Beer v Chief Executive, Department of Corrective Services [2006] QCA 163

SUPREME COURT OF QUEENSLAND CITATION: Beer v Chief Executive, Department of Corrective Services [2006] QCA 163 PARTIES: BARRY JOSEPH BEER (applicant/appellant) v CHIEF EXECUTIVE, DEPARTMENT OF CORRECTIVE SERVICES (respondent) FILE NO/S: Appeal No 1207 of 2006 SC No 3609 of 2005 DIVISION: Court of Appeal PROCEEDING: Application for Extension of Time General Civil Appeal ORIGINATING COURT: Supreme Court at Brisbane DELIVERED ON: 19 May 2006 DELIVERED AT: Brisbane HEARING DATE: 9 May 2006 JUDGES: Williams and Jerrard JJA and Philippides J Separate reasons for judgment of each member of the Court, each concurring as to the order made ORDER: 1. Application for extension of time granted 2. Appeal dismissed CATCHWORDS: ADMINISTRATIVE LAW – JUDICIAL REVIEW AT COMMON LAW – EXCESS OF POWER AND DEFECTIVE USE OF POWERS – ABUSE OF DISCRETIONARY POWER – IN GENERAL – where applicant/appellant was convicted of causing grievous bodily harm with intent – where applicant/appellant was sentenced to eight years imprisonment and declared a serious violent offender – where sentence was reduced to seven years imprisonment and declaration withdrawn – where applicant/appellant was twice refused post-prison community based release – where Chief Executive delegate refused to grant remission to applicant/appellant because applicant/appellant posed an unacceptable risk to community, declined to participate in the violent intervention program, displayed no empathy to victim, had outstanding treatment for violent offending and appeared to fixate on the victim – -- 1 of 9 -- where applicant/appellant’s application for review of chief executive officer’s decision to refuse remission was dismissed - whether judge turned mind to all appropriate questions and determined all relevant facts ADMINISTRATIVE LAW – JUDICIAL REVIEW AT COMMON LAW – EXCESS OF POWER AND DEFECTIVE USE OF POWERS – ABUSE OF DISCRETIONARY POWER – IN GENERAL – whether judge erred in finding that decision maker was properly qualified to assess the applicant/appellant’s risk to the community ADMINISTRATIVE LAW – JUDICIAL REVIEW AT COMMON LAW – EXCESS OF POWER AND DEFECTIVE USE OF POWERS – ABUSE OF DISCRETIONARY POWER – IN GENERAL – whether judge erred in finding that the decision maker did not inappropriately rely on the applicant/appellant’s non- participation in the violence intervention program ADMINISTRATIVE LAW – JUDICIAL REVIEW AT COMMON LAW – EXCESS OF POWER AND DEFECTIVE USE OF POWERS – ABUSE OF DISCRETIONARY POWER – IN GENERAL – where the judge initially misstated the applicant’s prior criminal history and later corrected his misstatement – whether the judge erred in taking the initially misstated criminal history into consideration in reaching his ultimate decision Corrective Services Act 2000 (Qld), s 75(2) COUNSEL: The applicant/appellant appeared on his own behalf M O Plunkett for the respondent SOLICITORS: The applicant/appellant appeared on his own behalf C W Lowe, Crown Solicitor for the respondent [1] WILLIAMS JA: I have had the advantage of reading the reasons for judgment of Jerrard JA and there is nothing I wish to add thereto. I agree with what is said therein, and with the order proposed. [2] JERRARD JA: This proceeding is an appeal against the decision of the Supreme Court delivered on 8 December 2005, dismissing an application by Mr Beer filed on 5 May 2005. Mr Beer had sought orders setting aside the respondent’s decision of 12 July 2004 declining to grant his application made under s 75 of the Corrective Services Act 2000 (Qld), for remission of up to one-third of his seven year term of imprisonment imposed on 10 November 1999. His full time discharge date is 9 November 2006. -- 2 of 9 -- The offence [3] On 10 November 1999 Mr Beer was acquitted of attempted murder but convicted of causing grievous bodily harm with intent. The complainant had gone with his stepdaughter to Mr Beer’s residence, where the complainant’s stepdaughter had previously been living with Mr Beer’s son, to collect her possessions. The complainant and his stepdaughter gained entry through an unlocked door, and as she was collecting her clothes Mr Beer appeared and asked what she was doing. The evidence of what happened after that differed among the witnesses. The complainant said that after he had explained that his stepdaughter just wanted to get her clothes, Mr Beer walked up to him and stabbed him in the neck. The stepdaughter’s account supported the complainant’s more than it supported Mr Beer’s, who had sworn that after he told the complainant to leave and come back later when Mr Beer’s son was home, the complainant had punched him and had grabbed Mr Beer by the throat. Ultimately Mr Beer ended up being both choked and punched by the complainant, and had seized a knife on a nearby ironing-board and used it to defend himself. The account by the complainant’s stepdaughter did include that there was a struggle, in which an ironing-board was knocked over, but she seems to have described the apparent stabbing before that struggle. Most of the blood was found in the area near the wall and the ironing-board, not where the complainant claimed that his throat was cut.1 [4] Mr Beer was originally sentenced to eight years imprisonment, and the learned sentencing judge declared he had been convicted of a serious violent offence. On an appeal to this Court that sentence was reduced in a judgment published on 26 May 2000 to seven years, without a declaration. This Court remarked that Mr Beer had been convicted of a very serious offence; and that while Mr Beer was in his own home, the complainant was peacefully assisting his stepdaughter to remove her property from it. Mr Beer was 60 years old at the time of the offence, and was a smaller, shorter man than the complainant; but the deliberate use of the knife was a serious aggravating factor. This Court said that the evidence accepted by the learned sentencing judge (and in particular the complainant’s evidence) showed that the assault with the knife was sudden, unexpected, unjustified and deliberate. [5] This Court’s judgment in R v Beer records that he had a criminal history which included convictions for dishonesty for which he was sentenced to terms of imprisonment in 1966, some street offences in 1971, and more significantly a conviction for assaulting police and assault occasioning bodily harm in 1975, for which he was sentenced to six months imprisonment. It also records that apart from some traffic offences in 1980 he had no other criminal convictions; and that he had therefore committed no like offences for almost 25 years. The judgment records that the complainant was a 39 year old security officer, six foot one inch tall and weighing about 90 kilograms, and that Mr Beer was about five foot six inches tall and wore spectacles. 1 This description is taken from the decision of this Court in R v Beer [2000] QCA 193; CA No 404 of 1999, 26 May 2000. -- 3 of 9 -- Possible forms of early release [6] Mr Beer became eligible for post-prison community-based release after he had served half that seven year term, but was refused it on 23 October 2003, and he told this Court on this appeal that that variety of release has been refused to him twice since then. His current appeal concerns only his attempts to obtain remission of part of his sentence. [7] Section 75 of the Corrective Services Act relevantly provides that a prisoner is eligible for remission, if the prisoner is serving a term of imprisonment imposed for an offence committed before the commencement of the section (and Mr Beer’s offence was so committed), the term of imprisonment is two months or more (Mr Beer’s term certainly is), and the prisoner has not previously been granted leave of absence, parole, or post-prison community-based release during that term of imprisonment. Mr Beer has not been. [8] Section 75(2) therefore applies, since Mr Beer is eligible for remission. It provides: “(2) Subject to subsections (3) and (4), the chief executive may grant remission of up to one-third of the term of imprisonment if satisfied – (a) that the prisoner’s discharge does not pose an unacceptable risk to the community; and (b) that the prisoner has been of good conduct and industry; and (c) of anything else prescribed under a regulation.” [9] It is common ground that Mr Beer has been uniformly described as being of good conduct and industry throughout his period of incarceration, and that there is nothing relevantly prescribed under a regulation of which the Chief Executive is not satisfied. Mr Beer was refused remission of what would have been one-third of his sentence, by a decision made on 12 July 2004 – just after the two-thirds mark – because the Chief Executive’s delegate was not satisfied that Mr Beer did not pose an unacceptable risk to the community. [10] To understand the delegate’s reasoning, it is necessary to describe some of the history of Mr Beer’s incarceration. He completed what was called a Cognitive Skills Program in July 2000, and was assessed as having avoided responsibility for the commission of the offence for which he was convicted, and as being resolute that he was the innocent party. In January 2001 he was recommended for inclusion in an in-prison course named the Violence Intervention Program (“the VIP”), and in February 2001 assessed as suitable for participation in it. Mr Beer treats that assessment with a degree of contempt, because it wrongly described him as serving an eight year sentence and as convicted of a serious violent offence. Ignoring those inaccuracies, those responsible for what was called his sentence management decided to offer him a place on the VIP due to start in March 2001. The VIP [11] Mr Beer’s non-participation in that program has dogged him ever since. An assessment phase for that program took place in March 2001, and Mr Beer took -- 4 of 9 -- part in it. He was described as having put up some resistance to attending it, and as having resigned from it on the final day of the assessment. On the hearing of this appeal Mr Beer provided the Court with a copy of the letter that the Chief Executive or the Department regarded as the resignation, and which Mr Beer called a deferral. It explained that he had become committed to Buddhism ethics which require his serious attention, more so than a VIP exit, and that on completion of his (then) present commitments to his teacher, Mr Beer would assist with a further assessment of him. It think it is a fair description of his letter that it said that he considered he has found for himself a far more effective way of dealing with his difficulties, than would result from his undergoing the VIP program. He made clear on this appeal that he had been offended by the description, of himself and all the other participants in the assessment phase of the course, as people who were all serving sentences of 10 years or more, and all serious violent offenders. He fitted neither of those descriptions. [12] Thereafter the appeal record prepared by Mr Beer and the respondent (each had their own) next records something happening in July 2002, when the officer responsible for his sentence management recorded that his risk to the community had been assessed as low, and asked the General Manager of the prison where Mr Beer was then held to ensure that he was given the opportunity to participate in the VIP program beginning there in August 2002. That memorandum asked that the original of it be given to Mr Beer. The object seems to have been to persuade him to participate. [13] Mr Beer was not offered a position on that August 2002 VIP, and it seems common ground that he was not willing to consent to all the conditions of the program. Mr Beer had been apprehensive that the incontinence from which he suffered could not be managed adequately if he were to undertake a group program, and Mr Beer agreed on the appeal that a notation made in November 2002 was accurate. It was to the effect that he had a lack of trust in the people conducting the course, and had not wanted disclose any personal information to them or other participants. He informed this Court that he had asked to be allowed to do the VIP course, on a “one on one” basis, and that application had been refused, for budgetary reasons. He also told this Court, consistent with what is recorded in the documents in the appeal record, that he felt he was unable to participate in the VIP in a group process, because of his medical condition. [14] As it happened, in November 2002 Mr Beer’s level of risk to the community was re-assessed, and this time as medium (up from low); he had scored 12 on a Risk Need Inventory, and 0 to 11 was low; 12 to 25 was medium. Soon after, in February 2003, he succeeded in obtaining a low security classification within the prison, but that did not assist him, when, on 10 May 2003, his post prison community based release date came and went and he remained in custody. Parole refused [15] On 29 May 2003 a Dr Kar conducted a psychiatric assessment of Mr Beer, for the assistance of the Regional Community Corrections Board considering Mr Beer’s application for parole. That report recounted a history in which Mr Beer -- 5 of 9 -- continued to describe acting in self-defence, and recorded that he felt bitter about his sentence, and still denied being at fault in the matter. Dr Kar stated that “I feel” that Mr Beer had an antisocial personality disorder, which is known to improve with age; and added that vulnerability (to) violence, unlawfulness, infringement of the rights of others, and dishonesty, remain lifelong in persons suffering from that disorder. “He has the typical denial of responsibility that is seen in persons with Antisocial Personality Disorder”.2 Dr Kar nevertheless assessed Mr Beer’s risk of serious re-offending as low, but added that Mr Beer’s attitude towards his victim was not fully clear, and that Dr Kar could not say with certainty that Mr Beer did not harbour any strong negative feelings towards the victim. Mr Beer did not get parole. Remission refused [16] As his eligible date for remission of up to one-third of his sentence (late June 2004) approached (Mr Beer had applied for that remission), reports were written about his non-participation in the VIP. One such report included a description of the outcome in August 2002, accompanied by advice that the program co-ordinator (for 2004 programs) said that incontinence could be managed in a group setting, and that the benefits of completing the program would outweigh the disruptions. An attempt was made by the relevant correctional centre health services manager to interview Mr Beer (in May 2004) to determine the severity of his incontinence, and to identify “possible management strategies” of it. Mr Beer advised that person that he did not wish to participate in an assessment of his incontinence or discuss its management, since he was satisfied with the outpatient treatment he was receiving from the Princess Alexandra Hospital. Thereafter three attempts to make appointments intended to obtain Mr Beer’s written consent to engage in the VIP were not successful; Mr Beer was busy or otherwise engaged on each occasion. [17] On 1 June 2004 an assessment from a psychologist was obtained. That recorded that Mr Beer continued to describe having struggled with the complainant and that Mr Beer stabbed the complainant in self-defence; and Mr Beer also had explained to the psychologist that he was now suffering from numerous medical conditions. He declined to discuss his post-release plans with the psychologist, who had administered what was described as Violence Risk Appraisal Guide to him, on which he scored minus three. The psychologist recorded that individuals, who obtained that score, on average, re-offended violently (17 percent of them), within seven years; and 31 per cent re-offended violently within 10 years. The psychologist assessed Mr Beer as having a medium risk of re-offending. The reasons for refusal [18] On 12 July 2004 the Chief Executive’s delegate decided not to grant the requested remission of sentence. On 28 September 2004 the delegate provided reasons in writing, at Mr Beer’s request. The delegate had determined that the delegate was not satisfied that Mr Beer’s discharge did not pose an unacceptable risk to the community, and so Mr Beer failed the first test required 2 At AR 24-25. -- 6 of 9 -- by s 75(2)(a) of the Corrective Services Act. The delegate recorded that the reasons for so concluding were (in my summary) that while Mr Beer had not re- offended for 18 years (in fact it was 25) before his offence, and while his conduct in prison – nearly five years by then – had been good, and while he said he had medical issues which prevented his participation in a VIP, the following matters were also relevant: • that he had been offered a place on the VIP but had to declined to attend; • that he had shown no empathy or sympathy to his victim, had avoided acknowledging responsibility for committing the offence, and continued to say he acted in self-defence; • that he had an apparent fixation with his victim; • that there were outstanding treatment needs with respect to his violent offending; and accordingly he had not sufficiently mitigated his level of risk. [19] The decision maker was entitled to have regard to the consistency with which Mr Beer had shown no sympathy for the victim, and the sense Mr Beer had of being wrongly done by, in the context of the assessment by the psychologist of a medium level of risk to the community. That assessment was the problem for Mr Beer. In that context, the decision maker was also entitled to have regard to the fact Mr Beer had not received whatever benefit the VIP could give him. Even so, it was a decision that could easily have gone the other way, having regard to the quarter century without serious violence to others, his good conduct in jail, ill health, and the much earlier assessments of him as a low risk to the community. That is not to say that the decision was obviously wrong or that the decision maker took irrelevant matters into consideration, or failed to take relevant ones into account; simply that a responsible decision could have been made to release him, while giving appropriate weight to the protection of the community. The review [20] On 5 May 2005 Mr Beer applied to review the decision, and that application was dismissed on 8 December 2005. The judgment records that Mr Beer made a variety of complaints to the Court, and the first was that he had been denied natural justice, because the decision maker had simply applied a policy of the department. The learned judge disagreed, concluding that there was nothing to suggest that the decision maker had not turned her mind to the appropriate questions and made a determination on the relevant facts. I respectfully agree. [21] The next complaint was that the decision maker was not qualified to assess the risk Mr Beer posed to the community, and as the judge remarked, the Corrective Services Act does not require any particular qualifications be held by such a decision maker. I agree with the learned judge that the reasons for the decision appear to be carefully considered, in a well expressed document which gives every appearance of a reasoned assessment of relevant issues. -- 7 of 9 -- [22] The next matter was the submission by Mr Beer that there was a misguided reliance on the completion of the VIP. The judge concluded that the evidence was that Mr Beer had been recommended, if not required, to participate in that course, and that Mr Beer had resisted participating, and both those conclusions were open to the judge, if not unavoidable. The judge considered that the decision maker was of the view that the completion of the course would be advantageous to ensuring that the risk of re-offending was appropriately reduced, and I agree. The decision maker’s reasons do not show any other, or inappropriate, reliance on the non-participation. [23] The learned judge referred to the differing opinions of the psychiatrist and psychologist and remarked accurately that the decision maker was entitled to have regard to both opinions, and to conclude that areas of concern could have been but were not addressed by participation in the VIP. The judge was unable to detect any denial of natural justice or errors of law in the reasons, and again I agree. [24] Mr Beer argued two grounds of appeal. The first was that the learned judge had incorrectly remarked, soon after the commencement of the reasons delivered ex tempore on 8 December 2005, that Mr Beer’s criminal history began in January 1996 when he received a two and a half year term of imprisonment for offences of breaking, entering, and stealing. Mr Beer told this Court that the learned judge had implied that it followed that the offence of grievous bodily harm was a continuation of that (relatively recent) unlawful conduct in 1996. In fact it was in January 1966 that Mr Beer was sentenced to two and a half years imprisonment for 25 offences of breaking, entering, and stealing, one of unlawful use of a motor vehicle, two of attempting to break and enter with intent, and one of possession of an explosive substance. However, a document headed “Remission Assessment”, apparently completed in May 2004, does mistakenly describe Mr Beer’s criminal history as beginning in January 1996.3 The transcript of the ex tempore reasons given on 8 December 2005 record the learned judge stating that: “The applicant had a prior criminal history which included convictions for violence but the latter convictions were quite old at the time of the subject offending.”4 The State Reporting Bureau tape recording of those ex tempore remarks records that Mr Beer is partly right in what he says, because the learned judge stated: “....a prior criminal history which included convictions for violence but the latter convictions were more than two years old at the time of the subject offending.” To the extent that the learned judge mis-stated the position originally, it was certainly corrected, and the mis-statement played no part in the decision. 3 At page 11 of the 17 page document, relevantly reproduced in the respondent’s appeal record at page 141. 4 At AR 279. -- 8 of 9 -- [25] The second ground was that the respondent had both presented to the learned judge, and also itself wrongly relied on in the past, documents which declared that Mr Beer had been assessed as suitable for the VIP. His criticism was firstly that that assessment had purported to rely on the sentence first imposed upon him, accompanied as it was by the declaration that his conviction was for a serious violent offence, and secondly Mr Beer contended that there had never been any assessment accurately describing his position and requiring that he undertake that course. There is no real merit in that ground either because Mr Beer was only too well aware that he was being asked to undertake that program and was not doing so. I would therefore dismiss his appeal; a judicial review is not a merits review of a decision. [26] Circumstances have changed since those that confronted the decision maker who refused remission. The VIP is no longer offered to prisoners. It has been replaced by another course called the High Intensity Violent Offenders Program, and it appears that Mr Beer would not qualify for admission to that particular program. He has now been given an open security classification, as at 21 March 2006, and in my respectful opinion, the interests of both the community and Mr Beer would adequately be served if every effort was made to have him promptly placed on post-prison community-based release. This would offer him some assistance and supervision when first released back to the community. [27] For completeness, I add that I consider the Chief Executive would be entitled even now to grant Mr Beer remission under s 75(2). I do not consider that remission would serve Mr Beer’s interests in the way that a short period of assistance on parole might, because if considered for and placed on parole, Mr Beer may be able to obtain assistance from Community Corrections Officers in getting somewhere to live. But if he were to apply for remission of the remainder of his term, nothing in s 75 restricts the Chief Executive to only granting remissions of one-third of the term. Section 75(2) provides, as Mr Beer argued, that the Chief Executive may grant remission of “up to one-third of the term”; one can readily envisage that a particular prisoner might need to complete relevant programs and thereby obtain only a remission of the last, say, one-quarter of the term of imprisonment. Once it is recognised that remission of less than one-third can properly be granted, then there is no sensible reason for denying remission of a smaller portion of a sentence to a prisoner who has earlier been refused remission of one-third (or some other percentage), and whose circumstances have changed since remission was earlier refused. Mr Beer’s circumstances have, because he is now open security, and has no outstanding available programs. [28] Accordingly, I would dismiss the appeal, but recommend that Mr Beer apply for post-prison community-based release, enclosing a copy of this judgment with his application. [29] PHILIPPIDES J: I have read the reasons for judgment of Jerrard JA and agree with those reasons and the order proposed. -- 9 of 9 --