Stallan v Queensland Police Service

[2010] QDC 392

DISTRICT COURT OF QUEENSLAND

CITATION:

Stallan v Queensland Police Service [2010] QDC 392

PARTIES:

BRONSON TERRENCE STALLAN

(Appellant)

v

QUEENSLAND POLICE SERVICE

(Respondent)

FILE NO/S:

39/2010

DIVISION:

PROCEEDING:

Appeal

ORIGINATING COURT:

Magistrates Court Toowoomba

DELIVERED ON:

15 October 2010

DELIVERED AT:

Toowoomba

HEARING DATE:

8 October 2010

JUDGE:

Bradley DCJ

ORDER:

Appeal allowed.

Sentence imposed by the Magistrate’s Court set aside. The appellant is convicted and sentenced to two months imprisonment to be served concurrently with the term of imprisonment he is currently serving. Order that the appellant be released on parole on 15 October 2010.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS OF THE APPEAL – OTHER MATTERS – where the appellant pleaded guilty to a charge under s123(2)(a) Corrective Services Act 2006 – where the magistrate imposed a term of imprisonment to be served cumulatively on the term for which the appellant was originally imprisoned – where the subsequent cumulative penalty imposed triggered section 160C Penalties and Sentences Act 1992 (Qld) imposing a parole eligibility date – whether section 209 Corrective Services Act 2006 (Qld) effectively cancelled the appellant’s parole eligibility date – whether the penalty imposed was excessive.

Corrective Services Act 2006 (Qld): s123(2)(a), s209

Penalties and Sentences Act 1992 (Qld): s160B(2), s160C

COUNSEL:

SOLICITORS:

H Shilton, solicitor, Legal Aid Office Queensland for the Appellant

N W Needham of counsel, Office of the Director of Public Prosecutions for the Respondent

1. On 13 May 2010 the appellant pleaded guilty in the Toowoomba Magistrates Court to a charge under s 123(2)(a) of the Corrective Services Act 2006. The particulars of the charge were that on 15 February 2010 the appellant, being a prisoner in the Darling Downs Correctional Facility, did deal with a prohibited thing, namely a USB data storage device without written approval from the chief executive.

1. The appellant was convicted and sentenced to two months imprisonment to be served cumulatively on the sentence he was then serving namely a sentence of three years imprisonment imposed on him in the Ipswich District Court on 7 September 2009.

1. The sentence imposed on the appellant on 7 September 2009 included an order that he be released on parole on 7 September 2010.  On 13 May 2010 the sentencing magistrate ordered that the appellant be eligible for release on parole on 7 September 2010, which order, by reason of the application of the parole provisions of the Penalties and Sentences Act 1992, superseded the order of the District Court.

1. The effect of s 160C of the Penalties and Sentences Act 1992 is that the cumulative nature of the sentence imposed on 13 May 2010 means that the appellant’s period of imprisonment is more than three years and pursuant to sub section 3 of that section, as he had a current parole release date, the Magistrates Court had the discretion to fix the date the appellant was eligible for parole but could not set a certain parole release date.

1. The circumstances of the offence are that on 15 February 2010 another prisoner, Allen, was found using a USB stick during a literacy course.  He refused to hand the stick in when requested to do so by prison staff and left the room.  Staff later located Allen in his cell and he denied having the USB stick on him but indicated that he would retrieve it.  He was given the opportunity to do so.  CCTV footage showed Allen approach the appellant who retrieved the USB stick from his underwear and gave it to Allen.  Allen then handed it in to prison staff.  It was not contested by the prosecution that the appellant only had possession of the USB stick for a very short period of time and did not use it in any way.

1. The magistrate was told that the appellant had been punished within the prison system by being placed in the detention unit and then transferred to maximum security at Woodford Correctional Centre.

1. When sentencing the appellant the magistrate commented that “persons that are in custody and commit offences within correctional facilities should have periods of imprisonment imposed upon them and to be cumulative”.

1. Despite acknowledging to the appellant (regarding the USB stick) “you only had possession of it, you were not going to use it and only holding it for Mr Allen”,  the magistrate nevertheless imposed the same term of imprisonment upon the appellant as he had imposed earlier on Allen.

1. Although he set a parole eligibility date for the appellant of 7 September 2010 (that is, the same date as the appellant’s parole release date ordered on 7 September 2009) the magistrate made the following comment:

“You’ll be convicted and sentenced to a period of two months’ imprisonment from today, to be served cumulatively with your current sentence, and I set a parole eligibility date as far as you are concerned as 7 September 2010.  It will not affect your parole eligibility date, but you will have a longer sentence if you play up inside.”

1. It was argued on behalf of the respondent that the effect of s 209 of the Corrective Services Act 2006 is that upon the appellant being sentenced to imprisonment, the court ordered parole from 7 September 2009 was cancelled.

1. Section 209 of the Corrective Services Act 2006 reads as follows:

Automatic cancellation of order by further imprisonment

209

(1)A prisoner’s parole order is automatically cancelled if the prisoner is sentenced to another period of imprisonment for an offence committed, in Queensland or elsewhere, during the period of the order.

(2)Sub section (1) applies even if the period of the parole order has expired.

Note:See s 211 for the effect of the cancellation.

(3)However, sub section (1) does not apply if -

(a)        The prisoner is required to serve the period of imprisonment mentioned in the sub section in default of –

(i)         Paying a fine or another amount required to be paid under a court order; or

(ii)        Making restitution required to be made under a court order; or

(b)        The period of imprisonment mentioned in the sub section –

(i)Is required to be served under an intensive correction order; or

(ii)Is wholly suspended under the Penalties and Sentences Act 1992, Part 8;

(iii)Is wholly suspended because of an order, under the Drug Court Act 2000, s 20(1)(a), contained in an intensive drug rehabilitation order.

(iv)Is required to be served until the court rises.

1. “Parole order” is defined in schedule 4 of the Corrective Services Act 2006 as a parole order granted by the parole board or a court ordered parole order issued by the chief executive “in accordance with the date fixed for the prisoner’s release on parole under the Penalties and Sentences Act 1992, Part 9 Division 3”.[1]

   [1]Section 199(1) of the Corrective Services Act2006.

1. It is clear from the provisions of the Corrective Services Act that the reference to “parole order” in s 209 of that Act is a reference to an order made pursuant to that Act rather than an order made by a court pursuant to the parole provisions of the Penalties and Sentences Act 1992. In these circumstances s 160B(2) of the Penalties and Sentences Act1992 does not apply.  That provision provides as follows:

“If the offender has had a court ordered parole order cancelled under the Corrective Services Act2006, ss 205 or 209 during the offender’s period of imprisonment, the court must fix the date the offender is eligible for parole.”

1. The appellant’s conviction and sentence to a period of imprisonment did not therefore lead to a position whereby he was only entitled to a parole eligibility date.  Rather, it was the order that he serve the two months imprisonment cumulatively on the term of imprisonment imposed on 7 September 2009 which had the effect of limiting the magistrate’s discretion to imposing a parole eligibility date rather than a parole release date.[2]

   [2]Section 160C of the Penalties & Sentences Act 1992.

1. It is trite to say that there is a significant difference to a sentenced prisoner between a certain parole release date and a parole eligibility date.  The former allows a prisoner to know with certainty when he will be released whereas the latter requires the prisoner to make an application to the parole board for consideration that he be released on parole and such applications take some time to be processed.

1. It was conceded before the magistrate and in this court that the appellant played a significantly lesser role in the offence than the prisoner Allen and yet both received the same term of imprisonment.

1. The sentencing magistrate’s discretion did miscarry in that he failed to adequately consider the issue of parity between the sentences imposed on the prisoner Allen and upon the appellant. The magistrate’s statement that the commission of offences by those in custody should result in cumulative terms of imprisonment was also an error. The practical effect of imposing a cumulative sentence when the appellant was already serving a term of imprisonment of three years meant that the sentence imposed by the magistrate was excessive.

1. The appropriate sentence in the circumstances is that the appellant be ordered to serve two months imprisonment concurrently with the term he is currently serving and, in order that the sentence has a deterrent effect, his parole release date be delayed. A parole release date of 7 October 2010 would have been appropriate, but as that date has now passed, a parole release date of today should be ordered.

1. I allow the appeal and substitute instead the following order.  The appellant is convicted and sentenced to two months imprisonment to be served concurrently with the term of imprisonment he is currently serving and a date for the appellant’s release on parole is fixed at 15 October 2010.