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O'Sullivan v Chief Executive, Department of Corrective Services

 

[2004] QSC 45

 

SUPREME COURT OF QUEENSLAND

  

PARTIES:

FILE NO:

Trial Division

PROCEEDING:

Application for a statutory order of review

DELIVERED ON:

18 March 2004

DELIVERED AT:

Brisbane

HEARING DATE:

23 February 2004

JUDGE:

Mullins J

ORDER:

1. Application dismissed.

2. Any application for an order for costs to be made by the respondent be made by giving 7 days’ notice in writing to the applicant accompanied by the respondent’s written submissions in support of such an order.

CATCHWORDS:

ADMINISTRATIVE LAW – JUDICIAL REVIEW LEGISLATION – GROUNDS FOR REVIEW OF DECISION –where the applicant seeks review of the decision of the delegate of the respondent not to grant remission to the applicant on the basis that he posed an unacceptable risk to the community pursuant to s 77 Corrective Services Act 2000 (Q) – whether the respondent breached the rules of natural justice because of the lateness with which the delegate commenced the process - whether the respondent breached the rules of natural justice by failing to give the applicant access to psychiatrist’s report - whether there was no evidence to justify the decision of the delegate – whether there was an improper exercise of power by the delegate

Corrective Services Act 2000

Judicial Review Act 1991

Butler v Queensland Community Corrections Board (2001) 123 A Crim R 246

Fogarty v Department of Corrective Services [2002] QSC 207

Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24

COUNSEL:

The applicant appeared in person

K A Mellifont for the respondent

SOLICITORS:

C W Lohe, Crown Solicitor for the respondent

  1. MULLINS J:  By application filed on 24 October 2003 the applicant seeks to review the decision of Ms D M Ryan (“the delegate”), the authorised delegate of the respondent, not to grant remission to the applicant on the basis that he posed an unacceptable risk to the community in accordance with s 77 of the Corrective Services Act 2000 (“CSA”).

Background

  1. The applicant was born on 17 November 1964. The applicant’s criminal history included numerous driving offences in 1987 and drug offences between 1992 and 1994. On 15 March 1996, after pleading guilty, he was sentenced to 9 months’ imprisonment suspended after serving 3 months for an operational period of 12 months for indecently dealing with a child of about 4 years of age.
  1. On 16 March 1998 the applicant pleaded guilty in the District Court to one count of rape and one count of indecent assault with a circumstance of aggravation. He was sentenced to 9 years’ imprisonment with a recommendation for release on parole after serving 3 years. A presentence custody declaration of 329 days was made. He became eligible to apply for post-prison community based release on 21 April 2000. To date the applicant has been unsuccessful in his applications for post-prison community based release. If the applicant had been granted remission his earliest discharge date would have been 16 April 2003. His fulltime discharge date is 20 April 2006.

Legislation

  1. The applicant was eligible for remission pursuant to s 75(1) of the CSA.  Section 75(2) of the CSA provides:

“(2)Subject to subsections (3) and (4), the chief executive may grant remission of up to one-third of the term of imprisonment if satisfied –

  1. that the prisoner’s discharge does not pose an unacceptable risk to the community; and
  1. that the prisoner has been of good conduct and industry; and
  1. of anything else prescribed under a regulation.”
  1. The terms of s 77 of the CSA (at the time the decision was made) were:

77Risk to community

In deciding whether a prisoner’s discharge or release poses an unacceptable risk to the community, the chief executive must consider, but is not limited to considering, the following –

  1. the possibility of the prisoner committing further offences;
  1. the risk of physical or psychological harm to a member of the community and the degree of risk;
  1. the prisoner’s past offences and any patterns of offending;
  1. whether the circumstances of the offence or offences for which the prisoner was convicted were exceptional when compared with the majority of offences committed of that kind;
  1. whether there are any other circumstances that may increase the risk to the community when compared with the risk posed by an offender committing offences of that kind;
  1. any remarks made by the sentencing court;
  1. any medical or psychological report relating to the prisoner;
  1. any behavioural report relating to the prisoner;
  1. anything else prescribed under a regulation.”
  1. The process that must be followed if the chief executive is considering refusing remission is set out in s 79 of the CSA:

79Refusing remission or conditional release

  1. This section applies if the chief executive is considering refusing –
  1. to grant remission; or
  1. to make a conditional release order.
  1. The chief executive must give the prisoner a notice –
  1. stating that the chief executive is considering refusing to grant remission or make the order; and
  2. outlining the reason for the proposed refusal; and
  3. inviting the prisoner to show cause, by written submissions given to the chief executive within 21 days after the notice is given, why the remission or conditional release order should not be refused.

 

  1. The chief executive must consider all written submissions made within the 21 days and inform the prisoner, by written notice, whether the remission or conditional release is refused.”

Decision of the delegate

  1. On 25 March 2003 the applicant made a request to Sentence Management of the Department about the remission of his sentence. Although the applicant would be discharged on 16 April 2003, if granted remission, he had not received any information about the grant of remission at the time he made his request.
  1. A letter dated 2 April 2003 was sent by the delegate to the applicant in which notice was given that the delegate was considering not granting remission of the applicant’s sentence on the basis that he would pose an unacceptable risk to the community and that he had not been of good conduct and industry. In view of the date on which the grant of remission could take effect and the requirement that a prisoner have 21 days after notice has been given of the chief executive considering refusing to grant remission in order to show cause why the remission should not be refused, the letter from the delegate should have been sent in sufficient time to allow the period of 21 days to elapse and the decision of the delegate to be then made before the date on which the grant of remission could take effect.
  1. The letter dated 2 April 2003 listed 18 documents which were available for consideration by the delegate. The delegate then set out the factors that she had considered to date. The delegate referred expressly to the sentencing remarks made at the time the applicant was sentenced for his current sentence; that although the applicant’s institutional behaviour had been of an acceptable standard, his behaviour towards the Sex Offenders Treatment Program (“SOTP”) facilitators was hostile and aggressive and that similar behaviours had been displayed by the applicant in other intervention programs; that the applicant had been placed on a special treatment order in January 2000 due to inappropriate comments and threats to inflict serious harm to staff and that when the applicant recommenced the SOTP in March 2001, it was reported that the applicant was of the opinion that he was being “blackmailed” by the Department and that he would be denied early release, if he did not undertake the SOTP; that the applicant had completed programs in cognitive skills, anger management, substance abuse, preventing and managing relapse and SOTP; that the SOTP exit report dated 6 June 2002 concluded that the applicant’s overall risk for sexually reoffending was medium-high; statements made by psychiatrist Dr Ian Atkinson in a report dated 9 September 2002 (after carrying out a psychiatric examination of the applicant on 2 September 2002 and reading the history provided, the detention file, the professional file and the medical file); that the Queensland Community Corrections Board declined to grant the applicant post-prison community based release on the basis of his poor performance in the SOTP, that Dr Atkinson was not supportive of his release and that it would be preferable for the applicant to spend a significant period of breach free time in a less restrictive environment of open custody; and that the Sentence Management Coordinator and the General Manager of Wolston Correctional Centre did not recommend the granting of remission based on the applicant being considered an unacceptable risk to the community.
  1. The letter stated:

“In considering your case I noted the sentence imposed and the nature of the offences.  Your current offences and those in your criminal history are related to offences of a sexual nature.  You have been assessed as being a medium-high risk of reoffending.  You are reported to exhibit distorted attitudes and aggressive behaviour, which places you at an increased risk of re-offending.

I am concerned that there appears to be an element of premeditation and planning in your offence as indicated in the transcript of proceedings.

Although you have undertaken the relevant recommended programs to address your offending behaviour I have concerns about whether you have gained any benefits or understanding of the issues presented, particularly in light of your very poor response recorded in the sex offender treatment program. 

In addition, I have concerns relating to the psychiatric assessment indicating that you were not suitable for community-based supervision as recent as September 2002.”

  1. Apart from relying on those matters in considering not granting remission on the basis that the applicant would pose an unacceptable risk to the community, the delegate also considered that the applicant’s behaviour towards the female facilitators of programs which the applicant had attended which was reported as being aggressive and hostile was not acceptable and that the delegate was also considering not granting remission on the basis that the applicant had not been of good conduct and industry.
  1. The letter invited the applicant to comment on the material disclosed in the 18 documents referred to in the letter within 21 days of the receipt of the letter by the applicant. The letter informed the applicant that the delegate had decided not to release the SOTP exit report and the report of Dr Atkinson to the applicant, but indicated that they might be obtained by controlled release through a psychologist at the correctional centre. The delegate also noted that the SOTP exit report had previously been discussed with the applicant.
  1. By letter received by the delegate on 28 April 2003 the applicant foreshadowed difficulties in making submissions, because he did not have Dr Atkinson’s report and document 18 which was described as an offender profile for the applicant dated 7 March 2003.
  1. By letter dated 29 April 2003, the applicant was provided with a copy of the offender profile dated 7 March 2003 and was advised that Dr Atkinson’s report could be discussed with a psychologist at the centre or the applicant could apply for access to the report under the Freedom of Information Act 1992.  The letter also gave the applicant a further 21 days to make a response and indicated that a request for a further extension of time to respond would be made. 
  1. The applicant responded by letter dated 8 May 2003. That letter primarily complained about the process undertaken by the delegate and that the delegate was using documents that had been generated for other purposes. The applicant pointed out that there were other parts of the reports in the material that were before the delegate that were favourable to the applicant and had not been quoted by the delegate. The applicant made express reference to these favourable observations about him. The applicant disputed that he was not of good conduct and industry.
  1. The delegate’s decision was then made on 23 May 2003. The only ground on which the delegate relied to decide not to grant remission was that the applicant posed an unacceptable risk to the community. On 29 May 2003 the applicant made a request under s 32 of Judicial Review Act 1991 (“JRA”) for a written statement of reasons in relation to the decision.  The statement of reasons was provided by letter dated 26 June 2003 which largely reflected the letter dated 2 April 2003.  Apart from the original 18 documents relied on by the delegate, the letter of 26 June 2003 also listed the two letters from the applicant as material that was relied on by the delegate.  The critical part of the decision was expressed as follows:

“Consideration was also taken of your progress in addressing the issues surrounding your offending and your outstanding treatment needs.  It was noted that you had undertaken the sex offender treatment program however you did not meet the overall requirements of the program as such it was concluded that your overall risk for sexually re-offending is medium-high.  I had serious concerns in relation to this.

I took into consideration the finding of a Psychiatrist that you were completely rejecting of Corrective Services and insistent you will follow your own path once released from prison.  The seriousness of your offending and previous behaviour whilst in the community caused me particular concern in relation to this attitude in light that you have not successfully addressed you (sic) sexual offending.

I also made note of the assessment of the Queensland Community Corrections Board that a more gradual process of reintegration than release directly from secure custody to the community would be preferable owing to your length of incarceration and your perceived inability to cope in the community.  I further noted the recommendation of the Sentence Management Co-ordinator and the General Manager at Wolston Correctional Centre that you not be granted remission due to your assessed risk to the community.

In making the decision that you presented an unacceptable risk I also had regard to your criminal history, the seriousness of your offences, the sentencing Judge’s remarks and the length of sentence he (sic) imposed for your offences.

I considered all factors in your case and placed significant weight on the violent and predatory nature of your current period of offending, that you continue to present with outstanding treatment needs in relation to your sexual offending, the Psychiatrist’s findings that you would follow your own path upon release from prison and also the Board’s assessment that a gradual process of reintegration into the community was preferable.  I concluded in this instance you presented an unacceptable risk to the community if released unsupervised; therefore a decision not to grant remission on your current sentence was made.”

Grounds for review

  1. The grounds raised in the application were that there was a breach of the rules of natural justice, there was no evidence or material to justify making the decision and the making of the decision was an improper exercise of power.
  1. The affidavit of the applicant filed in support of the application referred to the parts of the various documents considered by the delegate which were favourable to the applicant.
  1. The applicant filed an outline of argument on 28 January 2004 which contained 7 numbered paragraphs. Paragraphs 1 and 3 developed the argument in respect of denial of natural justice. Paragraphs 2, 4 and 6 were relevant to the ground that there was no evidence or material to justify the decision. Paragraph 2 was also relevant to the ground of improper exercise of power.
  1. Paragraph 5 of that outline raised a factual matter that was not relied on by the applicant in responding to the delegate’s letter of 2 April 2003. The applicant contends that the consultation with Dr Atkinson was the result of an interview lasting 15 minutes in relation to his parole application. The applicant submits that the short amount of time that the applicant spent with Dr Atkinson is not sufficient to enable him to develop an accurate opinion.
  1. Apart from the fact that it is apparent from the report itself that Dr Atkinson prepared his report not only on the basis of his interview with the applicant but from his perusal of all the files relating to the applicant, this attack on Dr Atkinson’s report was not before the delegate and is not a matter that can now be taken into account to impugn the delegate’s reliance on Dr Atkinson’s report.
  1. Paragraph 7 of the applicant’s outline made reference to the fact that he has applied for and been declined parole on 6 occasions. That is also not relevant to any of the grounds of review.
  1. The applicant also relied on a handwritten outline (Ex 2) which was responsive to the respondent’s outline (Ex 3).

Breach of the rules of natural justice

  1. The applicant argues that he was given 9 days’ notice prior to the date on which he would have been discharged if granted remission that the delegate was considering not granting remission of his sentence. I have already observed that the letter from the delegate giving notice that the delegate was considering not granting remission should have been sent in sufficient time to allow for the period of 21 days in which the applicant could show cause to elapse and for the decision of the delegate to be made, before the date on which the grant of remission could take effect. If the decision were ultimately to grant remission, a person in the position of the applicant would be penalised by the process not having been commenced sufficiently far in advance of the earliest date on which the remission could take effect to enable the process to be resolved by that date. If the process is not started in a timely way, a prisoner could seek relief by way of application for a statutory order of review in relation to the failure of the chief executive to make the decision on whether or not the chief executive was considering refusing to grant remission on the ground that there has been an unreasonable delay in making the decision: s 22 JRA
  1. The applicant is wrong in asserting that he had 9 days only in which to make submissions. He still was allowed the period of 21 days to show cause, but the prejudice he suffered was in being penalised in the date on which he could be released, if the remission of his sentence were granted. Although the lateness with which the delegate commenced the process in relation to the applicant does not reflect well on the Department, it does not amount to a denial of natural justice.
  1. The applicant complains about not being given access to the relevant reports and documents in order to prepare a proper submission to the delegate. The only one of the 18 documents that the delegate was considering which the applicant did not have and which he specifically requested and was not provided, before the delegate made the decision, was the psychiatric report prepared by Dr Atkinson. Procedural fairness does not necessarily require that the applicant be provided with a complete copy of each document on which the delegate was considering. The observation of Byrne J in Butler v Queensland Community Corrections Board (2001) 123 A Crim R 246, 250 in relation to the procedural fairness which should be afforded a prisoner in connection with a proposed decision on a parole application is apposite:  

“Procedural fairness in respect of a parole application requires that an applicant’s attention be drawn to the main issues or factors militating against success, so that an adequate opportunity is afforded to deal with them.  That obligation, however, is satisfied where, as here, an applicant knows of, or anticipates, the facts and matters assuming significance in a decision to decline a parole application.” (footnotes omitted)

  1. Not only did the delegate’s letter of 2 April 2003 extract the parts of Dr Atkinson’s report on which the delegate was relying, but the applicant was given a means by which he could obtain more information on the contents of Dr Atkinson’s report and was offered an extension of time, if necessary, for making submissions to the delegate.
  1. The applicant has failed in showing that he was denied natural justice.

No evidence to justify making the decision

  1. The gist of the applicant’s complaints is that a different decision should have been made, because of the material amongst the documents considered by the delegate which was favourable to him. Another aspect of the applicant’s concern about the decision that was reached was that the unfavourable aspects of the SOTP exit report were repeatedly referred to in the other documents that the delegate had under consideration which gave a “snowballing” effect to the SOTP exit report.
  1. This application does not give the applicant the right to have the decision of the delegate reviewed on the merits: Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24, 40.  It is a question of whether there was evidence or material that could be relied on by the delegate to support her decision. 
  1. The SOTP exit report is referred to in the report of Dr Atkinson, the decision of the Queensland Community Corrections Board made on 1 October 2002 and the remission assessment which was the basis of the recommendation of each of the sentence management coordinator and the general manager of Wolston Correctional Centre that the applicant not be granted remission, each of which documents is referred to in the delegate’s statement of reasons. It is apparent from the content of each of these documents that the SOTP exit report was not the sole basis for the opinion expressed in those documents. It is also apparent from the reasons of the delegate that the delegate has had regard to the fact that other persons had reached certain conclusions about the applicant which were relevant to the question under consideration by the delegate, but that the delegate has taken those opinions into account with the other matters traversed in the statement of reasons and not treated those opinions as decisive of the issue before the delegate.
  1. The applicant also made the point that the conclusion in the SOTP exit report that the applicant’s level of sexual re-offending “may be deemed as Medium-High” did not amount to a conclusion that the applicant’s release would “pose an unacceptable risk to the community”. This was on the basis that the possibility of a Medium-High risk of re-offending was not the same as being an unacceptable risk to the community. It is apparent from the statement of reasons that the delegate understood the issue that had to be determined by her under s 75(2) of the CSA and that the conclusion in the SOTP exit report was one matter taken into account in determining the risk to the community, if the applicant were to be granted remission of his sentence and released into the community, without any further supervision. 
  1. At the outset of the hearing the applicant sought to rely on the latest sentence management review (Ex 1) which was given to him on 13 February 2004. That review appeared to be more favourable to the applicant than the reviews that were relied on by the delegate. The problem for the applicant is that the reviews relied on by the delegate were those in existence at the time the delegate made her decision. The fact that there is a subsequent management review now in existence does not invalidate the reliance by the delegate on the earlier sentence management reviews.
  1. In response to the allegation made in paragraph 2 of the applicant’s written outline that the report was compiled to meet a Ministerial directive that sex offenders were not to be released on their parole or remission dates, the delegate swore an affidavit on 17 February 2004 which referred to the fact that to her knowledge there was no such Ministerial directive in existence and that her decision was made after considering the merits of the applicant’s application for remission. The applicant has therefore failed to show that such a Ministerial directive existed and that the delegate applied such a directive rather than making an independent decision.
  1. The delegate in a comprehensive way extracted from the various documents relied upon, the matters which affected her decision making. Ms Mellifont of Counsel for the respondent did not seek to confine the applicant to the ground of review that there was no evidence to support the decision, but also addressed the applicant’s complaints on the basis that he was arguing that the decision was manifestly unreasonable. This is not a decision where there was no evidence or material available to support it, as what I have identified above as the critical part of the decision shows. For the same reason, the applicant cannot show that the decision was manifestly unreasonable.

Improper exercise of power

  1. The applicant in his handwritten submissions (Ex 2) sought to draw an analogy between the decision made to refuse remission of his sentence and that which was the subject of Fogarty v Department of Corrective Services [2002] QSC 207 (“Fogarty”).
  1. In Fogarty the prisoner was convicted after trial of rape and other sexual offences.  A decision was made to refuse to grant him remission.  The prisoner had continued to deny the offences for which he was imprisoned and therefore was ineligible for the SOTP.  Dutney J concluded that the decision made in that case had merely adopted the conclusion of the psychologist which was based on an unsubstantiated assumption that attendance at the SOTP reduces the risk of re-offending and that the failure to attend renders the offender and unacceptable risk to the community.  Dutney J stated at para [35]:

“In my view there was no evidence capable of supporting a conclusion that Mr Fogarty was an unacceptable risk to the community and the decision to refuse him remissions was based on a policy of considering every sex offender an unacceptable risk unless they had undertaken the sexual offenders’ treatment programme.”

  1. The decision to refuse the applicant remission of his sentence must be looked at in light of the statement of reasons of the delegate. The delegate identified the factors which she relied on and the weight that she gave to each of them. There were a number of such factors. The delegate’s decision making process in respect of the applicant was not analogous to that undertaken in Fogarty

Orders

  1. It follows that the application should be dismissed, as the applicant has been unsuccessful in making out any of the grounds relied upon for a statutory order of review.
  1. During the hearing I indicated that I did not think it was necessary for the applicant to be brought from the prison to the court, when my reasons were published. I ascertained from counsel for the respondent that the respondent would facilitate sending the reasons to the applicant, so that he received them on the same day that they were published. Neither party demurred from that proposal. Upon the publication of these reasons, I will therefore request the respondent to ensure that they are sent by facsimile to the applicant, in addition to being forwarded to the applicant by my Associate. It is therefore not possible to deal with the question of costs at the time of publication for these reasons. As the application has been unsuccessful, it is only the respondent who could feasibly seek an order for costs. I therefore direct that any application for an order for costs to be made by the respondent be made by giving 7 days’ notice in writing to the applicant accompanied by the respondent’s written submissions in support of such an order.      
Close

Editorial Notes

  • Published Case Name:

    O'Sullivan v Chief Executive, Department of Corrective Services

  • Shortened Case Name:

    O'Sullivan v Chief Executive, Department of Corrective Services

  • MNC:

    [2004] QSC 45

  • Court:

    QSC

  • Judge(s):

    Mullins J

  • Date:

    18 Mar 2004

Litigation History

No Litigation History

Appeal Status

No Status