Carter v Queensland Community Corrections Board [1999] QSC 218

IN THE SUPREME COURT OF QUEENSLAND No 3269 of 1999 Brisbane Before the Hon Justice Atkinson [Carter v Qld Community Corrections Board] BETWEEN: MAXWELL AUBREY CARTER Applicant AND: QUEENSLAND COMMUNITY CORRECTIONS BOARD Respondent REASONS FOR JUDGMENT - ATKINSON J Judgment delivered 10 September 1999. CATCHWORDS: ADMINISTRATIVE LAW - STATUTORY APPEALS FROM ADMINISTRATIVE AUTHORITIES TO COURTS - application for review of decision by respondent not to grant parole, home detention or release to work - whether respondent had regard to an irrelevant consideration - whether respondent gave due weight to all relevant considerations. Corrective Services Act 1988 (Qld) Pt 4 Crimes Act 1914 (Cth) s 290 Judicial Review Act 1991 (Qld) s 26 Carter v Queensland Community Corrections Board (unreported, Supreme Court of Queensland, Mackenzie J, 17 December 1998), considered Kioa v West (199~159 CLR 550, referred to Kuku Djungan Aboriginal Corporation v Christensen [1993] Qd R 663, applied . Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24, referred to Nguyen v Queensland Community Corrections Board (unreported, Supreme Court of Queensland, Thomas J, 7 April 1998), considered -- 1 of 15 -- Counsel: Solicitors: Hearing Date: 2 Pickwell v Camden London Borough Council [1983] QB 962, referred to R v Anderson; Ex parte /pee-Air Pty Ltd (1965) 113 CLR 177, referred to R v Secretary of State for the Home Department; Ex parte Lillycrop (1996) TLR 724, referred to Re Wood (unreported, Supreme Court of Queensland, White J, 10 September 1998), referred to Webster v Queensland Community Corrections Board (unreported, Supreme Court of Queensland, White J, 10 September 1998), referred to Williams v Queensland Community Corrections Board (unreported, Supreme Court of Queensland, Moynihan J,3 June 1999), referred to Yeo v Queensland Community Corrections Board (unreported, Supreme Court of Queensland, Dowsett J, 13 February 1998), considered DRL Laws fot the applicant DM Linnane for the respondent Poteri Woods Solicitors for the applicant 4 June 1999 -- 2 of 15 -- IN THE SUPREME COURT OF QUEENSLAND No 3269 of 1999 Brisbane [Carter v Qld Community Corrections Board] BETWEEN: MAXWELL AUBREY CARTER Applicant AND: QUEENSLAND COMMUNITY CORRECTIONS BOARD Respondent REASONS FOR JUDGMENT - ATKINSON J Judgment delivered 10 September 1999. This is an application for review of a decision made by the Queensland Community Corrections Board ("the Board") on 12 February 1999 "to refuse to admit the Applicant to Home detention and to refuse parole"l, The grounds of the application are as follows: "(A) The Decision maker ("the Decision Maker"), in the exercise of its said Discretion was required to give proper consideration to the merits of the case according to Law and failed to do so"; "(B) The decision is tainted by error of Law on the face of the Record"; "(C) The Decision maker has acted ultra vires the delegated power reposed in it and in so doing has fallen into an error of Law which error appears on the face of the record"; "(D) The Applicant has been denied procedural fairness contrary to Law and/or there is no evidence that the decision maker accorded the Applicant procedural fairness as required by Law"; "(E) There was no evidence or other material before the decision maker sufficient to justify the making ofthe decision"; The power to grant parole is found in Part 4 of the Corrective Services Act 1988 (Qld). -- 3 of 15 -- 2 3 (\ 2 "(F) In making the decision the decision maker has exercised its power in a such a [sic] manner that is so unreasonable that no reasonable person in the position of the decision maker could so exercise the power." The first order sought by the applicant is "an order pursuant to Section 26( 1)(b) of the Judicial Review Act of 1991 (Qld) for leave to extend time for appeal". Application for extension of time Section 26 of the Judicial Review Act 1991 provides: "Period within which applicatioI.l must be made 26.(1) An application to the Court for a statutory order of review in relation to a decision that has been made and the terms of which were recorded in writing and set out in a document that was given to the applicant (including a decision that a person purported to make after the end of the period within which it was required to be made) must be made within - (a) the period required by subsection (2); or (b) such further time as the Court (whether before or after the end of that required period) allows. (2) The period within which an application for a statutory order of review is required to be made is the period beginning on the day on which the decision is made and ending 28 days after the relevant day. (5) In subsection (2) - "relevant day" means - (a) if the decision includes, or is accompanied by a statement giving, the reasons for the decision - the day on which a document setting out the terms of the decision is given to the applicant; or (b) if paragraph (a) does not apply and a written statement giving the reasons for the decision is given to the applicant (otherwise than because of a request under section 32) not later than 28 days after the day on which a document setting out the terms of the decision is given to the applicant - the day on which the statement is given; or -- 4 of 15 -- 4 3 (c) if paragraph (a) does not apply and the applicant requests the person who made the decision to give a statement under section 32 - the day on which - (i) the statement is given; or (ii) the applicant is notified under section 33(2) that the applicant was not entitled to make the request; or (iii) the applicant is notified under section 33(5) or 37 that the statement will not be given; or (iv) the Court makes an order under section 39 declaring that the applicant was not entitled to make the request; or (d) in any other case - the day on which a document setting out the terms of the decision is given to the applicant." Cl This perhaps unnecessarily convoluted section means in this case that the applicant had 28 days 0 after he received a document setting out the terms of the relevant decision accompanied by a statement giving the reasons for the decision within which to make an application. In this case the applicant received the relevant decision by the respondent on 12 February 1999. The application for statutory review was filed on 9 April 1999, which was well outside the relevant time. The court has a discretionary power under s 26( 1)(b) to grant an extension of c; time. The presumption, however, is that time should not be extended unless: (1) there is an acceptable explanation for the delay; (2) it would be fair and equitable in the circumstances to extend the time; (3) the extent to which there is prejudice to the respondent or others; and (4) the merits of the substantive application warrant an extension of the time. This encapsulates the often cited decision of Moynihan J in this Court in Kuku Djungan Aboriginal Corporation v Christensen:2 2 [1993] Qd R at 665. -- 5 of 15 -- <; ( I Delay 4 "It seems to me that, prima facie, proceedings commenced outside the limitation period ought not to be entertained unless the applicant shows an acceptable explanation of the delay and that it would fair and equitable in the circumstances to extend the time. Such considerations, in cases such as the present, extend beyond considerations applying as between the applicant and the respondent and to include the wider public interest. The same may be said of considerations of prejudice to the respondent and others consequent on the delay in bringing the application. In any event this does not seem to be an issue. The considerations to which I have referred seem to be supported by the likes of Hunter Valley Developments Pty Ltd v Minister for Home Affairs and the Environment (1984) 58 ALR 305 at 310, and Lucie v Nolan (1982) 45 ALR 411 at 415 although these cases deal with different legislation. Those cases also established that the merits of the substantive application are a consideration relevant to granting an extension of time ... " The explanation for the delay is found in an affidavit of the solicitor acting for the applicant. It appears from his affidavit that the applicant was successful in a previous application for statutory order of review. On 17 December 1998 Mackenzie J ofthis Court ordered that the decisions ofthe respondent of24 August and 21 September 1998 be set aside and ordered the respondent to consider the application according to law. In that decision Mackenzie J held that in considering applications for home detention and parole the board has wide discretion3 • His Honour recognised that the degree of risk to the community is not only a relevant consideration but also a priority in assessing such an application. As his Honour held at para 14: 3 "In a case like the present, where the applicant has refused to accept his personal criminality and has promoted the false notion that the restrictions of the Corporations Law and with respect to trust accounts deprived him of the opportunity to engage in fraudulent conduct his attitude is a relevant consideration in deciding whether there is sufficient risk to members of the public to justify his not being released." Carter v. Queensland Community Corrections Board (unreported, Supreme Court of Queensland, No. 9418 of 1998, 17 December 1998); Nguyen v. Queensland Community Corrections Board (unreported, Supreme Court of Queensland, No. 7152 of 1997, Thomas J, 7 April 1998); Re Wood (unreported, Supreme Court of Queensland, No 7622 of 1998, White J, 10 September 1998) at 4; cf Yeo v. Queensland Corrective Services Commission (unreported, Supreme Court of Queensland, No 7534 of 1997, Dowsett J, 13 February 1998). -- 6 of 15 -- 5 However, the applicant was successful because the respondent wrongly thought that the sentencing process had miscarried. The matter was remitted to the respondent to reconsider according to law. 6 The respondent reconsidered the matter at its meeting on the next day, 18 December 1998, where it deferred its decision until its meeting on 22 January 1999, in order that an updated Assessment Unit Report might be obtained for the respondent's consideration. It informed the applicant's solicitors of the course it propo~ed. However, it does not appear that any such Report was in fact obtained or relied upon. On 22 January 1999 the application was again deferred to () 5 February 1999, when the application was refused. The applicant had sought a copy of the j updated assessment report but this had not been provided prior to the decision by the Board. C) I There is no suggestion that it contained any material adverse to the applicant. 4 7 By letter dated 12 February 1999, the Board notified the applicant of its decision setting out lengthy reasons. It first referred to the matters in his favour including the sentencing Judges' recommendations, his satisfactory prison behaviour, his written submissions and his earlier application for a Statutory Order for Review. 8 The detailed reasons rehearsed his criminal history and in particular his history of dishonesty and his many convictions for serious fraud and false pretences and the remarks by the () sentencing Judge warning that members of the community should exercise "a great deal of caution" in ~oing business with him in the future. It also took into account his refusal to accept his guilt even of the crimes to which he had pleaded guilty and his failure to address his serious criminal behaviour. The Board concluded that it was at that time unwilling to approve his application. It then said that he could, ifhe wished, make written submissions within seven days 4 cf Kioa v. West (1985) 159 CLR 550 at 582-583, 586 per Mason J, 612-613, 628-629 per Brennan J, 634 per Deane J. -- 7 of 15 -- 9 ( 10 11 6 of his receipt of the Board's letter, addressing any ofthe concerns raised in its reasons, before the final determination of his application. On 9 March 1999, the applicant's solicitors said the applicant was not going to avail himself of the Board's internal review process, sought a copy of the updated Assessment Unit Report and said that "Counsel is presently settling a fresh Application for Statutory Order of Review and same will be served upon you in the near future". The Board replied on 23 March 1999. On 16 April 1999, the applicant served an Application for Statutory Order of Review, which had been filed on 9 April 1999. While this explanation for delay is barely adequate, the delay is not such that if the applicant had a strong case on the merits, he would be denied judicial review. However, for the reasons that appear below, the applicant would fail on his application for judicial review even ifhe were within time. Background On 16 February 1996, Mr Carter was convicted of the federal offence of defrauding the Commonwealth contrary to s.29D of the Crimes Act 1914 (Cth). This fraud consisted of an elaborate scheme continuing for a number of months involving fraudulently obtaining grants from the Australian Trade Commission. Mr Carter, who was the director of a company, falsely claimed to have invented a device which he called the "portable mortar gun" which could mix mortar and then pump the slurry through a hose to a nozzle which would load the mortar onto bricks at the required thickness and allow for the faster laying of bricks. In order to market this product, Mr Carter advertised in a number of newspapers including the Gold Coast Bulletin and the Courier-Mail inviting people to invest in the project. Mr Carter described himself as an engineer and claimed that the product was fully developed and ready to market. Mr Carter was sentenced to 5 years' imprisonment for this offence, and ordered to pay by way of compensation -- 8 of 15 -- 12 13 7 to the Australian Trade Commission the sum of$205,364.00. A non-parole period of2~ years was fixed by the trial judge. On 23 May 1996, Mr Carter applied for leave to appeal against the sentence of 16 February 1996, however this appeal was later abandoned. On 30 August 1996, Mr Carter pleaded guilty5 to five counts of obtaining property by false pretences and wilful promise, and five counts of obtaining property by false pretences. These offences related to the defrauding of a number of persons who had invested in the scheme perpetrated by Mr Carter. The total amount obtained by Mr Carter from these investors was the sum of $179,450.00. Mr Carter was sentenced on these counts to a period of two years' imprisonment for each group of five offences, to be served cumulatively with the previous sentence of five years. A new parole C_; recommendation was also made by the sentencing judge, who added six months to the previous non-parole period, enabling Mr Carter to be eligible to apply for parole on 16 February 1999. Grounds of the application The submissions of the applicant in support of the application rely on a number of matters which do not fall within the grounds of the application, some of the submissions and grounds have already been dealt with by Mackenzie J and some of the grounds of the application are not dealt with in the submissions. In considering the grounds of review I shall deal seriatim with the matters raised in the applicant's submissions (that have not already been dealt with by Mackenzie J) as I presume that these are the matters the applicant has chosen to pursue. These appear under the heading "The Applicants [sic] Grounds of Complaint". I have quoted them in the precise form in which they appear in the applicant's written submissions. 5 This is not the case of a prisoner who pleaded not guilty and has always maintained his innocence: cf Webster v. Queensland Corrective Services Commission (unreported, Supreme Court of Queensland, No 5120 of 1998, White J, 10 September 1998). C) -- 9 of 15 -- 8 "Failure to place any or sufficient weight upon a relevant consideration. Relevant Judicial Discretions were properly exercised" There is no suggestion in the decision of the respondent that it took any view in its decision that any relevant judicial discretion was not properly exercised. There is nothing in this ground of review. "The Applicant has been deprived and will be continue to be deprived of his liberty. in effect. for period in the order of a full year beyond the period deemed appropriate by the learned Sentencing Judge" Th'ere is no rule of law that the Board is obliged to give effect to a recommendation by the Sentencing Judge as to early release on parole, so this ground of review has nothing in it. 6 ( It is a relevant consideration, and it is clear that the Board has taken account of it. The weight to be given to such considerations is essentially for the Board. 7 "Respondent has misdirected itself as to relevant considerations and it's [sic] approach to Applicationis thereby flawed The applicant is not a "serious'; offender:" The applicant submits that he is not a "serious violent offender" within the meaning of the Penalties and Sentences Act or the Corrective Services Act 1988. This is true, but there is no suggestion that the respondent believes him to be a serious violent offender so this ground of review is also without substance. "ULTRA VIRES: The Respondent is not authorized to question the proper exercise of a judicial discretion in the formulation of sentence or the making of recommendations but it has tresspassed into this province on the face of the decision:" This ground is similar to the first and second ground and again there is nothing in it. The Board is required to exercise its discretion and not merely adopt the view of the Sentencing Judge. 6 7 Nguyen v, Queensland Community Corrections Board (supra) at 8. R v, Anderson; Ex parte Jpec-Air Pty Ltd (1965) 113 CLR 177 at 205; Pickwell v. Camden London Borough Council [1983] QB 962 at 990; Minister for Aboriginal Affairs v. Peko-Wallsend Ltd (1986) 162 CLR 24; Williams v. Queensland Community Corrections Board (unreported, Supreme Court ofQueens\and, No 11032 of 1998, Moynihan J, 3 June 1999) at paras 5-7. -- 10 of 15 -- 9 "No evidence of unsatisfactory custodial conduct - Failure to place any or any sufficient weight· on relevant considerations" The respondent specifically refers, in its decision, to the fact that it has taken into account in the applicant's favour his satisfactory prison behaviour. This ground of review is without merit. "The Approach of the Respondent as revealed on the face of the Decision as evidence of ultra vires and/or the taking account of irrelevant considerations." This repeats the grounds relied upon in one, two and four, adds nothing to them and is similarly without merit. "The Respondent has taken account of an irrelevant consideration - No evidence:" C~) The irrelevant consideration is said to be taking account of the fact that the applicant has CJ not undertaken any courses to address his offending behaviour. This is said to be irrelevant because the applicant asserts that no such courses exist. However, the way in which the Board dealt with this matter reveals no error oflaw. The Board said in its decision: "In your submissions of 27 August 1998, you mentioned that you have been interviewed by the Sentence Management Units of four different correctional centres. In each case, you were told that the Centre did not have a program to assist you. Those comments may well have been made. If an inmate refuses to discuss his personal history, and refuses to admit guilt, then quite obviously, Sentence Management Units are unable to suggest any course or program which might help avoid a repetition of the relevant type of criminal conduct. That being so, the Board has so far been unable to place any weight on your submission." The matters canvassed by the Board in its reasons show that it has considered the applicant's refusal to accept his criminal responsibility in the context of the particular facts of his case in its assessment of the risk of his re-offending8• This is in conformity with the principles referred to 8 cf Yeo v. Queensland Corrective Services Commission (supra). () -- 11 of 15 -- 10 by Butterfield J in the Queen's Bench Divisional Court in R v. Secretary a/State/or the Home Department; Ex parte Lillycrop9: "Part of the conduct which the board would inevitably and rightly look at would be the extent to which an applicant had examined the behaviour which led to his imprisonment. Where because of denial of guilt no such examination had taken place it would be more difficult for an applicant to satisfy the board that the risk he posed when he was sentenced had been reduced to an acceptable level. For the reasons set out in R v. Secretary a/State/or the Home Department, Ex parte Zulfikar [1995] TLR 441 with which their Lordships agreed, it was an impermissible approach for the board to say in respect of the applicant: 'This man denies his guilt; therefore, without considering the circumstances further, we will not recommend parole.' However, a denial of guilt coupled with an unwillingness to address offending behaviour was a factor which the board had to have regard in assessing the risk to the public of further offending. It was the board to determine in each case the extent to which, if at all, that factor should influence its decision." "The Applicant has a legitimate expectation:" The applicant's submissions in support of this ground of complaint include the following: "it is submitted that the Applicant had and still has, both generally on objectively reasonable grounds AND by the previous Order of this Honourable Court a "legitimate expectation" that upon there being a consideration of all material, authorized and relevant circumstances and considerations concerning his case according to Law and by the Guidelines and Policy published by the Respondent of being admitted to home detention (and parole) in accordance with His Honour's said recommendation. Queensland Community Corrections Board v. Fritz." The applicant quite rightly says that he cannot seek the protection of the substance of his expectation, which is release on home detention and subsequent parole, but says that 9 (1996) TLR 724 at 725. -- 12 of 15 -- 11 notwithstanding that, the non fulfilment of the substance of a legitimate expectation may be taken as evidence of the possibility of some error in the decision making process, including the potential for a denial of natural justice, requiring close scrutiny. 14 The applicant then sets out the basis on which the respondent's decision is made in order to demonstrate the possibility of some error in the decision making process. The first of these is that the respondent identified matters it relied upon to support its decision to refuse the applicant a release to home detention. These included the fact that he had not acknowledged any wrong doing since his incarceration with the obvious consequence that he had not taken any step C~) to try to prevent a return to criminal activity after his· release from custody, that the Board has a primary responsibility to protect the community and that the applicant represents an unacceptable (~) risk of re-offending and that the applicant has failed to acknowledge his guilt. The applicant says that the respondent's detailed analysis of the matters before the learned Sentencing Judge demonstrates that the Board has formed the view that the learned Sentencing Judge erred on the side of leniency in making the recommendation. This is merely repeating of earlier grounds of review and fails for the same reasons. 15 The respondent has, in my view, done what was suggested by Dowsett J in Yeo v. Queensland Corrective Services Commission IO , which was to assess the magnitude of the risk of re-offending that the applicant represents involving an assessment not only of the seriousness of the offence actually committed but also the likelihood of re-offending. 10 (supra) -- 13 of 15 -- 12 "THE BASIS UPON WHICH THE RESPONDENTS DECISION IS MADE" "Error of fact on the face of the record and/or failure to take account of or give any weight to a relevant consideration analysed:" The relevant consideration appears to be an allegation by the applicant that he has admitted to wrong doing and responsibility for his criminal activity. It is apparent from the face of the decision that the respondent has found, as a matter of fact, that he has not done so and that cannot amount to an error oflaw when there is obviously material on which that finding can be based. That finding of fact is not troubling to this court where the matters for which the applicant now will not admit criminal responsibility include matters for which he pleaded guilty. "Failure to have due regard to and place any. or any sufficient weight. on relevant considerations constituted by Departmental advice:" This complains of a failure by the respondent to give due weight to the advice of its departmental officers. The question of the weight which the Board gives to that advice is a matter for the Board. I I "No evidence" This merely repeats the former grounds and seems to rely upon the fanciful proposition that because the applicant would be committing a criminal offence ifhe operated a trust account or acted as a director of a corporation, this would prevent him from doing so. If the fact that certain behaviour constituted a criminal offence were sufficient to have prevented the applicant from committing criminal offences, then he would not have committed the criminal offences to which he pleaded guilty and of which he was found guilty and for which he is currently incarcerated. This ground of the application is entirely without merit. II Nguyen v. Queensland Community Corrections Board (supra) at 7. -- 14 of 15 -- 16 17 13 "Taking Account ofIrrelevant considerations - Going beyond the Guidelines and/or parameters of enquiry fairly raised by the Applicant's record: Unreasonableness" This appears to once again raise the ground that the applicant complains of that the respondent took into account the applicant's failure to acknowledge guilt. This matter has already been dealt with in these reasons. "Relevant factor not mentioned on the face of the Decision or otherwise shown to have taken into account" The relevant factor is said to be the coercive effect of the licence implicit in the grant of release to home detention and parole. It is reasonably clear that the Board, in taking the view that the applicant represents an unacceptable risk on release, has taken into account the conditions of any such release. Conclusion Having given detailed consideration to each of the matters repetitively referred to in the outline, the Court can see no prospects that the applicant would be successful in any of the grounds set out in his application for statutory review and therefore declines the application to extend time. I refuse leave to grant an extension of time within which to make an application for statutory order of review and I order that the applicant pay the respondent's costs of and incidental to the application to be assessed. -- 15 of 15 --