CRIMINAL LAW – JURISDICTION PRACTICE AND PROCEEDURE – JUDGEMENT
AND PUNISHMENT – OTHER MATTERS
ADMINISTRATIVE LAW – JUDICAL REVIEW – REVIEWABLE DECISION
Source
Original judgment source is linked above.
Catchwords
CRIMINAL LAW – OFFENCES AGAINST THE PERSONCRIMINAL LAW – JURISDICTION PRACTICE AND PROCEEDURE – JUDGEMENTAND PUNISHMENT – OTHER MATTERSADMINISTRATIVE LAW – JUDICAL REVIEW – REVIEWABLE DECISION– RELEVANT CONSIDERATIONS – APPLYING POLICY ANDMERITS – wherethe applicant was sentenced to periods of imprisonment of six years, four yearsand three years all to be servedconcurrently – where applicant iseligible for remissions if the Chief Executive of the Department of Correctionsis satisfiedthat the prisoner’s release does not pose an unacceptablerisk to the community – where the applicant unsuccessfullyapplied threetimes for remission – where the first and second decisions to refuseremissions were quashed by the Supreme Courtof Queensland – where theapplicant applies for review of the third decision – whether the ChiefExecutive placed unwarrantedreliance on the refusal of the applicant to
participate in the sexual offenders’ treatment program and admit his guilt
–
whether the Chief Executive failed to take into account relevant
factors, in particular the applicant’s good conduct in jail,
his studies
and prison employment – whether the decision was unreasonable
Corrective Service Act 2000 (Qld) s75, s77, s78
Corrective
Services Act 2006 (Qld) s401
Judicial Review Act 1991 (Qld)
s20(2)(e), s23(b) s23(f), s23(g)
Batts v Department of Corrective Services [2002] QSC 206,
cited
Minister for Immigration and Ethnic Affairs v Wuu Shan Liang
(1996) 185 CLR 259, cited
Webster v Queensland Corrective Services
Commission (5120 of 1998), cited
Judgment (134 paragraphs)
[1]
[1] The applicant seeks judicial review of a decision, made by a delegate of the respondent Chief Executive, to deny him remissions reducing the duration of the prison term he is presently serving. The applicant's attempts to win remission have not been easy. He was eligible for remission on 13 October 2005. On
[2]
21 November 2005 the general manager of Wolston Correctional Centre, as delegate for the respondent, refused to grant them. That decision was quashed by order of the Supreme Court on 31 May 2006 and remitted to the decision-maker for reconsideration. On 5 October 2006 the manager again refused remissions. This decision, too, was quashed by the Supreme Court on 15 November 2006 and sent back to the respondent to be decided according to law. On 20 December 2006 the respondent by his delegate made a preliminary decision to refuse remissions. This decision was confirmed on 22 January 2007 when Mr Collins, the current general manager of Wolston Correctional Centre, as delegate for the respondent, decided, for the third time, not to grant the applicant any remission from his sentence.
[3]
[2] On 5 December 2001 the applicant was sentenced in the District Court at Dalby to six years' imprisonment on each of two counts of rape; to three years' imprisonment for indecent assault; and to four years' imprisonment for each of two offences of indecent assault with a circumstance of aggravation. All sentences were to be served concurrently.
[4]
[3] At the time of his imprisonment the applicant was subject to the Corrective Services Act 2000, s 75 of which conferred an eligibility to receive remissions. Sections 401 and 402 of the Corrective Services Act2006 preserve the operation of s 75 of the repealed Act for the benefit of the applicant, and prisoners in a like position.
[5]
[4] It is common ground that s 75(1) is satisfied in the applicant's case. Subsection (2) provides:
[6]
'... the Chief Executive may grant remission of up to one third of the term of imprisonment if satisfied -
(a) that the prisoner's discharge does not pose an unacceptable risk to the community; and
(b) that the prisoner has been of good conduct and industry;
(c) of anything else prescribed under a regulation.'
[7]
'In deciding whether a prisoner's discharge or release poses an unacceptable risk to the community, the Chief Executive must consider, but is not limited to considering, the following -
(a) the possibility of the prisoner committing further offences;
(b) the risk of physical or psychological harm to a member of the community and the degree of risk;
(c) the prisoner's past offences and any patterns of offending;
(d) whether the circumstances of the offence or offences for which the prisoner was convicted were exceptional when compared with the majority of offences committed of that kind;
(e) whether there are any other circumstances that may increase the risk to the community when compared with the risk posed by an offender committing offences of that kind;
(f) any relevant remarks made by the sentencing court;
(g) any relevant medical or psychological report relating to the prisoner;
(h) any relevant behavioural report relating to the prisoner;
(i) anything else prescribed under a regulation.'
[8]
'In deciding whether a prisoner has been of good conduct and industry, the Chief Executive must consider, but is not limited to considering, the following -
(a) whether the prisoner has complied with all requirements to which the prisoner was subject;
(b) whether the prisoner has undergone separate confinement for a major breach of discipline;
(c) whether the prisoner has participated in approved activities or programs to the best of the prisoner's ability;
(d) anything else prescribed under a regulation.'
[9]
[6] The applicant was born on 28 November 1960. He is presently 46 years of age. He has a long and depressing criminal history. It is:
[10]
Toowoomba Magistrates Court
05/12/1977
[11]
Unlawful use motor vehicle
(29/11/77)
Unlicensed driver
[12]
Convicted & fined $250
I/D imp. 2 mths
Convicted & fined $50
I/D Imp. 1 month
[13]
Toowoomba Magistrates Court
13/02/1978
[14]
Unlicensed driver
Unlawful use motor vehicle (4 chgs - 12/2/78)
[15]
1st Chg:
Convicted & fined $50
I/D Imp. 2 weeks
2nd Chg:
Convicted & sentenced 3 mths imprisonment
Restitution $150
3rd Chg:
Convicted & sentenced 3 mths imprisonment
On each charge: (4 & 5) :
Convicted & sentenced 3 mths imprisonment
[16]
Stealing (2 chgs - 12/2/78)
Unlawful use motor vehicle (3 chgs - on 28/1/78, on 25/1/78, on/abt 28/11/77
[17]
1st Chg:
Convicted & fined $100
I/D imp. 1 month
2nd Chg:
Convicted & sentenced 1 month imprisonment
Restitution $15
On each charge:
Convicted & sentenced 3 mths imprisonment
Cumulative
[18]
Toowoomba Magistrates Court
26/10/1978
[19]
Unlawful use motor vehicle (6 chgs - on 24/10/78, on/abt 23/10/78
Break, enter & steal
(23/10/78
[20]
On each charge:
Convicted & sentenced 18 mths imprisonment
Restitution $275
Convicted & sentenced 18 mths imprisonment
Restitution $200
[21]
On all charges:
Convicted & sentenced 3 mths imprisonment
Concurrent
[22]
Toowoomba Magistrates Court
19/07/1980
[23]
Dangerous driving (3 chgs - 19/7/80)
Drive motor vehicle whilst blood alcohol content was .14%
(19/7/80)
[24]
On each charge:
Convicted & sentenced 3 mths imprisonment
Cumulative
Mdl disqualified 2 years
4th chg:
Convicted & sentenced 1 month imprisonment
Mdl disqualified 9 mths
[25]
Toowoomba Magistrates Court
10/11/1980
[26]
Drive motor vehicle whilst blood alcohol content was .10% (7/11/80)
State false name & address (2 chgs - bet. 6 & 7/11/80)
Unlicensed driver (2 chgs - on 6 & 7/11/80)
[27]
Convicted & sentenced 1 month imprisonment
Cumulative
Mdl disqualified 12 mths on each charge:
Convicted & sentenced 1 month imprisonment
On each charge:
Convicted & sentenced 4 mths imprisonment
Mdl disqualified absolutely
[28]
Toowoomba Magistrates Court
29/06/1984
[29]
Fail to supply specimen of breath for analysis (9/6/84)
[30]
Convicted & fined $325
I/D imp. 2 mths
Mdl disqualified 12 mths
[31]
State false name & address (14/10/84)
Unlicensed driver (14/10/84)
[32]
Convicted & sentenced 5 days imprisonment
Convicted & sentenced 3 days imprisonment
Mdl disqualified absolutely
[33]
Drive motor vehicle whilst blood alcohol content was .11%
92(1) COP possession etc. of property suspected of being tainted property (on 5/9/97)
[86]
Convicted
Community service 240 hours
Convicted
Community service 240 hours
[87]
Toowoomba Magistrates Court
20/04/1998
[88]
Convicted & fined $400
I/D imp. 24 days
Time to pay 4 months
Probation 12 months
Restitution $209.02
[89]
Holland Park Magistrates Court
02/06/1998
[90]
[7] The history does not include the offences which were committed on
[91]
30 September 2000 and which led to his present term of imprisonment.
[92]
[8] One might suspect from the entries in the criminal history that the applicant has had an addiction to alcohol which has been a causal factor in his offending. He was drunk on 30 September 2000 when he committed the rapes and indecent assaults.
[93]
[9] It will be noticed that overwhelmingly the applicant's criminality involved dishonesty. There are five instances of offences of violence, and they all appear minor. On 14 January 1986 the applicant was convicted of assault occasioning bodily harm and was fined $200. On 3 December 1986 he was convicted of unlawful assault and fined $150 and, on the same date, convicted of assault occasioning bodily harm for which he was fined $200 and ordered to pay compensation of $250. On 9 October 1987 he was convicted of assault occasioning bodily harm and sentenced to one month imprisonment and fined $100, as well as being order to pay compensation of $150. On 20 November 1989 he was convicted of the aggravated assault of a child under 19 years and assault occasioning bodily harm for which he was sentenced respectively to community service of 50 hours and 240 hours. On 24 April 1990 he was convicted of assault occasioning bodily harm to a female and sentenced to two years' probation. There were no further offences of violence in the eleven years which followed until his incarceration on the present charges. There has been no history of violence in jail.
[94]
[10] When one looks at the applicant's criminal history the commission of rape and indecent assault appears out of character. They are the only instances of offences of a sexual nature committed by the applicant and they are by far the most serious offences. He appears to have been a serial but petty thief who, on a few occasions, has thrown a punch. Judging by the penalties imposed the offences involving assaults were not serious.
[95]
[11] These observations have a relevance, as will appear.
[96]
[12] The applicant steadfastly continues 'to maintain [his] innocence with respect to [his] convictions' of 5 December 2001. This is perplexing because he pleaded guilty to them after the trial of the charges had proceeded for three days. One of the witnesses against him was his wife whom he had attempted to suborn to give false evidence. An appeal was dismissed, Davies JA remarking that the prosecution case was compelling.
[97]
[13] The applicant's denial of guilt has meant that he was not eligible for, and did not complete, the Sex Offenders' Treatment Program offered by the Department of Corrective Services. The decision not to embark upon the course appears to have been mutual : the departmental officers were of the opinion that the applicant could not address any tendency he had to commit such offences if he did not first admit that he had transgressed relevantly, and the course would be of no benefit to him. The applicant expressed a disinclination to take part in group discussions with sexual offenders and to discuss the circumstances of an offence he maintains he did not commit.
[98]
[14] The fact that the applicant has not completed the Sex Offenders' Treatment Program has had consequence for his applications for remissions.
[99]
[15] Apart from that blemish on his prison record the applicant appears to have been a model inmate. He has been charged with one breach of discipline : entering another prisoner's cell without permission for which he was confined for three days. He has otherwise been tractable, industrious and studious. The applicant had attended Mitchelton State High School and successfully completed Grade 10. He had no further education until his recent imprisonment when he enrolled as a student in a Bachelor of Legal and Justice Studies/Natural Law course at the University of Southern Queensland. He has successfully completed all but a few subjects and is in his last semester. The applicant deposed:
[100]
'All my education reports indicate that I have an excellent attitude and high level of motivation toward my double degree and that I am progressing above expectations.'
[101]
During his time in Wolston Correctional Centre the applicant was employed for eleven months in the woodwork shop, and for two years and three months as a clerk at the store, working seven hours a day, five days a week. During his time in employment he continued his studies. He is regarded as a dependable and reliable employee. In addition the applicant undertook training in a number of courses. He attained certificates in Occupational Health and Safety and Vocational Access. He has obtained a qualification to operate a forklift and a certificate in Engineering.
[102]
[16] This history suggests that the applicant has made a determined effort to obtain qualifications that will enable him to obtain gainful, and indeed remunerative, employment on his release from prison. He appears to have understood the need for rehabilitation and addressed the need.
[103]
[17] The applicant had also sought to overcome his addiction to alcohol. In 1990 he admitted himself as a voluntary patient to the Toowoomba Hospital Drug and Alcohol unit where he was confined for six weeks. On discharge he attended Alcoholics Anonymous meetings and abstained from alcohol for five years. He recommenced drinking 'occasionally' thereafter. I have pointed out that he was drunk when he committed the serious offences in 2000. He was granted bail by the Supreme Court on 21 November 2000 and for the 13 months between then and his sentence in December 2001 he abstained completely from the consumption of alcohol. He has not, of course, drunk while in jail. It was not a term of the grant of bail that he refrain from consuming alcohol.
[104]
[18] Apart from some sporadic ingestion of marijuana when young the applicant has never used illicit drugs.
[105]
[19] The applicant complains that his application for remissions was not considered on its merits but was dismissed by reference to a policy of the Department of Corrective Services, that a prisoner incarcerated for a serious sexual offence who does not complete the Sex Offenders' Treatment Program should not be granted remissions or parole; and that the respondent failed to take into account relevant factors being the applicant's demonstrated commitment to rehabilitation shown by his educational attainments and work history. The applicant relies upon s 20(2)(e), s 23(b) and (f) of the Judicial Review Act1991. The impugned decision is also said to be unreasonable within the meaning of s 23(g).
[106]
[20] The respondent's delegate gave reasons for his decision on 21 February 2007. Relevantly they read:
[107]
'You have an extensive criminal history. You have previous convictions for offences of violence and in particular violence against women. You have numerous convictions for offences of dishonesty and driving related offences. I noted that for past offences you have been fined, placed on community-based orders and imprisoned. I took into account that these court imposed sanctions have failed to deter your offending behaviour. It appeared that your most recent conviction represented an escalation in your offending behaviour. Having regard to the nature of the offences for which you were convicted and your previous convictions, I examined what steps you had taken to address the nature of your offending and reduce the level of risk that you may impose by re-offending. I noted that you have not participated in any programs to address your offending although you had been recommended to participate in a number of different types of programs all directed to equipping you with skills that might assist in lessening your risk of re-offending.
I noted that you did not undertake the sex offender treatment program which was a program specifically aimed at sexual offending, the type of offences for which you are presently imprisoned. I noted that you continued to maintain your innocence ... despite your pleas of guilty and unsuccessful appeal ... . This stance has prevented you from accessing the program ... . ... I must proceed on the basis that you committed the offences ... and that you present as an untreated offender both as to your sexual offending and violent offending behaviour. I noted that you have not been proactive in gaining skills that could assist in lowering the level of risk that you presented when convicted of the present offences.
I have considered your previous convictions for violent offending and your current offences of a sexual nature and given that you have not undertaken any interventions to address your violent and sexual offending, I am not satisfied that there does not exist a substantial risk of physical and psychological harm to a member of the community ...
I noted that your behaviour whilst in custody has been of an acceptable standard. ... You also have a very good employment record. I form the view that you have during the term been of good conduct and industry.
You were requested to provide a release plan. You provided a response ... in which you state that the details being sought ... was confidential ... .
[108]
[21] The applicant declined to be interviewed by the psychologist who was requested to provide a report for the assistance of the delegate. Despite his lack of co-operation the psychologist, Ms Messer, reviewed his file and reported on 28 November 2006. This report was part of the information considered by the delegate. Parts were quoted in his reasons. Ms Messer wrote:
[109]
'Clinical assessment
69 The offender's criminal history denotes a pattern of criminal versatility. His current sexual convictions, for which he continues to maintain a stance of innocence, continue to present the offender with outstanding criminogenic needs, as does his substance abuse history. He has not completed any intervention programs to date, despite offers of placement;
70 As the defendant declined to be interviewed the author was unable to administer other relevant psychometric assessments ... . The Static-99 result places the offender at a moderate to low risk of sexual re-offending. This measure is not validated as a risk tool to predict general recidivism;
Summary and Conclusions
71 In consideration of the offender's risk to the community and the subsequent decision whether to grant him remissions, it is important to consider the offender's outstanding criminogenic treatment needs, and assessment of his risk of sexual recidivism;
72 The offender has not completed recommended intervention programs to address his outstanding criminogenic needs, he has foregone the opportunity to complete a sexual offending and substance abuse related program and therefore remains untreated. The offender has not reduced his risk to the community pertaining to his present criminogenic needs;
73 It is noted that the offender has maintained acceptable intramural conduct and has maintained satisfactory employment and educational standards. Although positive to note, and considering his letters of support these factors do not significantly mitigate the offender's risk of sexual or general recidivism in the community.
74 As the offender has not participated in intervention programs, he remains as a moderate-low risk of sexual recidivism. ... I do not support the offender's release ... by the granting of his remissions.'
[110]
[22] It is true, as I have described, that the applicant did not undergo the recommended form of treatment for his sexual offending, a consequence of his refusal to admit what is objectively proved : that he was guilty of rape and indecent assault. Something, though, should be said about the suggestion he has 'untreated criminogenic needs' with respect to substance abuse. The fact is the applicant was not assessed as needing any such treatment. He has never used illicit drugs (except for smoking marijuana on a few occasions when young) and he had not consumed alcohol for over a year prior to imprisonment. Ms Messer's report, on
[111]
28 November 2006 suggested for the first time the need for such treatment. It was only subsequently that another psychologist recommended that the applicant undertake a substance abuse program.
[112]
[23] The applicant's case, briefly put, is that the respondent did not consider the merits of the application for remission, and declined it because, and only because, the applicant had not undertaken the Sex Offenders' Treatment Program. It is pointed out that there is no reference in the delegate's reasons to what must be regarded as the applicant's impressive educational achievements and equally meritorious accumulation of vocational qualifications. Instead the delegate wrote:
[113]
'I have considered your previous convictions for violent offending and your current offences of a sexual nature and given that you have not undertaken any interventions to address your violent and sexual offending, I am not satisfied that there does not exist a substantial risk ... to ... the community.'
[114]
Read in context this appears a clear reference to the applicant's failure to undertake the Sex Offenders' Treatment Program. Previously he had:
[115]
'... noted that [the applicant] had not participated in any programs to address your offending ...'.
[116]
After having referred to the applicant's failure to undertake the Sex Offenders' Treatment Program he concluded that he:
[117]
'... must proceed on the basis that you ... present as an untreated offender ...'.
[118]
[24] Though perhaps not strictly relevant to the disposal of this application it should be said, if only by way of parenthesis, that both Ms Messer and Mr Collins appear to have overstated the applicant's danger to the community. It is not realistic to describe the applicant in terms of 'criminal versatility', or as a violent offender. If one puts to one side the offences of rape and indecent assault, the applicant's criminal history, as I have remarked, is one of serial petty dishonesty and drunkenness. There are few episodes of violence. None, judging by the penalties imposed, was serious. There were no other sexual offences. It is not right to conclude that there was a pattern of escalating seriousness. The last occasion before the current offences on which the applicant was convicted of an offence of violence was in April 1990, ten years earlier. The present offences were certainly more serious than any other entry in the applicant's criminal history but they appear out of character. They are not part of a discernible pattern.
[119]
[25] Prisoners such as the applicant, who for no discernibly intelligible reason decline to admit their guilt of a serious sexual offence, and thereby preclude themselves from undertaking a program designed to address any propensity for further such offences in the future, pose a particular problem for those charged with the decision whether to release them on parole or by way of remissions. The law though, is clear. As Dutney J pointed out in Batts v Department of Corrective Services[2002] QSC 206:
[120]
'To refuse to grant remissions 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. See Yeo v Queensland Corrective Services Commission; Felton v The Queensland Corrective Services Commission; and Wiskar v Queensland Corrective Services Commission. A refusal on this basis is unacceptable because if fails to consider, in the case of the particular applicant, whether or not he is, in terms of s 75(2)(a) an unacceptable risk to the community. Rather, it focuses narrowly on two factors which may or may not in the particular case bear upon the relevant question of whether the applicant poses an unacceptable risk. It is, of course, true that any decision to release an offender carries with it some risk of re-offending. To be unacceptable the risk to the community must go beyond the ordinary risk attendant upon any unsupervised release.'
[121]
[26] An application for judicial review was allowed in Webster v Queensland Corrective Services Commission (5120 of 1998) because, as White J said:
[122]
'The conclusion seems plain that the delegate decided that the applicant, a sexual offender of no unusual sort, constituted a risk of re-offending because he would not admit his guilt and address his behaviour. That constituted a failure to exercise the delegated discretion according to law in not considering the real merits of the case.'
[123]
'It is clear that what must be considered are the circumstances in which the denial has been made, and it must be considered against the applicant's background and conduct. To focus narrowly on his refusal to acknowledge guilt, accompanied by the consequence that he has not undergone a relevant program would, in my view, be an inappropriate approach because of its over-simplification of the complexities involved in the situation.'
[124]
[28] Counsel for the respondent in his careful submission pointed out that the court should not be too astute to find an error in the delegate's reasons when a fair reading would show that he had taken into account all relevant factors and not 'focused narrowly' on the failure to undertake the Sex Offenders' Treatment Program. Reliance was put upon Minister for Immigration and Ethnic Affairs v Wuu Shan Liang (1996) 185 CLR 259 at 272 per Brennan CJ, Toohey, McHugh and Gummow JJ:
[125]
'... the reasons of an administrative decision-maker are meant to inform and not be scrutinised upon overzealous judicial review by seeking to discern whether some inadequacy may be gleaned from the way in which the reasons are expressed.'
[126]
Their Honours approved the remark in Collector of Customs v Pozzolanic (1993)
'The reasons for the decision under review are not to be construed minutely and finely with an eye keenly attuned to the perception of error.'
[128]
[29] Reading the delegate's reasons with that stricture in mind, one is nevertheless left with the impression that it was, in the delegate's opinion, the applicant's failure to undergo the Sex Offenders' Treatment Program and, perhaps a Substance Abuse program, which made him an 'untreated' offender. The delegate gave no other reasons and, significantly, did not address the question whether the applicant's demonstrations of rehabilitation, requiring as they did, a degree of dedication and self-discipline showed that any risk of re-offending was within the limits of the acceptable.
[129]
[30] There is no doubt that the applicant has been of good conduct and industry during his incarceration. The only question is whether his discharge on remission would pose an unacceptable risk to the community. That question must be asked by reference to all of the relevant circumstances appertaining to his individual case. They include, of course, his stubborn refusal to admit his guilt and undergo the program, but also the extensive evidence of commitment to industry and education. The circumstances would also include the fact that he is a moderate or low risk of committing further sexual offences, and that his vocational and educational qualifications should enable him to obtain employment and thereby substantially reduce the risk that he would feel the need to steal. They would also include the circumstance that he appears to have overcome his addiction to alcohol and does not appear to be prone to violence.
[130]
[31] One looks in vain in the delegate's reasons to find any discussion of these circumstances. One sees only a reference to the denial of guilt and concomitant failure to undertake the Sex Offenders' Treatment Program.
[131]
[32] In my opinion the applicant has made out his case. His application for remissions was not considered on its merits. The delegate did not have any proper regard to the circumstances in favour of the grant of remissions and did not consider the particular circumstances of the applicant.
[132]
[33] Accordingly I set aside the decision of the delegate of the respondent made on
[133]
22 January 2007 not to grant the applicant any remissions of the sentences imposed upon him in the District Court at Dalby on 5 December 2001.
[134]
[34] This is the third occasion on which the court has quashed the decision of the respondent, or one of his delegates, refusing the applicant remissions. The applicant became eligible for remissions on 13 October 2005. Nineteen months later the respondent has still not decided the application according to law. It took four months for the respondent to reconsider the application for remission after the initial refusal was set aside on 31 May 2006 by Mr Justice Muir. Almost three months elapsed between the quashing of the second decision on 15 November 2006 and the third decision on 22 January 2007 to refuse remissions. If that pace is replicated the applicant's full time discharge date of 14 October 2007 will arrive before the respondent gives proper and lawful consideration to the applicant's claim for remissions. The reconsideration should occur as a matter of extreme urgency.
Legislation Cited (3)
Service Act 2000
Services Act 2006
Review Act 1991
Cases Cited (1)
(1996) 185 CLR 259
After carefully weighing up all relevant factors I was satisfied that you had been of good conduct and industry. However after carefully weighing up all of the factors I was not satisfied that your discharge did not pose an unacceptable risk to the community.'