Robinson v Commissioner of Police
[2023] QDC 93
•1 June 2023
DISTRICT COURT OF QUEENSLAND
CITATION:
Robinson v Commissioner of Police [2023] QDC 93
PARTIES:
CRAIG JAMES ROBINSON
(appellant)
v
COMMISSIONER OF POLICE(respondent)
FILE NO/S:
BD540/23
DIVISION:
Appellate
PROCEEDING:
Appeal
ORIGINATING COURT:
Magistrates Court at Beenleigh
DELIVERED ON:
1 June 2023
DELIVERED AT:
District Court at Brisbane
HEARING DATES:
26 May 2023
JUDGE:
Kent KC, DCJ
ORDER:
Appeal dismissed
CATCHWORDS:
CRIMINAL LAW – APPEAL AGAINST SENTENCE – where the appellant pleaded guilty in the Magistrates Court to 23 offences – where the appellant had committed 3 of the offences whilst subject to a previous parole order – where the presiding Magistrate imposed a parole release date – where upon the sentence being reopened a parole eligibility date was imposed – where cancellation under s 209 of the Corrective Services Act 2006 (Qld) applies retrospectively – where the appellant’s aggregate period of imprisonment exceed 3 years – whether there was a “break” between periods of imprisonment where the appellant was only subject to a bail order – meaning of “period of imprisonment” –whether the appellant’s period of imprisonment was “unbroken” – whether the appellant was subject to a “contingent liability” upon parole release – whether the presiding Magistrate incorrectly imposed a parole eligibility date instead of a parole release date.
LEGISLATION:
Corrective Services Act 2006 (Qld) ss 205, 209, 210, 211, 214, 215
Corrective Services and Other Legislation Amendment Act 2020 (Qld) s 33
Justices Act 1886 s 223
Penalties and Sentences Act 1992(Qld) ss 4, 160B, 160C
Cases
Addo v Senior Constable Jacovos [2016] QDC 271
Attorney-General (Qld) v Kanaveilomani [2013] QCA 404
Coolwell v Commissioner of the Queensland Police Service [2010] QDC 487
R v Bliss [2015] QCA 53
R v Hall [2018] 3 Qd R 628
R v Smith [2015] 1 Qd R 323
R v Holman (1995) 2 Qd R 176
Teelow v Commissioner of Police (2009) 2 Qd R 489
COUNSEL:
R Mann for the appellant
E McGregor for the respondentSOLICITORS:
Legal Aid Queensland for the appellant
Office of the Director of Public Prosecutions (Qld) for the respondent
Introduction
The appellant appeals against his sentence imposed in the Magistrate’s Court at Beenleigh on 28 February 2023. He pleaded guilty and was convicted of 23 offences. A head sentence of 16 months imprisonment was imposed with a parole eligibility date of 1 June 2023. 77 days of pre-sentence custody was declared.
The appeal is against the severity of sentence, the sole ground being that the sentence imposed was manifestly excessive, however leave was sought, not opposed and accordingly given, to amend the notice of appeal to include a ground that there was an error in setting a parole eligibility date rather than a parole release date. This is the sole issue in the appeal, as set out below, in circumstances which are of some complexity.
Leave was given to the respondent under s 223 of the Justices Act 1886 to adduce additional evidence in the form of an affidavit by Ms Nash exhibiting relevant sentence calculations.
Nature of the appeal
Relevantly for present purposes an appeal of this kind is by way of rehearing and to succeed the appellant must establish some legal, factual or discretionary error.[1] The error relied on is essentially that the Magistrate wrongly considered that the case fell within s 160C of the Penalties and Sentences Act 1992(Qld) (“PSA”) such that a parole eligibility date rather than a parole release date was mandated.
[1]Teelow v Commissioner of Police (2009) 2 Qd R 489 per Muir JA at [3]-[4].
The sentence proceeding
The sentence was heard on 23 February 2023. The sentence was as outlined above, except that it was ordered the appellant be released on court ordered parole fixed at 23 September 2023. As discussed in more detail below, the controversy emerges in circumstances where the appellant had committed three offences whilst subject to a previous parole order. At the sentence hearing the Magistrate accepted the appellant’s solicitors’ argument that a parole release date should be ordered (s160B(3) PSA). The prosecutor argued that the appellant should receive a parole eligibility date in circumstances where the appellant was serving an “unbroken” period of imprisonment[2] which included a term previously imposed on 17 July 2019 and court ordered parole had previously been cancelled during that period of imprisonment under s 209 of the Corrective Services Act 2006 (Qld) (“CSA”). This meant – according to the prosecution’s argument - that his period of imprisonment exceeded three years and thus s 160C was argued by the prosecutor to be operative. This argument failed at the 23 February hearing.
[2]See the definition of “period of imprisonment” in s 4 of the PSA
Unusually, the sentence was then subject to an application for a reopening by both sides. The applicant’s solicitor contested the setting of the previous parole release date in the sense that it was approximately 50 percent into the duration of the imposed sentence despite the plea of guilty (as a rule of thumb of general sentencing practice it may have been set at the one third mark). However, the prosecution cross applied on the basis that the sentence imposed was not in accordance with the law, again contending that the Magistrate was required under s 160C of the PSA to impose a parole eligibility date as the total period of imprisonment, which commenced on 17 July 2019, exceeded three years. This calculation includes, for legal reasons discussed below, the 15 months or so the appellant had spent in the community between September 2021 and December 2022, not subject to imprisonment or parole, although on bail. So the (at first blush) curious effect of the argument, if correct, is that the appellant is deemed to have been serving a sentence of imprisonment (during the 15 months interregnum) while not in custody, or on parole, or in any other way serving a sentence of imprisonment; more of this below.
The Magistrate adjourned the hearing to consider the question and eventually concluded that the prosecution argument should be accepted; the various terms of imprisonment when aggregated exceeded three years and thus s 160C does apply with the result that there should be a parole eligibility date. Possibly in recognition of this alteration, the date was brought forward to 1 June 2023.
The appellant’s argument
The appellant essentially argues that the above conclusion was in error. The appellant’s period of imprisonment is argued not to have exceeded three years as there was a “break” between different periods; thus the aggregated terms did not amount to an unbroken duration of imprisonment as a “period of imprisonment” is defined in s 4 of the PSA. Section 160C applies, in its terms, “if section 160D does not apply and the offender’s period of imprisonment is more than three years”. The appellant did not have court ordered parole cancelled under ss 205 or 209 or the CSA during his period of imprisonment (according to the appellant’s argument), as the cancellation of his court ordered parole occurred during a previous period of imprisonment.
To place the arguments in the context of the relevant chronology:
(a)The appellant was sentenced on 17 July 2019 to a head sentence of 12 months imprisonment with an immediate parole release date.
(b)On 16 August 2019 he reoffended (on parole) by disqualified driving and speeding and on 1 October 2019 he again committed an offence of disqualified driving.
(c)He was thus sentenced on 5 June 2020 to a head sentence of 12 months imprisonment (for the traffic offences) with parole eligibility on 5 June. His previous parole (which had been court ordered), was automatically cancelled by reason of his pleas of guilty, convictions and sentences of imprisonment on 5 June 2020 (this is the genesis of the prosecution’s submission that, as at the date the sentence presently the subject of the appeal was imposed, the appellant was serving an unbroken period of imprisonment exceeding three years).
(d)The appellant was subsequently released on parole by the Parole Board on 1 July 2020; thereafter he was on Board ordered parole.
(e)On 5 January 2021 he again reoffended (on parole), committing an offence of unlawful use of a motor vehicle. On 2 June 2021 he further committed offences of possession of a dangerous drug and possess utensils/pipes.
(f)On 4 September 2021, the sentence which had commenced on 17 July 2019 expired. According to the presentence custody certificate[3] tendered before the Magistrate the total imprisonment was 2 years, 1 month and 19 days and from the expiration of the sentence, that is from 5 September 2021 onwards, the appellant was on bail and not serving a sentence, either in custody or on parole (this represents the “break” relied on by the appellant).
(g)Between 28 September 2021 and 29 June 2022, the appellant committed further offences and was taken into custody on 8 December 2022, having been at large on bail – not subject to any other orders - for about 15 months.
(h)The sentence outlined above was imposed on 23 February 2023 and corrected to its present form on 28 February 2023 including the parole eligibility date of 1 June 2023 which is the presently controversial element.
[3]Ex. BRM-11 to the affidavit of Bronwyn Mantle.
The appellant’s argument is that, in essence, s 160C of the PSA was not engaged because the appellant’s period of imprisonment then under discussion was not an unbroken period exceeding three years. The argument is that there was a “break” between the periods of imprisonment, namely the period between 5 September 2021 and 7 December 2022 because, as the appellant argues (and is common ground), he was only subject to a bail order during that time.
Some relevant terms are defined in the PSA s 4:
“‘term of imprisonment’ is defined as the duration of imprisonment imposed for a single offence and includes –
(a)the imprisonment an offender is serving, or is liable to serve—
(i)for default in payment of a single fine; or
(ii)for failing to comply with a single order of a court; and
(b)for an offender on whom a finite sentence has been imposed, any extension under section 174B(6) of the offender’s finite term.
‘period of imprisonment’ is defined as 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.”
(emphasis added)
Authorities
Coolwell
There are number of authorities touching on similar but not identical points. In Coolwell v Commissioner of the Queensland Police Service[4], the issue was whether s 160B(2) PSA applied. The appellant in that case had been sentenced on 18 June 2008 in the Magistrates Court to two years imprisonment for an offence of unlawful use of a motor vehicle. Because he had been on parole at that time, in respect of an earlier sentence, in accordance with s 160B PSA the court fixed a parole eligibility date rather than a parole release date. He was subsequently released on 8 March 2010 and his fulltime discharge date for that sentence was 17 June 2010. Subsequently, he pleaded guilty to offences of burglary, unlawful use of a motor vehicle, unlawful possession of suspected stolen property and contravening a requirement. These offences occurred on parole, that is between 8 March and 17 June 2010.
[4][2010] QDC 487.
Section 160B applies for sentences of three years or less and not a serious violent offence or sexual offence. Subsection (2) provides that if the offender has had a court ordered parole order cancelled under the Corrective Services Act 2006, s 205 or 209 during the offender’s period of imprisonment, the court must fix the date the offender is eligible for parole. Otherwise, there is to be a parole release date.
The key consideration was whether the court ordered parole was cancelled during the period of imprisonment. Although his parole was cancelled automatically pursuant to s 209 of the Corrective Services Act 2006 (“CSA”) by reason of the sentence to another period of imprisonment, he was not sentenced until 21 July 2010 which was after his fulltime release date.
The deciding feature in Coolwell is set out at paragraph [32] of the judgment. The appellant’s release on parole (during which he reoffended) was not pursuant to a court ordered parole order; rather, the previous sentence had fixed a parole eligibility date, so Coolwell’s later release was on parole ordered by the Parole Board, not a court. Thus, it was concluded that s 160B(2) did not apply to his present circumstances and the result was that the original sentencing court had been required by s 160B(3) to fix a parole release date.
This reasoning is understandably called in aid of the appellant’s case, however, a possibly important distinction is that s 209 of the CSA has been significantly amended since Coolwell was decided. Pursuant to the Corrective Services and Other Legislation Amendment Act 2020 s33, s 209 was introduced in its present form. It provides:
“(1) If a prisoner is sentenced to another period of imprisonment for an offence committed, in Queensland or elsewhere, during the period of the prisoner’s parole order, the order is taken to have been automatically cancelled on the date on which the offence occurred. (Emphasis added)
(2)Subsection (1) applies—
(a)whether or not the prisoner is sentenced to the other period of imprisonment before or after the parole order has expired; and
(b)subject to section 205.
Note—
See sections 211 and 215 for the effect of the cancellation.”
Section 211 provides:
“(1) This section applies if a prisoner’s parole order is cancelled—
…
(f)under section 209 because the prisoner was sentenced to another term of imprisonment for an offence committed, in Queensland or elsewhere, during the period of the parole order.
(2)The time for which the prisoner was released on parole before one of the following events happens counts as time served under the prisoner’s period of imprisonment—
…
(c)the prisoner committed the offence mentioned in subsection (1)(f).”
Section 215 provides:
“215 Expiry of parole order
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.”
Smith
The respondent relies on R v Smith[5]. In that case the applicant was sentenced to 15 months imprisonment following her conviction of certain offences. She was released on parole and committed further offences during the period of the parole order. In sentencing her for the further offences, the sentencing judge fixed a parole eligibility date under s 160B of the PSA. She applied for leave to appeal on the ground that there should have been a parole release date. It was held, relevantly, that where a prisoner commits an offence during the period of a parole order, the prisoner becomes subject to a “contingent liability” that the sentence for that offence will have the result of automatically cancelling the subsisting parole order, which, if it comes to pass, requires the prisoner to serve the unexpired portion on the period of imprisonment upon arrest. Morrison JA set out the reasoning including from paragraph [27]:
“[27] Cancellation under s 209 occurs automatically if the prisoner is sentenced for an offence committed during the period of the parole order, even if that sentence comes after the expiry of the period of the parole order. In that situation, the parole order will have expired and will have been cancelled under s 209. That situation does not come within s 215 of the CSA, which only operates where a parole order has expired without being cancelled under s 209. (Emphasis added)
[28]With that analysis in mind one can conveniently summarise the operation of s 209 of the CSA.
[29]Section 209 makes provision in respect of two different things, namely a parole order in subsection (1), and the period of the order under subsection (2). It is the parole order which is the subject of automatic cancellation under s 209(1). That cancellation can occur even after the period of the order has expired: s 209(2). Where that happens, the prisoner will not be taken to have served the period of imprisonment because s 215 is not engaged. Rather, s 211(2)(c) applies so that the only time served by the prisoner under the prisoner’s period of imprisonment is that which was served prior to committing the offence which subsequently, by way of sentence, results in the automatic cancellation of the parole order.
[30]The construction above provides for a coherent system where a prisoner commits an offence during the period of a parole order. Where that occurs the prisoner becomes subject to a contingent liability that the sentence for that offence will have the result of automatically cancelling the parole order under s 209(1), even if the sentence bringing about that result occurs after the period of the parole order has expired: s 209(2). In that situation the contingent liability in terms of the period to be served is made clear by s 211(2)(c) of the CSA, which provides that the time served under the parole order up to the commission of the relevant offence is taken to be time served under the period of imprisonment, but the balance of the period is not. The balance of the period is the “unexpired portion” which must be served if the prisoner is arrested: s 210(3) of the CSA.
[31]It does not matter to that analysis that a prisoner is outside prison when the prisoner is on parole. Section 214 of the CSA makes it clear that a prisoner released on parole is still taken to be serving the sentence. Further, if the contingent liability comes to pass, in the sense that a parole order is cancelled under s 209, the prisoner will not be taken to have served the period of imprisonment.” (Emphasis added)
[5][2015] 1 Qd R 323.
In the example of Smith, she had been on parole from 24 July 2012, and her parole was to expire on 17 May 2013. In the interim she committed the offences for which she was sentenced on 27 September 2013. The sentence automatically cancelled the parole order. The time served by her up to the point of committing the first offence, 3 September 2012, counted as time served under the period of imprisonment imposed on 24 July 2012 (s 211(2)(c)). The balance between 3 September 2012 and 17 May 2013 did not count as time served. Thus, his Honour continued at [33]:
“[33] Therefore, the applicant cannot be said to be someone who has served the period of imprisonment simply because the period set under the parole order had expired before sentence was imposed, by reason of s 215 of the CSA.”
A further feature of Smith, however, was that when Ms Smith was sentenced for the offences committed on parole, one of the orders made was that the sentence imposed in respect of the summary offences of stealing was “to start at the end of the period of imprisonment imposed on 24 July 2012”. As his Honour described, this had the effect of backdating the sentence imposed on 27 September 2013, so that it commenced immediately upon the expiry of the previous sentence. This led to the conclusion, in paragraph [36] that:
“That means that the term of imprisonment ending on 3 September 2012 and the term of imprisonment imposed on 27 September 2013 constitute one ‘unbroken duration’ of imprisonment. As provided by s 4, it does not matter that these terms of imprisonment were imposed at different times. There was, therefore, one ‘period of imprisonment’ within the meaning of s 4 of the PSA because there was an ‘unbroken duration of imprisonment that [the applicant] is to serve for two or more terms of imprisonment …’”.
“The result is that under s 160B(2) of the PSA, as the applicant had the court ordered parole order cancelled under s 209 during the applicant’s period of imprisonment, the court was required to fix an eligibility date for parole.”
There was no cumulative sentence imposed in the present case.
It appears Coolwell v Commissioner of the Queensland Police Service was cited in R v Smith, however no explicit analysis thereof seems to feature in the judgment.
Bliss
The Court of Appeal considered and affirmed Smith in R v Bliss[6]. There, the applicant had been sentenced to three years imprisonment with 329 days pre-sentence custody declared and parole release had been ordered on 7 August 2012. Subsequently, on 10 September 2014 he was sentenced to two years imprisonment with parole eligibility on 2 March 2015 as one of the offences was committed on court ordered parole. In the judgment of Jackson J with whose reasons the other members of the Court agreed, at [14] his Honour said:
“As is shown by the reasons for judgment of Morrison JA in R v Smith, although the full time discharge date for the sentences imposed on 25 July 2012 was 1 September 2014, the effect of the sentences of 14 September 2014 was to cancel the applicant’s parole on the 25 July 2012 sentences retrospectively to 29 October 2012. Accordingly, the 28 day period between 29 October 2012 and 26 November 2012 when the applicant had been released on parole for those sentences became time he was required to serve in prison. That time period became part of the applicant’s period of imprisonment within the meaning of s 160B(2) of the Penalties and Sentences Act 1992 (Qld). That subsection required the court to fix a parole eligibility date on 14 September 2014. There was no error by the sentencing judge in not fixing a parole release date.”
[6][2015] QCA 53.
Kanaveilomani
In Attorney-General (Qld) v Kanaveilomani[7] the Attorney-General applied to appeal the refusal of the Supreme Court to make an order for the detention of the respondent under the Dangerous Prisoners (Sexual Offenders) Act 2003 (Qld) (“DPSOA”). One of the issues which arose was whether the application should have been dismissed once the respondent was sentenced for 2009 offences. This included a discussion of the meaning of “period of imprisonment”.
[7][2013] QCA 404.
The respondent had been sentenced in 1999 for offences including two counts of rape and his fulltime release date was 19 November 2010. He had been granted parole on 14 November 2008 and subsequently committed offences for which he was arrested on 28 January 2009; his parole was suspended and he was returned to custody. As discussed at [58], the court considered that the decision in R v Holman[8] makes plain that a declaration under s 161(3) (now s 159A(3), the procedure for deducting time held in presentence custody) has the effect of backdating the sentence to the commencement of the pre-sentence custody taken into account. It gives the prisoner full credit for the time already spent in prison. Morrison JA continued at [68]:
“The consequence is that the sentence imposed for the 2009 offences commenced immediately following the day on which the sentence for the 1999 offences came to an end. There was thus a period of unbroken duration of imprisonment under the two terms, falling within the definition of ‘period of imprisonment’ in s 4 of the PSA.”
Of course, in the present case the “backdating” was to 8 December 2022, the 77 days declared. Kanaveilomani, unlike the present appellant, had not been released from custody between the two sentences which represented the “unbroken” period.
[8][1995] 2 Qd R 176 at 169
Addo
The appellant also refers to Addo v Senior Constable Jacovos[9] where the appellant had originally been released on parole by the Parole Board. He was not the subject of a court ordered parole order as required by s 160B(2) and thus a parole release date was required under s 160B(3).[10] This is no doubt correct but is a different question from what is presently being considered. In Addo the sentence was less than three years so s 160B came into play; in the present case, on the respondent’s argument, the total unbroken sentence is 4 years 7 months 3 days[11] so that s 160B (only applying for sentences of 3 years or less) does not apply; only s 160C need be considered (although, paradoxically, the present appellant also had a court ordered parole order cancelled during what the respondent says was his period of imprisonment, see [9] (c) above).
[9][2016] QDC 271.
[10]At [58]-[59]
[11]Exhibit (b) to Ms Nash’s affidavit
Hall
Finally, in R v Hall[12], s 160B(2) was again considered. In that case the offender had been sentenced to imprisonment on 11 March 2016 with early parole release and a full time discharge date of 4 December 2016. He was released on parole and in September 2016 reoffended. Before he was sentenced he committed further offences. In November 2016 he was returned to custody by the Parole Board; after his subsequent full time release in December he continued offending. He was dealt with in May 2018 for all the offending, including on parole. The defence argued that s 160B (2) did not apply and there should be a parole release date because the term to be imposed would not be part of any longer period of imprisonment so the words “during the offender’s period of imprisonment” in s 160B(2) were not engaged.
[12][2018] 3 Qd R 628.
The sentencing judge concluded that s 160B(2) did apply and a parole eligibility date was required. The reasoning sets out a number of principles. Firstly at [13], that by reason of ss 214 and 215 of the Corrective Services Act 2006 a prisoner released on parole is still taken to be serving the sentence imposed, and such a prisoner is taken to have served the prisoner’s sentence of imprisonment if the parole order expires without it having been cancelled. Second, by reason of s 209(2), the sentencing of an offender to another term of imprisonment for an offence committed during the offender’s release on parole triggers the automatic cancellation of the parole order pursuant to s 209(1), even if the parole order has expired by the time of the sentence (at [14]).
Next at [15], ss 210(3) and 211(2) show that the legislative intention is that upon cancellation of a parole order the offender is to return to jail to serve a period of time equal to the period between the date of the commission of the offence for which the triggering sentence is imposed, and the fulltime release date on the original sentence. There is however a provision allowing the Queensland Parole Board to direct that the offender serve only part of that period of time.
I pause to note that there is no suggestion other than this is what has appropriately happened in the present case. Mr Robinson, by virtue of the conviction following upon his pleas of guilty, was required to serve the period of time from the commission of the first offence committed on parole (5th January 2021) to his fulltime release date – a period of 243 days[13] - and, because no other order was made, he is doing so concurrently with the present sentence.[14] Given the terms are concurrent, the parole eligibility (or release) date would apply to both; he is serving one period of imprisonment, see [11] above.
[13]P 7 of the exhibits to Ms Nash’s affidavit
[14]Because he did not commit an offence listed in Schedule 1 of the PSA, a cumulative sentence was not required by s 156A
Returning to the reasoning in Hall, having to regard to these legislative provisions, when a sentence of imprisonment is pronounced for the offending on parole the offender would begin to serve a period of imprisonment consisting of two terms: the term imposed for the new offence committed whilst on parole, and that part of the earlier sentence of imprisonment from the original sentence of imprisonment required to be served as a result of the cancellation of the parole order; see [17], [21]-[25]. As outlined above, this is one period of imprisonment.
Thus it was concluded in Hall that the cancellation happened “during the offender’s period of imprisonment” within the meaning of s 160B(2) Penalties and Sentences Act 1992. The period of imprisonment was an unbroken period of imprisonment including the both the term of imprisonment then to be imposed (in accordance with the definition at s 160 Penalties and Sentences Act 1992) and the term of imprisonment imposed for the original offending. The conclusion was that s 160B(2) applied with the effect that a parole eligibility date was appropriate.
The judgment continued to discuss the facts and the reasoning in R v Smith (supra). However, there was some criticism of some of the reasoning in R v Smith as to the commentary of the effect of an accumulative sentence being imposed in Smith was to “backdate” the sentence imposed on 27 September 2013 so that it commenced immediately upon the expiry of the previous sentence. This was part of the reasoning that the terms of imprisonment constituted one “unbroken duration” relevantly for the above discussion. The judgement in Hall continued, relevantly for present purposes, at [21]:
“If and insofar as these paragraphs imply that, absent the order which ‘backdated’ the stealing sentence, s 160B(2) would not have applied, then they are, with respect, incorrect. In the absence of the ‘backdating’ order, a parole eligibility date was nonetheless required for the reasons given at, [17] above. This is consistent with the decision in R v Bliss which was relevantly on all fours with R v Smith factually, except that there was no ‘backdating’ order.”
The reasoning from paragraph [17] is as follows:
“Having regard to the legislative provisions just detailed, the primary Judge in R v Smith was right to impose a parole eligibility date pursuant to s 160B(2) of the PSA. At the time the primary Judge imposed a sentence, Smith began a term of imprisonment pursuant to that sentence. As well, because some of the offences for which Smith was sentenced had taken place during Smith’s release on parole, at the time the sentence was pronounced Smith also began to serve part of the term of imprisonment imposed on 24 July 2012. Thus, when sentence was pronounced by the primary Judge in R v Smith, the defendant began serving a period of imprisonment consisting of these two terms. When sentence was pronounced, that triggered the cancellation of the parole order under s 209 of the CSA. In that sense the cancellation happened ‘during the offender’s period of imprisonment’ within the meaning of s 160B(2) of the PSA. That period of imprisonment was an unbroken period of imprisonment including both the term imposed by the primary sentencing Judge (in accordance with the definition at s 160 of the PSA) and the term imposed by the Magistrate in July 2012.”
The judgment in Hall continued, referring to R v Bliss and at [24] quoted from the judgment in R v Bliss to the effect that when the later sentences cancelled the applicant’s parole retrospectively he was required to serve the period between when he had been released on parole and the date when he committed the first offence; see [23] and [30] above.
Hall seems to have been a similar situation to the present. He was released from his earlier period of imprisonment having apparently served all of it but having committed an offence or offences during that period, while on parole; after his release he was not on parole; much later he came to court (having committed more offences in the interregnum) and was sentenced; and yet in effect the conclusion was that the period of imprisonment was unbroken. This supports the respondent’s position. As noted at [16] above, since Hall was decided s 209 has been amended to more explicit terms.
S160C
None of the above authorities deal explicitly with the application of these principles to the s 160C situation which is the subject of the present appeal. They do, however, relevantly deal with the concept of a “period of imprisonment”.
The appellant emphasises this aspect of the present matter – i.e. that it turns on s160C, not s160B - as a distinguishing feature. It is argued that none of the decisions under discussion contemplate a situation such as the present, in which a previous period of imprisonment has expired and after the expiry of that period of imprisonment (and prior to his remand in custody) the appellant has been subject to bail but was not serving any period of imprisonment (whether in custody or on parole in the community).[15] With respect, it is not clear to me that that is so; Hall seems to have been in the same position as the appellant, albeit in the context of s 160B, not 160C.
[15]Appellant’s outline, para 39
In any case, the appellant’s argument is that this feature amounts to a “break” in the periods of imprisonment as follows:
(a)The first period of imprisonment was between 17 July 2019 and at worst 4 September 2021;
(b)The appellant was on bail and not serving imprisonment or parole between 5 September 2021 and 7 December 2022;
(c)The second period of imprisonment commenced on 8 December 2022.
This means, relevantly, that s 160C of the PSA did not apply as the appellant’s period of imprisonment did not exceed three years.
The appellant accepts the analysis that after being released on parole, he was subject to the “contingent liability” discussed in R v Smith. When he was sentenced – eventually on 28 February 2023 – it is clear enough that his parole was cancelled and he became liable to serve the unexpired portion of his sentence, discussed above. This does not alter the conclusion, the appellant argues, that the cancellation of the appellant’s court ordered parole occurred during the first period of imprisonment on 5 June 2020, which was a separate period of imprisonment; s 160C was not engaged. Rather, s 160B(3) required a parole release date.
The respondent’s response can be summarised in terms of the contended application of the legislative provisions. What is submitted is that:
(a)In terms of the present version of s 209(1) of the CSA (which the respondent might argue is in different and clearer terms to the version previously under discussion in the above cases) where a prisoner is sentenced to another period of imprisonment for an offence committed, in Queensland or elsewhere, during the period of the prisoner’s parole order, the order is taken to have been automatically cancelled on the date on which the offence occurred.
(b)Subsection (2) makes clear that this applies whether or not the prisoner is sentenced to the other period of imprisonment before or after the parole order has expired,
(c)As outlined above s 211 makes clear that the prisoner received credit for the time served between release and commission of the first offence;
(d)Section 215, as to expiry of the parole order, defines the period of imprisonment as having been served if the order expires without being cancelled under ss 205 or 209. The argument is that although this happened as at 4 September 2021 – that is, at that date the parole order did expire without being cancelled – this gives way to the retrospective action expressly provided for in s 209(1); see Smith at [27], [31], [33]. Hall is to similar effect, as is Bliss.
The respondent emphasises that the definition of “period of imprisonment” refers to the total liability effected by the sentencing orders, rather than a particular unbroken duration of actual detention in custody. Because s 209 effects cancellation of the parole when the offender is later sentenced for an offence committed on parole, the prisoner is not only liable to serve the contingent liability; there was in truth one unbroken duration of imprisonment. The argument is, in effect, that although s 215 might have described the appellant’s position (i.e. that he had completed serving his period of imprisonment) as at 5 September 2021 onwards, in truth that position was and continued to be contingent, in the sense that it was always open to be reversed (as it later was) by the future operation of s 209(1). That is, although he had nominally completed his sentence, the terms of s 209 mean that he was always liable to have that status reversed if he had committed offences on parole for which he might later be sentenced to imprisonment.
This might seem in some ways a curious result. As raised during argument, to illustrate by an extreme example, if Mr Robinson had completed his sentence without being apprehended for the offences committed on parole, and subsequently lead a blameless life for 20 years, the respondent’s position on the basis of the above construction is that he nevertheless had not in truth served his period of imprisonment, despite the terms of s 215, because the terms of s 209 mean that he was always liable to be dealt with for offences committed on parole with the parole then being automatically cancelled.
Discussion
In my view the respondent’s position, capable though it may be of producing some curious results in the extreme case posited, must be accepted. The weight of authority referred to tends to the conclusion that in the circumstances where someone has been released on parole but committed offences, when he is subsequently sentenced to imprisonment for those offences and s 209 takes effect retrospectively, his period of imprisonment is, in terms of the legislative framework under discussion, “unbroken” despite a period in the community not subject to parole.
This may seem at first blush curious, but it is part of the particular legislative scheme in the CSA and may have been seen by Parliament as being an important part of the design of the parole system. It should be borne in mind that “parole” – derived as the word is from Old French, meaning literally “word” or “formal promise” – is a system[16] of early release from prison on the prisoner’s promise, inter alia and importantly, not to reoffend. On the legislative scheme and the decided cases, the nature of the promise appears to be open ended or indefinite. This is unsurprising; if an offender secures early release on a promise not to reoffend, the community has an interest in holding him to his promise indefinitely so far as offences committed on parole are concerned.
[16]Longstanding in Queensland, from the Prisoners Parole Act 1937 to the Offenders Probation and Parole Act 1959; the Offenders Probation and Parole Act 1980; the Corrective Services Act 1988; the Penalties and Sentences Act 1992; the Corrective Services Act 2000 and the present Corrective Services Act 2006.
The primary obligation upon release on parole is to not reoffend. Where an offender breaches that part of his promise, the promise in effect becomes indefinite because of the operation of s 209, despite the terms of s 215 as was outlined in Smith. In this case, the retrospective cancellation of the appellant’s earlier parole had, as in the other cases mentioned, the effect of rendering his period of imprisonment unbroken and it thus exceeded three years. The conclusion is that the Magistrate was correct to impose a parole eligibility date pursuant to s 160C of the PSA and the appeal is dismissed.
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