Gerrits v Department of Corrective Services [2003] QSC 281

Gerrits v Department of Corrective Services [2003] QSC 281 - QSC 2003 case summary — Zoe

[6]

[4] I accept his evidence that, until June 2002, he was unaware of the time limit and could not afford legal assistance. However, his affidavit does not explain why some eight months then passed before this application was filed. Section 26(1)(b) permits the court to extend time but it does not express the considerations relevant to the exercise of that power. These considerations are established by a number of decisions including Kuku Djungan Aboriginal Corporation v Christensen [1993] 2 Qd R 663; Jobson v Queensland Corrective Services Commission (unreported application No 434 of 1994, 1 August 1994) and Hoffman v The Queensland Local Government Superannuation Board [1994] 1 Qd R 369. They include whether the delay is satisfactorily explained but also whether any prejudice to the respondent would result, where the public interest lies and the apparent merits or otherwise of the challenge to the decision. In Hoffman, Thomas J at 372 observed that there was some difference of view as to whether the provision of an adequate explanation for the delay is a pre-condition to an extension of time, and said: "Perhaps it is not, but the absence of an explanation for a delay must at least be a persuasive factor against granting an extension". In my view, the absence of a satisfactory explanation for the delay is not fatal to an extension of time in every case: such a precondition would require an express qualification to the broad discretion conferred by the section. Nevertheless, the absence of that explanation in this case is very much against the extension of time. In addition, although I was told from the Bar table that a prisoner can only make one remission application, it is not apparent why he cannot reapply: the Act does not so provide and the relevant facts and circumstances of a prisoner might change in the course of a lengthy sentence. If the applicant is entitled to reapply, that is a factor against an extension of time, unless the present decision is affected by some error which is likely to affect that new application. But as I have heard full argument upon the merits of the review application, and I have decided that, if permitted, the application would fail, it is unnecessary to discuss further the considerations relevant to an extension of time.

[41]

[11] The first of them is that the discretion was exercised in accordance with a rule of policy without regard to the merits of the applicant's case.[1] It is argued that the facts demonstrate the existence and application of a policy to the effect that a sexual offender who has not completed the Sexual Offenders Treatment Program should not be granted remission. The argument heavily relied upon decisions involving this respondent or its predecessor in cases which had involved a refusal to remit the sentence of a sex offender who denied his crime or who had refused treatment: Felton v Queensland Corrective Services Commission [1994] 2 Qd R 490; Yeo v Queensland Corrective Services Commission (unreported 7534 of 1997, 13.02.98); Wiskar v Queensland Corrective Services Commission [1998] QSC 279; Fogarty v Department of Corrective Services [2002] QSC 207. It is not the principle involved in those cases which is in question but its application to the facts of the present matter. In this case, there is no document such as a Ministerial guideline[2] evidencing the alleged policy. The applicant's case says that the policy is apparent from the documents to which I have referred, but that is not as I read them. Undoubtedly, the fact that the applicant has not undergone the Sexual Offenders Treatment Program has been thought to be relevant as, in my view, it is. As the proper purposes of a program would include the reduction of the prisoner's risk of reoffending, that risk is potentially affected by, amongst other things, whether the prisoner has participated in the program. This prisoner's non participation is given some prominence in the written decision and the preceding letter of 30 November 2001. However, it was but one of many matters considered by the delegate, another of which was the psychological report which details the many matters underpinning the psychologist's assessment. The delegate was not obliged to accept the psychologist's view and he was required to form his own judgment as to whether he was satisfied that there was not an unacceptable risk. But in reaching his own view, he was entitled to rely upon the psychologist's opinion, which was that the applicant presented "at least a moderate risk of violent or sexual recidivism if ... released into the community at this point in time". That opinion was expressly "based on the results of the risk assessment test and corroborated by information provided during the current interview". It was not an opinion that he was such a risk because he had not undertaken the Sexual Offenders Treatment Program. Nor was that the effect of the delegate's decision.

[43]

[13] Thirdly, the applicant sought to invoke s 23(b) with the assertion that a number of matters which the delegate was required to consider were not considered. However, the allegation was somewhat diluted by the written submission that these matters were "given very little if any weight".[3] The considerations in question are set out in paragraphs 4(a) to (l) within the proposed application. In no instance, however, is it demonstrated that such a matter was not considered by the delegate. Those the subject of paragraphs (a), (b) and (c) involve effectively the one matter, which is the applicant's willingness to participate in a program in the community, once released from custody. That was noted in the third paragraph of the delegate's decision. The matter in paragraph (d) was discussed by the psychologist[4] and is not shown to have been overlooked by the delegate. The matters in paragraphs (e) and (f) were discussed in the applicant's letter of 31 December 2001, written in response to the Department's letter of 30 November 2001. Again, it is not demonstrated that these matters were not considered by the delegate. The matter in (g) is the psychiatric report of Dr Atkinson, which plainly has been considered. The delegate was obliged to consider it but not to accept it in its entirety. The matter in (h) is said to be "the applicant's greatly reduced risk of reoffending consequential upon his own self directed efforts while in custody.". This is related to the matter (i) which is "the applicant's low community risk confirmed by the `OINI' completed on 22 November 2000.". That matter was discussed within the Remission Assessment[5] and is not shown to have been overlooked by the delegate. More generally, the delegate no doubt considered the applicant's good conduct and industry, of which he was satisfied for the purposes of s 75(2)(b) of the Act. That required the delegate to consider the matters within s 78. Again, it is not demonstrated that he has failed to consider any relevant conduct of the applicant whilst in custody, including each of the matters in paragraphs (j), (k) and (l) of paragraph 4 of the application. Of course, the fact that these are matters which had to be considered under s 78 for the delegate to be properly satisfied of the applicant's good conduct and industry under s 75(2)(b), does not mean that he did consider them, either for that purpose or, if necessary, for the purpose of assessing the extent of the risk from the applicant's discharge. The present question is whether he considered them in assessing that risk, and it is not demonstrated that he failed to do so. All of this then explains why the submissions in reliance upon s 23(b) were reduced to an allegation that insufficient weight had been given to those various matters. The submission became one which would be relevant upon a merits review, but not one grounding an application under the Judicial Review Act.

At a glance

Court

Decision date

Before

Catchwords

Source

Catchwords

Judgment (46 paragraphs)

Parties

Legislation Cited (2)