Barrow v The Chief Executive, Department of Corrective Services [2002] QSC 168

[1] The applicant, Mr Barrow, seeks review of the decision of the delegate of the respondent Chief Executive of the Department of Corrective Services, made on 26 November 2001, to classify him as a medium security prisoner. The grounds on which review is sought are that the applicant was denied natural justice, because he was not given an adequate opportunity to comment on adverse material, and because a "progression matrix" was not applied to the assessment of his status; that the respondent failed to take a relevant consideration, a progression matrix, into account; and that the respondent took irrelevant considerations into account in the form of adverse material which the applicant says was false.

[2] Mr Barrow was sentenced to 20 years imprisonment on 28 May 1998, the most serious charges against him being production of amphetamines. As at that date he had already served three years and 109 days in pre-sentence custody, which he is entitled to have regarded as imprisonment already served under the sentence. While in custody he has undergone a number of sentence management reviews.

[3] The decision complained of was made by Mr Peter Severin, acting Deputy Director General of Corrective Services, to whom decision-making authority was delegated by the respondent. Mr Severin had been asked to review an existing decision of the acting Executive Director, Operational Support Services to classify the applicant as medium security. In the event, he decided to set that decision aside and to make a fresh decision.

[4] The decision of the delegate was, plainly enough, made under an enactment. Section 12 of the Corrective Services Act 2000 provides for prisoner classification according to security level, with review at specified intervals, and sets out a non-exhaustive list of criteria. Mr Plunkett, for the respondent, argued, however, that the decision, being purely managerial, should not be reviewed. He pointed to the decision of the Full Court in McEvoy v Lobban[1] for the proposition that the court would not interfere in the exercise of managerial powers absent bad faith, and to the subsequent adoption of that approach in other decisions involving the management of prisoners.[2] The present case, Mr Plunkett argued, was to be distinguished from those cases where decisions concerning security classification were reviewed because of their direct impact on the applicant's ability to obtain his freedom.[3] The applicant, in contrast, was serving a 20 year sentence of imprisonment with no prospect of post-prison community based release until 2005; so it could not be said that his current security classification was likely to have any bearing on decisions in that connection. In addition, Mr Plunkett submitted, security classifications were the subject of six monthly reviews, a feature which again pointed to an appropriate characterisation of the decision-making function as managerial.

[5] The line to be drawn between managerial and non-managerial decisions can be elusive. And the distinction is not always helpful; as Thomas J observed in McEvoy v Lobban[4]

"The borderlines between functions of management and adjudicatory functions within a prison may be difficult to draw, and they may not in any event necessarily provide the cut-off point on the question of administrative review."

[6] The categorisation of decisions as managerial or non-managerial is, perhaps, of less importance since the Judicial Review Act 1991 was enacted to confer statutory rights of review. Section 48(1)(a) of that Act confers a general power on the court to stay or dismiss an application if it considers it inappropriate to permit proceedings to continue or to grant the application. That seems to me a wide enough power to enable the court to assess the circumstances of any given case to determine whether, notwithstanding a decision is made under an enactment, the court should not proceed to review. In the context of decisions involving prisoners, it might be thought inappropriate to embark on review because, for example, of the lack of real consequence to the individual from the decision; or because exigent circumstances required a decision without adherence to normal procedure; or, indeed, because the type of power exercised was so integral to the ordinary everyday management of a corrective institution that to permit review might well render prison management unworkable. (In the last instance, it will sometimes be the case that the decision falls under a broad power to manage rather than deriving from any immediate or proximate legislative source, so that it is not, in any case, to be regarded as a decision made under an enactment. [5])

[7] In essence, I do not think that the managerial/non-managerial distinction can provide any bright line for deciding whether to review or not to review. It may, however, constitute a powerful consideration as to whether review is appropriate in any given case.

[8] In this case the applicant gave evidence as to the effect of his classification as a medium security prisoner. He said that he could not participate in a work release scheme which he had anticipated being involved in, in a month or so, and that he was not able to obtain leaves of absence. Mr Plunkett pointed out that under the Corrective Services Act 2000 there was no connection between leaves of absence under Division 9 and classification. The position was different in respect of eligibility for WORC programs; ss 57(2)(b)(iii) required the Chief Executive to consider, amongst other matters, the prisoner's classification in deciding whether to allow him to participate.

[9] I consider that the decision in the present case is one which has a significant impact on the degree of liberty available to the applicant. It was not made in circumstances of such urgency, and is not so fundamental to the respondent's everyday management powers, that review of it would constitute an unwarranted and inappropriate interference with the respondent's functions. While it is true that the availability of review at six month intervals is a significant consideration, there is, I think, a risk that, if judicial review is not undertaken, any error which might be identified in the decision-making process will be perpetuated. Consequently I propose to proceed with review of the decision.

[10] In reaching his decision as to classification, the respondent's delegate made a number of findings of fact. Among them were the following:

"-- The psychological report of 4 September 2001 provides an outline of Mr Barrow's version of events surrounding his offences. This includes that he employed Vinall at a time when his family was experiencing financial difficulties. Furthermore, Mr Barrow went to Victoria to produce a batch of amphetamine, in return for $250,000. He reports that the outcome was considered unsuccessful and was not paid. Mr Barrow's company supplied the factory and funds to purchase the chemicals for the purpose of manufacture of an illicit substance but then had "very little" to do with this business. When Vinall failed to sell the PAA his employment was terminated. However, after being threatened by Vinall and associates, Mr Barrow produced "the drugs" but received no payment. Mr Barrow denies his involvement in the second charge of producing a dangerous drug.

? There are no outstanding matters before the courts, nor does Mr Barrow have a history of escape. The General Manager Borallon Correctional Centre has assessed Mr Barrow as a minimum risk of escape.

? Mr Barrow was born in New Zealand. Reports indicate that the Department of Immigration and Multicultural Affairs will assess Mr Barrow's case for deportation closer to the time of release from custody. The matter was canvassed with Mr Barrow recently by staff from the Office of Sentence Management. Staff report that upon interview Mr Barrow was not aware of [sic] that he may be deported. It is reported that Mr Barrow indicated a preference for remaining in Australia. However, he also indicated he would not oppose deportation moves. Should deportation occur, Mr Barrow has indicated that he would take up his business interests in mainland China, where he has capital investments.

? Mr Barrow has no recorded criminal history prior to the current offences. However, as outlined above Mr Barrow has disclosed to being involved in criminal activity, which occurred prior to the current offences. This outline of events do not form part of Mr Barrow's recorded criminal history."

[11] The reasons given for the decision included the following statements:

"I am cognisant that the General Manager of Borallon Correctional Centre has assessed Mr Barrow as a minium risk of escape. However, I am of the view that the nexus of having access to funds through his capital investments in China, Mr Barrow's links in China and the possibility of removal from Australia when released to the community impacts upon that assessment.

Mr Barrow has family and business connections in mainland China ...

...I am concerned that Mr Barrow, should he be placed in open custody, may pose a flight risk as he may come to the view that there is little benefit in serving the remainder of his sentence (a sentence which in his view should have been 15 years imprisonment). Rather he may determine that there would be benefits in recommencing his life in China at an earlier point in time. I am of the view that Mr Barrow cannot be considered to be a minimal flight risk should he be placed in open security.

Whilst Mr Barrow has no recorded criminal history, Mr Barrow has supplied information which leads me to conclude that he has been involved in drug related offending over a greater period of time than considered by the court. Additionally, it supports the view that, other than the offences for which Mr Barrow is imprisoned, he was prepared to break the law for payment of a significant fee and his involvement in this activity brought Mr Barrow into contact with at least one other person involved in criminal activity."

[12] Mr O'Gorman, for the applicant, argued that the respondent had taken into account these allegations: that the applicant had been involved in drug related offending over a greater period of time than considered by the court at the time of his sentencing; that he was prepared to break the law for payment of a substantial fee, in addition to the matters for which he was currently imprisoned; and that he had access to funds through capital investments in China. Each of the allegations was false, and the applicant was not given the opportunity to address any of them, so that a breach of the rules of natural justice had occurred. Mr O'Gorman also argued that there was an expectation that the "progression matrix" would be applied, and that the respondent's failure to apply it was a further breach of the rules of natural justice. In support of ground two, Mr O'Gorman submitted that the failure to take the progression matrix into account was a failure to take into account a relevant consideration.

[13] As to ground three, it was argued that the respondent took into account irrelevant considerations, which were specified as the escape risk assessment dated 7 December 2000 and those allegations as to the applicant's involvement in other offending, being prepared to break the law for payment of a fee and access to capital investments and funds in China, already referred to as giving rise to a breach of the rules of natural justice. A supplementary argument was put that there was no evidence to justify the making of the decision in that the decision was based on the existence of a particular fact which did not exist, in this case the allegations relied on by the respondent and identified by the applicant as being false.

Greater offending than the court considered, and preparedness to break the law for fee

[14] The information giving rise to the delegate's conclusions, as to the applicant's offending not being before the court and his preparedness to break the law for a fee, appears to have come from a report of Ms Foran, a psychologist at Borallon Correctional Centre, dated 4 September 2001. It set out the applicant's account to her of his arrangement with one Vinall to make amphetamines, for which he was to be paid $250,000, although the endeavour had been unsuccessful.

[15] But the conclusion by the delegate that the applicant had been involved in drug related offending over a greater period of time than had been considered by the court was said to be false because, in the course of the applicant's trial before Helman J, the applicant had given evidence in his own case as to the arrangement with the man Vinall. With the limited amount of transcript provided, it seems probable that the applicant was prepared to admit to a failed attempt at production in a different jurisdiction in order to explain some of the evidence against him and his relationship with other persons concerned, while denying the charges for which he was on trial, of a later, more substantial, production in Queensland. However that may be, it is clear from the sentencing remarks, which are also an exhibit, that he was convicted on the counts on the indictment for which he stood trial and was sentenced without reference to his prior criminal conduct in Victoria.

[16] The delegate's reference to the events in Victoria as not forming part of the applicant's recorded criminal history is correct. Whether or not the statement that "he has been involved in drug related offending over a greater period of time than considered by the court" is correct, depends on whether one reads it as meaning that the information was not before the court, or that it was not the subject of the charges, and thus was not taken into account by the sentencing judge in imposing sentence. I am not prepared to read the delegate's statement so narrowly as to suppose that he must have meant the former rather than the latter. In context, it seems probable that he was indicating that the applicant had been responsible for more criminal conduct than the court had dealt with him for; which is the case. Even if the statement is to be regarded as ambiguous, I would not, bearing in mind the High Court's admonition in Minister for Immigration and Ethnic Affairs v Wu Shan Liang[6] against over-zealous review of decision-makers' reasons, be prepared to embark on a process of construction to the contrary.

[17] Equally, the conclusion that the applicant was "prepared to break the law for the payment of a significant fee" seems, on the evidence given, to have been entirely correct. Both statements are features of the same proposition, that the applicant's criminal conduct was more extensive that that for which he had been sentenced. It was a matter which the decision-maker was entitled to take into account. As to questions of natural justice, the content of the information as to prior offending for a fee relied on by the delegate to reach his conclusions came from the applicant himself, and it cannot be said that he should have had the opportunity to comment on it. It is self-evident that he was not sentenced in relation to the Victorian enterprise, since he was not tried for it; and in any event it is clear from earlier correspondence from the applicant's solicitors that they were in possession of the sentencing remarks of the trial judge, which should have dispelled any illusion on that score. I do not consider, therefore, that there has been any failure of procedural fairness in this respect.

[18] The statements as to the applicant's capital investments in China and access to funds have their source in two documents. The first is the report of the psychologist, Ms Foran, to whom the applicant gave a history of having established a "chemical business which required regular travel between Australia and China trading in chemicals and car batteries". The second document was a progress report prepared by, among others, Mr Trichet, Senior Advisor Sentence Management. It records the applicant as having said the following:

"If deported the prisoner intends to take up his business interests in Mainland China. The prisoner stated that he has capital investments in that country."

[19] The applicant in evidence before me denied having said that he had capital investments in China. Mr Trichet was examined and cross-examined about the statement attributed to the applicant. His evidence was as follows:-

"The discussions were in the form of - we were asking about his plans should he be granted parole and deported from the country, and he indicated to us that he had plans to return to mainland China and take up his business - resume his business in that country. I do specifically remember him saying 50 per cent interest and that is clear in my mind in terms of his reference to his interest in that country. That's the most important part, I feel, in terms of that - that conversation and I feel quite clear in saying that that was - that was the form of his business relationship, that he had a definite stake in a business in mainland China and on his return to mainland China he would resume his interests in that company".

On cross-examination he said that he recalled the applicant being excited about returning to China and "just resuming ... or taking care of his interests in that country".

[20] Given the respective interests and backgrounds of the two witnesses, I consider that I should accept Mr Trichet's evidence in preference to that of the applicant. Although Mr O'Gorman argued that Mr Trichet's use of the word "resume" indicated that any business interests had been held in the past, I would, rather, take what he said as meaning that there were extant business interests in China capable of resumption, in the form of a fifty percent interest in a business in that country. Consequently, I would take the statement in the report, "the prisoner stated that he has capital investments in that country", as reflecting information communicated by the applicant to the effect that he had a fifty percent interest in a business there.

[21] I should say, however, that although I permitted the applicant to give evidence before me on the issue, and to cross-examine Mr Trichet about what was said to him, I doubt, on reflection, that that was an appropriate course. Even had Mr Trichet recanted on the version given to him, it would not affect the fact that the delegate had evidence before him, albeit wrong; and I doubt that procedural fairness requires a decision-maker, in the absence of anything to alert him to error, to cross-check with an applicant the correctness of information apparently provided by him, or to assume that he requires an opportunity to respond to it.

[22] The delegate, however, has taken matters further by drawing an inference of "access to funds through his capital investments". That inference is not one which necessarily follows from the mere fact of business interests, which may lack liquidity, or indeed substance. However I do not consider that the inference that capital investments might give rise to access to funds was so unreasonable that no reasonable decision-maker could draw it. There was evidence as to the applicant's interests in China from which it might be drawn, and both the inference and the evidence which underlay it were relevant considerations in the decision as to the applicant's classification. Given that the evidence from which that view was formed was both apparently and in fact, on the view I have taken, provided by the applicant himself, I do not think that the rules of natural justice required that the delegate advise the applicant that he might form such a view.[7]

[23] No copy or detail of the progression matrix was before the court, so I rely instead on its description by Mackenzie J in Crowley v Chief Executive Department of Corrective Services[8] as "a grid system which sets out, for non-violent offenders, violent offenders and offenders declared under the Penalties and Sentences Act 1991 to be serious violent offenders, a minimum period of time in secure custody before open classification can be achieved."

[24] Mr O'Gorman for the applicant argued that there was both a failure to accord natural justice and a failure to take into account a relevant consideration in the respondent's declining to apply the progression matrix. (One might have taken the second ground as abandoned, given that the amended further and better particulars provided by the applicant delete all particulars of relevant considerations originally said not to have been taken into account; but there was no objection taken by Mr Plunkett to argument on this score.)

[25] Even if the applicant had a legitimate expectation that the progression matrix would be taken into account, that would not result in his expectation being given substantive effect, that is to say, by its application. It might, instead, afford him a procedural argument to the effect that an established practice should not be departed from without the affording of an opportunity to comment. Equally, I have some difficulty with the proposition that the progression matrix could be described as a consideration, as opposed to a means by which relevant factors were to be considered.

[26] But, more to the point, in Crowley v Chief Executive Department of Corrective Services[9] Mackenzie J held (in my respectful view correctly) that the guideline for the regulation of prisoners which provided for application of the progression matrix (r 235, a rule made under the power given in s 20 of the Corrective Services (Administration) Act 1988) was inconsistent with s 13(1A) of the Corrective Services Regulation 1989, which then set out the criteria to be taken into account in security classification. Section 13(1A) has been replaced by s 12 (3) of the Corrective Services Act 2000; although the factors to be taken into account, which formerly were expressed in terms suggesting exclusivity, are now clearly non-exhaustive. That Act also repealed the Corrective Services (Administration) Act 1988, so that the guideline under which the progression matrix was made, hitherto regarded as invalid, now is without any statutory base at all.

[27] It can hardly be said that one can have a legitimate expectation that a matrix devised pursuant to an invalid guideline should be applied. Nor could one readily construe s 12 as permitting, let alone requiring, consideration of a matrix which was made without authority. I do not think therefore, that there is anything in the applicant's arguments as to the progression matrix.

[28] Finally, the applicant's counsel included in his reference to irrelevant considerations taken into account the escape risk assessment. In fact, the assessment appears to have been favourable to the applicant, describing him as "a minimum risk of escape". Whether it had been adverse or favourable, there is no reason apparent to me why it should not have been taken into account as an entirely relevant consideration in determining the appropriate security classification for the applicant.

[29] For the reasons I have given, I find none of the applicant's grounds of review to be made out and I dismiss the application. I will hear the parties as to costs.

[1] [1990] 2 Qd R 235.

[2] Gray v Hamburger [1993] 1 Qd R 595; Re Walker [1993] 2 Qd R 345; Stewart v Lewis [1996] 1 Qd R 451; Bartz v Chief Executive Department of Corrective Services [2001] QSC 393 and Masters v State of Queensland [2001] QSC 55.

[3] See, for example, Graveson v Queensland Corrective Services Commission [2000] 1 Qd R 529; Bartz v Chief Executive Department of Correction Services [2000] QSC 336.

[4] (1990) 2 Qd R 235 at 240.

[5] See Blizzard v O'Sullivan [1994] 1 Qd R 112; Australian National University v Burns [1982] FCA 59; (1982) 61 FLR 76 at 87. Concord Data Solutions Pty Ltd v Direction General of Education [1994] 1 Qd R 343.

[7] Sinnathamby v Minister for Immigration [1986] 66 ALR 502 at 506; Telstra Corporation Ltd v Kendall [1995] FCA 1481; (1995) 55 FCR 221 at 230.

[8] [2001] QSC 219.

[9] [2001] QSC 219.