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Supreme Court 6 June 2002

McCallum v The Commissioner of Corrective Services

[2002] NSWSC 497

Also reported as 129 A Crim R 590
Sexual offences
ADMINISTRATIVE LAW PRISONS ADMINISTRATION CLASSIFICATION OF PRISONERS APPROPRIATE COSTS ORDER.

Citation: McCallum v The Commissioner of Corrective Services [2002] NSWSC 497
Court: Supreme Court of New South Wales, Common Law Division (Administrative Law List)
Date: 6 June 2002
Judge(s): Burchett AJ

Background

The plaintiff was a prisoner serving cumulative sentences: fixed terms of seven years for six sexual offences (including rape and unlawful detention), followed by minimum terms for two armed robbery offences. His earliest parole eligibility date was 30 April 2003. The central practical issue was his prison classification, which directly affected his prospects of obtaining work release.

Under the Crimes (Administration of Sentences) Regulation 2001, prisoners are classified on a scale from A1 (highest restraint) to C3 (lowest). The plaintiff was classified as C2, meaning the Commissioner held the opinion that he required some level of supervision. Classification as C3 (no supervision required) was a necessary step towards work release.

The plaintiff challenged the Commissioner's continued refusal to reclassify him to C3. He argued that his classification was being improperly influenced by his attitude towards his sex offences and his failure to engage with psychological treatment programs, even though the sentences for those offences had expired and his current custodial term related only to the robbery offences.

  • Whether the Commissioner could lawfully take into account a prisoner's attitude to expired sexual offence convictions, and his non-participation in related psychological treatment, when forming an opinion about his need for supervision during a subsequent, unrelated sentence.
  • Whether the totality principle applied at sentencing had any limiting effect on how the Commissioner could consider the prisoner's full offending history for classification purposes.
  • Whether the Commissioner had breached an undertaking given to the Court in earlier proceedings (before Sully J) that there was no standing requirement for the plaintiff to address his sex-related problems before a work-release application would be considered on its merits.

Decision

Burchett AJ dismissed the application. The Commissioner's classification function turns on forming an opinion about the prisoner's need for supervision, and that opinion may draw on a broad range of matters. A prisoner's attitude to serious past offences, and the associated psychological risk assessment, are plainly relevant to an evaluation of whether supervision remains necessary.

The court rejected the argument that the totality principle applied at sentencing constrained what the Commissioner could consider. The totality principle governs how courts calculate aggregate sentences; it does not restrict the material that prison administrators may weigh when making ongoing classification decisions.

On the undertaking given during the Sully J proceedings, the court found the plaintiff had misread its terms. The assurance stated only that there was no automatic bar to considering a work-release application, and that attitude towards the sex offences would be considered alongside all other relevant matters. The Commissioner's conduct was consistent with that undertaking. The plaintiff's attitude to his convictions did not constitute an automatic disqualifier, but it remained a serious matter available to be taken into account.

Orders Made

  • Application dismissed.
  • No order as to costs.

Key Takeaways

  • Under the Crimes (Administration of Sentences) Regulation 2001, the distinction between classification categories C2 and C3 rests on the Commissioner's opinion about a prisoner's need for supervision, a formulation that permits consideration of a wide range of relevant matters.
  • A prisoner's attitude towards prior serious offences and risk of recidivism, as assessed by psychological evidence, can lawfully inform the Commissioner's classification opinion even after the sentences for those offences have expired and the prisoner is serving a subsequent unrelated sentence.
  • The totality principle is a sentencing tool for courts and has no application to the Commissioner's administrative classification decisions.
  • Undertakings given on behalf of the Commissioner that no "standing impediment" exists do not preclude the Commissioner from weighing a prisoner's attitude to past offending as one factor among many in a classification review.
  • In dismissing the application, the court exercised its costs discretion in the plaintiff's favour, declining to impose a costs order on the basis that prisoners should not be deterred by cost exposure from bringing reasonable challenges to the legality of significant decisions made by the Commissioner.

Legislation and Cases Referenced

Legislation:
- Crimes (Administration of Sentences) Act 1999 (NSW), s 79
- Crimes (Administration of Sentences) Regulation 2001 (NSW), cl 22
- Crimes Act 1900 (NSW), ss 61I, 89, 97, 474D

Cases:
- Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259
- Mill v The Queen (1988) 166 CLR 59
- McDonald v The Queen (1994) 48 FCR 555
- Arnold v The Queen (1996) 71 FCR 117
- Director of Public Prosecutions v Grabovac (1998) 1 VR 664
- Jarvis v The Queen (1993) 20 WAR 201
- R v Booth (2001) 1 Qd R 393
- McCallum v The Commissioner of Corrective Services of New South Wales (Sully J, 27 March 2001)