Hooson v Corrective Services - [2005] QSC 22

SUPREME COURT OF QUEENSLAND

CITATION:

Hooson v Corrective Services [2005] QSC 022

PARTIES:

DANIEL PETER HOOSON
(applicant)
v
DEPARTMENT OF CORRECTIVE SERVICES
(respondent)

FILE NO/S:

BS No 1224 of 2005

DIVISION:

Trial Division

PROCEEDING:

Application

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

25 February 2005

DELIVERED AT:

Brisbane

HEARING DATE:

18 February 2005

JUDGE:

Holmes J

ORDER:

The application for a declaration is dismissed.

CATCHWORDS:

CRIMINAL LAW – JUDGMENT AND PUNISHMENT – SENTENCE - CUMULATIVE SENTENCES – SUSPENDED SENTENCES - CONDITIONAL RELEASE ORDERS – ELIGIBILITY FOR CONDITIONAL RELEASE – s76 (1)(c) of the Corrective Services Act 2000 requires service of two-thirds of the period of imprisonment before eligibility for conditional release -where applicant sentenced to cumulative terms of imprisonment – where second sentence suspended after 14 days – whether two-thirds of period of imprisonment served at two-thirds of aggregate of first sentence and non-suspended part of second sentence - whether service of two-thirds of both sentences as imposed required for eligibility

Corrective Services Act 2000 (Qld), s 76
Penalties and Sentences Act 1992 (Qld), s 4, s 144, s 145, s 147

Smith v Queensland Community Corrections Board [2002] 1 Qd R 448, considered

Swan v Chief Executive, Department of Corrective Services (2004) QCA 159, considered
R v Walton; Ex parte Attorney General (1997) QCA 411, considered

COUNSEL:

Mr Chowdhury for the applicant
Mr Logan SC for the respondent

SOLICITORS:

Legal Aid Queensland for the applicant
Crown Solicitor for the respondent

HOLMES J.: On 10 December 2004 the applicant was sentenced in the Magistrates Court to three months imprisonment for an offence of breaching bail, while a further, cumulative sentence of six months imprisonment was imposed on him for a number of offences of dishonesty. The latter sentence, however, was suspended after 14 days. The issue here is whether he is presently eligible for conditional release pursuant to s 76 of the Corrective Services Act 2000. That provision permits early release of a prisoner who has been of good conduct and industry on conditions considered appropriate; but eligibility for it depends on the existence of the premises set out in s 76(1):

“A prisoner is eligible for conditional release only if –
(a) the prisoner is serving a period of imprisonment for an offence or offences that the prisoner committed after the commencement of this section; and
(b) the period of imprisonment is 2 years or less; and
(c)the prisoner has served two-thirds of the period of imprisonment; and
(d)the prisoner has not been convicted of an offence committed during the period of imprisonment; and
(e) the prisoner is not being detained on remand for another offence.”

The crucial question in the present case is whether the applicant has “served two thirds of the period of imprisonment”. On his behalf it is submitted that the relevant period of imprisonment is that which must actually be served by him, that is to say three months with the cumulative period of 14 days. Two-thirds of that period expired on 19 February,…

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.

Continue reading Hooson v Corrective Services

Details

AGLC: Hooson v Corrective Services [2005] QSC 22
Case: [2005] QSC 22
Decision Date: 25 February 2005

CaseChat Overview and Summary

The case of Hooson v Corrective Services involved the applicant, Hooson, challenging the interpretation and application of s76(1)(c) of the Corrective Services Act 2000, which pertains to the eligibility for conditional release. The applicant was sentenced to two terms of imprisonment, one of which was suspended after 14 days. The crux of the dispute was whether the applicant needed to serve two-thirds of the aggregate of the first sentence and the non-suspended portion of the second sentence, or if two-thirds of each sentence as originally imposed was required to be served. The matter was brought before the court to clarify the legal requirements for conditional release in such circumstances.

The primary legal issue was the interpretation of s76(1)(c) of the Corrective Services Act 2000, specifically how it applied to cumulative sentences where one of the sentences was partially suspended. The court needed to determine whether the requirement to serve two-thirds of the imprisonment period was calculated based on the aggregate of the sentences or on the sentences as they were originally imposed. This involved an analysis of the legislative intent behind the statutory requirement and its practical application to the facts of the case.

In resolving the matter, the court examined the statutory language and legislative purpose behind s76(1)(c). The court found that the statutory requirement was intended to ensure that a substantial portion of the custodial sentence was served before conditional release could be considered. The court concluded that the two-thirds requirement applied to the aggregate of the sentences served, including the non-suspended portion of the second sentence. As the applicant had not served the requisite two-thirds of the aggregate sentence, they were not eligible for conditional release at the time of the application. Consequently, the court dismissed the applicant's application for a declaration that they were eligible for conditional release.

The court's final orders were to dismiss the application for a declaration that the applicant was eligible for conditional release under s76(1)(c) of the Corrective Services Act 2000. The court held that the statutory requirement applied to the aggregate of the sentences served, and as the applicant had not fulfilled this requirement, the application was unsuccessful.

Orders

Orders of the court

The application for a declaration is dismissed.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

HOLMES J

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Ratio Decidendi

Legal Principle Established

Established by: HOLMES J

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CITATION:	Hooson v Corrective Services [2005] QSC 022
PARTIES:	DANIEL PETER HOOSON (applicant) v DEPARTMENT OF CORRECTIVE SERVICES (respondent)
FILE NO/S:	BS No 1224 of 2005
DIVISION:	Trial Division
PROCEEDING:	Application
ORIGINATING COURT:	Supreme Court at Brisbane
DELIVERED ON:	25 February 2005
DELIVERED AT:	Brisbane
HEARING DATE:	18 February 2005
JUDGE:	Holmes J
ORDER:	The application for a declaration is dismissed.
CATCHWORDS:	CRIMINAL LAW – JUDGMENT AND PUNISHMENT – SENTENCE - CUMULATIVE SENTENCES – SUSPENDED SENTENCES - CONDITIONAL RELEASE ORDERS – ELIGIBILITY FOR CONDITIONAL RELEASE – s76 (1)(c) of the Corrective Services Act 2000 requires service of two-thirds of the period of imprisonment before eligibility for conditional release -where applicant sentenced to cumulative terms of imprisonment – where second sentence suspended after 14 days – whether two-thirds of period of imprisonment served at two-thirds of aggregate of first sentence and non-suspended part of second sentence - whether service of two-thirds of both sentences as imposed required for eligibility Corrective Services Act 2000 (Qld), s 76 Penalties and Sentences Act 1992 (Qld), s 4, s 144, s 145, s 147 Smith v Queensland Community Corrections Board [2002] 1 Qd R 448, considered Swan v Chief Executive, Department of Corrective Services (2004) QCA 159, considered R v Walton; Ex parte Attorney General (1997) QCA 411, considered
COUNSEL:	Mr Chowdhury for the applicant Mr Logan SC for the respondent
SOLICITORS:	Legal Aid Queensland for the applicant Crown Solicitor for the respondent