A prisoner has won an appeal against refusal of parole, with the Supreme Court finding the Parole Board proceeded on an “inappropriate and somewhat arrogant assumption”.
Chris Silk was jailed for five years by the Brisbane District Court in December 2023 on charges including break and enter, and robbery with personal violence.
In a Supreme Court decision delivered last Tuesday, Justice Bradley said the board’s decision late last year to refuse Mr Silk’s parole application proceeded on a factually inaccurate understanding of Mr Silk’s engagement with drug intervention programs, and failed to recognise the board was bound by a parole eligibility date fixed by a court.
The prisoner had been twice refused parole, in June and September last year. The board failed to provide written reasons for its September decision within 28 days of a request by Mr Silk, as required under the Judicial Review Act 1991 (Qld), and in November, he applied for a statutory order of review of the board’s decision not to grant parole.
In December, the board provided a statement of reasons, which referred to a “decision of the board to refuse to grant parole on 1 August 2024”.
Mr Silk raised four grounds of review, that the board:
- took an irrelevant consideration into account;
- failed to take a relevant consideration into account;
- exercised a discretionary power in accordance with a rule or policy without regard to the merits of the case; and
- exercised a power in a manner so unreasonable that no reasonable person could so exercise the power.
He submitted that the statement of reasons included or referred to matters that were factually untrue or contradicted factual findings the board had made. He contended these errors led the board to consider irrelevant matters (which were factually untrue) or to fail to consider relevant matters (which the board found were true).
The statement of reasons recorded that “the board was of the view that as you have not yet completed any intervention programs that may have been available to you, you remained an untreated drug offender”.
It also recorded that “the board was also of the view that taking into account your history of offending and outstanding treatment needs, your risk to the community remained unacceptable while you had not addressed your outstanding treatment needs”.
However, it also noted Mr Silk was receiving opiate substitution therapy (OST) and had competed high-intensity substance use programs.
The board’s counsel urged the court to read the statement “as a whole” and “disregard the plainly erroneous parts that were inconsistent with the facts recorded in other parts”.
Justice Bradley responded: “The wrong statements are found not only within the statement of reasons but also in the preliminary view letter of 8 July 2024 and in the decision letter of 11 October 2024, each of which the statement of reasons expressly endorsed.
“The same may be said for the inconsistent references to Mr Silk’s engagement with the OST program,” he said.
“The applicant contended that the board had decided the level of risk that he posed to the community on the assumption that he had not engaged and successfully completed all substance abuse programs available to him, had not developed a relapse prevention plan, had not been on the OST program since before his present period in custody and had not continued on that program in custody, and was an ‘untreated drug offender’.
“As Mr Silk noted, the material before the board showed he had engaged and successfully completed all substance abuse programs available to him, had developed a relapse prevention plan, had been on the OST program since before his present period in custody and had continued the program in custody, and was not an untreated drug offender.
“On any sensible interpretation of the statement of reasons, the board considered the contrary and irrelevant assumptions in making its decision about the risk Mr Silk posed to the community.”
Justice Bradley said the board proceeded on “an inappropriate and somewhat arrogant assumption” about the knowledge of the sentencing court.
“At the hearing, I asked whether the form of words used by the board – ‘the board was of the view the court would not have been aware of your outstanding treatment needs to address risk factors relating to your offending’ – was a standard form used by the board in statements of reasons,” he said.
“I noted that the board had used it in statements that had previously come before the court, and on at least one occasion, erroneously.”
Counsel for the board submitted the error was not material to the board’s decision to refuse parole, and that the board’s power under Section 193 of the Corrective Services Act 2006 (Qld) was an “unfettered discretionary decision”.
Justice Bradley said that submission “sits oddly” with s 200(1) of the Act which directs the board as to conditions it must include in a court order.
He said the board was bound by a sentencing court’s order fixing a parole eligibility date, but had proceeded as if it was not.
“This error meant that the board failed to consider (or give proper consideration to) the parole eligibility date in making its decision to refuse to make a parole order,” he said.
Justice Bradley said the factors such as the inherent contradictions in the statement of reasons, the consideration of plainly wrong assumptions about Mr Silk’s efforts at rehabilitation, and unfounded and erroneous view of the sentencing judge’s knowledge, went some way towards establishing Mr Silk’s unreasonableness ground.
“However, it is not necessary to determine whether Mr Silk has met the very high requirement to establish this ground,” he said.
“This is because Mr Silk has established that the board considered the irrelevant and erroneous matters and failed to consider the relevant parole eligibility date fixed by the sentencing judge. The board’s decision should be set aside on those grounds.”
He ordered the decision made on 4 September 2024 be set aside; and that Mr Silk’s application be referred back to the board for further consideration and for a decision according to law, to be made within 28 days.
The board was also ordered to pay Mr Silk’s court costs.
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