Wiskar v Queensland Corrective Services Commission - [1998] QSC 279

IN THE SUPREME COURT
OF QUEENSLAND

No 5561 of 1998

Brisbane
[Wiskar v Queensland Corrective Services Commission]
BETWEEN:

CHRISTOPHER LORRANCE WISKAR
Applicant
AND:
QUEENSLAND CORRECTIVE SERVICES COMMISSION
Respondent

REASONS FOR JUDGMENT - WILLIAMS J

Judgment delivered 15 December 1998

CATCHWORDS: ADMINISTRATIVE LAW - statutory review - refusal to grant remission - failure by respondent to address offending behaviour - refusal must be based on a consideration of the respondent’s particular circumstances - Yeo v Queensland Corrective Services Commission (Unreported decision of Dowsett J, No 7534 of 1997, delivered 13 February 1998) applied.

Counsel:J Davidson for the applicant
S McLeod for the respondent

Solicitors:Peter Woods for the applicant
Crown Solicitor for the respondent

Hearing Date: 10 December 1998

IN THE SUPREME COURT
OF QUEENSLAND

No 5561 of 1998

Brisbane
[Wiskar v Queensland Corrective Services Commission]
BETWEEN:

CHRISTOPHER LORRANCE WISKAR
Applicant
AND:
QUEENSLAND CORRECTIVE SERVICES COMMISSION
Respondent

REASONS FOR JUDGMENT - WILLIAMS J

Judgment delivered 15 December 1998

This is an application for statutory order of review of the decision of the respondent refusing to grant remissions to the applicant with respect to his sentence of imprisonment. On 29 May 1990 the applicant pleaded guilty in the Supreme Court at Cairns to two counts of rape and four counts of indecent dealing. The complainant was a girl aged about 3 years at the time of the incidents, and the appellant was “in a position of a father to her”. He was sentenced to 12 years’ imprisonment on each of the rape counts, and 3 years on each of the counts of indecent dealing; the sentences were to be served concurrently. The sentencing judge intimated that he had in mind a head sentence of 16 years which was reduced because of the plea of guilty and remorse.
Given that sentence the applicant became eligible to apply for parole on 29 May 1996 and discharge, if granted full remissions, on 19 February 1998. He applied for parole but that was refused, apparently on the ground that he had not undertaken programs to address his offending behaviour.
Regulation 21 of the Corrective Services Regulations provides:
“(1)A prisoner serving a sentence of imprisonment of two months or longer and who is of good conduct and industry may, at the discretion of the Commission, and subject to the following provisions of this Part, be granted a remission of one-third of his sentence together with such other remission as is provided for in this Part.
(2)For the purposes of this Part a prisoner is of good character and industry if he -
(a)complies with all relevant requirements to which he is subject;
and
(b)displays a readiness to assist in maintaining order and a willingness and genuine desire to maintain steady industry in every employment or work which may be required of him.”
That Regulation has been the subject of judicial consideration. In McCasker v The Queensland Corrective Services Commission [1998] 2 Qd R 261 Macrossan CJ said at 263: “The discretion to grant or…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [1998] QSC 279
Decision Date: 15 December 1998

CaseChat Overview and Summary

This case involved an application for statutory review of the Queensland Corrective Services Commission's decision to refuse the applicant, Christopher Lorrance Wiskar, remissions on his sentence of imprisonment. Wiskar was sentenced to 12 years for two counts of rape and 3 years for four counts of indecent dealing, to be served concurrently, after pleading guilty. The applicant became eligible for parole in 1996 and for discharge, if granted full remissions, in 1998. The primary legal issue was whether the respondent had failed to adequately consider Wiskar's particular circumstances when making the decision to refuse him any remissions.

The court held that the decision maker had not sufficiently considered the applicant's individual circumstances. The decision was based on general principles and guidelines rather than on a detailed assessment of the risks associated with the applicant. The court noted that the absence of an up-to-date psychological report assessing the risks posed by Wiskar meant that the decision was not based on proper considerations. Consequently, the decision was set aside, and the matter was remitted to the respondent for further consideration. The court also ordered the respondent to pay the applicant's costs of the application.

Orders