Steinback v Queensland Corrective Services Commission - [1998] QSC 226

IN THE SUPREME COURT
OF QUEENSLAND

No. 4829 of 1998
Brisbane

Before White J
[Steinback v Queensland Corrective Services Commission]
BETWEEN:

MARK IVAN STEINBACK
Applicant

AND:

QUEENSLAND CORRECTIVE SERVICES COMMISSION

Respondent

CATCHWORDS: Judicial Review - whether a subsisting decision - other relief sought - whether an alternative statutory remedy - ss.13, 48 Judicial Review Act.

Counsel:Mr M Plunkett for respondent.
Mr M I Steinback on his own behalf.

Solicitors:Crown Solicitor for respondent.
Mr M I Steinback on his own behalf.

Hearing Date: 19 October, 1998

REASONS FOR JUDGMENT - WHITE J

Judgment delivered 27 October 1998

This is an application for review of a decision of the authorised delegate of the respondent Commission dated 20 May 1998 refusing to grant the applicant, Mr Steinback, remission of his sentence on the basis that he represented a risk if released unsupervised. Mr Steinback seeks relief in this application in respect of a number of other matters.
Chronology
Mr Steinback was convicted of one count of indecent dealing with his 10 year old daughter and one count of attempted incest when she was 12 years after a trial on 29 March 1995. The events giving rise to those charges occurred in 1987 and 1989 respectively. Mr Steinback was found not guilty of other charges. He was sentenced on 28 April 1995 to 2 years imprisonment for the indecent dealing charge and 4 years imprisonment for the attempted incest to be served concurrently. No recommendation of eligibility to apply for parole earlier than the statutory scheme in s.166 of the Corrective Services Act 1988 was made by the sentencing judge, or any recommendation for counselling or therapy.
Mr Steinback’s initial sentence management plan provided for a release to work eligibility date of 28 July 1996, home detention eligibility date of 29 November 1996, parole application eligibility date of 29 March 1997, remission release date of 26 September 1997, and a full time release date of 28 March 1999 (affidavit of applicant, exhibit “Y” in app. no. 11068/97). These dates are slightly different in the present application but it is of no relevance to this proceeding.
On 19 September 1997 Mr Steinback was refused remission on his sentence and was given written reasons on 27 October. On 20 November he made an application for judicial review of that decision (no. 11068 of 1997).
On 3 April 1998 Derrington J granted Mr Steinback’s application on the ground that the delegate had not addressed the correct question as framed by the Court of Appeal in McCasker CA No. 10495 of 1997 decision of 19 December 1997, namely, whether Mr Steinback constituted an unacceptable risk involving concern for the need to protect members of the community against the risk of serious physical harm.
On 20 May 1998 remission was refused by the delegate of the Commission. On 29 May Mr Steinback filed this application for review of that decision. Derrington J gave directions by consent for the further conduct of this hearing on 29 June 1998. When the matter came on before Byrne J on 21 September 1998 it was not ready to proceed and his Honour gave directions concerning the filing of material by the Commission and ordered the hearing to be adjourned to 19 October.
On 6 October 1998 an authorised delegate of the Commission considered Mr Steinback’s application for remission, revoked the earlier decision of 20 May 1998 and granted his application. Mr Steinback was released absolutely from the custody of the Commission on that date (affidavit of Robyn Ann Gregory filed by leave 19 October 1998).
Mr Steinback, who appears on his own behalf, nonetheless wishes to proceed with his application.
Application to Stay or Dismiss Application
In the circumstance of the grant of remission the Commission has applied to have Mr Steinback’s application stayed or dismissed pursuant to s.48 of the Judicial Review Act on the grounds set out in the section, namely, that it would be inappropriate for the proceedings to be continued or to grant the application or, alternatively, that no reasonable basis for the application is disclosed, or, in the further alternative that the application is frivolous or vexatious or an abuse of process of the Court.
Other Matters
Before dealing with that application it is convenient to mention the other matters which Mr Steinback seeks to have rectified by this hearing. He seeks a mandatory injunction to correct erroneous particulars of his sentence held on the Commission’s database. He seeks an order that a sex offender’s course be offered in compliance with s.18(2) of the Corrective Services (Administration) Act 1988 and in conformity with the Body of Principles for the Protection of All Persons Under Any Form of Detention or Imprisonment adopted by the General Assembly of the United Nations, resolution 43/173 of 9 December 1988, under the auspices of the United Nations High Commissioner for Human Rights, and in particular Principle 21 which prohibits forced confessions. He seeks an extension of time for his daughter, Tammy Steinback, to claim compensation for being procured for sexual purposes (not by him) and otherwise not protected by law. He seeks costs.
Whilst none of these matters are in relation to a reviewable decision identified for the purposes of this application, Mr Steinback has been heard and Mr Plunkett has made submissions which have been of assistance.
Grounds of Review
Mr Plunkett who appears for the Commission concedes that the decision complained of on 20 May was made under an enactment and that Mr Steinback is a person aggrieved.
Mr Steinback contends that the making of the decision was:
·an improper exercise of the power to grant remission because the respondent
-took into account irrelevant considerations which were, in brief, that by not acknowledging his offending conduct it was not possible to complete programs designed to develop strategies and skills to increase self control and thus eliminate risk to the community.
-failed to take into account relevant considerations, namely, that Mr Steinback was entitled to plead not guilty, that the sentence management records included an incorrect description of the more serious offence - incest rather than attempted incest; that Mr Steinback was excluded from participation in the sex offenders programs because it was concluded that he only wished to do so to demonstrate that he was innocent of his convictions; that there was no appropriate course for one who wished to preserve the possibility of a retrial (necessarily not admitting guilt) on the ground of fresh evidence; that there ought to have been a gradual release into the community program for him;
·that the decision of the delegate was done for an improper purpose and in bad faith by persisting in maintaining the incorrect record of conviction in contempt of ss. 94 and 356 of the Criminal Code; by ignoring the reasons for decision of Derrington J; that the delegate knew of the loss of vital evidence relevant to his case whilst in custody; the delegate took advantage of her power and the disability of the applicant being self represented;
·acted otherwise contrary to law.
Although Mr Steinback states in his affidavit he was not granted procedural fairness, this relates to the alleged failure of the Commission to provide an appropriate course which would not require him to admit his guilt and not to want of procedural fairness as understood in a review sense in respect of the delegate’s decision.
Application to Stay or Dismiss
Mr Steinback seeks orders quashing or setting aside the decision of 20 May and directing the Commission to reconsider its decision. The subject decision has ceased to exist. It has been revoked. The Commission has power to do so, s.24A Acts Interpretation Act 1954. From 6 October 1996 the Commission has had no supervisory or other power over Mr Steinback and there is no longer any reviewable interest in the relief sought. Although Mr Steinback has not done so expressly, by maintaining his application he is, in effect, seeking declaratory relief, which the court may give in an appropriate case, s.30, Judicial Review Act. Whilst the power is discretionary it is necessarily confined, as the majority (Mason CJ, Dawson, Toohey and Gaudron JJ) observed in Ainsworth v Criminal Justice Commission (1992) 175 CLR 564 at p. 582:
“Hence, declaratory relief must be directed to the determination of legal controversies and not to seeking abstract or hypothetical questions see In Re Judiciary and Navigation Acts (1921) 29 CLR 257. The person seeking relief must have “a real interest”, Forster (1972), 127 CLR, at p.438, per Gibbs J; Russian Commercial and Industrial Bank v British Bank for Foreign Trade Ltd. [1921] 2 AC 438 at p.448, per Lord Dunedin, and relief will not be granted if the question “is purely hypothetical”, if relief is “claimed in relation to circumstances that [have] not occurred and might never happen” University of New South Wales v Moorehouse (1975), 133 CLR 1 at p.10 per Gibbs J or if “the Court’s declaration will produce no foreseeable consequences for the parties” Gardner v Dairy Industry Authority (NSW) (1977), 52 ALJR 180, at p.188, per Mason J; see also p.189, per Aickin J; 18 ALR 55, at pp. 69, 71 respectively.”
There are here no foreseeable consequences for Mr Steinback arising out of the revoked decision and the application ought to be dismissed. I shall make some mention of the other matters which concern Mr Steinback although I shall not mention detailed aspects of them.
Rectification of Sentence Computer Record
Mr Steinback seeks relief by way of mandamus to correct the particulars of his sentence in the computer records of the Commission. The document exhibit “CB” to the affidavit of Mr Steinback filed on 13 July 1998 is headed “OFFENDER MANAGEMENT INFORMATION SYSTEM OFFENDER’S PARTICULARS OF SENTENCE”. Charge 2 dated 29 March 1995 has adjacent the word “INCEST”. The next word is a handwritten addition “/ATT”. Robyn Gregory deposes in her affidavit filed by leave on 19 October 1998 that the Commission is required to report on a range of issues to the Australian Bureau of Statistics and this includes the types of offences for which prisoners are imprisoned. To assist this process staff of the Australian Bureau of Statistics and the Commission developed a set of offence codes from a Bureau publication entitled The Australian National Classificaiton of Offences. She deposes that in the construction of the automated program a code for an offence of “Attempted Incest” was not included. This is the explanation for the hand notation in respect of Mr Steinback’s Management Information Systems. The offence is printed, that is, not hand-written, as “INCEST ATTEMPTED” on the Sentence Management Review documents of the Commission (exhibits “CP” and “CQ” to Mr Steinback’s affidavit filed 13 July 1998).
Mr Steinback has been aggrieved because he has endeavoured to have this matter rectified over a lengthy period of time. The certification of conviction from the District Court at Ipswich erroneously certified that he was convicted of incest rather than attempted incest, (exhibit “U” to Mr Steinback’s affidavit filed 8 December 1997 in app. No. 11068/97. This had implications for him insofar as his post imprisonment employment was concerned.
Mr Steinback maintains that relevant officials have breached ss. 94 and 356 of the Criminal Code which deal with the issue of false certificates by public officials and officers charged with duties relating to liberty. There is no power in those provisions to correct prison records even if, which I greatly doubt, they extend to this situation.
It is not clear now what decision Mr Steinback is seeking to challenge since there appears at some stage to have been a decision to correct the prison records to reflect the attempted incest conviction correctly.
Mr Plunkett submits that an adequate alternative remedy under the Freedom of Information Act 1992 is available and therefore must be dismissed pursuant to s.13 of the Judicial Review Act in any event.
It would seem that Mr Steinback proceeded through the prison Visitor or Ombudsman to correct the record. There is correspondence with Crown Law. Section 53 of the Freedom of Information Act provides that if a person has had access to a document from an agency containing information relating to the person’s personal affairs, the person is entitled to apply to the agency for correction of any part of the information if it is inaccurate. Mr Plunkett concedes that the Commission is an agency to which the Freedom of Information Act applies. The application must be in writing giving particulars of the manner in which the information kept by the Commission is inaccurate and specifying the amendments sought to be made, s.54. The agency may then amend the information should it decide to do so, s.55. After receiving an application to rectify, the agency must act expeditiously but in any event not later than 30 days after the day on which the application is received, s.57. Provision for review is contained in the Act.
Even if there was a competent application before the court, I conclude that there is provision in the Freedom of Information Act whereby Mr Steinback is entitled to seek rectification of his records which he is able to identify, by the Commission.
Sex Offender’s Course
Mr Steinback maintains that inadequate or inappropriate courses are available for sex offenders within the prison system. Section 18(2) of the Corrective Services (Administration) Act 1988 deals with the development and administration of services and programs for the purposes of assisting prisoners to be absorbed into the community. Mr Steinback seeks an order that in the future such courses should be appropriate for someone in his position who does not wish to admit guilt of the offence. Principle 21 of the United Nations Body of Principles to which I have referred prohibits undue advantage being taken of a detained or imprisoned person for the purpose of compelling him to confess.
Mr Steinback further complaints that the existing courses require the participants to talk about the offence in a group situation and in so doing are compelled to offend against s.6(1) of the Criminal Law (Sex Offences) Act 1978 which prohibits publication of a complainant’s identity. That issue is hypothetical since Mr Steinback’s release.
On this matter Mr Steinback seeks an order which goes to issue of policy which is not within the purview of the Judicial Review Act. The ambit of this court’s jurisdiction to deal with the nature of and participation in sex offenders’ courses in Queensland prisons has been canvassed in a number of decisions of this court, including McCasker CA No. 10495 of 1997. It does not involve any jurisdiction to review matters of policy. The United Nations Principles, to which Mr Steinback refers, have been adopted by the General Assembly of the United Nations. They are not contained in any international convention or treaty and are not part of the internal law of Queensland. Neither could they have generated any legitimate expectation of any relevant kind with respect to participation in what Mr Steinback would describe as an appropriate sex offender’s course.
The remission has now been granted and there is no relevant decision where the content of any such course might in some way be able to be introduced for the purposes of review of the decision.
Extension of Time for Compensation to Daughter
The applicant seeks an order for an extension of time for his daughter, Tammy Therese Steinback, to claim compensation “for being procured for sexual purposes and otherwise not protected by law, as is a child’s right”. This relates to conduct of others in respect of his daughter. In the course of the hearing I explained to Mr Steinback that irrespective of the appropriateness or otherwise of introducing that matter into an application for review of a decision relating to his remission, it was for his daughter to make an application for an extension of time. She is an adult. Mr Steinback explained that she was unable to make the application because of the loss of certain evidence during the period of Mr Steinback’s detention. It can form no part of an application for judicial review by Mr Steinback.
Other Matters
Mr Steinback has exhibited a quantity of material to his affidavit (and his earlier application material) in support of his application which deals with complaints about his treatment by the Commission. Although he maintains that he was reclassified and generally treated adversely as a consequence of Derrington J’s decision, those are not issues to be resolved on this application.
Conclusion
Mr Steinback has used the vehicle of the judicial review application to ventilate many of his grievances against the Commission. He has been permitted to develop these in oral submissions to the extent that seemed reasonable but they are not appropriately connected to the application.
The application for review is dismissed.