Silk v Parole Board Queensland

This matter principally concerned a review of the decision of the parole board to refuse the applicant’s application for a parole order. The review was pursued on four grounds, but the primary consideration for Bradley J was whether the Board’s failure to have regard to relevant considerations and subsequent regard to irrelevant/factually incorrect matters affected their decision to refuse to grant parole. In determining that the board had proceeded on the basis of unfounded and factually incorrect matters, Bradley J held, allowing the appeal, that the Board incorrectly proceeded on the basis that it was not bound to consider the parole eligibility date fixed by the Court.

Bradley J

25 February 2025

On 8 December 2023, the applicant was sentenced by the District Court at Brisbane for two offences of breaking and entering a dwelling with intent and robbery with personal violence. The offending conduct was contained in two indictments and totalled 34 offences. The entering first offences were the most serious of all offending conduct. [2]. Moderating what otherwise would 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 early pleas. [3]. The date of eligibility of parole, which was also the date of sentence, was 8 December 2023. [5].

Five events occurred after the five-year head sentence was imposed:

(a)On 16 January 2024, Mr Silk plead guilty to and was sentenced for unlawful entry of a vehicle for committing an indictable offence at night involving damaged property and unlawful use of a motor vehicle. The term of imprisonment imposed was ordered to be served concurrently with the head sentence from 8 December 2023. A new parole eligibility date was set as at 16 January 2024; [6a];

(b)On 2 February 2024, Mr Silk was again sentenced for offending that pre-dated the 8 December 2023 sentence. A concurrent term of imprisonment was imposed and his parole eligibility date was the date of sentence; [6b];

(c)On 9 April 2024, having served two years and two months of the five year head sentence, Mr Silk applied for parole; [6c];

(d)On 5 June 2024, the Board made a preliminary decision to refuse parole; [6d];

(e)On 30 August 2024, Mr Silk pleaded guilty to and was sentenced for further offending associated with the offences he was sentenced for on 8 December 2023, which he had not been charged with at the time of the earlier sentence hearing. A suspended sentence was imposed and the parole eligibility date was not altered. [6e].

On 4 September 2024, the Board considered and subsequently declined the application for parole. [7]. Despite Mr Silk’s request for a written statement of reasons, the Board failed to provide them within the statutory timeframe.

On 24 November 2024, Mr Silk filed an application for statutory order of review of the Board’s decision to refuse to make a parole order. The single ground of review was the Board’s failure to take account of a relevant consideration, namely, that a course referred to in the decision letter was not provided at the prison where Mr Silk was held. [10]. The Board provided its statement of reasons on 3 December 2024. [11]. At the hearing, four grounds of review were raised: 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 merits of the case, and exercising a power in a manner so unreasonable that no reasonable person could so exercise the power. [12].

Relevant and irrelevant consideration grounds

The applicant submitted that the statement of reasons included or referred to matters that were factually inaccurate and contradicted factual findings the Board itself made. [13].

The statement of reasons made findings of fact that the applicant had completed the short substance intervention course and was on the waitlist for a resilience course, had commenced and would have continued support available to him in the community through the opioid substitution therapy, had been consistently good in custody including by maintaining good and consistent employment in a trusted position. [14]. Notwithstanding those findings of fact, the statement of reasons recorded that the applicant had not completed courses available to him and his risk to the community remained unacceptable while he had not completed a substance abuse program, a statement which was clearly inconsistent with the above findings. [15]. Further, the statement of reasons recorded the applicant’s proposed engagement in the OST program, not that he had in fact commenced the treatment. [17]. His Honour found that on any 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. [22].

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

The prisoner contended, inter alia, that the Parole Board failed to consider the relevant parole eligibility date fixed by the sentencing judge. The applicant entered an early plea of guilty and 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. [24]. The Board’s statement of reasons contained two paragraphs which referred to the parole eligibility date fixed by the Court orders.

At the hearing 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 the prisoner’s successive parole eligibility date were not aware of this outstanding treatment needs to address risk factors relating to his offending or his poor response to previous community supervision. [27] The Board also accepted that the prisoner’s poor response to previous community supervision was likely before the sentencing court in the form of a report from the parole and probation authority, when the head sentence he was presently serving was imposed. [28].

The Board contended this error was not material to the Board’s decision to refuse and that the Board’s power to decide a parole application under s 193 Corrective Services Act 2006 was an “unfettered discretionary decision”. It was submitted s 192, to which the statement of reasons referred 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. [31].

Held, setting aside the decision on this basis.

That the ordinary meaning conveyed by s 192 Corrective Services Act 2006, having regard to its context in the Act (including s 193) and to the purpose of corrective services and the objects recognised by the Act, 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 paras (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. [35].

That 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 was a further reason to reject the Board’s submission and find s 192 bears its ordinary meaning. [38], [39]–[40].

That owing to the Board’s wrong and unfounded assumption that the sentencing judge would not have been aware of the prisoner’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. [42].

Disposition

In the result, the appeal was allowed. The Board was ordered to pay for Mr Silk’s costs of the proceedings. [52].

K Mythen of Counsel