McCasker v Queensland Corrective Services Commission
[1997] QCA 455
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- Appeal Determined (QCA)
- McCasker v Queensland Corrective Services Commission[1997] QCA 455
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McCasker v Queensland Corrective Services Commission[1997] QCA 455
Reported at [1998] 2 Qd R 261
McCasker v Queensland Corrective Services Commission[1997] QCA 455
Reported at [1998] 2 Qd R 261
IN THE COURT OF APPEAL
SUPREME COURT OF QUEENSLAND
Appeal No. 10495 of 1997
Brisbane
[McCasker v. Queensland Corrective Services Commission]
BETWEEN:
SHAUN PATRICK McCASKER
(Applicant) Appellant
AND:
QUEENSLAND CORRECTIVE SERVICES COMMISSION
(Respondent) Respondent
Macrossan C.J.
Pincus J.A.
Helman J.
Judgment delivered 19 December 1997
Separate reasons for judgment of each member of the Court, Macrossan C.J. and Helman J. each concurring as to the order made, Pincus J.A. dissenting.
APPEAL DISMISSED WITH COSTS
CATCHWORDS: JUDICIAL REVIEW - Decision - appeal from judicial review of decision by respondent denying appellant remission of sentence - whether unacceptable risk to the community posed by appellant an irrelevant consideration - observations as to the respondent’s discretion to grant or deny remission of sentence.
Ex parte Fritz (1992) 59 A.Crim.R. 132
Felton v. The Queensland Corrective Services Commission [1994] 2 Qd.R. 490
R v. Rogers (1987) 8 N.S.W.L.R. 236
R v. Evans (1987) 8 N.S.W.L.R. 540
Hoare v. The Queen (1989) 167 C.L.R. 348
Watt v. The Queen (1988) 165 C.L.R. 474
Broadbridge v. Stammers (1987) 76 A.L.R. 339
R v. Criminal Injuries Compensation Board; ex parte Lain [1967] 2 Q.B. 864
R v. Wardley; ex parte Burton [1976] Qd.R. 286
R v. Collins; ex parte A.C.T.U. - Solo Enterprises Pty Ltd (1976) 50 A.L.J.R. 471
Hot Holdings Pty Ltd v. Creasy (1996) 185 C.L.R. 149
R. v. Panel on Take-overs and Mergers, ex parte Datafin P.L.C. [1987] Q.B. 815
Patchett v. Leatham [1949] 65 T.L.R. 69
Gillick v. West Norfolk and Wisbech Area Health Authority [1986] A.C. 112
Acts Interpretation Act 1954
Corrective Services Act 1988
Corrective Services (Administration) Act 1988
Corrective Services Regulations 1989
Judicial Review Act 1992
Counsel: Mr J. Davidson for the appellant
Mr M. Hinson for the respondent
Solicitors: Boystown Legal Service for the appellant
Crown Solicitor for the respondent
Hearing Date: 24 November 1997
IN THE COURT OF APPEAL
SUPREME COURT OF QUEENSLAND
Appeal No. 10495 of 1997
Brisbane
Before Macrossan CJ
Pincus JA
Helman J
[McCasker and Queensland Corrective Services Commission]
BETWEEN:
SHAUN PATRICK McCASKER
(Applicant) Appellant
AND:
QUEENSLAND CORRECTIVE SERVICES COMMISSION
(Respondent) Respondent
REASONS FOR JUDGMENT - THE CHIEF JUSTICE
Judgment delivered 19 December 1997
I have had the advantage of reading the judgments of Pincus JA and Helman J where the facts, the issues and the relevant statutory provisions are set out. I have reached the conclusion that the appeal should be dismissed and while I agree generally with the reasons of Helman J, I wish to add some reasons of my own. In this I shall avoid unnecessary repetition.
The challenge to the decision of the delegate argued below and on the appeal involved the assertion that as a result of the appellant’s having been accepted as being “of good conduct and industry”, no basis remained on which remission could be withheld. That is, the contention was that there was no remaining discretion to be exercised.
This argument should not be accepted. The words of regulation 21 of the Corrective Services Regulations 1989 are clearly against it. The regulation is structured on the premise that the “good conduct and industry” qualification entitles a prisoner to consideration for remission but does not assure the grant of it. The discretion to grant or refuse remission will properly be exercisable having regard to the fact that a discretion, not subject to particular restriction, has been conferred so that all matters relevant to its exercise in the circumstances can and should be taken into account.
The maintenance of discipline and order in corrective institutions is obviously an important consideration and the attachment of a remission system to custodial terms and the maintenance of the efficacy of the remission system are matters that the discretion must take into account. But this does not mean that the obvious need to maintain viability of a remission system should exclude the need to make decisions based on circumstances applicable in particular cases.
Section 130(e) of the Corrective Services Act 1988 authorises the making of regulations to deal with the “granting or forfeiting of remission of sentences”. It should be concluded that “unacceptable risk to the community” perceived as attaching to the release of a prisoner could justify refusal of remission of his sentence. Also, there is no reason why regulation 27 should not be regarded as consistent with the approach outlined. It simply provides for yet another threshold which can cause the loss of remission. It envisages that there may be conduct of a specified kind which will result in forfeiture of the right in whole or in part.
The conclusion just expressed concerning the ambit of the discretion under regulation 21 disposes of the objection to the decision as it was argued for the appellant. This argument was, as already stated, that there remained no discretion to refuse once “good conduct and industry” were shown.
During the argument on the appeal, some wider considerations were adverted to and something should be added in reference to them.
It was suggested by the respondent and not controverted that a delegated power may legitimately have attached to it conditions regulating its exercise. Reference was made to s. 27A(4) of the Acts Interpretation Act 1954. If there existed a discretion to withhold remission then the particular factors (a) to (g) specified in the instrument of delegation were of a kind that could properly be considered in deciding whether an “overriding consideration” might apply because of an “unacceptable risk to the community” resulting from discharge without supervision. The use of the words “overriding” and “unacceptable risk” show that the instrument, obviously reflecting the Commission’s policy, did not fail to give adequate prominence to the need to maintain the general viability of the remission system as a reward for good conduct in prisons. It did nothing to encourage arbitrary departures from the system of rewards.
It is not a simple risk of reoffending which would or should call for loss of remissions. In a great number of cases that risk will exist. It is only where there is an “unacceptable risk” involving, it is clear, concern for the need “to protect members of the community” against “the risk of serious physical harm” that the delegate is encouraged to consider whether a release on remission should be refused. In the instructions given to the delegate the need for balance between competing considerations, already referred to, is maintained. The conclusion should be reached that it is wholly compatible with the purpose of the discretion and its exercise to have regard to the level of risk of serious physical harm to the community that would follow release.
The policy of the Commission here revealed and the delegate’s exercise of the conferred discretion are not shown to have departed from applicable legal requirements. The instrument of delegation in paragraph (a) referred to the “exceptional” nature of the offence for which the prisoner was convicted. This I take to be a reference to its particular features including, as I would accept, its seriousness. I do not think that it is simply a reference to statistical frequency of offences of that kind. Then, in paragraph (f) the delegation referred to the risk of “serious physical harm” to community members. The offence leading to the appellant’s confinement involved digital penetration of a five year old child and contact between the appellant’s penis and her genital area. The delegate’s memorandum of decision and his subsequent statement of reasons sufficiently indicate that the delegate referred to the risk of the commission of further sexual offences including offences of the kind just referred to. This approach does not depart from the direction to look at the risk of serious physical harm. There is consistency between the delegation and the way in which the discretion was exercised under it and also a general conformity with the need to examine relevant matters.
We are not called on to consider whether a correct assessment was made of the level of risk. That was a matter committed to the decision of others.
The appeal should be dismissed with costs.
IN THE COURT OF APPEAL
SUPREME COURT OF QUEENSLAND
C.A. No. 10495 of 1997.
Brisbane
Before Macrossan CJ
Pincus JA
Helman J.
[McCasker v. QCSC]
BETWEEN:
SHAUN PATRICK McCASKER
(Applicant) Appellant
AND:
QUEENSLAND CORRECTIVE SERVICES
COMMISSION
(Respondent) Respondent
REASONS FOR JUDGMENT - PINCUS JA
Judgment delivered 19 December 1997
The appellant, a person serving a term of imprisonment, applied to the Supreme Court under the Judicial Review Act 1991 to have reviewed a decision of Mr N de Silva, the general manager of Moreton Correctional Centre. The decision was “not to grant remission on your sentence of three (3) years for Indecent Dealings commencing on 20 May 1995". The sentencing judge had recommended parole after 15 months. The appellant, aged 30, has a bad history of committing offences, but the greatest punishment inflicted on him up to 28 years of age was a sentence of 2 months imprisonment, imposed in 1995.
The application failed below and the appellant, by his counsel Mr J Davidson, has argued principally that the decision was based on a number of factors which were, in law, irrelevant. The appeal raises an important question as to the proper scope of the system of granting prisoners' remissions. If that system as understood by Mr de Silva operates validly, then it appears to be one which works in parallel with the parole system, the most important differences between the two being that the “new” remission system is dependent on a merely managerial decision, with none of the parole system’s safeguards, and that the prisoner released on parole does not have his prison term necessarily brought to an end. Parallelism exists in the sense that, when considering the grant of remissions in general, and grant of the appellant’s remission in particular, the respondent says that there may properly be taken into account such matters as the seriousness of the offence committed, the trial judge’s sentencing remarks, the criminal history of the person applying for remission, the risk of re-offending and whether an offender’s treatment programme has been completed. These factors were all taken into account by Mr de Silva in the appellant’s case.
The source of the power to grant remissions, ultimately, is the Corrective Services Act 1988 (“the C.S. Act”), which empowers the making of regulations “prescribing for or with respect to . . . the granting or forfeiting of remission of sentences of imprisonment” (s. 130(e)). Neither that Act nor the relevant regulations mentions as relevant to the question of remissions any of the matters I have just set out. On the respondent’s argument, however, that is of no consequence because, it is said, Mr de Silva had a discretion, subject to no express limitation, to grant or refuse remission. It is important to note that the word “remission” is undefined: I discuss its meaning below. The word does not appear to be wide enough to embrace any system whatever for determining the extent to which the sentence fixed by a court may be reduced.
The C.S. Act has been amended a number of times since its enactment but, so far as the points presently in issue are concerned, those amendments have made no significant change to the original structure of the statute as introduced by the Minister, the Hon. T. R. Cooper, M.L.A., to Parliament in 1988; there are, however, differences in detail. The Queensland Corrective Services Commission, established under the Corrective Services (Administration) Act 1988, has its functions defined principally by two provisions, s. 18 of that Act and s. 13 of the C.S. Act. The former provision requires the Commission to determine corrective services policy, to develop and administer ways of rehabilitating prisoners, to develop and administer counselling services and programmes and to develop and administer services and programmes with reference to prisoners’ ties to families and the community. Under s. 13(1) of the C.S. Act it is provided among other things that the Commission is to be responsible for the “security and management of prisons and community corrections centres and the safe custody and welfare of prisoners” and also to provide medical services. One may summarise all this by saying that the core functions of the Commission appear to be to run the prisons properly and safely and to look after, and try to rehabilitate, the prisoners; there is no suggestion that the Commission is entrusted with the function of determining how much time in prison the prisoners deserve. The other bodies apart from the Commission whose functions are mentioned in the C.S. Act are the community corrections boards. There is a Queensland Community Corrections Board and under it, so to speak, there are regional community corrections boards. These are dealt with in Part 3 of the C.S. Act and I refer in particular to ss. 131 and 143 of the C.S. Act. The principal function of the community corrections boards is to deal with applications for parole and matters ancillary to them: see ss. 163, 165, 167, 168, 180 and 185 of the C.S. Act.
There is nothing in the C.S. Act, nor in the Minister’s speech when introducing the Bill which became the C.S. Act, to support the notion that Parliament intended to make or authorize a substantial change in the scope and purpose of the system of remissions. The Minister explained that the Bill had been based on the report of Mr J J Kennedy, which report does not propose any substantial change in the basis on which remissions should be granted. Mr Kennedy, who suggested (251) abolition of the remission system, described it as follows:
“Remission is an administrative arrangement, allowed in law, whereby the Prisons Department may release a prisoner free on the grounds of good behaviour, after serving somewhat less that 2/3 of a sentence.” (246)
In reaching my conclusion in this case I have gained assistance from the reasons of Williams J. in Felton v. The Queensland Corrective Services Commission [1994] 2 Qd.R. 490 at 502, which is authority for the view (with which I respectfully agree) that there is a " . . . legitimate expectation in a prisoner of good conduct and industry to be granted remission in accordance with regulation 21", a provision set out below. Felton also illustrates, if illustration were needed, that it is desirable that some possibility of public scrutiny of the methods used to decide, from time to time, whether or not remissions will be granted be available. To make this point, it is enough to quote part of the explanation by Williams J. of one of the hurdles which Felton, in seeking remission, had to overcome:
"The applicant says that he found the first part of the course 'useful'. But that was not his view of the Masturbatory Group Therapy module which commenced in May 1992. The procedure involved in this module was set out in the document headed 'Masturbatory Satiation' which is also exhibited to the applicant's affidavit. Apparently the subject had to masturbate to a non-deviant fantasy until the 'switch point' was reached. This was all recorded on an audio tape. The 'switch point' was the time taken at the first session to achieve ejaculation plus two minutes; that was the 'switch point' fixed for subsequent sessions. If initially ejaculation had not occurred after 10 minutes the 'switch point' was set at 10 minutes. The instructions go on:
'When the switch point is reached the subject continues to masturbate while verbalising a small segment of the deviant fantasy (i.e. 7-10 words) over and over again for the remainder of the hour.'
As I read that, and this appears to be confirmed by the applicant, the subject is required to continue masturbation for a period of an hour, apparently whether ejaculation has been achieved, and whether or not an erection is maintained. Records are kept of the number of minutes taken to achieve ejaculation and 'levels of sexual arousal'. The applicant sets out in his affidavit some illustrations of suggested fantasies to be utilised during the sessions. Whilst it is not so described in any of the material one could readily infer this was a form of aversion therapy.
It would appear that the applicant undertook 10 such sessions each of which was taped." (494, 495)
There is no reason to think that this method of treatment, or any similar method is used currently. But it is of interest to note that among the matters taken into account against the appellant in reaching the conclusion that there was a risk of his re‑offending was that he wished to gain access to his daughter Amelia and that “there had . . . been reports that he had been acting in a manner which would indicate a continuation in behaviour consistent with ongoing use of deviant fantasy”. Not all would necessarily agree that it is just to base a decision to release or not to release a prisoner on such considerations.
The C.S. Act makes two provisions for the making of regulations. One is s. 130, the immediately relevant part of which I have quoted above. It is important to note that other provisions of s. 130, thirteen in number, all deal with the management of prisons and prisoners. The more general provision is s. 208, of which subs. 1 reads as follows:
“The Governor in Council may make regulations, not inconsistent with this Act, prescribing any matter that this Act requires or permits to be prescribed (other than any matter required to be prescribed otherwise than by regulation) or any matter that it is necessary or convenient to prescribe to give effect to this Act.”
The Corrective Services Regulations 1989 empower the Commission to grant remissions, but do so in rather obscure terms. One regulation (21) suggests that there is an unfettered discretion to grant or not to grant the remission, whereas another (27) suggests the contrary. These two regulations are as follows:
“21. General entitlement to remission.
- A prisoner serving a sentence of imprisonment of 2 months or longer and who is of good conduct and industry may, at the discretion of the Commission, and subject to the following provisions of this Part, be granted a remission of one-third of his sentence together with such other remission as is provided for in this Part.
- For the purposes of this Part a prisoner is of good conduct and industry if he -
- complies with all relevant requirements to which he is subject:
and
- displays a readiness to assist in maintaining order and a willingness and genuine desire to maintain steady industry in every employment or work which may be required of him."
"27. Forfeiture of remission.
Where, within the period of a sentence of imprisonment a prisoner, pursuant to section 101(6)(c) of the Act, undergoes separate confinement for a period of 7 days on 3 or more occasions, and he has not generally been of good conduct and industry, the general manager shall submit all relevant details together with his recommendation to the Commission for consideration by the Commission before the date on which the prisoner might ordinarily have been discharged (or a subsequent cumulative sentence would have commenced), had he been of good conduct and industry. The Commission shall thereupon determine whether the prisoner shall forfeit the whole or any part of the remission which he might otherwise have enjoyed. Where a part only of the remission is forfeited, the prisoner's details shall be re-submitted to the Commission in the event that he is not of good conduct and industry during the period of forfeited remission."
Regulation 27, it will be noted, requires the general manager to submit details of the misconduct of certain prisoners to the Commission for consideration "before the date on which the prisoner might ordinarily have been discharged (or a subsequent cumulative sentence would have commenced), had he been of good conduct and industry". This might be taken to imply that prisoners not caught by regulation 27 have a prima facie entitlement to be let out. And regulation 27 goes on to require the Commission to determine whether the prisoners falling within its terms forfeit the whole or part of their remission, the word "forfeit" being appropriate to describe a situation in which a right, or at least a prima facie right, may be lost.
But regulation 21 on its face gives an unfettered discretion to grant or not to grant a remission. Despite the strength of the argument to the contrary advanced on behalf of the appellant, I have reached the view that the Commission has power under regulation 21 to refuse a remission to a person who has not been subjected to the process of forfeiture defined by regulation 27. This seems to me inexorably to follow from the fact that those who are "of good conduct and industry" may, not must, be granted a remission.
There remains a question of construction of regulation 21; it does not say on what criteria the Commission is to act in exercising the discretion granted by that regulation. This is the principal source of the difficulty in resolving the present problem. To that point I return below, but at this stage remark that the meaning of the word “remission” appears to be critical.
We were told during the course of the hearing that the managers of the various prisons have all received a delegation of the Commission's power to grant remissions and, by consent, copies of the instrument of delegation relevant to the present case were handed up. This is, it appears, a standard form. The effect of the delegation is to give the general manager the Commission's powers under regulations 21(1), 23 and 28 of the regulations. Regulation 21 is set out above. Regulation 23 deals with the subject of "overtask marks" and regulation 28 imposes a restriction, not presently relevant, on the Commission's power to grant remissions. The delegation requires the delegate to have regard to what is variously called an "administrative guideline" and "administration guideline" which is reproduced, in substantial part, at p. 26 of the record. The immediately relevant part of the guideline is as follows:
"A prisoner serving a sentence of imprisonment of two months or longer and who is of good conduct and industry may be granted remission in accordance with Part III of the Corrective Services Regulation 1989.
However, it may occasionally be necessary to decline to grant remission to a prisoner who is otherwise of good conduct and industry due to the presence of certain overriding considerations indicating that the prisoner concerned would be an unacceptable risk to the community if discharged without supervision. In determining that overriding considerations apply in a particular case, the Delegate must have regard to:
- the exceptional nature of the offence for which the prisoner was convicted;
- the prisoner's antecedents, age and character;
- the sentencing remarks by the trial judge;
- any medical, psychiatric or psychological report in relation to the prisoner;
- sentence management reports in relation to the prisoner;
- the risk of serious physical harm to members of the community if the prisoner were released without supervision; and
- the need to protect members of the community from the risk mentioned in paragraph (f)." (emphasis added)
The reasons which prompted Mr de Silva to refuse remission appear from two documents in the record, one dated 6 May 1997 and the other undated but attached to a letter dated 30 June 1997. The latter is more elaborate, but for present purposes it is sufficient to quote the most pertinent part of the former:
"It is considered that based on the sum of this information that you continue to present as an individual who represents a risk to the community if released without supervision. The assessment that you are a risk to the community is based on:
- The serious nature of your offence;
- The sentencing remarks of the trial judge;
- Your extensive criminal history;
- The assessment by Ms A Vasey, Psychologist that you present as a high risk of reoffending."
It will be noted that in two ways the grounds of the decision may not be reconcilable with the guidelines; the two ways are interconnected. The first, a minor point, is that the guideline refers to the "exceptional nature of the offence" and the reasons to "the serious nature of your offence". The second is that the guideline refers in (f) to "the risk of serious physical harm" and in (g) to the need to protect members of the community from the risk mentioned in (f); the reasons, on the other hand, make no reference to "serious physical harm" and speak merely of a "risk". The nature of the risk is unidentified in the reasons except in item (4): "a high risk of reoffending". The decision is based on the assumption that the intention of the delegation was to enable prison managers to refuse remission to well-behaved prisoners thought to be likely to re-offend, whatever the nature of the offence. Here, so far as one may make an inference from the sentence imposed the sexual offence committed was not one of an exceptional character, nor was there any previous conviction for a similar offence. It may be that the policy being applied by Mr de Silva is that prisoners serving sentences for sexual offences shall not be granted remission if there is, according to the best advice available, a risk of their re‑offending. If that policy is applied then it would seem unlikely that sexual offenders could obtain remission; there must very commonly be a risk of re‑offending.
It is no part of the courts' function to determine whether there should be such a policy as that which appears to have been applied by Mr de Silva. The question is a legal one, whether prison managers in general, and Mr de Silva in particular, have had legally vested in them the type of discretion exercised in the present case.
It is a digression to say so, but those who are free from anxiety about delegation of this quasi-judicial function to prison managers might consider a remark in Mr de Silva's statement of reasons attached to a letter dated 30 June 1997 at p. 2:
“The nature of Mr McCasker's offence for Indecent Dealings is considered to be of a violent serious nature”.
This remark is presumably inspired by the insertion into the Penalties and Sentences Act 1992 (s. 161A) of the concept of a “serious violent offence”, by Act no. 4 of 1997; but it is only a judge who (under s. 161B of the same Act) is empowered to declare a conviction to be a conviction of a serious violent offence.
The spirit of the guideline is that refusal of remission to a person of good conduct and industry would be unusual and, consistently with that, regard must be had to the "exceptional nature of the offence" and the risk of "serious physical harm". This has been watered down, in Mr de Silva's reasons, to consideration of the "serious nature" of the offence - the word "exceptional" simply could not fit the appellant's offence - and the notion of "serious physical harm" is weakened to "risk".
At the hearing in this Court there was discussion of the validity of the delegation. There is a general power in the Commission to delegate its powers to "an officer or employee of the Commission": see s. 21(b) of the Corrective Services (Administration) Act 1988. There is, to my mind, room for argument whether this general power to delegate carries with it a right to require observance of rules, devised by the Commission, as to the mode of exercise of the delegated power. As I have pointed out, the regulations which are the source of the Commission's power to grant remissions do not set out any express criteria to guide the exercise of the discretion. I note that under s. 15(1) of the C.S. Act, Mr de Silva has a right to delegate "to any officer of the commission all or any of the powers, authorities, functions and duties conferred or imposed on the general manager by or under this Act or any other Act except this power of delegation". If it is permissible for the Commission, under its power of delegation, to lay down rules relating to the mode of exercise of a delegated discretion, presumably the general manager could do the same. When one considers the application of these provisions to the question whether a particular prisoner shall serve, say, 10 years or on the other hand 15 years imprisonment, doubts may be stirred; they would relate to the question whether the legislature could have intended such an important matter to be governed by legal rules made at the level of Mr de Silva and his colleagues - made neither by Parliament nor by the Governor in Council. Such doubts would be enhanced by a consideration of the rather elaborate system which the statute lays down governing the grant or refusal of parole. I refer to ss. 163 - 196 of the C.S. Act and note in particular that there is a two-tier system (see ss. 167 and 168) and that certain of the members of the Boards must have particular qualifications: see s. 132 and 144. It would seem improbable, or at least surprising, that Parliament could have intended anything in the nature of a parallel parole system to be devised at an administrative level - unrestrained by any of the elaborate provisions thought necessary to govern the statutory parole system.
The understanding has been that the remission system has to do with conduct in prison and this understanding is evidenced by authority; the remission system is always referred to as having to do with good or bad conduct in prison: see for example, Hoare (1989) 167 C.L.R. 348 at 353:
"The practice of allowing remission for good behaviour of the service of part of a sentence of imprisonment has existed from the earliest times of European settlement in this country . . . Traditionally, the existence of a system of remission has, from the point of view of a prisoner, been beneficial in that such a system allows the sentence imposed as appropriate to the gravity of the crime to be remitted or cut short by reason of good behaviour while it is being served."
See also Rogers (1987) 8 N.S.W.L.R. 236 at 239, and Evans (1987) 8 N.S.W.L.R. 540 at 541:
" . . . the penal philosophy upon which the remission system is based requires that a prisoner's entitlement to the benefit of remissions is to depend upon his conduct and other circumstances arising during the course of the sentence whilst he is in custody. It is quite impossible for a sentencing judge to predict in advance how a prisoner will behave whilst in custody . . . ".
Both the cases to which I have referred, Rogers and Evans, were disapproved in Watt (1988) 165 C.L.R. 474, insofar as they were held to involve an abdication of judicial responsibility; judges in New South Wales had declined to exercise a power to withhold remissions. It is noteworthy, however, that nothing was said in the High Court to throw doubt upon the view of the remission system put forward by the judges of the Supreme Court of New South Wales. Indeed, Brennan J. in the High Court referred to it as a “system of earning remissions for good conduct" (486). This understanding of the meaning of the word "remission", in this context, appears to be consistent with the view taken in this Court in Fritz (1992) 59 A.Crim.R. 132 at 134, and with that adopted in the Kennedy Report, referred to above.
I do not accept that Parliament, in empowering the Governor in Council to make regulations about remissions and the Governor in Council, in making those regulations, intended to permit the devising of criteria whereby, at an administrative level, the time served could be shortened or not, depending upon such factors as seemed to an administrator just, such as the administrator's view of the seriousness of the offence. But the delegation whose validity has been called in question does not go so far; the principal purpose it has is to prevent the release of a prisoner who "would be an unacceptable risk to the community if discharged without supervision" and what is envisaged by the word "unacceptable" seems to be the "risk of serious physical harm" referred to in criteria (f) and (g). Regarded in that way, it appears to me that the delegation is valid. That conclusion does not, however, necessarily save the decision made in the present case.
There are two questions with respect to the considerations set out in the delegation. One is whether Mr de Silva has substantially applied them, or failed to do so. Another is whether, if he has failed to do so, that is a matter which has any legal consequences.
As to the latter point, it was suggested by Mr Hinson, for the respondent, that the matters which the delegation required the delegate to take into account should be considered as being conditions to which the delegation is subject; in this connection Mr Hinson referred to s. 27A(4) of the Acts Interpretation Act 1954:
“A delegated power may be exercised only in accordance with any conditions to which the delegation is subject”.
In favour of this view of the matter there is the language of the delegation:
“In determining that overriding considerations apply in a particular case, the Delegate must have regard to . . .”. (emphasis added)
It is not clear, at first sight, whether the use of the word “must” is intended to convey that the seven matters listed are conditions subject to which the delegation is made and therefore binding in the way suggested by Mr Hinson, or whether they are merely matters which, while not conditions in the statutory sense, are binding for the purposes of administrative law relief - or whether, properly read, they are merely guidelines, having no binding effect in law.
An example of provisions of the kind last mentioned is considered in Broadbridge v. Stammers (1987) 76 A.L.R. 339. There, a delegation of power, under a Commonwealth Statute, was made subject to, among other things, “associated policies, procedures and guidelines . . . ”. There was evidence that policies on relevant matters were contained in a manual and the primary judge “treated the delegation as being subject to compliance with the policies so laid down” (342). But on appeal that was held not to be so:
“It is an administrative area where one would expect that the delegate would have to direct his mind to the matters laid down in the policy but where he would not be bound, in the strict legal sense, by every word in the policy manual. Rather one would expect he would be open to correction or discipline by the Commission should he depart in material respects from it . . .”. (343)
If these remarks are applied to the seven matters to which, under the delegation, the delegate “must have regard”, then there is no right in persons who might be affected by the exercise of the power of remission to have the scheme indicated by the listing of the seven matters followed; no relief by way of judicial review would then be able to be obtained in respect of a breach of that scheme and that was the result in Broadbridge v. Stammers.
There are, however, contrary lines of authority. One begins with R v. Criminal Injuries Compensation Board; ex parte Lain [1967] 2 Q.B. 864, dealing with a non‑statutory scheme to compensate victims of crime. Certiorari was held to be available to quash a decision made otherwise than in accordance with the scheme. That case was applied by the Full Court of the Supreme Court of Queensland in R v. Wadley; ex parte Burton [1976] Qd.R. 286 at 295. Lain was also treated as authoritative by Stephen J. in R v. Collins; ex parte A.C.T.U. - Solo Enterprises Pty Ltd (1976) 50 A.L.J.R. 471 and by the Full High Court in Hot Holdings Pty Ltd v. Creasy (1996) 185 C.L.R. 149 at 162, 163. An analogous development was acceptance of the view that decisions of the City of London Panel on Take-overs and Mergers, despite having no statutory backing whatever, are subject to judicial review; see R v. Panel on Take-overs and Mergers, ex parte Datafin PLC [1987] Q.B. 815. I refer also to the dictum dealing with “so‑called legislation . . . at least four times cursed” in Patchett v. Leathem (1949) 65 T.L.R. 69 at 70, and to the circumstance that a “memorandum of guidance” issued by a department was in Gillick v. West Norfolk and Wisbech Area Health Authority [1986] A.C. 112, held to be subject to judicial review.
Thus, even if one does not accept that the relevant part of the delegation constituted conditions binding in law, the trend of authority is in favour of the view that the question of observance or non-observance of the terms of the delegation is a matter which may be raised by way of judicial review; that is so because the terms of the delegation in fact, whatever their effect in strict law, are intended to govern decisions to grant or refuse a benefit of great importance to those who apply for it.
As to the other point, whether Mr de Silva has followed rather than departed from the intention of the delegation, as to the matters to be taken into account, my opinion is in favour of the appellant. The delegation is intended, insofar as it prescribes the matters to which attention must be directed, (a) to (g), to discourage release of prisoners in exceptional cases where consideration of the matters listed leads to a conclusion that release would produce a “risk of serious physical harm”. As applied by Mr de Silva, the question became merely whether the appellant, a sexual offender of no unusual sort, was thought to constitute a risk of re-offending.
It appears to me then, that the decision is unlawful and must be set aside. But if it were the case that the question whether the statutes, regulations and delegation should be construed so as to permit what has been done were regarded as a matter of serious doubt, then in accordance with the ordinary rule that doubt would be resolved in favour of the appellant. Although a prisoner, he is entitled to have the courts read narrowly provisions which might prevent him from gaining liberty he might reasonably have expected to attain.
It is desirable to make one further observation; so far as I can see there is no information whatever, as to the consequence of these important delegations (made in March 1995) on the operation of the remission system, to be gained from any of the last three annual reports of the Queensland Corrective Services Commission.
Summary
I think that the decision made by Mr de Silva is unlawful, on the ground that he has not faithfully followed the terms of the delegation under which he purported to act. I should add that, if the delegation had been (as it was not) in such terms as to permit or require Mr de Silva to act on the sorts of considerations he took into account, it would have been beyond power.
I would allow the appeal, set aside the orders made below and in lieu order that the decision identified in the application for review be set aside. I would further order that the matter be remitted to Mr N de Silva for further consideration, in accordance with the reasons above.
I would order that the appellant have his costs here and below.
IN THE COURT OF APPEAL
SUPREME COURT OF QUEENSLAND
Appeal No.10495 of 1997
Brisbane
Before Macrossan C.J.
Pincus J.A.
Helman J.
[McCasker v. Queensland Corrective Services Commission]
BETWEEN:
SHAUN PATRICK McCASKER
(Applicant) Appellant
AND:
QUEENSLAND CORRECTIVE SERVICES COMMISSION
(Respondent) Respondent
REASONS FOR JUDGMENT - HELMAN J.
Judgment delivered 19 December 1997
This is an appeal from a decision of a judge of the Supreme Court on an application for a statutory order of review under Part 3 (ss. 20-30) of the Judicial Review Act 1991. The application arose from a decision by a delegate of the respondent. The appellant, who had been sentenced on 9 June 1995 in the Brisbane District Court to imprisonment for three years for indecent treatment of a child under the age of sixteen years with a circumstance of aggravation, sought remission of one third of his sentence under the Corrective Services Regulations 1989. (The learned sentencing judge recommended that he be eligible for release on parole after serving imprisonment for fifteen months, but that recommendation is not relevant on this appeal.) The delegate, the General Manager of the Moreton Correctional Centre, refused to grant the remission. The appellant then applied unsuccessfully for a statutory order of review on two grounds: first, that the making of the decision was an improper exercise of the power conferred by the enactment under which it was purported to be made, and secondly that there was no evidence or other material to justify the making of the decision. Those are grounds provided for in s. 20 (2)(e) and (h) respectively of the Judicial Review Act. The appellant’s grounds of appeal relate to the first ground of his application. They come down to an assertion that his Honour erred in concluding that the respondent had not taken an irrelevant consideration into account in reaching its decision. The allegedly irrelevant consideration was the delegate’s assessment of the risk to the community if the appellant were to be released without supervision.
The appellant sought the remission of sentence under Part III of the Corrective Services Regulations and relied chiefly on regulation 21 which provides for the general entitlement to remission:
“21. General entitlement to remission.
- A prisoner serving a sentence of imprisonment of 2 months or longer and who is of good conduct and industry may, at the discretion of the Commission, and subject to the following provisions of this Part, be granted a remission of one-third of his sentence together with such other remission as is provided for in this Part.
- For the purposes of this Part a prisoner is of good conduct and industry if he-
- complies with all relevant requirements to which he is subject;
and
- displays a readiness to assist in maintaining order and a willingness and genuine desire to maintain steady industry in every employment or work which may be required of him.”
Regulation 22 (Calculation of remission) includes a table for use as a guide for the purpose of calculating remission, and it shows, as might have been expected, that the one third remission applicable to a sentence of thirty-six months is twelve months. Other regulations in Part III - 23 (Remission through overtask marks), 24 (Minimum and open security remission), 25 (Christmas remission), 26 (Remission - habitual criminal), and 28 (Forfeiture of remission where an offence is committed)-are not relevant to the issues on this appeal. Regulation 27 (Forfeiture of remission) was referred to in argument before us and could be thought to be of assistance in construing the words of regulation 21 to determine the ambit of the discretion conferred on the respondent. The wide construction put upon regulation 21 by the respondent is at the heart of the appellant's complaint about the decision on his remission. Regulation 27 provides:
“27. Forfeiture of remission.
Where, within the period of a sentence of imprisonment a prisoner, pursuant to section 101(6)(c) of the Act, undergoes separate confinement for a period of 7 days on 3 or more occasions, and he has not generally been of good conduct and industry, the general manager shall submit all relevant details together with his recommendation to the Commission for consideration by the Commission before the date on which the prisoner might ordinarily have been discharged (or a subsequent cumulative sentence would have commenced), had he been of good conduct and industry. The Commission shall thereupon determine whether the prisoner shall forfeit the whole or any part of the remission which he might otherwise have enjoyed. Where a part only of the remission is forfeited, the prisoner's details shall be re-submitted to the Commission in the event that he is not of good conduct and industry during the period of forfeited remission.”
Under s. 21(b) of the Corrective Services (Administration) Act 1988 the respondent may delegate its powers to an officer or employee of the respondent. By an instrument of delegation (no. E.42.7) made under that section on 16 March 1995 the respondent delegated to the General Manager, Moreton Correction Centre its powers, authorities, functions and duties under regulation 21(1), but limited to those prisoners who were serving a sentence of imprisonment up to, but excluding, ten years. In the instrument of delegation the following appeared:
“Before exercising the power conferred pursuant to this Instrument of Delegation the Delegate must have regard to the Administrative Guideline - Remission annexed to this Instrument.”
The administrative guideline, issued on 15 March 1995, was as follows:
“ ADMINISTRATION GUIDELINE
REMISSION
A prisoner serving a sentence of imprisonment of two months or longer and who is of good conduct and industry may be granted remission in accordance with Part III of the Corrective Services Regulation 1989.
However, it may occasionally be necessary to decline to grant remission to a prisoner who is otherwise of good conduct and industry due to the presence of certain overriding considerations indicating that the prisoner concerned would be an unacceptable risk to the community if discharged without supervision. In determining that overriding considerations apply in a particular case, the Delegate must have regard to:
- the exceptional nature of the offence for which the prisoner was convicted;
- the prisoner's antecedents, age and character;
- the sentencing remarks by the trial judge;
- any medical, psychiatric or psychological report in relation to the prisoner;
- sentence management reports in relation to the prisoner;
- the risk of serious physical harm to members of the community if the prisoner were released without supervision; and
- the need to protect members of the community from the risk mentioned in paragraph (f).
The Delegate may only decline to grant remission to a prisoner who has otherwise been of good conduct and industry where it is positively satisfied that the particular prisoner has had opportunity of answering the contention that the unsupervised release of the prisoner would present an unacceptable risk to members of the community.
Where the Delegate is considering not granting remission to a prisoner who has otherwise been of good conduct and industry for reasons that the unsupervised release of the prisoner would present an unacceptable risk to members of the community, the following procedures should be observed in order to ensure procedural fairness is accorded to that prisoner prior to making a decision.
Procedure
The Delegate shall fix a date (‘the decision date’) for the purpose of determining whether to grant eligible remission to a prisoner, which shall be at least seven days prior to the date on which the prisoner, if granted eligible remission, would be discharged or commence a subsequent cumulative sentence.
At least 28 days before making a decision not to grant eligible remission to a prisoner, the Delegate shall in writing -
- notify the prisoner of the decision date and any relevant matter or matters adverse to the prisoner's interest which the delegate proposes to take into account in making the decision;
- give the prisoner 21 days within which to submit written comment to the Delegate on such relevant matter or matters.
In submitting such written comment, a prisoner may seek assistance from which or outside the place where the prisoner is being detained. If a prisoner has literacy difficulties, the prisoner, shall at the discretion of the Delegate be provided with assistance.”
The delegate considered the appellant's application, and, in a memorandum dated 6 May 1997, recorded that, having taken into account information the details of which he gave, he had decided not to grant the remission. I should mention here that, as appears from a previous memorandum dated 8 April 1997, the delegate was satisfied that the appellant had been of good conduct and industry. The delegate recorded that the following documents, copies of which had been supplied to the appellant, had been taken into account: a sentence calculation dated 26 March 1997, particulars of the appellant's sentence dated 26 March 1997, a calendar relating to the appellant, the appellant's criminal history, the transcript of the proceedings of 9 June 1995, and a “[p]sychological report” dated 26 March 1997 from Ms Annette Vasey, Acting Coordinator (Sex Offender Treatment Program), Moreton (B) Correctional Centre. In addition, the delegate took into account Offender Management Information System and Sentence Management File records relating to the appellant, and the “requirements”of the instrument of delegation. The delegate recorded in the memorandum of 6 May the reasons for his decision as follows:
“It is considered that based on the sum of this information that you continue to present as an individual who represents a risk to the community if released without supervision. The assessment that you are a risk to the community is based on:
- The serious nature of your offence;
- The sentencing remarks of the trial judge;
- Your extensive criminal history;
- The assessment by Ms A Vasey, Psychologist that you present as a high risk of reoffending.”
In a letter dated 5 June 1997 the appellant’s solicitors asked the delegate for a full statement of reasons pursuant to s. 32(1) of the Judicial Review Act. A statement of reasons in response to that request was sent to the appellant's solicitors attached to a letter dated 30 June 1997. The delegate made particular reference to the appellant's criminal history, the recorded observations by the learned sentencing judge, views expressed by Ms Vasey, and a letter dated 28 February 1996 from the secretary of the South Queensland Regional Community Corrections Board concerning an application by the appellant for community release:
“4. The Criminal History records of Mr McCasker reveal that he has a significant history of offending commencing 27 January 1984 for offences involving: stealing, entering a dwelling house with intent, break, enter and steal, false pretences, behave in a disorderly manner, found in an enclosed yard without excuse, receiving, assault occasioning bodily harm, behave in an indecent manner, impersonating a police officer, breach of probation, bail and fine option order, wilful and unlawful destruction of property, discharge a weapon in public place, possession of a weapon whilst not being the holder of a licence as specified in schedule 3 of the weapons act, and possession of a weapon whilst under the influence of liquor or drug.
- The Transcript of Proceedings between The Queen -v- Shaun Patrick McCasker dated 9 June 1995. His Honour, Judge Daly said:
‘... the obvious aggravating feature is the age of the child concerned, who was only five years old at the time.’
‘Nor can it be said that it was a spur of the moment matter because you frankly told the psychologist who interviewed you that you had had some thoughts along those lines prior to going near the child on this occasion.’
‘You have also expressed to your psychologist and through your counsel to the court a desire to undertake treatment for the problems you have in this regard.’
- Mr McCasker was perceived to pose as a high risk to the community of reoffending. Ms A Vasey, Acting Senior Psychologist reports:
‘The risk to the community in the event of release is estimated as high given Mr McCasker's continued engagement in manipulative and deceptive behaviours in a highly structured and monitored environment. Without such supervision it would appear that he would have greater opportunity to engage in more manipulative and aggressive or threatening behaviour’.
Furthermore, Ms Vasey reports that Mr McCasker has outstanding treatment needs for his sexual offending behaviour. She writes:
‘By his own admission he has engaged in behaviour which has been overtly threatening to his partners who, because of their age, he has been easily able to control. He has engaged in the SOTP (Sex Offenders Treatment Program) since 9 October 1995 and has been exposed to treatment components which would address his psychological needs. There is no evidence, however, to indicate that he has developed more than a superficial understanding of these issues. It would also appear that he has not made a concerted effort to implement the changes necessary to develop a lifestyle where is aware of the rights and needs of others, respect them and attempts to meet their needs while meeting his own.’
- The Offender Management Information System and Sentence Management File records of Mr McCasker, namely:
7.1Correspondence from the Secretary of the South Queensland Regional Community Corrections Board (SQRCCB) dated 28 February 1996 in which the Board decided to defer Mr McCasker's application for community release until he completed the SOTP.
Mr McCasker had not completed the Sex Offenders Treatment Program at the time of the decision not to grant him remission.”
The delegate gave the following reason for the decision:
“After considering all the available facts and evidence it was decided not to grant remissions on Mr McCasker's sentence of three (3) years imprisonment for Indecent Dealings as he is considered to pose an unacceptable risk to the community if released without supervision.”
In essence, the argument advanced to us on behalf of the appellant was that since the sole justification for the remission system is “to encourage good behaviour and discourage bad behaviour by prisoners whilst in custody” only conduct “arising during the course of the serving of the sentence should be considered in relation to the granting or refusal of remission”. The discretion provided for in regulation 21 must be confined, so the argument continued, to consideration of factors relevant to:
“(a) The promotion of good order, security and management of prisoners within prisons; and
- Conduct and other circumstances arising during the course of the sentence actually being served.”
Because a decision under regulation 21 must be based narrowly only on such factors it followed that the matters taken into account by the delegate were irrelevant, it was submitted. The reason given for the decision was, as I have related, that the appellant would have posed an unacceptable risk to the community if he had been released without supervision. That consideration and the facts and circumstances upon which it was based were irrelevant on the appellant’s argument.
Section 23(a) of the Judicial Review Act provides that a reference in s. 20(2)(e) to an improper exercise of a power includes a reference to taking an irrelevant consideration into account in the exercise of a power. If then the delegate was wrong in taking the risk to the community of the appellant’s being released without supervision into account it would mean that the first ground relied on by the appellant in seeking the statutory order of review had been made out and that his Honour had erred.
In Ex parte Fritz (1992) 59 A.Crim.R. 132 a decision by the respondent not to grant a prisoner the benefit or privilege of remission under Part III of Corrective Services Regulations was declared to be invalid because the respondent had failed to accord procedural fairness to the prisoner. Referring to the ambit of the discretion provided for in regulation 21 this Court (Fitzgerald P., Davies J.A., and Byrne J.) observed:
“Although its correspondence with the applicant might on one view have suggested otherwise, the respondent accepted that the applicant was of ‘good conduct and industry’ and that it had a discretion to grant him full remission. The reason for its decision not to do so, according to what the respondent wrote in a letter to the applicant’s solicitors dated 15 April 1991, was that it ‘... took into account the nature of the offences for which he was convicted and his previous convictions and was of the view he should not be granted unsupervised release.’ It is not clear whether this meant that the Commission considered that the applicant’s offences of themselves disentitled him to remission of part of his sentence or that those offences disclosed some matter of concern in respect of his possible future conduct which, in its view, indicated that remission of part of his sentence was inappropriate. However, in the circumstances, the difference is immaterial.
The respondent sought to support its decision on the footing that its discretion under reg 21 is unfettered. To an extent, that proposition may be accepted. On the literal construction of the regulations, the respondent’s discretion may be confined only by the need to exercise its power by reference to considerations which are material to the purpose for which it was granted. However, the structure of Pt III and some of the language used tend to suggest that a remission of one-third of a prisoner’s sentence is usual for a prisoner who ‘is of good conduct and industry’ as defined, and this may be supported by the possibility that a purpose of remission is to provide an incentive to prisoners to be ‘of good conduct and industry’ while in prison.
The need to pursue such issues is relieved by the evidence that, in practice, remission of one-third of their sentences is ordinarily granted to all prisoners who are of ‘good conduct and industry’.” (p. 134)
In Felton v. The Queensland Corrective Services Commission [1994] 2 Qd.R.490 Williams J. considered regulations 21 and 27. The applicant in that case sought a review under s. 21 of the Judicial Review Act of a decision by the respondent not to grant him any remission on a sentence of imprisonment for ten years for rape because, the respondent said, he had not adequately addressed his sexual offending behaviour and he should not be released into the community unless under community corrections supervision. His Honour referred inter alia to the passage from the judgment in Ex parte Fritz I have quoted, and to two decisions of the New South Wales Court of Criminal Appeal concerning remissions of sentence, R v. Rogers (1987) 8 N.S.W.L.R. 236 and R v. Evans (1987) 8 N.S.W.L.R. 540, and concluded:
“It follows, in my opinion, that once the respondent has determined that in accordance with regs 21 and 27 the prisoner has been ‘of good conduct and industry’ he is entitled to a grant of remission unless the Commission is positively satisfied after affording the prisoner ‘procedural fairness’ that there are overriding considerations which compel in the exercise of discretion a contrary decision.” (p. 503)
In R v. Rogers Street C.J., with whom Hunt and McInerney JJ. agreed, observed:
“The remission system is essentially an administrative mechanism aimed at encouraging good behaviour by prisoners and conversely providing for the opportunity of imposing sanctions for bad behaviour by cancellation of remissions. This is the sole justification for the existence of the system.
. . .
The whole remission system is based on the premise that remissions are an incentive and reward for good conduct during the serving of a term of imprisonment. They are granted or withdrawn by prison authorities in the light of considerations essentially and properly relevant only to conduct and other circumstances arising during the course of the sentence being actually served.” (pp. 238, 239)
R. v. Rogers and R .v. Evans were concerned with orders made by sentencing judges withholding remissions. As I read those cases they provide no support for the proposition that when a prisoner who has served part of his sentence is being assessed for suitability for remission, his conduct in prison should not be seen in the context of what is known of his past.
It would clearly be a capricious exercise of the discretion provided for in Part III to refuse a prisoner whose conduct and industry have both been good when there is nothing of substance before the decision-maker indicating that the risk to the community on the prisoner’s release will be above an acceptable level. I say “above an acceptable level” because it cannot be denied that there will always be some risk of a prisoner’s reoffending after release. If the risk of reoffending is assessed as being at an acceptable level the benefits of good order in the prison should outweigh any consideration based upon the risk the prisoner presents upon release. If, however, the decision-maker reaches the conclusion, on proper grounds based on an overall assessment of the prisoner’s conduct in prison viewed in the light of his past behaviour, that the risk to the community goes beyond what is acceptable then I should regard that as a matter relevant to the decision. The release of a prisoner without supervision before the end of the term of imprisonment decided upon by a court as appropriate is a serious matter. It will in many cases be a legitimate reward for good behaviour by one who has apparently turned over a new leaf. In other cases, however, it may be a matter of deep concern for the safety of the community. Accepting as I do that a remission of sentence is not a right but a privilege, that the respondent has a discretion in the matter, and that, as Williams J. put it, “overriding considerations” may be relevant to the exercise of the discretion, I cannot agree that such a conspicuously possible consequence of release as the risk to the community could be regarded as irrelevant to the decision. Good conduct and industry will take the prisoner to the prison gate, but permission to pass through it may legitimately be withheld if that decision is based upon proper considerations. A report by a psychologist based on observations of the prisoner in prison and knowledge of his history, as in this case, could well provide the decision-maker with the proper basis for refusing to grant a remission.
I wish to add four further comments. First, while there are no doubt many opportunities for bad conduct and lack of industry in prison, the standard required to establish good conduct and industry does not appear to be a particularly rigorous one. Achieving that standard will, nevertheless, in most cases be a sufficient justification for the granting of a remission, but in some cases it should not be the end of the matter. Secondly, there was no complaint in this case that the appellant was denied procedural fairness. Thirdly, it is well established that a public body endowed with a statutory discretion may legitimately adopt general rules or principles of policy to guide itself as to the manner of exercising its own discretion in individual cases, provided that such rules or principles are legally relevant to the exercise of its powers, consistent with the purpose of the enabling legislation and not arbitrary, capricious or unjust. It must not, however, disable itself from exercising a genuine discretion in a particular case directly involving individual interests; it must be prepared to consider making an exception to the general rule if the circumstances of the case warrant special treatment: Halsbury’s Laws of England, 4th ed. reissue, vol (1) 1989, para. 32, p. 38. In my view the respondent’s administration guideline and its delegate’s decision in relation to the appellant did not offend those principles. It may be that the third paragraph of the guideline was inspired by the passage in Williams J.’s judgment in Felton v. Queensland Corrective Services Commission I have quoted. If so it has failed to incorporate his Honour’s point: the positive satisfaction to which he referred was of “overriding considerations” not the affording of procedural fairness. But, reading the guideline as a whole, I conclude it is consistent with Williams J.’s analysis, with which I respectfully agree. Fourthly, I think it too narrow a construction to put upon the delegate’s decision to conclude that it rested upon the bare risk of the appellant’s reoffending. As I read the papers the delegate’s line of reasoning was that because there was a high risk of the appellant’s reoffending - i.e., committing another serious offence of the kind for which he was imprisoned - he posed an unacceptable risk to the community if released without supervision. Since the offence for which he was imprisoned could properly be seen as one involving the risk of inflicting serious physical harm on a child, the risk of release without supervision could also be regarded as one of serious physical harm to another victim or victims. In reaching his decision in that way the delegate acted in accordance with the terms of the instrument of delegation, in my opinion.
In the result I find myself also in respectful agreement with the learned primary judge. I too am not satisfied that any irrelevant consideration was taken into account in refusing the appellant the remission he sought. That conclusion is sufficient to dispose of the first ground upon which the appellant sought a statutory order of review and of the appeal, which should be dismissed with costs.