Beer v. the Chief Executive, Department of Corrective Services

[2006] QSC 272

SUPREME COURT OF QUEENSLAND

[2006] QSC 272

CIVIL JURISDICTION

FRYBERG J

No BS 5854 of 2006

BARRY JOSEPH BEER	Applicant
and
THE CHIEF EXECUTIVE, DEPARTMENT OF CORRECTIVE SERVICES	Respondent

BRISBANE

..DATE 21/09/2006

ORDER

HIS HONOUR:  This is an application to review a decision of the delegate of the Chief Executive of the Department of Corrective Services to refuse to grant remission to the applicant.  The delegate made the decision on 8th September this year and delivered reasons for his decision yesterday.  The application was originally for different relief but by reason of the decision of 8th September the application has become, in effect, an application for an order of review of that decision.

The applicant is currently at Borallon Correctional Centre.  The circumstances which have led to that incarceration are conveniently set out in the reasons for judgment of the Court of Appeal in appeal number 1207 of 2006: Beer v. Chief Executive, Department of Corrective Services 2006 QCA 163, and take in paragraphs 3 and 4 of that judgment.

On 10 November 1999 Mr Beer was acquitted of attempted murder but convicted of causing grievous bodily harm with intent.  The complainant had gone with his stepdaughter to Mr Beer's residence, where the complainant's stepdaughter had previously been living with Mr Beer's son, to collect her possessions.  The complainant and his stepdaughter gained entry through an unlocked door, and as she was collecting her clothes Mr Beer appeared and asked what she was doing.  The evidence of what happened after that differed among the witnesses.  the complainant said that after he had explained that his stepdaughter just wanted to get her clothes, Mr Beer walked up to him and stabbed him in the neck.  The stepdaughter's account supported the complainant's more than it supported Mr Beer's, who had sworn that after he told the complainant to leave and come back later when Mr Beer's son was home, the complainant had punched him and had grabbed Mr Beer by the throat. Ultimately Mr Beer ended up being both choked and punched by the complainant, and had seized a knife on a nearby ironing-board and used it to defend himself.  The account by the complainant's stepdaughter did include that there was a struggle, in which an ironing-board was knocked over, but she seems to have described the apparent stabbing before that struggle.  Most of the blood was found in the area near the wall and the ironing-board, not where the complainant claimed that his throat was cut.

Mr Beer was originally sentenced to eight years imprisonment, and the learned sentencing judge declared he had been convicted of a serious violent offence.  On an appeal to this court that sentence was reduced in a judgment published on 26 May 2000 to seven years, without a declaration.  This Court remarked that Mr Beer had been convicted of a very serious offence; and that while Mr Beer was in his own home, the complainant was peacefully assisting his stepdaughter to remove her property from it.  Mr Beer was 60 years old at the time of the offence, and was a smaller, shorter man than the complainant; but the deliberate use of the knife was a serious aggravating factor.  This Court said that the evidence accepted by the learned sentencing judge (and in particular the complainant's evidence) showed that the assault with the knife was sudden, unexpected, unjustified and deliberate.
The applicant's full-time discharge date is 9 November this year, in other words, barely a month and a half away.  He has made several applications for post-prison community-based release or remission over the years.  Most recently he has refused to apply for post-prison community-based release but has pressed applications for remission which have not been granted.

The current application has been refused under section 75 of the Corrective Services Act 2000 which applies by reason of sections 400 and 401 of the Corrective Services Act 2006. The specific ground that has been relied upon by the decision maker is that he is not satisfied that the applicant's discharge does not pose an unacceptable risk to the community. It is accepted by the decision maker and by counsel before me that the applicant has been of good conduct and industry (the other factor set out in that section), and that the case simply stands or falls upon the question of unacceptable risk to the community.

The concept of unacceptable risk to the community is expanded in section 77 of the Corrective Services Act 2000:

"77 Risk to community

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."

An initial question which occurred to me was whether, in deciding the acceptability of risk, one should compare the risk which will exist if the remission is granted with the risk which will exist if it is not granted and the prisoner serves his full term.

Mr Plunkett submitted that one should not adopt that approach but should simply recognise the possibility that there may be an unacceptable risk, even at the full-term stage of a sentence and that the exercise which must be undertaken by the decision maker is not to be one of comparative assessment of risk between those two dates.  In other words, Mr Plunkett, for the respondent, submitted that one looked at the unacceptability of risk in isolation from the release date.

I am not sure that the word "unacceptable" can be dismissed in this way.  However, as the applicant is not represented before me and I am not in a position in the applications jurisdiction to hear extensive legal argument on the point, and because the case can be decided on other grounds, it seems to me preferable not to express a concluded opinion on this question.

The issue as I see it is whether the decision maker, on the material before him, could have reached the conclusion that he reached. That is that he was not satisfied that the applicant did not pose an unacceptable risk to the community. The factors that are set out in section 77 are all relevant to that question. It is convenient to begin by looking at the one which was of primary importance in the submissions before me - that in paragraph (a) - with some reference to paragraph (c). The other factors have all been taken into account but of them only paragraph (h) appears to have any central importance on the arguments that were presented to me.

The question of the possibility of the prisoner committing further offences is not one that is to be answered by pointing a finger in the air and feeling the breeze.  It is a question which much be assessed on the basis of evidence.  There was a considerable amount of evidence before the decision maker.  Included in that evidence, of course, was the prisoner's past offending history and the circumstances of the particular offence.  The prisoner had, apart from this offence, not committed any violent offences for many years.  The particular offence which he did commit was committed against a person whom he found in his home.

The decision maker has, in his reasons, identified the factors which have led him to the conclusion which he reached.  Mr Plunkett directed me particularly to the matters set out at pages 8 to 10 of the statement of reasons under the heading "Reasons".  The decision maker first referred to the sentencing remarks of the sentencing Judge, particularly the passage:

"You have a prior criminal history, including convictions for violence, although I note that this is now more than two decades old.  It is important to note, however, that you have previously been imprisoned.  I do not think that your mature age helps you now."

As Mr Plunkett observed, that passage, if anything, favours the prisoner since it tends to exclude any real up to date pattern of offending.  The decision maker went on to refer to the comments of two of the Judges of the Court of Appeal in the prisoner's original appeal against his sentence: 

"Certainly the evidence accepted by his Honour and, in particular, the complainant's evidence shows the assault to have been sudden, unexpected, unjustified and deliberate."

That, too, is a relevant consideration.  He then proceeded to note the comments made in an early assessment report which was before him and, in particular, the passage in that document: 

"He appears to demonstrate little insight into the effect of his actions and, while he acknowledges he did a wrong thing, is still unable to accept responsibility for that.  He demonstrates no victim empathy."

It further referred to his view that the victim held the majority of responsibility for the offence.  He referred to a risk needs inventory and to the fact that the prisoner had not undertaken a violence intervention program.

He noted that these programs had been discontinued by the department and replaced with a high intensity violence intervention program because research had demonstrated that when intervention does not appropriately target the risk and needs of offenders it is ineffective in reducing recidivism and, in some cases, can heighten the risk of reoffending for those prisoners considered to be low risk of violent reoffending.

He noted that the prisoner would not meet the criteria for suitability to participate in the high intensity violence intervention program because he was considered a low risk of violent reoffending.  He referred to evidence that the risk of recidivism decreases with age and that the prisoner's age was now 64, the offence having been perpetrated at the age of 58.  He further noted that the violence appears to have been "situational specific".  He then wrote:

"I noted that your offence was committed during an interpersonal conflict.  I noted that you are likely to be subject to further interpersonal conflict experiences in the future and I am concerned that you have limited strategies in place to deal effectively with these types of situations."

That passage is, I think, of some importance in this case.  He went on to express his concern that what he described as the prisoner's criminogenic need of violent offending remained unaddressed.  He referred specifically to a remission assessment dated 17 August 2006 written by a panel of which the majority of members did not recommend granting remission.

The evidence upon which these decisions were based extends over a period of years.  Obviously the more recent assessments of the prisoner are more relevant than older ones.  A report by a psychiatrist, Dr Kar, dealt with future risk.  He notes that the applicant did not seem concerned about the harm he inflicted on his victim notwithstanding the possibility that death could have been caused if the knife had moved a bit differently.  He noted a denial of responsibility and a denial of being entirely at fault and the prisoner's belief that he was provoked by being attacked first.  He noted the prisoner's failure to put the matter behind him and reports that he intended to take some form of legal action against his victim.

Under the heading, risk of reoffending, he said:

"I feel the risk of reoffending, violence or serious crime is generally low.  This is based on the more than 25 years when he has remained free of offences.  Even since his recent sentencing in prison he has not demonstrated an aggressive attitude.  His work history and his levels of cooperation have been reportedly normal.

Overall, he appears to be a forward thinking man.  He did not appear to generally behave with high impulsivity, aggression or recklessness.  However, under unusual circumstances, Mr Beer has the potential to become aggressive and violent.  Usually there will need to be serious provocation or a strong emotional arousal in an interpersonal setting for the risks to arise.  Mr Beer has no evidence of mental illness.  Any risks of aggression is entirely are due [sic] to his lifelong ASPD personality traits.  He is likely to display previously suppressed behaviour such as aggression in stressful situations."

He concluded that the position was unclear and the risks uncertain.  That report was made in May 2003. 

A further report was prepared by a psychologist, Ms Kent, on 1st June 2004.  Ms Kent was a psychologist with probationary registration and she set out a number of what she described as risk and protective factors.  The risk factors included the diagnosis of anti social personality disorder by a psychiatrist and the early onset of offending behaviour at the age of 17.  They also included the lack of remorse, lack of victim empathy and refusal to take responsibility for the offence. 

There were some six protective or favourable factors decreasing the risk of re-offending.  She concluded at that time that the applicant posed a medium risk of re-offending if released.  Her concern appears to have been the applicant's attitude towards his offence and his victim, particularly the fact that he maintained that he had no sympathy for the victim and his reluctance to undertake the now discredited violence intervention program.

The next report of significance is a similar report by a psychologist in relation to remission by another probationary registration psychologist, Ms Kadinsky, which was made on the 31st of July 2006.  That report also set out risk factors and protective factors.  The report noted that there was now realistic post release planning and that the applicant had strong external support from his ex partner, siblings and children. 

Ms Kadinsky considered that the applicant posed a low risk of violent re-offending if released to the community. She noted that this did not discount the concerns engendered by the empathy deficits evident in his on going attitude towards his offence and his victim.  She noted, however, that he had a proclivity to utilise legal and litigious methods of recompense, not violence.  This approach has been reflected in the argument before me where Mr Plunkett explicitly accepted that this was not a case where the risk of the prisoner committing further offences was constituted by a risk that he would commit a further offence against his previous victim. 

It was a generalised risk of further offences about which, Mr Plunkett explicitly asserted, the decision maker was entitled not to be satisfied.

Finally, there was a decision by a panel which advised the decision maker which by a majority recommended that the applicant did appear to pose an unacceptable risk to the community.  That report seems to have played a particular part in the decision-making process.  I have had regard to the matters set out in it, and particularly to the sources of information referred to.  I can find nothing in any of those sources of information which could found a conclusion that there is any likelihood that the applicant poses a significant risk of committing further offences against the community in general.  It was concerned with the risk of conduct directed at the previous victim.

Mr Plunkett disclaimed any suggestion that he posed a risk of committing non-violent offences. In other words, it was not suggested that he was at risk of stealing or of any other sort of offence than an offence of violence, and as I have said, the case was argued on the basis that the risk was a risk against the community generally. I would of course accept that a risk to a particular person would be an important consideration under section 75(2)(a) but that is not the respondent's position in this case.

The essence of Mr Plunkett's submission was that once it is demonstrated that a person has a lack of empathy with his victim, an absence of remorse, and a blaming attitude towards his victim in respect of a particular offence, it must follow as a matter of "common sense", to use Mr Plunkett's words, that he is a risk to the community generally.

I regret to say that it does not appear to me that that follows as a matter of common sense.  It may be that an examination in particular circumstances of a particular offender would disclose that the circumstances of his offence and the attitude which he has towards it indicate a risk of violence to the community generally.  For example, if a victim were attacked at random or if the offender expressed hatred of the community generally or large sections or other individuals in it, that might be demonstrated, but in the present case all of the evidence points to the lack of empathy and lack of remorse being very specifically targeted at one person and at no-one else.  The criminal history reinforces the view that the community is not at risk.

Mr Plunkett submitted that the evidence could not exclude the risk of violence against other members of the community completely, and by implication submitted that it was necessary for the prisoner to demonstrate to the decision maker the total absence of such a risk.  He submitted that if the evidence showed the presence of a low risk, that was enough to support the decision.

In my judgment, that is not correct.  It is improbable that anyone will ever be able to demonstrate a complete absence of risk.  The presence of a low risk may or may not be sufficient to warrant a decision in favour of the applicant.  It must be assessed on a case by case basis.  But the question in the present case is whether one can say, on all of the evidence, that it was open to the decision maker to be other than satisfied that the applicant did not pose an unacceptable risk to the community.  One cannot ignore the word "unacceptable" and that has been referred to in a number of the cases.  In my judgment, on all of the evidence, the decision maker was bound to come to the conclusion that the applicant had demonstrated that factor.  It was the only conclusion, in my judgment, which was open.    It follows therefore, that the application should succeed. 

The question arises as to what form of relief should be granted.  It seems to me that I should declare that on the evidence before him, the respondent was bound to decide that he was satisfied that the applicant's discharge did not pose an unacceptable risk to the community, that I should set aside his decision refusing remission, and that I should direct that he re-consider the applicant's application for remission in accordance with these reasons and in accordance with law.

...

HIS HONOUR:  It is so ordered.

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