R v Bond

[2009] QDC 28

DISTRICT COURT OF QUEENSLAND

CITATION:	R v Bond [2009] QDC 28
PARTIES:	THE QUEEN v CHARLIE ANTHONY BOND (Defendant)
FILE NO/S:	70 of 2008
DIVISION:	Trial
PROCEEDING:
ORIGINATING
COURT:	District Court, Cairns
DELIVERED ON:	26 February 2009
DELIVERED AT:	Cairns
HEARING DATE:
JUDGE:	Everson DCJ
ORDER:
CATCHWORDS:	CRIMINAL LAW – Sentencing – Parole Release Date Penalties and Sentences Act 1992 s 160B
COUNSEL:	Mr P Wilson, Solicitor, D.P.P. Ms T Schwartz, Solicitor, ATSILS
SOLICITORS:	Office of Director of Public Prosecutions (Queensland) for the Crown Aboriginal and Torres Strait Islander Legal Service for the defendant

Introduction

1. On 1 December 2008 the defendant pleaded guilty to five counts of serious assault of a police officer. In respect of each count he was convicted and sentenced to imprisonment for six months with each period of imprisonment to be served concurrently.

2. Following submissions from counsel, a parole eligibility date of 1 May 2009 was fixed pursuant to s 160B of the Penalties and Sentences Act 1992 (“PSA”).

3. An astute officer of the Department of Corrective Services took issue with the fixing of a parole eligibility date and on 18 February 2009 a hearing took place whereby the sentence was re-opened and ultimately a parole release date of 1 May 2009 was ordered in place of the parole eligibility date fixed at the hearing on 1 December 2008.

4. In the course of the hearing on 18 February 2009 it became evident that there was considerable confusion as to the correct application of s 160B in the circumstances. I received the benefit of comprehensive written submissions from Mr Wilson of the Office of the Director of Public Prosecutions. Upon making the order on 18 February 2009 I indicated that I would provide written reasons to the parties. These are the written reasons.

   Relevant facts

5. The five counts of serious assault of a police officer all occurred on 10 July 2007. The defendant has an extensive criminal history. Relevantly, on 20 December 2006 the defendant was convicted of a number of offences and sentenced to three periods of eight months imprisonment and other lesser periods of imprisonment concurrently with a parole eligibility date of 20 February 2007.

6. Subsequently, on 17 September 2007 the defendant was convicted of one count of entering premises and committing an indictable offence for which he was sentenced to a period of four months imprisonment with a parole eligibility date of 2 November 2007. The four month period of imprisonment would therefore have expired on 17 January 2008. There are no further entries in the defendant’s criminal history.

   Relevant legislation

7. Section 160B of the PSA relevantly states:-

   “…
   (2) If the offender has a court ordered parole order cancelled under
   the Corrective Services Act 2006, sections 205 or 209 during the
   offender’s period of imprisonment, the court must fix the date the
   offender is eligible for parole.
   (3) If subsection (2) does not apply, the court must fix a date for the

   offender to be released on parole.

   …”

8. The term “period of imprisonment” is defined in s 4 of PSA in the following terms:-

   “period of imprisonment” means the unbroken duration of imprisonment that an offender is to serve for 2 or more terms of imprisonment, whether –

(a)	ordered to be served concurrently or cumulatively; or
(b)	imposed at the same time or different times;

and includes a term of imprisonment.”

1. Subsequently in s 4 the expression “term of imprisonment” is defined in the following terms:-

   “term of imprisonment means the duration of imprisonment imposed for a single offence, and includes the imprisonment an offender is serving, or is liable to serve –

(a)	for default in payment of a single fine; or
(b)	for failing to comply with a single order of a court.”

1. The expression “period of imprisonment” is further defined in s 160 of the PSA in the following terms:-

   “period of imprisonment means the period of imprisonment that

   includes the term of imprisonment mentioned in section 160A.

   Note –

   Period of imprisonment therefore includes the term of imprisonment a court is imposing at the time of sentence.”

2. Section 14(4) of the Acts Interpretation Act 1954 states that a note in an Act is part of the Act.

3. Section 160A of the PSA states that s 160B applies “if a court is imposing a term of imprisonment on an offender for an offence.”

4. Section 205 of the Corrective Services Act 2006 (“CSA”) allows a parole board to “amend or suspend a parole order if the prisoner subject to the parole order is charged with committing an offence”.[1]

   [1] S 205(2)(c)

5. Section 209 of the CSA relevantly states:-

   “(1) A prisoner’s parole order is automatically cancelled if the prisoner is sentenced to another period of imprisonment for an offence committed, in Queensland or elsewhere, during the period of the order.

   (2) Subsection (1) applies even if the period of the parole order has

   expired.

   …”

   The issue

6. At the time the defendant committed the offences for which he was sentenced on 1 December 2008 he was subject to a court ordered parole order which was imposed by the Cairns Magistrates Court on 20 December 2006. This court ordered parole order was cancelled, I am informed, pursuant to s 205 of the CSA upon him being charged with committing the offences for which he was sentenced on 1 December 2008. The question to be determined is whether this occurred “during the offender’s period of imprisonment” pursuant to 160B(2) of the PSA. If so, the court must fix a parole eligibility date, if not, the court must fix a parole release date pursuant to subsection (3).

   Conclusion

7. It is clear that the term “period of imprisonment” in s 160B(2) is intended to refer to the period of imprisonment, the subject of the sentence being imposed by the court, at the time of the sentence hearing together with any unrelated sentences of imprisonment still being served and is not intended to have a retrospective effect. The inclusive nature of the definitions set out above has led to some confusion in this regard, however the correct approach is revealed in s 4 of the PSA where the definition refers to “the unbroken duration of imprisonment that an offender is to serve”. The last entry on the defendant’s history, when he was sentenced to four months imprisonment by the Cairns Magistrates Court on 7 September 2007, resulted in a term of imprisonment expiring on 17 January 2008. There was therefore not a continuous or unbroken duration of imprisonment from this date. Section 160B therefore acted prospectively and required the court to fix a parole release date pursuant to subsection (3) in the circumstances.