Smith v The Parole Board of South Australia

SUPREME COURT OF SOUTH AUSTRALIA
(Civil: Judicial Review)
SMITH v THE PAROLE BOARD OF SOUTH AUSTRALIA
[2021] SASC 105
Judgment of the Honourable Justice S David
ADMINISTRATIVE LAW - JUDICIAL REVIEW - GROUNDS OF REVIEW - PROCEDURAL FAIRNESS - HEARING - NATURE OF HEARING - OPPORTUNITY TO PRESENT CASE
ADMINISTRATIVE LAW - JUDICIAL REVIEW - GROUNDS OF REVIEW - IRRELEVANT CONSIDERATIONS
ADMINISTRATIVE LAW - JUDICIAL REVIEW - GROUNDS OF REVIEW - RELEVANT CONSIDERATIONS - FAILURE TO CONSIDER
ADMINISTRATIVE LAW - JUDICIAL REVIEW - GROUNDS OF REVIEW - UNREASONABLENESS
ADMINISTRATIVE LAW - JUDICIAL REVIEW - GROUNDS OF REVIEW - FAILURE TO OBSERVE STATUTORY PROCEDURE
CRIMINAL LAW - SENTENCE - POST-CUSTODIAL ORDERS - PAROLE - BOARDS, TRIBUNALS ETC: POWERS, DUTIES AND CONSTITUTION
This is an application for judicial review of a decision made by the Parole Board of South Australia (the 'Board') on 20 October 2020 refusing to release the applicant on parole pursuant to s 67(2) of the Correctional Services Act 1982 (the 'Act').
Held, per David JA, dismissing the application:

1. The Board was not required to disclose its unfavourable impressions as to the genuineness of the applicant's remorse and his preparedness to reduce his influence within the prison system. There was no procedural unfairness to the applicant.
2. The Board did not have regard to irrelevant considerations. That a number of prisoners listed the applicant as an 'enemy' and that the applicant has a reputation within the prison as threatening are both matters to which the Board could properly have regard under s 67(4) of the Act.
3.The Board has not failed to take any relevant matters into account.

4. The applicant has not established that the decision to refuse parole was unreasonable. The Board's decision not to release the applicant on parole was reasonably open on the material before it.
5. Section 60(5)(b) of the Act does not prohibit a division that is constituted differently from a division that has previously heard or considered an application from determining the same application. The applicant has not established that the determination of the Board to refuse the application was not reached in accordance with law.
Correctional Services Act 1982 (SA) ss 60 & 67, referred to.
Agius v The Parole Board of South Australia [2020] SASC 225; Kioa v West (1985) 159 CLR 550; Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24; Minister for Immigration and Citizenship v Li (2013) 249 CLR 332; Minister for Immigration and Citizenship v SZGUR (2011) 241 CLR 594; Minister for Immigration and Border Protection v WZARH (2015) 256 CLR 326; Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam (2003) 214 CLR 1, considered.

SMITH v THE PAROLE BOARD OF SOUTH AUSTRALIA
[2021] SASC 105
Supreme Court: Civil

DAVID JA: This is an application for judicial review of a decision made by the Parole Board of South Australia (the ‘Board’) on 20 October 2020 refusing to release the applicant, Anthony John Smith, on parole pursuant to s 67(2) of the Correctional Services Act 1982 (the ‘Act’).
On 25 November 2020, the applicant lodged an application for judicial review of the decision. The applicant seeks an order in the nature of certiorari setting aside the decision of the Board, or in the alternative, a declaration that the decision was made in denial of procedural fairness and/or was not made according to law and an order in the nature of mandamus requiring a different division of the Board to determine the application according to law.
Grounds of judicial review
In his amended application filed on 28 January 2021, the applicant raised the following four grounds of judicial review:[1]
[1] Amended Originating Application for Review (FDN 11).
1.The applicant was not afforded procedural fairness in that he:
a.…
b.…
c.Was not given an opportunity to comment on conclusions of fact the Board drew from the relevant materials:
i.That the manner in which the applicant speaks of his offending is not compatible with him feeling genuine remorse about his conduct;
ii.That he was not prepared to attempt to reduce his influence within the prison setting as part of his rehabilitation;
d.…
2.The Board considered the following irrelevant matters in determining the application:
a.That a number of prisoners listed the applicant as an ‘enemy’;
b.That he had a ‘reputation’ within the prison system as being threatening;
3.The Board failed to consider the following relevant matters in determining the application:
a.The applicant’s actions to cease all contact with people with criminal backgrounds outside the prison system;
b.The applicant’s use of his acknowledged leadership position within the prison for pro-social purposes and assisting others [to] adjust to prison life;
c.The applicant’s recent success in re-socialisation efforts, and changes in his insight into his risk factors of re-offending over 8 individual therapy sessions.
4.The decision to refuse parole was unreasonable, in the sense that no reasonable person could have made the decision based on the evidence before the Board.
Counsel for the applicant abandoned grounds 1(a), (b) and (d) at the hearing of the application.
On 10 June 2021, a further amended originating application for judicial review was filed which added a fifth ground:[2]
5.That the decision was not made according to law insofar as it was made when the division of the Parole Board constituted to hear the matter were not all present.
[2] Further Amended Originating Application for Review (FDN 24).
Background
The applicant was born on 11 January 1980.[3] He is now 41 years old. The applicant has significant antecedents as a youth, including two prior convictions for armed robbery. The first involved the armed robbery of a delicatessen when the applicant was aged 15. A firearm was discharged during that robbery and the applicant was ordered to serve 12 months detention.[4] The second involved the armed robbery of a post office, for which the applicant was sentenced to 20 months detention, suspended upon entering an obligation to be of good behaviour for two years.[5] As a youth, the applicant was also convicted of escaping custody and remaining unlawfully at large.[6]
[3]    Exhibit EFN-7 of the Affidavit of Ms Nelson QC affirmed 22 December 2020 (FDN 9) at 61.
[4]    Exhibit EFN-7 of the Affidavit of Ms Nelson QC affirmed 22 December 2020 (FDN 9) at 61.
[5]    Exhibit EFN-7 of the Affidavit of Ms Nelson QC affirmed 22 December 2020 (FDN 9) at 61.
[6]    Exhibit EFN-2 of the Affidavit of Ms Nelson QC affirmed 22 December 2020 (FDN 9) at 28.
The applicant is currently serving a sentence for numerous offences of armed robbery, four counts of creating risk of bodily harm, illegal use of a motor vehicle, and unlawfully on premises (the ‘Walkerville offences’). On 7 February 1999, the applicant and another male drove in a stolen vehicle to the Buckingham Arms Hotel, arriving at about 1.30am.[7] The hotel was closed. There were staff members inside preparing to leave. They retreated to an office and activated an alarm. A shot was fired enabling entry to the hotel. The applicant entered carrying a firearm. He instructed staff to open the safe and stole about $22,000.[8] The applicant told the staff to lie on the floor and said, ‘If you move I’ll shoot you’. The applicant fled and was found hiding in the roof cavity of a nearby residential property. He was arrested later that morning. The firearm used in the armed robbery was never recovered.
[7] Exhibit EFN-7 of the Affidavit of Ms Nelson QC affirmed 22 December 2020 (FDN 9) at 57.
[8] Exhibit EFN-7 of the Affidavit of Ms Nelson QC affirmed 22 December 2020 (FDN 9) at 58.
On 2 March 1999, the applicant escaped from custody whilst being escorted to the Royal Adelaide Hospital to see his ill father (the ‘escape custody offence’). The applicant remained unlawfully at large for almost one year.[9]
[9] Exhibit EFN-7 of the Affidavit of Ms Nelson QC affirmed 22 December 2020 (FDN 9) at 59.
On 12 March 1999, the applicant with two other men committed the offence of armed robbery on the ANZ Bank at Torrensville (the ‘Torrensville offence’). Soon after 5pm, when the bank was closed, the three men entered the bank by smashing the back door with a sledgehammer.[10] An employee was told by one of them to ‘hurry up or I’ll shoot you’. Another staff member was hit over the head. The applicant and his accomplices stole $9,000 and valuables worth about $175,000.[11]
[10] Exhibit EFN-7 of the Affidavit of Ms Nelson QC affirmed 22 December 2020 (FDN 9) at 59.
[11] Exhibit EFN-7 of the Affidavit of Ms Nelson QC affirmed 22 December 2020 (FDN 9) at 59.
On 1 February 2000, the applicant committed the offences of armed robbery, two offences of causing grievous bodily harm with intent to do so, and illegal use of a motor vehicle (the ‘Myrtle Bank offences’). At about 2.30pm, the victim travelled to the State Bank in Myrtle Bank to deposit a large amount of money.[12] Upon having done so, he was walking back to his car carrying a bag containing about $100 in coins. The applicant pointed a firearm at the victim and demanded he hand over the money. The victim did not believe the firearm was real and told him to ‘fuck off’.[13] The applicant shot the victim and took the money. A passing motorist witnessed the incident, followed the applicant and attempted to stop him. The applicant discharged the firearm through the passenger window and shot the second victim. The applicant then demanded he get out of the car. The second victim did so and attempted to disarm the applicant, during which the firearm discharged again. The applicant fled in the vehicle. The second victim sustained a gunshot wound to the left side of his chest. He also received injuries to his face from glass fragments.[14]
[12] Exhibit EFN-7 of the Affidavit of Ms Nelson QC affirmed 22 December 2020 (FDN 9) at 59.
[13] Exhibit EFN-7 of the Affidavit of Ms Nelson QC affirmed 22 December 2020 (FDN 9) at 60.
[14] Exhibit EFN-7 of the Affidavit of Ms Nelson QC affirmed 22 December 2020 (FDN 9) at 60.
On 15 February 2000, the police arrested the applicant.
On 10 September 2000, Mr Balfour prepared an Addendum Forensic Psychological Assessment in respect of the applicant, having prepared an earlier psychological assessment dated 4 September 1998.[15]
[15] Exhibit EFN-1 of the Affidavit of Ms Nelson QC affirmed 22 December 2020 (FDN 9).
On 28 September 2000, the applicant was sentenced by Lunn DCJ to imprisonment for 12 months, with a non-parole period of nine months, for the escape custody offence. The sentence was backdated to commence on 1 March 1999.[16]
[16] Exhibit EFN-2 of the Affidavit of Ms Nelson QC affirmed 22 December 2020 (FDN 9).
On 14 November 2000, the Board ordered the applicant’s release on parole in respect of the sentence imposed for the escape custody offence. The applicant’s release on parole was suspended from 14 November 2000.
On 1 December 2000, Mr Balfour prepared a further Addendum Forensic Psychological Assessment of the applicant in respect of the other offences. It was noted that the applicant expressed his remorse for the offending, ‘I’m sorry as hell. I’m extremely sorry’.[17] However, Mr Balfour considered that the applicant would continue to be at risk of reoffending until he had an opportunity to participate in a supervised, structured rehabilitation programme.[18]
[17] Exhibit EFN-5 of the Affidavit of Ms Nelson QC affirmed 22 December 2020 (FDN 9) at 44.
[18] Exhibit EFN-5 of the Affidavit of Ms Nelson QC affirmed 22 December 2020 (FDN 9) at 45.
There was also a psychiatric medico-legal assessment of the applicant prepared by Dr Branson dated 18 December 2002.[19]
[19] Exhibit EFN-6 of the Affidavit of Ms Nelson QC affirmed 22 December 2020 (FDN 9).
On 13 February 2003, Vanstone DCJ sentenced the applicant to 30 years imprisonment, with a non-parole period of 18 years, for the Walkerville offences, the Torrensville offence, and the Myrtle Bank offences. The sentence was backdated to commence on 15 November 2000.[20] Her Honour noted there were some promising signs as to the applicant’s prospects, namely his commencement of tertiary studies, his greater insight into negative influences, his youth, and his guilty pleas.
[20] Exhibit EFN-7 of the Affidavit of Ms Nelson QC affirmed 22 December 2020 (FDN 9) at 63.
On 7 May 2003, the Board discharged the order for parole made on 14 November 2000.[21]
[21] Exhibit EFN-10 of the Affidavit of Ms Nelson QC affirmed 22 December 2020 (FDN 9).
Events preceding the application for parole
On 21 October 2009, a Psychological Report was prepared by Ms Lewis summarising the applicant’s participation and progress in psychological intervention at Yatala Labour Prison.[22] In the report, Ms Lewis expressed the view that the applicant’s history, together with the nature and quality of his interaction during psychological intervention, signified a personality style that involved a high degree of antisocial behaviour, risk-taking, impulsivity, low frustration tolerance, and reward dominant behaviour.[23] Ms Lewis noted that the applicant had undertaken ten sessions of psychological intervention, focusing on antisocial attitudes and institutional misconduct. She said:[24]
Whilst Mr Smith was able to articulate a degree of insight into the antisocial attitudes that informed his behaviour, and expressed a degree of cognitive dissonance regarding these attitudes, he maintained an attitude of justification of his criminal behaviour.
[22] Exhibit EFN-12 of the Affidavit of Ms Nelson QC affirmed 22 December 2020 (FDN 9).
[23] Exhibit EFN-12 of the Affidavit of Ms Nelson QC affirmed 22 December 2020 (FDN 9) at 81.
[24] Exhibit EFN-12 of the Affidavit of Ms Nelson QC affirmed 22 December 2020 (FDN 9) at 81.
Ms Lewis concluded that the applicant’s attitude towards intervention remained ambivalent, and he appeared to be extrinsically rather than intrinsically motivated to engage in the program.[25] Consequently, intervention was discontinued to allow the applicant to reflect upon his situation.
[25] Exhibit EFN-12 of the Affidavit of Ms Nelson QC affirmed 22 December 2020 (FDN 9) at 81.
On 3 February 2010, a Violence Prevention Program (‘VPP’) Screening Assessment Report was prepared for the Board.[26]
[26] Exhibit EFN-14 of the Affidavit of Ms Nelson QC affirmed 22 December 2020 (FDN 9).
On 10 January 2014, the Acting Director of the Sentencing Management Unit (the ‘SMU’) advised the applicant that they did not endorse his request for 1:1 psychological intervention as it was not considered to be the most effective form of rehabilitation.
On 10 September 2015, the Board received a letter from the applicant dated 1 September 2015, in which he requested assistance with ‘gaining parole at [his] earliest expected release date’.[27] On 21 September 2015, the Board emailed the Department of Correctional Services (‘DCS’) noting the applicant’s correspondence regarding program assistance.[28] The Board requested advice from the Serious Offender Committee (the ‘SOC’) confirming that the applicant ‘will have completed the Violence Prevention Program and been provided other relevant program/counselling as determined by the Department prior to his eligibility to apply for parole i[n] May 2018’.[29]
[27] Exhibit EFN-18 of the Affidavit of Ms Nelson QC affirmed 22 December 2020 (FDN 9).
[28] Exhibit EFN-19 of the Affidavit of Ms Nelson QC affirmed 22 December 2020 (FDN 9).
[29] Exhibit EFN-19 of the Affidavit of Ms Nelson QC affirmed 22 December 2020 (FDN 9).
On 12 April 2017, a clinical psychologist at the SMU, Dr McCallum, prepared an Assessment Summary Minute.[30] Dr McCallum noted that the applicant had previously been assessed as posing a high-risk of reoffending. When considering whether the applicant should be involved in group based therapy and the VPP, Dr McCallum noted his ‘insincere charm, grandiosity and inflated sense of self-worth’ and said ‘he may tend to perceive participating in the VPP as unnecessary, and therefore he may add a negative attitude to others in the program and therefore be disruptive to group cohesion’.[31] Dr McCallum also stated that ‘Mr Smith displayed limited remorse for his offending which suggests that facilitators might attempt to motivate Mr Smith through his personal wants/needs rather than attempting to motivate him on an emotional level’.[32]
[30] Exhibit EFN-22 of the Affidavit of Ms Nelson QC affirmed 22 December 2020 (FDN 9).
[31] Exhibit EFN-22 of the Affidavit of Ms Nelson QC affirmed 22 December 2020 (FDN 9) at 123.
[32] Exhibit EFN-22 of the Affidavit of Ms Nelson QC affirmed 22 December 2020 (FDN 9) at 123.
Application for parole
On 14 November 2018, the applicant became eligible for parole. A prisoner cannot apply for parole more than six months prior to the expiration of the non-parole period fixed in respect of their sentence.[33]
[33] Correctional Services Act 1982 s 67(3).
On 31 July 2018, the Board received an application from the applicant for release on parole dated 19 July 2018.[34] In that application as to his remorse, he said: [35]
I make no excuses and accept full responsibility for my offending and am ashamed and truly remorseful for the harm I have caused because I now understand how it would feel if anything like that happened to my family, my partner, or worse yet my children.
[34] Exhibit EFN-24 of the Affidavit of Ms Nelson QC affirmed 22 December 2020 (FDN 9).
[35] Exhibit EFN-24 of the Affidavit of Ms Nelson QC affirmed 22 December 2020 (FDN 9) at 127.
On 11 October 2018, the Board received a Parole Report by Ms Dobson.[36] In that report, Ms Dobson said: [37]
… Mr Smith was extremely matter of fact when discussing his offences and behaviours, advising on a number of occasions that he could not say that his offences were right or justify them in any way, which could be perceived as him demonstrating a lack of remorse for his actions, which has been noted in a number of prior reports.
[36] Exhibit EFN-28 of the Affidavit of Ms Nelson QC affirmed 22 December 2020 (FDN 9).
[37] Exhibit EFN-28 of the Affidavit of Ms Nelson QC affirmed 22 December 2020 (FDN 9) at 151.
Ms Dobson said that she ‘did not perceive Mr Smith as being unremorseful for his offences, noting that he did not at any point overly rely on any one specific circumstance to defend his behaviour’.[38]
[38] Exhibit EFN-28 of the Affidavit of Ms Nelson QC affirmed 22 December 2020 (FDN 9) at 151.
As to the applicant’s progress during the VPP, Ms Dobson said that ‘whilst he has attended every session; his contributions have been of mixed value, observing Mr Smith continues to hold a number of pro criminal attitudes’.[39] Ms Dobson also expressed the view that:[40]
Whilst the genuineness of Mr Smith’s remorse remains and will likely always remain somewhat questionable, it was evident that he knows what contributed to his offending and underlying attitudes towards violence. It was apparent from speaking with Mr Smith that he had been seduced and bought into a lifestyle that had been sold to him through culture both in and out of prison. It was also evident that Mr Smith well knows that he will always be judged on his prior actions and there is little he can do to change that, and this may be why he presents as so matter of fact when discussing his offences.
[39] Exhibit EFN-28 of the Affidavit of Ms Nelson QC affirmed 22 December 2020 (FDN 9) at 151.
[40] Exhibit EFN-28 of the Affidavit of Ms Nelson QC affirmed 22 December 2020 (FDN 9) at 151-152.
VPP

On 23 October 2018, the Board deferred interviewing the applicant pending his completion of the VPP.[41] On 16 May 2018, the applicant commenced the VPP. On 7 January 2019, a VPP Pre-Treatment Assessment Report of the applicant was completed by Mr Jarrad and Ms Dempsey, senior clinicians of the Rehabilitation Programs Branch (the ‘RPB’). [42] This report was provided to the Board. In it the authors noted that:[43]
During his imprisonment Mr Smith had spent significant periods of time under separation. He had not progressed through prison regimes as would be expected for a prisoner serving a lengthy sentence. …
Mr Smith’s risk of violent reoffending was assessed using the VRS actuarial risk assessment tool on 26/04/2018. This assessment indicated that Mr Smith’s risk of violent reoffending was estimated to be within a high range in comparison to the normative sample for this tool and offence-type.
[41] Exhibit EFN-32 of the Affidavit of Ms Nelson QC affirmed 22 December 2020 (FDN 9).
[42] Exhibit EFN-33 of the Affidavit of Ms Nelson QC affirmed 22 December 2020 (FDN 9).
[43] Exhibit EFN-33 of the Affidavit of Ms Nelson QC affirmed 22 December 2020 (FDN 9) at 189, 191.
On 20 March 2019, the applicant completed the VPP.
On 25 March 2019, the Board indicated that it would consider the applicant’s application for release on parole after having received the post-program report.[44]
[44] Exhibit EFN-36 of the Affidavit of Ms Nelson QC affirmed 22 December 2020 (FDN 9).
On 17 June 2019, the Board received a copy of the VPP Post-Treatment Report dated 14 June 2019, prepared by Mr Jarrad and Dr Taylor of the RPB.[45] In the report, they referred to the applicant’s participation and engagement in the VPP as positive.[46] They said the applicant had demonstrated some attitudinal and early behavioural changes, and overall had gained insight and skills into some of his treatment targets.[47]
[45] Exhibit EFN-43 of the Affidavit of Ms Nelson QC affirmed 22 December 2020 (FDN 9).
[46] Exhibit EFN-43 of the Affidavit of Ms Nelson QC affirmed 22 December 2020 (FDN 9) at 217.
[47] Exhibit EFN-43 of the Affidavit of Ms Nelson QC affirmed 22 December 2020 (FDN 9) at 217.
As to violence within the prison, the report writers said:[48]
Although there appeared to be some shift in cognitive distortions surrounding his offending, Mr Smith maintained a distorted view of violence in prison. He often spoke of how certain behaviours, i.e. stealing, talking to officers, and having a former protectee living in the same unit as him, could not be tolerated in prison. He maintained violence needed to be used to enforce and punish behaviours he saw as unacceptable. Facilitators noted he appeared to conceptualise himself as important in maintaining order within prison. It was evidence he was not merely conforming to the expectations of other prisoners, but rather, he was actively involved in perpetuating the status quo of violence in prison. Overall, he seemed to respect the rights of civilians to live free of crime and violence, but this right was not extended to prisoners or those who had chosen a life of crime.
[48] Exhibit EFN-43 of the Affidavit of Ms Nelson QC affirmed 22 December 2020 (FDN 9) at 212.
As to his influence within the prison, the report writers said:[49]
Throughout the VPP sessions, Mr Smith saw himself as polite and respectful to all people. Despite these claims, many prisoners had listed him as an enemy, with more prisoners continuing to list him as an enemy during the VPP. Facilitators queried him on why so many prisoners had done so. He stated he was a scapegoat for other prisoners, claiming prisoners who didn’t even know him listed him as an enemy to avoid going to B Division. He further added, if someone was intimidated by him, it was their problem not his. Facilitators noted group members seldom challenged him, and more commonly, other group members would change their opinions to be consistent with him. He offered that there was only one person in prison who challenged him. He had previously referred to this [prisoner] as the “toughest main in jail”. He acknowledged he held a position of authority within the prison and that he had a reputation as being threatening. Despite this, he denied engaging in any current aggressive behaviour and said people treated him with respect because he gives respect. Although facilitators did not directly witness him engage in interpersonal aggression, collateral information and observations from group sessions suggested some prisoners were intimidated by him. Facilitators suspected his strong and vocal endorsement of violence against prisoners if they breached the ‘con-code’ was one factor that contributed to his perception as intimidating.
…
… He acknowledged his position within the prison hierarchy made distancing himself from particular anti-social peers challenging. He stated he would be more prepared to distance himself from anti-social peers in prison if he knew when he was leaving prison. Facilitators speculated his anti-social friendships in prison were so entwined with his status, any attempt by him to distance himself would require him to surrender his status in prison. He did not appear prepared to reduce his influence within prison. He identified several strategies he could implement to assist with managing anti-social peers in the community. These included not allowing anyone in prison to have his phone number, have a blanket ban on contact with people involved in crime, and have his partner vet friends to ensure they are suitable. Despite these plans, he also recalled a few people he met in prison who he eventually wanted to have contact with post-release. He hoped he could be a positive role model for them upon their release from prison.
[49] Exhibit EFN-43 of the Affidavit of Ms Nelson QC affirmed 22 December 2020 (FDN 9) at 213-214.
On 24 June 2019, the Board received a letter of apology from the applicant, and other documents from the applicant’s solicitor, in support of his application for release on parole.[50]
[50] Exhibit YJAM 4 of the Affidavit of Ms McMahon affirmed 25 November 2020 (FDN 5).
On 18 July 2019, the Board, consisting of deputy presiding member, Mr Bourne, and members, Mr Edmonds and Ms MacDonald, interviewed the applicant (the ‘first interview’).[51] The applicant was represented by Mr Kimber SC at the interview. During that interview, the Board raised with the applicant several matters including: that the applicant was still in high security with no resocialisation;[52] his connection with ‘criminogenically minded persons’ inside and outside of prison;[53] and his involvement in the VPP.[54] The applicant was also questioned as to his views on the use of violence within the prison system,[55] his influence over other prisoners,[56] why he has 30 listed ‘enemies’ in prison,[57] and his alleged recognition as a standover man.[58]
[51] Exhibit EFN-50 of the Affidavit of Ms Nelson QC affirmed 22 December 2020 (FDN 9).
[52] Exhibit EFN-50 of the Affidavit of Ms Nelson QC affirmed 22 December 2020 (FDN 9) at 237-238.
[53] Exhibit EFN-50 of the Affidavit of Ms Nelson QC affirmed 22 December 2020 (FDN 9) at 237-238.
[54] Exhibit EFN-50 of the Affidavit of Ms Nelson QC affirmed 22 December 2020 (FDN 9) at 241.
[55] Exhibit EFN-50 of the Affidavit of Ms Nelson QC affirmed 22 December 2020 (FDN 9) at 242.
[56] Exhibit EFN-50 of the Affidavit of Ms Nelson QC affirmed 22 December 2020 (FDN 9) at 251.
[57] Exhibit EFN-50 of the Affidavit of Ms Nelson QC affirmed 22 December 2020 (FDN 9) at 253.
[58] Exhibit EFN-50 of the Affidavit of Ms Nelson QC affirmed 22 December 2020 (FDN 9) at 265.
On 18 July 2019, the Board resolved to defer a decision as to whether to release the applicant on parole pending a process of resocialisation.[59] The Board determined that the applicant required a step-down process from high security to lower security before being released into the community.[60] The Board also requested that Mr Balfour undertake a further psychological assessment of the applicant.[61]
[59] Exhibit EFN-51 of the Affidavit of Ms Nelson QC affirmed 22 December 2020 (FDN 9).
[60] Exhibit EFN-51 of the Affidavit of Ms Nelson QC affirmed 22 December 2020 (FDN 9).
[61] Exhibit EFN-51 of the Affidavit of Ms Nelson QC affirmed 22 December 2020 (FDN 9).
On 1 August 2019, the Board received further materials from the applicant’s solicitor in support of his application for parole.[62] Those materials duplicated most of the materials sent on 24 June 2019,[63] except for further written submissions.[64]
[62] Exhibit EFN-55 of the Affidavit of Ms Nelson QC affirmed 22 December 2020 (FDN 9).
[63] Affidavit of Ms Nelson QC affirmed 22 December 2020 (FDN 9) at [79].
[64] Exhibit YJAM 12 of the Affidavit of Ms McMahon affirmed 25 November 2020 (FDN 5).
On 5 August 2019, the Board resolved to defer to the SMU, RPB and other experts to determine an appropriate process of resocialisation for the applicant.[65]
[65] Exhibit EFN-56 of the Affidavit of Ms Nelson QC affirmed 22 December 2020 (FDN 9).
On 25 November 2019, the Board received a Forensic Psychological Report from Dr Dawson.[66] In that report, Dr Dawson noted that he conducted a personality assessment of the applicant using a ‘psychopathy checklist’. The applicant received a high score, which indicates a person who lacks empathy, is socially deviant, and antisocial.[67] He said the appellant’s score was above the cut-off score commonly used to distinguish ‘Psychopaths’ from ‘non-Psychopaths’.[68] Dr Dawson considered that the applicant’s engagement in the VPP had improved his insight into factors contributing to his previous offending and enhanced his willingness to challenge problem thoughts.[69] Dr Dawson expressed the view that whilst the applicant had made some early behavioural changes, he was yet to demonstrate consistent change over time.[70] Further, Dr Dawson considered that the applicant’s living plans upon release on parole were unrealistic.[71]
[66] Exhibit EFN-60 of the Affidavit of Ms Nelson QC affirmed 22 December 2020 (FDN 9).
[67] Exhibit EFN-60 of the Affidavit of Ms Nelson QC affirmed 22 December 2020 (FDN 9) at 298.
[68] Exhibit EFN-60 of the Affidavit of Ms Nelson QC affirmed 22 December 2020 (FDN 9) at 298.
[69] Exhibit EFN-60 of the Affidavit of Ms Nelson QC affirmed 22 December 2020 (FDN 9) at 299.
[70] Exhibit EFN-60 of the Affidavit of Ms Nelson QC affirmed 22 December 2020 (FDN 9) at 300.
[71] Exhibit EFN-60 of the Affidavit of Ms Nelson QC affirmed 22 December 2020 (FDN 9) at 301.
Dr Dawson assessed the applicant’s relative risk of recidivism using the Violence Risk Scale and concluded that the applicant is at a high risk of violent recidivism.[72]
[72] Exhibit EFN-60 of the Affidavit of Ms Nelson QC affirmed 22 December 2020 (FDN 9) at 301.
On 10 December 2019, the Board resolved to reinterview the applicant in relation to his post-release plans and risk of reoffending.[73]
[73] Exhibit EFN-62 of the Affidavit of Ms Nelson QC affirmed 22 December 2020 (FDN 9).
On 11 February 2020, the Board, consisting of the presiding member, Ms Nelson QC, and members, Mr Dodd and Dr Naso, again interviewed the applicant (the ‘second interview’). [74] The applicant was again represented by Mr Kimber SC. During that interview, the Board raised numerous topics with the applicant, including: the applicant’s resocialisation into the community;[75] his understanding of his risk factors’;[76] his current links with members of outlaw motorcycle criminal groups (‘OMCGs’);[77] and his prison behaviour including alleged standover tactics.[78] Ms Nelson QC also raised her concerns that the applicant did not fully appreciate the challenges he faced upon release, nor did he understand the parole system.[79]
[74] Exhibit EFN-65 of the Affidavit of Ms Nelson QC affirmed 22 December 2020 (FDN 9).
[75] Exhibit EFN-65 of the Affidavit of Ms Nelson QC affirmed 22 December 2020 (FDN 9) at 312.
[76] Exhibit EFN-65 of the Affidavit of Ms Nelson QC affirmed 22 December 2020 (FDN 9) at 313.
[77] Exhibit EFN-65 of the Affidavit of Ms Nelson QC affirmed 22 December 2020 (FDN 9) at 315.
[78] Exhibit EFN-65 of the Affidavit of Ms Nelson QC affirmed 22 December 2020 (FDN 9) at 319.
[79] Exhibit EFN-65 of the Affidavit of Ms Nelson QC affirmed 22 December 2020 (FDN 9) at 331.
The applicant’s counsel also made submissions on his behalf and emphasised the letters of support from Professor Buckskin, Ms Saunders, and the applicant’s partner.[80] As to the applicant’s connections with criminal associates, Mr Kimber SC submitted that since the last interview, the applicant had only had contact with family, his partner and those agencies providing him with assistance.[81] The applicant’s Counsel also stressed the positive influences the applicant has had on younger prisoners in assisting them to navigate the prison system in a prosocial way.[82]
[80] Exhibit EFN-65 of the Affidavit of Ms Nelson QC affirmed 22 December 2020 (FDN 9) at 333, 336.
[81] Exhibit EFN-65 of the Affidavit of Ms Nelson QC affirmed 22 December 2020 (FDN 9) at 334.
[82] Exhibit EFN-65 of the Affidavit of Ms Nelson QC affirmed 22 December 2020 (FDN 9) at 334.
On 12 February 2020, the Board deferred any decision as to the applicant’s release on parole for six months. The Board made a note to the Director of the SMU to ‘[p]lease advise of sentence plan, in particular what intervention can be provided with respect to resocialisation and insight into his risk factors’.[83]
[83] Exhibit EFN-66 of the Affidavit of Ms Nelson QC affirmed 22 December 2020 (FDN 9).
On 30 March 2020, the Board resolved to reinterview the applicant on 18 August 2020.[84]
[84] Exhibit EFN-72 of the Affidavit of Ms Nelson QC affirmed 22 December 2020 (FDN 9).
On 7 April 2020, the SMU provided the Board with a minute from the RPB dated 26 March 2020 as to a proposed individual intervention plan for the applicant.[85] The RPB agreed to provide the applicant with approximately six individual intervention sessions over a six-month period with a focus on improving the applicant’s insight into his risk factors and assisting the applicant with his resocialisation.
[85] Exhibit EFN-73 of the Affidavit of Ms Nelson QC affirmed 22 December 2020 (FDN 9); Exhibit EFN-74 of the Affidavit of Ms Nelson QC affirmed 22 December 2020 (FDN9).
The Board was also provided with a minute prepared by the Manager of Offender Development (‘OD’) and the Case Manager Coordinator at Port Augusta Prison as to the applicant’s post-release resocialisation plans, dated 3 April 2020.[86]
[86] Exhibit EFN-75 of the Affidavit of Ms Nelson QC affirmed 22 December 2020 (FDN 9).
On 19 August 2020, the Board received an Individual Treatment Summary minute prepared by Mr Jarrad (Acting Director of Offender Rehabilitation Services) and Dr Pharo (Acting Executive Director of Offender Development Directorate) dated 18 August 2020.[87] Between 20 April 2020 and 8 July 2020, the applicant participated in eight, one-hour telephone sessions with his former VPP facilitator. The report writers noted that the applicant engaged well, appeared more reflective, and was more forthcoming with information. The applicant also acknowledged more risk factors. The applicant conceded during the sessions that he had previously engaged in problematic behaviours under the guise of ‘helping’ others.[88] He acknowledged that his history of violence and influential nature within the prison had contributed to his slow progression through the system. The report writers noted that the applicant appeared to now understand that he was responsible for the degree of scrutiny he had received within the prison system.[89]
[87] Exhibit EFN-80 of the Affidavit of Ms Nelson QC affirmed 22 December 2020 (FDN 9).
[88] Exhibit EFN-80 of the Affidavit of Ms Nelson QC affirmed 22 December 2020 (FDN 9) at 374.
[89] Exhibit EFN-80 of the Affidavit of Ms Nelson QC affirmed 22 December 2020 (FDN 9) at 374.
The report writers referred to an incident on 21 May 2020 when the applicant was allegedly involved in trafficking contraband. The applicant denied the allegation but appeared to recognise that remaining in contact with criminal associates could easily lead to such allegations being made or the applicant being drawn into other peoples’ criminal behaviour.[90] The report writers noted that the applicant’s improved insight and behavioural change was positive but appeared to be relatively recent.[91]
[90] Exhibit EFN-80 of the Affidavit of Ms Nelson QC affirmed 22 December 2020 (FDN 9) at 374.
[91] Exhibit EFN-80 of the Affidavit of Ms Nelson QC affirmed 22 December 2020 (FDN 9) at 374.
The applicant also accepted that he had worked hard to achieve and maintain his position at the top of the prison hierarchy, but now recognised his efforts to maintain that position and influence was detrimental to his release on parole.[92]
[92] Exhibit EFN-80 of the Affidavit of Ms Nelson QC affirmed 22 December 2020 (FDN 9) at 374.
As to his association with OMCG members, the report writers considered that the applicant’s underlying desire for status and power will render him vulnerable to those negative influences upon release.[93] He will also face challenges in adjusting to living with a partner and young children and no longer receiving the preferential treatment he currently receives within the prison system.[94]
[93] Exhibit EFN-80 of the Affidavit of Ms Nelson QC affirmed 22 December 2020 (FDN 9) at 375.
[94] Exhibit EFN-80 of the Affidavit of Ms Nelson QC affirmed 22 December 2020 (FDN 9) at 375.
On 2 September 2020, the Board received an email from the SMU advising that the applicant had been separated ‘following his involvement in an incident in relation to contraband’ and that ‘he is due to be transferred to G Division at Yatala Labour Prison in the near future’.[95]
[95] Exhibit EFN-81 of the Affidavit of Ms Nelson QC affirmed 22 December 2020 (FDN 9).
The Board experienced delays in being able to organise a third interview with the applicant due to a combination of circumstances, including COVID-19.[96] On 7 October 2020, the applicant’s solicitor requested that a decision be made on ‘the material currently before the Board’.[97] By email dated 12 October 2020, the Board advised the applicant’s solicitor that they would consider the applicant’s application for release on parole on 20 October 2020, without a face-to-face interview.[98] The applicant’s solicitor confirmed that approach was suitable to the applicant.[99]
[96] Exhibit EFN-83 of the Affidavit of Ms Nelson QC affirmed 22 December 2020 (FDN 9).
[97] Exhibit YJAM11 of the Affidavit of Ms McMahon affirmed 25 November 2020 (FDN 5).
[98] Exhibit EFN-85 of the Affidavit of Ms Nelson QC affirmed 22 December 2020 (FDN 9).
[99] Exhibit EFN-85 of the Affidavit of Ms Nelson QC affirmed 22 December 2020 (FDN 9).
On 16 October 2020, the Board received a letter from the applicant’s solicitor with further written submissions in support of his application.[100]
[100] Exhibit YJAM 12 of the Affidavit of Ms McMahon affirmed 25 November 2020 (FDN 5).
On 20 October 2020, the Board refused the applicant’s application for release on parole.[101] The Board made that decision sitting as a division of the Board, constituted by presiding member, Ms Nelson QC, and members, Ms McLachlan and Dr Naso. To do so was considered necessary or desirable for the purpose of expediting the determination of the application.[102]
[101] Exhibit EFN-88 of the Affidavit of Ms Nelson QC affirmed 22 December 2020 (FDN 9).
[102] Affidavit of Ms Nelson QC affirmed 22 December 2020 (FDN 9) at [116].
On 22 October 2020, the Board wrote to the applicant’s solicitor advising of the decision.[103]
[103] Exhibit EFN-89 of the Affidavit of Ms Nelson QC affirmed 22 December 2020 (FDN 9).
Reasons for refusal
The Board’s written reasons for the refusal were provided to the applicant on 25 November 2020.[104]
[104] Exhibit EFN-91 of the Affidavit of Ms Nelson QC affirmed 22 December 2020 (FDN 9).

In its reasons, the Board outlined the applicant’s significant criminal history and the detail of the offending for which he is presently serving a sentence. The Board also referred to the applicant’s unsatisfactory conduct during the early years of his incarceration.
The Board noted that the applicant has a long history of allegations of intimidation within the prison system and that he has demonstrated a willingness and ability to engage in behaviours that he knows to be wrong.[105] The Board said:[106]
… Information from the Serious Offenders Committee is to the effect that Mr Smith is one of the highest monitored prisoners in the system because of the large-scale influence that he has as well as an involvement in antisocial activity and activities that pose a risk to the Correctional system. A reduction in his security setting is unlikely. The Serious Offenders Committee strongly opposes any release on parole.
[105] Exhibit EFN-91 of the Affidavit of Ms Nelson QC affirmed 22 December 2020 (FDN 9) at 420.
[106] Exhibit EFN-91 of the Affidavit of Ms Nelson QC affirmed 22 December 2020 (FDN 9) at 420.
As to the applicant’s remorse for the offending for which he was presently incarcerated, the Board said:[107]
Mr Smith has acknowledged on a number of occasions that he knew his offences were wrong and it has been reported that when discussing his offending, he has been very matter-of-fact. Whilst he expresses remorse, the manner in which he speaks of his offending is not compatible with genuine remorse.
[107] Exhibit EFN-91 of the Affidavit of Ms Nelson QC affirmed 22 December 2020 (FDN 9) at 421.
The Board referred to letters of support for the applicant provided by Mr Sansbury of the Aboriginal Sobriety Group, Professor Buckskin, his uncle, Ms Smith, the applicant’s partner, Amy Duke, the State Manager of White Line, and the Prison Chaplaincy Services.[108]
[108] Exhibit EFN-91 of the Affidavit of Ms Nelson QC affirmed 22 December 2020 (FDN 9) at 421.
As to the applicant’s participation in the VPP, the Board said:[109]
… His Post Treatment Report did not give the Board confidence that he was likely to comply with supervision, nor was he likely to resist reoffending. Nevertheless, he did demonstrate some attitude changes and early behavioural changes. He demonstrated some awareness that his behaviours were problematic, but those changes were relatively recent as reported and were not yet consistent overtime or demonstrated across relevant high-risk situations. Throughout treatment, he acknowledged his position within the prison hierarchy made distancing himself from particular antisocial peers challenging. He did not appear prepared to reduce his influence within prison.
Throughout the VPP sessions, he asserted that he was polite and respectful to all people. However, many prisoners had listed him as an enemy and when facilitators questioned him as to why that should be so, he said that he was a scapegoat for other prisoners claiming prisoners who didn’t even know him listed him as an enemy to avoid going to B Division. He further added that if someone was intimidated by him, it was their problem and not his. He acknowledged that he had a position of authority within the prison and that he had a reputation as being threatening.
He appears to have maintained contact with members of outlaw motorcycle gangs. Information was obtained from his Prisoner Telephone System Contacts, Mail and Visitor List which support that.
[109] Exhibit EFN-91 of the Affidavit of Ms Nelson QC affirmed 22 December 2020 (FDN 9) at 422.
The Board noted the lengthy written submissions of the applicant’s solicitor received on 11 July 2019, and stated that the Board had taken those submissions into account and had regard to them.[110] In its reasons, the Board also referred to the applicant’s second interview, with express reference to the applicant’s responses on the topic of his risk factors for reoffending.[111]
[110] Exhibit EFN-91 of the Affidavit of Ms Nelson QC affirmed 22 December 2020 (FDN 9) at 422.
[111] Exhibit EFN-91 of the Affidavit of Ms Nelson QC affirmed 22 December 2020 (FDN 9) at 423.
Further, the Board made express reference to the applicant having participated in eight, one-hour telephone sessions with his former VPP facilitator from 20 April to 8 July 2020.[112] The Board said:[113]
… At the beginning of the intervention, Mr Smith voiced concerns because he was dissatisfied with his VPP post treatment report. Nevertheless, he engaged during the fine [sic] conversations. During that intervention, Mr Smith was alleged to be involved in trafficking contraband with another prisoner and was moved from his unit. Mr Smith denied any involvement and ultimately the allegation was not proved and he returned back to his previous unit. Even though he was not found guilty, Mr Smith recognised the allegation reflected poorly on him and appeared to recognize that remaining in contact with criminal associates was a risk for him. Although he said he was attempting to distance himself from prison politics, staff reported that whilst at Port Augusta, he predominantly associated with high notoriety offenders associated with OMCGs. It was reported that Mr Smith’s underlying desire for status and power made him vulnerable to succumbing to association with OMCG members upon release. He described avoiding antisocial peers and having his partner vet his friends. Those strategies might work, but they do not address or mitigate the underlying attraction to antisocial peers, nor does it address the desire for power and status.
[112] Exhibit EFN-91 of the Affidavit of Ms Nelson QC affirmed 22 December 2020 (FDN 9) at 423.
[113] Exhibit EFN-91 of the Affidavit of Ms Nelson QC affirmed 22 December 2020 (FDN 9) at 423.
As to the applicant’s process of resocialisation, the Board considered that whilst the applicant had made progress, change had not been demonstrated over a period of time. The Board said:[114]
… There has been progression to a lower security location, but that is relatively recent. However, staff confirm that he adjusted without apparent difficulty to a low security environment. It is always a concern releasing a long serving prisoner without a re‑socialization process. The fact that he has moved from high security is encouraging, but he would still benefit from a longer period of resocialization. There are still challenges in his post release plan, including adjusting to living with a female partner and young children, a reduction in status and no longer receiving preferential treatment from his peers which he has enjoyed throughout his incarceration.
Whilst we acknowledge that Mr Smith has made progress, there is still work to be done, notably, any changes are recent and not yet consistent over time. Mr Smith has a number of factors which could cause him to relapse into criminal behaviour and he is not mindful of those other than “hanging around the wrong people.” Notwithstanding that assertion, he has maintained contact with members of outlaw motorcycle gangs, both within the prison and outside the prison. There are a number of positive factors, including his partner who is supportive and other members of the community who are prepared to support him. Nevertheless, the Parole Board does not think he is currently suitable for release.
If he can maintain good institutional behaviour and continue to work on his criminogenic factors to the point where his security rating reduces further and he is able to benefit from an appropriate period of resocialization, he would certainly put himself in a better position to be considered for release on parole.
[114] Exhibit EFN-91 of the Affidavit of Ms Nelson QC affirmed 22 December 2020 (FDN 9) at 423-424.
Finally, the Board noted that it would have been preferable to interview the applicant a third time, but it had proceeded on the basis of the applicant’s request that a decision be made on the material presently before the Board.[115]
[115] Exhibit EFN-91 of the Affidavit of Ms Nelson QC affirmed 22 December 2020 (FDN 9) at 424.
Legislative scheme
The operation of the Parole Board is governed by Part 6 of the Act.
Relevantly, s 60 provides:
60—Proceedings of the Board
(1)Subject to this section, the Board will sit as a full board.
(2)If the presiding member thinks it necessary or desirable for the purpose of expediting the determination of proceedings before the Board, the Board may sit in separate divisions.
(3)A division of the Board will be constituted as follows:
(a)the presiding member and two other members of the Board;
(b)the first deputy presiding member and two other members of the Board;
(c)the second deputy presiding member and two other members of the Board;
(d)another member of the Board nominated by the presiding member and 2 other members of the Board.
(4)Where the Board sits as a full board, the following provisions apply:
(a)—
(i)   the presiding member will preside; or
(ii)     if the presiding member is absent—the first deputy presiding member will preside; or
(iii)   if both the presiding member and the first deputy presiding member are absent—the second deputy presiding member will preside; or
(iv)    if none of the members mentioned in the preceding subparagraphs is present—a member chosen from those members present will preside; and
(b)five members constitute a quorum and the Board cannot proceed with the hearing or determination of any matter unless a quorum is present; and
(c)a question arising for decision by the Board will be decided by a majority of the votes cast by the members present; and
(d)each member present is entitled to one vote and, in the event of an equality of votes, the person presiding is entitled to a second or casting vote.
(5)Where the Board sits in separate divisions, the following provisions apply:
(a)the presiding member, the first or second deputy presiding member, or the member nominated under subsection (3)(d), will preside at proceedings before the division of which he or she is a member; and
(b)a division of the Board cannot proceed with the hearing or determination of any matter unless all members of the division are present; and
(c)a decision in which all the members of a division of the Board concur is a decision of the Board; and
(d)the divisions of the Board may sit concurrently for the purpose of hearing and determining separate proceedings.
(6)Where the members of a division of the Board are unable to concur in a decision in any proceedings before that division, the person presiding over that division must refer the proceedings to the Board sitting as a full board for fresh hearing and determination.
(7)Subject to this Act, the Board, or a division of the Board, may conduct its proceedings as it thinks fit.
As to a prisoner’s application for release on parole, section 67 relevantly provides:
67—Release on parole by application to Board
(1)This section applies to a prisoner if—
(a)section 66 does not apply to the prisoner; and
(b)a non-parole period has been fixed for the prisoner; and
(c)the prisoner is not serving a sentence of indeterminate duration.
(2)If this section applies to a prisoner—
(a)the prisoner; or
(b)the CE, or any employee of the Department authorised by the CE,
may apply in the prescribed manner to the Board for the prisoner's release on parole.
(3)An application cannot be made under subsection (1) more than six months before the expiration of the non-parole period fixed in respect of the prisoner's sentence.
(3a) The paramount consideration of the Board when determining an application under this section for the release of a prisoner on 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)the probable circumstances of the prisoner after release from prison or home detention.
(5)Subject to subsections (6) to (7b) (inclusive), the Board may, on an application under this section, order that a prisoner be released from prison on parole on a day specified in the order.
(6)…
(7)…
(7a) …
(7b) …
(8)The Board cannot specify a release date under this section that is earlier than the day on which the prisoner's non-parole period expires.
(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.
(10)The Board is not obliged to (but may, if in its opinion good reason exists for doing so) accept a further application by a prisoner for release on parole before the date notified by the Board under subsection (9).
(11)…
Ground 5 – Decision not made according to law
The applicant contends that the Board’s decision not to release the applicant on parole was not made according to law insofar as it was not made by a division of the Board constituted in accordance with s 60(5)(b) of the Act.
Whether that is so turns on the question of whether s 60(5)(b) permits differently constituted divisions of the Board to hear different stages of a single proceeding, and whether a particular division may ‘determine’ a matter which they have not ‘heard’.
The applicant submits that s 60(5) of the Act requires all three members of the division originally appointed to hear and determine the application to be present and concur in any determination. Accordingly, the applicant contends that s 60(5) does not permit the ‘swapping’ of Board members in and out of a division.
It is common ground that the division of the Board that determined the applicant’s application for parole on 20 October 2020 was constituted by three members in accordance with s 60(3) of the Act. There is no factual dispute that the divisions of the Board that interviewed the applicant on 18 July 2019 and 11 February 2020 were not comprised of the same three members as the division that ultimately determined the application.
The applicant contends that in those circumstances, the determination by the division of the Board on 20 October 2020 that the applicant be refused release on parole, was not reached in accordance with law.
I do not agree with the applicant’s contention as to the proper construction of s 60(5)(b) of the Act.
It is necessary to begin with the context within in which s 60(5)(b) appears. Section 60 is entitled ‘Proceedings of the Board’ and sets out a range of matters that qualify the general proposition in s 60(7), that the Board ‘may conduct its proceedings as it thinks fit’.
Section 60(2) permits the Board to sit in separate divisions if the presiding member ‘thinks it necessary or desirable for the purpose of expediting the determination of proceedings before the Board’. I agree with the respondent’s submission that the authorisation to sit as a division of the Board is a ‘carve-out’ from the general requirement in s 60(1), which provides that the Board is to sit as a full board.
Where the Board sits as a full board, the provisions in s 60(4) apply. Where s 60(2) is engaged, and the Board sits as a division, the provisions in s 60(5) apply. The Board either sits as a full board or as a division of the board.
When the Board sits as a division, all three members must concur on a decision for it to constitute a valid decision of the Board. [116] This indicates why all three members must be present.
[116] Correctional Services Act s 60(5)(c).
There is no explicit or implicit mandate in s 60(5)(b) of the Act that the same three members must hear and determine all matters relating to, or components of, a proceeding or application before the Board.
Rather, through its construction, s 60(5)(b) contemplates that different divisions of the Board may hear or determine different parts of the same application for parole. The use of the disjunctive, ‘hearing or determination’, implicitly recognises that the hearing and determination of a matter is not necessarily a single composite function incapable of being separated into different parts. It indicates that a division may hear a matter without determining it. I agree with the respondent’s submission that Parliament’s choice to deploy the disjunctive, rather than the conjunctive, in s 60(5)(b) discloses an intention to permit parts of the application to be heard by a division differently constituted from the division that ultimately determines the application.
The applicant submits that the use of the phrase ‘hearing and determination’ in both ss 60(5)(d) and 60(6) lends support to his construction of the legislative provisions. However, in s 60(5)(d), the conjunctive is used in circumstances where separate proceedings are contemplated as being heard and determined concurrently. That is, it is envisaged that a hearing and determination may take place where multiple proceedings are conducted concurrently.
As to section 60(6) of the Act, it is a deadlock resolution mechanism. When a matter is referred to the Board sitting as a full Board under s 60(6) it will be necessary for the Board to convene to both hear and determine the matter. When s 60(6) is engaged as a deadlock resolution mechanism, the full Board’s task is not to review or assess the division’s attempted determination or decision, but to determine the matter for itself, having regard to the materials which were before the division. In those circumstances, by necessity, the full Board will need to hear and determine the matter. The Board will not resolve the deadlock, precipitating the referral under s 60(6), if the full Board hears the matter but does not determine it in some way.
I agree with the respondent’s submission that the use of the conjunctive in ss 60(5)(d) and 60(6) does not support the applicant’s construction of s 60(5)(b). Rather, its use is consistent with the flexibility contemplated by the use of the disjunctive in ss 60(4)(b) and 60(5)(b).
Further, expediting proceedings before the Board is explicitly a concern of the Act and specifically s 60(2). The capacity of the Board to sit in separate divisions is concerned with ‘the purpose of expediting the determination of proceedings before the Board’.[117] The legislative scheme contemplates that members of the Board may sit on the Board in a part-time capacity with other employment.[118] Further, as shown by these proceedings, the progression of applications for parole can properly extend over significant time periods. In those circumstances, a requirement for the same division to convene on every occasion an application is heard or considered would greatly undermine the explicit purpose of expediting the determination of proceedings. Such a construction would substantially frustrate the very benefits sought to be conferred by the Act in permitting the Board to sit as a division in the first place.
[117] Correctional Services Act 1982 s 60(2).
[118] Correctional Services Act 1982 s 55(3).

In this matter, the division of the Board that determined to refuse the applicant’s application for parole on 20 October 2020 comprised the presiding Ms Nelson QC, and members, Ms McLachlan and Dr Naso. All three members of the division were present when they determined the application and concurred in the decision.
On 18 July 2019 and 11 February 2020, differently constituted divisions of the Board convened to interview the applicant. On each of those occasions the hearing proceeded with a properly constituted three-member division.
The transcript of the two earlier interviews conducted by other divisions of the Board were before the division that later determined the application and regard was expressly had to it.[119]
[119] Exhibit EFN-50 of the Affidavit of Ms Nelson QC affirmed 22 December 2020 (FDN 9); Exhibit EFN-65 of the Affidavit of Ms Nelson QC affirmed 22 December 2020 (FDN 9); Exhibit EFN-91 of the Affidavit of Ms Nelson QC affirmed 22 December 2020 (FDN 9) at 423.
I am satisfied there has been no contravention of s 60(5)(b) of the Act. That section does not prohibit a division that is constituted differently from a division that has previously heard or considered an application from determining the same application.
Accordingly, it has not been established that the Board’s determination to refuse the applicant’s application for release on parole was not reached in accordance with law.
Ground 1(c) – Procedural fairness
It is common ground that the Board is required to accord the applicant procedural fairness. The extent of that obligation depends upon the statutory framework, including the subject matter with which it deals, and the facts and circumstances of the case. Ultimately, the question is ‘what is required in order to ensure that the decision is made fairly in the circumstances having regard to the legal framework within which the decision is to be made’[120] and whether the procedures adopted in the particular case have resulted in a ‘practical injustice’.[121]
[120] Minister for Immigration and Border Protection v WZARH (2015) 256 CLR 326 at [30] per Kiefel, Bell and Keane JJ.
[121] Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam (2003) 214 CLR 1 at [37] per Gleeson CJ.
A person affected by a decision is entitled to be made aware of, and be given the opportunity to address, the critical factors on which the decision is likely to turn, as well as any information adverse to the person which is credible, relevant and significant to the decision to be made.[122]
[122] Kioa v West (1985) 159 CLR 550 at 587 per Mason J.
The person must also be put on notice of any adverse conclusion which has been arrived at which would not obviously be open on the known material. However, it is not necessary to disclose the decision-maker’s doubts or subjective appraisals for comment before making the decision.[123]
[123] Minister for Immigration and Citizenship v SZGUR (2011) 241 CLR 594 at [9] per French CJ and Keifel J.
The applicant contends that the following two conclusions of fact, relied upon by the Board in its decision to refuse the applicant’s release on parole, were not put to him for a response during either interview or at any other time: first, that the applicant did not exhibit genuine remorse in discussing his offending; and second, that the applicant was not prepared to reduce his influence within the prison system. The applicant refers to the Board’s reasons for refusal and the statements that ‘[w]hilst he expresses remorse, the manner in which he speaks of his offending is not compatible with genuine remorse’, and ‘[h]e did not appear prepared to reduce his influence within prison’. [124]
[124] Exhibit EFN-91 of the Affidavit of Ms Nelson QC affirmed 22 December 2020 (FDN 9) at 421, 422.
The applicant submits that both matters were relevant to the Board’s decision to refuse the applicant’s release on parole given the Board expressly referred to each matter in its reasons for refusal.
As to the applicant’s lack of genuine remorse, the applicant submits that there was material before the Board which militated against that proposition. In a Parole Report dated 11 October 2018, it was noted that the applicant would at times discuss his behaviour and offending in a matter-of-fact way, but Ms Dobson did not perceive the applicant as exhibiting a lack of remorse.[125] Rather, she considered that it was significant that the applicant did not overly rely on any specific circumstance to justify his behaviour.[126]
[125] Exhibit EFN-28 of the Affidavit of Ms Nelson QC affirmed 22 December 2020 (FDN 9) at 151.
[126] Exhibit EFN-28 of the Affidavit of Ms Nelson QC affirmed 22 December 2020 (FDN 9) at 151.
As to the Board’s conclusion that the applicant was not prepared to reduce his influence within the prison system, the applicant refers to the Individual Treatment Summary dated 18 August 2020, in which the authors note the applicant’s expressed willingness to reduce his influence within the prison and the applicant’s recognition that to do so was necessary.[127]
[127] Exhibit EFN-50 of the Affidavit of Ms Nelson QC affirmed 22 December 2020 (FDN 9).
The applicant contends that by denying him an opportunity to respond to the propositions that he lacked genuine remorse and was not prepared to reduce his influence within the prison system, he was denied procedural fairness.
I do not accept that contention.
First, as to the issue of his remorse, the applicant was on notice that this was a matter to which the Board would have regard, and he was provided an opportunity to make submissions to the Board on that issue. The applicant’s genuine remorse was in turn relevant to the mandated consideration of the likelihood of the applicant complying with his parole conditions.[128]
[128] Correctional Services Act 1982 s 67(4)(b).
Secondly, the Board received written submissions from the applicant on the topic of remorse. In his application for parole, the applicant said that he was ‘ashamed’, ‘truly remorseful’, and ‘truly sorry’ for his crimes.[129] In written submissions, the applicant acknowledged that his crimes were serious and had caused great harm to the victims.[130] In a letter to the victims, the applicant said that he had the ‘deepest remorse and shame’, took ‘full responsibility’, and had gained ‘great insight’ into the consequences of his actions.[131] Professor Buckskin, in his letter of support said that the applicant had expressed remorse for his unlawful conduct and demonstrated insight into the impact of his unlawful behaviour on the victims.[132]
[129] Exhibit EFN-27 of the Affidavit of Ms Nelson QC affirmed 22 December 2020 (FDN 9) at 127.
[130] Exhibit YJAM 4 of the Affidavit of Ms McMahon affirmed 25 November 2020 (FDN 5) at 70, 73; Exhibit YJAM 12 of the Affidavit of Ms McMahon affirmed 25 November 2020 (FDN 5) at 120.
[131] Exhibit YJAM 4 of the Affidavit of Ms McMahon affirmed 25 November 2020 (FDN 5) at 91.
[132] Exhibit YJAM 4 of the Affidavit of Ms McMahon affirmed 25 November 2020 (FDN 5) at 87.
Further, during the first interview, the Board asked the applicant about his involvement in the VPP and his current views as to his offending. The applicant’s responses referred to his remorse for the offending and the positive changes in his character and understanding of his offending.[133]
[133] Exhibit EFN-50 of the Affidavit of Ms Nelson QC affirmed 22 December 2020 (FDN 9) at 241-242, 250-253, 270-271.
A consideration of all the materials reveal that the applicant was on notice that the Board would closely examine his remorse. The applicant made numerous written and oral submissions on the topic. He also provided letters of support to the Board which also referred to this topic.
The Board was not bound to accept the applicant’s submissions that his remorse was genuine, nor was the Board required to disclose its ‘impressions’ or ‘opinions, doubts or subjective appraisals’ of the applicant’s submissions as to remorse.[134] It was open for the Board to reach its own conclusion as to the genuineness of the applicant’s remorse. Bearing in mind the applicant’s sustained and violent criminal history, the fact that some of his serious offences were committed whilst he was subject to a suspended sentence bond and unlawfully at large, and the other materials before the Board as to the applicant’s continued antisocial behaviour in custody and association with criminals outside of prison, it was open for the Board to treat the applicant’s expressions of remorse with some caution, and to ultimately reject that remorse as genuine.
[134] Minister for Immigration and Citizenship v SZGUR (2011) 241 CLR 594 at [9] per French CJ and Keifel J.
As to the question of the nature and degree of the applicant’s influence within the prison system, the applicant was also on notice that this was a matter to which the Board would have regard. The applicant made written submissions to the Board in which he accepted that he had a senior standing in the prison, albeit because of the length of his incarceration.[135] The Board also received letters of support which referred to the applicant’s more positive areas of service whilst in prison and the positive influence he had on other prisoners.[136]
[135] Exhibit YJAM 4 of the Affidavit of Ms McMahon affirmed 25 November 2020 (FDN 5) at 72.
[136] Exhibit YJAM 4 of the Affidavit of Ms McMahon affirmed 25 November 2020 (FDN 5) at 76, 79-80, 84-87, 88-89.
In the applicant’s first interview, he was questioned by the Board as to his influence on other prisoners and the nature of that influence. The applicant was asked about the report from the VPP facilitators which said that he strongly endorsed violence in prison to control other prisoners.[137] He denied condoning violence on others, but said that he accepted violence against himself if he broke prison rules.[138] The applicant was also questioned about being entitled to special treatment in prison and he agreed, ‘There is a bit of entitlement there’.[139] The applicant was asked about contraband and gangs;[140] having 30 listed ‘enemies’ in prison;[141] being a standover man and arranging for prisoners to be assaulted as a favour for other prisoners;[142] and about his role within the prison system.[143] The applicant agreed he had influence but said that he did not use it in a negative way.[144]
[137] Exhibit EFN-43 of the Affidavit of Ms Nelson QC affirmed 22 December 2020 (FDN 9) at 211.
[138] Exhibit EFN-50 of the Affidavit of Ms Nelson QC affirmed 22 December 2020 (FDN 9) at 243.
[139] Exhibit EFN-50 of the Affidavit of Ms Nelson QC affirmed 22 December 2020 (FDN 9) at 244.
[140] Exhibit EFN-50 of the Affidavit of Ms Nelson QC affirmed 22 December 2020 (FDN 9) at 252-253.
[141] Exhibit EFN-50 of the Affidavit of Ms Nelson QC affirmed 22 December 2020 (FDN 9) at 253.
[142] Exhibit EFN-50 of the Affidavit of Ms Nelson QC affirmed 22 December 2020 (FDN 9) at 265.
[143] Exhibit EFN-50 of the Affidavit of Ms Nelson QC affirmed 22 December 2020 (FDN 9) at 265-266.
[144] Exhibit EFN-50 of the Affidavit of Ms Nelson QC affirmed 22 December 2020 (FDN 9) at 266.
The Board received further written submissions from the applicant dated 16 October 2020, in response to what he perceived as criticism of him in the first interview about his ‘senior’ role within the prison. [145] Those submissions directly addressed the topic of the applicant’s influence within prison.
[145] Exhibit YJAM 12 of the Affidavit of Ms McMahon affirmed 25 November 2020 (FDN 5).
In the second interview, the applicant again denied employing standover tactics in prison, a position which was reiterated at some length by his counsel in oral submissions.[146]
[146] Exhibit EFN-65 of the Affidavit of Ms Nelson QC affirmed 22 December 2020 (FDN 9) at 319, 335.
It can be seen by my summary of the background material, that the topic of the applicant’s influence within prison was an important consideration for the facilitators of the VPP and for issues relating to his resocialisation. The issue was raised by the Board with the applicant in both interviews. The applicant made both oral and written submissions on the topic and provided letters of support from others as to the positive aspects of that influence.
There was no obligation on the Board to advise the applicant as to any adverse impressions it may form from his submissions as to his influence within the prison, the nature of that influence, and his preparedness to reduce that influence. The unfavourable impressions the Board ultimately formed on the applicant’s lack of preparedness to reduce his negative influence upon other prisoners was open on the material before the Board, notwithstanding the applicant’s submissions to the contrary.
I am satisfied that the applicant was aware of, and given the opportunity to respond to, the question of his remorse for his offending and his influence within the prison system. I am also satisfied that the Board’s adverse statements on those topics were reasonably open to it.
Accordingly, I am satisfied there was no procedural unfairness to the applicant.
Ground 2 – Considering irrelevant matters
The applicant contends that the Board had regard to two legally irrelevant matters in determining the application: first, that a number of prisoners listed the applicant as an ‘enemy’; and second, that the applicant has a reputation within the prison system as being threatening.
For those considerations to invalidate the decision, the applicant must show that the Board was precluded from taking those matters into account.[147]
[147] Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 at 40 per Mason J.
The Act contemplates that the Board has a broad discretion in identifying the matters relevant to the determination of the application. It is to do so in the context of a statutory mandate to give paramountcy to the safety of the community.[148] Under s 67(4) of the Act, the considerations which the Board must take into account include the likelihood of the prisoner complying with conditions of parole, the behaviour of the prisoner while in prison, and any other matters that the Board thinks are relevant. I am satisfied that within this statutory context, both considerations said to be irrelevant were matters to which the Board could properly have regard.
[148] Correctional Services Act 1982 s 67(3a).
As to the first matter, namely that numerous prisoners listed the applicant as an ‘enemy’, the Board only came to consider this topic in the context of assessing the applicant’s assertion that during his VPP sessions he was polite and respectful to all people, and in recounting the applicant’s response to VPP facilitators that ‘if someone was intimidated by him, it was their problem not his’ when asked why so many prisoners had listed him as an ‘enemy’.[149]
[149] Exhibit EFN-43 of the Affidavit of Ms Nelson QC affirmed 22 December 2020 (FDN 9) at 213.
In this way, the Board’s reference to the fact numerous prisoners listed the applicant as an ‘enemy’ was primarily contextual when recounting and considering comments made by the applicant. The applicant’s expressed attitude, reflected in his response, was relevant to the question of whether the applicant took responsibility for his conduct and was likely to comply with any conditions of parole.
Further, the fact the applicant was named by numerous persons as an ‘enemy’ was a matter in and of itself which could have had some bearing on the Board’s mandated consideration of his behaviour in prison.[150] As a matter of logic, a well-behaved prisoner is less likely to be nominated as an enemy, even accepting the applicant’s explanation that there were other reasons, apart from his behaviour, for prisoners to nominate him as such.
[150] Correctional Services Act 1982 s 67(4)(d).
As to the Board’s reference to the applicant having a ‘threatening reputation’, the applicant acknowledged that he did have a reputation as threatening.[151] The Board appeared to take the view that the applicant’s reputation as threatening was acquired through his own behaviour in prison. It was open to the Board to take that view on the basis of the materials before it, including the VPP Post-Treatment Report, which referred to the applicant’s endorsement of violence against prisoners if they breached the ‘con-code’ and the facilitators’ view that he was actively involved in perpetuating the status quo of violence in prison.[152] As such, the applicant did not acquire a reputation as threatening in a vacuum. The underlying circumstances in which he had forged such a reputation provided a solid factual foundation for it.
[151] Exhibit EFN-43 of the Affidavit of Ms Nelson QC affirmed 22 December 2020 (FDN 9) at 213.
[152] Exhibit EFN-50 of the Affidavit of Ms Nelson QC affirmed 22 December 2020 (FDN 9) at 212-213.
The applicant’s reputation amongst other prisoners as threatening, and the circumstances or context in which he acquired it, was directly relevant to the Board’s mandated consideration of the applicant’s behaviour whilst in prison and the likelihood of him complying with parole.
Accordingly, I am satisfied that the Board did not have regard to irrelevant considerations.
Ground 3 – Failure to consider relevant matters
The applicant complains that the Board did not have regard to three relevant matters: first, the applicant’s actions in ceasing to have contact with people with criminal backgrounds outside the prison system; second, the applicant’s use of his leadership position within the prison for prosocial purposes; and third, the applicant’s resocialisation gains and development of insight in 1:1 therapy.
As to the first matter, in both interviews the applicant spoke of his efforts to distance himself from former criminal associates outside of prison. During the applicant’s second interview, his counsel submitted that since the last interview the applicant had only had contact with family and agencies upon whom he relied for assistance. The Board was ultimately not satisfied that the applicant had genuinely sought to cease contact with criminal associates outside of the prison system.
That conclusion was reasonably open to the Board on the materials before it. In particular, in the Individual Treatment Summary dated 19 August 2020, the report writers stated that whilst at Port Augusta prison in relatively recent times, he had predominately associated with high notoriety offenders and prisoners associated with OMCGs. The report writers said that the applicant candidly described his previous attraction to OMCG membership. The applicant described his ‘association’ with the Comancheros and Finks OMCG provided status and feelings of power both of which were highly appealing to him. The report writers said, ‘It was opined, Mr Smith’s underlying desire for status and power likely made him vulnerable to succumbing to association with OMCG members upon release. This is an area that will require close monitoring’.[153] In those circumstances, it was open to the Board to reject the applicant’s assertion that he had ceased contact with criminal associates outside the prison system.
[153] Exhibit EFN-80 of the Affidavit of Ms Nelson QC affirmed 22 December 2020 (FDN 9) at 375.
Having rejected that assertion, the Board made no error in not having regard to those matters.
As to the second matter, the applicant submits that the Board did not consider material evidencing the applicant’s use of his status within the prison for prosocial purposes, which was a counterpoint to the argument that the applicant was influential and threatening in the prison environment. That material included written submissions from the applicant’s solicitor as to his educational achievements whilst in custody, his completion of prosocial programs, and his explanation for his poor behaviour in custody earlier in his sentence.[154]
[154] Exhibit YJAM 4 of the Affidavit of Ms McMahon affirmed 25 November 2020 (FDN 5) at 374.

The applicant’s assertions were also supported by letters of support from Mr Sansbury, Professor Buckskin, Ms Duke and the Prison Chaplaincy Services, each of whom referred to the applicant’s use of leadership and influence within the prison system for prosocial reasons.[155] The applicant also raised his assertion of having a prosocial influence within the prison with the Board in written submissions and during each of the interviews.[156]
[155] Exhibit YJAM 4 of the Affidavit of Ms McMahon affirmed 25 November 2020 (FDN 5).
[156] Exhibit YJAM 4 of the Affidavit of Ms McMahon affirmed 25 November 2020 (FDN 5); Exhibit EFN-50 of the Affidavit of Ms Nelson QC affirmed 22 December 2020 (FDN 9) at 240; Exhibit EFN-65 of the Affidavit of Ms Nelson QC affirmed 22 December 2020 (FDN 9) at 335.
The Board’s reasons for refusal expressly refer to the letters of support which discuss the applicant’s use of his leadership within the prison for prosocial purposes. The Board also refers to the applicant’s written submissions dated 11 July 2019 and his interviews, wherein he advanced this submission.[157] Given the Board’s express reference to the materials containing this assertion, I am satisfied that the Board considered the submission that the applicant used his leadership position for good within the prison.
[157] Exhibit EFN-91 of the Affidavit of Ms Nelson QC affirmed 22 December 2020 (FDN 9) at 422.
However, it was open for the Board to attach limited weight to the assertion, given there was also evidence before the Board that the applicant had used his leadership within the prison to conduct criminal activities. The applicant also conceded that some of his antisocial behaviours in prison had previously been ‘under the guise of “helping” others, when in reality he was doing so for his own gain’.[158]
[158] Exhibit EFN-80 of the Affidavit of Ms Nelson QC affirmed 22 December 2020 (FDN 9) at 374.
As to the third matter, the applicant participated in eight telephone sessions with a former facilitator of the VPP between April and July 2020. The applicant submits that during those sessions he demonstrated improvement in his insight and thinking which rendered some observations in the original VPP Post-Treatment Report inaccurate or incomplete. Further, he asserted that he demonstrated a preparedness to significantly reduce his association with criminals and an awareness of the need to reduce his position of influence within the prison.
The applicant contends that it was necessary for the Board to consider this up-to-date information and that the Board failed to have regard to the relevant matter of the applicant’s gains in resocialisation and insight acquired during the 1:1 therapy.
The SMU provided an Individual Treatment Summary in respect of the applicant’s eight sessions of individual treatment to the Board.[159] In its reasons for refusal, the Board made express reference to the Individual Treatment Summary and the applicant’s recent efforts and changes identified within it.[160] The Board noted the applicant’s recent movement from a high security setting to a lower setting, but said that he would still benefit from a longer period of incarceration given the following factors: the length of time the applicant has spent in custody; that the applicant appeared to recognise that remaining in contact with criminal associates was a risk for him; and that the applicant adjusted without apparent difficulty to a low security environment.
[159] Exhibit EFN-80 of the Affidavit of Ms Nelson QC affirmed 22 December 2020 (FDN 9).
[160] Exhibit EFN-91 of the Affidavit of Ms Nelson QC affirmed 22 December 2020 (FDN 9) at 423.
Immediately following the Board’s discussion of the improvement in the applicant’s insight, it noted that ‘[w]hilst we acknowledge that Mr Smith has made progress, there is still work to be done, notably, any changes are recent and not yet consistent over time’.[161] In reaching that conclusion, the Board obviously had regard to the applicant’s gains during 1:1 therapy but was guarded as to the extent of that progress.
[161] Exhibit EFN-91 of the Affidavit of Ms Nelson QC affirmed 22 December 2020 (FDN 9) at 423.
It was open to the Board to form that view given the applicant’s extensive and violent criminal history, entrenched institutionalisation, and antisocial behaviours whilst in prison. The positive changes to his behaviour and attitude were also very recent.
I am satisfied the Board has not failed to take any relevant matters into account that would constitute legal error.
Ground 4 – Unreasonableness
The applicant contends that the Board’s decision to refuse the applicant’s application for release on parole was unreasonable. This ground is advanced only as a general submission, the particulars of which are found in the challenges to the Board’s reasoning and conclusions made in grounds two and three. I have rejected those challenges for the reasons explained earlier.
In determining whether a decision of the Board to refuse a prisoner’s release on parole is unreasonable, the Court is exercising a supervisory jurisdiction. The Court is not reviewing the merits of the decision. Nor may the Court substitute its own view as to how the decision ought to have been made or exercised.[162] The Board has a broad discretion whether to release a prisoner on parole, which is to be exercised by reference to the considerations mandated by ss 67(3a) and (4) of the Act.
[162] Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 at [66] per Hayne, Kiefel and Bell JJ.
In Agius v The Parole Board of South Australia, Doyle J said:[163]
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.
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.
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. 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.
(footnotes omitted)
[163] [2020] SASC 225 at [47]-[49].
For this ground of review to succeed, the applicant is required to establish that no reasonable person could have refused the applicant parole based on the material before the Board.
I am satisfied that the Board was reasonably entitled to conclude that it was appropriate not to release the applicant on parole based on the material before it. That material supported the Board’s findings that: the applicant is incarcerated for very serious violent offending and has a history of violent offending as a juvenile; the applicant lacks insight into the full extent of his risk factors for reoffending; and the applicant’s behaviour in prison has been poor. The applicant has been assessed as having a high degree of traits associated with psychopathy.[164] There are also challenges for the applicant in implementing his post-release plan, including that he proposes to live in a household with a female partner and three young children, that he will suffer a reduction in status and preferential treatment of the kind to which he has become accustomed, and that his plans for the future may be unrealistic.
[164] Exhibit EFN-60 of the Affidavit of Ms Nelson QC affirmed 22 December 2020 (FDN 9).
Whilst it is relevant that the applicant has recently progressed to a lower security location and that he has demonstrated some insight into his previously antisocial behaviour, it was open for the Board to place less weight on those changes given that the applicant has not had the benefit of a longer period of resocialisation. Nor has the applicant’s behavioural and attitudinal changes been displayed over a significant period. Notwithstanding those more positive recent developments, and bearing in mind the paramountcy to be accorded to the safety of the community and the other mandated considerations pursuant to s 67(4) of the Act, I am satisfied that the Board’s ultimate decision not to release the applicant on parole was reasonably open on the material before it.
Accordingly, I am not satisfied that the applicant has established that the decision to refuse the applicant’s parole was unreasonable.
Conclusion
I dismiss the application for judicial review.
I will hear the parties as to costs.

[2021] SASC 105

2 September 2021