Weribone v Chief Executive, Department of Corrective Services
[2007] QSC 282
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- Unreported Judgment
- Weribone v Chief Executive, Department of Corrective Services[2007] QSC 282
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Weribone v Chief Executive, Department of Corrective Services[2007] QSC 282
Weribone v Chief Executive, Department of Corrective Services[2007] QSC 282
SUPREME COURT OF QUEENSLAND
PARTIES: | |
FILE NO/S: | |
Trial Division | |
PROCEEDING: | Application |
ORIGINATING COURT: | |
DELIVERED ON: | 3 October 2007 |
DELIVERED AT: | Brisbane |
HEARING DATE: | 27 September 2007 |
JUDGE: | McMurdo J |
ORDER: | The decision of the respondent’s delegate dated 6 August 2007 is set aside. |
CATCHWORDS: | ADMINSTRATIVE LAW – JUDICIAL REVIEW – GROUNDS OF REVIEW – ERROR OF LAW – where applicant seeks judicial review of decision to refuse grant of remission – where decision maker bound to consider various matters – where decision maker did not have access to sentencing remarks – whether decision maker had sufficient material to consider all mandatory factors – whether decision maker considered degree of risk of harm to community Corrective Services Act 2000 (Qld), s 75, s 77 Corrective Services Act 2006 (Qld), s 400, s 401, s 402 Weribone v. Chief Executive, Department of Corrective Services [2007] QSC 129, cited |
COUNSEL: | The applicant appeared on his own behalf GJ Handran for the respondent |
SOLICITORS: | The applicant appeared on his own behalf Crown Solicitor for the respondent |
[1] The applicant is a prisoner seeking judicial review of a decision to refuse him remissions. This is his fourth such application. Each of the others was successful and resulted in the matter being referred back for reconsideration. On the first and second occasions, the decision was made by another delegate of the respondent Chief Executive. On the third and present occasions the decision maker was Mr Collins, the current general manager of the Wolston Correctional Centre.
[2] The present decision was made on 6 August 2007 after he was ordered to reconsider by the judgment of Chesterman J of 5 June 2007.[1] In essence the applicant says that this decision is no different from that reviewed by Chesterman J and should be set aside for the same reasons. I do not accept that argument. It appears that the delegate has endeavoured to decide the matter consistently with that judgment. In my conclusion however there are errors in this decision which provide grounds for its review.
[3] The applicant is serving concurrent terms of six years for two rape offences. Those terms were imposed together with shorter concurrent terms for three offences of indecent assault. The applicant pleaded guilty to these five offences in these circumstances. He had been indicted upon some 13 counts of sexual offences each involving the same complainant, allegedly occurring over many years. On about the third day of his trial, the Crown said it would not proceed upon eight of those counts and the applicant then pleaded guilty to the other five. He was sentenced to six years for each of the rape offences, four years for each of two offences of indecent assault with circumstances of aggravation and three years for another offence of indecent assault.
[4] The full sentencing remarks are not in evidence. All that I have, and it appears all that Mr Collins had, is a one page extract recording the imposition of those sentences together with these comments by the learned sentencing judge:
“The penalty I am going to impose is, in the circumstances, lenient … These are very serious charges against you. They have affected the complainant and it is to be hoped that with some assistance she will be able to resolve the problems which have arisen because of your offences against her.”
[5] Although he was convicted upon his pleas of guilty, the applicant sought to appeal those convictions. He was unsuccessful. In the judgment of Davies JA in that appeal[2], the applicant’s argument to challenge those convictions is set out. The applicant then claimed that he had been pressured into changing his pleas from not guilty to guilty by his counsel and members of his family. That factual assertion was strongly rejected by Davies JA, with whom the other members of the court agreed. His Honour found that contrary to the applicant’s argument, there was no improper pressure put upon the applicant and that he had pleaded guilty after “careful, sensible and … correct advice”.
[6] In his consideration of this argument, Davies JA found it necessary to discuss only one of the counts, being one of the rape counts. The issues on that appeal did not require a discussion of the other counts. In relation to them, all that Mr Collins could have derived from the judgment on appeal was that they involved the same complainant and after she had turned 16.
[7] The result is that from what Mr Collins had, it would be impossible to say what were the facts and circumstances of those offences. That is because he was not in possession of the full transcript of the sentencing remarks, in which those facts and circumstances would have been recorded. Of those other offences, all that he had was the sentencing Judge’s description of the charges as “very serious” and as causing problems for the complainant. Those other offences included the other rape offence, for which the applicant is still in custody.
[8] Consequently Mr Collins did not have information which was essential to the consideration of matters which he was required to consider by s 77 of the Corrective Services Act 2000 (Qld). Although that Act has been repealed, the applicant’s eligibility for remission remains according to its provisions by reason of sections 400 to 402 of the Corrective Services Act 2006 (Qld).
[9] Section 75(2) had provided that remission could be granted if the Chief Executive or his delegate was satisfied that the prisoner had been of good conduct and industry and that the prisoner’s discharge would not pose an unacceptable risk to the community. Mr Collins was satisfied as to the prisoner’s good conduct and industry. According to what he wrote to the applicant he was not satisfied that his discharge would not pose an unacceptable risk to the community. But according to what he signed on 26 June last, at the foot of a document entitled “Remission Assessment”, Mr Collins considered the applicant’s risk to the community to be unacceptable. There is some inconsistency here which indicates, but not demonstrates, that Mr Collins had not properly considered this question of risk.
[10] In considering that question of risk, Mr Collins was obliged to consider the matters which had been prescribed by s 77 in the following terms:
“Risk to community
In deciding whether a prisoner’s discharge or release poses an unacceptable risk to the community, the chief executive must consider, but is not limited to considering, the following –
(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.
[11] Because Mr Collins did not have the full sentencing remarks, or other information about the other offences for which he was jailed in 2001, Mr Collins was unable to consider at least these matters prescribed s 77: the prisoner’s past offences and any patterns of offending, whether the circumstances of the offence or offences were exceptional when compared with the majority of offences committed of that kind, and any relevant remarks made by the sentencing court. Accordingly, at least for those reasons this was an improper exercise of the power, providing a ground for review.
[12] Also required to be considered by s 77 was:
“(b) The risk of physical or psychological harm to a member of the community and the degree of risk.”
The decision maker had to consider that matter before deciding whether the prisoner’s discharge or release would pose an unacceptable risk to the community. As the structure of s 77 made clear, they are related but distinct questions. I am unable to see where Mr Collins has considered the matter within paragraph (b) of s 77. He did have the results of the application of the STATIC-99 test, by which an offender’s risk of recidivism is assessed on the basis of certain risk factors. The application of that test to the applicant’s circumstances, as they were when he began this period of imprisonment, resulted in his risk being in the “moderate-low range”. As Mr Collins would have read in a psychologist’s report, the recidivism estimates provided by the test are “group estimates based upon reconvictions and were derived from groups of individuals with these characteristics [and] the offender’s actual risk may be higher or lower than the probabilities estimated in the STATIC-99 depending on other risk factors not measured by this instrument.” Mr Collins also had the psychologist’s opinion that because the applicant had not participated in intervention programmes, he “remains as a moderate-low risk of sexual recidivism”. Mr Collins did not say that he accepted that opinion, although it is unclear what weight if any he gave to it.
[13] What is indicated by the STATIC-99 test is not the same as the matter to be considered under paragraph (b) of s 77. What the section requires is a consideration of the risk in the case the individual offender and hence the consideration also of the prisoner’s individual circumstances. And the STATIC-99 test provides indications of a long term risk, as Mr Collins would have read in the psychologist’s report. The risks under s 77 are in relation to the prisoner’s being in the community instead of being in prison and the period for which those risks were to be assessed was, in this case, one of only two months duration. This does not make the STATIC-99 test irrelevant but it cannot be said that if Mr Collins has made use of that test, it answered the question raised by paragraph (b) of s 77.
[14] Importantly paragraph (b) required not only a consideration of the risk of harm to a member of the community but of the degree of risk. That had to be considered before the decision maker decided whether that degree of risk of the prisoner’s discharge was unacceptable. By saying (in his internal document) that the risk was unacceptable or (as he wrote to the applicant) that he was not satisfied that the risk was acceptable, Mr Collins had not first considered the degree of risk. I do not suggest that he was required to give that risk some quantified probability. But it was essential that he do more than identify the existence of the risk, because the notion of “unacceptable risk to the community” means that in some cases there can be a risk but an acceptable one.
[15] For these reasons it is my conclusion that Mr Collins failed to decide according to s 77 and grounds for review are demonstrated. Chesterman J had set aside the previous decision because Mr Collins had not considered the question of unacceptable risk, but had simply decided that remission should be refused because the applicant was a sex offender who had not undertaken any treatment to address his behaviour. As I read the present decision that same error does not appear. Mr Collins makes reference to several other matters such as the applicant’s creditable academic performance whilst a prisoner.
[16] What if any should be the orders? The applicant argues that there is some particular utility in this decision being set aside because he says that it will affect in his case the impact of the Child Protection (Offender) Reporting Act 2004 (Qld). His arguments in that respect are not entirely clear but in my view there is utility in setting aside the present decision. There is likely to be some consequence if this decision is not set aside, even if it is treated as involving no conclusion one way or the other as to the existence of an unacceptable risk to the community. The applicant goes further and argues that I should order the respondent to grant the remission. I am far from persuaded that this would be appropriate. The applicant’s frustration with the process, having regard to the successive failures of decision makers to decide his case according to law, is understandable. But it is not the case that a decision maker could have decided his remission application only in one way.
[17] I see no utility in requiring the matter to be reconsidered. His fulltime release date is at the end of next week and a proper reconsideration is likely to take longer than that.
[18] The decision of the respondent’s delegate dated 6 August 2007 will be set aside.