Felton v Queensland Corrective Services Commission [1993] QSC 141 [1994] 2 Qd R 490

) ( ) " l) \ ) State Reporting Bureau 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 WILLIAMS J No 1047 of 1992 BRUCE WILFRED FELTON Applicant and THE QUEENSLAND CORRECTIVE SERVICE Respondent BRISBANE .. DATE 20/05/93 JUDGMENT 1 4th Floor, The Law Courts, George Street, Brisbane, Q. 4000 Telephone: (07) 227 4360. Facsimile: (07) 227 5532 -- 1 of 30 -- -- ------------- 200593 AEA (Williams J) HIS HONOUR: In this matter I have prepared reasons for ' 1 judgment which I publish. For those reasons I order that the decision under review be set aside and the question of the det~~mination of the applicant's entitlement to remissions of sentence be remitted to the respondent for further consideration according to law. 10 I further order that the respondent pay the applicant's costs of and incidental to the application including reseved costs to be taxed. 30 0 40 u 50 60 2 -- 2 of 30 -- '' () ( ) IN THE SUPREME COURT OF QUEENSLAND Application No. 1047 of· 1992 Brisbane Before Mr. Justice Williams BETWEEN BRUCE WILFRED FELTON Applicant - and - THE QUEENSLAND CORRECTIVE SERVICES COMMISSION Respondent JUDGMENT- WILLIAMS J. Delivered the 20th day of May 1993 CATCHWORDS: Criminal law - remissions - Regulations 21 and 27 of Corrective Services Regulations 1989 considered- matters relevant to grant of remission discussed - failure to address offending behaviour not relevant consideration - decision to refuse any remission set aside - matter remitted for further consideration. Counsel: P.J. Davis for applicant Koppenol for respondent Solicitors: Mary Burgess for applicant Crown Solicitir for respondent Hearing Date: 25th February 1993 -- 3 of 30 -- IN THE SUPREME COURT OF QUEENSLAND Application No. 1047 of 1992 BETWEEN BRUCE WILFRED FELTON Applicant - and - THE QUEENSLAND CORRECTIVE SERVICES COMMISSION Respondent JUDGMENT - WILLIAMS J. Delivered the 20th day of May 1993 On 1st December 1992 The Queensland Corrective Services Commission, the respondent, informed Bruce Wilfred Felton, the ' ( ) applicant, that it had decided not to grant him any remission on ( "'--) his sentence of ten years imprisonment for the reasons that he had not adequately addressed his sexual offending behaviour and he should not be released into the community unless under community corrections supervision. The applicant is aggrieved by .that decision and seeks a review of it pursuant to s. 21 of the Judicial Review Act 1991. In order to consider the issues raised by the application it is necessary to set out facts said to be relevant thereto. The applicant, who was born on 7th August 1962, pleaded guilty on 25th March 1986 to one count of rape (committed 25th August 1985) and was sentenced to ten years imprisonment by -- 4 of 30 -- 2 Moynihan J .. As appears from the sentencing remarks, and from the reasons I . delivered on . 22nd September 1986 when awarding the complainant girl compensation, the rape was a particularly brutal one. On the evening in question the complainant girl was with her boyfriend in a motor vehicle at Mount Coot-tha. Whilst there the applicant and a eo-offender approached the vehicle, smashed the right front window and forced open the door. The male person in that vehicle was threatened with an iron bar and forced from the vehicle. The applicant and his associate then drove the complainant girl to a place further in the bush. Understandably she was frightened and screaming during this ordeal. The applicant then forcibly had sexual.intercourse with her. Police officers arrived and caught him in the very act of committing the offence. In those circumstances it is obvious that a head : ;' sentence of the order of ten years was called for. : i Shortly after the applicant's arrival at the Boggo Road prison he was interviewed by a number of Prisons Department staff. He claims, and I accept his evidence, that during that interview he was acquainted with the prison system and informed of what was required of him. Amongst other things he was told that his "full time" release date was 30th November 1992. I also accept that he was told that he would be discharged then "if you behave yourself and work". Such statements would appear to have been made against the background of the remission provisions found in Part XIII of the Prisons Regulations 1959. Another person, during that interview, informed the applicant that he would become eligible for parole on 25th March 1991 . I am satisfied that words to the effect "if you behave yourself, don't '' 0 () 0 c ~; _______ -- 5 of 30 -- 3 get into trouble and keep your nose clean you will get parole" were used. The applicant asserts, and this is not disputed, that at no time during that interview was there any reference made to the necessity for him to undertake· courses with respect to his behaviour. I am satisfied that he was not told that any entitlement to remissions or parole was dependent upon attending any courses. When first admitted to Boggo Road the applicant was given c) an 11 A 11 security classification. He declined an offer to be transferred to Woodford Prison and stayed at Boggo Road for ( approximately one years and three months. He worked in various capacities and was given in due course a "B1'' security classification.· Of his own initiative, whilst in Boggo Road, he enrolled in an Alcoholics Anonymous course. In June 1987 the applicant was transferred to Woodford Prison retaining his "B1'' classification. There he worked in ( ) various capacities and also commenced an architectural drafting ,_/ course with TAFE. In the course of his time at Woodford he was given a "B2" classification. About late in 1988 or early 1989 the applicant was transferred from Woodford; after spending about four weeks at Boggo Road he was placed at the wacol Correctional Centre where he remained for nearly two years. During that tim~ he worked mainly in the store and was given a "C" classification. He also worked for a period on the Goodna beef cattle farm run by the respondent; at that time he had a "C1 11 classification. Upon the change in security classification which came into force in 1989 he was given an "open" classification. Whilst at Wacol he sought -- 6 of 30 -- ---------- 4 and obtained a transfer to the panel beating shop so as to learn that trade. He also volunt~rily undertook a Drug and Alcohol Rehabilitation Programme run by the respondent, and attended the Logan House Drug Rehabilitation Centre. Further, he participated I in,an approved programme called "Kids in Dire Straits", which involved the construction of housing for homeless children, working at large in the community selling Christmas trees, and meeting with and assisting church and fund raising groups in their activities to promote the programme. In 1989 the applicant was granted ten hour leaves of absence from Wacol. At first he was given such leave fortnightly, and then weekly. It was about that time that he commenced.working with the Catholic Prison Ministry. Thereafter he began practising the Catholic faith. ~hilst working with the Ministry he started going to schools with other members of the group and speaking to students about prison experience and involvement with 0 0 drugs and alcohol. The applicant refers to the response he got 0 from students as "very heartening" and there appears to be no reason to doubt the sincer{ty of his involvement in that work. In 1990 the respondent set up Western Outreach Camps to assist towns affected by floods,·. particularly in the Charleville district; The applicant went to Charleville for a time but was then· returned to WacOl because the respondent made a policy decision that "sex offenders were not allowed to participate". Through his association with the Catholic Prison Ministry the applicant became friendly with · a family who lived at ), I Jindalee, Mr. and Mrs. Kitney, ·and he spent much of his time on leave of absence with them. G -- 7 of 30 -- 5 In February 1990 the applicant applied for Release to Work pending Parole, but this was refused in September 1990. The ground of refusal was that he "would pose an unacceptable risk to the community" if released. Then in November 1990 the applicant was transferred from Wacol to Borallon Correctional Centre, retaining his "open" classification. Whilst at Borallon he worked at various tasks within the prison system, but still did some work with the Catholic Prison Ministry, including r_\_~~ ~- visiting schools. That latter work involved travelling (' unescorted by train from Ipswich to Brisbane. Here I quote an unchallenged extract from the applicant's affidavit:- "While at Borallon I was also involved with a prisoner initiative known as "The Task Group to_ Aid Street Kids". This involved weekly leaves talking to street kids in the Woodridge area and doing voluntary community work raising money for hospitals and new centres for homeless children. I also carried out various labouring jobs as part of this work, for example landscaping at Fortitude Valley Police and Citizens Youth Club. This job took ~pproximately 26 working days to complete. My travel to and from Fortitude Valley was unescorted, and the job was not supervised." In December 1990 the applicant was granted periodic 24 hour lj leaves of absence. In January 1991 the applicant applied for parole. He received a letter dated 26th .March 1991 from the Queensland Community Corrections Board which contained the statement that the Board ~"has considered your case and has directed you be assessed for entry into the ~programme _conducted at Moreton Correctional Centre for sexual ~offenders." The application for parole was placed on hold until that assessment had been received. That was the first indication the applicant had received to the effect that his entitlement to parole or -- 8 of 30 -- 6 remissions "was in anY, way dependent on my _undertaking any course of counselling or treatm~nt". That assertion by the applicant is not challenged. When made aware of that programme the applicant made inquir~es about it. He was told that there were two modules, a Pre-entry Program lasting 16 weeks and a 32 week Intensive Intervention Unit Program. At first the applicant considered that he should not undertake the programmes because he had reached his parole eligibility date; but he was told that he 0 might ~ose_his re~issions "unl~ss you do the programme". After . ·. ~ discussions with other prisoners who had undertaken the programme and further discussions with a psychologist employed by the 0 respondent at Borallon the applicant agreed to submit himself for assessment for admission into the programme. He was told that he would need to transfer to Moreton in order to undertake the Pre~entry Program. He filled out the questionnaire submitted to him_and was then taken to Moreton for an interview, where he was 0 interviewed by a Mr. Smallbone. The applicant was told by Smallbone that he had read the answers to the questionnaire and that they indicated the applicant was lying about his crime. () Words were used by Smallbone that the applicant was "cushioning" his crime and "not accepting it". But Smallbone was of the view that the Pre-entry Programme would be of benefit to the r i applican,t. Shortly after that meeting it is alleged (and not disputed) that the psychologist Tills, used words to the effect that if the applicant did not undertake the programme then his "remissions would be at risk". By about August 1991 the applicant indicated -- 9 of 30 -- () 7 his willingness to undertake at least the Pre-entry Program but was informed that he would have to move to the Sir David Lorigland Correctional Centre in order to do so. He was reluctant to make that move because of the nature and reputation of that institution. Again he was told by Tills that he would have to serve all his sentence if he did not undertake the programme and in consequence of that he agreed to the transfer to Sir David Longland. After transfer the applicant worked in the rations store and started the Pre-entry Program. During. the period.in question he was given 48 hour weekly leaves of absence; that continued up until February 1992. During leave periods the applicant continued going to schools and speaking about his experiences as he had done before. There were transfers between Sir David Longland and Moreton institutions during this period. It is sufficient to note that lJ the applicant completed the Pre-entry Program in January 1992. After completing the P~e-entry Program the applicant was interviewed by a psychologist working with the Intensive L) Intervention Unit, a Russell Wilson. It was recommended to the applicant that he should do the Intensive course. The applicant was reluctant to do so because if he undertook the course it would take him beyond his discharge date with remissions. In response to that Wilson stated that unless the applicant did the Intensive Intervention Unit he would not recommend that he receive remissions. Ultimately in about January 1992 the applicant agreed to undertake the course because of the threat that he may lose his entitlement to remissions. He commenced the -- 10 of 30 -- 8 course on 4th February. At th~ outset he had to sign what was called the "Sex Offenders Treatment Contract". The contents of that rather curious document need not be set out, but an executed copy is exhibited to the applicant's affidavit. The applicant says that he found the first part of the course "useful". But that was not his view of the Masturbatory Group Therapy module which commenced in May 1992. The procedure involved in this module was set out in the document headed "Masturbator:v Satiation" which is also exhibited to the c) applicant's affidavit. Apparently the subject had to masturbate to a non-deviant fantasy until the "switch point" was reached. This was all recorded on an audio .tape. The "switch point" was the time taken at the first session to achieve ejaculation plus .; : two minutes; that was the "switc?h point" fixed for subsequent sessions. If initially ejaculation had not occurred after ten minutes the "switch point" was set at ten minutes. The instructions go on:- '' "When the switch point is reached the subject continues to masturbate ·while verbalising a small segment of the deviant fantasy (i.e. 7-10 words) over and over· again for the remainder of the hour." As I read that, and this appears to be confirmed by the applicant, the subject is required to continue masturbation for a p~riod of an hour, apparent1y whether ejaculation has been achieved, and whether or not an erection is maintained. Records are kept of the number of minutes taken to achieve ejaculation and "leveis of sexual arousal"·~ The applicant sets out in his affidavit some i!'lustratl.ons of suggested fantasies to be utilised during the sessions. Whilst it is not so described in 0 0 0 -- 11 of 30 -- 9 any of the material one could readily infer this was a form of aversion therapy. It would appear that the applicant undertook ten such sessions each of which was taped. At the end of each session the tape was given to Wilson who listened to it and discussed any problems. The applicant says in his affidavit:- "It was my opinion that the masturbatory satiation was both degrading and a complete waste of time. It was also difficult to maintain ari c;, erection for the required time. In short I I did not believe that these masturbatory sessions had any positive effect or possible () ,_/ (_) use and said so on a number of occasions to Mr. Wilson." One can readily have sympathy for the views expressed by the applicant. No attempt was made by the respondent to' establish the medical basis for that treatment nor was there any evidence indicating the possible redeeming effect upon a person previously convicted of a sexual offence of such treatment. I should also note that the applicant asserted that the sessions caused him "emotional . distress'.' because he could not ; ' reconcile the programme with.his "newly found Catholic religious beliefs.". I do not find it necessary to set out in any greater detail the assertions made by the applicant in his affidavit (which are unchallenged) as to what happened during these sessions and discussions that he had with Wilson and others. What is of importance is that the Community Corrections_ Board wrote to the applicant on 28th April 1992 in response to an application for parole dated 28th October 1991 ; _the letter stated that the "Board has deferred making a decision on your -- 12 of 30 -- 10 application until you have achieved a satisfactory level of skills on the Se~ Offenders Treatment Programme as determined by the appropriate therapists." The 'applicant had discussions with a Dr. Fish and a Dr. Atkinson, and asked each of them for an opinion as to whether he should be allowed to withdraw from the course. Dr. Fish reported that the request "seems to be a reasonable request and he should not be penalised for withdrawing." Dr. Atkinson reported as follows:- "He would have appeared to have made significant gains in relationship to his role with women and to understand his past behaviour. He has lost a lot of time with interruptions to:the PEP courses etc. and I feel should be allowed to withdraw and get parole if possible." After giving the· matter some thought the applicant decided to withdraw-from the programme and wrote to the respondent and the Board the letter of 19th May ; 1'992 which is exhibited to his affidavit. In the letter he -set out some of the background history of his imprisonment and also stated:- "I feel that this programme is lowering my ·self-esteem and working against my religious beliefs to which I have accomplished over my past life. In no way do· I hold staff responsible for my not finishing this programme." Subsequently, Wilson asked the applicant to prepare a document entitled "Maintenance Programme Contract" which the applicant did; it was submitted to Wilson but apparently never signed by him. After that Wilson prepared a report to the· Board dated 18th June 1992 which is exhibited to the applicant's affidavit. It notes that the applicant is "a trusted inmate who mixes well with inmates and officers alike." It also states that he () 0 0 -- 13 of 30 -- 11 "maintains an acceptable presentation to figures in authority". But it goes on: "however, he continues to present with features of the well institutionalised offender with unresolved feelings of distrust towards authority figures and concomitant preparedness to manipulate such figures if he believes he can. Unfortunately these features limit his ability to develop appropriate relationships from these figures and to obtain support and guidance from them." () The report then records that the applicant "has had numerous (J leaves of absence and the reports and comments of these periods have beeh favourable". He has never been considered "as risk of escape". The report goes on: "He has demonstrated a willingness to examine the factors that led to his offending behaviour and to use these learning experiences to contribute, through his involvement in the Catholic Prison Ministries school based education programme. It is thought that his talks to students have been of substantial value. to the community." Mention is made in the report of the TAFE courses the applicant has undertaken, but it then refers to some deficits in his spelling, grammar and written expression. Then follows an extensive passage dealing with the applicant's "Prograll\ Participation". This section of the repor:t is limited to the Sex Offender Treatment Program, and does not- appear to advert to other programmes which the applicant has undertaken whilst in prison. In the narrative of facts l have set out some details of the courses and programmes in fact undertaken. -- 14 of 30 -- 12 The following are the.relev~nt extracts from this section of the report:- "I believe that offenders must earn remissions and that there are two essential components in this process: maintaining satisfactory institutional behaviour and addressing arid dealing with, through primarily psycho-educational and behavioural skills learning activities, the factors that led to their offending behaviour. . . . It is in this area that I have ongoing concerns regarding Mr. Felton's preparedness for leaving custody and returning to the community. . . . In February Mr. Felton complained to the medical staff at Moreton about the difficulties he was having in coping with the program but did not report this to the staff on the program. In late May he again complained to the medical staff, again without discussing the issue with the program: staff, and was placed on sedative'medication .... Please find enclosed a general overview of the modular structure of the Sex Offender Treatment Program. . . . ·Mr. Fel ton successfully · completed the covert sensitisation, assertiveness training, and anger 'management modules. He , partially completed the conflict resolution module~~his performance in this ~articular module being of ~~riable quality, from good to just acceptable, due ' ·to varying degrees of involvement. He did not complete the satiation module as he could not see how his offences fitted in with the procedure format. • . · ' Mr. Fel ton was offered extra one-to-one assistance!in order to help him with completing the requirements· for this procedure but never chose to avail himself of the opportunity. It is noteworthy that Mr. Feltdn's timing of his leaving the programme coincided with the impending visit to the ·Centre of survivors of:· sexual abuse, including rape, for involvement in·~ the Victim Awareness. He explained prior to finally'· deciding to leave the programme that he was prepared to finish the Conflict Resolution and Relationship· Skills modules but that was all. I informed Mr. Felton that because I considered, and·stil1 consider, that he has failed to adequately address the factors that led to his offen.ding behaviour that !'would be recommending that his remissions not be granted.' I also advised him that provided he sati's:factorily completed the Discharge Self-Management Contract, to guide his prevention of relapse, that I' would be recommending his release on parole, conditional on his continuing to receive treatment from an.approved community based treatment facility, namely the City Psychiatry Clinic. . . . In the light of Mr. Felton's having failed to adequately address the factors that led to his offending behaviour, despit~ frequent availability of ; : ' .. (J 0 0 0 -- 15 of 30 -- () 13 staff assistance in order to do so I must recommend against the granting of remission." The applicant responded to that with a memorandum .to the Board dated 29th June 1992. It is not necessary to refer to the contents thereof in any detail. However, it should be noted that the applicant drew attention to the fact that other officers in the employ of the respondent h.ad advised that there was "no direct link between involvement in the Sex Offenders Treatment Program and release by parole or remissions." After that the applicant remained at Moreton but worked on the Wacol farm on the basis of' .daily unescorted leaves of () absence. On 4th August 1992 he completed his architectural drafting course with TAFE and then on 10th September 1992 was transferred to Palen Creek Correctional Centre. He works at that centre but gets fortnightly 48 hours leave of absence. It is necessary to note that during his period of imprisonment the applicant has been found guilty of ·three () I breaches of prison discipline. He was found guilty of a minor breach whilst at Boggo Road in 1986. That related to his refusal (~) to mix with prisoners under protection. He received the penalty of being locked in his cell for three days without other loss of privileges. Then at Woodford in 1988 he was found guilty of a minor breach of discipline. He was found in possession 6f a still used to make alcohol. He was punished with fourteen days seclusion but retained all other privileges. Then in 1990 he was found guilty of a breach whilst at Borallon. He was working in the Valley whilst on leave of absence and apparently went to get some lunch without permission, a breach of regulations. He did not suffer any loss of privileges in consequence of that breach. -- 16 of 30 -- 14 What is important, as will . appear later, is that in consequence of those breaches he was never confined to the detention unit for a period exceeding seven days. Further, since his first application for parole was rejected he has not committed any breaches of discipline. The next critical event was the receipt by the applicant of the letter from the respondent dated 11th September 1992 relating to decisions made on 11th August. By that letter the applicant was informed that the respondent "does not propose to grant him 0 any remission of his ten (10) years imprisonment.'' The letter invited a response within 21 days. Various documents were included for the applicant's information with that letter. One of those documents was Wilson's report of 18th June 1992, to which I have already r~ferred in some detail; it was clearly regarded by the respondent as of critical importance. Reference need only be made to two other documents attached to the letter of 11th September 1992. Ms. A. Hunter, Manager Programs at the Moreton Correctional Centre, furnished a memorandum on 25th June 1992 to Ms. A. Dutney, General Manager Moreton Correctional Centre, in which it was stated: "Bruce Felton has maintained a good institutional record in terms of behaviour, employment and successful LOA's." But the writer then contrasted "two unsuccessful ~ttempts to address his sexually offending beha;viour. '.' The memorandum purports to quote. from the ' ' "staff who have worked with this inmate on the Sexual Offenders Treatment Program;" the following purported conclusions are set out: "1. He has not adequately addressed his sexual offending behaviour. 2. He continues to demonstrate substance dependant 0 0 C; -- 17 of 30 -- ( ' ' ) '---- 15 behaviour and has not completely addressed his drug and alcohol problem." The first proposition is clearly taken from Wilson's report of 18th June, but neither that report ribr any other enclosed with the letter of 11th September supports the second. Indeed one can make the comment that the respondent's decision appears to have overlooked a number of the courses undertaken by the applicant with respect to his previous drug and alcohol dependency. The other document to which reference should be made is the memorandum of 24th June 1992 from Ms. Dutney to Mr. P. Ray lance, the Secretary of the respondent. Relevantly that memorandum stated the following: "However, it should be noted that prisoner Felton has as required and defined by the Act, been of good conduct and industry. The recommendation for not granting remission is based on the assessment that Mr. Felton has not adequately addressed his offending behaviour." The solicitor acting for the applicant responded by letter dated 1st October 1992. It was pointed out in that letter that some of the material upon which the decision of 11th August 1992 was made was not available to the applicant ("case history" and report of Dr. P.G. Mitchell) and he .had no opportunity of making any submissions thereon. The letter also drew attention to various provisions found in the Corrective Services Regulations . 1989 Part 3 and the earlier Prisons Regulations 1959. It is not necessary to set out the contents of that letter·in any detail. In summary it asserted that "owing to what was said to my client on his initial reception into prison, and the fact that there were no subsequent amendments made to what he was told he had a legitimate expectation that, if he was of good character and -- 18 of 30 -- 16 industry, he would be granted remission of one-third of his sentence." The letter went on to ask the respondent to review its decision and. to "find that my client has been of good conduct and industry as required by . the Regulation and grant him remission accordingly." That was followed by the letter from the respondent of 1st December 1992~ Relevantly it stated:- "At a meeting on 20th November 1992 the Commission considered your submissions. I have been requested by the Commission to inform you that it has decided not to grant Mr. Felton any remission on his sentence of ten (10) years imprisonment for the reasons that in its view - (a) he has not adequately addressed his sexual offending behaviour; and (b) he should not be released into the community unless under community corrections supervision." ·Though neither the letter of 11th September nor that of 1st December expressly indicates that the respondent took into account "Ministerial Guidelines For The Operation of Community 0 0 Corrections Boards" there is reference in the former to "the Queensland Community Corrections' Board 1 s case history" with 0 respect to the applicant and it was submitted that the respondent 1 s decision under review was affected by the philosophy underlying those Guidelines. Some passages from that document should be noted:- "Basic Premises·· . . .. 3. 'Protection of the community is more effectively achieved in most· instances by· release under parole supervision where conduct can be monitored and assisted, rather than by discharge on remission which allows unrestricted behaviour as ·an immediate alternative to a secure institutional environment. Remission Policy: The Queensland Corrective Services Commission does not support the efforts of prisoners to avoid the full G -- 19 of 30 -- 0 17. responsibility for their offending behaviour and will not automatically grant remission to a prisoner who has been approved for extended leave of absence, home detention, parole release or a combination of these orders but refuses to accept;his responsibility. Explanation Remission is not an entitlement. It is discretionary and may be granted for good conduct and industry. Such conduct and industry is equally relevant while the offender is on a semi-custodial order. If the proposition that all offenders should be subject to some form .of supervision is accepted then remission shbuld cease to become the focal poin~ of prisoner expectation and community and judicial concern. At the -time the applicant. was :sentenced he was subject to the Prisons Regulations 1959, and it was pursuant to those : i ,: .,; Regulations that he then had an entitlement to remissions. Those Regulations were repealed by the Corrective Services Regulations 1989, made pursuant to s. 20 of the Corrective Services (Administration) Act 1988. The argument from each side in this ( _ _) matter proceeded on the basis that the decision of the Commission of 1st December, 1992 was made pursuant to Regulation 21 of the, u 1989 Regulations (cf. Ex parte -Fritz (1992) 59 A.Crim.R. 132 at 133). So far as is relevant R~gulation 21 provides: " ( 1) A prisoner 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; . and -- 20 of 30 -- 18 (b) displays a readiness to assist in maintaining order and a willingness and genuine desire. to maintain ~stead~ industry in. every employment or work which may be required of him." It is not necessary to set out Regulation 23 in full; suffice it to say that a prisoner who accumulates overtask marks in accordance with that Regula,tion "may be granted" extra remission. Regulat:t,on 24 also provides for additional remission; a prisoner who holds a minimum or open security rating "shall become eligible for an additional remission". in accordance with the 0 formulae therein set out. ~hen Regulation 25 provides that a prisone~ "may . be.· granted a remission of one day for every Christmas Day." served under a term of imprisonment of two years or longer. Forfeiture of remission is provided for by Regulation 27; it is in the following terms: .... ' "Where, within the period of a sentence of imprisonment a prisoner, pursuant to s. 101(6)(c) of the Act, undergoes separate confinement for a period of 7 days on 3 or more occasions, and he has not generally. been of good conduct and industry, the general· manager shall submit all relevant details together with his recommendation to the Commission for consideration by the Commission before the date on ~hich .the prisoner might ordinarily have been discharged . . had he 'been of good character and industry. The Commission shall thereupon determine whether the prisoner shall forfeit the whole or any part of the remission which he might otherwise have enjoyed. Where part only. of the remission is forfeited, the prisoner's details shall be resubmitted to the Commission in the event that he is not of good conduct and industry during the period of forfeited remission." Those Regulations were considered by the Court of Appeal in Fritz; relevantly it said at 134: "Although its correspondence· with the applicant might on one view have suggested otherwise, the respondent accepted that the applicant was of 'good conduct and i~dustry' and that it ha~ a discretion to grant him full remission. The reason for its decision not to do 0 0 G ------ ------------- ----------- -- 21 of 30 -- 0 C) (_) 19 so, according to what the respondent wrote in a letter to the applicant's solicitors dated 15 April 1991, was that it ·~ . took into account the nature of theoffences for which he was. convicted and his previous convictions and was of the view he should not be granted unsupervised release' . It is not clear · whether this meant that the Commission considered that the applicant's offences of themselves disentitled him to remission of part of his sentence or that those offences disclosed some matter of concern in respectof his possible future conduct which, in its view,· indicated that remission of part of his sentence was inappropriate. However, in the circumstances, " the difference is immaterial. The respondent sought to support its decision on the footing that its discretion under Regulation 21 ·is unfettered. To an extent, that proposition may be accepted. On the literal construction of theRegulations, the respondent's discretion may be confined only by the need to exercise its power by reference to considerations which are material to the purpose for which it was granted. However, the structure of Part III and some of the language used tend to suggest that a remission of one third of a prisoner's sentence is usual for a prisoner.who "is of good conduct and industry"' as defined, and this may be supported by the possibility . that a purpose of remission is t·o provide an' incentive to prisoners to be "of good conduct and industry" while in prison. The need to pursue such issues is relieved by theevidence that, in practice, remission of one third. of their sentences is ordinarily granted to all prisoners who are of 'good conduct and industry'." The Court held that the ipplicant there had a legitimate expectation of a benefit which would follow if the policy or practice were implemented, and that in consequence the Commission was obliged to accord "procedural fairness" before making the decision under review. As such "procedural fairness" had not been accorded the applicant in that case the decision in question was held to be invalid. That reasoning is of importance because of passages in two single Judge decisions to which I was referred. Kne;ipp J. considered Regulation 21 in McSweeny v. Queensland Corrective -- 22 of 30 -- 20 Services Commission, unreported, Townsville No. 11 of 1990, judgmentdelivered 2 March 1990. Speaking of that Regulation he said: "It is clear from that provision and from further provisions, -to which I need· not specifically refer, that remissions do not accrue as of right .. There.must be a grant of a remission. It must be granted by the Commission and the Commission has an overriding discretion as to whether or not it will·make a grant." That passage was taken up by Thomas J. in his judgment on the question whether or not Fri tz, a vexatious 0 litigant, was entitled to leave to bring proceedings against the Commission~ (O.S. No. 516 of 1991, judgment delivered 11 July 1991). Therein he said: "Such remissions do not accrue as of right. They.arise only when they Commission grants them. The : ·! Commission has been given. an unfettered discretion to make a .. grant or not to make a grant. I agree with Kneipp J. 1 s observations to this effect concerning that Regulation in McSweeney v. Queensland Services Commission If the Commission was not satisfied there was any positive reason tipping the scales in favour of the conclusion that remission should be granted, it would be perfectly entitled to determine that no r.emission be granted. It could reach such a view, for example,. where the prisoner 1 s character or conduct as revealed to. the Commission gave it reason to believe that his release would subj ec ..t ~he public to unnec~ssary risk. " . The observations of Kneipp J. can be accepted, and there is clearly no inconsistency between what he said and the reasoning of the ·Court of Appeal. . Ho:wever ,_ in . my view, the remarks of Thomas. J. must be read down in the light of the. passage quoted 0 0 G -- 23 of 30 -- 21 . above from the Court of Appeal. in Fritz. · Whilst it may not be technically inaccurate to describe the discretion as "unfettered", it must be confined ''.by the need to exercise its power by reference to considerations which are material to the purpose for which it was granted." It therefore seems to me that if reference to the stated considerations tip the scales in favour of granting a remission, a contrary determination could only be made by the Commission (even where it believed that the (=) release would subject the public to unnecessary risk) after giving the prisoner notice of that contention and an opportunity () of answering it. In such circumstances a determination that no remissions should be granted could only be made where the Commission was positively satisfied after the prisoner had the :. ' opportunity of answering such ~-contention that release would subject the public to unnecessary risk. Such a conclusion is, in my view, established by the passage u from the judgment of the Court of Appeal in Fritz quoted above. l) But a careful perusal of the Regulations in question demonstrates that such a conclusion is clearly correct. Regulation 27 is of ~ ' I , critical importance in that regard. It speaks of the "date on which the prisoner might ordinarily have been discharged", and that is clearly a reference to fhe date on which he would-be entitled to discharge if granted £ull remissions in accordanc~ with Regulation 21. Before that date the Commission must determine whether or not "-the prisoner shall forfeit the whole or any part of the remission which ·he might otherwise ·· have enjoyed''. That clearly establishes a legiti~ate expectation in a prisoner of good conduct and ~ndustry to be granted remission -- 24 of 30 -- 22 in accordance ·with Regulation 21. Such a conclusion is reipforced by a consideration of the last sentence of Regulation 27. The New South Wales Court of _Criminal Appeal considered the philosophy behind the granting of remissions-in Rogers (1988) 30 A.Crim.R .. 481 and Evans (1987) 29 A.Crim.R. 8. Street C.J. said in. the former at. 483-4: "In accordance with long standing penal practice both here and elsewhere, there exists a scheme of remissions whereby prisoners can receive remissions from their· sentences and, since 1983, from their non-parole periods. . These remissions fall .into a variety of categories, principal among which are remissions for good conduct and what are described as industrial remissions· which prisoners can earn by undertaking various activities during their period of custody. The remission system is es~entially an administrative mechanism. aimed at .encouraging good behaviour by prisoners and conversely providing for the opportunity of imposing sanctions for bad behaviour by cancellation of remissioris~ · This is the sole justification for the existence of the system. . . . The whole remission . system is based on the premise that remissions are an incentive and reward for good conduct during the serving of a term. of imprisonment. They are granted or withdrawn by prison authorities in the light of considerations essentially and properly relevant only to conduct and other circumstances arising during the oourse of the sentence actually being served." . - .In Evans the Court, differently constituted, approved of the reasoning in Rogers. Relevantly Hunt J. speaking for the Court said at 9:- ''This was b~cause the penal philosophy upon which the i:: . ' remissions system. is based requires that a prisoner's entitlement to'- the be'nefit of remissions if:( to depend upon his conduct and other circumstances arising during the course of the sentence·,:, whilst ne is in custody." :He{ reiterated that at 10: "A prisoner's entitlement to the one quarter or one third remissions 0 0 0 0 -- 25 of 30 -- '· 23 permitted by the Regulations (whichever is applicable in the particular case) is the very entitlement which is dependent upon his good behaviour whilst in custody." In recent years there has been some public debate as to the desirability of continuing a remission system as part of the prison regime. Notably, following upon a major inquiry into sentencing and imprisonment in Victoria, the Government of that State repealed the remission provisions. But, in my view, the () respondent Commission is not entitled to have regard to such considerations when making a decision·pursuant to Regulations 21 · .. ' () and 27 under consideration here. If it is ·considered that there are faults in the remission system, or that it ought not be· fully implemented, then it is for the legislature to repeal or amend -: ',: ' ~ .. • .; f. those provisions. Whilst the Regulations stand then they must : :·· ... be fully implemented by the respondent. It follows, in my opinion, that once the respondent has l '\ determined that in accordance with Regulations 21 and 27 the ) prisoner has been "of good conduct and industry" he is entitled to a grant of remission unless the Commission is ··positively (_) satisfied after affording the prisoner "procedural fairness" that there are overriding considerations which compel in.the exercise of discretion a contrary decision. It is against that background that the decision of the respondent under review must be considered. Both Hunter and Dutney directed their minds to the considerations expressly made material for the purpose of a decision pursuant to Regulations 21 and 27. It is clear that each of those persons concluded that throughout his period of imprisonment the applicant had been "of -- 26 of 30 -- 24 good conduct and industry''. It al?pears from Hunter's memorandum of,25th June 1992, :quoted above; that she relied heavily, if not exclusively, on Wilson's report. of 18th June 1992 in deciding to recommend that the applicant -not be granted- any remissions. Certainly 'the reference to the cor1tention. that __ he had "not adequately: _addressed his sexual offending behaviour" is derived from- th~t r~port.. It is not clear from the material supplied to ·' the applicant on what basis she concluded that he "continues to demonstrate substance dependent behaviour and has not completely O addressed his.drug and-alcohol problem" . . · j I;'· Dutney in her memoranqum of 24th June 1992 also was of the l. !' view that the applicant had complied with the requirements expressly made relevant by Regulation 21. She expressly stated that the "recommendation for not~. granting remission is based on the assessment that Mr. Felton has not adequately addressed his of~ending behaviour" . Again that can only be derived from Wilson's report of 18th June 1992. . ~t .is therefore important to consider Wilson's report in : .': some detail; the relevant passages are quoted above. In it he stated that "offenders must earn remissions" and then set out his ·- view that there were "two essential components in this process". The first was "maintaining satisfactory institutional behaviour", and I will broadly interpret that as a reference tc;> the matters expressly made _relevant .by Regulation 21. The second component, in his .view, was that of "addressing and dealing with, through primarily psycho-educational __ and behavioural skills learning activities, the factors. that_ led to their offending behaviour." In. the. light of my analysis o_f the Regulations in question, and 0 0 -- 27 of 30 -- '• () (~) () 25 the accepted philosophy underlying the grant of remissions, there is no legal support for the proposition that such a consideration is relevant to the granting or forfeiture of remissions pursuant to Regulations 21 and 27. Insofar as Wilson's report directs itself to the matters expressly made relevant by Regulation 21, the findings are in favour of'the applicant. -It is clear from a reading of Wilson's report~ particularly-the extracts quoted above, that his recommendation against remissions was entirely based on his conclusion that the applicant had "failed to adequately address the factors that led to his offending behaviour, despite frequent availability of staff assistance in order to do so." It was those matters which were taken up by the respondent in the formal decision communicated by the letter of 1st December 1992, at least so far as ground (a) is concerned. In the circumstances the conclusion is inevitable that the decision took into account irrelevant considerations, or at least gave undue weight to irrelevant matters. Further, in my opinion, it could be said that there was no sufficient evidence justifying the making of the decision based on the ground that he had not adequately addressed his sexual offending be;hav1our. The only evidence on which that is based is the fact that the applicant did not complete the Sex Offender Treatment Programme, but it is clear from other evidence that mere failure to complete that programme is not ordinarily regarded as detrimental to the prisoner's entitlement to remission. It is not clear on what basis the respondent concluded that the applicant "should not be released into the community unless -- 28 of 30 -- 26 under community correction supervision." It may well be that the applicant was denied "procedural fairness" and natural justice with respect to that part of the decision against him. But it is not necessary for me to reach a final conclusion in that regard. As ,indicated previously it may be that the view that the applicant "should not be released into the community unless under community correction supervision" was based on the contents of the "Ministerial Guidelines". However, such Guidelines can in no way amend or alter the effect of the Regulations. If it is considered by the Minister that the Regulations are inadequate or inappropriate then the proper course is to repeal or amend them. It was conceded during argument that the respondent could not rely on s. 23 of the Corrective Services (Administration) Act 1988 in order to support the operation of those Guidelines. The policy underlying the "Guidelines", insofar as it is inconsistent with the Regulations, cannot be given any valid scope of operation (cf. the reasoning of Pincus J. in Perder Investments Pty Ltd v. Elmer (1991) 23 A.L.D. 545). Before it could conclude that the applicant's "release would subject the public to unnecessary risk" the respondent would have to consider the applicant's conduct whilst freely moving within the community during the currency of his sentence. Since 1989 he has been given periodic leave of absence and has spent regular time travelling on public transport and mixing in the community without any suggestion of "risk" to the community. That must be a relevant consideration when the matter is again considered by the respondent. ~~- .. ~~--- () 0 0 -- 29 of 30 -- u 27 It therefore follows that applying s. 21(2) of the Judicial Review Act 1991 the decision under review must be set aside and the question of the determination of the applicant's entitlement to remissions of sentence be remitted to the respondent for further consideration according to law. There should further be an order that the respondent pay the applicant's costs of and incidental the application to be taxed. -- 30 of 30 --