_Garland v Chief Executive, Department of Corrective Services_

Judgment (141 paragraphs)

[1]

The applicant told her that he would kill her if she implicated him in the offences. He was committed to an institution for two years. Within two weeks of release from that institution he indecently dealt with two young girls.

[2]

[24] In 1987 when he was 16 he sodomised and forced two 14 and 15-year-old youths to perform oral sex on him in the Southport watchhouse. In doing so he applied pressure to the throats of each boy and threatened to harm the other or his parents. A week later having escaped from custody and fled to NSW, in company with another youth he sodomised a 14-year-old boy whilst he held a broken beer bottle to the boy's throat. He was sentenced to two and a half years imprisonment for that offence. The applicant was extradited to Queensland to face charges arising out of the offences committed in the Southport watchhouse about six months into that term of imprisonment. Whilst on remand in Queensland he assaulted a prisoner with a pair of nail clippers and ordered him to perform oral sex on him. That prisoner was able to escape without suffering the threatened sexual abuse. The applicant was sentenced to six months imprisonment for that offence. On 27 April 1988 in the Supreme Court in Brisbane he pleaded guilty to two counts of disabling a person in order to commit an indictable offence, two counts of sodomy and three counts of indecent dealing with a boy under the age of 17. Those offences arose out of the incidents at the Southport watchhouse the year previously. He was sentenced to seven years imprisonment for those offences.

[3]

[25] In September 1988 whilst in the Boggo Road Prison Hospital he sodomised and committed an act of oral sex on a fellow prisoner whilst armed with a razor blade and making threats to cut his throat. On appeal the sentence of seven years concurrent was ordered to be a four year term of imprisonment to be served cumulatively.

[4]

[26] The applicant has been convicted on numbers of occasions of assaulting correctional officers and of escaping from or preparing to escape from custody.

[5]

[27] The applicant completed a 12 month sexual offender's treatment program and made many applications for parole. He was successful on his sixth application and was released to home detention in December 1996 and to parole on 27 March 1997.

[6]

[28] Prior to his release the applicant was a witness to the murder of a young prison inmate, David Smith, on 28 September 1994 in Sir David Longland. He gave a statement to police immediately following and gave evidence over several days at the committal proceedings in September 1996.

[7]

[29] Whilst on parole the applicant abducted, raped and forced oral sex on a 14-year-old young girl who was a virgin. He was armed with a long blade razor and threatened to cut the complainant into little pieces. The applicant then fled to Mackay where he fell in with a 16-year-old youth. He obtained a gun and the applicant took him to a motel. Without warning the applicant held a gun to his head and punched him twice in the face. Whilst armed with the gun he forced him to perform oral sex and then sodomised him. Later he ordered the youth to accompany him and purchase ammunition and a knife. On their return to the motel the applicant sodomised him on a further two occasions whilst armed with a knife. The youth seized an opportunity and fled.

[8]

[30] The applicant left the motel, confronted a young couple and ordered them at gunpoint to drive him out of town. The applicant threatened to kill the young woman who was driving. After threats they drove to the residence of some friends and on arrival the applicant approached with a gun a boy and a girl walking nearby who were brother and sister and ordered them to go with him to the flat. The first couple escaped. After making various threats and firing the gun a man and woman walking on the other side of the road were ordered into the flat. Over several hours of negotiations with police in which threats to kill were made the applicant allowed one of the hostages to leave to obtain drugs.

[9]

[31] In the course of the evening the applicant tied up the brother and sister and raped the sister on several occasions. The brother and sister eventually escaped when the applicant slept but the second woman hostage who had told the applicant that she was five months pregnant was raped by the applicant.

[10]

[32] The applicant, taking the young woman as a hostage, went across the road to another flat and obtained entry. He threatened the occupants and set out with hostages in a motor vehicle. After a violent confrontation with police the applicant was eventually overpowered and taken into custody.

[11]

[33] The applicant was returned to custody on 15 April 1997 and charged with four counts of rape, six counts of indecent assault with circumstances of aggravation,

[12]

10 counts of deprivation of liberty, 14 counts of serious assault, one count of abduction, one count of indecently dealing with a child under the age of 16, two counts of house breaking, one count of burglary, one count of going armed so as to cause fear, one count of common assault, one count of assault occasioning bodily harm whilst armed and two counts of unlawful use of a motor vehicle and one count of receiving. He was housed in the detention unit at Arthur Gorrie for his own protection because there had been threats made against his life by inmates as a consequence of his statement to police and evidence in the committal proceedings over the murder of Smith.

[13]

[34] The trial of the four men accused of the murder of David Smith commenced on

[14]

3 June 1997. By this time the applicant was facing a long period of imprisonment, as he believed, consequent upon the conduct in which he had engaged when he was released on parole. He accordingly declined to take the oath in those proceedings and was sentenced to a term of imprisonment of 9 months for contempt of court.

[15]

[35] The applicant pleaded guilty and was sentenced by Hoath DCJ on 23 October 1998 for the offences committed whilst on parole. The prosecutor applied for an indefinite sentence on each of the four counts of rape. The learned sentencing judge imposed a term of indefinite imprisonment in respect of each of the four counts of rape pursuant to s 163(1) of the Penalties and Sentences Act 1992 and specified life imprisonment as the nominal sentence on each of those counts. He sentenced the applicant to life imprisonment in respect of three of the counts of indecent assault with circumstances of aggravation and to lesser terms for the other charges.

[16]

The applicant's indefinite sentence will not be subject to review until the earliest period under the Penalties and Sentences Act 1992 - 15 years, s 171(1)(a)(ii).

[17]

[36] The applicant has incurred six breaches of discipline whilst in prison the last of which was on 8 September 1995. His conduct whilst in the maximum security unit has been satisfactory.

[18]

[37] During his imprisonment the applicant has been involved in some 14 reportable incidents, four of which involved the alleged sexual assault of other prisoners and a number of other alleged assaults and threats to prisoners and threats to prison staff. The last alleged sexual assault occurred in 1996. These alleged sexual incidents were known to prison intelligence but complaints were not pressed. They were taken into account by Ms Hunter when making her assessment about the prisoner's placement and it was not submitted that it was impermissible to do so.

[19]

[38] The applicant was first placed on a maximum security order pursuant to s 47 of the Act on 31 March 2000. The reasons for doing so are extensively described in the Referral Notice of 16 February 2000 but dominant among them was an escalating pattern of predatory violence, sexual assaults in the community and against prisoners and assaults against staff.

[20]

[39] The maximum security order of 13 September 2004 (as was the earlier order of

[21]

12 March 2004) was made on the basis that the applicant was classified as "maximum security" and was considered "a substantial threat to the security or good order of the facility". The applicant is permitted by the terms of the order to associate with other prisoners in that unit limited to two hours a day with one prisoner at any one time unless otherwise approved by the general manager in accordance with his individual management plan. He is permitted two telephone calls of 10 minutes duration each week and other calls as approved. He is permitted two hours out of cell exercise per day to coincide with the period of association with the single other prisoner. Additional exercise may be approved by the general manager. He is limited to property to which is permitted access, apart from basic bedding and clothing, as approved by the general manager. All his meals are to be eaten in his cell unless otherwise approved and all other privileges are to be determined by the general manger. The applicant is entitled to one non-contact visit per week of one hour's duration and additional non-contact visits may be approved. Programs, services, training and counselling may be undertaken only within the maximum security unit as set out in his individual management plan.

[22]

[40] The applicant's individual management plan includes behavioural objectives which require him not to engage in assaults or threats to staff, other prisoners or major outbursts of disruptive behaviour or damage to buildings, furnishings or fittings and compliance with lawful instructions and requests. He is recommended to undergo ongoing counselling support, to participate in assessment and individual interventions as recommended and any specialist assessment with external clinicians. He is to engage in a minimum of one session and up to a maximum of five per week with counselling staff and to have access to an education tutor, participation in VIP modules and to complete anger management programs.

[23]

[41] The applicant is permitted to have access to a playstation, a walkman and relaxation tape, his own computer, yoga instruction material, painting materials and educational support when requested. These programs are to be taken in isolation. The applicant's individual management plan provides for a minimum of two hours and a maximum of seven hours out of the cell each day subject to operational needs and resources and can occur only in the common area and the exercise yard of the module in the maximum security unit where he is accommodated. He is entitled to two non-contact visits per week of one hour and one non-contact visit of two hours duration. He is entitled access to certain property including library materials, personal items, T.V., canteen requisites, tobacco products, hobby/educational material.

[24]

[42] Access to all areas other than the maximum security unit, the health centre and the video link-up is prohibited. Any movement inside the maximum security unit is by triple escort, handcuffs and search on exit and entry to cell. Outside the unit the applicant is triple escorted, double cuffed and body belted and has leg restraints on transfers and escorts external to the centre. He attended this hearing which was held in the secure courtroom and was compliant and polite.

[25]

[43] The applicant is a full-time student undergoing a pre-tertiary entrance course with the University of Southern Queensland. He has access to a separate study cell which has been set aside for his use which houses his own computer, books and materials.

[26]

[44] The practical effect of the orders so far as the applicant is concerned is set out in his affidavit and, although not before Ms Hunter when she made her decision, might be expected to be understood by her because of her long association with maximum security units and with the applicant and she does not disagree with the general detail contained in it.

[27]

[45] The applicant deposes that he is usually able to be outside his cell from 9-11am and from 1-4pm. During that period he may access the exercise yard, his study or the common room which is a more extensive area with some tables and fixed chairs into which the six cells of the module of the maximum security unit occupied by the applicant opens. The access to the exercise area is from this common area.

[28]

All areas are overviewed by the raised control area where staff watch both the exercise yard and the common area. The exercise yard has a concrete floor and walls with a wire cage-like roof which is, in part, open to the sky. It is two-thirds below ground level and apart from the sky and some small area of weedy grass observable above eye level, is the only part of the natural world experienced by the applicant. The applicant, if he wishes, is able to consult a doctor who calls at the unit once a week. The applicant wishes to be reintegrated into the general prison population. In his reported conversations with the senior psychologist he expresses this as an ultimate rather than an immediate goal.

[29]

[46] The applicant was brought up in an environment described by Hoath DCJ as "abusive and dysfunctional". It is described in detail in the report prepared by

[30]

Ms Catherine Creamer, a consultant forensic psychologist retained by the Department of Corrective Services dated 20 August 2002. Before he was 10 the applicant was living on the streets without parental support or guidance. A report was prepared by Dr Ian Atkinson about the applicant. It was before Hoath DCJ on the application to impose an indefinite sentence but is not before the court on this application. The delegates referred to the sentencing remarks in making their decisions. The learned sentencing judge described Dr Atkinson's diagnosis of the applicant as follows

[31]

"Dr Atkinson, who has had 40 years experience as a psychiatrist including more recently seven years full-time as a specialist psychiatrist in gaols and has known you since 1990, is of the opinion that you suffer from anti-social personality disorder complicated by predatory violent sexual drives and substance abuse. He is of the view that you are untreatable and will remain a great danger to society indefinitely."

[32]

[47] His Honour also had a report from Dr David Grant, a psychiatrist, which he summarised

[33]

"Dr Grant is also of the opinion that you suffer from an anti-social personality disorder. Dr Grant expresses the view that at present your sexual assaultive behaviour is so ingrained and serves so many purposes that it will be difficult for you to give it up. Even if over an extended period of time you are able to achieve control in a prison setting, Dr Grant is of the view that that control would not necessarily translate into a community setting."

[34]

There are other psychiatric reports listed in the internal reviews considered by the delegates but their content is unknown and are not referred to in the reasons.

[35]

[48] The statutory framework for maximum security orders is contained in Part 2 of Chapter 2 of the Act concerning the management of prisoners. Division 6 of Part 2 , ss 47-52, concerns maximum security orders. Section 47 provides

[36]

"(1) The chief executive may make an order (a "maximum security order") that a prisoner be accommodated in a maximum security facility.

[37]

(a) the prisoner is classified as maximum security; and

[38]

(b) the chief executive considers, on reasonable grounds, that 1 or more of the following apply--

[39]

(i) there is a high risk the prisoner will escape, or attempt to escape;

[40]

(ii) there is a high risk the prisoner will inflict death or serious injury on other prisoners or other persons with whom the prisoner may come into contact;

[41]

(iii) generally, the prisoner is a substantial threat to the security or good order of the facility.

[42]

(3) The term of the order must not be longer than 6 months."

[43]

[49] The respondent may make another maximum security order to take effect at the end of an existing maximum security order provided the state of satisfaction required for a s 47 order remains. Before making the order and not more than 28 days before the end of the existing order the respondent must give written notice to a prisoner advising the prisoner that the respondent is about to consider whether another order should be made and notifying the prisoner that the prisoner may, within 14 days after receiving that notice, make submissions to the respondent about anything relevant to the decision and the respondent must consider any submission made.

[44]

[50] The applicant chose not to respond to Ms Hunter's written notice being of the opinion that it would have no influence on her. Ms Hunter had, however, the minutes of the Sentence Management Review meeting to which the applicant made submissions in July 2004.

[45]

[51] Section 49 provides that a maximum security order must include to the extent practicable, directions about the extent to which a prisoner is to be separated from other prisoners accommodated in the maximum security unit and the extent to which the prisoner is to receive privileges. Whilst under a maximum security order privileges are limited to privileges that can be enjoyed within the maximum security facility and the enjoyment of which, in the circumstances of the order, may reasonably be expected not to pose a risk to the security or good order of the facility. Such an order may also include directions about the prisoner's access within the maximum security facility to programs and services including training and counselling.

[46]

[52] By s 50 a prisoner accommodated in a maximum security facility under a maximum security order may request a reference to an official visitor for review which must occur as soon as practicable and must be reviewed promptly. After completing the review the official visitor must recommend to the respondent whether the maximum security order should be confirmed, amended or cancelled. When the respondent receives the recommendation the respondent must consider the recommendation and confirm, amend or cancel the order. Section 50(10) provides that the respondent is not bound by the official visitor's recommendation.

[47]

[53] The applicant has availed himself of this procedure. Reviews have been conducted by Mr John McGhee dated 21 April 2004 and Mr J W Tolten dated 17 June 2004. They are both legal practitioners. Mr McGhee wrote

[48]

"Confinement in an MSU imposing ongoing non-contact association with relevant supervisors seems now to have reached its useful limits. Possible damage to Prisoner Garland's ability to interact responsibly and socially with his peers currently appears to be at a dangerous level where continued confinement in an MSU not only defeats the purpose for which an MSU is designed but also may leave us with a permanently anti-social member of society. Prisoner Garland's reported progress on the Creamer/Stocks program and his current tertiary studies suggests this prisoner has now reached a crossroad where independent assessment with someone like Stephen Smallbone from Griffiths University is essential if his ongoing rehabilitation is to be achieved."

[49]

Mr McGhee recommended confirmation of 13 March 2004 maximum security order be deferred until an independent assessment had been completed. The order was confirmed.

[50]

[54] Mr Tolten commented on the lack of up-to-date psychiatric assessment of the applicant noting that he had been diagnosed with an incurable psychiatric disorder He was concerned that the applicant's "past will never be just that - the past" and noted it was the same information relied upon indefinitely in order to justify a maximum security order. He did conclude that the order was presently justified.

[51]

[55] By s 51 a doctor must examine a prisoner accommodated in a maximum security facility under a maximum security order as soon as practicable after the order takes effect and at intervals of not more than 28 days.

[52]

[56] The use of "may" in ss 47 and 48 indicates, in relation to the power to make a maximum security order, "that the power may be exercised or not exercised, at discretion", Acts Interpretation Act 1954 s 32CA. Used in that sense, "may", is facultative rather than indicative of a residual discretion. If the prisoner is classified as maximum security and the delegate is satisfied of the matters set out in s 47(2)(b) or, if the order is a further order, additionally the requirements of s 48(3) have been met, the discretion may then be exercised. This is rather different from the exercise of a discretion at large. Gummow J in Minister for Immigration v Eshetu [1999] HCA 21; (1999) 197 CLR 611 at 654 commenting on observations by Gibbs J in Buck v Bavone [1976] HCA 24; (1976) 135 CLR 110 at 118-9 observed

[53]

"... where the criteria of which the authority is required to be satisfied turns upon factual matters upon which reasonable minds could reasonably differ, it would be very difficult to show that no reasonable decision-maker could have arrived at the decision in question. It may be otherwise if the evidence which establishes or denies, or, with other matters, goes to establish or deny, that the necessary criterion has been met was all one way."

[54]

See also the discussion in Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant s 20/2002 [2003] HCA 30; (2003) 77 ALJR 1165 at 1167 per Gleeson CJ, 1171 per McHugh J and Gummow J and Kirby J at 1186.

[55]

[57] Sections 47 and 48 identify the conditions precedent that must exist before the respondent may exercise the discretion to make a maximum security order. They do not otherwise indicate what must be taken into account in the exercise of the discretion to make or not make a maximum security order. Accordingly, what is relevant or irrelevant is governed by the subject matter, scope and purpose of the Act, Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40; (1986) 162 CLR 24 at

[56]

39-40 per Mason J. Section 3 of the Act sets out its purpose

[57]

"(1) The purpose of corrective services is community safety and crime prevention through the humane containment, supervision and rehabilitation of offenders.

[58]

(2) This Act recognises that every member of society has certain basic human entitlements, and that, for this reason, an offender's entitlements, other than those that are necessarily diminished because of imprisonment or another court sentence, should be safeguarded.

[59]

(b) the special needs of some offenders by taking into account--

[60]

(i) an offender's age, gender or race; and

(ii) any disability an offender has; and

[61]

[62]

[58] The Explanatory Notes relating to the Corrective Services Bill 2000 state "it is not considered that it [the Bill] offends against any fundamental legislative principle in making provision for a maximum security order" and continued

[63]

"The Chief Executive is responsible for the security and management of prisons and the safe custody and welfare of prisoners. However, within the custodial environment there are prisoners who have killed, or have caused serious injury to, other prisoners or who have previously escaped or attempted to escape from high security facilities. Therefore, the chief executive must have the power to protect the general prison community from harm posed by such prisoners.

[64]

Nevertheless, the power to place prisoners on maximum security orders with a corresponding restriction to the liberty, privileges and other aspects of prison life are clearly defined and are subject to appropriate review both with the assistance of an official visitor or by the process of judicial review. The proposals do not affect or remove any right or liberty already expressly provided for in the

[65]

[59] Ms Hunter is Deputy Director General of the Department of Corrective Services and has had extensive experience in Corrective Services in Queensland since 1988 at senior levels of management. She is experienced in placing prisoners on maximum security orders and has reviewed official visitor's recommendations concerning the placement of prisoners on such orders. She had first hand dealings with the applicant particularly when he was detained in the then Moreton Correctional Centre when she was the manager of programs from 1991 to 1992. She was involved in placing him on the sexual offenders treatment program which he completed before being released to parole in 1997. As education officer she was responsible for coordinating certain programs in which the applicant participated aimed at his rehabilitation and progression through the correctional system.

[66]

Ms Hunter was generally aware of the applicant's history within the Queensland prison system and the background to his offending behaviour gained both as a result of her professional responsibilities and by virtue of the sentencing remarks of Hoath DCJ of 23 October 1998 when he was being sentenced for the 1997 offences.

[67]

[60] Ms Hunter has made an affidavit filed 19 November 2004 which exhibits a large body of material which she took into account when reaching her decision.

[68]

She exhibits her formal statement of reasons dated 17 November 2004 prepared pursuant to an order of the court dated 9 November 2004. In her affidavit she confirms the statement of reasons and elaborates further in the body of the affidavit her approach to making the challenged decision. Ms Hunter gave extensive oral evidence by way of cross examination.

[69]

[61] Mr Baldwin filed an affidavit in which he elaborated on the process of reaching his decision to impose a maximum security order on 12 March 2004 and exhibits much of the considerable body of material on which he relied. His reasons are exhibit 4.

[70]

[62] Ms Hunter noted that the applicant is an indigenous Australian to which she refers in the formal reasons. It is a ground of review that the recommendations of the Royal Commission into Aboriginal Deaths in Custody were not taken into account when making the maximum security orders. Ms Hunter deposes that she understood that a prisoner's aboriginality may be a factor in terms of his management within the system and she keeps it in mind and did so in the case of the applicant. She has been responsible for implementing various recommendations of the Royal Commission in the Queensland corrections system which has reinforced her awareness about indigenous prisoners.

[71]

[63] Prior to making her decision Ms Hunter met with various corrective services officers who were involved in the management of the applicant on 9 August 2004. She was provided with verbal advice about the applicant to assist her. She obtained advice from Ms Helen Watkins, acting senior psychologist at Sir David Longland and the general manager. Their advice to her was that the applicant was participating in a program aimed at his treatment/rehabilitation devised by

[72]

Ms Catherine Creamer and implemented by Department psychologists with

[73]

Ms Creamer's oversight which included receiving approximately fortnight psychological interventions, that he was making progress but that at this stage,

[74]

Ms Watkins, supported by the general manager, recommended that he continue in his placement in the maximum security unit.

[75]

[64] Ms Hunter deposed that the minutes of the meeting of 9 August 2004 provided an accurate summary of the advice she then received. That comment was the subject of extensive cross-examination by Mr Cooke. Under the heading "Addressing community risk" in the minutes the senior psychologist summarised the applicant's rehabilitation progress and his acceptable institutional behaviour within the maximum security unit. The minutes included the general manager's recommendation in which he refers to the treating psychologist's comment that "the control required to ensure stability and promote progression including specialist interventions is best met in an environment such as maximum security unit.

[76]

The prisoner remains a real and serious risk to others and will continue with his interventions and subsequent assessments."

[77]

[65] Mr Cooke submitted that the opinion of Ms Watkins said to have been relied upon by Ms Hunter was contradicted by her sessional summary of 28 September 2004, six weeks later. An examination of the document makes clear that Ms Watkins had not, subsequent to her advice to Ms Hunter, reached a conclusion different from that which Ms Hunter said reflected the advice she gave in August 2004. The purpose of Ms Watkin's summary was

[78]

"To provide information on the prisoner's general presentation, and an assessment of his current risk of violence to others in his immediate proximity. This assessment and report is not intended to predict the prisoner's risk of violence in the context of his readiness for MSU prisoner association, or for reintegration in the general prison population. It is merely a guide to his current presentation and likely propensity of violence in relation to his management in the MSU."

[79]

[66] It is clear, contrary to Mr Cooke's contention, that Ms Watkins was not recommending reintegration into the general prison population. She noted the applicant's current risk of violence to others and indicated that he had benefited from his accommodation in a highly structured environment removing him from immediate stresses, provocations and triggers. This enabled him to explore and identify his offence cycle and cognitive distortions. She noted that via his intervention sessions it had been possible to explore appropriate interventions that he may initiate to self manage his anger and frustration in a non-violent manner. This appeared to have resulted in a significant reduction in his immediate risk of violence towards others but continued efforts would be required to monitor escalations in his mood and to provide an appropriate outlet for and analysis of his anger, frustration and other core treatment needs via ongoing psychological interventions.

[80]

[67] When Ms Watkins (who had not made an affidavit and was not otherwise requested for cross-examination) wrote

[81]

"I believe a return to his former management is both safe and appropriate and will assist in prisoner Garland's management on a number of levels (e.g., renewing his optimism for recognition of his improved presentation; and increasing his level of social interaction with staff to reinforce this for all parties)."

[82]

she was writing, as she made clear at the beginning of the summary, to assess his current risk of violence to others in the maximum security unit. I accept that this was consistent with the information Ms Hunter had received from her earlier.

[83]

[68] Ms Hunter also took into account the applicant's individual management plan for

[84]

31 March 2003 to 21 June 2004, the amended maximum security order dated

[85]

21 June 2004, the sentence management review completed on 30 July 2004 and an intelligence profile dated 2 August 2004. Passages from the latter document were deleted by order of the court on 9 November 2004 on the application of the State for security reasons - but are not said to be central to the decision.

[86]

[69] An aspect of the challenge to the decision has been a failure to recognise the risk to the applicant's mental health by such prolonged isolation. Ms Catherine Creamer, a consultant psychologist, not within the corrections system, prepared a forensic psychological report dated 20 August 2002. As a result of her recommendations a psychological intervention program designed specifically for the applicant was established, aimed at addressing his treatment and rehabilitation needs with

[87]

Ms Creamer's overall supervision. Ms Creamer noted that the applicant had developed a social phobia as a result of his long period of what is virtually solitary confinement. She wrote

[88]

"Any attempts to move him out (see recommendations) should be graded and gradual. However, such a lengthy time spent in solitary confinement is damaging and plans to eventually move Mr Garland should start now. A further aim of this report is to aid in this planning process and to help identify when it might be safe to move Mr Garland to normal location. This report does not explicitly say that it will necessarily be safe to move Mr Garland but without suitable intervention, it may never be safe. Suffice to say the conditions under which Mr Garland is currently detained will do nothing to rehabilitate him."

[89]

She noted that should the applicant be required to remain in the maximum security unit with no hope of a move to a normal location (within the prison system) he may give effect to a plan to end his life. Ms Creamer noted that support by counselling and suicide prevention had been core features of the applicant's intervention since his detention in the maximum security unit. She recommended

[90]

"If he [the applicant] were moved now, I think the probability of his offending would be unacceptably high. However, as I said before, this does not meant that he should not receive treatment or that he is beyond treatment. It means the treatment should be appropriate to his risk and need, should be implemented by skilled and experienced practitioners and should be regularly monitored to assess his present dynamic risk status. In other words, there is a significant possibility that if the recommendations are strictly adhered to, Mr Garland may well reach the stage where his risk is lowered to such an extent that he can be moved to normal location."

[91]

[70] Ms Creamer administered the Hare Psychopathy Check List and although the applicant scored below the cut off point for a diagnosis of psychopathy he scored very highly on factors measuring conning and manipulation and as a consequence she recommended that all therapeutic interventions should be by experienced professionals and should be videotaped to ensure that those carrying out the interventions were not manipulated. She was concerned that a strict intervention plan should be drawn up with the applicant so that he understood the prescribed course of therapy and agreed to participate. Ms Creamer concluded that time spent in the maximum security unit should be kept to an absolute minimum and when his personal sexual practices had diminished and an internal psychologist had assessed his dynamic risk factors the applicant should be reviewed for further intervention and possible movement from the maximum security unit. Ms Creamer did not anticipate any early removal into the mainstream prison.

[92]

[71] Ms Hunter sets out in her affidavit, and in her formal reasons for decision, the program formulated for the applicant after receipt of Ms Creamer's report which has continued since December 2002. The intervention phase has been in three blocks. The third and final phase commenced in September 2003. Thereafter the applicant has commenced a maintenance phase of the treatment program which began on

[93]

23 December 2003 and continues. Those intervention programs were before

[94]

Ms Hunter as was a report on the maintenance phase prepared by psychologist

[95]

[72] The maintenance phase of the intervention has been criticised by the applicant's counsel as not progressing the applicant. It is described by Ms Bennett in her reports 25 March and of 2 August 2004 respectively

[96]

"The Maintenance Phase has been to provide prisoner Garland with a break from the intensive intervention he has undertaken over the last 12 months. The intention was to allow prisoner Garland the opportunity to consolidate and reflect on his learning from therapy before passing on with further assessment and rehabilitation work."

[97]

"The Maintenance Phase has been to provide Prisoner Garland with a break from intensive therapeutic intervention and to allow him to concentrate on educational goals, namely completing the Tertiary Preparation Program (TPP) with the University of Southern Queensland (USQ)."

[98]

[73] The fragile nature of the applicant's progress is noted in Ms Bennett's report of

[99]

25 March 2004 when he became extremely frustrated over a couple of incidents one external and one internal. Ms Bennett described the applicant's reaction as "highly volatile and threatening". She said "... it was the highly skilful negotiation by staff that defused the situation rather than the effort by prisoner Garland to exercise self-control."

[100]

[74] Reading the detailed reports of the progress of the intervention gives some understanding of the difficult and intense nature of such programs for both the applicant and the therapist. Ms Bennett wrote that assisting the applicant to remain positive and future oriented and to reflect upon and apply the learning from his previous treatment continued to be a difficult task with his lengthening isolation from the general prison population and his perceived lack of progress despite his compliance and efforts and reforms. Ms Bennett noted that the applicant was encouraged by a letter received from the Executive Committee at Sir David Longland giving positive feedback on his intervention progress.

[101]

[75] Ms Bennett recommended a formal assessment of the applicant's progress and the identification of any remaining areas requiring treatment. Increasing his level of association with other maximum security prisoners she considered would benefit him in terms of support and social stimulation. This comment was made in the context of the murder of the prisoner, Mark Day, in the maximum security unit at Sir David Longland in October 2003 which had brought about the withdrawal of numbers of privileges of association in the unit.

[102]

[76] Ms Hunter noted that Dr Smallbone had been commissioned to conduct a review of the applicant dealing with his placement in the maximum security unit to take place immediately following this hearing. There was critical comment by the applicant's counsel that it had taken these applications to give effect to Mr McGhee's recommendation that Dr Smallbone be retained but Ms Hunter's rejoinder was the need to obtain Departmental funding for the outside retainer. Experience suggests that a six month delay for approval and obtaining an appointment was not outside the ordinary.

[103]

"Having regard to the above matters, I formed the view that Prisoner Garland currently posed a substantial threat to the security or good order of the facility. His history of behaviour demonstrates that he has a propensity towards engaging in threatening, sexually violent and/or violent behaviour in custody. The severity of the offending in the past is a significant concern and demonstrates that his risk has to be very carefully managed. I was cognisant of the fact that his behaviour since his return to custody in 1997 and specifically since his placement in the MSU has been contained and managed. Owing to the level of risk that Prisoner Garland poses - the department has established a structured intervention program involving both experienced independent psychologists and senior departmental psychologists. It is imperative that the prisoner's identified risk be reduced before he is reintegrated into the mainstream prison population. I was briefed on 9 August 2004 in relation to the prisoner's progress in relation to this matter and although he is making positive and encouraging progress, as at 13 September 2004, I was not satisfied on the basis of the information presented in the materials that I considered and the briefing that I received - that this point has been reached. My opinion was that the control required to ensure stability and promote progression, including specialist interventions, is best met in an environment such as the maximum security unit. My opinion was that the prisoner remained a real and serious risk to the safety of others and as such posed a substantial threat to the security or good order of the facility. In reaching this decision I balanced the prisoner's past history with those positive aspects of his case that I have mentioned above, including his current positive behaviour and attitude, the fact that it has been a number of years since his last reported negative incident and his cooperation and progress through the intervention process."

[104]

[78] Many of the complaints in cross-examination of Mr Baldwin and Ms Hunter and in submissions were about the failure by the Department to carry out completely or too slowly the recommendations of Ms Creamer and the official visitors. Those matters are not apt for judicial review and are not the case that has been brought by the applicant. This has led to a tendency in the course of the hearing and in submissions to drift towards a review of the management of the applicant by the Department of Corrective Services rather than a review of the reasonableness of the decision of the delegates, Flynn v R [1949] HCA 38; (1949) 79 CLR 1 at 8; Abbott v Chief Executive, Department of Corrective Services [2000] QSC 492 unreported decision of Williams J of 13 December 2000 at [27] and [28].

[105]

[79] What is important is to keep steadily in mind the observations of Brennan J in Attorney-General (NSW) v Quin (1990) 170 CLR 1 at 35-36 where his Honour noted

[106]

"The duty and jurisdiction of the court to review administrative action do not go beyond the declaration and enforcing of the law which determines the limits and governs the exercise of the repository's power. If, in so doing, the court avoids administrative injustice or error, so be it; but the court has no jurisdiction simply to cure administrative injustice or error. The merits of administrative action, to the extent that they can be distinguished from legality, are for the repository of the relevant power and, subject to political control, for the repository alone."

[107]

[80] The first ground concerns the delegates' failure to take into account and give proper weight to the relevant consideration of the applicant's satisfactory conduct and application to the intervention programs whilst in the maximum security unit.

[108]

The delegates considered these matters exhaustively and carefully but, as was recognised by the psychologists, those matters do not, of themselves, in the highly structured environment of the maximum security unit indicate the elimination or reduction of risk.

[109]

[81] The second ground contends that undue weight was given to the nature and extent of the applicant's criminal history and behaviour during other terms of imprisonment. Although a minor matter, the applicant was returned to prison in April 1997 still under the sentence imposed on 19 December 1986. Mr Cook contended that only what a prisoner does inside prison is relevant to a maximum security order. This cannot be the proper construction of s 47. It is not so limited in terms and a moment's reflection demonstrates that it cannot be a correct inference to draw. The basis for the imposition of the applicant's indefinite sentence was the diagnosis by two very experienced forensic psychiatrists of an anti-social personality disorder with its manifestation in violent, sexually predatory conduct which, Dr Atkinson concluded, was untreatable. Ms Creamer in her 2002 assessment demonstrates the serious nature of the applicant's psychological deficits. That the applicant is sexually indiscriminate is well established. It is the manifestation of the personality disorder in violent, sexually predatory conduct inside and outside prison which is significant, not the past per se. Ms Creamer noted

[110]

"... the best predictor of future behaviour is past behaviour, unless there has been an appropriate and targeted intervention and a subsequent change in thinking style that would reduce the risk."

[111]

Accordingly, it is the disorder that must be looked to and the applicant's response to treatment which is well recognised as a lengthy process. The delegates were aware of all these things and took them into account.

[112]

[82] Ground 1A of the amended application contends that the delegates' belief that the applicant was a substantial threat to the security or good order of the facility was not based on reasonable grounds and therefore illegal. Ms Hunter gave evidence about the dynamic relationships within a prison which must be balanced if there is to be good order. She regarded sexual molestation between prisoners as putting at risk the security of the prison. She concluded that the applicant continued to present a substantial threat both to the security and the good order of the prison. She, as did Mr Baldwin, had regard to the advice of the senior psychiatrist about the applicant's progress, the report from Ms Creamer and the full understanding of the applicant's history informed her decision (and that of Mr Baldwin).

[113]

[83] In George v Rockett [1990] HCA 26; (1990) 170 CLR 104 the court said at 112

[114]

"When a statute prescribes that there must be 'reasonable grounds' for a state of mind - including suspicion and belief - it requires the existence of facts which are sufficient to induce that state of mind in a reasonable person."

[115]

There were ample facts upon which the delegates could reasonable consider that at the time when the orders were made the applicant constituted a substantial threat to the security as well as to the good order of the facility.

[116]

[84] Ground 1B of the amended application asserts that the making of the order aggregating as it does to four and a half years in the maximum security unit constituted inhumane containment contrary to the express purpose of the Act and was therefore illegal. Whilst s 3 of the Act mandates humane containment there are no criteria set out in the Act by which such containment is to be measured. Expressions such as "basic human entitlements" are also recognised as needing to be safeguarded to the extent commensurate with imprisonment and community safety and crime prevention. Community safety must necessarily also include the safety of the members of the prison community.

[117]

[85] Certain sources might be drawn on to assist in ascertaining what meaning should be given to the concepts and expressions found in s 3. Mr Cooke relied extensively on Chapter 29 of the Policy and Procedures Manual published by the Corrective Services Commission, the forerunner of the present Department, in 1998 (exhibit 2). As Ms Hunter pointed out, it was not operative in 2004. The Commission had ceased to exist and the relevant document is the Department of Corrective Services Procedures - Offenders Manual document of 23 July 2004 in its "not for public release" and "public release" versions (exhibit 2). They are lengthy documents and in the "not for public release document" provide close detail for life in a maximum security unit. It is not contended that these requirements have not been followed save for one. Mr Cooke submits that there has been a failure to give effect to the policy found at p 5 of the public document version

[118]

"Planning for a prisoner's progression back into the mainstream prison accommodation must commence with the prisoner's arrival at the maximum security unit. Reintegration of a prisoner into mainstream prison accommodation should be undertaken on a staged and progressive basis and in a manner that is consistent with the prisoner's coping skills. For example, staged reintegration for a particular prisoner could be facilitated through the prisoner's short term placement in a detention unit or other suitable accommodation."

[119]

The treatment received by the applicant has been directed to his reintegration in a broad sense but, as is made clear in the psychologists' reports, he cannot be engaged in a more immediate reintegration program until he is thought to be ready to do so.

[120]

[86] Other sources of what might constitute the meaning of inhumane containment are to be found in the Standard Minimum Rules for the Treatment of Prisoners approved by the Economic and Social Council of the United Nations dated 31 July 1957 (exhibit 5) and referred to with apparent approval in the Australian Department of Foreign Affairs and Trade Human Rights Manual 3rd ed. (2004) at 34 where the Rules are included in the chapter collecting major international human rights instruments and setting out Australian Government policy. The only relevant rule for these applications comes under the heading "contact with the outside world" which provides

[121]

"Prisoners are to be allowed regular contact with family and friends, by both correspondence and personal visits."

[122]

Other rules are apposite to the applicant but there is no suggestion that they have been departed from.

[123]

[87] The Standard Guidelines for Corrections in Australia dated 1996 were made by the relevant government departments of the States. They are based on the United Nations Standard Minimum Rules and the Council of Europe Standard Minimum Rules for prisoners, modified to accommodate trends in correctional thinking in Australia during the 1970's. Rule 5.33 provides

[124]

"Prolonged solitary confinement, corporal punishment, punishment by placement in a dark cell, reduction of diet, sensory deprivation and all cruel, inhumane or degrading punishments must not be used."

[125]

That rule is made in the context of discipline and punishment. The applicant's accommodation in the maximum security unit is not for punishment but for the maintenance of security in the prison environment.

[126]

[88] Ms Hunter was aware of the constraining nature of placement in the maximum security unit. The psychologists' reports are replete with references to the undesirability of maintaining that placement longer than is necessary for the elimination of risk to other prisoners and staff. Her reasons demonstrate balancing the requirements of the security and good order of the facility with the needs of the applicant. Although not explored with Mr Baldwin, his reasons and the material relied on reflect a similar understanding.

[127]

[89] A further ground of review is the failure to take into account considerations of the applicant's Aboriginality, the long-term effect of isolation on his mental health and subsequent re-entry into the ordinary prison population, the recommendations of the Royal Commission into Aboriginal Deaths in Custody, the provisions of the Australia Standards and the United Nations Minimum Rules and Article 10 of the International Covenant on Civil and Political Rights 1979. I have made reference previously to all of these considerations except the United Nations Covenant.

[128]

[90] Article 10 of the Covenant provides relevantly

[129]

"1. All persons deprived of their liberty shall be treated with humanity and with respect for the inherent dignity of the human person.

[130]

3. The penitentiary system shall comprise treatment of prisoners the essential aim of which shall be their reformation and social rehabilitation.

[131]

The International Covenant is incorporated into Australian law by means of s 3 of the Human Rights and Equal Opportunity Commission Act 1986 (Cth), Schedule 2. Similarly to the other instruments considered this may assist in informing a decision maker of the content of the expression "human containment". It adds nothing more to the matters that have previously been canvassed.

[132]

[91] Ms Hunter took into account the applicant's Aboriginality, the recommendations of the Royal Commission into Aboriginal Deaths in Custody, was aware of the Australian Standards for Corrections based on the United Nations Rules and balanced the effects of long-term isolation on the applicant's mental health and re-entry into the ordinary prison population against the need for good order and security in the facility. It cannot be concluded when drawing that balance she erred.

[133]

[92] A further ground of review is that the decision was exercised in accordance with a rule or policy without regard to the merits of the applicant's case. The rule or policy is said to be that high profile prisoners are to be detained in maximum security units as a matter of course. There was no evidence that there was any policy of this kind or that the delegates reached their decisions for this reason whether or not there was any such policy.

[134]

[93] A further ground of appeal is that the delegates improperly exercised the power conferred by s 47 and 48 of the Act. A number of particulars were given (set out above) but Mr Cooke developed two. He submitted that s 47 and 48 orders may only be made for the short term enforcement of discipline or restraint of prisoners and not for long-term management. That such orders are exceptional is plain from the statutory context but it is also clear that there is no legislative prohibition against containing a prisoner for a long period of time in a maximum security facility subject to the continuing satisfaction of the respondent, on reasonable grounds, that one of the three conditions apply. There is no legislative limit on the number of maximum security orders that might be made.

[135]

[94] As has been emphasised in cases such as Abbott v Chief Executive, Department of Corrective Services and Kidd v Chief Executive, Department of Corrective Services [2000] QSC 405; [2001] 2 Qd R 393 the "currency of the risk" at the time when the order is made is paramount. The delegates had recent material to assist in making their decision which was not simply a recycling of the old.

[136]

[95] Mr Cooke submitted that the purpose of keeping the applicant in the maximum security unit was legislatively impermissible one, namely, to undergo intervention programs. Whilst Mr Baldwin thought that the maximum security unit was the best location for the applicant to undertake his treatment this was to take out of context of what the treatment involved. The treatment is expressly directed to addressing the risk the applicant presents to the mainstream prison population. The various blocks of the intervention treatment together with the maintenance phase are addressing that risk. Dr Smallbone is currently retained to assess the effectiveness of the intervention treatment in reducing the risk.

[137]

[96] I was not persuaded that either delegate exercised the power conferred by s 47 for any purposes not authorised by s 47.

[138]

[97] The final ground is that no reasonable decision maker could make the decision having regard to all the available material. The "reasonableness" must be directed to the question whether there was sufficient material before the delegate permitting her to decide to make a maximum security order "on reasonable grounds" on the basis of the criteria set out in s 47(2)(b)(iii) of the Act. Ms Hunter balanced the prisoner's past history with the positive aspects of his present behaviour and positive attitude, his cooperation and progress through the intervention process with her knowledge of the applicant and the reports of the psychologists and concluded that the applicant was not yet ready for integration into the mainstream prison community.

[139]

[98] The material demonstrated that her decision to make the order was made on reasonable grounds. To the extent that it is necessary to make the finding so was the decision of Mr Baldwin.

[140]

[99] Both Mr Baldwin and Ms Hunter as delegates of the respondent had reasonable grounds for making the orders accommodating the applicant in the maximum security unit at Sir David Longland. They therefore acted within jurisdiction when they made the orders. No bases for illegality have been established and no other grounds of review have been made out.

[141]

[101] The application pursuant to s 48 of the Judicial Review Act 1991 is dismissed.

At a glance

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Judgment (141 paragraphs)

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Cases Cited (17)