Cummins v Chief Executive, Department of Corrective Services
[2005] QSC 202
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- Cummins v Chief Executive, Department of Corrective Services[2005] QSC 202
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Cummins v Chief Executive, Department of Corrective Services[2005] QSC 202
Cummins v Chief Executive, Department of Corrective Services[2005] QSC 202
SUPREME COURT OF QUEENSLAND
CITATION: | Cummins v Chief Executive, Department of Corrective Services [2005] QSC 202 |
PARTIES: | TERRENCE CUMMINS |
FILE NO/S: | BS No 7082 of 2004 |
DIVISION: | Trial |
PROCEEDING: | Application for judicial review |
ORIGINATING COURT: | Supreme Court at Brisbane |
DELIVERED ON: | 22 July 2005 |
DELIVERED AT: | Brisbane |
HEARING DATE: | 3 May 2005 |
JUDGE: | White J |
ORDER: | Dismiss the application for review |
CATCHWORDS: | ADMINISTRATIVE LAW — JUDICIAL REVIEW – GROUNDS OF REVIEW – GENERALLY – where the decision-maker had to be satisfied that the applicant’s discharge did not pose an unacceptable risk to the community – where fresh material not in applicant’s favour – where decision-maker took into account the applicant’s objections to the fresh material – where no statutory obligation to take into account the matters raised by the applicant – whether legitimate expectation as to material upon which decision would be made – whether reliance upon the material inadequate to support the conclusion reached Acts Interpretation Act 1954 (Qld), s 32CA Administrative Decisions (Judicial Review) Act 1977 (Cth), Corrective Services Act 2000 (Qld), s 75, ss 77-79 Federal Court Rules 1979 (Cth), O 54 Judicial Review Act 1991 (Qld), s 20, s 32, s 45 Uniform Civil Procedure Rules 1999 (Qld), r 439, r 570, Attorney-General (NSW) v Quinn (1989-1990) 170 CLR 1, cited Buck v Bavone (1975-1976) 135 CLR 110, cited Felton v Queensland Corrective Services Commission [1994] 2 Qd R 490, distinguished Gottfried v Wills & Attorney-General [2004] QDC 002, cited Minister for Immigration & Multicultural Affairs v Eshetu (1999) 197 CLR 611, cited Minister for Immigration and Ethnic Affairs v Tavelli (1990) 23 FCR 162, cited Public Service Board of NSW v Osmond (1985-1986) 159 CLR 656, cited Waniewska v Minister for Immigration and Ethnic Affairs (1986) 70 ALR 284, distinguished |
COUNSEL: | Mr PE Smith for the applicant Mr J Logan SC and Ms Kay Mellifont for the respondent |
SOLICITORS: | Terry Fisher & Co for the applicant Crown Solicitor for the respondent |
- The applicant was sentenced by me on 14 October 1998 to a term of imprisonment of nine years with a recommendation for parole eligibility after serving four years with 597 days pre-sentence custody declared time served for the manslaughter of his former de facto wife on 16 February 1997 at the Gold Coast. He was refused remission on his sentence on 1 June 2004 and seeks review of the respondent’s delegate’s decision pursuant to the Judicial Review Act 1991. Had the applicant been granted remission on his sentence when he first applied he would have been released from prison in February 2003. His fulltime release date is 24 February 2006.
- Neither party sought to have a different judge hear and determine the matter notwithstanding that I had sentenced the applicant after a contested hearing.
Preliminary point
- Mr P Smith for the applicant sought to cross-examine Ms D Coop, the respondent’s delegate. That course was resisted principally on the ground that reasons were not sought from Ms Coop as they might have been pursuant to s 32 of the Judicial Review Act and ought not be permitted to be obtained in what would essentially be a “fishing expedition”. Reference was made to Public Service Board of NSW v Osmond (1985-1986) 159 CLR 656 and Minister for Immigration and Ethnic Affairs v Tavelli (1990) 23 FCR 162. It is unnecessary to elaborate on the decision in Osmond that in the absence of a statutory obligation to do so, no principle of natural justice or the common law requires reasons to be given in administrative decisions. As Gibbs CJ pointed out at 633 that no reasons were given for a decision does not mean it cannot be questioned; indeed, if the decision-maker does not give any reasons for a decision, the court may be able to infer that there was no good reason for it. That is not this case as Ms Coop, in a sense, incorporated her analysis of the material about the applicant’s application for remission in her “consider not to grant remission” letter of 6 May 2004 into the reasons for her decision of 1 June 2004. Even if not expressly incorporated, they may be referred to to understand her approach. In any event, Mr Smith wanted to cross-examine on a specific number of topics of no great width.
- There is no particular procedure prescribed for Judicial Review Act applications in that Act. Section 45(a) simply provides that an application for review must be made in the way prescribed by rules of court. Chapter 14 Part 4 of the Uniform Civil Procedure Rules (“UCPR”) sets out the procedure to be followed for those applications. A directions hearing is to be set down when the application for review is filed. Rule 573 gives examples of the matters which may be the subject of direction orders but makes no specific mention of cross-examination. Chapter 11 Part 7 concerns affidavit evidence. Rule 439(1) provides that if an affidavit is to be relied on at a hearing, the court may order the person making it be examined and cross-examined before the court. There then follow provisions about the time for service of affidavits and notice to attend for cross-examination. Rule 439(5) provides
“(5) However, the court may –
(a)dispense with the attendance from cross-examination of a person making an affidavit; and
(b)direct that an affidavit be used without the person making the affidavit being cross-examined in relation to the affidavit.”
It is clearly a matter of discretion as to whether a court acting under r 439(5)(b) will direct that a deponent whose affidavit is to be relied on need not attend or may not be cross-examined. Both the general approach in r 439 and the content of subrule (5) tend to indicate that it is the exception that a deponent will not be subject to cross-examination if it is sought by an opposite party. That is, it is for the party seeking to have a direction that an affidavit may be used without the deponent being made available for cross-examination, to make out the case. Whether that party is successful will depend on the circumstances including the justice of the matter.
- In Tavelli the Full Federal Court made observations on the appropriateness of permitting cross-examination of a decision-maker in judicial review proceedings. Order 54 of the Federal Court Rules 1979 (Cth) deals with applications under the Administrative Decisions (Judicial Review) Act 1977 (Cth) r 8 of which is in similar terms to r 439(5). The court in that case was considering the admissibility of a statement relating to the subject decision which was required to be filed by an applicant under provisions similar to r 570 of the UCPR. That statement was not attached to any affidavit and the restrictive nature of the comments need to be read with that in mind. Davies J considered that great inconvenience would be visited upon decision-makers if they were, as a matter of course, required for cross-examination. French J, in the context of the admissibility of the statement not being attached to an affidavit concluded that where the issue of the construction, correctness or completion of the reasons was raised on good grounds the court may permit cross-examination of the decision-maker. Hill J supported the cross-examination of the decision-maker at 190
“No doubt cross-examination directed to the materials that were before the decision-maker will be unlikely to be productive. But the more usual case is that an applicant will seek to challenge the decision on the ground that the decision-maker took into account irrelevant matters or failed to take into account relevant matters. An applicant may also, as in the present case, seek to show that the decision-maker took into account a matter personal to the applicant in respect of which the applicant is given no chance to put his side of the case.
In such circumstances, which are far from rare, it may only be by careful cross-examination of the decision-maker that the true reasons for the decision will become clear. ... It would be unfortunate if this court should be seen to be enunciating a principle of general application that leave to cross-examine will rarely be granted. Each case will depend upon its own facts; the inconvenience to the decision-maker will no doubt be a factor to be taken into account. In the end, however, the question must be determined as Lord Diplock said in O'Reilly v Mackman [1983] 2 AC 237 at 282 – 283 in accordance with the ‘justice of the particular case’.”
- The particular areas identified by Mr Smith which he wished to question Ms Coop about included whether she had considered the solicitors’ submissions in response to the “consider not to grant remission” letter in light of the one day which had elapsed between receiving them and making her decision and what documents other than those mentioned in her letter she had had recourse to. These were matters that went to the heart of the applicant’s contention that the decision was flawed. Accordingly, the application to dispense with Ms Coop’s cross-examination was refused.
The principle issues
- Although the application canvasses a number of the possible grounds set out in s 20(2) of the Judicial Review Act 1991 the principle grounds of complaint are that the applicant ought to have been given an opportunity to make submissions as to why the respondent ought not have called for (or have had regard to) further material on a fresh hearing of the applicant’s application for remissions and that he had a legitimate expectation that the decision would be made on existing material only; a relevant/irrelevant considerations argument; and Wednesbury unreason-ableness.
Previous proceedings
- On 14 May 2003 a different delegate (“Mr Bales”) had declined to grant the applicant remission. The applicant filed an application to review that decision on 13 June 2003 (“the first J R proceeding”) in proceedings BS 5244/2003. Between that date and the end of November 2003 various interlocutory steps to advance the hearing were taken. The application was set down for hearing on 9 February 2004. On or about 6 February 2004 the respondent advised the applicant through counsel that the remission decision would be vacated as there had been a failure by the delegate to consider the sentencing remarks as required by s 77(f) of the Corrective Services Act 2000 (“the Act”).
- Mr Bales wrote to the applicant by letter dated 5 February 2005
“I have determined that this decision is repealed and a fresh consideration of your case be made by another authorised delegate. I have made this decision after considering legal advice.
An authorised delegate will consider your case upon receipt of all available relevant information.”
The applicant consented to the discontinuance of the first J R proceeding.
- On 10 March 2005 the Department of Corrective Services informed the applicant’s solicitors that an updated psychiatric assessment and a new remission assessment would be prepared. The applicant’s solicitors objected strenuously contending that the decision by a new delegate ought to be made on the material as it was when Mr Bales had made his decision because this was the basis of the applicant’s agreement to discontinue the first J R proceeding. The Department did not accept that this was a correct recollection of the agreement to discontinue.
- Little, if anything occurred to progress the matter and the applicant brought an application pursuant to s 22 of the Judicial Review Act because he was aggrieved by the failure of the delegate to make a decision about his remission in proceedings BS 3218/2004. His solicitors indicated to the respondent that it was intended to have that application finally determined at the return date for the directions hearing on 13 May 2004.
- On 6 May 2004 Ms Coop wrote a “consider not to grant” letter to the applicant which was also sent to the applicant’s solicitors and, as a consequence, the s 22 application was discontinued.
The offence, sentence and appeals
- In order to understand aspects of the applicant’s basis for complaint something of the history of the offence, sentence and subsequent appeals needs to be understood. What follows is taken from material considered by Ms Coop. The applicant was born on 17 April 1948. Leading up to the subject offence he had a lengthy criminal history commencing in NSW in the 1960s for minor offences and continuing in Queensland. The most serious of his previous offences was a conviction of stealing with actual violence whilst armed with a dangerous weapon in 1978 for which he was sentenced to a term of 12 years imprisonment. In 1984 he was sentenced to a cumulative term of eight months imprisonment in respect of prison misconduct. He was released on parole between 1985 and 1988 when he was returned to prison for breach. He was granted a day’s leave of absence in March 1991 but absconded and remained at large for some 12 months for which, when arrested, he was subsequently convicted and sentenced to two months imprisonment concurrent with the balance of his 12 year term. He was released in 1994.
- On sentence for the manslaughter of his former de facto wife the Crown Prosecutor contended that the manslaughter was a culmination of a period of association marked with regular episodes of domestic violence. The defence case was that the applicant should be sentenced on the basis that it was an isolated incident. The applicant gave evidence on sentence as did the deceased’s 15-year-old son about the nature of the domestic relationship. After hearing the evidence, particularly of the son, I concluded that the prosecution had not discharged its onus of proof and the unlawful killing was not the culmination of a violent relationship. The sentencing process itself was somewhat drawn out. The applicant pleaded guilty to manslaughter on the morning of his trial on 15 April 1998. He had been charged with murder. The prosecution accepted the plea in discharge of the indictment. Sentence was adjourned until 8 May and again adjourned until 14 September, the date upon which it originally came before me. Counsel who appeared on behalf of the applicant summarised a report from Mr Terry Ryan, a psychologist, and tendered it as an exhibit. The sentence proceedings were further adjourned at the prosecution’s request to 21 September and it was necessary to adjourn further until 14 October 1998 when the evidence was concluded.
- The applicant maintains that he did not see the report from Mr Ryan which had been prepared for his sentence submissions prior to it being tendered by his counsel. In the sentencing remarks I made extensive reference to the history as recorded in Mr Ryan’s report. The applicant was present in court. The applicant contends that it is untrue in material particulars and has disadvantaged him because it has been referred to and relied upon by numerous subsequent assessors in the prison system and, ultimately, Ms Coop. The applicant’s major criticism, although there are many, of the report is that he told Mr Ryan that he had been psychologically damaged (post-traumatic stress disorder) by the conduct of police during a disturbance at the Boggo Road Prison where he was an inmate during which he was shot at by police. Mr Ryan did not mention this episode in his report and attributed the applicant’s psychological difficulties to a physically and emotionally abusive upbringing which led to a chronic post-traumatic stress reaction.
- At the time of the killing the applicant and his de facto wife had been separated for a few days. On the day of her death the applicant went to the deceased’s residence and had an angry exchange over the deceased’s relationship with another woman who was a drug supplier. They were then both on a methadone program having been addicted to heroin. They went to the applicant’s residence, engaged in sexual intercourse, and she taunted him about her relationship with the other woman. The applicant lost control and began choking the deceased with a tea-towel. She staggered into the bedroom and became unconscious. He tried to revive her by slapping and other means. He had no access to a working phone and with the assistance of a friend put the deceased in his car intending to take her to the hospital. He saw a police car, panicked, and put her semi-naked body in a nearby park where it was found the following morning by schoolchildren. The applicant told a number of lies to avoid responsibility but eventually made admissions. A post-mortem examination revealed the cause of death as neck compression with intoxication by alcohol and quantities of other drugs such as methadone, oxazepam and morphine contributing. The presence of these substances made her more susceptible to death by neck compression.
- The applicant sought leave to appeal against the sentence on the grounds that it was manifestly excessive and also that the report of Mr Ryan ought not to have been tendered. The applicant appeared on his own behalf before the Court of Appeal on 18 March 1999. Judgment was delivered on 16 April 1999 refusing his application to appeal against sentence.
- The Court of Appeal had the advantage of hearing the applicant’s complaints about the use of the Ryan report. Since the continued use and existence of this report underpins many of the applicant’s complaints and since what the Court said was considered by Ms Coop there is merit in setting out that part of the judgment.
“We have had considerable difficulty in understanding precisely the applicant’s objection to the report, other than the fact that he was deprived of an opportunity of instructing that it not be used. He describes it as ‘a false document’ and sought to demonstrate this by tendering a report from another psychologist (Mr Chittenden) prepared in 1996. The applicant alleges that there must have been a conspiracy between his solicitor (Mr B Ryan) and the psychologist (Mr T Ryan) who is the solicitor’s brother, but was unable to suggest the purpose of such a conspiracy. It was said however to encompass a desire not to refer to Dr Chittenden’s report ‘because that’s just going to be too messy and that’s going to make him look very amateur’. His concern seems to derive from Mr Ryan’s failure to refer to a bashing and shooting incident in Boggo Road prison as the cause of the applicant’s mental and psychological problems. The applicant went on to mention that he has commenced a civil action against the Corrective Services Commission in relation to that particular incident. His concern seems to be that Mr Ryan’s report ascribes his condition at the relevant time to earlier incidents, particularly those in his childhood rather than to the incident in Boggo Road prison. The question of causation might be of importance in his civil proceeding, but it was immaterial in the present criminal proceeding. The point that mattered was that at the material time his psychological functioning was diminished. He would be no further assisted whether the original cause was his unfortunate childhood or a traumatic incident in prison.
Dr Chittenden’s report contains the following entry – ‘Mr Cummins is a very angry man and at times feels like hitting something. He is quite afraid that if anybody should confront him, he may lose control and hit them’. We agree with the submission of Mr Moynihan on behalf of the Crown that that report is more prone to be damaging to the applicant than the report of Mr Ryan. It is true that Mr Ryan’s report, like most such reports, has both positive and negative aspects, and that it concludes with the observation:
‘... Mr Cummins’ psychological problems are of a chronic nature and therefore will require serious and prolonged psychotherapeutic intervention in order to ameliorate them. Whilst Mr Cummins appeared to be genuinely remorseful for his actions in regard to the current offence, he did not evince confidence that he would be likely to pursue the necessary psychotherapy to overcome the emotional deficits, which predisposed him to committing this offence.
A positive rehabilitative prognosis could only be made in regard to Mr Cummins were he willing to address these deficits’.
However the report as a whole was helpful to the applicant’s cause, and his counsel made a proper forensic decision in tendering it on his behalf. The question whether such a report, which tends to involve sensitive issues, should be shown to a disturbed client is one that depends upon the instructions that are given (or not given) by the client to counsel in the particular case. It does not necessarily involve a miscarriage of justice for such a report not to be shown personally to the client ...
For the sake of argument however we are prepared to assume that the report was not read by the applicant. He was present when it was tendered and portions of it were relied on. There was adequate opportunity thereafter for him to ask for it but he did not do so. The report was properly relied on by his counsel who made a forensic decision on behalf of the applicant in doing so. Overall it would seem to have been of assistance to the applicant, including its acceptance of the genuineness of his remorse, and of his diminished psychological functioning at the relevant time.”
- The balance of the judgment relates to a rejection of the submission that the sentence of nine years was manifestly excessive.
- The applicant sought special leave to appeal in the High Court. On 10 March 2000 the applicant, who again appeared on his own behalf, complained to the High Court on his special leave application about Mr Ryan not referring to the incident at Boggo Road as the reason why he suffered from post-traumatic stress disorder. The Hight Court refused the application for special leave on the basis that even if leave were granted and the applicant re-sentenced there would not have been any different sentence.
Progress to decision by delegate
- Ms Coop received the file in this matter on 23 April 2004. She was aware of the previous withdrawn decision but did not look at it or at the prior “consider not to grant remission” letter. She concluded that since the applicant considered the psychological and psychiatric reports on the file were tainted by Mr Ryan’s report prepared for his sentence and since “considerable time had passed” since the first decision not to grant remission had been made, she “thought it prudent to have reference to an up to date report”.
- Accordingly, the applicant was interviewed by video link by Dr P Kar, a psychiatrist, at the request of the Department. The applicant, according to Dr Kar, was not fully cooperative. He did not wish a reassessment because, as he expressed it to Dr Kar, he believed that Mr Ryan’s psychological report had contaminated past psychologists and psychiatrists and would do so on this occasion and lead to an adverse report. The applicant discussed Mr Ryan’s report with Dr Kar and showed him a newspaper cutting which reported that Mr Ryan had been found unreliable by a judge in respect of a different matter.
- Dr Kar prepared a report dated 8 April 2004 in which he expressed his reservations about giving an opinion because of the incomplete cooperation of the applicant.
- After Ms Coop had forwarded the letter of 6 May 2004 to the applicant she sought the assistance of Mr R Elsworth, a senior psychologist at Woodford Prison, in making Dr Kar’s report available to the applicant. Mr Elsworth saw the applicant on 12 May and advised him that he could have access to the report. The applicant declined on the basis that he did not agree with the process. He was told by Mr Elsworth that the report would be provided to his legal representatives.
- By letter dated 6 May 2004 Ms Coop informed the applicant that she was considering refusing to grant remissions on his current sentence of nine years on the basis that she was not satisfied that his discharge “does not pose an unacceptable risk to the community.” There followed a further 20 pages analysing the material contained in 42 separate items.
- This letter constituted a notice for the purposes of s 79 of the Act which provides that if the chief executive is considering refusing to grant remission then the prisoner must be given a notice to that effect outlining the reasons for the proposed refusal and inviting the prisoner to show cause in writing why the remission should not be refused. Section 79(3) requires the chief executive to consider all written submissions and inform the prisoner by written notice whether the remission is refused.
- On 31 May 2004 Ms Coop received a letter of 15 pages from the applicant’s solicitors containing submissions in response to her letter of 6 May. The solicitors demanded that Ms Coop not consider material brought into existence after February 2004 because they contended that the agreement to discontinue the first JR proceeding was on the basis that a delegate would make a fresh decision on the existing material. The submissions were devoted to that material.
- The submissions concluded with three questions,
“•Who else have you consulted with in reaching your decision concerning this matter?
- Is there a remissions committee that has any input into the Remissions decision concerning our client?
- What has been the face of the investigation concerning threats by prison officers relating to his putting the names of officers in Affidavits before the Supreme Court?”
Included with the submissions was a copy of a judgment in Gottfried v Wills & Attorney-General [2004] QDC 002 a judgment of Bolton DCJ which was highly critical of Mr Ryan’s psychological reporting, referring to severe criticism by other District Court judges in criminal compensation cases which grossly exaggerated the psychological damage which the complainants had sustained in violent criminal offences contrary to the information which had been conveyed to him by those complainants.
Decision of delegate
- On 1 June 2004 Ms Coop decided not to grant remission on the basis that she was not satisfied that the applicant’s discharge did not pose an unacceptable risk to the community in accordance with s 77 of the Act.
- The applicant contends that in the time available she simply could not have considered adequately the applicant’s submissions. Ms Coop deposed and confirmed in her oral evidence that when she received the submissions she worked full-time on the task of considering those matters and worked back outside normal office hours and on 1 June until she came to a final conclusion. Ms Coop had already become familiar with the material and had cross-referenced the applicant’s concerns to the material. I have concluded that Ms Coop gave appropriate consideration to the submissions.
- The reasons may be set out in full
“On 31 May 2004 the Department received a letter dated 28 May 2004, from your solicitors making submissions on your behalf as to why remission ought to be granted to you.
I have been advised by the Department’s legal representatives that no agreement has previously been reached that the fresh consideration of the granting or refusal to grant remission would be based solely on existing material and transcript contrary to your solicitors assertion. It is not a question of privilege; it is simply an unsubstantiated assertion by your solicitors. Your solicitors have asserted that six documents are not to be considered without explaining their reasoning. You and your solicitors have had the opportunity to comment on these documents and have chosen to address only one of these documents. They are in my view relevant to my considerations.
In accordance with sections 75, 77 and 78 of the Corrective Services Act 2000 (the Act) consideration has been given by me to the grant of remission in relation to charge 1 of your period of imprisonment.
After considering all the relevant matters as outlined in the consider not to grant letter to you dated 6 May 2004, the matters raised in the correspondence from your solicitors dated 28 May 2004 and the remission assessment dated 23 December 2002 which your solicitors have specifically referred me to, I have decided not to grant remission on the basis that I am not satisfied that your discharge does not pose an unacceptable risk to the community in accordance with section 77 of the Act.
In response to your solicitor’s questions I advise that there is no remissions committee and the decision was made by me. I have been informed that your allegation concerning threats by prison officers has been investigated and a response forwarded to your solicitors. I was unaware of this investigation and the information has not been utilized in my decision-making process.”
The legislative scheme
- The legislation now in place about remission on sentence is different to that which previously applied. Although the applicant was sentenced prior to the enactment of the present provisions he comes within s 75 of the Act and is therefore eligible to be considered for remission under the Act. The former scheme provided that a prisoner who was of good conduct and industry may at the discretion of the Corrective Services Commission be granted remission of up to one-third of his sentence. The present scheme set out in s 75(2) provides
“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.”
Subsections (3) and (4) are not here relevant and there are no other matters the subject of regulation of which the chief executive must be satisfied.
- In deciding whether a prisoner’s discharge poses an unacceptable risk to the community the chief executive must consider, but is not limited to considering a number of factors set out in s 77(a) – (i). They are
“(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 relevant remarks made by the sentencing court;
(g)any relevant medical or psychological report relating to the prisoner;
(h)any relevant behavioural report relating to the prisoner;
(i)anything else prescribed under a regulation.”
- Similarly s 78 sets out a number of factors which the chief executive must consider but is not limited to considering in respect of good conduct and industry. Ms Coop concluded that the applicant’s conduct and industry was sufficient for granting remission. It is the risk to the community which caused her not to grant remission. The cases under the previous legislative regime, a number of which have been referred to in the applicant’s submissions, are not relevant to this inquiry or, if relevant, merely demonstrate the difference between that regime and the one which now applies to the applicant. A decision-maker may only grant remission “if satisfied” that the prisoner’s discharge does not pose “an unacceptable risk to the community”. The use of the word “may” indicates, in relation to a power, “that the power may be exercised or not exercised, at discretion”, Acts Interpretation Act 1954, s 32CA. However when read with the requirement that the delegate be “satisfied” it is clearly not indicative of a discretion of the kind which existed in the previous legislation, that is, a balancing of competing interests. The approach to a satisfaction-based power was discussed by Gibbs J in Buck v Bavone (1975-1976) 135 CLR 110 at 118
“... In all such matters the authority must act in good faith; it cannot act merely arbitrarily or capriciously. Moreover, a person affected will obtain relief from the courts if he can show that the authority has misdirected itself in law or that it has failed to consider matters that it was required to consider or has taken irrelevant matters into account. Even if none of these things can be established, the courts will interfere if the decision reached by the authority appears so unreasonable that no reasonable authority could properly have arrived at it. However, where the matter of which the authority is required to be satisfied is a matter of opinion or policy or taste it may be very difficult to show that it has erred in one of these ways, or that its decision could not reasonably have been reached. In such cases the authority will be left with a very wide discretion which cannot be effectively reviewed by the courts.”
See also the discussion by Gummow J in Minister for Immigration & Multicultural Affairs v Eshetu (1999) 197 CLR 611 at 651 ff.
Material considered by the delegate
- The material considered by the delegate was as follows:
- A remission assessment for Terrence Cummins signed by the Sentence Management Coordinator, D Hall on 15 April 2004 and the General Manger Peter Camden on 18 April 2004.
- Sentence details for Terrence Cummins printed on 28 April 2004.
- A Sentence Management Review for Terrence Cummins verified on 17 March 2004.
- An Offender Profile (Breaches and Incidents, Movements History, History of Jobs) for Terrence Cummins printed on 28 April 2004.
- Previous sentence details for Terrence Cummins printed on 28 April 2004.
- A Queensland criminal history for Terrence Cummins.
- A New South Wales criminal history for Terrence Cummins.
- A transcript of proceedings from the Supreme Court, Brisbane in a bail application by Terrence Cummings before Justice Thomas, dated 9 March 1994.
- An unreported judgement from the Supreme Court, Brisbane in the matter Terrence Cummins -v- Queensland Corrective Services Commission before Supreme Court Justice MacKenzie, dated 28 February 1994, 17 March 1994.
- A transcript of the sentencing remarks in the Supreme Court, Brisbane in the matter The Queen -v- Terrence Cummins before Justice White, dated 14 October 1998.
- A copy of the reasons for judgment from the Queensland Court of Appeal in the matter The Queen -v- Terrence Cummins before Supreme Court Justices of Appeal Pincus, Davies and Thomas, dated 16 April 1999.
- A transcript of proceedings before the High Court, Canberra in the matter Terrence Cummins -v- The Queen before Justices Gummow and Kirby, dated 10 March 2000.
- A letter from the Queensland Community Corrections Board to Terrence Cummins dated 19 March 2001.
- A letter from the Queensland Community Corrections Board to Terrence Cummins dated 19 March 2001.
- A letter from the Queensland Community Corrections Board to Terrence Cummins dated 13 November 2003.
- A letter from the Queensland Community Corrections Board to Terrence Cummins dated 18 December 2003.
- A File Note, ‘Interview with Terry Cummins’ dated
8 November 1999.
- A Case Note for T Cummins dated 19 June 2002.
- A Remission Approval Assessment Suitability document for Terence Cummins dated 12 November 2002.
- A Case Note for T Cummins marked 20/3.
- A Transfer Without Notice Advice Form for Terrence Cummins dated 1 October 2003.
- A memorandum to Terrence Cummins dated 2 November 2003.
- A Case note for Terrence Cummins dated 15 January 2004.
- A Case Note for Terence Cummins dated 14 February 2004.
- A Case Note for Terry Cummins dated 22 March 2004.
- A Psychiatric Note for Terrence Cummins dated 27 May 1999. (I am aware that you already possess a copy of this document).
- A Psychiatric Report for Terrence Cummins by Dr Ian Atkinson dated 19 February 2001. (I am aware that you already possess a copy of this document).
- A letter from Terrence Cummins to Ms June Arnold dated
4 April 2002.
- A Psychiatric Report for Terrence Cummins by Dr Ian Atkinson dated 1 June 2002. (I am aware that you already possess a copy of this document).
- A Psychiatric Report for Terrence Cummins by Dr Prabal Kar dated 8 April 2004. (A copy of this document has not been provided however, is available through controlled release by a psychologist at your centre).
- A Psychological Report for Terrence Cummins by Tonya Plumb dated 18 March 1994. (I am aware that you already possess a copy of this document).
- An undated Psychological Report for Terrence Cummins by Timothy Denis Ryan. (I am aware that you already possess a copy of this document).
- Pages 1 and 2 of an Affidavit by Terrence Cummins dated 20 January 2004.
- An Affidavit by David Burrell sworn 27 November 2003 and exhibits:
a.An unsigned Psychological Report for Terrence Cummins by David Burrell dated 1 October 2002.
b.A Psychological Report for Terrance Cummins by David Burrell dated 8 October 2002.
c.A memorandum by David Burrell to Mr David Bales dated 25 February 2003.
d.Pages 17 and 18 of an Affidavit by Terrence Cummins
- A Psychological Report for Terrence Cummins by Diana Russell dated 20 December 2002. I am aware that you already possess a copy of this document).
- A Cognitive Skills certificate and participant report for Terry Cummins dated 21 July 1999.
- A Substance Abuse Educational Program certificate for Terrence Cummins dated 21 July 1999.
- A Substance Abuse: Preventing and Managing Relapse certificate for Terrence Cummins dated 23 March 2000.
- Sessional Note for Terrence Cummins by Rod Elsworth dated 21 February 2000.
- An Anger Management Program Exit Report for Terrence Cummins dated 23 June 2000.
- A memorandum re: Terrence Cummins by Linda Bennett dated 23 October 2000.
- An undated letter from Terrence Cummins to the Executive Director date stamped received on 20 December 2000.
- Ms Coop incorporated by reference the approach which she had taken to the application and the material which she considered in her letter of 6 May 2004. It is, therefore, appropriate to review that analysis. She wrote that while she had not made a final decision the factors which she considered included
- The applicant’s Queensland criminal history.
- The applicant’s New South Wales criminal history.
- The applicant’s response to parole in respect of the armed robbery offence and absconding whilst on leave of absence.
- Remarks of Mackenzie J in respect of a bail application.
- The sentencing remarks by me at length.
- The reasons for judgment of the Court of Appeal on the applicant’s application for leave to appeal against sentence.
- The transcript of discussion and decision in the applicant’s High Court application for special leave.
- The applicant’s applications to the Queensland Community Corrections Board for post-prison community based release.
- The breach of discipline in 1998 for behaving in a threatening manner for which he received five days separate confinement.
- One recorded incident where the applicant tested positive to amphetamines on 17 July 1988 (which the applicant contests).
- Reports on the applicant’s conduct and industry mentioning those that were positive and those that were negative.
- An extensive reference to the various programs completed in the corrective services system being Anger Management, Cognitive Skills, Substance Abuse Educational and Substance Abuse Preventing and Managing relapse and Stress Management Program.
- The partially completed Violence Intervention Program. With respect to this program the delegate wrote
“In a memorandum dated 21 February 2000 it was reported that you are uncomfortable participating in group settings, and opposed to undertaking the program due to its format as a long-term group based program. You were also reported to maintain that you did not believe that you had a sustained history of violence. It was noted that you were able to participate in other shorter programs which were group based.
In a memorandum dated 23 October 2000 you are reported to have stated that you were becoming anxious and distressed in the group situation, suffered from panic attacks, migraines and other anxiety-type symptoms. Prior to withdrawing your attendance was reported to be erratic and irritable and reluctant to participate. Your attitude was reported to be cynical and hostile.
You have contested the contents of the memorandum dated 23 October 2000 noting that you became anxious and irritable and sought medical assistance. You maintain that you, ‘could not cope with the class environment’. You have stated that, ‘The comments that have been documented and placed on my correctional file are inaccurate and misleading in that they make certain insinuations about a documented medical problem.”
- A case note of 27 May 1999 by Dr Cook that the applicant had minimised his culpability, put responsibility on others and considered that he was being picked on.
- Report of 19 February 2001 by Dr I Atkinson considering your suitability for parole. The delegate set out passages from that report including
“It is noted that out of the last 22 years this man has spent 16 in jail ... it is also noted that although he has been able to benefit, to a degree, from the stability and courses offered by prison life, he has shown a very poor previous response to community-based supervision.”
“The somewhat paradoxical features of this man’s history highlight the fragility of his personality structure. Although I note that Ms Tonia Plumb does not consider that he suffers a personality disorder ... I believe that his grossly impaired and unstable self image, his impulsivity, his marked affective instability, his frantic fear of abandonment, his sense of entitlement, his grandiose perception of his own self worth and his past propensity for gambling and drinking (as medicators of his distress) are clearly indicative of a serious personality disorder with marked borderline and narcissistic features.”
“I feel that the problems listed above, together with his past poor response to community-based supervision and his anxiety about associating with other human beings, would make this man extremely vulnerable to relapse were he to be released to the community. I am therefore quite unable to recommend community-based release.”
- The delegate noted the applicant’s concerns about Dr Atkinson completing a further psychiatric report on 2 April 2002 but nonetheless Dr Atkinson reported on 1 June 2002. The delegate discusses that report, the applicant’s concerns that there were inaccuracies in Dr Atkinson’s first report and his use of Mr Ryan’s report given the inaccuracies asserted by the applicant in that report. The delegate noted aspects of Dr Atkinson’s second report including
“I continue to believe, as I stated in my earlier report, that he does indeed suffer a personality disorder with marked borderline and narcissistic features.”
“He does appear to have a degree of remorse and empathy for the victims of his offences.”
“It is also noted that he had been breach-free for several years and has, over this same period, been regarded as ‘a compliant and easily managed prisoner’ ... he as [sic] also performed well as the coach of football teams within the prison’s sociation [sic]. Finally, as he himself points out in his submission to the Board dated 2 April 2001 - ... he was able to successfully complete two years and seven months of a five year parole period before he, to use his own terms, ‘stuffed up’.”
“I believe that the granting of parole at this stage would be risky (because it would give him too much freedom) but I am inclined to agree with Mr Crosby-Brown ... that the granting of community-based release would be far preferable to having this man returning to the community without any supervision at all in about 8 months time.”
“Because of his very vulnerable personality structure I believe that he should be closely supervised by his Community Correctional Officer and should be required to remain abstinent of alcohol, drugs and gambling.”
- The delegate made reference to Dr Kar’s report of 8 April 2004 in which Dr Kar was asked to consider the applicant’s suitability for remission. The delegate noted the applicant’s lack of cooperation and he had raised his concerns with Dr Kar about Mr Ryan’s report. The applicant insisted on characterising the subject offence as “an isolated event”. The delegate quoted Dr Kar’s notation that “the common theme is that he [the applicant] does have certain personality features which, under pressure and stress, can cause him to act-out in certain and dangerous ways”. The delegate noted the applicant’s concern expressed to Dr Kar that he had been portrayed as an alcoholic when he was not. She noted that at the time of the offence he had consumed alcohol and made a reference to the applicant’s contention that there had been an incorrect positive urine testing in the prison in 1998.
- The delegate noted that Dr Kar did not provide an opinion about remissions because of the lack of cooperation but he had agreed generally with Dr Atkinson’s psychiatric opinion about the applicant’s personality. The delegate quoted the following passages from Dr Kar’s report
“It is clear that Mr Cummins has areas of multiple pathology such as his behaviour of gambling, abusing drugs and alcohol and womanising in the past. Also, his propensity to act-out violently was evident during his index offence. It may be that intoxication with alcohol or drugs and an emotionally charged situation, such as the conflict with his girlfriend at the time, were the main reasons behind his loss of control and of his aggressive impulses.”
“Mr Cummins’ index offence appears to have been due to a sense of rejection, anger, possessiveness and jealousy, all of this made worse by his abuse of drugs and alcohol at the time. He claims serious injury to the victim was not intended. However, he has problems with anger, especially due to his underlying personality pathology and aggravated by drugs and alcohol, which led to the quite terrible outcome.”
- The delegate referred to the report of Tonya Plumb of 18 March 1994 largely for the purpose of relating the applicant’s discussion of his 1978 armed robbery offence with her when the applicant apparently told her that following the robbery “his behaviour went haywire, most likely as a result of fear and guilt. He got drunk and wrecked his home. His girlfriend sought police assistance.”
- The delegate quoted briefly from Mr Ryan’s report about the applicant’s psychological profile noting that the applicant contested many details in that report.
- She referred to David Burrell’s psychological report in which the applicant was assessed for suitability for release into the community. The applicant was provided with an unsigned copy of the report dated 1 October 2002 which was withdrawn and a signed copy provided to him dated 8 October 2002 in which the concluding paragraph of final advice had been reworded. The final sentence of the unsigned report as noted by the delegate was “Mr Cummins is not an apparent risk to the community if released unsupervised”. The final sentence of the signed report is “Mr Cummins is therefore not considered to be an unacceptable high risk if released to the community unsupervised”. The delegate recognised that there was a difference of view between Mr Burrell and the applicant over whether the unsigned report was a draft and how the change came about. The delegate had Mr Burrell’s affidavit in which he explained how he came to reword the final report after consultation with his supervisor and a consideration of the legislation. Mr Burrell deposed that the report was a reflection of his own view. The delegate noted the positive nature of Mr Burrell’s report(s).
- The delegate made reference to the report of Diana Russell of 20 December 2002 prepared for the earlier remission consideration process. Ms Russell’s reported that the applicant was uncooperative, threatening to walk out a number of times before doing so. The delegate set out extracts from Ms Russell’s report including
“His affect ranged from anxiety to hostility and suspicion. His frustration and anger were not directed towards me but the prison system. He appeared to have difficulty keeping his emotions under control as he spoke in a loud-pitch voice and rapidly. This pattern may reflect his strategies for coping with anxiety and frustration.”
“I am aware that at the clinical interview he exhibited unstable affect, was impulsive, and showed paranoid traits. However I am not sure that any further programs or prison time will change his personality traits, due to his learned behaviours from childhood and his long history of imprisonment. I believe he is anxious about leaving prison and may lack the self-belief and confidence that he can control his world. Based on these factors Mr Cummins is considered a risk to re-offend to obtain material goods but not necessarily to unlawfully take a life.”
Ms Russell reported that the applicant needed to establish “further sources of social support prior to his release. This step may reduce the long-term affects of his early life experiences and his lengthy history of crime”.
- The delegate noted the essential features of the applicant’s most recent sentence management review verified on 17 March 2004 that he had completed a number of programs although the Violence Intervention Program was outstanding; that he had had an altercation with staff but that otherwise his conduct and behaviour was acceptable; that he was unemployed; that he was returned to Woodford from an open position because of his “erratic and irrational behaviour” following a delegate’s decision not to grant remission; that he was appropriately accommodated; and that he not be granted remission.
- The delegate set out the effect of the material provisions of the Act which she needed to have in mind in determining whether she was satisfied that the applicant’s discharge did not pose an unacceptable risk to the community. She noted that she had considered the factors in s 78 in determining whether she was satisfied that the applicant had been of good conduct and industry and, although he was reported to have demonstrated variable behaviour mentioning the poor reports which indicated that his attitude and behaviour had been good, particularly the March 2004 report, concluded
“I decided that despite transgressions, that overall, your conduct and behaviour has been acceptable. However, this does not mean that I am not concerned that you exhibited some unacceptable behaviour while in custody.”
- The delegate then set out the relevant aspects of the sentence as they were found on sentence and the observations of Kirby J in the High Court. She said that she gave consideration to the applicant’s past criminal history including four offences relating to assaulting police officers in NSW and other offences of assault. She discussed the detail of the armed robbery offence and its sequelae, his performance during his previous period of imprisonment and concluded
“While I acknowledge that on both occasions, that after the event you express remorse for your actions, I am concerned that when you are faced with stressors your response on both occasions was inappropriate and involved violence. It has been reported that in relation to both the offence of steal with actual violence whilst armed with a dangerous weapon and manslaughter you did not intent to cause harm, but that when you experienced a response or action outside of what you were expecting you responded in a violent manner. I am also aware that you have reported to the court and professional staff that you do not want to be viewed as a violent person. However, I am aware that these are not the only instances in which you have demonstrated violent behaviour and you have previously been convicted of a weapons related offence.”
- The delegate noted that the applicant’s response to stress had been attributed in part by psychologists and psychiatrists to substance abuse. She expressed concern that whilst he had been able to maintain some control over his responsive behaviour while in custody “in the past when you are not subjected to a structured environment, your ability to control your behaviour has reduced”. She noted that in order to address some of these factors identified as contributing to his offending he had completed a number of relevant programs and analysed them.
- With respect to the Violence Intervention Program she said
“It was noted that you were opposed to undertaking the Violence Intervention Program due to its format being long-term group based that you believed that you did not have a history of sustained violence and that your attendance was erratic and that you were reluctant to participate. I am aware that you contend [contest?] the comments in the report from a program staff member in relation to the reasons behind your withdrawal. You have provided information indicating that you had become anxious and distressed and sought medical assistance as a result of you not coping with a class environment. However, I am aware that you have completed four programs in a group format. I am concerned that you have not had the opportunity to develop skills and strategies to assist you in this area.”
It was a matter of some contention at the hearing that it was not possible for the applicant to have completed this program even if he were minded to do so. That was based in part upon the non-availability of that program in an open Corrections Centre where the applicant had been accommodated for some time and partly about the availability of the program generally. I accept Ms Coop’s explanation that she was aware that an open prisoner could seek a transfer to a secure prison in order to participate in such a course or similar without compromising his open status.
- The delegate particularly recognised the applicant’s concerns about many of the psychological and psychiatric reports and particularly that of Mr Ryan and the contamination of the professionals who read his report. She noted that I had ordered at sentence that the report be put on to his prison file to assist in the provision of therapy and intervention. She did note that all relevant professionals had been alerted by the applicant to his concerns about the report and had had an opportunity to consider those issues when making assessments.
- The delegate summarised in a number of paragraphs the diagnosis by Dr Cook,
Dr Atkinson and Dr Kar of a personality disorder in the applicant which caused him to act-out in aggressive ways when stressed. The delegate expressed her conclusion that she was considering not granting remission on the basis that she was not satisfied that the applicant’s discharge did not pose an unacceptable risk to the community.
Submissions in response to the letter of 6 May 2004
- As has already been mentioned the solicitors contended that the delegate was not to consider material brought into existence after the discontinuance of the first J R proceeding. Many of these submissions are argumentative, for example, a submission was made that the applicant does not have an extensive criminal history. It seems an unnecessary point to make. Most people would regard the history as extensive. Certain aspects about his past offences are disputed or supplemented by excusing assertions and the inferences that might reasonably be drawn are contradicted. The submissions seek to explain away, excuse or minimise the applicant’s criminal conduct, particularly where elements of violence are involved. The submissions tend to blame the Department for any negative aspects of the applicant’s conduct in prison in more recent times such as anxiety and depression and contradict that he has demonstrated elements of hostility or aggression.
- The submissions appropriately dwell in some detail on the positive report from Mr Burrell and other past favourable assessments by other Departmental officers. The submissions are also directed to Mr Bales’ decision, not material to this review. Many of the matters canvassed in the submissions had been raised in the past by the applicant. For example, in respect of the breach on 20 January 1998 for the offence of behaving in a threatening matter
“A simple review of your department’s records will reveal that there was no violence at all involved in this matter. Mr Cummins was falsely accused of having a sharpened toothbrush in his bed. A prison officer made out that he had found it. The officer swore at Mr Cummins and Mr Cummins swore back at the officer. At no stage was violence offered. The charge of having the item itself was dismissed.”
- The applicant’s submissions contended that no weight could be attached to the memorandum concerning the Violent Intervention Program in 2000 because no weight had been given by the delegate to his letter where he disputed that which was contained in the memorandum. That does not seem to be correct. The submissions suggest that an investigation ought to have been conducted into these matters with the applicant seeking to sheet home his psychological deficits to the events at Boggo Road Prison in 1992. These are not facts that need to be investigated by a decision-maker as was the case in Waniewska v Minister for Immigration and Ethnic Affairs (1986) 70 ALR 284.
- The submissions relating to Mr Ryan’s report are set out over a number of pages. The inappropriateness of the delegate relying on Dr Atkinson’s report is stated. This is because, it is said, he was too closely influenced by Mr Ryan’s report.
- The submissions discounted the report of Ms Plumb because it was made some 10 years ago, that of Ms Russell because she had not seen him for more than 30 minutes and Dr Cook because he had seen him only once for 15 minutes.
- The submissions conclude with the favourable evidence concerning the applicant particularly noting that he had been convicted of only two breaches since 1997; that he had successfully completed a number of programs; that in a sentence management review dated 2 November 2001 he was described as having appropriate behaviour in open custody; that in the sentence management review of 2 October 2002 it was noted that there were no adverse reports on his file and his behaviour conduct and industry were favourably reported on; that Mr Burrell considered him not to be an unacceptable high risk if released into the community unsupervised; in a remission approval suitability assessment dated 12 November 2002 the applicant’s behaviour was good; in the remissions assessment of 2002 his stable work history and work ethic were said to have been of a good standard and remissions should be granted to him.
- It is clear that, save for the 2002 remissions assessment the delegate considered the positive reports and assessments as reflected in her 6 May letter.
- The applicant’s submissions concluded that he was concerned that the delegate had chosen “in effect” to ignore over two and a half years of favourable prison time at Westbrook and relied heavily on the last five months in Woodford, such placement being due to the conduct of the Department.
- The applicant’s affidavit and written submissions on this application consist of a detailed elaboration of those submissions.
- The various grounds for review will be considered.
Legitimate expectation that decision would be on existing material as at 6 February 2004
- The consent order made by the parties’ solicitors filed in the court registry was that the first J R proceeding be dismissed with the respondent paying the applicant’s costs including reserved costs. The second application for an order that the respondent make a decision about the applicant’s remissions was settled by consent in terms that it be dismissed and
“The respondent makes a final decision in relation to the applicant’s remission application by no later than 4pm Friday 4 June 2004,”
with the respondent paying the applicant’s costs. That consent order was signed by both parties’ solicitors on 11 May 2004. There is nothing in the formal orders consented to to suggest any qualification about what material might be used. Neither does Mr Bales’ letter withdrawing the decision have that effect
“An authorised delegate will consider your case upon receipt of all available relevant information.”
Accordingly, by reference only to the material passing between the parties there was nothing to preclude the respondent from acting on material obtained after the discontinuance of the first J R application. More importantly, the respondent has a statutory obligation to be satisfied that a prisoner’s discharge does not pose an unacceptable risk to the community. That obligation could hardly be acquitted without some up-to-date assessment of risk. Although the applicant contends that he was not given an opportunity to make submissions as to whether the decision maker could take into account material not in existence prior to setting aside the first J R proceeding, no persuasive argument was advanced that natural justice required an opportunity to make such submissions. A decision-maker is required to take into account all relevant considerations that exist at the time when the decision is made. The fresh material could have been in favour of the applicant’s position. That it was not, does not, in point of principle, permit him to object to its use.
- This was not a situation similar to that noted by Gleeson CJ in Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam [2003] 214 CLR 1 at 12 discussing the Privy Council decision of Attorney-General (Hong Kong) v Ng Yuen Shiu [1983] 2 AC 629
“The decision of the Privy Council stands for the proposition that, when a public authority promises that a particular procedure will be followed in making a decision, fairness may require that the public authority be held to its promise.”
And at 14
“Fairness is not an abstract concept. It is essentially practical. Whether one talks in terms of procedural fairness or natural justice, the concern of the law is to avoid practical injustice.”
There was nothing unfair in obtaining fresh reports. Even if the applicant had pressed ahead with the first J R proceeding the court would not have granted him remission but would have sent the matter back. It could then have been revoked and a different delegate using fresh material could have been appointed.
Error of law
- The applicant submits that since s 77(d) of the Act provides that the decision-maker “must” consider a number of matters not to do so is an error of law. That may be accepted. The applicant contends that Ms Coop did not consider “whether the circumstances of the offence ... were exceptional when compared with the majority of offences committed of that kind.” Because the delegate made no reference to that matter it is contended that she did not consider that matter. In her letter of 6 May 2004 the delegate stated that she had considered the factors in s 77. She is not required to state expressly that the circumstances were not exceptional. From a perusal of her analysis of the offence clearly she accepted and relied upon the sentencing remarks, the observations and the judgment of the Court of Appeal and the discussion and reasons for decision in the High Court, none of which suggest that there were exceptional circumstances surrounding this offence. There has been no error of law of the kind submitted.
Natural justice
- The applicant submitted that he had been denied natural justice on two bases, namely, the failure of an opportunity to be heard on the further material issue which I have discussed above, and he was not advised as to how the matters raised in his letter of submission dated 28 May 2004 were to be dealt with.
- The applicant did not seek reasons pursuant to the Judicial Review Act. Section 79 of the Act requires a decision-maker to give reasons for the proposed refusal of remission on sentence and gives the prisoner 21 days to respond with written submissions. That has occurred and it cannot be suggested that the applicant was deprived of any procedural fairness with respect to making his case known to the decision-maker.
Failure to take into account relevant considerations
- The applicant contends that certain considerations were relevant and ought to have been entertained on their merits by the delegate
- Details of the investigation of the complaint made by the applicant to the CMC concerning “punishment” for naming officers of the Department on 14 February 2004. The applicant contends that the delegate should have obtained interviews conducted with the relevant officers involved;
- That any stress and anxiety displayed by the applicant has been due to the Department’s conduct in wrongly refusing remissions in 2003;
- That the applicant has been of good conduct and industry;
- That the decision-maker should have informed the applicant of the weight to be given to his good conduct and industry, to the 2002 remission assessment report of Mr Burrell and other matters which were raised in his solicitor’s submissions of 28 May 2004.
- There are two things to be said about this submission. There is no statutory obligation to take into account the matters raised by the applicant, Sean Investments Pty Ltd v Mackellar (1981) ALR 363 at 375 per Deane J. The second is that the delegate did consider these matters. She was aware of the complaint made by the applicant to the CMC concerning the events of 14 and 15 February 2004. She makes reference to it in her affidavit. She said that it was a matter to which she did not give weight either in favour or against the applicant in the decision-making process. Clearly that does not indicate a failure to take it into account. She dealt with it in the way in which she stated which was permissible. The complaint that the applicant’s stress and anxiety has been due to the Department’s conduct is an assertion by the applicant. The psychiatric evidence would tend not to support that self-assessment. The delegate was well aware of the applicant’s position but does not have to accept it.
- The applicant seems to be looking to the previous legislative regime about the status of being of good conduct and industry. The delegate was satisfied that for the purposes of the remission application the applicant was of good conduct and industry.
Irrelevant considerations
- The documents which the applicant submits ought not to have been taken into account were those documents brought into existence after the discontinuance of the first J R proceeding as well other documents such as Dr Atkinson’s reports, Ms Plumb’s report of 1994, Mr Ryan’s report and some file notes and transfer notices and I have dealt with that submission. The applicant contends that the remissions assessment dated 18 April 2004 was done after the applicant had been at Woodford for only five months whereas the earlier assessment had been completed after the applicant had been at the open placement for some five years. Of itself this is no basis for describing the document as irrelevant. The applicant also contends that the assessment is flawed because it takes into account other documents which the applicant contends are flawed particularly the CMC complaint episode on 14 February 2004.
- The memorandum about the Violence Intervention Program of October 2000 sets out information about why the applicant withdrew from the program. Whilst there is no adverse inference to be drawn from not completing the course the delegate was aware that the program, with whatever benefits it might have been able to give the applicant had not been completed and was one of the factors considered when assessing whether the applicant’s discharge posed an unacceptable risk to the community. The various reports to which objection has been taken were relevant. The delegate had regard to the criticisms made by the applicant or on his behalf of those reports.
Unreasonableness
- The applicant contends that the material relied upon by the delegate was insufficient for her to reach her conclusion that it must be inferred that she went gravely wrong. The applicant refers to cases such as Felton v Queensland Corrective Services Commission [1994] 2 Qd R 490 and other cases decided under the previous legislation. They are of no assistance with respect to this contention. This is not a case, where the evidence “was all one way” as Gummow J observed at 654 in Eshetu. There was ample material for the delegate to reach the conclusion that she did.
Bad faith
- The applicant contends that bad faith may be inferred from the following
- Mr Burrell was told to change the wording of his report.
- The respondent, notwithstanding two favourable psychological reports and a favourable remissions assessment “fished” around for another psychologist’s report in late 2002.
- Mr Bales determined unreasonably and without access to all relevant material that remissions were not to be granted.
- The Department only capitulated on the flawed decision by Mr Bales a few days before the trial.
- The applicant was told shortly after the consent discontinuance of the first J R proceeding that the Department could take as long as it liked to make a decision and that they did not have to give him a third remission.
- The Department without hearing submissions determined that a new remissions assessment and psychiatric report would be obtained.
- The tainted material was provided to Dr Kar.
- The decision-maker unfairly relied on a remission assessment from October 2003 against the applicant which revealed that he was anxious and upset and erratic because remission was refused.
- It was only when the applicant’s solicitors pointed out the existence of the 2002 remissions assessment that the decision-maker mentioned that document.
- That material does not disclose any evidence of bad faith either on the part of the decision-maker or of the Department generally. Ms Coop sought to remove herself from the previous decision-making process by not looking at the prior decision or Mr Bales’ “consider not to grant” letter. In her affidavit Ms Coop deposed that the decision to refuse the applicant remission was hers alone made solely on the material before her at the time. Any of the conduct complained of by the applicant set out above was not that of the decision-maker and a close reading of her letter of 6 May 2004 does not reveal evidence of bad faith.
Conclusion
- None of the bases advanced by the applicant to set aside the decision of respondent’s delegate have been made out. Much of what he contends would lead the court into a merits review and the decision-maker virtually into a commission of inquiry. The delegate’s lengthy analysis of the material and her understanding of it reveals that she was justified, in administrative law terms, in coming to the decision that she was not satisfied that the applicant’s discharge did not pose an unacceptable risk to the community.
- The applicant’s submissions and his affidavit in support of his application to a large extent have not focussed on the essential matter of his unacceptable risk to the community but have tended to join issue on minor or irrelevant matters. The applicant is no doubt aggrieved that Mr Ryan’s report continues to be referred to but the observations of the Court of Appeal should be kept in mind: on the whole, Mr Ryan’s report was beneficial. Particular matters of detail and the issue of causation for the post-traumatic stress disorder are not relevant to the issue of remission.
- The order is the application for judicial review be dismissed.