Agius v The Parole Board of South Australia - [2020] SASC 225

SUPREME COURT OF SOUTH AUSTRALIA
(Civil: Application for Judicial Review)
AGIUS v THE PAROLE BOARD OF SOUTH AUSTRALIA
[2020] SASC 225
Judgment of The Honourable Justice Doyle
27 November 2020
ADMINISTRATIVE LAW - JUDICIAL REVIEW - GROUNDS OF REVIEW - UNREASONABLENESS
CRIMINAL LAW - SENTENCE - POST-CUSTODIAL ORDERS - PAROLE - ELIGIBILITY AND RELEASE
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES - SENTENCE - PARTICULAR CASES - RAPE AND SEXUAL ASSAULT
The applicant challenges the decision of the respondent (the Parole Board of South Australia), refusing to release him on parole under s 67 of the Correctional Services Act 1982 (SA). The applicant seeks orders in the nature of certiorari and mandamus, quashing the decision and compelling the respondent to determine his application for parole according to law.
The applicant challenges the respondent’s decision on four grounds. The first involves a challenge to the finding that the applicant remains at high risk of reoffending; the second complains that the Parole Board did not properly identify the risk factors upon which it relied; the third involves a challenge to the finding that the applicant has no insight into his risk factors; and the fourth complains about the recommendation that the applicant undertake intervention in circumstances where it was not clear that any relevant programs were available to the applicant. The applicant’s case was confined to a challenge on the grounds of legal unreasonableness, and it was accepted that the claim ultimately falls to be determined by consideration of whether or not the ultimate decision to refuse the applicant parole was legally unreasonable.
Held, per Doyle J, dismissing the application:
1.      While the Parole Board’s reasons for refusal could have provided some additional explanation as to the reasons for its own assessment of the applicant’s risk of reoffending, it cannot be said that there was no reasonable basis for this assessment. The Parole Board’s reliance upon its own view that the applicant was at a high risk of reoffending does not provide a basis for contending that its ultimate decision to refuse the applicant parole was unreasonable.
2.      The Parole Board’s reasons adequately identified its basis for concluding that the applicant presented a high risk of reoffending. Further, the material before the Parole Board provided an ample basis for each of the matters identified as contributing to the Parole Board’s assessment of the applicant’s risk of reoffending, and for its conclusion that the applicant presented a high risk of reoffending. The applicant’s submissions do not provide a basis for impugning the reasonableness of this conclusion.
3.      The applicant has not established that the Parole Board failed to identify any adequate reasons for its finding that the applicant lacked insight into his risk factors, let alone for its ultimate decision to refuse him parole.
4.      The Parole Board’s recommendation in relation to intervention that the applicant might undertake did not form any operative role in the decision under challenge. Any mistaken premise in the Parole Board’s recommendation, while unfortunate, would not provide a basis for challenging the reasonableness of the decision to refuse parole.
5.      Cumulatively, the applicant’s four grounds of review do not establish that the decision to refuse the applicant parole was legally unreasonable. The reasons of the Parole Board, when read in light of the material before it, provided an evident and intelligible basis and justification for the decision to refuse the applicant parole.
Correctional Services Act 1982 (SA) ss 66(1), 67(2), 67(3a), 67(4), 67(5), 67(9), 74, referred to.
Minister for Immigration and Citizenship v Li (2013) 249 CLR 332; Minister for Immigration and Border Protection v SZVFW (2018) 264 CLR 541; Minister for Immigration and Border Protection v Singh (2014) 231 FCR 437; Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259, considered.

AGIUS v THE PAROLE BOARD OF SOUTH AUSTRALIA
[2020] SASC 225
Civil: Judicial Review

DOYLE J: The applicant (Mr Agius) challenges the 11 February 2020 decision of the respondent (the Parole Board of South Australia) refusing to release him on parole under s 67 of the Correctional Services Act 1982 (SA) (the CSA). He seeks an order in the nature of certiorari quashing this decision, and mandamus compelling the Parole Board to determine his application for parole according to law.
The reasons for the Parole Board’s decision to refuse parole are dated 18 March 2020, and include reference to its view that the applicant remains at high risk of reoffending, has no insight into his risk factors, has previously been non-compliant with parole, and has not dealt with his drug use. After indicating its view that these considerations made the applicant unsuitable for release on parole, the Parole Board strongly recommended that the applicant undertake intervention in respect of his violence, sexual offending and drug use. It noted that he may re-apply for parole after 11 February 2021.
The applicant challenges the Parole Board’s decision on four grounds. Each ground has a different focus: the first involves a challenge to the finding that the applicant remains at high risk of reoffending; the second complains that the Parole Board did not properly identify the risk factors upon which it relied; the third involves a challenge to the finding that the applicant has no insight into his risk factors; and the fourth complains about the recommendation that the applicant undertake intervention in circumstances where it was not clear that any relevant programs were available to the applicant.
While the submissions of counsel for the applicant at times strayed into other potential grounds for judicial review, ultimately the applicant’s case was one confined to a challenge on the grounds of legal unreasonableness. And while the individual grounds focussed upon particular aspects of the Parole Board’s reasoning, it was accepted that the claim ultimately falls to be determined by consideration of whether or not the ultimate decision to refuse the applicant parole was legally unreasonable.
For the reasons that follow, I am not satisfied that the decision to refuse the applicant parole was legally unreasonable.
Background
In 2007, the applicant was found guilty by a jury of six counts of rape. On 13 April 2007, he was sentenced by Judge Chivell to 18 years imprisonment, with a non-parole period of 12 years. The sentence was backdated to commence on 11 April 2005, being the date he was arrested and taken into custody for his offending.
The applicant’s offending occurred over an approximately 12 month period commencing December 2003, and related to three separate incidents and three separate victims. Each of the three incidents involved the applicant raping a young adult woman who was aged between about 20 and 30 years of age, and who was a stranger to him. Each occurred late at night or in the early hours of the morning. While driving his car in the Adelaide CBD, the applicant had offered lifts to his victims. He drove each of his victims to isolated locations and then subjected them to multiple acts of rape. In each case his offending involved an element of aggression in the form of threats as well as physical violence. In the second of the three incidents, the applicant used “some sort of weapon”, placing it against the victim’s neck while threatening to kill her.
The applicant was arrested and charged on the basis of DNA evidence identifying him as the perpetrator. However, he pleaded not guilty to each of the offences, with the defence case being that each of his victims was a prostitute and had consented to sexual intercourse. The jury rejected the defence case.
In his sentencing remarks, Judge Chivell described the circumstances of each of the offences, and their unsurprisingly significant impact upon the victims. His Honour summarised the offending as involving “very serious offences, committed in a particularly brutal and degrading fashion” over a period of slightly less than 12 months. His Honour concluded that by the last of the offences, the applicant had “well and truly embarked upon a pattern of entrenched criminality.”
Judge Chivell summarised the applicant’s personal circumstances, which included that the applicant was 36 years of age as at the date of sentencing. He had left school during year 8 and was functionally illiterate. Despite these impediments, the applicant had a commendable work history, having been in gainful employment throughout most of the period since he had left school. The applicant had married in 1997, and had two children from that marriage (aged 17 and 16 at the date of sentencing). He subsequently separated from his wife, but remained close to his family, particularly his daughters.
The Judge received various letters attesting to good aspects of the applicant’s character. He referred to the applicant’s history of offending that had commenced with an offence of indecent assault in 1983, when the applicant was only 11 years of age. The applicant had committed a number of subsequent offences, but as the Judge noted, none were similar to the offending for which he was being sentenced, and none had resulted in imprisonment. The imprisonment for his rape offences was his first substantial sentence of imprisonment.
Judge Chivell referred to a report from a forensic psychiatrist, Dr Raeside, to the effect that the applicant suffered from an adjustment disorder, with anxiety and depressed mood, as well as a panic disorder. His Honour also referred to the lack of any apparent contrition or remorse on the part of the applicant. There was nothing to indicate any desire on the part of the applicant to take responsibility for his conduct or that he was likely to change his behaviour.
It was in this context that Judge Chivell imposed the sentence to which I have referred.
Whilst in prison, the applicant undertook a Sexual Behaviour Clinic (SBC) program between December 2015 and March 2017. I will refer to the report upon his participation in this SBC program later in these reasons.
The applicant was released on parole on 15 September 2017. He initially appeared to be progressing well, to the point that in February 2018 the Parole Board relaxed his intensive supervision conditions. This occurred notwithstanding that the applicant had in January 2018 returned a positive urinalysis test for buprenorphine (for which he had no prescription).
On 17 May 2018, the applicant returned a positive test for methamphetamine. He was returned to prison on a Parole Board warrant from 5 June 2018 to 11 October 2018. On 24 October 2018, the applicant was returned to prison under a further Parole Board warrant, having admitted to further use of buprenorphine following another urinalysis test. His parole was cancelled by the Parole Board under s 74 of the CSA.
On 3 July 2019 Judge Chapman heard the applicant’s application to fix a new non-parole period. After referring to the Parole Board’s report, and noting concerns as to the applicant’s frankness about his drug use, her Honour also noted the applicant’s submission that he had been using illicit drugs to manage the pain associated with an aggravation of an old back injury, and that he had been in the process of attempting to find alternative means of pain management when his parole was cancelled. Her Honour referred to subsequent tests that suggested the applicant had ceased using drugs, and also letters from his family indicating that they continued to support him and his release back into the community.
Having noted that, as at 24 October 2018, the applicant’s remaining sentence was six years, five months and 23 days imprisonment, Judge Chapman fixed a new non-parole period of 11 months (commencing from 24 October 2018).
Application for parole
On 3 July 2019, the applicant applied for parole. In making its decision on 11 February 2020 to refuse the applicant’s application for parole, the material before the Parole Board included:
·    a pre-treatment assessment summary dated 14 February 2011, prepared by a senior psychologist (Ms Lewis) from the Sentence Management Unit of the Department for Correctional Services (DCS);
·    a report from a forensic psychologist (Ms Bruggemann) dated 2 September 2015;
·    a post-treatment report dated 1 May 2017 from Ms Martin and Ms Sutton, being the clinicians who facilitated the SBC program in which the applicant participated;
·    an email dated 1 July 2019 confirming the applicant’s participation in the therapeutic program known as ‘the DRUMBEAT’ program;
·    Judge Chapman’s sentencing remarks dated 3 July 2019, setting the new non-parole period;
·    a parole report dated 19 August 2019, prepared by officers of DCS;
·    some documents substantiating a cardiac condition from which the applicant suffers; and
·    some letters of support from members of the applicant’s family.
It is appropriate to mention some of the more pertinent aspects of a few of these documents.
I refer first in this respect to the 14 February 2011 pre-treatment assessment summary prepared by Ms Lewis. In that report, Ms Lewis commenced by summarising the applicant’s offending (as reflected in the sentencing remarks), and her interview of the applicant. During that interview, the applicant reiterated the version of events that represented his defence case, including that his victims were prostitutes. After referring to the applicant’s suggestion that he had felt a degree of dissatisfaction with his previous long-term marital relationship, Ms Lewis formed the view that the applicant would benefit from intervention to explore any relationship between his frustrations and difficulties within intimate relationships and his offending. Ms Lewis expressed the view that the applicant was at a high risk of sexual reoffending, but suitable for involvement with the SBC program. Her assessment summary concluded in the following terms:
On the basis of an actuarial risk assessment, Mr Agius was estimated to be at HIGH risk of sexual re-offending should he not receive treatment. The dynamic risk factors identified as areas of concern in relation to his risk of re-offending were intimacy, relationships and social functioning, empathy and victim awareness, sexual fantasy and arousal, and self-management. Mr Agius has a low level of literacy and is currently participating in full-time education to improve his skills. He should be encouraged to continue education and will require additional assistance during the SBC program to compensate for this deficit. It was also noted that intervention would need to consider Mr Agius’ Aboriginal background and that provision of intervention should involve the Senior Aboriginal Programs Officers from the RPB either in delivery of treatment or in partnership with group facilitators.
Specialist Assessment Report Summary
Mr Agius was estimated to be at HIGH risk of sexual re-offending and was found suitable for SBC program involvement. It was recommended that Mr Agius should continue education to improve his literacy skills and he will require additional assistance during the SBC to compensate for his low level of literacy. Persistent denial of his offending may act as a responsivity barrier to treatment. It was further recommended that intervention would need to consider Mr Agius’ Aboriginal background.
As mentioned earlier, the applicant participated in the SBC program from December 2015 through to March 2017. The post-treatment report from the facilitators of that program dated 1 May 2017 was a relatively lengthy and detailed document. It outlined the applicant’s background and personal circumstances, before then summarising his participation in the program, and treatment progress. The report said that he attended 99 per cent of the sessions offered, being over 350 hours of group treatment and 28 hours of individual treatment.
However, the report went on to note the facilitators’ concerns about the applicant’s engagement with the program. It was observed that his manner suggested a desire to appease the Parole Board as opposed to a recognition of serious problematic behaviours that he needed to address. Over the course of the program, he appeared to adopt a surface level of engagement, and rushed the exercises resulting in his work often being incorrect by reason of him not having read or listened to the instructions. His engagement was summarised as involving a superficial level of commitment. Whilst the report continued in a similar manner, and generally suggested poor engagement and progress, there were passing references to some progress in some areas.
The report concluded with the following risk assessment and recommendations:
Sexual Re-offending Risk Assessment
On the basis of a combined actuarial risk assessment, prior to therapeutic treatment, Mr Agius was estimated as being at Moderate-High risk of sexual reoffending should he not receive treatment. Following completion of the program, Mr Agius was assessed as having decreased in risk and was now estimated to be within the Moderate-Low risk range. This result was attributed to insight gained in some areas related to his offending such as general social rejection, impulsivity and preoccupation with sex. While, his score for negative emotionality and hostility towards women was noted to have increased.
Summary and Recommendations
Mr Agius participated in the Mt Gambier Sexual Behaviour Clinic-me from 02/12/2015 – 16/03/2017. His participation included a 99% attendance. Despite continuing to exhibit offence paralleling behaviours at times (i.e. allowing pride and shame to get in the way of asking for assistance, taking on board feedback and personalizing the material, believing “I’m right” and putting himself on a pedestal) and a tenuous connection with program content at other times, it was as a consequence of his involvement in the group that Mr Agius is now able to identify the attitudes and beliefs that supported him to place himself in high risk situations. Mr Agius developed a realistic safety plan.
After setting out a number of recommendations intended to enhance the applicant’s ability to maintain a pro-social and offence-free lifestyle upon his release, the report went on to consider whether there should be any consideration given to the applicant’s indefinite detention pursuant the legislative regime permitting such detention in the case of offenders who are unwilling or incapable of controlling their sexual instincts. In recommending against any investigation of this course in the case of the applicant, the report stated:
In summary, while Mr Agius was unwavering throughout the program in his denial of his offending, Facilitators posit the reason for his active, ongoing decision not to confront the offending he has been responsible for is located within Mr Agius’ enduring commitment to placing himself on a pedestal in which he is unable to relinquish his version of events as a consequence of the devotion he has to his family and the unwavering support he has received from them. It is hypothesized that Mr Agius’ fear of rejection and alienation are the cause of his disinclination of Facilitators’ ongoing invitations to relinquish his position. Mr Agius’ knowledge that he has fortunately retained the love and support of his family and community could potentially be considered as a protective factor with regard to his likelihood of future offending as he is aware that he could not compromise their loyalty again.
There was no specific evidence to indicate that he was unwilling or incapable of controlling his sexual instincts, except his unwillingness as noted above to discuss or even admit the offences he has been convicted of. However, it should be noted that the program does include those who maintain their innocence in addition to those who acknowledge their offending as a denial of offending is unrelated to risk of recidivism, and that the main aim is for people to have strategies in place for future potential situations of high risk which Mr Agius has been able to demonstrate via his Self-Management Plan. Mr Agius’ Self-Management Plan demonstrated insight in recognising key situations of heightened risk for which he also developed management strategies to prevent future offending.

Turning to the parole report dated 19 August 2019, it commenced with a section entitled “Case Manager’s view of risk”. After setting out the applicant’s history of offending and drug use, the report included the following quote from the parole cancellation report that had been prepared in December 2018, following the cancellation of the applicant’s parole in October of that year:
Since commencing his Parole, Mr Agius has continued to deflect responsibility for his actions in regards to use of illicit substances in the community, and his subject offending. Mr Agius depicts someone who is not ready to accept responsibility and ready to make positive changes to his lifestyle to reduce his risk of reoffending. He is focused on himself and what he is entitled to, such as a reduction in intensity of conditions, when he continues to be non-compliant with his electronic monitoring conditions and tested positive to illicit substance.
It took a significant amount of prompting for Mr Agius to finally admit that he had lied and take responsibility for his drug use. He made claims that he ‘had’ to use Buprenorphine illegally to address his pain as his medical practitioner would not prescribe it. There is no mention of back pain in previous case notes.
The parole report dated 19 August 2019 then made reference to the various historical assessments of the applicant's risk of reoffending before referring to the post-treatment assessment of his risk of sexual reoffending as within the moderate-low range. The report continued:
The criminogenic needs identified with reference to the ORNI-R and at interview are: alcohol and drug abuse and criminal/antisocial attitudes. The SBC-Me Pre-Treatment Risk Assessment identified the following treatment targets: significant social influences, capacity for relationship stability, hostility towards women, general social rejection and loneliness, lack of concern for others, impulsive acts, poor problem solving skills, preoccupation with sex and deviant sexual interests.
At interview, Mr Agius presented with much of the dynamic risk factors mentioned above. In addition he engaged in impression management and was disingenuous when discussing his mental health, substance abuse and his response to supervision. …
…
However, given the presence of the abovementioned dynamic risk factors, Mr Agius’ superficial engagement with the interview process, incongruous explanations for breaches of parole and misleading recounts of his time under supervision, it would appear that he is unlikely to meaningfully engage in future supervision. In addition his likelihood of compliance with future community based orders is poor. As a result Mr Agius’ risk of recidivism is of concern to the writer. Mr Agius is considered NOT SUITABLE for parole …
The report went on to elaborate upon some of the risk management strategies that might be employed were the applicant to be released upon parole. The balance of the report contained a detailed summary and analysis of the applicant’s personal background and history of offending, including matters relating to his cultural background, his substance abuse issues, his mental and physical health, his education and employment opportunities, and his accommodation options if released on parole. The report concluded with a section containing comments from the delegate by whom the report had been reviewed. This included reference to the applicant being assessed as within the moderate-low range of risk of sexual reoffending following the SBC program that he undertook, and that he “would be deemed NOT suitable for release to Parole.”
In addition to the above reports, the applicant was interviewed by the Parole Board on 11 February 2020. His solicitor (Mr Truscott) was present for that interview.
During the course of that interview, the applicant was asked about his drug use, which he maintained was for the purposes of self-medication. He described the alternative strategies he had developed in that regard. He referred to his participation in a program referred to as ‘the DRUMBEAT’ program, saying it had taught him about the need to be a better father and person, and to be up-front about the things he needed to address.
He was asked why he committed his rape offences, and his understanding of the factors that had led him to commit these offences. He said that “back then it was you know, making the wrong choices … [I was] feeling bad, being in a bad environment, and I look back on it now and take responsibility for my actions.”
When asked what he learned about his offending from the SBC program that he undertook, he said that he learnt a variety of things, including about “old me and new me, and put yourself in somebody else’s shoes”. When pressed as to whether he maintained his position that his victims were prostitutes he agreed that they were not prostitutes; and that they were innocent women. He said that “I look back now and I, you know, made the wrong choices back then, and I own up to, you know, doing the wrong thing.” He accepted that his conduct would have caused damage to his victims.
The applicant denied that his offending involved an element of planning while driving around looking for victims. He said that this was not planning; that he had split up with his wife, and that he was spending time going to the pokies and drinking to try and deal with that. When he was then pressed with the similarities in his method of picking up each of his victims, he ultimately accepted that there was a pattern suggestive of planning. He said “I understand where you’re coming from. If I could turn back time, I would, you know, and make better choices.”
The interview concluded with Mr Truscott making some brief submissions on the applicant’s behalf to the effect that the applicant’s loss of weight meant that his back pain was no longer a concern; that his breaches of parole had not involved any new offending of a sexual nature; and that his client understood that any release would be on strict conditions.
Having decided on 11 February 2020 to refuse parole, the Parole Board’s reasons for decision are dated 18 March 2020. They are in the name of the presiding member, Ms Nelson QC.
After setting out the background of the applicant’s offending and initial imprisonment, the reasons referred in the following terms to the applicant’s initial risk assessment when in prison, and his later participation in the SBC program:
He was assessed by the Department for Corrections Services as being at a high risk of sexual re-offending and found suitable for the Sexual Behaviour Clinic program involvement. He undertook the SBC-Me program between December 2015 and March 2017. He was unwavering throughout the program in his denial of his offending. The denial is not in itself determinative in the Parole Board’s consideration; it is relevant to the prisoner’s prospect of rehabilitation and reduction of risk.
After then describing the applicant’s drug use that had led to the cancellation of his parole, the reasons continued:
The Parole Board interviewed Mr Agius with his solicitor Mr Truscott on 11 February 2020. He explained his previous illegal drug use as ‘self-medicating’ for his back pain. He said that he had undertaken the Drum Beat Program, which taught him to be a better person in the community.
He was unable to articulate in any meaningful way why he committed the rapes other than saying he was ‘feeling bad and being in a bad environment’. However, according to the sentencing remarks, he was driving around looking for victims and there was therefore an element of planning and deliberation in his offending.
Mr Agius denied that, he said ‘it wasn’t planning, I’d just split up with my wife and I had money and I was going to the pokies and drinking and trying to deal with that and then leaving the night clubs’.
He now has a cardiac condition, and that is a factor the Parole Board needs to take into account but, nevertheless, in our view, he remains at high risk of re-offending. He has no insight into his risk factors and he had previously been non-compliant with parole. He has not dealt with his drug use.
He is not suitable for release onto parole. We would strongly recommend that he undertake intervention in respect of his violence, his sexual offending and his drug use. He may re-apply after 11 February 2021.
Legislative scheme
The operation of the Parole Board, and its power to grant parole, are governed by Part 6 of the CSA.
In the case of those prisoners to whom s 66(1) applies, there is an automatic right to parole. However, in the case of other prisoners, including the applicant in the present case, their release upon parole is dependent upon an application to, and order by, the Parole Board under s 67 of the CSA. In particular, an application for release may be made under s 67(2), and upon such application being made, the Parole Board may, under s 67(5), order that a prisoner be released on parole.
In addition to some qualifications to the Parole Board’s discretion in s 67 which are not presently relevant, the exercise of the Parole Board’s discretion to order that a prisoner be released on parole is governed by a consideration of the matters in ss 67(3a) and (4) of the CSA. Those subsections provide:
(3a)The paramount consideration of the Board when determining an application under this section for the release of a prisoner parole must be the safety of the community.
(4) The Board must also take the following matters into consideration when determining an application under this section:
(a)     any relevant remarks made by the court in passing sentence; and
(b)     the likelihood of the prisoner complying with the conditions of parole; and
(c)     where the prisoner was imprisoned for an offence or offences involving violence, the circumstances and gravity of the offence, or offences, for which the prisoner was sentenced to imprisonment (but the Board may not substitute its view of these matters for the view expressed by the court in passing sentence); and
(ca)   if, in relation to an offence for which the prisoner was imprisoned, there is a registered victim—the impact that the release of the prisoner on parole is likely to have on the registered victim and the registered victim's family; and
(d)     the behaviour of the prisoner while in prison or on home detention; and
(e)    the behaviour of the prisoner during any previous release on parole; and
(f)      any reports tendered to the Board—
(i)on the social background, or the medical, psychological or psychiatric condition, of the prisoner;
(ii)from the CE (including recommendations (if any) as to the conditions that should, in the opinion of the CE, be imposed by the Board on the prisoner's release on parole); and
(g)     the probable circumstances of the prisoner after release from prison or home detention; and
(h)     any other matters that the Board thinks are relevant.
The obligation of the Parole Board to provide reasons for any refusal of parole is set out in s 67(9) of the CSA:
(9) The Board must, not more than 30 days after refusing an application by a prisoner for release on parole, notify the prisoner in writing of—
(a)     its refusal; and
(b)     the reasons for its refusal and of any matters that might assist the prisoner in making any further application for parole; and
(c)     a date, not less than six months or more than one year after the date on which the Board refuses the application, before which the Board will not accept any further application by the prisoner for release on parole.
Legal unreasonableness in the context of parole decisions
There is no dispute that when exercising its discretion to grant release on parole under s 67 of the CSA, the Parole Board was constrained by an implied obligation of reasonableness.
Nor is there any dispute as to the principles governing the concept of legal reasonableness for this purpose. It is accepted that those principles are as set out in the reasons of the High Court in Minister for Immigration and Citizenship v Li[1] and Minister for Immigration and Border Protection v SZVFW.[2]
[1] Minister for Immigration and Citizenship v Li (2013) 249 CLR 332.
[2] Minister for Immigration and Border Protection v SZVFW (2018) 264 CLR 541 at [18] (Kiefel CJ), [51]-[60] (Gageler J), [78]-[87] (Nettle and Gordon JJ), [131]-[134] (Edelman J).
The principles are well known, and there is no need for me to set them out at any great length. It is sufficient for present purposes to observe that in considering whether a particular decision is unreasonable, the issue is essentially whether the decision is such that no reasonable decision-maker could have made it,[3] or whether the decision lacks an evident and intelligible justification.[4]
[3] Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 at [28] (French CJ), [108] (Gageler J).
[4] Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 at [76] (Hayne, Kiefel and Bell JJ).
In determining whether a particular decision is unreasonable in this sense, the Court’s task is a supervisory one. It does not involve the Court reviewing the merits of the decision, let alone substituting its own view as to how the decision or discretion ought to have been made or exercised.[5] Rather, it is necessary to bear in mind that within the boundaries of the relevant power, there is generally an area of decisional freedom within which reasonable minds may reach different conclusions about the correct or preferable decision.[6] A decision that falls within this area of decisional freedom is not legally unreasonable.
[5] Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 at [66] (Hayne, Kiefel and Bell JJ).
[6] Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 at [28] (French CJ), [66] (Hayne, Kiefel and Bell JJ).
In order to identify the width and boundaries of this area of decisional freedom, and hence the bounds of legal reasonableness, it is necessary to construe the relevant statute. It is necessary to look to the scope and purpose of the statute conferring the relevant statutory power.[7] In the present context, in determining the reasonableness of a decision of the Parole Board on a prisoner’s application for parole, it will be necessary to have regard to the statutory framework for that decision in the CSA, and in particular the considerations mandated by ss 67(3a) and (4) (as extracted above).
[7] Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 at [23] (French CJ), [67] (Hayne, Kiefel and Bell JJ).
It is not enough to transgress the boundaries of reasonableness that the decision-maker has given more or less weight to certain matters than the reviewing court would have done, or that the decision-maker has made an evaluative judgment with which that court disagrees. Indeed, even emphatic disagreement with the decision under review does not necessarily mean that it was legally unreasonable.[8]
[8] Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 at [30] (French CJ).
The focus is generally on the outcome, or the decision itself, and whether it falls outside the bounds of legal unreasonableness. As such, even in cases where there are no reasons given for the relevant decision, or where reasons are given but do not disclose any error, it may be appropriate to draw an inference or conclusion of unreasonableness simply from the outcome or decision itself.[9]
[9] Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 at [76] (Hayne, Kiefel and Bell JJ).
That said, where, as here, reasons for the decision are given, they may assist in understanding the decision-making process, and hence in determining whether the decision is legally unreasonable.[10] However, the decision-maker’s reasons should not be construed too finely, or with an eye too keenly attuned to the perception of some error or inadequacy in the expression of those reasons.[11]
[10] Minister for Immigration and Border Protection v Singh (2014) 231 FCR 437 at [45].
[11] Minister for Immigration and Ethnic Affairs v WuShan Liang (1996) 185 CLR 259 at 272 (Brennan CJ, Toohey, McHugh and Gummow JJ), 291 (Kirby J).
Finally, I make the related observation that the focus must be upon the ultimate decision that is challenged (here, the decision to refuse parole), rather than particular reasons given for that decision, or particular findings made in the course of reaching that decision. However, for the reasons just given, consideration of those reasons or findings may nevertheless shed light upon the reasonableness of the ultimate decision. For this reason, while the applicant’s grounds for review in this case tend to focus upon aspects of the Parole Board’s reasons rather than the ultimate decision to refuse parole, it is convenient to commence with a consideration of those individual grounds, before returning to address my ultimate conclusion as to the reasonableness of the Parole Board’s decision to refuse parole.
Ground 1: high risk
In his first ground of review, the applicant complains that the Parole Board assessed him as being at a high risk of reoffending. He contends that this assessment ignored the reference in the post-treatment report dated 1 May 2017 from the facilitators of the SBC program to him being in the moderate-low range of risk of sexual reoffending.
It is true that the post-treatment report dated 1 May 2017 included an opinion from the facilitators of the SBC program that the applicant appeared to have gained a level of insight into some areas related to his offending, which had led to this revised opinion as to his risk of sexual reoffending. However, there are several reasons why I do not think this warrants a conclusion that the Parole Board’s decision to refuse parole was unreasonable in the relevant sense.
The first is that that while this post-treatment report suggested some basis for a reduced risk, the report nevertheless included a good deal of information which raised concerns as to the applicant’s engagement with the SBC program, as well as in relation to his ongoing risk of sexual reoffending. This is readily apparent from the extracts of this report set out earlier in these reasons.
The second is that there is no reason to think that the Parole Board ignored or overlooked this particular assessment of the applicant’s risk level. The post-treatment report was before the Parole Board, and the Parole Board’s reasons made express reference to the applicant’s participation in the relevant SBC program. In referring to the applicant’s unwavering denial of his offending throughout that program, it can be inferred that the Parole Board had regard to the contents of that report.
The third is that the Parole Board made it express that it was its own view that the applicant remained at a high risk of reoffending. It is not the case that the Parole Board misunderstood or misstated some other assessment of the applicant’s risk of reoffending.
The fourth is the related point that it was, of course, perfectly permissible (if not necessary) for the Parole Board to form its own view as to the applicant’s risk of reoffending. Even putting to one side that the post-treatment report was addressed to the applicant’s risk of sexual reoffending, whereas the Parole Board’s view was addressed to the applicant’s risk of reoffending more generally, the point is that the Parole Board was not required to simply adopt the assessment of risk in the post-treatment report. To the contrary, in arriving at an assessment of that risk, the Parole Board was required to take into account the range of material before it relevant to the matters set out in ss 67(3a) and (4) of the CSA.
Thus, while the assessment of the applicant’s risk in the post-treatment report dated 1 May 2017 was a relevant consideration, the Parole Board was also entitled (indeed, required) to take into account the earlier assessment that the applicant was a high risk, the heavily qualified reference to the gains made by the applicant during the SBC program in the post-treatment report itself, and the subsequent material suggesting that any gains made by the applicant during the SBC program may well have been illusory or transient. This subsequent material (which included the applicant’s poor performance upon parole, the assessments made of the applicant in the parole cancellation report dated December 2018 and the parole report dated August 2019, and the Parole Board’s own interview of the applicant in February 2020) provided ample basis for the Parole Board to have formed its own view that the applicant presented a high risk of reoffending.

In summary, while I accept that the Parole Board’s reasons for refusal could have provided some additional explanation as to the reasons for its own assessment of the applicant’s risk of reoffending, I do not think it can be said that there was no reasonable basis for this assessment. It follows that I do not think the Parole Board’s reference to its own view that the applicant was at a high risk of reoffending provides a basis for contending that its ultimate decision to refuse the applicant parole was unreasonable in the relevant sense.
Ground 2: risk factors
The applicant’s second ground of review involves a complaint that the Parole Board did not properly identify the risk factors said to have led to the applicant having a high risk of reoffending. The applicant contends that the Parole Board was required to articulate a basis for its assessment of the risk of the applicant reoffending, rather than simply assert that there is a risk that can only be managed through the applicant remaining in detention.
As mentioned, the Parole Board was required by s 67(9) of the CSA to provide reasons for its decision to refuse parole. However, to the extent that the applicant’s second ground included a complaint based upon the adequacy of those reasons, I do not think it has merit. While the obligation to provide reasons carried with it an obligation to identify the key aspects of the Parole Board’s reasoning leading to its decision to refuse parole, it did not carry with it an obligation to do so in great detail, or to otherwise identify all of the factors or steps in its reasoning, let alone all of the material relied upon by it in forming each of its conclusions.
Here, as mentioned in the context of my consideration of the first ground of review, the Parole Board had before it a good deal of material relevant to its assessment of the applicant’s risk of reoffending. It expressly adverted in its reasons to at least some of the relevant considerations in this respect; namely, the initial assessment of him as a high risk, his unwavering denial of his offending during the SBC program that he undertook, his subsequent difficulties in managing his illegal drug taking, his non-compliance with his earlier parole, his inability to articulate in any meaningful way the reasons for his offending, and his minimisation of the nature of that offending. In my view, this was an adequate identification of the Parole Board’s reasons for concluding that the applicant presented a high risk of reoffending.
I am also satisfied that the material before the Parole Board, as summarised in the context of my consideration of the first ground of review, provided an ample basis for each of the matters identified as contributing to the Parole Board’s assessment of the risk of the applicant reoffending, and for its conclusion that the applicant presented a high risk of reoffending. I am not satisfied that the applicant’s submissions in support of his second ground of review provide a basis for impugning the reasonableness of this conclusion, let alone the Parole Board’s ultimate decision to refuse the applicant parole.
Ground 3: insight
In his third ground of review, the applicant contends that the Parole Board did not identify the grounds or reasons for its conclusion that he lacked insight into his risk factors, and that this conclusion was unreasonable. The applicant points in this regard to his acknowledgment of his offending during his February 2020 interview by the Parole Board, and contends that this process of transitioning from a position of denial to one of admitting wrongdoing demonstrated a degree of insight.
While it is true that the applicant did admit his offending during the course of his February 2020 interview, the Parole Board was entitled to attach limited weight to this consideration given that the applicant had apparently maintained his innocence (on the basis of an assertion, rejected by the jury, that his victims were prostitutes) throughout the duration of his imprisonment. The Parole Board was entitled to attach more weight, as its reasons suggest it did, to the applicant’s inability during the course of that interview to articulate in any meaningful way why he raped his victims. Even assuming the admission of his offending was genuine, and not simply made on the basis that it might assist him to secure parole, the Parole Board was reasonably entitled to take the view that the applicant did not have any significant insight or understanding as to what had led to him deciding to offend, with the result that he would have limited ability to address the risk of him making a similar decision in the future.
I accept that the post-treatment report dated 1 May 2017 suggested that the applicant had gained some insight “in some areas related to his offending”. However, the Parole Board was entitled to take the view, based in part upon its interview of the applicant, that his lack of insight remained a significant consideration in determining that he remained at sufficient risk of reoffending to warrant a refusal of parole.
It follows that the applicant has not established that the Parole Board failed to identify any adequate reasons or basis for its finding that the applicant lacked insight into his risk factors, let alone for its ultimate decision to refuse him parole. Nor has he established that the decision to refuse him parole was unreasonable on this account.
Ground 4: availability of intervention programs
The applicant’s fourth ground of review involves a complaint about the Parole Board’s reference, in the penultimate sentence of its reasons, to its strong recommendation that the applicant undertake intervention in respect of his violence, sexual offending and drug use. He complains that there is no evidence that the Parole Board made proper inquiry as to the availability of programs to which the applicant should be referred. Indeed, in support of this ground, the applicant refers to a letter from a DCS officer employed within the Sentence Management Unit which does not include reference to any prison-based programs to which the applicant was given a referral, but which at the same time lists four community-based programs to which he was given a referral.
The first difficulty with this ground of review is that the letter relied upon by the applicant was not before the Parole Board, and the factual premise of the applicant’s submissions is disputed.
But more fundamentally, I consider that the challenge is misconceived in that the Parole Board’s recommendation in relation to intervention that the applicant might undertake does not appear to have formed any operative part in the decision under challenge. It was a statement directed to the future progress of the applicant’s contemplated rehabilitation, rather than an articulation of anything taken into account by the Parole Board in refusing to grant parole on this occasion.
This interpretation of the reasons is supported by the existence of the requirement in s 67(9)(b) of the CSA that the Parole Board notify the prisoner in writing of both the reasons for its refusal of parole and of any matters that might assist the prisoner in making any further application for parole. Properly understood, the penultimate sentence of the Parole Board’s reasons was directed to the latter, rather than the former. As such, any mistaken premise in the Parole Board’s recommendation, while unfortunate, would not provide a basis for challenging the reasonableness of the decision to refuse parole.
I reject the challenge to the Parole Board’s decision to refuse parole in the applicant’s fourth ground of review.
Conclusion
I have set out my reasons for rejecting each of the challenges made to the Parole Board’s reasoning and conclusions in the applicant’s four grounds of review. However, in addition to considering their individual significance, I have also considered the cumulative significance of the matters relied upon by the applicant. In my view, the reasons of the Parole Board, when read in light of the material before it (as summarised earlier in these reasons), provided an evident and intelligible basis and justification for the decision to refuse the applicant parole.
Bearing in mind the breadth of the matters it was required to take into consideration under ss 67(3a) and (4) of the CSA, the Parole Board was reasonably entitled to conclude that it was appropriate to refuse the applicant parole. It was reasonably entitled to reach this conclusion based upon considerations including the nature and seriousness of the applicant’s offending, the various assessments of his risk made during the period since his offending, his long-term denial of his offending, his lack of insight into the factors that led to his offending and his continuing difficulties with substance abuse demonstrated through his non-compliance with the conditions upon his previous release upon parole. While it was relevant that the applicant seemed to have made some progress during his participation in the SBC program, that he has participated in other courses and programs, and that he was prepared to admit his offending in his February 2020 interview, it was a matter for the Parole Board to determine the weight to be attached to these considerations. I am satisfied that it was reasonable for the Parole Board to take the view that these matters did not stand in the way of its conclusion that the applicant continued to lack insight into his offending and presented a high risk of reoffending, and hence that it was appropriate to refuse the applicant parole.
I am thus not satisfied that the applicant has established that the decision to refuse him parole was legally unreasonable.
For the reasons set out, I dismiss the applicant’s application for judicial review.