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This judgment contains a detailed consideration of the correct construction of both sections 175D and 175H Corrective Services Act 2006. The applicant, who had been convicted of a double murder, challenged the validity of a “restricted prisoner declaration” by the respondent pursuant to which his attempts to obtain parole had been curtailed. The applicant sought to argue that the respondent’s decision to make the declaration had involved an error of law in that the respondent had not considered whether parole conditions or any other matters would mitigate the risk posed by his release. The application was dismissed.
19 December 2023
The applicant was sentenced to life imprisonment in 2002. On 3 March 2023, the respondent made a “restricted prisoner declaration” concerning him under s 175D Corrective Services Act 2006, which applies until 4 September 2026 and has the effect of extending his parole ineligibility beyond the date set by the sentencing judge. . In an application for judicial review which was made out of time, (but to which the respondent did not object), the applicant queried the soundness of the declaration which had been made.
The applicable legislation, introduced in 2021, has been contentious.
Pursuant to s 175E, the president of the Parole Board is able to make a “restricted prisoner declaration”, at their discretion, about a restricted prisoner. To that end, part of the information the president is required to consider is a “restricted prisoner report” prepared by the chief executive under s 175F. According to that provision, “[t]he chief executive may, at any time during a restricted prisoner’s period of imprisonment, give the president a restricted prisoner report about the prisoner that includes information the chief executive considers is relevant to any of the matters mentioned in section 175H(2).” A “restricted prisoner report” may also be prepared when a restricted prisoner applies for parole.
The explanatory notes to the Bill indicate that one of the key reasons for the introduction of the “restricted prisoner declaration” regime was “to limit re-traumatisation of victims’ families and friends by introducing a new framework for parole decisions about a life sentenced prisoner who has committed multiple murders or who has murdered a child”. .
The respondent’s decision
In making the declaration the respondent had regard to the full extent of the applicant’s offending, the seriousness of the offences, the sentencing remarks , “any risk the prisoner may pose to the public if the prisoner is granted parole” , relevant specialist opinions  and the likely effect the applicant’s release on parole might potentially have on an eligible person or victim. . After considering those matters, he determined that it was appropriate to make the declaration for an operative period of three years and six months. .
The contended error
The applicant argued that the respondent had misconstrued s 175H(2)(b) of the Act since he had failed to consider whether parole conditions or any other matters would serve to mitigate his risk. In that regard, the applicant noted that in para 12 of the respondent’s reasons, he explicitly stated “[i]t is not for me to consider here whether any parole conditions or any other factors may mitigate his risk”. . The applicant contended that the respondent had erred in “treating the consideration required by s 175H(2)(b) … as a binary question that does not involve consideration of the effect that any parole conditions might have on the applicant’s risk”. .
Instead, he argued that the section contemplates that a qualitative assessment of the risk presented by an individual prisoner be undertaken, with respect to how parole conditions might affect that risk. To that end, he contended that the words “if the prisoner is granted parole” import a requirement to consider the effect of a notional set of parole conditions, and that since the respondent had not done so, (instead merely addressing whether he posed any risk to the public if granted parole, as though there were a binary choice between “a risk” and “no risk”), that was in error. .
In dismissing the application, the Chief Justice held as follows:
1.Importing a requirement in s 175H(2)(b) Corrective Services Act 2006 for the president to analyse the effect of a possible set of parole conditions in considering “any risk the prisoner may pose to the public if the prisoner is granted parole”, strains the language of the provision. Rather, correctly understood, the words used in the section simply mean that all the president needs to consider is “any risk the prisoner may pose to the public” in the event they are granted conditional release into the community. .
2.Since parole is the only means by which a restricted prisoner is able to be released into the community, it logically follows that the reference to “is granted parole” denotes a reference to a grant of conditional release, in the broad sense. Whilst the word “parole” necessarily includes the concept of “conditional release” it does not necessarily impose the requirement to consider a particular set of possible conditions. .
3.The context of the provision also lends support to this construction of the words of s 175H(2)(b). It can be seen that s 175H(2)(b) is one of the mandatory considerations for the making of a decision, in the exercise of a discretionary power to be exercised in the public interest, as a precursor to any consideration of a parole application, which ultimately places an additional barrier in the way of an application for parole. The expressed purpose of the relevant provisions is to limit the re-traumatisation of victims’ families and friends and to protect the community from harm. With that in mind, a wider approach to the consideration of “any risk” posed by the prisoner, if granted parole, is fitting. .
4.The potential risk to the public in the event of parole is only one of three factors which the president must take into account in deciding whether to make a restricted prisoner declaration. It is up to the president to determine what weight should be given to each consideration. The discretion conferred on the president by the “restricted prisoner declarations” provisions is exercised in the public interest with a view to limiting re-traumatisation of victims’ families and ensuring community protection. To limit the meaning of s 175H(2)(b) in the manner suggested by the applicant is incompatible with the purpose of the provision. .
5.The respondent’s reasons do not indicate that he assessed the consideration of risk for the purposes of s 175H(2)(b) in a “binary way”, as if the outcome was either risk or no risk. Upon reading the reasons as a whole it is apparent that the respondent undertook a comprehensive consideration of the various assessments of the prisoner undertaken by several psychiatrists, albeit particularly emphasising the most current. “That was appropriate, for a consideration of ‘any risk the prisoner may pose to the public if [he] is granted parole’ (s 175H(2)(b)) must necessarily be informed by such material. That is not the same thing as saying that the consideration of risk, for the purposes of this subsection, necessitates consideration of the effect of a particular set of possible parole conditions”. .
The application was dismissed, with the Court ordering that each party bear their own costs of the proceeding.