Radic v State of Queensland - [2022] QSC 134

SUPREME COURT OF QUEENSLAND

CITATION:

Radic v State of Queensland & Ors [2022] QSC 134

PARTIES:

SAVO RADIC

(applicant)

v
STATE OF QUEENSLAND

(first respondent)

SUPERINTENDENT TRACEY CROSBY

(second respondent)

EVA WU

(third respondent)

KERRY ALVAREZ

(fourth respondent)

FILE NO/S:

BS No 7104 of 2022

DIVISION:

Trial Division

PROCEEDING:

Application

DELIVERED EX TEMPORE ON:

21 June 2022

DELIVERED AT:

Brisbane

HEARING DATE:

21 June 2022

JUDGE:

Crowley J

ORDER:

Application dismissed

CATCHWORDS:

CRIMINAL LAW – SENTENCE – POST-CUSTODIAL ORDERS – PAROLE – OTHER MATTERS – where the applicant was sentenced to another period of imprisonment for an offence committed during the period of his parole order –where the applicant was granted conditional bail pending an appeal against his sentence – where Corrective Services refused to authorise release of the applicant – where the applicant seeks a declaration that he was unlawfully imprisoned – whether the declaration should be made

STATUTES – ACTS OF PARLIAMENT – INTERPRETATION – GENERAL APPROACHES TO INTERPRETATION – where the applicant was sentenced to another period of imprisonment for an offence committed during the period of his parole order – whether s 209 of the Corrective Services Act 2006 (Qld) operated to automatically cancel the applicant’s parole order

Acts Interpretation Act 1954 (Qld), s 14A
Bail Act 1980 (Qld), s 8
Corrective Services Act 2006 (Qld), s 3, s 209(1), s 209(3), s 211
Criminal Code Act 1899 (Qld), sch 1 s 617G

Penalties and Sentences Act 1992 (Qld), s 158A

Barry v Commissioner of Police [2015] QDC 61, considered
Momcilovic v R (2011) 245 CLR 1; [2011] HCA 34, cited
Project Blue Sky Incorporated v Australian Broadcasting Authority (1998) 194 CLR 355; [1998] HCA 28, cited
R v Hall [2018] 3 Qd R 628; [2018] QSC 101, considered

United Mexican States v Cabal (2001) 209 CLR 165; [2001] HCA 60, cited

COUNSEL:

M J Henry for the applicant
S Keim SC for the respondents

SOLICITORS:

DL Legal for the applicant
Crown Law for the respondents

By originating application filed on 17 June 2022, the applicant seeks declaratory relief and other orders. The declaration sought is in these terms:
“A declaration that upon, and from:
(a)his Honour Magistrate Mr Saggers, in the Magistrates Court of Queensland, at Brisbane, in proceeding number 906 of 2022, on 30 May 2022, ordering that the applicant be admitted to conditional bail (the “Order”); and
(b)the first and second and third and fourth respondents:
(i)not complying with, and not giving effect to, the Order, on and from 30 May 2022;
(ii)failing or refusing to release the applicant from prison at the Woodford Correctional Centre at Woodford in the State of Queensland, on and from 30 May 2022; and
(iii)causing or permitting the applicant to continue to be imprisoned at Woodford Correctional Centre at Woodford in the State of Queensland, on and from 30 May 2022;
the first and second and third and fourth respondents have unlawfully imprisoned the applicant.”
There are…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2022] QSC 134
Decision Date: 21 June 2022

CaseChat Overview and Summary

In the case of Radic v State of Queensland, the applicant, who had been sentenced to a period of imprisonment for offences committed while on parole, sought a declaration that he had been unlawfully imprisoned and for an injunction pending the determination of an appeal against his sentence. The applicant argued that the Corrective Services Act 2006 (Qld) did not operate to automatically cancel his parole order as he had believed. The respondents accepted that the Court had the jurisdiction to determine the matter and make the declaration if the applicant's contentions were accepted.

The central legal issue before the court was whether section 209 of the Corrective Services Act 2006 (Qld) operated to automatically cancel the applicant’s parole order. The applicant argued that the section did not apply to him as his sentence did not fall within the exceptions outlined in subsection 209(3)(b) of the Act. The court had to interpret the relevant provisions of the Act to determine whether the applicant's parole order was indeed cancelled as a result of his new sentence.

The court considered the relevant provisions of the Corrective Services Act 2006 (Qld) and determined that the applicant's parole order was indeed automatically cancelled as a result of his new sentence. The court found that the applicant's sentence did fall within the exceptions outlined in subsection 209(3)(b) of the Act, and therefore his parole order was automatically cancelled. The court dismissed the application, finding that the applicant had not been unlawfully imprisoned.

The court's decision in this case highlights the importance of correctly interpreting statutory provisions and the consequences of failing to do so. The court's determination that the applicant's parole order was automatically cancelled as a result of his new sentence has significant implications for the administration of justice in Queensland.

Orders

Orders of the court

Application dismissed

Background

Background to the litigation

The respondents accept that the Court has the power to make the orders as sought if the applicant’s contentions are accepted. That concession was perhaps more directed towards the interim injunction relief that was sought which, as I have indicated, is now redundant. Nevertheless, the respondents accept that the question of interpretation which is at the heart of this application is a matter that the Court is able to determine and, if need be, the Court is able make the relevant declaration as sought. Background With respect to the facts of the matter, I have before me the affidavit of Michael James Henry, affirmed 16 June 2022. I note that Mr Henry appears on behalf of the applicant in this application. It is somewhat unusual that counsel would make an affidavit in a proceeding in which he also appears as counsel. But, as Mr Henry explains in his affidavit at paragraph 2, the affidavit was made in the exceptional circumstances of this case. No issue was taken by the respondents with that course, and the Court does not consider that to be an issue in this matter. The relevant facts as set out in the affidavit are as follows. On 25 March 2022, the applicant was sentenced by Magistrate Young at the Holland Park Magistrates Court in respect of one charge of driving whilst disqualified by Court order and another charge of driving an unregistered vehicle. He was convicted and sentenced to 12 months imprisonment in respect of the driving whilst disqualified offence and he was convicted and not further punished in respect of the charge of driving an unregistered vehicle. In addition to these matters, two prior suspended sentences that had been imposed by Magistrate Shearer at Richlands Magistrates Court were activated in full, because Magistrate Young was not satisfied that it was unjust to do so. On 20 April 2022. the applicant instituted an appeal against his sentence. The affidavit of Mr Henry annexes a copy of the notice of appeal to the District Court, which I note in the particulars of the sentence on the first page of that document wrongly indicates that there was a 12-month sentence of imprisonment for each offence that was imposed by the learned magistrate. There are 14 grounds of appeal that are enumerated in the notice of appeal, and I am told that that appeal is being pursued as expeditiously as possible in the circumstances. Mr Henry deposes to the fact that the primary issue at sentence was, and will be on the hearing of the sentence appeal, whether a penalty ought to have been imposed such that it would not involve automatic cancellation of the applicant’s parole under subsection 209(3)(b) of the Corrective Services Act 2006. I pause there to note that that subsection is an exception to the automatic cancellation provision in subsection 209(1). According to that exception, automatic cancellation of a prisoner’s parole order will not apply if the period of imprisonment is required to be served in any of the ways set out in subsection 209(3)(b), namely if it is to be served under an intensive correction order, or it is a wholly suspended sentence, or it is required to be served until the rising of the Court.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	Radic v State of Queensland & Ors [2022] QSC 134
PARTIES:	SAVO RADIC (applicant) v STATE OF QUEENSLAND (first respondent) SUPERINTENDENT TRACEY CROSBY (second respondent) EVA WU (third respondent) KERRY ALVAREZ (fourth respondent)
FILE NO/S:	BS No 7104 of 2022
DIVISION:	Trial Division
PROCEEDING:	Application
DELIVERED EX TEMPORE ON:	21 June 2022
DELIVERED AT:	Brisbane
HEARING DATE:	21 June 2022
JUDGE:	Crowley J
ORDER:	Application dismissed
CATCHWORDS:	CRIMINAL LAW – SENTENCE – POST-CUSTODIAL ORDERS – PAROLE – OTHER MATTERS – where the applicant was sentenced to another period of imprisonment for an offence committed during the period of his parole order –where the applicant was granted conditional bail pending an appeal against his sentence – where Corrective Services refused to authorise release of the applicant – where the applicant seeks a declaration that he was unlawfully imprisoned – whether the declaration should be made STATUTES – ACTS OF PARLIAMENT – INTERPRETATION – GENERAL APPROACHES TO INTERPRETATION – where the applicant was sentenced to another period of imprisonment for an offence committed during the period of his parole order – whether s 209 of the Corrective Services Act 2006 (Qld) operated to automatically cancel the applicant’s parole order Acts Interpretation Act 1954 (Qld), s 14A Bail Act 1980 (Qld), s 8 Corrective Services Act 2006 (Qld), s 3, s 209(1), s 209(3), s 211 Criminal Code Act 1899 (Qld), sch 1 s 617G Penalties and Sentences Act 1992 (Qld), s 158A Barry v Commissioner of Police [2015] QDC 61, considered Momcilovic v R (2011) 245 CLR 1; [2011] HCA 34, cited Project Blue Sky Incorporated v Australian Broadcasting Authority (1998) 194 CLR 355; [1998] HCA 28, cited R v Hall [2018] 3 Qd R 628; [2018] QSC 101, considered United Mexican States v Cabal (2001) 209 CLR 165; [2001] HCA 60, cited
COUNSEL:	M J Henry for the applicant S Keim SC for the respondents
SOLICITORS:	DL Legal for the applicant Crown Law for the respondents