- Unreported Judgment
SUPREME COURT OF QUEENSLAND
Salter v. West Moreton Community Corrections Board  QSC 029
WEST MORETON COMMUNITY CORRECTIONS BOARD
Application for Judicial Review
Supreme Court of Queensland
22 February 2007
29 January 2007
ADMINISTRATIVE LAW – JUDICIAL REVIEW – GROUNDS OF REVIEW – IMPROPER EXERCISE OF POWER – IRRELEVANT CONSIDERATIONS – whether irrelevant considerations were taken into account – whether consideration of the availability of social support for applicant's wife in circumstances where there was no evidence of such is an irrelevant consideration.
ADMINISTRATIVE LAW – JUDICIAL REVIEW – GROUNDS OF REVIEW – IMPROPER EXERCISE OF POWER – RELEVANT CONSIDERATIONS – whether relevant considerations were not taken into account – whether an independent psychological assessment is a relevant consideration that should be taken into account.
ADMINISTRATIVE LAW – JUDICIAL REVIEW – GROUNDS OF REVIEW – IMPROPER EXERCISE OF POWER – APPLYING POLICY AND MERITS OF CASE – whether policy was applied without regard to the merits of the case – whether policy of refusing to release sexual offenders solely on the basis of their denial of guilt is an application of policy without regard to the merits of the case.
ADMINISTRATIVE LAW – JUDICIAL REVIEW – GROUNDS OF REVIEW – IMPROPER EXERCISE OF POWER – UNREASONABLENESS – whether the decision was so unreasonable that no reasonable person could have made the decision.
ADMINISTRATIVE LAW – JUDICIAL REVIEW – GROUNDS OF REVIEW – NATURAL JUSTICE – whether breach of natural justice – where applicant was advised of factors that were considered in denying him parole - where applicant was given an opportunity to respond.
Acts Interpretation Act 1954 (Qld) s 14B(3)(e)
Corrective Services Act 2000 (Qld) s 133, s 134, s 135(1), 135(2)(e), s 136, s 141(1)(c)(i), s 167(1), s 170, s 171.
Corrective Services Act 2006 (Qld) s 227
Judicial Review Act 1991 (Qld) s 20(2)(a), 20(2)(e), s 21(2)(a), s 21(2)(c), s 23(a), s 23(b), s 23(f), s 23(g)
Batts v Department of Corrective Services  QSC 206, applied
Butler v Queensland Community Corrections Board  QCA 323, cited
Colin George Dunstan v Sentence Administration Board of the ACT  ACTSC 63, cited
Duxerty v Minister for Justice and Customs  FCA 1518, cited
Felton v Queensland Corrective Services Commission  2 Qd R 490, cited
Fogarty v Department of Corrective Services  QSC 207, applied
Herscu v The Queensland Corrective Services Board  2 Qd R 481, cited
Kioa v West (1985) 159 CLR 550, cited
McEnroe v Queensland Community Corrections Board 1842 of 1997, 8 September 1997, Thomas J, cited
Minister for Aboriginal Affairs v Peko Wallsend Ltd (1986) 162 CLR 24, cited
Queensland Community Corrections Board v Mott Queensland Court of Appeal, Appeal No. 8 of 1994, 7 October 1994, considered
R v Salter  QCA 392, cited
Re Soloman  2 Qd R 97, cited
Tesco Stores Ltd v Secretary of State for the Environment  1 WLR 759, cited
Todd v Parole Board (1986) 6 NSWLR 61, cited
Tyler v Tullipan  QSC 379; SC No. 5787 of 2001, 10 October 2001, cited
Wiskar v Chief Executive, Department of Corrective Services Supreme Court of Queensland SQ 9871 of 1999, 26 May 2000, cited
Wiskar v Queensland Corrective Services Commission  QSC 279, cited
Yeo v Queensland Corrective Services Commission 7534 of 1997, Dowsett J, 13 February 1998, unreported, cited
The applicant appeared on his own behalf
K A Mellifont for the respondent
The applicant appeared on his own behalf
CW Lohe, Crown Solicitor, for the respondent
- The applicant, Trevor Salter, is currently serving a sentence of seven years imprisonment which was imposed on 19 March 2002. His sentence will expire on 17 March 2009. In this application he sought judicial review of decisions of the respondent, the West Moreton Community Corrections Board (the “Board”) declining a grant of exceptional circumstances parole (“ECP”) and declining a grant of post-prison community based release (“PPCBR”). The Board refused ECP and PPCBR on 2 May 2006. In its subsequent statement of reasons for refusing PPCBR, the Board gave Mr Salter the opportunity to make further submissions. It then made a final decision not to grant him PPCBR on 3 October 2006. It would appear therefore that the decisions capable of review in this application are the decisions of 2 May 2006 refusing ECP and PPCBR and the further decision of 3 October 2006 refusing PPCBR.
- The application for statutory order of review, which was filed by the applicant personally on 20 July 2006, refers to certain grounds of review set out in the Judicial Review Act 1991 (JR Act). In particular it refers to s 20(2)(a) and s 21(2)(a) (breach of natural justice); s 20(2)(e) (improper exercise of the power conferred by the enactment); and s 21(2)(c) (that the person proposing to make the decision did not have jurisdiction to make the decision). In an amendment to the application for statutory order of review the applicant referred to the following particulars of the allegation that there was an improper exercise of power: s 23(a) (irrelevant consideration); s 23(b) (failing to take into account a relevant consideration); and s 23(f) (exercise of a discretionary power in accordance with a rule or policy without regard to the merits of the particular case). In addition, in the body of the application, he referred to the ground of judicial review set out in s 23(g) of the JRA, that is, an exercise of a power that is so unreasonable that no reasonable person could so exercise the power. Those will be the grounds of review considered.
- At the time of Mr Salter’s applications for ECP and PPCBR, the applications were governed by the Corrective Services Act 2000 (“CSA 2000”) which has subsequently been repealed and replaced by the Corrective Services Act 2006 (“CSA 2006”). The application for ECP was made under s 133 of the CSA 2000; and the application for PPCBR was made under s 134 of the CSA 2000.
Exceptional circumstances parole
- Section 133 of the CSA 2000 provided that:
“A prisoner may apply, in the approved form, for an exceptional circumstances parole order.”
- Section 135(1) of the CSA 2000 provided that an ECP order might start at any time. A regional board such as the respondent could release a prisoner on an ECP order pursuant to s 141(1)(c)(i) if it was satisfied that “exceptional circumstances exist in relation to the prisoner.” Exceptional circumstances were not defined in the CSA 2000.
- The Explanatory Memorandum to the Corrective Services Bill 2000 does, however, refer to ECP. That material may be used to assist in interpretation of an Act pursuant to s 14B(3)(e) of the Acts Interpretation Act 1954 where a provision is ambiguous or obscure, to provide an interpretation which avoids a manifestly absurd or unreasonable result, or to confirm the interpretation conveyed by the ordinary meaning of the provision.
- The introductory section of the Explanatory Memorandum provided that access to ECP would be retained for all current and future prisoners to provide for early release to parole when exceptional circumstances arose, for example, a prisoner’s life-threatening illness. With regard to CSA 2000 s 133, the Explanatory Memorandum provided:
“The Bill does not limit the reasons for which a prisoner may apply for exceptional circumstances parole. The board considering the application has absolute discretion to determine whether the circumstances of the application warrant the prisoner being released at a time earlier than he or she is eligible for post-prison community based release.
For instance irrespective of the prisoner’s period of imprisonment, a prisoner –
(i)who develops a terminal illness with a short life expectancy; or
(ii)who is the sole carer of a spouse who contracts a chronic disease requiring constant attention
may be granted an exceptional circumstances parole order.”
The reference to exceptional circumstances parole being available in the Board’s discretion to a prisoner who is the sole carer of a spouse who has contracted a chronic disease requiring constant attention conforms with the ordinary meaning of what one might expect to be one of the situations that constitute exceptional circumstances.
Post-prison community based release
- Section 134 of the CSA 2000 provided that a prisoner might apply for a PPCBR order, other than an ECP order, if he or she were sentenced to a period of imprisonment of more than two years and not detained on remand, for an indefinite sentence or under the Migration Act. Section 135(2)(e) provided that unless a prisoner had been convicted and sentenced to a term of life imprisonment or for a serious violent offence, a PPCBR order might commence once the prisoner had served half of the period of imprisonment to which the prisoner was sentenced.
The sentence of imprisonment
- The applicant, Mr Salter, was born on 24 April 1952 and so is 54 years old. He was convicted on 19 March 2002 of three counts of indecent dealing and two counts of sodomy after a trial lasting seven days. The complainant was his step-daughter. The learned sentencing Judge’s remarks show that the offences began when the applicant’s step-daughter was about five years old and the first offence of sodomy occurred when she was about six years old. There were three incidents involved in the offending behaviour. The first incident was one act of indecent dealing; the second was one act of indecent dealing and one act of sodomy; and the third was one act of indecent dealing and one act of sodomy when the complainant was about eight to nine years old.
- Mr Salter was sentenced to three years imprisonment on each of the counts of indecent dealing and seven years imprisonment on each of the counts of sodomy. All sentences were to be served concurrently. There was a declaration of one day spent in pre-sentence custody from 18 March to 19 March 2002. The sentencing Judge did not make any recommendation of a particular date for PPCBR or parole, as it was then known. As a result, Mr Salter’s eligibility date for PPCBR was after he had served one half of his sentence, which is recorded in his file as being 18 September 2005. His application for leave to appeal against his sentence was withdrawn and his appeal against his conviction was dismissed by the Court of Appeal on 26 September 2002: see R v Salter  QCA 392.
- The offending commenced in about 1981. The complainant first complained about these offences in 1991 when she was 16 years old. The Court of Appeal noted that she did not proceed with that complaint and that there was some evidence that pressure was put on her not to proceed. She gave a further statement to police officers in 1999. The Court of Appeal also referred to what it said was “perhaps the most telling evidence against the appellant” which was a letter written by the applicant to the complainant’s husband in 1999. In the course of that letter the applicant wrote:
“At this stage [his wife] was doing night shift. That left [the complainant] and me alone and it’s not out of order but [the complainant] spent a lot of time in our bed. We seemed again to show affection towards each other; God only knows how we starved for it. And it actually improved the whole family’s situation. Unfortunately and shamefully this lead to fondelling [sic] that lasted for the next few years. Intercause [sic] was never attempted as this was not fondelling for sexual pleasure but an act stemming from our starvation for affection that got out of control. Craig, I’m not a pedophile [sic] and I regret it deeply. The fondelling phased out by the time we built our second home at Windaroo.”
The Court of Appeal noted that the applicant gave an improbable explanation of that confession when he gave evidence at his trial.
- Mr Salter had no previous criminal history.
- During the course of his imprisonment, Mr Salter has completed a number of courses offered within the prison system and has been assessed as having a high level of motivation with regard to educational and vocational programmes. Mr Salter has sworn, and it has not been disputed, that he has, from 1 October 2002 on his first sentence management review/case plan, enthusiastically agreed to do all programmes that have been recommended for him. On 30 September 2003 he was accepted onto the waiting list for the Sexual Offenders’ Treatment Programme (“SOTP”). However it has not been offered to him. On 12 February 2004, he completed the Cognitive Skills Programme (“CSP”) as recommended on his previous sentence management review. The CSP exit report dated 16 March 2004 was generally positive about his participation and progress however it was noted that he was still in “some denial in relation to his sexual offending.” Mr Salter has always asserted that he did not commit the offences of which he was convicted. He had progressed to a “low” classification by November 2003 but was apparently refused an “open” classification in 2005 because of his denial of guilt of the offences for which he was convicted. His continuing denial of guilt has had a number of consequences.
Application for interstate transfer
- On 28 September 2004, Mr Salter’s application, which was made on 5 March 2003, for a transfer to a New South Wales correctional centre to be closer to his wife and children, was refused despite support for his application in a report prepared by the Department of Corrective Services (“the Department”) and a letter of support from Dr Ashley Craig, a clinical psychologist who is a Professor of Behavioural Sciences at the University of Technology, Sydney. Dr Craig described himself as the family psychologist who had acted as a mentor to Mr Salter and as therapist and counsellor to his wife, Leanne Salter, over the previous 15 years. His reasons for supporting Mr Salter’s transfer application were to enhance the health and welfare of his wife and their children as well as being humane to Mr Salter. The application was also supported by Mrs Salter’s general practitioner because Mr Salter was her sole carer and she had severe health problems. The transfer was refused because the New South Wales Department of Corrective Services (“NSW Department”) apparently had a policy of refusing to accept the transfer of prisoners convicted of sexual offences against children.
First application for parole
- Mr Salter then sought release on parole either on an ECP order or PPCBR order.
- His applications followed a report written by Mrs Salter’s general practitioner, Dr Sturmberg, on 1 March 2005 showing that she suffered from uncontrolled diabetes, uncontrolled psoriatic arthritis, poorly controlled hypertension and associated hypertensive retinopathy and frequent episodes of anxiety and depression. Dr Sturmberg observed that her diabetes was very poorly controlled and that her condition was exacerbated by her depressive illness and associated lack of self care. Her husband had been her sole carer ensuring compliance with medications and lifestyle management. Her current state of health was extremely poor with deep agitated depression. Her health had deteriorated dramatically since Mr Salter had been moved to Queensland for trial and sentencing. In addition to the exacerbation of her continuing health problems, she had developed uterine and rectal prolapses and troublesome ganglia on her joints. She required surgery which could not be undertaken until her husband was released to look after her. In Dr Sturmberg’s opinion, Mrs Salter’s health problems required urgent medical attention and it would be highly desirable and appropriate for her husband to be released to home detention so as to prevent further rapid deterioration of those health problems. It appears that Mrs Salter’s health problems were not put before the judge who sentenced Mr Salter. Another doctor concerned with her treatment, Dr Skilbeck, listed the various medications she had been prescribed and noted that she had been “extremely non-compliant with medications.”
- In order to assess his psychological health and suitability for release on parole, Mrs Salter engaged Dr Craig to conduct a psychological assessment of Mr Salter and prepare a report. The report was prepared after a two hour assessment on 23 December 2004. It was provided to Wolston Correctional Centre (“WCC”) on 28 February 2005. Dr Craig outlined Mrs Salter’s serious health problems, physical and psychological, which had been greatly exacerbated by her husband’s imprisonment. He found that Mr Salter scored abnormally high on psychological testing for symptoms relating to obsessiveness, depression and anxiety; but moderately low for anger and hostility. His paranoia and psychotic scores were also low and within the normal range. So far as taking responsibility for his behaviour, Dr Craig was of the opinion that Mr Salter had taken full responsibility for the behaviour that lead to his conviction. He said that Mr Salter was highly distressed that he had been the cause of distress to his family, particularly his wife Leanne, and that he was very upset that his step-daughter “had been hurt and severely distressed.” He reported that Mr Salter had applied to participate in the SOTP or the Sex Offenders’ Intervention Programme (“SOIP”) but had not been able to gain entry into either. Dr Craig was of the opinion that Mr Salter was a very low risk of re-offending. Dr Craig recommended release on compassionate grounds.
- In a further report dated 9 July 2005 Dr Craig clarified aspects of his earlier report. He explained that although Mr Salter continued to claim that he was innocent of the charges of which he was convicted, “he accepts that it was his duty or responsibility as a parent to attempt to resolve the family problems (the family dynamics, the negative behaviour and so on) that led to his conviction and consequent upset and distress. He understands that he did not resolve these problems, and that this failure has caused him and other to be extremely distressed and hurt. I know he deeply regrets any hurt caused. His sorrow for the worsening health status of his wife and distress in his family is causing him to become anxious and distressed.”
- Dr Craig also referred to Mrs Salter’s illness, that her condition was life threatening, that she had had recent hospitalisation and that she required constant support which she was not receiving.
- Dr Craig concluded his report of 9 July 2005 by observing:
“Based on my assessment of Mr Salter, I believe that he presents minimal or no risk to society should he be granted parole or early release … I strongly urge management and the Board to consider granting Mr Salter parole, especially given the valid compassionate grounds presented in my original report, his excellent behaviour in WCC and the low risk he presents to society. (emphasis in original)
I also note that Mr Salter has not had reasonable access to the Sex Offenders Treatment Programme (SOTP), or indeed to appropriate and timely psychological intervention and support (no doubt in part due to the shortage of qualified staff). I believe it is extremely unreasonable on compassionate grounds to ask him to wait up to 2-3 years for access to such a programme. Therefore I strongly recommend that parole be granted and that Mr Salter attend regular structured and monitored SOTP sessions with myself during the parole period. Being a registered psychologist and a member of the College of Clinical Psychology, I believe I am qualified to run this program with some guidance from Corrective Services. I also expect that I would run the Programme along any guidelines stipulated by the Parole Board.”
- In his application for parole, Mr Salter said that he had not been able to undertake an SOTP because of his assertion of innocence.
- The applications by Mr Salter for ECP and PPCBR made on 9 September 2005 were refused by letters of 16 and 23 November 2005 respectively with a full statement of reasons given on 6 March 2006. These applications were made to and determined by the respondent, a regional board, as his sentence of imprisonment was for less than eight years.
- The letter from the Board of 23 November 2005 said that Mr Salter’s denial of sexual offending was unsustainable and that therefore his inability to access programmes to address his rehabilitation was all due to his own behaviour, that is his refusal to admit the commission of the offence. The Board expressed the view that he was an untreated sex offender and would therefore be a danger if released. The Board letter continued:
“The Board is concerned that you have given no indication that you would avoid further offending should you be released. The Board requires some evidence that you have matured and have displayed a measure of trustworthiness. You could do this by accepting full responsibility for your offences.”
The letter of 23 November 2005 gave Mr Salter the opportunity to present any further information to the Board which might cause it to reach the different final decision.
- On 27 October 2005, after the applications were made but before they were refused, the New South Wales Department wrote to the WCC saying it would not approve an application for the transfer of Mr Salter’s Queensland parole order to New South Wales because of the nature of his convictions. To counter that problem, on 4 November 2005 Mr and Mrs McCandless, who live at Shailer Park and conduct a business at Sunnybank Hills, offered employment to Mr Salter upon his release from prison with their garden maintenance team at Fisherman’s Island as well as accommodation in their home until he could find a home suitable for himself and his family in south east Queensland.
- On 5 December 2005, Mr Salter responded to the Board’s letter of 23 November 2005 by letter outlining, inter alia, the steps he would take to avoid situations where he might be left alone with a child. He reasserted his denial of guilt and asserted that to admit guilt in order to demonstrate rehabilitation would force him to lie about the sodomy offences. He informed the Board that his wife and family would move from New South Wales to Queensland to be closer to him and that he would undergo counselling from Dr Craig if released.
- Dr Craig also responded to the respondent on 12 December 2005 reiterating that his comprehensive psychological assessment showed that if Mr Salter were released, he would not be a risk to the community. He referred to research which suggested that people who deny the offences of which they are convicted are a high risk of re-offending but that this must be considered on an individual basis and that there were factors in Mr Salter’s case that suggested he was a low risk, such as his good behaviour and his substantial community support.
- With regard to the SOTP, Dr Craig noted that part of the reason for the Board’s refusing to release Mr Salter into the community was that he had not had access to that course and that he remained a risk as a result of not completing the programme. However Dr Craig observed that a participant could complete the programme and still remain a high risk and that such a programme could not be guaranteed to reverse abnormal sexual tendencies. Dr Craig said that he was prepared to conduct the SOTP with Mr Salter under the guidance of the Queensland correctional authorities if Mr Salter were granted community release. He referred to Mr Salter’s remorse and shame and that Mr Salter had taken full responsibility for the behaviour that led to his conviction.
- On 22 December 2005, the respondent informed Mr Salter that it had considered his submissions and that of Dr Craig but had decided to decline his application for PPCBR for the reasons set out in its letter of 23 November 2005.
- Mr Salter asked for a statement of reasons for the decision to refuse his release on parole. In its reasons of 6 March 2006, the Board found that the majority of Mrs Salter’s medical conditions, including her failure to self-medicate, had been long standing and predated Mr Salter’s imprisonment. It observed that it appeared that none of Mrs Salter’s health problems had been brought to the attention of the sentencing judge or the Court of Appeal. The Board said there was nothing contained in any of the reports suggestive of the fact that Mrs Salter lacked either family or community support to assist her in managing her medical conditions. It concluded that it was not satisfied that the medical conditions of Mrs Salter and her general circumstances fell within the example in the Explanatory Notes to the Corrective Services Bill 2000 and “on the whole” was not satisfied that exceptional circumstances existed justifying the grant of a parole order in the prisoner’s favour.
- The Board said that further, for the reason set out in its letter of 23 November 2005, it considered that the prisoner was an unacceptable risk if released, and combined with the Board’s view that there were no exceptional circumstances, justified the board in refusing Mr Salter’s application.
- The Board took into account an assessment report by the WCC Assessment Unit dated 30 September 2005 which recommended against release on parole. The assessment report said that Mr Salter “had been excluded from a sexual offending programme due to his innocence stance.” His claims of innocence were also preventing him from developing an adequate relapse plan. The recommendations against his release are couched in the following terms:
“Mr Salter is assessed as currently posing an unacceptable risk to the community. This assessment is made in view of his outstanding treatment needs in relation to his sexual offending, including his denial of the current of [sic] offences (Queensland Guideline 2.2).
Mr Salter is currently classified a low security prisoner, however did not receive a recommendation for release when sentenced. Accordingly, Mr Salter should spend a period of at least six months in an open security environment before being granted release to the community (Queensland Guideline 2.3 and 2.4).
In relation to Mr Salter’s application for Exceptional Circumstances Parole, it does not appear his current circumstances are exceptional. Mr Salter’s application is based on his want to care for his ill wife. It is not disputed that his wife is suffering from ill health. However, given he has also reported he will work fulltime if released; the level of care required for his wife does not appear substantial enough that it may not be handled by relatives or a community agency. In addition to this, given the new policies of New South Wales accepting supervision of prisoner’s [sic] convicted of child sexual offences, it appears doubtful that he will be able to reside in New South Wales if released from custody. If this is in fact the case, even if he was granted release, Mr Salter would be unable to care for his wife while she resides in New South Wales.
It is therefore recommended that Mr Salter’s application for post-prison community based release and exceptional circumstances parole be declined. Mr Salter should work towards addressing his outstanding criminogenic needs by participating in a sexual offending programme once he has undergone assessment for such. Additionally, the applicant should progress to an open custody environment and spend at least six months there before submitting another application.”
- The guidelines referred to are the ministerial guidelines to the Queensland Community Corrections Board made in September 2005 pursuant to s 167(1) of the CSA 2000 for the release of prisoners on post-prison community based release orders. Guidelines 2.1 – 2.5 provided as follows:
“2.1Before making a decision to grant a prisoner release on a post-prison community based release order the Board should always consider the level of risk that the prisoner may pose to the community.
2.2When deciding the level of risk that a prisoner’s release to any post-prison community based order poses to the community, the Board should have regard to all relevant factors, but is not limited, to the following –
(a)prisoner’s past offences and any patterns of offending;
(b)the possibility of the prisoner committing further offences;
(c)whether the prisoner has previously been granted a post-prison community based order and if so, whether the prisoner breached any conditions of that order;
(d)whether the circumstances of the offence/s for which the prisoner was convicted were exceptional when compared with the majority of offences committed of that kind;
(e)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;
(f)the successful completion of programmes of rehabilitation;
(g)the risk of physical or psychological harm to a member of the community and the degree of risk;
(h)any medical or psychological report relating to the prisoner;
(i)any behavioural report relating to the prisoner;
(j)the sentencing Judge’s recommendation and any co-operation by the prisoner in assisting authorities in the prosecution of other persons; and
(k)assessments of the prisoner’s recidivism risk.
2.3Ordinarily, a prisoner should achieve a low or open security classification prior to approval for post-prison community based release. Exceptionally though, at the Board’s discretion, a prisoner may be approved for post-prison community based release where –
(a)a recommendation for early parole has been made by a court; or
(b)emergent serious medical issues have been identified.
The Board should depart from giving effect to a recommendation made by the court that sentenced the prisoner only where the Board –
(a)receives information about the prisoner that was not before the court at the time of sentencing; and
(b)after considering the information, considers that the prisoner is not suitable for release at the time recommended by the court.
2.4It is recommended that prisoners, who are serving a period of imprisonment of eight years or more, should serve at least nine (9) months in an open custody environment unless the sentencing court has made an early recommendation for post-prison community based release. An “open custody environment” includes a community corrective services facility as defined by the Act, an open custody facility or a secure custody facility where the prisoner has worked with minimal supervision outside the secure perimeter on a continuous basis.
2.5Consideration for release on a post-prison community based release order of a prisoner who has failed to make a genuine effort to undertake reasonable and available rehabilitation opportunities while in custody should be undertaken with extreme caution.”
- While his application was under consideration, he was again assessed as having a “low” security classification. On 23 October 2005, Mr Salter underwent a specialised assessment to determine allocation to a SOTP. On 30 November 2005, Linda Bennett, regional co-ordinator for South East Queensland of the Offender Programs Unit, advised that as a result, it was recommended that he was suitable to participate in the “Deniers Program” and that he be placed on a waiting list for such a programme. However, no such programme is available in the Queensland correctional system. His “long term static risk was assessed as being in the low range.” On 14 March 2006, it was recommended that he be re-assessed for a preparatory SOTP to assess his motivation to engage in such a SOTP. Mr Salter has expressed his willingness to be involved in such programmes. However it appears he remains ineligible while he continues to deny that he committed the offences of which he was convicted. This is also the reason why he has been refused “open” classification. It can be seen that both of these reasons for refusing Mr Salter PPCBR were based on his denial of guilt.
Current applications for parole
- On 4 March 2006, Mr Salter made another application for a PPCBR order. In that application Mr Salter said that he wanted to support and assist his wife as she was seriously ill. He reported that she suffered from pancreatitis, had had her gall bladder removed and was anxious and depressed. Mr Salter referred to a number of letters of support from respectable members of the community as well as letters of support from his two children. He also referred to his work in the earthmoving and construction industry and that he had not been out of work for 35 years. He referred to his responsible prison employment and the number of courses he had undertaken and that he had not been convicted of any offence or breach whilst in custody. He proposed to live with friends at Shailer Park who could offer him employment.
- In his application, he made detailed and strenuous denials of the criminal offences of which he was convicted. As a result of that stance he was unable to do any of the sexual offender courses available to prison inmates. He reported that his classification was low and that he had been recommended for open classification in 2005 but that that had been refused by the general manager because he had not completed a sexual offender’s treatment programme.
- As at 22 March 2006, the WCC Offender Management Plan showed, under the programmes to which he was referred, that he was still waitlisted for the deniers’ programme. There was, as I have already mentioned, no such programme offered.
- On 10 March 2006 Dr Craig sent a letter to the Director General of Corrective Services in which he referred to the psychological report he prepared on 23 December 2004 which was placed on Mr Salter’s prison file on 28 February 2005. While this letter was not written to the respondent, it was placed before the Board. Dr Craig said in the March 2006 letter that he found Mr Salter to be a very low risk to society if he were to be released into the community. He quoted extensively from that letter. He also referred to Mrs Salter who “continues to be extremely ill. And only last week she was in hospital for 5 days once again due to her illness. Her condition is life threatening and she requires constant support which unfortunately she is not receiving.”
- On 16 March 2006, Dr Sturmberg, Mrs Salter’s general practitioner, referred Mrs Salter to a specialist, Dr John Dowsett. In his referral letter, he said that Mrs Salter had three episodes of significant pancreatitis in the past six months and longstanding health problems. He referred to her current medical problems with pancreatitis, diabetes mellitus, psoriasis, psoriatic arthropathy, depression, hypertension, hypertensive retinopathy, rectal prolapse, and pterygium. He listed the large number of her current medications. Dr Sturmberg expressed the opinion that the real reason behind her current problems was stress in relation to her husband’s imprisonment.
- Mrs Salter provided this letter together with extensive supporting documentation to the respondent. In addition she wrote to the respondent setting out her medical problems and her distress and anguish at her husband’s continuing imprisonment. A number of members of the community including those from his local Baptist Church sent further letters of support for his release on parole.
- On 28 March 2006, Mr Salter was again assessed as having a “low” security classification.
- On 29 March 2006, Mr Salter made another application for an ECP order.
- The assessment unit at the WCC provided an updated report to the respondent dated 12 April 2006 with regard to Mr Salter’s application for PPCBR and ECP. That updated report recommended against the grant of either PPCBR or ECP. The factors that were said to have contributed to that recommendation were
“.Medium ORNI score
.No recommendation for post-prison community based release
.Mr Salter denies committing the offences and therefore was unable to express victim empathy or remorse
.The prisoner’s innocent stance is a barrier to treatment, consequently his treatment needs in relation to his sexual offending remain outstanding
.Mr Salter has not developed a relapse prevention plan to address his risk factors
.Although his release plans appear feasible in relation to employment, it is difficult to assess his general release plans in light of the absence of a home assessment
.The basis of Mr Salter’s application for Exceptional Circumstances Parole is not considered exceptional. This is due to the prisoner’s not providing current medical evidence supporting his wife’s illness and it is considered likely that community agencies would be able to assist in his wife’s care.”
- From the body of the updated report and the assessment report of 30 September 2005 it appears that the medium ORNI score refers to the assessment of his risk of re-offending when he was admitted to prison in March 2002. He was initially assessed as having a low community risk of re-offending however, due to the nature of the offences and his assertion of innocence, that was overridden and he was assessed as medium risk. The updated report noted that although Mr Salter had developed a number of strategies to avoid any allegations of sexual abuse in the future and his understanding of his risk situations appeared to have increased, his relapse prevention plan was insufficient in light of the seriousness of the offences and his denial of them. He had not progressed to open classification because of “his outstanding needs in relation to his sexual offending.”
- With regard to a sex offenders’ treatment programme, the report said:
“Mr Salter participated in an assessment for a specialised sexual offending program on the 23 October 2005. As a result of this assessment the prisoner’s long term static risk was identified as being in the low range and he was placed on the waiting list to participate in the deniers program. Confirmation on the 7 April 2006 with the regional co-ordinator of the sexual offender programs unit confirmed that there are no plans to facilitate a deniers program in the near future. Attached to the prisoner’s current Offender Management review is an ‘advice to sentence management’ report dated 14 March 2006 recommending that the prisoner be re-assessed for the preparatory sexual offending program to assess his motivation to engage in sexual offending programs. At the current interview the prisoner indicated that he is ‘more than willing’ to participate in a sexual offending program.”
- With regard to the ECP application, it was reported that Mr Salter said his wife lacked community support. The report referred to the letters from Dr Skillbeck, Dr Sturmberg and Dr Craig but that there were no current letters from Mrs Salter’s treating doctors. Mr Salter said he would provide them.
- With regard to the offer of residence and employment from Mr and Mrs McCandless at Shailer Park, the report wrongly describes that letter as being dated 4 November 2006. That this date is wrong is seen by the fact that the letter is dated 4 November 2005 and the updated report is itself dated 10 April 2006 so could not possibly refer to a letter said to have been written in November 2006. The updated report says that a home assessment had not been received from Logan Community Corrections. There was no explanation for why that home assessment had not been done. That of course is not a matter within the prisoner’s capacity to effect.
- The report concluded with the following recommendations:
“In view of the above information Mr Salter is considered unsuitable for community based supervision. This recommendation is made in light of the following factors and in accordance with Ministerial Guidelines 2.1 and 2.2: his medium ORNI score; his denial of the offences and subsequent inability to express victim empathy or remorse; his insufficient relapse prevention plan; and his outstanding treatment needs.
Mr Salter is current classified a low security prisoner, he is serving a period of imprisonment of seven years and he did not receive a recommendation for post prison community based release when sentenced. Therefore it is recommended that the prisoner should spend at least six months in an open custody environment. (Ministerial guidelines 2.3 & 2.4).
The basis of Mr Salter’s application for Exceptional Circumstances Parole is to provide care for his wife who resides at her premises located in New South Wales. The prisoner has not provided current evidence of his wife’s condition; his wife continues to reside in New South Wales and the prisoner intends to reside in Queensland post release; and it is suggested that the prisoner’s future full time employment will impact on his ability to provide care for his wife. It is acknowledged that Mrs Salter’s health is poor however; it is expected that the prisoner’s wife would be eligible for assistance from community agencies. Notwithstanding the health concerns of Mrs Slater, it is considered that the circumstances do not present as being exceptional. Therefore it is recommended that the prisoner’s application for exceptional circumstances parole be declined.
Prior to re-applying for post prison community based release it is recommended that the prisoner remain focused on staying breach free; spend at least six months in an open security facility; participate in a resettlement leave of absence program; and participate in the appropriate sexual offending program.
- On 17 April 2006, Mrs Salter provided extensive material as to her continuing and worsening health problems including recent hospitalisation and the lack of community support to provide her with the constant assistance she appears to need. Mr Salter provided this material to community corrections on 21 April 2006. She included a long letter showing her adamant belief in her husband’s innocence.
- On 26 April 2006, Dr Sturmberg provided another brief report, which responded to the statement of reasons given by the respondent of 6 March 2006. He advised that Mrs Salter’s health had further deteriorated “in all aspects” since his last report. He reported that “in particular she now had several episodes of pancreatitis related to the deterioration in her mental and physical health.”
- Dr Sturmberg observed in his report of 26 April 2006:
“It is with some amazement that I read the reinterpretation of my previous reports. To make it unequivocally clear Mrs Salter has always required supervision of her care by her husband, preceding any of legal issues by at least 15 years.
I stress again, that it is her mental illness that destabilises her physical illnesses, and thus demands supervisory care by her husband. Non-compliance is a SYMPTOM of mental illness, not the other way round.
I urge you to take these issues seriously in the interest of everyone involved.”
- Mr Salter’s application for ECP, and his application for PPCBR, were both refused by the respondent at its meeting on 2 May 2006. In the letter from the Secretary of the Board to Mr Salter on 5 May 2006 he was told that the Board had determined that there were no exceptional circumstances which would warrant his release and that was the reason for refusing his application for ECP and that his application for PPCBR was refused because “it presently seems to the Board that you may not be an acceptable risk to the community on any form of post-prison community based release order and that it should therefore refuse your application”. He was informed that a statement of reasons would be forwarded to him to provide him with a detailed account of “the reasons for the Board’s refusal of your application for post-prison community based release”. This was, in terms, a refusal of his application for PPCBR.
- On 24 May 2006, Mr Salter advised the respondent that he intended to seek judicial review of its decision not to grant ECP.
- A statement of reasons was provided by the Board by a letter dated 13 June 2006 under the hand of its Secretary. The statement of reasons referred to and incorporated the earlier statement of reasons dated 6 March 2006. It listed all of the documents taken into account in addition to those listed in the Board’s previous statement of reasons. The Board said that it took account of the many factors in his favour such as his completion of various programmes and the high level of motivation that he exhibited in undertaking those programmes; his positive employment and unit behavioural reports; his low security classification; his breach-free behaviour in a residential section of the correctional centre; his support from church and community members; the offer of employment and accommodation in Queensland upon release; and medical and psychological insight. However the Board was concerned that in spite of Dr Craig’s reports, Mr Salter remained a substantial risk to the community because he had not addressed his serious offending behaviour. It said its concern “revolves around your stance towards your offence.”
- With regard to the ECP, the Board took into account a letter from Mrs Salter’s doctor which said that she would benefit from the applicant’s assistance and presence and that her health had further deteriorated, the stress caused to Mrs Salter by his incarceration and her submission which demonstrated that she was firmly convinced of his innocence. Nevertheless the Board was not convinced that those circumstances were such as to justify the granting of ECP. The respondent said that it had “the understanding that medical and social support is presently available to her or could be available to her.” It did not state what that support was. This is unsurprising as there was no evidence as to any such community support for her continuing health problems.
- Material tendered to the Court on the hearing of this application but not before the respondent and therefore not relevant to the application for judicial review shows that Mrs Salter’s health has continued to deteriorate and she was hospitalised because of a stroke in January 2007.
- In spite of the fact that Mr Salter had been told on 5 May 2006 that his applications were been refused, in the statement of reasons on 13 June 2006, he was given 21 days to provide information to the Board which it had not considered but which might cause it to reach a different conclusion. He was advised that in the absence of such material the Board would be minded to refuse his applications. He was however advised that he could make a further application for post-prison community based release no earlier than 2 September 2006.
- On 20 July 2006, Mr Salter filed an application for statutory review of the respondent’s refusal to grant him parole.
- On 3 October 2006 Mr Salter was informed that the Southern Queensland Regional Parole Board at its meeting on 27 September 2006 had decided that his application should be declined for the reasons set out in the previous letter to him. It appears that in addition to the material before the Board on 5 May 2006, the Board also had before it letters of support received by the Board on 5 May 2006 and a further psychological assessment report by Dr Craig dated 31 August 2006.
- Dr Craig said that he assessed Mr Salter in WCC on 31 August 2006 for two hours repeating the same psychological measures used in his first assessment in December 2004 in order to gain an idea of any change in his psychological status. He also assessed sexual adjustment and risk employing three validated and internationally accepted measures, the Sexual Adjustment Inventory (“SAI”), the Sex Offender Need Assessment Rating (“SONAR”) and the Sexual Violence Risk-20 (”SVR-20”).
- Dr Craig first addressed the serious impact of Mr Salter’s imprisonment on Mrs Salter. With regard to Mr Salter’s psychological status, Dr Craig expressed the opinion that Mr Salter’s mood and psychological symptoms seemed to have improved and that he continued to score low on hostility and anger subscales. Importantly his paranoia and psychotic sub-scores were also low and in the normal range.
- The SAI results showed that he rated as normal and acceptable in his honesty in answering sexual and non-sexual questions in the SAI. He was rated as low risk by the sexual adjustment scale, the child molest scale, the incest scale, the exhibitionism scale, the antisocial scale and on the judgment and violence scale. He was assessed a very low risk on the sexual assault scale. His overall result on the SONAR rest showed low risk. The third measure was the SRB-20. Again he was in the low risk category.
- Dr Craig presented strong and well reasoned argument for concluding that Mr Salter represented a low risk of re-offending. The scientific testing he conducted confirmed what Dr Craig found on his interviewing of Mr Salter. He concluded:
“Prior reasons for not granting Mr Salter parole were based on the assumption that he has not addressed his sexual offending behaviour because he maintains he is innocent. This is a tenuous and unsupported conclusion in the fact of conflicting solid evidence. The evidence from the structured, multidimensional and scientific assessment of Mr Salter’s sexual adjustment and deviance (shown by outcomes from the SAI, SONAR and SVR-20) clearly shows that Mr Salter would be a low risk to the community if released on parole or if his sentence were to be suspended. Importantly, he was found to be truthful in his answers (by the SAI), to have stable mood and anxiety levels (even though mildly raised) and to have low levels of anger, hostility and paranoia. Any “sexual risk” argument used to refuse parole based on emotional or political grounds in contrast to evidence presented from scientific psychological testing, should be regarded as inappropriate and unethical. Mr Salter is not a risk to society. This conclusion is strongly supported by Mr Salter’s impeccable WCC history.”
- As Mr Kehoe, the manager of the Parole Board, has sworn, that report was before the respondent when it made its decision to decline the applicant’s application for PPCBR but there is no evidence that it was actually taken into account. On the contrary, the Board said in its letter of 3 October 2006 that his application was declined for the reasons set out in the previous letter to him which of course was written before Dr Craig submitted his further psychological assessment report. It was not a question of what weight, if any, was given to that report which is a matter for the Board. In those circumstances it would appear that the Board has apparently failed to take account of a relevant consideration, in particular the assessment of Mr Salter by Dr Craig on psychological testing designed to assess the real risk of his re-offending.
- In her affidavit filed on behalf of the respondent, the advisor to the Parole Boards said that the applicable guidelines for that decision were the Ministerial Guidelines to the Queensland Parole Board “Resettlement Leave Programmes and Parole Orders” made pursuant to s 227 of the CSA 2006. However the Board made no reference to any reason for refusing the application other than the reasons given in the statement of reasons provided by letter of 13 June 2006 for the decision of 5 May 2006. The advisor deposed that the guidelines relevant at that time were the Ministerial Guidelines previously referred to in these reasons for judgment. It appears that those were the guidelines which were applied in the decisions under review.
Jurisdiction and natural justice
- It can be seen from the analysis of the facts of this case that there was no failure to accord natural justice to the applicant. Procedural fairness, or natural justice, in respect of a parole application, requires that an applicant’s attention be drawn to the main issues or matters militating against success so that there is an adequate opportunity to deal with them. He was accorded the opportunity to respond to all of the factors which were critical to the Board’s determination.
- Nor could it be said that the respondent lacked jurisdiction to make the decisions it did. Its jurisdiction was conferred by the relevant statute.
Improper exercise of power
- The gravamen of the applicant’s case is that the making of the decisions to refuse PPCBR and ECP was an improper exercise of the power conferred by the enactment under which the decisions were purported to be made. The particulars of “improper exercise of power” that are referred to in the application are found in s 23 of the JR Act:
“(a)taking an irrelevant consideration into account in the exercise of a power; and
(b)failing to take a relevant consideration into account in the exercise of a power; and
(f)an exercise of a discretionary power in accordance with a rule or policy without regard to the merits of the particular case; and
(g)an exercise of a power that is so unreasonable that no reasonable person could so exercise the power.
- In Batts v Department of Corrective Services  QSC 206 at  Dutney J held in a case regarding remissions that is apposite to the present one regarding parole:
“To refuse to grant remission solely on the basis that there has been no admission of guilt for a failure to undertake a particular course is an entirely improper exercise of the relevant power: see Yeo v Queensland Corrective Services Commission ; Felton v Queensland Corrective Services Commission and Wiskar v Queensland Corrective Services Commission A refusal on this basis is unacceptable because it fails to consider, in the case of the particular applicant, whether or not he is, in terms of s 75(2)(a) an unacceptable risk to the community. Rather, it focuses on two factors which may or may not in the particular case bear upon the relevant question whether the applicant poses an unacceptable risk.”
- Because of his denial of guilt, Mr Salter was not eligible to undertake the SOTP. This, as Dutney J observed in Fogarty v Department of Corrective Services  QSC 207 at , puts the prisoner in a catch 22 situation:
“While it is right that having been convicted [the applicant] must be regarded as guilty of the offences it would be unrealistic not to realise that occasionally miscarriages of justice occur. To continue to deny guilt despite conviction is a right a prisoner has, but he exercises that in the knowledge by doing so he disqualifies himself from the treatment programme and makes it impossible to demonstrate remorse or empathy with the victim. Inevitably this makes it less likely he will gain the benefit of community release or remissions. Recognising the increased difficulty he is, however, a long way from saying that because he has denied guilt a prisoner must be regarded as an unacceptable risk if released. To classify a prisoner as an unacceptable risk to the community merely because of refusal to admit guilt is to apply a policy without regard to the merits of the particular case.”
- The effect of a prisoner’s denial of guilt on a parole application was considered by MacPherson JA in Queensland Community Corrections Board v Mott where His Honour held:
“With respect to the matter of guilt, it would, I think be impossible to say that the refusal of an applicant for parole to admit his guilt is necessarily or always to be considered as irrelevant. An applicant’s perverse insistence on his innocence of a charge to which he had pleaded guilty, or was found guilty at a trial at which an overwhelming case was proved against him, may … in some circumstances plainly be relevant to a decision whether or not to release him. It might legitimately be viewed as manifesting an attitude on his part that was inconsistent with the aims or objects of parole in his case. On the other hand, it would in my opinion be improper for the Board to adopt a rule that release on parole should not be ordered unless and until the applicant acknowledged his guilt of the offence or offences of which he was convicted. It is not a proper function of the power of granting release on parole that it be used to compel admissions of guilt as a condition precedent to release.”
- The respondent’s decision to refuse PPCBR in this case was essentially based on the view taken by the Board that “he remained a substantial risk to the community because he had not addressed his serious offending behaviour.” The basis for that opinion was his refusal to admit his guilt for the offences. Because of Mr Salter’s refusal to admit guilt, he was not considered eligible for a sexual offenders’ treatment programme nor, it seems, for open classification. Without both, he could not be considered for release on parole.
- Such a conclusion is in effect, if not in form, the application of a policy of not releasing such offenders unless and until they have admitted guilt. It falls within the prohibition found in s 23(f) of the JRA: the exercise of a discretionary power in accordance with a rule or policy without regard to the merits of the particular case.
- The decision also represents a failure to take account of relevant consideration, the report of Dr Craig dated 31 August 2006, as set out above. His refusal to accept guilt is, nevertheless, a relevant consideration. I have not found that the Board, in taking that into account, took into account an irrelevant consideration.
- It should, however, be noted that this does not suggest that any doubt should be entertained that the applicant was in fact guilty. He was properly convicted by the jury after a trial and that conviction was upheld on appeal. Nothing suggests that the convictions were incorrect as a matter of law or fact. In any event, it is not, except perhaps in the most unusual circumstances, the role of a parole board to go behind the convictions.
- In view of the finding that the decision to refuse PPBCR was an improper exercise of power because the respondent failed to take a relevant consideration into account and because it was the exercise of a discretionary power in accordance with a rule or policy without regard to the merits of the particular case, it is not necessary to determine that it was an exercise of a power that was so unreasonable that no reasonable person could so exercise the power. It is appropriate to exercise some caution in considering this ground of judicial review. A Board exercises a broad decision making power. In this case, the exercise of that power was, however, infected by errors of law. It is those errors that ought be corrected.
- So far as the application for ECP is concerned, although one might doubt the wisdom of the decision, that is not a ground for judicial review. The question is whether or not there has been an improper exercise of the Board’s power.
- What the Board has done is take account of an irrelevant consideration, that is, its view that “social support is presently available to [Mrs Salter] or could be available to her.” There was no evidence to that effect and indeed all of the material from the applicant, Mrs Salter, and her medical practitioners was to the effect that there was insufficient social support available to ensure Mrs Salter’s continuing health problems were adequately controlled. As a result of taking that irrelevant matter into account the decision of the Board to refuse ECP was an improper exercise of power. The strength of the applicant’s case for ECP should also be considered as relevant to his application for PPCBR.
- The decisions of 2 May 2006 and 3 October 2006 refusing the applicant PPCBR and ECP should be set aside and referred back to the respondent to be dealt with forthwith according to law.
 This provision was subject to the Penalties and Sentences Act 1992 s 157 see Tyler v Tullipan  QSC 379; SC No. 5787 of 2001, 10 October 2001.
 This is in accordance with the usual practice after a trial rather than a plea of guilty.
 Affidavit filed on 20 July 2006.
 CSA 2000 s 136, 170 171.
 Tesco Stores Ltd v Secretary of State for the Environment  1 WLR 759 at 780.
 cf Colin George Dunstan v Sentence Administration Board of the ACT  ACTSC 63 at .
Kioa v West (1985) 159 CLR 550 at 587-588, 628-629 and 634; Todd v Parole Board (1986) 6 NSWLR 61; Re Soloman  2 Qd R 97 at 110; Herscu v The Queensland Corrective Services Board  2 Qd R 481 at 485-486; McEnroe v Queensland Community Corrections Board 1842 of 1997, 8 September 1997, Thomas J; Butler v Queensland Community Corrections Board  QCA 323 at ; Duxerty v Minister for Justice and Customs  FCA 1518 at .
 7534 of 1997, Dowsett J, 13 February 1998, unreported.
  2 QdR 490.
  QSC 279 at , Williams J.
 Queensland Court of Appeal, Appeal No. 8 of 1994, 7 October 1994
 cf Wiskar v Chief Executive, Department of Corrective Services Supreme Court of Queensland SQ 9871 of 1999, 26 May 2000, White J at .
 Queensland Community Corrections Board v Mott (supra) per Fitzgerald P.
 See Minister for Aboriginal Affairs v Peko Wallsend Ltd (1986) 162 CLR 24 at 40-42.
- Published Case Name:
Salter v West Moreton Community Corrections Board
- Shortened Case Name:
Salter v West Moreton Community Corrections Board
 QSC 29
22 Feb 2007
No Litigation History