R v H

[1996] QCA 296

IN THE COURT OF APPEAL	[1996] QCA 296
SUPREME COURT OF QUEENSLAND	C.A. No. 163 of 1994
Brisbane
Before	Fitzgerald P. Pincus J.A. White J.
[R. v. H]

T H E Q U E E N

v.

H

(Applicant)

FITZGERALD P.
PINCUS J.A.

WHITE J.

Judgment delivered 23/08/1996

REASONS FOR JUDGMENT - THE COURT

Order that the time during which the applicant was specially treated as an appellant within the meaning of sub-s. 671G(3) of the Code count as part of the term of his imprisonment under his sentence.

CATCHWORDS:	NOTICE OF MOTION - sexual offender - application for an order that the period of incarceration commencing from the institution of an appeal to the dismissal of the appeal plus further days relating to the applicant’s application for leave to appeal to the High Court be considered as part of the applicant’s term of imprisonment under his original sentence - applicant elected an “appellant status” with respect to his sentence -application not opposed.
ss. 75(2), 75(3) and 76 Corrective Services Act 1988 s. 671G(3) Criminal Code (Qld.) 1899 R. v. Pettigrew (CA 364 and 466/95, unreported, 19 July 1996)
Counsel:	J. Jerrard Q.C. for the Applicant P. Rutledge for the Crown
Solicitors:	Prisoners’ Legal Service Inc. for the Applicant Queensland Director of Public Prosecutions for the Crown
Date(s) of Hearing:	8 August 1996
REASONS FOR JUDGMENT - THE COURT

Judgment delivered 23/08/1996

On 14 April 1994, the applicant was convicted of a number of sexual offences against his daughter, then under 16, and sentenced to imprisonment for seven years. An appeal to this Court against his conviction was instituted on 22 April 1994, and on 24 November 1994, the Court (Macrossan C.J., Pincus J.A. and Ambrose J.) dismissed the appeal. An application for special leave to appeal to the High Court was instituted on 13 December 1994. We infer that that application was not proceeded with or failed. Although the applicant has been incarcerated since his conviction on 14 April 1994, the period between the institution of his appeal to this Court on 22 April 1994 and the dismissal of that appeal on 24 November 1994, 195 days, plus three further days related to his application for special leave to appeal to the High Court, presently do “not count as part of any term of imprisonment under [his] sentence” by virtue of sub-s. 671G(3) of the Criminal Code. His present application is for an order that those days do “count as part of [the] term of imprisonment under his sentence”. Such an order could have been made under sub- s. 671G(3) when the applicant’s appeal against conviction was dismissed.

By sub-s. 75(2) of the Corrective Services Act 1988, an appellant detained in custody pending the determination of his or her appeal is, subject to s. 75, required to be “treated ... as an unconvicted prisoner on remand”, and, by the same sub-section, “any appellant so treated shall for the purpose of s. 671G of the Criminal Code be deemed to be specially treated as an appellant”; by sub-s. 671G(3), subject to any direction to the contrary on an appeal, “the time during which an appellant, if in custody, is specially treated as an appellant” does not count as part of any term of imprisonment under the appellant’s sentence”. However, by sub-s. 75(3) of the Corrective Services Act, an appellant detained in custody pending the determination of his or her appeal may by notice in writing require the Corrective Services Commission to treat him or her as a prisoner serving a term of imprisonment and any time during which such an appellant is so treated does count as part of the appellant’s term of imprisonment under his or her sentence subject to any order to the contrary by this Court.

After his conviction on 14 April 1994, the appellant was incarcerated at the Arthur Gorrie Correctional Centre. A Correctional Officer at that Centre provided the applicant with two forms which he signed. The applicant has a year 7 level of education and cannot read very well. Because he did not understand the nature and consequences of signature of the forms, he asked advice of the Correctional Officer by whom the forms were provided. One form, headed “Sentence Management”, was a notification that the applicant intended to appeal against conviction and contained the following two sentences:

“I wish to be treated as an appealant [sic] or sentenced prisoner.

(Delete which is not applicable)”

The applicant placed a circle around the words “I wish to be treated as an appealant”.

The other form which the applicant signed is headed “Custody of Appellants under Code”, is addressed to the General Manager, The Arthur Gorrie Correctional Centre, and includes the following statement:

“I, the above-named appellant hereby give you notice that having lodged an appeal against the abovementioned conviction I desire to be treated as an appellant until my appeal has been determined. In doing so I advise that I fully understand the provisions of Sections 75 and 76 of the Corrective Services Act 1988 referred to hereover.”

It seems that copies of ss. 75 and 76 (which is not presently material) of the Corrective Services Act are either contained on the back of the second form or handed separately to an appellant. At the material time, the Corrective Services Commission had no official rules, policy or procedure for explaining to appellants the consequences of electing to be “specially treated” as an appellant, and such persons were not informed of the terms of sub-ss. 671G(3) of the Code. The applicant’s affidavit, which is not contradicted by other testimony, states that the Correctional Officer who presented him with the forms told him that he had to elect whether to be treated as a sentenced prisoner or an appellant and that “there was no difference”. He asked the Correctional Officer what ss. 75 and 76 of the Corrective Services Act meant, and was shown those sections but did not understand them. He was not shown sub-s. 671G(3) of the Criminal Code, nor told of its effect. He asked the Correctional Officer if he would lose any time if he decided to be treated as an appellant and was told that he would not, and that that was the right choice to make. Paragraph 14 of his affidavit is as follows:

“14. I decided that as I was an appellant it was correct to complete the form

stating that I wished to be treated as an appellant.”

After signing the forms, the applicant was transferred to Moreton Correctional Centre on 1 July 1994, where he remained until, some time after he had signed another form asking to be treated as an appellant on 13 December 1994 following his application for special leave to appeal to the High Court, a member of the Sentence Management Staff at Moreton Correctional Centre asked him why he had elected to be treated as an appellant as time served as such did not count towards his sentence. After contacting his solicitor and having the consequences of his request to be treated as an appellant explained to him, the applicant wrote to the Sentence Management Section at Moreton Correctional Centre “to retract my appellant status”. He is presently an inmate at Wacol Correctional Centre.

Following an approach from the Prisoners’ Legal Service Inc., the Custodial Corrections Directorate of the Queensland Corrective Services Commission has drafted an information sheet in consultation with the Prisoners’ Legal Service Inc. for distribution to each Correctional Centre that has a reception function. A copy of that information sheet and the memorandum from the Director, Custodial Corrections to the relevant Centres has been exhibited to an affidavit placed before the Court, but it is unnecessary and inappropriate for us to consider whether or not that material (which was not given to the applicant) is adequate.

Before this Court, the prosecution did not oppose the present application, and counsel frankly informed the Court that the only difference in the treatment which the appellant would have received when “specially treated as an appellant” was that he would have been allowed to make more telephone calls. Evidence placed before the Court by a solicitor in the employ of the Prisoners’ Legal Service Inc. indicates that unconvicted prisoners on remand are treated in exactly the same way as other prisoners, except that they are held at the Arthur Gorrie Correctional Centre and do not undergo reclassification; i.e., they retain the high security classification which is imposed on admission when they undergo standard admission and induction procedures. If there are other differences, the prosecution did not suggest that they are of any present relevance. The applicant was accordingly classified as a high security prisoner throughout, but was only held at the Arthur Gorrie Correctional Centre until he was transferred to the Moreton Correctional Centre on 1 July 1994.

The applicant was not present when his appeal was heard, and his counsel was unaware that he had elected to be treated as an appellant; accordingly, that fact was not mentioned to this Court when it heard and dismissed the applicant’s appeal against conviction. There was therefore no request for an order under sub-s. 671G(3) of the Code, so of course no order was made that the appellant’s period in custody since his conviction count as part of his sentence. We have no doubt that, had such an order been requested and the information available to this Court been available to the Court as then constituted, the order now sought by the applicant would have been made.

In the circumstances, we do not doubt that the Court has power to make the order on the present application (see R. v. Pettigrew C.A. 364 and 466/95, unreported, 19 July 1996), and in our opinion it should be made.

Accordingly, we would order that the time during which the applicant was specially treated as an appellant within the meaning of sub-s. 671G(3) of the Code count as part of the term of his imprisonment under his sentence.