Plaintiff/Applicant v Defendant/Respondent

Plaintiff/Applicant v Defendant/Respondent - [2015] VSC 105 - VSC 2015 case summary — Zoe

[5]

3 Since the present applications were argued in August and September 2013, certain events have occurred - being a series of legislative changes (including changes relating to parole), the expiry of Mr Knight's minimum non-parole period and the making of certain decisions in other cases in this Court relating to Mr Knight - all of which might be thought to bear on the present applications. However, neither party has made any approach to the Court in relation to any of these events. I have on several occasions considered whether I should of my own motion re-list the hearing and invite submissions on them, having regard particularly to the fact that Mr Knight was not legally represented. In the end, however, I was satisfied that justice did not require any further hearings. For the reasons I will set out in due course, I was of the view that, as matters had stood originally, Mr Knight's two applications fell to be dismissed. Justice could only have required a further hearing if one or more of the intervening events might conceivably have required a different result. However, subject to one qualification, each of the intervening events could only have made Mr Knight's position, if anything, even worse. The qualification was that it might possibly have been suggested by or on behalf of Mr Knight that the legislative changes relating to parole (which occurred between November 2013 and July 2014) supported the view that, when the decisions in question were being made (in December 2012 and March 2013), he had a prospective right, or a legitimate expectation, to be granted parole on or shortly after his earliest eligibility date, namely 8 May 2014. However, as I will further explain in due course, I was satisfied that any such suggestion would necessarily have failed and that the submission in question would have remained completely unacceptable. So, I remain of the view that both of Mr Knight's applications for leave to proceed must be dismissed. I hold that view even without taking into account adversely to Mr Knight any of the intervening events. Nevertheless, I should at this stage list the intervening events.**

[24]

13 The question whether the old test or the new test applies in a pending leave application arose in Knight v Shuard.[13] There, the defendant had submitted that the earlier test could no longer apply because the vexatious litigant order of Smith J had become a "general litigation restraint order" by virtue of "the transitional provisions".[14] The reference to the transitional provisions was apparently a reference to one particular transitional section of the 2014 Act, namely s 91, which does indeed provide that an order declaring a person to be a vexatious litigant made under s 21(2) of the Supreme Court Act 1986 as in force immediately before the repeal of s 21 of that Act is taken on and from that repeal to be a general litigation restraint order made by the Supreme Court under s 29 of the 2014 Act. Section 91 further provides, in effect, that the deemed terms of the deemed general litigation restraint order are the same as the terms of the actual order made under s 21(2) of the Supreme Court Act 1986. Going back to the substantive provisions of the 2014 Act, s 32 provides that on the making of a general litigation restraint order, subject to the terms of the order, a proceeding "to which the order relates" is stayed and a proceeding "that is commenced in contravention of the order" is of no effect. How, if at all, these provisions affect a leave application that was pending on 31 October 2014 is not easy to discern. The pending leave application itself is surely not a proceeding "to which the [deemed] order relates" within the meaning of s 32. Hence the pending leave application itself is surely not "stayed" by force of s 32. Nor, surely, could it be said that the pending leave application itself amounts to a proceeding "that is commenced in contravention of the [deemed] order" within the meaning of s 32. The remaining issue, then, is whether a substantive proceeding for the commencement of which leave was sought in the pending leave application would, if commenced without a fresh application for leave under the 2014 Act and a fresh grant of leave pursuant to such an application, be commenced "in contravention of the [deemed] order" within the meaning of s 32. Arguably, if the terms of the order prohibited the commencement of a substantive proceeding of the proposed kind only where prior leave to commence the proceeding had not been obtained, and if the pending application for leave was, as a matter of law,[15] preserved and still on foot, and if the application was actually granted, then the substantive proceeding, when in fact commenced, might not be able to be characterised as having been commenced "in contravention of the [deemed] order". However, Mr Knight (who was not legally represented) made no such submission to Ginnane J nor any other submission to the contrary of the defendant's (Mr Shuard's) submission and his Honour accepted the defendant's submission.[16] His Honour did not otherwise refer to the transitional provisions of the 2014 Act, nor to the general transitional provisions contained in the Interpretation of Legislation Act 1984.[17] Strictly speaking, his Honour did not need to consider those matters because, ultimately, his Honour ruled that the same result would have been arrived at under the old test.[18]

[93]

[23] The sentence management panel (the Major Offenders Review Panel) met for the annual review on 29 November 2010. Mr Money, as Assistant Commissioner, Offender Management Services, Corrections Victoria, chaired the meeting. Mr Money is responsible for the security classification of prisoners and where they are accommodated through sentence management and Major Offenders Units. The two other panel members were Dennis Barnes, the Acting Senior Assistant Manager of the Major Offenders Unit and Michelle Hosking, that unit's Acting Manager.

[24] The Major Offenders Unit's senior clinician, Ms Nicole Sakellaridis, Tim Hargrave, a Port Phillip Prison Supervisor, and Corrections Victoria Project Officer, Patricia Von Gunten, were present to assist. Ms Von Gunten recorded the major points of the discussion into the Prison Information Management System ('PIMS'). Mr Knight does not contest the accuracy of the PIMS record and exhibits a copy of it to his 11 January 2011 affidavit. Ex JK 104.

[25] The panel began by noting various aspects of Mr Knight's time in the Waaksembyd unit at Port Phillip Prison: his positive interaction with staff and fellow prisoners; his work as a floor billet; his physical health; his successful studies; his recent disciplinary history; his participation in counselling with Ms Sakellaridis; and his engagement with Kangan TAFE and other educational programs.

[26] The PIMS notes record that Mr Knight 'presented in an agitated and aggressive manner'. He queried his maximum security rating, when he had previously been granted a medium security rating in 1999. He asserted that he should have a minimum security rating. He was told that progression to lower security ratings was not determined simply on the basis of the passage of time, but that it rather depended on genuine progress with treatment programs. Decisions about his progress would be based on clinical advice. Mr Knight raised his computer application and was told that it was with the Major Offenders Review Panel. Mr Knight then indicated that he would not participate in any more programs or education and would concentrate instead on litigation: apparently against Corrections Victoria.

[27] Mr Money raised Mr Knight's sentence plan. Mr Knight responded that he did not have one. Mr Money then advised that the sentence plan was for him to continue a treatment readiness program and for an advice from the Major Offenders Unit senior clinician to be obtained. Mr Knight's classification would be considered in light of reports submitted. Meanwhile, he would remain a Maximum Security rated prisoner at Port Phillip Prison and continue with a treatment readiness program. Mr Knight is recorded as then having left the room.

[28] After his departure Mr Money summarised the review. He first noted the similarity between Mr Knight's presentation at each of the 2010 and 2009 annual reviews, but stated that his level of agitation appeared to have heightened. He then stated that the sentence plan established in 2009 remained in place; the Major Offenders Unit senior clinician was still conducting a treatment readiness program which was expected to finish in about April 2011. At that stage, Mr Knight's sentence management plan would require review, in accordance with the senior clinician's advice. He concluded that Mr Knight's 'declared plan of litigating his way to parole' seemed unchanged and that he remained 'totally resentful to any attempts to demonstrate insight or take responsibility for his situation.' He concluded that Mr Knight would require 'a considerable level of monitoring and supervision', given his state of mind and agitation.

[29] Whilst Mr Knight's application relates to his 2010 review, it is relevant that there was another annual review on 24 November 2011. By that time, at the end of February 2011, Ms Sakellaridis had completed the 12 months of individual counselling sessions with Mr Knight, to assess and report on his readiness for treatment. She had assessed him as unready for further treatment and considered it appropriate to obtain an independent expert's opinion.

[30] In May 2011, Mr Money had requested a report from Professor Paul Mullen as to Mr Knight's management and the appropriate treatment for him. Professor Mullen had also been engaged by the Adult Parole Board to prepare a report for it in relation to Mr Knight. Mr Money was subsequently informed that Professor Mullen had completed the assessment and had recommended that Mr Knight be assessed by Professor James Ogloff.

[31] Mr Money thought it possible that the Parole Board might not provide Corrections Victoria with the reports. So, in February 2012, he decided to commission separate reports from Dr Mullen and Professor Ogloff in relation to Mr Knight's management and treatment. Mr Knight agreed to participate in the process.

[32] Professor Ogloff's report was not available to the panel which conducted Mr Knight's 24 November 2011 review. During the review process which culminated in that meeting, Mr Money explained to Mr Knight the matters which the panel was considering in relation to his sentence plan. They included the panel contemplating a medium security rating for Mr Knight in the future, if that were to be consistent with the recommendations of the experts. The anticipated expert advice would also provide guidance for his future treatment. If there was likely to be a delay, the panel would review the situation.

[33] The PIMS record of the 24 November 2011 annual review meeting shows that Mr Knight responded by stating that he did not wish to be placed in a medium security prison, preferring to stay at Port Phillip Prison to participate in a High Intensity Violence Intervention Program from which he felt he was being blocked. Mr Money told him that that the Mullen and Ogloff reports were required for his screening for that program. Mr Knight is reported to have then disclosed to the panel that he had deliberately sabotaged his individual counselling, in order to ensure that an independent assessment was recommended. The PIMS notes record that Mr Knight indicated his intention to be 'relentless in his litigation activities' and that he intended to be released in 2014. (Mr Knight's earliest date for eligibility for release on parole is noted as 8 May 2014.)

[95]

Submissions

[34] Mr Knight submits that at his annual reviews in 1999, 2000 and 2001, the panels' decisions could be characterised as general sentence plans which involved his progression to a medium security location. Since 2001, his reviews have brought about no change and he remains at a maximum security location.

[35] Mr Knight says that the 2010 review was not 'a proper genuine and realistic consideration of [his] sentence management'. The outcome of the decision was a foregone conclusion, in the context of Corrections Victoria's apparent policy of 'get nothing, go nowhere' with regard to him. The decision to tie his progression to assessment indicates bad faith.

[36] He also distinguishes his previous reviews from that conducted in November 2011, on the basis that they did not involve reference to the need for expert reports. He contends that he is being treated differently from the vast majority of other prisoners and that the delaying of his progression to a lower security rating by requiring expert assessment is another indicator of bad faith. He argues that mandamus should be available as the impugned decision was arbitrary and unreasonable.

[37] The Commissioner responds that the sentence plan is a practical flexible tool of management. See: Knight v Anderson [2007] VSC 278; (2007) 16 VR 532, 535 [14] (Bell J). A sentence plan must be capable of changing at short notice in response to changing circumstances. Mr Knight's sentence plan was summarised in the PIMS notes of the 2010 annual review in a way which indicated that it was under active consideration. He was to continue the treatment readiness sessions and then advice would be obtained from Ms Sakellaridis, when reports had been submitted. Meanwhile, he was to remain at Port Phillip Prison.

[38] The Commissioner argues that there is no basis on which it could be said that the sentence management plan advised by the panel did not contain what the panel was required to include or that it so lacked content that it could not be called a sentence plan within the meaning of the 2009 Regulations. The plan had been arrived at in accordance with the statutory scheme and the Court had no jurisdiction to direct its contents.

[39] In summary, the Commissioner submits, he discharged all his relevant statutory duties under the Act and the 2009 Regulations in relation to Mr Knight's classification. It was reviewed annually by sentence management panels, which considered the issues relating to risk, as required by reg 25, and made decisions in relation to his sentence plan, including a decision to obtain advice with regard to his future treatment.

[40] In any event, Mr Knight's classification has already been reviewed again on 24 November 2011 and the evidence indicates that it remains under continual review and that expert reports as to his future management and treatment have been sought. An order in the nature of mandamus for a review of the classification would be premature and futile in the circumstances and ought not be made.

Conclusion

[41] I am not persuaded to make the order sought by Mr Knight.

[42] He has not satisfied me that the Commissioner actually or constructively failed on 29 November 2010 to discharge his statutory duty to review his classification, his placement or his security rating or to develop a sentence plan for him.

[43] The PIMS entries record the 2010 annual review. Mr Knight raises no issue as to their accuracy. The entries show that the panel canvassed the issues of the risk Mr Knight presented and his future classification and placement, in the context of his offence, his then current behaviour, his attitude, his prison work, his educational activities, his physical health, his contact with family and friends, his participation in prison programs, the pending advice of Ms Sakellaridis as to his readiness for treatment programs and his state of mind and demeanour, as the panel perceived it to be.

[44] I am not persuaded that, in so far as the regulations indicate the nature of a sentence plan, the panel failed to comply with its duty to provide or review Mr Knight's sentence plan in 2010, as he contends. I am not satisfied that the panel failed to comply with its obligation under reg 25 to consider the risk posed by Mr Knight with reference to one or more of the considerations it lists and to which it might have had regard. Nor am I persuaded that the panel failed to comply with any duty under reg 26 when it was determining Mr Knight's placement and developing a sentence plan for him for the future.

[45] As I have already said, the Manual states that reduction of a security rating is contingent upon such matters as prisoner conduct, the passage of time and the satisfactory compliance with a sentence plan. I am not persuaded that the panel failed to take those matters into account in 2010. Indeed, the PIMS record would suggest that it did.

[46] Additionally, I am not persuaded by Mr Knight's criticisms of the decisions made at the 2010 annual review, and of the process itself, that the Commissioner acted in bad faith, for an improper purpose or capriciously, as alleged. In all the circumstances, it was quite proper for the panel to have awaited the report from Ms Sakellaridis, after twelve months of individual counselling, and then to have decided to await the recommended independent expert reports relating to Mr Knight's future management and readiness for treatment. Mr Knight also has a copy of the PIMS report which sets out Mr Money's description of the sentence plan.

[47] The sentence plan is a practical management tool and must be flexible to take account of changing circumstances. There is, and has been, ongoing review of Mr Knight's sentence plan. A further annual review took place on 24 November 2011 where the sentence management panel stated that it would consider his progression to medium security rating on the basis of anticipated expert reports.

[48] In the circumstances, even if I had taken the view that the Commissioner had failed to carry out his duty in the manner alleged, I would have refused the order sought on discretionary grounds. It would have been inappropriate and even futile to make such an order, in light of the sentence management panel's continuing consideration of Mr Knight's sentence plan as to his classification, placement and future treatment at reviews after the 2010 annual review and, in particular, at the annual review in 2011.

[49] I consider many of Mr Knight's criticisms of the 2010 annual review to be related to the substance of the decision made by the sentence management panel in the exercise of its duty. Indeed, he effectively submits that it should have formulated a different sentence plan, that his security classification should be reduced and that his placement should reflect that reduction. The Court, however, has no jurisdiction to make an order in the nature of mandamus as to the way in which the Commissioner should perform his duty.

[50] For all these reasons, the application should be dismissed.

[124]

In relation to Mr Knight's complaints at not being transferred to other prisons, having considered the reports of Professors Mullen and Ogloff, and being familiar with Mr Knight's classification history within the prison, I believed in December (and continue to believe) that it would not be appropriate to transfer Mr Knight to a minimum security prison without first being satisfied that it was appropriate that he be classified as a minimum security prisoner. This requires assessment of the risk factors identified in regulation 25 of the Corrections Regulations, as applicable at any given time to the prisoner. As a practical matter, it would be necessary to have Mr Knight exposed to less controlled environments than his current high controlled maximum security placement to see how he adapts to that environment. I would therefore expect him to transition first from his current maximum security placement to the less controlled environment of a medium security prison. The purpose of such a transition is to ensure that he is able to adjust to living in a significantly larger community of prisoners where the prisoners have more independence, and more individual responsibility, than in the highly controlled maximum security environment. I understood Professor Ogloff's report as identifying such a gradual progression as appropriate. My experience of the prison system and interactions between prisoners, in the context of Professor Ogloff's and Professor Mullen's observations as to some of the personality traits of Mr Knight such as self-importance, rigidity, obsessionality and egocentrism and the need for Mr Knight to develop tolerance, also suggests to me the need for a gradual, monitored progression to ensure that he is adapting well to the community of prisoners in a less controlled prison.

I also consider it would be inappropriate to place Mr Knight in a protection prison such as Ararat (as suggested by him on 6 December 2012), as he was transitioned out of a protection placement in 2006, into mainstream placements, and it would be a more restrictive and backwards step to return him to a protection placement. As Mr Knight had during his placement in protection often expressed to me and others his desire to leave protection, it was difficult for me to understand why he would now suggest a protection placement. This was part of the reason I formed the view (which is referred to in the PIMS notes) that Mr Knight was confused and contradictory.

From my discussions with the sentence management panel and the views they communicated to me, I understood them to share these beliefs as to the need for Mr Knight to transition gradually to less controlled environments, and to avoid a return to any protection placement.

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