Crowley v Chief Executive Dept of Corrective Services and Anor [2001] QSC 219

CW Lohe, Crown Solicitor for the first and second repsondents

[1] MACKENZIE J: This is an application for a statutory order of review under the Judicial Review Act 1991. The applicant is aggrieved over a decision to maintain his security classification as "low" and to require him to remain at Borallon Correctional Centre, instead of granting him "open" security classification.

[2] Section 13 of the Corrective Services Regulations 1989 requires classification of prisoners into one of eight categories and into one of five security ratings. The prisoner fell into category (vi), a long term prisoner serving a term of imprisonment of more than 12 months. (s 13(1)(a)). He had been sentenced to 10 years imprisonment for one count of misappropriation and 5 years imprisonment concurrent for two counts of uttering false documents. He was sentenced on 5 May 2000. It was ordered that he be eligible for release on parole after 3 years of that period. He becomes eligible for release on parole on 4 May 2003.

[3] The five security ratings in s 13(1)(b) of the Regulations, into one of which a prisoner must be classified, are maximum security, high security, medium security, low security, or open security. Under s 13(2) the security rating of a prisoner must be reviewed at intervals not exceeding 6 months.

[4] The history of the matter is that in early July 2000, about 2 months after the applicant's sentence began, his security classification was reduced from medium to low. He was transferred from Woodford to Borallon. The sentence management team's recommendation that his security classification be "low" was adopted by the delegate. There was also a recommendation that he be transferred to Westbrook and "eventually" to a WORC Program. The delegate took the view with respect to placement that the prisoner had only recently commenced a 10 year sentence and that a graduated program through the prison system must be adhered to. The review comment continued as follows:

"With this in mind the prisoner is approved transfer to Borallon Correctional Centre with his suitability for placement in open custody to be reviewed in 6 months. This will enable staff to better assess the prisoner's suitability for placement in open custody as Borallon's open campus environment will enable the prisoner to display an ability to self-regulate to the appropriate level."

(the consequences of the apparent E-mail convention of not correcting spelling and punctuation have been repaired in the quote as it now appears).

[5] In the period between that decision and the projected review date, new guidelines for regulation of prisoners, r 235, were issued. The document is described as "sentence management procedures". It is stated that the purpose of the rule is to ensure that offenders are managed in a manner that provides an integrated process for progression through the system. It also states that "the sentence management procedures, including admission, induction, assessment, planning and intervention, review and exit must be in accordance with the procedures attached to the rule". The procedures exhibited were apparently a revised version, implemented 24 November 2000, although the original rule was made on 29 June 2000. The affidavit of Mr Severin, the authorised delegate who made the decision, deposed that at the time he made the decision in respect of which review is sought the procedures of 24 November 2000 were those currently operative.

[6] Before the decision was made by Mr Severin, the sentence management team at Borallon had on 27 October 2000 reviewed the security classification of the applicant. Open classification was recommended.

[7] On 2 November 2000, the applicant attended a meeting with delegates of the Serious Offenders Committee and the Sentence Management Supervisor at Borallon. Mr Severin deposes that the purpose of that meeting was to discuss implementation of the new policy for gradual progression of prisoners to open custody. The notes of the interview state that the complexity of the situation because of the old and new policies was discussed.

[8] The appellant deposes that he was told that because of r 235, he was a "serious offender" and subject to those rules. He was also told that the committee had made recommendations but that the decision rested with the delegate. He says he was also told that he would have to spend 2 years in secure custody and that he would be eligible for open classification only 6 months before the parole date. He would then have to spend 1 year on a prison farm and then complete periods of work release and home detention. He says he was told that parole at the time of the recommendation was unlikely to be achievable.

[9] Some analysis of the attachments to r 235 is necessary to put the matter in context. Each of the documents is headed:

Each of the headings is followed by the letters (SM) with an identifying number following.

[10] Document (SM - 03) which deals with "assessment" states its purpose to be to evaluate "the offenders risk to the community and readiness to change". It is stated that information gathered during the assessment process is used to determine appropriate supervision and to assist the offender to identify and address individual risk factors for reoffending. Assessment and identification of appropriate intervention and surveillance is to be commensurate with the risk level of the offender and the type of sentence to be served (3.1). At the end of 3.2, it is said that classification guidelines must be considered at any time the prisoner's classification is reviewed.

"Classification guidelines (s3.3 (sic - actually 3.4) of this procedure) and relevant regulations including Regulation 13 must be taken into account before determining classification.

Low classification will be assigned to prisoners who are assessed as eligible for an open classification but should not be accommodated in open custody due to medical and/or psychiatric and/or psychological needs. Prisoners assessed as suitable for an open classification and nominated as essential workers in secure custody centres can also be assigned low classification. Low classified prisoners will be accommodated in secure custody."

[12] By 3.4, if a person is an "essential worker" he should not progress to open custody. Prisoners who are assessed as suitable for open classification but are identified as essential workers in a secure custody centre should be classified as low security.

[13] By 3.10, when a prisoner with a recommendation for early parole would be disadvantaged by the progression provisions in the progression matrix, assessment for transfer to open custody is to occur 6 months in advance of the specified parole date.

[14] (SM - 04) is headed "Planning and Implementation". Under 3.3 progression dates must be established for progression from high to medium and medium to open security classifications. It states:

"The date at which an offender is eligible to progress to open custody will be established on the basis of length of sentence, nature of offence and assessed risk to the community (sections1-3 of the Offender Risk/Needs Inventory), using the Progression Matrix. Transfer to open custody will not occur until an open security classification has been approved."

There is a cross-reference to the 'assessment' document where there are early parole recommendations.

[15] In 3.4 it is stated that the "initial sentence plan" is to be developed for individual prisoners by the Sentence Management Team. The offender must be informed of all dates relevant to eligibility for community based release and dates for progression through the system.

[16] In 3.9 it is said that transfer and placement options are to be identified for each offender following development of the initial sentence plan. Security classification is stated to be the primary determinant for placement. The Office of Sentence Management is the authorising authority for all transfers in respect of the policy.

[17] In 3.11 there is provision for prisoners to be advised of the recommended date for review of the sentence plan. The period between reviews must not exceed 6 months. There is a cross-reference to s 13(2) of the Regulations and to the "review" document (SM - 05).

[18] In 3.1 of (SM - 05) it is stated that the review process is guided by legislative requirements which establish when reviews are to be conducted, what specific goals are to be achieved by the offender prior to the next review point, and what levels of supervision are appropriate.

[19] In 3.2, headed "Sentence Management Review", there is reference to compliance with s 13 of the Regulations when assessing security classification. Amongst other things the sentence management panel is to forward a recommendation to the authorised person which considers the offenders classification "taking into account the classification guidelines and relevant legislation, including Corrective Services Regulation 1989 s13".

[20] In 3.9, "Reduction in Classification", the following is stated:

Any reduction in classification is subject to relevant legislation and classification guidelines. The progression matrix is to be used to establish the point at which offenders are to be considered for progression to open custody."

[21] With respect to transfer to open custody, 3.10 states that prior to the transfer of an offender sentenced to 12 months imprisonment or more from secure to open custody a community risk assessment must be administered to assist in determining the management of the offender in open security. An escape risk assessment must also be administered. Only prisoners assigned a minimum escape risk may progress to open custody. (There is no evidence that the appellant would be disqualified on this account).

[22] The progression matrix is a grid system which sets out, for non-violent offenders, violent offenders and offenders declared under the Penalties & Sentences Act 1991 to be serious violent offenders a minimum period of time in secure custody before open classification can be achieved. If this were to be applied inflexibly, it would result in the present applicant spending 2 years in secure custody before achieving open classification since that period applies to a low risk prisoner serving a 10 year sentence. According to Mr Severin's evidence the progression matrix is a guideline only and was treated as such by him. In his statement of reasons dated 21 February 2001 it was stated by him that a date calculated in accordance with the progression matrix was a guide only with s 13 being the primary determinant.

[23] One other matter of concern, according to the applicant, was that in the interview with the Serious Offenders Committee, he was told by a member that he was concerned that less than 6 months had passed since the previous reclassification. Under s 13, 6 months is the maximum period between reviews. In any event, the applicant deposes that he was told in early December that the October review had been set aside but that a further reclassification would be considered on 14 December 2000. The sentence management team again recommended open classification but it was recommended by the General Manager that the applicant be retained at Borallon as an essential worker.

[24] There has been some reference to that term in summarising relevant features of the annexures to r 235. Mr Severin elaborated further in his evidence on it. He explained that at the relevant time Borallon was largely a medium security prison, and was permitted to hold only a limited number of low security prisoners. Such prisoners had to be given an "essential worker" status to be detained there. According to Mr Severin, categorising him as such was not a device to keep him in secure custody.

[25] The decision complained of was made by Mr Severin, after consultation with the Serious Offenders Committee, on about 3 January 2001. He decided to maintain the applicant's classification as "low" and that he remain at Borallon as an "essential worker". The record of the decision shows that favourable factors were acknowledged, but that it was noted that the prisoner was not "eligible" to progress to open custody (presumably according to the progression matrix) and there was concern that a prisoner serving a lengthy period of imprisonment should be subject to a structured and graduated progression through the corrective system.

[26] It is noteworthy that although the application was filed on 16 March 2001, it was not brought on for hearing until 6 June 2001. By the time judgment is delivered, the next projected date for review of the applicant's classification will have passed and it is not beyond the realms of possibility that a further decision will have been made. The utility of not bringing matters of this kind to a hearing promptly must in many cases be questionable, especially where there is structured periodic updating of individual cases.

[27] The applicant attacks in various ways the influence of the progression matrix in making the decision concerning classification. It was submitted that a prisoner's security classification is to be determined by having regard to the criteria in s 13(1A) of the Regulations; that it was mandatory that each of those criteria be taken into account (Graveson v Queensland Corrective Services Commission (2000) 1 QdR 529, 532); that the criteria were the only criteria to be taken into account; and that the reference in s 13(1A)(p) to any other matter likely to affect the prisoner's behaviour while in custody did not authorise the progression matrix to be taken into account.

[28] It was submitted that (SM - 05) 3.9 quoted in paragraph [20] is inconsistent with s13 of the Regulations. Since s 20(1) of the Corrective Services (Administration) Act 1988 only authorised the making of rules not inconsistent with that Act, the Corrective Services Act 1988 or Regulations under either Act, paragraph 3.9 could not validly stand since it was inconsistent with s 13.

[29] The specific lines of attack may be summarised as follows:

(a) s 13(1A) provided an exclusive list of what could be taken into account;

(b) the progression matrix was inconsistent with s 13(1A) in so far as it purported to apply to a determination of classification;

(c) the decision maker acted under dictation of the policy contained in the progression matrix;

(e) failure to take into account relevant considerations, firstly, the effect of the decision on the ability of the applicant to obtain release on parole at about the time he would become eligible under the recommendation, and secondly, to consider the applicant's previous performance on bail (s 13(1A)(k)).

[30] For the respondents it was conceded that the decision maker had regard to the custodial progression table in the progression matrix, but submitted that he did not consider himself bound by it. It was submitted that there were two separate issues which had become conflated. One was the applicant's security classification; the other was the question of the institution in which he should be detained.

[31] It was submitted that the evidence supported the conclusion that with regard to the security classification, the delegate had had regard to the merits of the applicant's individual circumstances in light of the criteria in s 13(1A). It was submitted that the exercise of discretion had not miscarried since it was for the decision maker to decide what weight should be assigned to the various factors. It was submitted that the decision was not unreasonable.

[32] It was submitted that the second aspect was governed by s 69 of the Corrective Services Act which gives unfettered discretion to the Chief Executive to order the transfer of prisoners from one institution to another. Application of a policy as to how long a particular prisoner should spend in secure custody did not vitiate the exercise of the discretion.

[33] As a fall-back position it was submitted that even if the progression matrix intruded on the decision concerning security classification, the matrix focussed on the nature of the offence and the length of term of imprisonment, both of which are factors to which regard must be had under s 13(1A).

[34] Paragraphs 3.10 in (SM - 03), paragraphs 3.3 and 3.9 in (SM - 04) and paragraph 3.9 in (SM - 05) support the view that issues of security classification and placement are distinct. (SM - 04) 3.3 proceeds on the basis that open security classification must be approved as a prerequisite for transfer to open custody. It also provides for determination of a date at which the offender is eligible to progress to open custody.

[35] (SM - 04) 3.9 makes the security classification the primary determinant for placement. (SM - 03) 3.10 allows for potential advancement of the date of transfer to open custody if the progression matrix would disadvantage the prisoner in obtaining parole on the eligible date. (SM - 05) 3.9 uses, in a contrasting way, reduction in classification and the point at which progression to open custody is to occur.

[36] I accept that the respondent's submission in this regard is correct. Obtaining an open security classification is the first step. Obtaining placement as a result of obtaining such a security classification is a separate step.

[37] Security classifications are governed by s 13(1A). A rule made under s20 of the Corrective Services (Administration) Act cannot modify s 13(1)(A) by adding additional factors to be taken into account or by subtracting from the factors prescribed. Powell v May (1946) 1KB 330 and Myer Queenstown Garden Plaza Pty Ltd v Corporation of the City of Port Adelaide (1975) 11 SASR 504, 538-542 discuss repugnancy and inconsistency in the context of subordinate legislation which is alleged to be irreconcilable with a superior law. Where consistency with the superior law is the test but the subordinate law makes a different and irreconciliable provision, it will be ultra vires in that respect.

[38] Since, in my view, there are two bases upon which the applicant is entitled to succeed, it is undesirable to conduct a wider examination of r 235 and its annexures than necessary. There is, in my view, a distinction between a rule being expressed in a potentially confusing way and being inconsistent with or repugnant to a regulation. For example, (SM - 05) 3.9 includes some of the criteria in s 13(1A) specifically, and also refers in an unspecific way to "relevant legislation". An exercise designed to decide whether a particular rule or part of a rule is inconsistent with a regulation is best conducted by focusing on the particular provision in light of particular facts.

[39] Firstly, it was conceded in the written submissions on the respondent's behalf that the decision maker had had regard to the custodial progressional table in the progression matrix. Mr Severin's evidence is consistent with that concession, although I accept that he did not consider himself bound by it.

[40] It is impossible to ascertain, even with the benefit of hindsight, the extent to which the decision as to the applicant's security classification was affected by the decision maker adverting to the progression matrix. With respect to the respondent's fall - back submission, I did not understand Mr Severin to be saying that he only considered the progression matrix as part of considering s 13(1A)(b) and (c).

[41] Secondly, while it may be assumed that there is a variety of good administrative or penological reasons for retaining persons who may qualify on the criteria in s 13(1A) for open security classification in a secure custody institution, a rule which purports to deny them open security classification and retain them on low security classification, for reasons unrelated to the s 13(1A) criteria as (SM - 03) 3.3 does in relation to "essential workers", is inconsistent with s 13(1A). On the face of the decision it was an element in making the decision when it could not be employed because it was inconsistent with and repugnant to s 13(1A).

[42] For those reasons the applicant is entitled to have the decision concerning his security classification reviewed. It is unnecessary to consider the other grounds raised by him, except to comment on one aspect. In evidence Mr Severin said that he had not specifically considered the applicant's performance on bail. This was relied on by the applicant as a failure to take into account a relevant consideration.

[43] I have reservations about the validity of what seemed to be the underlying proposition in the submission, that s 13(1A)(k) is intended to encompass, as well as other things, efforts at rehabilitation while on bail. In the collocation in which it appears, it seems more likely to relate to the issue whether or not the person concerned has conformed to or failed to comply with the obligations in respect of those listed matters. However, it is unnecessary to express a concluded opinion since the applicant succeeds on other grounds.

[44] The applicant has asked for a variety of forms of relief. Since any question of placement, on the interpretation expressed above, is sequential upon determination of the security classification and requires consideration once that issue is resolved, the appropriate orders are as follows:

2. That the question of the applicant's security classification be remitted to the respondents for determination according to law;

3. That the respondents pay the applicant's costs of and incidental to the application to be assessed.