Carter v Queensland Community Corrections Board [1998] QSC 282

o o o IN THE SUPRElVIE COURT OF QUEENSLAND Brisbane No. 9418 of 1998 Before the Hon. Mr Justice Mackenzie [Carter v Qld Community Corrections Board] BETWEEN: MAXWELL AUBREY CARTER Applicant AND: QUEENSLAND COMMUNITY CORRECTIONS BOARD Respondent JUDGMENT - MACKENZIE J. Judgment delivered 17 December 1998 CATCHWORDS: Counsel: Solicitors: Hearing date: JUDICIAL REVIEW - whether Queensland Community Corrections Board took irrelevant considerations into account when determining applicant's eligibility for parole. Nguyen v Queensland Community Correction Board (App . . No. 7152/97, unreported, 7 April 1998, Thomas J) Yeo v Queensland Community Corrective Services Commission (No.7534/97, unreported, 13 February 1998, Dowsett J) Webster v Queensland Corrective Services Commission (No. 5120/98, unreported, 10 September 1998, White J) Mr D Laws for the applicant Mr S McLeod for the respondent Poteri Woods for the applicant Crown Solicitor for the respondent 3 December 1998 -- 1 of 8 -- o o IN THE SUPREl\.1E COURT OF QUEENSLAND Brisbane Before the Hon. Mr Justice Mackenzie [Carter v Qld Community Corrections Board] BETWEEN: MAXWELL AUBREY CARTER AND: QUEENSLAND COM.MUNITY CORRECTIONS BOARD JUDGMENT - MACKENZIE J. Judgment delivered 17 December 1998 No. 9418 of 1998 Applicant Respondent On 16 February 1996, following a trial, the applicant was sentenced by Forno DCJ in the District Court, at Brisbane to 5 years imprisonment for offences of defrauding the Commonwealth C) contrary to s.29D. of the Crimes Act. The sum of money involved was $205,000. The charges concerned the applicant's conduct as director of a company which obtained moneys pursuant to o Austrade Export Marketing Grants. The offences were committed between 1 May 1993 and 3 December 1993. Judge Forno imposed a non-parole period of2Yz years. The applicant's conduct was described as a "cunningly perpetrated elaborate fraud" and a "raid ... launched on public moneys". He was sentenced on the basis that there was nothing to indicate that prior to the commission of this fraud he was other than of good character in terms of the criminal law. That was a false impression since he had been convicted in 1980 of obtaining property by deception and obtaining and attempting to obtain financial advantage by deception. In 1990 he had been convicted and discharged for theft. -- 2 of 8 -- 3 On 30 August 1996, he pleaded guilty before Brabazon DCJ to 5 counts under s.427 of the Criminal Code of obtaining property by false pretences and wilful false promises, and 5 counts of obtaining property by false pretences. The gravamen of the charges was that the complainants were investors in a project to manufacture a piece of equipment which was promoted as speeding up bricklaying by spreading mortar by mechanical means but which did not have the attributes claimed. The total sum involved in these offences was $179,350. Brabazon DCJ was told of the error in the previous proceedings that Forno DCJ had not been told of the applicant's previous convictions. The Crown Prosecutor urged a 2 year cumulative 0 sentence be imposed with a fresh date after which parole might be granted, 16 February 1999. The effect of such an order would be to extend the non-parole period imposed by Forno DCJ by 6 months, 0 which was less than half the additional sentence, due to taking into account the applicant's co- operation in pleading guilty. . On 1 June 1998 the applicant applied for parole, home detention and work release. The application was refused and he was advised accordingly on 24 August 1998. He applied almost immediately for reconsideration of the decision, giving written submissions as to why the matter - . sho~ldbe reconsidered. By letter of 21 September 1998, he was advised that his request for reconsideration had been refused after further consideration of his case. In view of the matters raised by the applicant it is convenient to set out passages from the letter of 24 August 1998 which contains the reasons for refusal of the application: "The Board's primary responsibility is the protection of the community. In assessing whether an applicant for early release presents an unacceptable risk to the community, the Board takes into account a variety of factors. In some cases, one important factor is whether the inmate has fully and frankly acknowledged his wrong-doing, appears to .understand the cause/s of his offending behaviour, and has taken steps to avoid a repetition of similar criminal activity. In your case that factor would seem to assume some importance. The ten offences to which you pleaded guilty in August 1996 involved a deception of people, as to induce them to give you substantial sums of money. The Board has been unable to discover any sensible evidence to indicate that o o -- 3 of 8 -- C) o ., 4 you would be unable to repeat that conduct after your release from custody, if you wished to do so. You reportedly told an Assessment Unit that you would neither confirm nor deny that you committed the offences. There is no equivocal acknowledgement of guilt in your application, and you have not participated in any rehabilitative programs or counselling. The Judge who sentenced you in February 1996 seems to have been told that you did not have any previous criminal convictions. From his sentencing comments, that was clearly a factor he took into account in determining the sentence to impose. A different Judge sentenced you in August 1996. He imposed a sentence which had been agreed between the Crown Prosecutor and your legal representatives, including a recommendation for earlier than usual consideration of release on Parole. The Board has not given as much weight as it otherwise might to that recommendation because it appears to have been made partly by having regard to the earlier sentence imposed upon you; and that sentence was affected in your favour by the alleged absence of your previous convictions. According to the criminal history supplied to the Board though, you were convicted offour fraud offences in 1980, and a theft offence in 1990. For the reasons mentioned, the Board is presently unwilling to approve your application." (the underlining is mine) The lengthy application for review includes an assertion that in view of his co-operative o behaviour the applicant had a legitimate expectation that he would be released in accordance with the sentencing judge's recommendation. He also relied on a variety of matters which were alleged to be o defects in the decision making process. In view of the outcome it is necessary to consider only two aspects ofthe reasons and of his complaints about the process. In considering applications for home detention and parole the Board has a wide discretion. (Nguyen v Queensland Community Corrections Board, App. No.71S2/97, unreported, 7 April 1998, Thomas J). In considering whether or not to grant an application the degree of risk to the community is a relevant consideration (ibid). I was referred to Yeo v Queensland Corrective Services Commission (No.7S34/97, unreported, 13 February 1998, Dowsett J) and Webster v Queensland Corrective Services Commission (No.S120/98, unreported, 10 September 1998, White J) in support -- 4 of 8 -- 5 of the proposition that assessment of the degree of risk to the community was essential in determining whether to grant the application. Those two cases are concerned with denial of remissions in the context of a ministerial guideline that a prisoner otherwise of good conduct and industry might be denied remissions only if the delegate was positively satisfied that the prisoner had had the opportunity of answering the contention that unsupervised release would present an unacceptable risk to members of the community. It is easy to see why, in the context of that guideline, the principle of legitimate expectation on the part of a well behaved prisoner is suggested. Caution should be exercised in attempting to 0 translate remission cases directly to the present kind of case since the guidelines with respect to release into community based regimes are different. The ministerial guidelines with respect to community based programmes identify a number of factors including the "priority" of protecting the community (1.1). Another guideline refers to the need to exercise "extra caution" in relation to a prisoner who has not made a genuine effort to address causes of his offending behaviour while in prison (1.5). While remission cases are not directly. applicable to the present kind of case the risk to members of the community is the priority for the Board when considering whether a prisoner should be released. The guidelines are predominantly concerned with identifying matters which indicate against an applicant being released. In considering an application of the present kind the Board has a number of factors to consider. They must be weighed up during the process of deciding whether the "priority" of protecting the community requires a decision that the applicant ought not be released. At the end of the .process of consideration it would be necessary that there be a sufficient basis on all of the considerations relevant to the case that the need to protect members of the community dictated that the application should be refused. It is within that framework that the applicant's contentions need to be addressed. The first matter upon which comment is necessary is a submission the effect of which was that in the first o o o -- 5 of 8 -- 6 passage underlined in the extract from the Board's decision it imposed upon the applicant a standard which was too high. By saying that the Board had been unable to discover any sensible evidence to indicate that the applicant would .be unable to repeat that conduct after his release from custody ifhe wished to do so it had applied a wrong test. Divorced from the context of the application the sentence may give that impression. However, in my view to interpret it literally involves a misreading of its purpose. The applicant, according to the evidence, maintains a mental reservation about his guilt of the o offences for which he was convicted before Forno DCl As far as can be ascertained, since he has not elaborated on the full reasons during his time in custody, it is based on the notion that the offences o did not benefit him personally, but a corporate body of which he was the moving force. There are references in the file to his wishing to take legal action upon his release from prison in connection with this aspect of the matter. It is also apparent that when being assessed by people within the prison sys~em he has successfully promoted the idea in the minds of those assessing his case that because the o£,±:ences were committed through a corporate entity and he would by reason of his convictions be o prevented from acting as director of a corporation or holding a trust account the risk of his reoffending would be low. One of the reports says that it would appear that the offender's l) opportunities to reoffend would be somewhat limited since his future finances would be subject to a high level of scrutiny because of his debt to the Commonwealth. It refers to the prohibition on holding a trust account or accepting a position of director of a company. The report concludes that under those circumstances and combined with a lengthy period of community based ,correctional supervision, it would be difficult for him to reestablish the opportunities to commit further similar offences without detection. The sentence complained of in the Board's reasons was written in connection with his failure to fully and frankly acknowledge his wrong doing. The words of qualification at the end of the -- 6 of 8 -- 7 sentence complained of make it clear that the Board was trying to convey the opinion that the notion that legal constraints would prevent him from repeating his prior conduct if he wished to do so was not sensible. In my view the Board was entitled to conclude that this was the case, having regard to the wide range of possibilities for doing so, other than through a corporate entity or a trust account. In the circumstances the complaint that the Board's observation put the onus on the applicant' to satisfy the Board that he would be unable to reoff'end if he wished to and that such a test was draconian and unreasonable in the extreme is unfounded. In a case like the present, where the applicant has refused to accept his personal criminality and o 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 0 consideration in deciding whether there is a sufficient risk to members of the public to justify his not being released. The second aspect of the application which is necessary to consider is of more substance. The second passage underlined proceeds on a concern that the sentencing discretions had miscarried because of the lack of information about previous convictions when the applicant was sentenced on the first occasion. The preceding sentence carries the implication that the sentencing judge on the second occasion either abrogated his sentencing discretion or at least acquiesced in an arrangement . between the Crown Prosecutor and the applicant's legal representatives as to the level of sentence and as to a favourable recommendation for release on parole. It is clear on the face of the second passage underlined that the Board has treated as a relevant consideration their p~rception of a flaw in the sentencing process. In my view this is not a relevant consideration in this case. There is no basis for concluding that Brabazon DCI, who was fully apprised of the nature of the applicant's criminal history, did not exercise his independent sentencing discretion or that the outcome resulting from the sentence that he imposed was not an appropriate outcome. o () -- 7 of 8 -- > • 8 Because a consideration which is irrelevant in the context of the particular case has been taken into account the process of considering the applicant's application has miscarried. It was agreed by counsel that in the event that such a finding were to be made the appropriate course would be to remit the matter to the Board for consideration according to law. The orders are as follows: l. The decisions of the Board of 24th August 1998 and 21 September 1998 are set aside. 2. I order that the Queensland Community Corrections Board reconsider the application according to law. 3. I order that the respondent pay the applicant's costs of and incidental·to the application to be taxed. u -- 8 of 8 --