Raven v. Chief Executive, Department of Corrective Services

[2001] QSC 49

SUPREME COURT OF QUEENSLAND

CITATION:               Raven v. Chief Executive, Department of Corrective Services

[2001] QSC 049

PARTIES:                  CHRISTINE JACQUELINE RAVEN

(applicant)

v

CHIEF EXECUTIVE, DEPARTMENT OF CORRECTIVE SERVICES

(respondent)

FILE NO/S:               944/01

DIVISION:                Trial Division at Brisbane

PROCEEDING:         Civil Trial

ORIGINATING COURT:

Brisbane

DELIVERED ON:      1 March 2001

DELIVERED AT:       Brisbane

HEARING DATE:          22 February 2001

JUDGES:                   White J

ORDER:  Dismiss the application

CATCHWORDS:            CRIMINAL    LAW    -    PARTICULAR    OFFENCES    - JUDGMENT    AND    PUNISHMENT    -    SENTENCE    - FACTORS     TO     BE     TAKEN     IN     ACCOUNT     - MISCELLANEOUS MATTERS - REMISSION, PAROLE AND  PRISONER  CLASSIFICATION  -  whether  prisoner granted leave of absence from prison remains eligible to be considered for remission of sentence .

STATUTES       -       ACTS       OF       PARLIAMENT       - INTERPRETATION  -  RULES  OF  CONSTRUCTION  - WHERE  MEANING  AMBIGUOUS  OR  UNCERTAIN  - PRESUMPTIONS   AS   TO   LEGISLATIVE   INTENT   - OTHER PRESUMPTIONS -- whether leave of absence and home   detention   extinguished   both   accrued   and   future entitlements - remission extinguished by  Corrective Services Act (Act No. 63 of 2000) s 207B.

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Corrective Services Act 1988

Corrective Services Regulations  1989

Corrective Services Act (No. 63 of 2000)

COUNSEL:                   Mr J Davidson for the applicant

Mr M Hinson SC for the respondent

SOLICITORS:           Prisoners Legal Service for the applicant

Crown Solicitor for the respondent

[1]     The applicant is a prisoner at the Brisbane Women’s Correctional Centre.  She was sentenced on 15 July 1994 to a term of imprisonment of eight years in respect of mainly  property  offences.    On  16  December  1996  she  was  released  to  home detention.  She was returned to custody on 30 December 1996  “because  of  a personal crisis”, para (3) in the affidavit of the applicant filed 29 January 2001.

[2]     The plaintiff was granted release to work in August 1998 and transferred to the Helena Jones Community Corrections Centre.  She committed further offences in January 1999 and as a consequence was returned to secure custody.

[3]     A further sentence of imprisonment of three and a half years was imposed in respect of the 1999 offences.

[4]     In December 2000 the applicant was advised that any remission to which she might have been entitled on her eight year sentence had been extinguished because of amendments to the Corrective Services Act 1988.

[5]     The applicant seeks declarations, in effect, that she is entitled to remission on the balance of her eight year sentence after she was returned to secure custody on 11

January 1999.

[6]     The Corrective Services Act was relevantly amended by the insertion of s 207B by Act No. 63 of 2000 which commenced on 24 November 2000.  That amendment applies to a

“…   prisoner who was, before the commencement of this section, or who is, after the commencement of this section -

(a)granted leave of absence, under section 61(1)(b) or (c), to engage in or seek employment; or

(b)released,  under  section  86,  to  serve  a  period  of  home detention; or

(c)       released on parole under an order made under section 165.”

The applicant was released to home detention under s 86(5) of the Corrective Services Act and was also granted leave of absence to work under s 61(1)(b).  She is, therefore, a prisoner to whom s 207B applies.

[7]     By s 207B(2) such a prisoner’s

“…   eligibility for remission -

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(a)if  a  prisoner  was  granted  leave  of  absence  before  the commencement of this section - it is taken to have been extinguished  when  the  prisoner  was  granted  leave  of absence: …  ”

The reference is only to “leave of absence”, the expression used in the Act to refer to s 61 situations and makes no reference to “release” which is the expression used in ss 86 and 165 and in s 205B to describe returning a prisoner to the community by way of home detention or parole.  It is clear that the legislature intended prisoners falling  within  any  of  s  207(B)(1)(a),  (b)  or  (c)  to  suffer  the  consequences  of s 207B(2).  In any event the applicant had been granted leave of absence to work under s 61(1)(b).

[8]     The meaning of “extinguish” is clear.  It is to “destroy, abolish …                   annihilate”, The Australian  Concise  Oxford  Dictionary,  7th  edition.    Mr  J  Davidson,  for  the applicant,   submitted   that   only   that   which   exists   can   be   extinguished   and accordingly. the amendment operates only to extinguish any remission entitlement for which the applicant was eligible at the time of release.  The amendment does not, he submitted, affect the applicant’s capacity to become eligible anew for future remission on the balance of her sentence after being returned to secure custody.

[9]     The  present  remission  regime  operating  in  Queensland  is  contained  in  the Corrective  Services  Regulations  1989.    A  general  entitlement  to  remission  is contained in regulation 21.  A prisoner who is of “good conduct and industry” may, at  the  discretion  of  the  Corrective  Services  Commission  and  subject  to  other regulations  concerning  remission,  “be  granted  a  remission  of  one-third  of  his sentence together with such other remission as is provided for”.

[10]     Regulation 23 (“over task marks”), 24 (“minimum or open security regime”) and 25

(“Christmas Day”), provide for additional ways in which a prisoner may become eligible for additional remission on sentence.

[11]     Regulation 27 concerns the way in which a prisoner might forfeit all or any part of the  remission  which  she  might  otherwise  have  enjoyed  due,  in  effect,  to misbehaviour.  Finally, regulation 28 provides that if a prisoner, in the course of her term of imprisonment, commits any indictable offence or offence punishable on summary conviction she may not be granted remission in respect of the period of imprisonment up to that occurrence.  She may “become eligible by good conduct and industry for remission on the balance of [her] original sentence”.  Although a prisoner who fulfils the criteria set out in the Corrective Services Regulations has an expectation of being granted remission on her sentence, nonetheless, the further step of the favourable exercise of the Corrective Services Commission's discretion must occur before she is granted remission.

[12]     Mr Davidson’s submitted  that the  “eligibility for remission” to which s 207B(2) refers is to an existing or presently vesting eligibility to be considered for remission and does not refer to any remission to which a prisoner may become entitled in the future.  There is nothing in the wording of the section which would so confine

“eligibility”. If a prisoner is granted leave of absence from prison to work or seek employment or is released to home detention or on parole, it is the clear legislative intent that that prisoner ceases to be eligible to be considered for remission on the

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prisoner’s sentence.  This is so, not only in respect of any  “accrued” entitlement but  also  any  future  entitlement  which  might  otherwise  have  arisen  when  the prisoner  returns  to  secure  custody  before  the  expiration  of  her  sentence.    The wording, in my view, does not suggest a regime similar in effect to that contained in regulation 28.

[13]     Mr Davidson submitted that since s 207B is a provision that affects liberty then it should  be  construed  favourably  to  the  prisoner.    Where  the  intention  of  the legislature  is  unambiguous  there  is  no  work  for  that  canon  of  interpretation. Further, there are other regimes of early release available to a prisoner apart from remission which include parole and release to work as well as home detention which   “reward”  prisoners  who  are  of  good  conduct  and  who  are  otherwise appropriate candidates.

[14]     Accordingly, prisoners who have applied for and been granted release into the community in the circumstances set out in s 207B(1) will be required to serve the whole of the sentence imposed upon them whether in prison or partly in prison and partly in the community without remission.

[15]     A new Corrective Services Act (No. 63 of 2000) was assented to on 24 November

2000.  It is anticipated to commence in April 2001.  Provisions relating to remission are  contained  in  that  Act  in  Chapter  2  Part  2  Division  11.    That  division incorporates  s 207B.

[16]     The applicant seeks a number of alternative declarations relating to the various categories of remission available in the  Corrective Services Regulations   or, in the further alternative, a declaration that the extinguishment applies only in respect of eligibility prior to 16 December 1996 or, alternatively that she may become eligible from 11 January 1999.  For the reasons which I have given none of the declarations sought in the application ought to be made.

[17]     The application is dismissed.