Gympel v Department of Corrective Services, Chief Executive

[2001] QSC 50

SUPREME COURT OF QUEENSLAND

CITATION:              Gympel v. Chief Executive, Department of Corrective

Services [2001] QSC 050

PARTIES:                 PETERLE GYMPEL

(applicant)

v

CHIEF EXECUTIVE, DEPARTMENT OF CORRECTIVE SERVICES

(respondent) FILE NO/S:  1120/01

DIVISION:               Trial Division at Brisbane

PROCEEDING:       Civil Trial

ORIGINATING COURT:

Brisbane

DELIVERED ON:    1 March 2001

DELIVERED AT:     Brisbane

HEARING DATE:     22 February 2001 and further written submissions received

26 and 27 February 2001

JUDGE:  White J

ORDER:  Dismiss the application

CATCHWORDS:       CRIMINAL LAW - PARTICULAR OFFENCES - JUDGMENT AND PUNISHMENT - SENTENCE  - FACTORS TO BE TAKEN INTO ACCOUNT - MISCELLANEOUS MATTER - REMISSION, PAROLE AND PRISONER CLASSIFICATION - whether prisoner granted leave of absence from prison remains eligible to be considered for remission of sentence.

STATUTES - ACTS OF PARLIAMENT - INTERPRETATION - RULES OF CONSTRUCTION - WHERE MEANING AMBIGUOUS OR UNCERTAIN - PRESUMPTIONS AS TO LEGISLATIVE INTENT - OTHER PRESUMPTIONS - whether leave of absence to seek employment extinguished both accrued and future entitlements - revision extinguished by Corrective Services Act (Act No. 63 of 2000) S 207B.

McCasker v Queensland Corrective Services Commission

[1998] 2 Qd R 261

Corrective Services Act 1988

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Corrective Services Regulations 1989

Corrective Services Act (No. 63 of 2000) COUNSEL:  Mr J Davidson for the applicant

Mr M Hinson SC for the respondent

SOLICITORS:          Edwards Lawyers for the applicant

Crown Solicitor for the respondent

[1]     The applicant, who is a prisoner serving a sentence of imprisonment of four years one month and three days, seeks certain declarations about his eligibility for a grant of remission pursuant to the Corrective Services Regulations 1989.

[2] The applicant was granted leave of absence by instrument dated 15 March 2000 from 14 March 2000 for a number of the purposes set out in s 61(1) of the Corrective  Services  Act 1988 (“the Act”) including to work and to seek employment, as described in s 61(1)(b) and (c). The applicant was transferred to Western Brisbane Community Corrections Centre to work.

[3]     The applicant experienced some health problems and contacted staff at the Moreton Correctional Centre where he had been detained prior to release.  It was decided that he should return to the Moreton Correctional Centre for observation and to monitor his medication.

[4]     The applicant’s release to work status was revoked on 18 March 2000, the date he returned to the Moreton Correctional Centre, although he deposes that he was not aware of this revocation at the time.

[5] The applicant was informed by staff at the Centre in December last year that by virtue of an amendment to the Act made in November 2000 he had no entitlement to the grant of remission on the sentence that he was then serving.

[6]     The Act was relevantly amended by the insertion of s 207B (Act No. 63 of 2000)

which commenced on 24 November 2000.  It applies to a

“…   prisoner who was, before the commencement of this section, or who is, after the commencement of this section -

(a)granted leave of absence, under section 61(1)(b) or (c), to engage in or seek employment; or

(b)released,  under  section  86,  to  serve  a  period  of  home detention; or

(c)        released on parole under an order made under section 165.”

The applicant was granted leave of absence, inter alia, under s 61(1)(b) and (c) for the purposes set out therein. Section 61(1) of the Act provides

“Subject to this Act the chief executive may, by instrument and subject to conditions as the chief executive thinks fit, grant leave of absence to a prisoner for any of the following purposes-

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(a)         to participate in an approved program;

(b)         to engage in employment;

(c)to seek employment to be undertaken while the prisoner is a prisoner or upon being discharged or released on parole;

(d)        to attend any place for educational or training purposes;

(e)         to prepare the prisoner for community resettlement;

(f)          to attend any place for medical, dental or optical treatment;

(g)        compassionate purposes;

(h)         any other purpose approved by the chief executive.”

[7] Mr Davidson, who appeared for the applicant, submitted that since the applicant was granted leave of absence to engage in other activities authorised by s 61(1) as well as those set out in (b) and (c) it cannot have been the intention of the legislature that he should be a person to whom s 207B refers. Although the Director-General of the Department of Corrective Services gave approval for the applicant to be “granted Release to Work” (“AJB 3” to the affidavit of Andrew James Brown sworn 27 February 2001) it is the instrument (exhibit 1) by which the prisoner is granted leave of absence from secure custody, s 61(1).

[8]     It is claimed that the legislature intended that only those prisoners whose leave of absence under s 61 was granted solely for the purposes set out in (b) and (c) should have their entitlement to remission extinguished. That is, a prisoner does not lose his entitlement to remission if he is additionally released for any of the purposes set out in (a), (d), (e), (f) or (h).

[9]     This applicant’s leave of absence set out in the instrument was not only

“…     release  to  work  at  West  Brisbane  Community  Corrections Centre;  to  engage  in  employment  as  per  authorisation;  to  seek employment as per authorisation …  ”

but also

“…   to prepare the prisoner for community resettlement; …   to attend any place for education or training purposes” (exhibit 1).

[10] If the construction contended for by Mr Davidson were to prevail it might be thought that it could be defeated by the chief executive executing one instrument granting leave of absence for s 61(1)(b)/(c) purposes and another for any other of s 61(1) purposes. It is the leave of absence to work or to seek work that causes section 207B to operate. That a prisoner might be granted leave of absence in the same instrument for any other of the purposes expressed in s 61(1) does not, in my view, mean that s 207B has no effect. It is the presence of the purposes encompassed in s 61(1)(b) and (c) which is sufficient. The applicant is, therefore, a prisoner to whom s 207B applies.

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[11]     Mr  Davidson,  in  his  further  written  submissions,  sought  leave  to  amend  the application to seek a declaration that s 207B did not apply to the applicant.  Because of the conclusion to which I have come, such leave ought not be granted.

[12]     By s 207B(2) such a prisoner’s

“…   eligibility for remission -

(a)if  a  prisoner  was  granted  leave  of  absence  before  the commencement of this section - it is taken to have been extinguished  when  the  prisoner  was  granted  leave  of absence;  …  ”

[13]     The meaning of “extinguish” is clear.  It is to “destroy, abolish …  annihilate”, The Australian Concise Oxford Dictionary, 7th edition.  Mr Davidson, submitted that only  that  which  exists  can  be  extinguished  and,  accordingly,  the  amendment operates only to extinguish any remission entitlement for which the applicant was then eligible at the time of release.  The amendment does not, he submitted, affect the applicant’s capacity to become eligible anew for future remission on the balance of his sentence after being returned to secure custody.

[14]     The  remission  regime  presently  operating  in  Queensland  is  contained  in  the Corrective  Services  Regulations  1989.    A  general  entitlement  to  remission  is contained in regulation 21.  A prisoner who is of “good conduct and industry” may, at  the  discretion  of  the  Corrective  Services  Commission  and  subject  to  other regulations  concerning  remission  “be  granted  a  remission  of  one-third  of  his sentence together with such other remission as is provided for”.

[15]     Regulations 23 (“over task marks”), 24 (“minimum or open security regime”) and

25 (“Christmas Day”), provide for additional ways in which a prisoner may become eligible for additional remission on sentence.

[16]     Regulation 27 concerns the way in which a prisoner might forfeit all or any part of the  remission  which  he  might  otherwise  have  enjoyed  due,  in  effect,  to misbehaviour.  Finally, regulation 28 provides that if a prisoner, in the course of his term of imprisonment, commits any indictable offence or offence punishable on summary conviction he may not be granted remission in respect of the period of imprisonment up to that occurrence.  He may  “become eligible by good conduct and industry for remission on the balance of his original sentence”.

[17]     Although  a  prisoner  who  fulfils  the  criteria  set  out  in  the  Corrective  Services Regulations  has  an  expectation  of  being  granted  remission  on  his  sentence, nonetheless, the further step of the favourable exercise of the Corrective Services Commission’s discretion must occur before he is granted remission,  McCasker v Queensland Corrective Services Commission [1998] 2 Qd R 261.

[18]     At the heart of Mr Davidson’s submission is the contention that the “eligibility for remission” to which s 207B(2) refers is to an existing or presently vesting eligibility for  remission,  absent  the  final  discretionary  step,  and  does  not  refer  to  any remission to which a prisoner may become entitled in the future.  There is nothing in the wording of the section which would so confine “eligibility”.  If a prisoner is granted leave of absence from prison to work or seek employment or is released to

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home detention or on parole, it is the clear legislative intent that that prisoner ceases to be eligible to be considered for remission on the prisoner’s sentence.  This is so, not only in respect of any  “accrued” entitlement but also any future entitlement which might otherwise have arisen when the prisoner returns to secure custody before the expiration of his sentence.  The wording does not suggest a regime similar in effect to that contained in regulation 28.

[19]     Mr Davidson submitted that this could lead to an absurd or unjust result which was the case here where, through no wrong-doing, the applicant has been returned to secure custody after release to work.  There are other regimes of early release available to a prisoner apart from remission, such as parole and release to work and home detention if a prisoner is fit for them, see “SRH 3” to the affidavit of Stephen Richard Hoskins filed 5 February 2001.   Prisoners who have applied for and been granted release into the community in the circumstances set out in s 207B(1) will be required to serve the whole of the  sentence imposed upon them whether in prison or partly in prison and partly in the community without remission.

[20]     It may be noted that a new Corrective Services Act (No. 63 of 2000) was assented to on 24 November 2000.  It is anticipated to commence in April 2001.  Provisions relating to remission are contained in that Act in Chapter 2 Part 2 Division 11. That division incorporates s 207B.

[21]     The applicant seeks a number of alternative declarations relating to the various categories of remission available in the Corrective Services Regulations or, in the further alternative, a declaration that the extinguishment applies only in respect of eligibility prior to 14 March 2000, or, a declaration that he is not precluded from becoming eligible for remission in respect of the period of imprisonment to be served upon his return to secure custody on 18 March 2000.  For the reasons which I have expressed, none of those declarations ought to be made.

[22]     The order is that the application be dismissed.