Mathews v Queensland Community Corrections Board
[2001] QSC 71
•16 March 2001
SUPREME COURT OF QUEENSLAND
CITATION: Mathews v Queensland Community Corrections Board [2001] QSC 071 PARTIES: ALLAN ROY MATHEWS
(applicant)
and
QUEENSLAND COMMUNITY CORRECTIONS BOARD
(respondent)FILE NO: 352 of 2001 DIVISION: Trial Division DELIVERED ON: 16 March 2001 DELIVERED AT: Brisbane HEARING DATE: 11 January 2001 JUDGE: Mackenzie J ORDER: 1. The respondent provide to the applicant within 21 days a statement of reasons for the decision notified by letter of 10 October 2000.
2. The respondent pay the applicant's costs of and incidental to the application to be assessed.CATCHWORDS: ADMINISTRATIVE LAW – JUDICIAL REVIEW ON GROUNDS OF ULTRA VIRES OR DEFECTIVE EXERCISE OF POWERS – ABUSE OF DISCRETIONARY POWER – GIVING REASONS – the applicant, a prisoner, is requesting reasons for a decision made by the Queensland Community Corrections Board – whether application under Pt 4 of the Judicial Review Act 1991 – whether there was a decision to which the part applies – whether sufficiency of reasons already given.
Corrective Services Act 1988 (Qld), s174
Judicial Review Act 1991 (Qld), Pt 4, s31, s32, s36, s37
COUNSEL: JC Davidson for applicant
CJ Clark for respondentSOLICITORS: Goodfellow & Scott, Solicitors for the applicant
Dibbs Barker Gosling Lawyers for respondent
MACKENZIE J: This is an application under Pt 4 of the Judicial Review Act 1991 (Qld) for reasons for a decision concerning release on parole. It is in dispute whether there was a "decision to which the Act applies" and as to the sufficiency of reasons already given. The applicant, who is serving a term of imprisonment for various sexual offences, sought by means of an application dated 16 March 2000 to be released on parole on 30 April 2000.
Solicitors then acting for him wrote a letter on 19 April 2000, the day after the applicant was interviewed in connection with the application, submitting that he be granted parole as soon as possible. It included the following:
""We are instructed that at his last sentence management review our client was advised that prior to being granted parole, he must complete a sexual offenders' treatment program at the Wolston Correction Centre. Mr Mathews attended the first 18 of the 30 sessions of the SOIP course when he was told that he could no longer attend because he had breached the confidentiality requirements of the course. Our client has literacy problems and has, for the past 2 years, received tutoring from a fellow prisoner. After seeking the permission of one of the officers on duty our client sought assistance from that fellow in reading the module for the SOIP course. We are instructed that at no time has our client discussed anything of a confidential nature regarding the other course participants with persons not involved in the course.
We understand that at the Moreton Correctional Facility it is possible for prisoners to complete a sexual offenders' treatment program with assistance from friends and/or family. At the Wolston Correctional Centre our client has not been afforded that opportunity. It is for this reason that our client has sought assistance from a fellow prisoner to help him overcome his literacy problems in his attempt to complete the course. We are of the view that the Wolston Correction Centre's decision to terminate our client's attendance at the SOIP course is, in the circumstances, grossly unfair.
Other than complete the sexual offenders' treatment program, our client has at all times willingly done everything else required of him. Our client wishes to complete the SOIP program as part of his parole. We are instructed that our client is willing to undertake any further treatment that may be required as part of his parole."
On 26 June 2000 the respondent, through its secretary, wrote to the applicant's solicitor advising the following:
"Mr Mathews attended 20 sessions of the S.O.I.P.. At the end of each of those sessions, participants were offered individual assistance from the facilitators. At no time did Mr Mathews seek help of his own volition, although the facilitators did organise some assistance sessions with him.
It was discovered that another inmate (not a programme participant), who has a tertiary qualification in psychology, was helping Mr Mathews with his programme homework. It appears that the inmate's help went quite beyond aiding Mr Mathews to read. There was an incongruity between Mr Mathews' homework and the work he completed in class. It was in those circumstances that he was expelled from the course.
The Board has particularly taken into account the sentencing Judge's recommendation, Mr Mathews' satisfactory prison behaviour, and the other programmes he has completed while in custody. However, in the circumstances of his case, and particularly his apparent dishonesty during the programme most relevant to addressing his offending behaviour, the Board is not willing to approve his early release from custody unless and until he has satisfactorily completed the Sexual Offenders' Intervention Programme, as a minimum requirement.
That was also the view taken by a Community Corrections Assessment Unit who interviewed Mr Mathews in June 1999, a Regional Community Corrections Board which considered his case in August 1999, and a psychiatrist who assessed Mr Matthews in September 1999."
The next letter from the applicant's solicitors was on 28 June 2000 inquiring about the extent of credit he would get for partial completion of the course. The reply was that it was not a matter for the Board, but for those conducting the program.
On 6 September 2000 the solicitors requested reconsideration of the application, suggesting that the Board had overlooked or failed to properly consider the applicant's good behaviour in prison and the circumstances surrounding his exit from SOIP. The thrust of the letter was that the applicant denied the truth of the allegation that he had breached confidentiality, and that a statement from the other prisoner corroborated that the only assistance given was in understanding the questions, and that he did not help the applicant answer them.
It was asserted that the other prisoner had only helped with literacy problems and had done the same with other prisoners participating in the program with the knowledge of the authorities. It was alleged that the applicant had not been given the opportunity to respond to the allegations that he had breached confidentiality of the group and received improper assistance.
The letter then referred to the delay in being able to begin the course again. It said that the applicant was prepared to complete SOIP while on parole, that there was no statutory basis for requiring completion of it before parole was granted and that it was understood that conditional release on that basis was not uncommon and that it was appropriate in the applicant's case. The letter asked the Board to reconsider the application in the light of the submissions.
On 10 October 2000 the Secretary of the Board advised that the Board had "carefully considered" the submission but in the particular circumstances of the applicant's case had decided not to alter its previous view.
On 23 October 2000 the solicitors asked for a written statement of reasons under s32 of the Judicial Review Act as to why the "application for release to community based supervision" had been refused. The applicant himself had also requested a statement of reasons on 20 October 2000.
On 13 November 2000 the Secretary of the Board replied that as the Board's decision was conveyed by letter of 26 June 2000, the request for reasons was made outside the prescribed period and that the Board was not willing to exercise its discretion in favour of giving a statement of reasons. He went on to say that:
"In summary though, it seems to the Board that, having regard to the nature, circumstances and extent of Mr Mathews' offending behaviour, it would be in both his, and the community's, best interests if he were to complete a Sex Offenders Intervention Programme before leaving custody. The circumstances surrounding his expulsion from a previous programme have been canvassed before, and the Board's view of that matter was described in the letter of 26th June."
Prior to that, there had been a letter of 27 October 2000 from the Secretary of the Board in which it was stated that all that had happened was that additional consideration of the applicant's application had been deferred until he had satisfactorily completed a SOIP.
The applicant's current solicitors wrote on 6 December 2000 asserting that the request for reasons related to a "decision made not to grant parole, made when the Board reconsidered this matter on or about 10 October 2000".
On 12 January 2001 the Secretary of the Board replied, again maintaining that the Board did not reconsider the application on 10 October 2000, because there was no sensible basis upon which to do so. It was stated that because there was no reconsideration, the original decision stood and that that was what was intended to be conveyed by the letter of 10 October 2000. The Board's position on the merits had been made clear in the letter of 26 June 2000.
Before me, the applicant submitted that what the Board did on 10 October 2000 was to "refuse to grant parole after considering all material before it". Counsel for the respondent submitted primarily that it had not embarked on a decision making process leading to acceptance or rejection of the application for parole on 10 October 2000 because there was no fresh or new material upon which to embark on such a process. It was submitted that what was done on 10 October 2000 was not "a decision to which the Act applies".
Relevantly the Judicial Review Act defines a decision to which the Act applies as a decision of an administrative character made or proposed to be made or required to be made under an enactment. "Making a decision" includes:
(a) making or refusing to make an order;
(b) giving or refusing to give an approval or permission; and
(g) doing or refusing to do anything else.
In Pt 4 a "decision to which this part applies" is a decision to which the Act applies but does not include:
(a)a decision that includes or is accompanied by a statement giving the reasons for the decision; or
(b)a decision included in a class of decisions set out in schedule 2.
The exclusion in par (b) does not apply. It is in dispute whether the exclusion in par (a) applies.
Section 174 of the Corrective Services Act 1988 (Qld) provides that if the Board refuses an application for parole, the Board shall determine a period of time within which a further application for parole shall not be considered, in no case more than 6 months after the refusal. There is also a requirement to give reasons in writing for refusing the application.
The respondent's primary submission was that the letter of 26 June 2000 was a decision to refuse parole which complied with the requirements in s174(b) that reasons for refusal be given. I note that there is no evidence that s174(a) was complied with. The letter does not refer to any set finite period for further consideration. The only event which would trigger further consideration, so far as the letter is concerned, is completion of SOIP. If a time in compliance with s174(a) was set there is no evidence of it before me. However, such a non-compliance ought not be a bar to an application to review a decision or to seek reasons for a refusal if there were a decision and grounds for those forms of relief otherwise existed.
The application before me is not presented as an application to review or obtain reasons for what was decided in June 2000, but as an application for reasons of what the Board's submissions describe as a decision not to embark on the decision making process leading to acceptance or rejection of the application for parole because there was no new material upon which to embark on such a process.
The Board's alternative submission was that the letter of 26 June 2000 sufficiently complied with the obligation to give reasons under s174 of the Corrective Services Act and with s31(a) of the Judicial Review Act. It was submitted that if the letter of 10 October 2000 conveyed a "decision" it could not be viewed in isolation. It had to be construed in conjunction with the letter of 26 June 2000 and that, read together, the letters were sufficient to comply with the requirements of the law.
The letter of 26 June 2000 is relevantly quoted in paragraph [3] above. It acknowledged the applicant's satisfactory prison behaviour and the courses he had completed. It expresses the conclusion that the applicant had been dishonestly obtaining assistance beyond assistance with reading, from a prisoner qualified in psychology, evidenced by incongruity between the standard of homework and of class work. It also referred to the fact that the conclusion that SOIP should be completed before release had also been reached during other assessments.
In view of the reference to satisfactory behaviour otherwise, it is difficult to maintain, as the letter of 6 September 2000 did, that the Board had overlooked or failed to consider it. The letter of 6 September 2000 also focused on contradicting the contents of a sentence management report of 20 July 2000 (which is subsequent to the decision in June 2000 and is not before me). It was to the effect that the applicant had admitted serious breaches in connection with the program, including a breach of confidentiality of group members by discussing, outside an appropriate forum, issues they had disclosed, and obtained inappropriate assistance with his homework assignments. The letter went on to state that the only admission made concerned obtaining help with reading and understanding the homework questions and that the statement from the other prisoner confirmed this.
The letter of 19 April 2000 makes it plain that by 18 April 2000, or perhaps before that date, the applicant was aware of the reasons similar to those advanced in the sentence management report of 20 July 2000 for terminating his membership of the SOIP course. The letter also denied disclosure of anything of a confidential nature regarding the other course participants to persons not involved with the course and advanced the explanation that the applicant was receiving tutoring from a fellow prisoner in connection with his literacy problems in his attempt to complete the course.
It is in that setting that the complaint in the letter of 10 October 2000 that the applicant had never been given an opportunity to respond to the allegations of breach of confidence and receiving improper assistance and the respondent's position that the Board had considered the submission of 6 September 2000 but in the particular circumstances of the case had decided not to alter its previous view must be considered. It might well be thought that the only additional element over and above the Board's allegations and the applicant's denials of them prior to the decision in June 2000 is the allegation that there is now a statement from the other prisoner supporting the applicant's version of events. As against this, the letter of 10 October 2000 might reasonably be construed as conveying that notwithstanding the additional material, the Board had made a further decision not to allow the applicant parole without completing SOIP.
The letter of 13 November 2000 seems to treat events in October 2000 as not being a further decision. The letter of 12 January 2001, after stating that the letter of 6 September 2000 had been considered, went on:
"That letter was considered and the response of 10th October sent to Hemming & Hart. As the Board's letter mentioned, the solicitor's submission was considered. The Board concluded that the submission did not raise any matter of substance of which it was not previously aware. All the submission did was to regurgitate matters already known, and add some inconsequential detail. In those circumstances, there was no need to move to the next step of reconsidering the application itself.
...Mr Mathews' application was not reconsidered because in the Board's view there was no sensible basis on which to do so. Because it was not reconsidered, the original decision stood. That was what was intended to be conveyed in the letter of 10th October.
So far as the merits of the case are concerned, the Board's position was made clear in its letter of 26th June 2000."
In neither of the letters is there any explanation of how the Board approached the supporting evidence of the other prisoner. The material before me, is silent as to whether the fact that he would support the applicant's version was known at the time of the decision in June 2000, or if so, what led the Board to reject it then, or to reject it in October 2000 if it was not known until the letter of 6 September 2000.
In the context of decision making in the correctional system, it would not be surprising if information came from sources which fall within a category of privileged information. In the present case there is no certificate under s36 of the Judicial Review Act which would invoke the possibilities under s37. It is not apparent whether the kind of information to which reference has been made is a factor in the case, or whether the construction placed on what the applicant did is the product of an inference from objectively ascertainable information, or a combination of both. Whatever the situation is, the value judgment inherent in the passages quoted above necessarily implies formation by the Board of a further conclusion that the further submissions made did not change its opinion that he should complete SOIP before being released.
In this area of law, individual facts will be of critical importance in determining the outcome. In many cases, of which this is one, the decision will not establish any principle likely to be replicated in other cases. While the matter is somewhat borderline, and presents before me in a rather unsatisfactory state, I conclude on the information presently before me that there was a decision to which the Act applies in October 2000 and that the request for reasons should have been complied with. The information conveyed by the letter of 26 June 2000, standing alone or supplemented by the later letters, is insufficient to qualify as reasons for the October decision. Accordingly, I order that the respondent provide to the applicant within 21 days a statement of reasons for the decision notified by letter of 10 October 2000. I order the respondent to pay the applicant's costs to be assessed.
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