Corrigan v Queensland Community Corrections Board [2004] QSC 78

SUPREME COURT OF QUEENSLAND CITATION: Corrigan v Queensland Community Corrections Board [2004] QSC 078 PARTIES: ANTHONY WILLIAM CORRIGAN (applicant) v QUEENSLAND COMMUNITY CORRECTIONS BOARD (respondent) FILE NO: S10082 of 2003 DIVISION: Trial PROCEEDING: Application ORIGINATING COURT: Supreme Court at Brisbane DELIVERED ON: 4 March 2004 DELIVERED AT: Brisbane HEARING DATE: 2 February 2004 JUDGE: Douglas J ORDER: Application dismissed CATCHWORDS: ADMINISTRATIVE LAW - JUDICIAL REVIEW - Grounds for review of decision - Abuse of discretionary power - Consideration of irrelevant matter or refusal to consider relevant matter – Information relevant to early release recommendation – Whether new information relevant to that recommendation able to be relied on by Queensland Community Corrections Board Corrective Services Act 2000 s.139 Williams v Queensland Community Corrections Board [2001] 1 Qd R 557, 567 at [25]; R v Maxfield [2002] 1 Qd R 417, 424-425 at [27]-[28] discussed COUNSEL: The applicant in person M Plunkett for the respondent SOLICITORS: The applicant in person CW Lohe, Crown Solicitor for the respondent [1] DOUGLAS J: On 29 September 2000 the applicant, Mr Corrigan, was sentenced to 8 years’ imprisonment. That term was later reduced to 7 years on appeal. The -- 1 of 6 -- 2 sentencing judge also made a recommendation for his early release on parole after service of 3 years of that term. The Queensland Community Corrections Board (“the Board”) when dealing with his application for early release considered refusing it, invited further submissions from him and told him that if none were forthcoming it would refuse the application for the reasons given in its letter of 6 October 2003. Mr Corrigan did not make any further submissions but asked for reasons for the decision to refuse his application for parole and made an application for judicial review of the Board’s decision. Its further reasons were provided in its letter of 27 November 2003. [2] There were preliminary submissions by the applicant that the respondent’s reasons for its decision dated 27 November 2003 and the affidavit filed on its behalf on 12 January 2004 of Christopher Michael Roney were inadmissible. The submissions were made on the basis that each document was provided or served late. I ruled that the documents were admissible. [3] Mr Corrigan’s principal submission was based on s. 139 of the Corrective Services Act 2000 (“the Act”) which provides: - “139 Corrections board not bound by sentencing court's recommendation When deciding whether to grant a post-prison community based release order, a corrections board is not bound by the recommendation of the court that sentenced the prisoner if the board — (a) receives information about the prisoner that was not before the court at the time of sentencing; and (b) after considering the information, considers that the prisoner is not suitable for release at the time recommended by the court.” -- 2 of 6 -- 3 [4] His submission is, essentially, that the Board is bound by a sentencing Court’s recommendation unless the conditions spelt out in paragraphs (a) and (b) of s. 139 are met. There is a good deal of logic in that argument and it may reflect something of the philosophy under the earlier Corrective Services Act 1988 expressed in Williams v Queensland Community Corrections Board [2001] 1 Qd R 557, 567 at [25]; see also R v Maxfield [2002] 1 Qd R 417, 424-425 at [27]-[28]. This section of the current Act is not explicitly limited, however, by the view expressed in those decisions that the Board’s new information should be such as to place it in a better position than the sentencing judge. All that is required is that the Board receive information not before the sentencing judge. Mr Corrigan then submitted that I should interpret the word “information” to mean information of a type that would have compelled the Court to structure the sentence imposed differently. In my view that conclusion is not justified by the language of the section. That language is clear and, for good practical reasons, should be construed to allow events that have occurred since the sentence to be taken into account. It should not be limited to information in existence at the time of sentence that was not provided to the sentencing judge. The principal question for me then is whether the Board did receive information about Mr Corrigan that was not before the sentencing Judge. [5] Mr Plunkett for the Board submits that there were two relevant items of information received by the Board that were not before the sentencing judge, Mullins J. The first related to a finding by her Honour that Mr Corrigan had a genuine desire to be available in the future to provide fathering to his four children. They live in Queensland. Mr Corrigan’s application for parole said that Victoria was his only option for community based release because he had a family in Melbourne, greater employment prospects and a home to go to, none of which were available to him in -- 3 of 6 -- 4 Queensland then or at any time in the immediate or future period. He specifically said that he had no support at all in Queensland and that his children, who live here, were “certainly not in a position to sponsor me on [sic] any shape or form at the present time”. In his affidavit in these proceedings filed 7 November 2003 at para. 53 he also said that he was estranged from any family in Queensland and had “no local friends available as sponsor or home address”. It is true that in his application for post-prison community based release he invited the Board to consider an alternative of release to work in Queensland but in that proposal he expressed his own pessimism about the degree of support he had in Queensland from anyone, including his own children. [6] Mr Plunkett’s submission is that, where the applicant advanced, as his only option for release, leaving Queensland and moving to Victoria, that constituted information about the prisoner that was not before her Honour at the time of sentencing. In other words, if given early release on those terms, he would not be available to act in the role of a father to his children, contrary to her Honour’s expectations. [7] The second matter was the fact that the applicant had not pursued studies to help prisoners. Her Honour had accepted that this was a ‘genuine desire’ of the applicant. He commenced studies in law but was unable to continue them, he says for financial reasons and through lack of support from the respondent’s employees. [8] Those two items of information, the changes in the proposed parenting role and the frustration of his intentions to study, are the ones said to create the situation where the Board is not bound by Her Honour’s recommendation. The first at least is enough, in my view, to establish a wider discretion in the Board than would have -- 4 of 6 -- 5 existed otherwise. All that the section requires is the receipt of information not before the sentencing judge. If one construes the section literally it does not have to be information relevant to the sentencing discretion but if information irrelevant to the sentencing discretion were relied on by the respondent it may run the risk of being criticised for taking irrelevant matters into account. The information about Mr Corrigan’s difficulties in being sponsored to stay in Queensland with his children is, however, relevant to at least one of the issues taken into account by her Honour in sentencing him. [9] The reasons advanced otherwise by the Board for refusing early release were rational, based on the evidence before it and reflected a realistic assessment of the applicant’s impatience to “get to where [he] wanted to be or go”. The Board went on to say: “Unfortunately, despite your apparent insight into its detrimental effects, this impatience is echoed in your release plans which appear to be partly based on a perception that your reintegration into the community there will be relatively easy in Victoria compared to Queensland. This expectation seems entirely unrealistic to the Board. Your only significant support person in Victoria is apparently your sister who (from her letter to you listed at number 38 in the documents above) has her own family and other obligations to fulfil. You will still experience frustration and disappointment in re- establishing yourself in the community and particularly in employment given your offence history. You will be required to honestly account for your absence from the workforce to prospective employers the same in Victoria as in Queensland. You will also be required to be supervised on and comply with the terms of your post- prison community based release order. However, this will all have to be done in the absence of meaningful contact with your adult children who are resident in Queensland. This plan is also directly contrary to the indication that you provided to the court and that was relied on by Her Honour as quoted in paragraph 11 of the Board’s finding of fact above as a material factor in arriving at your sentence. You can hardly “be available to provide some sort of fathering to (your four children) in future” in any significant way if you are not in the same State as them. In the Board’s experience, releasing you directly to Victoria on parole in these circumstances would only be -- 5 of 6 -- 6 setting you up for failure for the reasons set out above and it is therefore not considered a viable plan. In these circumstances, the Board considers a more appropriate release process would be the more gradual, more closely supervised and more supported process of decreasingly restrictive supervision and increasingly liberal post-prison community based release orders that is, significant time in open custody, then release to work, then home detention and then parole. This lets you focus firstly on functioning in the less highly controlled and institutional environment of open custody and possibly accessing leaves of absence to have direct contact with the community and maybe your family. During this time you could also develop some specific strategies to deal appropriately with the challenges and frustrations that you are likely to experience while reintegrating into the community. You could then progress to focusing on being supported to gain and maintain employment while possibly accessing time with your children on leaves of absence. The Board considers that the relative recency and continuity of your contact with your children suggests that the latter is likely with some effort on your part. Depending on your progress and circumstances at the conclusion of a period on release to work, the Board would then determine whether you could progress immediately to parole or may benefit from a period on home detention.” [10] The matters discussed by the Board are, in my opinion, relevant to the question whether the applicant should have been given earlier release, were rationally assessed by the Board and should not be disturbed by this Court. [11] The fact that the applicant had earlier, on 20 May 2003, been refused permission to take part in a Western Out Reach Camps (“WORC”) program available under s. 56 of the Act is not inconsistent with the approach of the Board in this matter to the use of post-prison community based release orders. The WORC program is one only of a number of possible programs and provisions for the management of prisoners under Pt 2 of the Act from which he may be able to benefit as is clear from the reasons of the Board set out above. [12] Accordingly, the application is dismissed. I shall hear the parties as to costs. -- 6 of 6 --