Victor Leslie Walker v Queensland Corrective Services Commission
[1999] QSC 49
•18 March 1999
IN THE SUPREME COURT
OF QUEENSLAND
No. 7621 of 1998
Brisbane
Before White J
[Victor Leslie Walker v Queensland Corrective Services Commission]
BETWEEN:
VICTOR LESLIE WALKER
Applicant
AND:
QUEENSLAND CORRECTIVE SERVICES COMMISSION
Respondent
REASONS FOR JUDGMENT - WHITE J
Judgment delivered 18 March, 1999
CATCHWORDS: ADMINISTRATIVE LAW - Statutory review - refusal to grant remission - failure in past to acknowledge guilt - illiteracy prevents participation in relevant programs - failure to consider relevant present circumstances of applicant.
Counsel:J Davidson for applicant.
M Plunkett for respondent.
Solicitors:Poteri Woods for applicant.
Crown Solicitor for respondent.
Hearing Date: 10 March 1999.
IN THE SUPREME COURT
OF QUEENSLAND
No. 7621 of 1998
Brisbane
Before White J
[Victor Leslie Walker v Queensland Corrective Services Commission]
BETWEEN:
VICTOR LESLIE WALKER
Applicant
AND:
QUEENSLAND CORRECTIVE SERVICES COMMISSION
Respondent
REASONS FOR JUDGMENT - WHITE J
Judgment delivered 18 March, 1999
1. The applicant has applied for a statutory order of review in respect of a decision of a delegate of the respondent made on 23 June 1998 to refuse to grant remissions in respect of the applicant’s sentence of imprisonment.
2. On 21 November 1991 at the District Court at Brisbane the applicant was found guilty of one count of rape and was sentenced to 14 years imprisonment. He appealed against both conviction and sentence. The Court of Appeal dismissed his appeal against conviction but gave him leave to appeal against his sentence, granted the appeal and substituted a sentence of 10 years imprisonment.
3. The applicant has an extensive criminal history going back to 1967 when he was a child. He is now 43 years of age. The offences however relate to minor property offences, particularly unlawful use of motor vehicles together with offences involving alcohol and illegal drugs. It seems to be the case that the applicant was under the influence of alcohol when he committed the rape which was against a 12 year old girl who lived in the same boarding establishment. At the time he would seem to have been an alcoholic. For some years the applicant denied guilt for the offence but has come to accept that he was responsible although he cannot remember all the details. This would seem to be because of his consumption of alcohol. He is also illiterate and remains so despite extensive tutoring whilst in prison.
4. The applicant’s date for discharge on the expiration of his sentence is 20 November 2001. His earliest discharge with full remissions was 25 June 1998, his release to work date was 21 July 1995, and his home detention program date 21 July 1996 and his parole date eligibility was 21 November 1996.
5. The applicant has been refused release on parole or on any other community based release options. The Queensland Community Corrections Board’s reasons dated 29 April 1997 were that the applicant posed an unacceptable risk to the community and he had no satisfactory release plan.
6. By its letter dated 14 May 1998 the respondent by its authorised delegate advised the applicant that it was considering refusing the grant of remission on his sentence. It was noted that the applicant’s “institutional conduct and industry has been of an acceptable standard” but concluded “when having regard to all aspects of your case ... that you would present a high risk of reoffending in a sexual manner if you were to be released unsupervised and that the risk to the community would be unacceptable”. In fact the applicant’s institutional performance was described by the Sentence Management Team considering the applicant’s remission entitlement as “excellent”.
7. By letter dated 15 June 1998 the applicant responded to that intimation expressing extreme disappointment at the attitude of the delegate against his attempts to address his offending behaviour in respect of which he enclosed a number of certificates for courses.
8. By letter dated 23 June 1998 the delegate advised the applicant that the respondent had decided not to grant remission on his sentence.
9. The statement of reasons was provided by letter dated 5 August 1998. The delegate took into account when reaching her decision, inter alia, the remission form from the Sentence Management Committee at Lotus Glen dated 16 April 1998; the letter refusing parole from the Queensland Community Corrections Board to the applicant dated 29 April 1997; the transcripts of proceedings in the District Court and the Court of Appeal; the applicant’s criminal history; a psychological report from Scott McLennan dated 12 May 1998; a psychological report by Tracey Clarke dated 17 July 1996; a memorandum from psychologist Annette Vasey dated 8 June 1995; and the letter from the applicant to the Commission dated 15 June 1998, to which reference has been made.
10. The delegate stated that her decision was based on a number of findings of fact, namely:
·the applicant was convicted of one count of rape and sentenced to 14 years and successfully appealed against the length of the sentence;
·the offence was committed against a female child under the age of 16 residing at the same premises as the applicant;
·the applicant had not engaged in any therapeutic intervention aimed at addressing his sexually offending behaviour;
·the Queensland Community Corrections Board in its decision dated 29 April 1997 refused release on parole because it was not satisfied that the applicant posed an acceptable risk to the community;
·the Sentence Management team recommended the granting of remission based on institutional conduct and behaviour.
11. The delegate’s decision was made for a number of reasons not all of which stand up to scrutiny and suggest that there has been no proper assessment of risk.
·“Imprisoned for an offence of a serious and exceptional nature”
The delegate stated that she took into account the transcript of proceedings in the District Court and Court of Appeal. The material exhibited with that description to the applicant’s material is only the very brief sentencing remarks of the sentencing judge and the order of the Court of Appeal. Although an affidavit has been filed by the delegate she does not depose that she had regard to anything more detailed. That she did not have, may be inferred from this passage in the reasons:
“The Judge also noted that he had looked at the facts of the case and taken into account all the circumstances surrounding the offence. It was also noted that at the time of sentencing Judge Pratt indicated that “... I do express my attitude that if it were me I would not let you out one minute before the statutory period.”
Accepting unreservedly that the rape of a 12 year old girl must be considered to be inherently a forceful act and an abhorrent act and a serious offence, there appears to have been no basis for referring to “the ... violent nature of the offences [sic]’ and concluding that the applicant was imprisoned “for an offence of a [n] exceptional nature,” see Yeo v Queensland Corrective Services Commission unreported decision of Dowsett J, no. 7534 of 1997 of 13 February 1998 at p. 4.
·“Appealed against the conviction and sentence”
The delegate stated that the fact that Mr Walker [the applicant] appealed against the conviction and sentence “indicates that he did not demonstrate a level of responsibility or of guilt on his part at the time of sentencing,” supported by psychological reports and memoranda. Given that the applicant’s appeal against sentence resulted in a reduction from 14 years to 10 years this is a curious observation. Failure to acknowledge guilt will clearly be an indication of a failure to accept responsibility for the offence. However, it is not axiomatic that an appeal against sentence is such an indicator since an offender may be quite prepared to accept responsibility for the offence but wish to be punished appropriately which a successful appeal generally must demonstrate that he was not at first instance.
·“Recently claimed full responsibility for the offence ... However ...”
The delegate noted that in the most recent psychological report, dated 12 May 1998 the applicant claimed full responsibility for the offence, with no indication of blame, minimisation or externalisation. However, she referred to previous reports wherein the applicant was reported as denying committing the offence. These were the reports of 8 June 1995 from Annette Vasey and 17 July 1996 from Tracey Clarke. Ms Vasey reported that she had engaged in individual counselling with the applicant but had discontinued because there were not avenues for further investigation given his denial stance. Ms Clarke concluded that the applicant’s request (by inference, in 1996) to participate in the sex offender’s treatment program was so that he could obtain a low security classification and noted that he still did not accept responsibility for his offence. She noted that he was refused admission to the course because of his literacy deficits and treatment motivation. She concluded that he was “a high risk to the community”.
The delegate made no further reference to the most recent and lengthy report by Scott McLennan of 12 May 1998. Mr McLennan had concluded at p.3.
“Victor Walker is a 43 year old male who has currently served nearly six and a half years of a ten year sentence for the rape of a young girl. It has been previously reported that due to his psychological profile indicating anti-social attitudes, it may be quite likely that this inmate is at a high-risk for re-offending once released. It has been noted that he may transgress against authority, rules and regulations in a less structured environment than that provided at the main centre of Lotus Glen Correctional Centre. Victor Walker reports a long history of substance abuse and a long history of offending.
Recently however, there has been some significant change of stance in this inmate’s perception of the offence as he now will openly admit to the offence, and does demonstrate some degree of both remorse for the offence and understanding of the consequences for the offence. He now claims full responsibility for his offence and there is no indication of blame, minimisation or externalisation. Also, there has been no recorded major infraction against the authority and rules of Lotus Glen Correctional Centre.
...
Other changes that have occurred for this inmate since he was last interviewed for the purpose of a psychological report are his more concrete plans for the future, involving the support of his family, and the continuance of his commitment to Alcoholics Anonymous which he will maintain once released.
...
There does indeed seem to be some significant changes for this inmate recently. I would recommend that before being released he could be transferred to a more open environment in order to monitor his progress without the more rigid institutional structures that are in place with in the main centre. This change in environment would be useful for two reasons. Firstly, it could serve to allow time for the recommendation regarding his placement in to the SOTP to come through, and secondly, it could be useful in regards to assessing his behaviour in a less structured environment. Placement in a less structured environment may give a more true indication of his future behaviour upon release, and also allow for a more gradual release back in to the community once he is indeed released, even if it must be until his full sentence is served.”
·“Had not engaged in any therapeutic intervention to reduce his risk of reoffending in a sexual manner.”
Apart from the references in the report of the sentence management team and Mr McLennan’s report the applicant himself in his letter dated 15 June 1998 set out the courses which he had completed and certificates and reports about them. They included courses on sexuality and relationships. It is simply incorrect then to maintain that he had not engaged in any therapeutic intervention. There are mixed explanations for the respondent’s refusal to permit the applicant to participate in the sex offenders program at the Moreton Correctional Centre. At least until 1997 or so the refusal appears to have been based predominantly on the applicant’s failure to acknowledge his guilt for the offence but with the added factor of his illiteracy. Ms Vasey, who co-ordinates the sex offenders program, swore an affidavit on 10 March 1999 in which she sets out the approach of the respondent to the applicant in respect to participation in that program. Her affidavit appears inconsistent about this, but perhaps it contains typing errors. In para 4 she deposes:
“I am aware that Mr Walker is quite illiterate, however I say that the fact of his illiteracy did not operate to disentitle the Applicant to participate in the SOTP. That program does contain various modules which, for example, require participants to provide a written detailed history of their offending behaviour. It is the case however that the program is operated with sufficient flexibility to permit illiterate persons to successfully negotiate the program, where such individuals also otherwise meet the criteria required for entry into the program. It is the case that previously other sex offenders who are profoundly illiterate, or who have minor difficulties understanding the English language have been able to successfully complete the SOTP. This has been made possible with the assistance of more individual intervention, assistance by educational services and other inmates and by adapting the program to allow for oral input to replace written tasks.”
Ms Vasey expresses the opinion that a fundamental prerequisite to participation in the SOTP is that a candidate fully and frankly accept his offending behaviour. She adds:
“It is the case that up until the present time the Applicant has not been assessed as suitable for inclusion in the SOTP. This has been as a result of his level of intellectual functioning not meeting the criteria for the SOTP. His lack of acceptance or understanding of his offending behaviour on his part resulted in a termination of individual counselling offered by myself to the applicant. As is evident in the material filed by the Applicant, he has for much of his current term of imprisonment refused to accept that he is guilty of the crimes for he was convicted. Notwithstanding his attitude in this regard having altered to the extent that he now openly accepts he did rape the child, the victim of his offence, he remained unsuitable for inclusion in the SOTP because he did not meet the criteria in relation to intellectual functioning,” paragraph 5.
Ms Vasey concludes:
“It was for the reasons outlined in the previous paragraph, and not due to his level of literacy, that the Applicant has to date has not been recommended for entry into the SOTP. Such reasons formed the foundation of my report dated 8 June 1995 (exhibit “O” to the Applicant’s affidavit). Notwithstanding his being illiterate Mr Walker could not be placed on the SOTP. However as stated above, for him to be placed on that program would also require a more genuine understanding and acceptance of his offending behaviour,” paragraph 6.
The delegate, from the reasons, does not appear to have been informed of this apparent ambivalent approach to the applicant’s participation in the sex offenders program. Her affidavit filed at the hearing merely states that there is no policy on the part of the respondent automatically to categorise a prisoner as an unacceptable risk to the community by the mere fact of non-participation in such a course and that she had no such policy.
·“Unacceptable risk to the Community”
The delegate concluded:
“The delegate noted that the General Manager and Sentence Management Team had recommended the granting of remission on the basis of positive institutional conduct and industry. However, when having regard to all aspects of the case the delegate concluded that Mr Walker presented a high risk of reoffending in a sexual manner if released unsupervised and that the risk to the community would be unacceptable.”
12. The Sentence Management team at the Lotus Glen Correctional Centre, where the applicant is held, in a report dated 15 April 1998 signed by the General Manager of the prison recommended:
“This inmate has been of good behaviour and industry, he has attempted to address his offending behaviour. His criminal history even though substantial does not indicate any patterns to suggest re-offending in this manner. He appears to have a good release plan where he returns to his family who are willing to provide him with support. I would recommend that he be granted his remissions and return to his family in South Australia.”
From information obtained from files and various reports it would appear that this inmate has tried to address his offending behaviour. He has not been successful in commencing the SOTP due to his literary [sic] skills and his previous denial of offence, his release plan appears to be sound, his behaviour has been bordering on excellent. He has undertaken various programs as recommended in an attempt to address his offending behaviour. It would appear that this inmate is intellectually challenged to some degree and there is doubt if he could successfully complete the program. I would recommend that this inmate be granted his remissions and return to his family in South Australia. Family support and monitoring by his family will significantly enhance the likelihood of his successful reintegration.”
In the course of the assessment under the heading “Community Indicators” concerning risk to the community the report noted the comments of the learned sentencing judge but also noted that there was no comment by the Appeal Court that he should not be released “one minute before the statutory period” [whatever, with respect, his Honour might have meant by that time period]. It was noted that he had no previous sexual offences prior to the current offence and “given this inmate’s release plan and should he be able to remain free from alcohol his risk to the community should be deemed as low.”
13. Regulation 21 of the Corrective Services Regulations 1989 provides:
“A prisoner serving a sentence of imprisonment of two months or longer and who is of good conduct and industry may, at the discretion of the Commission, and subject to the following provisions of this Part, be granted a remission of one-third of his sentence together with such other remission as is provided for in this Part.
(2) For the purposes of this Part a prisoner is of good conduct and industry if he -
(a)complies with all relevant requirements to which he is subject; and
(b)displays a readiness to assist in maintaining order and a willingness and genuine desire to maintain steady industry in every employment or work which may be required of him.”
14. Forfeiture of remission is provided for by r.27:
“Where, within the period of the sentence of imprisonment a prisoner ... he has not generally been of good conduct and industry, the general manager shall submit all relevant details together with his recommendation to the Commission for consideration by the Commission before the date on which the prisoner might ordinarily have been discharged ... had he been of good conduct and industry. ...”
15. In McCasker v The Queensland Corrective Services Commission [1998] 2 Qd R 261 Macrossan CJ noted at 263: “The discretion to grant or refuse remission will properly be exercisable having regard to the fact that a discretion, not subject to particular restriction, has been conferred so that all matters relevant to its exercise in the circumstances can and should be taken into account.” Helman J at 279-80 said: “It would clearly be a capricious exercise of the discretion provided for in Part III to refuse a prisoner whose conduct and industry have both been good when there is nothing of substance before the decision maker indicating that the risk to the community on the prisoner’s release will be above an acceptable level.” His Honour cited with approval the observations of Williams J in Felton v Queensland Corrective Services Commission [1994] 2 Qd R 490 at 503:
“It follows, in my opinion, that once the respondent has determined that in accordance with regulations 21 and 27 the prisoner has been “of good conduct and industry” he is entitled to a grant of remission unless the Commission is positively satisfied after affording the prisoner “procedural fairness” that there are overriding considerations which compel in the exercise of discretion a contrary decision.”
Earlier, at p.502, his Honour stated:
“... a determination that no remissions should be granted could only be made where the Commission was positively satisfied after the prisoner had the opportunity of answering such a contention that release would subject the public to unnecessary risk.”
16. The mere fact that a prisoner has refused to accept his guilt of the subject offence and has failed to complete a sex offender’s program or to address his offending behaviour is not of itself the basis for a proper exercise of discretion under r.21 not to grant remissions, Yeo v Queensland Corrective Services Commission, supra, R v Secretary of State for the Home Department; Ex parte Zulfikar [1995] TLR 441; R v Secretary of State for the Home Department; Ex parte Lillycrop & Ors unreported decision, Q B Divisional Court 1243; 2292; 2909/96 judgment of 27 November 1996; Wiskar v Queensland Corrective Services Commission unreported decision of Williams J of 15 December 1998, no. 5561 of 1998. What is necessary is that there be a proper assessment of the magnitude of the risk so far as the particular applicant is concerned by the decision maker, Yeo, supra.
17. There is little in the reasons to suggest that this has occurred. There was no current (as at the time of making the decision) report from a psychologist or psychiatrist, for example, which would allow the delegate to be “positively satisfied” that there was an unacceptable risk of serious physical harm to the community if the applicant was released. To the contrary, the only uptodate assessment of the applicant suggests that he would not constitute such a risk. If the respondent considered that one of the earlier psychologists should re-assess the applicant, then such a report could have been provided to the delegate. This might have been thought essential since, despite his applications, since admitting responsibility for the offence, he has not been admitted into the sex offender’s program, the strong influence now being that he is an unsuitable candidate because of his intellectual functioning. There was no suggestion that the delegate considered the applicant’s release plan the absence of which was a factor in regarding him as an unacceptable risk in the past.
18. I conclude that the delegate failed to take into account relevant circumstances about this applicant.
19. I grant the application and set aside the decision and remit the matter to the respondent for further consideration.
20. The respondent should pay the applicant’s costs of and incidental to the applicant to be taxed.
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