Johnston v Central and Northern Queensland Regional Parole Board [2019] 1 Qd R 32

BACKGROUND

The applicant sought judicial review of a decision made by the parole board  to refuse his application for release on parole. The applicant had a substantive criminal history, which included various convictions for offences of violence and dishonesty. The applicant contested the decision of the board on four grounds, three of which were held by the court to be unsubstantiated and were dismissed.

However, based on one of these grounds, namely ignoring that the consequence of denying parole would be a shortening of the period that the applicant would be subject to supervision when ultimately released , the court set the decision of the board aside.

REASONING OF THE COURT

According to the relevant guidelines, which have legislative force, the board should consider whether there is an unacceptable risk to the community if the prisoner is released to parole; and whether the risk to the community would be greater if the prisoner does not spend a period of time on parole.

This clearly directs attention to the issue that if a prisoner is not given parole before his/her full time release date, then the prisoner is released into the community unsupervised, which potentially imposes a future risk to the community. The notion of guidelines “to be followed” suggests that the guidelines can limit the board’s discretion.

When considering the parole application, the board was obliged to consider on the one hand the risk of releasing the applicant immediately, as against the risk posed by ultimately releasing him on his full time release date, totally unsupervised.

The reasons showed detailed consideration of the present release risk and no consideration of the second, countervailing factor. Based on the fact that the board failed to take into account relevant consideration of the future release risk, the court set aside the board’s decision to refuse parole.

CONCLUSION

This case demonstrates the importance of considering future risk to the community imposed by denying parole and ultimately releasing a prisoner at the full time release date totally unsupervised.

A decision maker may be obliged to apply such guidelines even if by doing so limits the discretion which might otherwise be considered a broad one.