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G v Chief Executive, Dept of Corrective Services

 

[2005] QSC 329

 

SUPREME COURT OF QUEENSLAND

 

CITATION:

G v Chief Executive, Dept of Corrective Services [2005] QSC 329

PARTIES:

G
(applicant)
v
CHIEF EXECUTIVE, DEPARTMENT OF CORRECTIVE SERVICES
(respondent)

FILE NO/S:

BS 5296 of 2005

DIVISION:

Trial Division

PROCEEDING:

Application for Statutory Order of Review

ORIGINATING COURT:

Brisbane

DELIVERED ON:

10 November 2005

DELIVERED AT:

Brisbane

HEARING DATE:

28 October 2005

JUDGE:

McMurdo J

ORDER:

The application is dismissed

CATCHWORDS:

ADMINISTRATIVE LAW – JUDICIAL REVIEW – GROUNDS OF REVIEW – IRRELEVANT CONSIDERATIONS – RELEVANT CONSIDERATIONS –UNREASONABLENESS – APPLYING POLICY AND MERITS OF CASE – PROCEDURAL FAIRNESS – where the applicant was serving a 12 year term of imprisonment for sexual offences and other mistreatment of boys under the age of 16 years – where the applicant was eligible for remission after serving two-thirds of his term – where the respondent’s delegate refused his application for remission – whether the delegate incorrectly considered that the applicant had applied to be a foster carer of the victims – whether the delegate incorrectly relied upon an assault charge which the applicant claimed had been dismissed – whether the delegate incorrectly relied upon evidence that was not presented at trial – whether the delegate incorrectly relied upon the applicant’s failure to participate in the Sexual Offender’s Treatment Program – whether the delegate incorrectly failed to consider the applicant’s participation in an external counselling program – whether the delegate’s decision was unreasonable in the light of a psychological report

Corrective Services Act 2000 (Qld), s 75, s 77

Judicial Review Act 1991 (Qld), s 20

COUNSEL:

The applicant appeared on his own behalf

M J Burns for the respondent

SOLICITORS:

The applicant appeared on his own behalf

C W Lohe, Crown Solicitor for the respondent

  1. McMURDO J:  The applicant seeks a review of the decision of the respondent’s delegate not to grant remission of his sentence.  The delegate was satisfied that the applicant had been of good conduct and industry but not that his discharge did not pose an unacceptable risk to the community.  She had to be satisfied of both matters before remission could be granted, according to s 75 of the Corrective Services Act 2000 (Qld).
  1. The decision was made on 23 February 2005 and a Statement of Reasons was provided on 19 May 2005. The applicant, who presented his own case, applies for a statutory order of review upon grounds of a denial of natural justice and an improper use of power by a consideration of the irrelevant, a failure to consider what was relevant, the application of a policy without regard to the merits of the case and Wednesbury unreasonableness. The applicant filed an outline of argument which he supplemented by oral submissions. At least some of those arguments are difficult to match with a ground of review according to s 20 of the Judicial Review Act 1991 (Qld).  Before going to the applicant’s arguments it is necessary to summarise the facts.
  1. The applicant is now a 60 year old man who has been in custody since the beginning of 1997. On 11 September 1997, he pleaded guilty to some 23 charges involving sexual offences against and other mistreatment of boys under the age of 16 years. He was sentenced to various terms of imprisonment, to be served concurrently. The longest term was 13 years imprisonment for two counts of maintaining an unlawful relationship with a child under 16.
  1. The Court of Appeal varied his sentence by reducing the term of 13 years to one of 12 years. McPherson JA, who wrote the principal judgment, described the circumstances of the offences as extremely serious and indeed the worst example of such offences which he had seen in his then 15 years as a judge. His judgment describes the applicant’s treatment of three boys, each of whom was in the applicant’s care. According to the estimate of one complainant, there were some 500 incidents of sexual mistreatment, taking place at a frequency of four to five times a week in the course of which, the complainant said, the applicant frequently punched his head, ribs and stomach. The applicant’s version was that there were some 40 to 50 instances involving that complainant. The abuse of him persisted over a period of four years until that complainant moved out at the age of 15. A second complainant suffered sexual abuse from the age of 11 to 13 years, although he then had a mental age of about eight years coupled with some physical disabilities. There was evidence of acts of violence upon this complainant, one of which was related by McPherson JA to an offence of assault occasioning bodily harm to which the applicant had pleaded guilty upon the same indictment. In that instance, the complainant had fled from the applicant’s house, but the applicant found him at nearby shops, punched him in the face and dragged him home. The judgment also refers to a third complainant, described as a foster child, who was struck in the face by the applicant.
  1. At the sentencing hearing in the District Court, the prosecution had argued for a sentence of 15 to 20 years. The sentencing judge considered 15 years was appropriate but reduced it to 13 years for the plea of guilty. The Court of Appeal held that the sentencing judge erred in saying that the appropriate sentence was 15 years, because the prescribed maximum for these offences, at least at that time, was one of 14 years. It was for that reason that the sentence on the more serious charges was reduced from 13 to 12 years. McPherson JA said that “[a]part from the plea of guilty the [applicant’s] conduct has no discernible redeeming features, and the prognosis or hope of rehabilitation on his part does not seem to be at all favourable”.
  1. The applicant’s 12 year term will expire on 27 December 2008. He became entitled to be considered for a grant of remission after serving two-thirds of his 12 year term, which he had served by the end of 2004. As mentioned, his application for remission was refused by the respondent’s delegate on 23 February 2005.
  1. In her Statement of Reasons (dated 19 May 2005) the delegate listed the material which she had considered, set out certain findings of fact and then gave reasons for her not being satisfied that his discharge did not pose an unacceptable risk to the community. She discussed that question by reference to the considerations prescribed by s 77. On the face of these reasons, there was a rational decision by the delegate to the effect that various features of the applicant’s case, considered together, left her unsatisfied in relation to the relevant risk. Those factors included what she found to be his very limited insight, and that he was “still to address the issues relating to [his] entrenched sexual offending behaviour”. The delegate referred to, and apparently accepted, a psychologist’s report, which included an assessment that the applicant showed a number of criteria of paedophilia such as “a number of cognitive distortions including a denial of [his] assault offences, the rationalisation of the initiation of the sexual offences by [his] victims, and [his] minimisation of the impact of [his] offending upon [his] victims …”. The delegate also noted that the application of the STATIC-99 assessment placed the applicant in a moderate/high risk category, relative to other male sex offenders, of reoffending.
  1. The applicant’s first argument is that he has been incorrectly described as someone who had applied to become a foster carer in relation to the complainants. He apprehends that the delegate considered that he had facilitated the commission of his offences by applying to become the foster parent of these boys. But the delegate has not said that. She has referred, as she was obliged to do, to the decision of the sentencing judge and to the Court of Appeal. McPherson JA described the applicant as a foster carer. Whether the applicant had the status of a foster parent, undoubtedly the complainants were under his care. The particular matter which the applicant now raises would have been of no consequence to the Court of Appeal, as the judgments show. Nor was it of any consequence to the decision of the delegate.
  1. The next argument is that the delegate wrongly believed that the applicant had committed a certain assault. Amongst the offences for which he was sentenced by the District Court in September 1997, there were two assaults occasioning bodily harm, one resulting in a sentence of 18 months and the other of 6 months. An assault charge was later (28 October 1997) dismissed in the Magistrates Court when no evidence was offered. (This may have been because he had been convicted in the District Court on an ex officio indictment). He says that the delegate was wrong to find that this particular assault was one of the two of which he was convicted. But the delegate proceeded upon that premise from what was said by the sentencing judge and the Court of Appeal, in each case upon the facts which the applicant had apparently conceded. There was no reason for the delegate to go behind those judgments and to consider whether the applicant had been wrongly convicted of either of these assaults. The delegate was entitled to proceed upon the basis that the applicant had assaulted two complainants as McPherson JA had described in those parts of his judgment to which I have referred..
  1. Next the applicant says that the delegate heavily relied “on evidence that was never presented to or tested by the Court such as items that were allegedly found in the Applicants premises but were not included in the list of exhibits and never produced in Court”. The delegate did quote from the judgment of McPherson JA that police had found “empty condom packets, lubricating jelly, pornographic magazines and videos” when searching the applicant’s house. That was because it was apparently accepted by the applicant to be part of the facts upon which he could be sentenced, without the prosecution being required to formally prove the fact. There is no substance in this argument.
  1. The applicant criticises the delegate’s consideration of his non participation in the Sexual Offender’s Treatment Program. In this case, as the delegate found, the applicant had not always refused to participate in the program. The delegate found that he had at first refused, although his non participation could also be attributed to valid medical reasons at the time. She accepted that more recently he had shown a willingness to participate. According to the delegate’s reasons, it was not his earlier refusal to participate which was important, but the fact that he had not had the benefit of the program. That was surely a relevant consideration. A related argument is that the delegate disregarded the applicant’s voluntary participation in a program of counselling sex offenders conducted by an external group visiting the prison. But the delegate said that she was not provided with sufficient information by the applicant as to the content of that program and it appears then that she was not able to equate its value with that of the Sexual Offender’s Treatment Program.
  1. The applicant also relies on an opinion attributed to a former director-general of the Corrective Services Department, to the effect that prisoners who are forced to participate in programs receive no benefit from them. But this was not relevant to the applicant’s case because, as the delegate noted, the applicant was now prepared to undergo the Sexual Offender’s Treatment Program.
  1. Lastly the applicant was critical of the use of the STATIC-99 assessment. This was not the only matter considered by the delegate. And it is not shown to be an irrelevant consideration.
  1. As to unreasonableness, I have mentioned already some of the content of the psychologist’s report. A further conclusion of the psychologist, upon which the delegate was entitled to act, was that the applicant “continues to present as an untreated sexual offender with a history of limited motivation to address his outstanding criminogenic needs” and that he “continues to present with cognitive distortions in respect of his externalisation of blame onto his victims, his minimisation of the adverse effects of his extensive sexual offending and his limited insight into his offending”.
  1. In my conclusion the applicant fails to demonstrate any ground for the decision to be reviewed. The application must be dismissed.
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Editorial Notes

  • Published Case Name:

    G v Chief Executive, Dept of Corrective Services

  • Shortened Case Name:

    G v Chief Executive, Dept of Corrective Services

  • MNC:

    [2005] QSC 329

  • Court:

    QSC

  • Judge(s):

    McMurdo J

  • Date:

    10 Nov 2005

Litigation History

No Litigation History

Appeal Status

No Status