TW v Director-General of the Justice and Community Safety Directorate
[2019] ACTSC 300
•30 October 2019
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | TW v Director-General of the Justice and Community Safety Directorate |
Citation: | [2019] ACTSC 300 |
Hearing Date: | 3 October 2019 |
DecisionDate: | 30 October 2019 |
Before: | Crowe AJ |
Decision: | See [57] |
Catchwords: | PRACTICE AND PROCEDURE – Application in Proceeding to strike-out Originating Application for Judicial Review – failure to identify an error – no identifiable cause of action – Originating Application struck-out JUDICIAL REVIEW – Plaintiff seeks review of Static 99 Tally Sheet completed as part of parole determination process – whether the Tally Sheet was erroneously completed – whether a different version of the Tally Sheet should have been used – whether the interpretation of the Coding Manual used to complete the Tally Sheet was erroneous – no factual error found – no error in Corrective Services using the Static 99 Tally Sheet – no error in the interpretation of the Coding Manual |
Legislation Cited: | Court Procedure Rules 2006 (ACT) r 3356 Crimes Act 1914 (Cth) s 19AL Supreme Court Act 1933 (ACT) s 34B |
Cases Cited: | Hoyle v Director General, Corrective Services [2019] ACTSC 226 R v TW [2011] ACTCA 25; 6 ACTLR 18 Wingfoot Australia Partners Ltd v Kocak [2013] HCA 43; 252 CLR 480 |
Parties: | TW (Plaintiff) Director-General of the Justice and Community Safety Directorate (Defendant) |
Representation: | Counsel Self-represented (Plaintiff) N Oram (Defendant) |
| Solicitors Self-represented (Plaintiff) ACT Government Solicitors (Defendant) | |
File number: | SC 180 of 2019 |
Crowe AJ
The plaintiff (TW) filed an Originating Application (OA) on 12 April 2019 seeking the following relief:
(1)To review the decisions of the ACT Justice and Community Safety Directorate contained within the Pre-Release Reports on several occasions.
(2)To review the following conduct of ACT Justice and Community Safety Directorate:
To incorrectly record risk rating. (sic) And to act in bad faith.
(3)To grant declaratory relief.
(4)To grant other relief as the Court sees fit.
On 28 August 2019, the defendant filed an Application in Proceeding seeking to strike out all, or alternatively parts, of the OA. That application came on for hearing before me on 3 October 2019. At that time I reserved my decision.
Background
The details of the charges brought against the plaintiff are important as will be explained below. The following is the summary taken from the sentencing remarks of Nield AJ on 27 August 2010 at [14] – [19]:
On 22 January 2010 the offender was arrested and, after being arrested, he was taken to a police station where he was charged with the following offences:
(1) On 19 January 2010 possessing child pornography;
(2) Between 1 June 2009 and 19 January 2010 using a carriage service to access child pornography;
(3) On 28 August 2009 using a carriage service to distribute child pornography.
(4) Between 10 December 2009 and 10 January 2010 using a carriage service to transmit child pornography.
On 23 January 2010 the offender appeared before a magistrate in the ACT Magistrates Court and the proceedings were stood over to 12 February 2010 and he was granted bail.
However, on 2 February 2010 the offender was again arrested and, after being taken to the police station, he was charged with the following further offences:
(1)Between 1 January 2010 and 10 January 2010 committing an act of indecency upon child C, a person under the age of 10 years;
(2)Between 1 January 2010 and 10 January 2010 using child C for the production of child pornography;
(3)Between 3 April 2009 and 15 December 2009 using child C for the production of child pornography;
(4)Between 3 April 2009 and 8 April 2009 using child A for the production of child pornography;
(5)Between 26 November 2009 and 30 November 2009 using child B for the production of child pornography;
(6)Between 10 December 2009 and 15 December 2009 committing an act of indecency upon child C a person under the age of 10 years;
(7)Between 20 November 2009 and 30 November 2009 committing an act of indecency upon child B a person under the age of 10 years; and,
(8)Between 1 January 2010 and 10 January 2010 using child D for the production of child pornography.
On 3 February 2010 the offender again appeared before a Magistrate in the
ACT Magistrates Court and the further proceedings were stood over to 12 February 2010 and he was released on bail.On 12 February 2010 the proceedings related to the charges against the offender were stood over to 9 April 2010 and the offender’s bail was continued to that date.
However, on 18 March 2010 the offender was again arrested and, after being arrested, taken to a police station where he was charged with the following further offence:
(1)Between 18 February 2010 and 13 March 2010 possessing child pornography.
I note that this further offence was committed when the offender was on bail for the offences with which he had been charged on 22 January 2010 and 2 February 2010.
In relation to the charge referred to at paragraph [19] of his Honour’s remarks, the AFP Statement of Facts (as to which, see below) provided details of the plaintiff’s conduct leading to that offence. Relevantly, it disclosed that the plaintiff had stored copied child pornography material on a memory card which was not found by police when they executed a warrant against him on 19 January 2010. He came into possession of that card after he was released on bail in mid-February, 2010. He knew that the material was on the card. He said he wanted to “hang on to something” or keep it as “some kind of trophy”. On 12 March 2010, while he was at his former residence, he accessed a computer to transfer the material to an external hard drive. That had the effect of deleting it from his memory card. He intended to delete it from the hard drive but his wife handed it to police before he had a chance to do that.
The plaintiff pleaded guilty and was duly convicted of all charges. The Crown appealed the sentence imposed by Nield AJ and on 17 November 2011 the Court of Appeal allowed the appeal and re-sentenced the plaintiff to a total period of imprisonment of nine years and seven months, with a non-parole period of five years and six months (see R v TW [2011] ACTCA 25; 6 ACTLR 18 (R v TW)). The expiry date of the aggregate head sentence was 17 October 2019. He became eligible for parole on
17 September 2015.
In March 2015, the plaintiff applied for parole. Consequently, it became necessary for the delegates of the defendant to prepare a pre-release report addressing, among other matters, the risk of the plaintiff re-offending. The assessment of that risk included completion of a Static 99 Tally Sheet (the Tally Sheet). This sheet allocates a score with reference to certain characteristics and aspects of the detainee’s criminal history. The scores are weighted by reference to actuarial analysis. There is a detailed coding manual (the Coding Manual) to provide guidance for the completion of the Tally Sheet. The Coding Manual will be discussed further below.
The Tally Sheet was completed by an assessor identified only as “CG” on
24 April 2015. Question five on the tally sheet provided as follows:
Prior Sex Offences Charges Convictions Scores
None None 0
1-2 1 1
3-5 2-3 26+ 4+ 3
The assessor circled “6+” under “Charges”, and “4+” under “Convictions”. This gave the plaintiff a score of “3”. His total score was “6”. The nominal risk categories referrable to the scores are:
Points Risk Category
0,1 Low
2,3 Moderate-Low
4,5 Moderate-High6+ High
As can be seen, the scoring of the plaintiff resulted in a Static 99 assessment that he was at a high risk of re-offending.
That assessment was quoted in the pre-release report dated 3 June 2015. Notwithstanding that assessment, the authors of the report, by reference to the plaintiff’s behaviour in custody and his completion of the Adult Sex Offenders Program (ASOP), recommended that he be released on parole (subject to approval of certain accommodation).
On 20 July 2015, a report was prepared in relation to the plaintiff’s completion of the ASOP. Although generally positive, the report did include reference to the plaintiff remaining at a high risk of sexual re-offending. Having regard to the context, it seems likely that the authors of the report had read the outcome of the Static 99 assessment, or the reference to it in the pre-release report.
On 21 July 2015, the Sentence Administration Board (SAB) decided that the plaintiff should be released on parole on 17 September 2015 subject to certain conditions.
However, because the plaintiff had been convicted of offences against both ACT and Commonwealth laws, it was necessary for him to obtain a favourable parole decision from the Commonwealth Attorney-General (or delegate) under s 19AL of the
Crimes Act 1914 (Cth) in addition to the SAB decision. On 1 September 2015, a delegate of the Attorney-General refused the plaintiff’s parole. One of the reasons for that decision was expressed to be the assessment that he remained at a high risk of sexual reoffending.
The refusal notice noted advice from Corrective Services that specific psychological interventions might reduce the plaintiff’s risk of sexual re-offending. In response to that the plaintiff arranged counselling sessions with a psychologist.
On 1 December 2015, an updated parole report was provided. That report repeated much of what was in the previous report, including the high risk assessment. It noted that the plaintiff was receiving counselling, although it questioned whether that treatment was relevant to the reduction of his risk of re-offending. The recommendation in this report was against a grant of parole. The report did note that the plaintiff’s imprisonment for the ACT offences would expire on 17 March 2016.
On 15 February 2016, a further pre-release report was prepared. It repeated the reference to the high risk assessment and maintained the recommendation against release. On 26 February 2016, the delegate of the Attorney-General, in reliance on that recommendation and on the high risk assessment, again refused parole.
It is apparent from his correspondence dated 13 December 2016 that the plaintiff had become frustrated and disheartened by the parole process. He said that he was resigned to whatever decision the delegate proposed to make. On
14 February 2017, the delegate again decided to refuse parole, essentially for the reasons given for previous decisions.
On 8 August 2017, ACT Corrective Services issued another pre-release report. The authors referred to the Static 99 assessment, however they expressed some reservations about it having regard to developments, including an assessment by a forensic psychologist that the plaintiff’s risk of sexual re-offending was moderate-high. There was also some reference to the plaintiff having been in possession of a USB stick, which was a prohibited item in the prison. It was stated that the contents of the USB drive was being investigated. Overall, however, the report authors recommended release on parole.
A supplementary report was produced on 14 November 2017. It noted that although no illegal content had been found on the USB drive it did contain material which was inappropriate having regard to his offending background. That caused the authors to reconsider their recommendation for release. The recommendation was made against release on this occasion.
Unsurprisingly, the delegate decided on 13 February 2018 to refuse parole having regard to that recommendation.
A further pre-release report was prepared on 8 October 2018. It referred to the plaintiff as having been assessed in September 2017 as a high risk of sexual re-offending. Reference was also made to suspicion that he may have had USB contraband within the prison again, although there was no proof of this and consequently no disciplinary action. The report recommended against parole.
The final decision of the delegate made on 14 January 2019 was to refuse parole. The delegate relied upon the recommendation in the pre-release report and again referred to the high risk assessment.
Evidence
The evidence before me consisted of the following:
(1)A schedule of correspondence containing a letter from the ACT Government Solicitor to the plaintiff, dated 15 August 2019 and his response, dated
21 August 2019 (Exhibit “1”);(2)A supplementary schedule containing a letter from the ACT Government Solicitor to the plaintiff, dated 4 September 2019 and a copy of the Static-99 Coding Manual (Exhibit “2”);
(3)The plaintiff’s affidavit, affirmed on 1 May 2019 (Exhibit “3”);
(4)The plaintiff’s “Judicial Review Papers” consisting of copies of the documents 1-31 in the section headed “Parole Documents” (Exhibit “4”);
(5)Copies of the ASOP Exit Report dated 20 July 2015 and the Static-99 Tally Sheet dated 24 April 2015 (Exhibit “5”).
During the hearing on 3 October 2019, the plaintiff (who was assisted by
Mr C Tully as a McKenzie friend) handed up supplementary written submissions as to the correct method of completing the Static-99 Tally Sheet. This led Mr Oram, counsel for the defendant, to seek leave to file further submissions responding to those of the plaintiff. I granted that leave. The defendant filed those submissions together with a supplementary schedule containing a copy of the AFP Statement of Facts, a copy of the sentencing remarks of Nield AJ and a copy of the decision of the Court of Appeal in R v TW.
The leave I granted did not extend to the filing of further evidence. However, as
Mr Oram pointed out, the plaintiff in his supplementary submissions referred to the AFP Statement of Facts. It is appropriate therefore that I admit that into evidence so that I can understand the arguments put by the plaintiff. I have marked that document as Exhibit “6”. In relation to the other material, it seems to me that I am entitled to have regard to the sentencing remarks and the Appeal Decision insofar as they contain details of the convictions and the elements of the relevant charges. In The Prothonotary of the Supreme Court of New South Wales v Sukkar [2007] NSWCA 341 Hodgson JA (Tobias and Basten JJA agreeing), said at [9]:
The conviction of the opponent is evidence of the elements of the offence with which he was convicted, but not of the detailed facts found by the sentencing judge or by the Court of Criminal Appeal dealing with his appeal: Evidence Act 1995 (NSW) ss.91 and 92, Gonzales v. Claridades [2003] NSWSC 508, 58 NSWLR 188. The detailed facts set out in the Court of Criminal Appeal’s judgment R v Sukkar [2005] NSWCCA 54 may have some relevance to the opponent’s reputation, but cannot support findings by this Court as to what the opponent actually did, beyond the bare elements of the offence with which he was convicted.
In following that approach, it seems to me that this Court is applying the exception to
s 91 of the Evidence Act 2011 (ACT) provided by sub-s 92(2). I have therefore relied on the sentencing remarks for the summary set out in paragraph [3] above.
Submissions
Defendant
Mr Oram submitted that the only relevant “right” which could have been affected here was the plaintiff’s right to apply for parole. The opinions expressed in the pre-release reports were merely matters for consideration by the SAB (initially) and then by the Attorney-General or his/her delegate. They are thus not susceptible to judicial review under s 34B of the Supreme Court Act 1933 (ACT) (Supreme Court Act) or the AD(JR) Act 1989 (ACT) (AD(JR) Act). Moreover, no prerogative relief is available in relation to the exercise of power the legal effect of which is spent. Mr Oram relied upon Wingfoot Australia Partners Ltd v Kocak [2013] HCA 43; 252 CLR 480 at [40] for that proposition. The effect of the pre-release reports was spent in each case when the
Attorney-General’s delegate decided to refuse parole.
Mr Oram also argued that, in any event, the scoring in the Static-99 Tally Sheet was correct as a matter of fact. I will address in more detail below the competing submissions in relation to this issue.
The defendant also argued that even if the plaintiff did establish grounds for relief, the court, in the exercise of its discretion, would not grant declaratory relief. This is because the plaintiff’s term of imprisonment will have expired and there would be no utility in making a declaration.
Finally, it is submitted that, contrary to r 3356(2) of the Court Procedure Rules 2006 (ACT) and the authorities, the allegation of “bad faith” is not particularised. Nor can a proper basis for it be discerned from the OA, the plaintiff’s affidavit or indeed his submissions. It is also submitted that the OA is out of time.
Plaintiff
The essence of the plaintiff’s case rested in the proposition that there was a fundamental error in the Static-99 assessment made on 24 April 2015. Because the plaintiff had no convictions or charges before those which led to his sentencing by
Nield AJ, his score under question five on the tally sheet should have been “zero”. On that basis, his risk of sexual re-offending should have been assessed as “moderate-low”, not “high”. That error infected all of the subsequent pre-release reports, and the ASOP exit report, resulting in the adverse parole decisions which have kept him in prison since September 2015.
The relief sought under s 34B of the Supreme Court Act, the AD(JR) Act and by way of declaration all rests on that proposition. The plaintiff, in his written submissions, also referred to s 18 of the Human Rights Act 2004 (ACT) (Human Rights Act). It should be noted that no relief was specifically sought under the Human Rights Act by way of judicial review or otherwise. I have therefore not addressed it. I should say that even if a case was advanced for relief under s 40C that case would also have depended upon success of the proposition referred to in paragraph [31] above.
It was in this context that the plaintiff handed up supplementary submissions responding to the assertion by the defendant that the Tally Sheet had been correctly completed by the assessor having regard to the Coding Manual. In these submissions the plaintiff shifted ground somewhat. In addition to his argument that question five should have been scored as zero, he also submitted that even if that claim was wrong the scoring of questions seven, eight and ten with “1” in each case amounted to double counting.
The plaintiff thus argued for two alternative positions. They were:
(1)As summarised in [31] above; or,
(2)If the defendant was correct and the scoring of question five should have been “3”, the scoring of question seven should have been “1”, but the scoring of eight and ten should have been “zero”. On that basis the total risk score should have been “4”. That is, the plaintiff should have been assessed as a “moderate-high” risk of sexual re-offending, not a “high” risk.
In relation to (1), the plaintiff argued that a crucial element for taking the last offence as the “index offence” was that that offence involved a deliberate choice to offend. Here there was no such choice because the child pornography material which he was charged with possessing during the period 18 February 2010 to 13 March 2010 already existed at the beginning of that period. It would follow from this that all 13 convictions should have been treated, in aggregate, as the “index offence”, such that the correct answer to question five was “zero”
In relation to (2), the plaintiff submitted that if the last possession matter was to be regarded as the “index offence” and the other 12 matters were scored as prior in question five then the Coding Manual required questions seven to ten to be assessed only by reference to the last possession matter. It was on that basis that questions eight and ten should have been given “zero” scores.
In addition to the above, the plaintiff argued that the Static-99 Tally Sheet was the incorrect version. It had been replaced in 2012 with a new version, the Static-99R. Had the new version been used, it would have led to a lower score.
Defendant in response
The defendant submits in relation to the argument at [35] above, that the fact that the plaintiff possessed the child pornography material before 18 February 2010 was not relevant. The charge related to his possession after that date, at a time when he was on bail in relation to the other 12 charges.
As to the argument summarised at [36], the defendant says that the correct reading of the Coding Manual demonstrates that both the “index offence” and the prior offences are relevant to the answering of questions eight to ten of the tally sheet. On that basis, it is said, the scoring on the sheet on 24 April 2015 was correct.
Finally, the defendant refers to the decision of Mossop J in Hoyle v Director General, Corrective Services [2019] ACTSC 226 (Hoyle) at [36] to support the argument that the decision to use the Static-99 assessment rather than that under Static-99R is a matter for the defendant. It is not open to judicial review.
Consideration
At the outset, I am not satisfied that the plaintiff has an arguable case for relief based on the use of the Static-99 assessment rather than that available under Static-99R. The plaintiff asserts in his submissions that the Coding Manual for the latter recommends using the revised assessment. It suggests that “recidivism norms” should be reported using the revised Coding Manual because those under the 2003 Manual are “outdated and obsolete”.
In Hoyle, his Honour said at [35]:
The fact that there is a subsequent revised version of an actuarial tool does not indicate that there is any legal error in using a prior version. Precisely why the earlier version was used by the defendant was not explored in any detail in the evidence. So far as the evidence disclosed the only change of significance in the actuarial matters considered was the offender’s age at the time of release. The evidence did not establish that the version of the tool used was discredited or inaccurate within its appropriate area of application. Within the broadly stated powers and obligations upon the defendant, which assessment tool the defendant uses is fundamentally a matter for the defendant. No contravention of the law has been demonstrated through the use of one assessment tool rather than the other.
Notwithstanding the extract from the Static-99R Coding Manual relied upon by the plaintiff in his submissions (summarised in [41] above), there is no evidence before me that the use of the Static-99 tally sheet was so inappropriate as to vitiate the assessment. In particular there was, so far as I could see, no reporting of the recidivism norms extracted from Appendices 1 or 6 to the Coding Manual in relation to the plaintiff. In those circumstances, it seems to me that it was a matter for the professional judgment of those within ACT Corrective Services responsible for the risk assessment of detainees as to which assessment tool should be used.
The remaining issue to be determined, given that I am dealing with an application to strike out the plaintiff’s originating process, is whether his interpretation of the
Static-99 Coding Manual is arguably correct. If it is not arguably correct then the defendant’s application must succeed. Moreover, it would then be appropriate to dismiss the plaintiff’s claim altogether given the foundational nature of the error asserted in relation to the risk assessment carried out on 24 April 2015.
It is thus necessary to examine the operation of the Coding Manual in some detail. The definition of “sexual offences” is wide (see pp 13-15). There is no doubt that all of the offences for which the plaintiff was convicted qualified as sexual offences for the purposes of the Static-99 assessment.
The term “index offence” is important in relation to the answering of question five on the Tally Sheet. It is relevantly defined in the Coding Manual in the following terms (p 18):
The Index offence is generally the most recent sexual offence. It could be a charge, arrest, conviction, or rule violation (see definition of a sexual offence, earlier in this section). Sometimes Index offences include multiple counts, multiple victims, and numerous crimes perpetrated at different times because the offender may not have been detected and apprehended. Some offenders are apprehended after a spree of offending. lf this results in a single conviction regardless of the number of counts, all counts are considered part of the Index offence. Convictions for sexual offences that are subsequently overturned on appeal can count as the Index offence. Charges for sexual offences can count as the Index Offence, even if the offender is later acquitted.
Most of the STATIC-99 sample (about 70%) had no prior sexual offences on their record; their Index offence was their first recorded sexual misbehaviour. As a result, the STATIC-99 is valid with offenders facing their first sexual charges.
[Emphasis added.]
Another relevant term is “index cluster” (see pp 19-20):
An offender may commit a number of sexual offences in different jurisdictions, over a protracted period, in a spree of offending prior to being detected or arrested. Even though the offender may have a number of sentencing dates in different jurisdictions, the subsequent charges and convictions would constitute an "Index Cluster". These "spree" offences would group together - the early ones would not be considered ''priors" and the last, the "Index", they all become the "Index Cluster". This is because the offender has not been "caught" and sanctioned for the earlier offences and then "chosen" to re-offend in spite of the sanction. Furthermore, historical offences that are detected after the offender is convicted of a more recent sexual offence would be considered part of the Index offence (pseudo-recidivism) and become part of the Index Cluster (See subsequent section).
For two offences to be considered separate offences, the second offence must have been committed after the offender was detected and detained and/or sanctioned for the previous offence. For example, an offence committed while an offender was released on bail for a previous sexual offence would supersede he previous charge and become the Index offence. This is because the offender knew he/she had been detected for their previous crimes but chose to re-offend anyway.
An Index cluster can occur in three ways. The first occurs when an offender commits multiple offences at the same time and these offences are then subsequently dealt with as a group by the police and the courts. The second occurs when an Index offence has been identified for an offender and following this the evaluator becomes aware of previous historical offences for which the offender has never previously been charged or convicted; These previous offences come forward and become part of the "Index Cluster". This is also known as "Pseudo-recidivism". It is important to remember, these historical charges do not count as "priors" because the offending behaviour was not consequenced (sic) before the offender committed the Index offence. The issue being, the offender has not been previously sanctioned for his behaviour and then made the choice to re-offend. The third situation arises when an offender is charged with several offences that come to trial within a short period of time (a month or so). When the criminal record is reviewed it appears that a cluster of charges were laid at the end of an investigation and that the court could not attend to all of these charges in one sitting day. When the evaluator sees groups of charges where it appears that a lot of offending has finally "caught up" with an offender - these can be considered a "cluster". If these charges happen to be the last charges they become an Index Cluster. The evaluator would not count the last court day as the
"Index" and the earlier ones as "priors". A second example of this occurs when an offender goes on a crime "spree" - the offender repeatedly offends over time, but is not detected or caught. Eventually, after two or more crimes, the offender is detected, charged, and goes.to court. But he has not been independently sanctioned between the multiple offences.
[Emphasis added.]
An example is then given of how to characterise an index cluster from an index offence and prior offences. It is in these terms:
An offender commits a rape, is apprehended, charged, and released on bail. Very shortly after his release, he commits another rape, is apprehended and charged. Because the offender was apprehended and charged between crimes this does not qualify as a crime ''spree" - these charges and possible eventual convictions would be considered separate crimes. If these charges were the last sexual offences on the offender's record - the second charge would become the Index and the first charge would become a "Prior".
However, if an offender commits a rape in January, another in March, another in May, and another in July and is finally caught and charged for all four in August this constitutes a crime "spree" because he was not detected or consequence (sic) between these crimes. As such, this spree of sexual offences, were they the most recent sexual offences on the offenders record, would be considered an "Index Cluster'' and all four rape offences would count as "Index" not just the last one.
[Emphasis added.]
The plaintiff places particular importance on the concept of an offender “choosing” to offend at a particular time. Reference is made to the explanation of “pseudo recidivism” is described by the following (pp 20-1):
Pseudo-recidivism occurs when an offender currently involved in the criminal justice process is charged with old offences for which they have never before been charged. This occurs most commonly with sexual offenders when public notoriety or media publicity surrounding their trial or release leads other victims of past offences to come forward and lay new charges. Because the offender has not been charged or consequence (sic) for these misbehaviours previously, they have not experienced a legal consequence and then chosen to re-offend.
For Example: Mr. Jones was convicted in 1998 of three sexual assaults of children. These sexual assaults took place in the 1970's. As a result of the publicity surrounding Mr. Jones' possible release in 2002, two more victims, now adults, come forward and lay new charges in 2002. These offences also took place in the 1970's but these victims did not come forward until 2002. Because Mr. Jones had never been sanctioned for these offences they were not on his record when he was convicted in 1998. Offences for which the offender has never been sanctioned that come to light once the offender is in the judicial process are considered "pseudo-recidivism" and are counted as part of the "Index Cluster". Historical charges of this nature are not counted as "priors".
The basic concept is that the offender has to be sanctioned for previous miss-behaviours and then "chose" to ignore that sanction and re-offend anyway. If he chooses to re-offend after a sanction then he creates a new offence and this offence is considered part of the record, usually a new Index offence. If historical offences come to light, for which the offender has never been sanctioned, once the offender is in the system for another sexual offence, these offences "come forward' and join the Index Offence to form an "Index Cluster".
[Emphasis added.]
The discussion of “post-index offences” is illuminating. It is as follows (p 21):
Offences that occur after the Index offence do not count for STATIC-99 purposes. Post-Index sexual offences create a new Index offence. Post-Index violent offences should be considered "external" risk factors and would be included separately in any report about the offender's behaviour.
For Example, Post-Index Sexual Offences: Consider a case where an offender commits a sexual offence, is apprehended, charged, and released on bail. You are assigned to evaluate this offender but before you can complete your evaluation he commits another sexual offence, is apprehended and charged. Because the offender was apprehended, charged, and released this does not qualify as a crime "spree". He chose to re-offend in spite of knowing that he was under legal sanction. These new charges and possible eventual convictions would be considered a separate crime. In a situation of this nature the new charges would create a new sexual offence and become the new Index offence. If these charges happened to be the last sexual offences on the offender's record - the most recent charges would become the Index and the charge on which he was first released on bail would become a "Prior" Sexual Offence.
[Emphasis added.]
The term “prior offence” is also discussed on p 21:
A prior offence is any sexual or non-sexual crime, institutional rule violation, probation, parole or conditional release violation(s) and/or arrest charge(s) or, conviction(s), that was legally dealt with PRIOR to the Index offence. This includes both juvenile and adult offences. In general, to count as a prior, the sanction imposed for the prior offense must have occurred before the Index offense was committed. However, if the offender was aware that they were under some form of legal restraint and then goes out and re-offends in spite of this restriction, the new offence(s) would create a new Index offence. An example of this could be where an offender is charged with "Sexual Communication with a Person Under the Age of 14 Years" and is then released on his own recognizance with a promise to appear or where they are charged and released on bail. In both of these cases if the offender then committed an "Invitation to Sexual Touching" after being charged and released the "Invitation to Sexual Touching" would become the new Index offence and the "Sexual Communication with a Person Under the Age of 14 Years" would automatically become a "Prior" sexual offence.
ln order to count violations of conditional release as "Priors" they must be "real crimes", something that someone not already engaged in the criminal justice system could be charged with. Technical violations such as being in the Presence of Minors or Drinking Prohibitions do not count.
[Emphasis added.]
I have emphasised various parts of the above extracts because it seems to me that they make it quite clear that the commission of a sexual offence (such as possession of child pornography) while on bail for prior offences must be taken by the Static-99 assessor to be a new offence and thus the “index offence”. It is no answer in the circumstances of this case to say that the plaintiff already possessed the offending material and so that thus in some way he did not “choose” to offend. The simple fact was that rather than ensuring that he did not come into possession of child pornography material, the plaintiff actively accessed the material for the purposes of saving it onto an external hard drive. It could not be said that he had possessed it unknowingly or by accident. Indeed, the circumstances of his actions in keeping the memory card after his release on bail and then saving the material on to the hard drive are presumably what led to his plea of guilty in relation to the possession charge. If it was necessary for the assessor to conclude that the offender had chosen to act in a way which constituted the relevant crime, then such a conclusion was inevitable in the circumstances of this case.
It is therefore clear that the person who completed the 24 April 2015 Tally Sheet answered question five in accordance with the Coding Manual. Accordingly, there is no reasonable argument open to the plaintiff that the score of “3” entered on the tally sheet was incorrect.
Having reached that conclusion, it is necessary to determine whether questions eight and ten relate only to the “index offence” as submitted by the plaintiff. It is important to note the following:
(1)Questions one and two in the tally sheet relate to the general characteristics of the offender, while three to seven concern the offender’s criminal history and eight to ten relate to the characteristics of victims.
(2)The Tally Sheet makes a clear and express distinction between prior and index offences in the terms of questions three to six.
(3)The reference to “any” in questions eight to ten is strongly suggestive that the questions apply to all sexual offences which involve a victim as described in the Coding Manual. Likewise, in relation to question seven for “non-contact” offences. If these questions were to apply to the index offence only it might be expected that the question would be limited by express reference.
(4)For each of questions eight to ten, the Coding Manual requires the assessor to “use all available credible information”. There is no suggestion in the parts of the Coding Manual relating to these questions (see pp 48-56) that the questions refer only to the index offence.
(5)On p 11 of the Coding Manual the following summary appears under the heading “Victim Information”:
The STATIC-99 contains three victim information items “Any unrelated victims”, “Any stranger victims” and, “Any male victims”. To score these items the evaluator may use any credible information at their disposal except polygraph examination. For each of the offender’s sexual offences the evaluator must know the pre-offence degree of relationship between the victim and the offender.
[Emphasis added.]
In my view, contrary to the submission of the plaintiff, the correct way to complete questions eight to ten is for the assessor to have regard to all sexual offences involving victims (referred to in the Coding Manual as “Category A offences”). This includes both the index offences and prior offences as described in the Coding Manual. While it is true that neither the Coding Manual nor the Tally Sheet expressly say so, the context logically allows for no other conclusion. On that basis, the assessor who completed the tally sheet on 24 April 2015 was required to take the plaintiff’s prior offences into account in answering those questions. It follows that that person had to score questions eight and ten with a “1”.
Conclusion
It is apparent from the above analysis that I am unable to see an arguable basis upon which the plaintiff can obtain the relief that he seeks. My finding that the 24 April 2015 Static-99 Tally Sheet was correctly completed is fatal to the plaintiff’s claim. It is not necessary for me to address the legal arguments raised by defendant. The defendant must succeed in its strike out application. There is no utility in giving the plaintiff leave to re-plead his claim.
Orders of the Court
Accordingly, the orders of the Court are as follows:
(1) The Originating Application is struck out and dismissed.
(2) The plaintiff is to pay the defendant’s costs of the action, including the Application in Proceeding dated 28 August 2019.
| I certify that the preceding fifty-seven [57] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Acting Justice Crowe. Associate: Date: 30 October 2019 |
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