Cox v Corrective Services Commission [2000] QSC 211

5~qo5 r ~ ~ State Reporting oc oof 211 B11reai1 TRANSCRIPT OF PROCEEDINGS Copyright in this transcript is vested in the Crown. Copies thereof must not be made or sold without the written authority of the Director, State Reporting Bureau. SUPREME COURT OF QUEENSLAND CIVIL JURISDICTION HOLMES J No 1977 of 2000 MICHAEL RAYMOND COX and CORRECTIVE SERVICES COMMISSION BRISBANE .. DATE 05/05/2000 JUDGMENT -11'1 Fl11111·, Tlic Lm Courts, Ceoq_:c Sired, Bri:d1:111c, (). -1111)() REVISED COPIES ISSUED State Reporting Bureau Datedc~ /.;:y- ;oc, Applicant Respondent Tdepli11111:: (07J JZ-17 -!Jr,o !':ix: (117) 32-17 ::::.12 -- 1 of 9 -- 05052000 T2/SA2 M/T 7366/2000 (Holmes J) HER HONOUR: After considering the material and the arguments in this matter, I have come to the conclusion that Mr Cox's application cannot succeed. These are my reasons: Mr Cox, the applicant in this matter, seeks judicial review 19 of the decision of the respondent, through his authorised delegate, not to grant remission under Regulation 21 of the Corrective Services Regulations 1989 on his three year sentence of imprisonment. He also seeks review of the delegate's conduct in that it is said he failed to follow Administrative Guidelines. That decision was based on the delegate's conclusion that Mr Cox was not of good conduct and industry as required by Regulation 21, which is in the following terms: General entitlement to remission. (1) A prisoner serving a sentence of imprisonment of 2 months or longer and who is of good conduct and industry may, at the discretion of the Commission, and subject to the following provisions of this Part, be granted a remission of one-third of his sentence together with such other remission as is provided for in this Part. (2) For the purposes of this Part a prisoner is of good conduct and industry if he - (a) complies with all relevant requirements to which he is subject; 2 JUDGMENT 20 30 40 50 60 -- 2 of 9 -- 05052000 T2/SA2 M/T 7366/2000 (Holmes J) and (b) displays a readiness to assist in maintaining order and a willingness and genuine desire to maintain steady industry in every employment or 19 work which may be required of him. The sequence of events in this matter was as follows: Mr Cox was sentenced to three years' imprisonment on 16 October 1998. He became eligible for parole on 9 March 1999 and was granted parole on 18 March. His parole was cancelled, however, after a positive drug test on 8 April 1999. On 22 November 1999, he received a letter from the respondent's delegate advising him that he was considering refusing remission and he was given 21 days to comment. He responded to that letter in December 1999. On 6 December 1999, the delegate decided against the grant of remission and Mr Cox was advised of that on 8 December 1999. The grounds of Mr Cox's application may be divided up into the following main areas: the first is that the respondent took into account and relied on material which predated the decision by the West Moreton Regional Community Corrections Board on 18 March 1999 to approve his parole, that material also having been before the Regional Community Corrections Board. 3 JUDGMENT 20 30 40 50 60 -- 3 of 9 -- 05052000 T2/SA2 M/T 7366/2000 (Holmes J} Since the Board must have viewed that material in a favourable light, it is argued, it cannot subsequently have been relevant upon the respondent's delegate's considerations in relation to remission. Thus it is said an irrelevant consideration was taken into account. However, it does not follow that because the Regional Community Corrections Board was prepared to approve parole that it viewed all the material before it favourably. It may well have been prepared to make its decision in spite of such material. In the event, the grant of parole was revoked after the subsequent breach by Mr Cox. More importantly, it is not the case that the Regional Community Corrections Board's approach to material can govern in any way what it is appropriate for the respondent to take into account in an entirely different decision-making process. Secondly, Mr Cox argues that a report from Dr Curtis, a well known psychiatrist, was not properly taken into account by the respondent's delegate. Relevantly, for present purposes, the thrust of Dr Curtis' report, which was written in April 1998, presumably for sentencing, is that a head injury suffered by Mr Cox some years ago has caused him difficulties in impulse control and discriminative judgment. One might reasonably assume that this would go some way to explain some of Mr Cox's apparently aggressive conduct leading to breaches, although not to make it any less I~ 20 30 40 50 60 4 JUDGMENT -- 4 of 9 -- 05052000 T2/SA2 M/T 7366/2000 (Holmes J) undesirable. It is debatable, however, whether an explanation of why a prisoner has not been of good conduct can assist in reaching a conclusion whether he is of good conduct as required by Regulation 21. ljl In any event, for the question at issue presently, Mr Cox did draw the attention of the delegate to Dr Curtis' report and it was amongst the material that the delegate considered in reaching his conclusion that Mr Cox's conduct did not meet the standard required by Regulation 21. Accordingly, I 20 do not think there is substance in this ground. Mr Cox also argues that his misconduct has not been of such proportions as to meet the requirements of Regulation 27 30 which provides for forfeiture of remissions where a prisoner has not been of good conduct and industry and has been held in separate confinement for seven days on three or more occasions. However, that overlooks the scheme of the regulations which is that any entitlement to be considered for remission must first arise under Regulation 21, regardless of Regulation 27; and the effect of the delegate's decision is that the entitlement has not arisen at all because of a lack of good conduct and industry. 5 JUDGMENT 40 50 60 -- 5 of 9 -- 05052000 T2/SA2 M/T 7366/2000 (Holmes J) Mr Cox also says that favourable material has not been taken into account, both in the sense that he had certificates for completion of courses to which regard was not had, and in the broader sense that his offending behaviour occurred only 10 days out of some 700 days in custody. As to the first, I note that the remission form of October 1999, which was before the delegate, sets out programs I completed by Mr Cox. I note also that he was given the 20 opportunity to respond to the material before the delegate if he wished to raise anything further in his favour. His response was perhaps not helpful to himself in its tone but, more importantly, he did not raise then any further achievements to be taken into account. 30 As to the second point, that the number of occasions of breaches were few relative to the days on which there were no breaches at all, the delegate had before him the entirety, 40 of the applicant's record in the sense that he had information as to when the period of incarceration commenced and what the applicant's breach record was. He had the relevant material and there is nothing to suggest he did not look at Mr Cox's breach record in the context of the entire~~ 50 period served. What weight he gave to one vis-a-vis the other was a matter for him and is not something I can properly interfere with here. 60 6 JUDGMENT -- 6 of 9 -- 05052000 T2/SA2 M/T 7366/2000 (Holmes J) Mr Cox also, in his application, referred to the delegate's use of the expression "serious violent offence", contending that this showed a misconception that the applicant should be regarded as a serious violent offender for the purposes of section 161A of the Penalties and Sentences Act 1991. There is nothing in the delegate's reasons which shows that the term was used in any other than its ordinary sense, and the description was apposite to the offence committed by Mr Cox. There is no substance in this point. Finally, there is the matter of the respondent's delegate's conduct in failing to make his decision within the administrative guideline to which he was required by the terms of his delegation to have regard. The guideline contemplates a date for determination of the decision whether to grant remission at least seven days before the date for discharge on remission, if granted. Mr Cox's relevant date was 6 December 1999. Twenty-eight days before making a decision, the delegate was required to notify Mr Cox of the decision date and give the opportunity to respond; that is, the respondent should have been advising the applicant in late October and making his decision in late November. Clearly, the time frame was significantly out. However, this very issue has recently been considered by Justice Mackenzie in this Court in Steven Smith v. Queensland Corrective Services Commission, number S7037 of 1999, delivered on 2 March 2000. His Honour concluded that 7 JUDGMENT 19- 20 30 40 50 60 -- 7 of 9 -- 05052000 T2/SA2 M/T 7366/2000 (Holmes J} the failure to observe the time frame set out in the guidelines did not give rise to administrative review. He did not consider that the legislation evinced any intention that a breach of the guidelines should affect the validity of the decision. Certainly, in terms of the mandatory/discretionary distinction (which, as Justice Mackenzie observed, is of less importance since the decision in Project Blue Sky Inc v. Australian Broadcasting Authority (1998) 194 CLR 355), the direction that the delegate have regard to the guidelines does not suggest that they are mandatory. However, in any event, I see no reason to depart from the approach or reasoning of Justice Mackenzie and I conclude I~ 20 that this ground cannot support an application for review of 30 the decision. For the foregoing reasons I have concluded, as I have said, that the application must be dismissed. HER HONOUR: I bear in mind there was an argument as to the effect of the delegate's failing to meet the administrative guideline. The application and Justice Mackenzie's decision in Smith are almost coincidental in time, and I think it is not really to be expected that Mr Cox will necessarily have access to an unreported decision like that. 8 JUDGMENT 40 50 60 -- 8 of 9 -- 05052000 T2/SA2 M/T 7366/2000 (Holmes J) Given that there was a ground for seeking review and that there was a lack of authority on the point in relation to the guidelines, I do not propose to order costs in this matter. 9 JUDGMENT 20 30 40 50 60 -- 9 of 9 --