Butler v Queensland Community Corrections Board [2001] QCA 323

SUPREME COURT OF QUEENSLAND CITATION: Butler v Queensland Community Corrections Board [2001] QCA 323 PARTIES: BARRY SHON BUTLER (applicant/appellant) v QUEENSLAND COMMUNITY CORRECTIONS BOARD (respondent/respondent) FILE NO/S: Appeal No 2060 of 2001 SC No 7750 of 2000 DIVISION: Court of Appeal PROCEEDING: General Civil Appeal ORIGINATING COURT: Supreme Court at Brisbane DELIVERED ON: 10 August 2001 DELIVERED AT: Brisbane HEARING DATE: 30 July 2001 JUDGES: McMurdo P, Williams JA, Byrne J Separate reasons for judgment of each member of the Court, each concurring as to the order made ORDER: Appeal dismissed with costs to be assessed CATCHWORDS: CRIMINAL LAW – PROBATION, PAROLE, RELEASE ON LICENCE AND REMISSIONS – QUEENSLAND – where appellant seeks judicial review of respondents decision to defer consideration of parole – whether procedural fairness accorded – whether public policy considerations given insufficient weight - whether ‘slavish’ application of parole guidelines – importance of realistic recommended parole dates discussed Corrective Services Act 1988 (Qld) s 139(1) COUNSEL: J C Davidson for the appellant G P Long for the respondent SOLICITORS: Edwards Lawyers for the appellant Dibbs Barker Gosling for the respondent [1] McMURDO P: I agree with the reasons for judgment of Williams JA and Byrne J and with the orders proposed by Byrne J. -- 1 of 7 -- 2 [2] WILLIAMS JA: The relevant background facts to this appeal are set out in the reasons for judgment of Byrne J; I agree with those reasons and the order proposed. [3] However, because I am concerned that similar issues have been raised in a number of other matters recently heard in this Court, I propose to express some views of my own. [4] Sentencing judges, for good reason, often include a recommendation that the offender be eligible to apply for parole after serving a stated period of sentence; in other cases, often because it is required by relevant legislation, the sentencing judge must specify a date on which the offender would become eligible to apply for parole. In so doing the sentencing judge is not directing that the offender be released after the expiration of the stated period or on the stated date; in either case all the offender has is a right to apply to the Queensland Community Corrections Board for parole at that time. But understandably the inclusion of a reference to parole eligibility in the sentence induces in the mind of the offender an expectation that parole will be granted at or about that time. [5] The offender's behaviour whilst in custody will, of course, be of critical importance when the application for parole is being considered. Also relevant will be the steps taken by the offender to address his previous offending behaviour, including the completion of courses designed to facilitate rehabilitation. In addition, regard would have to be had to the Ministerial Guidelines to the Queensland Community Corrections Board made pursuant to s 139(1) of the Corrective Services Act 1988. [6] Of particular concern is the provision in the Guidelines that where an offender is serving a term of imprisonment of 10 years or more that person ought not to be approved for release to a community based programme until a minimum of 6 months has been spent in an open custody environment. The Department of Corrective Services has a system of prisoner classification whereby a prisoner has to complete various courses and pass through various classification stages (each step involving being of a particular classification for a period of time) before, for example, low or open security classification is obtained. [7] The problem is that on occasions even a well behaved and well motivated prisoner is unable to achieve low or open security classification by the time at which the sentencing judge has indicated he should have eligibility to apply for parole; that is simply because there is not sufficient time between sentence and that eligibility date for the prisoner to pass through the classification stages, usually including completing the necessary courses. In such circumstances the prisoner has a legitimate feeling of grievance. [8] Against that background steps should be taken to ensure that sentencing judges do not make unrealistic parole recommendations because the judge is not informed at the time of sentence that the offender will be unable to meet the classification requirements by the recommended time. I appreciate it may be difficult to inform the judge at the time of sentencing with any degree of accuracy (because of the number of variables involved) whether the projected parole eligibility date is realistic. At the very least the judge should be given assistance in determining whether the proposal is realistic. If that is done it would enable the sentencing judge to give consideration to sentencing alternatives which might result in the offender knowing with a greater degree of certainty what his future held. Creating -- 2 of 7 -- 3 false expectations in the mind of the person being sentenced is clearly counter-productive to rehabilitation. [9] As already said, I agree with the orders proposed. [10] BYRNE J: Parole eligibility recommendation and application In July 1994, the appellant was sentenced to 18 years imprisonment for serious offences, including armed robbery. The offences had been committed during the eight months the appellant was at large after absconding from custody whilst participating in a prison work scheme during a six year sentence imposed in 1992. The new 18 year sentences were made cumulative upon that six year sentence. [11] Mainly in recognition of his very considerable co-operation with the authorities, the appellant obtained a recommendation that he be eligible for parole after 5½ years. Taking into account the earlier six year sentence, the sentencing judge fixed 26 September 2000 as the new parole eligibility date. [12] In June 1999, the appellant applied for parole or home detention. His application was supported by a nine page, typed document in which he discussed his background, past drug dependency, attempts to address his offending behaviour through education and prison work, parole plans and employment prospects. Process and decision [13] In March 2000, a community correctional officer interviewed the appellant in connection with his application. Afterwards, that officer and the Manager, Assessment Unit, Metropolitan Region Community Corrections submitted a substantial report (“the report”) to the Brisbane Regional Community Corrections Board. That Board recommended to the Queensland Community Corrections Board that the application not be approved, but instead be reviewed in six months. [14] By letter dated 19 May 2000, the applicant was informed that the Queensland Community Corrections Board (“the Board”) had “deferred” his application until after he “successfully completed six months at a low or open security centre and also have completed a lengthy Leave of Absence program”. There was then no prospect that the appellant would serve six months at a low or open security centre before 25 September 2000 – his parole eligibility date fixed by the Judge. His security classification is medium, and until it is reduced to low, he is destined not to be detained at a low security or to get leave of absence. And, importantly, the Board does not decide security classifications: the Department of Corrective Services does that. Review [15] In early September 2000, the appellant initiated judicial review proceedings seeking an order that the Board reconsider its decision. The main grounds of his application were that: (a) procedural fairness had been denied on the footing that the Board had not afforded him an opportunity to respond to matters influencing its decision; -- 3 of 7 -- 4 (b) the decision involved an improper exercise of power, the Board having failed to take into account the parole recommendation, the reasons for it, and the consideration that, in the public interest, he should be released on parole to encourage others who might be minded to give co-operation to the authorities; (c) the decision involved the exercise of a power in accordance with a rule or policy without regard to the merits of the particular case. [16] This is an appeal against the dismissal of that judicial review application. The Board’s reasons [17] The Board’s Statement of Reasons contained these findings of fact and conclusions: 1. You are serving sentences totalling 24 years, and your Parole eligibility date is 26.9.00, because of a recommendation made by a sentencing Judge. 2. That Judge took into account your plea of Guilty, your co- operation with authorities, your wish to start a family with your female companion, and the likelihood of your finding jail difficult because of your co-operation with the authorities. Those matters have been given very significant weight. 3. You were born in March 1965. You have spent about 19 of the last 24 years in prison. 4. According to an Assessment Unit report, the relationship between you and your former companion has altered, in that you are now no more than acquaintances, and she visits you from time to time in prison. There is no evidence to suggest that imprisonment has been more difficult for your [sic] on account of your previous co-operation with the authorities. 5. Your criminal history indicates that you breached community-based Orders between 1976 and 1982. In 1987, you breached a Parole Order. In 1993, you escaped from a trusted position at the WORC scheme and committed serious offences. 6. You advised an Assessment Unit in March this year that you escaped and committed offences because you believed there was a high probability that you would continue to offend, and so believed it futile to complete the remainder of your sentence. 7. You have not breached prison regulations since 1995, and you have completed a variety of rehabilitative programmes. A Corrective Services Risks Needs Inventory has scored you as being in the high risk category of likely re-offending. -- 4 of 7 -- 5 8. In the Board’s experience, and understanding of research undertaken around the world, people who have been incarcerated for a lengthy period invariably suffer from institutionalisation. It is only the extent of the problem which differs between inmates. There is no reason to suggest that you do not suffer from institutionalisation, whether you recognise the problem or not. 9. Also in the Board’s experience and understanding, people who are released directly to the least restrictive form of conditional release (Parole) after serving a lengthy period of imprisonment, are highly likely to return to criminal activity. The most effective way to overcome the problem of institutionalisation and reduce the risk of recidivism which flows from it, is for inmates in that category to be released from custody very gradually. 10. That gradual release process should commence with residence at a low security Centre and participation in a Leave of Absence programme. That should be followed by increasingly less restrictive forms of conditional release, namely Release-to-Work, then Home Detention, and finally Parole. 11. Further, people with a history of re-offending while subject to community based Orders are, in the Board’s experience and understanding, more likely to re-offend than those without such a history. For that reason, people in that category should be required, in the community’s interests, to demonstrate their trustworthiness by participation in the gradual release process described above. 12. The Board has placed very significant weight on the comments and recommendation of the sentencing Judge. However, the Board’s experience and understanding indicates that to release you directly to Parole would involve an extremely high likelihood that you would again involve yourself in criminal activity, despite your present assertions to the contrary. Consequently, following that recommendation at this stage would in all probability be setting you up for a further custodial term in the future. 13. It is in both your, and the community’s best interests that you satisfactorily participate in a very gradual process of release from secure custody. It is noted that while your prison behaviour has been satisfactory since 1995, you have resided only in the highly structured environment of very secure custody. For the reasons described above, it is the Board’s view that you should move through the system and reside at a low security centre, as the beginning of your journey to Parole. -- 5 of 7 -- 6 Procedural fairness [18] The appellant’s contention in relation to the procedural fairness issue is that the Board was obliged to tell him of the facts and matters which it was inclined to rely on once it had formed an intention not to grant parole with effect from the recommended date even if, as the Judge found, the information the appellant had supplied in support of his application, orally to the interviewing officer and in writing, had correctly anticipated and adequately addressed the matters the Board subsequently took into account. But this cannot be right. [19] Procedural fairness in respect of a parole application requires that an applicant’s attention be drawn to the main issues or factors militating against success, so that an adequate opportunity is afforded to deal with them.1 That obligation, however, is satisfied where, as here, an applicant knows of, or anticipates, the facts and matters assuming significance in a decision to decline a parole application.2 [20] As the primary Judge pointed out, the matters it was suggested ought to have been brought to notice are those mentioned in paragraphs 4, 6, 7, 8, 9 and 12 of the Board’s findings of fact and conclusions in its Statement of Reasons. The facts pertaining to paragraphs 4 and 6 had been mentioned by the appellant to his interviewer. The matters referred to in the other paragraphs were addressed in written material supporting his application (in his discussion of the steps he proposed to take to avoid re-offending), and by the attention which the appellant gave in his interview to his understanding of Ministerial Guidelines3 that a “prisoner should achieve a low or open security classification prior to approval for release to a community-based program” and “[u]nless extraordinary circumstances exist, it is inappropriate for a prisoner serving a term of imprisonment of 10 years or more to be approved for release … until [he] has successfully completed a minimum of six months in an open custody environment”. The interviewing officer recorded in the report that the appellant had applied for transfer to a prison farm in an attempt to meet these guidelines. [21] In these circumstances, the Judge was right to conclude that procedural fairness had been accorded. The propriety of the Board’s exercise of Powers [22] The Judge disposed of the contention that the Board had failed to accord due weight to the sentencing Judge’s parole recommendation and the public interest in encouraging offenders to co-operate with authorities by concluding that the Board’s reasons do not support the view that the Board had not taken such things properly into account. In doing so, the Judge referred to the material before the Board, which included the sentencing Judge’s remarks and the report. [23] The sentencing remarks discussed the nature and the extent of the co-operation and the sentencing Judge’s view that the extent of the appellant’s co-operation required the parole eligibility recommendation made. The report specifically adverted to the co-operation as a “very important feature of the case that could not be ignored”. 1 See McEnroe v Queensland Community Corrections Board 1842 of 1997, 8 September 1997, Thomas J. 2 cf Minister of State for Immigration and Ethnic Affairs v Ah Hin Teoh (1995) 183 CLR 273, 305. 3 Made pursuant to s 139(1) of the Corrective Services Act 1988. -- 6 of 7 -- 7 After an extensive review of the appellant’s offences, extensive criminal history (commencing in 1974 when he was nine), past and present family circumstances, prior substance abuse, leisure interest in associates, prison conduct (including participation in a wide range of programs), and parole plans, the report proposed: “Given Mr Butler’s extensive criminal history, lengthy period of incarceration, absconding and reoffending after being transferred to the WORC program, it is considered that re-integration back into the community should be gradual. It is considered his response to decreasing levels of supervision needs to be monitored and evaluated prior to community based release. It is therefore recommended that his application be declined. It is considered Mr Butler should spend time at a low/open facility and commence a resettlement Leave of Absence program prior to further consideration for community based release. However given the length of time Mr Butler has remained on a 25 point medium classification, it is recommended his situation be reviewed in 6 months to see if he has obtained a low classification and is eligible for transfer to a low/open Centre.” [24] The Board’s Statement of Reasons record that “very significant weight” was given to the appellant’s “co-operation with authorities” and to “the comments and recommendations of the sentencing Judge”. Then reasons are given4 for deciding that, in the appellant’s particular circumstances, parole should await completion of a “gradual release process” involving residence at a low security centre and participation in a leave of absence program. [25] The Judge was therefore right to hold that it had not been established that the Board had overlooked or attached insufficient weight to the important public policy considerations underlying the parole recommendation or the recommendation itself. Slavish application of Guidelines? [26] Then there is the suggestion that the Board’s decision amounted to an improper exercise of power on the footing that the Board had slavishly acted in accordance with the Ministerial Guidelines rather than founding the deferral of the application upon considerations which had due regard to the appellant’s personal circumstances. [27] Here again, the Judge held, appropriately enough, that the Board’s reasons are inconsistent with the contention, those reasons indicating that there had not been a mere slavish application of the guidelines. Orders [28] In short, no basis has been shown for interference, and the appeal must be dismissed, with costs to be assessed. [29] I also agree with the reasons of Williams JA. 4 See paras 7-13. -- 7 of 7 --