Smith v Queensland Community Corrections Board

[2000] QSC 396

SUPREME COURT OF QUEENSLAND

CITATION:

Smith v Queensland Community Corrections Board [2000] QSC 396

PARTIES:

ALAN PETER SMITH
(applicant)
v
QUEENSLAND COMMUNITY CORRECTIONS BOARD
(respondent)

FILE NO:

8886 of 2000

DIVISION:

Trial Division

DELIVERED ON:

3 November 2000

DELIVERED AT:

Brisbane

HEARING DATE:

26 October 2000

JUDGE:

White J

ORDER:

Declare that the term of imprisonment of Alan Peter Smith within the meaning of that term in s 175(1)(a)(i)(A) of the Corrective Services Act 1988 (as amended) expires on 25 November 2000.

CATCHWORDS:

CRIMINAL LAW - REMISSIONS - PAROLE - prisoner released on parole with parole order to expire at the end of the original sentence - prisoner also granted remissions - whether parole order expires on date of discharge having regard to grant of remissions.

Corrective Services Act 1988 (Qld), s 122, s 130(e), s 163, s 165, s 175(1)(a)(i)(A), s 183, s 184
Corrective Services Regulations 1989 (Qld), reg 21, reg 22, reg 23, reg 24, reg 25, reg 27, reg 28
Penalties and Sentences Act 1992 (Qld), s 4

Kelleher v Parole Board of New South Wales (1984) 156 CLR 364, considered.

COUNSEL:

J Davidson for the applicant
A MacSporran for the respondent

SOLICITORS:

Lewis Lawyers for the applicant
Walsh Halligan Douglas for the respondent

1. WHITE J:  The applicant was sentenced to 12 years imprisonment on 2 August 1989.  He was granted remission on his sentence in accordance with s 24 of the Corrective Services Regulations 1989 (“the Regulations”) of 203 days.  His prison sentence calendar shows his discharge date as 25 November 2000.  The applicant was released on parole on 21 August 2000.  The parole order states that it expires on 1 August 2001, 12 years from the date the sentence was imposed.

1. The applicant contends that his parole order ought to expire on the date of discharge, 25 November 2000, having regard to the grant of remission.

1. The respondent contends that the applicant’s sentence does not expire until 1 August 2001 and, pursuant to s 175(1)(a)(i)(A) of the Corrective Services Act 1988 (“the Act”), that is the date upon which his parole will expire. That section relevantly provides

“A parole order -
(a)      shall contain requirements that the prisoner -

(i)be under the supervision of a community correctional officer

(A)if the prisoner is a prisoner mentioned in section 165(1)(a) - for such period, that does not go past the end of the prisoner’s term of imprisonment, as is determined by the board making the order …”

1. The appellant is a person to whom s 175(1)(a)(i)(A) applies because he is the person to whom s 165(1)(a) of the Act applies, being a prisoner serving a term of imprisonment. A parole order may not extend past the end of the prisoner’s term of imprisonment. “Term of imprisonment” is defined in s 10 of the Act to mean

“(a)     the term of a single sentence; or

(b)the unbroken period of imprisonment a person is liable to serve by virtue of a number of sentences, whether ordered to be served concurrently or cumulatively and whether imposed at the same time or at different times …”

1. There are two different expressions employed in this definition - “the term of a … sentence” and “the … period of imprisonment a person is liable to serve …”. The expression “sentence” is not defined in the Act but in the Penalties and Sentences Act 1992 it is defined to mean “any penalty or imprisonment ordered to be paid or served, or any other order made, by a court after an offender is convicted, whether or not a conviction is recorded”, s 4. Relevantly it means “any … imprisonment ordered to be … served”. Of some assistance in the resolution of the issue for decision is the definition of “cumulative sentence” in s 122 of the Act. A “cumulative sentence” means a sentence of imprisonment that is to take effect upon the expiration of deprivation of liberty for another sentence of imprisonment. A prisoner commences serving a cumulative sentence when “taking into account any remission granted in respect of the first sentence, the prisoner has completed serving the first sentence,” s 122(2).

1. By s 130(e) regulations may be made under s 208 of the Act for “the granting … of remission of sentences of imprisonment”. The scheme of remission is contained in Part III of the Regulations.  By regulation 21

“A prisoner serving a sentence of imprisonment … who is of good conduct and industry may … be granted a remission of one‑third of his sentence together with such other remission as is provided for in this Part.”

Regulation 22 sets out a table for the calculation of remission and regulation 23 concerns remission through over‑task marks.

1. Regulation 24 by which the applicant was granted 203 days remission provides

“A prisoner who holds the security rating of minimum security or open security and who is of good conduct and industry shall be eligible for an additional remission of sentence to the extent that every period of 28 days served by him while he holds that security rating shall constitute the serving of one month of his sentence.”

1. Regulation 25 provides that a prisoner “serving a term of imprisonment of two years or longer may be granted a remission of one day for every Christmas Day served under that term. Section 197 of the Penalties and Sentences Act repealed the provisions in the Criminal Code relating to habitual criminals so that regulation 26 which refers to such persons who are prisoners and still appears in some prints of the Regulations can be ignored.

1. Regulation 27 concerns the forfeiture of remission and sets out circumstances where a prisoner is at risk of not being granted remission on his sentence.  It provides

“Where, within the period of a sentence of imprisonment a prisoner, … undergoes separate confinement for a period of 7 days on 3 or more occasions, and he has not generally been of good conduct and industry, the general manager shall submit … before the date on which the prisoner might ordinarily have been discharged (or a subsequent cumulative sentence would have commenced), had he been of good conduct and industry.  …”

1. Finally, regulation 28 deals with the forfeiture of remission where an offence is committed during the course of a prisoner’s imprisonment.  It provides

“The Commission shall not grant remission in respect of any period of a sentence of imprisonment …  The prisoner may become eligible by good conduct and industry for remission on the balance of his original sentence.”

1. The scheme of parole is to be found in Part 4 of the Act. By s 163 a prisoner may apply to be released on parole. The Queensland Community Corrections Board may direct that a prisoner “who is serving a term of imprisonment” may be released on parole “on the date specified in the order”, s 165. By s 175, as mentioned, a parole order may operate for a period “that does not go past the end of the prisoner’s term of imprisonment”. If the parole period has expired the prisoner “shall be deemed to have served the prisoner’s term of imprisonment”, and shall be wholly discharged therefrom, s 183.

1. Section 184 provides relevantly that

“Until the parole period has expired as referred to in s 183(1) or a prisoner is otherwise discharged from the term of imprisonment … a prisoner released on parole shall be regarded as still being under sentence … and as not having suffered the punishment to which the prisoner was sentenced …”

1. The status of remissions granted under the royal prerogative arose for consideration in Kelleher v The Parole Board of New South Wales (1984) 156 CLR 364 and both Mr Davidson for the applicant and Mr MacSporran for the respondent sought to rely on dicta in it. However, the then New South Wales legislation in respect to remissions was significantly different. A prisoner by virtue of s 41 of the Prisons Act 1952, (NSW), who was granted remission on sentence was released conditionally. If those conditions were breached then by s 41(4) the prisoner could be returned to prison to serve the unexpired portion of his term of imprisonment. The principal question in Kelleher was whether the royal prerogative remissions to which the appellant in that case had become entitled, being of a similar character to the ordinary remissions under the Prisons Act, operated as a foreshortening of the appellant’s nominal sentence or as a foreshortening of the custodial period that he was required to serve under that sentence.  Because of the conditional nature of remissions the majority concluded that the nominal sentence remained intact even after the grant of remissions so that a parole order could operate to the end of the nominal sentence.  In the present Queensland scheme a prisoner who is granted remission is discharged absolutely.

1. In the course of his judgment, Mason J, who was one of the majority, observed when reviewing the history of the royal prerogative as it applied to pardons and remissions,

“There seems to be little doubt that a remission of sentence was ordinarily regarded as cancelling or reducing the sentence” at 367.

This is also the relevant dictionary definition of “remission”, Australian Concise Oxford Dictionary (1987).

1. Mr MacSporran sought some assistance from observations by Wilson J at 373 to support the position that the date of the parole order could exceed the discharge date with remission.

“They [remissions and parole] are quite distinct concepts referable to the imprisonment and rehabilitation of offenders.  They are of different origins and exhibit different incidents and objectives.  More importantly, the statutory provisions relating to each are quite different” at 373.

That is, with respect, true of the Queensland position although the remarks were made in the context of the New South Wales legislation which, as I have mentioned, contains appreciable differences to the present scheme.  The exercise here, as in Kelleher, is one of statutory construction.

1. Mr MacSporran submitted that there is nothing illogical or unfair to a prisoner not having remissions taken into account when a parole period is set.  He submits that if a person either does not apply for parole or is refused parole he is eligible to be discharged on a date calculated by reference to his nominal original sentence release date reduced by the period of any remission granted during the course of his time in custody.  On the other hand a prisoner who is released from parole on the supposition that it will usually occur after serving 50 per cent of his sentence will have the benefit of an earlier release than the person having only remission and will be placed under supervision for the unexpired term of the sentence.  The benefit, he submits, to a prisoner who either does not apply for parole or is refused parole is that although he will have served a longer period in custody than a person who gets parole he will be entirely free from supervision.  I fail to be attracted to this argument.  It does not take account of the fact that in many cases a person is not granted parole until well after serving 50 per cent of the sentence as occurred here.  If a prisoner is granted parole close to the time when he would be released absolutely after he is granted remission on his sentence he might be thought to be in rather a worse position than a person who does not apply or who is not granted parole.  It would tend to defeat both the purpose of parole and the purpose of remission.

1. The legislative scheme in respect of remission in Queensland is to remit part of a prisoner’s sentence. Where section 184 refers to a prisoner being “otherwise discharged” that must include a reference to earlier discharge through remission. There is nothing to link remission to “reducing the time spent in custody”, as occurred in Kelleher.  The sentence is “any imprisonment ordered to be served”.  The provisions relating to parole consistently refer to “the term of imprisonment” as meaning the sentence ordered to be served.  It is, therefore, appropriate that the declaration sought should be made.

1. I declare that the term of imprisonment of Alan Peter Smith within the meaning of that term in s 175(1)(a)(i)(A) of the Corrective Services Act 1988 (as amended) expires on 25 November 2000.

1. The respondent should pay the applicant’s costs of and incidental to the application to be assessed on a standard basis.