Abbott v Chief Executive, Department of Corrective Services [2000] QSC 492

SUPREME COURT OF QUEENSLAND CITATION: Abbott v Chief Executive, Department of Corrective Services [2000] QSC 492 PARTIES: BRENDON JAMES ABBOTT (applicant) v CHIEF EXECUTIVE, DEPARTMENT OF CORRECTIVE SERVICES (respondent) FILE NO/S: SC No 9096 of 2000 ORIGINATING COURT: Supreme Court at Brisbane DELIVERED ON: 21 December 2000 DELIVERED AT: Brisbane HEARING DATE: 13 December 2000 JUDGE: Williams J ORDER: Application dismissed CATCHWORDS: ADMINISTRATIVE LAW – PRISONS – whether decision of prison authority lawful - applicant sought declarations that respondent’s treatment of applicant under maximum security orders unlawful – where conditions attaching to orders included segregation, restriction of privileges and frequent relocation from cell to cell without prior notice – where applicant had history of escape from correctional facilities – where applicant’s present behaviour “acceptable” – whether there was a failure to accord procedural fairness in making orders – whether decisions concerning conditions attaching to orders were invalid for failure to comply with relevant legislation – whether there were reasonable grounds for respondent to decide that there is a high risk that applicant will escape or attempt to escape – not established that applicant’s present acceptable behaviour outweighs his past behavioural patterns so as to justify a conclusion that the current maximum security orders are unlawful. Corrective Services Act 1988 (Qld), s 43A, s 43B, s 43C Corrective Services (Administration) Act 1988 (Qld), s 13(1), s 18 Judicial Review Act 1991 (Qld), s 32(1) Flynn v King (1949) 79 CLR 1, approved Kidd v Chief Executive, Department of Corrective Services -- 1 of 12 -- 2 [2000] QSC 405; judgment 10 November 2000, approved R v Classification Committee; ex parte Finnerty (1980) VR 561, applied Re: Walker [1993] 2 Qd R 345, applied Smith v Commissioner of Corrective Services (1978) 1 NSWLR 317, applied COUNSEL: W Sofronoff QC with G C Newton for the applicant J A Logan SC with A J MacSporran for the respondent SOLICITORS: Witheriff Nyst for the applicant Crown Solicitor for the respondent [1] WILLIAMS J: The applicant, Brendon James Abbott, is currently serving lengthy sentences of imprisonment for a series of violent crimes committed some time ago. He is currently subject to a “maximum security order” made pursuant to Subdivision 1A of Division 5 of Part 2 of the Corrective Services Act 1988 (“the Act”). Consequent upon such orders being made he has been segregated from other prisoners and been subjected to a number of restrictions not applicable to other prisoners held in custody in institutions under the control of the respondent, Chief Executive, Department of Corrective Services. [2] The applicant has now applied for the following principal orders: “1. A declaration that the respondent’s treatment of the applicant as outlined in the applicant's affidavit sworn the 13 October, 2000 namely: (a) the forced detention of the applicant in the applicant’s prison cell for not less than 20 hours each day; (b) the restriction of the applicant’s interaction with other inmates to a maximum of two other persons at any given time; (c) failure to provide the applicant with any meaningful employment; (d) the forced relocation of the applicant from one cell to another twice weekly, is not authorised or sanctioned by the provisions of the Corrective Services Act or any other legislation. 2. A declaration that the respondent’s treatment of the applicant as outlined in the applicant’s affidavit sworn the 13 October, 2000 namely: (a) the forced detention of the applicant in the applicant’s prison cell for not less than 20 hours each day; (b) the restriction of the applicant’s interaction with other inmates to a maximum of two other persons at any given time; (c) failure to provide the applicant with any meaningful employment; (d) the forced relocation of the applicant from one cell to another twice weekly, is unlawful; -- 2 of 12 -- 3 3. A declaration that the segregation of the applicant by the respondent in the Maximum Security Unit of the Woodford Correctional Centre continuously since the 5th of May 1998 amounts to the imposition by the respondent of an indefinite period of segregation. 4. A declaration that the segregation of the applicant by the respondent in the maximum security unit of the Woodford Correctional Centre continuously since the 5th of May 1998 is unlawful. 5. A declaration that the restriction of the applicant’s privileges and facilities by reason only of the applicant’s commission of offences, in respect of which the applicant has been previously convicted and punished, is unlawful. 6. An injunction requiring the respondent to reassess the applicant for release from the Maximum Security Unit of the Woodford Correctional Centre, based upon the effectiveness of the applicant’s previous individual management plan, the progress of the applicant in complying with the individual management plan, the progress of the applicant in achieving objectives set in the individual management plan, and the management of risk to other prisoners, staff and the community taking into account professional reports and evaluations of the applicant’s behaviour and participation in educative and rehabilitative programs during his segregation in the Maximum Security Unit.” [3] The affidavit material does not establish precisely the treatment particularised in the application; however, it does broadly confirm such allegations. The current regime to which the applicant is subjected provides for a minimum of 3 hours and a maximum of 7 hours out of the cell each day; it appears that on an average he spends 4.5 hours per day out of his cell. Further, the regime permits association with up to 3 nominated prisoners, but the applicant has determined that he does not wish to have any association with others in the maximum security unit. He has been given the task of “unit cleaner” and has performed that work reasonably satisfactorily. The very existence of the segregation requirement in the maximum security order necessarily means that most types of employment within the prison confines are not available to a person in the position of the applicant. It is also true that he is regularly relocated from one cell to another; that is something which occurs on an irregular basis and without prior notice. In addition he is under constant camera surveillance. [4] The applicant has a bad criminal history extending over a number of years; it contains many offences involving violence, or the threat of violence, to members of the community. It appears that he escaped from custody in Western Australia; different dates for that are found in the material and the facts about it are not made clear. He was also involved in a major escape from a Queensland prison on 5 November 1997. The material discloses that he had been in solitary confinement for about 15 months from 27 March 1995 to 7 June 1996 whilst on remand with respect to various offences. After being formally sentenced he was again held in solitary confinement from 7 June 1996 until August 1997 when he was transferred -- 3 of 12 -- 4 to a general section of the Sir David Longland Correctional Centre. He escaped from there on 5 November 1997. There was outside assistance associated with that escape, and numerous shots were fired at correctional officers to effect the escape. [5] Thereafter the applicant committed a number of offences in Queensland and elsewhere in Australia before being recaptured on 2 May 1998. [6] Before that escape he had been sentenced in Queensland for a series of robberies with actual violence, whilst in company, and whilst armed with a dangerous weapon. On 7 June 1996 he was sentenced to 9 years imprisonment for one such offence, and on 2 May 1997 was sentenced to 10 years imprisonment and 9 years imprisonment with respect to a further two offences of like kind. It is of some relevance to note from the sentencing remarks on those occasions that a large amount of money (in excess of $1M) was taken in those robberies and only a very small amount recovered. [7] After recapture the applicant was sentenced on 14 September 1998 on four counts of serious assault associated with the escape, and also with the offence of escaping from lawful custody. He was sentenced to 6 years imprisonment cumulative on the sentences he was already serving. A declaration was also made that the offences in question were serious violent offences. [8] He was then sentenced on 29 June 1999 to one count of unlawfully using a motor vehicle and one count of robbery in company. The sentences then imposed were 6 years imprisonment and 7 years imprisonment respectively to be served concurrently, but cumulatively with other sentences being served. [9] Given all those sentences the applicant would not become eligible to apply for parole until 30 October 2012, his earliest discharge date would be 25 August 2017, and his full time discharge date would be 29 October 2020. The applicant was born on 8 May 1962. [10] It would appear that from the time of his rearrest the applicant was held in a secure unit segregated from other prisoners, and subjected to conditions which did not apply to other inmates. Apparently because of concern as to the validity of the conditions under which he and other prisoners were being held Parliament inserted Subdivision 1A referred to above into the Act in 1999; the sections in question came into force from 1 May 1999. The relevant sections are as follows: “43A (1)The chief executive may make an order (a “maximum security order”) that a prisoner at a prison be accommodated in a maximum security facility, whether at the prison or at another prison. (2)The maximum security order may be made only if – (a) the prisoner has been classified, under a regulation, into the security rating of maximum security, and the rating is still current; and (b) the chief executive considers, on reasonable grounds, that 1 or more of the following apply – -- 4 of 12 -- 5 (i) there is a high risk the prisoner will escape, or attempt to escape, from prison; (ii) there is a high risk the prisoner will inflict death or serious injury on other prisoners, prison staff or other persons with whom the prisoner may come into contact; (iii) generally, the prisoner is a substantial threat to prison security and good order. (3) The term of the maximum security order must not be longer than 6 months. 43B (1)The chief executive may make a new maximum security order for a prisoner to take effect on the expiry of an existing maximum security order for the prisoner if the new order is made no earlier than 14 days before the expiry. (2)However, the chief executive must not make the new order unless – (a) not more than 28 days before the existing order expires, the chief executive gives written notice to the prisoner advising the prisoner that – (i) the chief executive is about to consider whether a new order should be made; and (ii) the prisoner may, within 14 days after receiving the written notice, make submissions to the chief executive about anything relevant to the decision about making the new order; and (b) the chief executive considers any submission the prisoner makes to the chief executive under paragraph (a)(ii). 43C (1) A maximum security order for a prisoner must include, to the extent it is practicable, directions about the extent to which – (a) the prisoner is to be segregated from other prisoners accommodated in the maximum security facility; and (b) visits to the prisoner may involve direct contact between prisoner and visitor; and (c) the prisoner is to receive privileges. (2) The privileges the prisoner may receive while under the maximum security order must be limited to privileges – (a) that can be enjoyed within the maximum security facility; and (b) the enjoyment of which, in the circumstances of the order, may reasonably be expected not to jeopardise prison security and good order. -- 5 of 12 -- 6 (3) A maximum security order may include directions about the prisoner’s access, within the maximum security facility, to programs and services, including training and counselling.” [11] Since those legislative provisions came into force the following summarises what has occurred with respect to the applicant. The first maximum security order was made on 31 May 1999. It was made on the premise that it was “considered … there is a high risk the prisoner will escape, or will attempt to escape, from prison.” By its terms that order was to apply until 27 November 1999. The second maximum security order was made on 26 November 1999 and again it was made on the premise that it was “considered … there is a high risk the prisoner will escape, or will attempt to escape, from prison.” By its terms that order was to remain in force until 26 May 2000. For purposes of the argument in support of the current application it was accepted by counsel for the applicant that there was a proper basis (derived from the criminal history) for the making of each of those orders. The attack made by the application was essentially directed at the third maximum security order which was made on 24 May 2000. Because of that it is necessary to deal with the procedure leading to the making of that order. [12] By letter dated 28 April 2000 the chief executive gave the applicant notice, in accordance with s 43B(2) of the Act, that he was about to consider whether a new order should be made. The letter informed the applicant of the basis on which such an order could be made and the material which would be considered when determining whether or not such an order would in fact be made. In that regard it referred to the applicant’s criminal history, including transcripts of remarks made on sentence. It also set out some detail surrounding the escape in November 1997. Then importantly the letter contained the following passage: “In considering whether to issue a new maximum security order in accordance with s 43B of the Corrective Services Act, I acknowledge that your level of interaction with custodial and program staff has been acceptable. Your continued participation in art classes has also been noted. These factors are, however, not necessarily sufficient to override concerns that you present a high risk of escape or attempt of escape.” [13] The letter then went on to define the areas in which specific directions would be made; segregation, visits and privileges. It then concluded with an invitation to the applicant to respond within 14 days. [14] Karen Fletcher, a solicitor who is the co-ordinator of the Prisoners Legal Service Inc, responded on the applicant’s behalf by letter of 15 May 2000. It was asserted therein that no proper response could be made because precise details had not been given of the conditions of the order which the respondent proposed to make. In addition to that the letter referred to a number of matters which were arguably relevant to the final decision to be made by the respondent. It highlighted the fact that the applicant’s behaviour in prison had been “acceptable”. The letter also noted that the applicant’s request for computer and educational materials had been declined and complained about the constant relocation from cell to cell. -- 6 of 12 -- 7 [15] The respondent replied by letter of 24 May 2000. It indicated that a new maximum security order was to be made. That letter addressed a number of the issues raised in the letter forwarded on the applicant’s behalf. The following paragraph is of some significance: “I have considered this matter at length and advise that I am not prepared to particularise the proposed conditions of an order in the renewal letter. In my opinion it is not appropriate to particularise conditions until a final decision is made to renew the order.” [16] I agree entirely with that observation. It would be premature for the decision maker to do more than indicate the general area in which directions could or would be made in the letter inviting a response. To do otherwise would be tantamount to prejudging the matter before the applicant had the opportunity of making submissions. However, the respondent did indicate that it would provide some more particularity in future letters furnished pursuant to s 43B(2). [17] It was contended that by stating in the letter of 24 May that an order would be made, the respondent was deciding the issue without giving the applicant full opportunity of making submissions. That, in my view, is not so. The letter of 15 May contained a full response from the applicant and the important issues thereby raised were dealt with in this letter of 24 May. There was compliance with s 43B(2) of the Act and there was not a failure to accord the applicant procedural fairness. [18] The maximum security order of 24 May 2000 is based on two considerations; firstly, the high risk the prisoner will escape, and secondly, “generally, the prisoner is a substantial threat to prison security and good order”. That is the first occasion on which the latter ground was relied on to support the making of the order. The critical provisions of the order of 24 May 2000 are the following: “Directions regarding the prisoner’s conditions during the period of operation of the maximum security order: 3 (i) The extent to which the prisoner is to be segregated from other prisoners accommodated in the maximum security facility. The prisoner is permitted to associate with other prisoners in the Maximum Security Unit. Such association will be: (a) limited to a period of two (2) hours a day; and (b) limited to association with one (1) other prisoner at any one time, unless otherwise approved by the General Manager in accordance with an Individual Management Plan. (ii) The extent to which visits to the prisoner may involve direct contact between prisoner and visitor. The prisoner may have access to one hour (1) non contact visit per week of a one (1) hour duration. Additional non-contact visits may -- 7 of 12 -- 8 be approved by the General Manager in accordance with an Individual Management Plan. Contact visits may be approved by the General Manager on a case by case basis. (iii) The extent to which the prisoner is to receive privileges. Telephone Calls: The prisoner is permitted one (1) telephone call of no more than 10 minutes duration each week. Additional telephone calls may be approved by the General Manager in accordance with an Individual Management Plan. Exercise: The prisoner is permitted two (2) hours of out of cell exercise per day. This exercise is to coincide with the periods of association mentioned in 3(i). Additional out of cell exercise may be approved by the General Manager in accordance with an Individual Management Plan. Property: With the exception of the basic issue of bedding and clothing, all other property to which the prisoner is permitted access is to be approved by the General Manager in accordance with an Individual Management Plan. Meals: All meals are to be eaten in the prisoner’s cell unless otherwise approved by the General Manager in accordance with an Individual management Plan. All other privileges are to be determined by the General Manager in accordance with an Individual Management Plan. (iv) The extent to which the prisoner may access programs, services, training and counselling. Programs, services, training and counselling is only to be undertaken within the Maximum Security Unit with options to be detailed in the Individual Management Plan.” [19] There followed a request pursuant to s 32(1) of the Judicial Review Act 1991 that reasons be provided within 28 days. The response was a letter of 29 June 2000. The letter referred to the criminal history, giving some details of the escape in November 1997 and detail of some of the more significant offences. It also noted: -- 8 of 12 -- 9 “Since his placement in the maximum security unit his behaviour and interaction has been acceptable and appropriate.” It then went on to give the following as the reasons for making the decision: “The foregoing demonstrates prisoner Abbott’s propensity and ability to escape from high security facilities and I am not satisfied that his continued satisfactory behaviour within the maximum security environment is sufficient to outweigh the concerns I have regarding his high escape risk.” [20] Counsel for the applicant made much of the fact, with some justification, that nothing in those reasons indicates why it was considered that “generally, the prisoner is a substantial threat to prison security and good order”. But at the end of the day that failure is not critical if the reasons substantiate a proper basis for the making of the order – high escape risk. [21] That was the position when this application was filed on 19 October 2000. Since then a further maximum security order has been made dated 16 November 2000. It will expire on 26 May 2001. It is in virtually identical terms with the order of 24 May 2000. [22] The only matter which need specifically be noted about the order of 16 November 2000 is that again it is based on the premises that it was considered there was a high risk of the applicant escaping and that he was “a substantial threat to prison security and good order”. In the statement of reasons provided in the letter of 22 December 1999 the first consideration is adequately dealt with, but again no reasons are articulated with respect to the second consideration. [23] Recently “behaviour reports” with respect to the applicant have raised the possibility he has committed breaches of prison discipline, but no charges have been formally laid and proved as yet. The respondent indicated such matters were disregarded when making the latest maximum security order. Such matters may be ignored for purposes of this application, but they may if proved be relevant to the making of future decisions with respect to the applicant. [24] In addition to the maximum security order the applicant is also subject, as are apparently most prisoners, to an “Individual Management Plan” determined by the General Manager of the Correctional Centre in which he is imprisoned. The power to direct that a prisoner be managed in accordance with such a plan apparently derives from s 13(1) of the Act and s 18 of the Corrective Services (Administration) Act 1988. Indeed such a Plan is specifically referred to in the maximum security orders. Essentially the Plan provides that subject to the provisions of the Act dealing with maximum security orders, and the actual maximum security order in place, the applicant “will be managed according to the conditions detailed in this plan”. At the time the application was brought the Plan in place was the one effective from 29 July to 29 October 2000. It is to be found as exhibit SJK 10 to the affidavit of Sarah Jane Kay sworn 12 December 2000. It is not necessary to set out the contents of that Plan in full. It provided for a minimum of 3 hours and a maximum of 7 hours out of cell each day, association with 3 nominated and approved prisoners, and give directions with respect to meals, visits, telephone calls and employment. Generally it liberalised the terms specified in the maximum security order; for example it increased the number of hours the applicant could be out of his cell. -- 9 of 12 -- 10 [25] A prisoner subject to a maximum security order is still a prisoner for purposes of the various statutes and rules regulating the handling of prisoners. A maximum security order was clearly not intended to be exhaustive of the conditions attaching to the imprisonment of the person subject thereto. It follows that an Individual Management Plan could impose conditions outside of the matters dealt with in Subdivision 1A of the Act provided those conditions were not inconsistent with that legislation or order made thereunder. Matters concerned with general security within the prison could properly be included in an Individual Management Plan. [26] It is in the circumstances outlined above that the declarations that the treatment is not authorised or unlawful are sought. It should be noted that though there was some passing reference in some of the material to the punishment in question being “cruel and unusual” and to Article 7 of the International Covenant on Human Rights, no attempt was sought to base the relief claimed on such considerations. Essentially, as it was put by Mr Sofronoff QC for the applicant, in his reply, the applicant seeks “ a declaration that an administrative decision is invalid for failure to comply with the legislation”. In that light it is not strictly an application for a statutory order of review pursuant to the Judicial Review Act, though the provisions of that legislation are not irrelevant for present purposes. [27] As was virtually conceded by all parties in the course of argument the court is essentially concerned with whether or not correct procedures were followed in arriving at the decisions in question. This court has no jurisdiction to review the actual merits of a decision if it was properly arrived at in accordance with the statutory provisions. This is particularly so when it comes to decisions made by prison authorities with respect to prisoners. The observation of Dixon J in Flynn v King (1949) 79 CLR 1 at 8 is still apposite; he there said: “It is pointed out in the case of Horwitz v Connor (1908) 6 CLR 38 that if prisoners could resort to legal remedies to enforce gaol regulations responsibility for the discipline and control of prisoners in gaol would be in some measure transferred to the courts administering justice. For if statutes dealing with this subject matter were construed as intending to confer fixed legal rights upon prisoners it would result in applications to the court by prisoners for legal remedies addressed either to the Crown or to the gaolers in whose custody they remain. Such a construction of the regulation making power was plainly never intended by the legislature and should be avoided.” [28] That principle is reflected in the decisions in Smith v Commissioner of Corrective Services (1978) 1 NSWLR 317 at 329, R v Classification Committee; ex parte Finnerty (1980) VR 561 and Re: Walker [1993] 2 Qd R 345. As noted in Walker at 351 the position may well be different where an entitlement to a specific benefit was clearly confirmed either by the legislative provision or by the administrative policy and practice in question. But short of such considerations a court should be loathe to interfere with what are essentially operational matters within the prison system. [29] It is difficult to discern from the material any failure by the respondent to comply with the provisions of s 43A, s 43B and s 43C in making maximum security orders -- 10 of 12 -- 11 with respect to the applicant. It is true that in the last two orders there has been reference to a threat to prison security and good order without specific reasons being articulated. But if there are good grounds for concluding that there is a high risk that the applicant would escape or attempt to escape it is not difficult to see that that in itself could constitute a substantial threat to prison security and good order. Undoubtedly there are persons within the prison system who would look up to and be prepared to follow a fellow inmate with the applicant’s escape history. But it is important for such matters to be articulated particularly when reasons are called for. However it seems to me that the critical question is whether or not there is a proper basis for the chief executive considering, on reasonable grounds, that there is a high risk that the applicant will escape or attempt to escape from prison. [30] The judgment of White J in Kidd v Chief Executive, Department of Corrective Services ([2000] QSC 405, judgment 10 November 2000) makes it clear that the most important consideration is the “currency of the risk”. To justify the making of an order there must be reasonable grounds for considering that at that time there is a high risk the prisoner will escape or attempt to escape. That is the issue which must be addressed in the reasons. The recent conduct of the prisoner in question will always therefore be of critical importance. Whether recent acceptable conduct outweighs past aberrant behaviour will always be a matter for judgment, and the justification for arriving at the decision should be exposed in the reasons. Kidd’s case is clearly distinguishable on the facts but it affords a good illustration of a failure to have regard to critical issues in arriving at a decision to make a maximum security order. [31] Counsel for the applicant is correct when he says that the applicant’s criminal history is something which occurred in the past and cannot be altered. The only change can be with respect to the applicant’s behaviour. To date the prison authorities have been prepared to acknowledge that his behaviour has been acceptable. A time must therefore arrive, if behaviour remains acceptable, when the past criminal history, including that of escape, will no longer be capable of reasonably dominating the decision making process. But I cannot conclude that such a stage has so clearly been reached as to justify a finding that the making of the recent maximum security orders was unlawful. It cannot be overlooked that the applicant was in solitary confinement for approximately 30 months from 1995 to 1997, and within approximately 3 months of being released into normal security conditions he participated in the escape to which reference has already been made. Any decision about a particular person’s future behavioural pattern must, given the limited resources available to a human decision maker, be heavily influenced by that person’s past behavioural patterns. A prisoner who abuses a concession by committing a series of serious violent crimes can hardly complain when authorities are reluctant to extend the same concession again after a relatively short lapse of time. [32] However, it is a concern that the renewal of maximum security orders in this case may become a “rubber stamp” exercise. I am not convinced that such is yet the case but that is the danger. For that reason it is important that those persons responsible for making the decision properly evaluate the evidence available at the time of each renewal and articulate clear reasons justifying the renewal of such an order. It is of some concern that there is a similarity of wording used in providing -- 11 of 12 -- 12 reasons in this case and that of Kidd. To be proper the reasons must be directed at each separate individual and address the issues relevant to each individual. [33] At the end of the day the “treatment” of the applicant is the combined result of a maximum security order and an Individual Management Plan. It is clear that much of the detail derives its force from the Individual Management Plan and not from the maximum security order as such. It can readily be seen that there can be some alleviation of the conditions of the applicant’s incarceration whilst maintaining in place a maximum security order. [34] It is sufficient for present purposes to say that the material does not justify the court concluding at this stage that the maximum security orders are not authorised or sanctioned by the provisions of the Act nor that they are unlawful. If there is an appropriate review every six months then it cannot be said that an indefinite period of segregation has been imposed upon the applicant. Further, I am not satisfied by the material relied on by the applicant that the orders in question were not based on “reasonable grounds”, a necessary requirement of validity pursuant to s 43A(2)(b). [35] In all the circumstances the application should be dismissed. -- 12 of 12 --