Queensland Parole Board v Pangilinan [2015] QCA 35

SUPREME COURT OF QUEENSLAND

CITATION: Queensland Parole Board v Pangilinan [2015] QCA 35

PARTIES: QUEENSLAND PAROLE BOARD / (appellant) / v / JORAI PANGILINAN / (respondent)

FILE NO/S: Appeal No 6520 of 2014 / SC No 5181 of 2013

DIVISION: Court of Appeal

PROCEEDING: General Civil Appeal

ORIGINATING COURT: Supreme Court at Brisbane

DELIVERED ON: 13 March 2015

DELIVERED AT: Brisbane

HEARING DATE: 20 February 2015

JUDGES: Carmody CJ and Morrison and Philippides JJA / Separate reasons for judgment of each member of the Court, each concurring as to the order made

ORDER: The appeal is dismissed.

CATCHWORDS: APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES – RIGHT OF APPEAL – WHEN APPEAL LIES – ERROR OF LAW – WHAT IS – where the respondent had been sentenced to life imprisonment for murder – where the respondent became eligible for parole – where the appellant received an application for parole from the respondent – where the appellant refused the application on the basis that the respondent posed an unreasonable risk – where the respondent sought judicial review of the appellant’s decision to refuse parole – where a Queensland Corrective Service Home Assessment Report before the appellant indicated that the risk posed by the appellant could be managed by specified conditions – where a psychological report before the appellant placed the respondent in the low risk category for reoffending – where the primary judge ordered that the decision to refuse parole be set aside – whether the primary judge erred in finding that the appellant was obliged to consider the possible imposition of conditions when assessing the respondent’s application for parole / Corrective Services Act 2006 (Qld), s 3, s 193(1), s 194(1), s 200 / Dangerous Prisoners (Sexual Offenders) Act 2003 (Qld) / Queensland Parole Board v McGrane [2014] QCA 193, considered / R v Shrestha (1991) 173 CLR 48; [1991] HCA 26, cited / Wotton v State of Queensland (2012) 246 CLR 1; [2012] HCA 2, cited

COUNSEL: M D Hinson QC, with S A McLeod, for the appellant / The respondent appeared on his own behalf

SOLICITORS: Crown Law for the appellant / The respondent appeared on his own behalf

CHIEF JUSTICE: I agree with the orders proposed and reasons given by Philippides JA.

MORRISON JA: I have read the reasons of Philippides JA and agree with those reasons and the order her Honour proposes.

PHILIPPIDES JA: The appellant, the Queensland Parole Board, appeals against the determination of the learned primary judge setting aside the appellant’s decision made on 8 October 2013 to refuse the application for a parole order made by the respondent, Mr Pangilinan.

The basis on which the appellant’s decision was set aside was that, in deciding the application for parole, the appellant was required (but failed) to take into account the possible imposition of conditions of parole under s 200(2) of the Corrective Services Act 2006 (Qld) (“the Act”). The sole question raised by the appeal is whether, in deciding the respondent’s application for parole, the appellant was required to take that consideration into account. The appellant does not challenge the finding that it failed to do so.

Background

The respondent is currently serving a term of imprisonment for life for murder, which commenced on 1 February 1998. He became eligible for parole on 1 February 2013. On 21 December 2012, the appellant received an application for a parole order from the respondent, which the appellant refused on 5 April 2013 on the basis that the respondent posed an unreasonable risk.

On 20 June 2013, the respondent brought an application for a statutory order of review challenging the appellant’s decision. Before the final hearing on 13 September 2013, the appellant rescinded its decision of 5 April 2013. It so advised the respondent by a letter dated 18 September 2013, which also stated that it had reconsidered the application for a parole order and had “formed a preliminary view” that the respondent may pose an unacceptable risk to the community if released on parole. In its letter, the appellant referred to the following information obtained from a Parole Board Report dated 20 December 2012:

“Prisoner Pangilinan has been in secure custody since 5 February 1998, during this time he has been accommodated in a number of centres. A Review of his case notes indicates that his behaviour fluctuates between acceptable and unacceptable.

At times prisoner Pangilinan can be polite and courteous in his interactions with staff, on other occasions he can be described as manipulating a situation to achieve a desired outcome. He can also become argumentative and abusive when an outcome does not suit him. He does however maintain a very high standard of personal and cell hygiene.

A review of the prisoner’s violation history since 2 February 1998 supports his sometimes unacceptable behaviour with 30 incidents and 20 breaches during that period, of these 7 incidents and 3 breaches have occurred during the past 12 months.

Prisoner Pangilinan has also been subject to a number of Intensive Management Plans (IMP) during this incarceration. Prisoner Pangilinan is currently subject to an IMP which commenced on 29 October 2012 due to his continued institutional behaviour. This plan is due for further review on 10 December 2012.”

The appellant also referred to the respondent’s high security classification and noted its information that the respondent was able to progress to a low security classification notwithstanding his protection status. The appellant stated that it would prefer that the respondent obtained a low security classification and progress to residential accommodation, which would demonstrate an ability to exercise self-control in a less structured and regulated environment. The appellant additionally referred to a recent relapse prevention plan which was considered adequate, but stated that it was not convinced of the respondent’s ability to abide by the plan, given his “extremely poor institutional behaviour in a structured environment”. The appellant stated that it would have greater confidence in the respondent’s ability to implement and abide by the relapse prevention plan if the respondent were able to demonstrate “appropriate behaviour in a custodial environment”. The appellant also referred to the respondent’s breach and incident history. Reference was made to eight drug related breaches of discipline and concern was expressed that two breaches occurred less than 12 months previously. The appellant noted its opinion that the information indicated that the respondent’s self‑control was poor, with institutional behaviour that fluctuated between being compliant when things were going his way and argumentative and abusive when they were not. The appellant stated that it was concerned that “if [the respondent was] unable to behave appropriately in a highly regulated custodial environment, [he] may be unable to adhere to the conditions of a parole order” and this would place the respondent “at risk to the community”.

In response to the appellant’s invitation to do so, the respondent made further submissions on 24 September 2013. In those submissions, the respondent referred, amongst other matters, to a Queensland Corrective Service Home Assessment Report of January 2013. That report dealt with more than the question of home assessment and stated by way of a general comment that the “capacity of the Probation and Parole Office to manage risk factors with the assistance of the [specified] special conditions could be considered”. These conditions were identified as a three month curfew from 9.00 pm to 6.00 am, abstention from alcohol, not entering licensed premises, not taking certain medications without approval, nominating a GP and a chemist, breath and urine testing and obtaining approval for a change of address. The report offered the opinion that “Probation and Parole are able to manage the identified risk factors, with the assistance of the [specified] special conditions”. The respondent’s submissions referred to his appreciation of the importance of adhering to parole conditions and his willingness to do so (including in relation to attending psychological counselling and other recommended intervention programs in the community). The respondent also included, as an attachment to his submissions, a forensic psychological report obtained from Dr Freeman dated 23 May 2013.

In his report, Dr Freeman noted that the respondent had consistently accepted responsibility for the offence for which he was serving a life sentence. The respondent did not attempt to minimise or externalise his offending behaviours and reported a very high level of regret and remorse for his actions. The respondent also had a high level of insight to the aetiology of his offending. He recognised that contributing factors were: his propensity to carry a knife for protection; his extreme fatigue and intoxication after using amphetamines and cannabis (without sleeping for four days), which increased his propensity to engage in reckless behaviours; and his tendency of threatening violence to “bluff” his way out of confrontations. Dr Freeman noted that the respondent had a history of illicit substance abuse that was marked by amphetamine and cannabis dependence. He diagnosed the respondent with amphetamine and cannabis dependence (partial remission in a controlled environment) and generalised anxiety (with depression). The respondent was medication compliant and recognised the need to continue treatment on release from a custodial environment. The respondent had completed over 100 courses since being incarcerated, which included Violence Intervention Program, Substance Abuse Getting Smart, Anger Management, Stress Management and had acted as a facilitator in the Alternatives to Violence Program.

Dr Freeman stated at para 15.9 of his report:

“The [respondent’s] current presentation is in direct contrast to the circumstances surrounding the offence, and thus, it is likely that he has: (a) matured considerably, (b) benefited from abstaining from illicit substance abuse, (c) benefited from completing a range of correctional interventions as well as the stability of a custodial sentence. In general, the [respondent] appears to have undergone a considerable cognitive shift during his custodial period and he now presents as an individual who can identify alternatives to engaging in violence. Importantly, [the respondent] stated that his incarceration is a significant deterrent against further re‑offending, and he currently presents with the cognitive capacity and reported strategies to avoid placing himself in similar high risk situations in the future. Taken together, and after consideration of the actuarial instruments (PCL-R, VRAG & HCR 20), he can be considered in the low risk category for violent recidivism.”

A statement of reasons dated 8 October 2013 for the appellant’s decision to refuse the application for a parole order was provided to the respondent under cover of a letter dated 11 October 2013. After repeating the matters set out in its previous letter advising the respondent of its preliminary view, the appellant made the following findings:

“4.The Board considered that the Applicant has incurred eight drug related breaches of discipline since his conviction, which include providing positive urinalysis samples, ingesting and administering medication/drugs or possession of drugs. The Board was concerned that two of these breaches occurred less than twelve months ago and following completion of the Getting SMART Program. The Getting SMART Program is designed to assist prisoners with substance abuse histories.

In addition, the Board considered advice that in September 2013, the Applicant has been observed to display unacceptable behaviour including not presenting himself appropriately for required custodial headcount, being observed in an unauthorised location and having been verbally abusive and argumentative with staff.

The Board is of the opinion that, as evidenced by the above, the Applicant’s self control is poor and his behaviour fluctuates between being compliant if things are going his way to argumentative and abusive when they are not. The Board also noted that because of this behaviour, the Applicant was subject to an Intensive Management Plan as recently as January 2013.

The Board was concerned as even in a highly structured environment and despite the length of time he has been in custody, the Applicant was unable to control his behaviour and demonstrates poor self-control. This led the Board to have concerns about how the Applicant would be able to cope in the community without the constant supervision that incarceration provides. The Board was concerned that the Applicant would be a greater risk of re-offending and pose an unacceptable risk to community safety if released into the community at this time.

…

The Board took into consideration the Applicant’s submission dated 04 March 2013 that he was unable to progress to a low security facility due to being a ‘protection’ prisoner. The Board advised the Applicant that while he is a ‘protection’ prisoner, this is not a determinative factor when making a decision regarding security classification. Furthermore, the Applicant is able to progress to a low security classification despite his ‘protection’ status. The Applicant’s history of self-harm also does not preclude the Applicant from progressing to a low security classification. The Board noted the Applicant’s explanation in his submission dated 24 September 2013 as to why he has not yet achieved a low security classification, however were of the opinion that despite the length of time he has been in custody, he has not achieved low classification although that classification is potentially available to him.

The Board encourages the Applicant to make every endeavour to progress through the correctional system, obtaining a low security classification and progressing to residential accommodation where he is able to exercise self control in a less structured and regulated environment.

The Board noted the Applicant reported that he had completed all recommended intervention programs during this period of imprisonment and there are no further recommendations at this time. It is noted that the Applicant has completed the following intervention programs:

Anger Management (2011)

Cognitive Skills (2000)

Stress Management (2000)

Violence Intervention Program (2005)

Substance Abuse Education Program (1999 x 2, 2000)

Getting SMART Program (2006, 2012)

The Applicant submitted a relapse prevention plan with his Application which did not fulsomely detail how he proposed to manage his behaviour upon release into the community. The Board received a further improved plan which was deemed adequate. However, the Board still had concerns of the Applicant’s ability to abide by the plan, given his unacceptable institutional behaviour while being accommodated in such a structured environment. The Board would have more confidence in the Applicant’s ability to abide by the plan if he were able to demonstrate acceptable, stable behaviour within the custodial environment.

The Board determined that there was no information contained in the Applicant’s submission dated 24 September 2013 which would alleviate its concerns raised in its correspondence to him dated 18 September 2013.

The Board consented to the Applicant reapplying for parole six months from the date of the final decision.

Reasons for decision

Based on the findings listed above, including the serious violent nature of the Applicant’s offences, his fluctuating institutional behaviour resulting in his failure to progress to a lower security environment, his drug abuse history and recency of drug related breaches, the Board considered the Applicant poses an unacceptable risk to the community and decided to refuse his application for parole.”

On 23 October 2013, the respondent filed an amended application for a statutory order of review challenging the appellant’s decision made on 8 October 2013. On 4 December 2013, the appellant “noted” its decision made on 8 October 2013. On 6 December 2013, and without notice to the respondent, the appellant considered the “matter” again and determined to affirm its previous decision.

The decision of the learned primary judge

At the hearing before the learned primary judge, the appellant contended that the decision made on 6 December 2013 was the operative decision dismissing the respondent’s application for a parole order. That contention was rejected by the primary judge, who held that the appellant did not have jurisdiction to make that decision. Accordingly, his Honour proceeded to determine the respondent’s amended application seeking to challenge the appellant’s decision made on 8 October 2013. His Honour rejected the argument advanced by the respondent that there was error in the appellant’s process of reasoning that fell within the category of unreasonableness.¹ The learned primary judge then turned to the submission made by the respondent, relying on s 200(2) of the Act, that the Board ought to have considered whether to grant his application for a parole order on the footing that appropriate conditions would manage his identified risk factors in the community. His Honour observed:

“[89]... [the respondent] also relied on that consideration as a particular of the ground that the [appellant] failed to take relevant considerations into account. He submitted that eight particular conditions would manage the risk to the community if he were granted parole, including conditions as to a curfew from 9 pm to 6 am, abstention from alcohol, not entering licensed premises, not taking certain medications without approval, nominating a GP and chemist, and breath and urine testing.

These conditions were not considered by the [appellant] in making the second final decision [8 October 2013]. But the [respondent] had not submitted that they were conditions that should be contained in a parole order at any time before any of the final decisions was made. In his submission dated 4 March 2013, made before the first final decision [5 April 2013], the [respondent] submitted that he would accept and would adhere to all conditions set for him. The matter was not raised again, either by the reasons for the first final decision [5 April 2013], or after that by the [respondent], until he filed his particulars of the amended application for review of the second final decision on 18 November 2013.”

In relation to that matter, his Honour had regard to the decision of McMurdo J at first instance in McGrane v Queensland State Parole Board ² which considered if the failure of the Board to assess whether the risk of commission of an offence upon “any particular premise of the possible conditions” of parole might affect the relative possibility of reoffending.³ (As noted below, that decision was set aside on appeal after the delivery of judgment in the present case.)⁴

His Honour observed that the primary judge in McGrane considered there was evidence before the Board of possible conditions that might be imposed to reduce the prisoner’s risk of reoffending if a parole order was made.⁵ In that regard, McMurdo J stated that the expert evidence demonstrated the potential relevance of a particular regime under which the offender might be paroled. That regime or possible set of conditions was held to be something which the Board was obliged to consider in order to make a logical and appropriate assessment of the relevant risk and in turn of the offender’s case for release.⁶ Drawing on McGrane, his Honour stated that the question in the present case was:

“[93]… whether the possibility of conditions of a parole order that might reduce the risk of the [respondent] reoffending is a relevant consideration that the [appellant] was required to take into account but failed to take into account.”

In determining that question, his Honour referred to his analysis in Maycock v Qld Parole Board,⁷ as to when a matter raised by the circumstances of an application for a parole order might become a relevant consideration which must be taken into account. His Honour observed⁸ that a failure to take a relevant consideration into account constitutes a ground of judicial review “only where the repository of the power in question is bound to take the consideration into account”. Whether the decision maker is bound to take the consideration into account is primarily a matter of statutory interpretation which extends beyond the Act’s terms and into its subject matter, scope and purpose, as well as the nature of the power. Where no limits are expressly imposed, the relevant considerations will be disputable in some cases.

His Honour concluded:

“[95]In my view, in the present case, the provisions of s 200 of the CSA and the submission by the [respondent] that he would submit to any conditions that the [appellant] might impose taken together with the powerful support that Dr Freeman’s report gave for a finding of material fact that the [respondent] was not a high risk of violent reoffending were sufficient to raise whether the conditions of a parole order might sufficiently reduce the risk of his reoffending to an acceptable risk, as a relevant consideration which must be taken into account.

…

Whether a parole order should contain appropriate conditions is an everyday question faced by the [appellant] in performing its function of deciding an application for a parole order. In the case of a prisoner who is serving a life sentence, the Ministerial Guidelines provide that ‘careful consideration should be given to the imposition of a requirement that the prisoner wear an electronic monitoring device as directed by the Chief Executive, and that the prisoner comply with a curfew direction by the chief Executive to remain at a place during specified periods of time.’

There is no reason to think that the [appellant] does not often consider the appropriate conditions for the making of a parole order…

… a central consideration upon the present application was the [appellant’s] concern that ‘the [respondent’s] self control is poor and his behaviour fluctuates between compliant if things are going his way to argumentative and abusive when they are not. The [appellant] also noted that because of this behaviour, the [respondent] was subject to an Intensive Management Plan as recently as January 2013… This led the [appellant] to have concerns about how the [respondent] would be able to cope in the community without the constant supervision that incarceration provides.’

In my view, given these concerns, whether appropriate conditions of a parole order might reduce the risk of the [respondent] reoffending and thereby affect whether he poses an unacceptable risk to the community if released on parole was a relevant consideration that the [appellant] was required to take into account. After careful consideration, I have formed the view that the [appellant’s] concerns as to how the [respondent] would cope without the constant supervision that incarceration provides called up as a relevant consideration whether, in the light of Dr Freeman’s report, appropriate conditions might reduce the risk of reoffending to [an] acceptable level.”

His Honour considered that conclusion was supported by the objects of “supervision and rehabilitation” contained in s 3(1), as well as s 200, of the Act.

The legislative scheme for parole

A prisoner may be released on parole by a parole order: s 194(1) of the Act. The Board’s power to hear and decide the application is provided for by s 187(1). Section 193(1) provides that a parole board is required to consider a prisoner’s application for a parole order and must decide whether to grant or to refuse the application. The Act does not specify the criteria for making a decision under s 193(1). However, in accordance with settled principles, that decision making power is to be understood and is exercisable having regard to the subject matter, scope and purpose of the Act: see Wotton v State of Queensland.⁹

Section 3 of the Act provides as follows:

“3****Purpose

The purpose of corrective services is community safety and crime prevention through the humane containment, supervision and rehabilitation of offenders.

This Act recognises that every member of society has certain basic human entitlements, and that, for this reason, an offender’s entitlements, other than those that are necessarily diminished because of imprisonment or another court sentence, should be safeguarded.

This Act also recognises— The need to respect an offender’s dignity; andthe special needs of some offenders by taking into account—an offender’s age, sex or cultural background; andany disability an offender has.”

Section 200 of the Act provides:

“200****Conditions of parole

A parole order must include conditions requiring the prisoner the subject of the order—to be under the chief executive’s supervision—until the end of the prisoner’s period of imprisonment; orif the prisoner is being detained in an institution for a period fixed by a judge under the Criminal Law Amendment Act 1945, part 3—for the period the prisoner was directed to be detained; andto carry out the chief executive’s lawful instructions; andto give a test sample if required to do so by the chief executive under section 41; andto report, and receive visits, as directed by the chief executive; andto notify the chief executive within 48 hours of any change in the prisoner’s address or employment during the parole period; andnot to commit an offence.

A parole order granted by a parole board may also contain conditions the board reasonably considers necessary—to ensure the prisoner’s good conduct; orto 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

The prisoner must comply with the conditions included in the parole order.”

While s 200(1) of the Act mandates that certain conditions are to be included in a parole order, s 200(2) is permissive in terms. It gives a parole board discretion to impose additional conditions the board reasonably considers necessary to ensure the prisoner’s good conduct or to stop the prisoner committing an offence.

The appellant’s arguments on the appeal

The appellant submitted that, although it has been observed that the mitigation of sentence, which a parole system allows, is ordinarily directed towards rehabilitation of an offender,¹⁰ it is also apparent from s 3(1) of the Act that the rehabilitation of offenders is a means of securing community safety and crime prevention. In that context, risk of offending if released is a relevant and central consideration.

The appellant accepted that in some cases, the imposition of conditions under s 200(2) is a matter that may be considered as relevant to the risk of reoffending and community safety. It was submitted that when and how that matter was raised as a relevant consideration depended on whether the “case was one where the appellant concluded, on the evidence before it, that supervised release rather than continuing custodial supervision was appropriate”. In that regard, the appellant relied on the decision of the Court of Appeal in Queensland Parole Board v McGrane.¹¹ The appellant placed particular importance on the observation in McGrane at [33] of the reasons of Muir JA (with whom Morrison JA and North J agreed) that, “[The Board] did not need to undertake the task of fashioning conditions for parole which, guided in part by the evidence of experienced professional experts, it had decided against granting” and, therefore, “any parole conditions which may have been imposed with a view to reducing the risk of re-offending were irrelevant to [the Board’s] determination”.

It was contended that the reasoning of the Court of Appeal in McGrane was applicable here, because this case was also one where the appellant had concluded, on the evidence before it, that supervised release, rather than continuing custodial supervision, was not appropriate. Accordingly, the point or threshold for considering the possible imposition of conditions under s 200(2) had not arisen. In those circumstances, it was said that the learned primary judge’s decision, in reliance on McGrane at first instance, was in error and the appeal should be allowed.

In advancing its submissions, the appellant referred to the findings set out in its statement of reasons of 9 October 2013, including the serious violent nature of the offences, the respondent’s fluctuating institutional behaviour resulting in his failure to progress to a lower security environment, his drug abuse history and the recency of drug related breaches. The appellant stressed the matters outlined in para 4 and the concerns expressed therein as follows:

“… The [appellant] was concerned as even in a highly structured environment and despite the length of time he has been in custody, the [respondent] was unable to control his behaviour and demonstrates poor self control. This led the [appellant] to have concerns about how the [respondent] would be able to cope in the community without the constant supervision that incarceration provides. The [appellant] was concerned that the [respondent] would be a greater risk of re-offending and pose an unacceptable risk to community safety if released into the community at this time.”

The appellant also emphasised its concerns stated at para 7 as to the respondent’s “ability to abide by the [relapse prevention] plan, given his unacceptable institutional behaviour while being accommodated in such a structured environment” and its statement that the appellant would have more confidence in the respondent’s ability to abide by the plan if he were “able to demonstrate acceptable, stable behaviour within the custodial environment”.

The appellant thus submitted that, when regard was had to its reasons, it was apparent, as was the case in McGrane, that no occasion arose for it to consider what conditions under s 200(2) might reduce the risk of reoffending. The appellant lacked confidence that the respondent was a suitable candidate for supervised release and identified what would give more confidence in that regard. The appellant conceded that, if McGrane was not an analogous case and the reasoning in that case was not apposite, the appeal should fail.

Consideration

McGrane concerned an unsuccessful application for parole by an offender who had been sentenced to 15 years imprisonment for rape and to life imprisonment for murder. The Parole Board’s reasons were stated as follows:¹²

“Based on the findings listed above, including the nature of the [respondent’s] offences, the conclusions provided by both Dr Moyle and Dr Palk, the [respondent’s] inadequate release plan including lack of community supports, proposed psychological treatment, suitable accommodation and sponsor, the Board considered the [respondent] poses an unacceptable risk to the community and decided to refuse his application for parole.”

It was observed on appeal that the evidence of Dr Moyle, a psychiatrist, was that the risk of McGrane committing serious violent crime or sexual abuse in the future remained “moderately high”.¹³ Dr Moyle was not of the opinion that McGrane should be released into the community on parole and opined that, before McGrane could be considered an acceptable risk, he would need to move to an environment where he could “adapt to lower security levels” and show he was trustworthy. Dr Moyle indicated that without the availability of processes established for prisoners under the Dangerous Prisoners (Sexual Offenders) Act 2003 (Qld) (the DPSOA) or similar services, McGrane might fail to earn parole.¹⁴ The evidence of Dr Palk (a psychologist), was that he assessed McGrane as posing a low risk of committing further acts of rape and murder, but considered he would always be a moderate risk of succumbing to “impulsive verbal and physical expression”. He did not advocate McGrane’s release into the community before undergoing an initial period of less secure incarceration, where his behaviour could be monitored and from which he could be returned to secure custody should he display unreasonable signs of “verbal or physical aggression”.¹⁵

Muir JA explained the manner in which it was argued on appeal that the issue of possible conditions under s 200(2) of the Act arose for consideration:

“[29]Counsel for the respondent argued that, even if the type of custodial accommodation envisaged by Dr Palk and Dr Moyle was not available, and it was conceded that it was not, the appellant was obliged to turn its mind to a set of conditions of the nature of those discussed by Dr Palk ‘to live somewhere, to have curfews, to have the restricted liberty, to have perhaps, the electronic monitoring that the guidelines talk about as a possibility.’ Seemingly, the need to consider such conditions was thought necessary to enable the appellant to determine whether the respondent, if released on parole, would pose an unacceptable risk of re-offending.

In developing these arguments counsel for the respondent submitted that if the appellant had considered such matters the respondent’s application might have had a different outcome: the appellant’s view of the existence of an unacceptable risk of re-offending may have been changed. It was further submitted that the material before the appellant, in the form of the Moyle and Palk reports and the respondent’s submissions, required the appellant to give such matters due consideration.”

In rejecting the respondent’s contentions, Muir JA expressed a conclusion contrary to that taken at first instance as to whether the expert evidence raised the issue of conditions of release in a manner that made it relevant to determining the parole application. His Honour stated:

‘[31]... It is clear from the appellant’s reasons that the matters raised by Dr Palk and the respondent in relation to ‘graduated release’ were considered by the appellant. It was not submitted that the appellant could and should have formulated parole conditions, the application of which would have caused the appellant to accept that the respondent was no longer an unacceptable risk.

Under s 2 of the guidelines, the appellant, in deciding the level of risk posed by a prisoner to the community, must have regard to ‘all relevant factors’: in other words, matters relevant to the subject determination. This was properly conceded by counsel for the respondent. The conclusion reached by the appellant, supported by the opinions of Dr Moyle and Dr Palk, was that the respondent posed an unacceptable risk to the community if released from prison at present, without the respondent having had a graduated release through a low security custodial facility. Failing the respondent’s ability to access such a facility, the appellant was of the view that the respondent, over time, may be able to demonstrate his ability to behave in a less structured environment by remaining breach free with his existing low security classification in the residential area of the prison. As well as these considerations the appellant concluded that the respondent’s inability to create an appropriately detailed release plan rendered him an unsuitable candidate for parole.

Having regard to these opinions, which it was not suggested were not open to the appellant, any parole conditions which may have been imposed with a view to reducing the risk of re-offending were irrelevant to the appellant’s determination. The appellant did not need to undertake the task of fashioning conditions for parole which, guided in part by the evidence of experienced professional experts, it had decided against granting.”

Muir JA noted the confined ambit of the argument before the Court of Appeal:

“[34]The appellant’s argument was put quite narrowly. The contention was that in this case the occasion for the appellant to consider conditions of supervised release was not reached. Consequently, whether, pursuant to s 200(2), conditions which might reduce the risk of offending could or should be imposed was not a matter that required consideration. Accordingly, it was unnecessary and undesirable for this Court to consider whether and in what circumstances the appellant may be obliged to consider “a possible set of conditions for parole” formulated by reference to experiences gained by the Corrective Services Department in relation to DPSOA matters or otherwise which would ‘reduce the relative risk to the community’.

Any such question should be answered by reference to the facts and circumstances of the case in which it arises. In which case, regard may be had to matters such as; the expertise, knowledge and experience of the appellant; discretionary considerations, business exigencies and practicalities and to any policies which do not conflict with the appellant’s statutory obligations.” (footnotes omitted)

It may be observed that, although the Court of Appeal set aside the decision at first instance, it expressly disavowed making any statement of principle as to when the appellant may be obliged to consider “a possible set of conditions for parole” which would “reduce the relative risk to the community” when determining a parole application.

As the appellant accepted, there may be cases where the possible imposition of conditions of parole will be relevant in determining a parole application. The question is whether the present case was such a case or whether, as in McGrane, such considerations were irrelevant because of the appellant’s determination on the evidence before it that the offender was not suitable for supervised release.

In terms of the present case, there are a number of material points which distinguish it from McGrane. McGrane was a case where none of the expert evidence before the Board indicated that the offender represented a low risk of reoffending. Nor did the evidence support release into the community on parole; and the only type of custodial accommodation envisaged by the experts was not, in fact, available.¹⁶

By contrast, in the present case there was a Home Assessment Report which provided the appellant with the opinion that the respondent could be managed in the community within a specific framework of unremarkable conditions (including conditions beyond the mandatory s 200(1) conditions). That report was placed before the appellant in circumstances where the respondent’s submissions invited the appellant to consider the imposition of conditions. But importantly, in the present case, there was also, in Dr Freeman’s report, the expert opinion of an experienced professional, assessing the respondent as being in the “low risk” category for violent recidivism. That report detailed the steps towards rehabilitation undertaken by the respondent, outlined the difference in the respondent’s current presentation and his situation at the time of the offending and provided an explanation for that difference.

However, the appellant’s reasons made no mention at all of Dr Freeman’s report, let alone the significance of his assessment of the respondent as a low risk of violent reoffending. Yet that assessment of risk and the other matters dealt with in the report had potentially important implications in terms of whether the respondent would pose an unacceptable risk of reoffending if released on parole. Thus, unlike the position in McGrane, there was, in the report of Dr Freeman, expert evidence which was sufficient to raise the issue of whether conditions under the Act might alleviate the appellant’s concerns and did so in a manner that required consideration of that issue when determining the parole application.

The primary judge was correct, therefore, to identify that there was a combination of factors which, given Dr Freeman’s report, brought into sharp focus and made relevant whether the possible imposition of conditions of a parole order might reduce the risk of reoffending to an acceptable level. No error was demonstrated in the primary judge’s reasoning and decision in that regard.

Accordingly, I would order that the appeal be dismissed.

Footnotes

1. Pangilinan v Qld Parole Board [2014] QSC 133 at [86]-[88]. ↩

2. [2014] QSC 17. ↩

3. Pangilinan v Qld Parole Board [2014] QSC 133 at [91]. ↩

4. See Queensland Parole Board v McGrane [2014] QCA 193. ↩

5. Pangilinan v Qld Parole Board [2014] QSC 133 at [92]. ↩

6. Pangilinan v Qld Parole Board [2014] QSC 133 at [92]. ↩

7. [2013] QSC 302 at [62]-[64]. ↩

8. Pangilinan v Qld Parole Board [2014] QSC 133 at [94]. ↩

9. (2012) 246 CLR 1 at 9, [8]-[9] per French CJ, Gummow, Hayne, Crennan and Bell JJ, at 32 [84] per Kiefel J; see also McQuire v Southern Queensland Regional Community Corrections Board [2003] QSC 414 at [28] per White J. ↩

10. R v Shrestha (1991) 173 CLR 48 at 69 per Deane, Dawson and Toohey JJ. ↩

11. [2014] QCA 193. ↩

12. Queensland Parole Board v McGrane [2014] QCA 193 at [5]. ↩