Mallet v Dept of Corrective Services

SUPREME COURT OF QUEENSLAND

CITATION:

Mallet v Dept of Corrective Services [2000] QCA 510

PARTIES:

IAN PHILLIP MALLET
(applicant/appellant)
v
CHIEF EXECUTIVE, DEPARTMENT OF CORRECTIVE SERVICES
(respondent)

FILE NOS:

Appeal No 3743 of 2000
SC No 10893 of 1999

DIVISION:

Court of Appeal

PROCEEDING:

General Civil Appeal

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

15 December 2000

DELIVERED AT:

Brisbane

HEARING DATE:

31 October 2000

JUDGES:

McMurdo P, Mackenzie and Byrne JJ

Joint reasons for judgment of McMurdo P and Mackenzie J; separate reasons of Byrne J, concurring as to the orders made

ORDER:

1.Appeal allowed   

Order made below set aside2.    

Order that the issues of whether the prisoner should forfeit the whole or any part of the remission which he might otherwise have enjoyed on the sentence of 7 years imprisonment and whether the prisoner is entitled to remission be remitted to the authorised delegate to be considered according to law.3.    

Order that the respondent pay the appellant's costs of the proceedings in the Trial Division and of the appeal to be assessed4.    

CATCHWORDS:

CRIMINAL LAW – PROBATION, PAROLE, RELEASE ON LICENCE AND REMISSIONS – QUEENSLAND – appeal against dismissal of application for judicial review of decision refusing remissions – where s 27 Corrective Services Regulations applies – where no decision under s 27 made – whether s 27 requires a decision whether to forfeit remissions to be made – whether s 27 provides a basis additional to s 21 to grant remissions

Corrective Services Regulations 1989 (Qld), s 21, s 27
McCasker v The Queensland Corrective Services Commission [1998] 2 Qd R 261, referred to

COUNSEL:

J C Davidson for the appellant
M D Hinson SC for the respondent

SOLICITORS:

Poteri Woods for the appellant
Crown Solicitor for the respondent

1. McMURDO P and MACKENZIE J:  This is an appeal against a decision of a judge of the Trial Division dismissing an application for judicial review of a decision of the authorised delegate of the Department of Corrective Services refusing remission of the appellant's sentence.  The sentence with which the proceedings are concerned is a 7 year sentence which began on 14 August 1993. 

1. The application for a statutory order of review alleged that the decision maker erroneously made the decision under s 21 of the Corrective Services Regulations 1989, when the decision should have been made under s 27.  Part III of the Corrective Services Regulations consists of sections 21 to 28.  Section 21 is as follows:

"21.  General entitlement to remission.  (1)  A prisoner serving a sentence of imprisonment of 2 months or longer and who is of good conduct and industry may, at the discretion of the Commission and subject to the following provisions of this Part, be granted a remission of one-third of his sentence together with such other remission as is provided for in this Part.
........................... ."    

1. Section 22 is concerned with calculation of remission.  Sections 23 to 25 provide for acquiring remissions through overtask marks, holding minimum…