Daniel v Chief Executive, Department of Corrective Services [2004] QSC 125

SUPREME COURT OF QUEENSLAND CITATION: Daniel v Chief Executive, Department of Corrective Services [2004] QSC 125 PARTIES: MAYNARD DANIEL (Applicant) v THE QUEENSLAND COMMUNITY CORRECTIONS BOARD (Respondent) FILE NO/S: 364 of 2003 DIVISION: Trial PROCEEDING: Application ORIGINATING COURT: Supreme Court, Cairns DELIVERED ON: 2 April 2004 DELIVERED AT: Cairns HEARING DATE: 12 February 2004 JUDGE: Jones J ORDER: Application dismissed. I give the parties leave to make submissions on the question of costs. CATCHWORDS: ADMINISTRATIVE LAW - JUDICIAL REVIEW LEGISLATION - COMMONWEALTH, QUEENSLAND AND AUSTRALIAN CAPITAL TERRITORY - GROUNDS FOR REVIEW OF DECISION –IMPROPER EXERCISE OF STATUTORY POWER - BREACH OF NATURAL JUSTICE- where applicant sought statutory order of review in respect of a decision not to grant remission on sentence - whether the respondent’s representative failed to take relevant considerations into account - whether the respondent’s representative unfairly based the decision on the fact that the applicant failed to complete a sex offenders treatment program Corrective Services Act 2000 Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1985-6) 162 CLR 24 Minister for Immigration and Ethnic Affairs v Wu (1996) 185 CLR 259 at 291 -- 1 of 6 -- 2 COUNSEL: Mr Curtin for the Applicant Mr McLeod for the Respondent SOLICITORS: Tharpuntoo Legal Service for the Applicant Crown Solicitors for the Respondent [1] The applicant seeks a statutory order of review of a decision of the respondent board refusing his application for a post-prison community based release order (“PPCBR”). [2] The applicant was sentenced on 2 October 1996 to eight years imprisonment for convictions on three counts of rape. [3] On 20 February 2002 the applicant made an application to the board for PPCBR pursuant to s 134 of the Corrective Services Act 2000 (“the Act”). When the application came before the board on 4 April 2003, the board considered not granting the application and advised the applicant accordingly. The reasons for this conclusion were given in a statement dated 28 April 20031. The statement included the following:- “However, the Board’s primary obligation is to ensure the safety of the community and the Board remains concerned about various aspects of your case as detailed in the enclosed letter to you. You now completely deny all of the rape offences although you were convicted of them after pleading guilty. You have been dealt with by the courts according to your plea of guilty and the board must act on the basis that you did commit those offences when assessing your risk to the community if granted a post-prison community based release order. However, this total denial of your offending prevents you from participating in the Indigenous Sexual Offender Treatment Program (“ISOTP”) or the Sexual Offender Treatment Program. Additionally, in about May last year you refused an offer to participate in the ISOTP. Since this is the second occasion on which you have been offered the opportunity to participate in a treatment program for your sexual offences, you are no longer eligible to remain on the waiting list. In the circumstances, the Board suggests that you need to address the violent aspects of your admitted offending behaviour by successfully completing the ending Family Violence and Cognitive Skills Programs and one on one counselling particularly focussed on relationship issues. For the reasons set out in this letter to you, it presently seems to the Board that you may not be an acceptable risk to the community on any form of community based release order and that it should therefore refuse your application for a post prison community based release order at this time. However, you may have information that 1 Ex “RJM-4” to affidavit of Robert McGrath filed 24.10.03 -- 2 of 6 -- 3 you do not believe the Board has considered that may cause it to reach a different conclusion. If you wish to provide the Board with such information, you should advise the Board of it in writing to be received by the Board within 14 days of this letter being received by you. If the Board does not receive such submissions from you within that time your application will be refused for the reasons set out above and the Board will not consider a further application from you before 4 October 2003. Since it usually takes approximately 3 months to process an application and bring it back before the Board, you should not reapply prior to 4 July 2003.” [4] After giving the applicant a further opportunity to make submissions, the board confirmed the refusal to grant the release. The grounds upon which the applicant seeks to review the decision are that the decision was an improper exercise of statutory power, that there was no evidence to justify the decision and that it was contrary to the legislative intent. A further allegation was made in submissions that there had been a breach of the rules of natural justice. [5] The applicant’s outline of argument mistakenly assumed that the decision was made pursuant to s 77 of the Act but at the hearing it was understood and accepted that the relevant provision was s 140. Statutory provisions [6] The Board is charged by s 157(a) of the Act with the responsibility of deciding applications for PPCBR orders. Such orders are identified in s 141 and are of three types. The type of order sought in the subject application made on 21 November 2002 was not specified but the applicant appears to have been seeking a parole order. Section 140 relevantly provides:- “(1) A corrections board required to consider a prisoner’s application for a post-prison community based release order must decide either – (a) To grant the application; or (b) To refuse to grant the application. (2) However, the board may defer making a decision until the board obtains any additional information that it considers is necessary to make the decision. (3) The board may grant the prisoner’s application even though another post-prison community based release order for the same period of imprisonment was previously cancelled. (4) If the board refuses the application, the board must – (a) decide a period of tome, of not more than 6 months after the refusal, within which a further application for a post-prison community based release order by the applicant must not be considered; and (b) give the applicant written reasons for the refusal. (5) If the board fails to decide the application within 120 days after its receipt, the board is taken to have decided to refuse to grant the application.” -- 3 of 6 -- 4 [7] Thus it is clear the statutory provisions empowered the board to make the decision it did. In the upshot no argument was raised to the contrary. The evidentiary issue [8] The evidentiary issue focussed principally on the applicant’s failure to undertake a sex offenders treatment program (SOTP) or the more specialised course for indigenous prisoners (ISOTP). [9] The applicant had previously made PPBCR applications on 20 February 2002 and 8 April 2002. He had also unsuccessfully made application for grant of remission in 7 November 2002. [10] The respondent’s material asserts that the applicant commenced the assessment phase of a SOTP program at the Moreton Correctional Centre on 28 June 2002 but he withdrew when one of his friends committed suicide. The applicant was later offered a place on a ISOTP program at the Townsville Correctional Centre but he refused to go to Townsville because he had no family support in that area. His position from the Department’s perspective was summarised in a letter to him dated 13 June 2001 in these terms:- “You were offered a place on Sex Offender Treatment Program on 27 March 2000 which you declined yet requested that you be retained n the waiting list. Recently, you were offered a place on the Indigenous Sexual Offenders Treatment Program which you also declined. Sexual Offenders Treatment Program protocols stipulate that an offender who has declined an offer of place twice will not be offered a place on the program for a third time. It is apparent that you are not willing to participate in either the ISOTP or SOTP and consequently your name has been removed from the Sexual Offenders Treatment Program waiting list.”2 [11] The applicant challenges the assertion that he refused to undertake the course. He maintains that he never received a formal offer to participate3. In his affidavit he explained the cultural considerations which caused him to withdraw from the course at the Moreton Correctional Centre. He claims that he sought to be re-admitted to the course but this request was refused. [12] Whilst it is not appropriate in these proceedings to determine factual issues of this kind, one must observe at once that there is something seriously wrong with the system if protocols are used to prevent a prisoner from undertaking a program which so obviously bears upon applications for orders for PPCBR or remissions when he is now willing to do so. Although the court has made clear that the refusal to grant remissions solely on the basis that there has been no admission of guilt is an improper exercise of power4 it always remains an important general consideration. That this is so, appears from the grounds referred to in para 3 above. [13] However, the question of the applicant’s involvement in the SOTP or ISOTP courses is only one element of a large body of evidence which was before the board. 2 Ex “RJM-5” affidavit of Robert McGrath [supra] at p 88 3 Affidavit Maynard Daniel filed 14 November 2003 para 12 4 See Felton v Queensland Corrective Services Commission (1994) 1 QdR 490 and Batts v Department of Corrective Services (2002) QSC 206 -- 4 of 6 -- 5 In determining an application of this kind the board has a wide discretion. It is unfettered by any statutorily imposed considerations of a kind for example, that attends the grant of remissions. Obviously a risk to the community would be one of the major considerations and the board in this instance has clearly identified it to be so. [14] The opportunity for review of a decision arising from the exercise of such a discretion is limited. In Minister for Aboriginal Affairs v Peko-Wallsend Ltd5 Mason J said (at p 40-41):- “The limited role of a court reviewing the exercise of an administrative discretion must constantly be borne in mind. It is not the function of the court to substitute its own decision for that of the administrator by exercising a discretion which the legislature has vested in the administrator. Its role is to set limits on the exercise of that discretion, and a decision made within those boundaries cannot be impugned: Wednesbury Corporation (41). It follow that, in the absence of any statutory indication of the weight to be given to various considerations, it is generally for the decision maker and not the court to determine the appropriate weight to be given to the matters which are required to be taken into account in exercising the statutory power:” Also in Minister for Immigration and Ethnic Affairs v Wu6 Kirby J said:- “The weight to be given to the material before the decision-maker is, in a case submitted to judicial review, reserved to the decision-maker so long as he or she applies the correct legal test and does not reach a conclusion which is so unreasonable as to authorise review. The decision-maker will usually have advantages over the reviewing judge in evaluation evidence and submissions. Those advantages will include the conventional ones of seeing any parties and witnesses who are heard and having time to reflect upon all of the material. But there are additional reasons for restraint and resistance to any temptation to turn a case of judicial review into, effectively, a reconsideration of the merits. Often, the decision-maker will have more experience in the consistent application of applicable administrative rules to achieve fairness to a wider range of people than typically come before the courts.” [15] Consequently, it is not appropriate to engage in a consideration of the competing allegations between the applicant and the departmental officers concerning the applicant’s attitude to the SOTP and ISOTP. The board considered this issue and has stated its opinion as to its effect. [16] The extensive reference was also made by the applicant’s counsel to various professional reports concerning the applicant, his attitude to the SOTP and his risk of re-offending. Arguments were raised concerning the assertion that certain tests on which opinions were founded were not based on specific norms for indigenous offenders. Such arguments invite the court’s consideration of the merits of the 5 (1985-6) 162 CLR 24 6 (1996) 185 CLR 259 at 291 -- 5 of 6 -- 6 board decision which is simply not open in this type of proceeding for the reasons which I have given. [17] There was ample evidence before the board upon which the decision, which it came to, could be based. Included amongst this material are the circumstances of the current offences, the applicant’s extensive criminal record of violent crimes, including his attacks on relatives and the fact that there exist other beneficial programs he could undertake. There is nothing in the material to suggest that the board did other than take an independent approach in its consideration to that evidence. The applicant had the opportunity to, and did in fact, make submissions to the board. [18] I am satisfied therefore that there was no breach of any provision of the law in the making of this decision. The application should be dismissed. I give the parties leave to make submissions on the question of costs. -- 6 of 6 --