TW v Director-General of the Justice and Community Safety Directorate

• Jurisdiction: Australian Capital Territory
• Judge: Crowe AJ
• Judgment Date: 30 October 2019
• Date: 30 October 2019
• Court: Supreme Court of ACT
• Docket Number: File number: SC 180 of 2019

[2019] ACTSC 300

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Before:

Crowe AJ

File number: SC 180 of 2019

TW

(Plaintiff)

and

Director-General of the Justice and Community Safety Directorate

(Defendant)

Representation:

Counsel

Self-represented (Plaintiff)

N Oram (Defendant)

Cases Cited:

Hoyle v Director General, Corrective Services[2019] ACTSC 226

R v TW[2011] ACTCA 25; 6 ACTLR 18

The Prothonotary of the Supreme Court of New South Wales v Sukkar[2007] NSWCA 341

Wingfoot Australia Partners Ltd v Kocak[2013] HCA 43; 252 CLR 480

Legislation Cited:

Court Procedure Rules 2006 (ACT) r 3356

Crimes Act 1914 (Cth) s 19AL

Evidence Act 2011 (ACT) ss 91, 92

Human Rights Act 2004 (ACT) s 18

Supreme Court Act 1933 (ACT) s 34B

PRACTICE AND PROCEDURE — Application in Proceeding to strike-out Originating Application for Judicial Review — failure to identify an error — no identifiable cause of action — Originating Application struck-out

JUDICIAL REVIEW — Plaintiff seeks review of Static 99 Tally Sheet completed as part of parole determination process — whether the Tally Sheet was erroneously completed — whether a different version of the Tally Sheet should have been used — whether the interpretation of the Coding Manual used to complete the Tally Sheet was erroneous — no factual error found — no error in Corrective Services using the Static 99 Tally Sheet — no error in the interpretation of the Coding Manual

Decision:

See [57]

Crowe AJ

1 The plaintiff ( TW) filed an Originating Application ( OA) on 12 April 2019 seeking the following relief:

• (1) To review the decisions of the ACT Justice and Community Safety Directorate contained within the Pre-Release Reports on several occasions.

• (2) To review the following conduct of ACT Justice and Community Safety Directorate:

  To incorrectly record risk rating. (sic) And to act in bad faith.

• (3) To grant declaratory relief.

• (4) To grant other relief as the Court sees fit.

2 On 28 August 2019, the defendant filed an Application in Proceeding seeking to strike out all, or alternatively parts, of the OA. That application came on for hearing before me on 3 October 2019. At that time I reserved my decision.

Background

3 The details of the charges brought against the plaintiff are important as will be explained below. The following is the summary taken from the sentencing remarks of Nield AJ on 27 August 2010 at [14] – [19]:

On 22 January 2010 the offender was arrested and, after being arrested, he was taken to a police station where he was charged with the following offences:

(1) On 19 January 2010 possessing child pornography;

(2) Between 1 June 2009 and 19 January 2010 using a carriage service to access child pornography;

(3) On 28 August 2009 using a carriage service to distribute child pornography.

(4) Between 10 December 2009 and 10 January 2010 using a carriage service to transmit child pornography.

On 23 January 2010 the offender appeared before a magistrate in the ACT Magistrates Court and the proceedings were stood over to 12 February 2010 and he was granted bail.

However, on 2 February 2010 the offender was again arrested and, after being taken to the police station, he was charged with the following further offences:

• (1) Between 1 January 2010 and 10 January 2010 committing an act of indecency upon child C, a person under the age of 10 years;

• (2) Between 1 January 2010 and 10 January 2010 using child C for the production of child pornography;

• (3) Between 3 April 2009 and 15 December 2009 using child C for the production of child pornography;

• (4) Between 3 April 2009 and 8 April 2009 using child A for the production of child pornography;

• (5) Between 26 November 2009 and 30 November 2009 using child B for the production of child pornography;

• (6) Between 10 December 2009 and 15 December 2009 committing an act of indecency upon child C a person under the age of 10 years;

• (7) Between 20 November 2009 and 30 November 2009 committing an act of indecency upon child B a person under the age of 10 years; and,

• (8) Between 1 January 2010 and 10 January 2010 using child D for the production of child pornography.

On 3 February 2010 the offender again appeared before a Magistrate in the ACT Magistrates Court and the further proceedings were stood over to 12 February 2010 and he was released on bail.

On 12 February 2010 the proceedings related to the charges against the offender were stood over to 9 April 2010 and the offender's bail was continued to that date.

However, on 18 March 2010 the offender was again arrested and, after being arrested, taken to a police station where he was charged with the following further offence:

• (1) Between 18 February 2010 and 13 March 2010 possessing child pornography.

  I note that this further offence was committed when the offender was on bail for the offences with which he had been charged on 22 January 2010 and 2 February 2010.

4 In relation to the charge referred to at paragraph [19] of his Honour's remarks, the AFP Statement of Facts (as to which, see below) provided details of the plaintiff's conduct leading to that offence. Relevantly, it disclosed that the plaintiff had stored copied child pornography material on a memory card which was not found by police when they executed a warrant against him on 19 January 2010. He came into possession of that card after he was released on bail in mid-February, 2010. He knew that the material was on the card. He said he wanted to “hang on to something” or keep it as “some kind of trophy”. On 12 March 2010, while he was at his former residence, he accessed a computer to transfer the material to an external hard drive. That had the effect of deleting it from his memory card. He intended to delete it from the hard drive but his wife handed it to police before he had a chance to do that.

5 The plaintiff pleaded guilty and was duly convicted of all charges. The Crown appealed the sentence imposed by Nield AJ and on 17 November 2011 the Court of Appeal allowed the appeal and re-sentenced the plaintiff to a total period of imprisonment of nine years and seven months, with a non-parole period of five years and six months (see R v TW[2011] ACTCA 25; 6 ACTLR 18 ( R v TW)). The expiry date of the aggregate head sentence was 17 October 2019. He became eligible for parole on 17 September 2015.

6 In March 2015, the plaintiff applied for parole. Consequently, it became necessary for the delegates of the defendant to prepare a pre-release report addressing, among other matters, the risk of the plaintiff re-offending. The assessment of that risk included completion of a Static 99 Tally Sheet (the Tally Sheet). This sheet allocates a score with reference to certain characteristics and aspects of the detainee's criminal history. The scores are weighted by reference to actuarial analysis. There is a detailed coding manual (the Coding Manual) to provide guidance for the completion of the Tally Sheet. The Coding Manual will be discussed further below.

7 The Tally Sheet was completed by an assessor identified only as “CG” on 24 April 2015. Question five on the tally sheet provided as follows:

Prior Sex Offences	Charges	Convictions	Scores
	None	None	0
	1–2	1	1
	3–5	2–3	2
	6+	4+	3

8 The assessor circled “6+” under “Charges”, and “4+” under “Convictions”. This gave the plaintiff a score of “3”. His total score was “6”. The nominal risk categories referrable to the scores are:

Points	Risk Category
0,1	Low
2,3	Moderate-Low
4,5	Moderate-High
6+	High

9 As can be seen, the scoring of the plaintiff resulted in a Static 99 assessment that he was at a high risk of re-offending.

10 That assessment was quoted in the pre-release report dated 3 June 2015. Notwithstanding that assessment, the authors of the report, by reference to the plaintiff's behaviour in custody and his completion of the Adult Sex Offenders Program ( ASOP), recommended that he be released on parole (subject to approval of certain accommodation).

11 On 20 July 2015, a report was prepared in relation to the plaintiff's completion of the ASOP. Although generally positive, the report did include reference to the plaintiff remaining at a high risk of sexual re-offending. Having regard to the context, it seems likely that the authors of the report had read the outcome of the Static 99 assessment, or the reference to it in the pre-release report.

12 On 21 July 2015, the Sentence Administration Board ( SAB) decided that the plaintiff should be released on parole on 17 September 2015 subject to certain conditions.

13 However, because the plaintiff had been convicted of offences against both ACT and Commonwealth laws, it was necessary for him to obtain a favourable parole decision from the Commonwealth Attorney-General (or delegate) under s 19AL of the Crimes Act 1914 (Cth) in addition to the SAB decision. On 1 September 2015, a delegate of the Attorney-General refused the plaintiff's parole. One of the reasons for that decision was expressed to be the assessment that he remained at a high risk of sexual reoffending.

14 The refusal notice noted advice from Corrective Services that specific psychological interventions might reduce the plaintiff's risk of sexual re-offending. In response to that the plaintiff arranged counselling sessions with a psychologist.

15 On 1 December 2015, an updated parole report was provided. That report repeated much of what was in the previous report, including the high risk assessment. It noted that the plaintiff was receiving counselling, although it questioned whether that treatment was relevant to the reduction of his risk of re-offending. The recommendation in this report was against a grant of parole. The report did note that the plaintiff's imprisonment for the ACT offences would expire on 17 March 2016.

16 On 15 February...