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Sutherland v Davidson

 

[2004] QSC 242

SUPREME COURT OF QUEENSLAND

CIVIL JURISDICTION

MUIR J

No BS144 of 2004

PAUL VINCENT SUTHERLAND

Applicant

and

 

MS ELIZABETH DAVIDSON, ACTING DEPUTY DIRECTOR-GENERAL OFFICE OF SENTENCE MANAGEMENT

Respondent

BRISBANE

DATE 15/07/2004

JUDGMENT

HIS HONOUR: The applicant, Paul Vincent Sutherland, seeks review of a remission decision of the Acting Deputy Director General, Office of Sentence Management of the Department of Corrective Services made on 1 October 2003.

In that decision the respondent decided not to grant remission to the applicant on the basis that he posed an unacceptable risk to the community in accordance with sections 77 and 78 of the Corrective Services Act 2000 (“the Act”).

The first ground relied on by the applicant is, in effect, that his remission entitlement stands to be determined in accordance with the legislation in force at the time he was sentenced. He refers to section 11(2) of the Criminal Code. It provides:

“If the law in force when the Act or omission occurred differs from that in force at the time of the conviction the offender cannot be punished to any greater extent than was authorised by the former law or to any greater extent that is authorised by the latter law.”

He also seeks to obtain assistance from section 20 of the Acts Interpretation Act. Section 20C is also relevant. The respondent purported to act under sections 75, 76 and 77 of the Act. Section 75 sets out the circumstances in which a prisoner serving a term of imprisonment for an offence committed before the commencement of the section is eligible for remission.

On the face of the section, then, it purports to have application to prisoners serving a sentence for an offence committed before the relevant date irrespective of when the prisoner's conviction took place. Section 268A of the Act makes it plain that the legislative intended section 75 and the other provisions in Division 11 of Part 2 of the Act to have application regardless of when sentencing took place in relation to the coming into force of the Act and the provisions under consideration.

I do not propose to set out the text of section 268A. It contains a plain expression of legislative intent in regard to the matters under consideration. It goes into matters of detail and, for example, expressly provides that if before 1 July 2001 a prisoner had any expectation of being able after 1 July 2001 to be released or of being considered for release before the end of the prisoner's period of imprisonment, that expectation “is extinguished” except to the extent that the contrary is expressly provided for in the section.

The application of the relevant provisions of the Acts Interpretation Act may be displaced by a contrary intention appearing “in any Act”. (Section 4). The provisions of the Act to which I refer plainly manifest a contrary intention.

The Act being enacted later in time than section 11 of the Criminal Code will take effect notwithstanding any provision to the contrary in the Criminal Code, but there is, in fact, no conflict between the relevant provisions of the Act and section 11(2) of the Criminal Code. The removal of one scheme of remissions and its substitution by another does not amount to the imposition of a penalty or to any further or different punishment for the crime for which a person has been convicted; rather, the system of remissions constitutes a privilege extended to a prisoner, in accordance with relevant statutory provisions, through which the punishment imposed by a sentence may be mitigated.

It may well be - and I don't doubt the applicant when he submits that changing the regime in relation to remissions in the course of a prisoner's sentence may give rise to a sense of oppression and to frustration, particularly if the regime changes from time to time and expectations legitimately formed by prisoners are confounded.

That, however, is not a matter which I can redress on an application such as this. It is within my province only to construe the legislation which the Parliament has seen fit to enact and to ascertain, where relevant, whether that legislation has been properly applied.

The second ground relied on is that the making of the decision was an improper exercise of the power conferred by the enactment under which it was purportedly made. The third ground is that the decision involved an error of law. The substance of the second ground is that the respondent took into account irrelevant considerations and failed to take into account relevant considerations. In particular, the applicant is concerned that material on his file which is relevant to any recommendation under section 75 of the Act is erroneous and damaging in nature.

He points to a number of instances of review ratings or sentence management reviews in which it is asserted erroneously that he has convictions for deprivation of liberty and sodomy. In some cases it is made plain that it is being asserted that such convictions are earlier than the applicant's conviction for rape which led to the sentence he is currently serving. One example of this error is to be found in a Sentence Management Review Assessment, dated March 2003.

Mr MacSporran, who appears for the respondent, submits that the decision was not tainted by any of those errors. In order to make good that submission, he points to the remission decision itself and to the statement of reasons given in respect of it, together with the documentation which accompanies the statement of reasons. It sets out the material considered by the authorised delegate and also lists the matters upon which the delegate placed “greater weight”. The document and the accompanying material not only correctly states the position in relation to the applicant's convictions, but gives no suggestion that the error has in any way affected the thought processes of the decision-maker or of those giving reports upon which the decision-maker relied.

Looking at the bases upon which the decision maker acted, it seems to me that they were all matters to which she was entitled to have regard in making her determination.

The applicant complains that his rights or ability to secure earlier release are being affected by his inability to complete the Sexual Offenders Treatment Program despite his actively seeking to do so. The decision-maker may well have taken into account the failure on the part of the applicant to complete the program, and, indeed, that she has done so appears from page 5 of the statement of reasons. It does not appear to me, though, that this discloses error on her part. It is not one of the matters listed amongst the matters given “greater weight”, nor does it appear that the respondent was under any misapprehension about why it was that the applicant had not completed the program.

The main considerations motivating the decision-maker appear to have been her perception of the risk that the applicant would reoffend and the consequent risk of harm to members of the community as well as the degree of risk.

In that regard, she took into account the serious and violent nature of the offence and properly had regard to psychiatric and psychological reports. Recorded phone calls and correspondence engaged in by the applicant lends support to the psychiatric and psychological assessments.

The applicant does not accept the accuracy of the reports on which the respondent relies or the processes by which the reports were generated, but the reports, nevertheless, were properly before the decision maker. In this application it is not open to me to carry out a review of the quality of the opinions expressed therein.

The matters that I have addressed deal with the substance of the other claims raised by the applicant or, at least, such of those matters which are capable of being raised on an application such as this.

The respondent seeks an order that the application be dismissed with costs.

It seems to me the erroneous material to which I have referred was likely to engender in the applicant a belief that he had been unfairly dealt with and that the decision under consideration was arrived at on a false premise. I have found that view of it is wrong but in the circumstances it does not seem to me to be appropriate to make any order as to costs.

I order that the application be dismissed.

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Editorial Notes

  • Published Case Name:

    Paul Vincent Sutherland v Elizabeth Davidson

  • Shortened Case Name:

    Sutherland v Davidson

  • MNC:

    [2004] QSC 242

  • Court:

    QSC

  • Judge(s):

    Muir J

  • Date:

    15 Jul 2004

Litigation History

No Litigation History

Appeal Status

No Status