Jacobs v Chief Executive, Department of Corrective Services

[2000] QSC 420

[2000] QSC 420

THE SUPREME COURT

OF QUEENSLAND

BRISBANE  No. S7036 of 2000

IN THE MATTER

RAYMOND MARK JACOBS

Applicant

AND:

CHIEF EXECUTIVE DEPARTMENT OF CORRECTIVE SERVICES

Respondent

REASONS FOR JUDGMENT

B.W. Ambrose J.

Delivered the Fourteenth day of November 2000

1. This is an application by a prisoner in Moreton B Correctional Institution to review a management decision of the authorised delegate of the Executive Director of Operational Support Services of 25 July 2000.

1. The essential complaint of the applicant is the refusal of the authorised delegate to override a decision of the Serious Offenders Committee to not transfer him to open custody – Palen Creek in particular.

1. The applicant complains that the delegate failed to implement the recommendation of a sentence management review panel in the following terms inter alia:-

“The delay in completing this review was due to attempting to obtain verification from the Southport Magistrates Court that bail on these matters were enlarged on 9/2/2000.  On 27/3/2000 this information was received by the Centre. 

The panel recommended a reduction in security classification and transfer to a low/open security environment.  In accordance with Corrective Service Regulation 13 the following factors were taken into consideration:-

-Not considered to be at risk of escape or re-offending whilst under custodial supervision;

-Whilst the prisoner has outstanding court matters, it has been confirmed that he has bail on these matters;

-No recorded escapes on his criminal history;

-He has demonstrated a positive attitude towards his sentence in that he has stated he is willing to re-complete the Cognitive Skills Programme, good response in the area of education/vocation and very good conduct and industry.  Last recorded breach is 10/3/1999 while at SDL.  The panel notes he has not incurred any breaches since at MCCB – according to the criminal history, there are no recorded breaches or bail or community based dispositions;

-Psychological Services have recommended the prisoner re-complete the Cognitive Skills Programme, however this should not prevent him from being able to complete his programme at a low/open security environment.

Of concern are the following factors:-

-The serious nature of the offence and length of sentence;

-Prisoner Jacobs commenced his current sentence in June 1995 and to date, has completed approximately one-third of his sentence.  His parole eligibility date is December 2002;

Criminal History

-The panel note that during the current sentence, the prisoner has been subject to management plans and placed in the Detention Unit under the provisions of a s.39 for various reasons.

-Given the prisoner’s protection status, it is recommended that he be considered for transfer to Palen Creek Correctional Centre.”

1. That review occurred on 14 February 2000.  As a consequence of that review, the applicant received a new security classification of LOW.  He received a re-classification score of 18 which was within the range of classification 24-15 appropriate for a low security classification.  As a matter of interest, a re-classification below 14 would require a new security classification of  OPEN.

1. By a letter dated 25 July 2000 the Executive Director of Operational Support Services Authorised Delegate referred to “Sentence Management Policy Section 6.1.6” which reads –

“Prisoners who are remanded in custody on outstanding charges are not to be classified lower than medium security.  Prisoners who are entered into bail on outstanding charges are not to be classified lower than low security.”

1. Under the system a point score between 24 and 15 is categorised as low security classification whereas an open security classification is defined as between 14 points and nought.  Presumably it is this fact that led to the observation in the letter of 25 July 2000 indicating to the applicant that according to the Sentence Management Policy 6.1.6 the applicant should have no expectation that the Sentence Management Review Panel might reclassify him to the “open” category should it wish to have implemented the recommendation that it has already made that he be transferred to open custody – Palen Creek Prison Farm.

1. The recommendation of the Sentence Management Panel was considered by the General Manager on 31 March 2000.  In the course of his consideration, the General Manager noted that the applicant had “a history of manipulative behaviour”.  He referred to records of “disruptive behaviour at SDLCC inciting other prisoners against staff and destabilising the blocks”.

1. The applicant says that he assisted authorities to obtain evidence against a prison officer at SDLCC involved in the commission of drug offences within that custodial institution.  That prison officer was dealt with the upon evidence obtained by the applicant on tape recorder secreted upon him.  It is the applicant’s case that as a consequence of his assistance to the authorities some of the prison staff at SDLCC have been instrumental in making false reports concerning his behaviour while in that institution during which time he did not achieve any reduction in points relative to his security classification. He said that the necessity for special security arrangements for his safety while in that prison – and in other prisons, is his fear of receiving injury at the hands of high or medium security prisoners by reason of the assistance he gave to the authorities to obtain evidence against one of the prison officers at SDLCC.  The General Manager, in considering the recommendation of the Sentence Management Panel of 14 February 2000, however has expressed the view that the statements by the applicant that he would be safe “in any low security centre no matter which prisoners were placed there” were “possibly a manipulation to achieve a placement in a low security setting for his own purposes.”  While the applicant’s expressed view may perhaps be ill-informed I do not understand how it could be “a manipulation” – even if made in the hope of being transferred to Palen Creek as recommended by the Sentence Management Review Panel.

1. In the absence of a detailed examination of evidence of precisely what assistance he gave to procure evidence against one of the staff at SDLCC and what if any, retaliatory action was taken by some of the staff resulting in his unfair treatment designed to delay his re-classification to low security, it is impossible to embark upon consideration of these matters upon this application.

1. It emerges that an investigation was made by the Ombudsman in April 1999 while the applicant was still in SDLCC concerning his placement in a detention unit of that institution.  As a consequence of the intervention by the Ombudsman, two reports held in that institution were “deemed invalid” and were ordered to be removed from his file.  A third report was however maintained on the files as “an unsubstantiated report.”

1. The applicant referred to the content of a letter from a senior advisor of Sentence Management (for and on behalf of the authorised delegate) of 20 April 2000.  In the final paragraph of that letter it was observed:-

“The Committee noted you have raised safety issues at all of your centres and you have been held in secure custody since June 1995.  The Committee noted reports that you have been manipulative in your behaviour and higher standards of behaviour are required in open custody where lower levels of supervision apply.  Consequently, when considering all aspects of your case, the Committee decided a transfer to Palen Creek is not appropriate at this time.”

1. The applicant complains that there is no basis for the assertions made that he had been guilty of “manipulative behaviour” to which reference was made in both the General Manager’s recommendation of 31 March 2000 and the letter signed by the Senior Advisor Sentence Management on behalf of the authorised delegate on 20 April 2000.

1. Again however it seems to me that the evidence falls far short of establishing a lack of bona fides in reaching the decision not to transfer the applicant to Palen Creek – particularly as that decision was made at Moreton B Correctional Institution about the staff of which the applicant makes no complaint whatever.  The only complaint made is that the General Manager who made the recommendation subsequently upheld, had never seen or spoken to him and must have come to his conclusion about manipulative behaviour on the part of the applicant after viewing reports including those which the Ombudsman ordered to be removed from his prison file at SDLCC.

1. Again, there is insufficient evidence upon this application to support that proposition.

1. It is convenient to refer to the decision given on 25 July 2000 by the authorised delegate of the Executive Director Operational Support Services in the Department of Corrective Services.  The relevant part of the letter reads:-

“Re:Appeal of sentence management review decision      

I refer to your letter of appeal received by facsimile on 17 July 2000.  You express concern in relation to the Serious Offenders Committee’s decision not to transfer you to open custody.  The following information is provided in response.

In determining your classification and placement the delegate exercised the discretion delegated in accordance with Regulation 13 of Corrective Services Regulation 1989 and Section 69 of the Corrective Services Act 1988.

The following factors were taken into account:

• You are serving 15 years imprisonment for 4 offences.

·        These offences include Trafficking Drugs, Unlawful Use of a Motor Vehicle, Unlawful Possession of a Motor Vehicle and False Pretences.

·        It was noted that you have entered into bail on further outstanding court matters.

·        During the period under review it was noted that you have not been involved in any intervention programs, however you have been involved in guitar, First Aid courses, Literacy and Mathematics.

·        Your behaviour is described as positive and of a very good standard.  You are employed as the Head Cook in the mess.  There have been no breaches of discipline incurred during the period.

·        You commenced your sentence on the 8 October 1996.

·        You do not become eligible for parole until 7 December 2002.

·        Committee members noted that you have a criminal history dating from 8 February 1991 and that involvement with illicit substances and dishonesty was evident.

·        Taking all factors into account, the delegate decided that you be classified a low security on a points score of 18.

·        The Committee note that you were recommended and have been involved in individual counselling since your last review.

·        The General Manager did not recommend that you be transferred to open custody.

I have noted your comments in relation to the information provided by the General Manager of Moreton B Correctional Centre in your review verified on 27 April 2000.  You are advised that in considering your classification, your sentence is reviewed in its entirety.  All factors as outlined above are evaluated when determining an appropriate level of classification.  It is noted that the General Manager draws in part his response to information contained within your review, as well as making reference to your record of custody since commencement of your sentence, to ensure that a balanced assessment of your classification and placement was considered.

In considering all factors in relation to your case it is also noted that you have outstanding court matters.  Sentence Management Policy Section 6.1.6 notes that:

‘Prisoners who are remanded in custody on outstanding charges are not to be classified lower than medium security.  Prisoners who are entered into bail on outstanding charges are not to be classified lower than low security.’

In relation to your placement at Moreton B Correctional Centre and the factors identified above, it is considered that a transfer to an open custody environment is inappropriate at this time.  The Committee consider that a further period of stable, breach free behaviour and finalisation of your outstanding court matters is necessary before consideration for transfer to open custody.

Having regard to all aspects of your case, including the requirements of Regulation 13, Corrective Services Regulations, I am of the view that you should remain in secure custody at this point to ensure an appropriate level of supervision.

1. The “new” Ministerial Guidelines of the Queensland Community Corrections Board issued on 29 September 1998 in my view are in the nature of an administrative policy directive.  The “Guidelines” like policy directives generally should not be construed as imposing immutable constraints on the exercise of administrative discretion given to the respondent under the Act.  Every case must be considered on its own facts and it would be quite incorrect to elevate “policy guidelines” to the level of hurdles incapable of surmounting.

1. Clause 1.3 of the Guidelines provides inter alia –

“1.3A prisoner should achieve a low or open security classification prior to approval for release to a community-based programme.  At the discretion of the Board medium security classification prisoners can be considered for release to a community-based programme where –

(a)Circumstances indicate an exemption is unlikely to increase the level of risk to the community;

(b)The prisoner is close to the point of reduction from a medium to a low security classification;  and

(c)- -“

1. Clause 1.4 provides inter alia –

“1.4- -.  An open custody environment can include an open custody correctional centre or a secure custody correctional centre where the prisoner has worked with minimal supervision outside the secure perimeter for extended periods of time on an on-going basis.”

1. Whether in fact the terms of Sentence Management Policy Section 6.1.6 should be regarded as inevitably preventing a reclassification of the applicant to open security in the circumstances of his particular case seems to me highly problematical.  Whether the “outstanding charge” upon which he has been given bail – albeit that the charge has been outstanding in the Magistrates Court at Southport for a period of more than 5 years during which time the applicant has in fact been kept in custody at various correctional institutions and which apparently relates to possession of tainted money which the Crown seeks to forfeit could even arguably justify a refusal to reclassify the applicant to an open security rating is a matter which was not debated.

1. It would not be correct to blindly follow such a “policy” direction without carefully examining the nature of the charge in respect of which bail was given and the failure of the person bringing the charge to have it determined during a period exceeding 5 years during which it has been pending against the applicant.

1. Much was said about the allegedly “manipulative behaviour” of the applicant recorded in various reports.  As I understand the material canvassed some if not all the manipulative behaviour involved the applicant seeking secure custodial arrangements in various of the correctional centres where he has been held in view of fears he has expressed of injury at the hands of other prisoners in retaliation for his assisting the authorities in obtaining evidence at the Sir David Longland Correctional Centre to which I have already referred.  I find such contentions and observations a little strange in the light of a memorandum under the hand of the General Manager of the Sir David Longland Correctional Centre dated 2 September 1999 which reads inter alia –

“3.Given the reality that your co-operation with the CSIU is a well known fact in this centre the predicament for me is just ‘how to ensure your personal safety’.

4.The normal situation would be to place a person in your circumstances into a protection unit.  In this prison that would be ‘K’ block.  I cannot do that for two reasons.  The first is that you were previously placed in ‘K’ block and that proved unsuccessful. The second reason is that the manager of ‘K’ block is the very person that you have made serious charges against.  That matter has been referred to the appropriate authority.

In essence the only avenue for a responsible administrator in these circumstances is to house you in safety in the detention unit.  There is no practical alternative. 

Sentence Management Head Office are aware of your circumstances, however, have not provided any other solution to the problem at this time.”

1. In the circumstances it could hardly be contended that the fact that the applicant spent periods of time in the detention unit at Sir David Longland Correctional Institution could have any relevance to his behaviour while in custody let alone be grounds for concluding that he displayed “manipulative behaviour”.

1. For the respondent it was ultimately contended that it had an unwritten “policy” that persons on bail ought not be transferred to open custody – such as the prison farm at Palen Creek – because in the event that they are required to attend court in respect of the charge upon which they have been granted bail there might be some difficulty, inconvenience and/or expense involved in conveying the prisoner from the prison farm to the court.  For the applicant it was contended that there were people on bail held at the prison farm.  Evidence however was placed before me on behalf of the respondent that a last minute search of records available did not indicate that any prisoners presently held in open custody were on bail.

1. If there is such a policy it seems to me that it is no more than an unwritten administrative policy.  Whether it would be any more difficult or expensive should the applicant be required to attend the court at Southport from Palen Creek to convey him to that court from Palen Creek than it would be to convey him from Moreton B Correctional Unit to that court was not investigated.  The fact that a period of 5 ½ years has elapsed from the time the charge was laid against him upon which he was given bail in the Southport Court without the Crown apparently taking any steps to proceed in that court and the fact that there is no indication on the evidence so far placed before me that there is any likelihood that it will attempt to proceed against him before he becomes eligible for parole are matters which I should think would be carefully considered on the facts peculiar to this particular applicant without applying dogmatically any unwritten “policy” based upon the consideration that he has still pending after 5 ½ years a charge in the Southport Court upon which he has been granted bail with no apparent indication as to when, if ever, the charge may be prosecuted.

1. The charge if ever prosecuted successfully would undoubtedly lead to the forfeiture of a significant sum of money found in the possession of the applicant, which is presently held by the Crown.  If the charge is not prosecuted successfully presumably that money will be returned to the applicant.  In my view it would be an extremely unsatisfactory result if the implementation of the unwritten policy to decline to transfer to open custody a low security prisoner merely because there is such a charge pending upon which he has been given bail, had the effect of putting pressure on him to plead guilty to the charge with a view to obtaining the exercise of administrative discretion on the part of the respondent to transfer him to an open security environment or indeed to permit his security rating to be reclassified to an open security risk.  It would seem that the applicant would have every reason to attend court should the charge eventually be prosecuted with a view to avoiding a forfeiture order.

1. The evidence called upon this application in my view is insufficient to warrant a review of the challenged decision under s 20(2)(e). There is no clear evidence that the decision maker took into account irrelevant considerations in the absence of particulars of the “manipulative behaviour” advanced as one of the considerations under s 23(a) or that the decision was made without regard to the merits of the applicant’s case under s 23(f) although to the extent that significant weight seems to have been given, both in making and supporting the challenged decision upon review, to the fact that the applicant was upon bail one might suspect that a consideration of more detailed evidence called on this issue might support an argument based upon s 23(f).

1. The strength of the applicant’s case however is based upon the recommendations of the Sentence Management Review Panel which have been twice disregarded.  Undoubtedly the decision maker is required only to consider those recommendations and is not bound to adopt them.  However repeated rejections of such recommendations amounting to a refusal to permit the applicant to obtain the benefit contemplated by Clauses 1.3 and 1.4 of the new Ministerial Guidelines must be considered against the factual background of events involving the applicant whilst in custody which will require a careful evaluation of precisely what behaviour of the applicant can properly be described as “manipulative” – an adjective which seems to be used with many and varied connotations in the material placed before me.  Further if there is a policy that outstanding court matters upon which a prisoner is on bail must be “finished” before he may be “transferred to open custody”, where that policy is recorded and what is the reason for it and what application it has to facts relevant to the applicant.

1. To the extent that the applicant seeks to attribute the decision he seeks to have reviewed to reports made concerning treatment given to him while he was a prisoner in SDLCC because of the assistance he gave to the CSIU to procure the conviction of a prison officer of drug offences committed within that Centre, much more detailed evidence needs to be called.  Such evidence must be available having regard to the content of the General Manager’s letter of 2 September 1999 to which I have referred.

1. Although I am unprepared to reject his contentions out of hand, upon the evidence led upon this application I am not persuaded that the applicant has made out a case upon either s 23(a) or 23(f) of the Judicial Review Act 1991. It is impossible to embark upon a merit review by way of rehearing.

1. The application is refused.