Garland v Chief Executive, Department of Corrective Services
[2006] QSC 245
•7 September 2006
SUPREME COURT OF QUEENSLAND
CITATION:
Garland v Chief Executive, Department of Corrective Services [2006] QSC 245
PARTIES:
RAYMOND HENRY GARLAND
(applicant)
AND
CHIEF EXECUTIVE, DEPARTMENT OF CORRECTIVE SERVICES
(respondent)
FILE NO/S:
BS2745/06
DIVISION:
Trial Division
PROCEEDING:
Application
ORIGINATING COURT:
Supreme Court, Brisbane
DELIVERED ON:
7 September 2006
DELIVERED AT:
Brisbane
HEARING DATE:
31 July, 1, 2 August 2006.
JUDGE:
Atkinson J
ORDER:
Application dismissed
CATCHWORDS:
ADMINISTRATIVE LAW – JUDICIAL REVIEW – GROUNDS OF REVIEW – GENERALLY – where the applicant was serving an indefinite sentence – where he had been classified as a maximum security prisoner for almost eight years – where maximum security orders are issued every six months – where the applicant sought to judicially review the decision to issue a consecutive maximum security order
ADMINISTRATIVE LAW – JUDICIAL REVIEW – GROUNDS OF REVIEW – UNREASONABLENESS – where the applicant submitted that the decision maker placed insufficient weight on a number of factors in the applicant’s favour and undue weight was placed on the applicant’s criminal history – whether the exercise was so unreasonable that no reasonable person could so exercise the power
ADMINISTRATIVE LAW – JUDICIAL REVIEW – GROUNDS OF REVIEW – ERROR OF LAW – where the applicant submitted that there was no evidence or other material to justify the making of the decision – whether the material relied upon by the respondent had probative value
ADMINISTRATIVE LAW – JUDICIAL REVIEW – GROUNDS OF REVIEW – ERROR OF LAW – where the applicant contended that the decision was unlawful because the decision was contrary to the purpose of the Corrective Services Act 2000 and because the decision was made in breach of the department’s policies and procedures – whether the applicant’s containment is ‘inhumane’
STATUTES – ACTS OF PARLIAMENT –INTERPRETATION – CONSIDERATION OF EXTRINSIC MATTERS – OTHER MATTERS – where there is no definition of ‘humane containment’ in section 3 of the Corrective Services Act 2000 – whether the use of international human rights instruments can be used to aid in the interpretation of ‘humane treatment’ – where there are general principles of statutory interpretation that govern the use of international instruments in the interpretation of domestic law – whether the applicant’s containment is in breach of international human rights standards
Acts Interpretation Act 1954 (Qld) s 32A(l)
Administrative Decisions (Judicial Review) Act1977 (Cth) ss 5(1)(f), 5(1)(h), 5(3)
Corrective Services Act 2000 (Qld) ss 3, 47, 48, 50, 189(1)
Judicial Review Act1991 (Qld) ss 20(1)(f), 20(2)(h), 21(2)(h), 24
Penalties and Sentences Act1992 s 163(1)Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223, cited
Attorney General (NSW) v Quin (1990) 170 CLR 1, appliedAustralian Broadcasting Tribunal v Bond (1990) 170 CLR 321, discussed
Australian Heritage Commission v Mount Isa Mines Ltd (1997) 187 CLR 297, cited
Bertran v Vanstone (2000) 173 ALR 63, citedBradley v The Commonwealth (1973) 128 CLR 557, cited
Bread Manufacturers of NSW v Evans (1981) 56 ALJR 89, cited
Bropho v Western Australia (1990) 171 CLR, citedBuck v Bavone (1976) 135 CLR 110, cited
Chow Hung Ching v The King (1948) 77 CLR 449, discussedChu Kheng Lim v Commonwealth (Minister for Immigration, Local Government and Ethnic Affairs) (1992) 176 CLR 1, discussed
Coco v The Queen (1994) 179 CLR 427, cited
Coe v Commonwealth (1993) 118 ALR 193, citedColeman v Power (2004) 220 CLR 1, discussed
Dietrich v R [1991] HCA 57; (1992) 177 CLR 292, discussedElliott v Southwark London Borough Council [1976] 1 WLR 499, cited
Garland v British Rail Engineering Ltd [1983] 2 AC 751, cited
Garland v Chief Executive, Department of Corrective Services [2004] QSC 450, discussed
Grice v State of Queensland [2006] 1 Qd R 222, cited
Gronow v Gronow (1979) 144 CLR 513, cited
Hall & Co. Ltd v Shoreham-By-Sea Urban District Council [1964] 1 WLR 240, cited
Kioa v West (1985) 159 CLR, cited
Kruger v The Commonwealth (1997) 190 CLR 1, cited
Lovell v Lovell (1950) 81 CLR 513, cited
Mabo v Queensland (No 2) [1992] HCA 23; (1992) 175 CLR 1, discussed
Mallet v Mallet (1984) 156 CLR 605, cited
Minister for Aboriginal Affairs v Peko Wallsend Ltd (1986) 162 CLR 24, discussedMinister of Housing and Local Government v Hartnell [1965] AC 1134, cited
Minister for Immigration and Ethnic Affairs v Pochi (1980) 31 ALR 666, applied
Minister for Immigration and Ethnic Affairs v Teoh (1995) 183 CLR 273, discussedNewbury District Council v Secretary of State for the Environment [1981] AC 578, cited
Parramatta City Council v Pestel (1972) 128 CLR 305, cited
Plaintiff S157 12002 v The Commonwealth (2003) 211 CLR 476, cited
Pickwell v Camden London Borough Council [1983] QB 962, cited
Polities v Commonwealth (1945) 70 CLR 60, cited
Potter v Minahan (1908) 7 CLR 277, cited
Pulhofer v Hillington London Borough Council [1986] AC 484, discussedR v Denmark, Eur.Comm, HR, Decision of 11 March 1985, 41 DR, applied
R v Deputy Industrial Injuries Commissioner, Ex parte Moore [1965] 1 QB 456, discussed
Re MIMA; Ex parte Lam (2003) 214 CLR 1, discussed
Re Moore; Ex parte Co-operative Bulk Handling Ltd (1982) 56 ALJR, cited
RePochi and Minister for Immigration and Ethnic Affairs (1979) 26 ALR 247, applied
Reg. v Anderson; Ex parte Ipec-Air Pty Ltd (1965) 113 CLR 177, cited
Reg v Hillingdon London Borough Council; Ex parteRoyco Homes Ltd [1974] QB 720, cited
Sargood Bros v Commonwealth (1910) 11 CLR 258, cited
Sean Investments Pty Ltd v MacKellar (1981) 38 ALR 363, cited
Simsek v Macphee (Minister for Immigration and Ethnic Affairs) (1982) 148 CLR 636, cited
South Oxfordshire District Council v Secretary of State for the Environment [1981] 1WLR 1092, cited
Tasmanian Wilderness Society v Fraser (1982) 153 CLR 270, cited
Western Australia v Commonwealth (1995) 183 CLR 373, citedZachariassen v Commonwealth (1917) 24 CLR 166, cited
COUNSEL:
N M Cooke QC with M J Rinaudo Lewis for the applicant
J A Logan SC with G J Handran for the respondent
SOLICITORS:
Aboriginal and Torres Straight Islander Legal Service for the applicant
Crown Solicitor for the respondent
This is an application for judicial review of a decision made by the respondent, the Chief Executive of the Department of Corrective Services (the “Department”), issuing a maximum security order in relation to the applicant, Raymond Garland. Mr Garland is a 35 year old man who is serving an indefinite term of imprisonment. The decision with regard to the maximum security order was made on 2 March 2006.
The relevant provisions about maximum security orders were found in Division 6 of Part 2 of the Corrective Services Act 2000 (CSA).[1] Part 2 dealt generally with the management of prisoners. Section 47 of the CSA provided that the respondent might make an order that a prisoner be accommodated in a maximum security facility. However such orders could only be made in certain limited circumstances. Subsection 47(2) provided that a maximum security order might only be made if:
[1]As of 28 August 2006 the Corrective Services Act 2006 came into force. The sections of the Corrective Services Act 2006 that deal with maximum security orders are substantially the same as the previous sections under the Corrective Services Act 2000, however the sections have been renumbered.
“(a) the prisoner is classified as maximum security; and
(b)the chief executive considers, on reasonable grounds, that 1 or more of the following apply –
(i)there is a high risk the prisoner will escape, or attempt to escape;
(ii)there is a high risk the prisoner will inflict death or serious injury on other prisoners or other persons with whom the prisoner may come into contact;
(iii)generally, the prisoner is a substantial threat to the security or good order of the facility.”
The maximum security order in this case was based on the ground set forth in subsection 47(2)(b)(iii).
Subsection 47(3) provided that the term of the order must not be longer than six months. Section 48 of the CSA, however, provided that there may be consecutive maximum security orders. The chief executive might make another maximum security order to take effect at the end of an existing maximum security order. The new maximum security order could not be made earlier than fourteen days before the end of an existing order. Subsection 48(3) provided for a procedure by which the chief executive must give notice to the prisoner advising that he or she was about to consider whether another order should be made and giving the prisoner the opportunity to make submissions to the chief executive about anything relevant to the decision about making the order. The chief executive must then consider any submissions by the prisoner before making any further maximum security order.
Mr Cooke QC and Ms Rinaudo Lewis, on behalf of the applicant, argued three grounds of review. The first was that there was no evidence or other material to justify the making of the decision which in their submission raised the question of whether or not the jurisdictional facts had been satisfied. The second ground was that making the decision was an improper exercise of power with the result that the exercise was so unreasonable that no reasonable person could so exercise the power. The third ground was that the decision was otherwise contrary to law because Mr Garland’s continued containment in the maximum security unit (MSU) was inhumane and so contrary to the CSA and because there were breaches of the policy and procedures of the Department which meant the order made was illegal. The third ground was amended by leave, without objection, at the end of the hearing of the evidence.
Before considering each of these grounds in turn it is necessary to set out the factual background so far as it was known to, and taken account of, by the decision maker. The decision maker was Alison Hunter who is the Deputy Director General of the Department. Ms Hunter had been delegated the power to make a decision under s 48 of the CSA to make a consecutive maximum security order.
The material before the decision maker showed that Mr Garland is in custody as a result of sentences imposed upon him on 23 October 1998 by Hoath DCJ. On that occasion Mr Garland pleaded guilty to all charges on a 45 count indictment. He was sentenced to an indefinite sentence on each of four counts of rape under s 163(1) of the Penalties and Sentences Act 1992 (Qld). It was specified that life imprisonment was the nominal sentence on each of those counts.
On each of three of the counts of indecent assault with a circumstance of aggravation, he was sentenced to life imprisonment. On each of two counts of indecent assault with a circumstance of aggravation, one count of burglary, one count of assault occasioning bodily harm whilst armed and one count of abduction, he was sentenced to five years imprisonment. He was sentenced to three years imprisonment on each of ten counts of deprivation of liberty, each of 14 counts of serious assault, one count of indecent assault with a circumstance of aggravation, one count of indecently dealing with a child under 16, each of two counts of housebreaking and each of two counts of unlawful use of a motor vehicle. For the offence of going armed so as to cause fear and one count of receiving, he was sentenced to two years imprisonment. He was sentenced to six months imprisonment on one count of common assault.
The offences for which he received those sentences were committed on 6 April 1997 in Brisbane and on 8 and 9 April 1997 in Mackay. They were committed while he was on parole, within four months of his release on home detention in December 1996.
The circumstances of the offences were set out in the sentencing remarks by Hoath DCJ. They showed that the offences on 6 April 1997 involved Mr Garland’s abducting, raping, and forcing oral sex on a 14 year old girl who had no sexual experience and who knew and trusted Mr Garland. At the time he committed the offences he was armed with a long bladed razor which he used to threaten the complainant.
Mr Garland then fled to Mackay. He took a young man aged 16 to a motel. Holding a gun to the young man’s head, Mr Garland punched him twice in the face and forced the young man to perform oral sex on him. Mr Garland then committed unlawful anal intercourse on the young man. Later, armed with a knife, he again forced the youth to perform oral sex on him and sodomised him on a further two occasions. That complainant then managed to flee.
Mr Garland then forced a young couple at gunpoint to drive him out of town. As a result of threats made by Mr Garland they drove him to the residence of some friends. Mr Garland noticed two young people, a brother and sister, walking nearby. He ordered them at gunpoint to return with him to their flat which gave the young couple the opportunity to escape. Mr Garland went with the brother and sister into their flat and barricaded the doors. Later Mr Garland went outside the flat and discharged the gun several times. He came back into the flat, got the brother and sister and then went outside with them pointing the gun at them. He instructed the boy to call a man and a woman who were walking on the other side of the road over to them. The female member of that couple was then five months pregnant. Mr Garland then ordered them all to go back to the flat and again he went outside from time to time to discharge the gun.
That night Mr Garland rang the police and told the operator that he wanted a particular Catholic priest to be there within an hour or he would kill one of his hostages. Five hours of negotiations with the police ensued during which time he made many demands including a demand for drugs and said that he would kill one or more of the hostages if those demands were not met. The male member of the couple left the flat when he was ordered to leave to get drugs. He did not return. Later in the evening the brother and sister were tied up in separate bedrooms. The girl was indecently assaulted and then raped twice. After Mr Garland fell asleep she escaped to the other bedroom where she untied her brother and they both escaped. Mr Garland then took the pregnant woman into one of the bedrooms, tied her ankle to his and then later raped her.
He left the flat with the pregnant woman and entered another flat at gunpoint after pretending to be the police. In that flat he ordered two women and two children to leave but told the three remaining occupants that he would kill them if they did not do as he told them. They then accompanied Mr Garland into a car at gunpoint. When the car stalled, Mr Garland fired the gun but the police ran to the car. Mr Garland then held the driver at gunpoint ordering the police to retreat or the driver would be killed. Shortly afterwards the car was rammed by a police vehicle and Mr Garland was captured by the police.
The sentencing judge said:
“Your conduct during these offences showed a calculated brutality and complete insensibility to the ordeal of your victims. The only glimmer of any understanding of the depraved sexual abuse, terror and suffering you caused to these people was your statement to [the pregnant woman] that you were sorry for what you had done to her.”
The sentencing judge then referred to the criminal background and personal circumstances of Mr Garland. At the time of sentencing he was 27 years of age. He was brought up in an abusive and dysfunctional environment and before he was 10 was living on the streets without any parental support or guidance. The learned judge noted that since 1982, when he was convicted at 11 years of age of an offence of breaking, entering and stealing, he had only spent approximately 18 months outside jail or other institutions. The judge referred to Mr Garland’s extensive criminal history of convictions for assault, stealing, escaping lawful custody, failing to appear, robbery with intent and in company, taking and using a conveyance, being an unlicensed driver, stealing a motor vehicle, malicious injury, stealing a motorbike and resisting police.
More significantly, Mr Garland had been convicted on three counts of sexual assault at the age of 14 in August 1985 and committed to an institution for two years. That offence was raping, sodomising and forcing a 14 year old girl to perform oral sex on him and threatening to kill her if she reported the offences. Within a fortnight of his release in respect of those offences he indecently dealt with two young girls as well as committing other offences not of a sexual nature.
In 1987, when he was 16 years old, he brutally sodomised and forced two 14 and 15 year old youths to perform oral sex on him in the watch house at Southport. He applied pressure to the throats of each of the youths and threatened to kill one of them and threatened to harm the other youth or his parents. These were his first convictions for committing sexual offences on other persons in custody.
A week after he committed those offences, Mr Garland escaped from custody and fled to New South Wales. In company with another youth he sodomised a 14 year old youth while holding a broken beer bottle to that youth’s throat. He was sentenced to two and a half years imprisonment and after serving about six months of that imprisonment he was extradited to Queensland to face charges arising out of the offences committed at the Southport watch house. Whilst on remand in Queensland, Mr Garland attempted to commit another sexual assault on a prisoner. He assaulted a prisoner with a pair of nail clippers and ordered him to perform oral sex on him. That prisoner was able to escape without suffering the threatened sexual abuse. He was sentenced to six months imprisonment in respect of that offence and on 27 April 1988 he pleaded guilty to the offences arising out of the incidents at the Southport watch house and was sentenced to a total of seven years imprisonment.
While serving that period of imprisonment, in September 1988 whilst he was in the Boggo Road Prison hospital, Mr Garland sodomised and committed an act of oral sex on a prisoner whilst armed with a razor blade and whilst making threats to cut his throat. For those offences he was sentenced, after an appeal, to four years imprisonment. Mr Garland was also convicted of assault occasioning bodily harm in relation to an assault that occurred on 1 February 1989 and unlawful assault as a prisoner committed on 11 June 1989. He was convicted on three counts of wilful and unlawful damage to property which occurred on 13 July 1989.
He was convicted on two counts of assault on a correctional services officer whilst being a prisoner which occurred on 10 October 1989 and 21 November 1989 and two counts of assault occasioning bodily harm whilst armed with an offensive weapon which were committed on 10 October 1989. He was convicted of preparing to escape lawful custody on 23 December 1989. Mr Garland was further convicted of wilful and unlawful destruction of property which was committed on 17 December 1990 and convicted of assaulting a correctional officer on 12 June 1992 and stealing on 17 May 1995. He has been convicted of 29 offences committed whilst in custody.
Whilst in prison he completed a 12 month sexual offender’s treatment program (SOTP) and was released on home detention, as I have said earlier, in December 1996 and granted parole on 27 March 1997. The offences for which he is currently serving indefinite imprisonment were committed in April 1997.
It has been reported that in his application for parole which led to his release in 1996, he said that he had gained outstanding benefit from the SOTP, recognised his past actions were deplorable and that he then had strategies that he could employ to deal with his sexual urges. After his apprehension for the offences which led to his current term of imprisonment, he told a psychiatrist that he was really only hoop-jumping and telling people what they wanted to hear.
The learned sentencing judge took into account psychiatric reports by Dr Atkinson and Dr Grant. He particularly accepted the opinion of Dr Atkinson that Mr Garland suffered from an anti-social personality disorder complicated by predatory violent sexual drives and substance abuse. Dr Atkinson was of the view that Mr Garland was untreatable and would remain a great danger to society indefinitely. Mr Garland was then imprisoned as a maximum security prisoner. That sentence commenced on 23 October 1998.
Ms Hunter took into account that Mr Garland has been convicted of 29 offences committed whilst in custody. These offences were committed between April 1988 and December 1995 and include offences of violence, sexual assaults and preparing to escape lawful custody.
In addition to the offences which Mr Garland has committed in prison he has committed six breaches of discipline. Those breaches occurred in the years 1991 to 1995 and include two offences of behaving in a threatening manner. In addition he had been involved in 14 reportable incidents which had not resulted in breaches being found which occurred between January 1993 and November 1998. These included incidents of fighting with another prisoner, threats against other prisoners or staff, alleged threatening sexual behaviour and alleged sexual assault.
On 16 February 2000, a referral was made for consideration for Mr Garland to be admitted to the MSU at the Arthur Gorrie Correctional Centre (AGCC). He was said to satisfy five of the inclusion criteria at that time being (1) serious assault on staff or other prisoners; (2) escapees or attempted escapees who have resorted to violence, use of firearms or motor vehicles, including evidence an escape is planned from secure custody; (3) substantiated threats against staff or other prisoners; (4) repeated substantiated incidents of physical assaults or disruptive behaviour directed at staff or other prisoners; and (5) repeated verbal threats of violence to staff or prisoners where it is considered there is a possibility of the threat being carried out.
The referral showed that he had been on special treatment orders since 11 March 1998 because of concerns for his personal safety and because he was considered a threat to other inmates in the centre. His separation from other prisoners whilst on special treatment orders gave him little opportunity to commit offences against other offenders or correctional staff but the referral said that records prior to his placement on the special treatment order showed frequent incidents and breaches involving sexual assaults against other offenders, physical assaults against other offenders and serious threats against correctional staff. The threats against correctional staff apparently continued whilst he was on special treatment orders.
At the time that the first maximum security order was made on 31 March 2000, reliance was placed on relatively recent psychiatric assessments by Dr. Mathews, Dr. White, Dr. Scott and Dr. Kingswell as well as several reports from the psychologists Dr. Habicht, Ms Western and Ms Dowling.
Mr Garland has been detained in the maximum security unit at the Sir David Longland Correctional Centre (SDL) and since its closure in about August 2005, once again at AGCC, on maximum security orders since that time. No reportable incidents have been recorded against him during the period that he has been the subject of maximum security orders.
An Official Visitor’s report by Peter Butler, dated 23 September 2001, on reported inconsistency in approach between AGCC and SDL when Mr Garland was first moved to SDL observed:
“The sense of utter powerlessness, frustration and understandable consequential resentment engendered by such inconsistent and arbitrary administration of maximum security orders within the corrective services system is counter-productive to an offender’s ‘rehabilitation’ and, in my opinion, may be regarded as ‘inhumane confinement’. This is contrary to the purpose of corrective services: see Corrective Services Act 2000, s 3(1).”
He recommended that Mr Garland be permitted to use his computer in his cell for educational purposes.
On 20 August 2002, an experienced consultant psychologist, Catherine Creamer, prepared a psychological assessment of Mr Garland for the stated purposes of establishing a baseline reference to explore future management options, identifying possible interventions and ascertaining Mr Garland’s risk of sexual and violent re-offending. Ms Creamer further identified the purpose of her report as being to show not only how Mr Garland’s behaviour could be explained and predicted but also controlled.
Ms Creamer noted that Mr Garland presented as articulate and polite. This was in accordance with my observation of him whilst he was giving evidence on the hearing of this matter before me. She noted the psychological damage caused to Mr Garland by his prolonged period in solitary confinement and expressed the opinion that the planning for his movement out of such confinement should start immediately. She said that a further aim of the report was to aid in that planning process and to help identify when it might be safe to move Mr Garland to a “normal location.” She warned that:
“This report does not explicitly say that it will necessarily be safe to move Mr Garland but that without suitable intervention, it may never be safe. Suffice to say the conditions under which Mr Garland is currently detained will do nothing to rehabilitate him.”
Ms Creamer noted that he was of normal intelligence, was still sexually aroused by thoughts of coerced sex but that he appeared to understand that he needed help to change his behaviour. She thought that he would be at risk of suicide if he were to perceive that he would remain in the MSU indefinitely.
Ms Creamer referred to Mr Garland’s childhood experiences where it appears that he witnessed his alcoholic father violently forcing sex on his mother who was also an alcoholic. Mr Garland witnessed his father having sex with other women and was physically and sexually abused himself by his father. In this household, Ms Creamer observed, rape was the norm.
From the age of 10, Mr Garland moved through a series of boys’ homes where the regimes were disciplined and impersonal and officers regularly fondled boys. Mr Garland started his sexual offending behaviour against other boys. He then lived on the streets and prostituted himself. Ms Creamer noted that he lacked the social skills to be normally assertive but eventually explodes. He had very little experience of non-coercive, consensual sexual relationships. His sexual offending behaviour particularly in prison had been marked by significant coercion, manipulation, threats and persuasion to ensure compliance.
Ms Creamer examined the motivations apparent in the offending which resulted in his sentencing to indefinite detention and the relevant research on risk factors for re-offending. She observed:
“In terms of risk assessment, it should be further noted that the best predictor of future behaviour is past behaviour, unless there has been appropriate and targeted intervention and a subsequent change in thinking style that would reduce the risk. In Mr Garland’s case, he has undertaken a certain number of programs whilst in prison in order to address his offending behaviour, but continued to offend despite these programs.”
His risk factors were identified as:
lack of emotionally intimate relationships;
aggressive thinking patterns;
poor impulse control;
poor cognitive style, lack of empathy, lack of consequential thinking;
poor self-control;
sexual preoccupation; and
sexualised violence.
Ms Creamer considered that his sexual offending risk remained high. She noted that he had received supportive counselling, intensive therapy from psychologists and suicide prevention whilst in the MSU at SDL. Ms Creamer recommended a detailed treatment program which has, for the most part, been followed. So far as his continued detention in the MSU was concerned, Ms Creamer’s opinion was the risk of moving him out of the MSU at that time was unacceptable but that there was:
“a significant possibility that if the recommendations are strictly adhered to Mr Garland may well reach a stage where his risk is lowered to such an extent that he can be moved to a normal location.”
Block 1 of the therapy recommended by Ms Creamer commenced in December 2002 with two or three sessions of one-on-one therapy every week. A senior psychologist, Ms Stocks, reported on his progress in April 2003 and recommended that the therapy continue and be expanded. Block 1 was completed in June 2003 when Block 2 commenced. Block 3 was commenced in September but then abandoned and Block 2 was resumed. Block 2 was completed on 27 November 2003. Ms Stocks reported on his progress on 10 October 2003. She noted the effectiveness of the therapeutic program and recommended that it cease at the completion of Block 2 and that Mr Garland’s future treatment needs be identified in any re-integration plan with relapse prevention as a key focus.
Another senior psychologist, Ms Bennett, reported on his progress on Block 2 of the program on 1 December 2003. She reported progress but noted the likely difficulties he would face on being moved out of the low stimulus environment of the MSU. Her conclusions and recommendations were:
“Prisoner Garland’s response to this component of the intervention has been positive and encouraging. The intervention appeared to help him come to terms with a number of painful issues in his life and to improve his confidence in his ability to think and act differently if he chooses. However, the arousal control component of this intervention must still be considered a work in progress because, in the MSU, it remains relatively untested. Therefore, it will be important to provide ongoing assessment of and assistance with prisoner Garland’s management of his sexual fantasy life.
After years of ambivalence where prisoner Garland has vacillated between self-loathing and feelings of victimisation and hatred of others, he expresses a greater sense of acceptance and tolerance, both of himself and others. This battle is far from over and any attempts to move prisoner Garland out of the low stimulus environment of the MSU will need to be supported by careful relapse prevention planning. There will need to be a particular emphasis on helping prisoner Garland manage the likely increase in sexual arousal and fantasising he will experience and in assisting him to form appropriate, non-abusive relationships.
Prisoner Garland understands the importance of dealing with his problems and difficulties when they arise and the danger of resorting to deception, avoidance and hostile brooding as a panacea to his frustrations and anxiety. He still struggles with his instinct to hide his true thoughts and feelings from others. In addition, it is his habitual tendency to perceive strangers and novel situations as threatening and hostile until proved otherwise.
Should prisoner Garland experience future difficulties, he knows that it is vital that he has access to and seeks out appropriate sources of support and guidance. At this point, I remain uncertain whether prisoner Garland would make appropriate use of such support. If left to his own devices, I suspect he may revert to his previous antisocial thought processes and behaviours rather than apply the more recently acquired alternatives when he encounters difficult situations. Prisoner Garland recognises that any attempt at reintegration will need to be highly structured and involve high levels of ongoing support in order to optimise outcomes.”
Ms Stocks’ recommendation on 2 December 2003 was that the program be considered closed and that the original assessor “re-assess in terms of mediation of risk factors.” She noted that Mr Garland had made significant progress.
A further report was prepared by Ms Bennett on 25 March 2004 with regard to what was referred to as the maintenance phase of the intervention program and the difficulties involved. Mr Garland was reportedly negative and pessimistic about his prospects of leaving the MSU. The report contained details of an incident on 27 February 2004 where he behaved in a highly volatile and threatening way. She concluded that his outburst indicated that the risk factors identified by Ms Creamer were still readily provoked and very evident in his reasoning style, specifically aggressive thinking patterns, poor impulse control, poor cognitive style, lack of empathy, lack of consequential thinking and limited self-control. On the other hand she expressed the view that he had made some progress and particularly drew attention to the fact that in February 2004 he commenced studying with the Tertiary Preparation Program (TPP) of the University of Southern Queensland (USQ).
In a further report on 2 August 2004, Ms Bennett identified that the maintenance phase had provided Mr Garland with a break from intensive therapeutic intervention and allowed him to concentrate on the educational goal of completing the TPP at USQ. She noted that he had been successful in his studies. He continued to receive supportive counselling from Ms Bennett on a weekly to fortnightly basis. During those sessions he expressed his despondency at not being released from the MSU despite his compliance and efforts at reform. Her conclusions and recommendations included:
“Consideration needs to be given to the progression of prisoner Garland’s treatment intervention. At this juncture, it seems appropriate to propose formal assessment of prisoner Garland’s progress to date and identification [of] any remaining areas that need to be targeted through treatment, such as, victim issues.
As recommended previously, prisoner Garland needs to experience some sense that the department recognises that he is progressing. Unfortunately as a consequence of the murder of prisoner Mark Day in the SDL MSU last October, maximum security prisoners have experienced increased isolation and loss of privileges despite any progress they may have made.
Since October 2003, prisoner Garland has had only limited association with one other very demanding prisoner and this relationship is now showing understandable signs of tension and strain. At this point, increasing prisoner Garland’s level of association with other MSU prisoners would be of benefit in terms of support and social stimulation.”
Further consecutive maximum security orders were made on 12 March 2004 and 13 September 2004 (“the 2004 decisions”). Those maximum security orders were reviewed by an Official Visitor on 21 April, 17 June and 23 October 2004. The reports by the Official Visitor on 23 April and 17 June 2004 noted the lack of an up to date assessment and recommended that Mr Garland be assessed by an independent psychologist such as Dr. Stephen Smallbone from Griffith University. Dr Smallbone was requested to undertake a psychological assessment of Mr Garland by letter dated 26 August 2004. He was requested to assess Mr Garland’s progress in the program of psychotherapy with which he had been engaged since December 2002 and to advise on the prospects for future intervention, including whether psycho-pharmacological treatment might be indicated.
An application to judicially review both of the 2004 decisions was heard in the Supreme Court on 6 and 7 December 2004 and dismissed by White J on 17 December 2004. Her Honour’s reasons are recorded at [2004] QSC 450.
Dr Smallbone examined Mr Garland in December 2004 and reported on 20 January 2005. Dr Smallbone said that the current concerns about Mr Garland were focused on the risks he might pose within the prison setting and on how best to manage those risks. This was because he had committed a broad range of non-sexual and sexual offences against correctional staff and fellow prisoners. He noted that three breaches of discipline had been recorded in the seven years since Mr Garland began his current period of imprisonment: October 1998 (damage to property); November 1998 (threats to staff); and February 2003 (damage to property). He observed that the most significant constraint on Mr Garland’s sexually aggressive behaviour had been the virtual elimination of opportunities by keeping him isolated from other prisoners.
However, the danger in that course was that Mr Garland might descend into a state of hopelessness and that his incarceration imposed severe constraints on his opportunities to learn, practise, and consolidate interpersonal attitudes and behaviour. Dr Smallbone expressed the opinion that carefully targeted psychotherapy would “continue to be a critical element of intervention”, but was unlikely by itself to solve Mr Garland’s complex behavioural problems. He said that there was no way of measuring whether Mr Garland had the capacity and willingness to exercise behavioural self-restraint unless he was observed consistently doing so in a less restricted social setting. At present it was unclear to both Mr Garland and to staff precisely how he was to demonstrate his readiness to be accommodated safely with other prisoners.
Dr Smallbone reported that previous psychological assessments of Mr Garland showed that he was not psychopathic. A medical assessment had shown that his plasma testosterone level was normal. Psychological assessments had repeatedly highlighted the profound “developmental adversity” to which he appeared to have been subjected as a child.
The assessment discussed in great detail his distal or developmental antecedents, the proximal antecedents, that is the factors likely to precipitate sexually aggressive incidents, and contextual factors, that is interpersonal and environmental conditions that served to increase imminent risk. Dr Smallbone said that if Mr Garland were to be housed outside the MSU, he would need to be housed in single cell accommodation in a small unit with no blind spots, separately from vulnerable inmates who might be potential victims and other high-risk inmates who might be potential co-offenders. There would be need for education of other prisoners and careful staff selection, briefing, training and supervision. He would require well organised supervision, security arrangements and vigilant monitoring.
Dr Smallbone’s recommendations were:
“My own view is that, with appropriate psychological interventions and good custodial management practices, Mr Garland could be safely relocated to a less socially restricted setting within the prison environment. Apart from the obvious opportunity-reduction effects of his accommodation in the MSU, it is difficult to see what else could be achieved there that would further reduce the risk of his relocation. Indeed, continued confinement within the MSU clearly risks contributing to new psychological, emotional, and behavioural problems.
The psychological assessments that have informed the interventions employed over the last two years have, in my opinion, lacked clear and specific points of focus. Of particular concern, treatment goals have not been linked systematically to methods of outcome evaluation. One unfortunate result has been that no-one, including Mr Garland himself, seems clear about how he could demonstrate his readiness to be relocated to a less restricted setting.
It will be important for Mr Garland to continue with a program of psychotherapy, and I hope the present report is of some assistance in reviewing the current intervention plan. I recommend that a new plan be developed. Whilst psychotherapy would need to be long-term, specific elements could be implemented and evaluated over quite short periods (e.g., imaginal desensitisation). One way to more systematically evaluate his progress would be to develop and use a goal attainment schedule. Small, clearly defined steps with clearly defined goals would not only help to organise the intervention but would give Mr Garland the opportunity to achieve a series of “successes”.
The present report has also taken up issues relating to custodial management. Ideally, his day-to-day custodial management should be carefully integrated with his ongoing psychological interventions. The effects of his immediate environment on his behaviour are of critical importance. Attention needs to be given to both his physical and interpersonal environment. The former raises critical questions about where and with whom he might safely be accommodated, the best systems of surveillance and monitoring, and so on. The latter presents challenges with respect to the roles and responsibilities of case managers, custodial staff, professional staff, and fellow inmates. Ensuring that best-practice standard for both psychological intervention and custodial management are maintained may be the key challenge.”
Dr Smallbone was called to give evidence by the applicant on this review. That evidence was not before the decision maker and did not add anything of relevance to the grounds of judicial review.
On 12 March 2005, the respondent made a further consecutive maximum security order with regard to Mr Garland.
On 8 May 2005, Mr G Lee, the Official Visitor at SDL, reviewed the consecutive maximum security order to which Mr Garland was then subject pursuant to s 50 of the CSA. This section, found in Div 6 of Pt 2 of the CSA, provided:
“Review of maximum security orders
(1)A prisoner accommodated in a maximum security facility under a maximum security order may ask the person in charge to refer the order to an official visitor for review.
(2)The person in charge must refer the order to an official visitor as soon as practicable.
(3)The official visitor must review the order as soon as practicable.
(4)If the term of the order is 3 months or less, the prisoner may not ask for the order to be referred more than once.
(5)If the term of the order is more than 3 months, the prisoner may not ask for the order to be referred more than twice.
(6)Despite subsection (4) and (5), the prisoner may also ask for the order to be referred to an official visitor if the chief executive amends the order, other than under subsection (9).
(7)When reviewing the order, the official visitor may exercise the powers mentioned in section 215.
(8)After completing the review, the official visitor must recommend to the chief executive whether the order should be confirmed, amended or cancelled.
(9)On receiving the recommendation of the official visitor, the chief executive must –
(a)consider the recommendation; and
(b)confirm, amend or cancel the order.
(10)To remove doubt, it is declared that the chief executive is not bound by the official visitor’s recommendation.”
Mr Lee recommended that the maximum security order be confirmed subject to Mr Garland’s having the opportunity to increase his association with other prisoners. He observed that a maximum security order was an order of last resort which must be considered only after all other management and placement options have been explored. He also observed that there was nothing more that Mr Garland could do to prove himself whilst he remained in the MSU and that he appeared to be progressing positively. He recommended that an independent psychometric assessment of Mr Garland be undertaken as soon as possible.
On 3 August 2005, Mr Garland was transferred from the MSU at SDL to the MSU at AGCC. It was reported that he maintained a good standard of behaviour and stable presentation during the transfer and that he had shown considerable patience and tolerance notwithstanding that some of his privileges were withdrawn not because of any fault on his part but due to “infrastructure differences.” Another unfortunate consequence of the move was that he was no longer able to have social interaction with another prisoner as he had been able to enjoy at SDL. Mr Garland referred to the detrimental effects of those differences in his affidavit filed in this matter.
At about the time of his transfer, the Department of Corrective Services commissioned Dr Moyle, a psychiatrist who is a specialist in assessing and treating serious sex offenders, to undertake an independent psychometric assessment of Mr Garland and to consider the possible use of medication to reduce his sexual predatory behaviour. This was in accordance with Dr Smallbone’s recommendation. Because of Dr Moyle’s other commitments, he was not able to see Mr Garland until June 2006.
On 23 November 2005 Ms Hunter, the decision maker of the order under review, went to AGCC to speak to Mr Garland. She knew him previously as part of her duties in Moreton Correctional Centre where he was imprisoned prior to his release on parole in 1997. She found him to be in good physical and mental health although concerned about when he might be released from the MSU.
On 8 January 2006, Mr Garland was offered employment as the cleaner on pod 1 of the MSU. It was reported that he displayed a keen attitude in that position and completed the work to a good standard.
At a Sentence Management Review team (the SMR team) meeting on 12 January 2006, a recommendation was made that Mr Garland remain in the MSU. The SMR team consisted of James Fisher, General Manager of AGCC, Tim Ryan and Claudia Gibson, psychologists attached to the MSU at AGCC, John Haffner, the Correctional Manager of the MSU at AGCC, and Marty Kriesh, the Sentence Management Co-ordinator at AGCC. The report of the SMR team on 17 January 2006 says that greater weight was placed on the following factors:
·“the prisoner has not fully addressed the issues that lead to his initial placement in the MSU.
·Psychologist reports indicate Garland still requires extensive intervention to address his sexual offending behaviour.
·Length of sentence imposed and period remaining.
·Violent nature of the prisoner’s offending.
·Considered to be high risk to the good order and security of a correctional centre.”
The SMR team noted that no programs or interventions for addressing offending behaviour and therefore reducing risk had been recommended during the period under review and therefore Mr Garland’s present risk to the community could not be “validated with any certainty.” Mr Garland reported that he had undertaken every program offered to him within the correctional system to address his offending behaviour, some more than once. His institutional behaviour during the period had been exemplary however “the risk to the good order and security of the centre and community” had not been clearly identified within the period. It was also noted that Mr Garland’s motivation to achieve educational objectives during the period had been “exceptional”. It was proposed to undertake a comprehensive assessment during the following six months including measures specifically aimed at the potential dangers of sex offenders (referred to as the PAI, the VRG and the SORAG) and an evaluation of his current criminogenic needs in terms of the SOTP as well as clinical interviewing “to ascertain the specific measures of overt and covert behaviours related to sexual offending, internal and external antecedents, as well as conditions surrounding behaviours and the consequences.”
An Intelligence Profile on Mr Garland was updated on 12 January 2006. It noted that since the commencement of the maximum security order to which he was then subject, which had commenced on 10 September 2005, he had not had any breaches, incidents or intelligence reports.
On 25 January 2006 Ms Hunter met with the members of an Offender Progression Review Committee to discuss Mr Garland for the purpose of Ms Hunter’s considering whether or not to issue a new maximum security order in respect of him. She consulted with the members of the SMR team referred to earlier and Michael Airton, the Executive Director of Offender Assessment and Services. With the exception of Mr Airton those are the persons directly responsible for the day to day management of Mr Garland. Mr Fisher, Mr Ryan, Ms Gibson and Mr Haffner told Ms Hunter of their concerns about the serious risks that Mr Garland continued to pose within the general prisoner setting both to prisoners and to correctional staff and that he was to be the subject of a comprehensive independent psychometric assessment by Dr Moyle, who was also to provide advice as to what options there were, including the possibility of medication, to assist Mr Garland in controlling the sexual urges that had been a feature of his past criminal behaviour.
Mr Fisher and Mr Ryan recommended to Ms Hunter that Mr Garland remain in the MSU pursuant to a new maximum security order. Mr Ryan said that Mr Garland had not undertaken any therapeutic programs during the currency of the maximum security order to which he was then subject but that he continued to have access to one on one sessions with Mr Ryan which he generally engaged in on a weekly basis and that he was continuing with his educational programs outside his cell.
On 15 February 2006, a new Individual Management Plan (IMP) was introduced for Mr Garland. In the IMP it was said that he would be managed in accordance with Stage 2 of the Reintegration Plan Behavioural and Reintegration objectives therein set out. The proposed intervention, counselling, therapy and educational programs were also set out. The IMP also listed time allowed out of his cell, conditions for external and internal movement, meals, visits, telephone calls, exercise, employment and approved property as well as medical visits.
Ms Hunter decided to advise Mr Garland that consideration was being given to extending the maximum security order for a period of six months. On 16 February 2006, in accordance with the requirements of s 48(3)(a) of the CSA, she wrote to Mr Garland setting out the matters she had taken into account in forming the preliminary view that he posed a substantial threat to the security and good order of the facility and inviting him to make submissions about anything relevant to the making of the order. He responded by letter dated 17 February 2006 saying that he believed a decision had already been made and that a submission by him would be an exercise in futility.
On 2 March 2006, Ms Hunter decided to issue a new maximum security order on the ground previously set out in s 47(2)(b)(iii). This is the decision under review. The maximum security order provided for the following conditions:
“Directions regarding the prisoner’s conditions during the period of the maximum security order:
(a)The extent to which the prisoner is to be segregated from other prisoners accommodated in the maximum security facility:
The prisoner is permitted to associate with other prisoners in the maximum security unit.
(b)The extent to which the prisoner is to receive privileges:
Telephone Calls:
The prisoner is permitted two (2) telephone calls of 10 minutes duration each week. Additional telephone calls may be approved by the General Manager in accordance with an Individual Management Plan.
Exercise:
The prisoner is permitted two (2) hours of out of cell exercise per day. Additional out of cell exercise may be approved by the General Manager in accordance with an Individual Management Plan.
Property:
With the exception of the basic issue of bedding and clothing, all other property to which the prisoner is permitted access is to be approved by the General Management in accordance with an Individual Management Plan.
Meals:
All meals are to be eaten in the prisoner’s cell unless otherwise approved by the General Manager in accordance with an Individual Management Plan.
(c)The extent to which visits to the prisoner may involve direct contact between prisoner and visitor:
The prisoner may have access to one (1) non contact visit per week of one (1) hour duration. Additional non-contact visits may be approved by the General Manager in accordance with an Individual Management Plan.
Contact visits may be approved by the General Manager on a case by case basis.
(d)The extent to which the prisoner may access programs, services, training and counselling:
Programs, services, training and counselling are only to be undertaken within the maximum security unit with options to be detailed in the Individual Management Plan.”
Mr Garland is accommodated in a small cell in the MSU which is 8.28 square metres in area, being 3.6 metres by 2.3 metres. I am aware from a visit by judges to this facility in 2002 that the cells in the MSU while relatively new and modern are small and sparsely furnished. He is also able to access on a daily basis a room which contains a computer solely for his use and an exercise yard. This exercise yard is 40.8 square metres. It is paved and fully enclosed and has transparent roofing, unlike the MSU at SDL, where Mr Garland had access to a grassed area. He uses the computer for study. Having completed the TPP, he has enrolled in a Bachelor of Information Technology at USQ. He is not permitted to interact with any other prisoner. He does however communicate with Aboriginal and Torres Strait Islander counsellors at AGCC and also with approved persons by telephone. In addition to correctional staff, he sees a psychologist regularly, is visited by a priest approximately once a month and by an educational tutor twice a week. His affidavit refers to his frustration and despair at being kept for so long in the MSU. He complains of not being allowed to have a computer in his cell but it appears that no prisoner is permitted to have a computer in his cell.
On 24 April 2006, Dutney J of this court ordered that a formal statement of reasons for her decision be given by Ms Hunter. The formal statement of reasons was provided on 25 May 2006.
Ms Hunter referred to the materials she considered in various documents, verbal briefings from Mr Fisher and Mr Ryan, the letter from Mr Garland of 17 February 2006, her own knowledge of Mr Garland, the MSU at AGCC and prison administration and management, as well as her recollection of his file and proceedings in the previous Supreme Court review heard and determined in December 2004. She referred to Mr Garland’s criminal history, his history on parole and on programs such as SOTP, his breaches of discipline and reportable incidents in custody, his placement in the MSU, therapy received and the report by Dr Smallbone. She also took account of the fact that Mr Garland was regularly examined by a medical practitioner who had not raised any concerns about his physical or mental health arising from the circumstances of his imprisonment.
Setting out the reasons for her decision, Ms Hunter said she took account of the following:
· Mr Garland’s lengthy and prolonged history of unlawful sexual misconduct and violent unlawful behaviours and the severity of this conduct;
· His conviction for 29 offences whilst in custody, at least nine of which were of a sexual nature and another 10 with the use of violence;
· That correctional officers were the victims of some of the offences involving violence;
· That the last conviction for having committed an offence of violence in custody was in 1992;
· That in 1997, shortly after being released and whilst on parole, Mr Garland committed a number of extremely serious sexual and violent offences against a number of complainants both male and female;
· That Mr Garland in doing so demonstrated an inability to apply the concepts and strategies from the 12 month SOTP program that he had completed just prior to his release from prison to avoid re-offending;
· That he was subject to an indefinite period of imprisonment and how such a sentence could be reviewed and what the conditions of release could be;
· That Mr Garland had several reportable incidents recorded against him which were allegations of sexual assault against prisoners and others were allegations of threats against staff;
· That the last recorded breach of discipline was in September 1995 and the last reportable incident was in November 1998;
· That Mr Garland had not committed a breach of discipline nor had a reportable incident since his placement in the MSU;
· That Mr Garland had been detained in an MSU since 31 March 2000;
· That following his return to custody in April 1997 he had been closely supervised and placed under strict management conditions;
· That additional benefits extended to Mr Garland while at SDL were reduced when he was transferred to AGCC;
· That Mr Garland did not have any prisoner association as no suitable MSU protection prisoners had been identified at AGCC;
· That Mr Garland had daily interaction with correctional staff and was employed as a cleaner within the MSU;
· That his placement in the MSU limited his contact with other prisoners virtually eliminating any opportunity to commit a sexual offence or to assault another prisoner;
· That no assaults on staff members had occurred whilst he was in the MSU but that staff interacted with prisoners in the MSU in a highly structured routine;
· That given his history of offending, a risk remained of predatory or opportunistic sexual conduct;
· The harm that would be suffered by an individual should Mr Garland commit further acts of misconduct against staff or other prisoners;
· That in her experience of prisoner management, misconduct between prisoners can lead to tensions and on occasion violence between prisoners or between prisoners and staff as prisoners try to take matters into their own hands to prevent or punish misconduct;
· That Mr Garland had exhibited a good attitude to staff and complied fully with directions;
· That Mr Garland had progressed in his educational pursuits and was highly motivated and devoted many hours to his studies;
· That Mr Garland had been and remained subject to a highly structured intervention program designed to address the specific level of risk that he posed;
· That Mr Garland had completed a number of phases of his intervention program during 2003 and since then had been participating in a maintenance phase;
· The caution expressed by Ms Bennett as to the problems that might arise on his being moved out of the low stimulus environment of the MSU;
· Dr Smallbone’s report together with his recommendation that an experienced psychiatrist be engaged;
· The engagement of Dr Moyle to conduct a psychiatric evaluation which assessment would occur in the near future;
· That a psychologist had been tasked to administer a range of diagnostic assessment tools and a different psychologist had been tasked to undertake an evaluation of Mr Garland’s criminogenic needs;
· That Mr Garland had agreed that assessments and future needs were an accurate account of his recent performance;
· That Mr Garland requested that consideration be given to his removal from the MSU;
· That in considering alternative placement options, the level of supervision that would be required to maintain the safety of other prisoners and Mr Garland could not be delivered in any existing high security protection unit;
· That Mr Garland had written to her saying that he regarded responding to her letter dated 16 February 2006 to be an exercise in futility;
· That the general manager had made certain recommendations.
She concluded:
“After considering these matters, I formed the view that prisoner Garland continued to pose a substantial threat to the security or good order of the facility. His history of behaviour demonstrates that he has a propensity towards engaging in threatening, sexually violent and/or violent behaviour both in the community and whilst in custody. The severity of the offending in the past is a significant concern and demonstrates that this risk has to be very carefully managed. I recognised that his behaviour since his return to custody in 1997 and specifically since his placement in the maximum security unit has been contained and managed. Although I recognised that prisoner Garland has been of good behaviour and has not committed any offences or breaches whilst accommodated in the maximum security unit, the opportunity to offend, particularly in a sexual manner, is virtually nonexistent with the highly structured and restrictive environment of the maximum security unit. Owing to the level of risk that prisoner Garland poses, the department established a structured intervention program involving both experienced independent psychologists and senior departmental psychologists. I regard it as imperative that the prisoner’s identified risk be reduced before he is reintegrated into a mainstream prison population. I was briefed on 25 January 2005 on the prisoner’s progress. Although I considered he was making some progress I was not then presently satisfied on the information I considered or recollected and the briefing that I received that his return to the mainstream population could be justified. My opinion was that the control required to minimise the risk to staff and other prisoners and to ensure stability and promote progression, including specialist interventions, is best met in an environment such as the maximum security unit. My opinion was that the prisoner remained a real and serious risk to the safety of others and as such posed a substantial threat to the security or good order of the facility. In reaching this decision I balanced the prisoner’s past history with those positive aspects of his case that I have mentioned above, including his current positive behaviour and attitude, the fact that it has been a number of years since his last reported negative incident and his cooperation and progress throughout the intervention process.”
As stated above in relation to the Australian guidelines for Corrective Services, Mr Garland’s confinement is not the result of punishment; rather it is for the administrative purpose to maintain the peace, security and good order of the prison. The decision does not appear to be in breach of international or national guidelines. This ground of review must therefore fail.
Alleged breach of the Department’s policies and procedures
The applicant’s counsel referred to s 189(1) of the CSA which provided that the chief executive must make administrative policies and procedures to facilitate the effective and efficient management of corrective services. A departmental procedure has been made by Ms Hunter with regard to maximum security orders. The current procedure which is publicly available (the “MSO policy”) came into effect on 15 August 2005 and was tendered in these proceedings. It sets out a number of procedural matters regarding maximum security orders about which no complaint is made.
Counsel for the applicant, however, said that there had been a failure to comply with the policy with regard to re-integration into the mainstream prison. The MSO policy relevantly provides:
“Planning for a prisoner’s progression back into the mainstream prison accommodation must commence with the prisoner’s arrival at the MSU. Reintegration of a prisoner into mainstream prison accommodation should be undertaken on a staged and progressive basis and in a manner that is consistent with the prisoner’s coping skills.”
Attached to the MSO policy is an appendix which provides for progress guidelines for MSU prisoners from Stage One (Reception), Stage Two (Ongoing Intervention), Stage Three (Re-socialisation) to Stage Four (Preparation for Reintegration). When a prisoner has reached Stage Four, the MSO policy provides that the prisoner will no longer be on a maximum security order.
It was submitted that there was no reintegration plan as required by the MSO policy; and that Mr Garland had complied with all of the requirements but that nevertheless he had not progressed from one stage to the next as envisaged by the Appendix to the MSO policy. It was submitted that “those stages under the guidelines haven’t even been considered for him.”
In fact the IMP dated 15 February 2006, referred to earlier in these reasons, was the individual plan developed for Mr Garland in accordance with the MSO policy. It provided that he was to be managed “in accordance with conditions specified under Stage 2 of the Reintegration Plan.” Mr Fisher gave evidence to the same effect. In oral evidence, Mr Fisher said:
“Prisoners are eligible for consideration for movement from one stage to another after a specified minimum period in which they have met all the goals of their IMP and adhered to all the procedures of the stage in which they are. However that the decision that prisoners move from one stage to another is, according to the MSO policy, subject to approval and review by the MSU Management Team.”
Ms Hunter was of the view that there was not presently any reintegration plan for Mr Garland but that appears to be because he had not reach stage 4 – preparation for reintegration. However, in my view the IMP could properly be considered to be a reintegration plan.
The submissions appear to have conflated eligibility for movement through the various stages of a maximum security order with the right to do so. Mr Garland was being managed in accordance with the MSO policy. This ground of review was therefore without merit.
Conclusion
The applicant has not been successful in showing that there was no evidence or other material to justify the making of the decision; nor that making the decision was an improper exercise of power with the result that the exercise was so unreasonable that no reasonable person could so exercise the power. While the applicant has succeeded in his argument that international law is relevant in determining the meaning to be given to s 3 of the CSA, he has not shown any breaches of international law, treaties or guidelines nor of the Australian guidelines based on them. Accordingly the third ground of review, that the decision was contrary to law because Mr Garland’s continued containment in the MSU was inhumane and so contrary to the CSA, has not been made out. Nor has he succeeded in showing that there were breaches of the policy and procedures of the Department which meant the order made was illegal. As none of the grounds for judicial review has been successful, the application must be dismissed.
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