Williams v Qld Community Corrections Brd [2000] QCA 75

[1] THE COURT: This is an appeal from a judgment of the Supreme Court dismissing an application for a statutory order of review of a decision of the Queensland Community Corrections Board not to grant the appellant parole, home detention or release to work. The notice of appeal filed states a number of grounds but the appeal as argued was, in effect, on two bases.

[2] In the first place, the appellant contended, the respondent's reasons for the failure to grant parole disclose a complete lack of consideration of whether, in the public interest, the appellant should be released on parole to encourage others who might be minded to give similar co-operation. Secondly it was submitted that the respondent failed to take into account, or to give proper weight, to the learned sentencing judge's recommendation for eligibility for parole. Before discussing those grounds, which are related, something should be said about the circumstances in which the appeal arises.

[3] On 14 May 1996 the appellant was sentenced in the District Court to an effective term of 12 years imprisonment less 110 days, that being the period which the learned sentencing judge declared to be imprisonment already served under the sentence. His Honour then recommended that the appellant be considered for release on parole after serving 18 months of that sentence. It was common ground that under that sentence the appellant's full time release date was 24 January 2008 and that the date upon which he would become eligible for parole under his Honour's recommendation was 25 July 1997.

[4] The effective term of 12 years was in fact the longest term imposed on 14 May 1996 for a number of offences. They were two of armed robbery in company, one of armed robbery with personal violence and in company, two of assault occasioning bodily harm whilst armed and in company, seven of deprivation of liberty and one of doing grievous bodily harm with intent to do grievous bodily harm. It was in respect of the last of these offences that the sentence of 12 years imprisonment was imposed.

[5] The offences covered three incidents; an armed robbery of a Pizza Hut at Kirra, offences involving an attack on a doctor who had been called out at night and an armed robbery at the Chevron Hotel. All offences were committed between the end of June and late July 1992. Shortly prior to the commission of these offences the appellant had been involved in another armed robbery of a restaurant in Tweed Heads for which he was sentenced in New South Wales. The New South Wales sentence which was an effective term of three years five and a half months, has no bearing on this appeal.

[6] Both armed robberies were committed in company with a man Wilkie who was the instigator and primary offender in each case. It was said on the appellant's behalf at the sentence hearing that his involvement in the first of these offences was because Wilkie had threatened harm to his family. This was not disputed and in view of Wilkie's reputation, referred to below, is entirely credible. It was the second of these armed robberies which involved the grievous bodily harm to a night manager. The learned sentencing judge found that, to the appellant's credit, he told Wilkie to stop hitting the man and his Honour expressed the view that it was quite likely on the material that, had the appellant not intervened to prevent Wilkie striking the manager and doing him more violence, the manager might well have been killed.

[7] The offence involving the apprehension and robbery of the doctor was at the instigation of another person. The appellant used his share of the proceeds of this robbery to hide from Wilkie who, it was accepted, had made threats to him and his family.

[8] The appellant had a substantial prior criminal history dating from 1966. It involved numerous offences of dishonesty but, more importantly, two of armed robbery, one in 1989 for which he was imprisoned for five years and one in 1993 for which he was imprisoned for a minimum of three years. He also had a conviction for possession of and using heroin to which, it appears, he was, at some stage, addicted.

[9] There is no doubt that, having regard to the seriousness of the offences for which he was sentenced on this occasion and his prior criminal history, a sentence of 12 years imprisonment was justified. However the appellant pleaded guilty and co-operated with the police as to his own involvement in these offences and that would have justified some discount by way of recommendation for early parole. But it plainly would not have justified the recommendation which the learned sentencing judge made. Indeed it is plain that his Honour did not think it would. His Honour made the recommendation for eligibility for parole after 18 months substantially because of the co-operation which the appellant gave to the police in implicating and convicting Wilkie.

[10] That co-operation was extensive and valuable and given in circumstances in which the appellant was in genuine fear of Wilkie. It was given at the risk of considerable danger to himself. Detective Sergeant Goobanco of the Gold Coast CIB who spoke to the West Moreton Regional Community Corrections Board on the appellant's behalf in connection with his application for parole had been the investigating officer in these matters. He described Wilkie as the most dangerous person that he had dealt with in 16 or 17 years on the job. He said that he was extremely grateful to the appellant for the information which he gave. He said that Wilkie was a danger to the community, not just to his victims, but also to people such as the appellant who came forward to give information and to give evidence against him.[1] He had no doubt about Wilkie's tendency to violence. His views about Wilkie and about the extent of the appellant's help were, he said, shared by his fellow officers.

[11] Courts have, on numerous occasions, emphasized the need to recognize and reward the public benefit of assistance such as this, given at considerable personal risk, in the apprehension and conviction of a dangerous criminal. [2] It may often involve the court in extending "a degree of leniency which would otherwise be quite unjustified".[3] In the present case, in our view, it justified the substantial discount, from a little less than six years to 18 months as the period which his Honour thought should be served before the appellant became eligible for parole.

[12] That was not the end of the appellant's co-operation with relevant authorities in the apprehension and conviction of an offender. On 5 October 1995 a fellow prisoner of the appellant's at the Moreton Correctional Centre was assaulted. It was suspected that he had conspired with others to have himself assaulted in order that he might sue the respondent for failure in its duty of care. Unsurprisingly, however, there was difficulty in obtaining evidence of this from other inmates. Two inmates, of whom the appellant was one, co-operated and provided statements implicating the offender and agreed to give evidence against him. Understandably the appellant expressed concern for his safety as a consequence of his co-operation. Information about this co-operation was before the respondent when it made its decision the subject of review.

[13] The application for parole, home detention and release to work which gave rise to the decision the subject of review was made on 9 February 1998, more than two years into his sentence. A previous application had been made and refused but the appellant had not sought to have it reviewed.

[14] This application came before the West Moreton Regional Community Corrections Board on 28 May 1998. As appears from a memorandum from that Board to the respondent the following day that Board recommended a gradual release; that the appellant should remain in prison on low classification for a further six months and then participate in unescorted leaves of absence. It added the following reasons:

"The applicant participated in several very serious offences with a co-offender. He claims to have been coerced with the commission of these offences because of threats to his wife and family by the co-accused. The circumstances of the offences give every appearance of being a willing participant. He is a long term drug addict and all his offending is drug related. He is 45 years of age and a recidivist with little likelihood in the Board's view of reforming."

[15] This matter came before the respondent on 18 September on which date the respondent, as appears from its letter to the appellant of 21 September:

"... decided to defer consideration of your case for six months. In the meantime you should undertake a programme of leaves of absence. The Board will request that a report on your response to leave of absence be provided for its consideration at the end of that period."

[16] No reasons were given in that letter. However it appears from its close similarity to the terms of the recommendation from the West Moreton Regional Community Corrections Board, to be an adoption of that recommendation.

[17] At the appellant's request the respondent provided detailed reasons to him by letter dated 23 October 1998. They are in substance as follows:

"The Board gave very careful consideration to your application. Particular weight was placed on the sentencing Judge's recommendation, the sentencing comments, and to the submission made on your behalf to the West Moreton Regional Community Corrections Board by Mr Goobanco. The matters raised by His Honour and Mr Goobanco weighed very heavily in your favour.

At the same time, the Board was mindful that its primary obligation is the protection of the community. As you are aware, you have a criminal history spanning three decades and five States. The history is littered with offences of both dishonesty and violence.

In 1989, you were sentenced to five years' imprisonment for an Armed Robbery. Before that sentence had fully expired, you committed more armed robberies. The Board took into account your explanation that your involvement in the most recent offences was due to threats made by your co-offender. However, the Board was unable to accept that your involvement was unavoidable.

You have reportedly expressed to a Community Correctional Officer your bewilderment that the Board considers your past history when determining your applications for early release. It is not a matter of the Board wishing to continually remind you of your past activities. In the Board's experience, a person's past behaviour can very often be a reliable predictor of future behaviour.

The Board took into account, in your favour, the rehabilitative work you have completed while in custody, and your apparent change of attitude in several respects. Your comments regarding your ineligibility for a Leave of Absence programme until January 1999 were also noted. Be that as it may, it seems to the Board that, having regard to the extent and nature of your criminal history, you should establish an increasing degree of trustworthiness, leading up to eventual release on Parole. The Board considers that the first step in that process was an extended period of breach-free residence in an open security centre, and you have done that. The next phase should be successful participation in a Leave of Absence program, followed by partial release from custody.

In those circumstances, the Board decided to defer your application for six months. Whether or not the Commission is prepared to approve your Leave of Absence program before next January is a matter for it, and is not an issue to which the Board is permitted to contribute."

[18] It is difficult to resist the suspicion that these reasons, to the extent that they differ from those of the West Moreton Regional Community Corrections Board, referred to above, were something of an afterthought and that the respondent, in making its decision on 18 September to defer consideration of the appellant's case for six months, was simply adopting the recommendation of the West Moreton Regional Community Corrections Board and its reasons. However we proceed to consider the issues in this appeal on the assumption that these reasons were, in fact, the respondent's reasons for its decision.

[19] It will be recalled that the appellant's first, and it appears main argument on appeal was that these reasons disclose a complete lack of consideration of whether, in the public interest, the appellant should be released on parole to encourage others who might be minded to give similar co-operation; and that the learned primary judge erred in failing to conclude that that was so and that the failure vitiated the respondent's decision.

[20] In cases of this kind there will almost always be two competing public interests. On the one hand, in the present case, there is the interest in apprehending, convicting and imprisoning offenders as dangerous to human life and safety as Wilkie and consequently in encouraging others, who may find themselves in a position similar to the appellant's, to co-operate in his apprehension and conviction, even at the risk of personal violence to themselves. On the other hand there is the public interest in imposing on the appellant a sentence of imprisonment which is commensurate with his serious offending and substantial previous criminal history and which ensures that he serves that sentence in such manner as to best minimize the risk to the community of his offending again on his release. And often in such cases - the present case is one of these - the first of these public interests so outweighs the second as to require, as mentioned earlier, such a degree of leniency in sentencing as would otherwise be quite unjustified. It was by a careful, and in our view correct balancing of these interests that the learned sentencing judge made the recommendation for parole which he did.

[21] The reasons of 23 October 1998 said that the Board placed particular weight on the sentencing judge's recommendation and that the matters raised by his Honour and the submissions made on the appellant's behalf to the West Moreton Regional Community Corrections Board weighed very heavily in the appellant's favour. But those reasons tended to indicate that the Board thought that these matters should be taken into account only as reflecting well on the appellant. Certainly the reasons gave no indication that the Board understood that a substantial purpose of his Honour's recommendation was to encourage others to do what the appellant had done. To that must be added the Board's failure to mention the considerable assistance which the appellant gave, again at the risk of personal danger, in the apprehension and prosecution of a prison offender. Read as a whole, therefore, the reasons, in our view, demonstrate a failure on the part of the Board to understand and apply the public policy to which we have referred. Had they done so they would have appreciated that it required the granting of parole at a point which demonstrated a degree of leniency which would otherwise be quite unjustified.

[22] The learned primary judge after correctly stating the principle in Bulger, said of the Board's decision:

"There is no occasion to doubt that the Board took into account the appellant's co-operation with authorities."

But in our opinion his Honour erred in failing to perceive the error into which the Board fell.

[23] There is one other event, adverse to the appellant, which occurred during his period of imprisonment which should be mentioned. In June 1998, as he deposed in his affidavit, he was found in breach of prison discipline because of a positive urine test. Presumably that meant positive to the presence of an illegal drug. However no further information on this was forthcoming from either party and it may therefore be assumed, for present purposes, that this was a minor breach which was of no significance in the appellant's application, for it must plainly have been known to the respondent which, in the above reasons, did not mention it and expressed only positive remarks about the appellant's performance in prison.

[24] The second basis of appeal was, it will be recalled, that the respondent failed to take into account, or to give proper weight to, the learned sentencing judge's recommendation for eligibility for parole. The statutory consequence of such a recommendation is that it fixes the date before which a prisoner is not eligible for release on parole; s 166(1) of the Corrective Services Act 1988 is made subject to s 157 of the Penalties and Sentences Act 1992. But the effect of such a recommendation will ordinarily be greater than that of simply fixing the date before which eligibility for release cannot be considered.

[25] A recommendation for early parole is part of the sentence imposed and mitigates the effect of that part of the sentence which imposes the term of imprisonment.[4] That is not because the prisoner has an absolute entitlement to parole at or about the recommended date. Clearly there is no such entitlement. It is because it is a reasonable expectation, at the time of sentencing, that the offender will become entitled to parole at about the date recommended. That expectation may be falsified or modified because of information gained about the prisoner and his prospects of rehabilitation during the period between commencement of sentence and the eligibility date and it would be unsurprising if, relying on that information, the Board did not grant parole at or about that date. But in the absence of such information placing the Board in a better position to make a judgment on this question than the sentencing judge, there is cause to question whether the refusal by the Board to grant parole at or about the time recommended is the result of some error by it which would justify a review of its decision.

[26] In the present case there was apparently nothing in the appellant's conduct in prison which the respondent thought to be detrimental to his prospects of obtaining parole. On the contrary it said that it "took into account, in your favour, the rehabilitative work you have completed while in custody, and your apparent change of attitude in several respects". Moreover, as we have already mentioned, it should have, and apparently failed to take into account the assistance which he gave, at the risk of personal harm, whilst in prison, in the apprehension and prosecution of a prison offender. Consequently the conduct of the appellant during the course of his sentence until the time of his application for parole, it might reasonably be thought, confirmed the correctness of the recommendation made by the learned sentencing judge.

[27] The matters which the respondent thought justified deferral of the appellant's application for parole appear to be the very matters which the learned sentencing judge had already taken into account in imposing the sentence which he did; the subject offences, his previous criminal history and the fact that these "can very often be a reliable predictor of future behaviour". These facts tend to support the view, reached earlier, that the Board failed to understand and apply the public policy referred to earlier, carrying as it does the consequence that its application may in some cases result in a degree of leniency which would otherwise be quite unjustified.

[28] Both in the course of oral argument on this ground of appeal and in supplementary written submissions reference was made to, and argument advanced with respect to guidelines issued by the Minister to the Board, under s 139(1) of the Corrective Services Act, with respect to the policy to be adhered to by the Board in exercising its powers and functions. The arguments focussed on two issues; what the guidelines were at the date on which the relevant decision was made, 18 September 1998, and what their legal effect was.

[29] Guidelines, the date of issue of which is unclear, were in existence prior to September 1997. They included specific guidelines as to the effect of judges' recommendations for parole. They said that only in exceptional circumstances should Community Corrections Boards fail to comply with the recommended release date stipulated by a judge or magistrate. By way of explanation it was said, amongst other things, that such recommendations should be seen, substantially, as binding on the Community Corrections Board which determines release of that prisoner; that unless the behaviour of the offender whilst in custody has deteriorated markedly after the date of sentence, or unless the parole plan is quite unsatisfactory, release at the eligibility date should be approved.

[30] The guidelines in this respect may both overstate and understate what would otherwise be the effect of a sentencing judge's or magistrate's recommendation for parole. They may overstate it in describing the recommendation as substantially binding on the Community Corrections Board and in stating, as one alternative basis of departure from a recommendation, a marked deterioration in behaviour after the date of sentence. Information which the Community Corrections Board has, which the learned sentencing judge did not have, may falsify or place a different perspective on information which had been placed before the sentencing judge as to events which occurred prior to sentence; and the implication that any deterioration must be marked may overstate the matter and unduly circumscribe the area of the Board's discretion. On the other hand if the suggestion that an unsatisfactory parole plan is a sufficient basis for departure from the learned sentencing judge's recommendation means no more than that dissatisfaction with the parole recommendation is a sufficient basis for that departure, it would be to destroy the reasonable expectation engendered by the recommendation.

[31] It is by no means completely clear whether, in issuing new guidelines which the Minister did in September 1997 it was intended that these should replace those to which we have referred. There is considerable substance in the argument that it was. For example each set of guidelines contains a heading "Basic Premises" but there are differences and some inconsistency between the respective sets of provisions under that heading. The guidelines which came into effect in September 1997 do not have any provision dealing with the effect of the sentencing judge's recommendation and cl 1.1 of these guidelines, under the above heading, provides:

"When considering whether a prisoner should be released from custody to a community based programme the priority for the Queensland Community Corrections Board should always be the protection of the community."

The Board was no doubt referring to this clause when it said, in its reasons of 23 October 1998, that it was "mindful that its primary obligation is the protection of the community".

[32] The protection of the community from criminal activity can be achieved in a number of ways, one being, as the remarks of the police officer referred to above illustrate, that of encouraging offenders to co-operate with police in securing the conviction of others. This vitally important matter must be taken into account when considering whether the interests of the community would be better served by keeping the co-operating offender in prison long past the date mentioned in the sentencing judge's recommendation, than by rewarding his co-operation by release on parole.

[33] The Minister's power to issue guidelines is expressly made subject to the Act. It should also be construed as not intended, in the absence of clear expression to that effect, to depart from the general system of law and public policy to which we have referred.[5]

[34] For these reasons it is immaterial whether or not the guidelines issued in September 1997 were intended to replace those which were in existence prior to that date.

[35] It follows that the respondent failed to give any or proper weight to the application to this case of the public policy of encouraging others, who may find themselves in a position similar to the appellant's, to co-operate in the apprehension and conviction, even at the risk of personal violence to themselves, of another offender; and that the learned primary judge erred in concluding otherwise. We would therefore allow the appeal, set aside the decision of the respondent made on 18 September 1998 and order it to reconsider its decision according to law. We would also order that the respondent pay the appellant's costs of this appeal and of the proceedings before the primary judge.

[1] The appellant in fact gave evidence against Wilkie at his trial; see R v Wilkie CA No 255 of 1997, 30 September 1997.

[2] Thompson [1994] QCA 393; (1994) 76 ACrimR 75 and authorities referred to therein; Bulger v Queensland Community Corrections Board [1993] QCA 493; [1994] 2 QdR 239 and authorities referred to therein; see also Penalties and Sentences Act 1992, s 9(2)(i) and s 13A.

[3] Malvaso [1989] HCA 58; (1989) 168 CLR 227 at 239.

[4] Corrigan [1993] QCA 417; [1994] 2 QdR 415 at 416, 419; Bafico [1995] QCA 485; [1996] 2 QdR 274 at 281.

[5] Cf Bropho v Western Australia [1990] HCA 24; (1990) 171 CLR 1 at 18; Coco v The Queen [1994] HCA 15; (1994) 179 CLR 427 at 437.