Jonathon Davison v Commissioner for Corrective Services

Supreme Court of NSW|2011-06-21|Before: McCallum J, Wood J

Judgment 1Jonathon Davison murdered a woman on 25 December 1990. He was then aged 19 years. He pleaded guilty to the offence and was sentenced by Wood J to a term of imprisonment of 20 years and 5 months with a minimum term of 13 years and 5 months and an additional term of 7 years. His minimum term expired on 10 February 2006. Since that date, he has been refused parole and remains in prison. His sentence will end on 10 February 2013. 2By these proceedings, Mr Davison seeks prerogative relief in the nature of orders for certiorari pursuant to s 69 of the Supreme Court Act 1970 and declaratory relief under s 75 of the Act in respect of the following decisions concerning the administration of his sentence: (a) a decision of the Commissioner of Corrective Services (the first defendant) made on 13 October 2010 in respect of Mr Davison's classification and placement as a prisoner; (b) the decision of the Serious Offenders Review Council (the second defendant) made on 19 October 2010 to advise the New South Wales State Parole Authority (the third defendant) that it was not appropriate in the public interest for Mr Davison to be considered for release on parole; (c) the decision of the Parole Authority made on 13 January 2011 refusing Mr Davison a review hearing of his parole and refusing parole; (d) the decision of the Parole Authority made on 24 March 2011 refusing a review hearing of Mr Davison's parole. 3Mr Davison requires leave under s 4 of the Felons (Civil Proceedings) Act 1981 to institute the proceedings. The defendants do not oppose the grant of leave.

Completion of referral to the sex offender program 17A detailed and helpful chronology provided by the parties gives a good understanding as to the genesis of the problem. Without descending into all detail (and at the risk of over simplification) the salient events may be summarised as follows. 18I think the Department would accept that, for at least a period of time, Mr Davison's ill health remained an impediment to his participating in any intensive, custody-based sex offender program. The impasse emerged after his condition improved. In order to be considered for a suitable program, Mr Davison had to complete and sign a form providing information about the offence and giving his consent to be referred to a suitable program. For a considerable period of time, Mr Davison failed or refused to complete the form to the satisfaction of the relevant authorities. His approach to that issue was driven by a number of concerns including the fact that he did not perceive his offending as entailing a sexual component, his desire to receive more information about the programs and his fear that there would be reprisals against him from other inmates if he became identified and stigmatised within the prison system as a sex offender. 19In February 2006, upon the expiration of his minimum term, Mr Davison was refused parole due to his perceived inability to adapt to normal lawful community life; the risk of re-offending and the need for him to address the sexual component of his offending behaviour. 20The wrangling as to the need for Mr Davison to complete the consent form for referral to the sex offender program continued. In December 2006, Mr Davison wrote to the Parole Authority: I will concede that there is a suggestion that there is some level of sexual motivation to my offence. However, without full recollection of events, and subsequential insight into the crime, I cannot confirm something that may or may not have happened ... I refute the claim that I have been avoiding treatment. 21In October 2008, Mr Davison wrote: ... It is my ideological and methodological objection to the program and to the principles which underpin them. I do not concede of there being a sexual motivation to my offence, nor do I believe in the treatment regime, based as it is on the Canadian model, and is premised on what I know as the bio-medical model. As far as I have been able to ascertain, there is no causal relationship between participation in your program and reducing recidivism. 22After being pressed further for completion of the relevant forms in terms satisfactory to the department, Mr Davison ultimately completed his referral for CUBIT by January 2010. In April 2010 he provided the following further response to the question "Briefly describe what happened" (relating to the offence): My perception of the crime is one of violence not of sexual offending. There is no sexual component to report. 23The result of the referral was that, in July 2010, Mr Davison was found unsuitable for either of the programs previously nominated (CUBIT and CORE) due to his denial that there was a sexual component to his offending, but suitable for the Deniers program. He was advised that his name had been placed on a waiting list for that program. He subsequently consented to referral for assessment for the Violent Offender Therapeutic Program (VOTP) but was found ineligible for that program due to his low risk of re-offending.

Decision of the Commissioner 24On 6 October 2010, the Review Council recommended that Mr Davison's classification be reduced to C2 with a consequential change of placement. The reasons given for the decision were to assist Mr Davison's eventual progression to supervision in the community, noting that he had been found ineligible for VOTP, had no history of violent re-offending, had completed the CALM and SMART programs and was on the waiting list for the Deniers program, was assessed as having a low risk of recidivism, had only two offences in custody (none since 2005) and that he had completed his minimum term, with his sentence expiring on 10 February 2013. The report noted that the Deniers program was not anticipated to commence until "mid next year". It stated: Inmate to be advised that Council expects that he will undertake Deniers program before further progression is considered. 25On 13 October 2010, the Commissioner decided not to accept the Review Council's recommendation. The decision was recorded in the form of an endorsement on the memorandum of the Review Council. The endorsement was in the following terms: Comply with programs nominated. Review again in six months. 26As already noted, any decision by the Commissioner to change Mr Davison's classification was to be made with mandatory regard to the recommendations of the Review Council. Although the regulation does not say so in terms, that requirement would extend clearly enough in my view to any decision not to change the classification. 27I am mindful of the constraint this Court should exercise in reviewing managerial decisions made within a prison: see Modica v Commissioner for Corrective Services (1994) 77 A Crim R 82. It was submitted on behalf of the defendants, and I accept, that I should not interfere with the decision unless convinced that the recommendation of the Review Council was not considered (or unless the decision was made in bad faith, which is not alleged in the present case). 28It was acknowledged on behalf of Mr Davison that the Commissioner was not bound to accept the recommendation of the Review Council. It was submitted, however, that the Commissioner could not have taken the recommendation into account. Ms Burgess, who appeared for Mr Davison, submitted that the direction to comply with "programs nominated" must refer to the Deniers program, since that was the only outstanding program at the time of the decision, Mr Davison having been assessed as ineligible for the CUBIT, CORE and VOPT programs. 29The Review Council's recommendation included the information that Mr Davison was on a waiting list for the Deniers program and that the program was not anticipated to commence for nine months. 30The terms of the Commissioner's decision, expressed in the imperative rather than as a record of a decision or opinion duly reached, reveal nothing of the reasons that moved the delegate not to accept the recommendation of the Review Council. One is left to speculate. 31Although the delegate was not bound to accept the Review Council's recommendation, he or she was bound to consider it. It was submitted on behalf of the defendants that, in the absence of evidence to the contrary, the Commissioner must be presumed to have read and considered the recommendations of the Review Council which appeared immediately above the note of the decision. In my view, the terms of the decision itself overwhelmingly support the contrary inference. In circumstances where the only outstanding program "nominated" in respect of Mr Davison was not anticipated to be available for nine months, a direction that he comply with that program and be reviewed in six months time made no sense. The plaintiff would have no ability to follow the directive, and there would be no utility in any such review in the circumstances. 32The task of the delegate was to form an opinion in the terms of clause 22 of the Regulation. In particular, the delegate had to form an opinion as to whether Mr Davison should be confined by a physical barrier unless in the company of a correctional officer or some other authorised person, or whether (conversely) he was an inmate who did not need to be confined by a physical barrier at all times but who needed some level of supervision. Mr Davison's prior failure or refusal adequately to complete the forms for referral to a sex offender program was of limited relevance to that choice and, in my view, was not of itself a reason to refuse to reduce Mr Davison's classification: cf DCU v State Parole Authority of New South Wales [2006] NSWSC 526 per Johnson J at [45] to [53] and the cases there cited. 33It was submitted on behalf of the defendants that the decision must be read in the context of the lengthy history of consideration of Mr Davison's case as recorded in the earlier reports of the Review Council. I accept that is so, but in my view such consideration only confirms the apprehension that the content of the most recent report must have been overlooked. Following a tortuous process, Mr Davison had finally completed the relevant forms and a single appropriate program had been identified, but it was not available for 9 months. A direction to complete "nominated programs" coupled with an apparent blanket refusal to reduce the classification in the meantime points strongly to the conclusion that the detail of the recommendation was passed over, perhaps understandably having regard to the firmly entrenched positions of the relevant players by that stage.

Inflexible application of policy 34A separate ground for impugning the Commissioner's decision was that it must have entailed the inflexible application of a policy without regard to the individual merits of the case. It was submitted on behalf of Mr Davison that there is overwhelming evidence from a number of documents that the Department of Corrective Services has a policy that reduction in classification and change in placement of a sexual offender will be delayed until eligibility and participation in a sex offender program is confirmed. A series of documents was relied upon in support of that submission but there is no need to recite them. 35In my view, if (contrary to the conclusion I have reached) the delegate did consider the recommendation of the review Council, the terms of the decision itself provide ample support for the conclusion that the rejection of that recommendation must have entailed the inflexible application of a rule or de facto policy that the reclassification must be refused simply because Mr Davison had not completed the nominated sex offender program at that time. Absent the expression of any other reason for rejecting the reclassification, that is the only sensible explanation for the decision, in my view (assuming that the terms of the Review Council's recommendation were considered by the delegate). 36The relevant principles are conveniently summarised in the plaintiff's written submissions as follows: While it is permissible for a decision maker to develop criteria for the exercise of a discretionary statutory power and to take account of policy in doing so: Drake v Minister for Immigration and Ethnic Affairs (1979) 24 ALR 577, a failure to consider the circumstances of an individual case will constitute an error of law, Green v Daniels (1977) 13 ALR 1. A discretionary power "must be exercised on each occasion in the light of the circumstances at that time: " R v Secretary of State for the Home Department; Ex parte Venables [1998] AC 407 at 496-497; ID, PF and DV v Director General, Department of Juvenile Justice (2008) NSWSC 966 at [284]. In Surinakova v Minister for Immigration, Local Government and Ethnic Affairs Hill J held that policies can "ensure consistency of administrative decision making", but a "decision maker must take care to ensure that he does not slavishly follow a policy and disregard the particular circumstances of a case". Hill J also cited with approval the decision in Khan v Minister for Immigration and Ethnic Affairs [1987] FCA 457, where Gummow J said at [25]: "... what was required of the decision maker, in respect of each of the applications, was that in considering all relevant material placed before him, he give proper, genuine and realistic consideration to the merits of the case and be ready in a proper case to depart from any applicable policy. 37The defendants accepted that, if the Commissioner had inflexibly applied a policy without due regard to Mr Davison's individual circumstances, that would constitute an error of law. It was submitted, however, that his contention as to the existence of such a policy (no reclassification for sex offenders until completion of treatment programs) was founded on mere speculation. I disagree. In my view, there is ample basis to infer the existence of such a rule or policy. 38The Commissioner's processes were summarised in an affidavit affirmed by Ms Sue Wilson. She stated that inmates assessed as being at a low risk of re-offending generally progress in classification levels without a pre-requisite for program participation unless gaol behaviour or other factors such as intelligence, time left to serve, association or protection matters indicate an unsuitability for a minimum security environment. 39At paragraph 32 of her affidavit, Ms Wilson stated that sex offenders assessed as suitable for a therapeutic program who refuse to undertake that program do not generally progress beyond C2 classification (as already noted, Mr Davison remains at the higher classification, C1). Ms Wilson stated: this reinforces to inmates the priority that the organisation places on program participation as well as ensuring 'untreated inmates' retain an appropriate security presence. 40It was submitted on behalf of the defendants that, expressed in those terms, the relevant procedures could be seen not to entail any policy prohibiting reduction in classification to from C1 to C2 (any relevant policy relating only to progression beyond C2). The difficulty, however, is that Ms Wilson's description of the perceived relevance of program participation to classification and placement only serves to reinforce the apprehension that progression is tied to the completion of programs. That is the only sensible understanding of the reference to "reinforcing" to inmates the "priority" placed on program participation. 41The extent to which inmates appreciate the priority that the department places on program participation is of doubtful relevance to the opinion the Commissioner is required to form when classifying an inmate in accordance with clause 22 of the Regulation. 42For those reasons, I am persuaded that so far as the record reveals, the Commissioner's decision entailed error and should be set aside. Accordingly it is not necessary to consider Mr Davison's alternative ground that the decision entailed irrationality or unreasonableness as comprehended in the decision in Associated Provincial Picture Houses Limited v Wednesbury [1948] 1 KB 223.

Decision of the Review Council 43On 19 October 2010 the Review Council advised the Parole Authority that it was not appropriate in the public interest for the plaintiff to be considered for release on parole. As already noted, a consequence of that decision is that, pursuant to s 135(3) of the Act, the Parole Authority must not make a parole order except in exceptional circumstances. 44The decision was the exercise of the function of the Review Council under s 197(2)(b) of the Act. A list of the matters the Council must consider when exercising its functions under that section is contained in s 198 of the Act. The matters listed include "any other matter that the Review Council considers to be relevant" (s 198(2A)(f) of the Act). 45The decision was recorded in the following terms: "Council has been consistently of the view that DAVISON needs to address his offending behaviour. Council notes that DAVISON has been assessed as ineligible for VOTP but that he has been assessed as eligible for the CUBIT Deniers Program. Council believes that it is essential that he complete this program before being considered for parole. Therefore, Council is of the view that it is not appropriate for DAVISON to be considered for release to parole at this time. In preparing this advice the Review council has had regard to the matters to be considered under sections 197 and 198 of the Crimes (Administration of Sentences) Act 1999. 46The first basis for challenging the decision was an alleged failure to take relevant considerations into account. Without derogating from the careful and comprehensive submissions prepared on behalf of Mr Davison, this challenge may be summarised in the proposition that the Council was obliged, under the rubric "any other matter that the Review Council considers to be relevant", to take into account the fact that the Deniers program was not available for at least nine months and the fact that Mr Davison could be assessed for a sex offender program in the community organised by the ACT Corrective Services if his parole was transferred there. It was acknowledged that the decision recorded that the Council had "had regard" to the matters to be considered under sections 197 and 198. It was submitted, however, that it may be inferred from the advice actually given that Council did not in fact take those matters into account. 47The plaintiff's written submissions provide a compelling critique of the advice of the Review Council by reference to the circumstances on the strength of which it might have reached a different conclusion. However, as submitted on behalf of the defendants, much of what has been put in that respect amounts in effect to an invitation to the Court to review the merits of the decision. That, of course, is beyond the permissible scope of my task. 48The determinant as to what was required to be taken into account by the Review Council under section 198(2A)(f) was the Council's own consideration as to what was relevant. The weight to be placed on any individual consideration was a matter for the Council. 49The plaintiff submitted that the fact that he had not acknowledged a sexual component to his offending and had not participated in a sexual offender program in custody should not have been the sole determinative factor. Ms Burgess relied in that respect upon the decision of Johnson J in DCU to which I have already referred and the decision of Adams J in Galli v NSW State Parole Authority [2006] NSWSC 206 at [7]. 50As explained in the decision of Mott referred to by Johnson J in DCU , there will be circumstances in which a refusal to acknowledge guilt (or a sexual component to the offence) may be regarded as a relevant consideration in assessing an application for parole. The relevance of such a circumstance to the question whether an inmate should be considered for release on parole is perhaps more remote. 51It is apparent from the body of the report that the Review Council regarded the plaintiff's acceptance into the Deniers program, including the likely starting date, to be a relevant consideration. The more difficult matter to discern is the extent to which the latter consideration was taken into account. The report recorded the fact that the program was not anticipated to be available until the middle of 2011. Although it is perhaps not the conclusion every person would reach, it seems to me to have been open to the Review Council to take a hard-line approach on that issue in the present case. The difficulty is that the reasons for decision reveal no analysis of that complexity of the matter, an issue to which I will return. 52I am not persuaded that the conclusion of the Review Council that completion of the Deniers program was "essential" before parole would be considered in itself necessarily demonstrates that the Council overlooked, as a relevant consideration, the likely delay until the commencement of that program. 53For the same reasons, I do not think that it can be concluded that the decision reflected the inflexible application of a policy that sex offenders will not be recommended for release on parole if they are "untreated" in the sense that they have not participated in one of the department's specified sex offender courses. As noted in the submissions on behalf of the defendants, the lengthy history of material before the Review Council revealed a legitimate basis for concern that the plaintiff's rehabilitation as a sex offender had not progressed to a satisfactory extent. 54That brings me, however, to Mr Davison's separate contention that the Review Council gave inadequate reasons for its decision. It was submitted that it was necessary for the Council to indicate why, taking into account the statutory criteria and other relevant matters, it was essential for the plaintiff to do the Deniers program in custody before being considered for release on parole. It was further submitted that it was necessary for the Council to explain its decision in the light of delay in the commencement of the program in custody, which would inevitably lead to the plaintiff's spending at least another year in custody in order to complete it. 55The defendants accepted that the relevant principles were as stated in the plaintiff's submissions. In particular, it was accepted that a duty to give reasons is necessarily implied by the terms of sections 197 and 198 of the Act, since part of the Review Council's statutory duty is to provide advice to the Parole Authority and its advice has important legal consequences for serious offenders. 56The defendants accepted, further, that the content of the requirement is as stated by Mahony JA in Soulemezis v Dudley (Holdings) Pty Limited (1987) 10 NSWLR 247 at 273. However, they submitted that the content of the obligation is also informed in the present case by the terms of the statute. It was submitted that the Review Council's "audience" is the Parole Authority, whose members will have a working understanding of the prison system, the kinds of rehabilitative programs offered in prison and the statutory criteria that bind the Review Council. 57That submission overlooks an important aspect of the obligation to provide reasons, namely the need to apprise Mr Davison of the explanation for the decision made. In my view, there is force in the contention that the reasons were inadequate to explain why it was considered essential for Mr Davison to complete the Deniers program in custody when that would extend by so long the period before which he could even be considered for parole. 58I accept that the decision had to be read in the context of the lengthy history of administration of Mr Davison's sentence. However, the sands were shifting. The identification of the fact that the only program for which he was eligible was one which would not be available for nine months, coupled with the fact that the end of Mr Davison's sentence was hurtling forward, in my view called for a discrete analysis. The decision does not reveal whether that analysis was in fact undertaken and, if it was, what considerations lead the Council to conclude that the completion of a program that was then unavailable was nonetheless "essential" before it would give its recommendation that Mr Davison be considered for release on parole over five years after the completion of his minimum term. 59I am persuaded that the decision entailed error only in that respect. 60Having regard to the obvious importance of these matters to Mr Davison, I consider it appropriate to exercise my discretion to set aside both decisions. It was acknowledged on behalf of the defendants that, in those circumstances, there would be no need for me to determine the challenge to the decisions of the Parole Authority, it being inevitable that those decisions would arise for fresh consideration in that event. 61The orders are: (1)That the plaintiff have leave under s 4 of the Felons (Civil Proceedings) Act 1981 to institute these proceedings. (2)That the decision of the first defendant made on 13 October 2010 not to reduce the plaintiff's security classification from C1 to C2 and not to change the plaintiff's centre of placement be set aside. (3)That the decision of the second defendant made on 19 October 2010 to advise the third defendant that it was not appropriate for Mr Davison to be considered for release t parole be set aside.

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