VARNEY -v- PAROLE BOARD OF WESTERN AUSTRALIA [2000] WASCA 393

Reported Decision:	(2000) 23 WAR 187
Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2000] WASCA 393
Court:	THE FULL COURT (WA)
Case No:	CIV:1665/2000	Heard:	26 JULY & 8 NOVEMBER 2000
Coram:	MALCOLM CJ IPP J WALLWORK J	Delivered:	15/12/00
No of pages:	42	Judgment Part:	1 of 1
Result:	Appeal allowed in part
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Parties:	DANIEL JAMES VARNEY PAROLE BOARD OF WESTERN AUSTRALIA DIRECTOR GENERAL FOR THE MINISTRY OF JUSTICE
Catchwords:	Administrative Law Prerogative writs and orders Writ of certiorari discretionary remedy Not ordinarily made when futile remedy Parole Board Director General Work release order Re-classification of security ratings Release on parole Failure to consider all relevant factors Application of rigid policy Criminal Law Parole release Administration of prisons Sex Offender's Treatment Programme Parole Board's decision to grant parole contingent on admission to programme requiring admission of guilt Work release order All relevant factors to be considered Re-classification of security rating Failure of Parole Board to consider all relevant factors when making decisions Application of rigid policy
Legislation:	Sentencing Administration Act 1995, s 26, s 28, s 48, s 49
Case References:	Craig v South Australia (1995) 184 CLR 163 Gudgeon v Black (1994) 14 WAR 158 Hodgens v Gunn; Ex parte Hodgens [1990] 1 Qd R 1 Malloch v Aberdeen Corporation [1971] 1 WLR 1578 Mott [1994] 75 A Crim R 74 R v Aston University Senate; Ex parte Roffey [1969] 2 QB 538 R v Parole Board, Ex parte Zulfikar, unreported; UKCA; 28 April 1997 R v Secretary of State for the Home Department (1995) TLR 441 R v Secretary of State for the Home Department, Ex parte Zulfikar [1995] TLR 441 Re Brown; Ex parte Savage, unreported; SCt of WA; Library No 7260; 31 August 1988 Suresh v The Queen (1998) 72 ALJR 769 Webster v Corrective Services Commission (Q) (1998) 103 A Crim R 63 Baldwin & Francis Ltd v Patents Appeal Tribunal [1959] AC 663 Belcaro Pty Ltd v Brisbane City Council (1963) 110 CLR 253 Bugmy v The Queen (1990) 169 CLR 525 Dempster v National Companies & Securities Commission (1993) 9 WAR 215 Parole Board, Re; Forbes, Ex parte (1996) 89 A Crim R 139 F Hoffman-La Roche & Co AG v Secretary of State for Trade & Industry [1975] AC 295 Heatley v Tasmanian Racing & Gaming Commission (1977) 137 CLR 487 London, City of v Cox (1867) LR 2 HL 239 Lowndes v The Queen (1999) 195 CLR 665 Orreal v Queensland Community Corrections Board (1995) 81 A Crim R 212 Parker & Ors v Anti-Corruption Commission, unreported; SCt of WA; Library No 980509, 27 August 1998 Perpetual Trustees WA Ltd v City of Joondalup, unreported; SCt of WA; Library No 990195, 16 April 1999 R v Anderson; Ipec-Air Pty Ltd Ex parte (1965) 113 CLR 177 R v Electricity Commissioners; London Electricity Joint Committee Co (1920) Ltd, Ex parte [1924] 1 KB 171 at 205 R v Williams; Ex parte Phillips [1914] 1 KB 608 Re Capobianco, Principal Building Surveyor of the City of Melville Ex parte Castelli, unreported; SCt of WA; Library No 980567, 25 September 1998 Re Drake and Minister for Immigration & Ethnic Affairs [No 2] (1979) 2 ALD 634 Re Lands and Forest Commission & Anor; Ex parte South West Forests Defence Foundation (Inc), unreported; SCt of WA; Library No 930643; 25 November 1993 Real Estate & Business Agents Supervisory Board Ex parte Cohen (1999) 21 WAR 158 Stollery v Greyhound Racing Control Board (1972) 128 CLR 509 Sydney Municipal Council v Harris (1912) 14 CLR 1

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE FULL COURT (WA) CITATION : VARNEY -v- PAROLE BOARD OF WESTERN AUSTRALIA [2000] WASCA 393 CORAM : MALCOLM CJ

IPP J

WALLWORK J

HEARD : 26 JULY & 8 NOVEMBER 2000 DELIVERED : 15 DECEMBER 2000 FILE NO/S : CIV 1665 of 2000 MATTER : An application for a Writ of Mandamus against the Members of the PAROLE BOARD established under the Sentence Administration Act 1995 BETWEEN : DANIEL JAMES VARNEY

Applicant

AND

PAROLE BOARD OF WESTERN AUSTRALIA

Respondent

FILE NO/S : CIV 2338 of 2000
MATTER : An application for a Writ of Mandamus and a Writ of Certiorari against the DIRECTOR GENERAL OF THE MINISTRY OF JUSTICE BETWEEN : DANIEL JAMES VARNEY

Applicant

AND

(Page 2)

DIRECTOR GENERAL FOR THE MINISTRY OF JUSTICE

Respondent

Catchwords:

Administrative Law - Prerogative writs and orders - Writ of certiorari discretionary remedy - Not ordinarily made when futile remedy - Parole Board - Director General - Work release order - Re-classification of security ratings - Release on parole - Failure to consider all relevant factors - Application of rigid policy

Criminal Law - Parole release - Administration of prisons - Sex Offender's Treatment Programme - Parole Board's decision to grant parole contingent on admission to programme requiring admission of guilt - Work release order - All relevant factors to be considered - Re-classification of security rating - Failure of Parole Board to consider all relevant factors when making decisions - Application of rigid policy

Legislation:

Sentencing Administration Act 1995, s 26, s 28, s 48, s 49

Result:

Appeal allowed in part

Representation:

CIV 1665 of 2000

Counsel:

Applicant : Mr I L K Marshall & Mr D P A Moen

Respondent : Mr G T W Tannin & Ms C M Stokes

Solicitors:

Applicant : Evangel Taylor

Respondent : State Crown Solicitor

(Page 3)

CIV 2338 of 2000

Counsel:

Applicant : Mr I L K Marshall & Mr D P A Moen

Respondent : Mr G T W Tannin & Ms C M Stokes

Solicitors:

Applicant : Evangel Taylor

Respondent : State Crown Solicitor

Case(s) referred to in judgment(s):

Craig v South Australia (1995) 184 CLR 163
Gudgeon v Black (1994) 14 WAR 158
Hodgens v Gunn; Ex parte Hodgens [1990] 1 Qd R 1
Malloch v Aberdeen Corporation [1971] 1 WLR 1578
Mott [1994] 75 A Crim R 74
R v Aston University Senate; Ex parte Roffey [1969] 2 QB 538
R v Parole Board, Ex parte Zulfikar, unreported; UKCA; 28 April 1997
R v Secretary of State for the Home Department (1995) TLR 441
R v Secretary of State for the Home Department, Ex parte Zulfikar [1995] TLR 441
Re Brown; Ex parte Savage, unreported; SCt of WA; Library No 7260; 31 August 1988
Suresh v The Queen (1998) 72 ALJR 769
Webster v Corrective Services Commission (Q) (1998) 103 A Crim R 63

Case(s) also cited:

Baldwin & Francis Ltd v Patents Appeal Tribunal [1959] AC 663
Belcaro Pty Ltd v Brisbane City Council (1963) 110 CLR 253
Bugmy v The Queen (1990) 169 CLR 525
Dempster v National Companies & Securities Commission (1993) 9 WAR 215
Parole Board, Re; Forbes, Ex parte (1996) 89 A Crim R 139
F Hoffman-La Roche & Co AG v Secretary of State for Trade & Industry [1975] AC 295
Heatley v Tasmanian Racing & Gaming Commission (1977) 137 CLR 487

(Page 4)

London, City of v Cox (1867) LR 2 HL 239
Lowndes v The Queen (1999) 195 CLR 665
Orreal v Queensland Community Corrections Board (1995) 81 A Crim R 212
Parker & Ors v Anti-Corruption Commission, unreported; SCt of WA; Library No 980509, 27 August 1998
Perpetual Trustees WA Ltd v City of Joondalup, unreported; SCt of WA; Library No 990195, 16 April 1999
R v Anderson; Ipec-Air Pty Ltd Ex parte (1965) 113 CLR 177
R v Electricity Commissioners; London Electricity Joint Committee Co (1920) Ltd, Ex parte [1924] 1 KB 171 at 205
R v Williams; Ex parte Phillips [1914] 1 KB 608
Re Capobianco, Principal Building Surveyor of the City of Melville Ex parte Castelli, unreported; SCt of WA; Library No 980567, 25 September 1998
Re Drake and Minister for Immigration & Ethnic Affairs [No 2] (1979) 2 ALD 634
Re Lands and Forest Commission & Anor; Ex parte South West Forests Defence Foundation (Inc), unreported; SCt of WA; Library No 930643; 25 November 1993
Real Estate & Business Agents Supervisory Board Ex parte Cohen (1999) 21 WAR 158
Stollery v Greyhound Racing Control Board (1972) 128 CLR 509
Sydney Municipal Council v Harris (1912) 14 CLR 1

(Page 5)

1 MALCOLM CJ: In my opinion the order nisi for the writ of certiorari relating to the decision of the Parole Board ("the Board") on 29 June 2000 requiring the applicant to "address offending behaviour (SOTP) [Sex Offender Treatment Programme] before the Board would review his parole eligibility again" should be made absolute. I have reached this conclusion for the reasons to be published by Ipp J with which I agree. I also agree with Ipp J, for the reasons to be published by his Honour, that the applicant is not entitled to any other relief in respect of the other orders nisi he obtained and that each of such orders should be discharged.

2 I do, however, wish to add some comments of my own regarding the approach taken by the Board with respect to the refusal of the Board to grant, or perhaps even to consider, the release on parole of a person serving a sentence or sentences for one or more sex offences who denies his guilt. In the present case, notwithstanding his denial, the applicant applied or volunteered to participate in a Sex Offender Treatment Programme ("SOTP") on seven occasions. While there is no direct evidence of the reason why his applications were refused, there is ample evidence from which it may be inferred that his applications were refused because he denied his guilt or, as it is sometimes put, he was "in denial". It is clear that it is a prerequisite or condition of entry to the SOTP that the prisoner acknowledge and accept responsibility for his criminal conduct. The reason stated for this approach or policy is that, unless this is so, the programme will not achieve the level of rehabilitation or a sufficient reduction in the risk of re-offending as would justify his release on parole.

3 As Ipp J has pointed out, there might be many reasons why a prisoner would not accept his guilt. He might genuinely believe he was wrongly convicted, or he might be unwilling to accept that he lied in the past or to deal with the loss of face involved in admitting his guilt. These possibilities were acknowledged by Stuart Smith LJ in R v Secretary of State for the Home Department (1995) TLR 441 at 442.

4 The approach of the Board to such cases is evidenced by recent Annual Reports by the Board. In the Board's Annual Report for the year ended 30 June 1994, when the Chairman was the Hon ARA Wallace AO, at 4 the following appears:

"The slight percentage increase on the 1992/93 figures in the number of offenders convicted and imprisoned for sexual offences, includes a number which relate to convictions for offences committed some years ago and which only now are coming to light. A small percentage of this category of

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offenders, also to a lesser extent those convicted of recent sexual offences, persistently fail to acknowledge their offending behaviour and are thus deemed unsuitable for inclusion in either the prison or community based Sex Offender Treatment Programme. The offenders denial poses a dilemma for the Board due to the inability of the Sex Offender Treatment Branch to provide the Board with a firm indication as to the future potential risk posed by the offender if released into the community on Parole or Work Release. The Chairman of the Board is currently attempting to resolve the issue with the appropriate authorities within the Ministry of Justice."

5 This passage implies that, where the offender is deemed unsuitable for inclusion in either the prison or the community based SOTP, the Board may not be able to make a decision whether to grant parole because of the inability of the SOTP to provide a "firm indication" of the risk of re-offending if released, whether on Parole or Work Release.

6 The Annual Report for the year ended 30 June 1995 refers to a visit by the Board to Casuarina Prison at the invitation of the Ministry of Justice Sex Offender Treatment Unit ("SOTU") so that the Board could better acquaint itself with the "intensive" SOTP conducted at the Prison. The Report then says at 2:

"The Chairman and Board members spoke to those prisoners participating in the programme and also the programme coordinators.

The visit reinformed the Chairman's view that the rehabilitative gains to both the individual offender and society following positive participation in such programmes out weighs any proffered argument as to why there is a lack of financial resources to enable a larger number of offenders to participate in the programme.

The Board is concerned about the large number of sex offenders who are imprisoned well beyond the time that they are eligible to be released, be it on Work Release or parole, in order that they can participate in a prison based Sex Offender Treatment Programme. Such deferrals exasperate the already stretched resources of the various prisons. There is an additional and quite substantial cost to the State in keeping these prisoners unnecessarily incarcerated beyond their release dates and there

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is also, what some would consider, an unjust imposition on the individual prisoner.

At the invitation of the Executive Director, Corrective Services, the Chairman provided input into the Community Corrections Division's proposed offender assessment and review system. It is hoped the proposed system will provide a more accurate measuring 'tool' as to the level of risk an offender may pose if released in the community of reoffending in a like manner, and if released, thus provide a guide as to the intensity of supervision required."

7 The Annual Report for the year ended 30 June 1997, when the Chairman was the Hon BW Rowland QC, says at 2-3:

"One increasing difficulty faced by the Board is the increase in the number of prisoners who have been convicted of sexual assaults or other sex related offences. Most prisoners so convicted are offered the facility of Sex Offender Treatment Programmes within the prison. It is generally the case that only those who admit guilt are acceptable and suitable for such programmes. Those in denial or for any other reason are either unsuitable or refuse to undertake such programmes, are usually deemed by the experts who provide the programmes to be a high and unacceptable risk of reoffending if granted parole without having entered and completed such treatment. The prisoner who remains in denial may do so for various reasons including a personal belief that he of [

sic

] she was not guilty, or because of perceived consequences if it became known within the prison or amongst family and friends outside the prison that they had admitted guilt. The Board has been told that a programme available to those in denial cannot be funded. The Sex Offender Treatment Unit is seeking the support of the Board to deny parole to those deemed to be high risk because they are not suitable for treatment because otherwise there will be no incentives for persons to undertake treatment within the prison.

Another difficulty is that some sex offenders who are in denial or are otherwise ineligible for prison based treatment, are prepared to undertake Community Based Sex Offender Treatment which in some cases is supported by independent clinical psychologists instructed to report on behalf of the

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particular offender. The resolution of conflicting expert views is not easy in the absence of an adversarial hearing. The Board appreciates the view of the internal Ministry of Justice experts and appreciates the benefit of having internal rehabilitative courses of this nature, but the Board will not necessarily follow the policy of the Sex Offender Treatment Unit where outside expert opinion evidence is accepted by the Board indicating that community based treatment as a condition of parole will be suitable for a particular offender.

In recent years, rehabilitative programmes within the prison system rather than on parole have increased, but if primacy is to be given to this type of rehabilitation within the prison then it would be more appropriate for the Parliament to specify and refine the common law basis for granting parole. Parole was traditionally available to those who had served the minimum term in custody which justice demanded of the particular offence so that rehabilitation could be undertaken within the community. In many instances the sex offender and those who offend as a result of substance abuse receive rehabilitative courses within the prison system. With these initiatives the traditional reasons for parole become to some extent lessened and when also Work Release Orders are available prior to parole for minimum risk prisoners, sentences given by the courts for a particular offence by way of punishment and deterrent have very little meaning and are clearly not understood by the public.

There is a strong case for legislative support to be given to aspects of rehabilitation whilst in custody so that the Board may have more specific guidelines upon which it should act."

8 This report implies that there was a programme which would be suitable for those in denial, but it was not made available because it could not be funded. The reference to the views of independent clinical psychologists implies the existence of community based sex offender treatment programmes which could treat offenders in denial.

9 In the Annual Report for the year ended 30 June 1998 at 2-3 the Hon BW Rowland QC said:

"Sex related offenders are still a large proportion of the prison population. At the end of April there were some 412 sex

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offenders in Western Australian prisons which is between some 17 and 20 per cent of the entire prison population. Of these, approximately 65 per cent were either enrolled in sex offender treatment programmes or wait-listed for inclusion in a programme. These programmes vary in intensity from 3 to 4 or 9 months duration. The balance of sex offenders, being approximately 35 per cent, are not eligible for any number of reasons, often because the prisoner remains in denial. The Board continues to be faced with a dilemma when considering risk factors in relation to these offenders. Those who successfully complete programmes are usually assessed as an acceptable risk for release on parole. The Board has been told that the rates of recidivism for these prisoners is much less than the general prison rate. On the other hand, those who have not entered and completed a programme for whatever reason are regarded by those who conduct the programmes as being at some risk, usually to a moderate to high risk of reoffending. The Board generally accepts these assessments, but in the end is obliged to deal with each prisoner individually. There is a programme which has been devised for those in denial but funding has not been made available for this, and there appears to be a perception amongst some prisoners that their failure or ability to enter a programme means that the prisoner spends much more time in prison after his or her first eligibility date for parole than is the case with most other prisoners. The Board would see merit in increasing the number of rehabilitation programmes which would avoid this perceived imbalance. The funding of such programmes may well equate to the cost of supporting the continued imprisonment of those who are not eligible for existing forms of treatment.

The Board accepts that it exercises power concerning the liberty of prisoners in a way which is usually not open to scrutiny by either the public or the prisoner. It has increased the availability of rights of appearance to prisoners where parole is denied, or is about to be denied, or where it is delayed for lengthy periods. In this way a dissatisfied prisoner may appear before the Board and present his or her own cause. To that extent the workload of the Board has increased. It is hoped that this procedural process will help to remove some of the mystique which the closed processes of the Board must engender.

(Page 10)

The criteria which condition the grant of Work Releases have to some extent changed with the new legislation. A prisoner must now satisfy the Board that if released prior to his earliest eligibility date for parole he or she will pose no more than a minimum risk to the personal safety of others in the community. This will usually pose difficulties for those prisoners who have committed a serious and violent crime, or have a record of committing such offences. The numbers of prisoners who have been released on Work Release have declined since this change was introduced."

10 This report makes it clear that as at 30 June 1998 there was a programme devised for those in denial, "but funding has not been made available for this …". The additional comments regarding the change in the criteria for Work Release are relevant to the applicant's case.

11 The reasons advanced by the Board in the present case for denying or deferring consideration of parole reflect a continuation of a situation where there is no SOTP within the prison system for those in denial for whatever reason. In the result, the decision of the Board to refuse parole on 29 June 2000 was based on the report of the psychologist who referred to the various factors which led him to conclude that the offender posed a risk of re-offending for reasons which included the failure of the applicant to participate in a sex offender treatment programme by reason of his denial.

12 I agree with Ipp J that, having regard to the material before the Board when it made its decision to defer consideration of parole on 29 June 2000, the Board was clearly entitled to make the decision it did. I am concerned, however, that the psychologist who prepared the report was not a clinical psychologist. The Board's Annual Report for the year ended 30 June 1997 refers to reports by "clinical psychologists". It is, of course, for the Board to determine whether in any given case the author of the report has the necessary level of qualifications and experience to assess the degree of risk of re-offending. Given that, as matters stand, the liberty of the offender may in the end depend almost entirely on the risk assessment by the psychologist, and non-participation in SOTP plays such a significant part, it is important to ensure that the reports are prepared by persons with the appropriate qualifications and experience. I acknowledge that the author of the relevant report in this case may well have been appropriately qualified, notwithstanding that the author was not a clinical psychologist. The author was, however, referred to as an "independent psychologist".

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13 The Annual Reports of the Board refer to the existence of SOTPs which cater for persons in denial. This is confirmed by R Beckett, A Beech, D Fisher and A S Fordham, Community-based treatment for sex offenders: an evaluation of seven treatment programmes, August 1994, a report for the UK Home Office which the Office distributed to Probation Services throughout the UK. Three of the authors were Consultant Forensic Psychologists. The fourth was a Research Fellow with the Oxford Regional Forensic Service. Programme A is a long term residential programme. The "clients" who participated in the programme were described in the Home Office Report at 20 as follows:

"Clients were all child molesters over the age of twenty-one who had no history of abducting children but who had offended in the context of some form of relationship with their victim(s). It was believed that limiting referrals to this group of sex offenders would minimise the risk to the local community. Clients who were in total denial were accepted for assessment. PROGRAMME A had some success in getting a proportion of these clients to admit their offending. Clients with learning difficulties were sometimes accepted, as it was believed that with the aid of other clients they could cope with the programme even though this did involve a lot of written work. Of the clients seen for our study, none were categorised as having learning difficulties, the majority having a level of intellectual functioning that was above average."

14 The Report also says at 21:

"PROGRAMME A had very clear views of sex offending and what treatment should consist of which seemed very influenced by the experience of the Clinic Director. The ethos of working with sex offenders was that a number of assumptions could be made about the level of denial and minimisation the clients showed. It was assumed that clients would have committed far more offences and for much longer than they initially admitted to, and so much emphasis was put on breaking down this 'denial' in the assessment phase. Staff were aware that clients may simply begin saying what was regarded as socially acceptable rather than what they truly believed. The treatment phase therefore used a variety of techniques to promote an emotional change. The main model of treatment was a 'cognitive-behavioural' one but group dynamics and processes

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were seen as very important in promoting empathy and improving self-esteem.

The aim of the work was to reduce re-offending and protect victims. In addition, therapists tried to put across to clients that they could have a more rewarding lifestyle and feel better about themselves if they learned to control their deviancy and developed effective coping strategies to prevent repetition of their offending behaviour.

A wide range of techniques were used in both assessment and treatment. There was much group discussion and clients were encouraged to challenge each other. Work was done in smaller groups and pairs, as well as clients doing a lot of individual written work. Drama and art techniques were used and videos and writings by victims were also used. Fantasy modification techniques were taught as were assertiveness skills."

15 The ideal length of this programme was said to be six to 12 months "residential".

16 The Home Office Report also described a Programme G, which was a short term group programme which also included co-working. The aims of the programme were:

"… to reduce the risk of re-offending by helping offenders to take responsibility for their actions; to improve their understanding of their own behaviour; to learn how to control their behaviour; to provide support and encouragement for change."

17 This short term programme was not regarded as suitable for offenders in denial. Those who were treated by the programme were described as follows:

"The Programme treated men who have sexually abused adult women as well as child molesters. Clients who were in total denial were not accepted on the programme nor were young offenders who were seen as having specialist needs. Priority was given to men on probation orders and post-release supervision. Self-referrals and non-statutory cases were not accepted. Men could be temporarily released from prison to attend the treatment programme."

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18 Given the acknowledgement in the Board's Annual Report of the existence of residential programmes which have been designed to treat sex offenders who are in denial and the explanation of their non-availability because of lack of funding, the Board may well be put in a very difficult position by the failure of the relevant authorities to provide the programmes which would qualify offenders for release on parole, if participation in the programme would reduce the risk of re-offending to a level that would permit of release on parole at or relatively soon after their parole eligibility date. The present arrangements carry with them the seeds of injustice.

IPP J

The applications for prerogative relief

19 These reasons concern a series of applications by the applicant for prerogative relief.

20 The applicant, who was born on 6 May 1927, is presently a prisoner at Bunbury Regional Prison. In September 1995, he was convicted in the Supreme Court of five counts of unlawful and indecent dealing with a child under the age of 14 years, one count of aggravated sexual assault of a child under the age of 16 years, five counts of aggravated unlawful and indecent assault on a child under the age of 16 years and one count of indecent assault. In January 1996, he was convicted in the District Court of three counts of indecently assaulting a male person and two counts of carnal knowledge of a male person against the order of nature.

21 For the offences of which he was convicted in the Supreme Court, the applicant was sentenced to a total of 6-1/2 years' imprisonment, less six weeks for a period he had already spent in custody. For the offences of which he was convicted in the District Court, the applicant was given an effective term of 3 years' imprisonment cumulative upon the sentence of 6-1/2 years' imprisonment. The applicant appealed against all these convictions and on 21 March 1996 all appeals were dismissed.

22 In June 1998 the applicant became eligible for minimum security classification. In June 1999 he became eligible for home leave and work release. On 27 January 2000 he became eligible for release on parole.

23 The applicant, unsuccessfully, has sought, firstly, to have his security rating within the prison system reduced from "medium security" to

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"minimum security", secondly, to be released on home leave, thirdly, to be released on a work release order and, fourthly, to be released on parole.

24 It is submitted on his behalf that the fundamental reason for his lack of success in these applications is that he has not undertaken the sex offender's treatment programme ("SOTP") that is available for sex offenders in the Bunbury Prison. On 10 November 1995 the applicant was assessed as being unsuitable for the SOTP as he refused to admit that he was guilty of the offences of which he was convicted. He persists in that refusal. He has applied no less than seven times for inclusion in the SOTP but on each occasion was refused permission to participate because of his denial of guilt. It is not disputed that he will not be allowed to participate until he admits his guilt for the offences for which he was convicted.

25 In these proceedings, the applicant seeks orders for the issuing of writs of certiorari quashing, in effect, three decisions of the Parole Board and three decisions of the Director General, and for the issuing of writs of mandamus requiring the Board and the Director General, respectively, to reconsider those decisions according to law.

26 The first decision of the Board that is challenged is a decision of 23 December 1999 denying the applicant's application to be released into the community on a work release order. The second is a decision taken on 29 June 2000 deferring the grant of parole to the applicant. The third is a decision also taken on 29 June 2000 determining that the applicant needed to address his offending behaviour by participating in the SOTP before the Board would again review its decision deferring parole.

27 The first decision of the Director General that is challenged is a decision taken on 22 November 1999 dismissing an appeal by the applicant against a refusal of an application by him for home leave. The second is a decision taken on 17 December 1999 to recommend to the Board that the applicant not be released on a work release order. The third is a decision taken on 25 February 2000 refusing to re-classify the applicant's security rating within the prison system from "medium security" to "minimum security".

28 I should say that none of these decisions were made by the Director General himself, but were made by persons under his aegis and supervision. No point was taken concerning this aspect and all parties conducted the applications on the basis that the decisions said to have been made by the Director General were in fact made by him.

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The offences committed by the applicant

29 The offences of which the applicant was convicted in January 1996 were committed in August 1978 and the offences of which he was convicted in September 1995 were committed over a period, which began in 1987.

30 The victim of the 1978 offences was a 15-year-old boy. The applicant and the boy were involved in a study group. The applicant invited the boy to stay with him over a weekend to make a film. The applicant gave the boy alcohol and, when it took effect, he suggested that the boy take off his clothes so that he, the applicant, could massage the boy with oil. The boy took off his clothes and the applicant rubbed oil over him. He then measured the boy's penis with a tape measure and that night penetrated the boy's anus with his penis. Two to four weeks thereafter the boy again went to the applicant's house and again was given alcohol. The boy was shown pornographic magazines and a film. The applicant undressed the boy while the boy was under the influence of alcohol and again anally penetrated him. The boy then masturbated the applicant and the applicant masturbated the boy.

31 The offences which gave rise to the September 1995 convictions were committed against a 13-year-old boy. At that time the applicant was assisting with certain classes, on a voluntary basis, at the boy's school. The applicant's classes concerned the circus industry and involved clowns and the performance of magic tricks. The boy became interested in the circus and the applicant offered to teach him on a private basis. That is, he offered to teach the boy alone. The applicant suggested to the boy that there was a prospect of him receiving payment for performances that he might give in the future. The boy commenced going to the applicant's house where he was given alcohol. He began to stay overnight at the applicant's house. The applicant then began to use the boy for his own sexual gratification. He would place his penis between the boy's legs and simulate sexual intercourse. He gave pornographic material to the boy and masturbated him.

The grounds relied on by the applicant for prerogative relief

32 In regard to the applications brought by the applicant against the Director General, the applicant relies, principally, on the following grounds:

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(a) the Director General took into account irrelevant factors, namely that the applicant denied his guilt and was not permitted to undertake the SOTP;

(b) the Director General applied a rigid and inflexible policy, namely that a prisoner who does not admit his guilt and, for that reason, is not admitted to the SOTP, should not have his security rating reduced to minimum and should not be granted home leave or a work release order;

(c) the reasons given by the Director General for refusing re- reclassification as minimum security and for refusing home leave are "inadequate, arbitrary and unreasonable".

33 The applicant's application against the Board relies on similar grounds, but additionally asserts that the Board failed to take into account the applicant's offers to participate in the SOTP, and his exemplary conduct while in prison. Further, the applicant contends that there were no special circumstances within the meaning of s 26 of the Sentencing Administration Act 1995 that would justify the deferral of parole and the reasons the Board gave for the deferral of parole were inadequate, arbitrary and unreasonable. In regard to the work release order, the applicant contends that the Board should not have found that he would pose more than a minimum risk to the personal safety of people in the community.

The applications made by the applicant while in prison and the responses thereto

34 When the applicant was first admitted to prison he received a medium security rating. The security rating a prisoner receives is governed by a set of rules described as "procedures for the assessment and placement of prisoners within the Ministry of Justice, Corrective Services Division". These rules are apparently known as "The Director General's Rules" and are made pursuant to s 35 of the Prisons Act 1981 (which provides that the chief executive officer may, subject to the approval of the Minister, make rules for the management, control and security of prisons and of prisoners).

35 Rule 2B of the Director General's Rules contain a number of subrules concerning the assessment of security ratings. Subrule 3 provides:

"Each prisoner shall be classified at the lowest level of security necessary to ensure his continuing custody with the prison

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system, the good government, good order and security of the prisons, and the security of the public."

Subrule 3.1 provides that each prisoner shall be assigned one of three security ratings, maximum, medium and minimum. Subrule 3.2 sets out 18 criteria to be applied in establishing a security rating. These include the level of risk and perceived risk to the security of the public, the nature of the offences, the length of sentence, the criminal history, the attitude to sentence, prison management reports, previous performance in prison, assessed prospects of release on parole, medical or psychiatric history, personal characteristics, family ties, employment records, and "[a]ttitude towards, or participation in, programmes aimed at addressing the prisoner's offending behaviour".

36 The Director General's Rules provide no definitions of the three security ratings. It is plain, however, from the Rules as a whole that, in determining a security rating, the security of the public and "of prisons" is accorded substantial importance. Having regard to the possible consequences of a minimum security classification, in my view a prisoner would only be so classified if he would pose a minimum risk in the sense conveyed by s 48(2) of the Sentence Administration Act.

37 The classification of a prisoner's security is critical to the grant of eligibility for home leave. Subrule 11.1.2 of r 7A of the Director General's Rules provides that:

"Only prisoners who have achieved a minimum security rating and whose absence from prison would pose a minimum risk to the security of the public are eligible to be considered for Leave of Absence."

The grant of home leave is accordingly dependent on the prisoner being classified as minimum security.

38 Not later than July 1998 the applicant first applied to have his security rating re-classified from medium to minimum. His application was refused and he appealed against that decision. On 28 July 1998 his appeal was dismissed. The following reasons were included as part of the reasons for the decision:

"4) Remain medium security in view of unaddressed behaviour, subsequent poor prospects of parole and time remaining to serve.

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5) Prisoner is advised that failure to address his offending behaviour through SOTP participation may jeopardise his prospects for inclusion in the [w]ork [r]elease [p]rogramme, [h]ome [l]eave and release to parole."

This is the first instance, in the papers before the Court, of the applicant's "failure to address his offending behaviour through SOTP participation" being relevant to decisions concerning him being made by the Director General and the Board. By 28 July 1998, the applicant had applied to participate in the SOTP but had been refused entry to the programme because he denied having committed the offences for which he was convicted. It is plain that as at that date, these matters were of major importance in the decision then taken to refuse to re-classify the applicant's security rating.

39 On 26 October 1999 the applicant applied for home leave and at the same time again applied for a change in his security rating. The decisions in relation to this application appear to have been made by the chairperson of the "Unit Conference: Bunbury" and were as follows:

"Home leave - application not to proceed

1. Remain Medium Security in view of current approval.

2. …

3. Unit Conference recommends prisoner's application for Home Leave NOT TO PROCEED due to not addressed defending behaviour (SOTP), more than minimum risk to community and Director General's Rule 7A 14.1.3 applies.

4. …

5. Good conduct and industry reports noted."

On the bottom of the form on which this decision was recorded the following appeared:

"… As prisoner is still rated medium security he was not eligible to apply for home leave - see DG's Rule 7A: 11.1.2."

In November 1999 the Ministry of Justice endorsed this decision.

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40 The applicant appealed against this decision insofar as it related to the application for home leave, and on 22 November 1999 the result of the appeal was recorded as follows:

"Appeal against decision for home leave dismissed in view of no relevant information and prisoner yet to address offending behaviour."

The decision of 22 November 1999, refusing the appeal against the dismissal of the application for home leave, is one of the decisions the applicant seeks by these proceedings to have quashed.

41 I should say that it is not entirely clear whether that part of the decision of 11 November 1999, relating to the application to re-classify the applicant's security, was also subject to the appeal that was dismissed on 22 November 1999. However, as a later application for re-classification was made, and a decision given in regard thereto, this question does not need to be resolved.

42 On 14 December 1999, a Community Corrections Officer provided a pre-parole assessment report to the Ministry of Justice. Under the heading "Viability of Proposed Parole Plan", the Community Corrections Officer pointed out that in the vicinity of the address where the applicant stated he intended to stay (should he be released on parole), there was a private school and recreational facility. She then stated:

"The probability of unsupervised contact with children is high and as Varney has failed to address his offending behaviour, the accommodation is not considered suitable."

Under the heading "Capacity and Motivation to Abide by Conditions of Parole", the Community Corrections Officer observed:

"Varney has commented to the author that he will abide by conditions of parole. However he claims that he is innocent of the offences, given this stance it is hard to accept that he is motivated to abide by conditions of parole whilst still in denial."

Under the heading "Programme Issues", the Community Corrections Officer stated:

"Varney has commented that he has applied on six occasions to do programmes but was refused, due to his denial of the offence. The Bunbury Prison's S89(1) Parole Report shows that Varney has been assessed by the Sex Offender Treatment Unit as not suitable for inclusion on a SOTP. The prisoner maintains

(Page 20)

his innocence and is therefore not considered suitable for treatment."

Under the heading "Risk of Reoffending", the Community Corrections Officer stated:

"Varney's risk of reoffending remains high because he has not addressed offending behaviour."

Under the heading "Recommendation", the Community Corrections Officer stated:

"Varney's accommodation is not confirmed at this stage. He has not addressed his offending behaviour and he is high risk of reoffending. This was confirmed by … at SOTU who has arranged further assessment for treatment suitability. In view of the above Varney's release to parole at this stage is not recommended."

The reference to "SOTU" is a reference to the Sex Offenders Treatment Unit.

43 On 17 December 1999 the Community Corrections Officer wrote to the Ministry of Justice concerning a home visit that was conducted to assess the applicant's proposed accommodation should he be admitted to parole. The persons living at the proposed residence told the investigating officer concerned that they did not know the applicant personally and it was their understanding that the applicant only wished to reside with them "for a few days before finding alternative accommodation". The officer also learned that one of the persons living at the house tutors children there. The Community Corrections Officer reported that: "In view of the above, [the applicant's] proposed accommodation is not considered suitable."

44 On 17 December 1999 a Ministry of Justice report was prepared relating to the applicant's application for work release. The report stated:

"Work Release not recommended. … More than minimum risk."

Under the heading "Other Relevant Information", the report stated:

"SOTP report indicates prisoner denies the offences and is therefore not suitable for inclusion in the SOTP. The SOTU advises that he will be re-assessed in the new few weeks. In

(Page 21)

view of this the Unit Conference did not proceed with the application so prison and CCO reports have not been prepared."

The decision so made, not to recommend work release (which is accepted as having been made by the Director General), is challenged in these proceedings.

45 On 23 December 1999, the Board wrote to the applicant stating that it had considered his application for work release and made a decision based upon the reports and information presented to it. The decision was then set out in the following terms:

"Deny Work Release Order.

For the following reason(s):

More than a minimum risk due to failure to address offending behaviour (SOTP). Section 19(1) referral to Board requires independent risk assessment as in denial, before determination of eligibility for parole. Review 20.1.2000.

Under the provisions of Section 48 of the Sentence Administration Act 1995 the Board may grant a Work Release Order only if satisfied that the prisoner, if released would pose a minimum risk to the personal safety of people in the community or any individual in the community."

This decision by the Board, denying the applicant a work release order, is challenged in these proceedings.

46 On 30 December 1999, a Senior Programmes Officer at the Sex Offender Treatment Unit prepared a Risk Assessment Report relating to the applicant. The report was in the following terms:

"Mr Varney was interviewed at Bunbury Regional Prison on 17/12/99 and 23/12/99 in response to a request by Prisoner Management, in view of the proximity of his review for Parole. An assessment for a treatment report was prepared in November 1995, which simply stated that 'As he is denying that he committed the offences for which he was charged, he is not suitable for a placement on a SOTP'.

This report is based on a file review including Judge's Sentencing Remarks, discussion with [Community Corrections Officer], CCO, and the two interviews with Mr Varney. …

(Page 22)

In appraising risk of sexual re-offence two broad sets of risk factors have been considered, based on research by Fisher and Thornton (1993). Firstly the actuarial factors which are unchangeable critical factors and include factors such as age, number of victims, type of offence etc. The second set of factors pertains to clinical domains and can change. They include items such as remorse or insight into offending patterns.

…

Risk Assessment

Mr Varney's offence history contains 2 statistical risk factors; namely that the victims were extra-familial and that the offences were of a homosexual nature. This gives risk to an initial risk classification of medium-low risk of reoffence.

Other Static Factors

In Mr Varney's favour, he does not appear to have used overt violence in his offending. However, he did manage to coerce both his victims to engage in anal sex, which is towards the higher end of the scale.

The following factors elevate his risk level: Mr Varney has two distinct male victims, aged between 13 and 17 years; perhaps indicating a preference for pubescent boys.

He certainly appears quite sophisticated in the method used to acquire his victims. …

Mr Varney used alcohol with both victims, presumably to disinhibit them, and 'agree' to sexual activity.

Dynamic Factors

In interview, Mr Varney was unwilling to discuss his sexual preferences or his values in regard to the appropriate age for consensual sex. He would throw off with references to the fact that he had been married and would fluctuate in his responses giving the impression that his preference was for women over 40 at one time and that he much preferred younger people at another. He declined to answer whether he had ever had any homosexual contact, legal or otherwise.

(Page 23)

He continued to strongly deny having committed the offences as convicted. He expressed some bitterness towards his victims, claiming that one was motivated by money and the other was a follower of Satan. He claimed a discrepancy in dates. Yet when he was asked if he had ever had sexual contact at any time with these boys (legal or otherwise) he preferred not to answer.

Mr Varney does seem to have some community supports. However, on discussing the activities he planned to engage in on release, he was somewhat avoidant. Looking at his lengthy submission for parole he has plans to produce a musical which would be likely to have boys in the cast and he has indicated to the Community Corrections Officer that he would continue with his circus acts. In contrast, he mused that he would be unlikely to engage in the 'entertainment industry' when conversing with the report writer. This raises 2 concerns. Firstly it clearly puts his veracity into question. Secondly, it appears likely that he would be able to gain access to potential victims.

The time frame of Mr Varney's offending also adds to his risk level. He is known to have offended in 1978 and again from 1987 through to 1991. As he presents with a stance of denial it is difficult to ascertain if he has the ability, the knowledge or the will to manage and control his sexually deviant behaviour.

Mr Varney has not engaged in any treatment not [sic] nor addressed his offending behaviour in any way. In summary Mr Varney's risk level is compounded by both the Dynamic and Static factors thus raising his perceived risk level from the actuarial factors to at least Medium Risk.

Summary

Mr Varney has convictions against two boys, commencing when they were 13 and 15 years, culminating in anal penetration. He used fairly sophisticated techniques of enticement involving the entertainment industry and further seduced his victims with the use of alcohol and pornography. He presents with a high level of denial together with resentment towards his victims. He has expressed no remorse for his actions and patently has no victim empathy. On release he may well engage in high risk activities and be in a strong position to gain access to potential victims. His lack of co-operation with

(Page 24)

the assessment process and his level of veracity do [sic] not bode well for his ability to respond well to parole supervision. Although his perceived risk of reoffending is only in the medium range, based on no information, the weakness of his parole plan appears to give an unacceptably high risk for release to the community at this stage."

47 On 31 December 1999 the Director of Sentence Management reported to the Chairman of the Parole Board in the following terms:

"Mr Varney has no previous criminal history and received good prison Industry and Conduct Reports. It is noted that his parole plan is not considered viable by Community Corrections Officer [Community Corrections Officer] due to the proposed address being in the vicinity of a private school, a railway station and recreational facilities, where the probability of unsupervised contact with children is high.

Mr Varney was assessed on November 14, 1995 as being unsuitable for placement on a Sex Offenders Treatment Programme due to his denial that any of the offences occurred, and therefore if the Board deemed him suitable for release it would be as an untreated sex offender. The Sex Offender Treatment Unit has arranged for further assessment for treatment suitability.

Release to parole at his EED would appear to be premature."

The "EED" is the applicant's earliest eligibility date for release on parole.

48 On 20 January 2000 the Secretary of the Parole Board advised the applicant that the Parole Board had that day considered his case and made the following decision "based upon the reports and information presented to it". The decision was "[d]efer release on parole". The reasons given were the following:

"Failure to address offending behaviour (SOTU), unsuitable parole plan. Independent risk assessment still required notwithstanding SOTU. Independent report to address matters raised in SOTU. Review generally after receipt of updated Community Corrections Officer report and independent report."

49 On 8 February 2000 a psychologist issued a report of an assessment he had undertaken of the applicant. According to the report the purpose of the assessment was "general psychological appraisal". The Community

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Corrections Officer had referred the applicant to the psychologist on 7 February 2000. The psychologist noted that, in the course of the interview that he had with the applicant, the applicant showed an unusual conversational style characterised by embellishment, evasiveness and suspicion. He said:

"[The applicant's] personality is best understood as a specialisation of verbal-intellectual capacity along with general atrophy of the faculties of sensory awareness, of awareness of outer reality and awareness of inner emotional states. Where the 'normal' person has a reasonable balance in attending to the outer reality (what he or she sees and hears in the external environment), the inner reality (awareness of emotions and physical feelings) and the intellectual reality of thoughts, ideas, memories, etc, [the applicant] lives in his intellectual zone and has diminished contact with the first two zones of awareness. This largely deprives him of the capacity to feel anger or compassion and also of the external data he needs to test the validity of the stuff he generates in his mind. The consequence is a pervasive denial of events that do not suit his mental picture and a chaotic inner state that must be constantly suppressed."

According to the psychologist, "a pre-occupation with sexual themes clearly emerged from the personality assessment". Further, the applicant lacked "empathy and compassion towards others". The psychologist concluded:

"[The applicant] intellectualises and has diminished contact with, and awareness of, his inner emotional states and also his external environment. As a corollary of these dynamics he is strongly in a state of denial, and ascribes his imprisonment to prejudice and falsehood in his trial.

He has an ongoing preoccupation with sexual themes.

Given the combination of denial, low empathy and sexual preoccupation, he is regarded as being at high risk of reoffending in the same manner as before."

50 On 25 February 2000, the Ministry of Justice prepared a report relating to the "Security Rating and Placement" of the applicant. Under the heading "Summary of Current Behaviour", the following appeared:

(Page 26)

"Varney is studying various subjects in the Education Centre such as [c]reative [w]riting, [p]sychology and [c]omputer [t]raining. Tutors state he is quiet and … no problems in this area."

Under the heading "Conduct Report", the following appeared:

"He is not considered to be a management problem and is always polite and courteous towards staff."

Under the heading "Recommendation", the following appeared:

"Due to Varney's strong stance of denial, the writer recommends that Varney remain at Medium Security and to be reviewed again on 20/04/2001 for security rating and placement after he's been reassessed by Sex Offender Treatment Unit."

Under the heading "Sentence Plan", the following appeared:

"Unsuitable for Sex Offender Treatment Programme due to his denial."

51 On 25 February 2000 a "decision slip" relating to an application made by the applicant for re-classification of his security rating was endorsed on behalf of the Ministry of Justice and, under the heading "Security Rating and Placement", the following appeared:

"1. Remain Medium Security in view of current approval, nature of offences and unwillingness to address offending behaviour

…

4. Prisoner is again advised that failure to address his offending behaviour may jeopardise his opportunity for further reduction in security rating and participation in Home Leave, CBWR and/or Parole.

…

Excellent conduct and industry reports noted.

Review 20/04/2001 for security rating and placement."

This endorsement is accepted as being a decision by the Director General refusing the applicant's request for re-classification of his security rating and is a decision that is challenged in these proceedings.

(Page 27)

52 On 29 June 2000 the Secretary of the Parole Board sent to the applicant a letter recording a decision by the Parole Board said to be "based upon the reports and information presented to it". The decision was as follows:

"Defer Parole.

For the following reason(s):

Risk of reoffending, risk assessment of independent psychologist noted. Prisoner needs to address offending behaviour (SOTP) before Board will review again."

This decision by the Board is also challenged in these proceedings.

The refusal by the application to admit guilt

53 As can be seen from the history set out above, the applicant's refusal to admit his guilt in respect of the offences of which he was convicted has led to the prison authorities forming the opinion that he has not been willing to attempt to resolve his sexual problems. This has had a significant and adverse effect on the various applications the applicant has made for the amelioration, in different ways, of his sentence of imprisonment. As these applications, in effect, have given rise to these proceedings, I think it appropriate to make some general comments in regard to the approach that has been taken in this respect.

54 As I have mentioned, the applicant volunteered on seven occasions to undertake the SOTP. There is no direct evidence before the Court as to why he was refused entry to the programme. The inference, however, is that it is a fundamental tenet of the SOTP that the prisoner should acknowledge and accept full responsibility for his criminal conduct and, should he not do so, the programme would have no rehabilitative effect. If this inference is correct, the attitude of those administering the SOTP can be well understood. It would be pointless to expend much needed resources on a prisoner when it is thought, on reasonable grounds, that that expenditure is bound to be fruitless.

55 On the other hand, it is important to bear in mind that it is not particularly unusual for a prisoner to deny guilt for the offences of which he has been convicted. As Stuart-Smith LJ pointed out in R v Secretary of State for the Home Department, Ex parte Zulfikar [1995] TLR 441 at 442:

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"There might be a variety of reasons why a prisoner would not accept his guilt.

He might genuinely have been wrongly convicted. He might be unwilling to accept that he had lied in the past or he might be unwilling to confront loss of face in accepting what he had hitherto denied. Such a man might in all other respects be a model prisoner."

According to the Parole Board Report for the year ended 30 June 1998 submitted to Parliament pursuant to s 112 of the

Sentence Administration Act 1995

(the "Rowland Report"), the Hon B W Rowland QC, the then Chairman of the Board, said:

"At the end of April there were some 412 sex offenders in Western Australian prisons which is between some 17 and 20 per cent of the entire prison population. Of these, approximately 65 per cent were either enrolled in sex offender treatment programmes or waitlisted for inclusion in a programme. These programmes vary in intensity from 3 to 4 or 9 months duration. The balance of sex offenders, being approximately 35 per cent, are not eligible for any number of reasons, often because the prisoner remains in denial."

It seems, therefore, that at any given time there are a not insignificant number of sex offenders in Western Australian prisons who are not eligible for the sex offender treatment programmes presently available solely because they deny that they are guilty of the crimes of which they have been convicted.

56 Further, according to the Rowland Report:

"There is a programme which has been devised for those in denial but funding has not been made available for this, and there appears to be a perception amongst some prisoners that their failure or ability to enter a programme means that the prisoner spends much more time in prison after his or her first eligibility date for parole than is the case with most other prisoners. The Board would see merit in increasing the number of rehabilitation programmes which would avoid this perceived imbalance."

It seems that funding has still not been made available for those prisoners "in denial". On the evidence before the Court, there does not seem to be

(Page 29)

any programme available in the Bunbury prison that would assist prisoners who deny their offences.

57 When regard is had to the variety of reasons why a prisoner might deny his guilt, it would be wrong to infer that merely because a prisoner asserts that he is not guilty (and therefore has not participated in a SOTP) he would be more than a minimum risk to the personal safety of people or particular individuals in the community. The denial of guilt and non-participation in the SOTP may well be relevant to this question and may tend to render the applicant unsuitable for parole, but alone they are not conclusive: R v Secretary of State for the Home Department, Ex parte Zulfikar at 442 per Stuart-Smith LJ; R v Parole Board, Ex parte Zulfikar, unreported; UKCA; 28 April 1997; Webster v Corrective Services Commission (Q) (1998) 103 A Crim R 63 at 68 per White J.

58 Accordingly, it would not be appropriate to make decisions dependant on a view of the risk a prisoner would present to the community by focussing solely or principally on the prisoner's failure to admit guilt. As the present regime in the Bunbury system does not allow those who deny their guilt to participate in the SOTP, it would similarly not be appropriate to take such decisions by reference solely or principally by reference to whether the prisoner concerned has participated in a SOTP. Such an approach would preclude due attention being given to other factors that might have an important bearing on the question.

59 It is apparent from the Rowland Report that training programmes may be devised whereby an offender may be able to address offending behaviour without admitting guilt. It seems, however, that at present the only programmes available in the Bunbury prison are those that require admission of guilt as the price of entry. It does not follow, however, that in that prison there are no other means whereby the security risk posed by an offender "in denial" might be assessed. For example, the applicant's behaviour and conduct in prison, his age, his general attitude and his physical state are factors to which regard could be had. In addition, assessments of a prisoner's psychological state could be made by suitably qualified professional persons. I note that the Chief Executive Officer may require a prisoner be examined by a psychiatrist (see s 38 of the Prisons Act 1981) and, pursuant to s 19(1) of the Sentence Administration Act, may then report to the Board on the psychiatrist's findings.

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The decision of the Board to defer parole

60 I turn now to the decision of 29 June 2000 concerning the applicant's application for parole. For the sake of convenience I shall repeat that the decision by the Board was said to be "based upon the reports and information presented to it" and the decision was in the following terms:

"Defer Parole.

For the following reason(s):

Risk of reoffending, risk assessment of independent psychologist noted. Prisoner needs to address offending behaviour (SOTP) before Board will review again."

61 Mr Marshall submitted the Board's letter of 29 June 2000 contained one decision. However in my view, the Board really made two decisions. The first was the decision to defer parole. The second was the decision that the applicant "needs to address offending behaviour (SOTP) before Board will review again". These two decisions are entirely separate and independent from each other. I will address each separately, commencing with the decision to defer parole.

62 At the outset, it is to be noted that the Board's statement that its decision was based upon the reports and information presented to it indicates that the Board relied on far more material for its decision than the mere fact that the applicant denied his guilt and did not undertake the SOTP. It is common cause that the reports and information presented to the Board comprised, at least, the report of 14 December 1999 by the Community Corrections Officer, the letter written on 17 December 1999 by the Community Corrections Officer to the Ministry of Justice, the report of 30 December 1999 by the Senior Programmes Officer (SOTU), and the report of 31 December 1999 by the Director of Sentence Management. In addition, the Board had before it the psychologist's report dated 8 February 2000.

63 The psychologist's report was not disclosed to the applicant personally. On 26 July 2000, when these proceedings first came on for hearing, this report was made available to Mr Marshall, the applicant's counsel, on the basis that it would not be shown to anybody else and would be retained in the court file in an envelope marked "Secret: Not to be opened without an order of the Court". On 8 November 2000, at the adjourned hearing, the Court, without opposition by any party, ordered that the report be read.

(Page 31)

64 In the course of argument, Mr Marshall tentatively suggested that the failure to disclose the report to the applicant himself prior to the making of the decision was a failure of natural justice and procedural fairness. However, no point of this kind can be made in the light of s 114(2) and s 115 of the Sentence Administration Act. Section 114(2) empowers the Board to withhold from the prisoner any or all of the reasons for a decision made by it. Section 115 provides that the rules of natural justice (including any duty of procedural fairness) do not apply to decisions of the kind now challenged.

65 Mr Marshall sought to criticise the reasoning contained in the psychologist's report and the qualifications and expertise of the psychologist. While there is some force in Mr Marshall's submissions, the psychologist's report does constitute evidence on which the Board was entitled to rely and the weight to be attached to those matters is entirely a matter for the Board. This Court cannot substitute its own opinions for those of the Board. I am not persuaded that the report does not contain appropriate evidence on which a reasonable Board would be entitled to rely.

66 It is to be noted that on 20 January 2000, that is, on an earlier occasion, the Board decided to "[d]efer release on parole" for the following reasons:

These reasons differ from those given for the challenged decision of 29 June 2000, namely, "[r]isk of reoffending, risk assessment of independent psychologist noted". In particular, the decision of 20 January 2000 was made before the Board had received the "[i]ndependent risk assessment" that was "still required" and was based principally on the "[f]ailure to address offending behaviour (SOTU)" as well as the "unsuitable parole plan". The decision of 29 June 2000, on the other hand, was based on the "risk of reoffending" and was taken after receipt of the psychologist's report (which, presumably, is the independent risk assessment referred to in the decision of 20 January 2000).

67 When regard is had to all the material that was before the Board when it made its decision of 29 June 2000, there can be no doubt, in my

(Page 32)

opinion, that there was sufficient evidence on which a reasonable body in the position of the Board could come to the decision that it did.

68 As regards the nature of the offences, the Senior Programmes Officer (SOTU) took into account the fact that the victims of the offences were "extra-familial", the offences were of a homosexual nature, they involved anal sex, they involved pubescent boys, the methods used by the applicant to seduce his victims were sophisticated and included alcohol to reduce their inhibitions. Additionally, in the interview with the applicant, he did not wish to discuss his sexual preferences or his values in regard to the appropriate age for consensual sex and, when asked whether he had sexual contact at any time with his victims, he preferred not to answer. The Senior Programmes Officer raised legitimate questions about the veracity of the applicant, generally.

69 The Senior Programmes Officer concluded that "on release he may well engage in high risk activities". She accepted that by reason of the applicant's denial it was difficult to ascertain "if he has the ability, the knowledge or the will to manage and control his sexually deviant behaviour". Nevertheless, by reference to the factors to which she referred, the Senior Programmes Officer concluded that there was the high risk to which I have referred. These views were consistent with those of the Community Corrections Officer as set out in her reports.

70 Moreover, the parole plan suggested by the applicant gave rise to a high probability of unsupervised contact with children. Finally, the opinion of the psychologist that the applicant was "at high risk of reoffending in the same manner as before" could be regarded as compelling evidence militating against the grant of parole.

71 I accept that in coming to its decision the Board took into account the denial of guilt by the applicant and the fact that for that reason he was not admitted to and did not undertake the SOTP. In my view, the inference to be drawn from the words expressing the decision is that the Board had regard to these matters on the basis that both the denial of guilt and the non-participation in the SOTP were factors tending to render the applicant unsuitable for parole. In my view, the Board was entitled to regard these matters in that light and so take them into consideration: Mott [1994] 75 A Crim R 74 at 82 and 83 per Fitzgerald P, (at 88) per McPherson JA and (at 97) per Davies JA; R v Secretary of State for the Home Department, Ex parte Zulfikar; R v Parole Board, Ex parte Zulfikar.

72 Section 26 of the Sentence Administration Act 1995 provides:

(Page 33)

"(1) This section applies in the case of a prisoner who is serving a parole term and who is eligible to be released on parole.

(2) Instead of making a parole order releasing the prisoner on the date when under section 21 he or she would otherwise have to be released on parole, the Board may -

(a) postpone the parole of the prisoner by making a parole order in which the specified release date is a later date;

(b) defer making a parole order; or

(3) The Board must not make an order under subsection (2) unless there appears to the Board to be special circumstances which justify it in doing so having regard to -

(a) the nature and circumstances of the offence for which the parole term was imposed;

(b) the degree of risk that the release of the prisoner appears to present to the personal safety of people in the community or of any individual in the community; and

(c) any other matter relevant to deciding that the prisoner would not be released on the date when under section 21 he or she would otherwise have to be released on parole."

73 The decision of 29 June 2000 deferring parole does not expressly state that the Board found there to be special circumstances that justified the deferring of a parole order. Nevertheless, the statement that the "risk of re-offending" was the reason for its decision is a clear reference to the phrase in s26(3)(b), "the degree of risk that the release of the prisoner appears to present to the personal safety of people in the community or of any individual in the community". In my opinion, the decision of 29 June 2000 is to be construed as a decision based on a finding of special circumstances that justified the Board in deferring making a parole order. I should say that no submission to the contrary was made by Mr Marshall.
(Page 34)

74 These findings, in effect, dispose in substance of all the arguments made by Mr Marshall in regard to the decision to defer parole. In all the circumstances I would dismiss the application for prerogative relief in relation to this decision.

The Board's decision to delay a review of its decision

75 Section 28 of the Sentence Administration Act provides that if the Board defers making a parole order, it is not precluded from granting the prisoner release on parole at a future date. In my view, it is implicit in the Sentence Administration Act that once a parole order is deferred a prisoner may at any time thereafter request the Board to review its decision. Should that occur, the Board must consider and deal with that request.

76 In my opinion, by stating that "prisoner needs to address offending behaviour (SOTP) before Board will review again", the Board was saying that it would not again review its decision relating to the applicant's entitlement to parole until he participates in an SOTP.

77 As participation in a SOTP is dependent on admission of guilt, it follows that the Board, in effect, decided not to review its decision until the applicant admitted his guilt. That is to say, by its decision of 29 June 2000, the Board decided that the applicant would never be entitled to be released on parole until he admitted his guilt.

78 In Suresh v The Queen (1998) 72 ALJR 769 Kirby J (at 781) commented:

"Enforced admissions of guilt, as the effective price of liberty, are not normally a feature of criminal justice in Australia. Whilst an acknowledgment of wrongdoing in the undertaking of such courses may be useful in particular cases, the extraction of admissions by the prospect of early release from custody will often lack integrity and may affront the dignity of the conscience even of a convicted person. A better means of encouraging participation in the treatment course should, in my view, be considered. A discretion to accommodate the exercise of legal rights and also cases of conscientious objection … would be highly desirable, if not legally required."

79 Apart from the compelling force of these sentiments, the Board has erroneously regarded the denial of guilt and the non-participation in the SOTP as being conclusive of the question whether parole should be

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granted. I have pointed out, however, that - while these are relevant matters - there are other factors to which the Board is duty bound to have regard. In the case of the applicant, it is obvious that, in the passage of time, age and illness on their own may reduce the risk of offending to a bare minimum.

80 As a matter of law, the discretion vested in the Board must be exercised by reference to all relevant material. By deciding not to review its decision until the applicant admits guilt and participates in an SOTP, the Board has invalidly fettered its discretion. In my view, the Board erred in this respect.

81 In the circumstances, I consider that the applicant is entitled to have the order nisi for a writ of certiorari relating to the Board's decision of 25 June 2000 made absolute to the extent that it relates to the Board's decision not to review its refusal of parole until the applicant addresses his offending behaviour by participating in an SOTP. I do not think that it is necessary for a writ of mandamus to issue in respect of this decision, as once the decision is quashed and the Board receives a new application by the applicant, it will be required to decide the question afresh.

The Board's decision to refuse to grant a work release order

82 I now come to the application for prerogative relief relating to the decision made by the Board on 23 December 1999 whereby the Board refused the applicant's application for a work release order.

83 The Board's duties in relation to work release orders are set out in s 48 of the Sentence Administration Act, which provides:

"(1) The Board must consider the case of every person who applies to be released under a WRO and may, in respect of such a prisoner -

(a) make a WRO;

(b) defer the making of a WRO; or

(2) The Board must not make a WRO in respect of a prisoner unless satisfied that the prisoner is a person whose release would pose a minimum risk to the personal safety of

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people in the community or at any individual in the community."

Section 48(2) in effect casts the burden on the prisoner to satisfy the Board that he "is a person whose release would pose a minimum risk to the personal safety of people in the community or to any individual in the community".

84 The reasons given by the Board for dismissing the applicant's application for a work release order were:

"More than a minimum risk due to failure to address offending behaviour (SOTP). Section 19(1) referral to Board requires independent risk assessment as in denial, before determination of eligibility for parole. Review 20.1.2000."

The reference to "[s]ection 19(1)" in the Board's reasons, is apparently a reference to s 19(1) of the

Sentence Administration Act

which entitles the Chief Executive Officer to report to the Board about matters referred to in s 26(3) in regard to a prisoner serving a parole term that is not a special term. The "referral" appears to be a reference to the report of 17 December 1999 that I have mentioned above. As mentioned, that report stated:

"SOTP report indicates prisoner denies the offences and is therefore not suitable for inclusion in the SOTP. The SOTU advises that he will be re-assessed in the next few weeks."

Significantly, therefore, the Board decided to deny the applicant a work release order before receipt of the "independent risk assessment" (referred to in the decision of 23 December 1999). From the Board's reasons it is apparent that it decided that there was "more than a minimum risk" solely by reason of the "failure to address offending behaviour (SOTP)". Accordingly, the comments I have made concerning the Board's decision that the applicant needed "to address offending behaviour (SOTP) before Board will review again", apply equally to the decision to refuse a work release order. In my opinion, in determining that the applicant was "more than a minimum risk" the Board failed to have regard to all the relevant factors and invalidly fettered its discretion.

85 In resisting the argument that the Board's decision of 23 December 1999 was invalid, Mr Tannin, counsel for the Board and the Director General, pointed to the fact that under s 48(2) of the Sentence Administration Act the Board was obliged to refuse to make a work release order unless it was satisfied that the prisoner would pose a

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minimum risk to the personal safety of people in the community or of any individual in the community. The Board, it is true, was not so satisfied, but, in making a decision to that effect, the Board did not take into account all relevant factors and applied a rigid policy to the issue. In my view the decision was not made in accordance with law.

86 Nevertheless, although I consider that the decision of the Board to refuse to order that the applicant be granted work release was invalid, I am not persuaded that the order nisi in regard to this decision should be made final.

87 It is settled that certiorari is a discretionary remedy: Gudgeon v Black (1994) 14 WAR 158 at 177 - 178 per Malcolm CJ. As a matter of discretion, an order for the issue of a writ of certiorari will not ordinarily be made if the Court considers that that would be a futile remedy: R v Aston University Senate; Ex parte Roffey [1969] 2 QB 538 at 554 – 555; Malloch v Aberdeen Corporation [1971] 1 WLR 1578; Re Brown; Ex parte Savage, unreported; SCt of WA; Library No 7260; 31 August 1988 per Nicholson J; Hodgens v Gunn; Ex parte Hodgens [1990] 1 Qd R 1 at 6-9. It is this consideration that leads me to conclude that a writ of certiorari should not issue.

88 It is arguable that, should the decision of 23 December 1999 relating to the work release order be quashed, the Board would be required to make a decision based only on the material then available to it. On the evidence of the reports then in existence, there is every reason to believe that the Board would come to the same decision.

89 If the Board is entitled to have regard to factors that have supervened since 23 December 1999, it would no doubt be heavily influenced by the psychologist's report of 8 February 2000. In making its decision of 29 June 2000 to defer parole, the Board in effect held that the applicant was more than a minimum risk to the personal safety of people in the community. This decision appears to have been based to a significant degree on the psychologist's report. There is no evidence that anything has occurred since 29 June 2000 that would result in the Board coming to any other decision and, if no further investigations are made, the overwhelming probabilities are that the Board will conclude that, because of the risk to the community, a work release order should be refused.

90 In the circumstances, in my view, it would be futile to quash the decision of 23 December 1999. I would therefore refuse prerogative relief

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on the grounds of futility. In my opinion the order

nisi

concerning this decision should be discharged.

91 This would not be the end to the applicant's prospects of obtaining work release. Even if the Board refuses to grant a work release order, it is empowered by s 49(4) of the Sentence Administration Act to reconsider, at some future time, whether the prisoner should be granted work release. Accordingly, it is open to the applicant to make a new request to the Board to grant him a work release order, and in so doing to make submissions to the Board in the light of these reasons and to put to the Board the criticisms of the psychologist's report made by Mr Marshall. It would then be open to the Board to make whatever investigations it deems desirable and, in particular, to call for a psychiatrist's report or some other suitable report relating to the applicant's condition and security rating. This, indeed, might be thought to be appropriate having regard to the time that has elapsed since the psychologist's report was obtained. The Board would then be in a position to review the situation in the light of all relevant factors. In my opinion, this would be a more desirable consequence than the situation that would obtain should the decision of 23 December 1999 be quashed.

The Director General's decision regarding the work release order

92 The orders initially sought by the applicant against the Director General, concerning the decision of 17 December 1999 not to recommend the release of the applicant on a work release order, were not pressed. The primary relief sought by the applicant on this issue concerned the subsequent decision made by the Board on 23 December 1999 refusing to grant him a work release order, and I have dealt with that under the previous heading.

93 I have pointed out that it would be open for the applicant to apply again for a work release order and should that occur the issues that arise should be investigated afresh. In that event, the Director General would be required to make a new recommendation to the Board.

94 In the light of the attitude of the applicant to the decision of 17 December 1999, and having regard to the other matters that I have mentioned that are relevant to the exercise of the Court's discretion, I would refuse the application against the Director General for prerogative relief in that connection and would discharge the order nisi in respect thereof.

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The Director General's decision regarding re-classification of the security rating

95 The decision by the Director General refusing the applicant's application to re-classify his security rating to minimum security was made on 25 February 2000. That was a decision of some significance. I have pointed out that the decision made by the Director General refusing the applicant home leave depended on his decision not to alter the applicant's security rating from medium security to minimum security (this being the consequence of subr 14.1.3 of Rule 7A of the Director General's Rules).

96 For the sake of convenience I shall repeat that the decision of 25 February 2000 was recorded in the following terms:

"Remain Medium Security in view of current approval, nature of offences and unwillingness to address offending behaviour."

By that decision, the applicant was also informed that "failure to address his offending behaviour may jeopardise his opportunity for further reduction in security rating …".

97 The phrase, "current approval", is a reference to the applicant's existing security rating of "medium security" and is not a reason for refusing to alter it. Accordingly, the reasons expressly given by the Director General for the refusal to re-classify the security rating were the nature of the offences and the applicant's unwillingness to address his offending behaviour.

98 The nature of the offences is a static factor and, although the offences committed by the applicant, and the circumstances relating thereto, can properly be described as very serious and abhorrent, they do not preclude the possibility of the applicant achieving a minimum security rating. This is recognised by the consideration given by the Director General to the applicant's willingness to address his offending behaviour. The latter becomes a factor of considerable significance. The evidence of unwillingness on the part of the applicant consisted of his denial of guilt in regard to the offences of which he was convicted. This has to be considered in the light of the fact that, as I have mentioned, the applicant had volunteered on seven occasions to undertake a SOTP. The observations of Kirby J in Suresh v The Queen (at 781) are relevant to this issue as well.

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99 Taking the reasons given for the refusal of the applicant's application for a change in his security rating at face value, it seems that the Director General has erroneously regarded the denial of guilt alone as unwillingness to address offending behaviour. After all, once the applicant's failure to participate in the SOTP is caused only by the authorities' refusal to allow him entry because of his failure to admit guilt, that failure cannot be an additional reason to assess him as being unwilling to address his sexual problems.

100 A decision by the Director General as to the security rating of a prisoner is an administrative decision taken in an administrative capacity (but, particularly having regard to its consequences, is a function of the Director General that is to be performed judicially). In my view, to discharge that duty according to law, the Director General is required to have regard to all relevant factors. The Director General should not focus on the denial of guilt and the nature of the offences and exclude consideration of all other factors that may be material. That would not be a proper exercise of the powers afforded to him under the Director General's Rules.

101 In my opinion, from the history of this matter which I have set out above, it is apparent that the Director General has adopted a policy of not reducing the security rating of any sex offender to minimum unless that offender has admitted guilt in respect of the offences for which he has been convicted, gained entry to the SOTP and completed the SOTP successfully. The application of this policy in a rigid way has led the Director General, in my opinion, to fetter his discretion unlawfully.

102 In my opinion, the focus directed to the admission of guilt and the nature of the offences alone, the omission to consider all relevant factors, and the application of the policy to which I have referred have, together, resulted in a jurisdictional error on the part of the Director General: Craig v South Australia (1995) 184 CLR 163 at 175 - 178. In my view, the decision of 25 February 2000 was not taken in accordance with law.

103 In resisting the applicant's application, Mr Tannin, submitted that there were two aspects of the matter which should lead this Court to refuse to grant the prerogative relief sought in the exercise of its discretion. This submission was made in the written outline of submissions filed on behalf of the Director General but was not advanced by Mr Tannin in the course of his oral submissions. I shall deal briefly with the points made.

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104 Mr Tannin submitted that certiorari should be refused because the applicant had a right of appeal against the decision to maintain his security rating, and he had not exercised that. While the applicant indeed did not appeal against the decision concerning his security rating, he appealed against the decision refusing him home leave. That appeal was dismissed because his security rating remained unaltered. It is plain from the reasons given for that decision that the decision was based on precisely the same approach as that which, in my view, tainted the decision in relation to the dismissal of the application in regard to the security rating. That being so, it seems to me that an appeal would have been pointless. I do not think it was incumbent upon the applicant to go through the motions of a further appeal in the circumstances that obtained.

105 Further, Mr Tannin referred to the delay of over seven months in making the application in relation to the security classification determination of 29 February 2000 (see in this regard O 56 r 11 and O 56 r 27 of the Rules of the Supreme Court 1971). In the light of the difficulties caused by the fact that the applicant is a prisoner and, having regard to the absence of any allegation of prejudice on the part of the Director General caused by the delay, I do not regard the delay as material.

106 Nevertheless, as a matter of discretion I would not grant the prerogative relief sought. I have come to the conclusion that such relief would be futile for the same reasons as I have set out in regard to the application for prerogative relief against the Board in regard to its refusal to grant the applicant a work release order. In the light of the fact that on 29 June 2000 the Board decided in effect (when deferring parole) that the applicant was more than a minimum risk to the personal safety of people in the community, it is unlikely that - on the same material that would be before the Director General - he would come to a different conclusion in regard to the applicant's security rating.

107 On the other hand, there is nothing to preclude the applicant from applying afresh for a re-classification of his rating. The Director General would then be required to investigate the situation as at the date such an application is made, and would be required to do so according to law in the light of these reasons. It would be open to the Director General to consider other avenues for the assessment of the likelihood of the applicant's re-offending. In my view that would be a far more preferable approach than quashing the decision of 29 February 2000, which will have the result of the Director General being required to make that decision again, arguably only by reference to the material available to him

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at that date (with the overwhelming probability that the decision would be to the same effect).

The Director General's decision concerning home leave

108 As I have pointed out the decision made by the Director General refusing the applicant home leave depended on his decision not to re-classify the applicant's security rating. In the circumstances I consider that the decision refusing home leave is tainted with the same unlawfulness as the decision refusing re-classification. Nevertheless, as it is open to the applicant to apply afresh for home leave, for the same discretionary reasons that I have expressed in regard to the re-classification decision, I would not grant prerogative relief in regard to the decision refusing home leave.

Conclusion

109 To summarise, as regards the relief claimed against the Board, I would make absolute the order nisi relating to the writ of certiorari concerning the decision of the Board of 29 June 2000 requiring the applicant to "address offending behaviour (SOTP) before the Board would review his parole eligibility again". I would not grant any other relief in respect of the other orders nisi.

110 WALLWORK J: I agree with the reasons for judgment of Malcolm CJ and Ipp J and to the orders proposed by their Honours.

Varney v Parole Board of Western Australia

[2000] WASCA 393

15 DECEMBER 2000

VARNEY -v- PAROLE BOARD OF WESTERN AUSTRALIA [2000] WASCA 393