Day v Queensland Community Corrections Board

[1998] QSC 151

IN THE SUPREME COURT  

OF QUEENSLAND

Brisbane  No. 269 of 1998

Before Mr Justice Ambrose

[Day v Queensland Community Corrections Board]

BETWEEN:

RICHARD CLIFFORD DAY

Applicant
AND:

QUEENSLAND COMMUNITY CORRECTIONS BOARD

Respondent

REASONS FOR JUDGMENT - B.W. AMBROSE J.

Judgment delivered 31 July 1998

CATCHWORDS:     ADMINISTRATIVE LAW - judicial review - decision of Queensland

Community Corrections Board not to grant parole - alleged wrongful exercise of power - effect of remission on sentence.

Corrective Services Act 1988

Corrective Services Regulations 1989

Penalties and Sentences Act 1992

Counsel:Mr J. Davidson for the applicant

Mr M.R. Green for the respondent

Solicitors:Poteri Woods for the applicant

Crown Solicitor for the respondent

Hearing Date:              26 June 1998

REASONS FOR JUDGMENT - B.W. AMBROSE J.

Judgment delivered 31 July 1998

This is an application by a prisoner to review the decision of the respondent made on 15 October 1997 refusing him parole, home detention or release to work.

The applicant contends that the decision involved an improper exercise of statutory power on the ground that:

(a)the respondent took into account that the applicant had not completed a sexual offender's treatment programme; and

(b)it proceeded on the basis that the applicant was serving “a comprehensive sentence of 8½years” being the cumulative total of a six year sentence imposed for rape in June 1993 and a 2½ year sentence imposed for various offences of dishonesty in October 1993.

It is said that when the decision was made the applicant had already been granted a one-third remission of the sentence imposed for rape and that the respondent gave undue weight to the alleged failure of the applicant to complete a sexual offender's programme by that time, when in fact at the relevant time he was no longer serving a sentence for rape.

The applicant seeks an order quashing the decision of the respondent and a direction that it reconsider his applications according to law.

At the outset it is convenient to look at the sentences imposed upon the applicant.

On 17 June 1993 he was convicted of a number of offences including one of rape. A head sentence of six years was imposed for the rape conviction. No recommendation was made for eligibility for parole.

On 4 October 1993 (roughly four months later) the applicant was convicted of a number of property offences. A cumulative sentence of 2½ years imprisonment was imposed again with no recommendation for eligibility for parole. In imposing that sentence the learned sentencing judge observed, inter alia:

“I make allowance for the fact that --- you are due for parole in relation to a conviction for rape some time in 1996.

I had in mind imposing a term of six years imprisonment in respect of these offences, but taking into account the matters which I have mentioned, I order that you be imprisoned for a period of two years and six months to take effect upon the expiration of your current term of imprisonment or at least at the expiration of the period of deprivation of liberty in respect of that term of imprisonment. I recommend also that you receive counselling and treatment in respect of drug abuse ...”

In imposing that sentence his Honour obviously had regard to the totality principle to which the High Court referred in Mills (1988) 166 C.L.R. 59 at 62-63. Had it not been for the six year sentence for rape the applicant was then serving, the sentence imposed would have been much heavier - perhaps up to six years imprisonment.

It is clear having regard to the legislation that had it not been for the imposition of the cumulative term of 2½ years imprisonment in October 1993 the applicant would have become eligible for parole with respect to the six years imprisonment imposed on 17 June 1993 on 17 June 1996. Indeed the learned sentencing judge, when imposing the sentence of 4 October 1993, specifically adverted to this fact.

It is also clear that when imposing the sentence of 4 October 1993 the learned sentencing judge adverted to the possibility of the sentence of six years imposed for rape being partly remitted. He specifically directed that the commencement of the cumulative sentence for the property offences “take effect upon ... the expiration of the period of deprivation of liberty in respect of that term of imprisonment” - i.e. the expiration of the period of deprivation of liberty resulting from the imposition of the six year term for the rape offence.

It is clear that apart from the effect of the statutory provisions relating to eligibility for parole and remission of sentences of imprisonment and the legal effect of the “direction” upon sentence, the 2½ year sentence for the property offences would commence upon the cessation of the sentence for the term of imprisonment imposed with respect to the rape conviction.

On 20 April 1997 the applicant as a consequence of remissions granted by Queensland Corrective Services Commission was treated as having completed his imprisonment in respect of the sentence for rape and from 21 April 1997 was treated as having commenced to serve imprisonment in respect of his sentence of 2½years for the property offences.

Subsequent to 21 April 1997, the imprisonment of the applicant was treated as being referable solely to  the cumulative sentence of 2½ years imprisonment imposed on 4 October 1993.

The applicant in fact applied for parole on 16 February 1996. It was agreed that he was not then eligible to apply for parole;  ignoring altogether the effect of remissions he would not become eligible for parole before September 1997 - 4¼ years after June 1993.  He would however become eligible for parole, home detention and release to work on that date. The applicant again applied for parole, home detention and work release on 9 January 1997. It was agreed that on any basis this application also was premature. The respondent considered this application when the applicant was thought eligible and refused it on 15 October 1997. The approach of the Board is clearly set forth in its letter to the applicant of 3 December 1997 explaining why his application for parole, home detention and release to work had been refused on 15 October 1997.  

In that letter the reasons were given inter alia in the following terms:-

“...

The grounds then were stated as follows: ‘The Board is concerned that you have not adequately addressed your offending behaviour. Indicative of this is your description of yourself ... as a ‘social drinker’. The Board is also firmly of the view that you should undertake the Sex Offender Treatment Program.”

In response to your letter the Board will explain in some detail the basis of those reasons which it considers adequate.

The Board was advised by letter on 23 September 1997 which is on your file that you had been accepted as a referral to the Sex Offender Treatment Program and your name had been placed on the waiting list although it was not then known when you would be offered a position on the program.

The Board has noted your letter dated 3 September 1997 in which you question the Board’s specifying that you do the Sex Offender Treatment Program because your remissions have been granted in respect of the rape sentence. The Board regards you as serving a comprehensive sentence of 8½ years and that the parole you seek relates to the whole term; that you are an offender who has committed a sex offence who has applied for parole as to the balance of the 8½ year term and that you do not cease to be a sex offender because you have a remission credit in relation to the 6 years sentence.

If your term were to be regarded as two separate sentences logically you could argue that you are now in the remission period in respect of the rape and entitles to be at liberty but bound then at the end of the remission to return to begin the 2½ years sentence for stealing and other offences.

In the same vein you seem to be arguing that the first offence, namely rape, is over and done with and that the parole sought from this Board is for the 2½ years sentence. According to the Corrective Services Act this Board does not have power to approve release for a sentence of that duration.

As you appear to want this Board to continue to deal with your application it will proceed to elaborate on the reasons you have asked for.

The Board has been concerned with your criminal history which began in 1974 and covers most of the period leading up to 1993 when the current sentences were imposed and the fact that so many of the offences were alcohol-related notwithstanding occasions when you have stated otherwise and in particular that on the occasion when gave rise to your conviction of rape your behaviour was not drink related.

...

Two things are significant here. One that there appears to be ample material to establish your intoxication and two that you forced intercourse upon a woman who was refusing consent.

This in the Board’s view indicates your determination to avoid coming to grips with your potential criminality when drunk and that in that state you raped a woman if the allegations were accepted. This all bears upon your being sufficiently rehabilitated to be safely released into the community without significant risk to its welfare.

The Board has considered that in spite of your performing numerous programs and the number of positive reports you have received the balance is still at this time weighted against your early release.

...”.

Section 156 of the Penalties and Sentences Act 1992 provides (inter alia) as follows:-

“156.    Cumulative Orders of Imprisonment

(1)If - (a)  an offender -- has been sentenced to serve imprisonment for an offence; and

(b)is sentenced to serve imprisonment for another offence;

The imprisonment for the other offence maybe directed to start from the end of             the period of imprisonment the offender is serving, or has been sentenced to serve.

(2)Sub-section (1) applies whether the imprisonment for the first offence is being served concurrently or cumulatively with imprisonment for another offence.”

It is clear in the present case that the cumulative sentence of 2½ years imprisonment was imposed at a time when the applicant “was serving” the term of 6 years imprisonment imposed  for the rape offence.

It is also clear in my view from the terms in which the cumulative sentence of 2½ years was imposed on 4 October 1993 that it was directed that it commence at the cessation of deprivation of liberty flowing from the 6 year rape sentence imposed on 13 June 1993; by express terms it was to commence to be served on 21 April 1997.

It is clear from the terms of the letter from the respondent of 3 December 1997 that it regarded the applicant at that time as still serving a “comprehensive sentence” of 8½ years imprisonment - in spite of the fact that two years of the sentence of 6 years imprisonment for rape had been “remitted” on 18 September 1997. It is clear that the Board approached the applicant’s application for parole, home detention and release to work on the basis that he was then in the course of serving the 8½ year sentences of imprisonment imposed cumulatively in June and October 1993 and that he was then properly regarded as a “sex offender” - and presumably would be so regarded upon any application for parole until he had served the required period of those cumulative sentences.  On this approach he would not become “eligible for parole” with respect either to the rape offence or the other offences of dishonesty until September 1997. At that time when considering his application the respondent would consider him as having served 4¼ years of the 8½ year sentences imposed in June and October 1993 and would in effect with respect to the rape offence consider whether his failure to undertake a sex offender treatment program - even if his inability to do so was the fault of the system rather than his own fault personally - was a relevant consideration in determining whether he should be granted parole.                   

It is convenient at this stage to set forth other statutory provisions relevant to the arguments advanced in this case.

Section 165 of the Corrective Services Act 1988 (as amended) provides inter alia:-

“165.             Release on Parole

(1)Subject to s.166 the Queensland Community Corrections Board may by written order direct that -

(a)a prisoner who -

(i)is serving a term of imprisonment --- be released on parole on the date specified in the order. 

--

(1B)     A prisoner in relation to whom a parole order is made under   sub-section (1) or (1A) must be released on the date specified in   the order.

(2)The Queensland Community Corrections Board shall not make a parole order in relation to a prisoner mentioned in sub-section 1(a)(i) unless -

(a)the term of imprisonment that the prisoner is serving exceeds 5 years; or

(b)       --

(c)       --”.

There are other provisions of s.165 that relate to the power of a regional Community Corrections Board to make orders in respect of a term of imprisonment not longer than five years. It would be unprofitable to analyze the various constraints imposed upon regional Community Corrections Boards and the Queensland Community Corrections Board. They are matters that were not discussed or debated upon this application.

I approach the matters debated therefore on the basis that the application for parole was made in respect of a sentence which with or without remissions exceeded a period of five years. Because at the time of the consideration of the application there had been a purported remission of the six year sentence to a period of four years which expired on 20 April 1997, as it is observed in the letter from the Board to the applicant, unless at the time of the consideration of the application in October 1997 the cumulative sentence, part of which was still being served was regarded as being a sentence then in excess of five years the respondent would have had no power under s. 165 (ii)(a) to make a parole order upon his application.

Reference was made to Kelleher (1984-85) 14 A. Crim. R. 293 as to the effect of remissions on sentence. In that case a prisoner had his parole revoked subsequent to the grant of remissions which he contended shortened his sentence so that it expired some months prior to the revocation of his parole. It was held in that case that irrespective of the effect of the grant of remissions to take effect in the period during which his parole was expressed to operate, nevertheless, the legal consequence was that the parole was effectively revoked and the only effect of the remission granted was to reduce the liability of the prisoner to be held in custody under the imposed term of imprisonment by the extent of the remission.

Wilson J. summed up the opinion of the majority of the Court in that case at 301 when he observed:-

“The remission does not affect the length of the term of imprisonment to which the prisoner was sentenced. This term, the nominal term or head sentence, remains unaltered throughout the relevant history of the prisoner and serves as the benchmark by reference to which, subject to any forfeiture the amount of remissions are to be determined.”

At p. 295 Mason J. observed:-

“On their true construction the instruments granting the remissions do not operate so as to cancel or reduce the sentences. Wilson J. has pointed to the features in the instruments which compel this conclusion especially

(a)the expression ‘additional remissions’ which must be taken to mean remissions additional to those under s.4(1) of the Prisons Act 1952 (N.S.W.) (as amended), which necessarily operate simply by way of releasing the prisoner from the obligation to serve the sentence or part of it in custody; and

(b)Condition 7 which is so expressed as to make the remissions operate to ‘advance the date of the prisoner’s release’.

In my view the observations of the majority in Kelleher’s case support the proposition that the remission of two years granted by the Commission in this case did not have the effect of shortening the ‘term of imprisonment’ imposed on the rape charge in June 1993 to one of four  years for the purpose either of calculating the date of eligibility for parole or of determining an application for parole. 

Counsel for the applicant did not contend that the failure of the applicant to complete a sexual offenders treatment programme was completely irrelevant to the Board’s consideration as to whether he ought be granted parole once he became eligible to apply for it. It was contended however that the Board acted under the “misapprehension that he is serving a comprehensive 8½ years sentence. They are not having regard to the fact that he has been granted remission on that six year sentence.” Counsel referred to the fact that the Board specifically referred to the grant of remission in its decision.

Essentially counsel for the applicant argued that the respondent made an error in law in proceeding to consider his application as if the applicant was in the course of serving a cumulative term of 8½ years imprisonment for rape and the offences of dishonesty. It is contended that in adopting this approach the respondent was guilty of an error which probably affected its decision which ought be set aside with the direction that the application be re-heard on the basis that at the time the decision was made the applicant was no longer serving any sentence in respect of the rape conviction but was indeed only serving a sentence of 2½ years imposed for offences of dishonesty.

Before leaving the provisions of the Corrective Services Act 1988 it is convenient to set forth the definition of “term of imprisonment” contained in s.10 of that Act. That term is defined as follows:-

“‘Term of Imprisonment’ means -

(a)The term of a single sentence; or

(b)The unbroken period of imprisonment a person is liable to serve by virtue of a number of sentences, whether ordered to be served concurrently or cumulatively and whether imposed at the same time or at different times --”.

Counsel for the respondent relies upon the definition of “term of imprisonment” in s.10 contending that when considering an application for parole the respondent was entitled to have regard to the offences that had been committed for which the “term of imprisonment” had been imposed irrespective of the grant of the remission in April 1997. 

It was contended that the statutory provisions relating to remission are designed to achieve the proper administration of the penal institution in which a prisoner is incarcerated by providing a motivation for that prisoner to be of good conduct and to strive to overcome  anti-social activities while in custody. There are many authorities for the proposition that this is the principal object of the remission system which does not in fact have the effect of shortening the term of imprisonment imposed but only the liability to be kept in custody during the whole of that term;  it has the effect of rewarding the good behaviour of the prisoner by discharging him from actual custody prior to the expiration of his term of imprisonment.

On the other hand, the object of the parole legislation is to assist a prisoner to once more take his place in society after a significant period of incarceration with a view to avoiding the obvious pitfalls in the way of somebody being discharged from a correctional institution into the community at large without any supervision or constraint of the sorts to which release on parole is normally subject. Should a prisoner released upon parole breach that parole then the period during which he has enjoyed release upon parole is not treated as service of part of his sentence. Consequently, a prisoner returned to prison for breach of parole will be liable to serve the balance of the sentence which he was obliged to serve at the time of release upon parole - subject of course to the possibility of obtaining further release upon parole and subject also to his period of actual custody being reduced by remission for good behaviour during custody.

It was contended on behalf of the respondent that the primary object of the remission system was to provide a reward for good behaviour whilst in prison. There are many authorities to support this approach.

It was pointed out on behalf of the respondent that the principal objection advanced on behalf of the applicant was that the Board had given “too much weight” to the fact that by reason of the remission of the sentence for rape he had failed prior to April 1997 or indeed to yet complete the sexual offenders treatment programme for which he had applied and been recommended. 

It was not contended on behalf of the applicant that such a matter was completely irrelevant. It was contended only that the respondent must have given too much weight to it.

This contention,  in my view, would be quite insufficient to justify a judicial review of the respondent’s decision. Provided it had any relevance, it seems to me, it would be quite inappropriate for a court reviewing that decision under The Judicial Review Act to embark upon a consideration as to what weight, if any,  it ought be given. 

In Keogh v Queensland Community Corrections Board (unreported decision of Cullinane J., delivered 4 June 1998. His Honour observed:-

“In considering any application for parole the respondent is entitled to look at the whole of the relevant background including sentencing remarks made at the time  earlier offences were being dealt with.”

On the facts of the present case, many of the property offences for which the applicant was sentenced in October 1993 were committed whilst he was on bail on the rape charge of which he was convicted in June 1993.

In reply, counsel for the applicant summed up his basic contention -

“I am not saying that the same considerations in relation to remission apply to parole. I am saying he has been granted remission on a six year sentence and we have to look at what the legal effect of that is -- the statement of reasons (of the respondent) seems to completely dismiss it as being irrelevant saying:

‘No as far as we are concerned everything is the same. You are serving an 8½ year sentence and it is a comprehensive sentence for sex offences and property offences.’

The applicant contends that is an error of law, in which case he has only got to show -- that but for the error the decision would or might have been different.”

It was stressed for the applicant that at the relevant time his deprivation of liberty in respect of the sex offence had ended and that the respondent ought to have approached the matter from the point of view that the applicant was a person who had a sex offence conviction in his past but was now serving a property offence sentence. It was contended that where the respondent fell into error was in adopting the approach that the applicant was in the process of serving a composite sentence of 8½ years for rape and the property offences when considering his application for parole.

I must say that on my reading of Part IV of the Corrective Services Act it does not advert to whether an applicant for parole is serving any and what part of a composite cumulative sentence. While Section 165(1)(a)(i) categorizes a prisoner “who is serving a term of imprisonment”, s.10 of the Act makes it clear that “term of imprisonment” means “the unbroken period of imprisonment a person is liable to serve by virtue of a number of sentences including cumulative sentences, whether imposed at the same or at different times”. In my view at the time the respondent made its decision on the applicant’s application for parole, he was then serving the cumulative terms of imprisonment imposed upon him in June and October 1993 which constituted “the unbroken period of imprisonment” which he was liable to serve by virtue of the sentences then imposed irrespective of the effect of the remission of 2 years purportedly granted in April 1997 with respect to the six year sentence imposed in June 1993.

The power of the learned sentencing Judge in this case to make the 2½ years sentence for the property offences cumulative not upon completion of the six year sentence imposed in June of that year but rather upon the period of custody which the applicant was actually required to serve after remission, if any had been allowed, was not debated or canvassed by either side. The sentencing Judge seems to have approached s.156(1) of the Penalties and Sentences Act as if it gave him a discretion to make the cumulative sentence imposed commence either “from the end of the period of imprisonment the offender actually serves” or “at the end of the period of imprisonment he was sentenced to serve”. Having taken that view of the effect of section 156(1) he appears to have then elected to give a direction which would result in the applicant commencing to serve the 2½ year sentence, two years before the term of imprisonment of six years imposed upon him had expired.

For the reasons outlined in Kelleher to which I have referred, I have reservations as to whether the direction given by the learned sentencing Judge is authorized upon the proper construction of s.156(1). The construction adopted would make it uncertain at the time the second cumulative sentence was imposed, just what was the term of imprisonment imposed by both first and second sentences. Indeed, the very argument advanced by the applicant in this case would seem logically to lead to the conclusion that he ought to have been eligible to apply for parole, 1¼ years after commencing to serve his 2½ year term in April 1997. That would result in him becoming eligible to apply for parole only with respect to the second sentence imposed in July 1998. Unsurprisingly, this consequence of the adoption of the applicant’s contention was not pressed in this case.

It is clear that a remission of a period to be spent in custody by reason of the imposition of a sentence of imprisonment involves the exercise of an administrative discretion requiring inter alia the evaluation of the conduct of a prisoner while held in custody. In my view, it would be an unsatisfactory consequence of the construction of s.156(1) adopted by the sentencing Judge if at the time of the imposition of the second cumulative sentence it was impossible to ascertain the commencement and expiration of the term of imprisonment imposed by the sentencing Court - whatever may be the consequence of remission granted upon the actual period that the prisoner be held in custody pursuant to the imposition of those sentences. Both the application of the totality principle approved in Mills (supra) and the application of s.157 would be made more difficult without achieving any obviously desirable result.

There was no debate as to any practice of the Commission granting a series of remissions with respect to a series of cumulative sentences imposed in the absence of the sort of direction made by the learned sentencing Judge in this case. Whether there be such a practice was not canvassed. If there be such a practice, it would seem to me to result in making make less effective the attainment of the very purpose of the grant of remission which is to promote and encourage good conduct and adherence to relevant institutional rules by prisoners while in custody. There is no suggestion in the cases that an object of remission is merely to achieve the reduction of the period of time spent in custody upon imposition of a sentence of imprisonment.  One might think that by administratively “remitting” the liability of the applicant to serve any further part of a six year term upon the expiration of his service of four years of that term so that he is then deemed to commence to serve the 2½ year term which all things going well for him might be subject to a remission of 10 months, would, in this case, not merely remove a significant motivation to continue to display good conduct and to comply with the rules of the prison during the 20 month period of his incarceration which would elapse before he might obtain a further ten month remission but also reduce the time spent in custody under the cumulative sentence below two-thirds of the term imposed under the sentences. On the one hand a one-third remission of a cumulative term of 8½ years commencing in June 1993 would result in a release from custody in about February 1999. On the other a one-third remission of a term of 2½ years commencing in April 1997 would result in release from custody in December 1998.  

The general power of the Corrective Services Commission to grant remissions is found in the Regulations made under the Act which provide inter alia:-

“21. General Entitlement to Remission

(1)A prisoner serving a sentence of imprisonment of two months or longer and who is of good conduct and industry may, at the discretion of the Commission and subject to the following provisions of this Part, be granted a remission of one-third of his sentence together with such other remission as is provided for in this Part.”

As Street CJ in R v. Rogers (1987) 8 N.S.W.L.R. 236 at 238 observed:-

“The remission system is essentially an administrative mechanism aimed at encouraging good behaviour by prisoners and conversely providing for the opportunity of imposing sanctions for bad behaviour by cancellation of remissions. This is the sole justification for the existence of the system.”

While other matters such as the past history of a prisoner may also be given some consideration when considering the grant of remission (McCasker v Queensland Corrective Services Commission; Court of Appeal (unreported) 10495 of 1997); it is clear that the primary focus of the system of granting remission is on the prisoner’s conduct and industry while held in actual custody.

In my judgment when the respondent made its impugned decision the applicant was then serving sentences of 8½ years imposed upon him in June and October 1993. He had been kept in custody since June 1993 and whatever legal effect (if any) the purported remission to take effect on and from 20 April 1993 may have had, it had no effect either on the time when the applicant  became eligible to apply for parole or on the consideration which the respondent might give to each of the offences in respect of which the cumulative or “comprehensive” sentences were imposed. 

I dismiss the application.

I order that the applicant pay the costs of the respondent to be taxed.