Webster v Queensland Corrective Services Commission
[1998] QSC 178
•10 September 1998
IN THE SUPREME COURT
OF QUEENSLAND
No. 5120 of 1998
Brisbane
Before White J
[Webster v Queensland Corrective Services Commission]
BETWEEN:
BRUCE STANLEY WEBSTER
Applicant
AND:
QUEENSLAND CORRECTIVE SERVICES COMMISSION
Respondent
CATCHWORDS: Application for statutory order of review - remission refusal - denial of guilt - sexual offences.
Counsel:Mr J C Davidson for the applicant
Mr M Plunkett for the respondent
Solicitors:Poteri & Woods for the applicant
Crown Solicitor for the respondent
Hearing Date: 4 September, 1998
REASONS FOR DECISION - WHITE J
Judgment delivered 10 September 1998
The applicant seeks a statutory order of review of a decision dated 7 May 1998 made by the respondent, Queensland Corrective Services Commission (“the Commission”) not to grant him remission to which he alleges he is entitled pursuant to the Corrective Services Act 1988 (“the Act”) and the Corrective Services Regulations 1989 (“the Regulations”).
The decision was made by an authorised delegate of the Commission, Laurel Wilson, Senior Adviser, Office of Sentence Management. The instrument of delegation is not produced but there is no challenge to it.
The applicant contends that there has been no proper assessment of his risk to the community and accordingly no proper exercise of discretion on the part of the Commission. In the application this is expressed as:
·exercising the discretionary power by uncritically applying
a policy without regard to the merits;
·exercising the discretionary power unreasonably by giving
undue weight to some matters and insufficient weight to others;
·the decision involved an error of law in that it was based on material
which lacked probative weight and without assessing the merits.
As Sheppard J observed in Hindi v Minister for Immigration and Ethnic Affairs (1988) 16 Admin LD 526 at 529, it matters not whether the approach is characterised as one where a relevant consideration was not taken into account or whether a policy had been applied without regard to the merits. The essential principle is that the decision maker was required to give proper consideration to the merits of the case. See also Brelin v Minister for Immigration and Ethnic Affairs (unreported decision of Wilcox J of 14 May 1987) and Khan v Minister for Immigration and Ethnic Affairs (1987) 14 Admin LD 291 decision of Gummow J, both referred to by Sheppard J.
The applicant was found guilty after a trial in the District Court on 15 December 1995 of 5 offences of indecent dealing with a girl under the age of 12 years, 1 offence of indecent assault with a circumstance of aggravation and 1 offence of maintaining an unlawful sexual relationship with a girl under the age of 12 years. He was sentenced to imprisonment for 3½ years for the offence of maintaining a sexual relationship and 2 years in respect of each of the other offences to be served concurrently with a recommendation that he be eligible to apply for parole after serving a period of imprisonment of 1½ years. He appealed against his conviction on the unsafe and unsatisfactory ground which was dismissed by the Court of Appeal on 23 July 1996.
The offences were committed on a friend of the applicant’s daughter between 1991 when she was in grade 3 and early 1995 when she was in grade 7. The applicant who is aged 51 years had no other criminal history. He has continued to maintain his innocence of the offences.
The policy which the applicant contends has been applied to him without consideration of the merits of his case is that prisoners convicted of sexual offences who maintain their innocence of the offences and who, as a consequence, do not participate in programs aimed at addressing their offending behaviour, should be regarded as an unacceptable risk to the community when considering release or remission.
According to the applicant, after an initial imprisonment for 45 days in the Brisbane Watch House he was transferred to the Arthur Gorrie Correctional Centre at about the end of January 1996 where he remained until mid March 1996 and was then transferred to the Moreton Bay Correctional Centre where he presently remains incarcerated. He has undertaken a number of programs whilst in prison including one entitled “Sexuality and Relationships” and three concerning spirituality and human development. The applicant commenced a cognitive skills course and after 6 weeks he became aware that the course was aimed at being able to relate harm caused by his offences on the victims of those offences. He then felt that he was unable to continue with this course.
In mid 1997 the applicant underwent an assessment for the Sex Offender’s Intervention Program undertaken by a psychologist at the Moreton Bay Correctional Centre. The applicant deposes that he was advised by the psychologist that he considered it was in his best interest that he start the course and he was assessed as suitable for entry into it. He deposes that he was told that unless he completed the course he would not be released until his full time release date. Ms Robyn Gregory, a Principal Advisor Sentence Management of the Commission, deposes that she spoke to the psychologist, who now holds a position with the Queensland Department of Health, who denied that he said that failure to participate in the treatment program would result in an automatic loss of remission but states that he may well have indicated to the applicant that his refusal to admit guilt and or to participate in the treatment program might impact upon a later application for remission on parole. This hearsay evidence was not objected to and there was no suggestion that this was an issue of credibility that needed to be resolved. Although not objected to Ms Gregory proffers her opinion in para 6 of her affidavit that the delegate’s reasons demonstrate that there is no “policy” which is automatically applied - the very matter to be decided on review. She refers to the instrument of delegation and to recent decisions of this Court upholding the validity of its terms. That document is not before me nor the Commission’s guideline on remission but I have gathered the terms of the latter from the judgment of the Court of Appeal in McCasker v Queensland Corrective Services Commission CA No. 10495 of 1997 where they are set out at p.3 of the reasons of Helman J. Since no submissions have been directed to that guideline I do not propose to mention it further save to comment that the delegate’s reasons employ expressions used in the guideline and may go some way to explaining the impression of a lack of coherent reasoning.
The applicant deposes that he is unable to complete a program that requires him to admit to committing offences which he denies he committed, and which requires him to describe them and how they would have impacted upon the victim. He was informed by Sentence Management that the course was voluntary, but that he would not be reclassified to a lower security rating if he did not do the course and would not be granted remission. The prisoner has not received any conduct breaches during his period of imprisonment and has received good work reports including overtask marks. He has an appropriate proposal for release accommodation with his wife and family and for employment.
The applicant’s eligibility dates were or are:
Fulltime discharge 14 June 1999
Earliest discharge 11 April 1998
Parole 15 June 1997
Release to Work 14 June 1996
Two groups within the Commission assessed the applicant. The recommendations of the Sentence Management Unit under the hand of Nimal De Silva dated 20 February 1998 were:
“Inmate Webster’s conduct and industry during this sentence has been very satisfactory. He has not incurred any breaches and behaviour reports have generally been above average. His remission is therefore recommended.
When making a decision on inmate Webster’s remission, a point of consideration for the authorised delegate is the nature of his offence and that he has not addressed his offending behaviour through recommended programs.”
The Assessment Unit Report states in paragraph 18 under the heading “Perceived Risk of Re-offending”:
“The perceived risk of re-offending would appear to be low based on a Queensland Corrective Services Commission Risk/Needs inventory score of 8. However, this would be assessed as medium to high as a result of the offender’s denial stance and his resistance to addressing his offending behaviour.”
On 20 February 1998 the applicant submitted a remission application to the Office of Sentence Management of the Commission and was informed by letter dated 19 March 1998 and another dated 8 April 1998 under the hand of the delegate that she was considering not granting remission on the basis that he presented an unacceptable risk to the community if released unsupervised.
By letter dated 8 May 1998 the applicant was advised that the Commission had decided not to grant remission on his sentence of imprisonment. The delegate set out the material upon which she based her decision. She stated that the decision not to grant remission was “based on the following findings of fact”:
“(1)The prisoner is incarcerated for an offence of a serious nature, namely, Indecent dealings.
(2)The prisoner is serving a sentence of 3 years 6 months imprisonment in relation to that charge.
(3)At the time of conviction in relation to the above offence, the prisoner was also convicted of five (5) charges of Indecent dealings and one (1) charge of Indecent assault, in relation to which he was imprisoned for a period of 2 years, concurrent with the sentence of 3 years 6 months.
(4)An appeal by the prisoner against conviction was dismissed on 23 July 1996.
(5)The prisoner has not participated in any programs or therapies to address the issue of his sexual offending.
(6)The prisoner was refused release to community supervision by the South Queensland Regional Community Corrections Board, in a letter dated 21 March 1997.”
The delegate noted that she had had regard to reg. 21 and that the applicant’s institutional conduct and industry had been of an acceptable standard. References from Felton v Queensland Corrective Services Commission [1994] 2 Qd R 490 and Yeo v Queensland Corrective Services Commission No 7534 of 1997 unreported decision of 13 February 1998 were made. The former was the much quoted passage of Williams J at p. 503:
“It follows, in my opinion, that once the respondent has determined that in accordance with regs 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.”
The delegate took into account that the applicant was currently imprisoned for a period of 3 years and 6 months in relation to a charge of indecent dealing and that she had regard to the fact that he was convicted of 5 charges of indecent dealing, 1 of indecent assault in respect of which he was imprisoned for 2 years concurrently with the sentences of 3 years and 6 months. Whilst the nature of the offences which have led to the imprisonment are relevant to the exercise of the discretion merely to state them and the sentence does little to advance the impression that the delegate was positively satisfied about anything. The delegate quoted the sentencing judge’s remarks that the sentence needed to reflect “the serious concern that the community has in relation to these matters” and that the offences were “very serious matters indeed”. This was apparently to encompass remarks made by Dowsett J in Yeo at p. 5 of his reasons:-
“It seems to me, from the reasons, that the delegate has merely concluded that there was a risk and has not assessed the magnitude of the risk. Similarly, his reference to “the serious nature of offences” causes concern. He does not say why he considers the offence committed to be serious, although, no doubt, offences of that generic kind can be accurately so described. One would, however, have expected more specific attention to the circumstances of this case in assessing the question of the magnitude of the risk to the community of this man being released without supervision.”
The delegate referred to the sentencing judge’s reference to the victim impact statement which indicated that the child had been adversely affected by the commission of the offences against her. The delegate noted from the Assessment Unit Report dated 28 February 1997 that the offences were against a young girl who was a friend of the applicant’s daughter. The delegate concluded that the evidence provided in the sentencing remarks and in the Assessment Unit Report “together with the generic nature of the charges themselves” was sufficient evidence that the offences were of “an exceptional nature”. How this conclusion could have been reached from this material is not at all apparent. Unfortunately, the offences were far from exceptional.
The decisive reason for refusing to grant remission appears to be that the applicant was recommended to undertake the Sexual Offenders Intervention Program to assist him in addressing the issues of his “inappropriate sexual behaviour” and declined to do so because he denied committing the offences:
“Consequently you have refused to participate in this program. Given that you are currently imprisoned in relation to sexual offences against a young girl and that you have not actively addressed your inappropriate sexual behaviour with young girls, the delegate is of the view that you continue to present a serious risk of harm to young girls.”
The delegate also took into account the refusal by the South Queensland Regional Community Corrections Board to grant the applicant parole on the grounds that he was not suitable because of his stance in respect of his offences. When reference is had to the reasons of the Board for refusing the applicant’s application for parole it is immediately apparent that the Board has transposed word for word what appears in paragraph 17 of the Assessment Unit Report of 17 February 1997 as its own reasoning process.
Whilst it is not appropriate to trawl through a decision-maker’s reasons looking for fault and error, Smith v Minister for Immigration (1984) 53 ALR 551 per Lockhart J at p. 554, the impression gained is of a cobbling together of approved concepts and expressions taken from judicial review decisions of this court and the guideline without genuinely exercising the delegated discretion or engaging in a logical reasoning process.
By s.208 of the Act the Governor in Council may make regulations not inconsistent with the Act to give effect to the Act. The regulations were made on 22 June 1989. They have been discussed by Williams J in Felton and it is unnecessary to examine them again. Part III deals with remission. Regulation 21 provides that:
“A prisoner serving a sentence of imprisonment of 2 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 _ of his sentence together with such other remission as is provided for in this Part.”
A prisoner is said to be of good conduct and industry if he “complies with all relevant requirements to which he is subject” and displays a readiness to assist in maintaining order and a willingness and desire to maintain steady industry in the work which might be required of him. Regulation 23 refers to remission for overtask marks. These are marks which may be granted to a prisoner who works in excess of reasonable working hours, is entrusted with an important and exacting task or displays above average application to trade work. Where a prisoner accumulates 12 overtask marks he may be granted 1 day’s remission. The applicant has been granted overtask marks.
Regulation 27 relates to forfeiture of remission which occurs if the prisoner undergoes separate confinement for a period of 7 days on 3 or more occasions and has not generally been of good conduct and industry. That provision is not applicable here. The applicant has had no separate confinement period of any kind.
Whether or not to grant remission is not confined solely to matters of good conduct and industry by the applicant but to an evaluation of the risk to the community. The granting of remission is a privilege and not a right, McCasker. Nevertheless, a prisoner who is of good conduct and industry has a legitimate expectation that he will be granted parole, Ex parte Fritz (1992) 59 A Crim R 132.
Since the applicant complies in all respects with the qualifications for remission as set out in the regulations the Commission will not exercise its discretion lawfully if it is not positively satisfied that there are overriding considerations which compel the Commission to refuse remission which would result in an earlier release date, McCasker per Helman J at p. 9 of his reasons quoting Felton with approval.
It is not contended for the applicant that it was impermissible for the delegate to take into consideration and make an assessment about the applicant’s risk of re-offending if released into the community. On the contrary: if there is an unacceptable risk the applicant accepts that an appropriate decision would be not to grant remission. His complaint is that there is no material upon which the delegate could have reached this conclusion. There is no basis for the Commission’s contention that this is an attempt at a merits revue.
Although the Commission or Board must proceed on the basis that a prisoner has been correctly convicted, Mott v Queensland Community Corrections Board [1995] 2 Qd R 261, the mere fact of maintenance of innocence is insufficient to found a conclusion of unacceptable risk, Ex parte Zulfikar. The Times Law Reports, 26 July 1996 p. 441; Ex parte Lillycrop, ibid 13 December 1996 p. 724. The inappropriateness of participation in the Sexual Offenders Intervention Program where guilt is not admitted is recognised by the proponents of the program.
There is no probative evidence put forward by the delegate which goes to the question of whether there exists an unacceptable risk involving concern for the need to protect members of the community against the risk of serious physical harm, McCasker per Macrossan at p. 3 of his reasons. Helman J in McCasker commented at p.10 of his reasons that a report by a psychologist based on observations of the prisoner in prison and knowledge of his history “could well provide a decision-maker with the proper basis for refusing to grant a remission”. There is no suggestion that the delegate had any material of that kind before her.
The conclusion seems plain that the delegate decided that the applicant, a sexual offender of no unusual sort, constituted a risk of re-offending because he would not admit his guilt and address his behaviour. That constituted a failure to exercise the delegated discretion according to law in not considering the real merits of the case.
I grant the application for review and order that the matter be remitted to the Commission for further consideration in accordance with these reasons.
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