Calanca v Queensland Parole Board [2013] QSC 294

SUPREME COURT OF QUEENSLAND CITATION: Calanca v Queensland Parole Board [2013] QSC 294 PARTIES: DAMON FRANK CALANCA (applicant) v QUEENSLAND PAROLE BOARD (respondent) FILE NO: BS 4846/13 DIVISION: Trial Division PROCEEDING: Application for judicial review DELIVERED ON: 25 October 2013 DELIVERED AT: Brisbane HEARING DATE: 27 September 2013 JUDGE: Margaret Wilson J ORDER: 1. Application for judicial review dismissed. 2. No order as to costs. CATCHWORDS: ADMINISTRATIVE LAW – JUDICIAL REVIEW – GROUNDS OF REVIEW – GENERALLY – where the applicant sought judicial review of the respondent‘s decision to refuse him parole – where the applicant was convicted of murder in 1994 and sentenced to life imprisonment – where the applicant became eligible, and applied for, parole – where the respondent refused the applicant‘s application – whether improper exercise of power – whether decision made solely by reference to community safety – whether the respondent failed to take into account relevant considerations – whether the respondent failed to give adequate weight to factors of great importance, amounting to Wednesbury unreasonableness – whether the respondent had given undue weight to the risk that the applicant posed to the community – whether the respondent had failed to consider supervision and rehabilitation – where prison and probation and parole officers prepared a report recommending that the applicant be granted parole – whether the respondent failed to take that parole report into account Corrective Services Act 2006 (Qld) s 3, s 180, s 187, s 193(1), s 217, s 227(1), s 245 Judicial Review Act 1991 (Qld) s 20(2)(a), s 20(2)(e), s 23(b), -- 1 of 13 -- 2 s 23(c), s 23(g) Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223, cited Gough v Southern Queensland Regional Parole Board [2008] QSC 222, cited Green v Daniels (1977) 51 ALJR 463; [1977] HCA 18, cited Khan v Minister for Immigration and Ethnic Affairs (1987) 14 ALD 291; [1987] FCA 713, cited McGrane v Queensland Parole Board [2009] QSC 380, cited McGrane v Queensland Parole Board [2010] QSC 209, cited Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24; [1986] HCA 40, cited Minister for Immigration and Citizenship v Li [2013] HCA 18, cited Queensland Parole Board v Moore [2012] 2 Qd R 294; [2010] QCA 280, considered Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634; [1979] AATA 179, cited Reece v Webber (2011) 192 FCR 254; [2011] FACFC 33, cited Sweeney v Queensland Parole Board [2011] QSC 223, cited Weal v Bathurst City Council (2000) 111 LGERA 181; [2000] NSWCA 88, cited COUNSEL: M Black for the applicant JM Horton for the respondent SOLICITORS: Prisoners Legal Service for the applicant Crown Solicitor for the respondent [1] MARGARET WILSON J: The applicant seeks judicial review of the respondent‘s decision made on 1 March 2013 refusing him parole. Background [2] The applicant was born on 28 February 1967. [3] He murdered one Gabriel Meyer on or about 12 January 1993. He was taken into custody on 1 February 1993, then aged 26 years. He was convicted of the murder on 11 February 1994, and sentenced to life imprisonment.1 He became eligible for parole on 1 February 2006. [4] He was aged 46 at the time the respondent made the decision under review, and had been in custody for approximately 20 years. [5] About 13 months before the murder, the applicant committed the offences of unlawful wounding and dangerous driving, for which he was sentenced to two years probation and 200 hours community service. He had been in a relationship with a young woman who, three days before the incident, broke off the relationship, saying 1 Affidavit of Bridget Spiers filed 17 July 2013 exhibits BS-35 and BS-36 (pp 332-334). -- 2 of 13 -- 3 she wanted to ―get back with‖ the complainant - another young man with whom she had previously been in a relationship. The applicant invited the complainant out for a drive, on the pretext of wanting to discuss his relationship with the young woman. When they were in an isolated area, he stabbed the complainant in the back. The complainant fought back, disarming the applicant, and started to run away. The applicant drove his car in the direction of the complainant, narrowly missing him. [6] The applicant was on probation at the time of the murder. The applicant and the victim‘s sister had been going out together until a few weeks before, when she had gone to the United States. About a week before the applicant murdered her brother, she broke off the relationship by telephone. In revenge, the applicant asphyxiated her brother. He gave the victim a drink of Sustagen laced with at least 14 Vicks cold capsules and Maxalon anti-vomiting tablets, before placing a plastic bag over his head. He buried the victim in a shallow grave. When questioned by police, the applicant gave a false account of the victim‘s having made a homosexual advance towards him. There was a suggestion the applicant may have been a heavy user of marijuana at the time. [7] The applicant went to trial, and the jury returned a guilty verdict. The sentencing judge cautioned that any application for parole would need to be very carefully considered. [8] This is not the first time the applicant has been refused parole. His first application for parole was made on 21 May 2010 and refused on 21 April 2011. After he commenced a proceeding for judicial review of that refusal, the decision was set aside by consent on 23 August 2011. On 10 February 2012 the respondent again refused to grant him parole. [9] The applicant made a fresh application for parole, which was dated 10 August 2012 and received by the respondent on 3 September 2012. After considering this application on 14 September and 12 October 2012, the respondent reached a preliminary view that the applicant would pose an unacceptable risk to the community if released on parole at that time. On 18 October 2012 it wrote to him outlining its concerns and inviting further submissions. On 29 October 2012 the respondent received a five page submission from the applicant. On 9 November 2012 the respondent considered the application further and refused it. [10] After the applicant commenced a proceeding for judicial review of that refusal, the respondent rescinded its decision on 1 February 2013, and deferred further consideration of the matter. [11] At its meeting on 1 March 2013 the respondent refused to grant the applicant parole. It notified of the applicant of its decision by letter dated 13 March 2013, and provided a statement of reasons under cover of a letter dated 19 April 2013. This application [12] In this proceeding the applicant seeks an order quashing or setting aside the respondent‘s decision of 1 March 2013 and an order referring his application for parole to the respondent for further consideration. -- 3 of 13 -- 4 [13] In his application filed on 29 May 2013, the applicant relied on two provisions of the Judicial Review Act 1991 (Qld) – s 20(2)(e) and s 20(2)(a). He contended that the decision was an improper exercise of the power conferred by s 193(1) of the Corrective Services Act 2006 (Qld) within the meaning of s 20(2)(e) or alternatively that there was a breach of the rules of natural justice within the meaning of s 20(2)(a). However, on the hearing of the application, his submissions all related to improper exercise of power. [14] The applicant has formulated his complaints about the decision in a number of ways. However, essentially his challenge to the decision is twofold – (a) that the respondent focussed on the risk he posed to the community to the exclusion of considerations to do with his supervision or rehabilitation; and (b) that the respondent failed to take into account a report to it prepared by prison and probation and parole officers dated 3 September 2012. The statement of reasons2 [15] In its statement of reasons, the respondent set out the history of the application and then listed 37 documents under the heading ―Evidence and other material upon which findings of fact were based‖. These included – ―1. Ministerial Guidelines issued to the Queensland Parole Board; 2. Correspondence from the Applicant to the Board, dated 08 February 2013; … 9. Correspondence from the Applicant to the Board, dated 29 October 2012; 10. Correspondence from the Board to the Applicant, dated 18 October 2012; … 13. Parole Board Report, dated 03 September 2012; 14. Form 29 – Application by Prisoner For Parole Order, dated 10 August 2012, with the following supporting documentation:  126 page submission; … 27. Psychiatric Report – Dr De Leacy, dated 17 October 2011; 28. Psychiatric Report – Dr Kar, dated 14 March 2011; … 33. Correspondence from Director of Public Prosecutions to the Director-General, Queensland Corrective Services Commission, dated 17 February 1994; … 36. Transcript of Proceedings, dated 11 February 1994; and 37. Criminal History, printed 12 May 1993.‖ [16] The ―Parole Board Report‖3 (document no 13 in the list of documents relied upon) was a document prepared pursuant to s 245 of the Corrective Services Act by a panel consisting of corrections officers, a psychologist working within the corrections system and a probation and parole officer. It contained observations under the headings Background, Institutional Response, Reintegration Considerations, Summary & Evaluation, and Recommendation. It recommended that the applicant be granted parole. 2 Affidavit of Bridget Spiers filed 17 July 2013 exhibit BS-12 (Court doc 7, pp 151-158). 3 Supplementary affidavit of Bridget Spiers filed 18 September 2013 exhibit BS-38 (Court doc 11). -- 4 of 13 -- 5 [17] The lengthy submission supporting the formal application for parole4 (document no 14) was an updated version of material previously submitted to the respondent. The applicant proposed living with a former prison chaplain and his wife (Mr and Mrs Valentine). He described his plans for employment/training and set out a relapse prevention plan. [18] The report by Dr de Leacy dated 17 October 20115 was commissioned by the respondent in relation to a previous application for parole when it was faced with two conflicting expert opinions. In his report dated 16 August 2010, Dr Prabal Kar, a psychiatrist, considered that the applicant had a highly narcissistic personality and that he was and would remain dangerous. In a report dated 7 January 2011, Professor Ian Coyle, a forensic psychologist, considered that the applicant had some abnormal personality traits but that he did not have a severe personality disorder, and that the risk of recidivism was low. Dr de Leacy adopted a position somewhere between the two extremes. He thought that the applicant had narcissistic and anti- social personality traits, and quite possibly a personality disorder. However, during his incarceration he had matured and his abnormal traits might not be present to the same extent as they had been at the time of the offending. There would be risks associated with his release, particularly the risk of return to marijuana use and relationship risks, but these would be manageable if stringent precautions were taken. [19] After listing those 37 documents, the respondent then set out its ―Findings on material questions of fact‖, including – ―3. The Board noted the caution expressed by his Honour at time of sentencing in that his Honour remarked: ‘...I note the information provided by the Crown Prosecutor as to your previous conviction and I certainly consider that when the time comes to consider any parole application, the Parole Board should give due attention to those matters. It is not my practice to make recommendations as to parole when I pass life sentences because I think that in general the sentence is more awful in the proper sense of the word if it is left unadorned by such recommendation. That is not to say that I do not agree with Mr Rutledge when he says that consideration of parole should be very carefully considered indeed in your case.’ The Board adopted that caution expressed by his Honour and therefore took a very careful approach to considering the Application. The Board considered the correspondence written by Mr PF Rutledge, Crown Prosecutor, dated 17 February 1994. The Board noted that it did not have access to all of the attachments referred to in the letter from Mr Rutledge, however considered some of the attachments which formed part of the material before the Board. The Board noted and accepted the summary of events provided by Mr Rutledge and agreed that ‗the similarity in the circumstances surrounding the attack on Paul Mellick and the killing of Gabriel Meyer... is very disturbing‘. 4 Affidavit of Bridget Spiers filed 17 July 2013 exhibit BS-1 (Court doc 7, pp 1-127). 5 Affidavit of Bridget Spiers filed 17 July 2013 exhibit BS-1 (Court doc 8, pp 282-295). -- 5 of 13 -- 6 4. The Board considered that the Applicant‘s criminal history represented an escalation of offending behaviour. The Board noted that the Applicant committed the most serious offence of Murder whilst serving community based orders for Unlawful wounding and Dangerous driving. The Board noted the similarities in the circumstances of the Applicant‘s criminal history and his current offence. 5. The Board considered the psychiatric assessments and noted that Dr de Leacy concluded that the Applicant may be a manageable risk in the community, however this was premised upon stringent precautions, as suggested by Dr de Leacy, being put into place. The Board remained concerned that the stringent precautions outlined by Dr de Leacy may not be able to be put into place. 6. In particular, the Board is concerned that the steps Dr de Leacy proposed to manage the relationship risk may not be practicable. Furthermore, the Board considered there were aspects of Dr de Leacy's report which suggested that the Applicant remained a real and unacceptable risk if released on parole. These concerns were highlighted in the Board‘s correspondence to the Applicant dated 18 October 2012 and again adopted by the Board in correspondence dated 6 February 2013. The Board repeats and relies upon these concerns.‖ [20] It determined that the proposed accommodation for the applicant was unsuitable, saying – ―12. Having regard to the applicant‘s history, and despite the well- meaning attitude of Mr and Mrs Valentine, the Board was not satisfied that the accommodation will not present an unacceptable level of risk from a relapse into recidivism. 13. The Board considered that suitable accommodation with supporting sponsors would be absolutely essential for the Applicant‘s safe reintegration back into the community; and the Board is not confident that the Applicant‘s risk to community safety can be further reduced until such suitable accommodation with supporting sponsor(s) can be found.‖ [21] It made these findings on the applicant‘s further submissions - ―10. The Board considered the Applicant‘s submissions dated 29 October 2012 and 08 February 2013 and made the following findings regarding the matters submitted by the Applicant:  The Applicant reports participation in Community Service Leaves Of Absence for a period of ten months. The Board carefully considered the steps the Applicant has taken towards rehabilitation. Particular note was taken of the fact that he has satisfactorily completed some leave of absences and that he has been employed in a community setting. However, the Board -- 6 of 13 -- 7 considered that being absent from secure custody for periods of several hours at a time and then returned to a prison environment is quite different from the level of freedom provided by parole. In some circumstances leave of absences can be a precursor to a grant of parole, but each case must be considered on its own separate facts.  The Applicant reports having not demonstrated any violent behaviour whilst incarcerated. The Board noted that the Applicant has not been involved in violent incidents in prison. While that is pleasing to note, the Board considered that this is the behaviour which is expected of all prisoners. An inability to refrain from violence whilst in a custodial setting might well indicate a heightened likelihood of violent behaviour in the community, but an absence of violence in a structured, supervised prison environment does not indicate a certainty that there will be an absence of violence in the community.  The Applicant provided comment regarding the completion of psychiatric assessments for the purposes of determining parole suitability. The Board noted the Applicant‘s submissions about the psychiatric evidence which has been obtained over the years. After careful consideration of all the psychiatric material the Board decided the matters previously relied upon by the Board still were appropriate.  The Applicant provided response to the Board‘s concerns regarding marijuana use. The Board took into account that none of the urine samples taken from the Applicant while in custody have indicated illicit drug use. The Board is also aware that drugs are sometimes available in prison. The Board considered that an adverse inference may have been drawn against the Applicant if the Applicant did have a history of drug use in custody. But the Board also considered that it is expected that prisoners will not possess or use drugs while incarcerated, and in the Board‘s view it is more difficult to obtain drugs in a prison setting than it is in the community. After reconsidering all the relevant factors the Board has maintained its concern about the potential outcomes should the Applicant return to marijuana use.‖ [22] Under the heading ―Reasons for decision‖ the respondent said – ―Based on the findings listed above, including the caution expressed by his Honour at the time of sentencing, the circumstances of the Applicant‘s offences and escalation in offence severity when considering his criminal history, the concerns raised in Dr de Leacy‘s report including the possibly unattainable stringent precautions should he be released to parole and the Applicant‘s failure to nominate suitable accommodation, the Board considered the Applicant poses an unacceptable risk to the community and decided to refuse his application for parole.‖ -- 7 of 13 -- 8 Corrective Services Act 2006 [23] The applicant made his application for parole pursuant to s 180 of the Corrective Services Act 2006. [24] By s 217 it was the respondent‘s function to decide the application. It had power to ―hear and decide‖ the application: s 187. By s 193 it had to decide either to grant the application or to refuse to do so. Improper exercise of power [25] Counsel for the applicant submitted that the respondent‘s decision was an improper exercise of the power conferred by s 193 of the Corrective Services Act, in that it was an exercise of the power for a purpose other than one for which it was conferred.6 He submitted that the respondent decided the application solely according to the risk to the community if the applicant were released on parole, which, he submitted, was not a purpose authorised by the act. [26] Counsel for the applicant made further or alternative submissions as to why the respondent‘s decision was an improper exercise of power. He submitted that the respondent failed to take into account relevant considerations, namely supervision and rehabilitation.7 He submitted that the respondent failed to give adequate weight to factors of great importance, namely supervision and rehabilitation, and that that failure amounted to manifest unreasonableness in the Wednesbury sense.8 [27] Finally, counsel for the applicant submitted that the respondent‘s decision was an improper exercise of power because it failed to take into another relevant consideration – namely, the Parole Board Report dated 3 September 2012.9 Discussion Principles [28] The parole system is an integral part of the sentencing and corrective services arrangements in this State. Except where the sentencing court fixes a parole release date pursuant to s 160C of the Penalties and Sentences Act 1992 (Qld), a prisoner has no right to release on parole. Rather, he becomes eligible for parole at a point in his sentence which is determined either by legislative prescription or by the sentencing court (having regard to matters provided for in the applicable sentencing legislation). Then it is for a parole board, on application by the prisoner, to decide whether to grant parole. [29] The decision whether to grant parole is within the discretion of the parole board. The factors the parole board may take into account in the exercise of that discretion 6 Judicial Review Act ss 20(2)(e), 23(c). 7 Judicial Review Act ss 20(2)(e), 23(b). 8 Judicial Review Act ss 20(2)(e), 23(g); Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223; Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 at 41, 71; Minister for Immigration and Citizenship v Li [2013] HCA 18 at [72] per Hayne, Kiefel and Bell JJ. 9 Judicial Review Act ss 20(2)(e), 23(b). -- 8 of 13 -- 9 are not expressly stated in the Corrective Services Act, and must be determined by implication from the subject-matter, scope and purpose of that act.10 [30] The Corrective Services Act deals with many aspects of the corrective services system beyond parole. The purpose provision, s 3, applies to the whole act, not just to those provisions which are concerned with parole. As counsel for the respondent submitted, there are twin purposes expressed in s 3(1), namely community safety and crime prevention, and three equally important ways of achieving those purposes, namely containment, supervision and rehabilitation.11 [31] There are several inter-related factors at play in the determination of an application for parole. [32] Parole involves serving the balance of a term of imprisonment in the community, subject to supervision, and with the prospect of having to return to custody in the event of further offending or other breach of the conditions of the parole. Where an offender is serving a fixed term of imprisonment, parole can effectively be a form of graduated release. That cannot be so where a prisoner has no prospect of full-time release because he is serving a sentence of life imprisonment. [33] A parole board has to assess what effect a prisoner‘s release on parole would have on community safety and crime prevention, both at the time of his release and in the future. Rehabilitation of an offender is a means of attaining community safety and crime prevention. The extent of a prisoner‘s progress towards rehabilitation whilst in custody may be some indication of how he will perform if released on parole. [34] The orderly management of prisons is another means of attaining community safety and crime prevention. The principled determination of parole applications in accordance with a regime that is fair to prisoners is conducive to good behaviour by persons in custody, as well as to their rehabilitation.12 Guidelines [35] In making the impugned decision, the respondent quite properly had regard to ―Ministerial Guidelines to the Queensland Parole Board‖ issued on 23 August 201213 pursuant to s 227(1) of the Corrective Services Act.14 [36] Relevantly, the guidelines included – ―SECTION 1 – GUIDING PRINCIPLES FOR THE QUEENSLAND PAROLE BOARD 10 Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 at 39-40 per Mason J. See also Minister for Immigration and Citizenship v Li [2013] HCA 18 at [26] per French CJ. 11 See Sweeney v Queensland Parole Board [2011] QSC 223 at [57]-[58] per Fryberg J. 12 See McGrane v Queensland Parole Board [2010] QSC 209 at [26] per PD McMurdo J. 13 Affidavit of Bridget Spiers filed 17 July 2013 exhibit BS-13 (Court doc 7, pp 159-166). 14 It is implicit in s 227 that the respondent may have regard to such guidelines in performing its functions, but it must consider the individual circumstances of each applicant for parole. See McGrane v Queensland Parole Board [2009] QSC 380 at [18]-[19], and see Green v Daniels (1977) 51 ALJR 463 at 467; Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2. ALD 634 at 642; Wiskar v QCSC [1998] QSC 279; DAR v Queensland Parole Board [2009] QSC 399 at [35]-[36]. -- 9 of 13 -- 10 1.1 Section 227(1) of the Corrective Services Act 2006 (the Act) allows the Minister to make guidelines regarding the policy to be followed by the Queensland board in performing its functions. In following these guidelines, care should be taken to ensure that decisions are made with regard to the merits of the particular prisoner‘s case. 1.2 When considering whether a prisoner should be granted a parole order, the highest priority for the Queensland Parole Board (‗the Board‘) should always be the safety of the community. 1.3 The Board should consider whether there is an unacceptable risk to the community if the prisoner is released to parole, and whether the risk to the community would be greater if the prisoner does not spend a period of time on parole. SECTION 2 – SUITABILITY 2.1 When deciding the level of risk that a prisoner may pose to the community, the Board should have regard to all relevant factors, including but not limited to, the following— a) the prisoner's prior criminal history and any patterns of offending; b) the likelihood of the prisoner committing further offences; c) whether there are any other circumstances that are likely to increase the risk the prisoner presents to the community; … e) the recommendation for parole, parole eligibility date, or any recommendation or comments of the sentencing court; f) the prisoner's cooperation with the authorities both in securing the conviction of others and preservation of good order within the corrections system; g) any medical, psychological, behavioural or risk assessment report relating to the prisoner; … i) the prisoner‘s compliance with any other previous grant of community based release, resettlement leave program, community service or work programs; j) whether the prisoner has access to supports or services that may reduce the risk the prisoner presents to the community; and k) recommended rehabilitation programs or interventions and the prisoner‘s progress in addressing the recommendations. SECTION 5 – PAROLE ORDERS 5.2 When considering releasing a prisoner to parole, the Board should have regard to all relevant factors, including but not limited to the following— -- 10 of 13 -- 11 a) time spent in custody during the current period of imprisonment; b) time spent in a low security environment or time spent in residential accommodation, and a history of positive institutional behaviour; c) time spent undertaking a work order or performing community service; d) appropriate transitional, residential and release plans; and e) genuine efforts to undertake available rehabilitation opportunities. 5.4 When the Board grants parole to a prisoner who is serving a life sentence, careful consideration should be given to the imposition of a requirement that the prisoner wear an electronic monitoring device as directed by the Chief Executive, and that the prisoner comply with a curfew direction by the Chief Executive to remain at a place during specified periods of time.‖ (Emphasis added.) [37] The statement in paragraph [1.2] of the guidelines that the respondent should always give the highest priority to the safety of the community when considering applications for parole is consistent with the purpose expressed in s 3(1) of the act. [38] Paragraph [1.3] of the guidelines speaks of risk to the community, which, in the context of s 3 and paragraph [1.2], clearly means risk to the safety of the community from the applicant‘s re-offending: the respondent is advised to consider whether that risk would be unacceptable if the prisoner were released on parole, and whether it would be greater if he did not spend time on parole. The latter consideration would be unlikely to arise in the case of someone serving a sentence of life imprisonment. Paragraph [2.1] relates to the assessment of that risk. It exhorts the respondent to have regard to all relevant factors, and goes on to provide a non-exhaustive list of factors to be considered. The assessment of that risk is relevant to whether the legislative goals of community protection and crime prevention are likely to be attained if parole is granted. [39] The power to grant or refuse an application for parole was conferred for the twin purposes of community safety and crime prevention. In the absence of ongoing incarceration, the attainment of these goals could not be assured. This explains the need to assess the risk to community safety if parole were granted. Application to the present case [40] In Queensland Parole Board v Moore15 the offender was serving a fixed term of imprisonment. He sought judicial review of the parole board‘s refusal to grant him parole. The primary judge concluded that the board had failed to take into account relevant considerations including whether the risk to the community would be greater if parole were not granted and he remained in custody until his full-time 15 [2012] 2 Qd R 294. -- 11 of 13 -- 12 release date. In dismissing the board‘s appeal against his Honour‘s decision the Court of Appeal referred to s 3(1) of the Corrective Services Act and said – ―Considering the function of parole in that context, it cannot be accepted that the Board is not obliged, in considering risk, to look beyond the time at which it is dealing with a parole application. If community safety is to be achieved by supervision and rehabilitation, it is necessary to consider an applicant‘s likely progress over the potential parole period, rather than confining considerations to the present or the immediate future. Dr Kar had advised that it would be preferable for the respondent to be gradually re-integrated back into the community; the Parole Board Assessment Report had made the point that the benefits of supervision would diminish as the length of the prospective parole period was reduced. It was accordingly, both relevant and necessary for the Board to take into account and weigh the relative risks of discharging the respondent at or towards the end of his sentence and of giving him earlier supervised release on parole.‖ 16 [41] Unlike Moore, the present applicant is serving a sentence of life imprisonment. While he has never had any prospect of full-time release, he has nevertheless had a parole eligibility date, from which he has been eligible to serve the remainder of his sentence, ie the rest of his life, in the community subject to supervision. As counsel for the applicant submitted, even in the absence of a full-time release date, the respondent had to consider whether community safety could be achieved by supervision and rehabilitation rather than containment.17 [42] The extent of the applicant‘s rehabilitation to date, including his good behaviour in prison and on leaves of absence and his participation in rehabilitation programs, was relevant to the assessment of the risk to community safety if parole were granted. An assessment of the arrangements proposed for his accommodation in the community and whether those arrangements met the stringent precautions recommended by Dr de Leacy was also relevant to the assessment of that risk. The respondent took all these factors into account. There is no substance in the submission that it did not do so. Rehabilitation and supervision were indeed very important factors, but there is no substance in the submission that the respondent failed to give them adequate weight. Parole Board Report [43] Counsel for the applicant submitted that s 245 implicitly requires a parole board to take account of a report it obtains pursuant to that section. He submitted that on a fair reading of the statement of reasons, it should be inferred that the respondent did not take the parole board report dated 3 September 2012 into account, despite its being included in the list of documents upon which the findings of fact were said to be based. [44] In my view it is implicit in s 245 that a respondent may have regard to a report it obtains under that section. The contents of such a report, including any recommendation as to whether parole should be granted or refused and the 16 [2012] 2 Qd R 294 at 301. 17 T 1-32 – 1-33. -- 12 of 13 -- 13 conditions that might be attached to a grant of parole,18 will ordinarily be a relevant consideration. However, I do not think that s 245 mandates that the report be taken into consideration. [45] I accept counsel for the applicant‘s submission that to take something into account in this context is to give it ―proper, genuine and realistic consideration upon the merits‖.19 [46] The Parole Board Report described the applicant‘s relapse prevention plan as robust and achievable, and ended with a recommendation that he be granted parole. Counsel for the applicant stressed that the authors of the Parole Board Report had the benefit of interviewing the applicant, that they were fully apprised of his unblemished prison history, and that their report postdated the relevant application (which included the relapse prevention plan) and Dr de Leacy‘s report. However, it seems unlikely that the authors of the report had access to Dr de Leacy‘s report, as it was addressed to the respondent. [47] Counsel for the respondent submitted that most of the report was devoted to the recitation of facts which were otherwise blindingly obvious to the respondent. The respondent accepted that the applicant had performed well in custody and that he had achieved a degree of rehabilitation. He submitted that the thrust of the report was that the applicant had made positive progress towards rehabilitation, and that this uncontroversial conclusion was merely the starting point for the respondent‘s mature consideration whether to grant him parole. In those circumstances, he submitted, it was sufficient for the respondent to list the report as having been taken into account. [48] In my view there is force in counsel for the respondent‘s submissions in this regard. In deciding whether to grant parole, the respondent‘s task was essentially prospective: it had to assess what effect the applicant‘s release on parole was likely to have on community safety and crime prevention. His performance in custody, including the level of rehabilitation he had so far achieved, was relevant to that assessment. But the respondent was aware of that from other sources. The report‘s recommendation was based solely on historical facts and did not address the future. [49] While it may have been desirable for the respondent to refer substantively in its statement of reasons to the report and in particular the recommendation it contained, I am unpersuaded that its failure to do so amounted to failure to take a relevant consideration into account. Conclusion [50] The applicant has not established that the respondent‘s decision refusing him parole was an improper exercise of power. His application for judicial review should be dismissed. 18 Gough v Southern Queensland Regional Parole Board [2008] QSC 222 at [27]. 19 Khan v Minister for Immigration and Ethnic Affairs (1987) 14 ALD 291 at 292 per Gummow J. See also Reece v Webber (2011) 192 FCR 254 at 277-278 per Jacobson, Flick and Reeves JJ and Weal v Bathurst City Council (2000) 111 LGERA 181 at [9] per Mason P and at [80] per Giles JA with whom Priestley JA agreed. -- 13 of 13 --