Butler v Queensland Community Corrections Board [2001] QSC 34

SUPREME COURT OF QUEENSLAND CITATION: Butler v Queensland Community Corrections Board [2001] QSC 034 PARTIES: BARRY SHON BUTLER (applicant) v QUEENSLAND COMMUNITY CORRECTIONS BOARD (respondent) FILE NO: S7750 of 2000 DIVISION: Trial Division DELIVERED ON: 20 February 2001 DELIVERED AT: Brisbane HEARING DATE: 14 December 2000 JUDGE: Mullins J ORDER: 1. That the time for bringing the application be extended to 6 September 2000; 2. That the application be dismissed. CATCHWORDS: JUDICIAL REVIEW – DEFECTIVE EXERCISE OF POWER – whether decision not to grant parole/community release was an improper exercise of power conferred by Corrective Services Act 1988 (Q) – whether procedural fairness was denied in decision making process. Corrective Services Act 1988 Judicial Review Act 1991 (Qld) McEncroe v Queensland Community Corrections Board (unreported Sup Ct (Q) Thomas J, 8 September 1997) Re Solomon [1994] 2 QdR 97 Williams v Queensland Community Corrections Board [2000] QCA 75 COUNSEL: J C Davidson for the applicant G P Long for the respondent SOLICITORS: Edwards Lawyers for the applicant Barker Gosling for the respondent [1] MULLINS J: This is an application for statutory order of review in respect of the decision of the respondent made on or about 19 May 2000 which is described in the application as a refusal to grant parole or other community release to the applicant. The actual decision was that the application for parole, home detention and release -- 1 of 11 -- 2 be deferred until the applicant had successfully completed 6 months at a low or open security centre and also completed a lengthy leave of absence program. [2] There were two main grounds argued on the hearing of the application. The first ground was that the making of the decision was an improper exercise of the power conferred by the Corrective Services Act 1988 ("the Act"). The argument was advanced in reliance on the decision in Williams v Queensland Community Corrections Board [2000] QCA 75; CA No 6237 of 1999; 17 March 2000; that the respondent failed to take into account the relevant factors of the parole recommendation of the sentencing judge and whether, in the public interest, the applicant should be released on parole to encourage others who might be minded to give co-operation to the authorities similar to that which he had given. As part of this ground of improper exercise of power, the applicant also alleged that the respondent's decision involved the exercise of a discretionary power in accordance with a policy that prisoners who have not completed six months at a low or open security centre should not be released on parole without regard to the merits of the applicant's case. [3] The second main ground was that the respondent failed to accord the applicant procedural fairness by failing to advise him of and allowing him to respond to matters that influenced the decision and which the applicant had had no opportunity of dealing with. Facts [4] The applicant was born on 27 March 1965 and is therefore 35 years old. He was sentenced in 1992 to a term of 6 years' imprisonment for armed robbery. In August 1993 he absconded whilst on a prison work scheme and committed further offences including several counts of armed robbery which were motivated by his drug addiction. On 14 July 1994 His Honour Judge Noud sentenced the applicant to 18 years' imprisonment which was cumulative with the existing term of 6 years. [5] The sentencing judge recommended that the applicant be released on parole after serving 5½ years of the sentences and the new parole date was fixed as being 26 September 2000. The sentencing judge referred to the mitigating features which supported such early recommendation for release on parole including the applicant's exceptional co-operation with the authorities and the police which resulted in a number of co-offenders being arrested for armed robbery. [6] In or about June 1997 the applicant applied to the Queensland Corrective Services Commission ("Commission") for reclassification from a rating of medium security to low security. By letter dated 29 August 1997 the Commission by its Serious Offenders Committee decided that the applicant should remain on the classification rating of medium security. Reference was made in that letter to no breaches or incidents recorded against the applicant since September 1995 (as was the case) and that he was undertaking formal studies as well as being engaged in full-time employment. [7] By letter dated 25 February 1999 the applicant applied for the work release program. At the same time the applicant sought to correct discrepancies which he had ascertained in the records of the Commission's Sentence Management section -- 2 of 11 -- 3 relating to him. This application followed the decision of the Commission made in November 1998 not to grant the applicant a reduction in classification to low security. [8] By letter dated 2 March 1999 from the Commission to the applicant, a statement of reasons in relation to the decision not to grant a reduction in classification was provided. These reasons incorporate the discrepancies to which the applicant made reference in his letter of 25 February 1999 in an endeavour to correct and, in particular, that the offences of armed robbery for which the applicant was sentenced on 14 July 1994 were committed whilst the applicant was on parole for the previous offence of armed robbery. No reference was made in these reasons to the recommendation for early release on parole made by the sentencing judge. [9] By letter dated 10 March 1999 the applicant advised the Commission of the inconsistencies and factual errors that were part of the reasons provided in the letter dated 2 March 1999. The applicant had a meeting on 18 March 1999 with the relevant officer of the Commission regarding his application for reclassification to low security, when these errors were also drawn to the attention of that officer. [10] On 16 April 1999 the applicant sent a further letter to the Commission's Sentence Management section repeating the matters raised in the meeting on 18 March 1999. It appears that on 16 April 1999 the applicant was informed of the decision which had been made on 18 March 1999 to refuse his application for reclassification to low security. [11] By letter dated 19 April 1999 the applicant therefore requested a statement of reasons from the authorised delegate of the Serious Offenders Committee. As a result, the applicant was advised that his case would be reassessed by the Serious Offenders Committee on 27 May 1999. By letter dated 2 June 1999 from the Department of Corrective Services the authorised delegate in consultation with the Serious Offenders Committee decided that the applicant was to be classified as medium security on the points score of 25 points. Reasons were provided for that decision. The inconsistencies and errors in previous reasons had been corrected. [12] Notwithstanding that the submission for a reduction in classification to low security was supported by the General Manager and the Sentence Management Team, the letter recited that the Committee had regard to the serious nature of the applicant's offences, the length of time imposed for those offences and the breach of trust in 1993 when the applicant failed to return from leave of absence and decided that a reduction in classification to low security at that time was inappropriate. Reference was made in those reasons to the court's recommendation for release to parole on 26 September 2000. The applicant did not seek to have this decision reviewed. [13] The applicant's parole/home detention/work release application is dated 28 June 1999. It is comprehensive. The application was made in the first instance to the Brisbane Regional Community Corrections Board ("the Regional Board") which was required under section 167 of the Act to recommend to the respondent as to whether or not the applicant should be released on parole. [14] By letter dated 1 October 1999 from the Department of Corrective Services ("the Department") the applicant was advised that on 16 September 1999 the authorised -- 3 of 11 -- 4 delegate decided that he was to be classified as medium security on the points score of 25 and transferred to Wolston Correctional Centre. The applicant was advised that the Committee would give consideration to a low security classification at the next review in 6 months' time. No reference was made in that letter to the recommendation for early release on parole of the sentencing judge. The applicant requested a statement of reasons in relation to the decision of 16 September 1999. The statement of reasons is dated 11 November 1999. No express reference is made in that statement of reasons to the sentencing judge's recommendation in relation to parole. It does not appear that the applicant sought to have this decision reviewed. It is apparent however, in these reasons that emphasis was placed on the fact that the term of 18 years was imposed for offences of armed robbery committed while the applicant was at large on a release to work program without regard to those matters being taken into account in the setting of the recommended date for early release on parole in relation to that sentence. The rationale of the decision in Williams, discussed below, in relation to the effect of a parole recommendation would be applicable to the review of a prisoner's security classification. [15] On 23 March 2000 the applicant was interviewed by a senior community correctional officer for the purpose of a report for the Regional Board in relation to the applicant's application for home detention and parole. It is apparent from the report which was prepared and dated 11 April 2000 and is described by the respondent as the Assessment Unit's report that by the date of the interview the applicant had decided not to pursue the application for release to work. [16] The Assessment Unit's report details the applicant's prison conduct at length. His lack of breaches since September 1995, his prison employment record, his participation in educational programs and his good standard of attitude and behaviour are dealt with. [17] At its meeting on 4 May 2000 the Regional Board considered the applicant's application for community based release. It does not appear that the applicant exercised his rights of appearance before the Regional Board. The Regional Board decided to recommend that the applicant not be approved for release at that stage and that his application be reviewed in six months. That accorded with the recommendation made in the Assessment Unit's report. That decision of the Regional Board was advised to the respondent by memorandum dated 9 May 2000. [18] By letter dated 19 May 2000 the applicant was advised by the respondent: "The Queensland Community Corrections Board has carefully considered your application for parole, home detention and release to work dated 28 June 1999. The Board has directed that your application be deferred until you have successfully completed six months at a low or open security centre and also have completed a lengthy Leave of Absence program." It is that decision which is the subject of this application. [19] The applicant requested a statement of reasons. It is dated 11 July 2000. The documents that were taken into account by the respondent are set out in the statement as follows: -- 4 of 11 -- 5 1. Sentence Management Review dated 1.10.99. 2. Substance Abuse Educational Programme Certificate dated 27.2.98. 3. Relapse Prevention Programme Certificate dated 17.4.98. 4. Anger Management Programme Exit Report dated 16.11.98. 5. Your application for early release dated 28.6.99. 6. Corrective Services prison breach/incident report. 7. Criminal history. 8. Sentencing Judge's comments dated 14.7.94. 9. Home Assessment Report dated 3.3.00. 10. Psychologist's report dated 2.3.98. 11. Assessment Unit report dated 11.4.00. 12. Your application dated 28.6.99. 13. Recommendation of the Brisbane Regional Community Corrections Board dated 9.5.00. 14. Ministerial Guidelines issued to the Board." [20] The Sentence Management Review dated 1 October 1999 appears to be the working document that was the genesis of the decision made on 16 September 1999 conveyed by the Department to the applicant that he would be classified as medium security on the points score of 25 and transferred to Wolston Correctional Centre. At the commencement of that document the parole eligibility date of the applicant of 26 September 2000 is set out. None of the commentary in the document, however, is directed to taking that date into account in connection with the process of reviewing the security classification of the applicant. [21] At the commencement of the Assessment Unit's report the applicant's eligibility for parole is stated to be 26 September 2000 in a list of eligibility dates and reference was made under the heading "Circumstances of the Offences" to the comments of the sentencing judge about the applicant's co-operation with the police and the recommendation in relation to the term of 18 years that the applicant be considered for parole after five and a half years. In the summary towards the conclusion of the report no reference is made to the recommendation of the sentencing judge about early release on parole. It is not referred to in the recommendations and special conditions at the conclusion of the report which are in the following terms: "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 reintegration 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 his low classification and is eligible for transfer to a low/open Centre." -- 5 of 11 -- 6 No attempt was made in the Assessment Unit's report to deal with the recommendation for early parole made by the sentencing judge in conjunction with the perceived need to gradually reintegrate the applicant into the community. [22] It makes it difficult for the respondent to perform its role according to law to accord the proper consideration to the sentencing judge's recommendation for early release on parole, when the reports which are before the respondent which are relevant to its decision making make no real attempt to do so. [23] The findings of fact and conclusions of the respondent set out in the statement of reasons of reasons are: "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 Risk Needs Inventory has scored you as being in the high risk category of likely re-offending. 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 -- 6 of 11 -- 7 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." [24] The Ministerial Guidelines which the respondent considered in making its decision are found in Exhibit "N" to the affidavit of Christopher Richard White filed on 15 November 2000. They are guidelines made pursuant to section 139(1) of the Act and were issued on 29 September 1998. The opening paragraphs of these guidelines are: "1.1 When considering whether a prisoner should be released from custody to a community-based program the priority for the Queensland Community Corrections Board should always be the protection of the community. 1.2 Wherever possible, prisoners should be phased back into the community in a staged process of decreasingly-restrictive supervision. Staged release can include release to work, -- 7 of 11 -- 8 home detention or parole, or a combination of these options best suited to the assessed needs of the prisoner. 1.3 A prisoner should achieve a low or open security classification prior to approval for release to a community- based program. At the discretion of the Board, medium security classification prisoners can be considered for release to a community based program where: (a) circumstances indicate an exception is unlikely to increase the level of risk to the community; (b) the prisoner is close to the point of reduction from a medium to a low security classification; and (c) the prisoner is not serving a sentence for a serious violent offence. 1.4 Unless extraordinary circumstances exist, it is inappropriate for a prisoner serving a term of imprisonment of 10 years or more to be approved for release to a community-based program until the prisoner has successfully completed a minimum of six months in an open custody environment. An open custody environment can include an Open Custody Correctional Centre or a Secure Correctional Centre where the prisoner has worked with minimal supervision outside the secure perimeter for extended periods of time on an ongoing basis." Williams v Queensland Community Corrections Board [25] In Williams the appellant was sentenced to 12 years' imprisonment with a recommendation for release on parole after serving 18 months of that sentence which made him eligible for parole on 25 July 1997. In the case of this appellant the respondent decided to defer consideration of his application for parole, home detention or release to work for six months to allow the appellant to undertake a program of leaves of absence. His application had not been made until almost six months after he was eligible for parole in accordance with the sentencing judge's recommendation. [26] The reason for the recommendation for early release on parole was substantially because of the appellant's co-operation in implicating and obtaining the conviction of his co-offender. While in prison the appellant also co-operated in providing evidence against a fellow inmate who was alleged to have conspired to have himself assaulted in order to sue the prison authority. It was argued on appeal that the reasons of the respondent disclosed a lack of consideration of whether, in the public interest, the appellant should be released on parole to encourage others who might be minded to give similar co-operation. The court stated: "[20] In cases of this kind there will almost always be two competing public interests. On the one hand, in the present case, there is the interest in apprehending, convicting and imprisoning offenders as dangerous to human life and safety as Wilkie and consequently in encouraging others, who may find themselves in a position similar to the appellant's, to co-operate in his apprehension and conviction, even at the risk of personal violence to themselves. On the other hand there is the public interest in imposing on the -- 8 of 11 -- 9 appellant a sentence of imprisonment which is commensurate with his serious offending and substantial previous criminal history and which ensures that he serves that sentence in such manner as to best minimize the risk to the community of his offending again on his release. And often in such cases – the present case is one of these – the first of these public interests so outweighs the second as to require, as mentioned earlier, such a degree of leniency in sentencing as would otherwise be quite unjustified. It was by a careful, and in our view correct balancing of these interests that the learned sentencing judge made the recommendation for parole which he did. [21] The reasons of 23 October 1998 said that the Board placed particular weight on the sentencing judge's recommendation and that the matters raised by his Honour and the submissions made on the appellant's behalf to the West Moreton Regional Community Corrections Board weighed very heavily in the appellant's favour. But those reasons tended to indicate that the Board thought that these matters should be taken into account only as reflecting well on the appellant. Certainly the reasons gave no indication that the Board understood that a substantial purpose of his Honour's recommendation was to encourage others to do what the appellant had done. To that must be added the Board's failure to mention the considerable assistance which the appellant gave, again at the risk of personal danger, in the apprehension and prosecution of a prison offender. Read as a whole, therefore, the reasons, in our view, demonstrate a failure on the part of the Board to understand and apply the pubic policy to which we have referred. Had they done so they would have appreciated that it required the granting of parole at a point which demonstrated a degree of leniency which would otherwise be quite unjustified. ... [25] A recommendation for early parole is part of the sentence imposed and mitigates the effect of that part of the sentence which imposes the term of imprisonment. That is not because the prisoner has an absolute entitlement to parole at or about the recommended date. Clearly there is no such entitlement. It is because it is a reasonable expectation, at the time of sentencing, that the offender will become entitled to parole at about the date recommended. That expectation may be falsified or modified because of information gained about the prisoner and his prospects of rehabilitation during the period between commencement of sentence and the eligibility date and it would be unsurprising if, relying on that information, the Board did not grant parole at or about that date. But in the absence of such information placing the Board in a better position to make a judgment on this question than the sentencing judge, there is cause to question whether the refusal by the Board to grant parole at or about the time recommended is the result of some error by it which would justify a review of its decision." -- 9 of 11 -- 10 It is apparent from these reasons that the court considered that in the decision making process in Williams the respondent treated the recommendation for early release on parole as one factor in favour of the appellant rather than as an expectation given to the appellant of eligibility for parole in order to give effect to the policy reasons reflected in the recommendation. The appellant's appeal was successful and the decision of the respondent was set aside. Failure to give effect to parole recommendation [27] It is arguable that, although the reasons of the respondent in respect of the applicant's application do not make express reference to the public interest in encouraging offenders to co-operate with authorities, it is implicit in the statement in paragraph 12 of the reasons where the respondent adverts to placing "very significant weight on the comments and recommendation of the sentencing Judge" that the respondent has not overlooked that public policy underlying the recommendation. This is particularly so, when the respondent had the sentencing comments before it and has recited in its reasons that one of the reasons for the recommendation was the applicant's co-operation with authorities. [28] Although I have reservations about the flaws in the documents which were before the respondent and, in particular documents numbered 1 and 11, an analysis of the reasons of the respondent does not support the conclusion that the respondent did not take into account the parole recommendation of the sentencing judge in the nature of conferring an expectation on the applicant of eligibility for parole on 26 September 2000 and the underlying public policy reflected in that recommendation. The nature of the incarceration undergone by the applicant and its effect on the applicant's likely integration into the community are obviously matters subsequent to the sentencing which the respondent was entitled to consider in conjunction with the parole recommendation. [29] It was submitted on behalf of the respondent that the decision in Williams could be distinguished, as in the case of this applicant there was no additional post sentence co-operation of the type given by the appellant in Williams. That narrow interpretation of Williams is not justified by the reasons which I have extracted from the decision and set out above. Application of Ministerial guidelines [30] Although the ultimate conclusion reached by the respondent in respect of the applicant's application was that he should move through the system and reside at a low security centre before commencing parole reflects statements in the Ministerial guidelines, particularly paragraphs 1.2 and 1.4, it is apparent from an analysis of the respondent's reasons that in the case of the applicant there has not been a slavish application of the guidelines, but a consideration of the principles underlying the guidelines in their application to the applicant in conjunction with the recognition of the applicant's eligibility for parole. [31] The applicant has therefore not been successful in showing that the decision was an improper exercise of the power for simply acting in accordance with a policy rather than exercising the discretionary power entrusted to the respondent. -- 10 of 11 -- 11 Lack of procedural fairness [32] The applicant relies on the obligation of the respondent to bring to his notice factors which it considers to be critical to its determination: Re Solomon [1994] 2 QdR 97, 110 and McEncroe v Queensland Community Corrections Board (unreported Sup Ct (Q), Thomas J, 8 September 1997). The matters that are relied upon by the applicant to support this ground are referred to in paragraphs 4, 6, 7, 8, 9 and 12 of the findings of fact and conclusions in the statement of reasons. [33] The reference in paragraph 4 to the alteration in the relationship between the applicant and his former companion and the content of paragraph 6 were matters advised by the applicant to the interviewer for the Assessment Unit's report. The matters covered in the balance of the paragraphs relied on for this ground relating to institutionalisation and likelihood of reoffending are matters which were within the expertise of the respondent and were anticipated by the nature of the application and were addressed in the applicant's application and the interview which he provided for the Assessment Unit's report in putting forward his future plans and the steps he proposed to take to help him avoid future offending. [34] Having regard to the process followed in relation to the application, procedural fairness does not require the respondent to give prior notice to the applicant of matters which are fairly in issue in connection with the application. Extension of time for filing application [35] The applicant received the statement of reasons of the respondent on or about 13 July 2000. The application for statutory order of review should therefore have been filed within 28 days after that date. The application was filed on 6 September 2000 which was almost one month out of time. The reasons advanced on behalf of the applicant for the delay in making the application are the difficulties he had in locating a solicitor through the Prisoners' Legal Service to advise him and the delay that then ensued in the solicitors' obtaining advice from counsel before proceeding with the application. There is no prejudice to the respondent by the granting of the extension. On the basis that the application raised issues of substance, it is appropriate to exercise the discretion to extend the time for making the application. Orders [36] The orders which I will therefore make are: 1. That the time for bringing the application be extended to 6 September 2000; 2. That the application be dismissed. [37] I will hear submissions on the question of costs. -- 11 of 11 --