Wiskar v Chief Executive, Department of Corrective Services
[2000] QSC 147
•26 May 2000
SUPREME COURT OF QUEENSLAND
CITATION: Wiskar v Chief Executive, Department of Corrective Services [2000] QSC 147 PARTIES: CHRISTOPHER LORRANCE WISKAR
(applicant)
v
CHIEF EXECUTIVE, DEPARTMENT OF CORRECTIVE SERVICES
(respondent)FILE NO: S 9871 of 1999 DIVISION: Trial Division DELIVERED ON: 26 May 2000 DELIVERED AT: Brisbane HEARING DATE: 11 May 2000 JUDGE: White J ORDERS: 1. Set aside the decision of the respondent.
2. Remit the matter to the respondent for further consideration.
3. The respondent pay the applicant’s costs of and incidental to the application for review to be assessed.
CATCHWORDS: Administrative law - statutory review - refusal to grant remissions - improper exercise of power - error of law.
Corrective Services Regulations 1989, reg 21
A‑G (NSW) v Quinn (1990) 170 CLR 1
Collector of Customs v Pozzolanic (1993) 43 FCR 280
McCosker v The Queensland Corrective Services Commission [1998] 2 Qd R 261
Payne v Deer [2000] 1 Qd R 535
R v War Pensions Entitlement Appeal Tribunal; Ex Parte Bott (1933) 50 CLR 228
Re Sutton and Council of the Shire of Rosalie [1992] QAR 163
Yeo v Queensland Corrective Services Commission (No 7534 of 1997)COUNSEL: J Davidson for the applicant
J Logan SC for the respondentSOLICITORS: Poteri Woods for the applicant
Crown Solicitor for the respondent
WHITE J: This is an application for review of a decision made by the delegate of the respondent on 4 October wherein the applicant was not granted remissions pursuant to Regulation 21 of the Corrective Services Regulations on his term of imprisonment.
On 15 December 1998 Williams J set aside a remission refusal decision made by the respondent in respect of this applicant and remitted the matter to the respondent for further consideration (No 5561 of 1998). His Honour reached that conclusion because he found that the decision was based on the application of general principles or guidelines and not on a detailed assessment of the particular risks associated with the applicant applying observations made in McCosker v The Queensland Corrective Services Commission [1998] 2 Qd R 261, and Yeo v Queensland Corrective Services Commission (No 7534 of 1997), unreported judgment of Dowsett J of 13 February 1998. There had been no report by an expert such as a psychiatrist or psychologist assessing the current risk of the applicant were he to be released.
When the respondent made the decision under review it then had available for consideration two psychological reports about the applicant. They were a joint report by Ms Pennington and Mr McLennan, psychologists, dated 17 March 1999 and a joint report by Dr Hazell and Ms Abella dated 16 August 1999.
The applicant pleaded guilty on 29 May 1990 in the Supreme Court at Cairns to two counts of rape and four counts of indecent dealing in respect of a girl aged between two and a half and three and a half years at the time of the offences which had occurred over a period of 14 months. The child’s mother and the applicant were in a de facto relationship and although they did not always live together the applicant was said to be in a paternal role to her.
The applicant was sentenced on 29 May 1990 by Connolly J to a term of imprisonment of 12 years in respect of each rape count and 3 years on each of the indecent dealing charges. All sentences were to be served concurrently. The applicant became eligible to apply for parole on 29 May 1996 and discharge if granted full remissions on 19 February 1998. His full time release date is 28 May 2002. He has been refused parole on the ground, it seems, that he had not undertaken programs to address his offending behaviour.
The applicant has been an exemplary prisoner so far as his prison conduct is concerned and has undertaken numerous behavioural and vocational courses.
Shortly after commencing his sentence he asserted and continues to assert his innocence in respect of the offences to which he had pleaded guilty. He maintained that he was pressured into pleading guilty because the child would be exposed to the trauma of giving evidence in a trial if he did not. He had understood that he could expect to receive a short suspended sentence if he pleaded guilty.
The grounds of this application are that the making of the decision was an improper exercise of power by the respondent because
· the power was exercised in accordance with the policy that sexual offenders who have not completed recommended programs should generally be regarded as more likely to commit further offences than those who have done so and without regard to the merits of the applicant’s case;
· the respondent took into account an irrelevant consideration, namely that the sentencing judge indicated that the sentence of 12 years was discounted by 4 years to take account of the plea of guilty and he, the sentencing judge, intended that the applicant serve 12 years in prison;
· the exercise of the power was unreasonable in that
· the respondent gave undue weight to an assertion of innocence by the applicant, and also to the Pennington/McLennan report of 17 March 1999, and
· failed to give proper weight to the applicant’s lack of previous convictions, and also to the Hazell/Abella report of 19 July 1999.
The further ground is that the decision involved errors of law, namely,
· the respondent’s conclusion expressed in a letter dated 29 April 1999 that the applicant “would present an extremely high risk of reoffending in a sexual manner if [he] were to be released unsupervised” was not based on logically probative material or evidence;
· no proper and genuine assessment was made of the risk to the community if the applicant were released;
· the respondent acted under the belief that its finding that the sentencing judge had intended that the applicant serve 12 years in prison was of some legal significance.
Mr J Logan SC who appeared on behalf of the respondent conceded that if it were found that the decision‑maker had taken into account the statement on sentencing that the applicant should serve 12 years in prison in a literal way that would indeed constitute reviewable error. However he submitted that properly understood it is clear that this statement finds no place in the decision‑making process
Mr J Davidson for the applicant submitted that the reasons for the decision under review are contained in two documents, a letter of 29 April and one of 4 October 1999 and that in order to appreciate the strength of the complaints about the way in which this decision was reached the decision dated 22 May 1998 which was reviewed by Williams J also needs to be considered. Mr Logan emphasised that it is that of 4 October which must be referred to for this application. The documents of 29 April and 4 October 1999 must be read together because the decision‑maker incorporates parts of the earlier reasons directly, for example,
“However as indicated previously, the psychological report of Ms Pennington and Mr McLennan …”
And further incorporation is by implication.
By letter dated 29 April 1999 from the Authorised Delegate of the respondent which is the Serious Offenders Committee (“the Committee”) signed by Ms Kirkman‑Scroope, the applicant was informed that the Committee, having reconsidered the applicant’s submissions to grant remissions had decided not to do so. The documents tabled for consideration by the Committee were listed. The writer stated that the psychological report (Pennington/McLennan) was considered by the Committee “when reviewing their decision as per the recommendations outlined in Wiskar v QCSC ”. The decision was stated to be based on findings of fact which were set out including that
“The psychological report indicates that should Mr Wiskar form a relationship with a woman who has a female child, it is possible that the child might be at risk of sexual abuse. However, his risk of reoffending is reduced outside of these kinds of relationships.”
The reasons included the following statement
“It was also noticed that at the time of sentencing Justice Connolly indicated that to Mr Wiskar ‘this is to say, you will be in prison for 12 years’.”
The reasons concluded
“The Committee noted that the General Manager and Sentence Management Team have assessed you as being unsuitable for release to the community without supervision. When having regard to all aspects of the case the Committee concluded that you would present an extremely 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.
The Committee further took into account the most recent psychological report, particularly the conclusion, wherein it states … ‘should Mr Wiskar form a defacto relationship or friendships with women who have a small girl child he will be a high risk of re‑offending’. The Committee are of the opinion that it would be unrealistic not to expect you to form friendships and or relationships with women who have female children, and as such could not conclusively be deemed to have a reduced risk of re‑offending.”
The applicant was invited to make further submissions.
The applicant instructed his solicitors to engage external experts (Pennington/McLennan were internal psychologists) to prepare a report to address the risk posed to the community if he were released. The applicant was interviewed and tested by Dr Hazell and Ms Abella in June and July 1999. That report and further submissions were provided to the Committee. By letter dated 4 October 1999 the applicant was advised that the respondent had decided not to grant him any remissions on his sentence. In addition to the material which it previously had considered the Committee stated that it considered the submissions by the applicant’s solicitors and the Hazell/Abella report. The decision was stated to be based on certain findings of fact which are set out including again the passage found in the reasons in the letter of 29 April 1999
“In sentencing you Justice Connolly indicated that the sentence was discounted by 4 years and that he intended that you serve 12 years in prison.”
Further facts forming the basis of the decision were that
“The psychological report provided by Ms Pennington and Mr McLennon indicates that you lack knowledge and beliefs about appropriate adult sexual behaviour and that you present a high risk of reoffending in a like manner should you enter a relationship with a partner who has a child;
The psychological report of Mr Hazell and Ms Abella, whilst providing information about your personality does not significantly challenge the findings of Ms Pennington and Mr McLennan.”
In the reasons for decision the following passages appear
“However as indicated previously, the psychological report of Ms Pennington and Mr McLennon indicates that a significant risk is present should you form a relationship with a partner where a child is present.
The Committee considered the findings of a psychological report prepared by Ms Abella and Mr Hazell. It was noted that the report did not look specifically at the offences, rather it focused mainly on the nature of your personality. The report indicates that you may be more introverted and less stable than you present, that you do not have an addictive personality and that you have an intelligence level appropriate to understanding your offending behavior [sic].
Testing conducted by Ms Abella and Mr Hazell indicated that you have lower than normal levels of impulsiveness, venturesomeness and empathy. This combination of traits could indicate that you have the capacity to plan your offences. Consequently, your offending could have been premeditated rather than opportunistic.
It was also concluded from testing that your baseline indicates that you are less susceptible to social pressure than the norm. This directly conflicts with your claim that you were “verbalized” by the police into making a confession. Additionally, tests administered by Ms Abella and Mr Hazell indicated that you are less compliant than 60% of false confessors. This indicates you have the capacity to provide false information and that questions and doubts can be raised regarding your honesty. However this report relies heavily on self reporting, particularly in relation to your not re‑offending if released. The report included numerous quotes from you without corroborating information to support your claims.
The Committee considered that there was insufficient psychological testing completed by Ms Abella and Mr Hazell in relation to your sexual offending behaviour. The report did not state that you were not a risk to children, the victims targeted by your offending behaviour, rather it stated that you were not a risk to the child’s mother. Further, the report did not challenge the psychometrics completed in the psychological report by Ms Pennington and Mr McLennan.
In conclusion the Committee determined that the Psychological report prepared by Ms Abella and Mr Hazell provided useful information and at times provided support for the conclusions of the Psychological report prepared by Ms Pennington and Mr McLennan. The report of Ms Abella and Mr Hazel did not provide any addition factors of sufficient weight to displace the conclusions drawn by the delegate when the matter was considered on 31 March 1999.”
Mr Davidson contends that a careful analysis of the decision of 4 October 1999 points to a conclusion that the decision‑maker has not made proper assessment on the merits based on the psychological reports but has merely restated the original decision behind a facade designed to create an illusion of compliance with the order of Williams J. When the reasons and decision of 29 April 1999 are compared with those of 24 March 1998 (considered by Williams J together with that of 22 May 1998) it is plain that the former has largely replicated the latter. Particular attention, Mr Davidson contends, should be given to the conclusion which is identical in both
“When having regard to all aspects of your case the Committee concluded that you would present an extremely high risk of reoffending in a sexual manner if you were to be released unsupervised and that the risk of the community would be unacceptable.”
The mere fact that whole passages have been transposed from an earlier document does not, of itself, indicate that a proper consideration of the merits has not occurred. The real concern here is that there is no evidence of “an extremely high risk (italics added) of reoffending” in the material then before the Committee. The risk assessed in the Pennington/McLennan report appears at p 10 as
“… should Mr Wiskar form a de facto relationship or friendships with women who have a small girl child he will be a high risk of re‑offending. Importantly, his risk of re‑offending is reduced outside of these kinds of relationships” (italics added).
In the 4 October 1999 reasons a different expression used
“However as indicated previously, the psychological report of Ms Pennington and Mr McLennan indicates that a significant risk is present should you form a relationship with a partner where a child is present” (italics added).
It could be said that the first interpretation expressed the risk too highly and the second too low. It is not clear that the writer appreciated the different levels of seriousness represented by the different expressions used. Nonetheless the expression contained in the 4 October decision is, if anything, more favourable to the applicant than the Pennington/McLennan report.
In any event, Mr Davidson submits that the assessment of the risk is expressed by Pennington/McLennan in a qualified way. In the body of the discussion before the conclusion where the passage appears the writers are discussing one of a number of predictors of risk of sexual offending that being inappropriate age choice of the victim “as measured phallometrically”. They went on to say that a sexual preference for a young person by the applicant was unable to be measured phallometrically but it was clear that the applicant’s victim aged 2½ fell into the category of inappropriate age choice and the pattern of offending had developed over a 14 month period with the one victim. These two factors they stated would indicate deviant sexual behaviour. They then said
“Should Mr Wiskar form a relationship with a women [sic] who has a young child, particularly a girl child, it is possible that that child might be at risk of sexual abuse. This type of situation would place him at risk of re‑offending. However without phallometric confirmation, a shadow of doubt is cast over the extent of the risk to the community.”
The conclusion is expressed rather more firmly but, nonetheless, in the context of other factors discussed in the body of the report.
“In conclusion, and in the context of Mr Wiskar’s plea of guilty and the court’s guilty finding, and taking into consideration the violent nature of the crime, the age of the victim, the period of offending and the intra‑familial context of the offence and results of psychological functioning which indicates a degree of emotional immaturity, should Mr Wiskar form a de facto relationship or friendships with women who have a small girl child he will be high risk of re‑offending. Importantly, his risk of re‑offending is reduced outside of these kinds of relationships.”
The misstating of the effect of the report on this matter in the reasons is not so wrong as to amount to reviewable error, but there are other factual errors which need to be considered.
I think it fair to conclude that the Committee picked up every negative comment in the Hazell/Abella report or gave every finding in it a negative slant. If that were all the decision would still be within the ambit of the decision‑maker’s discretion. However Ms Coop, who signed the document of 4 October 1999, wrote
“The report [Hazell/Abella] did not state that you are not a risk to children, the victims targeted by your offending behaviour, rather it stated that you were not a risk to the child’s mother.”
This is incorrect. What the report stated is this
“He has no psycho‑pathology that would make him a danger to society. He is no danger to the mother or the alleged victim” (underlining added).
That seems to be quite a fundamental misapprehension of what the Hazell/Abella report contains. The two sentences from the report quoted above necessarily cover the class of all children. Ms Coop states
“Further, the report did not challenge the psychometrics completed in the psychological report by Ms Pennington and Mr McLennan.”
It is not clear on reading page 9 of the Pennington/McLennan report that these tests were actually carried out. The report stated
“The application of psychometric tests will assist in the consideration as to Mr Wiskar’s risk of re‑offending” (underlining added).
The writers then refer to the “Psychopathy Checklist - Revised” which they said was used to measure psychopathy. The two appear to be different. Butterworths Medical Dictionary 2nd ed (1978) defines “psychometrics” as
“The quantitative estimation of personality; the measurement of intelligence.”
The definition of “psychopathy” is
“Any congenital or acquired disorder or disease of the mind; insanity.”
Hazell/Abella make no reference to any psychometric tests administered by Pennington/McLennan but do comment on the psychopathy diagnosis as follows
“The report contains a sprinkle of ‘probablys’, ‘coulds’, ‘possibles’ and conjectures about his motivations. The core of the report is the notion that
‘the underlying motivations for changing his stance from guilty to not guilty will remain with him until he takes responsibility for his actions’ (p 9) …
The denial stance could also be considered a reflection of this behaviour’ (p 9)
This in spite of the fact that
‘WISKAR’s total score did not meet the diagnostic criteria for psychopathology but fell close to the mean score for prisoners’
his result is treated as significant. The writers could have added that prisoners’ scores can be directly proportional to the length of time spent in custody.”
Hazell/Abella then state
“With all due respects to what the ‘in‑house’ psychologists’ report says, devoid of the conjectures is, that if it were not for his denial of guilt this exemplary prisoner is ‘no risk’ to the community” p 11.
Where a decision‑maker has available different expert opinions in respect to the subject matter of the decision one may be preferred even if, on analysis, the reasons for the choice are not compelling. To interfere would be to engage in a consideration of the correctness of the decision or the sufficiency of the evidence supporting it, R v War Pensions Entitlement Appeal Tribunal; Ex Parte Bott (1933) 50 CLR 228 at 242‑3; A-G (NSW) v Quinn (1990) 170 CLR 1 at 35‑6; Payne v Deer [2000] 1 Qd R 535 at 540. I am mindful of the need not to construe minutely and “finely with an eye keenly attuned to the perception of error,” Collector of Customs v Pozzolanic (1993) 43 FCR 280 at 287. But in light of these errors there is a perception that the Authorised Delegate has quite misunderstood the effect of the report prepared by Hazell/Abella in important respects and not taken, therefore, a relevant consideration into account. The Authorised Delegate ought to reconsider the application after reading carefully the Hazell/Abella report in conjunction with the Pennington/McLennan report.
Finally there is the reference to Connolly J’s statement that the applicant was to spend 12 years in prison. Counsel agree that it is more than likely that his Honour was making clear to the applicant that although he had imposed a sentence of 12 years for the two rapes and 3 years for the indecent dealings, the totality of the time in prison was 12 years. In other words that they were concurrent sentences. It is inconceivable that a judge of his Honour’s experience would have thought that he was able to stipulate that a prisoner not receive remissions or be eligible for consideration for parole. The distinct impression gained from the recurrence of the reference to this statement in the documents of 29 April and 4 October 1999 is that to the Authorised Delegate it meant that his Honour intended that the applicant should remain in prison for the entirety of his sentence and this was an influential fact. I agree with Mr Davidson that it matters not that that passage appeared in the reasons on 29 April 1999 and in the findings of fact on 4 October 1999, see Re Sutton and Council of the Shire of Rosalie [1992] QAR 163. It is not the case that this is simply an awkward way of conveying the sentence imposed because in each of the documents, that is, of 29 April and 4 October 1999 the sentence is set out separately. Mr Logan submitted that if this were an erroneously held view by the decision‑maker it formed no part of the reasoning process to the decision to refuse remissions. I agree that it is not overt. But the mere fact that it forms part of what is said by the Authorised Delegate to constitute the reasons and that it is repeated in both documents leads to the conclusion that in some way it operated on the decision‑maker and for it to have done so was impermissible. It was an irrelevant consideration and an erroneous understanding of the effect or otherwise of such a statement on the decision‑making process. This is not to say that the decision‑maker could not take into account observations made by the sentencing court which were relevant to the exercise in hand but these remarks as apparently understood by the decision‑maker did not fall into that category.
The application for remissions should be considered afresh by the respondent with these reasons in mind. The orders are
1. Set aside the decision of the respondent made 4 October 1999.
2. Remit the matter to the respondent for further consideration.
3. The respondent pay the applicant’s costs of and incidental to the application for review to be assessed.
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