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Silk v Parole Board Queensland[2025] QSC 30

Silk v Parole Board Queensland[2025] QSC 30

SUPREME COURT OF QUEENSLAND

CITATION:

Silk v Parole Board Queensland [2025] QSC 30

PARTIES:

CHRIS SILK

(applicant)

v

PAROLE BOARD QUEENSLAND

(respondent)

FILE NO/S:

BS 16066 of 2024

DIVISION:

Trial Division

PROCEEDING:

Application for a statutory order of review

ORIGINATING COURT:

Supreme Court of Queensland

DELIVERED ON:

25 February 2025

DELIVERED AT:

Brisbane

HEARING DATE:

17 February 2025

JUDGE:

Bradley J

ORDER:

The order of the court is that:

  1. 1. The whole of the decision of the respondent made on 4 September 2024 in respect of the applicant’s application for a parole order is set aside with effect from 4 September 2024, pursuant to section 30(1)(a) of the Judicial Review Act 1991 (Qld) (the “JRA”).
  2. 2. The applicant’s application for a parole order is referred to the respondent for further consideration and for a decision according to law, pursuant to section 30(1)(b) of the Act.
  3. 3. The respondent is to pay the applicant’s costs of the proceeding, to be assessed on the standard basis.

The court directs that:

  1. 4. The respondent is to make a decision on the applicant’s application for a parole order within 28 days from the date of this order, pursuant to s 30(1)(d) of the Act.

CATCHWORDS:

ADMINSTRATIVE LAW – JUDICIAL REVIEW – GROUNDS OF REVIEW – IRRELEVANT CONSIDERATIONS – RELEVANT CONSIDERATIONS – FAILURE TO CONSIDER – where the applicant is serving a sentence of five years imprisonment – where the applicant filed an application for a statutory order of review of the Board’s decision to refuse to make a parole order – where the Board explained its decision to refuse the parole application in a statement of reasons – where the statement of reasons contained inconsistencies and proceeds on a factually inaccurate understanding of the applicant’s completion and engagement with relevant intervention programs – where the Board recommended a substance intervention course to address risk factors relating to his offending – where the course was not available at the relevant correctional centre – whether the Board is bound by the recommendation of the parole eligibility date fixed by the court.

Acts Interpretation Act 1954 (Qld), s 14B

Corrective Services Act 2006 (Qld), s 3, s 4, s 180, s 192, s 193, s 194, s 200, s 216, s 217

Corrective Services Bill 2006 (Qld)

Criminal Code 1899 (Qld), s 411, s 419

Judicial Review Act 1991 (Qld), s 20, s 32, s 33

Boyy v Parole Board Queensland [2018] QSC 175 cited

Burridge v Parole Board Queensland [2021] QSC 244 cited

Cameron v The Queen (2002) 209 CLR 339 cited

Flegg v Crime and Misconduct Commission [2014] QCA 42 applied

Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 cited

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

R v Ungvari [2010] QCA 134 cited

R v Watson [2021] QCA 225 cited

R v WBV [2023] QCA 79 cited

COUNSEL:

The applicant appeared in person

C Templeton for the respondent

SOLICITORS:

The applicant appeared in person

Parole Board Queensland Legal Services for the respondent

  1. [1]
    The applicant (Mr Silk) has sought a review of the decision of the respondent (the Board) to refuse his application for a parole order. 
  2. [2]
    The applicant is serving a sentence of five years imprisonment. The sentence was imposed by the District Court at Brisbane on 8 December 2023 for the two offences of breaking and entering a dwelling with intent, on 26 October 2021,[1] and robbery with personal violence, on 18 August 2023.[2]  The first offence was the most serious of 34 counts on an indictment presented to the court that day, for other offences committed between 24 July 2021 and 23 November 2021. The second offence was the sole count on a separate indictment. 
  3. [3]
    The applicant pleaded guilty to all counts.  They were early pleas of guilty and, as the sentencing judge observed, a mitigating factor reflected in the sentence. Moderating what might otherwise have been a seven-year cumulative sentence, the sentencing judge considered five-year head sentences for the two offences, with immediate parole eligibility, reflected the total criminality of all the offences for which Mr Silk was sentenced that day and the moderation appropriate for the early pleas. His Honour imposed lesser sentences for the other offences.  All were to be served concurrently. 
  4. [4]
    The applicant was aged 38 when he began this course of offending.  He was 40 at the time it concluded, as he was when sentenced. 
  5. [5]
    By the time of the sentencing hearing, Mr Silk had spent a total of 666 days in presentence custody, about one year and ten months.  The District Court declared the whole of that period as time already served under the sentences imposed that day. Consistently with the sentencing remarks, the Court ordered that Mr Silk was eligible for parole immediately from the date of sentence, 8 December 2023.  
  6. [6]
    Five events occurred after the five-year head sentence was imposed:
    1. On 16 January 2024, the Caboolture Magistrates Court accepted Mr Silk’s guilty pleas to a charge of unlawful entry of a vehicle for committing an indictable offence at night involving damaged property and a charge of unlawful use of a motor vehicle. He had committed these two offences on 13 December 2022. The Court sentenced Mr Silk to imprisonment for two years on each charge, to be served concurrently with his existing five-year sentence, and fixed that day, 16 January 2024, as his parole eligibility date.
    2. On 2 February 2024, Mr Silk was again before the Caboolture Magistrates Court. He pleaded guilty to a charge of assault occasioning bodily harm he had committed on 18 November 2022. He was sentenced to imprisonment for two years, to be served concurrently with his other sentences. He was granted immediate parole eligibility.
    3. On 9 April 2024, Mr Silk applied for a parole order.  By then, he had served about two years and two months of his five-year head sentence in custody. 
    4. On 5 June 2024, the Board made a preliminary decision to refuse Mr Silk’s application for parole. The preliminary decision is not the subject of this review.  On 8 July 2024, the Board wrote to Mr Silk setting out its preliminary decision.  It is not necessary to consider the Board’s reasons for it, save to the extent the Board relied on parts of them for the later decision, which is the subject of this review.
    5. On 30 August 2024, the District Court at Brisbane accepted Mr Silk’s guilty pleas for offences associated with the 18 August 2023 offending, for which the Court had sentenced him on 8 December 2023, with which he had not been charged at the time of the earlier sentence hearing. The Court sentenced him to imprisonment for two years and six months.  The Court declared 210 days of presentence custody (almost seven months) as time already served and suspended the balance of the sentence with an operational period of four years.  In imposing this sentence, the Court did not alter his parole eligibility date of 2 February 2024. 
  7. [7]
    On 4 September 2024, the Board considered Mr Silk’s application for parole, together with the further materials which Mr Silk had submitted[3] and an accommodation review, which had found his proposed accommodation to be suitable. By then, Mr Silk had served almost two years and seven months of his five-year sentence in custody.  He had been eligible to apply for a parole order for more than seven months.  The Board decided that his application for a parole order should be declined. 
  8. [8]
    On 11 October 2024, the Board wrote to Mr Silk informing him of the decision it had made on 4 September 2024 (the decision letter). The Board advised Mr Silk that it would consent to Mr Silk lodging a new application for parole from 4 March 2025, being six months after the  date of the Board’s decision.. That date would be about 13 months after his court-ordered parole eligibility date. 
  9. [9]
    On 15 October 2024, Mr Silk made a written request for a statement of reasons from the Board. The request was made under s 32 of the JRA.  The Board was obliged to provide the statement of reasons as soon as practicable and, in any event, within 28 days after receiving the request.[4]  The Board failed to comply with this statutory obligation.
  10. [10]
    On 24 November 2024, Mr Silk filed an application for a statutory order of review of the Board’s decision to refuse to make a parole order.  The applicant sought the review under s 20 of the JRA. The application identified a single ground for review – a failure to take a relevant consideration into account. The relevant consideration was that a course referred to in the decision letter was not provided at the prison where Mr Silk was held.
  11. [11]
    On 3 December 2024, the Board provided a statement of reasons. Erroneously, the title of the statement of reasons referred to a decision of the Board to refuse to grant parole on 1 August 2024.
  12. [12]
    At the hearing, Mr Silk relied upon an outline of argument dated 8 February 2025. It raised four grounds of review, namely taking an irrelevant consideration into account, failing to take a relevant consideration into account, exercising a discretionary power in accordance with a rule or policy without regard to the merits of the case, and exercising a power in a manner so unreasonable that no reasonable person could so exercise the power.[5]

Relevant and irrelevant consideration grounds

  1. [13]
    The applicant submitted that the statement of reasons included or referred to matters that were factually untrue and contradicted factual findings the Board itself had made, according to other parts of the statement of reasons.  The applicant contended that these errors led the Board either to consider irrelevant matters (which were factually untrue) or to fail to consider relevant matters (which the Board had found were true).  For that reason, it is convenient to consider those two grounds jointly. 

Whether Mr Silk had completed relevant courses and programs

  1. [14]
    The statement of reasons recorded that the Board had made its decision on findings of fact that included the following:
    1. The applicant had completed the short substance intervention (SSI) on 10 November 2023.  The applicant had been waitlisted for the Build don’t break – Resilience course (the Resilience course).[6]
    2. On 16 May 2024, during the parole suitability assessment interview, Mr Silk had identified community support available to him from opioid substitution therapy (OST) which would continue if he were granted a parole order.
    3. Mr Silk had outstanding treatment needs to address risk factors linked to his offending, specifically relating to substance abuse.
    4. Mr Silk’s significant criminal history was linked to his substance abuse.
    5. Mr Silk had maintained good and consistent employment in a trusted position while in custody, including his current position as a cook, which displayed some motivation to positively utilise his time in custody.
    6. Mr Silk’s behaviour in custody had been consistently good and he had no negative incidents during his current term of imprisonment.
  2. [15]
    Notwithstanding the above facts, the statement of reasons recorded the following:
  1. “[49]
    The Board was of the view that as you had not yet completed any intervention programs that may have been available to you, you remained an untreated drug offender. Given your history of substance abuse and its direct link with you offending behaviour as reported by you during the PSA interview, the Board encouraged you to address your outstanding treatment needs. The Board recommended you complete a substance abuse program.
  2. [50]
    The Board was also of the view that taking into account your history of offending and outstanding treatment needs, your risk to the community remained unacceptable while you had not addressed your outstanding treatment needs. The Board was of the view that your risk was likely to be less if you were to complete a substance abuse program.

…

  1. [83]
    The board remained of the view that the risk you posed to the community was unacceptable should you be released without having successfully completed a higher intensity substance abuse program, preferable in a group based custodial setting.
  2. [84]
    The Board noted that engagement in a substance abuse program would provide you with guidance and support in the development of your RRP and release plans to help insure [sic] that you did not return to substance use and linked offending upon release to the community. The Board encourage you to take any opportunity to engage is programs and interventions while in custody, and particularly programs to assist with your substance abuse issues.”
  1. [16]
    According to the statement of reasons, the Board had also noted that:
    1. Although Mr Silk was waitlisted for the Resilience course, there was no commencement date and therefore it was unfair for the Board to delay his release due to not having done the Resilience course.
    2. Mr Silk was receiving OST and, since beginning regular injections, his desire to use drugs had dramatically reduced and he planned to continue this treatment upon his release from custody.
    3. Mr Silk had submitted a relapse prevention plan with his parole application.
    4. Mr Silk was prepared to undertake a substance or behavioural change course in the community, as there was no date for when his correctional centre would facilitate a course.
    5. Mr Silk had done everything in his power to undertake a Resilience course, but it could be another year before that course becomes available.
    6. Mr Silk had completed the high intensity programs at Woodford Correctional Centre.
  2. [17]
    Although it appears that the Board was aware that Mr Silk had commenced the OST program before being taken into custody and had continued that program whilst in custody, rather confusingly the statement of reasons records the following:

“[81]  Whilst the Board acknowledged your proposed engagement in the OST program, it noted the OST program was one component of your substance abuse treatment, and it needed to be used in conjunction with learnings and strategies developed by engagement in a higher intensity substance use program.” [emphasis added]

  1. [18]
    Rather unhelpfully, the statement of reasons also sought to draw upon materials outside the statement of reasons in a way which made the reasons that the Board had decided to refuse the application for a parole order less clear, rather than clearer. The following two paragraphs from the statement of reasons sufficiently indicate the problem:
  1. “[94]
    After reviewing the specifics of your case, the Board reaffirmed the concerns as outlined in its correspondence dated 8 July 2024.
  2. [95]
    For the reasons set out in its previous correspondence to you, the Board decided that you would be an unacceptable risk to the community on a parole order at this time and your application was declined.”
  1. [19]
    Mr Templeton, counsel for the Board, urged the Court to read the statement of reasons “as a whole” and disregard the plainly erroneous parts that were inconsistent with the facts recorded in other parts. The wrong statements are found not only within the statement of reasons but also in the preliminary view letter of 8 July 2024 and in the decision letter of 11 October 2024, each of which the statement of reasons expressly endorsed.  The same may be said for the inconsistent references to Mr Silk’s engagement with the OST program. The inherent confusion within the statement of reasons was exacerbated by the all-encompassing nature of paragraphs [94] and [95] quoted above. 
  2. [20]
    The Court was told the Resilience course was not run at Mr Silk’s Correctional Centre between September 2023 and early 2025.  When the course was offered in early 2025, Mr Silk was not offered a placement.  This was because he had already completed a higher intensity program, namely the six week Changing Habits – Moderate Intensity Substance Intervention program.
  3. [21]
    The applicant contended that the Board had decided the level of risk that he posed to the community on the assumption that he had not engaged and successfully completed all substance abuse programs available to him, had not developed a relapse prevention plan, had not been on the OST program since before his present period in custody and had not continued on that program in custody, and was an “untreated drug offender”.  
  4. [22]
    As Mr Silk noted, the material before the Board showed he had engaged and successfully completed all substance abuse programs available to him, had developed a relapse prevention plan, had been on the OST program since before his present period in custody and had continued the program in custody, and was not an untreated drug offender. On any sensible interpretation of the statement of reasons, the Board considered the contrary and irrelevant assumptions in making its decision about the risk Mr Silk posed to the community. 

Whether the Board was bound by the recommendation of the parole eligibility date fixed by the court

  1. [23]
    As the High Court has observed, “the timing of any plea of guilty has a large bearing on the credit that should be given a prisoner” with a more significant discount afforded “one that is entered at the first reasonable opportunity”.[7]  The extent of the reduction of a sentence to reflect an early plea of guilty frequently includes fixing a parole eligibility date at about one-third of the head sentence,[8] or starting at about that date.[9]  It is a practice, not a hard and fast rule.[10] In each case a sentencing judge must exercise a discretion. 

“The factors relevant to setting a non-parole period include the specific circumstances of the offender including his antecedents, character, and any prior criminal history.”[11]

  1. [24]
    On 8 December 2024, the sentencing judge expressly considered all these relevant factors.  The applicant obtained the benefit of his relevant mitigating circumstances both by way of a reduction of the head sentence his Honour would otherwise have imposed, and by an order that Mr Silk be eligible for parole on the date of the sentence.  The two subsequent sentences by the Caboolture Magistrates Court, also on guilty pleas, were to the same effect.  The second relevant sentence of the District Court at Brisbane left Mr Silk’s parole eligibility unchanged. 
  2. [25]
    The Board’s statement of reasons contains two paragraphs which refer to the parole eligibility date fixed by Court orders.  The first is about the Board’s preliminary decision of 5 June 2024:
  1. “[61]
    The Board was aware of your parole eligibility date of 2 February 2024 provided by the court at the time of your sentencing. However pursuant to section 192(b) of the CSA, the Board was of the view the court would not have been aware of your outstanding treatment needs to address criminogenic risk factors relating to your offending, your unsuitable accommodation or your outstanding court matters.”
  1. [26]
    The second is about the Board’s final decision on 4 September 2024:
  1. [91]
    As stated above at paragraph [61], the Board was aware of your parole eligibility date of 2 February 2024 provided by the court at the time of your sentencing. However pursuant to section 192(b) of the CSA, the Board was of the view the court would not have been aware of your outstanding treatment needs to address risk factors relating to your offending or your poor response to previous community supervision.”
  1. [27]
    At the hearing of this application for a statutory order of review, the Board conceded that there had been no material before it on either occasion from which the Board could have reached the view that the Courts which fixed Mr Silk’s successive parole eligibility dates were not aware of Mr Silk’s outstanding treatment needs to address risk factors relating to his offending or his poor response to previous community supervision.  On the contrary, the transcript of the sentencing remarks of Judge Allen KC, which were before the Board, also included the following:

“You, yourself, have had a persistent addiction to methamphetamine since being introduced to that drug at the tender age of 13 years. And I accept that that addiction underlies your past offending and the offending for which you are being sentenced today. Your recent time in custody has been difficult with 20-hour lockdowns. You have managed to complete a substance abuse program, and now have the assistance of the opioid substitution therapy available in prison.”

  1. [28]
    The Board also accepted that Mr Silk’s poor response to previous community supervision likely was before the District Court in the form of a report from the parole and probation authority, when the head sentence Mr Silk is presently serving was imposed.
  2. [29]
    It follows that the Board proceeded on an incorrect assumption about the knowledge of the sentencing courts when it made the decision to refuse Mr Silk’s application for a parole order.  Frankly, it was an inappropriate and somewhat arrogant assumption.
  3. [30]
    At the hearing, I asked whether the form of words used by the Board – “the Board was of the view the court would not have been aware of your outstanding treatment needs to address risk factors relating to your offending” – was a standard form used by the Board in statements of reasons.  I noted that the Board had used it in statements that had previously come before the Court,[12] and on at least one occasion, erroneously.[13]  Mr Templeton was unable to confirm whether this was the case. 
  4. [31]
    Mr Templeton submitted that this error was not material to the Board’s decision to refuse parole.  He contended that the Board’s power to decide a parole application under s 193 of the Corrective Services Act 2006 (Qld) (the CSA) was an “unfettered discretionary decision”. He submitted s 192 of the CSA, to which the statement of reasons refers in respect of both the preliminary decision and the final decision, should not be construed to leave the Board bound by the recommendation of the sentencing Court or the parole eligibility date fixed by a Court order when the circumstances set out in s 192 are not present.  
  5. [32]
    The two adjacent statutory provisions are relevantly in these terms:
  1. “192
    Parole board not bound by sentencing court’s recommendation or parole eligibility date

When deciding whether to grant a parole order, the parole board is not bound by the recommendation of the sentencing court or the parole eligibility date fixed by the court under the Penalties and Sentences Act 1992, part 9, division 3 if the board—

  1. (a)
    receives information about the prisoner that was not before the court at the time of sentencing; and

Example—

a psychologist’s report obtained during the prisoner’s period of imprisonment

  1. (b)
    after considering the information, considers that the prisoner is not suitable for parole at the time recommended or fixed by the court.
  1. 193
    Deciding parole applications—general
  1. (1)
    After receiving a prisoner’s application for a parole order, the parole board must decide—
  1. (a)
    to grant the application; or
  2. (b)
    to refuse to grant the application.
  1. (2)
    …
  2. (3)
    However, subject to subsection (4), the parole board may defer making a decision until it obtains any additional information it considers necessary to make the decision.

Note—

See also section 193C(1).

  1. (4)
    The parole board must decide the application within the following period after receiving the application—
  1. (a)
    for a decision deferred under subsection (3)—150 days;
  2. (b)
    otherwise—120 days.

Note—

See also section 193C(2).

  1. (5)
    The parole board may grant the application even though a parole order for the same period of imprisonment was previously cancelled.
  2. (6)
    If the parole board refuses to grant the application, the board must—
  1. (a)
    give the prisoner written reasons for the refusal; and
  2. (b)
    if the application is for a parole order other than an exceptional circumstances parole order—decide a period of time within which a further application for a parole order (other than an exceptional circumstances parole order) by the prisoner must not be made without the board’s consent.

…”

  1. [33]
    Under the CSA, the purpose of corrective services is “community safety and crime prevention through the humane containment, supervision and rehabilitation of offenders”.[14]  The CSA recognises that:

“every member of society has certain basic human entitlements, and that, for this reason, an offender’s entitlements, other than those that are necessarily diminished because of imprisonment or another court sentence, should be safeguarded.”

  1. [34]
    Other relevant provisions of the CSA include the following:
  1. “3
    Purpose
  1. (1)
    The purpose of corrective services is community safety and crime prevention through the humane containment, supervision and rehabilitation of offenders.
  2. (2)
    This Act recognises that every member of society has certain basic human entitlements, and that, for this reason, an offender’s entitlements, other than those that are necessarily diminished because of imprisonment or another court sentence, should be safeguarded.
  3. (3)
    This Act also recognises—
  1. (a)
    the need to respect an offender’s dignity; and
  2. (b)
    the special needs of some offenders by taking into account—
  1. (i)
    an offender’s age, sex or cultural background; and
  2. (ii)
    any disability an offender has.
  1. 4
    Definitions

The dictionary in schedule 4 defines particular words used in this Act.

Schedule 4 Dictionary

corrective services means—

  1. (a)
    community corrective services; or
  2. (b)
    custodial corrective services.

community corrective services means services—

  1. (a)
    for offenders who are not prisoners; or
  2. (b)
    provided at a community corrections office.

custodial corrective services means services for prisoners in a corrective services facility.

  1. 180
    Applying for parole order etc.
  1. (1)
    A prisoner may apply for a parole order if the prisoner has reached the prisoner’s parole eligibility date in relation to the prisoner’s period of imprisonment.
  2. (2)
    However, a prisoner can not apply for a parole order—
  1. (a)
    if a previous application for a parole order made in relation to the period of imprisonment was refused—
  1. (i)
    until the end of the period decided under section 193(6)(b); or
  2. (ii)
    unless the parole board consents; or
  1. (b)
    if an appeal has been made to a court against the conviction or sentence to which the period of imprisonment relates—until the appeal is decided; or
  2. (c)
    if the prisoner is a restricted prisoner and a restricted prisoner declaration is in force for the prisoner; or
  3. (d)
    if the prisoner is a no body-no parole prisoner and a no cooperation declaration is in force for the prisoner; or
  4. (e)
    otherwise—more than 180 days before the prisoner’s parole eligibility date.
  1. (3)
    The application must be made—
  1. (a)
    in the approved form; and
  2. (b)
    to the parole board.
  1. 194
    Types of parole orders granted by parole board
  1. (1)
    The parole board may, by a parole order—
  1. (a)
    …; or
  2. (b)
    release an eligible prisoner on parole.
  1. (2)
    …
  2. (3)
    The board must give a copy of the parole order to the prisoner.
  3. (4)
    In this section—

eligible prisoner means a prisoner, who—

  1. (a)
    may apply for the parole order under section 180(1); …200              Conditions of parole
  1. (1)
    A parole order must include conditions requiring the prisoner the subject of the order—
  1. (a)
    to be under the chief executive’s supervision—
  1. (i)
    until the end of the prisoner’s period of imprisonment; or
  2. (ii)
    if the prisoner is being detained in an institution for a period fixed by a judge under the Criminal Law Amendment Act 1945, part 3—for the period the prisoner was directed to be detained; and
  1. (b)
    to carry out the chief executive’s lawful instructions; and
  2. (c)
    to give a test sample if required to do so by the chief executive under section 41; and
  3. (d)
    to report, and receive visits, as directed by the chief executive; and
  4. (e)
    to notify the chief executive within 48 hours of any change in the prisoner’s address or employment during the parole period; and
  5. (f)
    not to commit an offence.
  1. (2)
    A parole order may contain a condition requiring the prisoner to comply with a direction given to the prisoner under section 200A.
  2. (3)
    A parole order granted by the parole board may also contain conditions the board reasonably considers necessary—
  1. (a)
    to ensure the prisoner’s good conduct; or
  2. (b)
    to stop the prisoner committing an offence.

Examples—

  • a condition about the prisoner’s place of residence, employment or participation in a particular program
  • a condition imposing a curfew for the prisoner
  • a condition requiring the prisoner to give a test sample
  1. (4)
    The prisoner must comply with the conditions included in the parole order.
  1. [35]
    The ordinary meaning conveyed by s 192, having regard to its context in the CSA (including s 193) and to the purpose of corrective services and the objects recognised by the CSA, is that the circumstances in which the Board is not bound by the parole eligibility date fixed by a sentencing Court are those satisfying both paragraphs (a) and (b) of s 192.  Where both of the paragraphs are not satisfied, the Board remains bound by the parole eligibility date fixed by the order of the sentencing Court. 
  2. [36]
    The submission that the Board has an unfettered discretion about granting or refusing parole sits oddly with s 200(1) of the CSA, which directs the Board as to the conditions it must include in a parole order.  The CSA expressly describes the areas where the Board has a discretion, such as ss 200(2) and (3).  
  3. [37]
    It is desirable that s 192 be interpreted as having its ordinary meaning, because the ordinary meaning of s 192 adversely affects the rights and liberties of prisoners.  Without s 192, the Board would be bound by a Court’s decision in a criminal proceeding, because that decision binds the Crown and all its emanations, subject to any express or implied statutory provision to the contrary.  Like any Court decision, an order fixing a parole eligibility date can be set aside or altered by a decision of another Court pursuant to a statutory process of appeal or review of the original Court’s decision.  
  4. [38]
    If the Board’s contentions about s 192 were to be accepted, the Board would never be bound by a sentencing Court’s order fixing a parole eligibility date.  Such an interpretation would render s 192 of no effect.  That is a further reason to reject the Board’s submission and find s 192 bears its ordinary meaning.
  5. [39]
    It follows that the meaning of s 192 is not ambiguous because the Board’s interpretation is not open.  However, as the Board has advanced its alternative interpretation, it is desirable to confirm the interpretation conveyed by the ordinary meaning of the provision.  It follows that this Court may consider the explanatory memorandum relating to the Corrective Services Bill 2006, which contained the provision enacted as s 192, laid before Parliament on 29 March 2006 (the EM).[15]  The EM shows the ordinary meaning to be consistent with (and the Board’s interpretation to be contrary to) the EM.  The EM explained clause 192 of the Bill in this way:

“The Bill provides that when deciding whether to grant a parole order, a parole board is not bound by the recommendation of the court that sentenced the prisoner if the board receives information about the prisoner that was not before the court at the time of sentencing and after considering the information, considers that the prisoner is not suitable for parole at the time recommended by the court.  Arguably the ability of a parole Board to depart from a recommendation of a court adversely affects the rights and liberties of prisoners.

This possible breach must be balanced against the overriding need to protect the community. The parole boards only hear applications from prisoners serving lengthy periods of imprisonment and as a result new information can become available between the time a prisoner is sentenced and when a prisoner becomes eligible to apply for parole that is relevant to assessing whether a prisoner is suitable for release into the community. There is an added protection in the Bill that a parole board may only depart from a sentencing court’s recommendation [for] parole upon reliance on information not before the court at the time of sentence. [emphasis added]

…

Clause 192 provides that a parole board is not bound by a recommendation of the court that sentenced a prisoner or the parole eligibility date of the court fixed under the Penalties and Sentences Act 1992, part 9, division 3, if the board receives information that was not before the court at the time of sentencing and, if after considering the information, the board considers that the prisoner is not suitable for release at the time recommended or fixed by the court.

Examples—

  1. 1.The board may receive advice that the prisoner has failed to undertake a program aimed at addressing the prisoner's offending behaviour.
  2. 2.The board may receive advice that the prisoner's release plan is unacceptable, for instance a prisoner convicted of a sexual offence against a child may have nominated as the proposed residence on release, a home in which children live.
  3. 3.The board may obtain a psychologist’s report that was given during the prisoner’s period of imprisonment.”
  1. [40]
    The EM can assist in the interpretation of s 192 of the CSA.  When consideration is given to the EM, it confirms the interpretation conveyed by the ordinary meaning of s 192. 
  2. [41]
    The importance of the parole eligibility date fixed by order of the sentencing Court is reinforced by its inclusion in the Ministerial Guidelines to the Board[16] as a relevant factor to which the Board should have regard when deciding the level of risk that a prisoner may pose to the community.[17]  It is plainly a relevant consideration. 
  3. [42]
    Owing to the Board’s wrong and unfounded assumption that the sentencing judge would not have been aware of Mr Silk’s outstanding treatment needs to address risk factors relating to his offending, and his poor response to previous community supervision, the Board proceeded as if it was not bound by the parole eligibility date fixed by Court order.  This error meant that the Board failed to consider (or give proper consideration to) the parole eligibility date in making its decision to refuse to make a parole order. 

Application of a rule or policy without regard to the merits

  1. [43]
    This ground was not a focus of Mr Silk’s written or oral submissions.  He did not identify any rule or policy that the Board applied.  I am not satisfied that Mr Silk has established this ground of review. 

Unreasonableness

  1. [44]
    Nor am I satisfied that the Board’s exercise of power was so unreasonable that no reasonable person could have exercised the power in that manner.
  2. [45]
    The Board is established by the CSA.[18] One of its functions is to decide applications for parole orders, such as that made by Mr Silk.[19]  The Board is required to decide to grant or refuse to make a parole order.[20]  This statutory power given to the Board is to be exercised reasonably.[21] The standard of reasonableness is “indicated by the true construction of the statute”.[22] 
  3. [46]
    The reasonableness of an exercise of the Board’s power to grant or refuse an application for a parole order may be assessed against that purpose and recognition.
  4. [47]
    More broadly, as in an application for prerogative relief, a decision of the Board would be unreasonable if it lacked “an evident and intelligible justification”[23] when “all relevant matters were considered”.[24]  So, there will have been an unreasonable exercise of power where the resulting decision is one for which no logical basis can be discerned.[25]  
  5. [48]
    As Gotterson JA explained in Flegg v Crime and Misconduct Commission, a challenge on the unreasonableness ground is:

“…not a vehicle for challenging a decision on the basis that the decision-maker has given insufficient or excessive consideration to some matters or has made an evaluative judgment with which the Court disagrees even though that judgment is rationally open to the decision-maker.”[26]

  1. [49]
    The challenge to the Board’s decision on this unreasonableness ground requires a consideration of the Board’s decision against the background of the statutory power, any guidance for its exercise, the material before the Board and the reasons provided by the Board. Each of these topics has been addressed above. 
  2. [50]
    The inherent contradictions in the statement of reasons, the consideration of plainly wrong assumptions about Mr Silk’s efforts at rehabilitation, the unfounded and erroneous view of the sentencing judge’s knowledge, and the mistaken interpretation of s 192 and s 193(1), go some way towards establishing Mr Silk’s unreasonableness ground. 
  3. [51]
    However, it is not necessary to determine whether Mr Silk has met the very high requirement to establish this ground.  This is because Mr Silk has established that the Board considered the irrelevant and erroneous matters and failed to consider the relevant parole eligibility date fixed by the sentencing judge.  The Board’s decision should be set aside on those grounds.
  4. [52]
    The order of the Court will be to the effect that:
  1. 1. The whole of the decision of the Board made on 4 September 2024 in respect of Mr Silk’s application for a parole order is set aside with effect from 4 September 2024, pursuant to section 30(1)(a) of the JRA.
  2. 2. Mr Silk’s application for a parole order is referred to the Board for further consideration and for a decision according to law, pursuant to section 30(1)(b) of the JRA.
  3. 3. The Board is to pay Mr Silk’s costs of the proceeding, to be assessed on the standard basis.
  1. [53]
    The Court will also direct the Board to make a decision on Mr Silk’s application for a parole order within 28 days from the date of this order, pursuant to s 30(1)(d) of the JRA.

Footnotes

[1] An offence under ss 419(1) and (2) of the Criminal Code 1899 (Qld) (the Code).

[2] An offence under ss 411(1) and (2) of the Code.

[3] On 13 August 2024, 19 August 2024 and 2 September 2024, the Applicant and his legal representatives had provided further information to the Board in response to the preliminary decision.

[4] JRA , s 33(1).

[5] The hearing proceeded on the basis that all four grounds were raised. This was because the Board’s delay in providing its statement of reasons had left the applicant to file his application for a statutory order of review without the benefit of a statement of reasons. The Board did not object to this course.

[6] The material before the Board showed the applicant had been waitlisted for the Resilience course since 8 September 2023. 

[7] Cameron v The Queen (2002) 209 CLR 339 at 359 [65](4) (Kirby J).

[8] R v Watson [2021] QCA 225 at [23] (McMurdo and Bond JJA and Kelly J).

[9] R v Ungvari [2010] QCA 134 at [30] (White JA).

[10] R v Watson [2021] QCA 225  at [24] (McMurdo and Bond JJA and Kelly J).

[11] R v WBV [2023] QCA 79 at [40] (Crow J, with whom Dalton and Boddice JJA agreed).

[12] See, e.g., Boyy v Parole Board Queensland [2018] QSC 175.

[13] Burridge v Parole Board Queensland [2021] QSC 244 at [55].

[14] CSA, s 3(1).

[15] Acts Interpretation Act 1954 (Qld), ss 14B(1)(c), (2), and (3)(e). 

[16] CSA, s 242E.

[17] Ministerial Guidelines to the Parole Board Queensland, Section 2 – Suitability, cl 2.1(e).

[18] CSA, s 216.

[19] Ibid, s 217(a).

[20] Ibid, s 193(1)

[21] Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 (Li) at 362 [63] (Hayne, Kiefel and Bell JJ).

[22] Li at 364 at [67] (Hayne, Kiefel and Bell JJ)

[23] Li at 367 [76] (French CJ).

[24] Flegg v Crime and Misconduct Commission [2014] QCA 42 at [3] (McMurdo P).

[25] Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611 (Eshetu) at 640 [101] (Gaudron and Kirby JJ).

[26] [2014] QCA 42 at [16] (Gotterson JA), citing French CJ in Li at 351 [30].

Close

Editorial Notes

  • Published Case Name:

    Silk v Parole Board Queensland

  • Shortened Case Name:

    Silk v Parole Board Queensland

  • MNC:

    [2025] QSC 30

  • Court:

    QSC

  • Judge(s):

    Bradley J

  • Date:

    25 Feb 2025

  • Selected for Reporting:

    Editor's Note

Appeal Status

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

Cases Cited

Case NameFull CitationFrequency
Boyy v Parole Board Queensland [2018] QSC 175
2 citations
Jump To
Cite 1 - [2018] QSC 175
Cite 2 - [2018] QSC 175
Burridge v Parole Board Queensland [2021] QSC 244
2 citations
Jump To
Cite 1 - [2021] QSC 244
Cite 2 - [2021] QSC 244
Cameron v The Queen (2002) 209 CLR 339
2 citations
Jump To
Cite 1 - (2002) 209 CLR 339
Cite 2 - (2002) 209 CLR 339
Flegg v Crime and Misconduct Commission [2014] QCA 42
3 citations
Jump To
Cite 1 - [2014] QCA 42
Cite 2 - [2014] QCA 42
Cite 3 - [2014] QCA 42
Minister for Immigration and Citizenship v Li (2013) 249 CLR 332
2 citations
Jump To
Cite 1 - (2013) 249 CLR 332
Cite 2 - (2013) 249 CLR 332
Minister for Immigration v Eshetu (1999) 197 CLR 611
2 citations
Jump To
Cite 1 - (1999) 197 CLR 611
Cite 2 - (1999) 197 CLR 611
R v Ungvari [2010] QCA 134
2 citations
Jump To
Cite 1 - [2010] QCA 134
Cite 2 - [2010] QCA 134
R v Watson [2021] QCA 225
3 citations
Jump To
Cite 1 - [2021] QCA 225
Cite 2 - [2021] QCA 225
Cite 3 - [2021] QCA 225
R v WBV [2023] QCA 79
2 citations
Jump To
Cite 1 - [2023] QCA 79
Cite 2 - [2023] QCA 79

Cases Citing

No judgments on Queensland Judgments cite this judgment.

1

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