Kay v Chief Executive, Department of Corrective Services

[2000] QSC 367

SUPREME COURT OF QUEENSLAND

CITATION:

Kay v Chief Executive, Department of Corrective Services [2000] QSC 367

PARTIES:

ANTHONY LEE KAY
(applicant)
v
CHIEF EXECUTIVE, DEPARTMENT OF CORRECTIVE SERVICES
(respondent)

FILE NO:

8861 of 2000

DIVISION:

Trial Division

DELIVERED ON:

20 October 2000

DELIVERED AT:

Brisbane

HEARING DATE:

16 October 2000

JUDGE:

White J

ORDER:

The applicant Anthony Lee Kay be released.

CATCHWORDS:

CRIMINAL LAW - REMISSIONS - interpretation of regulation 21 of Corrective Services Regulations 1989 - whether remission of less than one‑third of sentence permissible.

Corrective Services Act 1988, s 122
Corrective Services Regulations 1989, reg 21, 27, 28

Re Bolton; ex parte Beane (1987) 162 CLR 514, followed
Felton v Queensland Corrective Services Commission [1994] 2 Qd R 490, considered
Lynde v Chief Executive, Department of Corrective Services [2000] QSC 346, SC No 1683 of 2000, 9 October 2000, considered
McCasker v Queensland Corrective Services Commission [1998] 2 QD R 261, considered
McSweeny v Queensland Corrective Services Commission No 11 of 1990, unreported decision of Kneipp J 2 March 1990
Smith v Corrective Services Commission (NSW) (1980) 147 CLR 134, followed

COUNSEL:

J Davidson for applicant
R Gotterson QC for respondent

SOLICITORS:

Edwards Solicitors for applicant
Crown Solicitor for respondent

1. WHITE J:  This is an application for a writ of a habeas corpus by a person detained at Borallon Correctional Centre.  He maintains that his detention is unlawful.

1. On 13 January 1995 the applicant was sentenced to 7 years imprisonment for armed robbery to take effect from 14 June 1994 (commencement of pre‑sentence custody).  On 25 July 1996 the applicant committed the offence of verbally threatening a Corrective Services officer.  He was sentenced on 25 October 1996 in respect of that offence to a 4 month term of imprisonment to be served cumulatively on the 7 year sentence he was then serving.

1. By virtue of regulation 28 of the Corrective Services Regulations 1989 (“the Regulations”) the Corrective Services Commission (“the Commission”) is precluded from granting remission in respect of any period of a sentence of imprisonment served by a prisoner before he commits any indictable offence or offence punishable on summary conviction.  However, it provides that

“The prisoner may become eligible by good conduct and industry for remission on the balance of his original sentence.”

1. On 5 October 1999 the delegate of the respondent (“the delegate”) indicated to the applicant in response an application for remission dated 21 September 1999 that he was not inclined to grant remission on the basis of poor institutional conduct.  On 23 November 1999 the delegate decided to refuse the applicant remission on the balance of his original 7 year sentence.

1. On 4 August 2000 the applicant wrote to the respondent expressing concern about the refusal to grant remission on the balance of his original sentence.  On 31 August 2000 the delegate reconsidered the applicant’s entitlement to remission on the balance of his sentence.  The delegate had previously taken into account in refusing the applicant remission on the balance of his sentence his conduct and industry prior to the offence of 25 July 1999.  When he reconsidered the applicant’s entitlement he, correctly, took into account the applicant’s conduct and industry from 25 July 1996.  The delegate set aside the decision of 23 November 1999 and granted remission on the balance of the sentence.

1. The view was taken that the remission operated only from the date it was granted, that is, 31 August 2000 and that the applicant’s 4 month cumulative sentence commenced on 1 September 2000.  This would result in a release date on 20 November 2000 with remission.  The applicant’s position is that the remission, having been granted, operated on the balance of the sentence from its commencement.  On a 5 year sentence (from 25 July 1996) the table guide in regulation 22 indicates a one‑third remission of 20 months.  The applicant contends that the grant of remission would take effect from mid November 1999 when the cumulative 4 month sentence should have commenced and that sentence would, in turn, attract remission.  The precise dates are not significant because on the applicant’s approach the date for release has long passed.

1. Thus the issue for determination is whether the grant of remission takes effect from the completion of two‑thirds of the balance of the sentence or when the grant is made. Or, in other words, what is the time at which the cumulative sentence commences, s 122 Corrective Services Act 1988. Remission is granted pursuant to regulation 21 subject to any reduction as a consequence of regulations 27 and/or 28. Regulation 21 provides that 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 … be granted a remission of one‑third of his sentence together with such other remission as is provided for in this Part.”

Although entitlement to remission does not accrue as of right, being dependent upon a favourable exercise of discretion, it has been authoritatively decided that a prisoner who is of good conduct and industry is entitled to a grant of remission unless the decision‑maker is positively satisfied after affording the prisoner procedural fairness that there are overriding considerations which compel in the exercise of discretion a contrary decision, Felton v Queensland Corrective Services Commission [1994] 2 Qd R 490 at 503 per Williams J; McCasker v Queensland Corrective Services Commission [1998] 2 Qd R 261 at 281 per Helman J. If the Commission is to give effect to the requirements of regulation 21 then the Chief Executive of the Commission is required to consider whether to grant remission at or prior to the two‑thirds point in the sentence, Lynde v Chief Executive, Department of Corrective Services [2000] QSC 346. This must be so because regulation 21 provides only for the granting of a one‑third remission of sentence and not less or more than that period of time. Although regulation 27 provides for a particular case it supports that conclusion. Regulation 27 provides that where a prisoner undergoes a separate confinement for a period of seven days on three or more occasions in the course of sentence and has not generally been of good conduct and industry the general manager of the prison is required to submit all relevant details together with his recommendation to the Commission before the date on which the prisoner might ordinarily have been discharged (or a cumulative sentence commenced), had he been of good conduct and industry, that is, after a grant of a one‑third remission.  In such a case the Commission determines whether a prisoner forfeits the whole or any part of the remission which he might otherwise have enjoyed.

1. Further, since the Regulations relating to remission affect the liberty of an individual they should be strictly construed and favourably so to the individual, Re Bolton; ex parte Beane (1987) 162 CLR 514 at 523 per Brennan J; Smith v Corrective Services Commission (NSW) (1980) 147 CLR 134 at 139.

1. The respondent’s position is that a grant of remission cannot operate until the discretion is exercised favourably and then not “retrospectively”.  Mr Gotterson QC for the respondent referred to McSweeny v Queensland Corrective Services Commission No 11/1990, unreported decision of Kneipp J Townsville 2 March 1990.  That case is not relevant to this application being concerned with regulation 27 which does allow partial remission.  In any event, no grant of remission had been made so the finding that the prisoner was lawfully in custody was, with respect, correct.  Since the decision in McSweeny the proper approach of the respondent to the question of remission for prisoners has been the subject of Court of Appeal consideration which has recognised more completely a prisoner’s entitlements to remission if he is of good conduct and industry.  It cannot be right that by failing to consider a prisoner’s entitlement to remission prior to or at the two‑third point in the sentence either deliberately or inadvertently or by taking irrelevant matters into consideration a prisoner can be deprived of remission.  It is not an answer to say that the prisoner has remedies under the Judicial Review Act 1992.

1. Mr Gotterson submitted that there is a powerful consideration against a result which includes a retrospective element because the Commission may be exposed to civil liability for wrongful detention during the period from the commencement of the last third of the sentence to the date of the favourable exercise of the discretion.  That submission fails to recognise the obligation on the Chief Executive to give due consideration in a timely way to each prisoner’s entitlement to be considered for a grant of remission.

1. Finally, I note that Douglas J on 17 October 2000 came to a similar conclusion on the date of operation of remission after a grant made after the two‑third mark when further considering the matter of Lynde (No 1683 of 2000).

1. The appropriate order pursuant to UCPR 592 is that the applicant, Anthony Lee Kay, be released.