Inadequate Probation Report and Lack of
Natural Justice Compels the Court of Criminal Appeal
to set aside a Magistrate's decision
not to allow defendant probation: Bowserv. Bourke
Paul Moyle
B.A. (Murdoch); LL.B. (N.S.W.). Barrister at Law (N.S.W.).
Lecturer in Law, James Cook University of North Queensland.
The case of Bowser v. Bourke l highlights a series of flaws in the preparation, submission
and consideration of pre-sentence reports by a Queensland Magistrates Court. This case
is also significant because it is the first case to deal with ss.263, 264 and 265 of the Corrective Services Act 1988 (Qld.). Form 40 of the Corrective Services Regulations 1989
(Qld.) is also briefly mentioned. These sections are the working sections which community correction officers use in the preparation of pre-sentence reports. A court assessment
sheet is part of the pre-sentence report process and is requested by a magistrate after a
verdict of guilty has been entered to assist a court in determining the appropriate sentence. Significantly, the Court of Appeal concludes that a legislative review of s.265 is
probably warranted. The Court also indicated its disapproval of the practice of allowing
court assessments to unduly influence sentencing decisions by magistrates.
The decision in this case follows dramatic organisational and legislative change in
corrections in Queensland. 2 The Queensland Corrective Services Commission
(Q.C.S.C.) was established in 1988 to replace the Prisons Department and was given the
mandate to oversee the reform process. Since 1988, however, there have been three organisational changes which have included the abolition in 1992 of the Directorate of
Community Corrections. This position was filled by Director of Operations Support
(Community Corrections). Again, however, this position was abolished just six months
after its creation. The effect of this re-structuring has been that regional managers have
been given the responsibility for reporting discrepancies in procedures with respect to the
various functions of community corrections. This has meant that problems such as the
one in the present case concerning the inadequacy of pre-sentence reports, are not dealt
with in a co-ordinated way but are left to the discretion of the individual regional managers if they receive the necessary information and decide to act upon it.
Facts
On 23rd December 1991 in the Beenleigh Magistrates Court, the appellant pleaded guilty
to a series of offences. The appellant received twelve months imprisonment for nine
counts of unlawful use of a motor vehicle, twelve months imprisonment for one count of
breaking and entering a place with intent to commit an indictable offence, twelve months
imprisonment for one count of breaking, entering and stealing, and twelve months imprisonment for one count of bringing stolen goods into Queensland. The circumstances
surrounding the offences raised a strong possibility that Bourke, who was 19 and had no
1
2
[1993] 1 Qd. R. 43 (C.A.: Macrossan C.J., McPherson J.A., Williams J.).
See the 1988 Commission ofReview into Corrective Services, Final Report, Volume IIAttachments and Interim
Report, Goprint. For a description of the summary of findings, recommendations and legislative change, see
the Final Report, 2-9.
Paul Moyle
296
previous criminal record, was to some extent influenced by an older accomplice and had
not actively stolen the vehicles but was supervising their storage at a property. Other mitigating factors existed in this case, namely, the appellant had a stable employment history
and, at the time of the charge, was serving an apprenticeship with only eighteen months
remaining. At the time of the offence he was living with his parents.
The Court of Appeal identified three important aspects to this case. The first was a
criticism of the subjectivity of court assessment sheets and the second was the effect of
these reports on the exercise of sentencing discretion by magistrates. The final aspect was
a criticism of the failure of the magistrate to follow statutory guidelines which required
natural justice to be given to the defendant as outlined in s.265 of the Corrective Services
Act 1988. Fwther, there was a failure by the Magistrates Court to apply equitable principles of natural justice when the court considered the weight to be given to court assessment sheets. Each of these points will be discussed in detail.
The Subjectivity of Court Assessment Sheets
Requests for reports from community corrections officers are made by the Magistrates
Court pursuant to s.263 of the Corrective Services Act 1988. A standard form headed
Court Assessment Sheet which had been developed from Q.C.S.C.'s policy and procedures manual was used at the Beenleigh Magistrates Court. 3 This form had little space to
record details about the individual characteristics of the offender or circumstances of the
offence. 4 Some questions involve circling attributes which on the whole stressed the absence or presence of negative factors. On the basis of this short report, the community
corrections officer concluded the appellant was 'self-concerned, unrealistic, immature,
impulsive, greedy'S and:
[U]nder the heading 'Offender's Level of Motivation', the interviewer selected 'low' rather
than medium or high and then made the comment: 'States he just wants to return to South Australia as quickly as possible ... [The Court of Appeal noted that this statement by the] ... appellant is a very understandable one, and it is a little difficult to see why it was noted apparently in
support of a conclusion that he had a low level of motivation.6
The subjectivity of the pre-sentence report and its tendency to invite generalisations
(which are of limited value for the court to determine whether a custodial sentence should
be imposed), could have received more attention by the Court of Appeal. Part of the difficulty rests with determining what value should be attached to these reports and the
value of conclusions reached from a short interview with little objective information
available. The problem in part seems to be a systemic one, that is, an individual officer is
asked to make determinations they are not qualified to make. Some evaluations required
when answering the court assessment sheet involve the assessor identifying psychiatric
characteristics, educational abilities, personality factors and elements of motivation. The
present system heightens the possibilities of idiosyncratic factors entering into the evaluation of an individual's suitability for parole.
Perhaps what is needed is a case management group using individuals who have sentence management experience, teaching experience, psychiatric training and possibly
3
4
5
6
See Queensland Corrective Services Commission, 1990, Policy and Procedures Manual Pre-Sentence
Reports, 1-4.
The form does not provide sufficient information for judicial officers in determining sentences. It omits 'prior
convictions, allegations of other antecedent or subsequent offences, social, medical and psychiatric history,
personality and character' and other factors. See Law Reform Commission, 1988. Report No. 44, Sentencing
A.G.P.S. 86-92.
[1993] 1 Qd. R. 43,45.
Ibid
Inadequate Probation Report
297
community representation. Although this approach would require more resources and
changes to the present system, it could be justified, especially for the more serious
charges. A more consensual approach would provide better validation of decisions and
the potential for more detailed case management plans to be prepared targeting the individual custodial and non-custodial management plan for a given offender.
The Effect of the Report on the Exercise of Sentencing Discretion
The Court of Appeal was critical of the undue weight the sentencing court gave to the assessment sheet in determining whether or not to grant probation. The influence of the
court assessment sheet was significant and the 'rejection of probation by the magistrate
was primarily if not solely based on the contents of that [Court Assessment Sheet] ... report' .7 Part of the difficulty for the Magistrates Court in determining the weight to be
given to pre-sentence reports, is the effect to be given to s.265 of the Corrective Services
Act 1988. This section reads:
(1) A written report or oral statement made by a community correctional officer to any court
with a view to assisting the court in determining the most suitable method ofdealing with a convicted person shall be received by the court as primafacie evidence of the matters contained in
that report or statement notwithstanding that the officer is not called as a witness.
It is unclear what the precise effect of this section is, but at the very least the Court of
Appeal rejected an interpretation of this section that allows it to erode the court's 'duty to
make up its own mind as to the appropriate sentence called for in light of all the material
before it'.8 This would seem a sensible approach as the words 'with a view to assisting
the court in determining the most suitable method of dealing with a convicted person9 in
no way suggests that reports should supplant the court's sentencing discretion. It would
require very clear words to displace the long established principle that a sentencing court
retains discretion to determine the weight to be given to various factors when imposing a
penalty.
The question remains, what is the effect of the words 'prima facie evidence of the matters contained therein' in s.265 of the Corrective Services Act 1988. The Court of Appeal
concludes that this phrase:
[S]urely does not mean that if the officer reports that the subject is 'not a suitable candidate for
probation' the sentencing court cannot in the exercise of its sentencing discretion impose probation unless evidence from the defence is led which is sufficient to displace the prima facie
sufficiency of what is in the report. The sentencing discretion ought not to be fettered by the
contents of such a report. 10
The question remains from a practical point of view, what weight should magistrates
give to court assessment sheets? This judgment makes it clear that it is the magistrate's
responsibility to carefully evaluate whether the information contained in the report is factual and able to be substantiated or whether the information is an inference or an opinion
drawn from those facts. Factual information will sometimes gain a certain effect as
'prima facie evidence and in some cases may be the only evidence' .11 It should be noted
however that in the court assessment sheet, most of the factual information is rather mundane and would not have a detrimental effect on the applicant's attempt to gain probation.
This information would include matters such as name, address and offence. Inferences or
7
8
9
10
11
Ibid.
Id.47.
Corrective Services Act 1988, 8.265 (1).
[1993] 1 Qd.R. 43, 47.
Ibid.
298
Paul Moyle
opinions however, 'will remain an opinion, and no more, shown to be held by the author
of the report' .12
This important and logical distinction may cause some difficulties for magistrates because the court assessment sheet itself subtly intertwines factual matters with opinion. In
a busy Magistrates Court, it might be tempting not to work through and identify the particularities of these distinctions. Whilst this outcome would be understandable, it is not
acceptable. The Magistrates Court deals with the majority of people who come before the
criminal justice system. Probation and parole considerations form a high percentage of
this work. 13 The Magistrates Court is obliged to evaluate the usefulness of answers from
the assessment sheet and the weight to be given to these answers. The distinction between
factual matters and opinion is fundamental in determining the weight to be given to personality and attitude factors raised in the report. Highly speculative predictions such as
future behaviour should, it is suggested, be given low priority as a factor in determining
whether or not to grant parole.
The Procedures set Down in 5.265 of the Corrective services Act 1988
and the ReqUirement to Observe Natural Justice
The magistracy in Queensland has undergone significant organisational changes in the
past twelve months. The introduction of the Stipendiary Magistrates Act 1991 (Qld.)14
means that magistrates are now judicial officers who are, as the Attorney-General for
Queensland, the Hon. D. Wells stated, 'expected to act like judicial officers and measure
the propriety of their actions by the canons of judicial ethics.... The standards ... are
high ... nevertheless they are standards which can reasonably be expected of independent judicial officers' .15
The standard of conduct for magistrates requires, at the very least, accurate statutory
interpretation. In the present case, Bourke was interviewed by the community corrections
officer without his 'solicitor being present and the document, as completed by the officer,
was handed to the magistrate without being shown to the duty solicitor ... the magistrate
did not offer to make the report available for perusal by the duty solicitor' .16 A procedural
requirement under s.265(2) of the Corrective Services Act requires that the court 'shall
show a copy of the report to the defence and the prosecution' or, at the very least, the report is to be shown to a convicted person's legal representative and the prosecution. In
addition, s.265(4) requires the court to give the 'defence and the prosecution such an opportunity as it thinks reasonable to controvert the whole or any part of that report or statement'.
In the present case the magistrate did not follow the mandatory requirements set down
in SSe 265(2) and (4). Even if we accept that the magistrate was not aware of the legislation, natural justice requires that opportunity be given to any person adversely affected by
12 Ibid.
13 For example, in 1988-89 the Magistrates Court heard 265,321 charges, resulting in 195,330 summary
convictions. Some 6,418 people were imprisoned, 4,633 as sentenced prisoners and 1,785 as unsentenced
detainees. For a fuller analysis, see Criminal Justice Commission 1991, Crime and Justice in Queensland,
(Brisbane: Goprint), 28-29.
14 This Act also provides for the Chief Stipendiary Magistrate to discipline by way of reprimand a magistrate
who is ~seriously incompetent or inefficient in the discharge of the administrative duties of office' , Stipendiary
Magistrates Act 1991, s.10(2)(a).
15 Queensland Parliamentary Debates (1991), 1982.
16 [1993] 1 Qd.R. 43, 45.
Inadequate Probation Report
299
a report and therefore to be 'given an opportunity of controverting assertions made
therein' .17 The failure of the magistrate to follow procedural requirements under the corrective services legislation, and the failure to recognise the requirement of natural justice,
can only undermine the credibility of the professionalisation of the magistracy within
Queensland. Fair and consistent treatment of all people who appear before the magistrates courts is essential for the proper functioning of the criminal justice system.
Conclusion
Whilst this case indicates inadequacies in the preparation of court assessment sheets and
ambiguities with s.265 of the Corrective Services Act 1988, there are other more pressing
problems that emerge. It is clear that despite the above difficulties, if the Magistrates
Court had exercised its discretion by giving appropriate weight to the subjective elements
of the court assessment sheet and discounted any attempt to erode the exercise of its sentencing discretion, Bourke would not have been imprisoned. The worrying element of
this case is that when difficulties emerged the Magistrates Court did not exercise its discretion to provide 'a young person who could benefit from the supervision afforded by
probation' 18 the opportunity to do so. It can only be hoped that this case is an atypical one
and that the failure of the Magistrates Court to be vigilant is not an indication of a general
tendency to concentrate on output rather than quality. A solution to this problem may involve, in part, the implementation of a system of clinical legal education 19 covering statutory interpretation, training in procedural requirements and the substantive law required
for the magistrate's jurisdiction. Practitioners and commentators alike will no doubt
await with considerable interest to see the effects of this decision on practice in the lower
courts.
17 [d. 46. The right to a full and fair hearing and access to written particulars, especially in criminal cases where
adverse inferences are being drawn against the defendant, are well enshrined in the common law. See Tasker
v. Fullwood(1978) 1 N.S.W.L.R. 20,23-24. O'Reillyv. Mackman [1983] 2 A.C. 237, 275-276. This obligation
is also an international one. See The International Bill of Human Rights, especially Articles 5 and 10, which
was adopted and proclaimed by General Assembly resolution 217A(III) of 10 December 1948.
18 [1993] 1 Qd.R. 43,48.
19 The current system does not provide regular inhouse training for magistrates. Presently, within Queensland,
there is a StiPendiary Magistrates Conference held annually but the continuation of this depends on continued
funding from the Department of Justice. Continuing legal education is not a compulsory requirement as part
of the vocational and professional training of magistrates.