McCasker v Queensland Corrective Services Commission - [1997] QCA 455

IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND

Appeal No. 10495 of 1997

Brisbane

BeforeMacrossan CJ
Pincus JA
Helman J

[McCasker v Queensland Corrective Services Commission]

BETWEEN:

SHAUN PATRICK McCASKER
(Applicant) Appellant

AND:

QUEENSLAND CORRECTIVE SERVICES COMMISSION
(Respondent) Respondent

Judgment delivered 19 December 1997

Separate reasons for judgment of each member of the Court, Macrossan C.J. and Helman J. each concurring as to the order made, Pincus J.A. dissenting.

APPEAL DISMISSED WITH COSTS

CATCHWORDS: JUDICIAL REVIEW - Decision - appeal from judicial review of decision by respondent denying appellant remission of sentence - whether unacceptable risk to the community posed by appellant an irrelevant consideration - observations as to the respondent’s discretion to grant or deny remission of sentence.

Ex parte Fritz (1992) 59 A.Crim.R. 132
Felton v. The Queensland Corrective Services Commission [1994] 2 Qd.R. 490
R v. Rogers (1987) 8 N.S.W.L.R. 236
R v. Evans (1987) 8 N.S.W.L.R. 540
Hoare v. The Queen (1989) 167 C.L.R. 348
Watt v. The Queen (1988) 165 C.L.R. 474
Broadbridge v. Stammers (1987) 76 A.L.R. 339
R v. Criminal Injuries Compensation Board; ex parte Lain [1967] 2 Q.B. 864
R v. Wardley; ex parte Burton [1976] Qd.R. 286
R v. Collins; ex parte A.C.T.U. - Solo Enterprises Pty Ltd (1976) 50 A.L.J.R. 471
Hot Holdings Pty Ltd v. Creasy (1996) 185 C.L.R. 149
R. v. Panel on Take-overs and Mergers, ex parte Datafin P.L.C. [1987] Q.B. 815
Patchett v. Leatham [1949] 65 T.L.R. 69
Gillick v. West Norfolk and Wisbech Area Health Authority [1986] A.C. 112
Acts Interpretation Act 1954
Corrective Services Act 1988
Corrective Services (Administration) Act 1988
Corrective Services Regulations 1989
Judicial Review Act 1992

Counsel:Mr J. Davidson for the appellant
Mr M. Hinson for the respondent

Solicitors:Boystown Legal Service for the appellant
Crown Solicitor for the respondent

Hearing Date: 24 November 1997

REASONS FOR JUDGMENT - THE CHIEF JUSTICE

Judgment delivered 19 December 1997

I have had the advantage of reading the judgments of Pincus JA and Helman J where the facts, the issues and the relevant statutory provisions are set out. I have reached the conclusion that the appeal should be dismissed and while I agree generally with the reasons of Helman J, I wish to add some reasons of my own. In this I shall avoid unnecessary repetition.
The challenge to the decision of the delegate argued below and on the appeal involved the assertion that as a result of the appellant’s having been accepted as being “of good conduct and industry”, no basis remained on which remission could be withheld. That is, the contention was that there was no remaining discretion to be exercised.
This argument should not be accepted. The words of regulation 21 of the Corrective Services Regulations 1989 are clearly against it. The regulation is structured on the premise that the “good conduct and industry” qualification entitles a prisoner to consideration for remission but does not assure the grant of it. The discretion to grant or refuse remission will properly…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading McCasker v Queensland Corrective Services Commission

Details

AGLC: McCasker v Queensland Corrective Services Commission [1997] QCA 455
Case: [1997] QCA 455
Decision Date: 19 December 1997

CaseChat Overview and Summary

The appeal in McCasker v Queensland Corrective Services Commission concerned the decision of the Queensland Corrective Services Commission to deny Shaun Patrick McCasker remission of his sentence. The appellant, who had been imprisoned for indecent treatment of a child under the age of sixteen years, argued that the decision was based on irrelevant considerations, namely the risk he posed to the community if released without supervision. The appeal was dismissed by the Supreme Court of Queensland, with Macrossan CJ and Helman J concurring in the order made and Pincus JA dissenting.

The central legal issue was whether the Queensland Corrective Services Commission had the discretion to consider the risk to the community in deciding whether to grant remission to a prisoner who had been of good conduct and industry. The court held that the Commission did have such discretion, as the Corrective Services Regulations 1989 and the Corrective Services Act 1988 did not limit the exercise of the discretion to factors relating solely to the prisoner's conduct in prison.

The reasoning of Macrossan CJ and Helman J was that the remission system was intended to encourage good conduct and industry in prison, but it was not the sole justification for the system. The court found that the risk to the community posed by the release of a prisoner without supervision was a relevant consideration in the exercise of the discretion. The appellant's extensive criminal history, the nature of the offence committed, and the psychologist's assessment that he presented a high risk of reoffending were all factors that could be taken into account in deciding whether the prisoner posed an unacceptable risk to the community if released without supervision.

In contrast, Pincus JA held that the decision was unlawful as the delegate had not followed the terms of the delegation under which he purported to act. Pincus JA found that the delegate had failed to apply the criteria set out in the delegation, which required consideration of the exceptional nature of the offence and the risk of serious physical harm to the community. Instead, the delegate had focused on the risk of reoffending without considering whether it involved a risk of serious physical harm.

The final orders of the court were to dismiss the appeal with costs. Macrossan CJ and Helman J held that the decision of the Queensland Corrective Services Commission was lawful and should be upheld. Pincus JA, while dissenting, also agreed that the appeal should be dismissed with costs.

Orders