Plaintiff v Defendant

2 Mr Knight is classified as an 'A2 Maximum Security' prisoner under the Corrections Act 1986 ('the Act'). He is also classed as a 'Major Offender' and is, therefore, supervised by the Major Offenders Unit within the Victorian prison system. 'Major Offenders' include prisoners who are considered to be dangerous or to represent a high risk, as well as prisoners who have a high public profile.

3 Mr Knight seeks an order in the nature of mandamus requiring the defendant, the Commissioner, to discharge his duty to review the plaintiff's classification, security rating and placement within the prison system, as well as to formulate a 'sentence plan' for him. He bases his application on the Commissioner's alleged failure to perform that duty at a 29 November 2010 annual review of his classification and placement.

4 Mr Knight was declared a vexatious litigant under s 21(3) of the Supreme Court Act I986 on 19 October 2004. He was prohibited from commencing proceedings without the leave of the Court for 10 years from that date. On 24 June 2011, Emerton J granted him leave to start this proceeding. The leave was limited to the claim described in paragraph 4 of his amended originating motion filed on 21 January 2011.

5 That claim is set out in paragraph 4 of Mr Knight's further amended originating motion filed on 24 August 2011, as follows:

1. The plaintiff seeks from the Court an order in the nature of mandamus requiring the defendant, pursuant to regulations 22-23 & 25-26 of the Corrections Regulations 2009 (Vic), to;

(i) Review the plaintiff's classification and placement,

(ii) Review the plaintiff's Security Rating and consider the plaintiff for a placement at a Medium Security prison, and

(iii) To formulate a Sentence Plan for the plaintiff and to provide the plaintiff with a copy of that Plan.

On the grounds that;

(i) The defendant has a positive statutory duty pursuant to section 47(1)(l) of the Corrections Act 1986 (Vic) and regulations 22-23 & 25-26 of the Corrections Regulations 2009 (Vic) to review the plaintiff's classification annually;

(ii) The defendant has a positive statutory duty pursuant to regulations 22, 23 & 26 of the Corrections Regulations 2009 (Vic), to develop a Sentence Plan for the plaintiff; and

(iii) The decision of the Major Offenders Review Panel on 29 November 2010 does not meet the statutory obligations referred to in paragraphs (i) & (ii) above.

6 In 2006, Mr Knight sought leave to commence proceedings similar to those now before the Court. Then, as now, he sought to compel the Commissioner of Corrections Victoria to formulate and provide him with a 'sentence plan'. In refusing the application, Bell J held that there was no duty on the part of any prison authority to formulate a sentence plan for Mr Knight, under the Act as it stood and the Corrections Regulations 1998 which were then in force.[1]

7 In 2009, the Corrections Regulations 1998 were repealed and the Corrections Regulations 2009 ('the 2009 Regulations') were introduced. This change was central to the decision of Emerton J, on 24 June 2011, to grant Mr Knight leave to commence these proceedings.[2]

8 The Commissioner concedes that reg 23 of the 2009 Regulations and s 47(1)(l) of the Act, now, together, impose a duty on a sentence management panel to have a sentence plan for a prisoner. Notwithstanding that, he does not argue that he is not the appropriate defendant in the proceeding. I will accept, for the purposes of the application, that the relief Mr Knight seeks may be granted against the Commissioner.

9 Section 47(1)(l) of the Act gives a prisoner the right to classification in accordance with the regulations :

47 Prisoners rights

(1) Every prisoner has the following rights -

...

(l) the right to be classified under a classification system established in accordance with the regulations as soon as possible after being sentenced and to have that classification reviewed annually;

10 The relevant provisions of the 2009 Regulations relating to classification, management, rating and placement of a prisoner are:

Division 6 - Classification

22. Classification of prisoners

(1) A prisoner's classification -

(a) includes decisions about a prisoner's security rating, placement and sentence plan; and

(b) may include reasons for decisions made under paragraph (a), directions as to future placement reviews and conditions applicable to the decision.

(2) Subject to this Division, a prisoner may be given one of the following security ratings -

(a) high security;

(b) maximum security;

(c) medium security;

(d) minimum security.

23 Sentence management panels

(1) There are to be one or more sentence management panels to carry out the functions of -

(a) prisoner classification;

(b) developing a sentence plan for each prisoner; and

(c) determining the placement of each prisoner.

...

(4) The panels must -

(a) meet with such frequency as is determined by the Secretary; and

(b) conduct their procedures as determined by the Secretary; and

(c) establish and maintain the records determined by the Secretary.

24 Review and assessment committees

(1) In each prison there is to be one or more review and assessment committee to carry out the functions of -

(a) overseeing the case management of prisoners; and

(b) reviewing prisoners' classification; and

(c) considering prisoners' access to programmes; and

(d) monitoring prisoners' welfare.

(2) Subject to any rules determined by the Secretary, a review and assessment committee may vary the classification of a prisoner or make recommendations to a sentence management panel regarding the classification of a prisoner.

(3) The Secretary may set rules for composition of review and assessment committees as he or she thinks necessary for the proper functioning of the committees.

(4) The Secretary may appoint members to the review and assessment committees and may determine the terms and conditions of appointment.

(5) Review and assessment committees must -

(a) meet with such frequency as is determined by the Secretary; and

(b) conduct their procedures as determined by the Secretary; and

(c) establish and maintain the records determined by the Secretary.

(6) A sentence management panel may at any time vary the classification of a prisoner by a review and assessment committee.

25 Determination of classification

When determining or varying a prisoner's classification, a sentence management panel or a review and assessment committee must consider the risk the prisoner presents to prison security, the community, himself, herself or any other person, having regard to any one or more of the following -

(a) the nature of the offence for which the prisoner has been charged or convicted;

(b) the risk of the prisoner escaping, or attempting to escape, from custody;

(c) the risk of the prisoner committing a further offence and the impact the commission of the further offence is likely to have on the community;

(d) any risk the prisoner poses to prison management, security and good order;

(e) any risk the prisoner poses to the welfare of himself or herself and any other person;

(f) the length of the prisoner's sentence or, if the prisoner is awaiting trial, the maximum sentence applicable to the offences in respect of which the prisoner has been charged;

(g) any other matter considered relevant to prison management, security and good order and the safe custody and welfare of the prisoner.

Division 7 - Placement

26 Determination of placement

When determining or varying a prisoner's placement and developing a sentence plan, a sentence management panel or the Secretary may consider and assess the following factors -

(a) the prisoner's security rating and relevant risk factors, including sentence length, and risk of escape;

(b) the programmes and other processes the prisoner requires to lower the risk of committing a further offence;

(c) any risk the prisoner poses to the welfare of himself or herself or any other person;

(d) any drug and alcohol use and treatment;

(e) any prison or other relevant institution history;

(f) any medical or psychiatric condition;

(g) any physical limitations or disability;

(h) cultural background;

(i) any relevant family issues;

(j) where known, any sentencing remarks;

(k) any transitional requirements for the prisoner to re-enter the community, if appropriate;

(l) any other matter considered relevant to prison management, security and good order and the safe custody and welfare of the prisoner.

The Sentence Management Manual and other materials

11 Mr Knight cites Corrections Victoria's Sentence Management Manual (Version 024/07, dated 4 December 2007) ('the Manual') in support of his argument that the Commissioner failed to perform his duty to formulate or review a sentence plan for him in November 2010. He refers in some detail to the contents of that document. I have considered the materials to which Mr Knight refers, but will only mention some of them.

12 Mr Knight highlights, in particular, the Manual's statement that it is a 'cornerstone of Sentence Management philosophy and policy that prisoners are held in the least restrictive environment possible'.[3] He emphasises, too, that it also states that 'a prisoner's best interests are served by working his or her way through the security levels to enable release from the least restrictive environment possible'.[4] The Manual goes on to state that the reduction of security rating is contingent upon factors including the prisoner's conduct, the passage of time and the prisoner's satisfactory compliance with the sentence plan.

13 Mr Knight points out that the Manual indicates the contents of a sentence plan in paragraph 3.1 of Section 1 where the two-tiered sentence management process is described as follows:

3.1 Overview

The sentence management process is based on a two-tier system:

1. The Sentence Management Unit provides for a centralised system responsible for the individual assessment of prisoners. This includes initial screening of needs, completion of an Intervention Screening Assessment and social history, development of a sentence plan, which includes the determination of initial security ratings, identification of broad program needs, and determination of placement location. The unit also provides review and oversight processes for specific categories of prisoners such as special category or major offenders.

2. Each prison location convenes a multi-disciplinary Review and Assessment Committee which is responsible for the implementation and monitoring of the sentence plan and the local management plans for each prisoner, reviewing and monitoring the progress of prisoners at each location and providing information and recommendations to the Sentence Management Unit in relation to security ratings and placement.

14 Mr Money accepts that the Manual is a policy document supporting the sentence management system. The Commissioner submits that the Manual acknowledges that a prisoner's classification and placement and other relevant matters are to be addressed after consideration of information available at the time of an initial assessment or any subsequent review.

15 Mr Knight also refers to statements of principle and policy in documents entitled Standard Guidelines for Corrections in Australia (revised 2004) and a Department of Justice publication, Correctional Management Standards for Men's Prisons in Victoria (April 2008). These documents refer generally to such matters as the aims of correctional programs and the fact that classification should be at the lowest level of security possible, taking account of individual and group needs and the provision of safe custody.

16 As a Major Offender, Mr Knight has his classification reviewed by a sentence management panel at least twice a year. Corrections Victoria records show him as having been the subject of over 220 reported sentence management panel meetings since August 1987. His classification was recently reviewed on 21 January 2009, 19 May 2009, 26 August 2009, 17 February 2010, 21 May 2010, 17 August 2010, 29 November 2010 and, again, on 24 November 2011. The November 2010 and 2011 reviews were annual reviews.

17 Mr Knight's claim for an order in the nature of mandamus refers only to the 29 November 2010 review. In oral submissions, he indicated that his claim for relief was effectively limited to that stated in sub-paragraph 4 (iii) of his amended originating motion, because a sentence plan would itself involve a review of the matters referred to in sub-paragraphs 4 (i) and (ii).

18 For completeness, I note that Mr Knight also indicated that, if he were to seek the relief in sub-paragraph 4(ii), the reference to a 'Medium Security prison' should rather be to a 'Minimum Security prison'. The Commissioner challenges Mr Knight's entitlement to change the relief sought, given the limitation imposed by Emerton J's order. In light of my conclusion in relation the claim, I do not need to address the issue of whether he could be entitled to amend his pleading after a grant of leave in relation to the document in its unamended form.

19 An order for relief in the nature of mandamus will only compel the performance of a statutory duty, not direct how it is to be discharged.[5] Thus the success of Mr Knight's application does not depend upon him establishing that the duty imposed by law should have been exercised differently, but rather that there was either an actual or a constructive failure to carry out the duty[6] at the 2010 annual review.

20 For an error to constitute a constructive failure to perform the duty, that error must affect jurisdiction, as opposed to being one which occurs within jurisdiction. Examples of the latter type of error include acting on wrong principle or failing to consider matters which should be taken into account.[7] Mandamus will, however, be available in the case of an 'improper or capricious exercise of discretion'.[8]

21 I now turn to the 2010 annual review, and what followed, and submissions of the parties.

22 On 14 October 2010, Mr Knight wrote to Mr Trevor Pickering, General Manager of the Major Offenders Unit, listing topics for the impending annual review, as follows:

(a) My Sentence Plan for the next 3 ½ years (i.e. up to my EED);

(b) My Security Rating (lowering it from A2 to B or to C1);

(c) My participation in the Corrections Administration Permits & Rehabilitation & Transition Permit Program; &

(d) Any programs designed to address offending behaviour that it is recommended that I undergo.

He also referred to the issue of the progress of his application for access to a personal "in cell" computer.

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.[9].

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 Philip 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.)

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.[10] 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 Philip 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.

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.

[1] Knight v Anderson [2007] VSC 278; (2007) 16 VR 532, 534 [10], 535 [14].

[2] Knight v Hastings [2011] VSC 332, [6]-[7].

[3] Sentence Management Manual 3.8 [5.1].

[5] Cuming Campbell Investments Pty Ltd v Collector of Imposts [1938] HCA 53; (1938) 60 CLR 741, 734 (Dixon J).

[6] Re Heerey; Ex parte Heinrich [2001] HCA 74; (2001) 185 ALR 106, 110 [20] (Kirby J).

[7] Re Operative Plasterers Workers Federation of Australia; Ex parte Brown [1992] 67 ALJR 179, 180 (Gaudron J).

[8] See: Commissioner of State Revenue (Victoria) v Royal Insurance Australia Ltd [1994] HCA 61; (1993) 182 CLR 51, 81 (Mason CJ).

[10] See: Knight v Anderson [2007] VSC 278; (2007) 16 VR 532, 535 [14] (Bell J).