Abbott v Queensland Parole Board  QSC 22 (24 February 2016)
The Supreme Court of Queensland has set aside a decision to refuse parole to one of Australia’s most high-profile ‘high security’ prisoners, highlighting that any refusal of parole because of a prisoner’s custodial misconduct must be closely supported by evidence, rather than inferences to that effect.
In an application for judicial review, Justice Dalton of the Supreme Court of Queensland set aside the decision of the Queensland Parole Board to refuse to grant parole to high security prisoner Brenden Abbott. In so doing, Justice Dalton criticised the Board for the disconnect between its reasoning and the evidence laid before it by Mr Abbott and Queensland Correctional Services. The Board had had improper regard to the classification of the prisoner as “high security” to infer custodial misbehaviour – without acknowledging, firstly, that there was no rational link between the two considerations, and secondly, the prisoner’s long history of good prison behaviour.
Brenden Abbott, one of Australia’s most high-profile prison escapees, lodged an application to the Queensland Parole Board (“Board”) in June 2014 seeking parole. At the time, Abbott was serving a series of sentences in Queensland, totalling 25 years, for a number of armed bank robberies and for escaping a Brisbane prison in 1997. Abbott was due to be released by Queensland authorities in 2020, but is also wanted by Western Australian authorities in connection to various other charges, including escaping custody in Western Australia.
The application in question, made in June 2014, was Abbott’s fourth application for parole. In its report to the Board, Queensland Correctional Services (“QCS”) recommended Abbott be released on parole. In previous reports it had recommended that parole be refused.
After a series of preliminary decisions, the Board decided to refuse parole in July 2015. In doing so, the Board noted Abbott’s extensive criminal history, including armed robbery and escape from custody, and expressed the view that Abbott remained unable to control his behaviour and comply with directions, such that Abbott may not comply with the terms of a parole order. The Board also noted that Abbott had incurred seven major custodial breaches prior to 2005 and that, despite the fact that his behaviour in prison had significantly improved since 2005, this improvement was outweighed by his earlier misconduct.
Critically, the Board also relied on Abbott’s status as a “high security” prisoner, as classified by QCS, and on the decision by QCS to accommodate him within a secure area of the prison. The Board formed the view that QCS management had “believed it necessary to maintain [Abbott’s] high security classification and to continue to accommodate [him] in the very secure areas” of the prison. From this premise, the Board inferred that QCS management believed that such measures were necessary to prevent Abbott from escaping again. The Board also inferred that intense levels of supervision and guidance would be required if Abbott were to be released into the community on parole.
These inferences were the subject of Abbott’s application for judicial review of the Board’s decision.
Abbott led evidence (which the Court accepted) to show that his continued classification as a “high security” prisoner was not a consequence of his misconduct whilst in prison and was not “necessary” to prevent escape, as suggested. Instead, that classification resulted from the application of a strict QCS policy. Accordingly, it was virtually impossible for Abbott to be classified as anything other than “high security”, irrespective of his actual behaviour as an inmate and irrespective of the fact that he had not incurred any custodial breach for over 10 years at the time of the application.
This classification therefore resulted from an arbitrary application of policy, rather than based on any real consideration of Abbott’s circumstances. In his submissions to the Board, Abbott expressly alerted the Board to that arbitrary nature. However, the Board failed to consider that submission or the arbitrary nature of the policy. Accordingly, the failure of the Queensland Parole Board to take this arbitrariness into account was in error. In this respect, the Court applied and affirmed the 2010 decision of Justice McMurdo in McGrane v Queensland State Parole Board.
Indeed the Board went further than failing to recognise that there was no correlation between Abbott’s “high security” classification and any genuine consideration of Abbott’s circumstances. Rather, the Board had inferred from that “high security” classification itself that the classification did result from actual consideration of his behaviour or anticipated behaviour – that is, that QCS management had formed the view that Abbott posed a danger and had then classified him accordingly, warranting a conclusion that Abbott would also pose a danger to the community and thus the rejection of his parole application.
In fact, there was no evidence before the Board to support such an inference. At no time had QCS explained the classification as a result of such conduct. The QCS report had highlighted that Abbott’s recent custodial behaviour had been exemplary for a period of ten years.
Accordingly, the Court formed the view that the Board’s decision was not only erroneous (in that it failed to consider a relevant consideration), but the decision was close to Wednesbury irrationality, due to the irreconcilability of the Board’s conclusion with the evidence supporting it.
It should seem trite to say that the decisions of a parole board should be closely grounded in the evidence before it. Nevertheless, Justice Dalton’s decision provides a useful reminder of the risk of “particularly egregious” errors in parole decisions, particularly in the case of high profile, high security prisoners. The facts behind this particular case clearly illustrate the temptation to infer that a prisoner’s continued classification as a “high security” prisoner, and his continued accommodation in the most secure areas of a prison, reflect the behaviour or anticipated behaviour of the prisoner himself - rather than resulting merely from a strict application of policy. In this case, the Court concluded that this classification may not be deliberately misread by the Board, and that the prisoner’s long history of exemplary prison behaviour and rehabilitation could not be disregarded.
At the time of writing, it is expected that Mr Abbott will be released by QCS within the next few weeks. He is expected to be detained by Western Australian authorities immediately upon his release in relation to other charges, including in relation to escaping custody in WA.
The full text of the decision can be found here.
Rebecca Williams is a Solicitor at King & Wood Mallesons.