SB v Qld Community Corrections Board

[1] Douglas J: SB, the applicant, was convicted on 10 December 1998 of three counts of carnal knowledge by anal intercourse with a child under 12 years, one count of carnal knowledge by anal intercourse with circumstances of aggravation and one count of maintaining an unlawful relationship of a sexual nature with a child under the age of 16 years with circumstances of aggravation. He was sentenced to 10 years' imprisonment on each count to be served concurrently. On 10 August 1999 the Court of Appeal dismissed his appeal against conviction and refused his application for leave to appeal against sentence. During the trial there was a change in evidence given by a 10 year old boy, the brother of the 9 year old complainant, which led to his evidence being inconsistent with that of the complainant in important respects. That caused the trial judge to express concern about the state of the Crown case and to raise the issue whether the prosecution should proceed. Although his Honour's concerns were canvassed on the appeal they did not result in the verdict being varied.

[2] The applicant continues to maintain his innocence and for that reason has not taken part in the Sexual Offenders' Treatment Programme or the Cognitive Skills Programme available to him in prison. The sentencing judge made no recommendation for parole but the applicant became eligible for post-prison community based release after having served 5 years of his 10 year term, on 10 December 2003. On 8 July 2004 he applied for post-prison community based release, which was refused by the respondent Board by its decision of 26 November 2004. Its reasons for that decision dated 16 December 2004 referred back to a letter from the Board to the applicant on 11 October 2004 where it set out its findings of fact and reasons why it seemed to the Board that the applicant may not be an acceptable risk to the community on any form of post-prison community based release order. Those reasons of 11 October 2004 contained the following passage:

"The Board wrote to you on 19 February 2004 outlining the relevant features of your case to that time. A copy of that letter is enclosed for your information and should be read as part of this document.

The Board noted that since its last letter to you referred to above, you have remained breach free and that your work and behaviour reports are satisfactory.

However, the Board's primary obligation is the protection of the community and there are a number of other factors about which the Board is concerned and which might outweigh those matters that stand to your credit. In particular, the Board is concerned that you continue to deny responsibility for your offending behaviour and as a result, maintain that you "will not lie to do a course" and therefore will not participate in any program to address your offending behaviour. As against this, the Board must take into account that a jury of your peers fully considered the evidence at your trial and found you guilty of these very serious offences. It appears that you continue to be without remorse for what you did to your victims.

As a result of your ongoing refusal or failure to accept responsibility for your offences, you have not completed the Cognitive Skills Program and the Sex Offender's Treatment Program (SOTP) as recommended to address your offending behaviour. The Board must proceed on the basis that you did commit these offences as you were convicted of them. It is therefore most concerned that you have been unwilling to participate in these programs. You are therefore effectively an untreated offender who has perpetrated serious offences. The Board is therefore left in a position where it cannot have any confidence that you would be less likely to commit similar offences again if released to the community at this time than you were before your imprisonment.

Therefore the Board strongly recommends that you successfully complete the SOTP and the Cognitive Skills Program and focus on lowering your classification and spending time in an open custody environment before reapplying for post-prison community based release.

For the reasons set out in this and the Board's previous letter to you, referred to above, 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"

[3] The applicant, who was unrepresented, criticises the decision partly on the basis of his assertion that the Board treated his claim of innocence, with his consequent inability to participate in the recommended programs, as "overwhelmingly determinative regarding risk regardless of the merits of his case". I shall return to that issue shortly.

[4] The applicant also expanded the grounds of his application for a statutory order of review by amending his original application to allege that the decision was an exercise of a personal discretionary power at the direction or behest of another person leading to an improper exercise of the power. That issue arose because the Premier, the Hon. Peter Beattie, had been reported as saying of criminals convicted of offences such as carnal knowledge of children under 16 that they must complete their entire jail sentence if they refuse to take part in treatment programs. There was no evidentiary basis for concluding, however, that that erroneous statement by the Premier had influenced this decision. It was erroneous because it did not reflect accurately the terms of the policy that had been formulated by the government in respect of these decisions.

[5] All but one of the members of the Board who participated in the relevant decisions have sworn that they were not aware of the Premier's reported statement when they made their decisions and that what they considered were the individual merits of a prisoner's case and the "Ministerial Guidelines to the Queensland Community Corrections Board for the release of prisoners on post-prison community based release orders pursuant to s. 167(1) of the Corrective Services Act, 2000" signed on 27 December 2002 by the Hon. Tony McGrady, Minister for Police and Corrective Services and Minister assisting the Premier on the Carpentaria Minerals Province. One of the Board members who participated in the relevant decisions has not sworn an affidavit. She is currently overseas and has not left any forwarding address or contact telephone number with the Acting Secretary of the Board. There is, accordingly, no evidence to support the complaint that the Board exercised its powers at the direction or behest of another person.

[6] The policy that was in force to which I have just referred and which was considered by the members of the Board who have sworn affidavits contains a number of relevant passages. They are as follows:

"1.1 When considering whether a prisoner should be released from custody on a post-prison community based release order ... the highest priority for the Queensland Community Corrections Board (hereinafter called 'the Board'), should always be the safety of the community.

1.3 Section 167(1) of the Corrective Services Act 2000 (the Act) allows the Minister to make guidelines regarding the policy to be followed by the Board in performing its functions. In following these guidelines, care should be taken to ensure that decisions are made with regard to the merits of the particular prisoner's case. Any departure from these guidelines should only occur where the Board is satisfied that principle 1.1 has been properly considered.

2.2 When deciding the level of risk that a prisoner's release to any post-prison community based order poses to the community, the Board should have regard to all relevant factors, but is not limited, to the following -

(f) the successful completion of programs of rehabilitation;

In every decision of this nature, the level of risk to the community should be the over-riding consideration.

2.5 Consideration for release on a post-prison community based release order of a prisoner who has failed to make a genuine effort to undertake reasonable and available rehabilitation opportunities while in custody should be undertaken with extreme caution."

[7] The relevance of a prisoner's denial of guilt, to the extent that it denied him the opportunity of participating in an offender's treatment program, successful completion of which would have been a factor in his favour, was considered by the Court of Appeal in Mott v Queensland Community Corrections Board [1995] 2 QdR 261 in a similar context to the present where the Board was considering whether to grant or refuse parole. Fitzgerald P said at 269-270:

"A proposition that the prisoner is or may be not guilty, but innocent, is fundamentally incompatible with the concept of parole, and completely at odds with the functions and responsibilities for which a body such as the appellant is constituted ...

It follows, in my opinion, not only that the primary judge erred in his decision, but that the appellant was entitled, and required, to proceed on the footing that the respondent's guilt had been established by his conviction, and that his attitude, and suitability for parole, fell to be assessed on the basis of his denial of guilt, and his disinterest in and unsuitability for, the Sexual Offenders' Treatment Programme, were to be considered in the context of his established guilt. In these circumstances, no error was demonstrated in the appellant's approach, and it should not have been ordered to reconsider its decision refusing the respondent parole."

[8] Davies JA took a rather different approach when his Honour said at 271:

"Neither the respondent's denial of guilt nor his consequent unsuitability for participation in a sexual offender's program was a reason for refusing parole. But, read in context, I do not think that the appellant's reasons assert that either was. On the other hand his successful completion of that program, denied to him by his denial, would have been a factor in his favour. It was only in this negative sense that the appellant took the respondent's denial of guilt into account. In taking it into account in this limited way I do not think that the appellant can be said to have taken into account an irrelevant consideration in arriving at its decision."

[9] McPherson JA adopted what might be described as an intermediate position at 275:

"Refusal to admit guilt. With respect to the matter of guilt, it would, I think, be impossible to say that the refusal of an applicant for parole to admit his guilt is necessarily or always to be considered as irrelevant. An applicant's perverse insistence on his innocence of a charge to which he had pleaded guilty, or was found guilty at a trial at which an overwhelming case was proved against him, may, as his Honour accepted, in some circumstances plainly be relevant to a decision whether or not to release him. It might legitimately be viewed as manifesting an attitude on his part that was inconsistent with the aims or objects of parole in his case. On the other hand, it would in my opinion be improper for the Board to adopt a rule that release on parole should not be ordered unless and until the applicant acknowledged his guilt of the offence or offences of which he was convicted. It is not a proper function of the power of granting release on parole that it be used to compel admissions of guilt as a condition precedent to release."

[10] To the extent that it matters, I am persuaded by the view of McPherson JA that the refusal of an applicant to admit guilt may, in the right circumstances, be relevant to a decision whether or not to release him. I also agree with his Honour that it would be improper for the Board to adopt a rule that release should not be ordered unless and until the applicant acknowledged his guilt of the offences of which he was convicted. The conclusion of Davies JA that the successful completion of the Sexual Offenders' Treatment Program, denied to the applicant in that case by his maintenance of his innocence, would have been a relevant factor in his favour is also persuasive. It also seems to me to be correct, as Fitzgerald P said, that the Board was required to proceed on the footing that the applicant's guilt had been established by his conviction. It is in that context that one needs to examine the reasons offered by the Board for their decision.

[11] Before I return to that question, however, it will be useful to examine some other decisions to which I was referred by the parties. The applicant, Mr SB, drew my attention in particular to a decision of Dutney J in Fogarty v Department of Corrective Services [2002] QSC 206. That was a matter heard together with another matter called Batts v Department of Corrective Services. There his Honour said at [14] that to refuse to grant remission solely on the basis that there has been no admission of guilt or a failure to undertake a particular course is an entirely improper exercise of the relevant power because it fails to consider, in the case of the particular applicant, whether or not he is an unacceptable risk to the community. His Honour was dealing with a decision made by an officer of the Queensland Corrective Services Commission who refused to grant remissions to prisoners incarcerated for sexual offences. Under s 75 of the Corrective Services Act 2000 such an officer was required to make an independent decision as to whether or not the prisoner was an unacceptable risk to the community. His Honour concluded at [35] that there was no evidence capable of supporting a conclusion that Mr Fogarty was an unacceptable risk to the community and that "the decision to refuse him remissions was based on a policy of considering every sex offender an unacceptable risk unless they had undertaken the Sexual Offenders' Treatment Programme". In reaching that conclusion he appears to have proceeded on the basis that the decision maker being reviewed had uncritically accepted the opinion of a psychologist based upon "the unsubstantiated assumption that attendance at the Sexual Offenders' Treatment Programme reduces the risk of re-offending and that the failure [to] attend renders the offender an unacceptable risk to the community."

[12] His Honour does not appear to have referred to the question whether the nature of the offences of which Mr Fogarty was convicted was relevant to the question whether he was an unacceptable risk to the community at the time of the decision, apart from this statement at [37]: "In this case there is no suggestion that there was anything exceptional about the offence as being compared with other like offences and no comment by the sentencing judge which might reasonably be regarded as bearing upon the question of remission."

[13] Mr Logan SC distinguishes that approach partly by pointing to the different constitution of the Board, when making a decision, compared to a decision of a delegate of the Director-General of the Department of Corrective Services. He submits that decisions of the Board, statutorily created with several members with a variety of interests and expertise including at least one medical practitioner or psychologist under s 158 of the Act, should be approached more circumspectly; see Medical Board of Queensland v Thurling [2003] QCA 518 at [12].

[14] He also referred me to several helpful English decisions dealing with similar issues. In R v Secretary of State for the Home Department, Ex parte Lillycrop and Ors (QBD (Crown Office List), The Times 13 December 1996, CO/2292/96, 27 November 1996) Butterfield J in giving the judgment of the Court and relying in part on an earlier decision of that Court in R v Secretary of State for the Home Department, Ex parte Zulfikar (1995) The Times 26 July 1995 said:

"We consider that the Parole Board must approach its consideration of any application for parole on the basis that the Applicant has committed the offences of which he has been convicted. It is not the function of the Parole Board to investigate possible miscarriages of justice or to give effect in their considerations to any personal misgivings they may have about the correctness of any particular conviction.

That being so, where the pattern of offending behaviour is such that there is a significant risk of a further offence being committed, particularly an offence of a violent or sexual nature, and an Applicant has not demonstrated by his conduct in prison that such risk has been reduced to an acceptable level, then a recommendation for parole is unlikely to be made. Part of that conduct in prison to which a panel of the Parole Board will inevitably and rightly look will be the extent to which an Applicant has examined the behaviour which has led to his imprisonment. Where because of denial that the offence has been committed no such examination has taken place it will be more difficult for an Applicant to satisfy the Board that the risk he posed when he was sentenced to a term of imprisonment has been reduced to an acceptable level. We repeat and emphasise that each case must turn on its own particular facts."

[15] The later decision in R v Secretary of State for the Home Department, Ex parte Hepworth and Ors [1997] EWHC Admin 324 (25 March 1997) is also useful. Laws J summarised the principles from earlier decisions at [45] in the following terms:

"45. I hesitate to offer yet a further summary of the essential approach to be derived from the cases. I do so only to the extent that the following propositions, while of general application, bear particularly on the way in which Mr Tabachnik has put his case for the applicants:

(1) The Parole Board must assume the prisoner's guilt of the offence or offences of which he has been convicted.

(2) The Board's first duty is to assess the risk to the public that the prisoner might commit further offences if he is paroled.

(3) It is therefore unlawful for the Board to deny a recommendation for parole on the ground only that the prisoner continues to deny his guilt.

(4) But in some cases, particularly cases of serious persistent violent or sexual crime, a continued denial of guilt will almost inevitably mean that the risk posed by the prisoner to the public or a section of the public if he is paroled either remains high or, at least, cannot be objectively assessed. In such cases the Board is entitled (perhaps obliged) to deny a recommendation."

[16] The charges proved against Mr SB were of serious, persistent sexual crime covering a period between 28 February 1996 and 1 June 1997 where the complainant was sodomised many, perhaps 70, times by the applicant. The Board was correct in taking the stance that it must proceed on the basis that he committed the offences because he was convicted of them. It was also correct in regarding him, effectively, as an untreated offender who had perpetrated serious offences. It was entitled to be cautious in considering his application for release because of that history and it is in that context that it was relevant for it to take into account in a negative sense his failure to complete the Cognitive Skills Program and the Sex Offenders' Treatment Program in the sense that, if he had successfully completed those programs, that would have been a factor in his favour; see Davies JA in Mott v Queensland Community Corrections Board at 271.

[17] It is a matter for the Board to assess the evidence in respect of that issue and to reach its own view on the merits in each case. There is no reason to suspect that it has failed to take that course in this case or to have erred in law in the approach that it took to its assessment. In my opinion, therefore, there has been no reviewable error demonstrated in the decision taken by the Board, it being in the position, as it said, of not having any confidence that the applicant would be less likely to commit similar offences again if released than he was before his imprisonment. This is a similar situation to that referred to by Laws J in R v Secretary of State for the Home Department, Ex parte Hepworth and Ors where the risk posed by the prisoner to the public either remains high or at least cannot be objectively assessed.

[18] I would have thought that there may be means of objectively assessing such a risk to the public independently of a prisoner's admission of guilt but there was no evidence of such a possibility before me.

[19] Accordingly I dismiss the application and shall hear submissions as to costs.