Mott v Qld Community Corrections Board

[1997] QSC 225

IN THE SUPREME COURT
OF QUEENSLAND

Brisbane  No. 3812 of 1997

Before the Hon. Mr Justice Mackenzie

[Mott v. Qld Community Corrections Board]

BETWEEN:

MELVIN THOMAS MOTT
  Applicant

AND:

QUEENSLAND COMMUNITY CORRECTIONS BOARD
  Respondent

JUDGMENT - MACKENZIE J.

Judgment delivered 2 December, 1997

CATCHWORDS: JUDICIAL REVIEW - decision of Queensland Community Corrections Board not to grant parole - whether was quorum conforming with s.137(2) Corrective Services Act 1988 - whether onus of proof discharged to displace presumption of existence of valid instrument of delegation - no signed original of instrument able to be produced, only unsigned documents stamped “copy” - whether refusal to grant parole based on requirement unable to be fulfilled due to policies of QCCB - Board’s finding that not satisfied protection of community could be assured; whether could be set aside - distinction drawn between lack of reinforcement from external source and risk of re-offending against suggested course of action to provide external reinforcement. 

Corrective Services Act 1988 s.20, s.132(3), s.137(2), s.139(1), s.207.

Counsel:Applicant appeared on his own behalf.

Mr B Thomas for the respondent.

Solicitors:Applicant appeared on his own behalf.

Crown Solicitor for the respondent.

Hearing date:          27 November 1997

IN THE SUPREME COURT
OF QUEENSLAND

Brisbane  No.3812 of 1997

Before the Hon. Mr Justice Mackenzie

[Mott v. Qld Community Corrections Board]

BETWEEN:

MELVIN THOMAS MOTT
  Applicant

AND:

QUEENSLAND COMMUNITY CORRECTIONS BOARD
  Respondent

JUDGMENT - MACKENZIE J.

Judgment delivered 2 December 1997

The applicant is serving a sentence of life imprisonment for murder.  The application for judicial review of the Board’s decision not to grant parole was not argued with specific reference to the sections of the Judicial Review Act 1991 to which reference is made in the application. There were two grounds upon which submissions were made orally. The first was that there was not a quorum conforming with s.137(2) of the Corrective Services Act 1988. It was submitted that one person participating in the consideration of the application, Mr Stewart, was not a member of the Board. However, when the nature of the point taken became apparent, it was submitted that he was appointed pursuant to s.132(3) to be the Director-General’s Deputy as a member of the Board. As the Director-General is an ex officio member of the Board and is empowered to appoint an officer of the Commission as Deputy, the Board was therefore properly constituted for the purposes of considering the application.

When I requested that evidence of the appointment be provided, an original signed copy could not be located in the Commission’s records. However, unsigned documents stamped “copy”, which are, on their face, a nomination for Mr Stewart to act as a member of the Board pursuant to s.132(3) and a letter to the Board’s Secretary advising him of that nomination, were found. Mr Kennedy, Secretary of the Board, deposes that Mr Stewart was one of the members of the Board present on 23 April 1996 when the applicant’s application was heard.

Section 207 of the Corrective Services Act creates a presumption in any proceedings that a person who purports to do anything for the purposes of the Act pursuant to the authority of an instrument of delegation shall be presumed to have acted in accordance with a valid instrument of delegation unless the contrary is proved.

The effect of this is that the onus is on the applicant to prove that Mr Stewart was not acting in accordance with a valid instrument of delegation.  While no instrument has been located, the existence of a document marked “copy” is in my view, some if slight evidence of a valid delegation, with the result that the onus on the applicant has not been discharged on the balance of probabilities, with the result that there was a quorum present when the application for parole was heard. 

The other matter argued requires careful analysis of the Board’s decision.  The point relied on by the applicant was that the Board’s refusal to grant him parole was based upon a requirement which could not be fulfilled having regard to policies of the Corrective Services Commission.  The passage of the Board’s notification to the applicant that his application was refused which needs to be analysed is the following:-

“The Board considered that you are genuine in wanting not to re-offend, and that you had a positive commitment to succeed and avoid doing so.  The Board was impressed at the degree of self-analysis which you had attempted by yourself, and at your successful negotiation of lengthy periods of work release and your good conduct on previous occasions of release to the community.  The Board thought that you had a positive attitude to the future and to your present condition, and that, despite your long term in prison and the set-backs you have suffered in your attempts to be released, you present with a well-integrated personality.

The Board also considered that you were obviously intelligent enough to understand the point that it will now attempt to make with you.  Your history is one of impulsive offending in situations where it is extremely irrational to re-offend, but in which you have done so.  It appears that now you do have strong feelings of compassion, and a very large need to love, be loved and to affiliate with other people.  Despite this, you appear to have rather “backed off” from relationships with adult women, and you appeared to have had perhaps more emotional contact with pubescent or adolescent girls on the occasions of your release to the community.  The Board noted that your feelings of compassion tended to be expressed more in your feelings about such young females in whom your own interest could be detected, and was concerned that these feelings could easily lead to a situation where there was a great need felt by yourself for hugging and touching.  The Board thought that any such situations would contain the risk for you of further impulsive and irrational action.

The Board considered that you have perhaps been trying to do too much on your own, and that what you presently lack are strategies for helping you in your genuine desire to avoid re-offending.  The Board is concerned that by yourself you have not yet developed to a sufficient degree the coping strategies and relapse prevention strategies that will be necessary to allow your unrestricted release to the community and to help you identify and prevent the development of a situation where re-offending sexually might re-occur.  The Board thought that without such strategies you are capable of being a dangerous “uncle” to young females without your realising the risk.

What the Board asks you to consider is whether you are prepared to participate in a sexual offenders treatment programme with respect to the offences which you admit having committed, and one-on-one counselling about those matters.  This suggestion from the Board is not put forward as an expedient to delay your release.  The Board hopes that you may agree that such a programme and/or counselling with others can increase your acceptance and comprehension of your past conduct and the internal controls that you will actually need in the future in the community.

The Board will recommend that, if you decide to participate in either the sex offender intervention programme or sexual offender treatment programme, you be given priority for admission to such programme.”

The applicant tendered a document entitled “Ministerial Guidelines to the Queensland Community Corrections Board”. It is a document authorised by s.139(1) of the Corrective Services Act 1988. No objection was taken to its tender. The first of the “basic premises” referred to in the guidelines is the following:-

“1.1When considering whether a prisoner should be released from custody to a community based programme the priority for the Queensland Community Corrections Board should always be the protection of the community.”        

There is also a guideline relating to refusal of an application.  The relevant portion is to the effect that the Board should give an indication to the prisoner and to the Commission of improvements and/or activities considered prerequisite to serious consideration of a further application by the prisoner for community based release.  The first part of the Board’s reasons in the passage quoted above accepts that the applicant is genuine in wanting not to re-offend and has a positive commitment to succeeding and avoiding doing so.  However the Board said that his history was one of impulsive  offending in circumstances where it was extremely irrational to re-offend. 

The Board accepted that he had strong feelings of compassion and a need to love, be loved and affiliate with others but said despite this he appeared to have “rather backed off from relationships with older women” and appeared to have had perhaps more emotional contact with pubescent or adolescent girls on the occasions of his release into the community in the past.  

The Board noted that his feelings of compassion tended to be expressed more in his feelings about such young females in whom his interest could be detected.  It expressed concern that these feelings could easily lead to a situation where he felt the need for hugging and touching.  The Board thought that such a situation would contain the risk of further impulsive and irrational action. 

The Board accepted that he had given a great deal of thought and applied a lot of self-analysis to his situation but felt that that may have been insufficient for him to have developed coping strategies and relapse prevention strategies to a sufficient degree to allow unrestricted release to the community and to help him identify and prevent development of a situation where commission of a further sexual offence may occur.  That passage can only be reasonably construed as a clear indication that while the Board accepted that the applicant was desirous of avoiding the commission of further offences he had not to the Board’s satisfaction demonstrated that he had developed strategies for avoiding it if temptation was put in his way.  That is a valid consideration where protection of the community is one of the basic premises upon which release to a community based programme must be considered. 

In the passage quoted above the Board also expressed the view that because of the applicant’s history of sexual offences in the past and because of the Board’s view that there had been at least some tendency to focus on young girls rather than others in his descriptions of his associations while he was unsupervised in the past, he should have his own good intentions reinforced by further counselling either through a sexual offenders treatment programme or on a one to one basis to ensure that he could cope with a situation where temptation may be put in his way. 

The applicant’s point was that at the time that the decision was made there was no basis upon which a prisoner in his position could participate in the formal Sexual Offenders Treatment Programme and no facility for one to one treatment.  He also observed that he had in the past engaged in individual treatment with psychiatrists.  The decision to refuse parole was made after the applicant had appeared before the Board on 23 April 1996, during which appearance he answered numerous questions from a member or members of the Board.  The questioning covered, amongst other things, his social relationships and thoughts over the years.  The decision focuses upon the Board’s assessment of his present capacity to be released on parole.  The applicant requested that the members of the Board and other persons named in Exhibit 1 be summoned as witnesses.  I am not satisfied that, having regard to the nature of the application and the way in which the Board formulated its decision, calling those persons as witnesses would relevantly advance the matter.

The applicant’s difficulty is that if the Board was not satisfied that the protection of the community could be assured after he had had the opportunity to put his case for release in person in detail it is exceedingly difficult to attack that finding.  No cogent reason for setting it aside was advanced.  It is not tenable to say that the Board’s reference to participation in the Sexual Offenders Treatment Programme or counselling invalidates that decision.  The structure of the Board’s decision differentiates between the finding that without reinforcement from an external source there was a risk of re-offending and the suggested course of action to provide that external reinforcement.  In effect the Board is saying that without external reinforcement, despite the sincere efforts of the applicant, a risk of re-offending remains but counselling may minimise it.  The incongruity which concerns the applicant is that he believes he is unable to undertake those measures while in prison due to current policies. 

Mr Thomas for the Board submitted that the decision should be construed as an indication that if the applicant chose to seek to participate in either form of programme it would recommend that he  be given priority for admission.  It is premature to speculate what the outcome of any such steps might be although it was said by the applicant without contradiction that under current policies a prisoner serving life imprisonment is not admitted to the formal Sexual Offenders Treatment Programme and is not at the present time given one on one counselling.  It is unnecessary, premature, and unproductive to speculate what might be the consequences in the event that the kind of assistance suggested by the Board remained unavailable to the applicant after he had sought to obtain it.  A different range of considerations including resource and management implications, may come into play.  It is sufficient to say that on the present application the Board came to the conclusion, after a lengthy personal interview with the applicant, that the members were not satisfied there was not a risk of re-offending, but that if his own genuine endeavours could be reinforced by counselling, whether in a group or individually, that may result in the kind of concern which the Board had being removed.  The point being made was that adequate coping mechanisms, as to which the Board was not satisfied, might be developed as a result of counselling.  That was a conclusion to which the Board might properly come. 

In addition to the specific matters argued, I have had regard to the matters raised under the specific subsections of s.20 referred to in the Grounds of Application and the written submissions. The result is that I am not persuaded that any of the grounds upon which review is sought are made out. The application is dismissed with costs to be taxed.