Bickle v Chief Executive, Department of Corrective Services [2008] QSC 328

SUPREME COURT OF QUEENSLAND CITATION: Bickle v Chief Executive, Department of Corrective Services [2008] QSC 328 PARTIES: STEVEN SHANE BICKLE (applicant) v CHIEF EXECUTIVE, DEPARTMENT OF CORRECTIVE SERVICES (respondent) FILE NO/S: 9577/08 DIVISION: Trial Division PROCEEDING: Application for judicial review DELIVERED ON: 12 December 2008 DELIVERED AT: Brisbane HEARING DATE: 7 November 2008 JUDGE: Wilson J ORDER: Application dismissed CATCHWORDS: ADMINISTRATIVE LAW – JUDICIAL REVIEW – GROUNDS OF REVIEW – APPLYING POLICY AND MERITS OF CASE – where Applicant released under Dangerous Prisoner (Sexual Offender) supervision order – where order included requirements that he submit to electronic monitoring and curfew as directed by a corrective services officer – where directions for electronic monitoring and 24 hour curfew – where duration of curfew progressively reduced – whether the Respondent exercised discretionary power in accordance with the rule of policy without regard to the merits of the particular case ADMINISTRATIVE LAW – JUDICIAL REVIEW – GROUNDS OF REVIEW – ERROR OF LAW – where objects of Dangerous Prisoners (Sexual Offenders) Act 2003 are adequate protection of the community and rehabilitation of the offender – whether the Respondent erred in law in regarding the protection of the community as the paramount consideration in directing curfew and electronic monitoring ADMINISTRATIVE LAW – JUDICIAL REVIEW – GROUNDS OF REVIEW – UNREASONABLENESS – whether the Respondent’s exercise of the discretionary power was so unreasonable that no reasonable person could have so exercised it – whether the Respondent had a plausible -- 1 of 20 -- 2 justification ADMINISTRATIVE LAW – JUDICIAL REVIEW – GROUNDS OF REVIEW – RELEVANT CONSIDERATIONS – where the Applicant’s offending occurred in particular domestic contexts – where the Applicant had not re-offended – where psychiatrists were of the opinion that there was no justification for imposing either a curfew or electronic monitoring – whether the respondent took all relevant considerations into account ADMINISTRATIVE LAW – JUDICIAL REVIEW – GROUNDS OF REVIEW – IRRELEVANT CONSIDERATIONS – where the Respondent appeared to be uncooperative and hostile towards corrective services officers – whether the Respondent took irrelevant considerations into account ADMINISTRATIVE LAW – JUDICIAL REVIEW – GROUNDS OF REVIEW – UTILITY – where the respondent submitted that there was no utility in reviewing decisions other than the decision operative at the time of the hearing – whether to review earlier, related decisions Corrective Services Act 2006, ss 263, 271, 276 Dangerous Prisoners (Sexual Offenders) Act 2003, ss 3, 13(6), 16, 19(3) Judicial Review Act 1991, ss 20(2)(a), (e), (f), (h), (i); 23 (a), (b), (f), (g), (i); 24 Attorney-General for the State of Queensland v Steven Shane Bickle [2008] QSC 211, considered Associated Provincial Picture Houses v Wednesbury Corporation [1948] 1 KB 223, cited Matthews v Queensland Community Corrections Board [2000] QSC 278, cited Parramatta City Council v Pestell (1972) 128 CLR 305, cited Petrie v Qld Community Corrections Board [2006] QCA 474, cited COUNSEL: JJ Allen for the applicant JM Horton for the respondent SOLICITORS: Legal Aid Queensland for the applicant Crown Solicitor for the respondent [1] Wilson J: The applicant is subject to a supervision order under the Dangerous Prisoners (Sexual Offenders) Act 2003 made by Moynihan SJA on 2 June 2006. He breached one of the requirements of the order two years later, and was taken into custody. He spent 10 weeks in prison until he was released pursuant to an order of White J made on 9 September 2008. Her Honour varied the requirements of the supervision order in several respects, including by adding a requirement that he -- 2 of 20 -- 3 submit to electronic monitoring and curfew requirements as directed by a corrective services officer.1 [2] Later that day Mr Peter Bottomley, Assistant Director-General of the Department of Corrective Services and a corrective services officer within the meaning of the Corrective Services Act 2006 and the Dangerous Prisoners (Sexual Offenders) Act 2003, decided that the applicant be directed to comply with a 24 hour curfew and to wear a monitoring device and permit the installation of devices and equipment at his residence. He did so as the delegate of the Chief Executive.2 Mr Bottomley described the decision as "a verbal decision": there is no contemporaneous written record of the making of the decision.3 [3] The directions were given to Mr Bickle that day by corrective services officers junior to Mr Bottomley.4 By s 263 of the Corrective Services Act 2006 the Chief Executive is responsible for the supervision of offenders in the community and has the powers of a corrective services officer. By s 271 he or she may delegate a function of the Chief Executive under the Act to an appropriately qualified person. Pursuant to s 276 a corrective services officer has the powers given to the officer under an Act and is subject to the directions of the Chief Executive in exercising the powers. [4] On 10 September 2008 the applicant's solicitor requested a written statement of reasons why the directions were given to the applicant.5 She received a statement of reasons in relation to the decision that the applicant wear an electronic monitoring device and be subject to a 24 hour curfew, signed by Mr Bottomley, on 30 September 2008.6 [5] Subsequently the respondent made decisions reducing the duration of the curfew as follows – 9 October 2008 20 hours; 23 October 2008 16 hours; 29 October 2008 12 hours; 6 November 2008 8 hours. 1 Her Honour was obliged to add this requirement by s 19(3) of the Dangerous Prisoners (Sexual Offenders) Act 2003. 2 Transcript of Proceedings on 7 November 2008, p 1.48. 3 Ibid p 1.10. 4 Ibid pp 1.10 and 1.48; Affidavit of Steven Shane Bickle filed 30 September 2008, exhs SB-2 and SB- 3. 5 Affidavit of Amanda Bridgeman filed 8 October 2008, para 4 and exh AB-1. 6 Ibid para 5 and exh AB-2. -- 3 of 20 -- 4 [6] By his application for statutory review filed on 26 September 2008 and amended on 5 November 2008 the applicant seeks judicial review of the initial decision and the subsequent decisions on the following grounds – (1) that a breach of the rules of natural justice happened in relation to the making of the decision; (2) that the making of the decision was an improper exercise of the power conferred by the enactment under which it was purported to be made, in that, inter alia: (a) the Respondent took an irrelevant consideration into account in the exercise of the power; (b) the Respondent failed to take relevant considerations into account in the exercise of the power; (c) the Respondent exercised a discretionary power in accordance with a rule of policy without regard to the merits of the particular case; (d) the Respondent's exercise of power was so unreasonable that no reasonable person could have so exercised the power; and (e) the Respondent exercised the power in a way that was an abuse of the power; (3) that the decision involved an error of law; (4) that there was no evidence or other material to justify the making of the decision ; (5) that the decision was otherwise contrary to law.7 He seeks orders setting the decisions aside. Further and better particulars of the grounds of review were filed on 20 October 2008. On the hearing of the application the applicant did not rely on paragraphs 2(c)(ii) and 2(c)(iii) of those particulars.8 7 See Judicial Review Act 1991, ss 20(2)(a), (e), (f), (h), (i); 23 (a), (b), (f), (g), (i); 24. 8 Transcript of Proceedings on 7 November 2008, p 1.61. NB: Counsel at the hearing referred to these paragraphs as numbers 1.3.2 and 1.3.3, consistent with a working copy, and therefore the transcript of proceedings on 7 November 2008 records the numbering as such. However, the text of the paragraphs is identical. -- 4 of 20 -- 5 Background [7] The applicant was born on 7 December 1955. He has a criminal history including drug offences in the 1970s to 1981 and drink driving offences in 1977 and 1987, as well as various sexual offences against a number of children. He was released from custody on 16 June 2006 after serving 13 years and 9 months for such sexual offences. Those offences were committed against children of women with whom he was in an intimate relationship; it is not suggested that he sought out children who were strangers in a predatory fashion. One of the conditions of the supervision order made by Moynihan SJA was that he abstain from consumption of illicit drugs. A breach of that condition was revealed when in June 2008, as required by the conditions of his release, he provided a urine specimen, which tested positive for the presence of cannabinoids. [8] Soon after his release from prison in 2006 the applicant began cohabiting with a woman who had been his sweetheart in adolescence and with whom he had re- established contact in the mid 1990s. There are no children in the household. [9] White J received reports by two consultant psychiatrists, Professor Barry Nurcombe and Dr Scott Harden about the risk the applicant posed to the community in consequence of his breach and generally. Both were cross-examined. They diagnosed the applicant as suffering from “Paedophilia, non-exclusive, predominantly heterosexual, involving pre-pubertal females, regressive in type”.9 He also had a substance abuse disorder (opiate dependence) which was in remission. He had a mixed personality disorder with anti-social and narcissistic traits. [10] In his report Professor Nurcombe described the relationship between the applicant and his partner as “a fulfilling intimate adult heterosexual relationship”;10 he said – “While Mr Bickle remains in… [such a] relationship, and is not in a family with dependent children, his risk of re-offending is low. If he is under emotional stress (perceived rejection, abandonment, injustice) and in contact with dependent children, the risk is moderate to high. Although alcohol/substance use were not associated with his previous offences, it is reasonable to predict that such usage would increase the risk of reoffending”. 11 He went on – “Mr Bickle's close relationship with Ms [omitted] is the chief factor preventing him from reoffending. Those who are supervising him should value and aim to preserve this relationship”.12 9 Report of Professor Barry Nurcombe: Affidavit of Amanda Bridgeman filed 8 October 2008, exh AB-4, para 34; Attorney-General for the State of Queensland v Steven Shane Bickle [2008] QSC 211. 10 Ibid, para 39. 11 Ibid. 12 Ibid, para 40(8). -- 5 of 20 -- 6 In cross-examination – “Is it the case that, therefore, any unduly restrictive conditions that impacted upon that relationship should be avoided? – If they're unnecessary and unjustified, yes, I would agree with that. And, in considering whether a condition is appropriate, one would weigh up, not only the type of protective benefit of that condition, but, also, factor in any adverse impact upon the relationship between Mr Bickle and his partner? – Yes”.13 And later – “You do not see any necessity for electronic monitoring, or a curfew. Indeed, if such requirements were imposed it would possibly lead to an unnecessary strain upon the relationship between Mr Bickle and his partner? - Yes. And would certainly be, on balance, a negative move in relation to his rehabilitation? – Yes. Which would produce no useful benefit as far as protection of the community is concerned? – Correct”. 14 He said in his report that he could see no reason to restrict the applicant's proximity to schools, playgrounds or malls. 15 [11] Dr Harden said in his report that the applicant's relationship with his partner was “extremely important in terms of providing him with support and if this relationship were to end for some reason his level of risk would need to be re-evaluated”.16 In oral evidence he agreed that conditions prohibiting him from going near parks or schools or other places where children might be expected to gather were unnecessary,17 and he could not see any particular utility in electronic monitoring or a curfew.18 [12] White J said in her reasons for judgment – “Electronic monitoring or curfew direction 13 Transcript of proceedings on 8 September 2008 before White J, p 1.12: Affidavit of Amanda Bridgeman filed 8 October 2008, exh AB-3. 14 Ibid, p 1.15. 15 Report of Professor Barry Nurcombe: Affidavit of Amanda Bridgeman filed 8 October 2008, exh AB-4, para 40(6). 16 Report of Dr Scott Harden, p 21: Affidavit of Amanda Bridgeman filed 8 October 2008, exh AB-5. 17 Transcript of proceedings on 8 September 2008 before White J, pp 1.18 and 1.21. 18 Ibid, p 1.21. -- 6 of 20 -- 7 [19] By amendments to the Act, when a court is dealing with a breach of a condition of a supervision order the court is required to amend the existing order to include the requirements mentioned in s 16(1)(da) and (db) if the existing order does not already include those requirements. Those requirements are that the respondent comply with the curfew direction or monitoring direction and comply with every reasonable direction of a corrective services officer. The latter appears as paragraph 2(k) of the proposed amended order. The curfew requirement appears in the draft order as 2(ee). A court has no discretion as to whether that condition is necessary to achieve the objects of the legislation. The discretion resides in the corrective services supervising officer. Neither psychiatrist thought that the pattern of the respondent’s offending was such as to justify imposing either a curfew or electronic monitoring”.19 Reasons for decision [13] In his statement of reasons for his decision to impose the 24 hour curfew and electronic monitoring condition Mr Bottomley listed the materials and findings of fact on which he relied, and continued – “When I considered this matter I took into account BICKLE's criminal conduct in Queensland and the fact that he had persistently offended against children for a significant period. I noted the serious nature of his criminal conduct and that he targeted both male and female victims. I also had regard to the nature of the sexual offending as had been described in the sentencing remarks of Howell DCJ and Hall DCJ in 1992 and 1995 respectively. I was conscious that the nature of the offending and BICKLE's personal demeanour throughout the trial had been of particular concern to Judge Howell who described him as a ‘manipulative person’. I was conscious the Supreme Court had been satisfied to a high standard that there was an unacceptable risk that BICKLE would commit a serious sexual offence in the absence of a division 3 order. In his judgment, Moynihan J stated ‘There is a high risk of his reoffending if he is released into the community without constraints and support, particularly if he reverts to alcohol and substance abuse or experiences stress at a time when he has access to children...’ I note that BICKLE has a history of drug and alcohol abuse including criminal convictions directly related to this. 19 Attorney-General for the State of Queensland v Steven Shane Bickle [2008] QSC 211. -- 7 of 20 -- 8 I am aware that BICKLE had been subject to supervision for some two years prior to the current contravention. I noted that he was not issued with any censures or formal warnings during this time. However, I also noted that BICKLE had developed a pattern of providing minimal information regarding his movements, activities and associates within case management discussions with his supervising officer. Literature recognises that behaviours representing a rejection of supervision represent an increase or elevation in the level of risk of recidivism. 20 I noted that BICKLE had displayed an unwillingness to share information. This was particularly salient in relation to the most recent contravention action, where prior to toxicology confirmation, BICKLE had denied using cannabis through case management. I took into account the psychiatric material from the original hearing and the contravention hearing including the evidence of Professor Nurcombe and Dr. Harden in relation to electronic monitoring and curfew. Notwithstanding the views of Professor Nurcombe and Dr. Harden, l recognised that the paramount consideration stated in the legislation when considering whether an order should be made is the need to ensure adequate protection of the community. I considered that I ought to also adopt as a paramount consideration the protection of the community. However I balanced against this consideration that the protection to be afforded is not absolute but adequate. After considering these matters, I formed the view that in light of the recent contravention proceedings it was appropriate to impose a 24 hour curfew that requires weekly review in the first instance. BICKLE's history indicates that he was using marijuana at the time of his offending and it was determined that a cautious approach should be adopted regarding his re-release to the community. It must be noted that curfew changes do not preclude BICKLE's attendance of any medical related appointments and approved reintegration plans as requested by the offender through the case management process”.21 [14] In his affidavit in this proceeding Mr Bottomley set out a more expansive list of documents on which he relied and some other factors to which he had regard.22 The documents listed included the transcript of the proceeding before White J, her Honour's reasons, and the reports of Professor Nurcombe and Dr Harden. However, 20 Hanson, K.R., Harris, A.J., Scott, T., Hetmus, L., Assessing the Risk of Sexual Offenders on Community Supervision: The Dynamic Supervision Project 2005-7 (2007), Public Safety Canada. 21 Statement of Reasons by Mr Peter Bottomley: Affidavit of Amanda Bridgeman filed 8 October 2008, exh AB-2, pp 4 - 6. 22 Affidavit of Bottomley filed 15 October 2008, paras 8 and 9. -- 8 of 20 -- 9 counsel for the applicant established in cross-examination that the transcript was not provided to Mr Bottomley until a date after he had prepared his reasons. All he had at the relevant time was a second (or even third) hand version of what had transpired before White J based on oral reports of officers who were present in court.23 Decision 9 September 2008: submissions for the applicant [15] In his submissions in relation to the decision of 9 September 2008, counsel for the applicant concentrated on the decision having been made in accordance with a policy without regard to the merits, Wednesbury unreasonableness,24 and error of law. Policy [16] Paragraph 2(c) of the further and better particulars is as follows – “2(c) the Respondent exercised a discretionary power in accordance with the rule of policy without regard to the merits of the particular case, and in particular: 2(c)(i) the Respondent applied a policy that all persons released upon a supervision order containing a curfew and monitoring requirement should initially be subject to a curfew and electronic monitoring; 2(c)(iv) the Respondent applied a policy that an initial 24 hour period of curfew would only be reduced in accordance with 'Review Guidelines for the Application and Management of Curfews and Electronic Monitoring’”.25 [17] In cross-examination Mr Bottomley acknowledged that any prisoner released into the community upon a supervision order containing a curfew and electronic monitoring condition would be subject to a curfew and electronic monitoring, but the length of the curfew would be dependent on the individual's circumstances. 26 That pattern of decision making was borne out in the table referred to in the respondent's answers to interrogatories,27 at least since Mr Bottomley took up the position of Assistant Director General in February 2008. 23 Transcript of Proceedings on 7 November 2008, pp 1.18 and 1.19. 24 Associated Provincial Picture Houses v Wednesbury Corporation [1948] 1 KB 223. 25 Further and better particulars of grounds of review filed 20 October 2008. NB: Counsel at the hearing referred to these paragraphs as numbers 1.3, 1.3.1 and 1.3.4, consistent with a working copy, and therefore the transcript of proceedings on 7 November 2008 records the numbering as such. However, the text of the paragraphs is identical. 26 Transcript of Proceedings on 7 November 2008, p 1.34. 27 Exhibit 1: Interrogatories and Answers to Interrogatories: Table referred to in the Respondent’s Answers to Interrogatories. -- 9 of 20 -- 10 [18] That is inconsistent with a document on the Queensland Corrective Services Intranet, "Procedure - Dangerous Prisoners (Sexual Offenders) Act Orders".28 A distinction is made between a "level 2 offender" and a "level 1 offender", who are respectively defined as follows – “‘level 2 offender’ - a sex offender should be allocated a level 2 classification if he/she presents with any of the following characteristics - a. history of targeting victims who are strangers, offending is spontaneous or impulsive in nature and may include elements of non-sexual violence; or b. has a high media profile or has been subject to significant recent media attention (eg following his/her location being revealed to the community); or c. has been subject to recent Supreme Court contravention proceedings in relation to contravention of the order requirements (refer appendix - DPSOA Classification Matrix). ‘level 1 offender’ – a sex offender will be allocated a level 1 classification if he/she – a. does not present with any of the above ‘level 2’ characteristics, or b. demonstrates compliance with his/her Order requirements and an absence of any significant risk behaviours for a reasonable period (in accordance with appendix - DPSOA Classification Matrix)”. Paragraph 9.4 is in these terms - “9.4. Electronic monitoring and curfew on supervision order All level 2 offenders, upon release from custody, will be placed on a 24 hour curfew for a period of 4 weeks. During the 4 week period, adjustments to the curfew will only be considered where it relates to the offender’s rehabilitation or reintegration. For example: a limited time to attend medical interventions in the community, program participation, appointments relevant to the offender’s order requirements or to attend other essential appointments (i.e. Centrelink, employment). For level 1 offenders, curfews should be applied as appropriate, taking into consideration the past offending behaviour and assessed level of risk. 28 Exhibit 2: Queensland Corrective Services document entitled ‘Procedure - Dangerous Prisoners (Sexual Offenders) Act Orders’. -- 10 of 20 -- 11 Refer procedure – Electronic Monitoring – DPSOA Offenders. An event based review must be conducted if electronic monitoring and curfew requirements are amended, removed or reapplied to an offender’s order, refer procedure Electronic Monitoring – DPSOA Offenders”. [19] According to Mr Bottomley, every prisoner subject to a supervision order is classified as either a level 1 offender or a level 2 offender upon his release. The classification is undertaken by staff in the High Risk Offender Management Unit in conjunction with the managing probation and parole staff in the field. He does not play any part in it. He did not know whether some contemporaneous record of the classification is made.29 [20] Although the applicant was within the definition of a level 2 offender, he was in fact classified as a level 1 offender and, according to Mr Bottomley, he was treated as such.30 That the applicant was so classified is readily apparent from scoring sheets used in subsequent reviews of the curfew,31 but I am not satisfied that Mr Bottomley was aware of it when he made the decision of 9 September 2008. He made no mention of the classification in the statement of reasons,32 and in his oral evidence he did not say he was aware of it at that time. [21] There is another Queensland Corrective Services publication "Procedure Electronic Monitoring DPSOA Offenders".33 It includes the following – “7.1 Review of 4 week curfew for level 2 offenders Level 2 offenders must remain on a 24 hour curfew for at least four weeks following their release into the community. A weekly review of the curfew will be conducted to facilitate the offender’s rehabilitation plan. For example, a limited time to attend interventions in the community or to attend required appointments (i.e. Centrelink, employment). After the four week period any reduction in curfew must only be considered if the offender has consistently demonstrated rehabilitation and compliance. The safety of the community must be the paramount consideration in any decision to later an offender’s curfew arrangements (sic). 29 Transcript of Proceedings on 7 November 2008, pp 1.31 and 1.32. 30 Further affidavit of Peter Bottomley filed 23 October 2008, para 9; Transcript of Proceedings on 7 November 2008, p 1.32. 31 Affidavit of Peter Bottomley filed 15 October 2008, exh PB-30 – PB-33; Affidavit of Robert George Marsh filed by leave 7 November 2008, exhs RGM-1 and RGM-2. 32 Bridgeman ex AB- 2 33 Exhibit 3: Queensland Corrective Services document entitled ‘7.1 Review of 4 week curfew for level 2 offenders’. -- 11 of 20 -- 12 Any change to an offender’s curfew must be approved by the Assistant Director-General, Probation and Parole Service. Refer Instrument of Limitation of Corrective Services Officers’ Powers”. [22] There is no evidence that Mr Bottomley considered this policy document when making the decision of 9 September 2008. When it was put to him that the fact that the applicant remained on a 24 hour curfew until 9 October 2008 was consistent with the policy, he said – "I'm not sure I understand what you're saying… He was dealt with as a level 1 offender”.34 [23] I conclude that in making the decision of 9 September 2008 Mr Bottomley applied a policy that all persons released upon a supervision order containing a curfew and monitoring requirement should initially be subject to a curfew and electronic monitoring, but the duration of the curfew should depend on individual circumstances. He did so with regard to the merits of the case: he assessed the applicant's circumstances, and concluded that it was "appropriate to impose a 24 hour curfew that requires weekly review in the first instance".35 Wednesbury36 unreasonableness [24] Counsel for the applicant submitted that in light of the following factors, no reasonable person could have concluded that a curfew and monitoring were necessary to ensure adequate protection of the community: • the nature of the applicant's sexual offending • the opinions of Professor Nurcombe and Dr Harden expressed in the proceeding before White J • that at the time Moynihan SJA made the original supervision order the applicant had served in excess of 13 years' imprisonment; he had completed all relevant courses and taken all steps available to him towards rehabilitation • that for more than two years after his initial release the applicant did not re-offend or otherwise breach the order • that the contravention proceeding and ultimately the amended supervision order had resulted from his testing positive to the consumption of cannabis on one occasion • that reassessment by the psychiatrists had led to amelioration of some conditions (i.e. White J's removal of prohibitions on being in proximity to schools, playgrounds, places frequented by children) 34 Transcript of Proceedings on 7 November 2008, p 1.31. 35 Statement of Reasons by Mr Peter Bottomley: Affidavit of Amanda Bridgeman filed 8 October 2008, exh AB-2, p 5. 36 Associated Provincial Picture Houses v Wednesbury Corporation [1948] 1 KB 223. -- 12 of 20 -- 13 • that the curfew and monitoring conditions had been included in the amended supervision order made by White J only because their inclusion was mandated by the legislation, and not because her Honour considered them necessary or appropriate.37 [25] Counsel for the respondent effectively countered the last point in his written submissions when he said – “12. The Respondent places considerable reliance upon the fact that, at the trial, the evidence was that, in the absence of the statutory mandate to include a requirement obliging the Respondent to comply with a curfew or monitoring direction, neither [of] the psychiatrists would have endorsed such a requirement, and nor would her Honour have imposed it. 13. That evidence, while it might inform the decision maker in this case after the trial as to whether to make directions, is not determinative. The Act gives to the executive the power to make such directions. That power is therefore to be exercised by the decision maker turning his or her mind to the risks which the prisoner poses at that particular point in time. 14. This is not to suggest that the evidence at the trial on this point or her Honour's observations are to be disregarded. As the decision-maker says in his statement of reasons in this case, he took those matters into account:38 The problem with treating this evidence and that observation as determinative is that it ignores: (a) the fact that, because the evidence is, strictly speaking, inadmissible in that context39 , it does not necessarily take account of all material considerations, such as what risks are likely to face the prisoner re-integrating into the community and the risks that person is likely to face by reason of the place at which they have been approved to reside (this is a matter under the supervision order which can change and which the Court does not necessarily decide); (b) the legislature selected as the decision maker, a corrective services officer. This is of significance. Parliament often makes a choice as to the appropriate class of decision maker because they possess special knowledge, skills or expertise. Mr Bottomley for instance has 28 years experience in this field. 37 Transcript of Proceedings on 7 November 2008, pp 1.63 – 1.64. 38 Statement of Reasons by Mr Peter Bottomley: Affidavit of Amanda Bridgeman filed 8 October 2008, exh AB-2, p 8. 39 The psychiatrists' duty is to assess "the level of risk that the prisoner will commit another serious sexual offence": s 11. It is the Court's function to assess the danger the prisoner poses to the community. -- 13 of 20 -- 14 15. The power to make directions is intended by the legislature to be exercised in a somewhat different context from the contravention process: (a) first, the direction is made at a time when the prisoner is (almost invariably in the case of contraventions) returning to the community after a period in prison. The management of a prisoner's re-integration into the community may warrant the making of a direction; (b) second, the power to make the direction exists for the duration of the supervision order. The Act empowers the Corrective Services Officer to issue directions in response to changing dynamics which might bear upon the danger the prisoner poses to the community at particular points in time. One example is where (as here) it was detected that the Respondent seemed to be resisting supervision. This had been a problem historically. At the trial, there was evidence that the Respondent had a somewhat blasé approach to supervision in that he did not always see the point in complying with it40 and that Mr Bickle needed to know that it is the supervising officer's right to question him about certain matters 41 .” 42 [26] Giving the applicant directions to comply with a curfew and to subject himself to electronic monitoring were matters within the discretion of the respondent. Mr Bottomley clearly had regard to the applicant's extensive criminal history and the circumstances surrounding the making of the supervision order by Moynihan SJA, its breach, and the subsequent hearing before White J which resulted in the amendment of the conditions of the order. Conscious of the applicant's history of drug abuse, of Moynihan JSA's view that the risk of re-offending was high if he were released into the community without constraints and support, particularly if he reverted to alcohol or substance abuse, and that it was use of marijuana which constituted his breach of the supervision order, Mr Bottomley opted for a cautious approach to the applicant's re-release into the community.43 While he did not have the transcript of the hearing before her Honour, he was aware of Professor Nurcombe and Dr Harden's views about a curfew and electronic monitoring: he said so expressly in his statement of reasons, 44 and he had her Honour's reasons for judgment, which included the paragraph I have earlier set out. [27] Judicial review is not merits review. The issue is whether the exercise of the discretionary power was so unreasonable that no reasonable person could have so 40 Transcript of proceedings on 8 September 2008 before White J per Dr Harden, p 1.17 lines 36 - 38. 41 Ibid per Prof Nurcombe, p 1.7 lines 2- 25. 42 Respondent’s Outline of Submissions filed by leave 7 November 2008. 43 Statement of Reasons by Mr Peter Bottomley: Affidavit of Amanda Bridgeman filed 8 October 2008, exh AB-2, p 5. 44 Ibid p 5, para 5. -- 14 of 20 -- 15 exercised it.45 Mr Bottomley has demonstrated that there was plausible justification for his decision,46 and it is not to the point that another decision maker may have exercised the discretion differently. This ground of review has not been made out. Error of law [28] The applicant particularised the alleged error of law in this way – “3. That the decision involved an error of law, and in particular: (a) the Respondent erred in law in regarding the protection of the community as the paramount consideration as to whether a curfew and electronic monitoring should be imposed; (b) the Respondent erred in law in failing to have regard to the legislative object of facilitation of the Applicant's rehabilitation; (c) the Respondent erred in law in failing to give any, or any sufficient, weight to the fundamental importance of an individual's right to personal liberty and freedom of movement”.47 [29] The objects of the Dangerous Prisoners (Sexual Offenders) Act 2003 are contained in s 3 – “3 Objects of this Act The objects of this Act are— (a) to provide for the continued detention in custody or supervised release of a particular class of prisoner to ensure adequate protection of the community; and (b) to provide continuing control, care or treatment of a particular class of prisoner to facilitate their rehabilitation.” The paramount consideration for the Court in determining whether to make a continuing detention order or a supervision order is the adequate protection of the community.48 A supervision order must contain certain conditions, including compliance with a curfew or monitoring condition, and it may contain any other condition the Court considers appropriate to ensure the adequate protection of the community or for the prisoner's rehabilitation or care or treatment.49 Thus the 45 Judicial Review Act 1991, s 23(g). 46 Parramatta City Council v Pestell (1972) 128 CLR 305, 323. 47 Further and better particulars of grounds of review filed 20 October 2008. 48 Dangerous Prisoners (Sexual Offenders) Act 2003, s 13(6). 49 Dangerous Prisoners (Sexual Offenders) Act 2003, s 16. -- 15 of 20 -- 16 protection of the community must be the touchstone of the decision to make a supervision order, but its content must address both the adequate protection of the community and the rehabilitation of the offender. [30] The condition that the applicant comply with a curfew direction or monitoring direction is clearly one for the protection of the community. The Legislature was concerned to ensure the adequate, rather than absolute, protection of the community: see both s 13(6) and s 3(a). The choice of the word "adequate" is redolent of recognition that the offender's liberty and his rehabilitation should not be interfered with to any greater extent than is necessary in the circumstances. [31] It follows that the guiding principle in the exercise of the respondent's discretion to give such a direction must also be the adequate protection of the community. The respondent did not err in law when he said – “Notwithstanding the views of Professor Nurcombe and Dr. Harden, I recognised that the paramount consideration stated in the legislation when considering whether an order should be made is the need to ensure adequate protection of the community. I considered that I ought to also adopt as a paramount consideration the protection of the community. However I balanced against this consideration that the protection to be afforded is not absolute but adequate”.50 Failure to take relevant considerations into account [32] The applicant particularised this ground as follows – “2(b) the Respondent failed to take relevant considerations into account in the exercise of the power, such relevant considerations being: (i) the nature and circumstances of the contravention of the supervision order by the Applicant; (ii) that such contravention occurred at the residence of the Applicant; (iii) that all the Applicant's sexual offending had occurred in a domestic context against children with whom he had a familial relationship; (iv) that the Applicant had not re-offended or contravened the terms of his supervision order apart from the contravention that led to the amended supervision order; 50 Statement of Reasons by Mr Peter Bottomley: Affidavit of Amanda Bridgeman filed 8 October 2008, exh AB-2, p 5. -- 16 of 20 -- 17 (v) that both psychiatrists who reviewed the Applicant for the purposes of the contravention hearing were of the opinion that the conditions in paragraphs 2(c), (o) and (p) of the original supervision order were unnecessary; (vi) that Justice White held that paragraphs 2(c), (o) and (p) of the original supervision order were unnecessary and should be deleted; (vii) that both psychiatrists who reviewed the Applicant for the purposes of the contravention proceedings were of the opinion that there was no justification for imposing either a curfew or electronic monitoring; (viii) the opinion of Professor Nurcombe that the imposition of a curfew or electronic monitoring produced no useful benefit as far as protection of the community was concerned and may be a negative factor in relation to the Applicant's rehabilitation”.51 [33] As I have said in relation to the Wednesbury unreasonableness ground, I am satisfied that the respondent did take all relevant considerations into account, including these. This ground is not made out. Denial of natural justice [34] As I understood his submissions, counsel for the applicant did not press this ground, because the likely order, if it were made out, would be for a re-determination in accordance with natural justice - when what his client sought was the quashing of the decision.52 Subsequent decisions reviewing curfew [35] The duration of the curfew was progressively reduced by directions of Mr Bottomley as the respondent's delegate. Before giving those directions Mr Bottomley took into account the results of applying the "Probation & Parole - Review Guidelines for the Application & Management of Curfews & Electronic Monitoring" including "Acute Scoring" according to a test devised in Canada.53 On their face the guidelines were just that - guidelines, not intended to be determinative of an offender's progress through a staged schedule of curfews and electronic monitoring. And it is clear from the results of the scoring and the decisions actually made that Mr Bottomley did not slavishly follow them. 54 51 Further and better particulars of grounds of review filed 20 October 2008. 52 Transcript of Proceedings on 7 November 2008, pp 1.54 – 1.55. 53 Acute Scoring Guide Developed for the Dynamic Supervision Project: A Collaborative Initiative on the Community Supervision of Sexual Offenders (Hanson and Harris, Solicitor General of Canada). 54 See Transcript of Proceedings on 7 November 2008, p 1.40; and the discussion at p 1.61. -- 17 of 20 -- 18 [36] The applicant's contention that the respondent took irrelevant considerations into account in his decision-making was really directed at the review decisions.55 It was particularised as follows – “2. That the making of the decision was an improper exercise of the power conferred by the enactment under which it was purported to be made, in that, inter alia: (a) the Respondent took an irrelevant consideration into account in the exercise of the power, such irrelevant .considerations being: (i) the Applicant's alleged ‘unwillingness to share information’ with supervising officers; (ii) that the Applicant had consumed medication containing Codeine; (iii) that the Applicant may have had contact with the media; (iv) that the Applicant was hostile towards Queensland Corrective Services; (v) that the Applicant stated that he would be recording conversations with Corrective Services Officers; (vi) that the Applicant stated that he had ongoing contact with a senior editor of the Courier Mail and also a senior Police Officer with the CMC; (vii) that the Applicant was reluctant to answer questions in relation to the details of his sexual activity with his partner; (viii) that a child was present at some time at the residence shared by the Applicant and his partner; (ix) such details of sexual contact between the Applicant and his partner that were disclosed by the Applicant to Corrective Services Officers;”56 55 Ibid, p 1.55. 56 Further and better particulars of grounds of review filed 20 October 2008. -- 18 of 20 -- 19 [37] The applicant's unwillingness to share information was a factor taken into account in the decision of 9 September 2008, and in the statement of reasons Mr Bottomley explained its relevance.57 It continues to be a relevant factor in the review decisions. [38] As I have already noted the applicant had a history of substance abuse and Moynihan SJA had accepted that the risk of his re-offending would be heightened by a return to such behaviour. Given that concern and given that his contravention of the supervision order had involved the use of marijuana, his consumption of codeine was clearly a relevant consideration. While his positive test result for that substance was consistent with use of over the counter medication, as the matter was reported to Mr Bottomley, the evidence supporting that explanation was not conclusive.58 [39] The relevance of the applicant's saying he had contact with the media and his saying he would be recording conversations with corrective services officers to a decision whether to reduce the curfew has to be assessed in the context of his dealings with corrective services officers and risk management strategies employed. According to Mr Bottomley the applicant used that contact as a threat during case management, basically telling officers, "You'd better do the right thing because I'm in touch with the Courier-Mail and I'm also in touch with the CMC”.59 I am satisfied that the respondent legitimately took this behaviour into account as relevant in managing the risk of re-offending, and that he did not maintain the curfew as a punishment for it.60 [40] The applicant's reluctance to discuss details of his intimate relations with his partner predated the imposition of the curfew.61 It was a factor relevant to the assessment of whether the curfew should be reduced. So, too, were such details of intimate contact with his partner as were disclosed. They were part of the overall picture which had to be assessed, not necessarily in a negative sense. [41] It was to the applicant's credit that he reported to corrective services officers that a child had been present briefly at the premises where he and his partner resided. Again, this was relevant to the overall picture, not necessarily in a negative way. [42] I am not satisfied that the respondent took irrelevant considerations into account in making decisions on the review of the curfew. Utility [43] Counsel for the respondent submitted that there was no utility in reviewing the initial decision of 9 September 2008 in so far as it involved the imposition of a 57 Statement of Reasons by Mr Peter Bottomley: Affidavit of Amanda Bridgeman filed 8 October 2008, exh AB-2, p 5. 58 Transcript of Proceedings on 7 November 2008, p 1.42. 59 Ibid, per Mr Bottomley. 60 Ibid, pp 1.42 – 1.43. 61 Ibid, pp 1.43 – 1.44. -- 19 of 20 -- 20 curfew because it was spent. He acknowledged that the imposition of electronic monitoring is still operative. In his submission the only curfew decision which should be reviewed was the last one, operative at the time of the hearing,62 although the earlier decisions were relevant as the context in which the latest decision was made. 63 Counsel for the applicant submitted that review of the initial decision would not be a sterile exercise because it may inform the conduct of the parties in the future.64 [44] It was necessary for me to traverse all of the decisions even to rule only on the last review decision. In doing so I have not found any reason to impugn any of them. In the circumstances I do not think it necessary to rule on the utility argument. Outcome [45] The application should be dismissed. 62 See the approach of the Court of Appeal in Petrie v Qld Community Corrections Board [2006] QCA 474. 63 Transcript of Proceedings on 7 November 2008, pp 1.5, 1.6 and 1.76 - 1-78. 64 See Matthews v Queensland Community Corrections Board [2000] QSC 278 at para [12]. -- 20 of 20 --