R v Colonel
[2023] QDC 114
•15 June 2023 (Orders) 22 June 2023 (Reasons)
DISTRICT COURT OF QUEENSLAND
CITATION: R v Colonel [2023] QDC 114 PARTIES: THE QUEEN
v
ISAIAH TED JOSEPH COLONEL(defendant) FILE NO/S: 148/23 and 189/23 DIVISION: Criminal PROCEEDING: Ruling ORIGINATING District Court, Maroochydore COURT: DELIVERED ON: 15 June 2023 (Orders)
22 June 2023 (Reasons)DELIVERED AT: Maroochydore HEARING DATE: 13 June 2023 and 15 June 2023 JUDGE: Long SC DCJ CATCHWORDS: CRIMINAL LAW – SENTENCE – CUMULATIVE
SENTENCES – Re-opening of sentence pursuant to s 188 of thePenalties and Sentences Act 1992 to confirm the sentence imposed would be accumulated on earlier terms of imprisonment
for separate offending – Whether s 156A of the Penalties and Sentences Act 1992 is engaged – Where the defendant’s parole
order for an earlier period of imprisonment had been suspended.
LEGISLATION: Acts Interpretation Act 1954 (Qld) s 14A Corrective Services Act 2006 (Qld) ss 4, 194, 199, 205, 206, 209,
211, 214, 215 and Schedule 4Penalties and Sentences Act 1992 (Qld) ss 156A and 188 COUNSEL: J Kennedy for the Defendant
N Hamilton for the CrownSOLICITORS: Rosegold Legal for the Defendant
Office of the Director of Public Prosecutions for the Crown
On 15 June 2023, the Court returned to the sentence imposed upon the defendant on
13 June 2023 and made an order reopening that sentence pursuant to s 188 of the
Penalties and Sentences Act 1992 (“PSA”), so as to make an order, earlier omitted by
oversight and which had not just been foreshadowed but which underpinned the
calculations upon which the respective terms of imprisonment were imposed and the
defendants parole eligibility date was fixed. That is, in accumulation of the terms then
imposed in respect of numerous offences committed between 5 July 2021 and 5
August 2021 and after the defendant’s release on parole on 21 June 2021, upon an
existing liability of the defendant pursuant to a period of imprisonment constituted by
a sequence of prior sentencing orders.
That reopening and further order was not opposed for the defendant and supported by
the prosecution. This was in circumstances where, at the hearing on 13 June 2023, it
was not in contention that the defendant was to be sentenced as to some, but not all,
offences of a kind which are mentioned in Schedule 1 of the PSA and such as to
potentially engage the operation of s 156A of the PSA. At that time, and for the
defendant, a contention was that s 156A was not engaged in the particular
circumstances, because of the terms of subsection (1)(b) and because it was contended
that the relevant circumstances are that prior to the commission of any such offence,
action had been taken, on 9 July 2021, to suspend the parole order which had allowed
the defendant’s release from custody on 21 June 2021, in respect of an earlier
imposed period of imprisonment, due to other breaches of his parole order. All of the
scheduled offences were committed after 9 July 2021 and prior to his apprehension
and return to custody as from 5 August 2021. Alternatively, it was conceded that it
was otherwise open to the Court to take a view that accumulation was appropriate,
with due regard to any necessary adjustment of the terms to reflect that structure and
in achieving an appropriate sentence in total effect.
In the context of the prosecution maintaining a position of applicability of s 156A, in
respect of the scheduled offences, and the exigencies of then proceeding to deal with
the defendant, the alternative approach was adopted without any determination of the
point as to the application of s 156A. But, by oversight, the order to accumulate the
sentences was not announced.
Upon the reopening on 15 June 2023, the prosecution maintained its position as to the
applicability of s 156A but for the defendant the contrary contention was not further
pressed. Whilst it was an accepted position that the omission of the clearly intended
accumulation order was amenable to correction pursuant to s 188 of the PSA, that
would be all the more so, if, as is the now considered position of the Court and
consistently with the prosecution position, there would remain a failure of application
of s 156A in respect of the offences to which it is applicable.
Accordingly, it is appropriate to explain why it is the considered position of the Court
as to the necessity of the application of s 156A, in the context of the intricacies of the
Corrective Services Act 2006 (“CSA”) and particularly as they relate to parole of
prisoners and the implications for ongoing liability under sentences of imprisonment.
It was originally contended that s 156A is not engaged because of the inapplicability
of the conditions for the application of the section to the circumstances of the
defendant’s commission of the scheduled offences after his parole was suspended.
That is because it was contended the defendant’s situation is not caught by the
following provisions of s 156A(1)(b), in that he had been convicted of any scheduled
offence:
“(b) committed … while –
(i) a prisoner serving a term of imprisonment; or (ii) released on post-prison community based release under the Corrective Services Act 2006; or
(iii) on leave of absence, from a term of imprisonment, granted under the Corrective Services Act 2000 or the Corrective Services Act 2006; or
(iv) at large after escaping from lawful custody under a sentence
of imprisonment.”
A particular point of reference, in the original contention for the defendant, was that,
until his apprehension, the defendant, upon the suspension of his parole, was regarded
as being “unlawfully at large”.[1] And that, as further noted, the particular restriction
to the application of subparagraph (1)(b)(iv) is that an escape from lawful custody
has occurred.[2] The critical issue, therefore, is as to whether the defendant’s position
is within the meaning of s 156A(1)(b)(ii), in that he relevantly committed any
scheduled offence “while … released on parole under the [CSA]”.
[1] As that concept is defined in Schedule 4 of the CSA.
[2] The significance of that particular qualification is not in any sense undermined by notation that in
At the outset, it may be observed that the contention for the defendant could only be
because of some unintended consequence of the wording of s 156A, as it is tolerably
clear in applying, as is required pursuant to s 14A of the Acts Interpretation Act 1954,
a purposive approach to the interpretation of the provision, that it is intended to
require the imposition of accumulated terms of imprisonment for scheduled offences
committed by a person whilst still subject to the liability of earlier imposed
imprisonment. To that extent, it is apparent that subsection (1)(b) is intended to cover
the various situations where such a person remains subject to such liability, as
engaged under an earlier imposed sentence. And in that respect, it is apparent that
the concept of “a prisoner serving a term of imprisonment” is directed at a person
who is relevantly doing so in a custodial situation; and that the remaining
subparagraphs are intended to cover an understanding of other situations when a
sentenced person may remain liable in respect of an earlier imposed sentence but not
remaining actually incarcerated.
Apart from the concepts of “parole”, “sentence” and “term of imprisonment”,[3] none
[3] See s 4, PSA.
of the concepts engaged are the subject of definition in the PSA. It is only necessary
to note that the concept of parole is defined as meaning “parole under a parole order
granted under the Corrective Services Act 2006”. Neither, unfortunately, does the
section proceed in reference to the separately defined concept of “period of
imprisonment”.[4] Obviously and having regard to the specific references made to it,
this provision is meant to operate in the context of the operation of the CSA and also
in another sense of interrelationship in the operation of provisions in the PSA and the
CSA, as may be understood from the adoption of the concepts of “term of
imprisonment” and “period of imprisonment”, as defined in the PSA, for the purposes
of the CSA by s 4 and Schedule 4 of the CSA.
[4] Noting the importance of s 160F of the PSA, in requiring the fixing of relevant dates of parole
However, the issue remains as to the meaning of the provisions in s 156A and any
difficulty which arises may be seen in the simplicity of the concepts adopted in
s 156A, in comparison with the intricacies of related provisions of the CSA. In the
first instance, s 214 of the CSA may be noted as providing that “a prisoner released
on parole is taken to be still serving the sentence imposed on the prisoner”. In the
context of other provisions, this may be seen as engaging the concept of time so
served in the community, after release on parole, counting towards the prisoner’s
liability under the sentence. That is, at least subject to the operation of other
provisions in the CSA. There is an immediate sense of confirmation of that in s 215
of the CSA, which provides that:
“A prisoner is taken to have served the prisoner’s period of
imprisonment if the prisoner’s parole order expires without being
cancelled under section 205 or 209.”It may be noted that a prisoner may be released on parole by the making of a “parole
order”, which in Schedule 4 of the CSA (and leaving aside complications in respect
of an “exceptional circumstances parole order”) is defined to mean “an order
mentioned in s 194 or a court ordered parole order”. Put simply, a court ordered
parole order is that required to be issued by the Chief Executive upon a court fixing
a parole release date in respect of a sentence.[5] Here, the release of the defendant was
in the circumstances of the fixing of a parole eligibility date and pursuant to an order
of a type mentioned in s 194 and made by a parole board.
[5] See s 199 and definition of ‘court ordered parole order’ contained in the CSA.
Further, the generality of the provision in s 214 of the CSA must be viewed in the
context of the provisions of the CSA, in respect of suspension and cancellation of
parole and the undefined concept of “unexpired portion” of a period of imprisonment.
As far as a cancellation of a parole order is concerned, the effect of s 214 is
specifically curtailed upon any cancellation of the parole order, pursuant to s 211 of
the CSA. Indeed and pursuant to s 211(2)(a), the effect may be transported back to a
potentially earlier point of failure to comply with the parole order. A similar outcome
is achieved in respect of the operation of s 209(1) and s 211(1)(f) and (2)(c) as to the
date of commission of a relevant offence.
There are no such express provisions in respect of an order to suspend a parole order.
That is unsurprising given the nature and obvious effect of such an order, as may be
discerned from the following provisions:
(a) Section 205(2) provides for power to amend, suspend or cancel a parole order. (b) Section 205(5) provides that such an order “has effect from when it is made by the parole board”.
(c) Section 206 provides for the issuance of a warrant for the arrest of the prisoner, when there has been suspension or cancellation of the parole order, and thereby
a mechanism by which such a person may be returned to custody,
notwithstanding that there are other arrest powers which are engaged because
of the definition of such a person being “unlawfully at large”. Pursuant to
s 206(3)(b), in the case of cancellation, the stated effect of an arrest is a return
to a prison “to serve the unexpired portion of the prisoner’s period of
imprisonment”,[6] as that concept is otherwise informed by the operation of
[6] See also: s 210(3) of the CSA.
s 211.
(d) However, s 206(3)(a) is expressed differently in respect of the effect of the execution of a warrant issued upon the suspension of a parole order. It is in
terms of a return to a prison “to be kept there for the suspension period”. That
may be seen to be because, in Schedule 4 of the CSA, “suspend” is relevantly
defined as meaning “suspend for a fixed or indeterminate period”.
Accordingly, the concept of suspension is to different effect to that of cancellation of
a parole order under the CSA. By contrast, a suspension is not an act which
necessarily brings a parole order to a conclusion. However, necessarily or at least by
necessary implication, the effect must be in requirement of return to prison to serve
at least part of the remaining or unexpired liability in respect of a period of
imprisonment. Because that has effect from the date of suspension and in that sense,
without need for any separate provision in any further clarification, the suspension
itself acts in curtailment of the operation of s 214 to any different effect. That is, a
suspension order must necessarily be in terms and effect of requiring the prisoner to
return to prison to continue to serve the period of imprisonment as from the date of suspension. It is in that sense that, as had occurred here and where the defendant was
not apprehended or returned to custody until 5 August 2021, the intervening 27 days,
from the point of the suspension of the parole order, were added back to determine
his unexpired liability under the sentence, when he was returned to custody.
Despite these differences as to the ultimate effect of suspension and cancellation of a
parole order, the immediate effect is the same, in terms of disengaging both the effect
of the parole order, in terms of authorisation of the prisoner to be in the community
and the beneficial effect of s 214 of the CSA, [7] creating liability to arrest and return to
custody. But none of those considerations change the fact of the prisoners release on
parole, as the basis for that person’s presence in the community until there is an arrest
and return to custody.
[7] At least from the point of suspension or cancellation and in the case of cancellation and depending on particular contingencies, potentially from an earlier point.
Neither is this position affected by reference to the concept of a prisoner being
“unlawfully at large”, as is defined in Schedule 4 of the CSA, as including the situation
where “the prisoner remains in the community after … the prisoner’s parole order has
been suspended or cancelled”. This concept is not expressly referred to in s 156A
and may be noted to be only defined for the purposes of the CSA,[8] particularly in
engaging various provisions providing power for the arrest of such a person, with or
without a warrant issued for that purpose.[9]
[8] Section 4 of the CSA.
[9] See in particular: s 112 of the CSA and the notes to ss 206 and 210. It may also be noted that s 124(1)(k)
Returning to the language in s 156A(1)(b), it may be accepted that despite the general
application of s 214 of the CSA, there is difficulty in regarding the defendant as being
within subsection (1)(b)(i): “a prisoner serving a term of imprisonment”, because of
the specific provision in the next subparagraph in respect of a prisoner who is
“released on parole”. The language “release[d] on parole” appears in the CSA,
including in s 214 and in ss 194 and 199, in description of the effect of the making of
a parole order for a prisoner. Notably, the provisions which have been examined as
to the suspension or cancellation of a parole order and the effect upon a prisoner’s
liability to continue to serve a sentence, are not couched in such terms.
Accordingly, it does not follow that the fact of the suspension, or for that matter,
cancellation, of the parole order and the effects of such action under the CSA, as have
been noted, mean that the situation is not encompassed in s 156A(1)(b)(ii). On the
contrary, the language, in the context in which it appears, is completely amenable to
an understanding that the offences were committed while the defendant was released
on parole. There is no other explanation for his presence in the community at the
time of the commission of these offences; and until he was arrested, in accordance
with authority to do so consequential to the suspension of his parole, he remained so
released. The suspension of the parole order only affected the defendant’s ongoing
entitlement to so remain released on parole and liability to be returned to custody and
to serve the sentence in custody, at least as to some further part of the unexpired
liability from the point of suspension. In respect of any subsequent commission of
offences, there could be no suggestion that these are not properly to be regarded as
further breaches of that order, for instance as to any other action which might have
appropriately been taken, such as subsequent cancellation of the order.[10]
[10] Which has now been effected pursuant to s 209 of the CSA, due the sentence imposed on 13 and 15 June 2023.
In the context in which it appears in s 156A(1)(b)(ii) the defendant’s position is within
the meaning of the terminology “released on parole”, when the relevant scheduled
offences were committed and therefore engaging the effect of s 156A(3), in that any
“sentence of imprisonment imposed for the offence must be ordered to be served
cumulatively with any other term of imprisonment the offender is liable to serve”.
Schedule 4 of the CSA, includes the following definition: “escape includes being unlawfully at large”.
It may also be noted that there is further reference to the concept of a “prisoner at large” in the heading
to s 159, which provision serves to preserve the liability of a person who is convicted pursuant to s 142
of the Criminal Code of an offence of escaping from lawful custody, to “serve the imprisonment that
the offender would have served if the offender had not escaped in addition to any punishment imposed
for the offence”.
entitlement in respect of an offender’s period rather than any particular term of imprisonment.
proscribes an offence for a prisoner to “without reasonable excuse, be unlawfully at large”. In this
case, the understanding from the Court Report (Ex. 4) and explanation for prior suspension of the
defendant’s parole order, was that he had, by 9/7/2021, failed to report as required and was unable to
be located at his residential address pursuant to a curfew check.
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