Gilchrist v Queensland Community Corrections Board
[2006] QSC 144
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- Unreported Judgment
- Gilchrist v Queensland Community Corrections Board[2006] QSC 144
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Gilchrist v Queensland Community Corrections Board[2006] QSC 144
Gilchrist v Queensland Community Corrections Board[2006] QSC 144
SUPREME COURT OF QUEENSLAND
PARTIES: | |
FILE NO/S: | |
Trial Division | |
PROCEEDING: | Application |
ORIGINATING COURT: | Supreme Court of Queensland |
DELIVERED ON: | 14 June 2006 |
DELIVERED AT: | Brisbane |
HEARING DATE: | 30 March 2006 |
JUDGE: | McMurdo J |
ORDER: | The application for review is dismissed. |
CATCHWORDS: | ADMINISTRATIVE LAW – JUDICIAL REVIEW – REVIEW OF DECISIONS – GROUNDS OF REVIEW – UNREASONABLENESS – where the applicant seeks judicial review of the respondent’s decision refusing the applicant’s application for a post-prison community based release order – where the respondent took into account a report of a departmental officer who strongly recommended that the applicant not be released – whether the respondent acted unreasonably in refusing the applicant’s application for a post-prison community based release order ADMINISTRATIVE LAW – JUDICIAL REVIEW – REVIEW OF DECISIONS – GROUNDS OF REVIEW – IRRELEVANT CONSIDERATIONS – where the applicant seeks judicial review of the respondent’s decision refusing the applicant’s application for a post-prison community based release order – where the respondent was concerned that the applicant had not participated in the Sexual Offenders Treatment Program and posed an “unacceptable risk to the community” – where the applicant argued that other treatment programs have been completed and that the term for rape had been served – whether respondent took into account irrelevant considerations STATUTES – ACTS OF PARLIAMENT –INTERPRETATION – STATUTORY POWERS AND DUTIES – EXERCISE – GENERAL MATTERS – where in May 1998 in the District Court the applicant was convicted of two groups of offences – where the applicant was sentenced to nine years imprisonment for one count of rape and concurrent terms of three years for other offences within that incident – where the applicant was convicted of doing grievous bodily harm with intent and breaking and entering with intent and sentenced to five year terms concurrent with each other but cumulative upon the nine year sentence – where the applicant appealed the sentence – where the Court of Appeal held that the nine year term was not subject to a serious violent offender declaration whereas the five year term was and the nine year term was reduced to seven years – where the respondent accepted that the applicant was eligible for release in June 2005 – where the applicant was not actually eligible for release until August 2006 – where s 135 of the Corrective Services Act 2000 (Qld) provides for when a prisoner is eligible for a post-prison community based release order – where s 135(2)(c) of the Corrective Services Act 2000 (Qld) refers to “period of imprisonment” – how s 135(2) of the Corrective Services Act 2000 operates when the twelve year period of imprisonment comprises some terms for serious violent offences and other terms which were not for serious violent offences – whether “period” should be read as “term” in s 135(2)(c) of the Corrective Services Act 2000 Corrective Services Act 2000 (Qld), s 75, s 81, s 135, s 135(2), 135(2)(c), 135(2)(e) R v Eveleigh [2002] QCA 219 |
COUNSEL: | The applicant appeared on his own behalf |
SOLICITORS: | The applicant appeared on his own behalf |
[1] McMURDO J: The applicant is a prisoner who seeks judicial review of a decision of the respondent refusing his application for a post-prison community based release order. He applied for that order shortly after 6 June 2005, which was the date calculated by the Department of Corrective Services as that from which he was eligible for it. The Board wrote to him on 28 July 2005 expressing its “major concern” that he was “an untreated sex offender”, by which it meant that he had not participated in the Sexual Offenders Treatment Program. It sought further information from the applicant as to why his early release would not involve an unacceptable risk to the community. After a letter from the applicant in response, the Board wrote to the applicant informing him that it had on that day refused his application. He sought a statement of reasons which the Board provided on 10 March 2006.
[2] In that statement of reasons, the Board confirmed the concern expressed in its letter of 28 July 2005 that, in its view, the applicant had “not fully addressed (his) offending behaviour and therefore minimised (his) risk to the community”. The Board had regard to, amongst other things, a report of 1 June 2005 by an officer of the Department of Corrective Services who had interviewed the applicant a couple of days earlier. In her view, the applicant had not “addressed his sexual offending and therefore remains an untreated sex offender”, and she noted that because he had not completed the Sexual Offenders Treatment Program, he had not progressed to an open custody facility which, according to a Ministerial guideline, he should experience before being suitable for community based release.
[3] The Board accepted that he was eligible for release from June 2005, as the Department had advised. As I will discuss, that premise was incorrect. In the events which have occurred, he will not be eligible for release until August 2006. At least for that reason his application must be dismissed. But further, he has failed to establish a ground for review of the Board’s decision.
His sentences
[4] On 27 May 1998 in the District Court the applicant was convicted of two groups of offences. The first were offences committed in March 1997 and involved an attack on a young woman in her own home. The most serious of them was one count of rape. He was sentenced to nine years imprisonment for that count and concurrent terms of three years for other offences within that incident. The second were offences committed in November 1997 and involved an attack on another woman in her house. He violently assaulted her but there was no sexual offending. He was convicted of doing grievous bodily harm with intent to do so and breaking and entering with intent, and for each of those offences he was sentenced to five year terms concurrent with each other but cumulative upon the nine year sentence. He had pleaded guilty to the offences within each group.
[5] He successfully applied for leave to appeal against those sentences.[1] His appeal gave rise to a legal complication from the fact that offences in the first group were committed before the enactment of the legislation providing for serious violent offender declarations[2] whereas the offences in the second group were committed after that date. The Court of Appeal held that the learned sentencing judge was in error in thinking that the provisions for serious violent offenders required the applicant to serve 80 per cent of the 14 year total which he had imposed. The correct position was that the nine year term could not be the subject of a declaration whereas the further five year term had to be so declared. In the Court’s view, this gave “rise to the possibility that the applicant might be released on parole after having served four years and six months of the rape sentence but, after completion of the parole period, return to prison to serve at least four years of the five year sentence”. The Court recognised that this was unlikely to occur and that in this circumstance the parole authority would refuse an application in respect of the nine year sentence. This would produce “an anomalous result”, in that the applicant would serve the full nine years for the rape offence and then at least at 80 per cent (four of the five years) of the subsequent term: a total of 13 years.[3] In the Court’s view, this made the result manifestly excessive and it reduced the nine year term to seven years, making for a total of 12 years. Allowing for the time spent in pre-sentence custody, the applicant was to serve the seven years from December 1997. The Court made two observations about the prospects of an early release. The first was that the applicant’s eligibility for early release would be “as a matter of law, after half the first sentence and after 80 per cent of the second sentence”, so that absent any remission, the result would be that he would be eligible for early release after seven and a half years. Secondly, the Court observed that “if granted full remission in relation to the seven year sentence and granted parole at four years of the other, the applicant will serve a total of eight years eight months”.[4]
[6] As it happened, the applicant was granted that full remission of his seven year sentence. By a decision of 21 August 2002, one third of that sentence was remitted, effective from 1 August 2002. Consequently his five year terms began then,[5] and his full term release date became 1 August 2007. According to what the Court of Appeal had said, he would be eligible for early release only after serving 80 per cent of those terms of five years, i.e. as and from 1 August 2006, and the present application would have to be dismissed.
[7] When the Court of Appeal was discussing the applicant’s early release, the relevant statute was the since repealed Corrective Services Act 1988 (Qld). The date from which a prisoner is eligible for early release is now according to s 135 of the Corrective Services Act 2000 (Qld) which relevantly provides:
“(2)A post-prison community based release order … may start once the prisoner has –
…
(c) for a prisoner serving a period of imprisonment for a serious violent offence – served 80% of the period, or fifteen years, whichever is the less; or
…
(e) otherwise - served half of the period of imprisonment to which the prisoner was sentenced.”
There is a complication from the use of the word “period” in those paragraphs. The term “period of imprisonment” is defined for this Act, by its definition in s 4 of the Penalties and Sentences Act 1992 (Qld), as follows:
“… 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 times or different times;
and includes a term of imprisonment.”
The expression “term of imprisonment” also takes its meaning from the definition in the Penalties and Sentences Act as “the duration of imprisonment imposed for a single offence …”
[8] When the applicant was sentenced in 1998 for these two groups of offences, he was ordered to serve several terms of imprisonment, and thereby a period of imprisonment. The original period was 14 years, which the Court of Appeal varied to 12 years. That period comprised some terms for serious violent offences (the second group) and other terms which were not for serious violent offences (the first group). How does s 135(2) operate in these circumstances? The Court of Appeal was untroubled by that, because the predecessor of s 135[6] had expressed the 80 per cent requirement by reference to the term of the sentence for the serious violent offence. In R v Eveleigh,[7] the applicant, like the prisoner in this case, was ordered to serve a period which was the aggregate of two cumulative terms. The first was for a serious violent offence and the second was not. Upon his application for leave to appeal, each member of the Court considered whether the prisoner would have to serve 80 per cent of that second term, although it was not for a serious violent offence, because it was part of the period of imprisonment ordered to be served. McMurdo P was of the opinion that s 135(2) required the prisoner to serve 80 per cent of his term for the serious violent offence and half of his term for the second offence. Her Honour could see no reason for the use of the term “period of imprisonment” rather than “term of imprisonment”, as it had been in the equivalent section of the 1988 Act, and concluded that the use of “period of imprisonment” was a drafting error, so that the expression where used in s 135(2) should be read as “term of imprisonment”. Fryberg J, with whom Mullins J relevantly agreed, had a somewhat different view, but nevertheless read “period” as “term” in paragraph (c) of s 135(2). Their Honours differed from the President in that they thought that in a case such as this, subparagraph (e) would have no application because subparagraph (c) would apply, with the favourable consequence for that prisoner that he would be eligible after serving 80 per cent of the term for the serious violent offence, and before serving any of the subsequent cumulative term.
[9] As each of the judgments in Eveleigh discussed, if paragraph (c) of s 135(2) is read as a reference to the aggregate of the various terms in a case such as this, it could lead to incongruous results. And how could it be said that a prisoner in a case such as this is serving a period of imprisonment for a serious violent offence if there is a distinct component of that period which is not for such an offence? And if in that case, the prisoner could not be regarded as serving a period of imprisonment of the kind within (c), it would follow that his case is within (e), so that he would be entitled to release of the half way mark notwithstanding the declaration of a serious violent offence. In Eveleigh the same Court subsequently declared that the prisoner was eligible for release after 80 per cent of the first of his terms (which was for the serious violent offence) and by implication, before the commencement of the second (cumulative) term, to accord with the earlier judgments of Fryberg J and Mullins J.[8] Those judgments require me to interpret para (c) of s 135(2), as each of the Court did in Eveleigh, by reading “period” as “term”.
[10] It appears that the department has calculated the applicant’s eligibility date by adding 50 per cent of the seven year term to 80 per cent of the five year term, for a total of seven and a half years from December 1997. That was in error, because reading “period” as “term” in s 135(2)(c), the applicant now “is serving a (term) of imprisonment for a serious violent offence”, and the relevant calculation is by reference only to that term. His eligibility date is after four years of that term: 1 August 2006.
[11] But further the applicant has failed to demonstrate a ground for an order for review of that decision. His complaint, in essence, is that he has been assessed as an unacceptable risk on the basis that he is an untreated sex offender, but he says that he has received treatment by a number of courses in the prison although not through the Sexual Offenders Treatment Program. He points out that he has served the term for the rape offence and that the terms he is now serving are not for sexual offences. And he points to the fact that in 2002 the relevant decision maker within the Department of Corrective Services was satisfied that he should be granted remission of the term for the rape offence, which could only have been granted if that person was satisfied that the risk to the community from his immediate release was not unacceptable. That person was required to consider whether the applicant’s discharge would have posed an unacceptable risk to the community upon the assumption that the term was the only term of imprisonment he was serving and that he could be released if remission were granted.[9]
[12] As already mentioned, the Board acted upon the report of an officer of the Department of June 2005 who strongly recommended that the applicant not be then released. Her report is in terms which, in some parts at least, would suggest that he was a repetitive sexual offender, although his only sexual offence was that one of rape. Nevertheless the question for the Board was whether the risk from early release was unacceptable and the Board has shown a clear understanding of the nature and detail of the offences for which he was imprisoned. The fact that he had already served the term for the offence of a sexual nature did not mean that the Board was to ignore the risk of further sexual offending and to consider only the risk of offences of the kind for which he was then in prison. It must be unusual that one view could be taken by the relevant officer within the Department when granting remission, but a different view be taken by the Board as to the risk of reoffending, especially where the Board was considering a supervised release. It might have been expected that the Board would have specifically addressed that tension within its reasons. However, the Board was entitled and indeed obliged to reach its own view and there is no reviewable error in that respect. Ultimately the applicant’s challenge involves an attack upon the merits of the Board’s decision, an attack which is not without some force but which provides no ground for judicial review. In particular it does not make out a case of unreasonableness in the required sense.
[13] The application for review must be dismissed.
Footnotes
[1] Reported at (1998) 103 A Crim R 410 (McMurdo P, Pincus JA and Mackenzie J)
[2] Penalties and Sentences (Serious Violent Offences) Amendment Act 1997 which relevantly came into force on 1 July 1997
[3] (1998) 103 A Crim R 410 at 414
[4] (1998) 103 A Crim R 410 at 415
[5] Corrective Services Act 2000 (Qld), s 81
[6] Section 166 of the Corrective Services Act 1988 (Qld)
[7] [2002] QCA 219; [2003] 1 Qd R 398
[8] R v Eveleigh [2002] QCA 246
[9] Corrective Services Act 2000 (Qld), s 75