Wiskar v Queensland Corrective Services Commission [1998] QSC 279

3 Regulation 21 of the Corrective Services Regulations provides:

"(1) A prisoner serving a sentence of imprisonment of two months or longer and who is of good conduct and industry may, at the discretion of the Commission, and subject to the following provisions of this Part, be granted a remission of one-third of his sentence together with such other remission as is provided for in this Part.

(2) For the purposes of this Part a prisoner is of good character and industry if he -

(a) complies with all relevant requirements to which he is subject;

(b) displays a readiness to assist in maintaining order and a willingness and genuine desire to maintain steady industry in every employment or work which may be required of him."

That Regulation has been the subject of judicial consideration. In McCasker v The Queensland Corrective Services Commission [1998] 2 Qd R 261 Macrossan CJ said at 263: "The discretion to grant or refuse remission will properly be exercisable having regard to the fact that a discretion, not subject to particular restriction, has been conferred so that all matters relevant to its exercise in the circumstances can and should be taken into account." In the same case Helman J at 279-80 said: "It would clearly be a capricious exercise of the discretion provided for in Part III to refuse a prisoner whose conduct and industry have both been good when there is nothing of substance before the decision maker indicating that the risk to the community on the prisoner's release will be above an acceptable level." He also expressly cited with approval an observation of my own in Felton v The Queensland Corrective Services Commission [1994] 2 Qd R 490 at 503:

"It follows, in my opinion, that once the respondent has determined that in accordance with regulations 21 and 27 the prisoner has been "of good conduct and industry" he is entitled to a grant of remission unless the Commission is positively satisfied after affording the prisoner "procedural fairness" that there are overriding considerations which compel in the exercise of discretion a contrary decision."

4 The decision whether or not to grant remissions is an important one, if only because (as I was told from the Bar table) the decision is usually only made once. In other words if remission is refused the prisoner must serve the whole of his sentence; that means for this applicant serving another four years until 28 May 2002.

5 In this case the applicant was advised by letter dated 13 February 1998 that the "Authorised Delegate of the Serious Offenders Committee" was considering not to grant him remission on his sentence "on the basis that you would pose an unacceptable risk to the community if released unsupervised." The applicant was provided with some material which was then before the Delegate and he was invited to respond. He did so by letter of 24 February 1998. Therein he raised a number of issues for consideration by the Delegate. The applicant was then notified by letter of 24 March 1998 that on 19 March the "Serious Offenders Committee" considered a submission to grant remission and "decided not to grant remission on the prisoner's sentence of 12 years on the basis that you pose an unacceptable risk to the community if released unsupervised."

6 The applicant, having commenced proceedings for judicial review, sought a statement of reasons, and those were supplied on 22 May 1998.

7 I should record that counsel for the applicant did not submit that there had been any denial of procedural fairness in making the decision under review.

8 The letter of 24 March 1998 communicating the decision to the applicant set out what material was before the Delegate for his consideration, the findings of fact made, and the reasons given for the decision.

9 I will not refer to all of that material in detail. Suffice it to say that prison reports indicated that the applicant had incurred no breaches of conduct, and that his institutional behaviour had been of a consistently high standard. The reports noted that he had been gainfully employed for most of his sentence, that he had been involved in various self-development programs, and had received good participation reports with respect to them.

10 There was however a report signed by Mr M Trichet on behalf of the Sentence Management Team and the General Manager Mr J Bowden. The following extracts are of some significance:

"Officers' reports regarding Christopher's institutional behaviour have consistently been of a high standard throughout his incarceration. He has been described as cooperative and organised, punctual, polite and interacts well with staff and other inmates.

... Christopher has generally maintained some form of employment throughout his incarceration. He has worked in maintenance, stores and as a cleaner and has most recently been employed as a Trades Person Assistant with good work reports.

Has participated in several self-development courses including Anger Management, Stress Management, Forklift Operation and numerous computer courses and educational programs. He has received good participation reports.

... Christopher has maintained a denial stance in relation to his offence and has therefore not addressed his offending behaviour.

When recently questioned by a psychologist with regards to the details of the offence Chris reported that he did not commit the offence. He maintained a stance of full denial when further questioned about the offence. He stated that he did not wish to undertake a sex offender program as he would have nothing to discuss. He has also maintained this attitude during his last Sentence Management Review in December.

... The Sentence Management Team does not recommend that Christopher Wiskar be granted remissions on the sentence under consideration.

Although he has participated in numerous self-development programs and his institutional behaviour has been of an acceptable standard throughout his incarceration he has maintained a denial stance with regards to the offence and has therefore not addressed his offending behaviour."

11 The reference therein to the applicant being questioned by a psychologist was undoubtedly a reference to the Psychological Notes of Clare Whettam dated 2 November 1997. She states the applicant "was interviewed [on 24 September 1997] to examine his stance in regards to undertaking a sex offender program." She went on to note that when questioned about the details of his offence the applicant "reported that he did not commit the offence. He maintained a stance of full denial when further questioned about the offence." According to the notes the applicant did not wish to undertake a sex offender program. Those notes conclude with a recommendation that the applicant's "stance of denial be challenged in sentence management review and through individual contact with counsellors/psychologists."

12 Those, as stated, were matters referred to in the reasons of 24 March 1998. One of the facts recorded therein as having been found was that the "prisoner has not engaged in any therapeutic intervention aimed at addressing his sexually offending behaviour." The following passages from the reasons therein stated are of some significance:

"In determining your case the delegate first had regard to s.21 of Corrective Services Regulations 1989. Your institutional conduct and industry has been of an acceptable standard. ...

These offences were committed over a period of some 14 months against a child of 2½ years of age. It cannot be considered that your imprisonment has resulted from a single event or offence but rather that you developed a cycle of offending behaviour which lasted for a period of 14 months. The authorised delegate was of the view that these offences committed against such a young child as being of an exceptional and serious nature.

However it is noted that you now deny committing these offences. Such denial has precluded Correctional Centre staff from assisting you in addressing the factors that have led to your offending. It was noted that you do not wish to undertake a sex offenders program as you are of the view you would have nothing to discuss. Your actions in not addressing your offending behaviour were cited by the Queensland Community Corrections Board in denying your release to the community.

... The Committee also noted the lengthy period of imprisonment that you have incurred for the offences indicating that the court regarded the offences as being very serious. You have not engaged in any therapeutic intervention to reduce your risk of reoffending in a sexual manner.

The Committee noted that the General Manager and Sentence Management Team have assessed you as being unsuitable for release to the community without supervision. When having regard to all aspects of your case the Committee concluded that you would present an extremely high risk of reoffending in a sexual manner if you were to be released unsupervised and that the risk to the community would be unacceptable."

13 Finally I turn to the statement of reasons provided on 22 May 1998. I will not repeat the matters which are no more than a restatement of what was said in the earlier reasons. The following are material extracts:

"The Delegate considered the prisoner's response to the custodial environment, and concluded that he had maintained consistently satisfactory levels of behaviour throughout his sentence. Reports also identified that the prisoner had been gainfully employed during the majority of his sentence.

A Psychological Note dated 24 September 1997, identified that the prisoner had been interviewed by Psychologist Ms C Whettam. Ms Whettam noted that the prisoner had indicated that he had not committed the offence of Rape. She further reported that owing to his denial stance he did not wish to undertake a program targeted at addressing sexual offending behaviour.

The fact that the prisoner pleaded guilty indicates that he accepted that he had committed the offences. Yet the prisoner's denial stance during the course of his sentence, has precluded Correctional Centre staff from assisting in addressing the factors that have led to the prisoner's offending. The Delegate was of the view that the prisoner had done nothing to reduce the risk should he enter into a relationship in the future where he may be a parent, or a guardian of other young children.

Research indicates that sexual offenders who refuse to enter into any form of treatment are more likely to commit further offences than those who have completed recommended programs, because they have not developed risk prevention strategies or self-control skills. Sexual offending is viewed as a behaviour that can recur given similar emotional states or factors to those that were present prior to and during previous offences. It is the view of the authorised delegate that in order to prevent further offending, serious sexual offenders must develop these skills and learn to intervene to ensure that given similar circumstances where an opportunity exists for them to offend, that they do not respond similarly and sexually offend against young children.

Having regard to all aspects of your case, the Delegate was of the view that the prisoner had not taken any action to reduce his substantial risk to the community during his sentence and therefore considered to be a risk if released without supervision."

14 The principal submission by counsel for the applicant was that the reasons supplied (either or both those of 24 March 1998 and 22 May 1998) indicated that the Delegate concluded that the applicant would be a risk to the community if released without supervision by applying general guidelines and principles without addressing the particular circumstances of the applicant. The point is based on the approach of the courts in McCasker, Fenton, and the unreported decision of Dowsett J in Yeo v Queensland Corrective Services Commission (No 7534 of 1997, judgment 13 February 1998). As the judgment of Dowsett J indicates, what is necessary is that there be an assessment by the decision maker of the magnitude of the risk so far as the particular applicant is concerned. It is not simply a matter of applying guidelines. As his Honour noted it is not sufficient merely to say that the applicant denies or refuses to admit his guilt; the passage on p.7 is apposite:

"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 upon 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."

15 Here it is significant that there was no assessment by a psychiatrist or psychologist containing a professional assessment of the risk that this particular applicant might pose to the community. The notes of Ms Whettam do not amount to such a report; the notes themselves indicate the limited nature of the interview undertaken. Apparently no further notes were made of any psychological assessment after 24 September 1997.

"... I cannot agree that such a conspicuously possible consequence of release as the risk to the community could be regarded as irrelevant to the decision. Good conduct and industry will take the prisoner to the prison gate, but permission to pass through it may legitimately be withheld if that decision is based upon proper considerations. A report by a psychologist based on observations of the prisoner in prison and knowledge of his history, as in this case, could well provide the decision maker with a proper basis for refusing to grant a remission."

That is true, but I would add to it that such a report may also establish that the risk to the community was so minimal that, despite the continuing denial of guilt, the prisoner could be safely released into the community. Where issues of the nature involved here have to be considered an up-to-date psychological report should be before the decision maker.

17 The absence of such a report in this case essentially means that the decision was based on general principles or guidelines and not on a detailed assessment of the risks associated with this applicant. It is not really helpful to say that "research indicates that sexual offenders who refuse to enter into any form of treatment are more likely to commit further offences than those who have completed recommended programs". That may be true as a general proposition, but it does not mean that all offenders who refuse to enter into such a treatment program constitute an unacceptable risk; at this level of decision making it is important to ensure that the risks to the community from the applicant's denial of guilt are properly evaluated.

18 In the end I have come to the conclusion that there was insufficient attention paid to the particular circumstances of this applicant in making the decision to refuse him any remissions. That means that the decision maker failed to have regard to a relevant circumstance. The decision should be set aside and the matter remitted to the respondent for further consideration.

19 The respondent should pay the applicant's costs of the application.