Millar v Chief Executive, Department of Corrective Services
[2005] QSC 9
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- Millar v Chief Executive, Department of Corrective Services[2005] QSC 9
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Millar v Chief Executive, Department of Corrective Services[2005] QSC 9
Reported at [2005] 2 Qd R 29
Millar v Chief Executive, Department of Corrective Services[2005] QSC 9
Reported at [2005] 2 Qd R 29
SUPREME COURT OF QUEENSLAND
PARTIES: | |
FILE NO/S: | |
Trial Divison | |
PROCEEDING: | Hearing |
ORIGINATING COURT: | |
DELIVERED ON: | 2 February 2005 |
DELIVERED AT: | Brisbane |
HEARING DATE: | 15 November 2004 |
JUDGE: | McMurdo J |
ORDER: |
|
CATCHWORDS: | CRIMINAL LAW – PROBATION, PAROLE, RELEASE ON LICENCE AND REMISSIONS – QUEENSLAND – where relevant term of imprisonment expired – where remission purported to be refused after expiry of term ADMINISTRATIVE LAW – JUDICIAL REVIEW LEGISLATION – QUEENSLAND – GROUNDS FOR REVIEW OF DECISION – BREACH OF RULES OF NATURAL JUSTICE – WHAT CONSTITUTES – whether denial of procedural fairness – where remission was refused – where psychological report was relied upon in statement of reasons for refusal – where report was offered to be released to the applicant – where applicant did not seek release of the report ADMINISTRATIVE LAW – JUDICIAL REVIEW LEGISLATION – QUEENSLAND – GROUNDS FOR REVIEW OF DECISION – BREACH OF RULES OF NATURAL JUSTICE – WHAT CONSTITUTES – where remission was refused – where evidence of misbehaviour not subject to formal proceedings was relied upon – whether evidence not put to the applicant was relied upon – whether applicant had been informed of matters and given an opportunity to respond ADMINISTRATIVE LAW – JUDICIAL REVIEW LEGISLATION – QUEENSLAND – GROUNDS FOR REVIEW OF DECISION – IMPROPER EXERCISE OF POWER – ERROR OF LAW – UNREASONABLENESS – where remission was refused – whether respondent satisfied applicant did not pose an unacceptable risk ADMINISTRATIVE LAW – JUDICIAL REVIEW LEGISLATION – QUEENSLAND – GROUNDS FOR REVIEW OF DECISION – IMPROPER EXERCISE OF POWER – RELEVANT AND IRRELEVANT CONSIDERATIONS – where remission was refused – where documents considered that post-dated initial eligibility date for remission ADMINISTRATIVE LAW – JUDICIAL REVIEW LEGISLATION – QUEENSLAND – GROUNDS FOR REVIEW OF DECISION – OTHER GROUNDS – where decision making powers of respondent were delegated – where delegate had power to make decisions relating to prisoners serving over two years – where applicant was sentenced to two years imprisonment and subsequently sentenced to a further two and a half years, to be served cumulatively – whether the delegate had power to determine the remission of the applicant Corrective Services Act 2000 (Qld), s 75, s 77, s 81 Lynde v Chief Executive, Department of Corrective Services (2000) 116 A Crim R 430, distinguished Kay v Chief Executive, Department of Corrective Services [2000] QSC 367, cited McCasker v Queensland Corrective Services Commission [1988] 2 Qd R 261, cited |
COUNSEL: | Applicant appeared on his own behalf S McLeod for the respondent |
SOLICITORS: | Applicant appeared on his own behalf Crown Solicitor for the respondent |
[1] McMURDO J: On 26 March 2004 the respondent refused to grant the applicant remission of a term of imprisonment. The applicant seeks a statutory order of review of that decision.
[2] By the time the respondent made this decision, the relevant term of imprisonment had expired. However, the applicant is also subject to another term of imprisonment, which was ordered to be served cumulatively with the term for which he was refused remission. If remission could still be granted of the expired term, then the applicant argued that this further term would be treated as having commenced earlier, and in that way the remission would be beneficial to him. The threshold question in this case is whether there is a power to grant remission of a term of imprisonment which has already expired.
The Applicant’s Imprisonment
[3] On 14 June 2002, the applicant was sentenced two years imprisonment for stalking, together with shorter concurrent terms for other offences. With a declaration of 156 days of pre-sentence custody, the two year term effectively commenced on 9 January 2002.
[4] On 6 November 2003 the applicant was convicted on seven counts of receiving and seven counts of fraud. On the receiving charges, he was sentenced to two and a half years imprisonment with a recommendation that he be considered for post-prison community based release after serving nine months. On the fraud charges he was sentenced to 18 months imprisonment. These sentences were to be served concurrently with each other but cumulatively upon the sentences imposed in June 2002.
[5] The applicant was in custody until 21 October 2004, when he was granted release on home detention. In August 2003, a release to work order was made in his favour, in consequence of which he was transferred to the West Brisbane Community Corrections Centre on 24 October 2003. However, that order was cancelled a few days later and, it would appear, before he had been released under it.
Refusals of Remission
[6] The applicant’s eligibility for remission arose under s 75 of the Corrective Services Act 2000 (Qld) which provides as follows:
“75Eligibility for remission
(1) A prisoner is eligible for remission only if-
(a) the prisoner is serving a term of imprisonment, as defined in this Act, imposed for an offence committed before the commencement of this section; and
(b) the term of imprisonment is 2 months or more; and
(c) during the prisoner’s period of imprisonment, the prisoner has not been-
(i) granted leave of absence, under the Corrective Services Act 1988, section 61(1)(b) or (c), to engage in or seek employment; or
(ii) released, under the Corrective Services Act 1988, section 86, to serve a period of home detention; or
(iii) released on parole under an order made under the Corrective Services Act 1988, section 165, or
(iv) released under a post-prison community based release order.
(2) Subject to subsections (3) and (4), the chief executive may grant remission of up to one-third term of imprisonment if satisfied-
(a) that the prisoner’s discharge does not pose an unacceptable risk to the community; and
(b) that the prisoner has been of good conduct and industry; and
(c) of anything else prescribed under a regulation.
(3) If, before the chief executive has granted remission, the prisoner is charged with an offence allegedly committed during the term of imprisonment, the chief executive must not grant remission until after the charge is decided.
(4) If the prisoner is convicted of any offence committed during the term of imprisonment, the chief executive may grant remission of up to one-third of the balance of the term after the offence was committed if satisfied-
(a) that the prisoner’s discharge does not pose an unacceptable risk to the community; and
(b) that the prisoner has been of good conduct and industry since the offence was committed; and
(c) of anything else prescribed under a regulation.
(5) Subsection (6) applies for the purposes of granting remission of a term of imprisonment if a prisoner has been sentenced to serve the term of imprisonment cumulatively with 1 or more other terms of imprisonment still to be served.
(6) The chief executive must consider whether the prisoner’s discharge poses an unacceptable risk to the community as if-
(a) the term were the only term of imprisonment the prisoner was serving; and
(b) the prisoner could be released if remission were granted.”
[7] The offence relating to the relevant term was committed between 11 September 2000 and 27 March 2001, before the date of commencement of the section,[1] and the applicant had not been granted leave of absence or released as referred to in s 75(1)(c). It appears that he was not released in 2003 pursuant to the release to work order referred to in para [5] of this judgment. No submission was made to the effect that he had been released then and that he was thereafter disentitled to remission. Subject then to the respondent being satisfied of the matters in s 75(2), the applicant was eligible for remission for up to one third of the term of imprisonment imposed in 2002, with the result that the two year term would have expired on 9 May 2003, instead of on 8 January 2004.
[8] There have been two decisions to refuse remission of this term, of which the second is that challenged in this application. The first decision was made in August 2003. On 28 April 2003, a delegate of the respondent wrote to the applicant, saying that he had formed a preliminary view that the applicant should be refused remission on the basis that he posed an unacceptable risk to the community if released. By letter dated 8 August 2003, another delegate informed the applicant that upon that ground, she had decided to refuse remission. On 21 October 2003, the applicant brought proceedings seeking review of that decision[2] and on 3 December 2003, directions were made for its ultimate hearing. But on 7 January 2004, the Department wrote to the applicant as follows:
“I refer to a decision made on 7 August 2003 to not grant remission on your period of imprisonment of 2 years (charge 1-1) for the offence of stalking.
It has been determined that this decision be set aside and a fresh consideration of your case be made by an Authorised Delegate.
A remission assessment and updated psychological report have been requested as a matter of priority.
An Authorised Delegate will as a matter of priority consider your case upon receipt of all available relevant information.”
That letter put paid to the proceedings which had sought review of the decision of 8 August 2003. But as I have said, the two year term in question expired on the following day, 8 January 2004.
[9] On 1 March 2004, another delegate of the respondent wrote to the applicant informing him of her preliminary view that remission should be refused because she was not satisfied that his discharge did not pose an unacceptable risk. By letter dated 26 March 2004, that delegate refused remission, and on 6 April 2004, she gave a statement of reasons. In none of these documents did the delegate refer to the fact that the relevant term had already expired. In her statement of reasons, she identified the material which she had considered, which included a document described as “sentence details”. According to that document, the two year term was to expire on 13 June 2004. That was a mistake, in that the period of pre-sentence custody was overlooked.
The Application for Review
[10] This application seeks orders to set aside that decision and for the question of the applicant’s remission to be reconsidered according to law. The grounds for the application are said to be a denial of natural justice, unreasonableness, errors of law as to what constitutes an unacceptable risk to the community, fraud and an argument that the delegate did not have authority to decide the applicant’s case. Upon any of these grounds, the applicant says that the question of remission must now be reconsidered.
Remission of a Term after its Expiry?
[11] In the present case, because the applicant has served the whole of the relevant term, the remission of the term would have no utility apart from its potential to affect the subsequently imposed cumulative terms. Section 81 of the Act provides that:
“81Effect of remission on cumulative sentences
If a prisoner is ordered to serve a term of imprisonment (the second term) cumulatively with another term of imprisonment (the first term), the second term starts at the end of the first term, taking into account any remission granted in relation to the first term.”
The applicant’s case is that after the expiry of the relevant term, there was (and is) still a power to remit it to the end of having the subsequent cumulative terms treated as having commenced not on 9 January 2004, but an earlier date from which the remission should be treated as effective.
[12] In my view, there is no power to grant such a remission. According to the terms of this statute, a term cannot be remitted after its expiry. There are at least two respects in which the remission which is sought here would be inconsistent with the terms of the Act.
[13] Firstly, accordingly to s 75(1)(a), a prisoner is eligible for remission only if he or she is serving a term of imprisonment, being the term of imprisonment for which remission is sought.[3] Neither in s 75 or otherwise is it provided that a person is also eligible for remission if he or she has served the relevant term. Nor does the Act provide that a prisoner serving another term, but who has served the relevant term of imprisonment, is eligible for remission.
[14] Secondly, according to s 75(2)(a), the chief executive may grant permission only when satisfied that “the prisoner’s discharge does not pose an unacceptable risk to the community”. The Act does not further provide for an alternative power of remission in relation to an expired term, to the effect that there could be some remission of that term after its expiry, if the chief executive is satisfied that at some date within that term the prisoner’s discharge would not have posed an unacceptable risk. What the chief executive must conclude is that there is no current unacceptable risk from a prospective discharge of the prisoner. Section 77 requires the chief executive to consider certain matters in deciding whether the prisoner’s discharge “poses an unacceptable risk to the community”. The first of those matters is “the possibility of the prisoner committing further offences”. The possibility to be considered is a present one; not one which did or did not exist within a now expired term. Section 77 is in terms which confirm what is already clear from s 75(2)(a) which is that the risk to be assessed by the chief executive is a current risk, rather than some risk as at an earlier date.
[15] Section 75(6) provides for the remission of one term of imprisonment where there is at least one further term to be served cumulatively with it.[4] It requires the Chief Executive to consider whether the prisoner’s discharge poses an unacceptable risk to the community as if “...the term were the only term of imprisonment the prisoner was serving…and…the prisoner could be released if remission were granted”. Again, the language of this subsection seems referrable only to a prisoner who is still serving a term for which remission is sought.
[16] The applicant’s argument relies upon Lynde v Chief Executive, Department of Corrective Services (2000) 116 A Crim R 430 and Kay v Chief Executive, Department of Corrective Services [2000] QSC 367. They were cases decided from under the previous statutory regime, which was contained in the now repealed Corrective Services Regulation 1989. Neither that regulation nor the Corrective Services Act 1988 (Qld) under which they were made provided that the power to grant remission was dependent upon the decision maker’s satisfaction of an absence of an unacceptable risk to the community. In McCasker v Queensland Corrective Services Commission [1988] 2 Qd R 261 it was held that a decision maker under that regime could consider the existence and extent of such a risk. But the Corrective Services Regulation contained no provisions corresponding with s 75(2)(a) and 77, which required the decision maker to consider in every case the existence or otherwise of a current risk. There are statements at least in Lynde which would suggest that a prisoner was entitled to have a consideration of his remission after serving two thirds of his sentence, and that if the chief executive had wrongly failed to consider remission at that point, the chief executive was subsequently bound to consider remission by reference to the facts and circumstances existing at that point. However, Lynde provides no support for that proposition according to the terms of the current Act. Most importantly, there is no support in these cases for the proposition that an expired term can be remitted.
[17] In my conclusion, there is no power under the Corrective Services Act 2000 to remit a term of imprisonment which has already been served. It follows that there was no power to grant remission to this applicant when it was refused on 26 March 2004, and nor is there a power to grant remission if that decision to refuse was now quashed as the applicant seeks. At least for this reason, the application must be refused. But further, the applicant has failed to establish any ground for review of this decision for the following reasons.
The Applicant’s Grounds
[18] The first alleged ground is that the applicant was denied procedural fairness because he was not informed of and able to respond to the contents of a psychological report by Ms Eloise Manitta, dated 20 February 2004. When the respondent’s delegate wrote to the applicant on 1 March 2004, inviting him to show cause why remission should not be refused, she listed amongst the material she had considered:
“A Psychological Report for [the applicant] dated 20 February 2004 (a copy of this document has not been provided, however is able (sic) through controlled release by a senior psychologist at your Correctional Centre)”.
In the same letter, the effect of the report was described as follows:
“…A Psychological report dated 31 July 2003 reports that during interview you had a tendency to minimise the seriousness of your offending and that you had difficulty accepting responsibility for your offending. When commenting on your index offence you stated: "ten years ago they would call this chivalry - now it is called stalking." With regard to the conviction of dangerous driving and assault you stated that these were a result of when "a police officer fell over as I drove off." The psychologist rated you as a moderate risk of re-offending.
A psychological report dated 20 February 2004 reports that you displayed limited insight into your offending by "minimising acts that form the current offence of Unlawful Stalking, and externalising blame to interference by the victim's family, and the police." You identified your behaviour as “chivalrous” and reported that the victim was "a very emotional girl, no innocent angel." You are reported to believe that the victim of your offending did not want to end the relationship but was pressured to do so by her older sister.
It is reported that you also minimised your previous offences describing your offences of dishonesty as "petty crimes".
Psychometric testing indicates that you tend to present yourself as relatively free of shortcomings and reluctant to admit to or recognise personal faults or problems.
The psychologist rates you as a medium risk of re-offending however notes that this risk may be heightened if you are in a personal relationship where constraints are imposed upon you that are contrary to your beliefs or desires. The psychologist also notes that your risk of recidivism is heightened should you relapse in your gambling.…”[5]
[19] In none of the applicant’s letters of 8, 9 or 10 March 2004, did he ask to see the report dated 20 February 2004. It was available to him, if he wished to know more of its contents than the summary he had been given. In my conclusion this ground is not established.
[20] The next alleged ground is that “the respondent has used as fact evidence against granting the applicant remissions allegations of which the applicant has never been found guilty of or in any instance ever questioned about the allegations in question.” Both the letter of l March 2004 and the Statement of Reasons referred to instances of alleged misbehaviour in respect of which a court or disciplinary body had not made a finding. However, the applicant was informed of the relevance of the matters in the letter of 1 March and had an opportunity to respond to them. The decision-maker was not obliged to ignore these matters merely because they had not been proven against the applicant in formal proceedings.
[21] The next grounds can be considered together. The applicant argues that the decision was unreasonable and involved errors of law because:
“3(a)the decision-maker’s conclusion that the applicant “presents an unacceptable risk to the community” was not based on logically probative material or evidence;
(b)the decision-maker’s conclusion that the applicant presents an unacceptable risk to the community was against the weight of evidence;
(c)the decision-maker did not make a proper and genuine assessment of the risk to the community of the applicant’s release and hence failed to properly exercise the discretion”.
Remission was refused not because of any finding that the applicant posed an unacceptable risk, but because the delegate was not satisfied of the absence of such a risk. Her reasoning is apparently logical and based on probative material and there is no basis for concluding that it was not a genuine assessment of the risk. Ultimately, as the applicant presented these arguments he appeared to be seeking a review of the decision on the merits. The decision-maker was not bound to be satisfied of the absence of the risk and her consideration of this matter was not affected by any reviewable error.
[22] The next ground[6] is that the delegate considered irrelevant material, because she considered documents which post-dated 9 May 2003. That is the date upon which the applicant reached the two-thirds mark of his two-year term. He argues that his remission should have been considered on or about that date. For present purposes that can be accepted. But he then argues, in reliance upon Lynde and Kay, that any subsequent consideration of his remission should be by reference to the facts and circumstances as they existed at May 2003. As I have said already, that would be inconsistent with the terms of the present statute.
[23] Paragraph 6 of the application asserts that the decision was induced or affected by fraud. There is no support for such a serious allegation in the evidence and it was barely pressed by the applicant.
[24] The remaining ground is that within paragraph 5 of the application, which is that the decision-maker was not a person with delegated authority to decide this prisoner’s remission. The decision-maker holds a delegation from the chief executive under s 57(1) of the Public Service Act 1996 (Qld). Under the instrument of delegation, this officer, being a Senior Advisor, Office of Sentence Management, is authorised to decide the matter under s 75(2) of the Corrective Services Act “in relation to prisoners serving over two years and up to 10 years”. The longest of the applicant’s terms to be remitted was two years. But he was serving a period of imprisonment of four and a half years, being the aggregate of his cumulative terms.[7]
The applicant’s submission is that this delegate was too senior to consider his case, which should have been considered by a person within that category in the instrument of delegation who is able to consider cases of prisoners “serving two years or less”. In the instrument of delegation, the cut-off point of two years is not expressed as a term of imprisonment or as a period of imprisonment. Remission is granted of a term of imprisonment, which provides some support for the applicant’s argument that the two years referred to in the instrument is a reference to the length of the relevant term to be remitted. Against that however, the duration of the applicant’s imprisonment totalled over two years, so that he was “serving over two years” in the ordinary sense of that expression. The point is arguable either way, but my conclusion is against the applicant’s argument. The criterion seems to me to operate simply according to the duration of time which in total the prisoner is serving. The apparent intention is to require the consideration of a more senior person for prisoners who are in jail for relatively longer times.
Respondent’s Further Submission
[25] Section 75(1)(c)(iv) provides that a prisoner is ineligible for remission if he or she has been released under a post-prison community based release order “during the prisoner’s period of imprisonment”. The applicant was released under such an order on 21 October 2004, whilst serving a period of imprisonment which the respondent argues was the aggregate of the expired term and the further terms imposed in November 2003. The respondent submitted that this release put paid to any power to remit which still existed. In the light of my conclusions, it is unnecessary to consider whether the submission provides any further reason for refusing this application.
[26] The application must be dismissed. I shall hear the parties as to costs.
Footnotes
[1] July 2001
[2] B5939/03
[3] s 75(2)
[4] s 75(5)
[5] Page 8 of that letter, the same summary being given at page 11.
[6] Contained in paragraph 4 of the application
[7] The expression “period of imprisonment” is defined by reference to its definition in s 4 of the Penalties and Sentences Act 1992 (Qld) to mean “…the unbroken duration of imprisonment that an offender is to serve for two or more terms of imprisonment, whether –
(a) ordered to be served concurrently or cumulatively; or
(b) imposed at the same time or different times; and includes a term of imprisonment.”