Hill v State of South Australia & Anor No. Scgrg-99-489 Judgment No. S347

[1999] SASC 347

HILL v STATE OF SOUTH AUSTRALIA & ANOR
[1999] SASC 347

Civil

1. DOYLE CJ. In these proceedings, commenced on 29 April 1999, the plaintiff seeks judicial review of a decision made under s 37A of the Correctional Services Act 1982 (“the Act”).

2. The plaintiff had applied under s 37A to be released from prison to serve a period of home detention. That application was refused. That is the decision in question.

3. The challenges by the plaintiff to the validity of the decision have not been made out.  I propose to state my findings and conclusions fairly briefly, because I consider this to be a clear case.  If the plaintiff wishes to, he can make a fresh application for release.  The decision will, in any event, be reviewed in about November 1999.

Findings

1. I will now set out my findings of fact.  The hearing proceeded on the basis of the affidavits filed in the action.  No application was made to cross examine the persons who swore the affidavits.

2. The plaintiff is serving a sentence of imprisonment for eight years, with a non-parole period of five years. The plaintiff has served one half of that non-parole period, and meets the criteria determined by the Minister for the purposes of s 37A of the Act. Accordingly, the plaintiff is able to be released on home detention. It is convenient to set out two of the subsections of s 37A. They are as follows:

   “(1).. Subject to this section and the regulations, the Chief Executive Officer has an absolute discretion to release a prisoner from prison to serve a period of home detention in accordance with this Division.

   ........

   (2)... A prisoner will not be released under this Division unless-

   (a).... in the case of a prisoner serving a sentence in respect of which a non-parole period has been fixed, the prisoner has served at least one-half of that non-parole period; and

*******

(c).... the prisoner satisfied any other criteria determined by the Minister for the purposes of this section.”

1. The plaintiff applied for release on home detention.  He completed and lodged an Application in what appears to be a standard form.  He supported the application with appendices marked A to K.  Appendix A and some of the other appendices provide information about the studies that the plaintiff has undertaken while in prison.  The plaintiff has almost completed a post-graduate Diploma in Psychological Studies at Deakin University.  He has completed a post-graduate Certificate in Addiction Studies at Edith Cowan University.  Appendix A also deals with the plaintiff’s intentions on release, the place where he would live (with a woman, with whom he has formed a relationship, and with her child) and the arrangements that the plaintiff has been able to make for employment should he be released.  Those arrangements appear to be fairly definite.  Appendices I, J and K are copies of letters written by officers of the Department for Correctional Services.  Those references refer to the studies that the plaintiff has undertaken, but also to the fact that the plaintiff has made a worthwhile contribution to prison life by helping with the education of other prisoners, and by contributing to programs intended to advance the rehabilitation of prisoners.  All in all, the application is an impressive one.

2. The prisoner’s Case Officer completed a standard form Evaluation.  I conclude from the manner in which it is completed that the officer considered that the appendices to the plaintiff’s application covered the relevant ground, and that there was no need for the plaintiff to undertake any program directed towards his rehabilitation.

3. Some time after the application was lodged the plaintiff submitted three letters in further support of the application.  A letter of 31 December 1998 relates to the plaintiff’s studies and to his employment prospects.  A letter of 1 February 1999 relates to the question of whether the plaintiff should be released on home detention, or spend an interim period at what is described as a pre-release centre.  A letter of 10 March 1999 deals with the same point, explaining why the studies that the plaintiff has undertaken make it unnecessary for the plaintiff to attend a pre-release centre, and explaining also why such a requirement would cause the plaintiff problems.

4. The application was referred to the Parole Board.  The Board had no objection to the plaintiff being released on home detention.

5. The application was considered on 16 March 1999 by the Prisoner Assessment Committee. This Committee is established by the Minister who has the administration of the Act, to assist the Chief Executive Officer in his statutory duty to assess prisoners upon admission, and thereafter at regular intervals: s 23 of the Act. The Committee has no specific statutory function in the making of a decision under s 37A. I find that the application was referred to the Committee as a matter of routine, and that the Committee comprised persons whose experience was such that they could offer relevant advice on the application by the plaintiff.

6. The Committee was not provided with the Application and all of the appendices and letters.  However, all of that material was considered by a Community Corrections Officer, who then prepared, in a standard form, a Home Detention Evaluation (“the HDE”).

7. The HDE incorporates the substance of the information contained in the plaintiff’s application.  The HDE is favourable.  There are no adverse comments at all made about the plaintiff.  Appendix A to the plaintiff’s Application is attached to the HDE.  Appendix A is a written statement of three pages, prepared by the plaintiff.  It covers the ground covered by the other appendices, most of which provide material to support statements made by the plaintiff in Appendix A.

8. I have compared the plaintiff’s Application and the HDE and its attachments.  I am satisfied that the appendices to the plaintiff’s application that relate to his academic achievements and employment prospects are adequately covered by the HDE and its annexures.  An appendix relating to the schooling arrangements for the child of the woman with whom the plaintiff would reside is not covered, but in my opinion that document is of no real relevance to the matter.  The references from staff of the Department for Correctional Services are not attached to the HDE.  The favourable remarks about the plaintiff’s contribution to the welfare of other prisoners and to prison life are not referred to in the HDE.  I am satisfied that that is the only material of potential significance submitted by the plaintiff that would not be gleaned by a reading of the HDE and its attachments.  I will return to this point later.

9. To recap, the Committee had the HDE and the plaintiff’s letters of 1 February 1999 and 10 March 1999.

10. The Committee considered the material referred to.  It recommended to Mr Giesecke that the application be refused.

11. I find that the Chief Executive Officer had delegated to Mr Giesecke the discretion conferred by s 37A to release a prisoner from prison to serve a period of home detention. I find that Mr Giesecke considered all of the material considered by the Committee, and also took into account his own experience. Mr Giesecke is responsible for the assessment and placement of sentenced prisoners, and has responsibility for case management in prisons and in community correctional facilities in South Australia. He has held that position since February 1994.

12. In an affidavit tendered at the hearing, Mr Giesecke states that he considered the material considered by the Committee.  He then says:

    “I also took into account my experience of the beneficial effect of re-socialisation programs upon the success of prisoners serving home detention since I have been responsible for the placement of prisoners.

    After careful consideration, I formed the view that a period of re-socialisation would be likely to benefit the plaintiff rather than the plaintiff being immediately released on home detention.  In my experience there is significant merit in prisoners having a graduated release, in order to achieve successful re-socialisation into the community, rather than to move directly from a prison environment to home detention.”

13. Mr Giesecke refused the application for release.  He decided that the plaintiff should be transferred to the Adelaide Pre-Release Centre for “a program of re-socialisation and re-integration into the community”, which he considered might lead to home detention in the future.  Mr Giesecke states that the application for home detention would be reviewed in about November 1999.

Validity of Delegation

1. Counsel for the plaintiff submitted that the power delegated to Mr Giesecke was expressed as the power “to provide for the release ... of a prisoner on home detention”.  He submitted that this power did not include the power to refuse an application.

2. That submission lacks any substance.  The delegation necessarily implies a power to refuse an application.  In any event, even if the delegated power is only a power to grant an application, if the application is not granted the plaintiff cannot be released.  The argument leads nowhere.

Scope of Discretion

1. Counsel for the plaintiff submitted that although s 37A(1) confers an “absolute discretion”, the power is expressed to be “subject to this section”. He submitted that if a prisoner satisfies the requirements found in subs (2), the discretion must then be exercised in favour of release.

2. That submission also lacks any substance.  Subs (2) must be satisfied before a prisoner can be released.  It determines eligibility for release.  It does no more than that.  Eligibility for release is not the same as entitlement to be released.

Failure to Consider Relevant Matters

1. Counsel for the plaintiff submitted that relevant material that was provided by the prisoner and was available, was not considered because the Committee and Mr Giesecke were not given a copy of all of the material submitted by the prisoner.

2. On my findings the HDE and its annexures contained all the relevant information, subject to one point to which I will come in a moment.  In the course of administrative decision making it is not necessary for the decision maker (Mr Giesecke) to consider everything submitted by an applicant, nor is it necessary for the decision maker to consider the information in the form in which it is submitted by the applicant.  It is permissible for the information submitted by an applicant to be transmitted in a summarised and re-arranged form.  That is what was done in this case.  I have looked at the material closely, and am satisfied that the substance of what the plaintiff submitted was passed on, subject to the point to which I now come.

3. I have already referred to the three testimonials provided by officers of the Department for Correctional Services.  It would have been better if they were provided to the Committee and to Mr Giesecke.  No doubt the plaintiff regarded them as significant.  But, in the end, they merely confirm the plaintiff’s progress with his studies, his excellent behaviour while in prison and his contribution to prison life.  I do not consider that the testimonials shed any significant light upon the issue upon which Mr Giesecke’s decision turned.  His decision turned on the desirability of a staged release.  For that reason, the failure to provide them does not mean that relevant information was overlooked, and that the decision is invalid for that reason.  However, testimonials and commendations from Departmental officers who have had significant contact with a prisoner are likely to be significant, and to my mind that sort of material ordinarily should be transmitted to the decision maker.

Consideration of Irrelevant Material

1. Counsel for the plaintiff submitted that Mr Giesecke had no right to take into account the views of the Committee. I disagree. I have already found that the Committee had relevant experience in relation to the assessment of prisoners. The Act does not prevent a decision maker under s 37A from seeking advice from other persons.

2. If a prisoner is being assessed under s 23, the prisoner has the right to make representations in person to the Chief Executive Officer or to a committee established for the purposes of s 23. Counsel submitted that in this case the plaintiff was denied that right. But that right does not apply when the committee merely offers advice to the person who is to make a decision under s 37A. In that situation s 23 does not apply. I mention this point here as a matter of convenience.

3. Counsel for the plaintiff submitted that Mr Giesecke’s view that a re-socialisation program would be beneficial was wrong. But that is not an issue for me. He submitted that the possible benefit of re-socialisation was an irrelevant factor. I disagree. The discretion conferred by s 37A is very broad. It clearly encompasses the possibility of a prisoner benefiting from a gradual transition to liberty.

Lack of Procedural Fairness

1. Counsel submitted that Mr Giesecke was obliged to inform the plaintiff that he was considering refusing the application on the ground that the plaintiff would benefit from re-socialisation.  Counsel submitted that the plaintiff should have been given an opportunity to make submissions to Mr Giesecke on that point.  He said that procedural fairness required that, because fairness required that the plaintiff be informed before a decision was made against him on the basis of a matter adverse to him.

2. There are two answers to this submission.

3. The first is that the issue of re-socialisation is not a matter adverse to the plaintiff, in the sense in which that expression is found in some of the decided cases. Procedural fairness does usually require that the decision maker notify the person the subject of a decision before taking into account a specific matter of fact, usually something peculiar to the person in question, if that matter of fact will be used adversely to the plaintiff. But the question of re-socialisation is a general consideration, likely to arise in every case. It is not really a matter adverse to the plaintiff. It is simply a factor to be considered in deciding whether to grant release. Fairness does not require a decision maker under s 37A to inform an applicant of all of the matters that the decision maker will consider or might consider when deciding the application.

4. The second answer to the submission is that the plaintiff addressed this very issue in his letters of 1 February 1999 and 10 March 1999.  Those letters were considered by the Committee and by Mr Giesecke.  The plaintiff was apparently aware of the relevance of the issue.  These letters also show that the plaintiff knew that the Committee was involved in the decision making process.  I do not accept that it was necessary to inform the plaintiff that the Committee was involved, but if I am wrong in that, the plaintiff was informed.

Conclusions

1. In these proceedings the Court does not sit as a court of appeal against the decision made under s 37A. The Court is not concerned with the soundness of the decision made. The Court’s only concern is with the validity of the decision. The decision was not made without regard to relevant material, nor was it made by reference to irrelevant material. The plaintiff was not denied procedural fairness.

2. The application to quash the decision must be dismissed.