risk the prisoner presents to the community (including any factors identified in section 5.1 for consideration when the respondent is considering whether to release a prisoner to parole);
    4. whether the prisoner has been convicted of (relevantly) a sexual offence;
    5. the recommendation for parole, parole eligibility date, or any recommendation or comments of the sentencing court;
    6. the prisoner’s cooperation with the authorities both in securing the conviction of others and preservation of good order within prison;
    7. any medical, psychological, behavioural or risk assessment report relating to the prisoner’s application for parole;
    8. any submissions made to the respondent by an eligible person registered on the 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 presents to the community; and
    11. recommended rehabilitation programs or interventions and the prisoner’s progress in addressing the recommendations.
  6. [44]
    The Guidelines set out a further non-exhaustive list of factors to which the respondent should have regard when considering releasing a prisoner to parole (section 5.1):
    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 and community safety;
    4. intelligence information received from State and Commonwealth agencies;
    5. length of time spent undertaking a work order or performing a 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.

Failure to take relevant considerations into account – legal principles

  1. [45]
    Judicial review of administrative decisions is confined to the legality of the decision in question.  It is not a merits review.  It is concerned with whether the decision was one which the decision maker was authorised to make.[6]
  2. [46]
    A decision can only be impugned for a failure to take into account a relevant consideration if the decision-maker fails to take into account a consideration that he or she is bound to take into account in making the decision.  Where, as here, the relevant factors are not expressly identified in the statute which confers the decision making power, they must be determined by implication from its subject matter, scope and purpose.[7]  As already noted, there is no issue in the present proceeding that the factors identified by the applicant are relevant factors that must have been (and on the respondent’s case, were) taken into account in the decision to refuse to grant the application for a parole order.  Accordingly, the only issue I need to determine is whether, in fact, the respondent took these considerations into account.
  3. [47]
    To take something into account requires that the decision-maker to more than simply advert to the matter or give it mere lip service.[8]  It requires that the decision-maker engage in an active intellectual process directed at the relevant consideration.[9]  Whether or not it can be judged that a matter has been considered is an evaluative process based on an assessment of what the decision-maker has said or written;[10] in this case, the Reasons.  The Reasons are not to be construed minutely and finely with an eye keenly attuned to the perception of error.[11]  However, the court’s eyes should likewise not be blinkered so as to avoid discerning an absence of reasons or reasons devoid of any consideration of a submission central to an applicant’s case.[12]  The court may infer that a matter not mentioned in the statement of reasons was not considered by the decision-maker to be material.[13]
  4. [48]
    To similar effect, in circumstances where the respondent’s obligation to give the Reasons arose under Part 4 of the JRA, and s 27B of the Acts Interpretation Act 1954 also applies to the Reasons, the respondent was under an obligation to set out in the Reasons its actual path of reasoning by which it reached the decision and to do so in sufficient detail to enable the court to discern whether the decision does or does not involve an error of law.  A failure by the respondent to set out the path of reasoning by which it arrived at its conclusion may lead the court to infer that there must have been an error of some kind that led the respondent to (among other things) ignore relevant material.[14]

Consideration of the applicant’s grounds of review

  1. [49]
    I commence by considering the applicant’s second ground of review which, as counsel for the applicant acknowledged during argument, is the stronger of the two grounds.
  2. [50]
    The respondent submits that, on a fair reading of the Reasons as a whole, in the present case it:
    1. recommended to the applicant that he undertake the Stable-2007 assessment and successfully complete the MISOP (which it identified as the applicant’s “outstanding treatment needs”);
    2. considered the applicant’s belief that he is not eligible for the Stable-2007 assessment because of his stance of innocence;
    3. took into account the statement in the GSPP completion report that, despite the applicant’s stance of innocence, his self-disclosures could provide some space for exploration within a treatment program;
    4. recommended that the applicant speak to staff at his Correctional Centre to facilitate a Stable-2007 assessment;
    5. considered that the applicant had been advised that the MISOP was not available to him in custody because he maintained his innocence, and noted that maintaining his innocence was a choice made by the applicant;
    6. advised the applicant that it must proceed on the basis that the applicant was guilty of the offence to which he had pleaded guilty;
    7. took into account that the relevant treatment programs were available in the community and that Ms Suckling had indicated her willingness to provide treatment to the applicant if he was released;
    8. considered whether the applicant and the community might benefit by the applicant’s release at the time the final decision was made, or at a later date; and
    9. considered whether any parole conditions could mitigate the risk which the applicant posed to the community.
  3. [51]
    On this basis, the respondent submits that it did not apply an unwritten rule or policy that the applicant would only be granted parole if he first completed the MISOP, but instead properly considered the merits of the applicant’s individual case, including by engaging in a risk/benefit analysis of releasing the applicant to complete the programs in the community and addressing the applicant’s belief that the relevant programs were not available to him in prison.  Ultimately, the respondent submits that it determined, after taking all relevant considerations into account, that the applicant’s risk to the community would remain unacceptably high in the absence of addressing his outstanding treatment needs prior to release.
  4. [52]
    I do not accept these submissions.  Having considered the Reasons as a whole, without overzealously scrutinising them in search of error, I am satisfied that the respondent did not consider the application for the grant of a parole order on its merits or with regard to the applicant’s particular circumstances.
  5. [53]
    The first issue is that the Reasons contain only a single passing reference to the QCS assessment that the applicant posed a low risk of committing a further sexual offence.  This reference appears in the summary of the applicant’s submissions in support of the parole application.  As already observed, it was not identified in the Preliminary Decision Letter or in the Reasons as a factor in favour of the grant of parole.  In my view, it must be viewed as a factor in favour of parole.[15]  That is because it suggests that the likelihood that the applicant would commit another offence is low – something which section 2.1 of the Guidelines identified as a matter which the respondent should have had regard to when deciding the level of risk that the applicant may pose to the community.  There is no indication in the Reasons that the respondent did so in deciding to refuse the application for parole.
  6. [54]
    The Reasons do not contain any actual path of reasoning by which the respondent reached its conclusion that the risk which the applicant posed to the community would remain unacceptably high in the absence of addressing what the respondent had identified as being his outstanding treatment needs.  The Reasons state that this conclusion was based on the negative factors the respondent had identified: the nature of the offending, the applicant’s maintenance of innocence and his limited insight into his offending behaviour.  However, they do not grapple with the fact that, despite the existence of those negative factors, the risk that the applicant would commit another sexual offence had been assessed as being very low.  They do not explain why the negative factors meant that, despite the applicant having been assessed as having a very low risk of further sexual offending, he posed an unacceptably high risk to the community.  The Reasons do not provide any indication that the respondent engaged in an active intellectual process directed at the issue of how the applicant’s risk assessment should be viewed in a consideration of the risk that he posed to the community. If the respondent had weighed the applicant’s very low risk of further sexual offending against the negative factors it identified, one would expect the Reasons to have said so and to have explained why the negative factors outweighed that risk assessment.  The absence of such a path of reasoning in the Reasons leads me to infer that the respondent failed to take the assessment of the applicant as having a very low risk of further sexual offending into account in reaching its decision to refuse parole.
  7. [55]
    A second issue, related to the first, is that the Reasons contain no reference to Ms Suckling’s statement that specific treatment for sexual offending is often not recommended for a person, such as the applicant, whose risk for further sexual offending falls in the very low range.  As this statement by Ms Suckling is not mentioned in the Reasons, I infer that the respondent did not consider it to be material.
  8. [56]
    As to a path of reasoning, the Reasons explain that the respondent reached its conclusion that the applicant had outstanding treatment needs by reference to the same negative factors referred to previously: the nature of the offending, the applicant’s maintenance of innocence and his limited insight into his offending behaviour.  They do not explain why those negative features supported the conclusion that a person in the applicant’s position, who has been assessed as having a low risk of further sexual offending, needs to undertake further treatment for sexual offending such as the MISOP in circumstances where Ms Suckling had stated that such further treatment was contraindicated.  The Reasons do not give any indication that the respondent engaged in an active intellectual process directed at considering whether the further treatment it had identified was necessary or appropriate in light of the applicant’s risk assessment.  If the respondent had weighed Ms Suckling’s opinion against the negative factors it identified, one would expect the Reasons to have said so and to have explained why the negative factors outweighed Ms Suckling’s opinion.  The absence of such a path of reasoning in the Reasons leads me to infer that the respondent failed to take Ms Suckling’s opinion on this issue into account in reaching its decision to refuse parole.
  9. [57]
    A third issue, again related to the first issue, is that although the Reasons state in broad terms that the respondent had considered whether parole conditions might reduce the risk which the applicant posed to the community (and concluded that they would not), they give no indication that, in undertaking that assessment, the respondent considered imposing a requirement that the applicant undertake the MISOP, or other treatment, in the community as a condition of his parole.  This was important given the particular emphasis that the applicant placed on his inability to undertake the MISOP while he remained in custody and his stated willingness to undertake such treatment in the community if he was granted parole. 
  10. [58]
    In the context of the discussion about what the respondent had identified as the applicant’s outstanding treatment needs, the Reasons acknowledged the applicant’s submission that his maintenance of innocence made him ineligible for further treatment programs, including the MISOP, while he remained in custody.  Further, the Reasons indicate that the respondent appeared to accept the correctness of that submission.  However, that issue is not addressed at all in the context of the discussion about parole conditions in the Reasons.  The Reasons do not express any conclusion, nor do they set out a path of reasoning to a conclusion, that, despite the applicant having been assessed as having a very low risk of further sexual offending, the respondent’s concerns about the applicant’s outstanding treatment needs could not be met by the applicant undertaking the MISOP as a condition of his parole.  The Reasons do not give any indication that the respondent engaged in an active intellectual process directed at this issue.  If the respondent had weighed the prospect of imposing such a parole condition but concluded that it would not sufficiently reduce the risk the applicant posed to the community, one would expect the Reasons to have said so and to explain the basis for reaching that conclusion in light of the assessment of the applicant as having a very low risk of further sexual offending.  The failure of the Reasons to address these matters leads me to infer that the respondent did not consider whether to impose a requirement that the applicant undertake the MISOP, or other treatment, in the community as a condition of his parole.
  11. [59]
    These issues have led me to conclude that the respondent did not consider the application for parole on its merits and with regard to the applicant’s particular circumstances.  In deciding to refuse the application for parole, the respondent failed to take relevant considerations into account, namely the assessment of the respondent as having a very low risk of further sexual offending and what that assessment meant in terms of his need for further treatment for sexual offending and (if he had such a need) whether he should undertake that treatment in the community as a condition of parole.  This constitutes an improper exercise of power under ss 20(2)(e) and 23(b) of the JRA.
  12. [60]
    In those circumstances, the respondent’s decision to refuse the application for a parole order should be set aside.  That application should be referred back to the respondent for further consideration according to law. 
  13. [61]
    It is not necessary to consider the applicant’s further ground of review.

Orders

  1. [62]
    The orders will be:
  1. The decision of the respondent, set out in its letter to the applicant dated 31 January 2024, is set aside.
  2. The matter to which the decision relates is referred back to the respondent for further consideration according to law.
  1. [63]
    I will hear the parties as to costs.

Footnotes

[1]The applicant had previously applied for exceptional circumstances parole in 2020 and applied for parole in 2022.  The respondent refused both applications.

[2]During the hearing the respondent accepted this should be read as the applicant having applied to participate in the MISOP (in accordance with the recommendation in the GSPP completion report) but that QCS had refused this.

[3]The issue about the applicant’s proposed accommodation had been resolved by the time the respondent made its final decision to refuse parole.

[4]Calanca v Parole Board Queensland [2019] QSC 34, [54].

[5]Calanca v Parole Board Queensland [2019] QSC 34, [57].

[6]Plaintiff M64/2015 v Minister for Immigration and Border Protection (2015) 258 CLR 173, 184-185 [23].

[7]Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24, 39-40.

[8]Anderson v Director-General of the Department of Environmental and Climate Change (2008) 251 ALR 633, 651 [58].

[9]Carrascalao v Minister for Immigration and Border Protection (2017) 252 FCR 352, 363 [45].

[10]Anderson v Director-General of the Department of Environmental and Climate Change (2008) 251 ALR 633, 651 [58].

[11]Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259, 271-272.

[12]Soliman v University of Technology, Sydney (2012) 207 FCR 277, 295-296 [57].

[13]Maycock v Queensland Parole Board [2015] 1 Qd R 408, 424-425 [85] referring to Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323, 346.

[14]Chalkley v Southern Queensland Regional Parole Board [2016] QSC 236, [31]-[33], [42]-[44].

[15]Counsel for the applicant accepted this was the case during oral submissions (Transcript 1-19:30 to 1-20:5).

Close

Editorial Notes

  • Published Case Name:

    Pasnin v Parole Board Queensland

  • Shortened Case Name:

    Pasnin v Parole Board Queensland

  • MNC:

    [2024] QSC 280

  • Court:

    QSC

  • Judge(s):

    Cooper J

  • Date:

    14 Nov 2024

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
Calanca v Parole Board Queensland [2019] QSC 34
3 citations
Jump To
Cite 1 - [2019] QSC 34
Cite 2 - [2019] QSC 34
Cite 3 - [2019] QSC 34
Carrascalao v Minister for Immigration and Border Protection (2017) 252 FCR 352
2 citations
Jump To
Cite 1 - (2017) 252 FCR 352
Cite 2 - (2017) 252 FCR 352
Chalkley v Southern Queensland Regional Parole Board [2016] QSC 236
2 citations
Jump To
Cite 1 - [2016] QSC 236
Cite 2 - [2016] QSC 236
Maycock v Queensland Parole Board[2015] 1 Qd R 408; [2013] QSC 302
2 citations
Jump To
Cite 1 - [2015] 1 Qd R 408
Cite 2 - [2015] 1 Qd R 408
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 & Multicultural Affairs v Yusuf (2001) 206 CLR 323
1 citation
Jump To
Cite 1 - (2001) 206 CLR 323
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
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
Soliman v University of Technology, Sydney (2012) 207 FCR 277
2 citations
Jump To
Cite 1 - (2012) 207 FCR 277
Cite 2 - (2012) 207 FCR 277

Cases Citing

No judgments on Queensland Judgments cite this judgment.

1

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