Calanca v Parole Board Queensland [2019] QSC 34

SUPREME COURT OF QUEENSLAND CITATION: Calanca v Parole Board Queensland [2019] QSC 34 PARTIES: DAMON FRANK CALANCA (Applicant) v PAROLE BOARD QUEENSLAND (Respondent) FILE NO: BS No 3541 of 2018 DIVISION: Trial Division PROCEEDING: Application for a Statutory Order of Review DELIVERED ON: 26 February 2019 DELIVERED AT: Brisbane HEARING DATE: 7 December 2018 JUDGE: Bowskill J ORDER: 1. The decision of Parole Board Queensland, set out in its letter to the applicant dated 2 February 2018, is set aside. 2. The matter to which the decision relates is referred back to Parole Board Queensland for further consideration in accordance with law, and in accordance with these reasons. CATCHWORDS: ADMINISTRATIVE LAW – JUDICIAL REVIEW – GROUNDS OF REVIEW – RELEVANT CONSIDERATIONS – application for a statutory order of review of a decision of the Parole Board refusing a grant of parole to the applicant, a prisoner serving a sentence of life imprisonment for a murder committed in 1993 – where the applicant became eligible for parole in 2006, but remains in custody having served 26 years – where the applicant has made four previously unsuccessful applications for parole – where the respondent refused the applicant’s fifth parole application on the ground that he poses an unacceptable risk to the community, as the applicant’s rehabilitation and treatment remains untested outside the custodial environment, and the respondent considered the applicant could not be relied upon to comply with parole conditions requiring self-reporting because he committed the murder in 1993 in breach of a probation order – where the applicant has had a low security classification since 2009, has committed no breaches whilst in custody, has undertaken a number of rehabilitation programs and participated in community based work release programs -- 1 of 40 -- 2 when life prisoners were able to do so – whether the respondent failed to take into account, in the sense of giving proper, genuine and realistic consideration to, the substance of the applicant’s successful participation in community based work release programs – whether the respondent failed to take into account the rehabilitation of the applicant, in the years that have passed since 1993 Corrective Services Act 2006 (Qld), s 3, s 193, s 194, s 200, s 200A, s 242E Australian Retailers Association v Reserve Bank of Australia (2005) 148 FCR 446 Bondelmonte v Bondelmonte (2016) 259 CLR 662 Calanca v Queensland Parole Board [2013] QSC 294 Calanca v Queensland Parole Board [2016] QSC 3; [2017] 1 Qd R 1 Khan v Minister for Immigration and Ethnic Affairs (1987) 14 ALD 291 McGrane v Queensland State Parole Board [2010] QSC 209 Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 Minister for Immigration and Border Protection v SZVFW (2018) 357 ALR 408 Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 Minister for Immigration and Citizenship v SZJSS (2010) 243 CLR 164 Queensland Parole Board v Pangilinan [2015] QCA 35 R v Buckley [2008] QCA 45 Reece v Webber (2011) 192 FCR 254 Swift v SAS Trustee Corporation [2010] NSWCA 182 Zhang v Canterbury City Council (2001) 51 NSWLR 589 COUNSEL: The applicant appeared on his own behalf M J Woodford for the respondent SOLICITORS: The applicant appeared on his own behalf Crown Law for the respondent Introduction [1] The applicant is serving a life sentence of imprisonment for murder. He has been in prison serving this sentence since 1 February 1993. He was then 25. His parole eligibility date is recorded as 1 February 2006.1 He remains in custody, having now served 26 years in prison. 1 See s 165(1)(a)(i) and s 166(1)(a) as they appear in reprint no. 1 of the Corrective Services Act 1988 (Qld) (now repealed), which provided a minimum non-parole period for a prisoner serving a life sentence of 13 years. -- 2 of 40 -- 3 [2] The victim of the murder was the 17 year old brother of a girl the applicant had been going out with for a short period of time. It was contended at the trial the applicant killed the victim out of revenge, following the girl breaking off the relationship. The murder was described as planned and premeditated.2 [3] Prior to the murder, in 1992, he had been convicted of unlawful wounding and dangerous driving, committed in December 1991. He was sentenced to 200 hours of community service and probation for 2 years. An Attorney-General’s appeal against the sentence was refused.3 The circumstances of this offending bore some similarity to the murder in that the victim was the former boyfriend of a girl the applicant was in a relationship with for a short time. She broke off the relationship with the applicant, in order to reunite with her former boyfriend. [4] Since becoming eligible for parole, the applicant has made a number of applications for release on parole, all of which have been refused. His most recent, and fifth, application was made on 6 February 2017. That application was refused following a meeting of the Board on 16 January 2018, for reasons set out in the Board’s letter dated 2 February 2018.4 The applicant requested a statement of reasons under the Judicial Review Act 1991 (Qld), which was provided on 4 April 2018.5 [5] The applicant applies for a statutory order of review of the Board’s decision to refuse his most recent application for parole. On the basis of his application, and his written submissions, I proceed on the basis that the grounds on which he seeks to review the Board’s decision are as follows: Community work release 1. The making of the decision was an improper exercise of the power conferred by the Corrective Services Act 2006 (Qld), in that the Board failed to take a relevant consideration into account, namely, the applicant’s performance on community based work orders. 2. Further, the making of the decision was an improper exercise of the power conferred by the Corrective Services Act, in that the Board failed to take a relevant consideration into account, namely, the applicant’s low security classification for the past 10 years, and the absence of any breaches whilst in custody. 3. Alternatively, the making of the decision was an improper exercise of the power conferred, or involved an error of law, because it was based in part on a finding of fact for which there was no probative evidence, namely, that his “rehabilitation and treatment remains untested outside of the custodial environment”. 2 See for example, Dr Palk’s report, at pp 396-399 and also at p 381 of the exhibits to Ms Wickramasinghe’s affidavit; see also Dr Andrews’ report at pp 435-436. 3 See exhibits to Ms Wickramasinghe’s affidavit at p 101. 4 Mr Calanca’s affidavit, exhibit 5. 5 Mr Calanca’s affidavit, exhibit 7. -- 3 of 40 -- 4 4. Alternatively, the making of the decision was an improper exercise of the power conferred, because it was so unreasonable that no reasonable person could so exercise the power. Psychiatric / psychological risk assessments 5. The making of the decision was an improper exercise of the power conferred, because the Board disregarded, or failed to give sufficient weight to, the risk assessment conducted by, among others, Dr Andrews; an assessment that had specifically been requested by the parole panel for the purposes of considering the applicant’s most recent application for parole. 6. Further, the making of the decision was an improper exercise of the power conferred, because it involved taking an irrelevant consideration into account, namely the dictionary definition of “moderate”, as opposed to the medical meaning as informed by the psychiatrists and psychologists who have used the term in describing the applicant’s risk of reoffending as “moderate to low”. Parole conditions 7. Procedures that were required by law to be observed in relation to the making of the decision were not observed, namely, the Board failed to have regard to the ability to impose additional conditions on parole, under s 200(3) of the Corrective Services Act. 8. The making of the decision was an improper exercise of the power conferred in that the Board failed to take into account relevant considerations, in determining whether the applicant could be expected to comply with parole conditions, namely, the applicant’s rehabilitation, his age/maturity, the courses and programs he has completed in custody, his participation in community based work release programs, his community support, his low security classification and his positive institutional behaviour over the 26 years of his incarceration. [6] The applicant also advanced an argument that the decision involved an error of law and/or was an improper exercise of power, because the Board disregarded the direction of a “responsible person” within the meaning of s 187 of the Public Service Act 2008 (Qld), which sets out the grounds for discipline of a public service employee. The person the applicant contends is a “responsible person” is Dr Andrews, the psychologist who prepared the most recent risk assessment report, at the request of the parole panel. In this context, “responsible person”, for a direction, means a person with authority to give the direction, whether the authority derives from the Public Service Act or otherwise (s 187(4)). The unfettered nature of the Parole Board’s discretion is such that there is no person who can give the board a “direction” as to how to exercise its discretion. This provision has no operation in relation to the Board’s decision. -- 4 of 40 -- 5 [7] Before turning to consider the decision and the grounds of review I will refer to the material which was before the Board in some detail, because the broader context is relevant to the determination of this application. Material before the Board [8] At the time of making its decision, the Board had before it the material annexed to the affidavit of Ms Wickramasinghe. That material reveals the following, chronologically.6 [9] The applicant became eligible to apply for parole on 1 February 2006. [10] On 23 November 2007 he made an application to the Parole Board for “resettlement leave”.7 This was refused. The parole board assessment panel report in relation to this application: (a) referred to an assessment of the applicant from August 2001 which considered him “a low risk for recidivism” (p 11); (b) noted that the applicant’s prior criminal history consisted of charges of unlawful wounding and dangerous driving in 1992, for which he was sentenced to 200 hours of community service and probation for 2 years, and that these orders were breached by the commission of the offence of murder in 1993 (p 11); (c) summarised the applicant’s progress in completing “recommended interventions”, including cognitive skills, anger management, substance abuse education and violence intervention programs, as well as completing a Bachelor of Social Science and various other courses (pp 9-11); (d) summarised the applicant’s progress from high security classification in 1994 through to low security in November 2007 (pp 8-9); (e) referred to his good work history in custody, and “very good institutional behaviour as demonstrated by maintaining stable employment, compliance with his case plan and rules and regulations of this Centre” (p 8); (f) referred to incidents/breaches in 2004 (one involving a visitor to the applicant having a positive test on the ion scan machine to cocaine, and another involving some play station 2 games) and 2006 (in relation to a sharpening stone, for a kitchen knife, being found in an area the applicant was residing in) (p 7); (g) notes that in 2006 he was assessed as being unlikely to benefit from participation in further offender behaviour programs and, particularly in relation to violence, that 6 Unless otherwise indicated below, references are to page numbers in the bundle of exhibits annexed to Ms Wickramasinghe’s affidavit. The documents are annexed in reverse chronological and paginated order (with the first document, in chronological order, being the last one annexed, and the pagination starting, at the end, with page 1, and then working backwards), which I would politely observe is difficult to navigate. 7 Provided for by ss 75-78 of the Corrective Services Act 2006, when first enacted. -- 5 of 40 -- 6 there is no evidence of significant mental health needs warranting psychiatric assessment (p 5); (h) highlighted the severity of the offence, and length of time in prison (then, 15 years) as the primary negative features, and suggested that the applicant spend time at a low security facility before being granted resettlement leave, to allow him to have a slow progression back into the community and reduce the effects of institutionalisation (pp 2-3); (i) included the following comment from the Director of the Borallon Correctional Centre (p 1): “Offender Calanca has maintained satisfactory behaviour and has successfully completed recommended interventions to address his criminogenic needs. In addition, he has identified extensive realistic release plans and a relapse prevention plan to assist him to manage high risk situations. Offender Calanca has served an extensive length of time in custody and as such, reintegration into the community should be structured and supported. Whilst it is recommended this reintegration occur through a program of resettlement leave, this would be most effective once he is placed in a low security facility.” [11] A letter from the Parole Board to the applicant, dated 29 February 2008, communicated the Board’s reasons for “considering declining to grant a Resettlement Leave Program” (p 14-16). The Board’s “major concern” was that the applicant had: “only relatively recently progressed to a low classification and that because of your extended period of incarceration, your gradual release to the community would allow you to demonstrate your trustworthiness which will reassure the Board as it assesses your capacity to function appropriately in the community. As yet the Board has not had sufficient opportunity to assess you[r] progress as you have not had the opportunity to demonstrate your self management skills in a less structured situation.” (pp 14-15) [12] The applicant made another application for resettlement leave on 1 June 2009. Again, the parole board assessment panel recommended the application be refused, in summary for the following reasons: “Previously breached a probation order by reoffending; committing the offence of murder. Transferred to low custody on 30 April 2009. Escalation in offending behaviour [which is a reference to the escalation from the 1992 offence of wounding to the 1993 offence of murder]. -- 6 of 40 -- 7 Has not yet progressed to working outside the main fence-line at Darling Downs Correctional Centre.” (p 32) [13] No additional incidents or breaches are referred to in the panel’s report, save for a medical emergency concerning the applicant (p 27). The report refers to a report from a psychologist, Ms Donovan, dated 2 July 2009, which recommends that the applicant “progress to employment outside of the centre’s fence to allow him to demonstrate a high level of trustworthiness in the community as part of the Board’s previous recommendations” (p 22). The panel recommended that the applicant spend a further period in low custody, working on the dairy for a period of three months, then progressing to Community Service Leaves of Absence (which he could apply for after being in low custody for 6 months). The panel also recommended a further assessment by a psychiatrist or psychologist (p 18). The panel report also referred to the sentencing remarks from February 1994 (p 18), which are discussed further below. [14] A letter from the Board to the applicant, dated 26 August 2009, set out the reasons the Board was likely to refuse his application again, namely: (a) that he was serving a term of life imprisonment for murder; (b) he had prior convictions for unlawful wounding and dangerous driving, for which he had the benefit of community based orders (1992) which were breached by committing the offence of murder (1993), which also represented an escalation in his offending; (c) the applicant’s self-reported substance abuse issues at the time of his offending (1992 and 1993), although noting he had remained abstinent from illicit substance use during his incarceration; (d) the Board had not had sufficient opportunity to assess his progress and his ability to self manage in the less structured situation at the Darling Downs Correctional Centre (p 35). [15] The Board recommended the applicant apply to participate in the Community Service Leave of Absence Program “as a first step of demonstrating consistent behaviour over time in the community under close supervision”, and said that “[t]he Board would then consider that a Resettlement Leave Program could be appropriate in that it would assist you to further re-integrate” (p 35). [16] The applicant made his first application for parole on 21 May 2010. In its report dated 28 June 2010 the parole board assessment panel recommended that his application be granted, in summary, referring to the following (p 52): “Relapse Prevention Plan is comprehensive and realistic. Consistent display of positive work ethic and behaviour during incarceration. -- 7 of 40 -- 8 Worked at the centre’s dairy (DDCC) without incident since 22 September 2009. Active participant on the Pups in Prison program since 13 October 2009 which includes Officer escorted LOAs to locations within Toowoomba. There are no incidents recorded against offender Calanca with him being the perpetrator. Offender Calanca has no breaches recorded against him during this episode. He has completed all recommended intervention programs including the Transitions program, in addition to various educational and vocational courses.” [17] The applicant’s employment at the dairy and with the pups in prison program is referred to further in section 5.3 of the panel’s report (at pp 45-46), as follows: “5.3 Leaves of Absence passes Offender Calanca was approved to work at the centre’s dairy on the 22 September 2009 and has undergone Leaves of Absence passes since this time 7 days a week between the hours of 05:30am – 6.00pm. On 2 June 2010, offender Calanca was approved by the Deputy Commission and OPRC Delegate, Marlene Morrison, for a once off Leave of Absence pass to attend the launch of the Toowoomba Murri Court to which he donated two of his own Aboriginal paintings to the Court. Offender Calanca has completed all Leaves of Absence passes to date without Incident. Pups in Prison Program Officer Calanca was initially approved to participate in the Pups in Prison Program as a dog handler on 13 October 2009 which was further verified by the Deputy Commissioner and OPRC Delegate, Marlene Morison on 30 March 2010. He is approved to attend Officer escorted leaves with full participation in the program. Since 13 October 2009 he has completed supervised Leaves of Absence passes for this program. This program involves offender Calanca attending Norman Park in Toowoomba on a weekly basis on Tuesday evenings for the purpose of attending dog training and handling. He also attends Kmart Plaza in Toowoomba for the purpose of public socialisation for the pups and has also walked the pup outside the main fence line of the centre, but still -- 8 of 40 -- 9 on prison property, for one hour at a time for the purpose of exercise for the pup.” [18] The report notes that the applicant’s application to participate in the Community Service Leave of Absence program (from late 2009) was refused, but he was permitted to reapply in December 2010 (p 45). As will appear below, he was later permitted to participate in the program. [19] The panel recommended a number of conditions, should the Board act on its recommendation and grant the applicant parole (p 38), including: (a) a curfew for the first 6 months of the order; (b) a prohibition on consumption of non-prescription drugs, and urinalysis testing; (c) submit to psychological assistance, as directed; (d) report any relationship of any form with any female; (e) have no contact with the family of the victim of his offence; and (f) “that the offender, in the community’s interest, have supervision and guidance to assist his reintegration to society”. [20] Despite the panel’s report, the Board wrote to the applicant on 11 November 2010, effectively indicating it was proposing to refuse his application for parole. The Board noted the positive factors in his favour (consistently with, and including the panel’s recommendation), but identified factors indicating he posed an unacceptable risk to the community by reference to the sentencing remarks from 1994, a letter from the Director of Public Prosecutions also from 1994 (which emphasised the similarity in the offending in 1992 and 1993, both involving violent attacks on males close to females who had recently rejected the applicant), his prior offences from 1992 and a report from Dr Kar, a psychiatrist (pp 54-56). It appears the applicant provided further material to the Board, as he was invited to do, including a report from another psychiatrist, Dr Coyle. The Board subsequently, on 21 April 2011, refused the application (p 58). [21] The applicant’s next application for parole was considered in December 2011. The Board communicated, in a letter dated 20 January 2012, reasons for a preliminary view that it would refuse the application again (pp 59-63). Once again, the basis for that view was said to include the sentencing remarks, the letter from the DPP and his criminal history. On this occasion the board also had a further report from a psychiatrist, Dr De Leacy. That became a final refusal on 29 February 2012 (p 64). [22] The applicant made another application for parole on 10 August 2012 (p 73). The report prepared by the assessment panel, dated 3 September 2012, recommended the application -- 9 of 40 -- 10 be approved (p 66). In relation to employment and community access, the report states (pp 69-70): “Employment After transferring to Darling Downs Correctional Centre from Borallon Correctional Centre on 30 April 2009, prisoner Calanca was approved to work at the centre’s dairy. On 23 November 2011 prisoner Calanca was approved to participate in community service leaves of absence. The prisoner participated in numerous leaves of absence to the approved Landcare Community Service Project without incident. The landcare work report dated 28 December 2011 states ‘Damon is pleasant in his demeanour and he has shown that he is keen and appreciates the opportunity given to him. He is punctual, presents well in his appearance and is an asset to the work crew.’ Community Access He was approved for the Pups in Prison Program as a dog handler on the 13 October 2009 by the General Manager and also the Delegate on the 30 March 2010. This program involved the prisoner attending Norman Park in Toowoomba on a weekly basis on Tuesday evenings for the purpose of attending dog training and handling. He also attended Kmart Plaza in Toowoomba for the purpose of public socialisation for the pups and has also walked the pup outside the main fence line of the centre, but still on prison property, for an hour at a time for the purpose of exercise for the pup. On 21 February 2012 the prisoner was approved to commence work at the Toowoomba Down Steam project from 16 April 2012. The prisoner has participated in leaves of absence to this project regularly since commencing on 16 April 2012 without incident. Behaviour The prisoner’s behaviour whilst incarcerated at Darling Downs Correctional Centre is reported to be of an appropriate standard. He is described as polite, compliant with a good attitude and mixes well with both staff and other prisoners. Prisoner Calanca has not incurred any breaches of discipline or involved himself in any negative incidents during the current custodial episode.” -- 10 of 40 -- 11 [23] Despite that recommendation, the application was again refused, in March 2013 (pp 74- 77, 78-79, 80-81).8 [24] The applicant made a further application for parole on 5 February 2014. The parole board assessment panel report, dated 10 April 2014, gives a positive recommendation, subject to the caveat that they have not seen the most recent psychiatric / psychological assessments (p 82). This report records that the applicant was transferred to Palen Creek Correctional Centre in September 2012, due to the closure of the Darling Downs Correctional Centre (p 87). In relation to employment and community access the report states (p 87): “Employment Prisoner Calanca has maintained consistent employment during his incarceration as a store worker, farm hand, pups in prison carer, cook and education tutor. He is currently employed as a hobbies clerk, at Palen Creek Correctional Centre, working 5 days a week. Prisoner Calanca has been employed in the positions since 15 August 2013. Case notes indicate that prisoner Calanca requires minimal supervision and is self-motivated. Community Access Prisoner Calanca was approved to participate in the Community Service Leave of Absence on 27 August 2013. To date he has successfully completed numerous Community Service Leaves of Absence. Prisoner Calanca has not been approved to participate in the Work Camp program. Prisoner Calanca was originally approved to participate in Leaves of Absence around the Darling Downs Correctional Centre farm in September 2009 … [details of earlier participation summarised].” [25] The report notes the applicant’s continuing “positive institutional behaviour” and that he has been pro-active in supporting a number of charities by donating his time and paintings, which are auctioned to raise money (p 87). The panel outlined a number of suggested conditions should parole be granted (pp 83-84). [26] The report summarises a number of positives in favour of the application for parole. There are four negatives: in addition to the serious and violent nature of his offences, and that the murder was in breach of a probation order (previously identified), additional negatives are said to be the extensive period of his incarceration and that parole has been refused a number of times (p 83). 8 An application for judicial review of this decision was refused: Calanca v Queensland Parole Board [2013] QSC 294. -- 11 of 40 -- 12 [27] The Board refused this application on 22 May 2015 (pp 90-98 and 100).9 The Board had regard to reports from a psychiatrist, Dr Sundin, and a psychologist, Dr Palk. [28] The applicant was transferred from Palen Creek Correctional Centre back to the Brisbane Correctional Centre on 16 April 2014. As recorded in a parole board assessment panel report in relation to the applicant’s next application for parole this was: “In response to the Queensland Corrective Services Commissioner requesting a review of the placement of all life sentenced prisoners and/or prisoners convicted of murder that were then currently incarcerated in low security correctional centres. From 23/06/2014, prisoners who have been convicted of murder and/or sentenced to life imprisonment are not eligible for placement in low custody.” (p 243) [29] Other material explains the reason for this change as being a policy change which followed another life sentence prisoner escaping. It had nothing to do with any behaviour on the part of the applicant. [30] The next application for parole was made on 6 February 2017 (pp 104-230).10 This is the application the subject of the decision under review in the present proceeding. The application includes further material, relevant to the applicant’s work in the community. The application is supported by a Mr Robert Ramsay, who has offered the applicant a place to live if granted parole, which has been assessed by the Board as suitable. He refers to meeting the applicant when he was doing community service work at the Downs Steam Train Museum, and says he has known the applicant for five years. Mr Ramsay refers to supporting the applicant, together with the applicant’s parents and his daughter, and says that “we will all give pertinent information if needed about Damon to his parole officer” (p 172, also pp 170-169). Mr Ramsay describes how the applicant painted the interior of one of the train carriages (p 171) with a Dreamtime Journey story (p 138). Mr Ramsay refers to the applicant having been offered a position at the museum as the resident artist, once he is released (p 170, also p 139). [31] In addition to a number of other letters of support, the application includes a letter of support from two people who also met the applicant in the context of his work painting the railway carriage. They refer to this project taking five months, during which they met him on a daily basis during the week (p 139). They also say that whilst the applicant was painting the carriage the applicant “met with a number of the public and many members of our volunteer workforce and his behaviour was always respectful and we 9 The applicant sought judicial review of this decision, ultimately on the sole ground that it was made outside the time specified in s 193(3) of the Corrective Services Act 2006 (being made some 471 days after the application was received). In Calanca v Queensland Parole Board [2016] QSC 3; [2017] 1 Qd R 1, Burns J found that although the Board had failed to follow the procedures required by s 193 of the Act, that provision did not deprive the Board of jurisdiction to continue to determine the application (outside the time prescribed). Accordingly, as the decision had eventually been made, although the ground of review was made out, there was no utility in any declaratory order being made (see at [29]-[34] and [51]). 10 Also at exhibit 1 to Mr Calanca’s affidavit. -- 12 of 40 -- 13 never had any cause for concern”. His application was also supported by a letter from a Toowoomba Regional Council councillor, who is the chairperson of the Downs Steam tourist railway and museum, who likewise commends the painting he did on the railway carriage, which took 19 weeks (p 138). [32] On this occasion, unlike the earlier ones, the parole board assessment panel report recommended the application be refused (pp 236-246). The report includes references to the applicant’s employment and community access, in similar terms to the earlier report (p 242). The report concludes that “[t]o adequately assess the prisoner’s risk to the community, it is recommended that a professional mental health assessment be completed to support the parole board’s ability to make an informed decision regarding the prisoner’s suitability for release to a parole order” and notes also that a “professional assessment may be able to determine if the prisoner can be managed under parole conditions within the community along with supervision requirements that will promote reintegration and address community safety concerns” (pp 236-237). Reports from psychiatrists and psychologists [33] A number of assessments have been undertaken by, and reports obtained from, psychiatrists and psychologists, in the course of considering the applicant’s applications for parole. A report was obtained from Dr Kar, psychiatrist, dated 16 August 2010. That was relied upon in the making the Board’s decision of April 2011, referred to in paragraph [20] above. Dr Kar’s opinion was very negative about the risk posed by the applicant. As the material reveals, the applicant obtained a competing report from another psychiatrist, Dr Coyle, dated 7 January 2011, which substantially disagreed with Dr Kar, and “strongly endorse[d]” the application for parole (pp 282-346). Dr Kar responded by a further report of 14 March 2011 (pp 264-281). Dr De Leacy, who provided a report to the Board on 17 October 2011, described the reports of Dr Kar and Dr Coyle as being “in stark contrast to each other”, and said it is his opinion that the “reality of the situation lies somewhere in between” (p 252). I note that the Board, in its most recent decision (under review) does not appear to place any particular reliance on Dr Kar’s opinion, although his reports are included in the list of material considered. [34] The report of Dr De Leacy, psychiatrist, dated 17 October 2011 (pp 249-262): (a) refers to the applicant’s history of substance use, prior to being in prison, as “quite significant”, starting to use marijuana at 14, becoming a heavy user by 17 or 18 continuing until he committed the murder at age 25 (p 258); (b) notes that both offences were related to the use of marijuana, which would have lowered his threshold for his actions by removing inhibition; but Dr De Leacy’s opinion is that the primary motive was revenge motivated rage (p 256); (c) states that he would appear to have satisfied the criteria of having a narcissistic personality and antisocial personality traits in the past; but Dr De Leacy considers -- 13 of 40 -- 14 there has been some change to this over the (then) 19 years of imprisonment (pp 256 and 251); (d) states that he will need to be monitored if released, and subjected to random urine testing; he must remain totally abstinent from illicit substances; he would need ongoing counselling; and would need to be linked with ATODs or something similar, to avoid relapse onto marijuana (p 255); (e) notes that everything on record suggests the applicant is an exemplary prisoner, with an unblemished record (p 254); (f) notes that throughout his imprisonment he has completed virtually all appropriate programs; he has become quite adept at Aboriginal art; he has acquired many skills; and worked in various jobs in the prison system, including trusted jobs; Dr De Leacy refers to the applicant’s involvement in programs (as discussed above) that took him outside the prison (pp 253-254); (g) states that it was difficult to know with certainty how reliable the applicant was in giving him information, and said he formed the impression the applicant told him a “significantly sanitized version of events” but said “[w]hat can be discerned with accuracy, however, is his prison record, and that he has progressed through the prison system without incident. He has achieved obtaining a university degree, and this has obviously rehabilitated him to some extent” (p 253); (h) says that his risk of future offending would depend largely on him being abstinent from marijuana; all the previous crimes had been committed under the influence of marijuana; “[i]t is therefore likely that if he were not exposed to marijuana, he would not be at significant risk of offending” (p 252); (i) also says that “[t]he other suggestion has been, however, that he suffers from a narcissistic personality, and the acts that he has committed, have been motivated out of jealousy or narcissistic rage in a state of revenge against males who were close to female[s] who rejected him. If this is the case, he could still represent a risk if he is thwarted in some way in the future. It is difficult to know exactly what his personality structure currently is, but it is reasonable to assume that he would have mellowed to a degree over 19 years, and particularly that he has undergone so much rehabilitation. With the maturity of years, he would be far less likely to be impulsive, and far less likely to act the way he previously did… It is quite clear that his obtaining a degree would have had a significant impact on his self-esteem and helped to promote a more healthy self-concept and better understanding of interpersonal interactions” (p 252); (j) although Dr De Leacy said he found it “somewhat daunting” to make a final recommendation about suitability for parole in a case like this, given the seriousness of the index offence, he concluded that: -- 14 of 40 -- 15 “Overall, I consider that the prisoner could be a candidate for parole, provided adequate safety guards are put in place. He committed one of the most callous acts but in terms of rehabilitation, he has satisfied all criteria. He could scarcely be better prepared for parole. Despite this, there is the doubt of the remote chance of reoffending and therefore he would need to be monitored closely for any changes in his attitude, and any signs of deterioration in his personality, and certainly should be monitored in relation to substance use with the use of urine tests. The other major risk is in relationships. Both of his offences were against males close to females who were seen to reject him. As indicated these were instances of narcissistic injury but were limited to this particular setting of relationship failure and this is the chief area of risk… [suggested conditions for monitoring any relationships outlined]. In short, I consider that the prisoner has had a history of callous offending but is well rehabilitated and may have a low level of potential for reoffending but this would be minimised with abstinence from illicit drugs and adherence to the release plan. I consider he would be a manageable risk for release into the community, providing the Board is satisfied the stringent precautions outlined can be put in place. He will need intensive monitoring in the early years but some monitoring will be necessary for his whole life, or until such time that he might become infirmed and represent no risk to any other individual.” (pp 249-250) [35] In July 2014 the Board obtained a report from another psychiatrist, Dr Sundin (pp 347- 373). Dr Sundin: (a) said that the applicant could discuss empathy in an intellectual fashion, and it was evident he continues to struggle to identify emotions in others and to convey a sense of others’ humanity; she was “left with the impression of a person with a narcissistic personality construct” (p 359); (b) considers the most likely diagnosis for the applicant is one of “Mixed Personality Disorder – antisocial/narcissistic personality traits”; she refers also to his history of cannabis and amphetamine abuse, in sustained remission whilst in prison (p 355);11 (c) agrees with Dr De Leacy that the applicant is now presenting a sanitised version of his offences (p 354); 11 I note here that Dr Sundin refers to a dirty urine test in 2004 (also at p 358) – but other material, notably from the records of the parole board assessment panel, makes no reference to this, in so far as the applicant is concerned; rather the incident from 2004 involving drugs was about a visitor to Mr Calanca testing positive to the presence of cocaine on the ion testing. -- 15 of 40 -- 16 (d) also agrees with Dr De Leacy, and expressly disagrees with Dr Kar, that drug abuse would have played a part in the applicant’s offending (pp 353-354); (e) expresses the opinion, based upon her application of various assessment tools, that the applicant’s risk of future violent recidivism is moderate to low, and can be further modified to low by the establishment of appropriate parole conditions (p 352); (f) says she “respectfully recommend[s] to the Board that Mr Calanca is a person who could be placed on parole subject to appropriate conditions”, including a curfew in the first 6-12 months; regular drug testing; a well supervised employment program; counselling; engagement with pro-social indigenous elders; and a requirement to make frank and open disclosures to his probation parole officer on a regular basis, particularly in relation to any close female relationships (pp 351-352). [36] The Board also obtained a report from Dr Palk, a psychologist, dated 7 March 2015 (pp 374-400). Dr Palk interviewed the applicant in February 2015, for the purposes of this report, and had earlier interviewed him in 2009 (p 400). Dr Palk: (a) records that the applicant accepted that his motive for killing the victim was revenge (p 397) (in some earlier reports, referred to in the Board’s letters, it was suggested he had not accepted this); (b) as to the role of drugs in his offending, expresses the opinion that the applicant’s substance abuse (marijuana and amphetamines) most likely exacerbated a pre- existing disposition towards callousness and lack of empathy (p 377); (c) refers to the applicant being a model prisoner, having gained insight into his personality limitations and having developed an adequate relapse prevention plan to prevent further occurrences of violence, but says: “However, it should be noted that Mr Calanca’s extreme violent disposition appears to have only surfaced in response to being rejected by girlfriends. Hence, Mr Calanca’s relapse prevention strategies remain untested. In the past he was extremely revengeful and plan-full and he did not hesitate to use violence if he felt his relationships were threatened. There is no doubt that he has matured over the last 22 years and he appears confident that he can deal with difficult relationship issues. He certainly has more skills to handle issues of rejection now than he did some 22 years ago at the age of 25 years, but whether he will use these skills in the future remains to be seen.” (pp 376-377) (d) refers to the attenuation of features of his personality that contributed to the past offending (substance use disorder, explosive disorder, paranoia, narcissism and antisocial behaviour) through the onset of age, maturity and positive response to -- 16 of 40 -- 17 treatment and education programs, but says “this attenuation could also be due to the controlled prison setting” (p 376); (e) expresses the opinion that the applicant’s potential risk for future violence is in the medium to low range, a risk which “could possibly be managed in the community and kept in the low range if the prisoner abstains from alcohol and illicit drugs, is monitored closely, maintains meaningful employment and a supportive social network”, as well as being monitored in relation to any close relationships (pp 375- 376). [37] When the Board met to consider the current application for parole on 7 April 2017, it decided to request a (further) risk assessment from a psychiatrist or psychologist (p 402). That assessment was carried out by Dr Michele Andrews, clinical psychologist and neuropsychologist, who prepared a report dated 28 July 2017 (pp 416-438). [38] Dr Andrews expresses the opinion, based on her administration of the various risk assessment instruments discussed in her report, that the applicant would be at a moderately low risk of future violent offending, with the majority of his risk factors being historic/static in nature (p 420). In terms of her “opinion on parole suitability”, Dr Andrews says: “Based upon the QCS parole report I understand that panel did not recommend parole and recommended a psychological assessment. Issues identified by the Parole Panel included the Prisoner refusing the suggestion that his offence was motivated by revenge, and he did not believe he had difficulties dealing with relationship breakdowns. This was contrary to information provided within the interview with the writer. The Prisoner acknowledged that he was angry at his girlfriend for leaving him at the time, that he wanted ‘revenge’ and his anger was transferred to the victim. Additionally, he was able to report that he was sensitive to rejection and was an ‘angry’ young male using amphetamines. Similar information is also present in his parole application (dated 2012). The QCS report also outlines that the Prisoner could discuss empathy ‘in an intellectual fashion’, yet the panel was concerned about the prisoner’s ability to identify and verbalise internal emotions when speaking of the offence. During the current interview the Prisoner was able to demonstrate a level of empathy, this was noted by his emotional response when discussing his offending, his ability to conceptualise the effect of his offences on the victim’s family, his family and the community. He identified that his offending was callous, and stated that through participating in The Sycamore Tree Project he has been able to better understand and empathise with the victim and his family as a result of this project. He also acknowledged the right of the victim’s family to challenge his applications for parole, and stated given his crime he understood why they have challenged the applications. Additionally -- 17 of 40 -- 18 it should be considered that it is not uncommon for individuals who have committed serious violent offences and who have served extensive sentences to distance themselves from their offending behaviour in an effort to move away from that identity, or as a means of a protective mechanism as a way of coping with the severity of their actions (Hussey, 2012). Whilst the Prisoner does not demonstrate high levels of victim empathy he demonstrates the capacity for empathy and reflection across many areas of his life, and this is an area which can be further built upon in therapy. Prisoner Calanca has maintained a low security classification since 2008 and was accommodated in the low security facility between April 2009-2014, and was returned to secure custody for legislative reasons. He has participated in activities in the community without incident and has maintained acceptable behaviour across his custodial period. He has no breaches, violent behaviour or substance abuse and has maintained employment whilst in custody. His 2012 application provides an adequate relapse prevention plan and documents letters of support from family and external providers. He has approved accommodation in the community, and offer of volunteer work which may result in paid work. He acknowledges that he possesses problematic personality traits which contributed to his offending and is willing to seek assistance for these difficulties. I acknowledge that the Prisoner has had two significant violent offences and that his most severe offence of murder was premeditated. The Prisoner has a number of risk factors as noted above, however, he also has a number of protective factors which may buffer against violent reoffending. In my opinion Prisoner Calanca appears to be a reasonable candidate for parole under strict conditions.” (pp 418-419) [39] Dr Andrews then outlines those conditions, which deal with treatment and rehabilitation, by engaging with a psychologist; management recommendations, in relation to monitoring of any intimate relationships, curfew and consideration of electronic monitoring at least for an initial time period; mandated attendance at a psychologist; and frequent and random drug and alcohol testing (pp 417-418). [40] In August 2017 the Board sent the reports of Dr Palk, Dr Sundin, Dr De Leacy, Dr Kar and Professor Coyle to Dr Andrews, which it seems had not been done before (p 439). [41] Dr Andrews considered those reports, and provided a brief addendum, on 4 September 2017 (pp 443-444), in which Dr Andrews: (a) agrees that the applicant most likely presents a more sanitised version of events currently, and also notes he has now been subject to multiple parole assessments and is highly familiar with the process and instruments used; -- 18 of 40 -- 19 (b) refers to the significant divergence of opinion between Dr Coyle and Dr Kar in relation to diagnoses and contributing factors to the offending. However, she says “it appears on balance that the majority of those who have assessed Prisoner Calanca (including the writer) accept that the Prisoner has narcissistic and antisocial personality traits, and past difficulties with substance abuse” (p 444); (c) also observes that the reports, other than Dr Kar’s, all make similar recommendations which are congruent with her report – namely, that the applicant may be a viable candidate for parole under certain conditions including close monitoring, curfew, explicit disclosure regarding intimate relationships, abstinence from drugs and alcohol, engagement in employment or structured activities, assistance with transition to the community and attendance at counselling (p 443); and (d) considers that her rating of the applicant as posing a “moderately low” risk, meaning he sits between the moderate and low range of risk of reoffending, is in line with the other assessors’ “moderate to low” rate (p 443). [42] By letter dated 24 October 2017, the Board communicated to the applicant its preliminary view that his application should be declined (pp 451-460). The applicant provided detailed submissions in response (pp 461-471). Reasons for refusing the application [43] By letter dated 2 February 2018, the Board communicated to the applicant its final decision, seemingly made at a meeting on 16 January 2018, to refuse his application. [44] In its letter of 2 February 2018, among other things, the Board noted that the applicant has “demonstrated good custodial behaviour, that you have completed a number of intervention programs, and that you have suitable accommodation in the community for the purposes of your parole application” (p 2 of the letter). At p 3 of the letter, the Board says: “As indicated in the Board’s previous correspondence, the Board noted in your favour that you have completed numerous intervention programs during your time in custody and that you have responded positively to those programs. However, the Board is of the view that your rehabilitation and treatment remains untested outside of the custodial environment. As such the Board is not swayed that your relapse prevention plan is realistic or achievable, particularly the submission that you intend to remain single for the remainder of your life and that you are ‘very serious about abstaining from personal relationships’. Having considered your application as a whole, the Board is not satisfied that your completion of rehabilitation programs alone sufficiently mitigates the risk you pose to the community. Further, the Board -- 19 of 40 -- 20 remains concerned that the stringent precautions outlined by Dr de Leacy may not be able to [be] put into place.”12 [45] Referring to the Ministerial Guidelines which apply to the making of decisions by the Board, in particular the need to consider the risk posed by the applicant to the community if he were released on parole, the Board noted the clinical assessments that he poses a “low to moderate risk of reoffending”. It referred to a dictionary definition of “moderate”, as “not severe, fairly large”, to give further meaning to this. It was said the “Board maintains the view that you are not a suitable candidate for parole at this time as the risk you pose to the community is not at an acceptable level” (p 4 of the letter). [46] On the matter of parole conditions, the letter from the Board said (p 5): “The Board also considered your submission that you would adhere to a potential condition of your parole order preventing you from entering into intimate relationships. The Board also notes your submission whereby you state that you would ‘discuss issues that may arise in my life’ with a Board approved psychiatrist or psychologist that you would see regularly. The Board is not convinced by your submission. Specifically having regard to the fact that you were subject to a community based order at the time of committing the offence of murder. The Board draws your attention to the Board’s concerns as outlined on page 9 of its letter to you dated 24 October 2017.13 The Board is entitled to consider your level of credibility when assessing the level of risk you currently present to the community. It is in that regard that the Board considered your self-reporting. The Board is not satisfied that relying on your self-reporting would be an effective means of monitoring your behaviour on parole to ensure the safety of the community, that circumstance is relevant to the assessment of your risk. The Board maintains the concerns raised in the Board’s correspondence to you, specifically, that the Board is not satisfied that this type of condition could be effectively monitored on parole to ensure the safety of the community. The Board has considered all available options, including those you have proposed in your submissions and those recommended in the reports of Dr Andrews and Dr Sundin. The Board is not satisfied that any conditions of parole would render the risk that you pose to the community to be an acceptable level, at this time having regard to the Ministerial Guidelines. 12 Underlining added. 13 See Ms Wickramasinghe’s affidavit, at p 452 of the exhibits: page 9 of this letter relevantly includes the statement that “[t]he Board notes that when you planned and committed the murder, you were on a probation order and chose not to discuss your feelings of rejection with your then Probation Officer. In these circumstances the Board is not satisfied that relying on your self-reporting would be an effective means of monitoring your behaviour on parole to ensure the safety of the community”. -- 20 of 40 -- 21 Notwithstanding the positive aspects of your application including but not limited to your suitable accommodation and positive custodial behaviour, the Board is mindful that its primary concern must be community safety. When viewed in the context of your application as a whole the Board determined that the concerns identified in its letter to you dated 8 November 2017 are not sufficiently alleviated at this time.”14 [47] At the end of the letter of 2 February, the Board said (p 6): “The Board considered if it should indicate whether there are any improvements or activities which would be likely to reduce the risk you currently present to the community. The Board has decided that it would not be appropriate to give such an indication.” [48] Following a request by the applicant, a 22 page statement of reasons was provided, dated 4 April 2018. This includes, at pp 7-8 of the statement of reasons, the findings of fact on which the decision was based, including (at point 11 on p 8): “You have maintained consistent employment during your time in custody and have been approved for, and successfully completed numerous community service leave of absences.” [49] The statement of the reasons for making the decision includes the following: 1. Reference to the sentencing remarks of Dowsett J, who sentenced the applicant on 11 February 1994, which included: “Damon Frank Calanca, this is the most wicked and senseless act, depriving a young man of his life, and his family of the joy of seeing him grow to adulthood reflecting their love and guidance. … 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 lawful 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 any consideration of parole should be very carefully considered indeed in your case.” 14 Underlining added. -- 21 of 40 -- 22 (It is to be noted that, at the time of the sentence, under the law then in force, the applicant would become eligible for parole after serving 13 years. He has now served double that time, 26 years.) 2. Reference to the premeditated nature of the applicant’s offending. 3. Reference to the psychiatrists’ and psychologists’ reports, including Dr Andrews’ most recent report, noting Dr Andrews’ opinion that the applicant is at moderate to low risk of future violent offending (p 13) and stating (at p 14) that “[t]he Board determined having regard to the various risk assessment reports that the risk you currently pose to the community is not an acceptable level at this time”. 4. Referring, in particular, to the report of Dr Palk (from 7 March 2015) in relation to the applicant’s rehabilitation, the conclusion (at p 15) that: “Notwithstanding the findings of Dr Palk, the Board considers that your rehabilitation and treatment during your time in custody remains untested outside of the structured environment of a custodial centre. Having regard to this, together with the other factors the Board is entitled to take into account, including your unrealistic relapse prevention plan and the issues raised in the various risk assessment reports the Board is not satisfied that your completion of these intervention programs sufficiently mitigates the risk that you currently pose to the community.” 5. Reference to the parole panel recommendation, contained in the report of 27 March 2017, including the observations by the parole panel that (p 17): “Although you have completed a number of rehabilitation programs, your violent disposition only appears to surface in response to being rejected by girlfriends in an unsupervised setting”; and “The effects of your criminogenic interventions within a community setting are as yet untested”. 6. In so far as parole conditions are concerned: (a) the statement (at pp 18-19) that “[t]he Board considered your application and your submissions as a whole, the Board is of the view that your rehabilitation and treatment remains untested outside of the structured environment of a custodial centre. Further the Board is not swayed that your relapse prevention plan is realistic or achievable, particularly the submission that you intend to remain single for the remainder of your life and that you are ‘very serious about abstaining from personal relationships’.” The Board reiterated (at p 21) that “a condition preventing you from entering into intimate -- 22 of 40 -- 23 relationships would be unrealistic and that it would also be unmanageable”; and (b) the Board also reiterated the concern previously expressed about the applicant’s self-reporting, saying that because he was subject of a community based order at the time of the murder, and at that time did not disclose any relationship issues with his probation officer, the Board was “not satisfied that relying on your self-reporting would be an effective means of monitoring your behaviour on parole to ensure the safety of the community” (pp 21-22). [50] The statement of reasons concludes as follows (p 22): “53. Notwithstanding the above, the Board considered whether any conditions of parole could be imposed that would effectively mitigate the level of risk you may pose to the community, if you were released on a parole order at this time. The Board also considered the standard parole conditions that may be imposed by way of a parole order. The Board is of the view that the level of risk you pose to the community at this time, is such that it cannot be mitigated by way of standard parole conditions imposed by way of parole order. The Board is not satisfied that a sufficient level of supervision can be provided to you on a parole order. In forming this view, the Board was also conscious of the level of resources reasonably available to monitor such parole conditions and the level of monitoring that would be required in your case. 54. Having considered your application as a whole, the Board is not satisfied that your completion of rehabilitation programs and your appropriate custodial behaviour are sufficient to mitigate the risk you pose to the community to an appropriate level. Further, the Board remains concerned that the stringent precautions outlined by Dr de Leacy may not be feasible in that they heavily rely upon your self- reporting and disclosure.” Legislative context in which the decision was made [51] The Parole Board is established under s 216 of the Corrective Services Act. One of its functions is to decide applications for parole orders, other than court ordered parole orders (s 217(a)). A prisoner can apply for a parole order once they have reached their parole eligibility date in relation to their period of imprisonment (s 180(1)). [52] The procedure for hearing and deciding an application for parole is dealt with in chapter 5, part 1, division 2 of the Act. Under s 193(1), after receiving a prisoner’s application for a parole order, the Parole Board must decide to grant the application or to refuse to grant the application. There is power to defer making a decision until the Board obtains any additional information it considers necessary to do so (s 193(2)). Under s 193(3)(a), -- 23 of 40 -- 24 where the Board has exercised that power, and deferred the decision, the Board must decide the application within 150 days after receiving the application. That time limit was exceeded in this case, as it was in relation to an earlier application.15 [53] The power of the Board to release a prisoner on parole is set out in s 194(1), which relevantly provides that the parole board may, by a parole order, release an eligible prisoner on parole (s 194(1)(b)). An eligible prisoner is, essentially, one who has reached their parole eligibility date (s 194(5)). [54] The Board’s discretionary power to grant or refuse an application for parole is broad and unfettered, in the sense that the Corrective Services Act does not specify the criteria for making a decision under s 193. However, the scope of the Board’s discretionary power to grant or refuse an application for parole is to be exercised having regard to the subject matter, scope and purpose of the Corrective Services Act.16 The purpose of the Act is “community safety and crime prevention through the humane containment, supervision and rehabilitation of offenders” (s 3(1)). [55] I adopt the following from the reasons of Margaret Wilson J in Calanca v Queensland Parole Board [2013] QSC 294: “[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. [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 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 15 See Calanca v Queensland Parole Board [2016] QSC 3; [2017] 1 Qd R 1 (in relation to the Board’s decision of 22 May 2015, which was made 471 days after it was received). 16 See Wigginton v Queensland Parole Board [2010] QSC 59 at [26] and Queensland Parole Board v Pangilinan [2015] QCA 35 at [19]. -- 24 of 40 -- 25 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.”17 [56] Section 242E of the Act provides that the Minister “may make guidelines about policies to help the parole board in performing its functions”. The relevant Ministerial Guidelines that have been issued to the Board are dated 3 July 2017.18 Reflecting the purpose of the Act in s 3(1), clause 1.2 of the Guidelines states that “[w]hen considering whether a prisoner should be granted a parole order, the highest priority for [the Board] should always be the safety of the community”. [57] The language used in the current s 242E19 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.20 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.21 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.22 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.23 17 References omitted. 18 See Ms Wickramasinghe’s affidavit, exhibit MW1. 19 Section 242E was inserted into the Act, as part of a replacement chapter 5, part 2, by the Corrective Services (Parole Board) and Other Legislation Amendment Act 2017 (Act No. 15 of 2017), s 12 (which commenced on 3 July 2017). 20 Cf Smoker v Pharmacy Restructuring Authority (1994) 53 FCR 287 at 289 per Wilcox J, at 290 per Burchett J and at 299 per Hill J, referring to Norbis v Norbis (1986) 161 CLR 513 at 520. See also Ripi v Parole Board Queensland [2018] QSC 205 at [43] per Davis J. 21 Cf Johnston v Central and Northern Queensland Regional Parole Board [2018] QSC 54 at [64], [67] and [71] per Davis J, in relation to the former s 227(1) of the Act (the predecessor of s 242E), which was worded slightly differently. 22 See Minister for Immigration, Local Government and Ethnic Affairs v Gray (1994) 50 FCR 189 at 206-207 and 208 per French and Drummond JJ; Plaintiff M64/2015 v Minister for Immigration and Border Protection (2015) 258 CLR 173 at [54] per French CJ, Bell, Keane and Gordon JJ and at [68] per Gageler J. 23 Ibid. -- 25 of 40 -- 26 [58] The Guidelines relevantly provide as follows: “SECTION 1 – GUIDING PRINCIPLES FOR PAROLE BOARD QUEENSLAND 1.1 Under section 242E of the Corrective Services Act 2006 (the Act) the Minister may make guidelines about policies to assist Parole Board Queensland 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 Parole Board Queensland should always be the safety of the community. 1.3 As noted by Mr Walter Sofronoff QC in the Queensland Parole System Review ‘the only purpose of parole is to reintegrate a prisoner into the community before the end of a prison sentence to decrease the chance that the prisoner will ever reoffend. The only rationale for parole is to keep the community safe from crime.’ With due regard to this, Parole Board Queensland 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 under supervision prior to the fulltime completion of their prison sentence. SECTION 2 – SUITABILITY 2.1 When deciding the level of risk that a prisoner may pose to the community, Parole Board Queensland should have regard to all relevant factors, including but not limited to, the following – a) the prisoner’s 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 (including any of the factors set out in section 5.1 of these guidelines); d) whether the prisoner has been convicted of a serious sexual offence or serious violent offence or any other offences listed in section 234(7) of the Act; -- 26 of 40 -- 27 e) the recommendation for parole, parole eligibility date, or any recommendation or comments of the sentencing court; f) the prisoner’s cooperation with authorities both in securing the conviction of others and preservation of good order within prison; g) any medical, psychological, behavioural or risk assessment report relevant to the prisoner’s application for parole; h) any submissions made to Parole Board Queensland by an eligible person registered on the Queensland Corrective Services (QCS) Victims Register; i) the prisoner’s compliance with any other previous grant of parole or leave of absence; j) whether the prisoner has access to supports or services that may reduce the risk the prisoner represents to the community; and k) recommended rehabilitation programs or interventions and the prisoner’s progress in addressing the recommendations. … SECTION 5 – PAROLE ORDERS Release to parole 5.1 When considering releasing a prisoner to parole, Parole Board Queensland should have regard to all relevant factors, including but not limited to the following – a) Length of time spent in custody during the current period of imprisonment; b) Length of time spent in a low security environment or residential accommodation; c) Any negative institutional behaviour such as assaults and altercations committed against correctional centre staff, and any other behaviour that may pose a risk to the security and good order of a correctional centre or community safety; d) intelligence information received from State and Commonwealth agencies; -- 27 of 40 -- 28 e) length of time spent undertaking a work order or performing community service; f) any conditions of the parole order intended to enhance supervision of the prisoner and compliance with the order; g) appropriate transitional, residential and release plans; and h) genuine efforts to undertake available rehabilitation opportunities. … 5.3 Parole Board Queensland should consider including an electronic monitoring condition in the parole order for any prisoner granted parole, pursuant to section 200(2) of the Act. That is, a condition requiring the prisoner to comply with a direction by a corrective services officer, including a curfew or monitoring condition, in accordance with section 200A of the Act. … 5.5 When Parole Board Queensland grants parole to a prisoner, particularly sex offenders, other serious violent offenders and prisoners serving a life sentence, careful consideration should be given to the imposition of a requirement that restricts prisoner access to websites, technology, application or tools that enable active and participatory publishing and interaction between the prisoner and individuals over the internet. This may include forums, blogs, wikis, social networking sites, and any other sites that allow prisoners to easily upload and share content. 5.6 When Parole Board Queensland grants parole to a prisoner, particularly sex offenders, other serious violent offenders and prisoners serving a life sentence, careful consideration should be given to the imposition of a requirement that restricts prisoner access to any personal introductory system whereby the prisoner can find and contact individuals over the internet (or any other means) to arrange a date, with the objective of developing a personal, romantic, or sexual relationship.”24 [59] Reflecting the passage quoted at [55] above, in McGrane v Queensland State Parole Board [2010] QSC 209 at [26] McMurdo J (as his Honour then was) said this, in relation to an earlier iteration of the Guidelines: 24 Underlining added. -- 28 of 40 -- 29 “The respondent [Board] formed the view that the applicant was an unacceptable risk to the community. The nature of that risk was the risk of his re-offending. The finding that the risk was ‘unacceptable’ was necessarily a value judgment for which there were several relevant considerations. One of them, but not the only one, was the need to protect the community. According to the Guidelines, this consideration was to be given ‘the highest priority’. But again according to those Guidelines, it was not to be the only consideration. Clearly, there was the consideration of the interests of the prisoner. But there was also to be considered the public interest in the fair operation of a regime for parole, because in general, a real rather than theoretical availability of parole is conducive to the rehabilitation of prisoners and to the orderly management of prisons. An express object of the CSA is for ‘community safety and crime prevent through humane containment, supervision and rehabilitation’: s 3(1). The public is protected by the rehabilitation of offenders as well as by their incarceration. Each of those considerations and perhaps others would be expected to affect the value judgment involved in assessing the risk to the community from a prisoner’s parole as acceptable or otherwise. And that judgment might be affected according to whether there was a real prospect that the prisoner’s circumstances could change with the result of lessening his risk of re- offending. It might also be affected according to whether the prisoner was able to influence those circumstances…”25 The grounds of review – relevant principles [60] The applicant, who did not have the benefit of legal representation, made it clear from the outset of the hearing that he appreciated this proceeding was not a merits review. Judicial review is confined to the legality of the decision in question. It is concerned with whether the decision was one which the decision-maker was authorised to make.26 [61] Where, as here, the decision-making power is discretionary, the observations of Gibbs J in Buck v Bavone (1976) 135 CLR 110 at 118-119 apply: 25 Underlining added. The applicant in that case (also serving a life sentence) was, similar to the applicant here, affected by a policy decision that offenders convicted of certain offences would no longer be eligible for transfer to a low security facility (at [8]). The Board’s refusal of his application for parole was upon the premise that with good behaviour he might proceed to a lower classification, and that he should apply himself to that position before being paroled (at [22]). The applicant’s contention was that, because of the policy, that was no more than a theoretical possibility, but in reality an impossibility, and his parole should not be delayed on that account. The court held that the Board had failed to consider that claim by the applicant. The Board’s reasoning was upon an essential premise, that there was a potential for the applicant to be re-classified to a low-security facility, and because that was challenged by the applicant, it was not open to the Board to assume its correctness and disregard, without considering the matter, the applicant’s contention (at [23] and [27]). The decision was set aside, and remitted for reconsideration (at [28]). 26 See Plaintiff M64/2015 v Minister for Immigration and Border Protection (2015) 258 CLR 173 at [23] per French CJ, Bell, Keane and Gordon JJ. -- 29 of 40 -- 30 “In all such cases the authority must act in good faith; it cannot act merely arbitrarily or capriciously. Moreover, a person affected will obtain relief from the courts if he can show that the authority has misdirected itself in law or that it has failed to consider matters that it was required to consider or has taken irrelevant matters into account. Even if none of these things can be established, the courts will interfere if the decision reached by the authority appears so unreasonable that no reasonable authority could properly have arrived at it. However, where the matter of which the authority is required to be satisfied is a matter of opinion or policy or taste it may be very difficult to show that it has erred in one of these ways, or that its decision could not reasonably have been reached.”27 [62] One of the main grounds of review relied upon by the applicant is the failure to take into account relevant considerations. This ground can only be made out if a decision-maker fails to take into account a consideration that he or she is bound to take into account in making that decision. What factors a decision-maker is bound to consider in making the decision is determined by construction of the statute conferring the discretion. Where, as here, the relevant factors are not expressly identified in the statute, they must be determined by implication from its subject matter, scope and purpose.28 To take something into account in this context is to give it “proper, genuine and realistic consideration”.29 Mere advertence to a matter required to be taken into consideration is not sufficient.30 In considering this ground of review care must be taken to avoid a “slide into impermissible merit review”.31 However, as the Full Court of the Federal Court said in Reece v Webber (2011) 192 FCR 254 at [70]: “Whatever reservation must be exercised when considering whether ‘proper, genuine and realistic’ consideration has been given to particular material, the importance of ensuring that proper consideration has been given to particular material is only heightened when it goes to a matter of central relevance and importance to the ultimate conclusions to be reached.”32 [63] The scope for judicial review of a finding of fact in a proceeding such as this is very narrow. In the oft-quoted words of Brennan J (as his Honour then was) in Waterford v The Commonwealth (1987) 163 CLR 54 at 77, “[t]here is no error of law simply in 27 See also Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611 at [130]-[137] per Gummow J. 28 Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 at 39-40; see also Australian Retailers Association v Reserve Bank of Australia (2005) 148 FCR 446 at [522]. 29 Bondelmonte v Bondelmonte (2016) 259 CLR 662 at [43], referring to Khan v Minister for Immigration and Ethnic Affairs (unreported, Federal Court of Australia, 11 December 1987) at 11 per Gummow J (reported in (1987) 14 ALD 291 at 292). 30 Zhang v Canterbury City Council (2001) 51 NSWLR 589 at [64]. 31 Swift v SAS Trustee Corporation [2010] NSWCA 182 at [45]; see also Zhang v Canterbury City Council (2001) 51 NSWLR 589 at [62]; Reece v Webber (2011) 192 FCR 254 at [68]-[69]; and Minister for Immigration and Citizenship v SZJSS (2010) 243 CLR 164 at [34]. 32 Underlining added. -- 30 of 40 -- 31 making a wrong finding of fact”. But a finding or inference of fact will be reviewable on the ground that there is no evidence to support it, or that it is perverse, in the sense that there is no probative evidence to support it.33 [64] Review on the grounds of legal unreasonableness was considered by the High Court in Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 and more recently in Minister for Immigration and Border Protection v SZVFW (2018) 357 ALR 408. As explained by Nettle and Gordon JJ in SZVFW (with whom Kiefel CJ agreed): “[78] The task of the court, where it has been alleged that a decision is legally unreasonable, is to ask whether the exercise of power by the decision- maker was beyond power because it was legally unreasonable.34 [79] That task requires the court to assess the quality of the administrative decision by reference to the statutory source of the power exercised in making the decision and, thus, assess whether the decision was lawful, having regard to the scope, purpose and objects of the statutory source of the power.35 [80] Parliament is taken to intend that a statutory power will be exercised reasonably by a decision-maker.36 The question with which the legal standard of reasonableness is concerned is whether, in relation to the particular decision in issue, the statutory power, properly construed, has been abused by the decision-maker or, put in different terms, the decision is beyond power.37 That question is critical to an understanding of the task for a court on review.”38 [65] Kiefel CJ said, at [10]-[12]: “[10] In the joint judgment in Li39 it was explained that a decision made in the exercise of a statutory power is unreasonable in a legal sense when it lacks an evident and intelligible justification. That may be so where a decision is one which no reasonable person could have arrived at,40 33 Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 359-360 per Mason CJ. See also Crime and Misconduct Commission v Swindells [2009] QSC 409 at [9]-[14] per Applegarth J and Thomas v Attorney- General [2017] QSC 308 at [51]-[53]. 34 Li at [30], [77]-[85], [114]-[124]. 35 Li at [67], [90], [109] citing Klein v Domus Pty Ltd (1963) 109 CLR 467 at 473; [1964] ALR 492 (Klein); see also at CLR 437-4. 36 Li at [26], [29], [63], [88]. 37 Li at [67]; see also at [90], [92], [105]. 38 Underlining added. 39 Li at [76]. 40 Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1947] 2 All ER 680; [1948] 1 KB 223 at 230 (Wednesbury). -- 31 of 40 -- 32 although an inference of unreasonableness is not to be drawn only where a decision appears to be irrational.41 … [11] Statements such as that made in the Wednesbury case,42 that a decision may be regarded as unreasonable if no reasonable person could have made it, may not provide the means by which a conclusion of unreasonableness may be arrived at in every case. But it serves to highlight the fact that the test for unreasonableness is necessarily stringent.43 And that is because the courts will not lightly interfere with the exercise of a statutory power involving an area of discretion. The question is where that area lies. [12] In Li44 reference was made to what had been said in Klein v Domus Pty Ltd45 regarding the need to look to the purpose of the statute conferring the discretionary power. Where it appears that the dominating actuating reason for the decision is outside the scope of that purpose, the discretion has not been exercised lawfully. But this is not to deny that within the sphere of the statutory purpose there is scope for a decision- maker to give effect to the power according to his or her view of the justice of the case, without interference by the courts.” [66] Within the bounds of legal reasonableness, a decision-maker has a genuinely free discretion.46 As Wigney J said in Minister for Immigration and Border Protection v Stretton (2016) 237 FCR 1 at [92]: “The critical point is that, in reviewing a decision on the ground of legal unreasonableness, the Court’s role is strictly supervisory. It is concerned with determining whether there has been a lawful exercise of power having regard, in particular, to the terms, scope and purpose of the statute conferring the power. In circumstances where reasonable minds might differ about the outcome of, or justification for, the exercise of power, or where the outcome falls within the range of legally and factually justifiable outcomes, the exercise of power is not legally unreasonable simply because the Court disagrees, even emphatically, with the outcome or justification. If there is an evident, transparent and intelligible justification for the decision … or if the decision is within the ‘area of decisional freedom’ of the decision- maker … it would be an error for the Court to overturn the decision 41 Li at [68]. 42 At KB 230. 43 Li at [108]. 44 At [67], [109]. 45 (1963) 109 CLR 467 at 473; [1964] ALR 492. 46 Li at [28], [66] and [105]. -- 32 of 40 -- 33 simply on the basis that it would have decided the matter differently…”47 [67] Against that background of the material before the Board, the legislative context in which the decision was made and the relevant legal principles, I turn to address the grounds of review (by reference to the topics, and grounds, identified in paragraph [5] above). Grounds of review Community work release [68] Having regard to the Board’s decision, and the statement of reasons, the applicant has established a failure by the Board to take into account – in the sense of giving proper, genuine and realistic consideration to – his (successful) participation in community based work release programs. [69] This is not mentioned at all in the letter of 2 February 2018 (communicating the Board’s decision). It is mentioned in one line on p 8 of the statement of reasons, where it is said: “You have maintained consistent employment during your time in custody and have been approved for, and successfully completed numerous community service leave of absences.”48 [70] The applicant’s participation in community based work release programs is clearly a relevant consideration the Board is required to take into account, and an important one. As informed by s 66 of the Corrective Services Act, and consistent with the purpose of the Act, such programs are, in part, a means of facilitating a prisoner’s rehabilitation by assisting the prisoner to reintegrate into the community. As already noted, the purpose of the Act is community safety and crime prevention through the humane containment, supervision and rehabilitation of offenders. The Guidelines, in paragraph 5.1, expressly refer to the “length of time spent undertaking a work order or performing community service” and “genuine efforts to undertake available rehabilitation opportunities”, as matters the Board should have regard to. [71] The Board articulates two principal factors in its decision to refuse the applicant’s application for parole: that his “rehabilitation and treatment remains untested outside the custodial environment” and that the Board was not satisfied that relying upon the applicant’s self-reporting (in relation to a condition monitoring his intimate relationships) would be an effective means of monitoring his behaviour. [72] As to the first factor, in my view, the Board has fallen into reviewable error. That finding of fact is perverse in the relevant sense. To the extent the applicant is (or was, prior to 47 References omitted; see also per Allsop CJ at [12]. See also Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611 at [137] per Gummow J. 48 Underlining added. -- 33 of 40 -- 34 the policy change) able to, the material before the Board indicates that he did participate substantially in community based work release, which saw him leave the custodial environment. To that extent at least, his rehabilitation has been tested outside the custodial environment. Given the focus of the Board’s decision, the Board was required to take the circumstances in which this occurred properly into account. [73] Also relevant in this regard is the fact that, due to circumstances outside the control of the applicant (as discussed in paragraphs [28]-[29] above), he has been unable to participate in such programs since 2014. [74] As to the second factor, as was said in Calanca [2013] QSC 294 at [33], 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. In that regard, again, the substance of the applicant’s participation in community based work release was of particular relevance to the matter of concern to the Board. [75] Mere advertence by the Board, in its statement of reasons, to the applicant successfully completing such programs was not sufficient. It is a matter of central relevance and importance to the ultimate conclusion reached by the Board, and therefore proper consideration was required to be given to it. As this did not occur, the decision involved an improper exercise of power and ought to be set aside. [76] The applicant also submits the Board failed to take into account his low security classification for the past 10 years, and the absence of any breaches whilst in custody. In the Board’s letter of 2 February 2018 it makes passing reference to the applicant’s “good custodial behaviour” (at p 2 of the letter), but no reference at all to his low security classification since 2009. In the statement of reasons, the Board notes that “you currently have a low security classification” (at p 8 of the reasons), and makes reference to psychological assessments in which reference is made, for example, to the applicant being a “model prisoner” (at p 15), but does not address the length of time that the applicant has held that classification. I have addressed this aspect of the grounds of review in relation to the topic of parole conditions, which is where I consider an error has been established. [77] As to legal unreasonableness, although on the merits (having regard to the material referred to above) one can readily understand the applicant’s sense of injustice and unfairness, I am unable to conclude that the Board’s exercise of its discretionary power was beyond power because it was legally unreasonable, in the sense explained in Li and SZVFW. The test is a stringent one. As Brennan J said in Attorney-General (NSW) v Quin (1990) 170 CLR 1 at 35-36 Brennan J said: “The duty and jurisdiction of the court to review administrative action do not go beyond the declaration and enforcing of the law which determines the limits and governs the exercise of the repository’s power. If, in so doing, the court avoids administrative injustice or error, so be it; but the court has no -- 34 of 40 -- 35 jurisdiction simply to cure administrative injustice or error. The merits of administrative action, to the extent that they can be distinguished from legality, are for the repository of the relevant power and, subject to political control, for the repository alone.” Assessments by psychiatrists and psychologists [78] The applicant contends that the Board disregarded, or failed to give sufficient weight to, the risk assessment undertaken by, in particular, Dr Andrews, which it had specifically requested. Although, again, one can appreciate the applicant’s frustration, in my view this does not raise a judicially reviewable error. The Board did take Dr Andrews’ risk assessment into account. The weight to be given to that assessment was a matter for the Board. The Board’s consideration does not demonstrate error in the decision making process, such as to justify intervention by the Court. [79] The applicant further argues that the Board fell into reviewable error by taking into account the dictionary definition of the word “moderate” to aid in understanding the meaning and effect of the psychological assessments. The applicant contends that this approach lead the Board into error, because it fixed upon a meaning of “moderate” as “not severe, fairly large”, which in his submission meant that the Board’s assessment of the level of potential future risk was inflated. Counsel for the Board effectively acknowledged the dictionary definition was not relevant, but said this did not affect the Board’s decision, which was on the basis of the conditions suggested as appropriate by, inter alia, Dr Andrews, by reference to her assessment of risk – and whether it was satisfied the applicant would comply with them. [80] Given the conclusions reached in relation to other grounds of review, it is unnecessary to deal with this in any detail. The applicant’s point is valid, as counsel for the Board seemed to accept. Upon its reconsideration, the Board ought only act upon the particular meaning of a term such as “moderate”, as it appears in the psychiatrists’ or psychologists’ assessments, and as informed by the medical practitioners involved, not dictionary definitions which may not be apt in the circumstances. Parole conditions [81] The first of the applicant’s contentions is that the Board failed to have regard to the ability to impose additional conditions on any grant of parole, under s 200(3) of the Corrective Services Act. Section 200 relevantly provides: “Conditions of parole (1) A parole order must include conditions requiring the prisoner the subject of the order – (a) to be under the chief executive’s supervision – -- 35 of 40 -- 36 (i) until the end of the prisoner’s period of imprisonment; … ; and (b) to carry out the chief executive’s lawful instructions; and (c) to give a test sample if required to do so by the chief executive under section 41; and (d) to report, and receive visits, as directed by the chief executive; and (e) to notify the chief executive within 48 hours of any change in the prisoner’s address or employment during the parole period; and (f) not to commit an offence. (2) A parole order may contain a condition requiring the prisoner to comply with a direction given to the prisoner under section 200A. (3) A parole order granted by the parole board may also contain conditions the board reasonably considers necessary – (a) to ensure the prisoner’s good conduct; or (b) to stop the prisoner committing an offence Examples – • a condition about the prisoner’s place of residence, employment or participation in a particular program • a condition imposing a curfew for the prisoner • a condition requiring the prisoner to give a test sample (4) The prisoner must comply with the conditions included in the parole order.” [82] Section 200A provides: “Directions to prisoners subject to parole order (1) The purpose of this section is – (a) to enable the movements of a prisoner who is subject to a parole order to be restricted; and (b) to enable the location of the prisoner to be monitored. -- 36 of 40 -- 37 (2) A corrective services officer may direct the prisoner – (a) to remain at a stated place for stated periods; or (b) to wear a stated device; or (c) to permit the installation of any device or equipment at the place where the prisoner resides. (3) A corrective services officer may also give other reasonable directions to the prisoner that are necessary for the proper administration of a direction under subsection (2). (4) A direction under this section must not be inconsistent with a condition of the prisoner’s parole order.” [83] Having regard to the decision, and statement of reasons, including paragraph 53 of the statement of reasons (set out at [50] above), I am not persuaded that the Board has failed to take into account the ability to impose additional conditions. [84] It is clear the Board’s particular concern was in relation to the condition proposed by the applicant that he not form any personal relationship for up to one year after his release, and the condition recommended by Dr Andrews (and others) that the applicant be required to disclose any intimate relationships to his parole officer. The Board’s decision was substantially based upon its conclusion that the applicant could not be relied upon to comply with such conditions, given his criminal history (that he was under a community based order at the time of committing the murder in 1993) and that it would be too onerous for Corrective Services to manage such a condition. [85] The one matter that it appears the Board has not expressly addressed is the possibility of including an electronic monitoring condition. This is a matter the Board should consider, under paragraph 5.3 of the Guidelines. Counsel for the Board submitted that paragraph 5.3 may properly be read as only obliging the Board to consider that, where it has already decided to grant parole. For the reasons given in Queensland Parole Board v Pangilinan [2015] QCA 35 at [34]-[38], in my view this is a case in which the possible imposition of conditions of parole is relevant in determining the parole application itself. So much is clear from the Board’s decision, and statement of reasons. Accordingly, the question whether an electronic monitoring condition should be included in any parole order ought to have been considered. Such a condition would be relevant, in any event, to the concerns articulated by the Board about reliance upon self-reporting.49 [86] The next ground relied upon by applicant is that the Board failed to take into account relevant considerations, in determining whether the applicant could be expected to 49 See also paragraphs 5.5 and 5.6 of the Guidelines, which likewise may be regarded as relevant considerations given the particular circumstances of this case (although this was not a matter raised at the hearing). -- 37 of 40 -- 38 comply with parole conditions, namely, his rehabilitation, his age and increased maturity in the 26 years that have passed since he was incarcerated, the courses and programs he has completed in custody, his participation in community based work release programs, his community support, his low security classification for the past 10 years and his positive institutional behaviour over the 26 years of his incarceration. I find this ground has been established. [87] In reaching the conclusion that the risk of reoffending posed by the applicant was unacceptable, and could not be mitigated by any conditions, because the applicant could not be considered reliable for the purposes of self-reporting, the Board focussed substantially on the circumstances in 1993: significantly, the fact that the murder was committed in breach of a probation order made in respect of earlier offending by the applicant. Each of Dr De Leacy, Dr Sundin (psychiatrists) and Dr Palk and, most recently, Dr Andrews (psychologists) have expressed the view that the applicant is a person who could be placed on parole subject to appropriate conditions. As articulated in the reasons, the Board’s conclusion that there are no conditions of parole that would mitigate the risk to an acceptable level is based on its view that relying on the applicant’s self-reporting would be an ineffective means of monitoring his behaviour on parole, because he was subject of a community based order (probation) at the time of the murder, and did not discuss any relationship difficulties with his probation officer. [88] On the face of the decision, and statement of reasons, the Board has not taken into account, in reaching that conclusion, the years that have passed since 1993, and the rehabilitative efforts made by the applicant, including his low security classification for 10 years, his ability to demonstrate what is referred to as exemplary custodial behaviour (in Dr De Leacy’s report) over the 26 years of his incarceration, and his successful participation in community based work release programs. These things are adverted to in passing in the reasons, but not in my respectful view given proper, genuine and realistic consideration in the context of this important conclusion. They ought to have been. [89] The progress of the applicant’s rehabilitation whilst he has been in custody is plainly a relevant consideration for the Board to take into account in the exercise of its discretion generally, but also specifically in light of the basis upon which it reached its decision in this case. The point is made in R v Buckley [2008] QCA 45 at [20], albeit in a different context, that “the prospects of accurately predicting the likelihood of a prisoner’s re- offending once released will be better towards the end of a prisoner’s sentence than at the beginning”. And as I have already reiterated, by reference to Calanca [2013] QSC 294 at [33], 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. Those observations serve to demonstrate why matters such as those just identified were required, as part of the proper and lawful exercise of the Board’s discretionary decision-making power, to be given proper, genuine and realistic consideration, going as they do to a matter of central relevance and importance to the ultimate conclusion reached by the Board. -- 38 of 40 -- 39 One other matter [90] There is one further matter, not raised by the applicant, but which came to my attention in the course of considering this decision. [91] As noted above, at the end of the letter of 2 February 2018, the Board said: “The Board considered if it should indicate whether there are any improvements or activities which would be likely to reduce the risk you currently present to the community. The Board has decided that it would not be appropriate to give such an indication.” [92] In Calanca v Queensland Parole Board [2016] QSC 3; [2017] 1 Qd R 1, the decision in relation to the application for judicial review of the Board’s earlier decision, made on 22 May 2015, one of the issues was whether the Board had failed to consider a matter it was required to under the Guidelines, namely, that when refusing an application, the Board should give an indication to the prisoner and Queensland Corrective Services of the improvements or activities that would be of benefit in reducing the risks posed to the community by the prisoner (formerly, paragraph 5.6 of the Guidelines). Burns J held that the Board was not obliged (in the sense of it being a mandatory requirement) to give such an indication, but was required to consider whether to give such an indication. On the evidence, that had not occurred. Although that did not result in the decision being set aside, it did result in a direction being made that the Board decide, within 28 days, whether to give the applicant and Queensland Corrective Services an indication as to any improvements or activities that would be of benefit in reducing the risks posed to the community by the applicant, within the meaning of paragraph 5.6 of the Guidelines. [93] There does not appear to be an equivalent express requirement in the current Guidelines. However, if the last paragraph in the 2 February 2018 letter is intended to reflect or address the outcome in the court’s decision just referred to, in my respectful view it is inadequate. It provides no reasons for why the Board considered it would be inappropriate to give such an indication. In the circumstances of this case, given all the rehabilitative efforts the applicant has made, leading Dr De Leacy to say “[h]e could scarcely be better prepared for parole”, and having regard to the observations of Margaret Wilson J in Calanca [2013] QSC 294 at [34] and McMurdo J in McGrane [2010] QSC 209 at [26] (that a real rather than theoretical availability of parole is conducive to the rehabilitation of prisoners and to the orderly management of prisons), this is a matter that warrants further consideration. It is arguably an incident of procedural fairness in a matter such as this, where the applicant is advised, at the end of the 2 February 2018 letter, that the Board consents to him lodging a new application within six months, and at the end of the statement of reasons that “the Board considered that you are an unacceptable risk to the community and decided to refuse your application for parole, at this time.” This begs the question: what is a person in the applicant’s position to do? By all accounts he has done all the courses and programs that he can; and he has demonstrated exemplary behaviour in custody. Procedural fairness may well require the -- 39 of 40 -- 40 Board, even in the absence of an express requirement under the Guidelines, to consider giving some indication to such an applicant of what they can do to improve their prospects of successfully applying in the future – in keeping with the public interest in the fair operation of a regime for parole. Orders [94] Being satisfied that the decision of the Board is affected by the errors addressed above, I will order that the decision be set aside, and further order that the matter to which the decision relates be referred back to the Parole Board for further consideration in accordance with law, and in accordance with these reasons. [95] The applicant has sought an order that this occur within seven days of the court’s order. I will hear from the parties before making a direction of this kind. [96] The applicant also seeks an order for costs. As he was not legally represented, the only costs that may appropriately be ordered to be paid are for disbursements or outlays, such as a filing fee. I will hear from the parties about this also. -- 40 of 40 --