Plaintiff v First Defendant

Supreme Court of Victoria|2012-02-03|Before: OSBORN J

PRACTICE AND PROCEDURE - Vexatious litigant - Application for leave to commence proceedings - Proposed proceedings for injunctive relief - Whether proposed proceedings an abuse of process - Whether proposed proceedings doomed to fail - Leave to bring proceedings refused - Supreme Court Act 1986 (Vic) s 21(4) - Corrections Act 1986 (Vic) s 57.

2 Pursuant to s 21(4) of the Supreme Court Act 1986:**

Leave must not be given unless the Court ... is satisfied that the proceedings are not or will not be an abuse of the process of the Court, inferior court or tribunal.

**3 Mr Knight now seeks leave to commence a proceeding which makes two claims:

(a) first, against the Chairperson of the Adult Parole Board ('the Board') seeking an order 'in the nature of a mandatory injunction requiring the first defendant to make a parole order with respect to the plaintiff pursuant to s 74(1) of the Corrections Act 1986 (Vic)'; and

(b) secondly, against the Secretary of the Department of Justice seeking an order 'in the nature of a mandatory injunction requiring the second defendant to grant the plaintiff a rehabilitation and transition permit pursuant to ss 57(1)(b) and 57B(1)(e) of the Corrections Act 1986 (Vic)'.

4 Mr Knight regards the two orders sought as necessarily inter-related and indicated to the Court that he would not wish to proceed with the application for the second order at this point in time if leave were refused with respect to the application to pursue the first order.

5 The first order is sought in the context of a chain of correspondence in which Mr Knight has sought the declaration by the Board of a tentative date for parole.

6 Mr Knight was sentenced on 10 November 1988 to be imprisoned for life with a minimum non-parole period of 27 years. His earliest eligibility date for release on parole is 8 May 2014.

7 The sentencing remarks of Hampel J indicate that there was some difference of psychiatric opinion as to the precise nature of Mr Knight's mental aberration at the time of his offending. That offending comprised a massacre as a result of which seven people died and 19 people were injured. Mr Knight indiscriminately fired over 100 rounds of ammunition at passing motorists and police. He pleaded guilty to seven counts of murder and 46 counts of attempted murder.

8 Mr Knight was sentenced on the basis that he had a diagnosable serious personality disorder at the time of offending and Hampel J observed as follows:**

As to your future, it seems that no treatment is indicated, but some professional help may be advantageous. Dr Bartholomew thought that you would get such attention because your case is one which is likely to arouse professional interest. Your prognosis is undoubtedly better than that of someone with brain damage because it appears that your condition is likely to improve as you mature over a period of years when you will cease to be a danger to the public. It was common ground among the doctors that in 20 to 25 years time the degree of change and therefore the degree of danger which you present can be assessed. In that sense, it is thought that your prognosis is reasonable, particularly as you are bright and have a desire to better yourself.[2]

9 Ultimately, his Honour stated with respect to the fixing of a minimum term:

Mr Richter, on your behalf, referred me to a number of cases in which minimum terms have been fixed. I find it difficult to gain much assistance from such comparisons because sentencing considerations in each case are different, particularly where the imposition of the minimum term is concerned. Mr Dickson[3] did not contend that a minimum term should not be fixed.

In my view, the fixing of a minimum term in this case is appropriate because of your age and your prospects of rehabilitation, as well as the other mitigatory factors I have already mentioned which justify some amelioration of your sentence, not only in your interest, but in the interest of the community.

Dr Bartholomew was confident that, having regard to the crimes which you have committed, it is most unlikely that a decision to release you would be made if, after a very thorough investigation, there was any doubt about your presenting a danger to the community.

In fixing the minimum term, it is necessary to ensure that it does not destroy the punitive effect of the head sentences. On the other hand, in a case such as this an unduly high minimum term would defeat the main purpose for which it is fixed, namely your rehabilitation and possible release at a time when you would still be able to adjust to life in the community.

In all the circumstances, I consider that the appropriate minimum term before which you will not be eligible for parole is 27 years.[4]

**10 An affidavit sworn on behalf of the Board states that the Board's practice is to meet with prisoners who have been convicted of serious offences at regular intervals throughout their period of imprisonment. The Board has met with Mr Knight on seven occasions since he was imprisoned in 1988: in 1993, 1998, 2005, 2006, 2008, 2010 and 2011.

11 The affidavit confirms that Mr Knight has requested a tentative date for parole be fixed and that this request has been refused. It goes on to say that the Board has sought to obtain material relevant to the assessment of Mr Knight's current prognosis, including material from the relevant clinician in Corrections Victoria, from Professor Paul Mullen, who is a Forensic Psychiatrist, and from Professor James Ogloff, who is a professor of Clinical Forensic Psychology and the Director of the Centre for Forensic Behavioural Sciences at Monash University. It has obtained the reports sought by it save for the report from Professor Ogloff. The affidavit states that it is anticipated Mr Knight's matter will be re-listed before the Board as soon as Professor Ogloff's report is received.

12 Whilst it is understandable that Mr Knight desires to progress consideration of his potential parole, there is nothing to suggest that it is in any way inappropriate of the Board to seek to obtain a report from Professor Ogloff.

13 In my view, the application for leave to commence a proceeding against the Board should be refused. I am not satisfied, as required by s 21(4), that the proceedings are not or will not be an abuse of the process of the Court. In terms, leave is sought for an order relating to an order for release on parole after service of a non-parole period.[5] The effluxion of a non-parole period enlivens the Board's discretion to grant parole, but does not create any presumption that parole be granted.

14 There are a series of reasons for regarding Mr Knight's application as fundamentally deficient:

(a) The relief sought is with respect to the grant of parole as such. Mr Knight is not yet eligible for parole. The ultimate appropriateness of a parole order will fall to be determined upon the basis of the circumstances as they are when Mr Knight becomes eligible.

(b) The making of a parole order is discretionary. The exercise of the discretion on the facts is vested by Parliament in the Board and the Court could not interfere in the exercise of that discretion unless it were satisfied upon judicial review that the Board's discretion had miscarried as a matter of law. Whilst it may be that the Court could hypothetically require the Board to act in accordance with law if it were satisfied that the Board were not so acting, the relief sought by Mr Knight is of a mandatory kind which would in effect divest the Board of any discretion. Assuming in Mr Knight's favour (without deciding) that such an order might theoretically be made in an exceptional case, there is no evidentiary basis for suggesting that this is such a case.

Prior to a prisoner's earliest eligibility date for parole, the Board may, in appropriate cases, fix a tentative date for release on parole. This date is tentative only and may later be revoked. This procedure enables long term offenders who, by reason of their good behaviour, have achieved a minimum security rating in prison to make application for a rehabilitation and transition permit as provided for by section 57 of the Corrections Act 1986.

When an early decision to release an offender is made, the Board continues to monitor the progress and behaviour of the offender. If an offender fails to act in an appropriate manner within the prison system, the Board may revoke the order or defer release.

**The question of Mr Knight's security rating is a matter the subject of separate proceedings brought by him by leave of the Court which are currently fixed for trial in the relatively near future.[6] Mr Knight does not currently fall within the category described as ordinarily appropriate for the fixing of a tentative date for parole, but may in due course do so. I should add that on its face it is difficult to regard this case as an ordinary case. Moreover, more fundamentally, the tentative date procedure is an administrative procedure adopted by the Board which could not result in an effective parole order until Mr Knight becomes eligible for parole.

(d) There is no evidentiary basis upon which it could be concluded that there is a serious question to be tried, either with respect to the propriety or lawfulness of the Board's ongoing consideration of Mr Knight's case with respect to the grant of parole generally, or the question of the appropriateness of fixing a tentative date for release on parole.

15 The above considerations compel the conclusion that the first limb of the proposed proceeding is doomed to failure. Accordingly, it would constitute an abuse of process of the Court.[7]

16 Further, and in any event, even if Mr Knight did not face the above problems, I would not as a matter of discretion grant leave to proceed with respect to the consideration of Mr Knight's parole:

(a) when it is apparent that the position of the Board will progress upon the receipt of the report of Professor Ogloff; and

(b) the date at which Mr Knight will become eligible for parole remains a considerable time ahead.

17 Proceedings issued in these circumstances would be vexatious in the sense that they would be of no utility at this point in time. The Board has made clear that it will further consider Mr Knight's case but it has not yet done so.

18 As I have said, Mr Knight made clear that he did not press the second aspect of his application for leave if the first were not upheld.

19 I record for completeness, however, that Mr Knight also seeks a custodial community permit for the purpose referred to in s 57B(1)(e) of the Corrections Act 1986:**

(e) to take part in a program approved by the Secretary that is designed to facilitate -

(i) the rehabilitation of the prisoner; or

(ii) the prisoner's re-integration into the community; or

(iii) the preparation of the prisoner for release.

**20 I accept Mr Knight's submission that the refusal of such permits might potentially affect his case for parole.

21 Section 57D(1) requires that:**

(1) The Secretary may only issue a custodial community permit to a prisoner if the Secretary is satisfied that -

(a) adequate consideration has been given to the safety and welfare of the prisoner and members of the public; and

(b) facilities exist for the provision of adequate and suitable escort and transport where necessary; and

(c) in addition to the requirements of this Division, the issuing of the permit complies with any requirements set out in the regulations.

**22 It can be seen that the Corrections Act 1986 not only grants a discretionary power to the Secretary, but also imposes a requirement that she or he be satisfied of very significant matters of the public interest and safety before a permit is granted.

23 The statutory scheme in turn significantly constrains the capacity to challenge on the merits in this Court any decision by the Secretary. Such a decision would be open to judicial review, but not to an appeal on the merits as such.

24 I should add that I am satisfied that the Secretary's letter of 25 January 2012 does not demonstrate any arguable jurisdictional error or other basis of judicial review. That letter states (omitting formal parts):**

I refer to your letter to the Secretary dated 27 October 2011 about a Community Custodial Permit, and advise that it has been referred to me for consideration and determination and as a delegate of the Secretary.

Having regard to the matters set out in s57B it is my opinion that at this time, it is not appropriate to grant a permit, having regard to the purposes set out in s 57B and the matters you have identified in your letter.

As you point out in your letter the Operational Guidelines for Corrections Administration Permits, Rehabilitation and Transition Permits are a guide to (but do not dictate) the exercise of the Secretary's discretion Although the guidelines have not been satisfied in your case I have also considered the matters set out in your letter, as well as additional matters, which I set out below:

• Your earliest eligibility date is still well over a year away;

You have recently been assessed by Corrections Victoria clinicians and the Adult Parole Board with a view to engaging in programs directed at addressing your offending behaviour, and at rehabilitation generally, but you have not yet undertaken those programmes;
You have not as yet transitioned to medium or minimum security, although medium security is under consideration pending receipt of expert assessments
You have not yet been granted parole. The Guidelines indicate that prisoners who have not been granted parole are to be considered for eligibility 12 months prior to the EED. While I have considered the potential grant of a permit in your case, I do not consider that you have identified any specific circumstances which would warrant the grant of a permit at this time.

It is not clear how the times that other prisoners have spent in maximum security facilities (to which you refer in your letter) are relevant to whether a Community Custodial Permit would be appropriate to your case. Attending to "practical matters such as renewing a driver's licence" is not a matter which would require grant of a permit at this time, when parole has not been granted and you are over 14 months from your EED.

In the circumstances, your application for a permit is refused.[8]

**25 As Ms Harris submitted, there is no evidence before the Court which could currently justify the making of the order sought for leave to proceed against the Secretary.

26 Once again, I am not satisfied, as s 21(4) requires, that the proposed proceedings are not an abuse of the process of the Court. I am of the opinion that the proposed application for relief against the Secretary is doomed.

27 Conversely, the specific question of potential transition to medium or minimum security to which the Secretary's letter refers, is itself not only the subject of consideration by the Corrections Victoria, but as I have said is also the subject of a separate proceeding in this Court currently fixed for trial.

28 Accordingly, each of the factors to which the Secretary's delegate refers by way of specific dot point within his letter of 25 January 2012 is susceptible of change in circumstance and in turn the re-opening of Mr Knight's application on the basis of new facts.

29 Mr Knight hypothesised that if he could not obtain a decision as to a tentative date for parole, he would not be able to obtain a rehabilitation and transition permit, and in turn would for this reason be unable to obtain parole. This hypothesis is founded both on procedural speculation and assumptions as to the underlying merits of his position, which have yet to be examined and resolved by the relevant decision-makers.

30 There is no basis upon which the Court could conclude that it is arguable Mr Knight is currently being dealt with other than in accordance with law.

31 Leave to proceed in the present circumstances must be refused and the originating motion must be dismissed.**

[1] Attorney-General (Vic) v Knight [2004] VSC 407.

[2] R v Knight [1989] VicRp 62; [1989] VR 705, 708.

[3] Mr J P Dickson QC was an eminent and experienced prosecutor.

The Board may by instrument order that a prisoner serving a prison sentence in respect of which a non-parole period was fixed be released on parole at the time stated in the order (not being before the end of the non-parole period) and, unless the Board revokes the order before the time for release stated in the order, the prisoner must be released at that time.

[6] See Knight v Hastings [2011] VSC 332.

[7] Phillip Morris Limited v Attorney-General for the State of Victoria [2006] VSCA 21; (2006) 14 VR 538, 556; Knight v Anderson [2007] VSC 278, [7].

[8] Letter dated 25 January 2012 from Mr Brendan Money, Director, Sentence Management Branch, Department of Justice, to Mr Julian Knight.

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