Petrie v Queensland Community Corrections Board

[1] The applicant seeks judicial review of a decision by the respondent refusing him a post-prison community based release order ("PPCBR").

[2] On 2 August 2004 the applicant was sentenced on his plea for the offence of maintaining an unlawful relationship of a sexual nature with a child under 16. The applicant was sentenced to six years imprisonment with 433 days of pre-sentence custody being declared as time served. In sentencing the applicant, the learned sentencing judge observed that the applicant had, prior to the offending, been the child complainant's teacher and that the offence involved a grave breach of trust, but noted that the applicant was of generally good character with a very slight criminal history and that there was no suggestion of physical force being used in connection with the offence. The offending was stated to have involved relatively few actual sexual incidents. The sentencing judge referred to a report by Dr Isailovic and stated that while it indicated that there was a risk of future offending, it was not significantly high, particularly if the applicant underwent treatment whilst in custody which he was willing to do.

[3] The sentencing judge concluded that the matters in the applicant's favour ought to be reflected in an early recommendation for PPCBR and recommended that the applicant be considered for such release after having served two and a half years imprisonment, that is, on 26 November 2005. A recommendation was also made that the applicant undergo the Sex Offenders Treatment Program whilst in custody. A 10 year reporting order was also made.

[4] The applicant made an application for PPCBR on 11 October 2005. It is accepted that the applicant satisfies the threshold tests under s 134 of the C_orrective Services Act_ 2000 (Qld) ("the CSA").

[5] The application was initially considered by the respondent on 27 January 2006.

[6] By letter dated 1 February 2006, the Acting Secretary of the Queensland Community Corrections Board ("the Board") wrote to the applicant stating inter alia:

"... The Board has taken all matters in favour of granting your application into account including but not limited to, your successful completion of the Cognitive Skills program and your participation in various vocational programs. It also recognised that you have developed some personal insight whilst in custody and have received overall good behavioural reports.

However, the Board's primary obligation is the protection of the community and the Board was strongly aware that the exit report of the Cognitive Skills program indicated that your next step was to participate in a suitable sex offender program which would address your sexual offending and reduce your risk of recidivism. The Assessment Unit report of 21 December 2005 informed that you are listed as a priority assessment for suitability for the new sex offending programs. The Board realises that you have not yet had the opportunity to participate in such a program and encourages you to undertake the assessment and fully participate in any recommended program. Then the Board may have evidence that you have addressed your offending behaviour and have developed a viable and realistic relapse prevention plan which can be utilised in the community.

Also of concern to the Board was the information in respect to various incidents that has resulted in your being returned from the residential area back to secure. It appeared to the Board that your personal interaction with other prisoners has not always been appropriate and that this reinforced the necessity for you to undertake a sex offender program which will assist you to recognise and manage inappropriate sexual behaviour. The Board recommends that you work toward returning to a more open environment where you can demonstrate your trustworthiness in a less restrictive and less supervised environment.

The Board considered that the sentencing court appreciated the need for you to undertake a sex offender program and the fact that you have not had the opportunity to do this prior to your eligibility date was information not before the Court. Secondly the incidents mentioned above which highlight the need for such a program, were also matters not before the court at the time of sentence.

For the reasons set out in this letter to you, it presently seems to the Board that you may not be an acceptable risk to the community on any form of post-prison community based release order and that it should therefore refuse your application. If you believe that there is information that the Board has not considered but that may cause it to reach a different final decision, you should forward that information to the Board in writing so that it is received within 21 days of this letter being received by you. If no such further submissions are received by the Board within that time, your application will be refused for the reasons set out above..."

[7] The Board, having expressed a preliminary view that the applicant "may not be an acceptable risk to the community", invited the applicant to submit further information to the Board that might cause it to reach a different conclusion. The applicant did this by letter dated 9 March 2006.

[8] By letter dated 27 March 2006, the Board advised the applicant that his application had been considered at a meeting of the Board on 24 March 2006 and that the application had been declined for the reasons referred to in the letter of 1 February 2006.

[9] On 28 April 2006, the Board provided a statement of reasons which relevantly stated:

" Findings of Fact and Reasons for the Board's Decision

The Board wrote to you on 1 February 2006 and set out its findings of fact and reasons it seemed to the Board that you may not be an acceptable risk to the community on any form of community based release order and that it should therefore refuse your application. A copy of that letter is available on request and should be read as part of this statement of reasons.

You wrote to the Board on 9 March 2006 and the Board fully considered this letter at its meeting on 24 March 2006. You were correct in stating that the reasons the Board reached its initial position included that you had not undertaken a suitable sex offender treatment program. The Board noted your willingness to undertake such a program and that you had not yet had the opportunity to participate. It also noted your efforts to obtain assistance prior to incarceration. However it upholds the importance of such a program as a strategy to safeguard the community and to assist you in your continuing development of relapse prevention motivations and strategies. At the meeting of 24 March 2006, the Board had before it the outcome of your assessment for a sex offenders' program with the recommendation that you participate in the Medium Intensity Sexual Offending Program and that you had been placed on the priority allocation list for the program. The Board therefore considered that you would shortly have the opportunity to participate in this program and that, in the interest of public safety, such participation would be expected by the sentencing Judge as well as the community."

[10] The situation with respect to the applicant's participation in the sex offenders treatment program is that following sentence, the applicant was referred for assessment for the Sex Offenders Treatment Program. However, that program was replaced by a new set of programs. The applicant was placed on a priority waiting list for specialised assessment for allocation under the new program. Notwithstanding the applicant's willingness to undergo the program, that assessment was not undertaken until January 2006. Thus, at the date of the preliminary decision of the Board on 27 January 2006, the Board did not have before it the details of any specialized assessment for such a program.

[11] In response to a letter from the Board of 1 February 2006, the Regional Co-ordinator of the Southern Sexual Offending Behaviour Programs Unit advised the Board by memo dated 13 February 2006, that referrals to sexual offending programs were assessment based decisions and that the applicant had recently completed an assessment which recommended he participate in the Medium Intensity Sexual Offending Program (MISOP). The Board was also advised that the applicant had been placed on a priority program allocation list for the MISOP as he was past his PPCBR date but that no places were currently available. It was indicated that the applicant would be offered a place in the MISOP to commence in April 2006 and, depending on his individual needs, the program may take up to five months. That appears to be the document referred to by the Board in its letter of 28 April 2006 as the "outcome" of the assessment.

[12] The applicant was able to commence a sex offender program on 12 July 2006 and it is expected to take some months to be completed.

[13] The applicant seeks an order quashing or setting aside the decisions of 27 January 2006 and 24 March 2006 and an order directing that the respondent reconsider its decision according to law within 30 days.

1. That the making of the decision was an improper exercise of the power conferred on the Board;

2. That there was no evidence or other material to justify the making of the decision; and

3. That the decision was otherwise contrary to law.

[15] The grounds are expanded upon in paragraph 6 of the applicant's affidavit in which the applicant contends that the Board's decision is unlawful under s 20 and s 24(b) of the Judicial Review Act 1991 (Qld) in that the Board has:

(a) Failed to assess the merits of the applicant's case;

(b) Failed to fairly and reasonably assess the magnitude of risk the applicant poses to the community;

(d) Taken into account a irrelevant considerations;

(e) Failed to take relevant considerations into account;

(g) Reached its decisions with some other end in mind than the protection of the community.

[16] Counsel for the respondent submitted that the material indicated that the Board's decision in refusing the application was based on two principal factors: the first concerned the fact that the applicant had not participated in a sex offenders treatment program and the second concerned "various incidents" that appear to have occurred in the period prior to June 2005. It was submitted that the primary basis of complaint by the applicant was that the applicant's failure to undergo the sexual offenders treatment program was not a sufficient basis upon which to refuse his application. It was contended by the respondent that it was open to the Board to refuse to grant PPCBR if it considered that the fact that the applicant had not completed the course, rendered him unsuitable for release. That it was said, was ultimately a finding of fact and one which judicial review leaves to the decision maker. The important point it was contended, was that there was material before the Board to justify the making of the decision, being both the applicant's conduct whilst in prison and the fact that the applicant had not completed the sex offenders treatment program.

[17] A recommendation that a prisoner be eligible for early release sets the earliest possible date after which a prisoner can be released on a PPCBR order, but its effect will ordinarily be greater as explained in Williams v Queensland Community Corrections Board ( [2000] 1 Qd R 557 at 567). Such a recommendation produces an ameliorating effect on the sentence as it would otherwise apply (R v Maxfield [2000] 1 Qd R 417). It mitigates that part of the sentence which imposes the term of imprisonment. This is because it reflects a reasonable expectation at the time of sentencing that the offender will become entitled to early release on the date recommended.

[18] That expectation may be falsified or modified because of information gained about the prisoner and his or her prospects of rehabilitation during the period between the commencement of sentence and the eligibility date (Williams v Queensland Community Corrections Board [2000] 1 Qd R 557). Thus, s 139 of the CSA provides that when deciding whether to grant a PPCBR order, the Board is not bound by a recommendation of the Court that sentenced the prisoner if the Board receives information about the prisoner that was not before the Court at the time of sentencing and after considering that information considers that the prisoner is not suitable for release at the time recommended by the Court (see also Guideline 2.3 of the Ministerial Guidelines).

[19] The Ministerial Guidelines made pursuant to s 167(1) of the CSA as to the policy to be followed by the Board when performing its functions, provide that when the Board is considering whether a prisoner should be released from custody on a PPCBR order the highest priority for the Board should always be the safety of the community (Guideline 1.1). Guideline 1.2 provides that care is to be taken by the Board to ensure that decisions are made with regard to the merits of the particular prisoner's case. Guideline 2.1 states that before making a decision to grant PPCBR the Board should always consider the level of risk that a prisoner may pose to the community. Guideline 2.2 specifies some of the relevant factors to which the Board should have regard in deciding the level of risk. These include a prisoner's past offences and any patterns of offending, the possibility of the prisoner committing further offences, the successful completion of programs of rehabilitation, the sentencing judge's recommendation, and assessments of the prisoner's recidivism risk.

[20] In its letter of 1 February 2006 the Board acknowledged its primary obligation when considering an application for release is the protection of the community. In listing the reasons why it "seemed" to the Board that the applicant "may not be an acceptable risk to the community" on any form of PPCBR order, the Board referred to the Exit Report of the Cognitive Skills Program which indicated that the "next step" in the applicant's rehabilitation was participation in a suitable sex offender treatment program which would address the applicant's sexual offending and reduce his risk of recidivism. It also referred to the Assessment Unit's Report of 21 December 2005 stating that the applicant was listed for priority assessment for suitability for the new sex offending programs.

[21] As mentioned the Board did not have before it on 27 January 2006 any assessment for suitability for a program. Rather the approach taken by the Board was to encourage the applicant to undertake the assessment and undergo any recommended program on the ground that it might then have evidence both that the applicant had addressed his offending behaviour and had developed a viable and realistic relapse prevention plan. However, in expressing that conclusion, no reference was made in the reasons of 1 February 2006 to the evidence that the Board already had before it in the report of the Assessment Unit. That report contained details of the applicant's release plans, which were described in the report as "viable" and "thoughtful" involving much self reflection on the part of the applicant, and as including suitable accommodation, realistic employment goals, continuation of a medication regime, and insight in presenting a thoughtful relapse prevention plan. Nor did the Board make any reference in its reasons of 1 February 2006 to the Relapse Prevention Plan of the applicant which was received on 25 January 2006, although it was later mentioned in the letter of 28 April 2006 as a document that was taken into account.

[22] The letter of 1 February 2006 also mentioned certain incidents which had occurred while the applicant was in custody relating to his interaction with other prisoners as "not always appropriate" (and which had resulted in the applicant being returned from the residential area to the secure area). The incidents appear to relate to those outlined in the Assessment Unit's Report of 21 December 2006. It is not apparent from the tenor of the letter of 1 February 2006 that those incidents were regarded as of themselves sufficient to refuse the application for release, rather they were seen as "reinforcing" the need for the completion of a sex offender treatment program.

[23] In any event, the highest that the matters outlined by the Board were put in the letter of 1 February 2006 was that they indicated that the applicant "may" not be an acceptable risk to the community on any form of PPCBR. The Board did not adopt the view advanced in the Assessment Unit's Report that the application for PPCBR should be declined because the applicant was an unacceptable risk to the community.

[24] Thus, in relation to the two matters relied upon as constituting information not before the sentencing Court, namely that the applicant had not had the opportunity to participate in a sex offender treatment program prior to eligibility for release and the incidents that had resulted in a return to a secure unit, the only view expressed by the Board was that it seemed that the applicant "may" not be an acceptable risk to the community. The reasons of the Board do not evidence any consideration and determination of the issue of the safety of the community if the applicant were released without having completed the MISOP, other than to simply refer to the "outcome" of the assessment for that program. It does not appear that, even as at 24 March 2006, the Board had before it or had considered the actual assessment report recommending participation in the MISOP. It is difficult to see how, without a proper consideration of that critical assessment report, the Board was able to determine for itself whether the applicant was unsuitable for release without undergoing the MISOP because he represented an unacceptable risk to the safety of the community.

[25] I note that the reasons of 28 April 2006 referred to the importance of sex offender treatment programs as a "strategy" to safeguard the community and to assist in the applicant's continued "development of release prevention motivations". However, the identifying of generally beneficial purposes of such programs is to be distinguished from the question of whether the treatment needs of the applicant on the present case were such that he was rendered unsuitable for release without undergoing the program.

[26] In any event, it would appear from the Board's letter of 28 April 2006 that a basis on which the Board departed from the recommendation of the sentencing judge was its view that the applicant would if refused PPCBR have an opportunity to participate in the MISOP and that such participation would be "expected" by the sentencing judge and the community in the interest of public safety.

[27] I fail to see how those expectations were considerations relevant to the decision which the Board was required to make. It is the Board that is charged with considering and determining the matter of whether a prisoner is suitable for PPCBR. And whatever may be the expectation of the community in terms of public safety, it is a matter which is irrelevant to the Board's assessment of the applicant's suitability for PPCBR and the risk to the community associated with the grant of PPCBR. The same may be said of the expectations of the sentencing judge.

[28] What the sentencing judge would have expected in the circumstances that eventuated cannot be stated. But in any event, I note that the PPCBR recommendation was not made conditional upon participation or completion of a sex offenders treatment program. The sentence imposed by the sentencing judge appears to have proceeded on an assumption that, given that applicant's willingness to undergo the program, there was no significant risk that the recommendation in respect of PPCBR would be disregarded for reasons beyond the applicant's control (see R v MacKenzie [2002] 1 Qd R 410 at 415, R v Maxfield [2002] 1 Qd R 417 at 423).

[29] In the circumstances of the present case, the respondent in refusing the application for PPBCR had regard to considerations which were irrelevant to the exercise of its power, namely their views as to the expectation of the community and the sentencing judge, failed to consider relevant considerations, including how matters not before the sentencing judge affected the applicant's suitability for release in terms of the safety of the community, the actual assessment for the MISOP and whether given that assessment the applicant represented a risk to the community without undergoing the MISOP so as to be unsuitable for PPCBR .

[30] Accordingly, the decision of the respondent evidenced in letters dated 1 February 2006 and 28 April 2006 to refuse the application for PPCBR ought to be set aside and the matter should be referred back to the respondent for reconsideration. I make orders accordingly.