Woods v The Chief Executive, Department of Corrective Services
[2007] QCA 265
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- Appeal Determined (QCA)
- Woods v The Chief Executive, Department of Corrective Services[2007] QCA 265
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Woods v The Chief Executive, Department of Corrective Services[2007] QCA 265
Woods v The Chief Executive, Department of Corrective Services[2007] QCA 265
SUPREME COURT OF QUEENSLAND
PARTIES: | MARK WILLIAM WOODS |
FILE NO/S: | SC No 2903 of 2006 |
Court of Appeal | |
PROCEEDING: | Application for Leave/Judicial Review |
ORIGINATING COURT: | |
DELIVERED ON: | 17 August 2007 |
DELIVERED AT: | Brisbane |
HEARING DATE: | 30 July 2007 |
JUDGES: | Jerrard and Keane JJA and Atkinson J Separate reasons for judgment of each member of the Court, each concurring as to the order made |
ORDER: | 1. Appeal dismissed2. Appellant to pay respondent's costs of the appeal |
CATCHWORDS: | ADMINISTRATIVE LAW – JUDICIAL REVIEW – GROUNDS OF REVIEW – GENERALLY – where respondent refused appellant's application for remission pursuant to s 75 Corrective Services Act 2000 (Qld) – where respondent was not satisfied that appellant did not pose an unacceptable risk to community – whether respondent's decision reviewable on grounds of unreasonableness – whether respondent's decision reviewable on grounds that respondent failed to take into account relevant considerations Corrective Services Act 2000 (Qld), s 75, s 77 Attorney-General (NSW) v Quin (1990) 170 CLR 1, applied Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223, considered Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611, considered Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 (2003) 77 ALJR 1165, considered Weribone v Chief Executive, Department of Corrective Services [2007] QSC 129; SC 1825 of 2007, 5 June 2007, distinguished |
COUNSEL: | The appellant appeared on his own behalf M J Burns for the respondent |
SOLICITORS: | The appellant appeared on his own behalf Crown Law for the respondent |
[1] JERRARD JA: In this appeal I have read the reasons for judgment of Keane JA, and respectfully agree with those and with the orders proposed by His Honour.
[2] The submissions Mr Woods made on appeal consistently overlooked that he had not put forward to the decision maker, or to any court, any realistic plans or description of how he would lawfully support and care for himself when released from custody. His inconsistent accounts over time reveal only that he has an unknown level of support in the community, and has made claims about his pre-incarceration income which are difficult to believe, and which are inconsistent with other information. He was convicted in December 2000 of the serious offences of robbery whilst armed, breaking and entering, and deprivation of liberty; and sentenced to eight years imprisonment. When he was later sentenced in June 2001 for arson, false pretences, and fraud (offences committed well after the armed robbery), he received a relatively short term of concurrent imprisonment, no doubt to reflect the assistance he had given by then to investigating authorities in other matters. He relies now on some of that same assistance to argue for remission of his sentence, but was unable to satisfy the decision maker that releasing him did not pose an unacceptable risk to the community.
[3] What Mr Woods’ material reveals is that, although he has not applied for parole, he would greatly benefit from supervision and assistance when returned to the community.
[4] KEANE JA: On 8 December 2000, the appellant was sentenced to eight years imprisonment for a number of offences, the most serious of which was armed robbery. On 24 July 2006, the delegate of the respondent refused the appellant's application for remission of part of the appellant's sentence pursuant to s 75 of the Corrective Services Act 2000 (Qld) ("the Act").[1]
[5] The appellant sought judicial review of the respondent's decision. On 6 December 2006, the learned primary judge dismissed the appellant's application for judicial review of the respondent's decision not to remit any part of the appellant's sentence. The appellant now appeals to this Court.
[6] In order to understand the issues which have arisen between the parties on their way to this Court, it is necessary to understand the relevant provisions of the Act. I will, therefore, set these provisions out. I will then summarise the reasons for the respondent's decision and the reasons of the learned primary judge for dismissing the appellant's application for judicial review. I will then discuss the arguments raised on the appeal.
The Act
[7] Section 75 of the Act provided relevantly as follows:
"(2) Subject to subsections (3) and (4), the chief executive may grant remission of up to one-third of the term of imprisonment if satisfied—
(a) that the prisoner's discharge does not pose an unacceptable risk to the community; and
(b) that the prisoner has been of good conduct and industry; and
(c) of anything else prescribed under a regulation.
(3) If, before the chief executive has granted remission, the prisoner is charged with an offence allegedly committed during the term of imprisonment, the chief executive must not grant remission until after the charge is decided.
(4) If the prisoner is convicted of any offence committed during the term of imprisonment, the chief executive may grant remission of up to one-third of the balance of the term after the offence was committed if satisfied—
(a) that the prisoner's discharge does not pose an unacceptable risk to the community; and
(b) that the prisoner has been of good conduct and industry since the offence was committed; and
(c) of anything else prescribed under a regulation."
[8] Section 77 of the Act provided as follows:
"In deciding whether a prisoner's discharge or release poses an unacceptable risk to the community, the chief executive must consider, but is not limited to considering, the following—
(a) the possibility of the prisoner committing further offences;
(b) the risk of physical or psychological harm to a member of the community and the degree of risk;
(c) the prisoner's past offences and any patterns of offending;
(d) whether the circumstances of the offence or offences for which the prisoner was convicted were exceptional when compared with the majority of offences committed of that kind;
(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) any remarks made by the sentencing court;
(g) any medical or psychological report relating to the prisoner;
(h) any behavioural report relating to the prisoner;
(i) anything else prescribed under a regulation."
The respondent's decision
[9] In the decision of 24 July 2006, it was accepted by the respondent that, for the purposes of s 75(2) of the Act, the appellant has been of good conduct and industry. There was, however, before the respondent a psychological report of 26 April 2006 which expressed the view that although "the overall re-offence risk appears to be low", it was thought to be the case that "a return to substance abuse or high stress situations with secondary parties reliant on his assistance would substantially exacerbate the likelihood of re-offending". The report went on:
"High risk situations that may increase the likelihood of Offender Woods returning to criminal activities may include living in a home environment where conflict is high or where associates may lead him to drug use. It is noted that Offender Woods has not addressed the specifics of these situations in his relapse prevention plan and appears to rely completely on avoiding situations."
[10] The authors of the report expressed the view that the appellant "may be a suitable candidate for remissions", but expressed this reservation:
"The only reservation to this recommendation would be that given Offender Woods declined the opportunity to participate in an extensive interview, the ability to assess his current attitude to his offending behaviour, to assess his current neuropsychological functioning, and to formally assess his risk of recidivism to the community could not be carried out. Therefore any consideration to grant Offender Woods remission should take into consideration the extent, stability and generalisability [sic] of Offender Woods' psychological and behavioural changes, any presenting cognitive distortions and his attempts to address these distortions."
[11] The respondent's decision of 24 July 2006 was in the following terms:
"Decision:Not Approved.
Reason:
In accordance with section 75 of the Corrective Services Act 2000, consideration has been given to the grant of remission in relation to charge 1, an 8 year term of imprisonment.
I note that you have provided responses in letters dated 20 June 2006, 3 July 2006, and 12 July 2006, and I have considered all of the points that you have raised in the correspondence. When considering the granting of remission, risk to the community is the primary obligation. I have noted the serious nature of your offending, your criminal history, the comments of the Sentencing Judge, the comments of the Court of Appeal, and the escalation of your offending behaviour.
I was satisfied that your conduct and industry has been of a satisfactory standard.
After considering all factors, I consider the risk to the community to be unacceptable in accordance with section 75 of the Corrective Services Act 2000."
[12] On 15 August 2006, the appellant sought a statement of the decision-maker's reasons. The statement of reasons was dated 5 October 2006. In that statement of reasons, the decision-maker reviewed the information which was before him, and concluded his reasons with the following observations:
"The nature of the offences committed by you suggest that were you to re-offend, the risk of psychological or physical harm to a member of the community would be high. Remarks made by the Sentencing Judge at the time of sentencing stated 'You are not the slightest bit sorry for the deprivation of liberty of those two good citizens. It was a well planned robbery. You were suitable masked and gloved and you had a gun which you pointed and made appropriate threats. The offence of armed robbery and associated offences was by a nasty bit of work indeed'.
Whilst you have stated that you pose no threat to the community, you would not submit to testing by a Wolston Correctional Centre psychologist in April 2006, which would have assessed your current attitude to your offending behaviour, current neuropsychological functioning, and formally assess your risk of recidivism to the community. Your actions have deprived me of the benefit of an accurate current psychological assessment of your level of risk.
Contradictory statements exist in relation to the level of family support you may enjoy upon release. A Senior Psychologist's report of 4 October 2002 states:- 'Prisoner Woods reported that he has no external support, stating that he divorced his wife and told his children that he does not want to have contact with them'.
An Offender Risk Needs Inventory (Revised) verified on 26 April 2005 states:- 'Mr Woods disclosed that he had support from family members and his partner post release'.
A Psychological Report dated 12 October 2005 states under 'Current Social Support Network':- 'Mr Woods reported that he has support from all of his children and his ex-wives. He stated that his children do not visit him regularly in prison; however he has contact with them through letters and phone calls'.
Numerous statements by the sentencing Judge and the Judges of the Court of Appeal suggest to me that it would be unwise to place significant weight upon any unsupported statements by yourself.
…
Based on the contradictory statements, and having given consideration to the comments of the sentencing and appeal court Judges, I cannot place any confidence in your unsupported statements.
I noted that at your committal proceedings, you entered pleas of guilty yet in the District Court, sought (and obtained) an order setting aside those pleas. You took the matter to trial and your counsel, on instructions, cross-examined witnesses vigorously suggesting that they were lying or pursuing a vendetta against you. It is of course, undeniably your right to have the evidence against you tested by a trial. Yet whilst in custody you have acknowledged committing the offence. I was concerned that, coupled with your prior dishonest behaviour and observations by the sentencing Judge and your apparent continued misleading statements, increase the risk to the community compared to other offenders committing offences of that kind.
I considered a letter of comfort tendered on your behalf by Detective Senior Constable Mark Buchanan of the Queensland Police Service in which he outlined your assistance in an investigation of two (2) offenders charged with Armed Robbery.
I considered those factors in section 78 of the Act in determining whether I was satisfied that you had been of good conduct and industry.
I noted your employment history over the subject period was adequate, you had undertaken a number of educational programs and no breaches of regulations were recorded against you.
Upon reviewing factors relevant to this section (section 78 of the Corrective Services Act 2000), I decided I was satisfied that you had been of sufficiently good conduct and industry over the subject period.
After having considered all factors both positive and negative, I was not satisfied that your discharge did not pose an unacceptable risk to the community and therefore, decided to refuse you remission on your sentence on that basis."
[13] It may be noted that the "positive factors" referred to by the decision-maker included the circumstances that the appellant had been assessed as not being required to undertake a "violent offenders' program", had not committed criminal offences since 1993, and had assisted the police through his role as a registered police informant.
The learned primary judge's decision
[14] The learned primary judge, in holding that it was not open to him to set the respondent's decision aside on an application for judicial review, concluded as follows:
"The ultimate requirement in the present application is for Mr Woods to demonstrate to me that the decision reached by Mr Brown was so unreasonable that no reasonable person could have reached it. That is not quite the way that Mr Woods expressed it. He submitted that the decision-maker's conclusion, that he was an unacceptable risk to the community if released, was not based on logically probative material.
Whichever way I look at it, it seems to me that Mr Woods cannot succeed. It is not, I think, the position that the decision-maker concluded that Mr Woods was an unacceptable risk to the community. He concluded that he was not satisfied that Mr Woods was not an unacceptable risk to the community.
The double negative is important because it was a matter upon which he was required to be positively satisfied under the relevant legislation before the remissions could be granted.
For those reasons, I am unable to set aside the decision of the delegate of the Chief Executive. In my judgment, the applicant has not demonstrated that the decision was one which could not have been reached on the material by that delegate. Consequently, the application must be dismissed."
The arguments in this Court
[15] The appellant has not had, and does not have, the benefit of legal representation. Nevertheless, he presented his arguments with considerable confidence. Notwithstanding the appellant's confident presentation of his case, his notice of appeal and submissions were rambling and diffuse, making it difficult to identify a coherent statement of a legal error by the learned primary judge which would entitle the appellant to have his Honour's decision set aside. Importantly in this regard, it seemed at times during the course of the appellant's argument as if the gravamen of the appellant's complaint was that he had been denied an accrued and indefeasible entitlement to discharge after serving two-thirds of his sentence. To the extent that this was the appellant's position, this submission is misconceived: it is clear that the appellant could become entitled to discharge upon remissions only pursuant to s 75(2) of the Act.
[16] It is important to emphasise here that the power of the respondent to grant remissions under s 75 of the Act required that the respondent be affirmatively satisfied "that the prisoner's discharge does not pose an unacceptable risk to the community". The respondent's delegate was not able to be so satisfied on the material before him. It is also to be emphasised that judicial review is concerned, not with the merits of the decision, but whether it was lawfully made.[2] I am unable to see that the respondent's delegate erred in any way which might be corrected upon judicial review.
[17] The power to grant any remission arises under s 75 of the Act only if the respondent is satisfied that the appellant's discharge does not pose an unacceptable risk to the community. One of the appellant's arguments was that the learned primary judge erred in failing to conclude that the negative decision of the respondent's delegate was, in the words of Lord Greene MR in Associated Provincial Picture Houses Ltd v Wednesbury Corporation,[3] "so unreasonable that no reasonable authority could ever have come to it".
[18] If the discretion conferred by s 75(2) has not been enlivened at all, there can be nothing unreasonable about a refusal to exercise it in favour of the appellant. To the extent that the appellant seeks to rely upon "Wednesbury unreasonableness" in relation to the failure of the respondent's delegate to be satisfied that the appellant's discharge does not pose an unacceptable risk to the community, the appellant's argument fails to recognise that the decisions of the High Court in Minister for Immigration and Multicultural Affairs v Eshetu[4] and Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002[5] suggest that "Wednesbury unreasonableness" is confined to the improper exercise of a discretion, not with whether the findings of fact necessary to establish that the discretion has been enlivened were properly open on the information before the decision-maker.
[19] Even if the scope of "Wednesbury unreasonableness" were as broad as the appellant seeks to contend, the particular circumstances relied upon by the appellant, viz, that the offence of armed robbery was committed 17 years ago, and that he has since been a police informer who has provided the authorities with assistance over the years, do not necessarily exclude the possibility that he might, nevertheless, still pose an unacceptable risk to the community. In this regard, the appellant argues that the respondent's delegate erred in coming to his conclusion as to the nature and extent of the risk posed to the community by the discharge of the appellant by taking into account the aspects of the appellant's criminal history which were referred to in the delegate's reasons for his decision. But these factors plainly have some bearing on the rational assessment of the risk to the community posed by the discharge of the appellant: the relative weight to be attributed to these factors is a matter which the Act requires the respondent to assess. To put the point more precisely, it cannot be said that these considerations had so little bearing on the risk to the community posed by the discharge of the appellant as to be irrelevant to the respondent's decision whether he should be granted remissions.
[20] The appellant was convicted of armed robbery. That is a very serious offence: the maximum punishment prescribed by law is life imprisonment. The very fact that the appellant was convicted of this offence shows at least that the appellant has, at some time in the past, posed a serious risk to the community. While this circumstance might not be decisive against the appellant if considered alone, it cannot be said that it was a consideration of no relevance at all to the issue posed by the statute for the decision-maker. Equally, the views of judges involved in sentencing the appellant for his offences may rationally assist the decision-maker in forming his view of the fact on which the discretion depends: these are views of judicial officers in relation to the considerations which informed the decision, made on behalf of the community, that the appellant should be imprisoned for a substantial period. These views can be expected to shed some light on the appellant's character and the risks to which his discharge may expose the community.
[21] Uncertainty which attended the assessment of the extent of the risk meant that the decision-maker could not be satisfied that the risk was acceptable. It is apparent that the decision-maker was concerned by the appellant's failure more fully to cooperate with psychological assessment of the appellant. That concern was legitimate. The appellant argued that he declined to participate more fully in such assessments because he regarded them as inappropriate while the matter was sub iudice. While the appellant was not obliged to cooperate with further assessment, there was no real legal impediment to his doing so. However genuinely held his views as to the propriety of further assessment, there was, in truth, no legal reason why he could not cooperate with further attempts to resolve the uncertainties attending his risk assessment. In the end, the residual uncertainty relating to the extent of the risk to the community posed by the discharge of the appellant constituted a good reason why the decision-maker could not be satisfied that the risk was acceptable.
[22] The appellant also relied upon the decision of Chesterman J in Weribone v Chief Executive, Department of Corrective Services[6] where a decision under s 75(2) of the Act was set aside. The Chief Executive's decision in that case was held to be susceptible of review because the decision had been made on the basis of a policy of the Department rather than the merits of the particular case. There is no evidence that the decision in this case was so affected.
[23] The appellant argued for the general proposition that the policy of bringing offenders to justice outweighed any risk he might pose to the community, and that the decision-maker had failed to strike the balance between these competing claims accordingly. But it was no part of the decision-maker's function under s 75(2) of the Act to bring these broad considerations into balance. The matters for consideration by the decision-maker were those set out in the Act. The value of the appellant's contributions to law enforcement was not a consideration relevant to the decision required by the Act, save insofar as it might have had some bearing on the issues of fact posed by s 75(2) and s 77 of the Act. The appellant's attempt to rely upon considerations relevant to the sentencing of offenders was misconceived. The issue for the decision-maker was not whether the appellant should be sentenced to a term of imprisonment: the issue was whether he should be discharged before the term to which he has been sentenced has been served. That issue fell to be determined by reference to s 75(2) of the Act.
[24] Finally, the appellant argued that the respondent's delegate had failed to take into account a "letter of comfort" provided by Detective Senior Constable Buchanan of the Queensland Police Service vouching for the assistance provided by the appellant to police in a particular investigation. Reference to the excerpt from the reasons of the decision-maker set out at paragraph [12] above shows that this argument is incorrect.
[25] In summary then, it cannot be suggested that the respondent was bound, as a matter of law, to be satisfied on the material before him that the appellant's discharge would not pose an unacceptable risk to the community. There was material before the decision-maker that was apt to suggest that there is a risk that the appellant may return to violent offending. The extent of that risk was said to depend on his social environment after release. It was open to the decision-maker reasonably to proceed on the basis that the appellant might not be willing or able to ensure that he would avoid an inappropriate social environment. The decision-maker was not satisfied that the risk would be responsibly managed upon the appellant's discharge. On this basis, he could not be satisfied that the risk to the community was an acceptable one.
[26] The learned primary judge, when the matter came before him, recognised the limited nature of his function on judicial review. His Honour recognised that, while there was before the respondent's delegate material pointing towards a conclusion favourable to the appellant, it could not be said that this material made a failure to be satisfied in terms of s 75(2)(a) of the Act a matter of unlawful caprice on the part of the decision-maker. That is because, as his Honour recognised, the respondent's delegate was also entitled to take into account the material which was adverse to the appellant in coming to a conclusion on the issues posed for the respondent's decision by s 75(2) of the Act. The proper assessment of this competing material was a matter committed by law to the respondent's delegate, not to the learned primary judge or to this Court.
Conclusion and orders
[27] There is no basis on which the appeal can be sustained. The appeal should be dismissed.
[28] The appellant should pay the respondent's costs of the appeal.
[29] ATKINSON J: I agree with Keane JA that the appeal should be dismissed for the reasons given by His Honour.
Footnotes
[1] The Corrective Services Act 2006 (Qld) repealed the Corrective Services Act 2000 (Qld) with effect from 28 August 2006, but, because the appellant's application for remissions was commenced before that date, s 469 of the Corrective Services Act 2006 (Qld) required the application to be dealt with "as if [the 2006] Act had not been enacted".
[2] Cf Judicial Review Act 1991 (Qld), s 20 to s 24; Attorney-General (NSW) v Quin (1990) 170 CLR 1 at 35 – 36.
[3] [1948] 1 KB 223 at 230.
[4] (1999) 197 CLR 611 at 626.
[5] (2003) 77 ALJR 1165.
[6] [2007] QSC 129.