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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [1998] QSC 151
Decision Date: 31 July 1998

CaseChat Overview and Summary

The applicant, Richard Clifford Day, sought judicial review of the Queensland Community Corrections Board's decision to refuse his parole, home detention, or work release. The Board's decision, made on 15 October 1997, was allegedly improper as it considered that the applicant had not completed a sexual offender's treatment program and based its decision on a comprehensive sentence of 8½ years, comprising a six-year sentence for rape and a 2½-year sentence for various offences of dishonesty. Day argued that he had already been granted a one-third remission of the six-year sentence for rape and that the Board gave undue weight to his failure to complete the treatment program. The applicant sought an order quashing the Board's decision and directing it to reconsider his applications according to law.

The court found that the Board was entitled to consider the applicant's criminal history and the fact that many of his offences were alcohol-related. The Board was also entitled to take into account that the applicant had not adequately addressed his offending behaviour and had not undertaken the Sex Offender Treatment Program. The court held that the Board did not err in considering the applicant's failure to complete the treatment program as a relevant factor in its decision, as he was still serving a comprehensive sentence of 8½ years. The court further found that the remission granted to the applicant did not affect the length of the term of imprisonment to which he was sentenced, and that the Board was entitled to consider the offences for which the term of imprisonment had been imposed. The court concluded that the Board's decision was not affected by the remission, and that the applicant's application for judicial review should be dismissed. The court ordered that the applicant pay the costs of the respondent to be taxed.

Orders