John Darren McCallum v The Commissioner of Corrective Services of New South Wales

[2001] NSWSC 208

CITATION:	John Darren McCallum v The Commissioner of Corrective Services of New South Wales [2001] NSWSC 208
FILE NUMBER(S):	SC 30036/2000
HEARING DATE(S):	21 March 2001
JUDGMENT DATE:	27 March 2001
PARTIES :	John Darren McCallum The Commissioner of Corrective Services of New South Wales
JUDGMENT OF:	Sully J

COUNSEL :	Plaintiff - in person Defendant - R. J. Bromwich
SOLICITORS:	Plaintiff - in person Defendant - I. V. Knight - Crown Solicitor
LEGISLATION CITED:	Crimes (Administration of Sentences) Act 1999 (NSW) Crimes Act 1900 (NSW) Correctional Centres Routine Regulation
DECISION:	Plaintiff's summons dismissed; No order as to costs; Exhibits may be returned

SUPREME COURT OF
NEW SOUTH WALES
ADMINISTRATIVE LAW DIVISION

SULLY J

27 March 2001

30036/2000 - John Darren McCALLUM v THE COMMISSIONER OF CORRECTIVE SERVICES OF NEW SOUTH WALES

JUDGMENT

1   HIS HONOUR: Mr. McCallum, the plaintiff, is a prisoner at present detained at the Long Bay Correctional Centre. By a summons filed originally on 10 May 2000, and amended by a document filed in Court on 30 May 2000, the plaintiff seeks against the Commissioner of Corrective Services:

(1) A declaration that provisions of the Corrective Services Departmental Policy (“the Policy”) respecting the classification of sex offenders are ultra vires in that the Crimes (Administration of Sentences) Act 1999 (NSW) , (“the Administration Act”), does not authorise them.

(2) A declaration that particular provisions of the Policy which allow a prisoner to be classified as a sex offender by reason of his previous convictions for sex-related offences are an abuse of powers and unreasonable in the case of a prisoner who, when so classified, is serving a sentence, not for a sex-related offence, but for a wholly unrelated type of offence.

(3) An order quashing a decision to classify the plaintiff as a sex offender when the plaintiff was not serving, when so classified, a sentence passed upon him in connection with a sex-related offence.

(4) An order preventing the Commissioner from treating the plaintiff after 30 April 2000, for the purposes of classification and of parole, as a sex offender.

(5) A declaration that the plaintiff is not a prisoner liable to be denominated a public interest inmate, as defined by by Section 18.4.3 of the Policy.

(6) An order that the Commissioner pay the plaintiff’s costs should the plaintiff be successful in the proceedings.

2   At the hearing of the summons it was agreed that the relevant general background is as follows.

3   On 30 September 1993 the plaintiff was sentenced to six concurrent fixed terms of imprisonment of seven years each. The sentences were passed upon the plaintiff in connection with six sexual offences. The plaintiff was so sentenced following upon verdicts of guilty returned by a jury at trial. The sentences were back-dated to 1 May 1993, and they expired, therefore, on 30 April 2000. It is not necessary to canvass the factual detail of the offences. It is sufficient to say that, on any reasonable reckoning, they were very grave offences.

4 An appeal to the Court of Criminal Appeal was dismissed on 13 April 1995. The plaintiff made, subsequently, two separate applications for inquiries under Section 474D of the Crimes Act 1900 (NSW). Both such applications were rejected, the first of them on 18 November 1997, and the second of them on 14 October 1998.

5   When the plaintiff stood for sentence in connection with the six sex-related offences of which I have spoken, he stood simultaneously for sentence in connection with two robbery offences. The two robbery offences were wholly unconnected with the six sex-related offences. In connection with the two robbery offences, the plaintiff was sentenced to concurrent sentences of seven years’ imprisonment, apportioned between a minimum term of three years and an additional term of four years. These sentences were made cumulative upon the six concurrent fixed sentences of seven years’ imprisonment. In other words, the plaintiff commenced on 30 April 2000 to serve the sentences that had been passed upon him in connection with the two robbery offences; and he will have served the concurrent minimum terms of three years on 29 April 2003.

6   On 12 December 2000 the plaintiff’s prison classification was reviewed, and it was recommended that his then classification as a C1 inmate be relaxed to a category C2 classification. The necessary approval was given to that recommendation on 20 December 2000, on which date the plaintiff’s re-classification to level C2 came into effect. That classification is current and is scheduled for further review on 10 June next.

7   In connection with the classification of prison inmates it is convenient to note that there are, speaking broadly and so far as is at present relevant, five relevant categories ranging from A1 to C3. Category A1 is the category with the most onerous incidents, and category C3 is the category with the least onerous incidents. The relevant official definitions of categories C1 and C2 are as follows:

“Category C1. Those who, in the opinion of the Commissioner, should be confined by a physical barrier unless in the company of an officer.
Category C2. Those who, in the opinion of the Commissioner, need not be confined by a physical barrier at all times but who need some level of supervision.”

8   Mr. McCallum represented himself at the hearing of his summons. He put with all necessary clarity his essential arguments, which can be summarised as follows:

(1) He maintains now, as he always has maintained, his innocence of the sex-related offences in respect of which he was sentenced on 30 Septermber 1993.

(2) He does not accept, therefore, that there is any need for him to attend courses, accept counselling, or otherwise “address his offending behaviour” , (to quote the relevant Departmental idiom), in connection with those sex-related offences.

(3) Any requirement to the contrary which has been made of him since 30 April 2000, the date of the expiration of the sex-related sentences, is an unlawful additional punishment.

(4) Because no additional term, or parole eligibility term, was set in respect of the sex-related sentences, those sentences are now fully spent, and they cannot have any lawful bearing upon his eligibility for parole, that eligibility deriving from sentences wholly unconnected to the sex-related sentences.

(5) It has been made plain to him that he will be adversely affected, by reason of the matters mentioned in (2) above, in any application that he might make for admission to a works-release programme preparatory to admission to parole. Such an attitude is unlawful; or, if lawful, is so unreasonable that the Court ought to prevent the translation of the attitude into actual effect.

(6) The proposition that he is liable to be classed, and treated as, a public interest inmate is misconceived by reason of the fact that the six separate sex-related offences with which he was charged; for which he was tried by, and of which he was convicted by, a jury; and for which he was sentenced; were in truth but one offence.

9   I shall deal in turn with each of the claims for relief made in paragraphs (1) to (5) inclusive of the summons.

As to the relief claimed in paragraph 1 of the summons

10   The Administration Act repeals and replaces, speaking generally and relevantly, an antecedent statute, the Correctional Centres Act 1952 (NSW). There are several Schedules to the Administration Act, of which Part 2 of Schedule 5 deals with certain matters consequential upon the repeal and replacement of the 1952 Act. Clause 18 of Part 2 provides that certain nominated regulations, which had been previously made pursuant to the regulation-making powers contained in the 1952 Act: “are taken to be regulations made under ………………… (the Administration Act) ……………….and may be amended and repealed accordingly”.

11   One of the regulations thus preserved and, so to speak, carried over into the regime established by the Administration Act is the Correctional Centres (General) Regulation 1995. This Regulation continues in an amended form under the new title: Crimes (Administration of Sentences) (Correctional Centres Routine) Regulation 1995, [“the Correctional Centres Routine Regulation”].

12   Division 2 of the Regulation makes comprehensive provision for the classification of inmates for purposes of security and of the implementation of development programmes. It is sufficient for present purposes to note that various clauses of Division 2 establish a table of classifications; require that every inmate be classified by the Commissioner into one of the prescribed categories; empower the Commissioner “to review and vary the classification of inmates from time to time”; and provide for certain procedures of consultation and recommendation by the Serious Offenders Review Council, a body established under the Administration Act, of any such proposal by the Commissioner to review or vary the classification of a serious offender, into which latter category the plaintiff does not fall, having regard to the length of the sentences passed upon him in 1993.

13 So far as concerns the proper standing of the Commissioner and his staff in the process of classification, the foregoing legislative provisions need to be considered in conjunction with, in particular, Section 232 of the Administration Act which provides:

“(1) The Commissioner
(a) has the care, direction, control and management of all correctional complexes, correctional centres and periodic detention centres, and
(b) has all other functions conferred or imposed on the Commissioner by or under this or any other Act or law.
(2) In the exercise of the functions referred to in subsection (1) (a) and (b), the Commissioner is subject to the direction and control of the Minister.
(3) The Commissioner may delegate to any person any of the Commissioner’s functions, other than this power of delegation.”

14   Exhibit B in the present proceedings is a bulky document entitled “Inmate Classification and Case Management Procedures Manual”, (“the manual”). It was published in October 2000 with the authority of the Commissioner. The intended status of the manual is described in its Foreword as follows:

“This manual which is to be incorporated within the Operations Procedures Manual, outlines the procedures to be followed by staff in all correctional centres for case managing inmates from reception to release. This replaces any previous case management and classification procedures and orders and compliments (sic) the Case Management Policy of the Department.”

15   I have treated this manual as embodying what the plaintiff has described in various parts of his summons as a departmental “Policy”.

16   Section 13 of the manual lays out a precise methodology respecting the classification of inmates. The present extracts from Section 13 are relevant for present purposes:

“The classification and placement of an inmate MUST be an outcome of the inmate’s case plan. (Refer section Case Plan). It is to be determined as part of a comprehensive and detailed case plan designed to address his/her individual and identified needs.
In carrying out the provisions of the legislation there is to be a presumption that an inmate will always obtain a significant rehabilitative benefit from programs, especially external leave programs, unless his/her behaviour clearly indicates the contrary.”
and:
“8. In determining an appropriate security classification for a sentenced inmate the Case Management Team (CMC in the MRRC) must also bear in mind that the severity of an offence is indicated by the length of the minimum term/s imposed by the Court/s . Other important considerations are the inmate’s previous criminal history and behaviour in custody. Attention is to be paid to security level and related behaviour when last released from custody. Special considerations apply to female inmates. (Refer section Classification - Women)
9. The security classification and placement of inmates should, whenever possible, largely be determined by an assessment of risk and criminogenic need factors rather than by program performance, down to and including C2/Cat 2 level (C1/Cat 2 serious offenders). Inmates assessed as being low risk should progress to these levels without a pre-requisite for program participation.
NOTE: Until formal assessment of risk factors for all inmates is automatic, the security classification of inmates should not include a pre-requisite for program performance (‘Addressing Offending Behaviour’) unless such a requirement is recommended in specific terms by the Sentencing Court or through assessment of an inmate’s behaviour while in custody. This is only to apply up to and including C2/Cat 2 (C1/Cat 2 serious offender inmates).
10. Inmates assessed as being high risk and who refuse to participate in programs available aimed at reducing their assessed risk factors are not to progress to a minimum security level (C1, C2/Cat 2, C3/Cat 1) until successful participation occurs.
11. All sentenced inmates who are known to have committed a sexual offence (even if uncharged) must be referred to the Regional Senior Psychologist for a risk assessment (Refer section Sex Offender Programs). Inmates with histories of sexual violence must be screened to determine suitability for contact with children before being allowed into situations (e.g. visits) where such contact can occur.”
[ The first of the above quotations is from page 73 of the manual; paragraphs 8, 9, 10 and 11 are quoted from pages 76 and 77 of the manual.]

17   As previously mentioned, the process of classification as laid down in the manual is required to form part of an integrated case plan particular to the inmate whose classification is under consideration. Section 15 of the manual lays out a series of case plan development criteria for various categories of inmate. One such category is that of the “sex offender”. The term itself is not defined in section 15; but what is intended appears sufficiently from the following extracts from section 15:

“Criteria for sex offender programs
The Sex Offender Programs are only available to sentenced offenders. In addition, an inmate who is alleged to have committed an offence for a sexual reason (e.g. convicted for break and enter, but information suggests motive was sexual) MUST be referred to the Regional Senior Psychologist, for a risk assessment. The Sex Offender Risk Assessment form must be completed by the Case Management Team and a copy of the form sent to the Statewide Clinical Co-ordinator Sex Offender Programs. An inmate assessed as presenting a low risk of re-offending in a sexual manner will normally not be required to participate in a Sex Offender Program and may progress through the normal case management process in the centre of placement.
Referrals to Sex Offender Programs must be made on the appropriate form. The inmate must be a minimum security classification before being accepted into the program………………………………………………..”

18   A representative example of a “sex offender program” as thereafter outlined in section 15 is:

“ESO (EDUCATION FOR SEX OFFENDERS)
ESO is offered as a preparation for treatment for offenders in denial, and as the only type of intervention appropriate for individuals of low risk/needs who do not qualify for treatment programs. This Program is group-based and routinely run at Kirkconnel and the MSPC. Depending on need and availability of qualified staff, it can also be offered in Berrima and Windsor.
The program consists of 7 to 8 group sessions each of two hours length. The groups cater for a minimum of 8 and a maximum of 16 participants.
Referrals
Information about ESO can be obtained through the psychologist at the correctional centre where the inmate is housed. Referral is through the normal case management process.”

[The above quotations are from pages 105, 106 of the manual.]

19   In my opinion, the plaintiff’s contention that the foregoing scheme of classification and case management is, so far as concerns sex offenders, ultra vires the powers of the Commissioner, is incorrect. The combined effect of the wide powers and duties respectively conferred and imposed by the operation of section 232 of the Administration Act, and the Correctional Centres Routine Regulation, is in my opinion sufficient to empower the Commissioner to authorise such precise procedural and policy guidelines as are contained in the manual.

As to the relief claimed in paragraphs 2, 3 and 4 of the summons

20   The short answer to the plaintiff’s contentions is, in my opinion, that the contentions misconceive the plaintiff’s true inmate history and status.

21   On 30 September 1993 eight separate sentences of imprisonment were passed upon the plaintiff. Six of them dealt with serious sex-related offences. Between 1 May 1993, when those six sentences commenced, and 30 April 2000, when they expired, the plaintiff was plainly in custody in the character of a sex offender howsoever that term might be defined as a matter of ordinary English usage.

22   It is the case, as the plaintiff points out in his submissions, that the six sentences were passed in the form of concurrent fixed terms: that is to say, that no parole-eligible portion of the total sentence was nominated.

23   There was, of course, an important reason for that approach by the sentencing Judge, namely, the reason that the Judge imposed, simultaneously with the six sentences for sex-related offences, two cumulative sentences for robbery offences. Because the Judge was sentencing at the one time for eight separate offences; and because two of the eight sentences were to be cumulative rather than concurrent; the Judge was required to set one parole period for all eight sentences; and that parole period was required to be reasonably proportioned to the total period to be served in custody on account of all eight of the sentences passed simultaneously. The parole period of four years relates, therefore, to the totality of the plaintiff’s criminality. That totality is expressed, in terms of years, as being fourteen years of which not less than ten years will be served in full-time custody. Throughout those ten years the plaintiff’s status is that of both a convicted sex-offender and a convicted robber. So to treat the plaintiff for the purposes of his integrated classification and case management is, in my opinion, neither an abuse of power nor unreasonable.

As to the relief claimed in paragraph 5 of the summons

24   This claim for relief is, I think it would be correct to say, the practical centrepiece of the summons. The plaintiff’s concern is that his treatment by the Commissioner as a public interest inmate will affect adversely his prospects for admission to an appropriate work-release programme in anticipation of his eventual release to parole at the expiration of the full-time custodial component of the sentences that he is serving.

25 A consideration of this aspect of the plaintiff’s present claims for relief is commenced conveniently by noting the relevant provisions of Section 26 of the Administration Act which are:

“(1) The Commissioner may issue a permit (a local leave permit ) allowing an inmate to be absent from a correctional centre:
(a) on such conditions and for such period as may be specified in the permit, and
(b) for such purposes as the Commissioner considers appropriate.
(2) Without limiting subsection (1)(b), the purposes for which a local leave permit may be issued including the following:
….
(f) enabling an inmate to apply for work or attend an interview with an employer or prospective employer,

(g) enabling an inmate to attend a place of education or training in connection with any course of education or training in connection with any course of education or training,
(h) enabling an inmate to engage in employment specified in the permit,
(i) enabling an inmate to have weekend leave.
(j) enabling an inmate to reside at a transitional centre,
(k) enabling an inmate to attend tuition or perform work in connection with a course of education or training being undertaken by the inmate,
………………………………………………”

26 Section 18 of the manual lays out a comprehensive framework for the practical application to the case of any particular inmate of the Commissioner’s powers under section 26. The following policy guidelines form part of that comprehensive framework, and illustrate why the plaintiff attaches such importance to his steady and fair progression towards an appropriate section 26 status:

“4 Work Release, Stage 1 - enables inmates to take part in full/part time paid employment under the same employment conditions as members of the general community. An assessment period which includes at least two successful Day Leaves is a requirement before employment can be entered into.
Inmates on Work Release are subject to random urine testing and breathalysing.
Part-time work release is permitted provided that inmates continue to seek full-time employment and/or undertake relevant educational courses relevant to employment on non-workdays.
Week-end Leave is available every 28 days provided an inmate’s conduct and industry is maintained at a satisfactory level on this program.
Work Release, Stage II - Work Releasees/Full-time students become eligible for weekend leave EVERY WEEKEND if they are within the last six months of their EPRD and have served half the time available to them on the program. (This is calculated by dividing the period between the date of entry on the program to the expiry date of custody.)
A Governor may approve inmates on this Stage to proceed to Leave directly from their work or place of education and to return to the centre on Sunday at a time determined by the Governor.
………………………………………….
Inclusion in these programs is not routine nor an automatic entitlement and may only be considered if there is a proper Case Plan in place which demonstrates the inmate will benefit by participating in the program. In general, an inmate must have performed at a satisfactory standard in conduct, industry and training within a reasonable time before applying and have made genuine efforts to address underlying issues which have been determined as contributing to his/her offending.”
[Manual at 145, 146, 147]

27   The manual delineates certain pre-conditions to the granting of a section 26 permit. Among other requirements is one that, in the case of a male inmate, an application “……………..must be within 18 months of effective ………………….(earliest possible release date) ……………….AND have served half the minimum term of custody. Application can be earlier than 18 months prior to …………….. (earliest possible release date). However, if approved, the privilege will not commence until the inmate is within the 18 months of the ………………..(earliest possible release date). ……………….”

“Public Interest inmates, male and female, cannot participate in external pre-release programs unless the Commissioner has first given approval after considering a recommendation from the Pre-Release Leave Committee.”
[Manual at 148.3, 148.7]

28   So far as is relevant to the plaintiff’s case, the Commissioner treats an inmate as a public interest inmate if the inmate: “……….has been convicted of two (2) or more counts of sexual offending, within the past 10 years against any person regardless of the age of the victim. This inmate may be serving currently a sentence for any offence”. [Manual at 165]

29 In the case of such an inmate, the Commissioner will routinely refer any section 26 application to the body, previously herein mentioned, and known as the Pre-Release Leave Committee, (“PRLC”), when the applicant is an inmate who is not classed as a serious offender, as defined in section 3 of the Administration Act, but whose participation in external, unescorted, pre-release leave programs may not be, nevertheless, in the public interest.

30   The PRLC is a sub-committee of the Serious Offenders Review Council established by the Administration Act. The Council has, among its other statutory functions, certain functions that are prescribed by clause 185 of the Correctional Centres Routine Regulation of which I have earlier herein spoken. The relevant portions of clause 185 are:

“(1) …………..The functions of the Review Council include the providing, at the request of the Commissioner, of reports, advice and recommendations to the Commissioner with respect to:
…………….. and
(b) the security classification of an inmate who has applied, under section 26 of the Act, for permission to be absent from a correctional centre unescorted to enable him or her to adapt to normal community life (“pre-release leave”), and ………………
(d) such other matters as are specified by the Commissioner.
(2) The Review Council must review an application for pre-release leave referred to it and make such recommendations to the Commissioner in respect of the application as it thinks fit.
(3) If the Review Council recommends the granting of an application for pre-release leave, the Commissioner must, when deciding whether or not to grant the application, take into account:

……………………………and
(b) in any case - whether or not it is in the public interest.”

31   These particular functions of the Council are delegable to a Committee of the Council; see clause 186A(1)(b); and such a delegation is the foundation of the existence, and of the authority, of the PRLC.

32   The relief now claimed from this Court is based upon an argument to the following effect:

(1) The six separate sex-related counts in the indictment upon which the plaintiff was brought to trial in 1993 all arose out of one incident;

(2) This entails that the true nature of the plaintiff’s status as a convicted sex-offender is that he has not really been convicted of two or more counts of sexual offending, because the true intent of the Commissioner’s policy in that regard is to deal with inmates who are, in a real sense, repeat sex offenders;

(3) A person who, on one occasion, commits a succession of sex-related offences upon a single victim is not, in such a real sense, a repeat sex offender.

33   In my opinion this reasoning is plainly incorrect. It overlooks the facts: that the plaintiff was charged with six distinct offences; was tried for, and found guilty by a jury of, all of them; and was sentenced, correctly in law and justly in fact, upon each such verdict and consequent formal conviction. It is one thing to say that the law required, as it undoubtedly did, that the sentencing Judge have regard, in actually fixing a specific term of years of imprisonment, to the totality of the plaintiff’s criminal behaviour towards his victim. It is a wholly different thing to say that the law regards six successive sexual assaults as somehow becoming transformed into only one sexual assault because of the mere circumstance that the offender did not take a distinct break between individual assaults. The contrary submission is wrong alike in law, in logic, and in fact.

34   In my opinion the Commissioner and his appropriate staff are entitled to regard the offender as satisfying the relevant definition as previously quoted.

Further considerations arising from the plaintiff’s submissions at the hearing of the summons

35   As I have earlier noted, the plaintiff was self-represented at the hearing. The particular submissions of the plaintiff, as he raised and argued them, have been transcribed, and a transcript is available, should it be necessary to have it for future reference, in the Court file.

36   It is only fair to acknowledge that the plaintiff has an obvious, and if I may say so an obviously genuine, sense of grievance about what he sees as real and significant unfairnesses in connection with aspects of his case management. In deference to that sense of grievance I propose to make the following observations about certain of the particular submissions put by the plaintiff. I shall take as a convenient basis for that exercise the summarised submissions as I have set them out at paragraph 8 of this judgment.

37   As to the summarised submission 1.: It is by no means unusual in the experience of the Court that a person who has pleaded not guilty to a particular charge, but has been found guilty nevertheless, thereafter continues to protest that, despite the verdict of guilt, he is in fact innocent of the crime charged. This is the plaintiff’s stance in connection with the six sex-related offences of which he was found guilty.

38   The plaintiff is entitled to maintain his innocence. It is, however, the case that the plaintiff cannot expect that the Commissioner and his relevant staff will treat the plaintiff, as an inmate, upon the basis that, although the plaintiff has been tried, convicted and sentenced, he is nevertheless innocent of the offences that were the subjects of the trial, of the convictions, and of the sentences.

39   As to the summarised submission 2: This stance on the part of the plaintiff is consistent with the plaintiff’s continuing assertion of his innocence of the sex-related offences. The plaintiff is entitled to take such an attitude towards a departmental requirement that he “address his offending behaviour”; and it is entirely a matter for the plaintiff, - but subject, of course, to the lawful requirements otherwise of prison discipline and administration, - to decide whether or not he will in fact take and maintain that attitude.

40   It is, however, important that the plaintiff be brought to understand clearly that he cannot, so to speak, have it both ways. If he persistently refuses to do what is suggested to him in the matter of addressing his offending behaviour, then he should not be surprised if those who are responsible for his management as an inmate take the view that a proper regard for the relevant public interest requires that he be treated in a way that allows for the fact that he does not acknowledge that the law regards him as having committed serious criminal offences of such a character as to require a very careful consideration of the protection of the public against any reasonably perceived risk of the commission, upon release, of further such offences.

41   As to the summarised submission 3: This submission misconceives the nature of what is entailed in the continuing refusal of the plaintiff to accept that his proper case management as an inmate requires those who are responsible for that management to deal with the plaintiff’s case upon the basis that he has been lawfully tried, convicted and sentenced in respect of each of six serious and sex-related offences.

42   It is true that, the proper and lawful punishment of particular breaches of prison discipline to one side, it is no part of the proper functions of the Commissioner and his staff to punish inmates in their care. The punishment of offenders against the criminal law is the proper remit of constitutionally independent Judges sitting in constitutionally independent Courts. That concept has, however, no relevance to the reasonable exercise by the Commissioner and his staff of those powers, duties and functions that are lawfully committed to the Commissioner and his staff by, relevantly, the Administration Act and its accompanying Regulations. It has to be borne in mind always that it is a principal legislative purpose that those powers, duties and functions that the Legislature has committed to the Commissioner and his staff should have a practical operation such as will ensure, as best it can be done, that members of the public are protected against the reasonably perceived risk that an inmate, if released back into the general community, will re-offend. To say that a work-release application by the plaintiff will be considered on its merits, but that such consideration will embrace among other things the proper weighting of the plaintiff’s attitude towards his criminality respecting the sex-related offences, is by no means to say that it is proposed to punish the plaintiff further, and unlawfully, by reason of his attitude in that respect. It is to say, simply, that any consideration of the plaintiff’s work-release application, must take into account, because that is what the relevant provisions of the Act and Regulations require, a properly considered assessment of the potential relationship between the plaintiff’s attitude towards his prior offending, and his likely attitude, upon release, towards future offending.

43   As to the summarised submission 4: I have earlier herein explained that, in my opinion, this submission misconceives the true nature of the sentencing exercise that was carried out in September 1993. I cannot add usefully to what I have earlier said in that regard.

44   As to the summarised submission 5: There are two particular pieces of evidence that explain why the plaintiff puts this particular submission.

45   Both pieces of evidence were put in by the plaintiff. Their proper context, as that context appears from the entirety of the evidence put forward by the plaintiff in support of his summons, is one in which the plaintiff has agitated and protested to relevant authorities against what he sees as his unfair treatment at the hands of the Commissioner and his staff. It is the course of that agitation and protest that has given rise to the two particular pieces of evidence of which I have spoken.

46   One of those pieces of evidence is a memorandum addressed to the plaintiff by a Deputy Governor of the Long Bay Correctional Centre. It was received by the plaintiff on 17 August 1999. The memorandum is very much to the point. It reads:

“(1) It’s up to you to address your offending behaviour.
(2) Your classification and Parole may be related to whether or not you address your offending behaviour.
(3) Even if your last offence is not a sexual offence, you are classified as a sex offender as a result of past offences.”

47   The second of the two pieces of evidence is a letter written to the plaintiff by the Commissioner on 23 September 1999. It contains the following paragraph:

“There is an expectation that inmates will progress through the classification levels while in custody by participating in approved programs. I note from your letters that you are in denial of your offence and that you are not interested in participating in programs to address your offending behaviour. Accordingly, you would be considered to be at a high risk of re-offending and therefore an unacceptable risk to progress to external leave programs.”

48 If this paragraph were to be taken out of context and read literally, it might well be regarded as conveying an attitude which is not only peremptory, indeed minatory, in tone, but also indicative of an attitude that any section 26 application by the plaintiff will not be considered on its merits overall, but will be considered adversely by reference to, and only to, the consideration to which the Commissioner specifically refers.

49   It is, fortunately, unnecessary to consider further what consequences might then follow. It is unnecessary because learned counsel appearing for the Commissioner at the hearing of the summons gave the Court, upon instructions, an assurance that there is no standing impediment generally, and there is no standing impediment particular to the plaintiff, in the form of any requirement that he “address his sex-related problems” in any particular fashion, before a regularly made application for work-release will be considered on its merits. Whether there is a continuing such attitudinal problem, and if so its extent, will be matters considered with all other relevant matters in connection with the due consideration of any such application.

50   It seems to me that this assurance, given in open Court and upon the Commissioner’s specific instructions, sufficiently meets the substance of the plaintiff’s submission that I am now considering. It is useful to recall, in addition, that as earlier explained, a work-release application by the plaintiff, if properly made, will attract the consideration not only of the Commissioner himself, but also of the PRLC.

51   As to the summarised submission 6: I cannot add usefully to what I have earlier said on this topic.

Conclusion and Orders

52   For the whole of the foregoing reasons I have come to the conclusion that the plaintiff is not entitled to any of the forms of relief sought by him in his summons. I make, therefore, the following orders:

(1) The plaintiff’s summons is dismissed.

(2) I make no order as to costs.

(3) The exhibits may be returned.

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Last Modified: 03/28/2001