Petrie v Queensland Community Corrections Board
[2006] QSC 282
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- Unreported Judgment
- Petrie v Queensland Community Corrections Board[2006] QSC 282
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Petrie v Queensland Community Corrections Board[2006] QSC 282
Petrie v Queensland Community Corrections Board[2006] QSC 282
SUPREME COURT OF QUEENSLAND
CITATION: | Petrie v Queensland Community Corrections Board [2006] QSC 282 |
PARTIES: | MICHAEL JAMES PETRIE |
FILE NO/S: | BS 5787 of 2006 |
DIVISION: | Trial Division |
PROCEEDING: | Application |
ORIGINATING COURT: | Supreme Court |
DELIVERED ON: | 3 October 2006 |
DELIVERED AT: | Brisbane |
HEARING DATE: | 7 September 2006 |
JUDGE: | Philippides J |
ORDER: | The decision of the respondent made on 12 May 2006 be set aside and the application for post-prison community based release be referred to the respondent for further consideration and determination according to law |
CATCHWORDS: | ADMINISTRATIVE LAW – GROUNDS OF REVIEW – JUDICIAL REVIEW – error of law – defective exercise of power – denial of natural justice – failure to take a relevant consideration into account – where applicant convicted on his plea to murder – where respondent refused application for post-prison community based release – where respondent raised concern as to sexual element to offending – where respondent had regard to autopsy report finding that victim had been sodomised and to statements reportedly made to psychologists admitting sexual offending – where applicant given an opportunity to comment on the autopsy finding but not on statements reportedly made to psychologists - whether applicant denied natural justice – whether respondent Board failed to take into account a relevant consideration because it did not inquire into the basis of the sentence imposed – where the sentencing remarks made no mention of any sexual offending Judicial Review Act 1991 (Qld), s 23(b) Kioa v West (1985) 159 CLR 550 Minister for Aboriginal Affairs v Peko-Wallsend (1986) 162 CLR 24 Minister for Immigration and Ethnic Affairs v Teoh (1995) 183 CLR 273 Mott v Queensland Community Corrections Board [1995] 2 Qd R 261 Pilbara Aboriginal Land Council Inc v Minister for Aboriginal & Torres Straight Islander Affairs (2000) 103 FCR 539 R v Angel, ex parte Van Beelen (1983) 34 SASR 34 Regina v Gaming Board for Great Britain, Ex parte Benaim and Khaida [1970] 2 QB 417 Re Solomon [1994] 2 Qd R 97 Tickner v Bropho (1993) 40 FCR 183 Videto v Minister for Immigration and Ethnic Affairs (1985) 69 ALR 342 York v The General Medical Assessment Tribunal [2003] 2 Qd R 104 |
COUNSEL: | Mr J Fenton for the Applicant Mr M Hinson SC with Ms K Mellifont for the Respondent |
SOLICITORS: | Prisoners’ Legal Service for the Applicant Crown Law for the Respondent |
PHILIPPIDES J:
Background facts
- The applicant seeks judicial review of a decision of the respondent of 12 May 2006 declining to grant him post-prison community based release (PPCBR).
- On 24 July 1987, the applicant was sentenced to life imprisonment for the offence of murder to which he pleaded guilty on that day. A nolle prosequi was entered in respect of a count of stealing with violence whilst armed. The applicant had also originally been charged with one count of carnal knowledge against the order of nature arising from the circumstances of the murder, but was apparently never indicted on that count.
- By application dated 9 December 2005, the applicant applied for a PPCBR order which the respondent considered on 24 March 2006. The respondent wrote to the applicant on 31 March 2006, stating that it was considering not granting the application because it appeared that he “may not be an acceptable risk to the community” on any form of PPCBR order. The letter outlined the respondent’s concerns as follows:
“The Assessment Unit Report gave the Board a brief description of circumstances surrounding your offence and indicated that the autopsy results found that the victim died from multiple head injuries and had been sodomised.
…
… the Board’s primary obligation is the protection of the community and the Board is concerned that the sexual element of your offence remains unaddressed in any substantial manner. Until this occurs, the Board has no reason to consider that you have minimised any risk you may be to the community and must consider you as an untreated sex offender. The Board has been informed of the new sex offender programs now available in the Department and strongly recommends that you be assessed for possible participation in one of these programs. If you are assessed as suitable for a program it is recommended that you fully participate in it and provide the Board with evidence of a substantial and personally integrated relapse prevention plan.”
- The applicant was not provided with a copy of the Assessment Unit Report nor given details of its content other than those mentioned in the letter of 31 March 2006. The applicant was invited to make submissions in respect of information he believed the respondent had not considered but that might cause it to reach a different final decision.
- The applicant responded by way of letters dated 12 April 2006 and 24 April 2006. On 12 April 2006 the applicant wrote to the respondent objecting to being “labelled” as an “untreated sex offender”, stating that the offence for which he was sentenced was murder. In his letter of 24 April 2004, the applicant agreed with the first three paragraphs of the respondent’s letter of 31 March 2006 (which included the statement that the autopsy results showed that the victim had been sodomised) but disputed the fourth paragraph where the respondent referred to their considering the applicant as an untreated sex offender. He reiterated that he had been sentenced for the offence of murder only. He continued, “I believe that only a court can convict me of my crimes, a government department does not have the power to create offences and have them listed against me, and then use these ‘false’ offences to blackmail me into participating in extra courses.”
- On 15 May 2006, the respondent wrote to the applicant and advised that his application which had been considered on 12 May 2006 had been declined, by reason of the matters outlined in its previous letter. On 15 June 2006, the respondent provided a statement of reasons, listing numerous documents that had been taken into account, including psychological reports by Ms Rowland dated 24 April 2003 and by Ms McEvoy dated 18 October 2005. The letter stated as follows:
“On 12 May 2006 the Board fully considered [your letters of 12 and 24 April 2006] and your application as a whole. It appreciated your concern that the Board in its letter of 31 March 2006, had referred to as sexual element of your offence that remained unaddressed. The Board recognised in that same letter that the offence for which you were sentenced on 24 July 1987 was Murder. It also acknowledges that it had before it the sentencing calendar which noted that you pleaded guilty to Count 1 which was murder and that a Nolle Prosequi was entered in respect of Count 2 which was armed robbery with personal violence.
The concern the Board was trying to express to you arose out of the circumstances surrounding the offence of murder. There were a number of reports in which you were interviewed about these and in some you say you could not recall any sexual element of the offence (eg September 1994) but in other reports you said that you ‘must have’ raped the victim because ‘that’s what they said at the time’ (Rowland, 2003) while another psychologist noted that ‘later in the interview he inadvertently disclosed that he had sodomised the victim following the attack.’ (McEvoy 2005).
As you rightly put before the Board, the Board must deal with you for the matter for which you are incarcerated. However, some of the circumstances surrounding the murder remain unclear and there are contradictory reports before the Board about your knowledge of these circumstances. The Board considered it both appropriate and important that these circumstances should not be ignored and could rightly be approached as a strategy to minimize the possibility of further offending which could again result in an innocent person being killed. With the development of new sex offender programs in the Department and new assessment tools to ensure only suitable people are admitted to the programs, the Board considered that these may be a possible way of exploring and clarifying if there were substantial risk factors linked to sexual drives that related to the unclear circumstances surrounding your offence. For this reason the Board considered it opportune for you to be assessed for possible participation in one of these programs. The Board has no way of knowing if you are suitable until such an assessment is undertaken and until that happens the possible risk factors relating to any offence which may have sexually contributing factors remain unaddressed and untreated. . . . The contradictory reports already before the Board also show the need to clarify this matter if possible.”
- In her report, Ms McEvoy had stated:
“Petrie claimed no memory of his offence stating that it must have been him because others said it was. However, during interview Petrie was able to recall a considerable amount of detail with ease through the use of cognitive interview but unfortunately all was inconsistent with the known facts. His alleged memory loss is confined to the actual assault on his victim claiming the considerable amount of rum he had consumed coupled with a ‘handful’ of his mother’s sleeping tablets prevented him from recalling his actions or reasons for the offence however later in the interview he inadvertently disclosed that he had sodomised the victim following the attack.”
- On 10 July 2006, the applicant was assessed by the Offender Programs Unit of the Department of Corrective Services as unsuitable for participation in a sexual offending program and no further recommendations were made in regard to sexual offending interventions. I observe that Ms McEvoy had also stated in her report that the applicant’s psychopathy and the fact that he had murdered his victim precluded him from recommendation for sex offender programs.
The grounds for review
- At the hearing of the application, two grounds of review were put forward. The primary ground on which it was argued that the respondent’s decision ought to be set aside was that the applicant had been denied natural justice in the decision making process. A second basis of review was argued; that the respondent had failed to take into account a relevant consideration: s 23(b) of the Judicial Review Act 1991 (“the JR Act”).
- As mentioned the applicant was not indicted for the offence of unlawful carnal knowledge against the order of nature, nor of any other sexual offence in respect of the events occurring on the day of the murder. It was clearly not the function of the respondent to inquire into and determine the criminal liability of the applicant in respect of any such offence. However, notwithstanding the statement that the applicant was to be “considered as an untreated sex offender”, the respondent’s statement of reasons clarified that it did not purport to inquire into whether the applicant was guilty of a sexual offence. Rather, the statement of reasons identified the respondent’s concern as one relating to the circumstances surrounding the murder and the evidence of there being a sexual aspect to those circumstances. This concern was raised as part of the overall concern that the applicant may be an unacceptable risk to the community until any sexual aspect to the offending was clarified and addressed. In this regard the respondent acknowledged that some of the circumstances surrounding the murder remained unclear and the applicant’s knowledge of any sexual aspect to it was contradictory.
Denial of natural justice
- While the applicant was given the opportunity to comment on the finding in the autopsy report, that the victim had been sodomised, the applicant’s complaint was that he was not given the opportunity to comment on the statements reported to have been made to the psychologists, Ms Rowland and Ms McEvoy, which were referred to in the respondent’s letter of 15 June 2006 and which indicated the applicant had admitted to committing sodomy. It is not contended that copies of the psychologists’ reports ought to have been provided, but that the substance of the statements reportedly made to the psychologists by the applicant concerning the alleged sodomy ought to have been indicated to him for his comment. It is not disputed by the respondent that the applicant was not given that opportunity.
- In Kioa v West[1], Mason J (as he then was) observed that natural justice requires that a person is given notice of the critical issues or factors on which a decision is likely to turn so that he or she is given an opportunity of dealing with them. This does not mean that every detail must be disclosed, but there must be a sufficient indication of the objections raised against an applicant: Regina v Gaming Board for Great Britain, Ex parte Benaim and Khaida.[2] In Re Solomon[3], Ambrose J, applying these principles, held that that natural justice required a parole board to disclose to a prisoner “the issues or factors which it considers to be critical to its determination”. His Honour referred to useful observations in of White J in R v Angel, ex parte Van Beelen[4] that the principles of natural justice required a parole board:
“to disclose to a prisoner the substance of the evidence or factors adverse to the prisoner … it is, I hold, the duty of the board to outline to him the substance of the disclosable evidence or the main factor or factors militating against his application …”
That position was reiterated by Thomas J (as he then was) in McEncroe v Queensland Community Corrections Board.[5]
- The respondent argued that in the present case the critical issue on which its decision turned was the concern that there was a sexual aspect to the murder committed by the applicant and that that issue was sufficiently brought to the applicant’s notice by referring him to the autopsy’s finding. The respondent pointed to the applicant having not disputed the autopsy finding. Nevertheless, the applicant’s concession as to the autopsy finding was not an admission of his having committed sodomy. Furthermore, as counsel for the respondent conceded, the evidence before the respondent that the circumstances of the murder involved sexual offending, consisted not only of the autopsy finding, but also the two statements recorded in psychologists’ reports. The autopsy report was not considered alone, but in conjunction with those reported admissions.
- Natural justice required that the basis of the respondent’s concerns arising out of the circumstances surrounding the offence of murder was indicated to the applicant for his comment. To only mention the autopsy finding did not fully appraise the applicant of the considerations on which the respondent’s decision was likely to turn. The reported admissions were also likely to and did assume importance, as can be seen from the emphasis placed on them in the statement of reasons; this was particularly so where, as the respondent recognised, aspects of the circumstances surrounding the murder were unclear. Indeed, the statement of reasons is telling in this regard; they place critical significance on the reported admissions in concluding that there were “contradictory reports” as to the applicant’s knowledge of the circumstances of the offending that required clarification and addressing.
- The respondent ought to have given the applicant the opportunity to comment on the reported admissions to the psychologists and, in failing to do so, the respondent breached the rules of natural justice.
Failure to take relevant consideration into account (s 23(b) of the JR Act)
- Clearly the respondent was entitled to look at the whole of the relevant background concerning the nature and circumstances of the offence leading to the sentence.[6] In this regard, the respondent considered the sentencing remarks and the autopsy report. The sentencing remarks were quite brief (as may be expected given that a mandatory sentence applied) and made no mention of there being any sexual aspect to the murder. The applicant did not contend that the respondent was not entitled to have regard to the autopsy report, including the finding that the victim was sodomised, as part of the circumstances of the murder.
- However, it was submitted on behalf of the applicant, citing Minister for Immigration and Ethnic Affairs v Teoh,[7] that once the respondent had specifically elevated the facts and circumstances surrounding the offence and the matter of a sexual aspect to the offending as of particular concern, as it did in its letter of 31 March 2006, it was bound to inquire further into the matter and beyond the sentencing remarks. It was contended that the respondent was bound to have recourse to the court transcript of the prosecutor’s address on sentence and the applicant’s record of interview, as the best information available about the offence and as the relevant factual basis on which the uncontested sentence for murder proceeded. The respondent’s failure to do so was said to constitute a failure to have regard to a relevant consideration within the meaning of s 23(b) of the JR Act in respect of the factual basis on which the applicant was sentenced. In support of its contentions the applicant also referred to Tickner v Bropho,[8] where it was held that it may be an improper exercise of power if there is material known to be readily available which is likely to be of critical importance in the decision which is not utilised and Videto v Minister for Immigration and Ethnic Affairs[9] as authority for the proposition that a duty to inquire arises where the material before the decision-maker contains some obvious omission or obscurity that needs to be resolved.
- I do not consider that the respondent was under an obligation to inquire further into the basis of the sentence imposed, by seeking and obtaining the prosecutor’s submissions on sentence, so that its failure to do so amounted to error.[10] Even assuming that those submissions were still obtainable, nothing was put before the court to suggest that they were likely to be of assistance in clarifying whether there was any sexual aspect to the murder. Whilst the possibility that the submissions might have been useful could not be excluded, given that the applicant was not indicted for any sexual offence, one would have thought they would not be likely to have been illuminating. And as the applicant accepts, the absence of any reference in the prosecutor’s submissions to a sexual aspect to the offending conduct for which the applicant was sentenced, would not have precluded the respondent from considering evidence properly before it indicating a sexual aspect. I do not therefore consider that the applicant has demonstrated that the respondent made an error in failing to take a relevant consideration into account.
- I note, that in her report Ms McEvoy indicated that the court transcripts “did not provide the entire details surrounding the commission of the offence” and stated that the sentencing judge had relied on a record of interview which, despite every effort being made, she was unable to locate. There is no evidence before the court as to whether the record of interview could have been provided to the respondent if it had been sought and nothing has been put before the court by the applicant to indicate whether it was likely to have been of assistance to the respondent in its decision or was likely to have countered the respondent’s concerns. While the record of interview may have assisted, I do not consider there was a duty to consider it so that the failure to do so constituted reviewable error. Ms McEnvoy’s report also relied upon contemporary media reports. I do not consider that those press reports and the mere allegations contained in the police brief in respect of the alleged sodomy could be proper matters for consideration by the respondent as least without the applicant being afforded the opportunity to comment on them.[11]
- I order that the decision of the respondent made on 12 May 2006 be set aside and that the application for post-prison community based release be referred to the respondent for further consideration and determination according to law.
Footnotes
[1] (1985) 159 CLR 550, 582, 587; Pilbara Aboriginal Land Council Inc v Minister for Aboriginal & Torres Straight Islander Affairs (2000) 103 FCR 539, 557; York v The General Medical Assessment Tribunal [2003] 2 Qd R 104.
[2] [1970] 2 QB 417, 431.
[3] [1994] 2 Qd R 97, 108.
[4] (1983) 34 SASR 34, 63-64.
[5] (1998) 96 A Crim R 85, 88-89.
[6] Mott v Queensland Community Corrections Board [1995] 2 Qd R 261, 278, 283. See also Ministerial Guidelines for the Release of Prisoners on Post-Prison Community Based Release Orders, September 2005, para 2.2.
[7] (1994-1995) 183 CLR 273, 289-90, 321.
[8] (1993) 40 FCR 183, 198.
[9] (1985) 69 ALR 342, 353.
[10] Minister for Aboriginal Affairs v Peko-Wallsend (1986) 162 CLR 24, 40.
[11] Mott v Queensland Community Corrections Board [1995] 2 Qd R 261, 283.