Webb v Department for Correctional Services

Supreme Court of South Australia
(Civil: Judicial Review)
WEBB v DEPARTMENT FOR CORRECTIONAL SERVICES
[2023] SASC 29
Judgment of the Honourable Chief Justice Kourakis
ADMINISTRATIVE LAW - JUDICIAL REVIEW
ADMINISTRATIVE LAW - JUDICIAL REVIEW - GROUNDS OF REVIEW - PROCEDURAL FAIRNESS
Application for judicial review.

The applicant, a prisoner, seeks judicial review of two determinations made by delegates of the Chief Executive of the Department for Correctional Services, in 2020 and 2021 respectively, pursuant to s 23(1) of the Correctional Services Act 1982 (SA) (the Act).
Section 23(1) of the Act requires the Chief Executive to undertake annual assessments of a prisoner to determine whether or not the prisoner should be transferred to another prison. Two committees, the Case Review Panel(s) and the Serious Offenders Committee, were established by the Minister under s 23(2) of the Act for the purpose of assisting the Chief Executive in carrying out assessments pursuant to s 23(1).
The applicant was not afforded the opportunity, despite having requested it, to appear personally before the Serious Offenders Committee to make representations to it with respect to the determinations to be made under s 23(1) of the Act.
In challenging the determinations, the applicant relies on, essentially, three grounds of review: denial of procedural fairness, breach of statutory obligation, and acting in bad faith.
Held:
1.The applicant was entitled to appear personally before the Serious Offenders Committee because it was the committee established pursuant to s 23(2) of the Act which, in fact, assisted the Chief Executive’s delegate to make an assessment for the purpose of determining whether or not to transfer him to another prison.

Correctional Services Act 1982 (SA) ss 23; 23(1); 23(2); 23(4); 25, referred to.
Vansetten v The State of South Australia [2020] SASC 158, considered.

WEBB v DEPARTMENT FOR CORRECTIONAL SERVICES
[2023] SASC 29
Civil: Judicial Review

KOURAKIS CJ: The applicant in these proceedings, Mr Webb, is a prisoner. He seeks judicial review of two determinations made by delegates of the Chief Executive of the Department for Correctional Services (the Chief Executive and the Department respectively). On 30 July 2020 (the 2020 Determination) and 15 July 2021 (the 2021 Determination) decisions were made under s 23(1) of the Correctional Services Act 1982 (SA) (the Act) by different delegates of the Chief Executive that Mr Webb should not be transferred away from Mobilong Prison (collectively, the Determinations).
During the assessments of Mr Webb undertaken in 2020 and 2021, for the purpose of determining whether he should be transferred, Mr Webb requested a reduction in his numerical security rating to allow his transfer to a low security prison where there were better opportunities to participate in rehabilitation programs. The 2020 assessment made no reduction to Mr Webb’s security rating but in 2021 a recommendation was made by a Departmental Officer assigned to be his ‘Case Management Coordinator’ that there be a fifteen point reduction which would have resulted in a low security rating allowing such a transfer. However, the recommendation was not accepted by the Chief Executive’s delegate who reduced Mr Webb’s rating by ten points only. Mr Webb’s security rating, therefore, remained at ‘Medium’ and did not allow, according to Departmental protocols, for a transfer away from Mobilong.
The precise terms of the Determinations made by the delegates are not easily identified because they are incorporated within the minutes of a meeting of the Serious Offenders Committee (SOC) which was established by the Minister pursuant to s 23(2) of the Act for the purpose of assisting the Chief Executive, or his or her delegate, to carry out assessments for the purpose of determining ‘whether or not [a] prisoner should be transferred to some other prison’. However, it is clear enough that both Determinations were that Mr Webb should not be transferred to another prison.
I grant Mr Webb’s application for the purposes only of making a declaration that Mr Webb was entitled to appear personally before the SOC because it was the committee established pursuant to s 23(2) of the Act which, in fact, assisted the Chief Executive’s delegate to make an assessment for the purpose of determining whether or not to transfer him to another prison. It is not necessary to determine Mr Webb’s other grounds of review which are peculiar to those Determinations because Mr Webb is entitled to annual reviews and those complaints may be properly addressed in future assessments. For example, the Department accepts that the Chief Executive, or his or her delegate, should not have regard to material alleging unsatisfactory conduct against Mr Webb unless he is afforded an opportunity to comment on it.
The application
By way of originating application and statement of facts issues and contentions filed on 22 April 2021, Mr Webb sought an order in the nature of certiorari to set aside the 2020 Determination and an order preventing the use and consideration of his prison case notes in any future case reviews.
By way of a further interlocutory application filed on 24 June 2021, Mr Webb sought to amend his originating application to seek two additional orders: a declaration that the 2021 Determination was unlawful and ‘administrative intervention for administrative processes’. The respondent opposed the second amendment on the basis that it does not seek a remedy known to law. That is plainly so. I therefore allow the first, only, of the two proposed amendments.
In challenging the Determinations, Mr Webb relies on the following three grounds of review:
2020 case review:
Ground 1: Denial of procedural fairness
Ground 2: Breach of statutory obligation
Part 1: Refusal of personal obligation
Part 2: Improper delegation of authority
Part 3: SOC makes decisions under s 23
Ground 3: Acting in bad faith
Part 1: Non-disclosure of case notes in 2020 case review
Part 2: Way in which CE represents case review to prisoners through his delegates and the Case Review Committee
2021 case review:
Ground 1: No documents provided to enable Mr Webb to make written submissions to the Department
Ground 2: Breach of statutory obligation
Part 1: Refusal of personal representation
Part 2: Improper delegation of authority
Part 3: SOC makes decisions under s 23
Ground 3: Acting in bad faith – misrepresentation of the case review process by Chief Executive
With respect to the 2020 case review, the first ground involves an allegation that case notes adverse to Mr Webb which were used against him were not disclosed to him at his meeting with the Case Review Panel (the CRP) which is another committee established pursuant to s 23(2) of the Act. Officers of the Department, and prisoners, commonly use the term Case Review Committee and the acronym CRC to refer to the CRP.
The second ground has three elements. The first, and the ground on which I make the declaration, is that Mr Webb was not given the opportunity to make personal representations to the Chief Executive, or his or her delegate, or to a committee established pursuant to s 23(2) of the Act. The second is that the Chief Executive’s delegate has no statutory authority to make decisions on his case review. The second element of this ground is without foundation. The Chief Executive may delegate his or her functions pursuant to s 7(2) of the Act and the evidence shows that he delegated that function to the persons who made the 2020 and 2021 Determinations respectively. The evidence also shows that they did so with the assistance of the SOC which was properly constituted by s 23(2) of the Act. The third is that the SOC made the Determinations pursuant to s 23 of the Act without having authority to do so in that it acted in bad faith by not disclosing negative case notes to Mr Webb, and because the Chief Executive deliberately misrepresented the case review process to prisoners through his delegates and the CRP. The evidence does not establish that any member of the SOC accessed the adverse case notes. It has not been established therefore that they acted in bad faith or denied Mr Webb procedural fairness.
With respect to the 2021 case review, the first ground involves an allegation that Mr Webb was not provided the necessary documents to allow him to make written submissions. It is unnecessary to deal with that ground because Mr Webb is entitled to annual reviews. The second ground reprises the same grounds relied on with respect to the 2020 case review.
Prisoner behaviour
Mr Webb is 41 years of age. In 2013 he was convicted of murder and was sentenced to imprisonment for life with a non-parole period of 22 years. He is eligible for parole in 2034. Mr Webb has been housed in the Ross Unit at Mobilong Prison since October 2016.
Mr Webb’s time in custody seems to have been without significant incident. He is described in Departmental case notes as an easily managed prisoner who goes about his daily routine without issue. He is described as generally polite and respectful during contact with staff. However, he is also described as having a sense of entitlement, and it is recorded that he can be discourteous when he believes that he is being treated unjustly by the Department. It is problematic, to say the least, to characterise an assertion of rights in the face of perceived unfairness as ‘entitled’ and ‘discourteous’.
Mr Webb has engaged in employment and volunteer work whilst in prison. He has been assessed as suitable to participate in the Domestic and Family Violence Intervention Program (DFVIP) as part of his rehabilitation, which he will be given an opportunity to participate in closer to the end of his sentence.
It was against this background, and in the context of Mr Webb having more than ten years left on his sentence before being eligible for parole, that Mr Webb sought a points reduction so that he might be transferred to the Cadell Training Centre. However, before turning to those circumstances and consequential determinations, it is necessary to set out the statutory foundation for this application.
The statutory context
Section 23 of the Act requires the Chief Executive to conduct an initial assessment of a prisoner for the purpose of determining in which prison he or she should be detained, and to assess and make subsequent determinations, at regular intervals of not more than one year, the focus of which must be upon the circumstances of the particular prisoner.
Section 23 of the Act provides:
23—Initial and periodic assessment of prisoners
(1) The CE must, as soon as practicable after the initial admission to a prison of a person who has been sentenced to a term of imprisonment exceeding six months, to life imprisonment or to a sentence of indeterminate duration, and thereafter at regular intervals of not more than one year, assess the prisoner and his or her circumstances and determine whether or not the prisoner should be transferred to some other prison.
(2) The Minister may, for the purpose of assisting the CE in carrying out assessments under this section, establish such committees as the Minister thinks fit.
(3) In carrying out an assessment under this section, the CE must have regard to—
(a)     the age, gender, gender identity, sexuality or sexual identity, and the social, medical, psychological and vocational background and history, of the prisoner; and
(b)     the needs of the prisoner in respect of education or training or medical or psychiatric treatment; and
(c)     the aptitude or suitability of the prisoner for any particular form of training or work; and
(d)     the nature of the offence, or offences, in respect of which the prisoner is imprisoned and the length of sentence; and
(e)     the information contained in any file held by a court in respect of the prisoner; and
(f)      the behaviour of the prisoner while in prison; and
(g)     the security of, and availability of accommodation in, any prison under consideration; and
(h)     the question of maintaining the prisoner’s family ties; and
(i)      where relevant, any proposed plans in respect of the release of the prisoner and his or her social rehabilitation; and
(j)      such other matters as the CE thinks relevant.
(4) The CE must notify the prisoner before commencing an assessment, and must, if the prisoner so requests, grant the prisoner an opportunity to make representations in person to the CE or to a committee established pursuant to subsection (2), including a request that, if practicable, the assessment be made by a person of the same sex or gender identity as the prisoner.
(5) The prisoner may make written representations in respect of his or her assessment to the CE or to a committee established pursuant to subsection (2).
(6) After the first assessment of a prisoner has been completed, the CE must prepare a programme in relation to the prisoner that contains particulars of any proposals for the education or training or medical or psychiatric treatment of the prisoner, and may, after any subsequent assessment, add to or vary that programme.
As I observed at [9] above s 7(2) of the Act empowers the Chief Executive to delegate to any officer of the Department any power or function vested in the Chief Executive.
The respondent submits, and I accept, that s 23(2) authorises the Minister to create more than one committee for the purpose of assisting the Chief Executive in carrying out assessments under s 23 of the Act. There are several reasons why a number of committees may be necessary. The most obvious is the number of prisoners to be assessed and the wide range of offences for which they are sentenced. Additionally, the range of matters to which the Chief Executive must have regard may require the constitution of committees with particular expertise for some prisoners. Finally, a request by a prisoner for a committee of the same gender identity as the prisoner may also require the establishment of more than one committee. However, as we shall see, the Minister has established committees by reference to the professional qualifications or positions its members must hold. A number of panels of the same committee may therefore be constituted.
Nonetheless, it is clear that the committee to which a prisoner may make submissions, and before which a prisoner may request to appear, pursuant to subsections (4) and (5) of the Act, respectively, must be a committee which assists the Chief Executive to carry out the assessment of that prisoner. In the unlikely event that more than one committee is convened to assist the Chief Executive in undertaking a particular assessment, the prisoner must be afforded an opportunity to make submissions to, and appear before, all of the committees which assist the Chief Executive. If that were not so the procedural protections of those subsections would be illusory because all, or some, of those persons with the statutory function of assisting the Chief Executive to carry out the assessment, would not have had the procedural advantage of hearing directly from the prisoner for the purpose of rendering that assistance.
It is possible, but I think improbable, that the legislature intended that the Chief Executive, or a delegate, might call on the assistance of multiple committees to assist him or her in a single assessment of the same prisoner. It is improbable because it is inefficient and unnecessary. A single committee can still be constituted with a membership which includes the appropriate expertise. Moreover, if multiple committees constituted for the same assessment disagree, the Chief Executive is left in the awkward position of resolving the conflict. If the Chief Executive accepts one of two diametrically opposed recommendations, only in a strained sense can it be said that he or she has been assisted by the Committee whose recommendation he or she has rejected.
Ultimately, it is not necessary to come to a final conclusion on that question of construction because the CRP before which Mr Webb appeared, did not, in fact, assist the Chief Executive’s delegate. Assistance in the making of an assessment requires more than providing a report. Assistance is only given by a committee if it actively engages (whether face to face, by correspondence, or online) with the Chief Executive in the making of the assessment. For the reasons given below, only the SOC assisted the delegate of the Chief Executive to assess Mr Webb for the purposes of the 2020 and 2021 Determinations.
If I had found otherwise a question would have arisen whether s 23(2) of the Act empowers the Minister to establish a committee constituted by one person. I do not construe s 23(2) of the Act to so empower the Minister. Save from the special legal meaning of a committee as a person entrusted with the charge of another, which is plainly not its meaning in s 23(2) of the Act, a committee is a group of persons. That meaning also better accords with the statutory context in which the assessment of prisoners is likely to require a multi-disciplinary team. The reference in s 23(4) of the Act to the making of an assessment by a person of the same sex or gender identity as the prisoner is a reference to the Chief Executive or the person to whom he or she delegates the function.
The respondent submits that the periodic assessments of a prisoner are required to include a determination as to ‘whether or not the prisoner should be transferred to some other prison.’ It better reflects the statutory language to say that the purpose of an assessment is to inform the Chief Executive’s determination as to whether to transfer the prisoner. It is the making of a determination which is the relevant administrative power conferred by s 23(1) of the Act.
In carrying out a periodic assessment under s 23 of the Act the Chief Executive must have regard to the matters set out in s 23(3) of the Act but there is no requirement that a finding be made in relation to each or any of those matters. In particular, s 23(3) of the Act does not include a requirement that the assessment include an evaluation of the security rating points held by a prisoner. I accept, however, that the security requirements of a particular prisoner are relevant to the consideration of the matter in subparagraph (g) of s 23(3) of the Act.
Even if a favourable determination is made pursuant to s 23(1) of the Act the physical transfer of a prisoner can only be effected pursuant to s 25 of the Act which provides:
25—Transfer of prisoners
(1)The Chief Executive may, by written order, direct that a prisoner be transferred from the place in which he or she is being detained to any other correctional institution.
(2)An order given by the CE under subsection (1) is sufficient authority for the transfer of the prisoner in accordance with the order and the detention of the prisoner in the correctional institution to which he or she is transferred.
Doyle J considered the function of assessments pursuant to s 23 of the Act in Vansetten v The State of South Australia:[1]
… While there will often be some overlap in the matters considered under both ss 23 and 25, they are ultimately different powers, to be exercised by reference to different considerations. As such, the terms of a determination under s 23 may well be influential in whether a transfer is directed, but it does not dictate or require that this occur. …
[1] [2020] SASC 158 at [19].
I would put it in this way. The assessment and determination of whether a prisoner should be transferred to some other prison after an assessment of the matters prescribed by s 23(3) of the Act gives rise to an expectation that an order will be made pursuant to s 25 of the Act. This is because the good management of prisons is enhanced by optimising the matching of prisoners to prisons. That consideration and the text of, and interrelationship between, ss 23 and 25 of the Act lead to the conclusion that a determination made pursuant to s 23 of the Act is a mandatory consideration in the exercise of the power conferred by s 25 of the Act. However, only an order made pursuant to s 25 of the Act can authorise the transfer. For example, an order may not be made if there is no available accommodation in the other prison because other prisoners are given priority.

The respondent’s contention that, having regard to s 25 of the Act, there is no substantive legal effect or foreseeable consequence that directly arises from the Chief Executive’s assessments and determinations must therefore be rejected. Making a determination that a prisoner should be transferred to another prison pursuant to s 23 of the Act is a mandatory consideration in the exercise of the power conferred by s 25 of the Act.
Establishment of the CRP and SOC
At the oral hearing of the application, some doubt arose as to the statutory basis of the CRP and the SOC. After hearing argument on 22 November 2021, the Department filed further written submissions along with a supporting affidavit of Ms Hayley Mills, which it asks be received into evidence.
Ms Mills deposed that since December 2014 she had at all times understood and believed that committees known to her as Case Review Panels were committees established by the Minister under s 23(2) of the Act, and that they were the only committees so established by the Minister. On making enquiries after the hearing on 22 November 2021, Ms Mills discovered that two Ministerial Instruments were made in 2010. A Ministerial Instrument dated 22 January 2010 and executed by the then Minister, the Honourable Tom Koutsantonis, established Case Review Panels as committees under s 23(2) of the Act.
Ms Mills deposed that that instrument remained in effect until it was superseded by a Ministerial Determination made on 19 September 2016:
MINISTERIAL DETERMINATION
ESTABLISHMENT OF CASE REVIEW PANELS AS COMMITTEES
SECTION 23(2), CORRECTIONAL SERVICES ACT 1982
WHEREAS, section 23(2) of the Correctional Services Act 1982 (the Act) provides for the establishment of committees by the Minister for the purpose of assisting the Chief Executive in carrying out assessments under section 23 of the Act:
I, PETER MALINAUSKAS, Minister for Correctional Services, by this instrument, establish the Case Review Panel/s as a committee under s 23(2) of the Act.
The following personnel, whether held by a substantive occupant or a person acting in that position, are appointed as members of the committee:
·       Case Management Coordinator
·       Social Worker
·       Unit/Case Officer
·       Aboriginal Liaison Officers (where the review is for Aboriginal/Torres Strait Islander prisoners)
but the committee may be constituted by some only of those personnel.
…
It is not clear to me why the making of the Instrument of 19 September 2016 was thought necessary. Be that as it may, relevantly to this application, the following should be noted. First, by using the term ‘Panels’, the Instrument is calculated to establish multiple CRPs, any one of which may perform the statutory function. Secondly, the CRP is not constituted by named persons but by reference to the position in the Department held by the person. Thirdly, a CRP may be constituted by ‘some only of those personnel’. The instrument does not provide that the CRP may be constituted by ‘one or more of those personnel’. Fourthly, there is no provision for the selection of the particular person who holds one of the specified offices who will be called in when the particular CRP is convened to assist the Chief Executive or his or her delegate. It follows that persons who hold any one of those Departmental positions may gather as a committee to assist the Chief Executive, or his or her delegate, to assess a particular prisoner in accordance with s 23 of the Act.
Another Ministerial Instrument dated 10 August 2010 established the SOC pursuant to s 23(2) of the Act. Ms Mills was not aware of the existence of that Instrument before 23 November 2021. She had believed that the SOC was established as a committee of the Department in 2010. According to Ms Mills, the Instrument dated 10 August 2010 had not been revoked, substituted, or superseded:
DEPARTMENT FOR CORRECTIONAL SERVICES
ESTABLISHMENT OF THE
SERIOUS OFFENDER COMMITTEE
I, TOM KOUTSANTONIS, Minister for Correctional Services, by this instrument, establish the Serious Offender Committee in accordance with section 23(2) of the Correctional Services Act 1982.
The following positions/persons, whether held by a substantive occupant or a person acting in the position, are to be appointed as members of the Serious Offender Committee:
·       Executive Director, Offender Development and Executive Director, Custodial Services (Chair);
·       SAPOL representative – nominated by the Commissioner of Police;
·       Victims representative – nominated by the Victim’s Support Service; and
·       Aboriginal or Torres Strait Islander representative – nominated by the Chief Executive.
Some important distinctions between the establishment of the SOC and CRPs may be noted. First, the SOC is chaired by a senior Departmental Officer. Secondly, two of the four positions are nominated by agencies other than the Department. Thirdly, there is no provision that the SOC may be constituted by only some of the ‘positions/persons’. The distinctions reflect the intention that the SOC deal with more serious offenders.
The respondent had initially submitted that Case Review Panels were the only committees established by the Minister under s 23(2) of the Act. If that were so, an issue would arise as to the legal authority of the SOC to assist the Chief Executive at all as would questions of whether Mr Webb was denied procedural fairness by the Minister consulting strangers to the process. The position of the respondent after discovery of the SOC instrument is that there are two Ministerial Instruments in force establishing committees under s 23(2) of the Act: the Ministerial Instrument dated 19 September 2016 establishing CRPs, and the Ministerial Instrument dated 10 August 2010 establishing the SOC. The respondent submits that the new information relating to the establishment of the SOC under s 23(2) of the Act does not change the validity of the SOC’s role in relation to the determination of a case review by the Chair of the SOC as the Chief Executive’s delegate. It submits that given the establishment of the SOC as a statutory committee under s 23(2) of the Act, the assistance given to the Chief Executive’s delegate by the SOC in carrying out case review assessments pursuant to s 23 was authorised by statute.
Nonetheless, the respondent maintained its submission that s 23(4) of the Act was satisfied by affording Mr Webb an opportunity to attend before a CRP.
By response filed on 24 December 2021, Mr Webb submits that the fact that the Department provided Mr Webb and the Court with misleading information regarding the authority of the SOC demonstrates that the case review process under s 23 is so convoluted that the executives of the Department themselves are not clear on the process. Mr Webb submits that the SOC’s position in the case review process has denied him procedural fairness as he was not afforded the opportunity under s 23(4) of the Act to make meaningful representations in person to the SOC.
The discoveries of the Ministerial Instruments only after the assessments of Mr Webb, and no doubt of many other prisoners, have been completed, brings to mind the unkind remarks sometimes made of Columbus’ discovery of the Americas. It is desirable in the interests of the proper administration of the Act to make it clear that a prisoner is entitled to appear before any committee which assists the Chief Executive. It is for that reason that this Court will so declare.
Assessment and determination process
It is next necessary to consider the evidence of the practices adopted by the Department in the making of assessments and determinations. The practical implementation of the assessment and determination process contemplated by s 23 of the Act is outlined in the affidavits of Ms Mills, who was employed in the role of Executive Director, Community Prisons & Specialist Prisons in 2020, and Dr Henry Pharo, who was employed in the role of Acting Executive Director of Offender Development in 2020. Ms Mills and Dr Pharo were delegates of the Chief Executive for the purpose of s 25 of the Act and attended as Chair of the SOC which met fortnightly.
The assessment of prisoners under s 23 of the Act is referred to internally within the Department as a case review.
Every prisoner is assigned to a CRP. CRPs are chaired by the prisoner’s Case Management Coordinator and attended by the prisoner and other selected professionals, including those requested to be present by the prisoner. Prisoners are permitted to appear in person before the CRP.
Ms Mills described the assessment processes for prisoners sentenced to imprisonment for at least 12 months. Assessments for those prisoners who do not fall within the definition of serious offenders are completed by the Executive Officer of the Sentence Management Unit with the assistance of the CRP. In the case of serious offenders, the prisoner’s Case Management Coordinator provides comments and the recommendations through a CRP to the SOC. Case reviews occur annually, except for prisoners who are within two years of their date upon which they become eligible for parole, in which case they are conducted every six months.
Ms Mills deposed:
6.As recorded in Exhibits HMM-4 and HMM-5, in the case of prisoners sentenced to a term of imprisonment of at least 12 months, a Sentence Management Unit (SMU) clinician meets with the prisoner to develop an Individual Development Plan (IDP). IDPs are also known as “Offender Plans” and are given this name within the DCS electronic record system called the Justice Information System (JIS). The meeting between the SMU Clinician and the prisoner is the first step in the prisoner’s initial assessment pursuant to s 23 of the Act. For prisoners classified as serious offenders, the second step in the initial assessment is for the SOC to meet to consider the prisoner’s circumstances, which includes reviewing the prisoner’s proposed Offender Plan and his/her security assessment rating. The Chair of the SOC is the Chief Executive of DCS’s delegate for the purposes of s 23 of the Act.
7.In the case of serious offenders undergoing a periodic assessment, the first step in the s 23 case review is for the prisoner to meet with his/her Case Review Panel. The discussion of any key issues and any recommendations of the prisoner’s Case Management Coordinator (CMC) are recorded by the CMC in the prisoner’s Offender Plan. The CMC records information in the Offender Plan under the heading ‘Planning Comments’. The CMC also records information about the prisoner’s views under the heading ‘Offender Comments’.
8.Following the Case Review Panel meeting, the General Manager, or Assistant General Manager, of the prison in which the prisoner is held reviews the Offender Plan, including the recommendations made by the CMC, and endorses it, marking it ‘ready for approval’. The General Manager is also able to make comments in JIS at this time.
9.The SMU then compiles relevant information relating to the prisoner and the Case Review Panel for the SOC into an electronic file relating to the prisoner (the SOC file). This involves printing the Offender Plan and scanning into the SOC file. It also involves the SMU creating (or updating an existing version of) the following electronic word documents saved the SOC file:
9.1    “SOC Summary Sheet and Documentation Checklist” - a document in which the General Manager’s endorsement and comments from JIS are recorded;
9.2    “Incident History” - a document in which all case notes on the JIS which have been classified as an ‘Incident’ are set out;
9.3    “Offender Enquiries - Enquire Drug Test History” - a document setting out all drug test results for the prisoner; and
9.4    “Offender Enquiries - Offender History Summary” - a document summarising the prisoner’s offending history.
10.The SMU also compiles other relevant records for use by the SOC and places these in the SOC file, including documents such as:
10.1 Sentencing remarks;
10.2 Program/intervention reports;
10.3 Psychological reports; and
10.4 Correspondence between the prisoner and DCS.
11.All SOC members are able to review the information in the SOC file relating to the prisoner prior to, and during, the SOC meeting where the prisoner’s circumstances are considered. SOC members who are also DCS employees are also able to access JIS prior to and during the SOC meeting.
A Departmental policy and procedure document describes the assessment process as follows:
3.Procedure – Assessment
3.1.   Process
3.1.1. Each prisoner admitted into the correctional system must be assessed.
3.1.2. During assessment, a prisoner’s risk and needs are identified through specific assessment instruments, interviews and other sources.
3.1.3. Assessments elicit comprehensive and accurate information regarding a prisoner’s risk factors and/or intervention needs. The results of assessment influence ongoing prisoner management as well as appropriate supervision when in the community.
…
3.2.   Assessment Outcomes
3.2.1 Assessment outcomes include, but are not limited to:
a)Correctional status (remand, dual status, sentenced, order)
b)Security classification
c)Risk of Reoffending
d)Serious Offender status
e)Criminogenic need/s
f)Responsivity factor/s
g)Supervision requirements (level and frequency)
h)Home Detention eligibility
3.3.   Sources of Information
3.3.1. Staff conducting assessments must:
a)access relevant information from a wide range of sources
b)seek self-reported information during prisoner interview/s
c)corroborate self-reported information from external sources where possible.
3.3.2. Information sources include:
a)The prisoner
b)Case Management Coordinators (CMC)
c)Correctional Officers and/or Custodial Specialists
d)Offender Development staff
e)Intervention Unit Staff
f)Aboriginal Liaison Officers (ALOs) and the Aboriginal Services Unit
g)Community Corrections staff
h)Sentencing remarks
i)Pre-sentence reports
j)Criminal history
k)Justice Information System (JIS)
l)JIS Web-Based system (White JIS)
m)Prisoner Case Files
n)Psychological Reports
o)Psychiatric Reports
p)Education Services Staff
q)Specialist Assessment Reports
r)Health Services by Prison Health
The policy establishes the following criteria for inclusion in the SOC list:
3.6.2Criteria for Inclusion onto Serious Offender Committee list
a) The SOC will have oversight of the following:
i.Prisoners assessed as High Risk or Sexual or Violent Reoffending, or Very High Risk of Generalised Re-Offending;
ii.Prisoners serving a life sentence;
iii.Prisoners identified as Dynamic Threat Management or Public Interest (as set out in the SOC SOP);
iv.Prisoners serving an indeterminate sentence as outlined under Part 3, Division 5, Section 57 of the Sentencing Act 2017 (SA); and
v.Any other prisoner identified by the Chief Executive, Deputy Chief Executive or the Serious Offender Committee Chair(s).
Mr Webb is a ‘serious offender’ for the purposes of case reviews because he is serving a life sentence.
I note that the policy confers on the SOC the responsibility to oversee serious offenders. That responsibility also indicates that it is the SOC which assists the Chief Executive to make assessments of serious offenders pursuant to s 23 of the Act.
The evidence placed before me establishes that the assessment process for serious offenders is as follows:[2]
[2] FDN 10, [5]; FDN 20, [12].
1.The prisoner is advised by letter of the next meeting of his or her CRP, ordinarily two weeks beforehand;
2.A meeting of the CRP is convened and chaired by the prisoner’s Case Management Coordinator with the prisoner attending;
3.The outcome of that meeting, including any recommendations, is recorded by the Case Management Coordinator on the Department’s electronic record system, the Justice Information System (JIS);
4.The General Manager of the prison in which the prisoner is held reviews the case review and endorses it, marking it ‘ready for approval’;
5.The Sentence Management Unit of the Department compiles the relevant information relating to the case review for the SOC meeting. As part of that information, a document called an Offender Plan is generated from the JIS, which relevantly records the matters outlined in 3 and 4 above;
6.The SOC then considers the case review at its next meeting which may be held face to face or by audio-visual link. The prisoner is not invited to attend the SOC meeting. The SOC has a multi-disciplinary membership including professionals and operational staff from within the Department, as well as representatives from external agencies. The South Australian Police and other agencies which advocate on the behalf of victims of crime attend;
7.The SOC members discuss the recommendations put forward by the Case Management Coordinator. All SOC members are invited to comment on any of the recommendations put forward by the Case Management Coordinator or any other aspect of the prisoner’s circumstances;
8.There is no vote at SOC meeting; the Chair of the SOC, who is the Chief Executive’s delegate, conducts the assessment required by s 23(1) of the Act and makes a determination as to whether or not the prisoner should be transferred to some other prison, after considering the views of other SOC members. The minutes of the SOC meeting record the decision of the Chair and are approved and signed by the Chair as the Chief Executive’s delegate;
9.All SOC members have access to the information in the SOC file prior to and during the SOC meeting. SOC members who are also Department employees are also able to access the JIS prior to and during the SOC meeting.
The process described in the affidavits of Dr Pharo and Ms Mills establishes that the SOC is the committee that assists ‘the CE in carrying out assessments’ of serious offenders. The record of the proceedings before the CRP, its interviews and evaluations, are put before the SOC as evidence of the matters prescribed by s 23(3) to which the Chief Executive must have regard, with the assistance of the SOC. The CRP does not assist, within the meaning of that term in s 25(2) of the Act, the Chief Executive in carrying out the assessment itself. A committee can only assist through an exchange of views as opposed to the mere provision of information.
In any event, for the reasons I have already given, if both the CRP and the SOC assisted the Chief Executive then Mr Webb was entitled to appear before both committees.
The Chief Executive’s determination, informed by his or her assessment, is assisted by, and made in the course of, a meeting of the SOC in which those matters are discussed and competing views put. The procedural rights accorded by subsections (4) and (5) of the Act therefore attach to the proceedings of the SOC.
Dr Pharo explained that the Department holds a variety of documentary material which relates to the custody and management of prisoners including case notes on the JIS about prisoner conduct and interactions, results of drug and alcohol testing, custody records, and other internal documents. These documents also include intelligence reports relating to the conduct and management of prisoners. Dr Pharo explained that such documents are not ordinarily provided to prisoners in order to preserve the operational integrity for which they were produced. The Department also hold reports and assessments which relate to the treatment and rehabilitation programs provided to prisoners. Insofar as those reports discuss therapeutic interventions provided to prisoners, their primary purpose is to reduce the risk of recidivism in those prisoners. Consequently, those reports are not ordinarily provided to prisoners. However, to the extent that those documents are considered for the purposes of a prisoner’s case review, it is the practice of Case Management Coordinators to facilitate the discussion of the content of that material at a prisoner’s CRP meeting. Relevant discussion is facilitated either directly by the Case Management Coordinator or by other professionals who attend the CRP meeting, and the prisoner is given the opportunity to make submissions either at the meeting or in writing. In the case of serious offenders, the documented outcome of the case review is then tabled at the SOC meeting (along with other relevant information prepared by the Sentence Management Unit as described above) for discussion and final approval.

Ms Mills explained that a prisoner’s security rating is usually re-assessed at a case review conducted under s 23 of the Act but there is no requirement that this occur. A prisoner can have his or her security rating re-assessed at any time where there is reason to do so including in response to new events or circumstances. If a Case Management Coordinator is considering reclassification of a prisoner’s security rating in the course of a case review under s 23, the Case Management Coordinator would usually use a Department form ‘Form 001 025 – Reclassification Assessment’ as a guide.
Ms Mills explained that Department policies do not expressly state that Case Management Coordinators must provide information to a prisoner about case notes stored within the JIS which are adverse to the prisoner. However, the prisoner’s behaviour is a matter which is required to be discussed by a Case Management Coordinator and any significant adverse behaviour is discussed with the prisoner during their CRP meeting.
Prisoners are informed in the letter they receive prior to the CRP meeting that the prisoner’s behaviour whilst in prison, including any incidents recorded, will be considered as part of the case review.
The 2020 case review
The actual conduct of Mr Webb’s case reviews show even more clearly that the CRP did not, as a committee, assist the delegates who made the 2020 and 2021 Determinations.
By letter dated 8 July 2020 Mr Webb was notified of a meeting with the ‘Case Review Committee’ for the purposes of his next case review.
Mr Webb provided his case review submissions, which were date stamped 29 June 2020, pursuant to s 23(5) of the Act. Mr Webb requested an opportunity to represent himself in person at the SOC meeting when they discussed his case and made their decision and asked that the decision be conveyed to him in writing. Mr Webb also requested a 10 point reduction in his security rating and applied for a position at one of the domestic violence programs being offered that year. Mr Webb outlined his work and volunteer history as well as other positive contributions.
By letter dated 9 July 2020 Mr Webb was informed by the Sentence Management Unit that no prisoners attend the SOC meetings in person or by phone or video link. He was told that his personal attendance before the CRP, satisfied the procedural rights afforded by subsections (4) and (5) of s 23 of the Act.
Mr Webb attended before the CRP on 10 July 2020. It was chaired by Ms Sally Horne, who was Mr Webb’s Case Management Coordinator. No other persons were present nor did Mr Webb request that any other person be present. Prior to the meeting, Ms Horne reviewed some of the documentary material relating to Mr Webb including case notes, the results of drug testing and his court history as recorded on the JIS.
Following the meeting, Ms Horne updated Mr Webb’s Offender Plan on the JIS, which would have been available to those SOC members who were also Department employees at the SOC meeting on 30 July 2020. Ms Horne deposed that she did not include any recommendations in Mr Webb’s Offender Plan due to the length remaining on his sentence.
Ms Horne described Mr Webb as being:
… a complex prisoner to manage, he has a frustration with DCS and their policies and procedures and believes to have an authority on all matters Legal. He demonstrates a sense of entitlement. He can be polite and respectful during contact with staff. He appears to get on well with his peers and has been accommodated in Ross Cottages since 10/10/16. Pr Webb has numerous Warning case notes around his sense of entitlement.
Ms Horne explained that she formed those views based on her review of the case notes contained on the JIS. She did not advise Mr Webb of the content of the case notes she reviewed, nor did she read any of the case notes to him.
An attendance of a Case Management Coordinator on a prisoner for the purpose of preparing a report for the consideration of the SOC is not a meeting of a committee in accordance with the Instrument of September 2016. I do not construe s 23(2) of the Act to authorise the establishment of a committee constituted by a single member but even if the subsection can be given that strained construction, the September 2016 Instrument does no such thing. It plainly establishes a multi-member committee, which need not include a representative of all of the professional practice areas it lists but may be constituted by some only of those personnel. A single member is not ‘some of those personnel’. If that were intended, the expression ‘any one or more’ is likely to have been utilised.
The SOC considered Mr Webb’s case review on 30 July 2020 in his absence. The meeting was chaired by Dr Pharo as the delegate of the Chief Executive. The SOC summary sheet and documentation checklist contained no recommendations. The general manager endorsement comment was as follows:
A/GM endorses case review- nil recommendations made in the this (sic) review.
The minutes of the meeting of the SOC record:
SOC note prisoner correspondence 29/06/2020. SOC reiterate contents of the letter sent from SMU to prisoner 09/07/2020 relating to prisoners request to attend the SOC meeting in person.
SOC note prisoner will be considered for program inclusion close to release date and will be contacted at an appropriate time.
SOC acknowledge prisoners positive behaviour. SOC have considered prisoners Security Rating. SOC determine prisoners Security Rating remain MED (39), noting the length of prisoners sentence.
SMU to remove APC from Placement Plan.
The minutes do not expressly record a determination as to ‘whether or not [Mr Webb] should be transferred to some other prison’ but a negative decision is implicit in the second and third paragraphs.
There were four records within Mr Webb’s case notes recorded as ‘incidents’, which were available to the SOC at the meeting. The ‘incident’ case notes are as follows:
23/04/2020
DCS Complaint lodged by Richard which can only be described as a complete distortion of the facts with respect to my address of the Unit yesterday in relation to the over all poor uptake on the Flu Vaccination by Ross Unit prisoners –
- This prisoner is becoming increasingly demanding and time consuming and his actions today border on the False and Frivolous Complaint line. He is highly self opinionated, believes himself to be the only person with a grasp of the law, indeed he believes he is quite the authority on all matters Legal – as a Life Sentenced prisoner however all of these behaviours demonstrate how little he has evolved since his offence – He has no consideration for others except his own selfish needs and self interests –
- clearly lacks the ability to empathise with others, has a total inability to accept criticism and has a grandios (sic) sense of entitlement.
23/09/2016
R Injury to finger Metalshop, escort to medical facility for treatment.
16/05/2014
Pr Webb was assaulted in BTW cell 503. Which was occupied by Pr’s #161556 and #157041, both have been sent to Golf Div pending investigation by the Management Team. Richard sustained minor facial injuries that required only SAPHS first aid treatment.
15/05/2014
Prisoner assaulted with Physical Injuries
Case notes dated 6 December 2019 and 22 April 2020, which were not specifically provided to the SOC but which would have been available to those SOC members who were also DCS employees and therefore may have been viewed by some SOC members, read as follows:
06/12/2019
Pr Webb warned that during afternoon count he needs to be wearing a green shirt and not just a singlet. He has been reminded about this before but still seems to be of the opinion that the rules don’t apply to him.
22/04/2020
Due to a poor take up of flu vaccinations, the Manager was addressing prisoners following the afternoon count, endeavouring to encourage others to take up the opportunity to minimise risk to all. Prisoner Webb was one of three prisoners who were notably vocal, grandstanding in front of the whole unit on issues of privacy and rights.
Dr Pharo deposed that he does not recollect any significant discussion at the 30 July 2020 meeting about any of Mr Webb’s case notes, and the SOC did not record in the minutes that it had regard to any of the case notes.
By letter dated 28 September 2020 Mr Webb asked for written reasons for the decision at his case review conducted in July 2020. By further letter on 12 October 2020, Mr Webb asked for reasons why the SOC commented ‘SMU to remove APC from Placement Plan’ and noted that he was not notified of that decision by his Case Management Coordinator at the finalisation of his case review process. The letter read as follows:
I received my Case Review Report on 02 October 2020.
I noted under SOC comments that, ‘SMU to remove APC from Placement Plan.’
I am writing to ask for the reasons why this is happening? Who made and authorised this decision?
I was not notified of this decision by my CMC at the finalization of my Case Review Process.
On 29 October 2020 Mr Webb was advised by way of letter from the Chair of the SOC of the results of the case review as contained in the approval comments, and that the decision in relation to the removal of APC from his Placement Plan was reviewed on 22 October 2020, and that APC had been reinstated into his Placement Plan.
The 2021 case review
On 8 June 2021 Mr Webb was notified that his next case review would be conducted on 24 June 2021. Mr Webb was informed of the matters that would be considered as part of his case review, and that he could provide written submissions.
On 24 June 2021 Mr Webb attended his CRP meeting. The meeting was chaired by his Case Management Coordinator, Ms Angela Marrone. Also present was Ms Nadia Petraccaro, a social worker. No other persons were present, nor did Mr Webb request that any other person be present. Mr Webb provided written submissions which were, incorrectly, dated 28 June 2019.
In his submissions to the CRP, Mr Webb made a request to appear personally before the SOC. He outlined his work history, which included working as the house cook for seven men and as a canteen worker, courses that he had undertaken, and other positive contributions. Mr Webb requested a 15 point reduction in his security rating (from 39 to 24) and a transfer to Cadell Training Centre. He also expressed his desire to participate in the DFVIP, which is run at Cadell Training Centre.
Ms Marrone recorded the outcome of the case review within the JIS following the case review, which resulted in Mr Webb’s Offender Plan within the JIS being updated with the information she entered, as follows:
·Under the heading ‘Recommendations’, the following notation: ‘Reclassification Assessment performed, Recommend -15 points from Medium Security Rating 39 to Low 1 SR 24 Pts (Prison Conduct). Recommend SOC consider a placement at Cadell Training Centre for Pr Webb to progress through the system. Prisoner Webb has been accommodated at Mobilong Prison for 5 years 5 months. Submission sent by Pr Webb for SOC consideration.’
·Under the heading ‘Behaviour’, Mr Webb was described as an easily managed prisoner who goes about his daily routine without issue, and is always polite and respectful during contact with staff. Mr Webb was described as being ‘often persistent when he believes he is being treated unjustly within the Department. His attitude at these times can be considered as discourteous, however he has not been observed to display any violent or agressive (sic) behaviours towards staff or his peers.’ It was noted that Mr Webb had no negative behavioural case notes, had a positive attitude towards life, and had set many goals for his future. There was also a notation that ‘CMC and Social Worker agree that Mobilong has served its purpose and it is time that Pr Webb be given the opportunity to expand his horizons where there is more for him to achieve.’
·A notation that there were nil incidents.
·A notation that Mr Webb’s urinalysis results since incarceration had been negative.
·Under the heading ‘Work or Education’ a summary of Mr Webb’s employment and programs undertaken whilst at Mobilong, the qualifications that he would like to achieve, as well as a note that ‘He receives positive comments from the canteen supervisor. She states that Pr Webb is always willing to go above and beyond in his duties to keep processes running efficiently. He arrives early for work and is polite and respectful to herself and his peers.’
As part of the 2021 case review, Ms Marrone performed a reclassification assessment of Mr Webb’s security rating and for that purpose completed an electronic template version of the form ‘F001 025 – Reclassification Assessment’. That electronic template has since been updated by the Sentence Management Unit to reflect the decision made by the Chair of the SOC during the second stage of the case review, thus there is now no accurate record of what Ms Marrone recorded when she completed the electronic template on the JIS. Ms Marrone recommended that Mr Webb’s security rating be reduced by 15 points from 39 (medium) to 24 (low) and that the SOC consider a placement at Cadell Training Centre. Ms Marrone made those recommendations because she considered Mr Webb’s behaviour in prison to be very good, he had been at Mobilong for five years and five months and she considered it appropriate for him to be progressed to a lower security prison.
Ms Marrone recalled telling Mr Webb that there were no negative case notes relating to his behaviour within the previous year. In a subsequent affidavit Ms Marrone deposed that she could not recall reading case notes dated 30 May 2020 and 2 June 2020 relating to Mr Webb which are recorded as ‘warnings’ when preparing for Mr Webb’s 2021 case review as they were outside of the 12 month timeframe for the 2021 case review. Consequently, she did not bring the contents of the case notes to Mr Webb’s attention, discuss their contents, or take the contents into account when making the recommendations on Mr Webb’s 2021 case review.
I will for the purposes of this application accept that two persons may, or at least, the two persons present at Mr Webb’s 2021 case review did, constitute a committee. However, they did not assist the Chief Executive for the same reasons that the 2020 CRP did not.
The SOC considered Mr Webb’s 2021 case review on 15 July 2021. The meeting was chaired by Ms Mills as the delegate of the Chief Executive. The SOC summary sheet and documentation checklist contained the following notes:
Recommendation: Reclassification Assessment performed, Recommend -15 points from Medium Security Rating 39 to Low 1 SR 24 Pts (Prison Conduct). Recommend SOC consider a placement at Cadell Training Centre for Pr Webb to progress through the system. Prisoner Webb has been accommodated at Mobilong Prison for 5 years 5 months. Submission sent by Pr Webb for SOC consideration.
The general manager endorsement comments on the SOC summary sheet were as follows:
Acting General Manager does NOT endorse the recommendations from this case review. Mr Webb has more than 10 years remaining on his sentence before he can apply for Parole. I consider it to early to reduce his security rating to low as he has not completed all required core programs yet and a placement at Cadell at this time is not supported. Recommend no change to security rating or placement at this review.
Ms Mills’ evidence was that the SOC members considered Mr Webb’s circumstances, and she conducted the assessment required by s 23 of the Act as the Chief Executive’s delegate. At the meeting the SOC members discussed Mr Webb’s security rating and placement at Mobilong and the positive behaviour which was reported by the Case Management Coordinator in Mr Webb’s Offender Plan. Ms Mills says that the SOC members also had regard to the content of Mr Webb’s written submission and discussed that submission. It was Ms Mills’ evidence that no voting of any kind occurred at the SOC meeting.
Following the SOC meeting, minutes of the meeting were prepared, and Ms Mills reviewed these minutes and signed them as the Chief Executive’s delegate. The minutes read as follows:
SOC endorse 10-point reduction to MED (29) Security Rating and placement to remain at MOB.
SOC note positive prison conduct and support a security rating reduction, however due to the length of time remaining on Mr Webb’s sentence it is considered that placement at CTC is premature at this time.
SOC will review CTC placement at next case review.
SOC noted Mr Wbb’s (sic) submission and his achievements and goals contained within and viewed this favourably. SOC do not support the request for in-person participation at the SOC and will confirm that position in return correspondence.
By letter dated 21 July 2021, Mr Webb was advised of the outcome of his case review and was advised that his request for in-person participation at the SOC meeting was not supported.
That evidence again shows that it was the SOC which assisted the Chief Executive’s delegate within the meaning of that term in s 23(2) of the Act. Mr Webb therefore had a procedural right to attend in person before it pursuant to s 23(4) of the Act.
Conclusion
Subject to hearing from the parties as to the precise terms of the order, I propose to declare that:
·The Serious Offender Committee assisted a delegate of the Chief Executive to make the 2020 and 2021 Determinations.
·Mr Webb was therefore entitled to make submissions to, and appear personally before, the Serious Offender Committee.
I will hear the parties on any ancillary orders.

[2023] SASC 29

3 March 2023