The Queen v P[2005] QDC 331

DISTRICT COURT OF QUEENSLAND

Introduction

1. [1]
   The applicant, P, pleaded guilty to some 24 counts of unlawful carnal knowledge of a girl under 17 years, indecent assault on a female, indecent treatment of a girl under 16 or 17 years and attempted incest. He received a head sentence of six years on 19 February 2003.

2. [2]
   The sentencing judge gave due recognition to the pleas of guilty, no previous convictions and the fact that the applicant had saved the complainants from the trauma of giving evidence and recommended Post-Prison Community Based Release (“PPCBR”) after two years.^[1]   In effect this meant that the applicant was eligible to be considered for release on 18 February 2005.  The applicant is still in prison.  His conduct in prison has been exemplary.^[2]

3. [3]
   The present application seeks to have the sentence re-opened as it is contended that when his honour imposed the sentence, he acted “on a factual error of substance”.^[3] The factual error was identified as:

“14.1   the assumption that his recommendation for PPCBR after 2 years would at least be capable of receiving effect; or

2.               the assumption that the Department of Corrective Services would make  available to the applicant, in a timely way and in any event prior to the               expiration of 2 years, the courses necessary for him to complete before the               Community Corrections Board would (as it is entitled to do) consider he               had fully addressed his offending behaviour by undertaking and completing               the Sexual Offenders Treatment Program and thereby admit him to               PPCBR.”^[4]

4. [4]
   The present application should have been filed within 28 days but the Crown does not seek to oppose the application on that basis. Given the circumstances outlined, it would be appropriate to grant leave pursuant to s 188(5)(b)(ii). The reason for this is that the applicant was on his argument not aware of the error until the West Moreton Regional Corrections Board (the ”Board”) gave its reasons for refusing early release. The reasons were received on 12 September 2005.^[5]

Reasons for refusing to accept recommendation for PPCBR

5. [5]
   In its reasons, the Board stated^[6]:

‘The fact that the prisoner had not fully addressed his offending behaviour by undertaking and completing programs recommended to him and in particular the Sex Offenders Treatment Program (the ”Program”) that he had cognitive distortions and minimised his offending were issues that were not before the Sentencing Judge at the time that he made his recommendation for early consideration of Post-Prison Community Based Release.

On this basis the Board was of the view that it was justified in refusing the prisoner’s application for a Post-Prison Community Based Release Order despite the recommendations made by the Sentencing Judge, by virtue of the provisions of section 139 of the “Corrective Services Act 2000.“

Background facts

6. [6]
   In the written submissions^[7] counsel for the applicant stated that the said Program has not been completed as it was not made available to the applicant in a timely way and then listed  a convenient chronology which was not disputed by the Crown and  which is as follows:

1. He was referred to it on 21 July 2003 but no positions were available on it;
2. He reminded his gaolers again in August 2004 that he still hadn’t been offered a place and he wanted to speak with someone who would tell him when he could expect to be given a place and was simply told that prisoners were given priority of placement on the program according to their PPCBR date;
3. By 18 February 2005, his PPCBR date, he hadn’t been offered a place, not through any fault of his own;
4. By 21 July 2005, the date upon which the Board finally determined his application for PPCBR, he hadn’t been offered a place, he being finally offered a place and commencing the program on 19 September 2005, at a date by which he had served, in an exemplary way, 2 years 7 months in custody.  The Course is called the “Moderate Intensity Sex Offender Program”.  It will take some 5 months to complete after which there will have to be an exit report prepared and then an application for parole made.  Bearing in mind that it took the West Moreton Community Corrections Board from 17 November 2004 to 1 March 2005 (3 and 1/2 months) to consider his first application we would not expect his application for parole to be even considered until June 2006 by which stage he would have served 3 years 4 months in custody (i.e. 1 year 4 months) more then that recommended by the Learned Sentencing Judge, through no fault of his own simply through the fault of the Department of Corrective Services in not making any appropriate course available for him to complete in a timely way.

Principles applicable on an application under s 188(1)(c)

7. [7]
   The leading case of R v Cassar; ex parte Attorney-General^[8]  was referred to:

‘It is so obvious it should go without saying, in any event, that it does not follow that because a sentencing judge’s expectation as to parole is not fulfilled, the sentencing process must be taken to have been affected by error – factual or otherwise.  Judges’ recommendations as to parole are not, and never have been binding in the sense that the executive must implement them, although of course they should be accorded appropriate weight.’

Also^[9]:

‘Attempts to review sentences, in light of subsequent events, by resort to a creative, non-literal construction of s 188 must be strongly discouraged.  The section must not be used as an avenue for the judicial review of administrative decisions.  Sentences are reviewed through the appeal process, not by means of this provision, which is in the nature of a “slip rule”, to be used in the exceptional, limited circumstances to which in precise terms it refers.’

Applicant’s submissions

8. [8]
   In argument it was suggested to the applicant’s counsel that judicial review may have been more appropriate. It was conceded that an application under the Judicial Review Act 1991 (Qld) had no prospects of success.  It was submitted that the present application was not made “merely because the Judge’s expectation or indeed the Applicant’s expectation to be granted PPBCR is disappointed”^[10].  In identifying the error, the applicant relies on the “assumption” that the recommendation “would at least be capable of receiving effect”.  At the time of the order such an assumption could be made.  “Assume” means to take for granted, accept arbitrarily or tentatively^[11].  The word “expectation” means the act of looking forward with anticipation.  It can also mean assumption or supposition^[12].  In interpreting the words “assumption” or “expectation” in the present case, no significant difference can be gleaned. 

9. [9]
   A case relied upon by the applicant was R v Mackenzie^[13].  The applicant in that case was successful on appeal in having her sentence reduced to five years with a recommendation for parole after one year.  However, she was unable to achieve a low or open security classification which would have allowed the Parole Board to approve her early release.  The delay in having her appeal disposed of was a factor which delayed the applicant’s participation in programs and so reduce her classification.  The observations of McMurdo P are illustrative:

‘Had the applicant’s lawyers known of her security classification and the consequence that it was extremely unlikely that she would be able to achieve timely parole, they would have requested the Court to consider imposing a suspended sentence.  Like Dutney J., had I known these facts, I may well have imposed a suspended sentence instead of making a recommendation for early parole.  Although the question is finely balanced, I am finally persuaded that the sentence imposed by this Court on 11 August 2000 was decided on a clear factual error of substance and accordingly under s 188(1)(c) Penalties and Sentences Act 1992 this Court may re-open the applicant’s sentencing proceedings.  I stress this case turns very much on its own special facts;  it is not appropriate to re-open a sentence under that section merely because a judicial recommendation for parole is not subsequently followed by the Community Corrections Board.’

10. [10]
    At the time that the present applicant was sentenced, it has not been shown that involvement in the Program for sexual offenders was “highly unlikely”. In other words, there has been no error shown for the sentencing judge to act on the expectation that the recommendation for parole after two years was capable of receiving effect. Alternatively, the learned sentencing judge was not in error in acting on the expectation that Corrective Services would act in a timely way prior to the expiration of two years and place the applicant in the Program^[14].  The case of R v Mackenzie should be confined to its facts.^[15]

11. [11]
    There may be administrative matters which prevent a prisoner from completing a particular program. The letter from Wolston Correctional Centre dated 21 July 2003^[16] refers to other factors which can change over a period of time and which may affect the applicant’s position on the waiting list.   Whatever criteria is relied upon in exercising the discretion as to whether a particular prisoner should be place in a particular program cannot then amount to an error by the sentencing judge.  The expectations of the sentencing judge in the present case were capable of receiving effect. 

12. [12]
    In R v Abbott^[17], Mackenzie J. discusses the various cases where thee has been a re-opening of the sentence.  His honour was concerned with a reliance by the sentencing judge on the existence of power for the Community Corrections Board to grant parole again with respect to the original two sentences.  His honour held that this was not a “factual error”.  Cases such as R v Hodzic and R v Mitchell which were discussed by Mackenzie J. were concerned with the lack of knowledge of the trial judge as to what security classification the prisoner would receive on incarceration.  Had that fact been known, then it would not have been practical for the prisoner to be released within the time recommended.  In fact, on appeal by way of judicial review , the decision of Hodzic’s case at first instance  was referred to and seemed to relate only to the security classification. (Hodzic v Brisbane Regional Community Corrections Board^[18])  The application for judicial review was refused.  The present case is not one of classification but rather the failure of the Department of Corrective Services to expedite the placement of the applicant into the Program. 

13. [13]
    Two other cases relied upon by the applicant were R v Duong^[19] and  R v Voss; ex parte Attorney -General (Qld)^[20].  In Duong’s case the applicant was required by Corrective Services to undertake a number of courses to address his offending behaviour  and to demonstrate that he was a suitable person to be allowed back into the community.  The length of the courses and their availability meant that it was not practicable to complete them within the time.  The court held that there was not a “clear error of fact of substance”.  As with the present case, the applicant had spent further period of 20 months over and above the recommended period before PPCBR in prison. The Court of Appeal applied R v Cassar^[21].  R v Voss was concerned with the question of presentence custody and is of no assistance in the present case save that the court affirmed the requirement that it was necessary in the proper exercise of jurisdiction under s 188(1)(c) that an error of fact made by the sentencing court is at the time when the sentence is imposed^[22].

Conclusions

14. [14]
    The present decision to refuse to open the sentence is harsh for the applicant. However, the courts cannot transgress to review administrative decisions other than by way of judicial review. The Penalties and Sentences Act could be amended to allow such a re-opening if there is unreasonable delay by the Department of Corrective Services in giving practical effect to an order of the court. Alternatively, the Judicial Review Act 1991 could be amended to challenge any decision which may unduly delay the entry of a prisoner into an appropriate Program. The present failure by the Department of Corrective Services to put the applicant into a Program in a timely way does not amount to “a clear factual error of substance” by the sentencing judge within the meaning of s 188(1)(c) of the Penalties and Sentences Act 1992.

Order

The application to re-open the sentence imposed on the applicant on 19 February 2003 is refused.