Jones v Queensland Community Corrections Board

[2001] QSC 30

[2001] QSC 030

THE SUPREME COURT

OF QUEENSLAND

BRISBANE  No. S  2341 of 2000

BETWEEN:

JEFFREY COLLIN JONES

Applicant

AND:

THE QUEENSLAND COMMUNITY CORRECTIONS BOARD

First respondent

AND:THE CHIEF EXECUTIVE DEPARTMENT OF CORRECTIVE SERVICES

Second respondent

REASONS FOR JUDGMENT

B.W. Ambrose J.

Delivered the  sixteenth day of February 2001

CATCHWORDS:     CRIMINAL LAW – PROBATION, PAROLE RELEASE ON LICENCE AND REMISSIONS – conviction and imprisoned on various  offences  –  concurrent  and  cumulative  sentences  – whether  period  of  parol  and  time  at  large  constituted  an

“unbroken  period  of  imprisonment”  within  the  meaning  of

“term of imprisonment” under section 10 of the Corrective Services  Act 1988 – whether the applicant is a “serious offender” under a ministerial guideline.

Corrective Services Act 1998, ss 10, 183(1), 184, 190

R v Booth (1999) A Crim R 288, considered

Counsel:  Mr P E Smith for the applicant

Mr A J Rafter for the first respondent

Mr M Plunkett for the second respondent

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Solicitors:  Russo and Coburn for the applicant

Dibbs Barker Gosling for the first respondent

Crown solicitor for the second respondent

Hearing Dates:            7 February 2001

[1]     The applicant is presently held in custody at the Borallon correctional centre.

[2]     The applicant has a very long history of criminal offences involving fraud.

[3]     On  22  July  1988,  he  was  sentenced  to  five  years  imprisonment  with  a recommendation for early release upon parole.

[4]     In 1989 and 1992 he was convicted of various offences for which he was sentenced to imprisonment.

[5]     On  27  May  1997  he  was  sentenced  to  imprisonment  for  four  years  with  a recommendation for early parole.

[6]     On 13 June 1997 he was sentenced to four years and eight months imprisonment with a recommendation for early parole.

[7]     Both sentences imposed in 1997 were made concurrent with that which he was currently serving.

[8]     On 15 June 1998 he was sentenced to a further two years imprisonment cumulative upon the sentence he was then serving imposed in 1997 with a recommendation for parole.

[9]     The contention of the applicant is summed up in paras 9 and 10 of his affidavit which reads –

“On the 15 June 1998 His Honour Judge Boyce sentenced me to two years   imprisonment   cumulative   on   the   current   term   with   a recommendation for early parole on 13 August 2000.  In the end result I believe my sentence was from 18 February 1997 a total of six years and eight months with a recommendation for early parole on 13 August 2000.  I believe that my full time release date without remission was 12 February 2004.

[10]     Both  respondents  contend  that  the  argument  advanced  by  the  applicant  in  his affidavit  - and advanced by his counsel upon the hearing of his application for review is insupportable.

[11]     I  do  not  propose  to  analyse  the  very  lengthy  material  much  of  which  is argumentative which is exhibited to the applicant’s affidavit.

[12]     The point argued is a short one and I propose to address it now.

[13] Under s 10 of the Corrective Services Act 1998 “term of imprisonment” is defined to mean that –

(a)       The term of a single sentence or

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(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 …  .”

[14] S 184 of the Corrective Services Act 1988 provides –

“184 Until the parole period has expired as referred to in s 183(1) or a prisoner is otherwise discharged from the term of imprisonment the detention for a period during Her Majesty’s pleasure imposed upon a prisoner, a prisoner released on parole shall be regarded as still being under sentence or detention and as not having suffered the punishment to which the prisoner was sentenced or as not having undergone detention during the period for which the prisoner was ordered to be detained.”

[15] S 183(1) of that act provides –

“183(1)  If in relation to a prisoner the parole period has expired without the Queensland Community Corrections board or a Regional Community Corrections board having made an order cancelling the parole  and  without  the  commission  by  the  prisoner  whether  in Queensland or elsewhere of an offence for which the prisoner is sentenced to a term of imprisonment whether during or after the expiration of the parole period the prisoner shall be deemed to have served the prisoner’s term of imprisonment or detention and shall be wholly discharged there from.”

[16] S 190 of the Corrective Services Act provides –

“190(1)  Upon the cancellation of a prisoner’s parole the original warrant  of  commitment  or  other  authority  for  the  prisoner’s imprisonment or detention shall again be enforced and no part of the time  between  the  prisoner’s  release  on  parole  and  the  prisoner recommencing to serve the unexpired portion of the prisoner’s term of imprisonment or detention other than the period (if any) during which  the  prisoner  was  kept  in  custody  consequent  upon  the prisoner’s parole being suspended should be regarded as time served in respect of the term”

[17]     It is by virtue of s 187 and 190 of the Corrective Services Act that the effect of a prisoner being sentenced to another term of imprisonment upon conviction for an offence committed during the parole period is to cancel the parole on the date of the offence and require the prisoner to serve the balance of the initial sentence with sentences subsequently imposed – R v Booth (1999) 105 A Crim R 288.

[18]     It  is  unnecessary  for  me  to  analyse  in  detail  the  history  of  the  applicant’s convictions for offences committed whilst on parole and the various sentences imposed upon him since the first sentence of five years was imposed on 29 July

1988.  It suffices to mention merely that he was admitted to parole on 27 March

1989 but was returned to custody on 20 August 1991 with his parole cancelled.  He escaped from custody in June 1992 and was sentenced for this offence to a term of imprisonment for eight months, which was cumulative to the earlier sentence.

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[19]     Clearly, in my view having regard to the criminal history of the applicant, the periods of time he spent on parole and at large after escaping from custody (which was really for a period of less than a fortnight) are to be treated as periods of time he was “liable to serve” as an “unbroken period of imprisonment” within definition

(b) of “term of imprisonment” under s 10 of the Corrective Services Act.

[20]     In my view, upon the material, it is clear that at all material times the applicant has been obliged to serve a period of imprisonment slightly in excess of ten years and eight months.

[21]     The relevance of this determination is that under a ministerial guideline a prisoner ordered to serve in excess of ten years imprisonment is to be treated as a “serious offender”.  The ministerial guideline which has been applied in determining the management of the applicant while in custody is made pursuant to s 139 of the Corrective Services Act 1998 and its validity has not been challenged.

[22]     In my view the applicant has not demonstrated that he is a person improperly categorised as a “serious offender” pursuant to the ministerial guideline.

[23]     To the extent that an effort was made to contend that more weight was given to the application of the guideline than should have been given, in my view, the point was not properly taken upon the terms of the application for judicial review and in any event there is nothing in the material to indicate that any miscarriage of discretion has occurred having regard to the content of that guideline.

[24]     I dismiss the application for review.

[25]     I order that the applicant pay the costs of the respondents to be assessed on a standard basis.