Burridge v Parole Board Queensland [2021] QSC 244

SUPREME COURT OF QUEENSLAND CITATION: Burridge v Parole Board Queensland [2021] QSC 244 PARTIES: TREVOR LEWIS BURRIDGE (applicant) v PAROLE BOARD QUEENSLAND (respondent) FILE NO: BS No 7509 of 2021 DIVISION: Trial Division PROCEEDING: Application DELIVERED ON: 29 September 2021 DELIVERED AT: Brisbane HEARING DATE: 22 September 2021 JUDGE: Bradley J ORDER: The order of the court is that: 1. The whole of the decision of the respondent made on 8 June 2021 in respect of the applicant’s application for a parole order is set aside with effect from 8 June 2021, pursuant to section 30(1)(a) of the Judicial Review Act 1991 (Qld) (the “Act”). 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. The respondent is to pay the applicant’s costs of the proceeding, to be assessed on the standard basis. The court directs that: 4. Within five business days of this order, the respondent is to advise the applicant and the court of whether it proposes any alternative to the directions proposed by the applicant (namely, that the respondent reconsider the applicant’s application for a parole order within 30 days and inform the applicant of its decision within seven days). 5. Within five business days of receipt of the respondent’s advice, the applicant is to advise the respondent and the court of his response, if any, to any alternative directions proposed by the respondent. 6. Each of the parties is to advise the court whether the party requires an oral hearing on the proposed -- 1 of 29 -- 2 directions or is content for the court to make directions on the papers without an oral hearing. CATCHWORDS: ADMINISTRATIVE LAW – JUDICIAL REVIEW – GROUNDS OF REVIEW – PROCEDURAL FAIRNESS – where the applicant is serving a life sentence for murder – where the applicant became eligible for parole in 2006 and was granted parole on two previous occasions – where the applicant was returned to custody and the parole orders cancelled – where the applicant made the present application for parole which was refused by the Parole Board – where the applicant has applied for judicial review of the Board’s decision to refuse the parole application – whether the Board breached the rules of natural justice in its decision to decline the parole application ADMINISTRATIVE LAW – JUDICIAL REVIEW – GROUNDS OF REVIEW – RELEVANT CONSIDERATIONS – FAILURE TO CONSIDER – where the Board explained its decision to refuse the parole application in a statement of reasons – where the statement of reasons proceeds on a factually inaccurate understanding of the applicant’s criminal history, supposed violent responses to emotional distress and custodial behaviour – where the Board found the applicant displayed a poor response to previous community-based supervision orders – where the Board failed to consider expert evidence about recommended parole conditions– whether the Board failed to consider relevant considerations in deciding the risk the applicant would pose to the community if released on parole ADMINISTRATIVE LAW – JUDICIAL REVIEW – GROUNDS OF REVIEW – APPLIED POLICY WITHOUT REGARDS TO THE MERITS – where the Board commissioned two Risk Assessment Reports by a consultant psychiatrist – where the consultant psychiatrist expressed a professional opinion about the applicant’s outstanding treatment needs – where the Board adopted a view contrary to the opinion of the consultant psychiatrist without any explanation – where the Board recommended a high intensity substance intervention course to reduce the applicant’s risk to the community – where the course was not available at the relevant correctional centre – whether the Board failed to give proper, genuine and realistic consideration to the merits of the application in exercising its discretion in accordance with policy Corrective Services Act 2006 (Qld), s 3, s 193(1), s 216, s 217, s 242E Judicial Review Act 1991 (Qld), s 20, s 23, s 30, s 32(1) Allianz Australia Insurance Ltd v Cervantes (2012) 61 MVR 443; [2012] NSWCA 244, cited Calanca v Parole Board Queensland [2019] QSC 34, -- 2 of 29 -- 3 followed Gough v Southern Queensland Regional Parole Board [2008] QSC 222, cited Khan v Minister for Immigration and Ethnic Affairs (1987) 14 ALD 291; [1987] FCA 713, applied Kioa v West (1985) 159 CLR 550; [1985] HCA 81, cited Mahoney v Chief Executive, Department of Transport and Main Roads (2014) 206 LGERA 302; [2014] QCA 356, applied Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24; [1986] HCA 40, cited Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611; [1999] HCA 21, cited R (Munjaz) v Mersey Care NHS Trust [2006] 2 AC 148, cited Drake v Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634, cited COUNSEL: The applicant appeared on his own behalf S Robb for the respondent SOLICITORS: The applicant appeared on his own behalf Parole Board Queensland for the respondent [1] Trevor Lewis Burridge has applied for judicial review of the decision of the Parole Board Queensland (the Board) to refuse to grant his application for a parole order. [2] The Board is established by the Corrective Services Act 2006 (Qld) (the CSA).1 One of its functions is to decide applications for parole orders.2 The Board is required to decide to grant or refuse each application.3 [3] Mr Burridge seeks an order setting aside the Board’s decision under s 30(1) of the Judicial Review Act 1991 (Qld) (the JRA) and an order that the Board reconsider his application within 30 days and inform him within seven days of its decision. Background [4] Mr Burridge is a prisoner at the Borallon Training and Correctional Centre (BTCC). He is serving a life sentence for murder committed 28 years ago, on 29 September 1993, when he was aged 21. He was arrested on 1 October 1993 and held in custody from that date. [5] Mr Burridge became eligible for parole in December 2006, having served 13 years in custody.4 The Board made this first parole order in May 2011 and he was released on 6 June 2011, at age 39.5 He was returned to custody on 29 July 2013, when this 1 CSA, s 216. 2 CSA, s 217(a). 3 CSA, s 193(1). 4 At the time Mr Burridge was sentenced, s 166(1)(a) of the then Corrective Services Act 1988 (Qld) provided that a prisoner serving a term of life imprisonment was not eligible for parole until the prisoner had been detained for a period of 13 years. 5 This first parole order does not appear to have been before the Board when the present decision was made. It is described but not exhibited in the evidence before the court. -- 3 of 29 -- 4 order was suspended. On 29 October 2013, after three months in custody, he was released on the same parole order, when the suspension ended. [6] On 20 October 2015, the Corrective Services Queensland (QCS) chief executive suspended Mr Burridge’s first parole order. Mr Burridge returned to custody, aged 43. On 6 November 2015, the Board cancelled the first parole order. [7] On 24 July 2019, the Board made a second parole order. It directed that Mr Burridge be granted and released to parole on 19 August 2019, at age 47. [8] On 16 January 2020, shortly after his 48th birthday, Mr Burridge was returned to custody. On 26 August 2020, the Board cancelled the second parole order. The present application for parole and the Board’s decision [9] On 8 November 2020, Mr Burridge made another application for parole. The Board received it on 10 November 2020. [10] On 8 April 2021, Mr Burridge filed an application to review the Board’s failure to make a decision within the time required by s 193(3) of the CSA. The application was listed for a hearing on 20 April 2021. [11] On 19 April 2021, a legal officer of the Board wrote to Mr Burridge stating that at a meeting that day the Board made a preliminary decision to refuse his application for parole. This was, at best, a half-truth.6 [12] On 21 April 2021, someone for and on behalf of the Board wrote to Mr Burridge informing him that his application and some other documents were considered by the Board at meetings on 19 and 21 April 2021. According to this letter, the Board considered 138 pages of material. By the letter, the Board advised Mr Burridge that after “considering all the available documents”, it had formed a preliminary view that his application should be declined. [13] The purpose of the letter was to draw Mr Burridge’s attention “to the adverse factors that resulted in that preliminary opinion.” The letter set out its content under a series of headings: Criminal History; Sentencing Remarks; Outstanding Treatment Needs; Forensic Psychological/Psychiatric Risk Assessment Report; Previous Community Based Supervision; Custodial Behaviour; and Conditions of Parole. The letter concluded with an invitation to Mr Burridge “to send the Board any further written submissions you wish to make and/or to provide any further supporting documents.” The letter advised: “Those submissions and/or documents should address the issues raised in this letter; and should be sent within 14 days of the date on which you receive this letter.” [14] It is convenient to refer to this letter as the preliminary view letter. It was littered with inaccuracies. These give some indication of the attention the Board paid to the material in the 138 pages it was said to have considered. 6 It appears the letter was written to avoid the court making directions for a hearing of Mr Burridge’s application for an order requiring the Board to make the overdue decision. -- 4 of 29 -- 5 [15] On 26 April 2021, Mr Burridge replied. Over ten pages, he identified many of the errors in the preliminary view letter. The Board received this reply on 27 April 2021. By then it had also received sessional summaries from Mr Burridge’s treating psychologist, Ms Geddes. On 27 May 2021, he provided a letter from Prisoner Services and on 30 May 2021 an email with an update from the psychologist and a copy of Mr Burridge’s nine-page safety and relapse plan. [16] On 8 June 2021, the Board met. According to a letter written for and on behalf of the Board, dated 10 June 2021: “The Board determined that there was no new information contained in your further submissions and other material received which would sufficiently alleviate the Board’s concerns as outlined in correspondence dated 21 April 2021. Considering your application as a whole and having regard to the Ministerial Guidelines, parole conditions that could be imposed in a parole order and legislative timeframes within which the Board is required to make its decision (section 193 of the Corrective Services Act 2006), the Board remains of the view that the circumstances identified in your application dated 8 November 2020 do not warrant your release to parole at this time. The Board has therefore formed a view that your application for parole should be declined at this time. The Board consent to you lodging a new application for parole in the usual manner in 8 months from the date of this decision[7] and encourages you to remain breach and incident free in the meantime.” The Statement of Reasons [17] On 14 June 2021, the solicitors for Mr Burridge wrote to the Board requesting a written statement in relation to the Board’s decision, pursuant to s 32(1) of the JRA. [18] On 16 July 2021, the President of the Board provided a statement containing the reasons for the Board’s decision pursuant to ss 33(1) and 34 of the JRA (the statement of reasons). Grounds of Review [19] In his original application, Mr Burridge contended that the Board’s decision to refuse his parole application should be reviewed on four grounds. These were: (a) The Board breached natural justice in making the decision by denying him procedural fairness.8 (b) The making of the decision was an improper exercise of the power because the Board took irrelevant considerations into account.9 7 Having taken about eight months to decide Mr Burridge’s application, the Board’s decision prevented Mr Burridge from making a new application for a further period of eight months from 8 June 2021. 8 JRA, s 20(2)(a). 9 JRA, s 20(2)(e) and s 23(a). -- 5 of 29 -- 6 (c) The making of the decision was an improper exercise of the power because the Board did not take relevant considerations into account.10 (d) The making of the decision was an improper exercise of the power because the Board exercised a discretionary power in accordance with a rule or policy and so made the decision without regard to the merits of Mr Burridge’s case.11 [20] On 18 August 2021, the court gave Mr Burridge leave to file another version of his application for a statutory order of review. In it, he added another ground of review: that the making of the decision was an improper exercise of the power because the Board exercised its power “in such a way that the result of the exercise of the power is uncertain.”12 The natural justice ground [21] A relevant decision may be set aside in circumstances where a person whose rights or interests are affected by the decision was not afforded natural justice. The Board was performing a public function in considering the parole application. The court may infer that the Board was required to perform its function fairly. Mr Burridge’s rights and interests were affected by the decision. [22] As Brennan J put it in Kioa v West: “It does not diminish the importance of the principles of natural justice to say that they are not concerned with the merits of a particular exercise of power but with the procedure that must be observed in its exercise”.13 [23] The steps required form a decision maker to act fairly vary according to the circumstances and the matter to be decided.14 This was a particularly important matter, involving Mr Burridge’s continued detention or (perhaps conditional) liberty. To act fairly, the Board had to allow Mr Burridge a reasonable opportunity to put his case for a grant of parole, and the Board had to bring an impartial mind to its consideration of his application. [24] Mr Burridge did not identify any step taken or not taken by the Board that rendered the procedure unfair. The Board explained its preliminary view to Mr Burridge and invited him to respond to it. He did so. The Board then made the decision now under review. Mr Burridge did not contend that the Board was biased. [25] In the circumstances, I am not satisfied that the Board’s decision was affected by any breach of the rules of natural justice. 10 JRA, s 20(2)(e) and 23(b). 11 JRA, s 20(2)(e) and s 23(f). 12 JRA, s 20(2)(e), s 23(h). 13 (1985) 159 CLR 550, 622. 14 Kioa v West (1985) 159 CLR 550 at 611-612 (Brennan J). -- 6 of 29 -- 7 The improper exercise of the power grounds [26] Mr Burridge’s remaining four grounds of review concerning the exercise by the Board of its decision-making power. These require an examination of the Board’s decision-making as explained in the statement of reasons. [27] The statement of reasons commenced with eleven findings of fact. These were followed by the reasons for the decision, set out under nine headings over paragraphs numbered 12 to 57. [28] Three of the findings of fact were favourable to a grant of parole.15 Another is accepted by Mr Burridge as correct.16 They are not the subject of any challenge in this proceeding. Similarly, the reasons set out under three of the headings are favourable to a grant of parole.17 These are not the subject of any challenge. [29] Mr Burridge accepted as correct the finding of fact that he “has a high security classification and is accommodated in secure accommodation.” However, Mr Burridge submits this should have been qualified, because he had been offered accommodation in the residential section of the BTCC and remains in secure accommodation for reasons unrelated to his own custodial behaviour.18 [30] It is convenient to consider the seven challenged (or partially challenged) findings of fact together with the related challenged reasons, which appear under six headings. The six topics in the reasons and related findings of fact are: (a) Criminal history and sentencing remarks, with a finding that Mr Burridge has “a lengthy criminal history and background of substance abuse”; (b) Previous community-based supervision, with a finding that he has “previously been granted the benefit of community based supervision orders and displayed a poor response”; (c) Forensic Psychological/Psychiatric Risk Assessment Report prepared by Dr Velimir Kovacevic dated 1 August 2020, with the finding that the Board “accepts the findings therein particularly Dr Kovacevic’s view that [Mr Burridge’s] risk to the community remains substantial”; (d) Outstanding treatment needs, with the finding that Mr Burridge has “outstanding treatment needs to address risk factors linked to [his] offending behaviour, specifically [his] substance abuse”; (e) Custodial Behaviour, with the findings that he has a high security classification and is accommodated in secure accommodation and that he has “demonstrated poor custodial behaviour”; and 15 These are: that Mr Burridge is eligible for parole; that he has suitable community-based accommodation; and that he has undertaken treatment with a psychologist, Ms Geddes of DGM Psychology. 16 This is that Mr Burridge is serving a life sentence for the offence of murder. 17 These are: Treatment Progress Summaries prepared by Rebecca Geddes, Psychologist DGM Psychology; Prison Mental Health Services (PMHS) report dated 23 February 2021 by Dr Russ Scott; and NDIS Application. 18 It does not appear, from the statement of facts, that this finding was significant in the Board’s ultimate decision to decline Mr Burridge’s application. Nor does it appear that the Board disputes Mr Burridge’s proposed qualification. -- 7 of 29 -- 8 (f) Conditions of parole, which has no identified related finding of fact, but includes in the text of the reasons that the Board formed the view that there are no conditions of parole that could be imposed that would affect the level of risk Mr Burridge may pose to the community if he were released on a parole order at this time. [31] The final finding of fact draws upon all the matters considered by the Board. It is that Mr Burridge is “an unacceptable risk to the community at this time.” It is convenient to deal with each topic in turn. Criminal history and Sentencing Remarks [32] The first heading is Criminal history and Sentencing Remarks. It begins in this way: “The Board noted that your criminal history commenced in 1989 when you were 17 years of age. The Board noted that your criminal history demonstrates a consistent pattern of violent offending involving unlawful uses of motor vehicles, break and enter, assaults and later, more seriously, murder.” [33] Mr Burridge committed six property-related offences when he was 17 years of age.19 The Magistrates Court at Cleveland and at Wynnum ordered him to pay restitution and gave him 2 years’ probation. At age 18, he was convicted in the Cleveland Magistrates Court and fined with an option to do community service for three offences against police,20 and for breaching his probation order. Still 18, he was convicted and fined $300 for assault occasioning bodily harm. Next, he was convicted and fined $200 with an option to do 40 hours community service for possessing a thing used in connection with smoking a dangerous drug. At 21, he was convicted and fined $400 for a contempt. The seriousness of these offences is indicated by the penalties imposed. None of these offences could be accurately described as violent offending. [34] These juvenile and early adult offences are followed, at age 21 by murder. [35] Mr Burridge was charged, jointly with three others (Todd David Marshall, Francis Robert Keenan, and Ian Batt), with murdering Darryl Murray. [36] Mr Marshall pleaded not guilty and was convicted of murder after a 14-day joint trial with Mr Keenan. He was sentenced to the mandatory life imprisonment. At the joint trial of Mr Marshall and Mr Keenan, the evidence established that the victim had been struck two blows to the head by Mr Burridge. He had used an axe. [37] At the joint trial, the jury were unable to agree as to the verdict for Mr Keenan, who was a similar age to Mr Burridge at the time of the offence. On the third day of his re-trial on the charge of murder, the prosecution accepted Mr Keenan’s plea of guilty to manslaughter.21 On 17 July 1995, Mr Keenan was sentenced by Byrne J to eight years’ imprisonment. 19 Unlawful use of a motor vehicle, wilful and unlawful damage to property, stealing, and break and enter with intent. 20 Assault police, resisting police, and obscene language. 21 These circumstances, and those that follow, are drawn from the Court of Appeal reasons in R v Marshall [1995] QCA 515 and R v Keenan [2009] QCA 236. -- 8 of 29 -- 9 [38] In a later appeal,22 McMurdo P noted the following about Mr Keenan’s sentence: “[7] In sentencing Keenan, the judge explained Keenan’s role in the offence. Marshall believed that Murray had informed on him to police about his criminal offending. Marshall planned revenge and enlisted Keenan, Batt and Burridge to help. Burridge, Batt and Keenan arrived at a house where Murray was staying. Keenan knew he was expected to assist in Marshall's assault on Murray. Murray was a powerfully built young man trained in martial arts. Marshall sent a message to Keenan requesting his ‘piece’, meaning a gun. Keenan, however, did not act on that request. All participants in Murray’s subsequent killing took amphetamines intravenously beforehand. It was difficult to ascertain what happened next because of the conflicting evidence. Murray was called into a room where he was either injected with, or injected himself with, a liquid substance which was not amphetamine. It may have been battery acid. Later, in Keenan's presence, Keenan's co-offenders attacked Murray. When Murray was unconscious, his assailants took him to another room where he was again attacked by Keenan’s co-offenders. Keenan witnessed this violence. At some stage, Murray was struck in the head with an axe. He died at the house not long after. Keenan helped others put a sheet or cloth around Murray whilst Murray was still breathing and was present when he died. [8] The judge was not satisfied that Keenan personally inflicted any violence on Murray. Keenan was, however, present to lend encouragement, knowing that the infliction of violence leading to bodily harm was intended. Keenan was on probation. A sentence of 11 years imprisonment would have been appropriate but for the mitigating factors. These were Keenan’s plea of guilty; his rehabilitation (he became drug-free and literate whilst in prison); his youth; and 259 days of pre- sentence custody were unable to be declared under s 161 Penalties and Sentences Act 1992 (Qld). The judge reduced the sentence to eight years imprisonment because of these mitigating factors.” [39] Mr Batt died of a heroin overdose before trial. [40] In contrast to his co-accused, Mr Burridge pleaded guilty to murder. On 6 February 1995, he was sentenced in this court by Mackenzie J to life imprisonment. In brief sentencing remarks, his Honour observed of the offence: “It involved the bashing of a person whom you believed to have given information to the police. In view of the impending trial of other people in respect of this offence I propose to say no more than that the victim obviously died in horrific circumstances. 22 R v Keenan [2009] QCA 236 -- 9 of 29 -- 10 The law prescribes mandatory imprisonment for life for such an offence. I draw the attention of the prison authorities to the forensic psychologist’s report, Exhibit 6 in these proceedings.” [41] His Honour directed that 433 of the 494 days Mr Burridge had spent in pre-sentence custody be declared time already served in respect of this conviction. [42] In his response to the preliminary view letter, Mr Burridge provided the following statement to the Board: “I am sorry and a lot more aware of how bad I was on that day in 1993 when I took Darryl Murray’s life from him. I have caused his family, friends and innocent others in that sad event much pain. I plead guilty as I was the person who killed him [–] I must not forget that. I was a damaged young individual who carried an entitled attitude which has caused much of my offending. This is why I believe strongly in Rebecca Geddes [counselling] which has proved to me that I must not ever carry that entitled attitude/belief into any future situations.”23 [43] Before he was sentenced for the murder, Mr Burridge was convicted and sentenced to 4 months’ imprisonment for an assault occasioning bodily harm, apparently committed while he was on remand. Afterwards he was convicted in the Brisbane Magistrates Court and sentenced to 3 months’ and 2 months’ imprisonment for property offences,24 apparently committed before the murder. [44] One cannot understate the significance of the murder conviction and its violent nature. However, at the time of his murder sentence it was not said, and it could not reasonably have been said, that Mr Burridge’s criminal history “demonstrates a consistent pattern of violent offending”. [45] Mr Burridge was arrested on 1 October 1993. He went into prison for the first time at 21, on what became a life sentence.25 He was continuously in custody from that date until 6 June 2011, when he emerged for the first time on parole at 39. During this time in custody, he was convicted in the Inala Magistrates Court of failing to answer a question asked by a detective on 14 July 1999 in contravention of the Corrective Services Act 1988 and sentenced to imprisonment for three months.26 [46] Mr Burridge returned to custody for three months between 29 July and 29 October 2013, while his parole was suspended. He returned more permanently on 20 October 2015, at age 43. [47] On 15 September 2016 he pleaded guilty and was convicted of seven summary charges in the Sandgate Magistrates Court, each committed on 15 October 2015. Mr Burridge was sentenced to one month’s imprisonment for possessing property 23 The underlining is in his original handwritten response. 24 Wilful and unlawful damage to property (a light, an alarm, and a blanket) while on remand and earlier break, enter and steal offences committed when he was aged 20. 25 In his report dated 23 February 2021, Dr Scott of The Park – Centre for Mental Health states that Mr Burridge served three months in the “Boys Yard at Boggo Road Gaol.” No such custody is recorded in his criminal history (Queensland Court Outcomes, 10 November 2020), which shows a sentence of 200 hours community service, two years’ probation, and an order for $700 restitution for this offending. However, on 5 February 2021, Mr Burridge told QCS that at age 17 he was sexually assaulted while detained in Boggo Road Goal for one month. He may have been held on remand. 26 The court recommended he be eligible for release on parole after serving five weeks. -- 10 of 29 -- 11 suspected of having been used in connection with a drug offence, to three months imprisonment for each of three trespass charges, to nine months imprisonment for one Weapons Act charge and twelve months for another, and twelve months imprisonment for going armed so as to cause fear. The learned magistrate ordered that he be eligible for parole on 15 September 2017. [48] This offending was the reason for the cancelation of his first parole order. In the statement of reasons, the Board describes this offending conduct as Mr Burridge’s confrontation with an older relative. “It is understood by the Board that your decision to confront your older [relative] in relation to your childhood sexual abuse trauma stemmed from the memories that arose out of psychological interventions. The Board has considered the obvious emotional trauma that this experience involved and the heightened level of agitation that you would have been feeling. However, it remains, that you brought a tomahawk and a handgun to this confrontation with your cousin. This is concerning that your responses to emotional distress are continually accompanied by a desire to use violence as a means to rectify the situation. You were later sentenced for weapons and drug possession charges related to this encounter.” [49] On any reasonable view this summary is erroneous. If, for example, such a submission had been put at the sentence hearing for these summary offences, it would have had to be rejected. Mr Burridge’s conduct on a single occasion during nearly four and a half years of parole was no basis to conclude that his “responses to emotional distress are continually accompanied by a desire to use violence as a means to rectify the situation.” His offence was a misdemeanour in breach of the peace. He was not charged or convicted of any offence involving assault or violence.27 The Board was also in error in stating that Mr Burridge was sentenced for drug possession. He was not. His offence was possessing property suspected of having been used in connection with a drug offence, the sentence for which was one month’s imprisonment. [50] Mr Burridge remained in custody from 20 October 2015 until his second release on parole on 19 August 2019, at age 47. [51] On 26 October 2016, Mr Burridge was found guilty of contempt in contravention of r 935 of the Uniform Civil Procedure Rules 1999 (Qld). The offence was committed on 11 August 2016. He was sentenced by Applegarth J to nine months imprisonment to commence on 15 September 2017. He completed that sentence on 14 June 2018. [52] He has committed no further offences. [53] It follows that the statement of reasons proceeds on the factually inaccurate basis that Mr Burridge is a person with a criminal history that “demonstrates a consistent pattern of violent offending” and whose “responses to emotional distress are continually accompanied by a desire to use violence as a means to rectify the situation”.28 The 27 As Dr Scott noted in his PMHS report, Mr Burridge “was not charged with any violent or threatening offence”. According to the statement of reasons, the Board had regard to the report. 28 And who is still “serving” sentences for seven offences. -- 11 of 29 -- 12 above analysis demonstrates that the Board’s first finding of fact – that Mr Burridge has “a lengthy criminal history” – is also erroneous.29 [54] Each of these errors was obvious and easily checkable. Collectively, they colour the whole of the first section of the statement of reasons. They act as the background against which the Board’s opinions and conclusions on each of following topics is explained in the statement of reasons. [55] In the last paragraph of the last topic in the statement of reasons, further disheartening errors are made. There, the President of the Board states: “The Board was aware of your parole eligibility date provided by the Sentencing Court at the time of sentencing, when considering your Application. However, the Board is of the view that the Court would not have been aware of your: • Outstanding treatment needs to address criminogenic risk factors relating to your offending; • Poor institutional behaviour and conduct during your incarceration; and • Unacceptable risk to the community.” [56] Of course, the court did not provide a parole eligibility date for Mr Burridge’s life sentence. The Parliament had dealt with that matter.30 The learned sentencing judge had the benefit of a psychologist’s report on Mr Burridge, which his Honour directed be provided to QCS. [57] This series of errors in the statement of reasons suggest that the Board failed to consider the facts particular to the criminal history of Mr Burridge and instead adopted some standard forms of words, or, worse, language from a statement of reasons for another applicant for parole.31 Ms Robb, for the Board, urged the court to treat these matters as merely “a poor choice of words”. I am unable to reach that conclusion. Rather, I am satisfied that the Board approached its decision on Mr Burridge’s application with a significantly erroneous view of the facts relating to his criminal history. [58] A decision may be set aside where the decision-maker failed to take into account a consideration that it was bound to consider in making the decision.32 The only 29 His QPS criminal history is two and a half pages. Of much lesser importance, the statement of reasons also erroneously recites that Mr Burridge is “serving a life sentence of imprisonment for murder and lesser concurrent sentences. This is a modified version of an error made in the 21 April 2021 preliminary view letter, which recited that Mr Burridge was “serving a life sentence of imprisonment” for eight offences including murder. He had served and completed all other sentences long before this application for parole. It is difficult to understand why the Board would think that Mr Burridge was still serving the short sentences imposed for any other offences. 30 Corrective Services Act 1988 (Qld), s 166(1)(a) provided that a prisoner serving a term of life imprisonment was not eligible for parole until the prisoner had been detained for a period of 13 years. 31 Counsel for the Board had seen this language used by the Board in other cases. It would be concerning if the Board should, by default, plan to discount the sentencing court’s view in every statement of reasons. 32 Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 at 39 (Mason J, Gibbs CJ and Dawson J agreeing). -- 12 of 29 -- 13 question is whether the Board did so. As Basten JA observed in Allianz Australia Insurance Ltd v Cervantes:33 “How it is to be taken into account and what weight it is to be accorded in all the circumstances are matters within the authority of the decision-maker. Thus, assuming for present purposes that the assessor was bound to take into account the particular statement set out above, he could do so by dismissing it, by giving it little weight, or by giving it decisive weight.” [59] According to the Guidelines made by the Minister pursuant to s 242E of the CSA, the applicant’s “criminal history and any patterns of offending” is a “relevant factor” to which the Board is to have regard in “deciding the level of risk that a prisoner may pose to the community”.34 [60] As Bowskill J observed in Calanca v Parole Board Queensland:35 “The language used in the current s 242E is consistent with the ordinary meaning of ‘guidelines’ in the context of administrative decision-making, as non-binding rules or standards, providing general indications to help the decision-maker in exercising their discretion. It is clear from s 242E that the Guidelines do not fetter the exercise of the otherwise broad discretion of the Board, in the sense that the Guidelines do not prescribe or limit how the Board’s discretion under s 193 is exercised. But that does not mean the Guidelines can be ignored. The Guidelines are properly to be regarded as a relevant factor and, because they are expressly contemplated by the legislation, must be taken into account by the Parole Board. The formulation of guidelines for administrative decisions, particularly decisions such as those made by the Parole Board which affect personal liberty, promotes values of consistency and rationality in decision-making, whilst still upholding the ideal of justice in the individual case on its merits.” [61] The Board should give weight to the Guidelines and depart from them with great care.36 [62] The Board’s view of Mr Burridge’s criminal history was not reasonably open on the undisputed material before it at its meetings. There was no alternative version of the facts of Mr Burridge’s criminal history. It follows that the Board must have acted without proper regard to the relevant material before it. [63] The Board’s errors meant that it made its decision without considering Mr Burridge’s actual criminal history. It follows that the Board failed to take a relevant consideration into account in the exercise of its power under the CSA. Specifically, the Board failed to consider the fact that Mr Burridge did not have a long criminal history, that his history did not demonstrate a consistent pattern of violent offending and that his responses to emotional distress were not continually accompanied by a 33 (2012) 61 MVR 443 at 448-449 [16] (McColl and Macfarlan JJA agreeing). 34 Ministerial Guidelines to Parole Board Queensland, 3 July 2017 (Guidelines), cl 2.1(a). 35 [2019] QSC 34 at [57] (citations omitted). 36 R (Munjaz) v Mersey Care NHS Trust [2006] 2 AC 148 at 189 [21] (Lord Bingham). -- 13 of 29 -- 14 desire to use violence. In this important respect, the Board made its decision without consideration of the merits of Mr Burridge’s application. Previous community-based supervision [64] The Board noted that Mr Burridge had previously been granted the benefit of community-based supervision orders. It is apparent from the statement of reasons that this is a reference to his release on parole orders between 6 June 2011 and 20 October 201537 and between 19 August 2019 and 16 January 2020. The Board stated that Mr Burridge’s “response to the majority of these orders has been poor and characterised by order cancellations.”38 The period in the community under the first parole order [65] The Board’s preliminary view letter was affected by factual errors, which Mr Burridge identified in his response. These appear to have been accepted by the Board.39 However, the statement of reasons presents a confusing narrative of his first and lengthier period of parole. [66] At the hearing, Ms Robb was able to provide the following clarification. In May 2011, the Board made the first parole order for Mr Burridge. On 6 June 2011, he was released from custody in accordance with that order. On 29 July 2013, he was returned to custody when this first parole order was suspended. On 13 September 2013, the suspension was lifted. On 29 October 2013, he was released. He remained in the community under the first parole order until 20 October 2015, when the first parole order was again suspended. [67] At the hearing, Mr Burridge confirmed this account. [68] It appears the first suspension (29 July to 29 October 2013) was due to a positive result from a urine drug test. The second suspension (October 2015) followed Mr Burridge confronting his older relative: see [47] to [49] above. It led to the cancellation of the first parole order on 6 November 2015. [69] He was aged 43 at this time. [70] Mr Burridge had spent nearly 18 years in custody, from the age of 21 to 39, before this first period on parole. He had no mental health treatment during that time in prison. He lived with his parents for about three months. He moved to the Gold Coast to live with his then wife and her children. After about three months there, his parole officer advised him to move away to avoid breaching a parole condition that he not associate with motorcycle club members. He and his wife moved to the Sunshine Coast. His relationship with his wife deteriorated, with several separations. (The couple divorced in 2015.) His mental health declined. He began using illicit drugs. It appears an overdose triggered the suspension of this first period in the community under the first parole order and he was returned to custody for three months for using illicit drugs. 37 With a three-month period in custody in 2013, when the parole order was suspended. 38 As there have been only two parole orders, the Board’s reference to a “majority” is obscure. This could be another remnant of a copied statement of reasons for another applicant or, in Ms Robb’s expression, “a poor choice of words.” 39 See, e.g., statement of reasons at [18]. -- 14 of 29 -- 15 [71] On release after three months in custody, he was drug-free. He attended counselling with a psychologist. The psychologist used “flooding techniques” to explore Mr Burridge’s memories of his sexual molestation as a child. As Dr Kovacevic noted: “The counselling brought up strong feelings of anger, sadness, hatred, etc. Under the influence of such strong emotions Mr Burridge made a decision to directly confront the person responsible for his sexual molestation … He said he made a conscious choice to take that course of action with full understanding of the consequences. Confronting his abuser helped Mr Burridge to let go of his abuse and trauma and finally feel some relief, although he was re-arrested in the process and charged with several serious criminal offences (he was at the time in possession of a loaded hand gun and a tomahawk). When the incident occurred, Mr Burridge was again under the influence of amphetamines.” [72] In total, he was in the community on parole for more than four years, before he offended, bringing his parole to an end. He held employment as a landscaper for about 11 months in this period in the community. Although the offending on 15 October 2015 is rightly concerning, and appropriately led to the suspension and then cancellation of the first parole order, it seems odd that the Board should characterise his record over the four years as a “poor” response. [73] However characterised, this four-year period in the community did not lead the Board to refuse Mr Burridge a second parole order in May 2019. This more recent period under a community-based supervision is logically more significant for the Board’s decision under review. The period in the community under the second parole order [74] On 15 September 2017, Mr Burridge again became eligible for parole, having served the sentences (ranging from one to 12 months) imposed for the summary offences committed on 15 October 2015. It appears he applied for parole, unsuccessfully, at about that time: see: [94](g) below. [75] On 24 July 2019, the Board made an order directing Mr Burridge be granted and released to parole. On 19 August 2019, he was released to live with his parents [redacted]. His older brother and sister-in-law lived nearby. Mr Burridge had made a recording while in custody. In it he described the sexual abuse he suffered between the ages of 10 and 11. On release, he played this to his mother and brother. They were distressed by it. [76] Soon afterwards, his mother was diagnosed with lung cancer, assessed as at stage 4. He reported to Dr Kovacevic that his mother’s medical diagnosis upset him, and he became depressed. He was unsuccessful in an application for a prescription of medicinal cannabis. He began using cannabis daily. He told Dr Kovacevic that in this period he made a series of bad choices. [77] At an early point, he had disclosed to his parole supervisor that he had used intravenous methamphetamine and prescription medications. On two occasions in October 2019, his urine samples tested positive for dangerous drugs. -- 15 of 29 -- 16 [78] In October 2019, he attempted suicide. He was taken to the Sunshine Coast University Hospital. He was voluntarily admitted for mental health treatment. He was an in-patient for 11 days. He was treated for depression and anxiety including by a brief course of three sessions of electroconvulsive therapy (ECT). [79] He was discharged from hospital to live with his parents. [80] He attended six sessions of psychotherapy before Christmas 2019. These were arranged pursuant to a mental health care plan initiated by his general practitioner. He attended one-on-one alcohol and drug counselling and sessions with a social worker at the Caboolture Neighbourhood Centre. [81] In late December 2019, he left his parents’ home. He had used methamphetamine on at least one occasion. This, and an argument with family members on 27 December 2019 in which a screen door was damaged, led to his parents asking him to leave. He lived in a motel for a short period, perhaps one night. [82] On about 28 December 2019, he was re-admitted to the SCU Hospital with depression, requesting further ECT. He remained an in-patient for five days. He was discharged on 2 January 2020 with a diagnosis of Adjustment Disorder. [83] On discharge from hospital, he requested permission to reside at several other places, due to family conflict. The Board did not approve any of these other addresses as suitable. On 15 January 2020, he attended the Hospital emergency department with abdominal pain. He was assessed, advised to stop taking aspirin and cleared for release. His father collected him. Later that day he attended the parole office and provided a urine sample that, when tested, was found to be clear from illicit substances. [84] On 16 January 2020, he was again asked to leave his parent’s home. He reported his accommodation difficulties. On 16 January 2020, after five months in the community, a Prescribed Board Member suspended the second parole order. This was confirmed by the Board on 20 January 2020. On 26 August 2020, the Board cancelled the second parole order. [85] While on this period of parole, Mr Burridge attended a local general practitioner who referred him on a mental health plan to a psychologist for fortnightly psychological treatment. He attended weekly with Queensland Injectors Health Network (QuIHN) for drug and alcohol counselling. He engaged with the Caboolture Community Centre counsellor. During the whole period he was wearing a GPS tracking device. [86] The Board’s finding of fact was that Mr Burridge “displayed a poor response” to community-based supervision orders. This accords with the Board’s characterisation of his time on parole in the reasons, noted above. [87] The finding and the other relevant parts of the statement of reasons might be contrasted with the evidence before the Board. Mr Burridge was a person with identified mental health and substance use needs. Prior to his release under the second parole order, he had spent 22 of the preceding 26 years in custody. On that parole, he committed no offence. He disclosed his use of illegal and prescription drugs. There is no allegation that he failed to comply with any of the other parole conditions. He had sought professional medical assistance, had undertaken a course of psychotherapy sessions, and had been voluntarily admitted to hospital for treatment -- 16 of 29 -- 17 on two occasions. He had sought support from a social worker and had disclosed his unstable accommodation situation to his supervisors. [88] This section of the Board’s statement of reasons concludes that Mr Burridge has a “history of non-compliance with parole”. This is a summary of the Board’s conclusion. It appears as a factual conclusion, rather than an opinion. There is something of a gap between the factual evidence before the Board about Mr Burridge and the facts and conclusions adopted by the Board. It is possible that this aspect of the Board’s decision involved a failure to have regard to the merits of this aspect of Mr Burridge’s application. Owing to the conclusions I have reached on other parts of the Board’s decision, it is not necessary to reach a conclusion on this aspect. Forensic Psychological/Psychiatric Risk Assessment Report prepared by Dr Velimir Kovacevic [89] Before the July 2019 decision to grant the second parole order, the Board required Mr Burridge to be assessed by Dr Kovacevic, a consultant psychiatrist. On 10 July 2020, the Board asked Dr Kovacevic to provide an updated report, when it was considering whether to cancel that second parole order. [90] In each report, Dr Kovacevic expressed reservations about recommending to the Board that Mr Burridge be released on a parole order. In each he expressed his opinion about Mr Burridge’s mental state and likely risk of reoffending. Dr Kovacevic’s first report [91] On 8 March 2019, Dr Kovacevic spent two hours with Mr Burridge at BTCC. In a report dated 10 March 2019, Dr Kovacevic noted that “Mr Burridge fully cooperated with the process of psychiatric examination.” [92] This was Dr Kovacevic’s first report on Mr Burridge for the Board. He reviewed the material supplied by the Board and summarised it in his report. He noted from the Parole Board Assessment Report, date 8 February 2021, that: “It was considered that [Mr Burridge] had addressed his criminogenic needs in relation to his violent offending behaviour through the completion of the Cognitive Self Change Program and previous programs that he had participated in during this episode of incarceration. Substance abuse has been identified as a major antecedent to his offending. No further criminogenic programs were deemed necessary at the time. It was noted that Mr Burridge appeared to have made significant gains from his participation in the Cognitive Self Change Program, particularly in relation to identifying the beliefs and attitudes supporting his violent behaviour. He was also able to identify key thoughts, attitudes and beliefs that led to each of the harmful behaviours in the past. The Cognitive Self Change Program Completion Report stated that Mr Burridge achieved perfect attendance and that he had made significant disclosures in relation to his violent behaviour and the criminal lifestyle. He was considered to have completed the program successfully.” -- 17 of 29 -- 18 [93] Dr Kovacevic’s first report is 14 pages in length. It covers Mr Burridge’s presentation on review, his psychiatric history, recent period in custody, current status, release plans, his index offences, substance abuse history, personal/social history, sexual abuse history, mental state assessment, and medical records. [94] In it, Dr Kovacevic summarised Mr Burridge’s relevant background. (a) To begin: “Mr Burridge has a history of childhood sexual abuse that was likely to play a critical part in the early onset of his substance dependence and the overall mental and functional deterioration. This culminated in the conviction for murder a number of years later. It is evident that Mr Burridge has struggled for years with the con sequences of his childhood sexual abuse. There appears to be a direct link between Mr Burridge’s childhood sexual abuse, his illicit substances abuse and his psychological and social decline. It is not unusual to see the victims of sexual abuse declining mentally and becoming addicted to illicit substances as a maladaptive way of trying to remedy their distress. It is also not uncommon to hear the victims of sexual abuse describing emotions of intolerant psychological pain that can only be temporarily ameliorated by using intoxicating substances. Such individuals commonly report that being under the influence of drugs is the only time when they experience a sense of being normal again.” (b) During his first 18 years in custody, Mr Burridge had no involvement with the Prison Mental Health Service. (c) As to his first period on parole: “Mr Burridge experienced considerable adjustment difficulties following his release from custody in 2001. Although I have no records of Mr Burridge’s psychological treatment, it is possible that psychotherapy may have reactivated his trauma and contributed to his temporary deterioration, which is not uncommon in the context of trauma cancelling [counselling?], although this was likely to have been only one of the relevant factors. It appears that he tolerated treatment poorly and responded to the distress created by the reactivated memories with a resumption of amphetamine use. He also began entertaining revenge fantasies involving the perpetrator of the sexual abuse. Over the subsequent period he surrendered control over the use of illicit substances and descended into a permanent state of intoxication and paranoid psychosis that resolved only after his admission to HSIS.”40 (d) Following his arrest in October 2015, Mr Burridge was taken to the Prince Charles Hospital for an assessment of his mental state, but he was returned to custody without a specific diagnosis. He was transferred to the Princess 40 High Security Inpatient Service. -- 18 of 29 -- 19 Alexandra Hospital Secure Medical Unit. There, he attempted suicide. It is likely this was between 15 and 22 October 2015. (e) Within a week of his return to custody, his mental state deteriorated. On 5 November 2015, he was admitted to the High Security Inpatient Service at The Park Centre for Mental Health with depressed mood, auditory hallucinations, and suicidal ideation. On 22 December 2015, he was discharged from The Park with a diagnosis of Amphetamine-Induced Psychotic Disorder, Major Depressive Disorder and Mixed Personality Disorder. After discharge, he spent a couple of months in regular custody, before being readmitted to The Park on 25 March 2016, for about a week, with a deterioration in mood and suicidal ideations. As an inpatient, his medications were adjusted. He was discharged into the care of the Prison Mental Health Service. (f) He has been treated in custody by Dr Scott, a psychiatrist, and has had weekly videoconference sessions with a psychologist. (g) In custody, Mr Burridge maintained abstinence from illicit drugs until 2018. He had applied for parole in September 2017 and received no response for many months. He started feeling depressed, angry, and frustrated, believing he would never be able to leave prison. He argued with family members and, increasingly depressed, in the first half of 2018, he resumed illicit substance use “for the purpose of managing his depression and negative emotional states and removing himself from the reality of his circumstances.” (h) This lasted for about six months. It ended after he overdosed on a combination of Subutex and Baclofen. In response, he was offered the assistance of an alcohol and drug counsellor. He had about twenty extended therapy sessions, two hours each on average. He used Subutex on one occasion, in November 2018, but had otherwise managed to be abstinent. (i) In January 2019, he started a ten-week drug and alcohol program called Decision 40 Plus. He had one week left to completed when he saw Dr Kovacevic at the prison. During it, he had written a relapse prevention plan. (j) In summary: “Mr Burridge present with a history of depression, anxiety, post-traumatic symptoms, amphetamine dependence and paranoid psychosis in the context of amphetamine intoxication. … At the present time [10 March 2019] he is relatively stable and his treatment needs are being met in the custodial setting. He had improved in his insight into the nature of his psychiatric difficulties and the detrimental effects of illicit substances on his mental health.” [95] Dr Kovacevic conducted a violence risk assessment using the structured professional judgment tool HCR-20 (version 3). This involved assessing Mr Burridge on historical risk items (17/20), clinical risk items (6/10) and risk management items (5/10). [96] Dr Kovacevic summarised the risk assessment in this way: “Mr Burridge’s overall risk rating on HCR-20 is moderate to high, with a preponderance of historical risk items, although a number of clinical and risk management items are also at least partially present. -- 19 of 29 -- 20 The presence of a majority of historical risk factors is significant, because those factors are usually reliable predictors of risk in the longer term. Although associated with genuine determination and efforts, Mr Burridge’s conviction that he is ready to be parole and his resolve to remain fully compliant with his parole supervision must be seen in light of the recent incidents in custody and his ongoing vulnerability to relapse and re-offending and the sensitivity to stress and anxiety. He remains cognitively unstable, prone to accidental overdoses, using drugs as an escape strategy and giving up in frustration at times when his coping and resilience are being challenged.” [97] He ended his first report with seven specific recommendations about the release of Mr Burridge on parole. Dr Kovacevic’s second report [98] On 10 July 2020, the Board asked Dr Kovacevic to review some additional information and provide an updated report. He described it as a psychiatric re- assessment. For this purpose, on 24 July 2020, Dr Kovacevic interviewed Mr Burridge over a videoconference link for about one hour. The second report appears to have been undertaken to inform the Board for its decision on whether to cancel Mr Burridge’s second parole order. It was the basis for the Board’s decision to that effect taken on 26 August 2020.41 [99] Mr Burridge’s present application for parole was made on 8 November 2020, some four and a half months after he was seen by Dr Kovacevic. By the time the decision and the statement of reasons had been produced, nearly 12 months had passed. When Dr Kovacevic reports about his present assessment of Mr Burridge, it is an assessment made in mid-2020. [100] Dr Kovacevic offered a mental state assessment in his second report, noting: “There was nothing to indicate existence of any major psychopathology and he did not come across as depressed or anxious.” [101] The second report concluded with eight recommended interventions that in Dr Kovacevic’s opinion “would enhance Mr Burridge’s survival chances in the community, if released”. Each is a specific recommendation. Most are formulated to be incorporated in a parole condition. [102] In the statement of reasons, as in the preliminary view letter, the Board extracted two paragraphs from the opinion expressed by Dr Kovacevic in his second report. This part of the opinion is best described as follows. (a) First, Dr Kovacevic expressed the view that “Mr Burridge’s risk to the community remain[s] substantial.” The specific risk is not identified. In the immediately preceding paragraph, Dr Kovacevic referred to his first report in which he “indicated that Mr Burridge’s future risk of violence and re-offending was moderate to high and emphasised in particular the historical risk factors.” It does not appear that “substantial” is used in a clinical sense as “moderate to 41 This context explains why in much of the second report Dr Kovacevic reflects on the Board’s 19 August 2019 decision to grant Mr Burridge his second period of parole. -- 20 of 29 -- 21 high” is used, because, later in the extract, he wrote that, “his risk to the community has remained essentially unchanged.” (b) Dr Kovacevic then dealt with the “re-offending risk”, which he considered to be “unpredictable”. The type of re-offending is not specified. This is an important matter, as potentially it could range from the possession of a dangerous drug for personal use to a violent crime against a person. (c) Dr Kovacevic then dealt with “any particular treatment intervention in custody, or attendance at a specific treatment program”. He is referring to things that might be done before any release of Mr Burridge on parole. They include “further individual counselling interventions, which Mr Burridge has been receiving anyway, as well as the violence prevention and substance abuse treatment programs.” In Dr Kovacevic’s view, it “is difficult to predict or say” such things “would substantially ameliorate the risk in the short to medium term.” On this topic, he concluded, “It is difficult to argue that Mr Burridge’s parole release needed to be delayed specifically on the grounds that a completion of such treatment interventions”. (d) The extracted passage concludes: “When Mr Burridge’s risk is assessed cross-sectionally in a single or even repeated interview conducted in a structured custodial environment, his clinical and risk management factors may appear under reasonably good control, given that Mr Burridge is capable of giving plausible explanations for his behaviour and outlining sound release and relapse prevention strategies. However, when exposed to the actual community environment, Mr Burridge appears to be finding it difficult to cope with real stressors and challenges, repeatedly leading to relatively rapid decline in mental state, a relapse of illicit substance use and inevitable parole suspension.” [103] In his response, Mr Burridge had drawn the Board’s attention to the eight recommended interventions that, in Dr Kovacevic’s opinion “would enhance Mr Burridge’s survival chances in the community”. Each of these is a step to be taken or a condition to be imposed upon re-release on parole. Mr Burridge also emphasised the final substantive paragraph in Dr Kovacevic’s second report. In that paragraph, Dr Kovacevic wrote: “It is acknowledged that any further attempt to release Mr Burridge on parole could be fraught with risks and challenges, however with the above-listed interventions being implemented, his chances of success are reasonable, in my opinion. It is encouraging that even when his mental state was deteriorating, Mr Burridge’s aggression would turn more towards himself and that he sought help by approaching Mental Health Services and seeking hospitalisation when he felt that he was spiralling out of control. He has handled his frustration of being returned to prison and having a number of accommodation proposals rejected without becoming aggressive, violent or suicidal. It is to his credit that he managed to maintain appropriate custodial behaviour and a positive future outlook. Such a combination of clear weaknesses and vulnerabilities, cognitive instability and fragility of mental state -- 21 of 29 -- 22 on one hand, and his positive attitude, a genuine determination to succeed and the ability to desist from engaging in any high risk aggressive or violent behaviours, does not make recommendations and decisions about his parole release any easier.” [104] In the statement of reasons, the Board extracted the same two paragraphs from the preliminary view letter. It did not extract or make any comment on any other view expressed by Dr Kovacevic, save in the following paragraph: “The Board considered Dr Kovacevic’s report in its entirety, not only the parts extracted in [the preliminary view letter]. While noting Dr Kovacevic’s recommended interventions would enhance your chances of success on parole if released, the Board remains of the view that Dr Kovacevic’s assessment, viewed in its entirety, does not support your release to parole at this time, due to the risk you pose to the community.” [105] Reading the second report with his first, as should be done according to Dr Kovacevic, it may reasonably be concluded that in the second report, he expressed a more nuanced view. In the first report, before Mr Burridge was granted parole in 2019, Dr Kovacevic was much less favourably disposed to a release on parole. There were fewer “balancing factors” in the first report, than in his second report. In the second, considering whether the then existing parole order ought to be cancelled or amended, Dr Kovacevic did not recommend that the order be cancelled. He did recommend additional conditions of parole. [106] The Board considered Dr Kovacevic’s second report, in general terms, in making its decision. The Board seems to have placed more emphasis on certain parts of the report than on others. Mr Burridge has a quite different view of the relative importance of those parts. Mr Burridge may think the Board gave insufficient weight to the parts he considered important. However, that is a matter going to the merits of his parole application and not a ground for judicial review.42 [107] In the circumstances, in this respect, I am not satisfied that the Board failed to take a relevant matter into account, considered an irrelevant matter, or made its decision without regard to the merits of Mr Burridge’s application. There is another relevant aspect of Dr Kovacevic’s report. It arises under the next topic. Outstanding treatment needs [108] This section of the statement of reasons opens with the statement: “The Board is informed that you have outstanding treatment needs to address risk factors linked to your offending behaviour, specifically your substance abuse.” [109] At the hearing, I asked counsel for the Board to identify these treatment needs or a document before the Board by which it had been informed of them. Ms Robb directed the court to the second report of Dr Kovacevic as summarised in the statement of reasons. In it, Dr Kovacevic expressed his view this way: 42 Mahoney v Chief Executive, Department of Transport and Main Roads (2014) 206 LGERA 302 at 317 [39] (Gotterson JA; McMurdo P and Applegarth J agreeing). -- 22 of 29 -- 23 “It is difficult to predict or say that any particular treatment intervention in custody would significantly ameliorate the risk in the short or medium term. This applies to further individual counselling interventions, which Mr Burridge has been receiving anyway, as well as the violence prevention and substance abuse treatment programs.” [110] Indeed, it was Dr Kovacevic’s opinion that it was “difficult to argue that Mr Burridge’s parole release needed to be delayed specifically on the grounds that a completion of such treatment interventions would markedly decrease his risk”. [111] If Dr Kovacevic was the source of the Board’s information, then the Board completely misunderstood his report or completely rejected his opinion. At the hearing, I sought to understand what the Board had done. [112] In the statement of reasons, the Board wrote that it had: “considered the risk to the community in releasing you to parole with supervision now, as compared to after you have successfully completed further substance abuse interventions.” [113] This is precisely the matter on which Dr Kovacevic expressed his opinion. [114] It is possible that the Board simply had a different view to the psychiatrist it had engaged to advise it on Mr Burridge’s parole. However, the Board’s reasons proceed on the basis that the advice to the Board was to the contrary of the advice it received. [115] Contrary to Dr Kovacevic, the Board concluded the risk Mr Burridge poses “is likely to be less if you are supervised after completing high-level substance interventions.” [116] The expression “high-level substance interventions” is unhelpful. QCS offers “low intensity” and “high intensity” programs. [117] It is common ground that Mr Burridge completed a low intensity substance intervention course (LISI) in his most recent period in custody. He had much earlier completed the Cognitive Self Change: High Intensity Violent Offending Program, and later the Resilience program. On 12 March 2019 he completed the Decisions 40+ Substance Abuse program offered by QCS. His exit report “indicates he participated in all 18 sessions and was a highly engaged member of the group.” The exit report “recommended that he could benefit from psychological intervention for ongoing support within the community.” This resulted in him completing 20 sessions of one- on-one counselling with a psychologist, Ms Geddes. He continued to engage with Ms Geddes under High Risk Complex Needs (HRCN) funding. In the section of the statement of reasons dealing with Ms Geddes’s counselling, the Board commended Mr Burridge on his commitment to attending the sessions and his efforts in preparing his Safety Relapse Plan. These individual counselling sessions do not appear to have a classification as “low” or “high” intensity, as they were not courses designed of provided by QCS. [118] For the Parole Board Assessment Report, the PMHS confirmed that as of 9 October 2020 Mr Burridge was an open client. He was on three prescription medications for mood control, depression, and anxiety. [119] When informed by the preliminary view letter that the Board considered he should complete a “high level substance intervention”, Mr Burridge raised this with a clinical -- 23 of 29 -- 24 practitioner at the BTCC. The practitioner made enquiries of an officer in the Offender Intervention Unit. On 23 April 2021, the advice received was: “High Intensity Substance Intervention (HISI) is only delivered at Woodford CC and there are only two programs delivered every financial year. There are no HISI programs scheduled for delivery until [FY] 2021/2022 and as yet, the date for these programs have not been locked in.” [120] On 27 April 2021, this information was forwarded to the Board by an Assistant Manager, Sentence Management Services at BTCC. According to the statement of reasons, it was considered by the Board in making its decision. [121] It is unlikely the Board’s reference to a “high level substance intervention” was to a HISI course. The Board knew that was not available for Mr Burridge to do at BTCC. [122] In his response to the preliminary view letter, Mr Burridge drew the Board’s attention to Dr Kovacevic’s professional view about his outstanding treatment needs and to the situation with respect to a HISI course. [123] In the circumstances, I am satisfied that the Board’s unmoved position in these respects, formally set out in the statement of reasons, demonstrates that, in this respect, it exercised its power without regard to the merits of Mr Burridge’s application. This was not a matter of weighing evidence during its consideration. The Board ignored the opinion of Dr Kovacevic; and it may also have ignored the information about the HISI program. This indicates the Board did not have proper regard to the circumstances in favour of the grant of parole and did not consider the particular circumstances of Mr Burridge in relation to his outstanding treatment needs.43 [124] A decision-maker may, as a matter of law, adopt a policy to guide the exercise of a discretionary power, provided the policy is consistent with the statute.44 A policy will not be consistent with statute where, for example, it does not allow the decision-maker to take into account relevant considerations.45 At the outset of the Guidelines, the Minister advised the Board that “care should be taken to ensure that decisions are made with regard to the merits of the particular prisoner’s case.”46 [125] It appears the Board was acting on some policy that it did not identify in the statement of reasons. It did so in respect of a relevant factor,47 which was material to its ultimate decision to refuse parole. The Board appears to have been unwilling to depart from the policy so that, in this respect, it failed to give the merits of Mr Burridge’s application consideration in any real sense.48 [126] On any basis, in this respect the Board’s decision was not made according to law. 43 See Gough v Southern Queensland Regional Parole Board [2008] QSC 222 at [73] (Applegarth J). 44 Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634 (Re Drake (No 2)) at 640 (Brennan J), citing Stringer v Minister of Housing and Local Government [1970] 1 WLR 1281 at 1298 (Cooke J). 45 Re Drake (No 2) at 640 (Brennan J). 46 Cl 1.1. 47 Guidelines, cl 2.1(g). 48 Khan v Minister for Immigration and Ethnic Affairs (1987) 14 ALD 291 at 292 (Gummow J). -- 24 of 29 -- 25 Custodial behaviour [127] The final section of the statement of reasons, relevant to this review, concerns an incident on 2 August 2020. This involved custodial staff “addressing” Mr Burridge and giving him a direction not to access a particular area of the “unit” without their consent. According to the statement of reasons, Mr Burridge became abusive and swore at the staff, saying “get f***ed, you dogs, this is our unit” and “why do you think you’re such hard c***s”. [128] From this, the Board drew a conclusion: “the Board considered that your aggression and violent language towards correctional staff is inappropriate and informs the Board that your issues with violent behaviour are not adequately resolved.” [129] This much was set out in the preliminary view letter. In response, Mr Burridge pointed out that he had been through the prison disciplinary process and at a review hearing on 13 August 2020, the Manager, Prison Services had found him not guilty. The reviewing officer had the reports of the incident – as the Board evidently did – and Mr Burridge’s IOMs record and his past institutional and mental health history – as the Board also did.49 [130] The Parole Board Assessment Report was prepared after an interview with Mr Burridge on 9 December 2020. It reports: “On 2nd August 2020, prisoner Burridge was identified as the perpetrator of an offensive behaviour incident whereby prisoner Burridge became abusive towards Officers after directions were given to his unit by the Officers. Within his parole submission dated 1st September 2020, prisoner Burridge adamantly denies being abusive towards staff on this date. It is noted that prisoner Burridge was managed on a safety order until 29th August 2020 for his involvement in this incident, and breach action was taken, however prisoner Burridge was found not guilty upon review. Due to this determination, this incident was not discussed with prisoner Burridge during his parole interview.” [131] This explanation is contradicted, in part, elsewhere in the same report, where the author notes that Mr Burridge was on a safety order only from 2 August 2020 until 4 August 2020, when the order was cancelled. The report described the incident as “Offensive Behaviour”. [132] At the hearing, Ms Robb identified that this report is one given to the Board to inform it of “what corrective services know about Mr Burridge” and it is one of the “primary documents that the Board has on every one of these decisions”. It is “something routinely prepared” for parole decisions. [133] Rather than resile from the factual scenario stated in the preliminary view letter, the Board maintained it. Its explanation for doing so was expressed in the statement of reasons in these words: 49 Elsewhere in the statement of reasons, the President wrote that “the Board encourages [Mr Burridge] “to maintain acceptable behaviour in [his] secure unit and accept opportunities to continue to engage in employment or other positive use of [his] time.” -- 25 of 29 -- 26 “The Board notes that this finding was based on your IOMs[50] record and your past institutional and mental health history. The review did not find that the offending behaviour did not occur. Despite the mitigating factors that formed the basis for the finding of not guilty, the Board remains concerned about your actions on 2 August 2020 and in particular your use of aggression and violent language towards correctional staff.” [134] This incident is the only matter mentioned in the statement of reasons that could be the basis for the Board’s comment that Mr Burridge had “Poor institutional behaviour and conduct during [his] incarceration.” [135] The Board went further, expressly relying on the 2 August 2020 incident as a basis for its conclusion that: “the Board is not yet confident that if you were released to a parole order you would comply with conditions the Board is entitled to impose to ensure your good conduct and stop you committing an offence.” [136] This is reflected in the Board’s final finding of fact that Mr Burridge is “an unacceptable risk in the community at this time.” [137] The Board’s consideration of Mr Burridge’s application was on the basis that the incident occurred in the way alleged in the reports that were before the reviewing officer, who recorded a decision of not guilty.51 [138] I have considered the record of the review hearing that was before the Board. Nothing in it supports the Board’s conclusion about the basis for the reviewing officer’s decision that Mr Burridge was not guilty. The Board’s characterisation of the alleged conduct as “violent language” is not supported by the review hearing material or even the Board’s own assessment report. Nothing in the material leads to that conclusion. The Board did not reach a different view of the facts on the evidence before it. Rather it seems to have invented facts that were contrary to that evidence. [139] The Board’s conclusions and finding were reached on a factually erroneous basis. [140] The impact of this error is made clear when one turns to the unchallenged evidence before the Board about Mr Burridge’s custodial behaviour at that time. (a) Mr Burridge has spent about 23 of the past 28 years in custody. (b) On 1 August 2020, the day before the incident, Dr Kovacevic had reported to the Board that: “It is to [Mr Burridge’s] credit that he managed to maintain appropriate custodial behaviour and a positive future outlook.” (c) Indeed, Dr Kovacevic noted in his report the “combination of clear weaknesses and vulnerabilities, cognitive instability and fragility of mental state on one 50 Integrated Offender Management System. 51 Perhaps it is comforting that the Board applies no less a discount to the decision of a QCS review officer made within two weeks of an alleged incident as it does to a judge’s remarks on sentencing for the index offence. -- 26 of 29 -- 27 hand” and Mr Burridge’s “positive attitude, a genuine determination to succeed and the ability to desist from engaging in any high risk aggressive or violent behaviours” on the other. (d) The Parole Board Assessment Report includes information from “a verbal employment report” obtained four months after the incident, on 4 December 2020, from the Officer in charge of Mr Burridge’s unit: “The Officer reported that prisoner Burridge is ‘amazing, he knows what he has to do without being spoken to, is polite when dealing with staff and causes no issues.’” (e) On 20 May 2021, the Manager Prison Services at BTCC wrote to Mr Burridge about the “Accommodation, Placement and Progression Pathway” the centre had developed that “ensures that prisoners who chose to demonstrate appropriate positive behaviour and attitude are progressed in their accommodation placement and are rewarded through the application of increased privileges.” By the letter, the Manager advised Mr Burridge that based on his “institutional conduct” the Accommodation Committee had determined that he be placed in “Residential”. The letter explained that “the reason for this placement decision” was that he had “shown a potential to be successfully accommodated in a less restrictive environment.”52 (f) In the statement of reasons, the Board concluded its explanation of its view of Mr Burridge’s custodial behaviour in this way: “The Board would have more confidence if you demonstrated a lengthy period of satisfactory behaviour to demonstrate your ability to behave in a less structured environment.” [141] In the circumstances, I am satisfied that, in this respect, the Board exercised its power without regard to the merits of Mr Burridge’s application. Owing to this error, it failed to consider his actual conduct while in custody. That conduct was a relevant factor to which the Board was to have regard in considering whether to grant parole.53 Conditions of parole [142] This section of the statement of reasons is quite brief. It reads in full: “The Board considered whether any conditions of parole could be imposed that would affect the level of risk you may pose to the community if you were released on a parole order at this time. The Board 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 your level of risk to the community sufficiently to approve the application. However, given the factors outlined above, the Board formed the view that there are no such conditions at this time.” 52 The Board noted this letter, without comment, in its 10 June 2021 decision letter. It is not mentioned in the statement of reasons. 53 Guidelines, cl 2.1(c), 5.1(a) and (c). -- 27 of 29 -- 28 [143] As noted above, the Board had before it the eight conditions specifically recommended by Dr Kovacevic in his second report. There is no mention of them in this summary of the Board’s consideration. It would be remarkable if, having sought the professional opinion of Dr Kovacevic, the Board considered and rejected each of his recommendations, but provided no explanation or even mention of that process in the statement of reasons. [144] Likely due to the errors the Board made in its consideration of Mr Burridge’s criminal history, his outstanding treatment needs, and his custodial behaviour, the Board did not engage with the recommendations made by Dr Kovacevic. This was itself an error, being a failure to consider, apparently at all, recommended conditions of a parole order intended to enhance supervision of Mr Burridge and compliance with a parole order. This was a relevant factor to which the Board should have had regard.54 The Board’s ultimate decision [145] Criminal history, expert reports relevant to the application for parole, compliance with previous grants of parole, access to supports that or services may reduce the risk the applicant presents to the community, recommended rehabilitation programs and interventions and the applicant’s progress with them, custodial behaviour, and any conditions of parole intended to enhance supervision and compliance are relevant factors the Board is required to consider to form an opinion about the risk the applicant would pose to the community if released to parole and whether such an order should be made.55 [146] In Johnson v Parole Board of Queensland [2020] QSC 108 at [24], I noted: “Forming a view about the risk to the community involves considerations including the degree of likelihood of the applicant offending and the seriousness of the consequences should the risk eventuate. To form a view about whether a particular applicant for parole poses a risk that is unacceptable, the Board must balance the legitimate competing interests of the applicant and the public. The Board must weigh the reasonableness and importance of community safety and crime prevention, which may be advanced by continued detention, in light of the applicant’s common law right to liberty.[56] It is for the Board to decide whether there is sufficient public risk to justify leaving the applicant in gaol or whether there is any less restrictive and reasonably available way to achieve that purpose through a parole order. The Board’s power is to be exercised for the statutory purpose of corrective services, namely ‘community safety and crime prevention through humane containment, supervision and rehabilitation of offenders’. For each application, the Board decides whether the grant or refusal of a parole order would better achieve that purpose.” [147] The errors made by the Board affected the Board’s consideration of relevant factors for the assessment of the risk Mr Burridge’s release on parole would pose to the 54 Guidelines, cl 2.1(c), 5.1(f). 55 Guidelines, cl 2.1(a), (g), (i), (k), cl 5.1(c) and (f). 56 Attorney-General (Qld) v Sutherland [2006] QSC 268 at [30] (McMurdo J). The Board should also consider the statutory right to liberty under the Human Rights Act 2019 (Qld), ss 11(1), 13(1), (2)(b) - (g), 29(1), (3), and 30(1). No issue under this Act was raised by Mr Burridge in this review proceeding. -- 28 of 29 -- 29 community. The errors go to matters central to the exercise of the Board’s decision- making power. There is no logical or discretionary basis on which the Board’s decision should be left in place. Uncertain result ground [148] For completeness, I note no submissions were put to on the ground of review under s 23(h) of the JRA. The Board’s decision to refuse to grant parole produced a certain result. It was a decision authorised by s 193(1)(b) of the CSA. This ground of review is not made out. Final disposition [149] Mr Burridge has established some of the grounds under ss 20(2)(e) and 23(b) and (f) of the JRA on which he challenged the Board’s decision. These are sufficient to show that the purported decision to refuse his parole application was not made according to law. Order [150] In the circumstances, the court should make an order setting aside the decision with effect from the date it was made. The court should also make an order referring Mr Burridge’s application for parole to the Board for further consideration and for a decision according to law. Further directions [151] In his further application57 and his written submissions, Mr Burridge sought an order directing the Board to reconsider his application for parole within 30 days and to inform him of its decision within seven days. [152] No submissions against this relief were made at the hearing. However, I propose to invite the Board to inform Mr Burridge and the court of whether it has any alternative proposal in respect of these directions. The Board should do so within five working days. That information should be accompanied by any evidence the Board relies upon in support of any alternative proposal. [153] I propose to allow Mr Burridge a similar time to respond, if the Board proposes any alternative. If there is controversy, either party may indicate whether a further hearing is required or whether they are content for a decision on directions to be made on the papers without an oral hearing. Costs [154] As Mr Burridge has substantially succeeded in his application, the Board should pay his costs of the proceeding on the standard basis. 57 Filed by leave on 18 August 2021. -- 29 of 29 --