McQueen v Chief Executive, Department of Corrective Services
[2002] QSC 421
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- Unreported Judgment
- McQueen v Chief Executive, Department of Corrective Services[2002] QSC 421
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McQueen v Chief Executive, Department of Corrective Services[2002] QSC 421
McQueen v Chief Executive, Department of Corrective Services[2002] QSC 421
SUPREME COURT OF QUEENSLAND
PARTIES: | |
FILE NO: | |
Trial Division | |
PROCEEDING: | Application for a statutory order of review |
DELIVERED ON: | 13 December 2002 |
DELIVERED AT: | Brisbane |
HEARING DATE: | 2 December 2002 |
JUDGE: | Mullins J |
ORDER: | Application is dismissed |
CATCHWORDS: | ADMINISTRATIVE LAW - PRISONS - maximum security order issued - application for statutory order of review in respect of order - whether s 47(2)(b) Corrective Services Act 2000 (Q) was misconstrued - whether decision so unreasonable no reasonable person could make it - whether failure to take into account relevant considerations - whether decision took into account irrelevant considerations - past history of applicant and current conduct of applicant were taken into account in making decision as to currency of the matters in s47(2)(b)(ii) and (iii) - application dismissed Corrective Services Act 2000, s 47, s 48, s 189 Abbott v Chief Executive, Department of Corrective Services [2000] QSC 492 Kidd v Chief Executive, Department of Corrective Services [2000] QSC 405 Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611 |
COUNSEL: | B M Carter-Nicoll for the applicant J A Logan SC for the respondent |
SOLICITORS: | Prisoners’ Legal Service Inc for the applicant C W Lohe, Crown Solicitor for the respondent |
[1] MULLINS J: This is an application for a statutory order of review in respect of the decision of the respondent made 30 May 2002 to issue a new maximum security order for a period of six months in respect of the applicant. The decision was made pursuant to s 47 of the Corrective Services Act 2000 (“the Act”).
[2] The grounds given for making the order were that the applicant was currently classified into the security rating of maximum security and it was considered by reference to s 47(2)(b) of the Act, that:
“(ii)there is a high risk the prisoner will inflict death or serious injury on other prisoners or other persons with whom the prisoner may come into contact; and
(iii)generally, the prisoner is a substantial threat to the security or good order of the facility.”
Relevant facts
[3] The applicant is serving a life sentence for murder imposed in 1994, concurrent with sentences of 13 years and 3 years imposed earlier in 1994 for two counts of armed robbery and one count of unlawful use of a motor vehicle. The murder was committed whilst the applicant was in prison. The victim was another prisoner.
[4] The applicant was held in the maximum security unit at Woodford Correctional Centre for a continuous period of nearly 4 years from 12 August 1997 until 3 May 2001, when he was transferred to the maximum security unit at Arthur Gorrie Correctional Centre.
[5] When the applicant was in the maximum security unit at Woodford Correctional Centre, he was provided with an individual management plan which set out the objectives of the maximum security order. He swears to all of his individual management plans being similar to the one which is exhibit AM2 to his affidavit filed on 12 November 2002. He also exhibits as exhibit AM3 a copy of the individual management plan which was in effect at the time the maximum security order which is the subject of this application was issued. There are differences between exhibits AM2 and AM3.
[6] The applicant has been convicted of four offences since being convicted of murder in 1994. On 30 September 1994 he was convicted of wilful damage and sentenced to four months’ imprisonment. On 21 June 1995 he was convicted of being unlawfully at large and sentenced to 18 months’ imprisonment. He was sentenced to two months’ imprisonment on 21 December 1995 for failing to answer questions in court. He was sentenced to 18 months’ imprisonment on 24 September 1998 for two counts of assault and one count of wilful damage.
[7] The applicant has had two reviews of his maximum security orders by official visitors before the subject maximum security order was issued. Official visitor, Mr K J McGhee, in his report dated 21 August 2001 recommended that the applicant serve out his then current maximum security order until 30 November 2001, but that the applicant be informed that, if he continued to exhibit the reformed behaviour that he was then exhibiting, he would be transferred to an Arthur Gorrie Detention Unit where he would be returned to a mainstream unit at Arthur Gorrie for, say, two and, then, three and then, four hours per day, with that gradual detention unit controlled return to mainstream continuing for, say, four months, provided the applicant continued to exhibit reformed behaviour patterns, and that if the applicant continued to exhibit reformed behaviour patterns, he then be returned to supervised mainstream occupancy at Arthur Gorrie. In the course of his report Mr McGhee stated:
“I believe my recommended gradual return to Mainstream, if implemented and complied with satisfactorily by McQueen, could result in society regaining a useful person, especially if McQueen is made aware not only of possible advancement “in the system” but also of the consequences i.e. unlimited MSU occupancy, if he fails to continue to demonstrate reformed behaviour.”
[8] Official visitor, Ms P I Green, in her report dated 12 December 2001, though recommending that the maximum security order for the applicant be confirmed, commented:
“All staff reported that Mr McQueen is a settled, well-presented and well-mannered inmate. To date he has been a good influence in the unit.
Inmate McQueen has been a MSU prisoner for 4 years. Every six months his MSO is renewed through an unvaried process of written communication with the Office of Sentence Management.
The content is the same – only the dates change.
(Prisoners tell me these letters are distressing, depressing and offer little hope for the future.)”
[9] A maximum security order can be for a term not longer than six months. The procedure which the respondent must follow in order to make consecutive maximum security orders is set out in s 48 of the Act. It appears that the respondent did not comply with the timetable provided for in s 48(3) in relation to the making of the subject maximum security order, but no point is made of this lack of compliance.
[10] By letter dated 8 May 2002 from Mr Andrew Leese as the authorised delegate of the respondent, the applicant was informed that Mr Leese was considering whether to issue a new maximum security order on the expiry of the then current order on 31 May 2002. That letter set out the documents that the authorised delegate proposed to consider and drew attention to specific matters that could be relevant to his consideration including information submitted by staff that was favourable to the applicant. That letter stated, however:
“Even though some aspects of your behaviour are noteworthy, having regard to your long-term history of violent unlawful behaviour, including that you have been convicted of murder, which was committed whilst you were in custody, I hold the preliminary view that your risk and threat are still current.”
This letter requested the applicant to make submissions in regard to the issues identified by the authorised delegate as relevant considerations as part of the applicant’s response to the letter.
[11] The applicant’s solicitors responded on his behalf by letter dated 27 May 2002. One of the issues taken up in this response was that the list of incidents in the letter dated 8 May 2002, was misleading to the extent that some offences recorded as incidents were also the subject of conviction and therefore listed in the letter as offences and that at least one incident involved circumstances where the applicant was not involved in any wrongdoing. Attention was directed to the incident listed in the letter dated 8 May 2002 as occurring on 29 August 2000 and described as unauthorised items in a training exercise bag. The response on the applicant’s behalf advised that that involved the applicant having chess pieces in a training bag and the chess pieces were authorised as they were issued by the prison.
[12] By letter dated 30 May 2002 Mr Gavin White as the authorised delegate of the respondent advised the applicant of his decision to retain the applicant as a maximum security classified prisoner and to issue a new maximum security order for a period of six months, relying on the grounds set out in s 47(2)(b)(ii) and (iii) of the Act. It is apparent from the terms of this letter dated 30 May 2002 that Mr White took into account the submissions made by the applicant’s solicitors in their letter dated 27 May 2002. A statement of reasons dated 8 July 2002 in respect of the respondent’s decision made on 30 May 2002 was also provided to the applicant which expressly incorporated the letters dated 8, 24 and 30 May 2002 from the respondent to the applicant.
Ground for review
[13] The grounds that were argued on the application as supporting relief were:
(a) the respondent misconstrued s 47(2)(b) of the Act by failing to take into account at the date of the making of the decision the conduct of the applicant that was relevant to whether s 47(2)(b)(ii) or (iii) could apply;
(b) the decision of the respondent was so unreasonable that no reasonable person could have made it;
(c) the respondent failed properly to take into account the applicant’s conduct subsequent to his transfer to the Arthur Gorrie Correctional Centre;
(d) the respondent took into account irrelevant considerations which were identified in the applicant’s solicitors’ letter of 27 May 2002.
[14] The grounds on which the applicant was basing his application for a statutory order of review were expanded upon by the further and better particulars which were exhibit 4 on the application. Ultimately, however, the above summary of the grounds adequately reflects the approach taken on behalf of the applicant at the hearing of the application.
Construction of s 47(2)(b) of the Act
[15] Under s 47(2)(b) of the Act, the respondent may make the maximum security order only if the respondent considers, on reasonable grounds, that one or more of the matters set out in sub-paragraphs (i), (ii) or (iii) apply. As a matter of construction of that provision, the respondent must consider that one or more of those matters apply at the time of making the decision to make a maximum security order. The fact that those matters must then currently apply to support the decision was the approach followed by White J in Kidd v Chief Executive, Department of Corrective Services [2000] QSC 405 at paras [29] and [31] in dealing with an equivalent provision in the Corrective Services Act 1988. This approach was applied by Williams J (as he then was) in Abbott v Chief Executive, Department of Corrective Services [2000] QSC 492 (“Abbott”):
“[30]The judgment of White J in Kidd v Chief Executive, Department of Corrective Services ([2000] QSC 405, judgment 10 November 2000) makes it clear that the most important consideration is the “currency of the risk”. To justify the making of an order there must be reasonable grounds for considering that at that time there is a high risk the prisoner will escape or attempt to escape. That is the issue which must be addressed in the reasons. The recent conduct of the prisoner in question will always therefore be of critical importance. Whether recent acceptable conduct outweighs past aberrant behaviour will always be a matter for judgment, and the justification for arriving at the decision should be exposed in the reasons. Kidd’s case is clearly distinguishable on the facts but it affords a good illustration of a failure to have regard to critical issues in arriving at a decision to make a maximum security order.
[31]Counsel for the applicant is correct when he says that the applicant’s criminal history is something which occurred in the past and cannot be altered. The only change can be with respect to the applicant’s behaviour. To date the prison authorities have been prepared to acknowledge that his behaviour has been acceptable. A time must therefore arrive, if behaviour remains acceptable, when the past criminal history, including that of escape, will no longer be capable of reasonably dominating the decision making process.”
[16] The vice identified by the applicant in respect of the respondent’s construction of s 47(2)(b) of the Act is expressed in the applicant’s outline of arguments as follows:
“The Respondent misconstrued section 47(2)(b) of the Act in that in making the decision, the Respondent improperly exercised the power conferred on it in failing to take account (at the date of the making of the decision) the conduct of the Applicant, in particular the tests under section 47(2)(b) of “high risk” and “substantial threat.”
[17] It is apparent from the letter dated 30 May 2002 and statement of reasons dated 8 July 2002 that Mr White expressly took into account the recent conduct of the applicant and expressly observed in the statement of reasons:
“In making my decision I noted prisoner McQueen’s conduct and behaviour has recently been reported as acceptable.”
[18] It was submitted on behalf of the respondent that Mr White has engaged in a balancing exercise between past and present behaviour of the applicant, as envisaged in the passages quoted from Abbott.
[19] The applicant cannot show on the materials that were before me on this application that the respondent misconstrued s 47(2)(b) of the Act in the approach that was taken by the respondent to the decision making which involved taking into account the past history of the applicant, in addition to his current conduct, in order to evaluate the matters set out in s 47(2)(b) at the time of making the decision.
Reasonableness of decision
[20] The applicant submits that the respondent did not truly take into account the applicant’s reformed behaviour but gave undue weight to factors from the applicant’s past record.
[21] Ultimately Mr White was persuaded that the breach and incident history of the applicant resulted in the matters set out in sub-paras (ii) and (iii) of s 47(2)(b) of the Act still applying to the applicant. As highlighted by the decision in Abbott, a time must arrive when current acceptable behaviour of a prisoner displaces the past unacceptable behaviour. In this matter, it is a question whether that point has been reached in respect of making the subject maximum security order. It is a question of whether or not there are reasonable grounds to support the conclusion reached on behalf of the respondent that the decision maker was satisfied that the matters set out in sub-paras (ii) and (iii) of s 47(2)(b) of the Act still did apply to the applicant, when the decision was made on 30 May 2002.
[22] It is submitted on behalf of the respondent that Mr White made a value judgment as to his satisfaction of these matters and that it is not possible, as the evidence was not all one way, to show that no reasonable decision maker could have reached the state of satisfaction necessary in respect of those matters. Reliance was placed on the observation of Gummow J in Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611 at para 137.
[23] It is clear on the material that was before me that the evidence was not all one way and it could not be said that, as at 30 May 2002, the point had arrived where the past history of the applicant was no longer capable of displacing the current acceptable behaviour of the applicant. As foreshadowed in Abbott, if the applicant’s behaviour remains acceptable, the time when it does displace past history will arrive.
Failure to take into account applicant’s conduct from 3 May 2001
[24] The applicant’s complaint is that his behaviour at Arthur Gorrie Correctional Centre has been exemplary and there have been no incidents or breaches, since being placed in Arthur Gorrie and that the respondent has failed properly to take this into account. As set out above, the statement of reasons and the earlier letter of 30 May 2002 cannot be said to have overlooked the applicant’s recent conduct. What the applicant’s real complaint is about is the weight which has been given by the respondent to the applicant’s conduct since being transferred to the Arthur Gorrie Correctional Centre. For the same reasons that dispose of the unreasonableness ground, the applicant cannot succeed in this formulation of his complaint.
Irrelevant considerations
[25] Extensive submissions were made on behalf of the applicant at the hearing in respect of the listing of conduct in two places in the statement of reasons as an offence and as an incident resulting in what was described as double counting. It does not necessarily follow that the process adopted by Mr White of listing what was described as an incident as an offence with the punishment that had been imposed results in undue weight being placed on that incident. In any case the respondent was alerted to this and other complaints of the applicant about the matters set out in the letter dated 8 May 2002, before the respondent made the relevant decision and the respondent expressly took into account the matters raised by the applicant’s solicitors in their letter dated 27 May 2002 which alerted the respondent to these matters which the applicant submits should be treated as irrelevant considerations. In light of the respondent’s consideration of the matters raised in the applicant’s solicitors’ letter of 27 May 2002, there is no substance in this ground based on irrelevant considerations. It should be noted that the submissions made on the hearing about the inaccuracies of the list of incidents raised matters that were not raised by the applicant’s solicitors’ letter dated 27 May 2002.
Other matters
[26] The applicant also relies on the document entitled “Department of Corrective Services Procedure – Offender Management – Maximum Security Units” which appears to have been promulgated under s 189 of the Act. The applicant seeks to rely on the behavioural objectives set out in that procedure and the applicant’s satisfaction of those objectives to argue that, on that basis, it could not be found that the matters set out in sub-paras (ii) and (iii) of s 47(2)(b) of the Act applied to the applicant. This also appears to be another formulation of the reasonableness argument. The procedure set out in that document has been prepared to assist in the implementation of provisions such as s 47 of the Act, but not to displace the legislative requirements.
[27] The respondent objected to this document being received into evidence on the grounds of relevance. It was marked exhibit 2. It has been necessary to refer to the document in order to deal with the applicant’s argument that was advanced by reference to it. Although that argument has been rejected, the document is admissible, in order to deal with the argument.
Conclusion
[28] On the basis of the materials that were before me on this application, I have concluded that the applicant has been unsuccessful in advancing any ground for review of the decision made on 30 May 2002. The application must be dismissed. I will hear submissions on costs.