Hoyle v Director-General Corrective Services
[2019] ACTSC 226
•30 August 2019
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | Hoyle v Director-General Corrective Services |
Citation: | [2019] ACTSC 226 |
Hearing Dates: | 19 and 29 July 2019 |
DecisionDate: | 30 August 2019 |
Before: | Mossop J |
Decision: | Proceedings dismissed: see orders at [87] |
Catchwords: | ADMINISTRATIVE LAW – JUDICIAL REVIEW – Judicial review of Corrective Services’ decisions – plaintiff serving sentence for sexual offences – plaintiff assessed as at medium to high risk of reoffending – sentencing judge previously assessed plaintiff as at low risk of reoffending – whether use of Static 99 assessment tool involves a reviewable error – whether spent convictions may be considered in completing Static 99 assessment – whether the assessment was in contempt of sentencing judge’s decision – whether there is a legislative basis for the Adult Sexual Offenders Program – whether plaintiff was unlawfully required to complete the program prior to becoming eligible for parole – proceedings dismissed |
Legislation Cited: | Corrections Management Act 2007 (ACT), ss 7, 9, 14, 73, 78(2) Crimes Act 1900 (ACT), s 393 Spent Convictions Act 2000 (ACT), ss 11, 12, 16, 19(3) |
Cases Cited: | DCU v State Parole Authority of New South Wales[2006] NSWSC 526 Galli v New South Wales State Parole Authority [2006] NSWSC 206 |
Texts Cited: | Halsbury’s Laws of England, 3rd ed, vol 10 |
Parties: | Arthur Marshall Hoyle (Plaintiff) Director-General Corrective Services (Defendant) |
Representation: | Counsel Self-represented (Plaintiff) B Buckland (Defendant) |
| Solicitors Self-represented (Plaintiff) ACT Government Solicitor (Defendant) | |
File Number: | SC 87 of 2019 |
MOSSOP J
Introduction
Arthur Hoyle, a prisoner serving sentences at the Alexander Maconochie Centre (AMC), has brought proceedings for judicial review. The defendant in the proceedings is the Director-General responsible for the administration of the Corrections Management Act 2007 (ACT).
While incarcerated the defendant has, as part of the process of case management undertaken in relation to each detainee, completed an assessment of the plaintiff’s risk of reoffending. The plaintiff has been assessed as eligible for and suitable for participation in a program known as the Adult Sex Offenders Program (ASOP). Whether or not the plaintiff has completed that program is a matter likely to be taken into account by the Sentence Administration Board (SAB) in deciding whether or not to grant parole. Completion of the ASOP is also a matter relevant to the plaintiff’s eligibility for another program which is known as the Transition to Release Program (TRP). The plaintiff has sought review of a number of decisions of the defendant related to the assessment of his risk of reoffending, the inclusion of the ASOP within his case management plan and the processing of his application to participate in the TRP.
The plaintiff represented himself in the proceedings. Following his conviction and sentence to imprisonment, he appealed to the Court of Appeal. The sentencing decision: R v Hoyle (No 2) [2017] ACTSC 175 (Hoyle (No 2)) and the decision of the Court of Appeal: Hoyle v The Queen [2018] ACTCA 42; 339 FLR 11 (Hoyle v The Queen), made reference to evidence concerning his mental state and cognitive functioning. Notwithstanding the evidence referred to in those decisions, the plaintiff was able to very effectively present his case and make his submissions both orally and in writing. It was very clear that a litigation guardian was not required to be appointed under rule 275 of the Court Procedures Rules 2006 (ACT).
The application for judicial review
The decisions in relation to which review is sought are described in the Originating Application as follows:
1. To review the decision of the Defendant to rate the Plaintiff at medium to high risk of re‑offending compiled through the use of an out of date and therefore inappropriate and inaccurate Static 99 form together with an inaccurately compiled Level of Service Inventory‑Revised (LSI-R);
2. To review the decision by the Defendant to act in contravention and in contempt of the decision by Elkaim,J that there is not any real risk of the Plaintiff carrying out similar crimes in the future and that he is unlikely to re-offend, in favour of a prior assessment carried out by the Defendant that the Plaintiff is of medium to high risk of re-offending and which was itself invalid;
3. To review the decision of the Defendant that the Plaintiff be required to complete a criminogenic program at the AMC when there is no legislative requirement for detainees to complete same, noting that in this case the sentencing authority made an evident decision not to include any such requirement in the relevant sentencing orders;
4.To review the decision of the Defendant that the Plaintiff be rated as of medium to high level risk of sexual reoffending and that as a consequence he must complete an Adult Sexual Offenders Program prior to being eligible for the Transition to Release Program under the Corrections Management Act 2007 (ACT) section 120 and for a grant of Parole pursuant to the Crimes (Sentence Administration) Act 2005 (ACT) Section 120 (2), as the Eligibility Criteria for the Adult Sexual Offenders Program specifically cites little or no risk of sexually re-offending constituting unsuitability for participation;
5. To review the decision of the Defendant that the Plaintiff be required to complete a criminogenic program at the AMC, the Adult Sex Offender Program (ASOP), prior to being eligible for the Transition to Release Program (TRP) and for a grant of parole when the operation of the relevant legislation, as interpreted in Galli v New South Wales State Parole Authority [2006] NSWSC 206 at 7 and which was cited with approval in ZS v Sentence Administration Board [2018] ACTSC 289 as authority for the proposition that if an applicant is rated as of low risk of reoffending, as is properly the case with the Plaintiff and as ruled during sentencing by Elkaim,J, overrides any perceived requirement that such a program be completed prior to engagement in the TRP or for a grant of parole, and in being so rated meets the published Eligibility Criteria for the ASOP that little or no risk of re-offending as constitutes unsuitability for participation;
6.To review the failure of the Defendant to progress through to approval an application made by the Plaintiff on 22 October 2018 and subsequently, for inclusion in the TRP within a reasonable time, on the erroneous claim that assessment of the Plaintiff for and completion of the ASOP was a mandatory prerequisite.
The plaintiff claims prerogative relief. The nature of relief sought is not specified, although the content of the Originating Application suggests that the plaintiff may be seeking declaratory relief. The Originating Application identifies that the plaintiff claims what appear to be declarations as follows:
a. That the Defendant unlawfully erred in adopting a medium-high level risk of re-offending assessment which was based on demonstrably flawed information relating to the Plaintiff, and that in doing so was in contempt of an order by Elkaim,J made while sentencing that the Plaintiff was to be treated as unlikely to re-offend and therefore of a low level risk of re‑offending, and that it was on this basis that the sentence was ordered;
b.That the Defendant erred in applying its own previously prepared and flawed medium-high risk assessment in all dealings with the Plaintiff and in doing so was in contravention of the risk of re-offending declaration made by Elkaim,J in his judgement orders, and that in doing so its actions were unlawful;
c. That there is no applicable Legislation or Legislative Instrument authority for the decision of the Defendant that the Plaintiff be required to complete a criminogenic programme, namely the Adult Sex Offenders Program, and that in addition the requirement that he do so is unlawful as the Defendant acted in contravention of its own Eligibility Criteria for that program which specifically cites little or no risk of re-offending as constituting unsuitability for participation; and
d.That the decision of the Defendant not to progress an application made by the Plaintiff on 22nd October 2018 for inclusion in the Transition to Release Program within a reasonable time was not lawful.
The grounds for judicial review are articulated as follows:
That despite being provided with relevant and compelling critical expert evidence including details from the transcript of the comments made by Elkaim,J as well as other expert evidence by Drs Clout and Lonie and Professor Rosenfeld, the Defendant refused to acknowledge that evidence presented, relevant legislation, policies and judicial determinations provided to it and available through official means supported the Plaintiff’s contention, and acted in bad faith in:
a. acting in contempt of the judgement by Elkaim,J in unlawfully characterising the Plaintiff as of medium-high risk of sexual reoffending;
b. utilising an improperly selected and prepared Static 99 and Level of Service Indicator-Revised assessment, to arrive at that assessment of medium-high risk of reoffending;
c. unlawfully requiring the Plaintiff to complete a criminogenic programme namely the Adult Sex Offenders Programme when there is no legislative requirement that detainees complete any criminogenic programme, nor any applicable Legislative Instrument and that having been assessed by His Honour during sentencing as unlikely to re-offend, he is therefore ineligible under the published Adult Sex Offenders Programme eligibility criteria to participate in that programme;
d. unlawfully requiring the Plaintiff complete the Adult Sex Offender Programme prior to becoming eligible for a grant of parole; and
e. unlawfully requiring that the Plaintiff complete the Adult Sex Offender Programme prior to becoming eligible for participation in the Transition to Release Programme.
The items (a)-(e) identified the essential complaints made by the plaintiff about the decisions which he identified. They will provide an appropriate framework by which to address the plaintiff’s application. Before addressing the issues arising from these grounds it is necessary to provide some further factual background to the application.
Background
The plaintiff is currently serving a custodial sentence for sexual offences committed whilst he was an academic at the University of Canberra. The complainants in relation to the offending were students in the offender’s business law graduate course or in a different lecturer’s undergraduate business law course.
The trial concerning these offences commenced on 22 March 2017. The plaintiff was tried on an indictment of 10 counts. On 5 April 2017, the jury returned verdicts of guilty on eight of the 10 counts and verdicts of not guilty on two of the counts. Six of the counts were acts of indecency and two of the counts were sexual intercourse without consent. The offending is described in more detail in the sentencing decision of Elkaim J: Hoyle (No 2) at [2]-[15], [64]-[72] and in Hoyle v The Queen at [12].
On 14 July 2017 Elkaim J imposed a total sentence of imprisonment of four years with a non-parole period of two years and six months. As a consequence of his Honour’s orders the offender would become eligible for parole on 4 October 2019.
On 20 September 2018 the plaintiff’s appeal against his conviction was dismissed: see Hoyle v The Queen.
Between October 2018 and April 2019 the plaintiff engaged in extensive correspondence with staff at the AMC in relation to the terms of his case management plan, his participation in the ASOP and access to the TRP.
The defendant was obliged by statute to prepare a case management plan in relation to the plaintiff: Corrections Management Act 2007 (ACT) s 73. The version of the plaintiff’s case management plan in evidence had not been finalised by being signed by the relevant staff members of the AMC. It had not been signed by the plaintiff but it was not clear that this was a precondition to its finalisation. The argument in this case proceeded on the basis that the document in evidence was the case management plan or would be the case management plan unless orders were made in this case that prevented it from being in the form that it was.
The defendant included as part of the case management plan participation in the ASOP. Within the case management plan the case manager’s comments provided:
Mr Hoyle has been assessed as a medium-high risk of sexual reoffending. This service recommends Mr Hoyle engage in the Adult Sex Offender Program (ASOP) suitability assessment to address offending behaviours. This service will facilitate the submission of a Transitional Release Program screening application post Mr Hoyle’s ASOP suitability assessment.
The ASOP is a therapeutic group based program for adult men convicted of sexual offences. It is offered both at the AMC and in the community. Detainees at the AMC may commence the program in prison and complete it in the community whilst on parole or other post-prison supervision. The program takes between four months and two years to complete with an average duration being approximately 12 months.
The plaintiff wished to get access to another program, the TRP. One of the conditions of eligibility for that program was to have completed any part of the case management plan relating to risks of reoffending. That meant that the plaintiff would need to have completed the ASOP in order to get access to the TRP. Because the ASOP had not been completed it presented an impediment to the plaintiff’s participation in the TRP.
In order to seek to overcome this perceived impediment, the plaintiff advanced a number of arguments to staff at the AMC. He asserted that he was wrongly assessed as having a medium-high risk of reoffending. He asserted that this was inconsistent with the evidence before, and findings of, Elkaim J who sentenced him. He asserted that he should be assessed as unlikely to reoffend and that this would then make him unsuitable for participation in the ASOP. He asserted that it was unlawful to include the ASOP in his case management plan. He also asserted that it was unlawful to require him to complete the ASOP prior to participating in the TRP.
Notwithstanding his submissions to the staff at the AMC, the requirement to complete the ASOP was not removed from his case management plan. Not satisfied with the response of staff at the AMC he commenced these proceedings on 5 March 2019. He also made an application for parole at the earliest date upon which he was entitled to do so, namely, in early April 2019, six months prior to the end of his non-parole period: Crimes (Sentence Administration) Act2005 (ACT) s 121(1).
Although he had previously refused to participate in any assessment of his suitability for the ASOP on the basis that it should not have been included on his case management plan, he ultimately agreed to be assessed. That was because if he was found unsuitable for the program then he would not be required to complete it and this would remove an impediment to achieving his desired outcome of participating in the TRP. It would also have removed any adverse consequences that might have flowed for his application for parole from a failure to complete the program.
On 16 and 23 April 2019 the plaintiff was interviewed by Peter Marshall, a psychologist working at the AMC as part of the assessment for suitability for inclusion in the ASOP.
On 28 June 2019 a report prepared by Mr Marshall concluded that the plaintiff was suitable for inclusion in the ASOP. The summary at the end of the report was as follows:
Mr Hoyle has been found suitable for the ASOP program. Even with his stance of innocence, Mr Hoyle would benefit from reflecting on the behaviours that resulted in him being convicted, his decision-making leading up to those behaviours, and developing a risk management plan for after his release from prison, especially in light of his reported desire to return to employment. His cognitive deficits do not yet seem sufficiently prominent as to be an impediment to his participation in the ASOP, either in custody or in the community.
The SAB is due to hold an enquiry into the plaintiff’s application for parole in early September 2019.
At the hearing before me a number of staff members at the AMC gave evidence and were cross‑examined by the plaintiff. It is not necessary to refer to their evidence in any detail in order to resolve the issues raised by the plaintiff’s application. It is, however, necessary to make a ruling in relation to one aspect of the evidence. Mr Hoyle objected to the admission of a document recording his criminal history on the ground that two offences committed in 1982 were spent convictions under the Spent Convictions Act 2000 (ACT). However that fact does not prevent the criminal history from being tendered because s 16 of the Act does not in its terms prevent it and, in any event, if s 16 would otherwise prevent it, s 19(3) would provide an exception to s 16 in relation to court proceedings. As that was the only objection to the admission of the defendant’s tender bundle that bundle is admitted and becomes Exhibit 8. Notwithstanding that it is necessary to refer to the 1982 convictions later in these reasons I will, under s 19(4) of the Act, order that access not be granted under the Court Procedures Rules to page 1 of the exhibit without an order of a judge.
Did the defendant act in contempt of the decision of Elkaim J?
Ground (a) alleges that the defendant has acted in contempt of the judgment of Elkaim J by unlawfully categorising the plaintiff as of medium-high risk of sexual reoffending.
The essential point made by the plaintiff was that in sentencing him Elkaim J stated that he presented a low risk of reoffending and that if the defendant treated him as being at any higher risk of reoffending then the defendant was “in contempt of” that decision.
During the sentencing hearing the report of Dr Clout was tendered. Dr Lonie and Prof Rosenfeld gave oral evidence at that hearing. A number of character witnesses also gave evidence. At various points in his Honour’s reasons Elkaim J made reference to the plaintiff’s good character and his assessment of the likelihood that the plaintiff would reoffend. Those occasions are as follows:
(a)At [22] his Honour referred to offences committed by the plaintiff in 1982 and said that because of their age it would be unfair to take them into account against the offender. Rather, he said:
I will treat the offender as having been of previous good character.
(b)His Honour then referred to the plaintiff’s academic career and said at [23]:
The offender clearly distinguished himself in his academic career, which extended not only to teaching but also to research and publications.
(c)At [26] his Honour referred to the character evidence given by the plaintiff’s daughter and his Honour said:
I take these matters into account, consistent with my finding that he was of previous good character.
(d)At [51] his Honour said:
In relation to the risk of reoffending, I do not think there is any real risk of this offender carrying out any similar crimes in the future.
(e)At [54]-[55] his Honour said:
The sentencing of an offender is always a difficult exercise. It is all the more difficult when the offender is a person of previous good character who has made a significant contribution to society and has, almost at the conclusion of a notable career, committed very serious offences.
I accept that the convictions will overshadow all of the offender’s achievements and remain a stain on his character for the rest of his life. As I have already said, I also accept that the offender is unlikely to re-offend.
(f)At [74] his Honour said:
In addition, as I have said already, I have approached sentencing on the basis of the offender being a person of previous good character.
The plaintiff submitted that the categorisation of him being of “very low risk of reoffending” “informed and shaped the sentencing order and should be considered part of that order”. He submitted that “the deliberate failure of the Defendant to follow it, in the face of evidence to the contrary presented by the Plaintiff and clear on the face of the record, in favour of a flawed version it has prepared, constitutes a contempt.”
These submissions fundamentally misunderstand the nature and effect of the reasons given by his Honour. The orders made by his Honour were orders imposing particular sentences for each of the offences of which the plaintiff had been found guilty. The reasons for that decision were not incorporated into the orders made. The reasons given by his Honour were not binding upon the defendant. While the defendant was entitled to take account of any reasons given by his Honour, the weight if any to be given to those reasons was a matter for the defendant. The defendant was entitled to make his or her own assessment of the risk of reoffending for the purposes of executing the judgment of the court in compliance with the Corrections Management Act.
For this reason, decisions made by the defendant in relation to the plaintiff’s risk of reoffending did not involve any breach of the orders made by Elkaim J and ground (a) provides no basis for the judicial review of the defendant’s decisions.
Did the use of the Static 99 or Level of Service Indicator-Revised (LSI-R) involve any error?
Ground (b) asserts that the defendant improperly selected and prepared Static 99 and LSI-R assessments to arrive at the assessment of medium-high risk of reoffending. The arguments in support of that ground raised a number of issues which will be dealt with separately.
Static 99 v Static 99R
The Static 99 is an actuarial assessment tool designed to assist in the assessment of the risk of reoffending by sexual offenders. It measures static factors, that is, those that the offender cannot change.
In May 2017 the Static 99 tool was completed in relation to the plaintiff. This involves completing a tally sheet. The tool measures static features of an offender which correlates with the offender’s risk of recidivism. Completion of the tally sheet involves scoring for identified risk factors based upon information available to the assessor. Each subject produces a point score. For most subjects the point scores are either zero or one. For one subject relating to prior sex offences the possible point scores range from zero to three. Completion of a tally sheet leads to an overall point score. A total score of zero or one leads to a “Low” risk category, two or three leads to a “Moderate-Low” risk, four or five leads to a “Moderate-High” risk and six or above leads to a “High” risk. The version of the test used in the AMC was the 2003 version. The assessment of the plaintiff using this tool produced a “Moderate-High” risk of sexual reoffending.
In 2012 the assessment tool was revised. As a result of the revisions the revised tool became known as the Static 99R. The only relevant difference between the Static 99 and Static 99R test for present purposes is that the Static 99R includes consideration of the offender’s age at release from prison. In the plaintiff’s case, because he will be over 60 at the time of his release his overall score was reduced. Under the 2012 version of the Static 99R he would be placed in the “low” risk category.
In 2016 the coding manual for the Static 99R was altered so as to increase the number of risk categories and change their descriptions. The risk categories became: Level I-very low risk; Level II-below average risk; Level III-average risk; Level IVa-above average risk; Level IVb-well above average risk. Under the 2016 version of the Static 99R the plaintiff fell into the “Level III-average risk” category. This was described in the coding manual as follows:
Level III offenders would be the typical offenders in the middle of the risk distribution. Typical offenders have criminogenic needs in several areas, and require meaningful investments in structured programming to decrease their recidivism risk.
The only issue in contention is whether the use by the defendant of the Static 99 test (as opposed to the Static 99R test) involved an error that provides a ground for judicial review of the defendant’s decisions. In my view it does not. The assessment tool is used as part of the defendant’s process for preparing a case management plan. The preparation of a case management plan is something mandated by the Corrections Management Act and must be understood in light of the objective in s 7(d) of the Act, namely “promoting the rehabilitation of offenders and their reintegration into society” and the obligation on the defendant under s 9(f) of the Act “to promote, as far as practicable, the detainee’s rehabilitation and reintegration into society”.
The fact that there is a subsequent revised version of an actuarial tool does not indicate that there is any legal error in using a prior version. Precisely why the earlier version was used by the defendant was not explored in any detail in the evidence. So far as the evidence disclosed the only change of significance in the actuarial matters considered was the offender’s age at the time of release. The evidence did not establish that the version of the tool used was discredited or inaccurate within its appropriate area of application. Within the broadly stated powers and obligations upon the defendant, which assessment tool the defendant uses is fundamentally a matter for the defendant. No contravention of the law has been demonstrated through the use of one assessment tool rather than the other.
Spent convictions
A subsidiary argument put forward by the plaintiff was that the scoring of the Static 99 tool incorporated error because of the inclusion in the scoring sheet of points for previous convictions. The plaintiff had been convicted in 1982 of two counts of indecent exposure. One of the items in the Static 99 tally sheet was for previous convictions for sex offences. Two or three such previous convictions added two points to the total score. The plaintiff contended that the 1982 convictions were properly classified as spent convictions within the meaning of the Spent Convictions Act and that as a consequence they should not have been considered for the purposes of the Static 99 tool. If that was the case then the scoring on either the Static 99 or the Static 99R test would have been further reduced.
Section 11(1) of the Spent Convictions Act identifies the convictions which can become spent. Excluded from the convictions that can become spent is “a conviction for a sexual offence”: s 11(2)(b). Counsel for the defendant submitted that this had the effect of preventing the relevant offences from becoming spent. The offences committed by the plaintiff were offences of indecent exposure, both committed in 1982. These appear to have been the common law offence of indecent exposure (as to which see Halsbury’s Laws of England, 3rd ed, vol 10 at 666 [1272]). In 1983 a statutory offence of indecent exposure was enacted as s 546B of the Crimes Act 1900 (ACT) and the common law offence of publicly exposing a naked person was abolished: Crimes (Amendment) Act (No 3) 1983 (ACT). Section 546B has now been renumbered and become s 393 of the Crimes Act. It sits within pt 17 of the Crimes Act.
The definition of “sexual offence” in the dictionary to the Spent Convictions Act includes an offence against pt 3 or pt 4 of the Crimes Act as well as an offence committed before the date of the commencement of the definition “of a similar nature to an offence” mentioned elsewhere in the definition. That however does not catch a common law offence of indecent exposure or an offence within pt 17 of the Act. Therefore, notwithstanding that indecent exposure may be considered to be an offence of a sexual nature, it is not within the definition of “sexual offence” in the Act and hence s 11(2)(b) is not a barrier to the plaintiff’s convictions becoming spent.
Under s 12(1) of the Spent Convictions Act the convictions would be spent because the plaintiff had completed the relevant crime free period (set out in s 13 of the Act).
The issue turns upon the operation of s 16 which provides:
16 What are the consequences of a conviction becoming spent?
If a conviction of a person is spent—
(a) the person is not required to disclose information about the spent conviction to anyone; and
(b) a question about the person’s criminal history is taken not to refer to the spent conviction, but to refer only to any of the person’s convictions that are not spent; and
(c) in applying an Act to the person—
(i) a reference to a conviction (however expressed) is taken not to refer to the spent conviction, but to refer only to any of the person’s convictions that are not spent; and
(ii) a reference to the person’s character (however expressed) does not allow or require anyone to take the spent conviction into account.
NoteA reference to an Act includes a reference to the statutory instruments made or in force under the Act, including regulations (see Legislation Act 2001, s 104).
The issue in the present case is whether or not that provision has any consequences for the completion by an assessor of an actuarial assessment tool in circumstances where the assessor is already aware of the prior convictions.
A comparable provision was considered by the New South Wales Court of Appeal in Kocic v Commission of Police, NSW Police Force [2014] NSWCA 368; 88 NSWLR 159. Although the decision focussed on the effect of the equivalent of s 16(c), the reasons in the three separate judgments make it clear that there is considerable subtlety in the language of paragraphs (a), (b) and (c) to which attention must be paid when determining their scope: see [23]-[25], [83], [85], [107]-[109]. The paragraphs of s 16 clearly have distinct spheres of operation. Paragraph (a) gives a privilege to a person. Paragraphs (b) and (c) are definitional. The scope of paragraph (b) is less certain, not being limited to statutes in the manner that paragraph (c) is. The scope of paragraph (c) is more certain, being an interpretive provision affecting the meaning of references to convictions and a person’s character in other Acts.
Section 16(a) has no application because no disclosure by the person is required. The existence of the two previous convictions was either known to the scorer of the Static 99 or disclosed to that person by the plaintiff. The scope of s 16(b) is somewhat uncertain as it simply refers to “a question” rather than being a question in any particular context. It has a definitional effect by confining the scope of any such question. Understood in this way, whilst it might affect the extent of disclosure by a person in response to a question, it does not affect the completion of an actuarial assessment tool by a psychologist in circumstances such as the present where the information is otherwise available or disclosed by the plaintiff. Paragraph (c) is not relevant because the completion of the Static 99 test does not involve applying any Act to the plaintiff.
For these reasons the terms of the Spent Convictions Act do not affect the completion of the Static 99 assessment. Those scoring the Static 99 assessment within the AMC who are aware of previous convictions are entitled to have regard to them if relevant for the purposes of the completion of such an actuarial risk assessment tool.
Errors in LSI-R
Finally, the plaintiff challenges the results of the other assessment tool used, the LSI‑R because he submits that it contains errors. The LSI-R is a tool which assesses the risk of general reoffending. It is of the same basic structure as the Static 99 in that it involves answering a series of questions, the answers to which give rise to a point score which is totalled so as to provide a risk of general reoffending within particular articulated bands.
The defendant conceded that there was an error in the completion of the scoring sheet in relation to the plaintiff’s employment status at the time the test was administered. The defendant said that the correction of these errors would change the assessment score from 13 to 12. Both raw scores of 13 and 12 placed the plaintiff at “low risk of general reoffending”. There is no risk category in the LSI-R that is lower than “low”. As a result, the defendant contended that the errors in the scoring of the LSI-R were not significant.
I agree with the defendant’s submission that the factual error conceded would not alter the assessed risk of general reoffending. Nor would any of the other errors asserted by the plaintiff. The existence of an error in the assessment does not of itself give rise to any entitlement to judicial review. Given that the error did not alter the assessed risk category there is no basis for any contention that the error gave rise to an entitlement to review any decision of the defendant.
Conclusion
For the above reasons I do not consider that the defendant improperly selected or prepared the Static 99 assessment. I am therefore not satisfied that the manner in which the Static 99 test was used gives rise to any basis for judicially reviewing any of the decisions of the defendant. Further, I am not satisfied that the admitted errors in the completion of the LSI-R assessment give rise to any entitlement to judicially review any of the decisions of the defendant.
Is there a legislative basis for the ASOP?
The plaintiff contends in ground (c) that there is no legislative basis upon which he can be required to complete the ASOP. He therefore contends that for the purposes of the Corrections Management (Work Release) Policy 2012 he does not need to have completed the ASOP. One of the criteria set out in that policy to be satisfied in order to be eligible for the TRP is:
Before being considered for Work Release a detainee must have completed any case plan elements relating to risk of re-offending and transition from custody.
Both elements of the plaintiff’s argument fail. First, there is within the general powers of the defendant the capacity to conduct the ASOP and to include the ASOP in the case management plan of detainees (“the power point”). Second, in order to complete his sentence there is no requirement upon the plaintiff to complete the ASOP (“the requirement point”). I will explain these two points.
So far as the power point is concerned, the Corrections Management Act provides:
7Main objects of Act
The main objects of this Act are to promote public safety and the maintenance of a just society, particularly by—
…
(d)promoting the rehabilitation of offenders and their reintegration into society.
Section 9 of the Act further provides:
Functions under this Act in relation to a detainee must be exercised as follows:
…
(f)if the detainee is an offender – to promote, as far as practicable, the detainee’s rehabilitation and reintegration into society.
Section 73 of the Act requires the Director-General to arrange for a case management plan to be prepared for a detainee as soon as practicable after the detainee’s admission to a correctional centre. Section 78(2) provides that:
(2)A case management plan for a detainee must–
(a) outline work and activities for the detainee; and
(b) be based on an assessment of the needs, capacities and disposition of the detainee; and
(c)be consistent with the resources available to the director-general to manage the detainee; and
(d) if the detainee is an offender – outline how the detainee is to be prepared for lawful release and reintegration into society at the earliest possible time.
The ASOP is a program conducted by the defendant within the general framework of the Act. It is a program aimed at promoting the rehabilitation of adult sexual offenders and their reintegration into society. It is within the scope of these general powers that the defendant is entitled to conduct the ASOP.
There is no policy notified under s 14 of the Act that relates specifically to the ASOP. It is consistent with, but not dependent upon, the Corrections Management (Regime Planning) Policy 2018 which makes reference to the prisoners having access to a minimum of 5.5 hours of constructive activity each weekday. Constructive activity includes “activities that increase the likelihood of employment on release, address offending behaviour and/or associated risks, meet health and well-being needs, provide for self-development or maintain family ties”.
The fact that the ASOP is not the subject of a specific policy notified under s 14 of the Act does not mean that it is beyond the power of the defendant. Nothing in the Act makes the offering of programs within the AMC dependent upon the making by the defendant of a policy or operating procedure under s 14 of the Corrections Management Act.
So far as the “requirement” point is concerned, the fact that the ASOP program is offered at the AMC and included in a detainee’s case management plan does not compel a detainee to participate in that program. There is no compulsion upon a detainee to complete the ASOP in the sense of that being a precondition to release at the end of the sentence. A sentence may be served without participation in such a program. A detainee resistant to participation in any such programs may sit out his or her period in custody without participating in any program targeted at rehabilitation and reintegration into society.
Having said that, consistent with the statutory mandate in the legislation, the incentives within the AMC are structured so as to encourage detainees to participate in programs targeted at rehabilitation and reintegration into society. Although there is no requirement in any mandatory sense for prisoners to participate in programs, there are strong incentives for them to do so. Those include the making of completion of such programs conditions of access to other programs. An example of that is the eligibility criterion in the Corrections Management (Work Release) Policy 2012: see [50] above. By providing such incentives the prison system encourages the rehabilitation of prisoners and increases their prospects of reintegration back into the community upon release. Necessarily involved in such a regime is the proposition that prisoners who choose not to participate in programs identified as appropriate in their case management plan will not gain access to other programs. That means that there is, in a practical sense, a requirement to complete some programs in order to gain the benefits of other programs which are perceived to be desirable. This practical reality does not involve compulsion in any legal sense. It merely reflects the reality that those prisoners who choose to cooperate with a system of incentives designed to promote their rehabilitation and reintegration will be rewarded by the system that has been put in place and those that choose to be uncooperative will not be rewarded. There is nothing unlawful about such an outcome. Rather it is entirely consistent with the objects and purposes of the Act.
For these reasons, there is a legislative basis for the ASOP and this ground provides no basis for the judicial review of any decision of the defendant.
Was the plaintiff eligible to participate in the ASOP?
Ground (c) also included the contention that because the plaintiff had been assessed by Elkaim J as unlikely to reoffend, he was ineligible to participate in the ASOP. There is a distinction drawn in the evidence between eligibility for participation in the ASOP and suitability for such participation.
Exhibit 3 contained correspondence providing information relating to assessment criteria for the ASOP. It included a statement about the program which indicated that an offender who had been convicted of a sexual offence and has a minimum of 12 months remaining on the person’s sentence (either in the community or prison or both) was eligible for referral to the ASOP program. Once referred to the program the person would then be assessed by a programs officer. That assessment would include one or more interviews, the scoring of two risk assessment tools, the Static 99 and the STABLE 2007, and the preparation of an assessment report. The assessment report would include a finding about suitability for inclusion in the ASOP program.
In the same document there was also a statement of the grounds upon which an offender may be considered to be unsuitable for participation in the program. One of the grounds was that “they are assessed as presenting little or no risk of sexually reoffending”. It is important to note that when this criterion refers to the offender as being “assessed” it is a reference to the assessment report described. It is not a reference to an assessment by the offender or an assessment by a court. Rather it is the assessment by the programs officer made with the benefit of interviews and the two risk assessment tools.
Therefore the plaintiff’s ground (c) is misconceived in so far as it proceeds on the basis that the assessment by Elkaim J in his reasons for sentencing the plaintiff is determinative of the plaintiff’s suitability for the ASOP. The assessment for suitability is that undertaken by the assessing officer. For the purposes of the ASOP, any finding by Elkaim J is not determinative. Rather, what is determinative of suitability is the assessment of the assessing officer.
The assessment report in the present case was prepared by Mr Marshall, an experienced and well‑qualified clinical psychologist working within the prison. The report was detailed and contained what appears to be a balanced and reasonable assessment of the circumstances of the plaintiff. It does not assess him as “presenting little or no risk of sexual reoffending”. Rather the static risks assessed in accordance with the Static 99 tool places him at a moderate-high risk and the STABLE 2007 which assesses dynamic risk identified a number of areas in which the plaintiff would benefit from the ASOP program. He was assessed as suitable for participation in the program.
For these reasons the opinion of Elkaim J as to the likelihood of reoffending does not mean that the plaintiff was ineligible or unsuitable to participate in the ASOP and this ground provides no basis for judicial review of the decisions of the defendant.
Did the defendant unlawfully require the plaintiff to complete the ASOP prior to becoming eligible for a grant of parole?
In ground (d) the plaintiff asserts that the defendant was unlawfully requiring the plaintiff to complete the ASOP prior to becoming eligible for a grant of parole.
The plaintiff identifies that the criteria for participation in the ASOP include that an offender may be temporarily or permanently unsuitable for the program “if they are assessed as presenting little or no risk of sexually reoffending”. The plaintiff contended on the basis of his previous grounds that this exclusionary criterion is satisfied. He therefore submitted that the defendant’s requirement for ASOP participation is “rendered invalid” and that the plaintiff’s “consequent exclusion from the TRP along with a potential adverse effect on the Plaintiff’s application for a grant of Parole was, it is submitted, unlawful.”
For the reasons given earlier, prisoners are not compelled to participate in the ASOP. However, whether they participate in it or indeed any other educational or rehabilitation program run at the AMC will be a matter relevant to:
(a)determining eligibility or suitability for other programs or opportunities within the AMC; and
(b)the SAB’s consideration of an application for parole.
So far as the former is concerned that includes determining suitability for the TRP.
So far as the latter is concerned the Board is only empowered to make a parole order for an offender if it considers that parole is appropriate for the offender, having regard to the principle that the public interest is of primary importance: Crimes (Sentence Administration) Act2005 (ACT) s 120(1). Plainly whether or not a sexual offender has been rehabilitated and the extent of any risk of further offending will be matters of significance in assessing where the public interest lies.
Further, s 120(2) of the Crimes (Sentence Administration) Act, which sets out matters that the Board must consider, includes:
(g) the offender’s conduct while serving the offender’s sentence of imprisonment;
(h) the offender’s participation in activities while serving the sentence of imprisonment;
(i) the likelihood that, if released on parole, the offender will commit further offences;
The position is, therefore, that the plaintiff’s participation or non-participation in the ASOP will be a matter that the Board will take into account in making its decision about parole and may give to that issue such weight as it sees fit. However, participation in the ASOP is not a statutory precondition to eligibility for parole.
This conclusion is reinforced by a number of New South Wales (NSW) authorities which make the point that the relevant considerations for a parole authority are those set out in the relevant statute rather than necessarily whether or not the offender has undertaken a particular program. In Galli v New South Wales State Parole Authority [2006] NSWSC 206 Adams J stated at [7]:
The question to be considered by the Parole Authority is not ultimately whether an offender has undertaken such a programme, assuming that he or she was convicted of a sexual offence. The question is whether in all the circumstances an offender should be released to parole having regard to the criteria specified in the Act, crucially whether there is or is not a real risk of re-offending. In considering this question a number of matters are relevant. Of course, the nature of the offending itself is of significant importance.
Similarly, in DCU v State Parole Authority of New South Wales[2006] NSWSC 526 Johnson J summarised the authorities which considered the refusal to grant parole to offenders who had not participated in NSW custody-based sex offender programs. His Honour said that a number of propositions emerged from the cases, including the following at [48]:
. . . it would be erroneous to refuse parole solely because of a denial of guilt by the offender and a refusal or inability to undertake a custodial treatment program …
The authorities referred to by the plaintiff illustrate that the ultimate issue for a parole body is whether or not, having regard to the statutorily mandated considerations, the statutory threshold for the grant of parole is met. As a consequence, particular facts such as the denial of guilt or refusal or inability to undertake a particular program in custody will not necessarily be determinative if that is inconsistent with the particular statutory framework for the parole authority’s consideration. However, plainly such matters may be taken into account in the context of the statutorily mandated considerations in relation to the grant or refusal of parole.
As a consequence, the plaintiff’s ground for review, which proceeds on the premise that completion of the ASOP is a precondition to the grant of parole, is misconceived. The position is, therefore, that the plaintiff has not established any unlawfulness in relation to the inclusion of the ASOP in his case management plan or that fact being taken into account in determining his eligibility for other programs within the AMC. Further, he has not established that the inclusion of the ASOP in his case management plan has prevented him from becoming eligible for parole although that will be a matter that is taken into account by the SAB in making any decision in relation to a grant of parole.
Did the defendant unlawfully require the plaintiff to complete the ASOP prior to becoming eligible for participation in the Transition to Release Program?
The plaintiff sought to review the defendant’s failure to progress through to approval the application that he made on 22 October 2018 for inclusion within the TRP. The plaintiff identified in ground (e) that the defendant had unlawfully required the plaintiff to complete the ASOP prior to becoming eligible for participation in the TRP. The relief sought appeared to be a declaration that the decision of the defendant not to progress the application that he made on 22 October 2018 within a reasonable time was not lawful.
The plaintiff contended that the manner in which the risk of recidivism was assessed and the requirement to complete the ASOP meant that the defendant was acting unlawfully by failing to approve his participation in the TRP. He alleged that the defendant had sought to enforce program participation by the plaintiff when it has no legal right nor any need to do so and sought to deny the plaintiff participation in this rehabilitation program.
The TRP is dealt with in the Corrections Management (Transitional Release) Policy 2010 (TRP Policy). The purpose of the policy is to allow prisoners the opportunity to gradually reintegrate with the community. It provides them with an opportunity to experience “pro social activities and behaviour in the community” through the grant of transitional leave while being supported by the structure of the Alexander Maconochie Centre until the release from custody.
The policy provides:
The Superintendent may consider any sentenced prisoner if the prisoner has:
· less than 12 months left on their sentence (however the Superintendent may consider prisoners who fall outside of this in some circumstances and in discussion with the Deputy Executive Director);
· achieved a minimum-security rating and poses a minimal risk to the security of the community;
· had a good discipline record for a period no less than 3 months prior to their application for TRC;
· not produced a positive urine samples for non prescribed drugs in the last six months based on at least two urine samples; and
· completed programs to address their offending behaviour outlined in the prisoner’s case management plan.
It is the last dot point which is of particular significance because of the plaintiff’s non‑completion of the ASOP.
The existence of the TRP Policy in relation to transitional release does not create any right or entitlement on the part of prisoners. Rather, it is, as its name suggests, a policy. There is nothing in s 14 which indicates that the making of a policy expands the scope of the powers of the Director-General under the Act. Nor is there anything in the section which indicates that the making of a policy constrains the scope of the powers of the Director-General or creates rights for prisoners. It is not necessary to consider in this case whether the existence of such a policy would create a legitimate expectation in relation to which an obligation to accord procedural fairness arises: cf Minister for Immigration and Ethnic Affairs v Teoh (1995) 183 CLR 273. It is a policy relevant to the exercise of powers under the Corrections Management Act, most particularly, the granting of local leave permits under s 205.
As I have indicated earlier in these reasons, the plaintiff has no entitlement to any relief in relation to the assessment of his risk of recidivism or the inclusion in his case management plan of a requirement to participate in the ASOP if assessed as suitable. As he has been assessed as suitable for the ASOP then the application of the eligibility requirements in the TRP Policy would preclude him from eligibility for the TRP. There is nothing irrational about such an outcome. It is entirely consistent with providing appropriate incentives to prisoners to complete programs for which they are eligible and assessed as suitable which will contribute to their rehabilitation. The plaintiff has not proved that the policy was inflexibly applied without regard to the merits of his case. The plaintiff has not demonstrated that the failure by the defendant to progress his application was unlawful. The plaintiff has established no basis for granting of relief which would compel the Director-General to “progress through to approval” his application. Therefore, in relation to this ground relief must be refused.
Conclusion
The grounds identified in the Originating Application provide no basis upon which to review the decisions of the defendant. The particular grounds dealt with above followed a chapeau which asserted bad faith on the part of the defendant: see [6] above. None of the grounds provide a basis for finding bad faith on the part of the defendant in the sense of a lack of any honest or genuine attempt to undertake the statutory task required by the orders of Elkaim J or the Corrections Management Act. On the contrary, the evidence discloses genuine attempts to provide for the plaintiff rehabilitation programs and opportunities consistent with the objects of the Corrections Management Act and the duties of the defendant under that Act. The plaintiff has not responded positively to the incentives for him to participate in the programs made available to him. I agree with the author of the ASOP assessment report who said that the plaintiff “exhibits a stubbornness and determination which is not necessarily in his best interests”.
Because the grounds provide no basis for judicial review, it is not necessary to address the submissions of the defendant that the decisions identified by the plaintiff were not decisions in relation to which prerogative relief would be granted. Rather, it is sufficient to simply dismiss the plaintiff’s application.
Orders
The orders of the Court are:
1. The defendant’s tender bundle is admitted as Exhibit 8.
2. Access is not to be granted to page 1 of Exhibit 8 under the Court Procedures Rules without an order of a judge.
3. The proceedings are dismissed.
4. The plaintiff is to pay the defendant’s costs.
5. Order 4 does not take effect for a period of 14 days and if, within that period, either party notifies my associate that the party wishes to be further heard in relation to costs, then the order does not take effect until further order of the court.
| I certify that the preceding eighty-seven [87] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Justice Mossop. Associate: Date: 30 August 2019 |
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