McCallum v The Commissioner of Corrective Services

IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION ADMINISTRATIVE LAW LIST

Thursday 6 June 2002 30067/01 - JOHN DARRIN McCALLUM v THE COMMISSIONER OF CORRECTIVE SERVICES

JUDGMENT 1 HIS HONOUR: Classification is a tool of understanding as essential for the administrator of a prison as Linnaeus showed it to be for the scientist probing a universe of botanical learning. This case concerns the taxonomy established and regulated by the Crimes (Administration of Sentences) Regulation 2001, in its application to the plaintiff. In significant measure, his classification within the prison system will determine the way in which discretionary powers will be exercised in respect of him. Mr McCallum, who appeared in person, sought by the summons in this matter to challenge the legality of certain decisions which had been made, or which he feared would be made, affecting his classification as a prisoner. 2 The governing statute is the Crimes (Administration of Sentences) Act 1999, s 79 of which enacts (in part): "The regulations may make provision for or with respect to the following matters: (a) the management, control, administration, supervision and inspection of correctional centres and correctional complexes, … (c) the classification of inmates [defined, by s 3, so as to include a person serving a sentence of imprisonment in a correctional centre] into different categories and the separation of inmates by reference to the categories into which they have been classified, … (l) the procedures to be followed by an inmate when applying for a local leave permit or interstate leave permit, and the circumstances under which such a permit may be issued, … ."

Clause 22 of the Crimes (Administration of Sentences) Regulation 2001 , reflecting s 79(c) of the Act, provides for a classification of inmates into six categories - in diminishing order of the need for their restraint - identified as A1, A2, B, C1, C2 and C3. Category C2 is "the category of inmates who, in the opinion of the Commissioner, need not be confined by a physical barrier at all times but who need some level of supervision by a correctional officer or some other person authorized by the Commissioner". Category C3 is "the category of inmates who, in the opinion of the Commissioner, need not be confined by a physical barrier at all times and who need not be supervised." 3 It will be observed that the distinction between the categories C2 and C3 is not simply the need to be supervised, but the opinion of the Commissioner upon that matter: cf Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 277, and see the discussion on the pages preceding 277. In the present case, this opinion is crucial; at least until now, the Commissioner has consistently maintained that Mr McCallum requires supervision, so he has not been able to progress from category C2 to category C3. Without progressing to category C3, Mr McCallum faces a serious impediment to his hopes of achieving work release in the not too distant future. 4 In order to enable the issues to be appreciated, it is necessary to state briefly the circumstances that led to the plaintiff's incarceration. Following his conviction by a jury on four counts alleging offences under s 61I of the Crimes Act 1900 of having sexual intercourse without consent, one of an attempt at such intercourse and one under s 89 of detaining a female against her will with intent to carnally know her, the plaintiff was also sentenced, upon his pleas of guilty, in respect of two quite unrelated serious offences under s 97, shortly described as robbery whilst armed and armed assault with intent to rob. Freeman DCJ, in respect of each of the offences the jury found proved, sentenced Mr McCallum to serve a fixed term of imprisonment of 7 years to commence on 1 May 1993, all these sentences to be concurrent; and, cumulatively upon these sentences, his Honour sentenced Mr McCallum, in respect of the offence shortly described as robbery whilst armed, to serve a minimum term of imprisonment of 3 years from 1 May 2000 to be followed by an additional term of 4 years, and in respect of the offence shortly described as armed assault with intent to rob, to a further minimum term of 3 years and a further additional term of 4 years to be served concurrently with the minimum term and additional term imposed in respect of the robbery whilst armed. The effect of these sentences is that the earliest date on which the plaintiff may be eligible to be released on parole will be 30 April 2003, and that his concurrent additional terms will expire on 30 April 2007. 5 The six offences of a sexual nature were all committed in respect of the one victim, a university student aged 19, who told the plaintiff she was a virgin. He was then aged nearly 27, and married, with a small child. As a result of an advertisement for baby sitting work she had inserted in a newspaper, and the plaintiff's response by telephone, it was arranged that the victim would call at the plaintiff's home with a view to her possibly doing baby sitting in the future. But after some discussion, when she attempted to leave, she was seized with an arm around her throat, dragged into a bedroom, bound, undressed, and subjected to repeated acts of vaginal and anal intercourse, as well as the use of a dildo. Freeman DCJ described these events as involving the victim's "being lured, deliberately … into a situation from which she could not escape, being ravaged repeatedly … [and] being subjected to the most crushing form of humiliation and abuse." His Honour's devastating comments are plainly appropriate, and it should be borne in mind that the maximum sentence for each of the six crimes in question is 14 years. 6 The two offences involving armed robbery and armed assault with intent to rob carry maximum sentences of imprisonment for 20 years. One of them was committed when the plaintiff effected entry into an hotel room armed with a replica pistol, his face masked with a balaclava, and tied up two women, whom he menaced with the pistol and robbed. The other was committed shortly afterwards, when the plaintiff hitched a ride in a motor car driven by a man of 84 years of age, who also was menaced with the replica pistol with a view to robbery. 7 In arriving at the sentences he considered appropriate, Freeman DCJ applied the totality principle, according to which "a court, which has correctly fixed a series of consecutive sentences as the appropriate periods, is obliged at the end of the process to consider whether the aggregate figure represents a proper period of incarceration to be imposed for the total criminality involved": McDonald v The Queen (1994) 48 FCR 555 at 563; and see Mill v The Queen (1988) 166 CLR 59 at 62-3; Director of Public Prosecutions v Grabovac (1998) 1 VR 664 at 676-681; R v Booth (2001) 1 Qd R 393 at 398-399; Jarvis v The Queen (1993) 20 WAR 201. 8 Although, so far as possible, a court should endeavour to achieve the result required by the totality principle, not by a series of what Ormiston J in Grabovac at 681 called "artificially inadequate" consecutive sentences, but by appropriate resort to the imposition of concurrent sentences, the reasoning of Ipp J in Jarvis at 208-209 shows plainly that, in practice, the length of an individual sentence, whether or not it is concurrent with some other sentence, may be adjusted to enable its cumulation with a further sentence to produce the outcome that is just overall; cf Arnold v The Queen (1996) 71 FCR 117. The sentencing remarks made by Freeman DCJ show plainly that this is what happened here. His Honour said: "I emphasise this, that the sentences which I impose for the sexual abuse … are much less than I would ordinarily have imposed, given the objective seriousness of those offences, were it not for the fact that these sentences are to be the base upon which cumulative sentence will ensue."

It is also, I think, inherent in the judge's use of the totality principle that the selection of the minimum term owed something to his Honour's assessment of what the total criminality merited. In McDonald at 563, Higgins J and I said: "The principle applies just as much to the effective non-parole period fixed in respect of a series of consecutive sentences as to the total of the sentences." 9 I have explained in some detail this aspect of the punishment imposed on Mr McCallum because it is at the heart of the complaint he brings before the Court. He contends that the prison authorities have erred in law in having regard to his sexual offences, and what is seen as his failure to co-operate in psychological treatment aimed at reducing the risk of their repetition, when determining his classification as C2, and not C3. He says he has served the full period of the fixed term in respect of his sexual offences, and his classification should now depend entirely on factors related to the armed robbery and armed assault charges. But it seems to me the application of the totality principle, of which he has had the benefit, inescapably means that the total period of his incarceration is related to the total criminality that was the ground of the aggregate imprisonment considered just. A similar view was taken by Sully J, who dealt with an earlier application by Mr McCallum, in McCallum v The Commissioner of Corrective Services of New South Wales (unreported, 27 March 2001). His Honour said, after referring to the imposition of the fixed terms: There was, of course, an important reason for that approach by the sentencing Judge, namely, the reason that the Judge imposed, simultaneously with the six sentences for sex-related offences, two cumulative sentences for robbery offences. Because the Judge was sentencing at the one time for eight separate offences; and because two of the eight sentences were to be cumulative rather than concurrent; the Judge was required to set one parole period for all eight sentences; and that parole period was required to be reasonably proportioned to the total period to be served in custody on account of all eight of the sentences passed simultaneously. The parole period of four years relates, therefore, to the totality of the plaintiff's criminality. That totality is expressed, in terms of years, as being fourteen years of which not less than ten years will be served in full-time custody. Throughout those ten years the plaintiff's status is that of both a convicted sex-offender and a convicted robber. So to treat the plaintiff for the purposes of his integrated classification and case management is, in my opinion, neither an abuse of power nor unreasonable."

These remarks, of course, are directed particularly at the ten years portion of the sentence, but the logic would also apply to the full period of fourteen years. 10 In any case, the Commissioner is entitled, when forming the opinion that determines whether Mr McCallum should progress from classification C2 to C3, to take account of matters relevant to the question of supervision which may be unrelated to any offence of which he currently stands convicted. The question of the need for supervision requires a prediction, necessarily attended by uncertainty, or at least some assessment, to be made on the hypothesis of the absence of supervision. In making that prediction or that assessment, the Commissioner is entitled to look to a wide range of matters including those in the past, whether or not some matter in the past has been the subject of a prosecution, and whether or not, if it has been, any sentence imposed in respect of it has been served. A similar view was taken by Sully J, in the decision cited above, of the Commissioner's power to promulgate guidelines stating that "[a]ll sentenced inmates who are known to have committed a sexual offence (even if uncharged) must [emphasis original] be referred to the Regional Senior Psychologist for a risk assessment". His Honour held the Commissioner's powers were wide enough to "authorise such precise procedural and policy guidelines". 11 That conclusion is sufficient to dispose of the matter. If it was open to the Commissioner to consider Mr McCallum's sexual conduct, as I hold it was, there can be no basis on which the discretionary decision could be overturned. However, since the plaintiff continues to allege his victim consented, so that he was actually innocent, I should refer to the trial judge's comment when sentencing him: "It seems the prisoner's capacity for self delusion may be supra-normal."

The psychological evidence, and the events surrounding the offences, do nothing to dispel his Honour's view, which certainly provides support for the Commissioner's concerns about the need for supervision. In a psychological assessment made as recently as 24 October 2001, it is concluded: "Mr McCallum's defensive position of denial is a significant barrier to his effective management in the community. By refusing to acknowledge the reality of his sexual behaviour, he cannot have addressed and resolved the dynamic variables of his offending. He is therefore not in a position to adequately monitor his own internal processes or external risk factors, and is unlikely to share relevant information with community supervisors to assist him in maintaining an offence-free lifestyle. "Taking into consideration the available information on both static and dynamic risk factors, Mr McCallum presents at an overall moderate-high risk of sexual recidivism." 12 There is one matter the plaintiff raised which I should mention. During the hearing before Sully J, an assurance was given to the Court on behalf of the Commissioner that - "[T]here is no standing impediment particular to the plaintiff, in the form of any requirement that he 'address his sex-related problems' in any particular fashion, before a regularly made application for work-release will be considered on its merits. Whether there is a continuing such attitudinal problem, and if so its extent, will be matters considered with all other relevant matters in connection with the due consideration of any such application."

The plaintiff contends the failure to classify him in the category C3 represents a breach of this assurance. It is sufficient to say that his contention ignores the second sentence in the passage quoted. Mr McCallum's attitude towards the very serious offences he was found to have committed, a finding affirmed by the Court of Criminal Appeal and upheld through two subsequent attempts to re-open it (by applications under s 474D of the Crimes Act rejected by Badgery-Parker J on 18 November 1997 and Studdert J on 14 October 1998), does not provide an automatic bar to his reclassification, but it is a grave matter available to be taken into account. 13 The application must be dismissed. The defendant asks the Court to dismiss it with costs. That is a matter of discretion. It would not be appropriate to place the obstacle of the threat of a costs order in the way of any reasonable attempt by a prisoner to have the Court ensure the legality of significant action taken by the Commissioner. Not uncommonly, an application such as this, if dismissed, is dismissed with no order as to costs. Having regard to the earlier proceeding before Sully J, the present case is perhaps near the line, and the plaintiff should be aware of that, but I do not think the stage has been reached where I should make a costs order. The application is dismissed with no order as to costs. *****************************

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