R v Bjorland[2006] QDC 61

DISTRICT COURT OF QUEENSLAND

1. [1]
   On 16 November 2004, the applicant was convicted, on his own plea of guilty, of one count of attempted armed robbery.  He was sentenced, on that day, to 4½ years’ imprisonment, with a recommendation that he be considered for ‘parole’ at the expiration of 18 months.  There was a declaration as to the 392 days of pre-sentence custody. 

2. [2]
   The applicant was first considered for early post-prison community-based release in May 2005.  A letter from the Brisbane Regional Community Corrections Board (the ‘Board’), dated 19 May 2005, records that the application was considered at a meeting held on 5 May 2005, but was refused.  The following reasons were given for that refusal:

“(1)Your classification is described as medium. Ministerial Guideline 2.2 indicates that post prison community based release should only be considered where a low or open classification applies;

2. (2)
   Your RNI score is medium – 24. This indicates a serious risk to the community and a serious risk of re-offending;

3. (3)
   Your failure to complete the recommended transition program;

4. (4)
   Outstanding treatment recommendations regarding your mental health;

5. (5)
   A perceived lack of adequate community support in your proposed release plan, including a lack of appropriate accommodation;

6. (6)
   Inadequate relapse prevention plan including under-developed strategies for managing contact with previous associates.”

3. [3]
   The letter went on to advise the applicant that:

“Although you received a judicial recommendation for early release, members of the board were of the opinion that a number at least of the matters referred to above would not have been within the knowledge of the sentencing Judge at the time of sentencing.

All of the matters mentioned above led the board to the view that your application for release back into the community at this time is inappropriate, particularly in view of your risk of re-offending.

In reaching this decision the members of the board took careful account of all the issues raised by you in your written application and your oral representations.  Consideration was also given to all relevant file material, including, but not limited to the Assessment Unit Report, details of your offences, the Judge’s Sentencing Remarks and your official criminal history.”

4. [4]
   The Assessment Unit Report contained the following observations in the “Summary and Evaluation” section:

“In sentencing the applicant, his Honour Skoien J recommended he be considered for early release after serving eighteen months.  In support of this recommendation, Mr Bjorland has demonstrated appropriate responsibility and victim empathy, developed a reasonably adequate relapse prevention plan, has demonstrated appropriate institutional behaviour and will have psychiatric treatment organised for him prior to his release.

Mr Bjorland currently maintains a medium security classification.  However, it is noted he has a recommendation for early release (guideline 2.3).  Despite this, there are a number of factors which were not before the Court at the time this recommendation was made, which suggest an inappropriateness of releasing the applicant at this time, and allowing the Board to depart from the recommendation pursuant to s 139 of the Corrective Services Act 2000.  These include outstanding treatment recommendations, under-developed strategies for managing contact with previous associates (as per his verbal reports) and a lack of appropriate accommodation upon his release (guidelines 2.2, 2.3 and 2.10).

It is acknowledged that the paucity of Mr Bjorland’s strategies for dealing with poor associates may be in part, due to expressive difficulties associated with his schizophrenia which, in itself, may hinder further improvement in his relapse prevention plan and strategies.  Nonetheless, it is considered that there is still sufficient time for Mr Bjorland to engage in a gradual reintegration under strict supervision and guidance.  This would appear imperative in Mr Bjorland’s case in light of his psychiatric illness and the lack of pro-social support in the community (guideline 2.9).”

5. [5]
   The Assessment Unit Report went on to recommend that Mr Bjorland’s application be declined “primarily on the basis of his accommodation problems and the need to complete the transition program.”  It was recommended that, prior to re-applying, Mr Bjorland aim to lower his classification, complete the transition program and locate alternative accommodation.  It was also suggested that a psychiatric report be requested by the Board.

6. [6]
   Clause 2.3 of the guidelines provided that:

“Ordinarily, a prisoner should achieve a low or open security classification prior to approval for post-prison community-based release.  Exceptionally though, at the board’s discretion, a prisoner may be approved for post-prison community-based release where –

1. (a)
   a recommendation for early parole has been made by a Court; or
2. (b)
   emergent serious medical issues have been identified.

In every decision of this nature, the level of risk to the community should be the over-riding consideration.  However, the board should depart from giving effect to a recommendation made by the Court that sentenced the prisoner only where the board –

1. (a)
   receives information about the prisoner that was not before the Court at the time of re-sentencing; and
2. (b)
   after considering the information, considers that the prisoner is not suitable for release at the time recommended by the Court.”

7. [7]
   The applicant now asks the Court to re-open the sentence, pursuant to s 188(1)(c) of the Penalties and Sentences Act, on the basis that the sentence was decided “on a clear factual error of substance.”

8. [8]
   That an application for early post-prison community-based release is declined does not, of itself, establish a “clear factual error of substance” (see R v Cassar ex parte AG [2002] 1 QdR 338, R v Duong [2004] QCA 164).  The recommendation of the learned sentencing Judge was that the applicant “be considered” for early post-prison community-based release.  On the face of the material, his application was capable of being and was in fact, considered.  That it was refused does not lead to the conclusion that the learned sentencing Judge acted on a clear factual error of substance.

9. [9]
   The applicant placed reliance on the decision in R v Mackenzie [2002] 1 QdR 410  in which the applicant was successful in having the Court of Appeal reopen and reduce her original sentence, of eight years’ imprisonment with a recommendation after three years, to a sentence of five years with a recommendation after one.  She was not however, granted parole after one year.  At the time her application was considered, she had a medium security classification and it had not been possible for her, in the time, to achieve a lower classification.  The Board’s refusal of her application was on the basis that her classification was “too high to allow the parole board to approve of release to the community.” 

10. [10]
    The Court of Appeal re-opened its sentence under s 188(1)(c).  In doing so however, it was emphasised that the case was one which turned on its own special facts and that it was not appropriate to re-open a sentence merely because a judicial recommendation for parole was not subsequently followed by the Board^[1]. 

11. [11]
    The critical factor in Mackenzie was that the Court had made a recommendation which “simply could or would not be implemented by those charged with the subsequent supervision of the applicant.”  The factual error, at the time of sentencing, was that the recommendation “could be, even if it might not be given effect to^[2]” or “would be at least capable of receiving effect”^[3].  Subsequently, in R v Duong (supra), the President, in distinguishing R v Mackenzie, identified the clear factual error of substance in Mackenzie as that the Court “when it re-sentenced, was not aware that its early recommendation for release on parole could not be effected because there was no scheduled review of Mackenzie’s sentence before her release date.”

12. [12]
    Mr Bjorland submits that, as in Mackenzie’s case, the recommendation was “inoperable” or “impossible for him to achieve.”  That is said to be so because, through no fault of his own, he was not offered the opportunity to complete the recommended transition program and was unable to achieve a low or open classification prior to the consideration of his application on 5 May 2005.  Further, it was said that all prisoners are subject to an offenders risk inventory (ORNI) when sentenced.  This, it was said, never changes and plays a not insignificant role in the deliberations of the Board.

13. [13]
    Insofar as completion of the transition program is concerned, it appears that an offender management plan was developed for the applicant following his review by a psychologist on 10 December 2004.  That plan recommended that he complete four programs, of which the transition program was the last.  Mr Bjorland made two written requests, dated 7 and 9 March 2005, to undertake the transition program, but had not been enrolled at that time because he was still completing the programs which were higher in order of priority.  He did not commence the transition program until 23 May 2005.

14. [14]
    The Crown submitted that, unlike in Mackenzie’s case, it was, at the time of sentencing, possible for the applicant to undertake the transitions program before his parole hearing. The applicant’s inability to complete the program in time for the hearing of his application arose by reason of the multi staged nature of the management plan, which was created subsequent to the sentence. It is unnecessary for me to reach a conclusion as to whether that is a valid ground for distinction since, in my view, the applicant has not demonstrated a clear factual error of substance even if it is accepted that it was impossible for him to undertake the course.

15. [15]
    The principal difficulty for the applicant, in seeking to rely on Mackenzie’s case, lies in demonstrating that, as in Mackenzie, the recommendation for parole was incapable of receiving effect, such that it was not one which could be, even if it might not be, given effect to. 

16. [16]
    While the reasons for refusal, set out in the board’s letter of 19 May 2005, list the application’s classification, RNI score and failure to complete the recommended transitions program as factors that were taken into account in refusing the application, the letter does not establish that they were the only factors or that they were factors which disentitled the applicant from a consideration of his application or rendered it futile from the outset. I note that the reference, in the Board’s letter, to clause 2.2 of the guidelines appears to be erroneous. The applicable guidelines do not suggest that the applicant’s classification was a bar to his application and the Board’s letter does not establish that it was treated as such. Even if the Board made an error in that regard, it would not establish that the recommendation of the learned sentencing judge was made on a clear factual error of substance.

17. [17]
    The letter lists three other reasons for refusal, including outstanding treatment recommendations regarding the applicant’s mental health and a perceived lack of adequate community support (which assumed some significance in the Assessment Unit Report).  Further, the letter, on its face, suggests that the Board’s decision was one which involved an overall assessment of both positive and negative factors. 

18. [18]
    While the letter states that the application for release was inappropriate “particularly in view of your risk of re-offending,” the letter does not establish that there was a disentitling factor which, from the time the recommendation was made by the learned sentencing judge, rendered it incapable of receiving effect. 

19. [19]
    The factors upon which the applicant relies might mean that, at the time he was sentenced, he had a reduced prospect of receiving early post-prison community-based release, compared with what his prospects would have been, but for those factors.  However, I do not consider that is sufficient to establish that there was, at the time of sentencing, an impossibility of him receiving early post-prison community-based release or that the sentencing Judge proceeded on a clear factual error of substance.  The application will therefore be refused.

20. [20]
    It might be noted that, even if the Court’s jurisdiction to re-open the sentence was enlivened, I would not have varied the sentence in the ways requested by the applicant.  The applicant did not seek to disturb the head sentence.  Initially, he requested a sentence of 4½ years’ imprisonment, suspended after two years, with a probation period of one year.  In R v Hood [2005] 2 QdR 54 the Court of Appeal determined that a sentencing Court was authorised to impose a combination of a term of imprisonment followed by probation for one offence and a suspended term of imprisonment for another offence.  The difficulty in this case is that there is only one offence.  R v Hood does not appear to authorise a combination of a suspended term of imprisonment and probation in relation to a single offence. 

21. [21]
    The applicant next sought a sentence of 4½ years’ imprisonment suspended after two years, however that would not be an appropriate sentencing option in this case. As his counsel said at the time of sentencing:

“I don’t submit that this is a case where a partially suspended sentence would be appropriate.  He clearly needs the ongoing support that parole can provide him…”

22. [22]
    I am conscious that the applicant remains in custody some 10 months after he was first considered for early post-prison community-based release. That is a matter of some concern. I am not however, sitting as the Board considering an application for post-prison community-based release, nor am I considering an appeal or an application to judicially review the Board’s decision. The application before me is to reopen the sentence pursuant to s 188(1)(c). The condition precedent to the exercise of that power has not been established.